Suit over PG&E predecessors’ gas plant proceeds, most claims dismissed

A federal judge advanced a lawsuit against Pacific Gas and Electric Co. claiming a gas plant its predecessors used to operate continues to pollute the surrounding area but dismissed most of the claims.

U.S. District Judge William H. Orrick in San Francisco allowed a single allegation that the plaintiff's enjoyment of the area is diminished by the contamination caused by the Cannery Manufactured Gas Plant to survive.

The plaintiff "plausibly alleges standing based on his recreational and aesthetic interests: He continues to walk in the area but his enjoyment is diminished by the damage PG&E's conduct is causing wildlife and the environment," Orrick wrote in an order issued Friday.

PG&E spokesman James Noonan said in a statement the company remains committed to addressing "any impacts from historical operations" but emphasized it "did not operate the former Cannery Manufactured Gas Plant, and is therefore not responsible for the alleged contamination."

The utility settled in 2018 lawsuits over pollution caused by three other manufactured gas plants, which were operated by its predecessors Equitable Gas Light Company and San Francisco Gas and Electric company. The deal did not include the Cannery site that's now occupied by restaurants, shops and a National Park visitor center.

The lawsuit filed in July by the same plaintiff who sued over the other plants claimed that PG&E and its predecessors contaminated the area surrounding the Cannery. Pollutants from the site discharge into the Bay, endangering human and marine life, plaintiff said.

The complaint alleged violations of the Resource Conservation and Recovery Act, Clean Water Act and state strict liability and negligence laws. It seeks an injunction requiring PG&E to fund a trust dedicated to remediating the area. Clarke v. Pacific Gas & Electric Company, 20-cv-04629 (N.D. Cal., filed July 10, 2020).

In his ruling on the motion to dismiss, Orrick found plaintiff Dan Clarke's enjoyment of the area allegedly contaminated by the Cannery is diminished. He highlighted the harm the pollution caused to marine life and the resulting reduction in their numbers.

Plaintiffs who use an area for recreational purposes do not have to show that they live nearby to establish "injury-in-fact due to possible or feared environmental degradation," the judge ruled.

But Orrick dismissed the Clean Water Act claims since they were not timely pled.

Responding to the plaintiffs' argument that the five-year window to sue did not start since PG&E continues to pollute the area, Orrick disagreed since the lawsuit alleges a "single, continuing violation." He ruled the time to sue started to accrue when such misconduct became illegal under the Clean Water Act in 1973 or when the plant first began operating.

State law negligence and strict liability allegations were also dismissed because Clarke could not base those on his decision to sell his previous house near the contaminated area, Orrick found.

Plaintiffs were allowed leave to amend.