Environmental litigation can be an important tool for protecting a party’s rights under applicable federal or state statutes. Litigation for its own sake, however, is another matter.

Recently, the California legislature approved two bills that have some commentators questioning whether the outcome might be frivolous environmental litigation. Specifically, the bills give public entities the right to capture storm water from urban areas, as well as the power to seek court relief against public nuisances on property entrusted to them by the state.

The bills respond to old lawsuits brought by the cities of San Jose, Oakland and Berkeley against the Monsanto Company. The lawsuits alleged that Monsanto’s manufacturing activities had polluted storm water flowing into the Bay with polychlorinated biphenyl, or PCBs. However, the lawsuits were dismissed because the cities could not establish an ownership interest in those waterways, which is a required showing under a public nuisance claim.

The two bills essentially provide the cities with legal standing to bring a public nuisance lawsuit against Monsanto. In response, the cities amended their original claims and filed with the court just a few days after the bills passed the California legislature.

A Monsanto spokesperson denied that the company had placed any PCBs into the Bay. Accordingly, one of the main criticisms of the new legislation is causation: Liability in the lawsuits is pursued not against the polluter, but against the company that made the pollutant.

Our environmental law firm strongly defends the right of California companies and property owners to defend themselves against overreaching regulatory enforcement or entities that misinterpret applicable laws. Environmental regulatory issues can be technical, difficult to understand and costly. We help our clients understand their obligations, minimize their risks, and defend against overzealous environmental litigation.

Source: Northern California Record, “Legal reform groups criticize lawmakers’ resuscitation of PCB public nuisance litigation,” Daphne O’Neal, Oct. 16, 2016