A federal judge won’t let Monsanto fully escape a public nuisance lawsuit in which Illinois Attorney General Kwame Raoul accused the agrichemical giant of water contamination stemming from its manufacturing processes.
Raoul filed a Cook County lawsuit against Monsanto and Solutia in 2022, alleging the companies for decades made and sold polychlorinated biphenyls (PDBs) that ended up contaminating creeks, rivers, lakes and beaches in Illinois and harming wildlife and other natural resources. The complaint said the companies should’ve known the chemical would inevitably make its way into the environment and asserted they recklessly ran a plant in Sauget, a St. Louis suburb, that released PCBs and other chemicals into "sewers, waterways, burn pits and landfills."
The companies removed the complaint to federal court, and in January, U.S. District Judge Robert Gettleman rejected Rauol’s effort to return the litigation to state court, saying federal jurisdiction applies because Monsanto acted under U.S. government direction while making chemicals during World War II and the Vietnam War. In an opinion filed May 5, Gettleman substantially denied the companies’ motion to dismiss the complaint.
“Starting with what they apparently believe to be their best position,” Gettleman wrote, the companies said a public nuisance claim should be dismissed because state law doesn’t allow a public nuisance lawsuit just for selling a product. But Gettleman said the argument misapplied judicial precedent when the reality is courts focus “on whether the defendant created or participated in the creation of the nuisance.”
Raoul’s complaint alleged Monsanto knew PCBs would cause pollution “even in the absence of any negligence on the part of the buyer,” Gettleman wrote, an argument sufficient to avoid dismissal. His opinion noted Monsanto faces similar litigation in federal court in southern Illinois, as well as in Pennsylvania.
Illinois also brought trespassing claims, which the companies argued is inappropriate because a state doesn’t have exclusive possession of the water the chemicals allegedly tainted. Raoul countered by invoking the state’s role as a trustee of natural resources on behalf of all residents.
“Although neither party has presented an Illinois case on point, the court concludes that the state has the better argument,” Gettleman wrote. “If the state cannot bring the action to protect its natural resources, those resources would remain unprotected.”
The companies also argued the state couldn’t press strict liability claims because it neither consumed nor used the challenged products. But Gettleman explained Illinois law considers liability for damage to anyone if a product is being used and intended and if a plaintiff can show the resulting damage was reasonably foreseeable. He said that means the companies can’t win dismissal of the state’s negligence claim, since their argument rested on the purported failure of the strict liability components.
“The state has alleged that not only was it foreseeable that defendants’ PCBs would leach into and pollute the natural resources, but that Monsanto knew this was the case when it continued to sell its products,” Gettleman wrote. “Accepting these allegations as true, the court concludes that as a matter of public policy it is best to place the duty to protect against the harm on defendants, as the party best able to prevent it.”
Gettleman did agree to dismiss the state’s claims under the Fish and Aquatic Life Code, which has a two-year statutory limitation on criminal prosecution and doesn’t expressly provide for civil litigation. He also said Illinois is not entitled to its request for a medical monitoring fund because it “failed to allege any present physical injury as a result of defendants’ conduct.”
He would not, however, strike Raoul’s push for monetary damages for its public nuisance claims or his attempt to collect natural resources damages, which Gettleman considered “just another way of asserting a claim for monetary damages for the alleged tort violations.”
The companies must answer the state’s surviving claims by May 31, with joint status reports due by June 8.
Attorneys Larry R. Rogers Jr., Larry R. Rogers Sr., Joseph A. Power Jr., James Ian Power, and Jonathan M. Thomas, of the firm of Power, Rogers & Smith, of Chicago, are representing the state. The firm's roster on the case also includes retired Illinois Supreme Court Justice Robert R. Thomas, who is now a partner with the Power Rogers firm.
Attorneys Jason H. Wilson, Juliana Carter, Kyle McGee and Viola Vetter, of Grant & Eisenhofer, of Wilmington, Delaware, are also representing Illinois, as are Illinois Assistant Attorney Generals Nancy J. Tikalsky and Stephen J. Sylvester.
Monsanto and Solutia have been defended by Adam E. Miller, Riley C. Mendoza and William Francis Northrip, of the Chicago and St. Louis offices of Shook, Hardy & Bacon.