By MATTHEW RENDA
SAN JOSE (CN) – Whether a landmark environmental lawsuit moves forward may hinge on who owns the rain, Monsanto says in fighting a lawsuit from Oakland, Berkeley and San Jose.
The cities sued Monsanto in Federal Court, claiming its production and distribution of polychlorinated biphenyls (PCBs) from 1935 until 1969 polluted San Francisco Bay.
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.
During a Tuesday hearing, Monsanto attorney Robert Howard asked U.S. District Judge Edward Davila to dismiss the case because the cities had no standing to sue.
“The Bay is not municipal property, it is state property,” Howard said.
Since the water in San Francisco Bay is not city property, they lack standing to sue, Howard said.
“The complaint is not alleging the infrastructure itself was hurt by PCBs,” Howard said. “It’s not corroding the pipes.”
Howard said the groundwater running through city-administered storm-water systems is state property, as shown by state laws preventing cities from capturing rain as it flows through their drains.
Scott Fiske, arguing for the three cities, said it mattered not whether a city owns the rain as it courses through the storm-water systems, they need only have a proprietary interest in the water to gain standing as plaintiffs.
Ownership of the rain is not as important as whether the cities can establish a property interest or regulatory interest in the rain, Fiske said.
“Regulating storm-water is one of the most fundamental functions a city provides,” Fiske told the judge.
Howard and Fiske argued other facets of the case, but Judge Davila honed in on the standing issue, asking Fiske if the piers and tidelands the cities own could constitute ownership of affected property.
Fiske said it could be so, but repeatedly insisted that cities, as storm-water regulators, have a stake in the rain as it passes through their systems and if that rain is contaminated by a chemical created by Monsanto, they have the right to sue as a public nuisance.
Another gambit tested out by Howard was whether the case would be better tried as a product liability case, rather than a public nuisance. He cited several cases that were initially tried as public nuisance cases, but were eventually deemed to be “an end run around product liability.”
“Merely making a product and putting it into the stream of commerce is not enough to establish causation [for public nuisance],” Howard said.
Fiske agreed, but said case law shows that if the manufacturer of a product engages in conduct that eventually harms people, it can be held accountable under California’s public nuisance law.
Fiske said he can prove that Monsanto knew that its product was hazardous to the environment and to human health as early as 1969, but continued to manufacture it, aggressively market it and conceal its dangers from regulators.
“They concealed this information and put profits over these concerns,” Fiske said.
Howard maintained that the company should not be held liable for the discharge of chemicals it produced — that the cities should be pursuing the actual companies or owners of properties that allowed the material to leak into the Bay.
Davila is expected to rule in the next few weeks.
The three cities’ lawsuit is one of a series of complaints that blame Monsanto for the presence of PCBs in major waterways. Portland sued in Oregon Federal Court, and Spokane and Seattle have similar cases in Washington Federal Court.
Long Beach and San Diego filed similar complaints against the agrochemical giant in San Diego Federal Court. All eight cities sought to combine the cases into one, but were prevented when a judge found the issues different enough for each municipality to warrant separate cases.
Howard is with Latham and Watkins, Fiske with Gomez Iagmin Trial Attorneys, both of San Diego.