SAN FRANCISCO (CN) — Attorneys for Pacific Gas and Electric fought Wednesday to scrub claims that residue from its 19th century power plants contaminated one San Francisco man's favorite neighborhood.
The dispute stems from PG&E’s decades-long carcinogenic footprint in the city.
Along with the San Francisco Herring Association, a local commercial fishing group, 18-year Marina district resident Dan Clarke sued PG&E in 2014 over the toxic waste produced by its manufactured gas plants— highly polluting, low-tech refineries used in the 19th and early 20th centuries to create gas from coal. The plants operated in the city’s North Beach and Fillmore neighborhoods and on Beach Street near The Embarcadero.
Clarke lived in the Marina near the North Beach plant and claimed he and his wife continually encountered and handled “black rocks” containing toxins like lead and polycyclic aromatic hydrocarbons (PAHs), which are known carcinogens.
The fishing group resolved its claims with the power company under a consent decree signed in 2018, under which PG&E agreed to pay $1.2 million to the California Coastal Conservancy and another $1.2 million to the Estuary & Ocean Science Center. The company also paid $1.8 million to restore the herring fishery and agreed to monitor and remediate contaminated groundwater.
Clarke did not sign the consent decree and continued to pursue action on his own.
On Wednesday, U.S. District Judge William Orrick asked the lawyers whether Clarke’s recreational and aesthetic injuries are enough to keep his case alive. Clarke no longer has viable personal injury claims since he sold his house and moved out of San Francisco, but says he is still affected by residual toxins since he visits the Marina frequently for recreation.
“Although Clarke sold that home to PG&E as part of a settlement of his property-related claims, Clarke still regularly visits the Marina neighborhood to walk through the area for his recreational and aesthetic enjoyment. However, Clarke’s recreational and aesthetic enjoyment of the area is diminished by the MGP [manufactured gas plant] wastes’ harm to human health and the environment in the Marina neighborhood,” his recent court filing says.
“Here you’ve got a man who is clearly committed to the Marina and what goes on there and goes there all the time,” Orrick said. “It certainly seems plausible that given the concerns that he’s expressed in this litigation that his happiness would be impacted by what happens. I don’t really see why that wouldn’t be enough for standing.”
PG&E’s attorney James Mink said Clarke’s future unhappiness is not enough.
“There are difficulties with premising standing on being unhappy or lack of enjoyment,” Mink said, noting the lack of case precedent involving general scenic enjoyment where specific recreational activities like swimming or boating aren’t being impeded.
"The other difficulty is a practical one. Once standing is allowed based on being unhappy with the result, there’s almost no limit to what people could be upset about,” Mink said. “ ‘I like this neighborhood and I'm upset' doesn’t create a practical and workable limit on who gets to have standing or who doesn’t.”
Clarke’s attorney Stuart Gross said this was a complete mischaracterization of Clarke’s lawsuit.
“Mr. Clarke alleges he visits the Marina area for recreation and his enjoyment is diminished by the knowledge that the area he’s visited has contamination. If that area were to be investigated and remediated, that diminishment would be ceased. That is enough for standing,” Gross said.
“Mr. Clarke is not saying ‘I’m suing because I’m unhappy with the current situation.’ He’s saying 'I visit the Marina and when I visit the Marina my recreational enjoyment is diminished and my aesthetic enjoyment is diminished.’”
Gross said Clarke doesn’t have to prove his case at this point for it to proceed.
Sandi Nichols, another attorney for the power company, interjected to say that proof is not the question that kills Clarke’s case.
She took issue with Clarke's requested remedy, that the court order PG&E to establish an independent environmental remediation trust that would be responsible for cleaning up the toxic waste in the Marina.
“Mr Clarke believes that given PG&E’s consistent conduct, they cannot be trusted to do this on their own,” Gross told Orrick.
But Nichols said Orrick does not have the jurisdiction to order PG&E to pay money so that someone else can address the contamination.
Gross said that isn’t what Clarke is asking here.
“We’re not proposing that Mr. Clarke do an extensive investigation and remediation himself and come to P&GE with a bill,” he said. "Whether or not court can order PG&E to do something like an establishment of a trust which would require PGE to pay money, of course it can. We’ve got to prove it’s necessary but once we’ve proven its necessary this court absolutely can make that order.”
Orrick took the arguments under submission.
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