California air regulators have filed a public nuisance lawsuit against Southern California Gas (SoCalGas) Co. seeking penalties that could top $25 million for an out-of-control methane gas leak that has forced evacuations and disrupted lives in much of the San Fernando Valley. The lawsuit, filed by the Southern Coast Air Quality Management District in Los Angeles Superior Court, is one of the latest in a surge of public nuisance complaints filed by Plaintiffs in environmental lawsuits.
Although using the public nuisance tack in environmental suits is nothing new, an increasing number of Plaintiffs have found that it is often the best way to litigate environmental cases, especially when many have successfully argued that federal statutes don’t preempt state nuisance laws.
There are currently six environmental cases involving public nuisance claims that lawyers should be aware of. These lawsuits are:
People v. Southern California Gas Co.
This environmental lawsuit was the first public nuisance suit to be filed against SoCalGas Co. concerning the Aliso Canyon methane gas leak near Porter Ranch, Calif. The leak is considered one of the worst environmental disasters to hit the U.S., alongside BP’s Deepwater Horizon oil spill in the Gulf. Los Angeles City Attorney Mike Feuer filed the lawsuit in California state court in December on behalf of all the people in the San Fernando Valley sickened, displaced, and otherwise harmed by the methane spill, which has released about 100,000 tons of methane since October, with no end in sight. In January, the Southern Coast Air Quality Management District filed a similar environmental lawsuit in Los Angeles County Superior Court alleging the SoCalGas created a public nuisance with its Aliso Canyon well leak. The complaint also asserts that “as a result of their negligence, people were injured.”
Dow v. Cook
Dow Chemical and a unit of Boeing are disputing a Tenth Circuit ruling that a Colorado nuisance claim can support a $926-million verdict for homeowners who were allegedly injured by the illegal dumping of radioactive waste from a nuclear weapons plant near their Denver community. In June 2015, the Tenth Circuit upheld a federal jury’s 2006 verdict finding Colorado’s state nuisance claims are not preempted by the federal Price-Anderson Nuclear Industries Indemnity Act. The companies have repeatedly appealed the massive 2006 verdict and have asked the U.S. Supreme Court to reverse it.
Merrick v. Diageo
In December the Sixth Circuit declined to review a panel decision in a proposed class action alleging evaporation from J&B and Johnnie Walker (Diageo Americas Supply Inc.) distilleries caused black fungus to grow on outdoor surfaces in proximate neighborhoods. Allowing the claim to move forward, the court rejected Diageo’s argument that state common law nuisance and trespass claims conflict with the federal Clean Air Act’s emissions regulations, and that allowing the Plaintiffs’ claims to proceed would conflict with the Clean Air Act’s objectives.
Monsanto PCB Litigation
San Jose, Berkeley, Oakland and San Diego in California and Spokane and Seattle in Washington State filed a public nuisance complaint against Monsanto for allegedly polluting their waterways with polychlorinated biphenyls (PCBs). The cities have urged the Judicial Panel on Multidistrict Litigation to consolidate the lawsuits against the agricultural giant in U.S. District Court for the Northern District of California.
Freeman v. Grain Processing
In October, an Iowa judge certified a class action accusing Grain Processing Corp. of creating a public nuisance with its releases of smoke from corn milling operations that formed a foul-smelling haze. The judge’s decision marked a complete turnaround from a previous ruling that granted Grain Processing Corp’s motion for summary judgment on the principle that the Clean Air Act preempted the public nuisance claims covering about 4,000 homeowners. In June 2014, the Iowa Supreme Court ruled that the suit’s nuisance claims are not limited to air pollution and allowed the case to move ahead. In December, the U.S. Supreme Court declined to review the case.
Ebert v. General Mills
In disputing a Minnesota federal judge’s decision to certify a class of property owners accusing General Mills of releasing carcinogenic vapors into the Minneapolis area, the company pointed to another case involving a pipeline spill, urging the Eighth Circuit Court to decertify the environmental nuisance class action. General Mills argues that another Eighth Circuit panel reversed a federal judge’s decision to certify a class action covering property owners who claim that a pipeline owned by Phillips 66 leaked and became a nuisance because it was never properly remediated. General Mills claims the same principles that led the Eighth Circuit to reverse that decision should be used to decertify the nuisance claims filed against it.
Source: Law 360.com