The People v. Monsanto Co.

1

THE PEOPLE OF THE STATE OF ILLINOIS, EX REL. KWAME RAOUL, Attorney General, Plaintiff, v. MONSANTO COMPANY, SOLUTIA INC., and PHARMACIA LLC, Defendants.

No. 22 C 5339

United States District Court, N.D. Illinois, Eastern Division

May 5, 2023

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, DISTRICT JUDGE

Plaintiff the People of the State of Illinois, ex rel. Kwame Raoul Attorney General (the “State”) sued defendants Monsanto Company (“New Monsanto”), Solutia Inc. (“Solutia”), and Pharmacia LLC (“Monsanto”) in the Circuit Court of Cook County Illinois, alleging that for decades defendants manufactured marketed, and sold polychlorinated biphenyls (“PCBs”) that have now led to the environmental contamination of the State's creeks, rivers, lakes, and beaches, and the degradation of its wildlife and other natural resources. The complaint asserts twelve counts against all defendants. Counts I-VI are labeled as “Causes of Action Regarding Statewide PCB Contamination.” Count I is a claim for strict liability, alleging that defendants' PCB mixtures were not reasonably safe at the time they left defendants' control. Count II is a claim for strict liability for failure to warn and instruct. Count III alleges negligence. Count IV is a claim for public nuisance and Count V alleges trespass. Counts VI-XII are labeled as “Causes of Action Regarding Krummrich Plant Operations.” Counts VI, VII and VIII allege violations of the Illinois Environmental Protection Act, 415 ILCS 5/12(a), (d) and 5/9 (a).

Count IX alleges a violation of the Fish and Aquatic Life Code, 515 ILCS 5/1-150. Count X is a claim for public nuisance, Count XI is a claim for trespass, and Count XII alleges negligence. Defendants have moved to dismiss Counts I through V, IX, and XI under Fed. R. Civ. P.

12(b)(6) for failure to state a claim. In addition. Defendants argue that the State is not entitled to a medical monitoring fund, past and future damages for public nuisance, or natural resource damages as relief. For the reasons described below, the motion is granted in part and denied in part.

BACKGROUND^[1]

The State has sued defendants under two distinct theories. Under the first, the State is seeking to hold defendants accountable for causing statewide contamination of Illinois' natural resources with PCBs due to defendants' manufacture, marketing, sale, and distribution of the chemicals to customers across the state, knowing the chemicals would inevitably escape their application and cause widespread and dangerous contamination. Under its second theory, the State seeks to recover damages for defendants' dumping, spilling, and otherwise releasing “a slew of toxic chemicals” from the Krummrich Plant in Sauget, Illinois, including “PCBs, chlorobenzenes, nitrochlorobenzene, and mercury-contaminated wastes, among many others.”

According to the complaint, Monsanto manufactured over 99% of commercial PCBs used in the United States, with much of it manufactured at the Krummrich plant in Illinois.

Monsanto knew of the adverse human and environmental health consequences of exposure to PCBs and knew that their chemical properties would cause PCBs to inevitably contaminate Illinois natural resources as a direct result of their ordinary and intended uses. As early as the 1930s Monsanto recognized that PCBs are hazardous chemicals that produce “systemic toxic effects” following prolonged exposure and instructed its customers to vent PCB vapors directly into the air. Monsanto knew, however, that PCB vapors, whether released from industrial facilities or from products containing PCBs, would uncontrollably escape into air and, because of their chemical stability, would deposit on soils and in water to persist indefinitely in the environment. By the 1960s Monsanto insiders had acknowledged that normal, intended uses of products containing PCBs were the cause of contamination and that PCBs would become “nearly global environmental contaminants leading to serious environmental harms.

The State alleges that rather than taking reasonable actions to prevent or mitigate the foreseeable harm that use of PCBs posed, in 1969 Monsanto instead convened an internal committee to protect PCB revenues and the company's image. Monsanto denied any knowledge of PCBs tendency to systematically contaminate the environment, stating publicly that it “cannot conceive how the PCBs can be getting into the environment in a widespread fashion” and “does not believe the PCBs to be seriously toxic.” By the mid-1970s, however, it became clear that the PCB business could not be saved, and in 1977 Monsanto ceased production under pressure from the United States Environmental Protection Agency (“EPA”). The State alleges that as a result of Monsanto's conduct, PCBs have become “ubiquitous contaminants” polluting Illinois' natural resources.

DISCUSSION

Defendants have moved under Fed.R.Civ.P. 12(b)(6) to dismiss certain counts of the complaint for failure to state a claim. Such a motion challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); see Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Starting with what they apparently believe to be their best position, defendants argue that the State's public nuisance claim in Count IV should be dismissed because “Illinois law does not recognize public nuisance liability for the placement of a product into the stream of commerce.” For this proposition, defendants cite In re Syngenta Mass. Tort Actions, 272 F.Supp.3d 1074, 1091-92 (S.D. 2017), which noted that “a seller of a product is not liable for a private [or public] nuisance caused by the use of that product after it has left the seller's control,” and held that because the plaintiff had not refuted that general rule “to show that liability should follow in the absence of the seller's continuing control over the product,” the plaintiff's nuisance claims were dismissed.

As the State notes, however, the Syngenta court relied on the Seventh Circuit's opinion in City of Bloomington, Ind. v. Westinghouse Elec. Corp., 891 F.2d 611, 615 (7^th Cir. 1989), for its statement of the general rule. Bloomington was decided under Indiana law, and the Illinois Supreme Court, when evaluating the City of Chicago's public nuisance claim against gun manufacturers, expressly rejected Bloomington's “control” requirement. City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 403 (2004). Tellingly, in finding Bloomington unpersuasive, the court found (id. (citations omitted):

Control is not a separate element of causation in nuisance cases that must be pleaded and proven in addition to cause in fact and legal cause. It is, rather, a relevant factor in both the proximate cause inquiry and in the ability of the court to fashion appropriate injunctive relief. When the nuisance results from a condition or conduct upon land, control over the land is generally a necessary prerequisite to the imposition of liability. However, when the nuisance claim results from the use or misuse of an object apart from land, or conduct unrelated to a defendant's use of land, lack of control of the instrumentality at the time of injury is not an absolute bar to liability.

Illinois, like many other states, follows § 821 B of the Restatement (Second) of Torts when evaluating public nuisance claims. Courts interpreting this section generally reject attempts to impose a control requirement, instead focusing on whether the defendant created or participated in the creation of the nuisance. See Commonwealth v. Monsanto Co., 269 A. 3d 623, 652 (Pa. Commw. Ct. 2021) (allegation that Monsanto “was responsible for PCBs entering the Commonwealth's waters because Defendants knew that the uses for which they marketed, sold, and distributed PCB mixtures would result in leaching, leaking, and escaping their intended applications and contaminating (i.e., polluting) those waters,” was sufficient to support public nuisance claim.).

Defendants' reply brief fails to respond to this argument in any meaningful way and fails to address the numerous cases cited by the State where courts have upheld the exact same public nuisance claims against Monsanto. Consequently, because the complaint alleges that Monsanto knew when it sold its product that the PCBs would inevitably leach into and pollute the State's natural resources even in the absence of any negligence on the part of the buyer, the court denies defendants' motion to dismiss Count IV.

Next, defendants attack the State's trespass claims in Counts V and XI, arguing, first, that the State lacks standing to bring the claims because it lacks the exclusive right to possession of the public natural resources at issue, and second, because defendants had no control of their product at the time of the alleged trespass.

It is true, as defendants argue, that “[t]o prevail on a trespass claim under Illinois law, a plaintiff must plead and prove negligent or intentional conduct by the defendant which has resulted in an intrusion on the plaintiff's interest in exclusive possession of land.” Village of Depue Ill., 632 F.Supp.2d 854, 865 (C.D. Ill. 2009). Defendants argue that the trespass claims pertain to alleged harms to public lands, waters and other natural resources that the State holds in trust for the...