(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Jenna Greene

July 23 (Reuters) - Plastic waste is ubiquitous - from

empty water bottles to grocery bags, the detritus litters

beaches, parks and roadways.

The question for a federal judge in San Francisco now is

whether Exxon Mobil ( XOM ) can be held liable for such pollution, or if

a novel suit claiming the company has created a public and

private nuisance should be dismissed.

A coalition of four environmental groups last year sued Exxon, a

leading producer of polymers used to make single-use plastics,

alleging the company wrongly led consumers in California to

believe that plastic was easily and safely disposed of, when in

reality, less than 5% of it is recycled in the United States.

A spokesperson for Exxon, which has denied wrongdoing, did not

respond to requests for comment, and the company's outside

counsel from O'Melveny & Myers declined comment for this column.

Exxon in court papers said the plaintiffs' theory that consumers

purchased more plastic based on statements by Exxon was "to put

it mildly, a real stretch."

During an hour-long oral argument last week over Exxon's

motion to dismiss, Chief U.S. District Judge Richard Seeborg

pushed lawyers on both sides to lay out the parameters of

nuisance law, while also hinting he might allow the claim to

move forward - but more on that later.

Nuisance, a centuries-old legal doctrine with its roots in

English common law, applies when a defendant's conduct

interferes with a public or private right to the enjoyment of

life or property. Classic examples include blocking a public

road or a factory that emits noxious odors.

In recent years, nuisance claims have also been successfully

invoked by state and local governments in litigation against

opioid makers for their role in the epidemic of addiction and

overdose deaths, netting close to $50 billion in payouts. Lead

paint manufacturers also settled nuisance claims in California

in 2019, agreeing to pay $305 million without admitting

wrongdoing.

Unlike personal injury claims, nuisance cases do not seek

damages to compensate plaintiffs for an injury. Instead, they

seek to make the party responsible for the nuisance pay to

abate, or fix, the condition.

The defense bar has called public nuisance a "

super tort

," complaining that such claims offer a way to sidestep the

more rigorous requirements to prevail in a product liability

lawsuit.

Here, the Sierra Club, Surfrider Foundation, Heal the Bay, and

San Francisco Baykeeper, which also allege violations of

California's unfair competition law, want abatement, injunctive

relief, compensatory damages and attorneys' fees, noting in a

press release that California taxpayers shell out an estimated

$420 million each year to clean up and prevent plastic

pollution.

Their case was brought in tandem with a similar action by

California Attorney General Rob Bonta. The AG's higher-profile

suit remains bogged down in a fight over venue after Seeborg

remanded it to San Francisco Superior Court. Exxon has appealed

that decision to the 9th U.S. Circuit Court of Appeals, where

the dispute remains pending.

In the meantime, the suit by the environmental groups has

proceeded in federal court, where Seeborg must now decide if it

can survive the motion to dismiss.

"What is the nuisance?" he asked plaintiffs lawyer Tyson

Redenbarger, a partner at Cotchett, Pitre & McCarthy. "Is it

that these items are plastic (and) plastics cause pollution? Or

is it that people acquire it thinking it's more recyclable than

it is?"

"It's a very broad claim," Seeborg added. "My problem is, is

it so broad that I can't really get my hands around?"

Redenbarger countered that the nuisance standard itself is

"quite broad," arguing that Exxon's "years-long campaign to tell

the public that plastic can be safely disposed of" led consumers

to buy more of it, and that unrecycled plastic waste winds up in

waterways or leaks chemicals into landfills.

Redenbarger and spokespeople for the environmental coalition

did not respond to requests for comment.

Last year, New York Attorney General Letitia James came up short

in a similar suit accusing PepsiCo of polluting the environment

with single-use plastic packaging. In dismissing the case, a New

York state court judge ruled it would run "contrary to every

norm of established jurisprudence" to punish PepsiCo, because it

was people, not the company, who ignored laws prohibiting

littering.

But Seeborg, who was appointed to the bench in 2009 by

President Barack Obama, offered some indication he might not be

so quick to toss the environmental groups' case - at least not

at this stage of the litigation.

When Exxon lawyer Dawn Sestito, a partner at O'Melveny,

argued that unlike in the lead paint case - where companies

allegedly touted the paint for interior use while knowing it was

toxic - it's hard here "to imagine that talking about plastics

as recyclable could be considered a promotion for hazardous

use," she said. Moreover, government entities also convey the

message that plastic is recyclable, she said.

Seeborg responded that the plaintiffs' "accusation is that

you knew it wasn't, and you're in the business of polymer

production," he said. "You may quite possibly prevail in terms

of undermining the nuisance claim, but we're at the posture

right now of just whether or not it can even go forward."

He added, "This case isn't about whether going into the

marketplace and saying 'Let's all recycle' is actionable.

They're claiming something very different."

A few minutes later, when Sestito took aim at what she

flagged as a basic disconnect in the plaintiffs' case - how is

it, she said, that stating "a product or plastics could be

recyclable results in more plastic ending up in oceans or

beaches or becoming pollution?" - Seeborg again shut her down.

"I don't want to beat the same drum over and over again, but

is that something that would need to be explained at this stage

of the litigation?" he said. "It ultimately may need to be

explained, but the question really is, have they articulated a

legal theory that can advance, if they proved everything."