SACRAMENTO - In a move that has some legal observers scratching — if not shaking — their heads, the California state legislature pushed through in September two measures aimed at giving the cities of Berkeley, Oakland and San Jose standing to refile PCB waterway contamination public nuisance claims against Monsanto.
The original lawsuits claim Monsanto created a public nuisance by manufacturing, distributing, marketing and promoting — prior to 1979 — PCBs (polychlorinated biphenyl) which ended up polluting stormwater which flows into the Bay. The public nuisance theory behind the original suits required that each of the cities establish an ownership interest in the PCB-contaminated waterways. This August, Judge Edward Davila of the Northern District of California’s San Jose division dismissed all three cases because they did not establish this ownership interest. The judge did, however, leave the door open for the three municipalities to amend their claims.
In early September, the state legislature passed not one, but two bills that would provide a legal basis for the cities to refile their claims. The plaintiffs duly refiled mere days later.
“The new legislation that the plaintiffs helped to insert at the eleventh hour and are now promoting as solving one of their legal problems does not fix the many profound problems in their case,” said Monsanto Vice President of Global Strategy Scott Partridge in a statement. “No court in the country has imposed the costs associated with city discharge permits onto others. The product manufacturer did not place any PCBs into the Bay, and the new complaints do not change that basic fact."
Kim Stone, President of the Civil Justice Association of California, finds the lawmakers’ actions and the subsequent re-filing of the claims troubling.
“These nuisance lawsuits, brought by plaintiffs’ lawyers partnering with local governments really push the boundaries of fair jurisprudence," she said. "Traditional pollution lawsuits sue the polluter, not the party that made the pollutant."
City of San Jose vs. Monsanto was filed in July 2015 by a group of plaintiffs’ lawyers from several states outside of California. By January 2016, represented by the same group of plaintiffs’ lawyers, the cities of Berkeley and Oakland had also filed public nuisance suits against Monsanto.
In early September, the state legislature approved AB 2595 which reads in part, “A public entity that captures storm water from urban areas, in accordance with a storm water resource plan, before the water reaches a natural channel shall be entitled to use the captured water to the extent that the water augments existing water supplies.” The bill was signed into law by Gov. Brown Sept. 23.
The legislature also passed SB 859 which grants cities the power to sue to stop public nuisances on property entrusted to them by the state and the ability to sue for abatement of a public nuisance.
PCBs were widely used between 1935 and 1979 in electrical equipment, paint and some building materials. Monsanto was the only U.S. producer of PCBs. Exposure to the chemical has been linked to cancer. By the time the substances were federally banned in 1979, the company had already ceased PCB production.
In their suits, the cities claim Monsanto knew PCBs were a danger to humans and to the environment, but went on manufacturing them. The cities assert PCBs originate from multiple sources, but discharge into the Bay when it rains.
Discharge permit requirements have been updated to demand stricter PCB control and, consequently, cities have had to spend more to reduce storm water discharge. The cities argue, under an equitable indemnity claim, that Monsanto should share responsibility for these costs.
Ken Barnes, executive director of California Citizens Against Lawsuit Abuse sees a connection between those increased costs and the array of public nuisance lawsuits against the chemical giant.
“Sole local governments, short on tax revenue, appear to be looking to public nuisance lawsuits as a way to raise additional dollars,” he commented by email. “A significant challenge with this approach to public nuisance litigation is that it is being used to target deep-pocketed firms who may not be particularly popular.”
Barnes also stated that public nuisance litigation "sends a chilling message" to larger employers in the state and those considering expanding here.
"Whether or not a firm is beloved shouldn't impact its rights in our judicial system,” he stated.
Monsanto, which has always termed the suits “defective” believes the new legislation might come back to haunt the cities in future.
“The argument in their amended complaints that the cities have standing is that they have a property interest in storm water,” said an observer closely following the case.
“This position is counter to arguments that municipalities frequently make in the context of CERCLA (federal superfund) litigation regarding contaminated sites, where cities often try to avoid being deemed an “owner,” “operator” and/or “arranger” for contaminated storm water discharges to avoid liability under CERCLA. Their arguments regarding a property interest in storm water could actually be utilized against the cities in other cases.”
Not surprisingly, Monsanto plans to move to dismiss the refiled complaints.
Stone warns of deeper issues still:
“Another concern is whether we want plaintiffs’ lawyers acting on behalf of the general public. Public prosecutors have a duty to do justice, to do the right thing, regardless of the money or finances involved. Plaintiffs’ lawyers have a duty to zealously represent their client….Do we want plaintiffs’ lawyers partnering with governments, particularly when they may get paid only if they win?“