Judge Tosses Cities’ Action Over Monsanto Pollution

     SAN JOSE, Calif. (CN) — A federal judge dealt a blow to three cities attempting to sue agrichemical giant Monsanto over contamination in the San Francisco Bay — although he did offer the cities a chance renew their public nuisance claims.
     As anticipated, the ruling issued by U.S. District Judge Edward Davila on Monday came down to who owns the rain, or in more legal terms, who has a proprietary interest in stormwater runoff.
     Ultimately, Davila dismissed the suit with leave to amend, declaring that since the state regulates stormwater runoff the cities of San Jose, Oakland and Berkeley do not have standing to bring the lawsuits.
     “The cities have failed to ‘establish a property interest the nuisance injuriously affected,” Davila wrote in his 10-page ruling. Davila is based in the court’s San Jose division, but his ruling applies similar lawsuits brought against Monsanto by Oakland and Berkeley.
     The dispute stems from the presence of polychlorinated biphenyls, or PCBs, in the San Francisco Bay. PCBs were produced and distributed exclusively by Monsanto beginning in 1935, until the company stopped producing them in 1969.
     The cities call the PCBs a public nuisance, as it is not only a serious health issue but it “interferes with the comfortable enjoyment of the bay for customary uses for fishing, swimming, and other water activities.”
     PCBs are carcinogenic to humans, cause reproductive harm and developmental problems in children and hurt fish, other animals and the environment.
     However, Monsanto said the cities do not own the San Francisco Bay or the stormwater running through their pipes, and thus lack the standing of an injured party.
     “The complaint is not alleging the infrastructure itself was hurt by PCBs,” Monsanto attorney Robert Howard said at a hearing on the motion to dismiss. “It’s not corroding the pipes.”
     John Fiske, attorney for the cities, countered that since the cities have a regulatory interest in stormwater, they should be granted standing.
     Ultimately, Davila disagreed.
     “The cities do not take ownership of stormwater merely because it flows through municipal pipes on its way to the bay,” the judge wrote in the ruling.
     Fiske told Courthouse News in an email that they will amend the complaints and provide further information regarding cities’ proprietary interest in stormwater management and how that qualifies them for standing.
     “American cities provide a fundamental and important societal function — stormwater management, without which our cities could not function,” he said. “Cities are legally authorized to collect stormwater into their municipal stormwater systems, which include large and expensive infrastructure projects and management.”
     Fiske also noted that it is the cities that are forced to clean up the environmental hazard created by Monsanto, which continued to manufacture PCBs after it learned that it had potentially hazardous effects to the environment, according to the suit.
     “The cities are bearing the cost to reduce and remove Monsanto’s PCB from stormwater, which again, benefits us all,” Fiske said.
     The cities have until Sept. 13 to file an amended complaint.

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