West Coast cities sue Monsanto to pay for chemical cleanup

Cities take a new tack to fight pollutants: targeting companies who make them.

 

Portland, Oregon’s Willamette is no wilderness river. But on a spring day, downstream of downtown, wildness peeks through. Thick forest rises beyond a tank farm on the west bank. A sea lion thrashes to the surface, wrestling a salmon. And as Travis Williams, executive director of the nonprofit Willamette Riverkeeper, steers our canoe under a train bridge — dodging debris tossed by jackhammering workers — ospreys wing into view.

The 10-mile reach, known as Portland Harbor, became a Superfund Site in 2000. Over the last century, ships were built and decommissioned here, chemicals and pesticides manufactured, petroleum spilled, and sewage and slaughterhouse waste allowed to flow. Pollution has decreased, but toxic chemicals linger in sediments. Resident fish like bass and carp are so contaminated that riverside signs warn people against eating them, though some do. And osprey can’t read warnings, so they accumulate chemicals, which can thin eggshells and harm chicks.

Among the worst are polychlorinated biphenyls, or PCBs. Used in electrical transformers, coolants, caulk, paints and other products, these probable carcinogens were banned in 1979 for their toxicity, persistence and the ease with which they escaped into the environment. Even so, they continued entering waterways through storm drains here and elsewhere.

The Environmental Protection Agency’s remediation plan for Portland Harbor’s PCBs and other pollutants, expected in May, will cost between $790 million and $2.5 billion. The city of Portland, one of 150 “potentially responsible parties” on the hook for a percentage, has already spent $62 million on studies and reports. So on March 16, the city council decided to join six other West Coast cities in suing agribusiness giant Monsanto to recoup some past and future cleanup costs. San Diego filed in 2015, and San Jose, Oakland, Berkeley, Spokane and Seattle followed. 

Monsanto is best known for GMO crops and Roundup, but before it split from its chemical and pharmaceutical branches (also named in the suits), it was the sole U.S. PCB manufacturer from the 1930s to the late 1970s. “Monsanto knew that if you used (these products) for their intended purpose, PCBs would leach into the environment,” says Portland City Attorney Tracy Reeve, but it sold the chemicals anyway. “We believe that polluters, not the public, should pay.”

A victory would not only inspire more PCB lawsuits, it could suggest a pathway to help fill gaps in U.S. chemical regulation, says University of Richmond School of Law professor Noah Sachs, who specializes in toxics and hazardous waste. The 1976 Toxic Substances Control Act, inspired in part by PCBs, has a weak review process and generally doesn’t require health and safety testing of chemicals before manufacturers can sell them. And the Comprehensive Environmental Response, Compensation, and Liability Act — CERCLA, the Superfund law — is concerned with who spilled or arranged to dispose of chemicals at a site, not who made them. “What we see here is testing a new legal theory,” Sachs says. “I hope companies that know their hazardous products are escaping into the environment are held accountable for the damage they’re doing.” 

 

A canoe casts off from Cathedral Park under the St. Johns Bridge, part of a stretch of the Willamette River laced with PCBs and other pollutants.
Cathy Cheney/Portland Business Journal

The cases’ novelty arises from their application of state public nuisance laws. Each seeks to prove that Monsanto compromised public use and enjoyment of waterways by marketing and selling this class of chemicals while well aware of its dangers. The Seattle complaint, for example, cites internal memos from the ’60s in which company officials discuss PCBs as “an uncontrollable pollutant,” noting their global spread and harm to people and wildlife. There is “no practical course of action that can so effectively police the uses of these products as to prevent environmental contamination,” a Monsanto committee wrote in 1969. “There are, however a number of actions which must be undertaken to prolong the manufacture, sale and use of these particular Aroclors” — the company’s trademarked name for certain PCB compounds.

The cases follow on a stunning 2014 victory in the Superior Court of California. There, a judge found three companies had created a public nuisance by marketing and selling lead-based paint while knowing its health hazards, and ruled they should pay $1.15 billion into an abatement fund to remove it from homes. The Monsanto cases likely have a stronger public nuisance claim, says University of California Davis environmental law professor Albert Lin, because, unlike residences, “waterways are clearly public resources.” Monsanto’s role as sole manufacturer also simplifies efforts to connect the company to contaminated areas.

Nonetheless, “the plaintiffs face an uphill climb,” says Peter Hsiao, an environmental attorney for international law firm Morrison & Foerster. The lead paint case is being appealed, he notes, and similar lead paint lawsuits failed in six other states. Attempts to use public nuisance law to address climate change, with California going after automakers, for example, have also foundered.  Still, he worries a win could have an unintended chilling effect on innovation, “depriving society of the enormous benefit that comes from the safe and effective use of chemicals.”

First, though, the lawsuits must reach trial. Monsanto has been filing motions to dismiss each case — arguing that it never had a manufacturing presence on the West Coast and never discharged anything there. The first motion, against San Diego, will be heard in court May 25. “The allegations … are without merit,” Monsanto spokeswoman Charla Lord wrote in an email. If “companies or other third parties improperly disposed of (PCB) products and created the need for the cleanup of any waterways, then they bear responsibility for the costs.”

Contributing editor Sarah Gilman writes from Portland, Oregon.

High Country News Classifieds
  • ARKANSAS RIVER COMMUNITY PRESERVE LAND MANAGEMENT PLANNER
    Central Colorado Conservancy seeks a land management planner to facilitate the creation of a management plan for the Arkansas River Community (ARC) Preserve on a...
  • WATER ADVOCACY MANAGER
    Do you want to help shape the future of groundwater in the Grand Canyon region? The Grand Canyon Trust is hiring its first water advocacy...
  • EXECUTIVE DIRECTOR
    California Coalition for Rural Housing (CCRH) seeks a strategic and visionary Executive Director: View all job details here- https://bit.ly/CCRHED
  • MONTANA BLUES
    The new novel by Ray Ring, retired HCN senior editor, tackles racism in the wild, a story told by a rural White horsewoman and a...
  • DIGITAL ENGAGEMENT SPECIALIST
    Title: Digital Engagement Specialist Location: Salt Lake City Reports to: Communications Director Status, Salary & Benefits: Full-time, Non-Exempt. Salary & Benefits information below. Submission Deadline:...
  • CONSERVATION FIELD ORGANIZER
    Title: Conservation Field Organizer Reports to: Advocacy and Stewardship Director Location: Southwest Colorado Compensation: $45,000 - $50,000 DOE FLSA: Non-Exempt, salaried, termed 24-month Wyss Fellow...
  • UTAH STATE DIRECTOR
    Who We Are: The Nature Conservancy's mission is to protect the lands and waters upon which all life depends. As a science-based organization, we create...
  • EXECUTIVE DIRECTOR
    Apply by Oct 18. Seeking collaborative, hands-on ED to advance our work building community through fresh produce.
  • INDIGENOUS AFFAIRS EDITOR - HIGH COUNTRY NEWS
    High Country News is hiring an Indigenous Affairs Editor to help guide the magazine's journalism and produce stories that are important to Indigenous communities and...
  • STAFF ATTORNEY
    Staff Attorney The role of the Staff Attorney is to bring litigation on behalf of Western Watersheds Project, and at times our allies, in the...
  • ASSISTANT VICE PRESIDENT FOR DIVERSITY AND INCLUSION
    Northern Michigan University seeks an outstanding leader to serve as its next Assistant Vice President for Diversity and Inclusion. With new NMU President Dr. Brock...
  • EXECUTIVE DIRECTOR
    The Clark Fork Coalition seeks an exceptional leader to serve as its Executive Director. This position provides strategic vision and operational management while leading a...
  • GOOD NEIGHBOR AGREEMENT MANAGER
    Help uphold a groundbreaking legal agreement between a powerful mining corporation and the local communities impacted by the platinum and palladium mine in their backyard....
  • EXECUTIVE DIRECTOR
    The Feather River Land Trust (FRLT) is seeking a strategic and dynamic leader to advance our mission to "conserve the lands and waters of the...
  • COLORADO DIRECTOR
    COLORADO DIRECTOR Western Watersheds Project seeks a Colorado Director to continue and expand WWP's campaign to protect and restore public lands and wildlife in Colorado,...
  • ASSISTANT PROFESSOR OF HISTORY - INDIGENOUS HISTORIES OF THE NORTH AMERICAN WEST
    Whitman College seeks applicants for a tenure-track position in Indigenous Histories of the North American West, beginning August 2024, at the rank of Assistant Professor....
  • DAVE AND ME
    Dave and Me, by international racontuer and children's books author Rusty Austin, is a funny, profane and intense collection of short stories, essays, and poems...
  • CHIEF FINANCIAL OFFICER
    Rural Community Assistance Corporation is looking to hire a CFO. For more more information visit: https://www.rcac.org/careers/
  • EXECUTIVE DIRECTOR
    The Absaroka Beartooth Wilderness Foundation (ABWF) seeks a new Executive Director. Founded in 2008, the ABWF is a respected nonprofit whose mission is to support...
  • CANYONLANDS FIELD INSTITUTE
    Field seminars for adults in natural and human history of the northern Colorado Plateau, with lodge and base camp options. Small groups, guest experts.