WEBVTT - Washington State Sues Monsanto For Pollution (Audio)

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<v Speaker 1>Washington is the first state to sue agrochemical giant Monsanto

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<v Speaker 1>over environmental pollution from PCBs, toxic chemicals which Democratic Governor

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<v Speaker 1>j Instley said are endangering the lives of people, plants,

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<v Speaker 1>and animals in his state. This lawsuit is about watching

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<v Speaker 1>out for the health of Washingtonians from this omnipresent and

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<v Speaker 1>horrifically toxic material. It's hard to overstate the legacy in

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<v Speaker 1>our state of PCB contamination and around the world's everywhere

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<v Speaker 1>we look, our food, our fisher, real buttons. Several organizations,

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<v Speaker 1>including the Environmental Protection Agency, have said PCBs caused cancer

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<v Speaker 1>and animals and probably are chasinogenic to humans and affect

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<v Speaker 1>the immune, nervous, and reproductive systems. Congress banned them in

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<v Speaker 1>nineteen seventy nine, but Washington's Attorney General, Bob Ferguson said

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<v Speaker 1>that Monsanto produced PCBs for decades after knowing their danger

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<v Speaker 1>to humans and the environment. In fact, they knew was

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<v Speaker 1>early nineteen thirties that PCBs were toxic to humans. An

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<v Speaker 1>internal Monsanto memo from seven warmed up quote systemic toxic

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<v Speaker 1>effects and quote from prolonged exposures and PCP favors. Monsanto

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<v Speaker 1>was the only US manufacturer of PCBs, and in suits

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<v Speaker 1>against it by cities such as Seattle, Portland, Berkeley, and

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<v Speaker 1>San Diego, the company has argued that PCBs were lawful

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<v Speaker 1>and served an important fire protection and safety purpose at

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<v Speaker 1>the time they were sold. Our guest is Charles Warren,

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<v Speaker 1>a partner at Cramer Levin, lef Talas and Frankel, where

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<v Speaker 1>he leads the environmental practice and he's a former regional

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<v Speaker 1>administrator with the e P. A. Chuck, there are smoking

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<v Speaker 1>guns here. The Washington a g sited a nineteen sixty

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<v Speaker 1>nine internal memo from Monsanto that it knew about global

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<v Speaker 1>PCB contamination but concealed it because quote there's too much

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<v Speaker 1>customer market need and selfishly too much Monsanto profit to

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<v Speaker 1>go out. Why isn't this an open and shut case?

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<v Speaker 1>I think June It's said, actually tricky to bring a

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<v Speaker 1>lawsuit against mont Santo for PCPs. There's a lot of

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<v Speaker 1>things that go into it. It's somewhat akin to the

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<v Speaker 1>cigarette situation, where it took a very long time and

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<v Speaker 1>the first lawsuits against the cigarette companies were dismissed. They

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<v Speaker 1>finally we're able to prevail, and a lot of the

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<v Speaker 1>states prevailed really more on consumer protection anti trust laws.

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<v Speaker 1>And you know, part of the problem here is that

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<v Speaker 1>you know, there there was sort of a bankruptcy proceeding

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<v Speaker 1>on the part of Solution, which is uh where mont

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<v Speaker 1>Santo would split up into Solution and Pharmacy and Montsanto

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<v Speaker 1>three pieces and Montsanto kept some of the liabilities four PCBs,

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<v Speaker 1>but they created a trust for claims and stuff like that,

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<v Speaker 1>and that's an issue that you have to deal with

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<v Speaker 1>the fact that you had this bankruptcy, which in some sense,

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<v Speaker 1>you know, extinguishes a lot of claims from the past.

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<v Speaker 1>And uh so I think I think there's a lot

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<v Speaker 1>of hurdles to jump over. I mean, they may be

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<v Speaker 1>able to be successful because in the end, what did

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<v Speaker 1>the cigarette companies in was that they found old memos

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<v Speaker 1>and things like that where they knew about the dangers

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<v Speaker 1>and still kept going. And we'll just have to see

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<v Speaker 1>if the proof here is the same kind of proof

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<v Speaker 1>that they found in those situations. And you know, we've

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<v Speaker 1>seen some of it, but um, I think until you've

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<v Speaker 1>seen the full evidence, it's gonna be a little hard

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<v Speaker 1>to predict what's going to happen. Well, the Chuck people

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<v Speaker 1>have known for a long time that PCBs were dangerous

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<v Speaker 1>and you know they're outlawed and it's not new news.

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<v Speaker 1>So why I mean, you know, one of the things

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<v Speaker 1>that sort of is curious about this is why you know,

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<v Speaker 1>you could have sued them even without these memos, I suppose.

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<v Speaker 1>But what what took so long for are An officials

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<v Speaker 1>to want to bring these kinds of actions? Well, that's

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<v Speaker 1>that's that's another question that's going to come up. And

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<v Speaker 1>I think even though the statue of limitations may not

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<v Speaker 1>affect the state itself, but I think that's going to

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<v Speaker 1>be an issue. I mean, PCBs have been banned by

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<v Speaker 1>law since ninety six, so like Congress, and uh, they

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<v Speaker 1>haven't been produced since then. And a lot of these

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<v Speaker 1>things are uh you know, have have been there out

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<v Speaker 1>there a long time, and they're alleging damage to water

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<v Speaker 1>bodies and stuff like that that's obviously occurred over many

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<v Speaker 1>many years. And I think that's going to be an

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<v Speaker 1>issue to absolutely what took them so long. I had

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<v Speaker 1>thought they might try to bring because they're specifically um

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<v Speaker 1>looking at a number of water bodies and things like that.

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<v Speaker 1>I had thought they might want to try to bring

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<v Speaker 1>a super fund action or something, but they don't seem

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<v Speaker 1>to have done that. It's under state law claims they

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<v Speaker 1>brought in the state court. And again, um, if they're

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<v Speaker 1>not dismissed, a might find obviously sympathetic juries who will

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<v Speaker 1>rule against Montsanto in the first instance. Chuck Montanto, Montsanto spokesman,

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<v Speaker 1>said that the case is experimental because it seeks to

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<v Speaker 1>target a product manufacturer for selling a lawful and useful

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<v Speaker 1>chemical for to eight decades ago. That was applied by

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<v Speaker 1>the US government, Washington State, local cities, et cetera. That

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<v Speaker 1>was to a p Is he right about that experimental? Yeah? That, Yeah,

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<v Speaker 1>that's going to be part of their defense. Obviously, PCBs

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<v Speaker 1>weren't outlawed until nine and uh, I don't know if

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<v Speaker 1>you can say they were necessarily approved. But there, you know,

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<v Speaker 1>the state suing under things like product liability defective you know,

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<v Speaker 1>inherently dangerous products. They're suing under negligence, they're suing under

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<v Speaker 1>some state uh, you know, laws that allow them to

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<v Speaker 1>bring suit for inherently dangerous chemicals, and so I think,

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<v Speaker 1>you know, there's certainly the potential that they could be

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<v Speaker 1>that the company could be found liable under those statutes.

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<v Speaker 1>But I think there's a lot of problems with that,

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<v Speaker 1>as we've been discussing. I mean, the question of what

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<v Speaker 1>they I agree with, what took them so long? The

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<v Speaker 1>question of how how much proof is there that when

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<v Speaker 1>they were actually manufacturing them they knew that it was

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<v Speaker 1>dangerous to humans. I mean, they have some studies and animals,

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<v Speaker 1>but that doesn't and necessarily mean that the uses that

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<v Speaker 1>were that they were being put to, uh, you know,

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<v Speaker 1>we're definitely dangerous to humans and stuff like that, or

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<v Speaker 1>that they knew or had reason to know. So it's

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<v Speaker 1>going to be a I think it's not gonna be

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<v Speaker 1>an easy case. Chuck. On the other's hand, you know,

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<v Speaker 1>there's there the lawsuits are really this laws in particularly

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<v Speaker 1>really based on the fact that PCPs is so pervasive

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<v Speaker 1>in the environment from their use everywhere, and given the

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<v Speaker 1>scope of their use and what is happened in the

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<v Speaker 1>environment with them, what kind of liability if this case

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<v Speaker 1>is allowed to go forward, could mon Santo face. Well,

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<v Speaker 1>it's the case does go forward. I mean, they've alleged

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<v Speaker 1>many water bodies and it seems to me the damage

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<v Speaker 1>could be in the billions of dollars here and because

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<v Speaker 1>you're looking at trying to deal with PCBs. You know

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<v Speaker 1>where if you look at what happened here in New

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<v Speaker 1>York State where g E had to clean up PCBs

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<v Speaker 1>in the Hudson which became a Federal Superfund site Hudson River. Uh,

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<v Speaker 1>they spent like one and a half billion dollars and

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<v Speaker 1>and you know, e p A said stop at the

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<v Speaker 1>A lot of citizens think they should do more. So

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<v Speaker 1>it's so that's just one water body. And if you

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<v Speaker 1>look at you know, if you look at what they're saying,

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<v Speaker 1>in the state of Washington, they've got to it looks like,

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<v Speaker 1>you know, over a hundred water bodies. And so I

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<v Speaker 1>think you could be talking about really huge numbers here

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<v Speaker 1>if there if they're ever found liable. Just about thirty

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<v Speaker 1>seconds here check. There are indications that other states may

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<v Speaker 1>join in this, and there are certainly cities that are

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<v Speaker 1>does Montsanto have the legal resources to fight this if

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<v Speaker 1>it becomes a lot of states, Well, I think their

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<v Speaker 1>first defense maybe you know that the that there, you know,

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<v Speaker 1>they have already created a fund to deal with these

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<v Speaker 1>claims under bankruptcy and to the extent that you're trying to,

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<v Speaker 1>you know, puncture that you can't do it. That's gonna

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<v Speaker 1>be the first line of defense. Now, now court may

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<v Speaker 1>say that doesn't apply to some of these newer cases,

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<v Speaker 1>or because sometimes you know, when you deal with environmental

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<v Speaker 1>issues in public health issues, bankruptcy doesn't always wash it clean.

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<v Speaker 1>But to the extent you're dealing with claims that date

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<v Speaker 1>back to predate the bankruptcy and stuff, they may have

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<v Speaker 1>the potential to do with it that way, but I

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<v Speaker 1>think or you might see another bankruptcy, which is what

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<v Speaker 1>happened in the Asbetas situation, where all these Asbeta's claims

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<v Speaker 1>piled up, which looked like they were going into the

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<v Speaker 1>billions of dollars. We'll have to stop their chuck. We'll

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<v Speaker 1>pick it up again another time. That's Charles Warren't share

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<v Speaker 1>of the environmental practice at Kramer Levin coming up, Emerging

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<v Speaker 1>trends in healthcare law. I'm Jim Gross with Michael Best.

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<v Speaker 1>This is Bloomberg