Public nuisance ruling: Delaware can sue Monsanto over PCBs
WILMINGTON, Del. (Legal Newsline) – Delaware can sue Bayer AG unit Monsanto for contributing to PCB pollution, the state’s highest court ruled, reversing a lower-court decision holding the manufacturer of a product couldn’t be held liable for public nuisance.
Although Monsanto didn’t control how PCBs were used after it sold them on the wholesale market, the Delaware Supreme Court said, “it substantially participated in creating the public nuisance and causing the trespass by actively misleading the public and continuing to supply PCBs to industry.” Monsanto was the primary supplier of PCBs from 1930 to 1977, when the federal government banned the chemical.
The June 22 decision by the Delaware Supreme Court affirms a “product-based” public nuisance theory that state courts earlier had rejected, most notably in a lawsuits over guns and opioid pain killers. The high court said PCBs are different, because they can spread uncontrollably in the environment and cause widespread environmental damage, but it also tossed claims for trespass for lands held in trust and unjust enrichment.
“We… are confident that the full body of evidence in this case will demonstrate that Monsanto is not liable for the remaining claims,” the company said in a statement.
“Monsanto ceased its lawful manufacturing of PCBs 45 years ago and never manufactured or disposed of PCBs in the state. The Company is exploring its legal options for further review of the State’s public nuisance and trespass claims for state-owned lands.”
Delaware sued Monsanto in September 2021, joining a number of other states in seeking money from the company to pay for cleaning up PCB pollution. Private lawyers including Keller Rohrback and Stoll Stoll Berne Lokting & Schlachter represent the state in exchange for a share of anything it wins.
A trial court dismissed the lawsuit, ruling that Monsanto couldn’t be sued because it didn’t control the use of PCBs after sale to third parties. The court also ruled the state didn’t have standing because it held public lands in trust and didn’t have exclusive possession of the land to assert a claim of trespass, and it rejected an unjust enrichment claim.
The Delaware Supreme Court upheld the dismissal of the trespass and unjust enrichment claims but reversed the dismissal of the public nuisance claims. PCBs were first produced in the U.S. by Swann Research in 1929 and Monsanto bought the company in 1935. From 1930 until they were banned Monsanto was the only manufacturer of the chemicals for widespread use in the U.S., producing more than 640,000 tons of the stuff.
Fire resistant and chemically stable, PCBs were widely used as coolant in electric transformers and a wide variety of other products. But they also persist in the environment for years and as early as 1937 Monsanto scientists were aware of toxic effects on humans and animals and by the 1960s they were widely reported to be toxic and probably carcinogenic.
Delaware accused Monsanto of downplaying the harmful effects of PCBs and cited an internal memorandum from 1970 in which the company acknowledged PCBs were dangerous but would continue to make them because it “can’t afford to lose one dollar of business.”
Applying what it described as a “common-sense approach,” the Delaware Supreme Court said prior state-court decisions rejecting product-based nuisance claims only went as far as to express “hesitancy” toward the theory.
“For the environmental-based public nuisance claim before us, Monsanto can be held liable when it substantially contributed to a public nuisance by misleading the public and selling a product it knew would eventually cause a safety hazard and end up contaminating the environment for generations when used by industry and consumers,” the court ruled.
The same might not be true of other products targeted with public nuisance lawsuits, the court concluded. “Products like handguns, opioids, and cigarettes are not the same as products like PCBs that cause environmental harm to property and economic loss to the plaintiff,” the court said.
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