Evolving Common Law Theories in Environmental Litigation

Before the enactment of CERCLA in 1980, claims alleging injury as a result of contamination were usually brought under theories of negligence and nuisance. Those claims were largely replaced by CERCLA claims because CERCLA did not require proof of negligence or proof of causation. A recent trend in environmental litigation has a return to common law theories, especially in claims against persons who do not fit nicely into one of the four categories of CERCLA potentially responsible parties: owners, operators, arrangers and transporters. A recent decision by the District Court for the Southern District of New York examines the various common law theories in a case alleging that a manufacturer of a product should have liability when the users of the product dispose of hazardous substances contained in the product in a manner that causes injury. Suez Water New York, Inc. v Du Pont, 2023 WL 2601161 (March 22, 2023).

Plaintiff brought claims for negligence, public nuisance, private nuisance, trespass and strict products liability against defendant manufacturers of products containing PFAS (polyfluoroalkyl substances) and PFOA (perflourooctanic acid), alleging that the manufacture and sale of these products resulted in contamination of the public water system. The court granted defendants motion to dismiss all but the product liability claim, and the court’s discussion of each of the legal theories gave future plaintiffs significant advice regarding what they need to allege to defeat motions to dismiss. The public and private nuisance claims failed because plaintiffs did not allege facts sufficient to support a plausible inference that defendants knew or were substantially certain that their conduct would result in contamination. The court noted that the manufacturers should have known of the risk of contamination, but foreseeability or knowledge of the risk is not enough to support a nuisance claim. The negligence claim failed because plaintiffs failed to adequately allege that defendants owed a duty of care to plaintiff. The court explained that for the defendant manufacturer to owe a duty to the plaintiff water supplier, plaintiff would have to allege that defendant controlled the purchasers of defendants’ products. Without the ability to control the use of the product after sale, defendants did not owe a duty to protect plaintiff from the acts of the purchasers and users of the product. The trespass claim failed because trespass is an intentional tort and plaintiffs must allege intentional entry by defendants onto plaintiff’s property. Intent to enter the property can be satisfied by showing that the entry was “immediate and inevitable.” In this case, however, entry of the hazardous substances onto plaintiff’s property was not an immediate result of the sale of the product.

The strict products liability claim survived. The court explained that a manufacturer who sells a defective product is subject to strict liability. The defect at issue here was in the design of the product (not defective manufacture) and in such cases, plaintiff must allege that the product design posed a substantial likelihood of harm, that it was feasible to design the product in a safe manner and that the defective design was a substantial factor in causing the injury. Defendants argued that there was no safer alternative, but the court concluded that this issue could not be determined on a motion to dismiss. There was also significant discussion regarding whether the product at issue that should have been more safe was PFOA or the product containing PFOA. Defendants argued that the product at issue was PFOA and there was no safer alternative. The court concluded PFOA was not the product at issue; it was merely part of the process of manufacturing Teflon.

The increased use of common law environmental claims against persons who are not traditional CERCLA PRPs pushes the boundaries of those legal theories. In such cases, courts can adapt the theories to the new factual situations and provide recovery, or they can refuse to. The Suez Water decision provides a good discussion of both the current state of the law and the arguments that are being made adapt traditional common law theories to contamination claims.