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SAN FRANCISCO (Legal Newsline) – The man who wants Pacific Gas & Electric to clean up a portion of the San Francisco waterfront lacks standing, the company says.
PG&E filed a motion to dismiss the lawsuit of Dan Clarke on Aug. 12 in San Francisco federal court, arguing he can’t prove that he has been injured.
“He does not allege that he has limited his recreational activities (i.e., visiting the area on his own and with friends), nor has he alleged any sensory impact to his aesthetic interests beyond a claim that his enjoyment has been ‘diminished’ since he learned of the alleged contamination of the Cannery MGP site,” the motion says.
“Moreover, as this court previously ruled in the related case regarding other MGPs in the Marina District, Clarke cannot establish his standing based upon alleged injuries to third parties (e.g., swimmers in Aquatic Park, here, or the owner of the Cannery MGP Site – the federal government), or base his standing on not searching for a house in the area of the Cannery MGP due to speculative health risks from contamination in that area.”
Clarke, through lawyers at Gross & Klein, filed a complaint July 10 in San Francisco federal court against PG&E over a manufactured gas plant – the Cannery MGP.
The plant was a “highly polluting” refinery that contaminated the area around it, the lawsuit says.
“The MGP Waste contamination from the Cannery MGP may present an imminent and substantial endangerment to human health and the environment,” the lawsuit says.
PG&E has known about the pollution since at least the 1980s but has not performed an investigation in decades, the lawsuit says.
“(A)t the same time as it has acknowledged its liability for the Additional MGPs, PG&E has denied owning and operating the former Cannery MGP, despite multiple sources of evidence showing that PG&E owned and operated it – including PG&E’s own records and a superficial investigation of the site conducted in 1986,” the suit says.
PG&E says Clarke’s Clean Water Act claims fail because it was enacted in 1972 and doesn’t apply retroactively. The Cannery MGP ceased operating more than 60 years earlier.
“Clarke does not allege any physical personal injury or property damage,” the company says. “Although anxiety can constitute a form of emotional distress, its availability as a basis for damages in California is limited to three categories, all inapplicable here.”