Last week, a federal court dismissed claims brought by three California cities against Monsanto that were aimed at forcing Monsanto to pay for polychlorinated biphenyl (“PCB”) contamination in San Francisco Bay.
The cities—San Jose, Berkeley, and Oakland—each filed lawsuits against Monsanto alleging that Monsanto was liable for PCB pollution in the Bay, not because Monsanto actually discharged PCBs, but solely because it manufactured them. The cities operate stormwater systems that collect stormwater and discharge it to the Bay under discharge permits. Oftentimes, this stormwater contains PCBs. The permits include limitations on the amount of PCBs that the cities may discharge into the Bay through stormwater. In May 2015, a new draft permit went into effect that imposed stricter PCB limits, which would ultimately result in increased compliance costs for the cities.
The cities filed suit against Monsanto alleging that Monsanto’s sale of PCBs created a public nuisance. Under California law, the cities alleged that they had a property interest in the stormwater, and that property interest was harmed by the presence of PCBs. The court rejected this allegation, holding that, because the cities had failed to establish a property interest in the stormwater, they had failed to establish the threshold requirement for a nuisance claim.
The cities will have an opportunity to amend their complaints, as the court noted that the cities’ claims “are not altogether clear on precisely what property interest they claim or why they have such a property interest.”
While we have not likely seen the last of this public nuisance theory, the decision can be seen as victory for all manufacturers that might be subject to liability based solely upon their manufacture and sale of certain substances.
The cases, pending in the U.S. District Court for the Northern District of California, are City of San Jose v Monsanto Co. et al., No. 15-03178; City of Oakland v Monsanto Co. et al., No. 15-05152; and City of Berkeley v. Monsanto Co. et al., No. 16-00071.
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