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Delaware Superior Court Dismisses State's Common Law Claims For PCB Contamination

The post was authored by summer associate Nik Hansen.

The State of Delaware brought claims against former PCB manufacturer Monsanto Company for the environmental contamination caused by PCB products in Delaware waterways. On July 11, 2022, in State of Delaware v. Monsanto Co., C.A. No. N21C-09-179, the Delaware Superior Court found that the State failed to state valid claims for public nuisance, trespass, and unjust enrichment against Monsanto. In its three-part holding, the Court held that product-related public nuisance claims are not cognizable in the state of Delaware, that the State does not have standing to bring trespass claims against resources it holds in public trust, and that unjust enrichment cannot be brought as a stand-alone claim in the superior court.

Polychlorinated biphenyls (“PCBs”) are a group of synthetic chemicals developed in the late 1800’s for use in industrial applications. PCB mixtures are thick, oily fluids that are highly stable, non-flammable, and non-reactive. The widespread use of PCBs contributed to the great leaps in industrial technology and modernization.  However, studies began to show that PCBs can be harmful to the environment and human health, and almost all production of PCBs ceased in the United States by 1978.   

Delaware has identified impairment caused by PCBs in portions of the Delaware River and the Delaware Bay, as well as several freshwater streams throughout the state. This impairment includes the presence of PCBs in fish, requiring the State to issue fish consumption advisories. Delaware asserts that the PCBs causing this contamination originated largely from their use, storage, and disposal by third parties. The State filed a complaint against Monsanto, alleging that Monsanto’s manufacturing and sale of PCBs constituted public nuisance, trespass, and unjust enrichment. Monsanto filed a 12(b)(6) motion to dismiss these claims.

Delaware relied primarily on two cases involving environmental contamination of property to support its public nuisance claim. Artesian Water Company v. Government of New Castle County, 1983 WL 17986 (Del. Ch. Ct.) (finding that groundwater use is a common or public right); Crystal Alexander v. Evraz Claymont Steel Holdings Inc., 2013 WL 8169799 (Del. Super. Ct.) (toxic emissions affecting adjacent property may constitute a nuisance). However, the Superior Court found these cases distinguishable on the basis that the defendants in each were involved in the direct pollution of an adjacent property, whereas Monsanto merely manufactured and sold its product to third parties.  The Court agreed with Monsanto’s conclusion that product claims are not encompassed within the public nuisance doctrine and granted Monsanto’s motion to dismiss the claim, citing extensive support in Delaware case law.

The Court found that Delaware also failed to state a claim for trespass. First, while Delaware has regulatory control over the contaminated water bodies, which are held in public trust, the Court noted that the public trust doctrine is “intended to ensure that others have use of the same land,” and does not grant exclusive possession. New Jersey Dep’t of Environmental Protection v. Hess Corp., 2020 WL 1683180 (N.J. Super. Ct. App. Div.). The Court noted that since the tort of trespass is an intrusion on a possessor’s interest in the exclusive possession of land, such exclusive possession essential to have standing to bring a trespass claim. Restatement (Second) of Torts § 158. Therefore, the Court found that Delaware does not have standing to sue for trespass to its water bodies held in public trust.

Second, Delaware failed to allege any intentional act by Monsanto to intrude on the water bodies in question. Instead, Delaware asserted that Monsanto was “substantially certain” that such an intrusion would result from their manufacture and sale of PCBs. However, the Court noted that to state a claim for trespass, a plaintiff must allege a direct causal relationship between the defendant’s conduct and the intrusion and that, generally, a defendant must have “ownership or control of the intruding instrumentality” in order to be liable for trespass. Parks Hiway Enterprises, LLC v. CEM Leasing, Inc., 995 P.2d 657 (Ala. 2000). Absent an allegation of control over the PCBs at the time the contamination of the water bodies occurred, the Court found that Delaware failed to state a claim for cause of action for trespass.

On the dismissal of Delaware’s public nuisance and trespass claims, the Superior Court found that it did not have jurisdiction over the unjust enrichment claim. Delaware maintains a separation between the superior court, its court of general jurisdiction, and the chancery court, which has exclusive jurisdiction over claims in equity. Although Delaware correctly pointed out that an unjust enrichment claim can be brought in the Superior Court as a measure of damages where liability is found, Crosse v. BCBSD, Inc., 836 A.2d 492 (Del. 2003), the Court found that absent a cause of action at law, unjust enrichment cannot be a stand-alone claim.