SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In Re: Lead Paint Litigation (A-73-05)

Argued November 28, 2006 -- Decided June 15, 2007

HOENS, J., writing for a majority of the Court.

    The litigation that is the subject of this appeal began in December of 2001 when the City of Newark and its Mayor sued a large number of manufacturers of lead pigments or lead paints, or the corporate successors to those manufacturers. The complaint alleged fraud, public nuisance, civil conspiracy, unjust enrichment, and indemnification. Shortly thereafter, twenty-five other jurisdictions filed complaints similar to the complaint filed by the City of Newark. By order dated February 11, 2002, the Court designated all pending and future litigation regarding lead-based paint as a mass-tort and all twenty-six complaints were consolidated and assigned to one judge for case management.

    The defendant manufacturers (defendants) moved to dismiss the complaints for failure to state a claim on which relief could be granted. The trial court granted defendants’ motion, finding that the plaintiff public entities’ (plaintiffs) overstepped their powers and were not authorized to maintain suit, regardless of any particular theories asserted. In regard to plaintiffs’ public nuisance argument, the trial court rejected it because: 1) the damages sought would be barred by the municipal cost recovery doctrine; 2) defendants’ acts were governed exclusively by products liability theories; and 3) the Legislature, in enacting the Lead Paint Act (LPA), intended to act comprehensively, with the result that other remedies, including the common law remedy of public nuisance, were not available to plaintiffs. The trial court also rejected the complaints based on a proximate cause analysis, reasoning that defendants’ lack of control of the premises where the nuisance could be found was fatal to any recovery of damages.

    The Appellate Division reversed only the trial court’s dismissal of the public nuisance claim, affirming all of the trial court’s other conclusions. The panel found that allowing plaintiffs’ public nuisance claim to go forward would not subvert any legislative goals reasoning that, absent any express legislative limitation, courts must assume that the LPA was not intended to bar any inconsistent common-law remedy. The panel also found no separation of powers violation, referring to the goals of the complaints as “complementary” to the remedies authorized by the LPA. The Appellate Division also rejected the trial court’s municipal cost recovery analysis, questioning the continued viability of that theory and its application to public nuisance claims. In addition, the panel held that a public nuisance claim is permissible even if the only allegation is that defendants failed to advise of the risks associated with an ordinary consumer product lawfully made and sold decades before. The panel concluded that the plaintiffs were not impermissibly suing on behalf of third parties but had suffered their own, unique damage. The Appellate Division also rejected the defendants’ argument that plaintiffs’ claims were barred by the Product Liability Act (PLA), finding instead that their claims were precluded from the scope of the PLA because of that statute’s exception for environmental tort actions. Finally, the panel concluded that plaintiffs’ claims were not barred by the remoteness doctrine, plaintiffs’ identifying a sufficient link between defendants’ conduct and the alleged damages.

    The Supreme Court granted certification to address issues relating to the tort of public nuisance.

HELD: Plaintiffs cannot state a cognizable claim consistent with the well-recognized parameters of the common-law tort of public nuisance. To find otherwise would be directly contrary to legislative pronouncements governing both lead paint abatement programs and products liability claims.

1. Lead, a naturally occurring metal, has been linked to serious health risks, especially in young children. There are many forms of lead contamination, including that caused by lead paint most often ingested through chipping, peeling, or dust resulting from deteriorating conditions of older homes. As of 2000, the Centers for Disease Control considered childhood lead exposure, which can cause learning disabilities, retardation, hyperactivity, or even death, a major environmental problem. (Pp. 10-14)

2. Congress passed and continued to amend legislation to fund grants to investigate, address, and remediate continued lead paint contamination in residential units throughout the country. In New Jersey, through the LPA and other statutes, the Legislature has separated the statutory scheme for the abatement of lead paint in buildings from the programs devoted to the health care aspects of lead exposure and lead poisoning. There are many and varied funding sources for addressing the health concerns arising from lead exposure. In contrast, under the LPA, responsibility for the costs of abatement rests largely on the property owner, with the statute specifically empowering local boards of health to sue owners to recover abatement costs. It is within this statutory framework that the parties’ arguments must be evaluated. (Pp. 14-22)

3. The Legislature’s use of the term “public nuisance” in the LPA is in keeping with the term’s historic meaning and intent. Thus, if the Court were to agree that there is a basis sounding in public nuisance for plaintiffs’ claims, it would be creating a remedy entirely at odds with the pronouncements of the Legislature. Essential to the concept of public nuisance is the interference with the interests of the community at large. An example of such a public nuisance is a pond breeding malarial mosquitoes or the storage of explosives. The tort has been historically linked to the use of land by the one creating the nuisance. The modern concepts of the term are found in the Restatement (Second) of Torts, but the definitional language continues to adhere to the traditional notion that the tort of public nuisance fundamentally involves the vindication of a right common to the public. (Pp. 22-30)

4. In the area of public nuisance, there is a distinction between suits for money damages and proceedings for the injunctive remedy of abatement. A private plaintiff can sue for money damages caused by a public nuisance only if the private plaintiff has suffered harm of a kind that is different from that suffered by other members of the public (a special injury). Conversely, a public entity only has the right to abate. There is no right either historically or through the Restatement (Second) for a public entity to seek to collect money damages, in general. (Pp. 30-34)

5. The Legislature’s use of the term “public nuisance” can only have been intended in its strict historical sense. By attaching a criminal penalty, by ordering an abatement through a public entity, and by maintaining a focus on the owner of premises as the actor responsible for the public nuisance itself, the Legislature’s approach remained tethered to the historical bases that have defined public nuisance throughout the years. Nor is there any basis to conclude that the Legislature, in using the term “public nuisance” in the LPA and in creating a remedial scheme consistent with the historical understanding of the term in both criminal and tort antecedents, had nonetheless expected that its use of that term would be the springboard for the expansive reading suggested by plaintiffs.
(Pp. 34-38)

6. There is no basis for recognizing a public nuisance cause of action in plaintiffs’ complaints. The Legislature, consistent with traditional public nuisance concepts, recognized that the appropriate target of the abatement and enforcement scheme must be the premises owner whose conduct has, effectively, created the nuisance. Plaintiffs’ view that defendants’ product is a public nuisance would improperly stretch the theory to the point of creating strict liability to be imposed on the manufacturers of ordinary consumer products which, although legal when sold, and although sold no more than twenty-five years ago, have become dangerous through deterioration and poor maintenance by the purchasers. (Pp. 38-42)

7. In applying these above referenced principles to plaintiffs’ complaints, the inevitable conclusion is that the complaints do not state a claim in public nuisance. First, the complaints seek damages rather than abatement and, as such, fall outside the scope of remedies available to a public entity plaintiff. Therefore, the plaintiffs may only proceed in the manner of private plaintiffs. Assuming that is permissible, they must identify a special injury to which an award of money damages may attach. Plaintiffs have not and cannot do that because all of the injuries they have identified are general to the public at large. Rather, plaintiffs’ claims are cognizable only as products liability claims. The language of the Products Liability Act encompasses both the products at issue and the harms suffered. Nor are the claims raised excluded from the scope of the PLA, which excludes claims seeking coverage for exposure to toxic chemicals or substances. Lead paint exposure is not within the environmental tort exclusion. Although there may be room, under other circumstances, for an expanded definition of public nuisance, there is no basis in this record to conclude that plaintiffs have stated such a claim. (Pp. 42-51)

    Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for entry of a judgment in favor of defendants.

     CHIEF JUSTICE ZAZZALI, dissenting, in which JUSTICE LONG joins, is of the view that the Court has a duty to reconcile outdated formulations of common law with the complexities of contemporary society and, as such, he would not allow those responsible for polluting this State’s residential environment to avoid liability simply because past applications of the public nuisance doctrine do not mirror the circumstances of this case. Justice Zazzali finds the public nuisance doctrine an appropriate and efficient means for vindicating the public’s right to be free from the harmful effects of lead paint. The majority’s holding unfairly places the cost of abatement on taxpayers and private property owners, while sheltering those responsible for creating the problem. The common law doctrine of public nuisance is an appropriate means of shifting the costs of abatement to those who unfairly profited at the expense of the general public.

     JUSTICES LaVECCHIA, WALLACE, and RIVERA-SOTO join in JUSTICE HOENS’ opinion. CHIEF JUSTICE ZAZZALI filed a separate dissenting opinion in which JUSTICE LONG joins. JUSTICE ALBIN did not participate.

SUPREME COURT OF NEW JERSEY
A- 73 September Term 2005


IN RE: LEAD PAINT LITIGATION

    

Argued November 28, 2006 – Decided June 15, 2007

On certification to the Superior Court, Appellate Division.

Ezra D. Rosenberg argued the cause for appellants, American Cyanamid Co.; Atlantic Richfield Company; Cytec Industries, Inc.; E.I. duPont de Nemours and Company, ConAgra Grocery Products Company; Millenium Inorganic Chemicals Inc.; NL Industries, Inc. and Sherwin-Williams Co. (Dechert, attorneys for Atlantic Richfield Company; Coughlin Duffy, attorneys for American Cyanamid Co. and Cytec Industries, Inc.; Riker, Danzig, Scherer, Hyland & Perretti, attorneys for E.I. duPont de Nemours and Company; Lowenstein Sandler, attorneys for ConAgra Grocery Products Company; Porzio, Bromberg & Newman, attorneys for Millenium Inorganic Chemicals Inc.; McCarter & English, attorneys for NL Industries, Inc. and Herrick, Feinstein, attorneys for Sherwin-Williams Co.; Mr. Rosenberg, Joyce Chen Shueh, Timothy I. Duffy, David W. Field, Anne M. Patterson, Lauren E. Handler, Steven P. Benenson, Andrew T. Berry and Ronald J. Levine, on the briefs).

Fidelma Fitzpatrick, a member of the Rhode Island, Massachusetts, New York and District of Columbia bars and Michael Gordon argued the cause for respondents, City of Bayonne;
City of Camden; Borough of Collingswood;
Cumberland County; City of East Orange; County of Essex; City of Gloucester; Gloucester County; Borough of Highland Park;

Township of Hillside; Township of Irvington; City of Jersey City; City of Linden; City of Newark; Borough of North Plainfield; City of Orange; City of Passaic; Town of Phillipsburg; City of Plainfield; Borough of Roselle; Borough of Roselle Park; City of Union City; County of Union; Township of Union; Town of West New York and Township of West Orange (Gordon & Gordon, attorneys for City of Newark and Township of West Orange;
Morris G. Smith and Florio, Perrucci, Steinhardt & Fader, attorneys for City of Camden; Florio, Perrucci, Steinhardt & Fader, attorneys for Borough of North Plainfield; City of Gloucester; Town of Phillipsburg; Borough of Collingswood and County of Gloucester; Florio, Perrucci, Steinhardt & Fader and Hobbie, Corrigan, Bertucio & Tashjy, attorneys for City of Plainfield; Jon L. Gelman, Michael P. Burakoff and Scarinci & Hollenbeck, attorneys for City of Bayonne; City of Jersey City; City of Passaic; City of Union City and Town of West New York; Mr. Gelman, Mr. Burakoff, James J. Plaia and Marvin T. Braker, attorneys for City of Orange;
Basile & Testa, attorneys for County of Cumberland; Mr. Gelman, Mr. Burakoff and Bross, Cummings & Pereira, attorneys for Township of Irvington and County of Essex;
Bross, Cummings & Pereira, attorneys for City of East Orange; Mr. Gelman, Mr. Burakoff and Mr. Plaia, attorneys for City of Linden; Township of Hillside; Borough of Roselle; Borough of Roselle Park; County of Union and Borough of Highland Park; Ms. Fitzpatrick, Mr. Gordon, Mr. Smith, Mr. Burakoff, Mr. Gelman, Mr. Plaia, Mr. Braker, Michael J. Perrucci, Glenn A. Clouser, Norman M. Hobbie, Jacqueline DeCarlo, Michael L. Testa, Michael Bross, Sheldon Bross and Steven L Schepps, on the brief).

Ronald K. Chen, Public Advocate of New Jersey, argued the cause for amicus curiae Public Advocate.
Michael J. Haas, Assistant Attorney General, argued the cause for amicus curiae Department of Health and Senior Services (Stuart Rabner, Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Rachana R. Munshi and Melissa H. Raksa, Deputy Attorneys General, on the brief).

Steven J. Picco submitted a brief on behalf of amicus curiae Chemistry Council of New Jersey (Reed Smith, attorneys).

Kenneth J. Wilbur submitted a brief on behalf of amici curiae Johnson & Johnson, New Jersey Business & Industry Association, New Jersey State Chamber of Commerce and Commerce and Industry Association of New Jersey (Drinker Biddle & Reath, attorneys).

David G. Evans submitted a brief on behalf of amicus curiae Pacific Legal Foundation.

Stacy Alison Fols submitted a brief on behalf of amicus curiae Product Liability Advisory Council, Inc. (Montgomery, McCracken, Walker & Rhoads, attorneys).

JUSTICE HOENS delivered the opinion of the Court.
    In these consolidated complaints, twenty-six municipalities and counties seek to recover, from manufacturers and distributors of lead paints, the costs of detecting and removing lead paint from homes and buildings, of providing medical care to residents affected with lead poisoning, and of developing programs to educate residents about the dangers of lead paint. Although the complaints initially sought recovery through a wide variety of legal theories, we are called upon to consider only whether these plaintiffs have stated a cognizable claim based on the common law tort of public nuisance. Because we conclude that plaintiffs cannot state a claim consistent with the well-recognized parameters of that tort, and because we further conclude that to find otherwise would be directly contrary to legislative pronouncements governing both lead paint abatement programs and products liability claims, we reverse the judgment of the Appellate Division and remand for dismissal of the complaints.
                        I.
This litigation began on December 14, 2001, when the City of Newark and its mayor filed a complaint asserting claims sounding in fraud, public nuisance, civil conspiracy, unjust enrichment, and indemnification. Named as defendants were a large number of companies that had manufactured lead pigments or lead paints, or that were the corporate successors to the manufacturers of those products. See footnote 1 Shortly thereafter, twenty-five other plaintiffs See footnote 2 filed complaints similar to the one filed by the City of Newark. By order dated February 11, 2002, this Court designated “all pending and future litigation involving damages or other relief arising out of the manufacture, sale, distribution and/or use of lead-based paint” as a mass tort. See R. 4:38A. Pursuant to that order, all of the complaints were transferred to a single vicinage and assigned to one judge for management.

A.
Defendants moved to dismiss the complaints for failure to state a claim on which relief could be granted. See R. 4:6-2(e). After briefing and oral argument, the trial court issued an order granting defendants’ motion, accompanied by a lengthy written decision. See footnote 3
The trial court rejected the complaint both generally and based upon a count-by-count analysis. As a general proposition, the trial court concluded that because plaintiffs are municipalities and similar governmental entities, they had only such powers as are granted to them by statute or our constitution. Viewed in that light, the trial court first criticized plaintiffs’ complaints generally as overstepping those powers, referring to the complaints as “seek[ing] an unwarranted and impermissible expansion of [plaintiffs’] role as local government entities to act on behalf of the public.” The trial court therefore found that these plaintiffs were not authorized to maintain the action, regardless of any of the particular theories asserted.
The court also addressed each of those theories, and, in particular, rejected plaintiffs’ argument that their complaints sounded in public nuisance. First, noting that plaintiffs drew their support for this theory of recovery from the legislative declaration of public nuisance contained in the Lead Paint Act, the court reasoned that all of the damages plaintiffs sought to recoup would be barred by the municipal cost recovery doctrine. Second, the trial court reasoned that all of defendants’ acts that plaintiffs asserted gave rise to their public nuisance claims were, in reality, governed exclusively by products liability theories. Third, the court reasoned that the Legislature, in enacting the Lead Paint Act, intended to act comprehensively, with the result that other remedies, including the common law remedy of public nuisance, were not available to these plaintiffs. Finally, the trial court rejected the complaints based upon a proximate cause analysis, reasoning that defendants’ lack of control of the premises where the nuisance could be found was fatal to plaintiffs’ recovery of damages.
B.
The Appellate Division’s analysis of the public nuisance claim led it to reach the opposite conclusion. First, the appellate panel rejected the trial court’s conclusion that “to permit this action to proceed would offend the constitutional principle of separation of powers by sanctioning a remedial process independent of that created by the Legislature” when it enacted the Lead Paint Act. Instead, the panel reasoned that permitting plaintiffs’ public nuisance claim “to proceed would not subvert the goals of the [Legislature], . . . . [because it would] proceed on a parallel track that need not ever intersect with the mechanism set forth” by the Legislature. In so concluding, the panel utilized a preemption analysis and coupled it with the observation that “[a]bsent [an] express limitation, courts must assume that the statute was not intended to bar any [inconsistent] common-law remedy.” Referring to the goals of the complaints as “complementary” to the remedies authorized by the Lead Paint Act, the panel found no separation of powers violation.
The Appellate Division also rejected the trial court’s municipal cost recovery rule analysis, questioning the continued viability of that theory and its application to public nuisance claims. Having therefore rejected the trial court’s general grounds for dismissing the complaints, the panel then turned to a discussion of the trial court’s more specific conclusions about the viability of this public nuisance claim.
In analyzing the parameters of a public nuisance claim, the panel held that parties, like defendants, may be liable for a public nuisance even if those parties do not control, at the time the nuisance is created or exists, the instrumentality causing the nuisance or the property where the nuisance is found. Thus, the Appellate Division held that a public nuisance claim is permissible even if the only allegation is that defendants failed to advise of the risks associated with an ordinary consumer product lawfully made and sold decades before. In doing so, the panel reasoned that public nuisance no longer requires proof of defendants’ interference with the use of land, with the result that the legal theory could extend to the activities of these defendants.
As part of this analysis, the panel rejected the assertion that plaintiffs were impermissibly suing on behalf of third parties harmed by lead paint. Instead, it found that plaintiffs had suffered “their own, unique damages.” The panel, however, did not address whether a public entity could sue for damages caused by a public nuisance only if it could allege that it had sustained “special damages” as that term is utilized in public nuisance doctrine.
In addition, the appellate panel rejected defendants’ alternate argument that plaintiffs’ claims were governed by, and therefore precluded by, the Product Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11. Although conceding that plaintiffs alleged that defendants were liable because they had failed to disclose or warn of the products’ dangers, the panel found no bar to plaintiffs’ public nuisance claim as a result. Rather, the panel reasoned that the claims were excluded from the scope of the PLA because of that statute’s exception for environmental tort actions. See N.J.S.A. 2A:58C-6.
Finally, the appellate panel concluded that plaintiffs’ claims were not barred by the remoteness doctrine, reasoning that the complaints sufficiently identified, for purposes of a proximate cause analysis, a link between plaintiffs’ alleged damages and defendants’ conduct.
C.
We granted defendants’ petition for certification, 185 N.J. 391 (2005), in order to address these several issues relating to the tort of public nuisance. Our consideration of this matter must begin with an explanation of the historical background of lead paint and with a review of the statutory responses to the public health impact of lead at the federal and state levels. We next consider separately the history and modern development of the common law tort of public nuisance. With that historical and legislative framework in mind, we then consider whether plaintiffs’ complaints sound in public nuisance, whether these complaints are consistent with or barred by the Legislature’s intent as expressed in the Lead Paint Act, and whether, in actuality, the complaints sound not in public nuisance but in products liability.
II.
For purposes of the proceedings that have given rise to this appeal, many of the facts and much of the historical data relating to lead paint and lead pigments are not contested. We recite them here only to explain the context in which this dispute arises.
A.
Lead is a naturally occurring metal. Centers for Disease Control and Prevention (CDC), Third National Report on Human Exposure to Environmental Chemicals 38 (2005). For many years, lead has been used for a wide variety of purposes and has found numerous applications, including use in batteries, paints, glassware, and plastics. Ibid.
Lead, however, has also been linked to serious health effects. The most recent annual report prepared by the New Jersey Department of Health and Senior Services (DHSS) describes lead paint and the risk it poses as follows:
When absorbed into the human body, lead affects the blood, kidneys and nervous system. Lead’s effects on the nervous system are particularly serious and can cause learning disabilities, hyperactivity, decreased hearing, mental retardation and possible death. Lead is particularly hazardous to children between six months and six years of age because their neurological system and organs are still developing.

[Childhood Lead Poisoning in New Jersey: Annual Report 4 (2005) [hereinafter Annual Report].]

In addition, according to the United States Department of Health and Human Services, children tend to absorb lead more readily than do adults, because most lead ingested by adults is excreted, while children typically only excrete about one-third of the lead they ingest. See Agency for Toxic Substances & Disease Registry, Draft Toxicological Profile for Lead 8 (2005).
Because “[l]ead was removed from gasoline in the United States in the early 1980’s . . . the level of lead in the air and thereby the amount inhaled by children” has been greatly reduced. See Annual Report, supra, at 4. In 2000, the CDC warned that the primary lead hazard for children today comes from lead-based paint, particularly in homes, where it is the major source of lead exposure among children nationwide. See Recommendations for Blood Lead Screening of Young Children Enrolled in Medicaid 2 (Morbidity & Mortality Wkly Rep. Vol. 49, 2000) [hereinafter Recommendations]. More specifically, the presence of “leaded paint that is peeling, chipping, or otherwise in a deteriorated condition; [and] lead-contaminated dust created during removal or disturbance of leaded paint in the process of home renovation” places children “at particularly high risk.” Annual Report, supra, at 4. At the same time, the United States Environmental Protection Agency has continued to advise that “[l]ead-based paint is usually not a hazard if it is in good condition, and it is not on an impact or friction surface, like a window.” Protect Your Family from Lead in Your Home 5 (2003).
Although lead-based paint was banned in the United States in 1978, see 16 C.F.R. § 1303.1, most homes constructed in the United States before 1978 contain some lead paint, U.S. Dep’t of Hous. & Urban Dev. (HUD), Lead Paint Poison: Is Your Family at Risk? (2001), and lead exposure in children today most commonly results from their “chronic ingestion of lead-contaminated dust.” Recommendations, supra, at 2. Despite the decline in average blood lead levels among the population of the United States, as of 2000, the CDC considered childhood lead exposure to be “a major environmental health problem.” Id. at 3.
According to DHSS, houses in New Jersey built before 1950, “when paints contained a very high percentage of lead,” present the “highest risk” of lead poisoning for children. Annual Report, supra, at 4. As of 2005, DHSS estimated that thirty percent of all housing in our State, comprising nearly one million housing units, was built before 1950. See ibid. However, through our statewide testing and abatement program, the percentage of children who underwent lead poisoning testing has increased. Id. at 7. Additionally, the percentage of children with elevated blood levels identified through our testing programs has continued to decline. Id. at 16-20.
Although the focus of the lead poisoning control efforts by all levels of government has been largely on lead paint in housing, other sources of lead contamination are well known. The New Jersey Department of Community Affairs (DCA) continues to warn residents that homes built prior to 1987 may also include lead-soldered plumbing lines, which may be a source of lead in their drinking water. See Frequently Asked Questions: Lead Hazard Assistance (LHCA) Fund (2007). See footnote 4 Other sources of lead contamination include “old painted toys and furniture[,]   . . . food and liquids stored in lead crystal or . . . pottery[,] . . . [h]obbies that use lead[,] . . . [and] folk remedies.” Ibid. In addition to these sources, the CDC has recently warned of lead contaminated toys, children’s jewelry, and imported candies, see Lead Program: Frequently Asked Questions, See footnote 5 and the New York City Health Department has released an alert concerning lead-based cosmetics, Press Release, New York City Dep’t of Health & Mental Hygiene, Health Department Warns New Yorkers Not to Use Imported Eye Makeup that Contains Lead at 1 (Apr. 26, 2007).

B.
Congress first addressed the nationwide problem of lead paint exposure in 1971 through the passage of the Lead-based Paint Poisoning Prevention Act (LPPPA), Pub. L. No. 91-695, 84 Stat. 2078 (1971) (formerly codified at 42 U.S.C.A. §§4801 to 4846 (1971)). Initially, the LPPPA authorized a series of grants to discover the extent of the effects of lead exposure in children. See ibid.; see also Ashton v. Pierce, 716 F.2d 56, 58 (D.C. Cir. 1983). At the same time, Congress authorized the HUD Secretary to promulgate regulations to eliminate the harms of lead-based paint from federally-owned or -funded housing. See Ashton, supra, 716 F.2d at 58-59. Through amendments to the LPPPA, and through promulgating increasingly strict regulations, by the late 1970s, the federal government had effectively banned the general use or sale of paint containing lead and was moving “to eliminate as far as practicable” the existing hazards in federal housing. Ibid.
Thereafter, the LPPPA was further expanded and supplemented, including through the 1992 passage of the Residential Lead-based Paint Hazard Reduction Act (RLPHRA), Pub. L. No. 102-550, 106 Stat. 3897 (1992) (codified at 42 U.S.C.A. §§4851 to 4856 (1992)). That Act sought to address the continuing problem of deteriorating lead paint in residential units throughout the country. See 42 U.S.C.A. §4851(6). As a part of its legislative findings, Congress recognized that federal assistance to create an appropriate infrastructure was still required. See 42 U.S.C.A. §4851(8). The RLPHRA therefore created a system of grants for the purpose of educating the public, identifying housing with lead contamination, and remediating the hazard in certain target housing. See 42 U.S.C.A. §4852(e). Congress has continued to appropriate funds for these programs since that time. See, e.g., Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act of 2006, Pub. L. No. 109-115, 219, 119 Stat. 2396, 2456 (2005).
C.
New Jersey also responded to the problem posed by lead paint through the 1971 enactment of legislation known as the Lead Paint Act. See L. 1971, c. 366 (originally codified at N.J.S.A. 24:14A-1 to -12). The sponsor of the bill that eventually became the Lead Paint Act described the purposes of the Act and the concerns that motivated its passage as follows:
The incidence of the disease of lead poisoning especially among children in substandard housing has become a major public concern both in our State and at the Federal level. There is presently pending in the United States Senate a bill [subsequently enacted as the LPPPA], passed by the House of Representatives which would provide Federal funding for up to 75% of the cost of certain local lead poisoning screening programs and State-conducted demonstration and research projects designed to study the extent of the lead-based paint poisoning problem and the methods for lead-based paint removal.

This bill is designed to set up a comprehensive program both at the State and local level to eliminate the causes of lead poisoning in New Jersey, to treat the incidents thereof, and to enable both State and local government units to take advantage of Federal funding for such programs.

[Statement to Senate Bill No. 998, at 3 (Dec. 10, 1970).]

As initially enacted, the Lead Paint Act prohibited anyone from “knowingly apply[ing] lead paint to toys, furniture, or the exposed interior surfaces of any dwelling . . . or facility occupied . . . by children.” L. 1971, c. 366, § 1 (codified at N.J.S.A. 24:14A-1). The Act made violations a disorderly persons offense. See id. at § 3 (codified at N.J.S.A. 24:14A-3). In addition, the Act included a provision that declared the “presence of lead paint upon the interior of any dwelling causing a hazard to the occupant . . . to be a public nuisance,” id. at § 5 (codified at N.J.S.A. 24:14A-5), and vested “primary responsibility” for investigating and enforcing the Act in local boards of health, id. at § 6 (codified at N.J.S.A. 24:14A-6).
Included among the Lead Paint Act’s specific directives is the mandate that when a local board of health finds a dwelling with lead paint and finds that any person living there has an elevated level of lead in his or her blood, it “shall at once notify the owner that he [or she] is maintaining a public nuisance” and shall order the owner to abate the condition. Id. at § 8 (codified at N.J.S.A. 24:14A-8). In the event that the owner does not comply, the Act directs the local board of health to abate the condition at the owner’s expense and authorizes both a civil cause of action against the owner and a lien on the property to ensure that the owner reimburses the local board of health for its expenses. See id. at § 9 (codified at N.J.S.A. 24:14A-9). Finally, the Act authorized the State Department of Health to promulgate implementing regulations, see id. at § 11 (codified at N.J.S.A. 24:14A-11), and vested it with the following duties:
the responsibility for the development, implementation and coordination of a program to control lead poisoning by promoting research into methods of identifying areas wherein there is a high risk of the presence of lead paint in a dwelling, by setting up screening procedures for the detection of the presence of lead in persons and dwellings and stimulating professional and public education concerning the condition of lead poisoning.

[Id. at § 12 (codified at N.J.S.A. 24:14A-12) (repealed and replaced in 1985).]

The statute was amended in 1976, essentially for the purpose of extending its reach to encompass “any facility occupied or used by children” by expanding the definition of “dwelling.” L. 1976, c. 116, § 3 (codified at N.J.S.A. 24:14A-4d). This amendment was largely based on our Legislature’s effort to ensure that lead paint in buildings being used as “nursery schools, day care centers and similar facilities” was included within the enforcement provisions of the Act. Senate Law, Public Safety and Defense Committee, Statement to Senate Bill No. 152 (Apr. 23, 1976).
In 1985, the Legislature, through the Lead Poisoning Abatement and Control Act, amended the Lead Paint Act to expand the directives to the State Department of Health that were formerly included in Section 12. See L. 1985, c. 84, § 10. In short, the Legislature repealed the general directive relating to creation of a lead poisoning program and enacted a far more detailed program to be established by the Department of Health. See L. 1985, c. 84 (codified at N.J.S.A. 26:2-130 to -137). As part of this enactment, the Legislature appropriated funds to assist the Department of Health in fulfilling its mandate, see id. at § 9, and directed the Commissioner of Health to “prepare a comprehensive plan to control lead poisoning” no later than September 25, 1985, see id. at § 5 (codified at N.J.S.A. 26:2-134). The Commissioner was also required to submit a report and recommendation to the Legislature and the Governor annually thereafter. See id. at § 6 (codified at N.J.S.A. 26:2-135).
In 1995, the Legislature again addressed the lead poisoning problem. Concluding that screening of pre-school children for lead poisoning was essential and that identifying the children at risk was necessary, the Legislature created a “universal lead screening program.” L. 1995, c. 328 (codified at N.J.S.A. 26:2-137.2 to -137.7). Although the program was to be implemented and overseen by the Department of Health, primary responsibility for testing was placed on physicians, registered professional nurses, and health care facilities, with a directive to the Department of Health to attempt to maximize available federal funding to defray the costs. See id. at § 3 (codified at N.J.S.A. 26:2-137.4).
Finally, in 2003, the Legislature enacted the Lead Hazard Control Assistance Act (LHCAA), L. 2003, c. 311 (codified at N.J.S.A. 52:27D-437.1 to -437.15). The LHCAA provided for further assistance in lead paint remediation through the creation of the Lead Hazard Control Assistance Fund and the Emergency Lead Poisoning Relocation Fund. See id. at §§ 4, 9 (codified at N.J.S.A. 52:27D-437.4, -437.9). These low-cost loan and grant programs, together with the creation of a registry of lead-safe housing, see id. at § 7 (codified at N.J.S.A. 52:27D-437.7), not only provided homeowners and owners of certain multi-family dwellings with financial assistance for abatement of existing lead in those premises, but created a database from which lead-safe housing could be identified. At the same time, the LHCAA required that all dwellings subject to inspections pursuant to N.J.S.A. 55:13A-13 -- with the exception of dwellings constructed during or after 1978, seasonal rental units, and owner-occupied dwellings -- be inspected for “lead hazard control work.” Id. at §§ 10, 12 (codified at N.J.S.A. 52:27D-437.10, -437.12). It also required the fees charged for these inspections, as well as a portion of the taxes collected from sales of paint and similar materials, to be dedicated to the fund created by the LHCAA. See id. at §§ 10, 11 (codified at N.J.S.A. 52:27D-437.10, -437.11).
As this explanation of the several statutes demonstrates, the Legislature separated the statutory scheme for the abatement of lead paint in buildings from the programs devoted to the health care aspects of lead exposure and lead poisoning. Funding sources for addressing the health concerns arising from lead exposure are now both many and varied. In addition to Department of Health grants to local health departments, our Legislature has enacted statutes requiring health maintenance organizations, hospital services corporations, and insurers to provide for, or to cover the costs of, blood lead screening and resulting medical evaluation and treatment for lead-related disorders. See, e.g., N.J.S.A. 17:48-6m(a) (hospital service corporations contract); N.J.S.A. 17:48E-35.10 (health service corporation contracts); N.J.S.A. 17B:27-46.1l (group health insurance policies); N.J.S.A. 17B:27A-7(e)(i) (individual health benefits plans); N.J.S.A. 17B:27A-19(k)(i) (small group insurance policies); N.J.S.A. 26:2J-4.10 (health maintenance organizations).
In contrast, under the Lead Paint Act, responsibility for the costs of abatement rests largely on the property owners. Indeed, that statute specifically empowers local boards of health to sue owners to recover abatement costs. Although the LHCAA, the most recent of these statutes, provides for grants and low-cost loans to certain property owners, eligibility is limited, with the result that owners still bear much of the cost burden. Notably, the Legislature specifically directed that these programs be funded through increased inspection fees paid by owners and by a portion of the sales taxes attributable to currently-available paint products.
It is only in light of this statutory framework that the arguments of the parties concerning the viability of a cause of action sounding in public nuisance can be evaluated. We turn, then, to an examination of the elements of that common law tort and to its relationship to this statutory framework.

III.
Our analysis of the common law tort of public nuisance and its relationship, if any, to the Lead Paint Act must begin with an examination of the historical underpinnings of the tort itself.
A.
The common law tort of public nuisance, which one commentator has described as being “vaguely defined” and “poorly understood,” Donald G. Gifford, Public Nuisance As A Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 774 (2003), can be traced back for centuries, see id. at 790-806. By carefully examining the historical antecedents of public nuisance and by tracing its development through the centuries, clear and consistent parameters that define it as a cognizable theory of tort law become apparent. Through our use of this analytical methodology, however, we can only conclude that plaintiffs’ loosely-articulated assertions here cannot find their basis in this tort. Rather, were we to permit these complaints to proceed, we would stretch the concept of public nuisance far beyond recognition and would create a new and entirely unbounded tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.
Even more notable, however, is the fact that, unlike plaintiffs’ complaints, our Legislature’s use of the term “public nuisance” in the Lead Paint Act is in keeping with the term’s historical meaning and intent. As a consequence, were we to agree with the Appellate Division that there is a basis sounding in public nuisance for plaintiffs’ assertions, we would be creating a remedy entirely at odds with the pronouncements of our Legislature.
B.
    We need not recount the earliest origins of the common law tort of public nuisance in great detail. Nevertheless, some brief discussion of its roots is necessary to explain its modern usage. Originally, public nuisance was created as a criminal offense, see William L. Prosser, Private Actions for Public Nuisance, 52 Va. L. Rev. 997, 999 (1966), which was used to allow public officials, acting in the place of the sovereign, to prosecute individuals or require abatement of activities considered to be harmful to the public, see Gifford, supra, 71 U. Cin. L. Rev. at 745-46. As the commentary to the Restatement (Second) of Torts notes, the historical focus of public nuisance prosecutions included attacking such behaviors as “keeping diseased animals or the maintenance of a pond breeding malarial mosquitoes[,] . . . storage of explosives[,]   . . . [operating] houses of prostitution[,] . . . [causing] loud and disturbing noises[,] . . . disseminat[ing] bad odors, dust and smoke[,] . . . [and] obstruction of a public highway or a navigable stream.” Restatement (Second) of Torts § 821B cmt. b (1979).
Essential to the concept of public nuisance, as illustrated by these historical examples, is the “interference with the interests of the community at large.” Ibid. In modern times, the criminal prosecution for such activities has been subsumed within a wide variety of statutes, and we no longer recognize the existence of a common law crime of public nuisance. See N.J.S.A. 2C:1-5(a) (abolishing common law crimes in favor of statutory enactments); see also Restatement (Second) of Torts § 821B cmt. c (1979) (noting elimination of common law crimes). Nevertheless, a common law tort remedy to redress public nuisance has been recognized in light of the fact that these same activities might also give rise to tort-based recoveries. See Restatement (Second) of Torts at § 821B cmt. b (1979).
Notwithstanding that development, the essential elements of public nuisance as a theory of tort recovery find their genesis in this historical basis in crime and criminal prosecution. See Gifford, supra, 71 U. Cin. L. Rev. at 781. This is not to suggest that the existence of a common law tort remedy sounding in public nuisance is a particularly modern development. Indeed, in spite of the suggestion of at least one commentator that the first formalized appearance of the tort of public nuisance, distinct from its criminal concepts, is found in the Restatement (Second) of Torts, see Gifford, supra, 71 U. Cin. L. Rev. at 807-08, it appears that the concept of a common law tort of public nuisance can also be traced back to English common law, albeit of somewhat more recent vintage, see Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L.Q. 755, 796-800 (2001) (tracing English common law precedents of tort of public nuisance). Rather, our recognition of the nuisance concept’s historical antecedents in criminal law gives us the context for our understanding of the meaning of the more modern tort principles.
Equally essential to the concept of a public nuisance tort, however, is the fact that it has historically been linked to the use of land by the one creating the nuisance. See Gifford, supra, 71 U. Cin. L. Rev. at 831-33. The link to land may arise either because the nuisance is on that person's land, as in a mosquito pond, or because an activity conducted on that land interferes with a right of the general public, as in a stream-polluting business. See id. at 832 (explaining that public nuisance claim may arise because of defendant’s use of land or because “the defendant has interfered with the plaintiff’s use and enjoyment of public land.”). In either case, public nuisance has historically been tied to conduct on one’s own land or property as it affects the rights of the general public. This is not to say that the focus for public nuisance, like private nuisance, involves an interference by defendant with a particular plaintiff’s use and enjoyment of his own land. See Restatement (Second) of Torts § 821B cmt. h (1979). Rather, the nuisance, traditionally arising on the defendant’s land, must instead involve an interference with a public right. See id. at § 821B cmt. g.
C.
Our modern concepts of public nuisance are set forth in the Restatement (Second) of Torts. See footnote 6 There, public nuisance is defined, see id. at § 821B; the persons or entities permitted to recover for a public nuisance, either to collect damages or to prosecute an abatement action, are specifically indicated, see id. at § 821C; public nuisance is distinguished from private nuisance, see id. at § 821D; and those who may recover for private nuisance are identified, see id. at § 821E, separately from those who may sue, as private plaintiffs, for a public nuisance, see id. at § 821C. Because much of the debate in this matter arises from confusion about the essential elements of the tort of public nuisance, and the basis for any cause of action arising from public nuisance, we address these concepts as they have developed.
Scholars familiar with the development of the Restatement (Second), and with the adoption of the sections relating to public nuisance in particular, point to the influence of individuals and entities seeking an avenue for redress of environmental pollution in the development of those sections, which were not found in the first Restatement. See Antolini, supra, 28 Ecology L.Q. at 829-49; Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541, 547-48 (2006). Although now largely subsumed in statutory pronouncements, environmental tort litigation had its origins in concepts of public nuisance, and its influence in the language adopted in the Restatement (Second) is in part a reflection of early environmentalists’ hopes of creating means to ensure broad-based avenues for pollution control. See Antolini, supra, 28 Ecology L.Q. at 829-48. Their influences are readily apparent, for example, in Section 821C(2)(c), which includes language authorizing suits by class representatives, consistent with then-developing federal standing jurisprudence. See Restatement (Second) of Torts § 821C cmt. j (1979); Antolini, supra, 28 Ecology L.Q. at 846-48.
While the influence of those concerned about tort-based grounds on which to pursue polluters played a role in the creation of the public nuisance sections of the Restatement (Second), the definitional language nonetheless continues to adhere to the traditional notion that the tort of public nuisance fundamentally involves the vindication of a right common to the public. The Restatement (Second) defines a public nuisance as follows:
(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

[Restatement (Second) of Torts § 821B (1979).]

Although it might appear that the tort is expressed in rather general terms, those terms are not without meaning. In particular, the right with which the actor has interfered must be a public right, in the sense of a right “common to all members of the general public,” rather than a right merely enjoyed by a number, even a large number, of people. Id. at § 821B cmt. g.
In explaining the difference between an interference with a common right and an interference with a right merely enjoyed by a large number of people, the Restatement (Second) provides the following example:
A public right is one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured. Thus the pollution of a stream that merely deprives fifty or a hundred lower riparian owners of the use of the water for purposes connected with their land does not for that reason alone become a public nuisance. If, however, the pollution prevents the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of the community of the right to fish, it becomes a public nuisance.

[Ibid.]

The notion of the public right or common right that might be vindicated through a public nuisance action has two aspects that have been the focus of attention among scholars. First, of course, is the definition of the public right or common right itself since it fixes the parameters of any claim sounding in public nuisance. See, e.g., Schwartz & Goldberg, supra, 45 Washburn L.J. at 562-64.
Second, however, and to some extent of more interest to the commentators, has been the distinction between public and private rights of action arising from public nuisance. See footnote 7 These distinctions are explained in Section 821C of the Restatement (Second) as follows:
Who Can Recover for Public Nuisance
(1) In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.

(2) In order to maintain a proceeding to enjoin to abate a public nuisance, one must

(a) have the right to recover damages, as indicated in Subsection (1), or

(b) have authority as a public official or public agency to represent the state or a political subdivision in the matter, or

(c) have standing to sue as a representative of the general public, as a citizen in a citizen’s action or as a member of a class in a class action.

[Id. at § 821C.]

As this section illustrates, there is a distinction between suits for damages and proceedings for the injunctive remedy of abatement. Compare id. at § 821C(1) with id. at § 821C(2). The only basis for a money damage remedy arises in the context of a private action for public nuisance.
In considering who may sue to collect damages, by way of a private action for public nuisance, the focus of the scholars has been upon the Restatement (Second)’s continued adherence to the special injury rule. See Antolini, supra, 28 Ecology L.Q. at 844-54. Accordingly, a private plaintiff can sue for damages caused by the public nuisance only if the private plaintiff has “suffered harm of a kind different from that suffered by other members of the public.” Restatement (Second) of Torts § 821C(1) (1979).
Although this Court has not considered the parameters of the tort of public nuisance in light of the Restatement (Second)’s formulation, we have previously adhered strictly to the requirement that a private plaintiff proceeding on a public nuisance theory demonstrate special injury. See Poulos v. Dover Boiler & Plate Fabricators, 5 N.J. 580, 587-89 (1950) (dismissing public nuisance complaint of property owner whose only claim was of greater inconvenience than that suffered by other members of the public).
Similarly, in published decisions, our trial and appellate courts have followed this traditional interpretation. See Twp. of Howell v. Waste Disposal, Inc., 207 N.J. Super. 80, 98-99 (App. Div. 1986) (affirming dismissal of township’s common law public nuisance claim against polluter for want of standing); Colon v. Tedesco, 125 N.J. Super. 446, 455-56 (App. Div. 1973) (concluding that migrant farm worker demonstrated special injury supporting action in public nuisance in effort to enforce statute regulating conditions at migrant labor camp); Warren Foundry & Pipe Corp. v. Meriden Stone Co., 32 N.J. Super. 254 (App. Div. 1954) (dismissing private claim for obstruction of public roadway because even great inconvenience to an individual is not special injury); Gilmour v. Green Vill. Fire Dep’t, 2 N.J. Super. 393, 395 (App. Div. 1949) (awarding injunctive relief to landowner directly affected by lights on baseball field shining into his windows); Baird v. Bd. of Recreation Comm’rs, 110 N.J. Eq. 603, 604-05 (E. & A. 1932) (finding that plaintiff who claimed that his peace was disturbed by Sunday baseball games on public lands suffered no special injury); Mosig v. Jersey Chiropodists, Inc., 122 N.J. Eq. 382, 386 (Ch. 1937) (rejecting application for injunction by individual chiropodists against unlicensed practitioners for want of special injury).
Under the Restatement (Second)’s formulation, if a private plaintiff has a right to sue for damages because of a harm different in kind, then that party may also pursue an action to abate the nuisance as it affects all members of the public. See Restatement (Second) of Torts § 821C(2)(a) (1979). Conversely, however, the public entity, as the modern representative of the sovereign in public nuisance litigation, has only the right to abate. See id. at § 821C(2)(b). Although historically that has included the right to visit upon the owner of the land from which the public nuisance emanates, the obligations, including the costs, of the abatement, see City of Paterson v. Fargo Realty Inc., 174 N.J. Super. 178, 185 (Cty. Ct. 1980) (“It has long been recognized that a right to reimbursement will accrue to a municipality for its expenses in rightfully demolishing a building constituting a public nuisance.”), there is no right either historically, or through the Restatement (Second)’s formulation, for the public entity to seek to collect money damages in general, see Restatement (Second) of Torts § 821C(1) (1979). Rather, there is only a private plaintiff’s right to recover damages through an action arising from a special injury. See ibid.
The significance, then, of the evolution of public nuisance law is threefold. First, a public nuisance, by definition, is related to conduct, performed in a location within the actor’s control, which has an adverse effect on a common right. Second, a private party who has suffered special injury may seek to recover damages to the extent of the special injury and, by extension, may also seek to abate. Third, a public entity which proceeds against the one in control of the nuisance may only seek to abate, at the expense of the one in control of the nuisance. These time-honored elements of the tort of public nuisance must be our guide in our consideration of whether these complaints have stated such a claim. That analysis requires us to address not only the claims, but the nature of the plaintiffs, as well as the capacity in which they propose to proceed.

IV.    
Before we can accurately decide whether these complaints state a claim sounding in public nuisance, we must consider the implication of the Legislature’s use of that term in the Lead Paint Act. Plaintiffs suggest, and the appellate panel agreed, that the Legislature’s inclusion of a declaration of public nuisance in that statute supports the conclusion that plaintiffs therefore have a right to proceed in tort on that theory. This argument, however, is based upon the assumption that the declaration of public nuisance was general in scope and that the Legislature therefore intended to authorize, or at least did not intend to preclude, public entities’ suits for damages.
A.
We therefore consider what the Legislature intended when it declared in the Lead Paint Act that the presence of lead paint in buildings is a public nuisance. See N.J.S.A. 24:14A-5, -8. First, in discerning the intent of the Legislature, we consider the words employed. See DiProspero v. Penn, 183 N.J. 477, 492 (2005) (noting that “best indicator of [legislative] intent is the statutory language”). In light of the fact that public nuisance is itself a common law tort, we must decide whether the Legislature intended to refer to that tort or, as plaintiffs suggest, intended to use the term in some general, ill-defined, or colloquial meaning of the words “public nuisance.”
    We conclude that the Legislature’s use of the term “public nuisance” can only have been intended in its strict historical sense. In general, technical terms, terms of art, and terms with existing legal meanings, “[i]n the absence of legislative intent to the contrary, or other overriding evidence of a different meaning” are understood to have been used in accordance with those meanings. 2A Norman J.