Updated at 4:52 p.m.
BURLINGTON — Attorney General Charity Clark has filed her first major lawsuit since taking office in January, taking on agrochemical giant Monsanto for alleged damage to the state’s natural resources and schools.
According to Clark, the damage comes from Monsanto’s PCB products, which were made to use in household and construction goods such as paints, caulks, dyes and fireproofing substances, among others. PCBs, or polychlorinated biphenyls, have been linked to cancers and negative health impacts to the endocrine system, immune system, nervous system and reproductive system.
In the lawsuit, Clark focuses on the allegation that Monsanto executives knew their products caused harmful health and environmental impacts, but misled the public, causing the products to be used widely in everything from road painting to school construction. As a result, the lawsuit alleges, taxpayers are on the hook to fund expensive cleanup efforts.
The attorney general’s complaint lists six causes of action — public nuisance, private nuisance, two counts of strict liability for defective design and failure to warn, trespass and negligence — against three entities, including Monsanto Co. and two affiliated companies, Solutia, Inc., and Pharmacia LLC.
“I want Vermonters to know, this would be a long fight, and there are no guarantees with litigation, but we are in it for the long haul,” Clark said at a press conference Monday on the steps of the Chittenden Civil Division of the Vermont Superior Court in Burlington. Her office filed the complaint in that court on Friday.
Though other states have sued and settled cases against Monsanto, Vermont is the first state to sue for damage to schools. The suit seeks to remedy harms to all schools in Vermont with traceable PCB contamination.
In a written statement, Nicole Hayes, a spokesperson for Bayer, which owns Monsanto, said the case “has no merit” because “Monsanto never manufactured, used or disposed of PCBs in Vermont and has not manufactured these products for more than 45 years. The PCB-containing products that are alleged to be the source of any impairment claims were produced by third party companies, not Monsanto.”
“The State faces a significant burden in proving its claims for many reasons including that it has not issued any orders limiting the discharge of PCBs in waterways (referred to as Total Maximum Daily Load), an action typically taken when there is concern about PCB levels in waters,” Hayes said in the statement.
“We know that Vermont’s natural resources, including surface waters and aquatic wildlife, are contaminated, and we know that Lake Champlain is severely contaminated,” Clark said, adding that the state has issued fish advisories for lake trout, smallmouth bass and yellow perch.
According to the state’s lawsuit, the state has listed all of Lake Champlain and the seven-mile stretch of the Hoosic River within the state’s borders as contaminated by PCBs.
Regarding the attorney general’s allegations about schools, Monsanto said in its statement that the state’s claim “fails because the school districts and their contractors — not Monsanto — authorized the use of PCB-containing products in their schools decades ago.”
“Finally, we believe the evidence in this case will show that the school districts’ inaction combined with the state’s unprecedented and scientifically unsupported PCB screening levels has cost the state and its taxpayers millions of dollars that they are now trying to recoup by shifting blame to Monsanto,” the company said in its statement.
The lawsuit states that, particularly in schools built prior to 1980, PCBs leach from construction materials and off-gas, contaminating indoor air.
“This is particularly dangerous to children and adolescents, who are more susceptible to PCBs’ neurodevelopmental impacts than adults,” the complaint states.
Following the discovery of PCB contamination at Burlington High School in 2019 — which required the school to shutter and move operations to the abandoned Macy’s department store in downtown Burlington — the Vermont Legislature approved a statewide program to test all of the state’s 321 schools for PCB contamination.
“So far, almost 50 schools have been tested,” Justin Kolber, chief of the environmental and public protection division in the Attorney General’s office, said at Monday’s press conference. “The testing continues, and we’re seeing around 30% of the schools coming back with elevated levels of PCBs.”
Last December, the Burlington School District filed a separate lawsuit against Monsanto for the cost of rebuilding a new high school.
The attorney general used Monsanto’s internal communications from the 1950s to argue that the company knew, but did not disclose, its products’ toxicity levels.
From 1929 until 1977, Monsanto was “responsible for the manufacture of 99% or more of all PCBs used or sold within the United States,” according to the complaint. Congress banned PCBs in 1979 under the Toxic Substances Control Act.
An internal 1969 memo from Monsanto stated that it was improbable that any action would “prevent the growing incrimination of specific polychlorinated biphenyls . . . as nearly global environmental contaminants leading to contamination of human food (particularly fish), the killing of some marine species (shrimp), and the possible extinction of several species of fish eating birds,” according to the complaint.
Another internal memo, according to the complaint, allegedly stated why the company continued to manufacture the product: “There is too much customer/market need and selfishly too much Monsanto profit to go out.”
But Monsanto represented the problems associated with its problems differently to the public, the complaint alleges.
After conducting its own studies, “Monsanto knew the volatility of PCBs to break down, and they falsely called PCBs, quote, ‘inert and non volatile,’” Kolber said on Monday. “Monsanto told its customers that PCBs were, quote, ‘practically innocuous.’ Monsanto told New Jersey regulators that PCBs were quote, ‘not highly toxic.’”
“We are prepared for this to be a long case, and we’re prepared to fight it,” Kolber said.
