Source: http://www.hcn.org, May 16, 2016
By: Sarah Gilman

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.” 

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.”