SAN FRANCISCO (Legal Newsline) – Pacific Gas & Electric will have to fight what remains of a pollution lawsuit but can argue it doesn’t have access to the property in question.
Judge William Orrick, of San Francisco’s federal court, made that determination Nov. 20 when he dismissed much of the lawsuit brought by Dan Clarke. The alleged pollution occurred at a cannery that PG&E used a century ago but no longer owns.
Clarke, who previously sued PG&E over another property PG&E owned and obtained a settlement, brought suit under the Resource Conservation and Recovery Act and the Clean Water Act.
“PG&E asks that I dismiss his RCRA claim for lack of redressability, because injunctive relief may require access to property owned by non-parties,” Orrick wrote. “Such an argument may have merit after discovery, but it is premature at this stage.”
His strict liability, negligence and CWA claims were insufficiently pleaded and dismissed.
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.
PG&E said the CWA was enacted in 1972 and doesn’t apply retroactively, but Clarke argued the pollution is an ongoing migration via groundwater.
“Counsel for Clarke spent much time at the hearing explaining how Clarke’s claims involved multiple discrete violations of the cWA, but the fact of the matter is that the complaint, on its face, does not make those allegations,” Orrick wrote.
Orrick granted Clarke leave to amend his strict liability and negligence claims.