Key Takeaways
The Supreme Court of Maryland’s rulings provide additional powerful precedent rejecting efforts to target complex societal issues through public nuisance actions against lawful, regulated industries.
We previously highlighted an Ohio Supreme Court decision finding that opioid-related public nuisance claims against retail pharmacies chains were barred by state law. In two recent decisions, the Supreme Court of Maryland also soundly rejected similar public nuisance theories, holding that common-law public nuisance is not a vehicle to impose liability on corporations for alleged downstream effects of their lawful business activities.
In Express Scripts, Anne Arundel County alleged that pharmacy benefit managers, mail-order pharmacies, and retail pharmacies fueled the opioid crisis and created a public nuisance by deceptively marketing and encouraging the unsafe use of prescription opioids. Express Scripts, Inc., et al. v. Anne Arundel Cnty., Md., Misc. No. 1 (Md. March 23, 2026). The County sought damages and opioid-related abatement costs. On certified questions asking whether such conduct could constitute a public nuisance and, if so, what elements and remedies would apply for a local government plaintiff, the Maryland Supreme Court held that the complaint did not allege interference with a common public right and that dispensing controlled substances or administering benefit plans for them is not an actionable public nuisance under Maryland common law.
The court did not limit its holding to the prescription opioid context, observing that “[t]o recognize a general common law ‘public right’” to not be adversely impacted by “a lawful product being diverted, misused, or abused” “would permit nuisance liability to be imposed on an endless list of manufacturers, distributors, and retailers of manufactured products that are intended to be used lawfully.” Id. at 87. The court further held that even if the County could establish an interference with a public right, the dispensing of, or administration of benefit plans for, a controlled substance could not constitute an actionable public nuisance under Maryland common law. Its reasoning rested on both the nature of a public nuisance—traditionally limited to interferences with the rights of the community at large and punishable as a crime rather than a tort—and the extensive regulatory schemes governing the lawful distribution and use of pharmaceutical products, including the federal Controlled Substances Act. The decision aligns Maryland with Oklahoma, Ohio, and Maine, whose highest courts have also rejected public nuisance claims related to prescription opioids.
In B.P. P.L.C., the cities of Baltimore and Annapolis, along with Anne Arundel County, sued major oil and gas companies, alleging that defendants deceived the public about the climate change risks associated with their extraction, production, promotion, and sale of fossil fuels. Mayor & City of Balt., et al. v. B.P. P.L.C., No. 11 (Md. March 24, 2026). The local governments sought to recover costs related to climate-change impacts, such as flooding and sea-level rise, through Maryland common-law claims, including public nuisance, private nuisance, failure to warn, and trespass.
The Supreme Court held that federal common law and the Clean Air Act preempted and displaced the local governments’ claims, including because they involved the regulation of interstate pollution. The court further held that even if they were not preempted, none of the state-law claims were cognizable under Maryland law. As to public nuisance, the court cited Express Scripts, to confirm that “[w]here the legislature has, through the enactment of comprehensive legislation, entrusted such highly complex matters to an agency having expertise of the same, we decline to expand common law nuisance to address the same conduct.” Id. at 66.
These decisions may foreclose common-law public nuisance actions in Maryland to impose liability on companies for the downstream effects of lawful, regulated activities.
