New Law Saves Bay Area Cities’ Suit Against Monsanto

SAN JOSE, Calif. (CN) – A new California law has allowed three cities to move forward with their lawsuit against Monsanto over chemicals the cities say have polluted the San Francisco Bay.

San Jose, Berkeley and Oakland sued Monsanto last year, saying the agrichemical giant manufactured a known environmental hazard polychlorinated biphenyls, or PCBs, and that massive amounts of the chemical have ended up in the bay.

U.S. District Judge Edward Davila previously granted Monsanto’s motion to dismiss in September, finding the cities failed to show a proprietary interest in stormwater that eventually washed into the bay. Instead, Davila found California Water Code handed regulation of storm runoff to the state.

However, the California Legislature passed AB 2594 just 10 days after Davila’s order. The law, subsequently signed by Gov. Jerry Brown, stipulated that cities could capture stormwater and put it to use.

In his latest ruling, Davila acknowledged the newly minted California law swayed the case in the cities’ favor.

“The tides shifted when California enacted AB 2594 on Sept. 23, 2016 – about one month after this court granted Monsanto’s earlier motion to dismiss,” he wrote in a Feb. 3 order denying Monsanto’s motion to dismiss the cities’ amended complaint. “The right to use the captured water under AB 2594 is a sufficient property interest on which to state a claim for nuisance.”

The cities’ proprietary interest in stormwater, combined with the contamination of tidelands and submerged lands in the bay that cities hold as trustees – and the cities’ need to retrofit their stormwater capture systems to accommodate PCBs – means the cities due have standing to sue Monsanto on a nuisance claim.

Lead attorney for the cities, John Fiske, expressed satisfaction that the case cleared this latest hurdle.

“Monsanto has a responsibility to clean up the mess it created,” Fiske said in an emailed statement. “San Jose, Oakland, and Berkeley represent a growing trend to hold Monsanto accountable as the cities seek to make San Francisco Bay clean again.”

This trend also includes the cities of Portland, Oregon, Seattle and Spokane, Washington, San Diego and Long Beach, California, all of which have filed federal suits against the chemical manufacturer claiming the company has responsibility to help remediate waterways compromised by PCBs.

Scott S. Partridge, vice president of global strategy for Monsanto, said the cities still have to prove the claims made in their complaints.

“The court’s ruling now requires the cities to back up their unsubstantiated allegations,” he said in an email. “The judge expressed concern that the cities were simultaneously pursuing this case while also seeking to recover funds – for the same purpose – from the state.  We will address that issue and other matters in our upcoming filings.”

Monsanto has also argued it shouldn’t be held responsible for the presence of the hazardous chemical because it didn’t put the PCBs in the San Francisco Bay, and the cities would be better off pursuing remedy from the businesses that allowed the chemicals to leech into the waterways in the first place.

But Fiske has said in court that Monsanto continued to manufacture PCBs well after it knew of its dangers to the environment, and they should be held accountable.

PCBs are a known environmental hazard that can be particularly noxious to human health, capable of causing cancer, reproductive harm and other problems. The chemical is also extremely harmful to wildlife and can destroy populations of fish, birds and other animal species.

Before their eventual ban in the 1970s, PCBs were commonly used in paint, caulking, electrical equipment, sealants, ink and lubricants. When it rains, PCBs often leech off of these items and other industrial materials and wash into the San Francisco Bay – making the bay unsafe for swimming and toxic to fish and other wildlife.

The U.S. Environmental Protection Agency has issued a total maximum daily load for PCBs to the cities, which are now seeking damages related to the contamination from Monsanto.

Fiske is with Gomez Trial Attorneys in San Diego.