03.03.16

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West Coast Cities Sue Monsanto as PCB Cleanup Costs Increase

PRACTICE GROUPS

Key Takeaways

  • Six West Coast cities have sued the Monsanto Company to recover costs of cleaning up waterways contaminated by polychlorinated biphenyls, or PCBs.
  • The municipalities have alleged public nuisance and traditional products liability causes of action, along with claims for equitable indemnification.
  • The cities have asked to consolidate proceedings before Judge Edward J. Davila in the Northern District of California.
  • These matters could have important ramifications for the cleanup of contaminated waterways and public land.

Analysis

As PCB Cleanup Costs Rise, Cities Eye Monsanto for Help

Over the past year, six major cities have sued the Monsanto Company (and certain affiliates) for costs associated with cleaning up waterways contaminated by polychlorinated biphenyls (PCBs).  PCBs are synthetic chemicals that were used in the manufacture of transformer oils, motor oils, adhesives, paints, and other common industrial products.  Monsanto was the exclusive producer of PCBs in the United States until 1979, when the federal government, in response to a growing scientific consensus linking PCBs to an array of serious health concerns, banned their production.  Despite that prohibition, contamination stemming from historical PCB manufacturing and use persists due to stormwater runoff and other similar mechanisms.

The lawsuits began in Southern California and worked their way north:  San Diego sued last March, followed by San Jose in July, Oakland in November, and Berkeley in January.  In Washington, Spokane filed in July, and Seattle followed suit in January.  Each complaint argues that burgeoning PCB cleanup costs have rapidly outpaced the cities’ ability to pay.

Theories of the Case—and Challenges Ahead

The California complaints rest on a public nuisance theory, alleging that Monsanto knew at the time of manufacture that PCBs posed a significant environmental threat that far outweighed any social utility that PCBs provided.  The cities also assert equitable indemnity claims, arguing that Monsanto should bear its share of the costs incurred pursuant to increasingly stringent state and federal cleanup requirements.

A principal challenge is proving that Monsanto’s production and sale of PCBs infringed on a “public right.”  Courts have been reluctant to find a public nuisance when the harm does not occur in public areas.  See, e.g., State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 453 (R.I. 2008) (declining to extend public nuisance law to lead-contaminated house paint).  But contamination of waterways arguably falls within the scope of public rights protected by nuisance law.  See, e.g., City of Chicago v. Am. Cyanamid Co., 823 N.E.2d 126, 132-33 (Ill. App. Ct. 2005) (obstruction of waterways and pollution of navigable streams may be implicated by public nuisance law); Lead Indus. Ass’n, 951 A.2d at 455 (public rights include access to “shared resources such as air, water, or public rights of way”).  These cases may provide an opportunity for a court to determine whether rights allegedly violated by PCB contamination are public or private.

The Washington complaints also assert more traditional products liability claims, alleging that Monsanto produced and sold PCBs even while it knew of the associated dangers and health hazards.  The cities offer as evidence internal Monsanto documents purportedly demonstrating that the company knew of PCBs’ toxicity as early as the 1930s.  The cities also claim that in response to growing regulatory scrutiny and public outcry over PCB contamination, Monsanto had internally explored options for exiting the PCB market in the late 1960s.

Monsanto, for its part, characterizes the suits as dangerous, unprecedented “super tort” claims that fail to link Monsanto’s historical production of PCBs to any contamination in any of the relevant cities and waterways.  The company also contends that it is not responsible for financing the municipal task of controlling stormwater runoff, and that third-party PCB users and disposers, not Monsanto, are the culprits from whom contribution should be sought.

Next Steps: Forum Selection and Possible Consolidation

In late January, the cities asked the Judicial Panel on Multidistrict Litigation to consolidate all six suits.  The Berkeley and Oakland suits have already been consolidated, and California has demonstrated a willingness to entertain public nuisance claims alongside traditional products liability actions.  See Cnty. of Santa Clara v. Atl. Richfield Co., 137 Cal. App. 4th 298, 309-310 (2006) (permitting public nuisance claim where plaintiff sought abatement remedy for defendant’s conduct that assisted in creating a hazardous condition); Redevelopment Agency of City of Stockton v. BNSF Ry. Co., 643 F.3d 668, 674 (9th Cir. 2011) (conduct creates a public nuisance where it “actively or knowingly generates or permits the specific nuisance condition”).

The cities’ co-counsel claims to have drawn significant interest from other West Coast cities in the theories of the case, and similar complaints may follow soon.  But regardless of whether additional cities join the fray, resolution of these cases may significantly alter the framework of who is held responsible—and under what legal theories—for remediating contamination in some of the nation’s largest and most significant environmental cleanup sites.


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The opinions expressed in this article are those of the author and do not necessarily reflect the views of Riddell Williams or its clients.  This article is for general informational purposes and is not intended to be, and should not be taken as, legal advice.

The Riddell Williams Environmental Group has played a key part in addressing some of the most challenging environmental issues in the Pacific Northwest and throughout the nation.  Our group’s clients include utilities, pulp and paper manufacturers, petroleum companies, regional energy companies, airlines and airfreight carriers, steel manufacturers, waste management companies, technology businesses, real estate development partnerships, private landowners, and environmental groups.