What is the State’s lawsuit against Monsanto?
On June 16, 2023, the Attorney General’s Office filed a lawsuit on behalf of the State of Vermont in Chittenden County Superior Court against Monsanto, the company that manufactured, marketed, and distributed a class of toxic chemicals known as polychlorinated biphenyls (PCBs). The State alleges that Monsanto was aware of the harmful effects of PCBs, hid their negative effects from the public, and continued to produce, market, and sell them, including for use in building materials, causing damage to Vermont’s natural resources and schools.
In its lawsuit, the State seeks compensation for damage caused by PCBs to Vermont’s natural resources and schools, including the costs of testing for and remediating PCBs in schools.
A copy of the State’s lawsuit, with a full listing of its claims against Monsanto, can be found here.
A copy of the State’s press release announcing the lawsuit can be found here.
What are PCBs?
These chemicals, which are common in materials used in buildings constructed from the 1930s-1970s, have been shown to cause liver, thyroid, dermal, and ocular changes; immunological alterations; neuro-developmental and neurobehavioral changes; reduced birth weight; reproductive toxicity; and cancer. Children are particularly vulnerable to PCBs as the chemicals can disrupt normal neurological development, leading to lifelong impairments.
Why is this lawsuit being filed now?
Due to the historic presence of PCBs in schools, in 2021, the Vermont Legislature passed Act 74 requiring all schools built or renovated before 1980 to test their indoor air for PCBs. Testing in schools began in spring 2022 and it is expected that testing of schools will be completed by July 2025.
Through this testing program conducted by the Department of Environmental Conservation, PCB contamination has already been discovered in a number of Vermont schools. The State is suing to recover the costs of testing and remediation from Monsanto, the party responsible for the creation of PCB contamination in Vermont schools.
How does the school testing program work? Will my school be tested? Who is on the list?
A total of 324 schools will be tested through the State of Vermont’s testing program. A full list of schools and a schedule of testing can be found on the Department of Environmental Conservation’s website.
The State has established three different action levels for schools based on the PCB levels detected, depending on the age of the students. School action levels (“SALs”) are based on the amount of PCBs found in the indoor air at a school. Younger children tend to have more exposure to PCBs from their diet, so the levels for younger children are more stringent than those for older children and staff.
The three school action levels are:
(a) 30 nanograms per cubic meter (ng/m3) for Pre-K;
(b) 60 ng/m3 for kindergarten to 6th grade; and
(c) 100 ng/m3 for 7th grade to adult.
There is also an Immediate Action Level (IAL) that is triple the above amounts. For schools that exceed one of these thresholds (either the SAL or IAL), the Department of Environmental Conservation will notify the school about the results and discuss further options with the school, including a plan for interim operations.
How can the State bring a lawsuit to help schools?
The State has a type of authority referred to as “parens patriae.” This includes authority for the State to bring lawsuits to protect the health and wellbeing of its residents when a substantial segment of the population is threatened, such as by toxic conditions in Vermont schools. Schools do not need to formally “sign on” in order to be included in the State’s lawsuit.
Attorneys General traditionally use parens patriae authority to bring cases in areas such as antitrust, consumer protection, anti-discrimination, and environmental law – these are areas where there is a strong public interest in the outcome of the suit, and where it is in the States’ interest to ensure “that the interests of the suit’s beneficiaries are truly the motivating force behind the litigation … rather than leaving it entirely to the private bar.”[1]
Is my school included in the State’s lawsuit?
The State’s claims cover all 324 schools included in the State PCB testing program (except for the Burlington School District), a list of which can be found on the Department of Environmental Conservation’s website. The covered schools are all “public schools,” “approved independent schools,” and “recognized independent schools” as those terms are defined in 16 V.S.A. § 11. The State seeks to recover all costs associated with testing and remediation of PCBs at these schools.
Does my school need to hire a lawyer to represent our interests in the State’s lawsuit? How will we receive our share of any award?
No, schools do not need to hire their own lawyers to be part of the State’s case. The Attorney General’s Office will coordinate with the Agency of Education and with schools directly where necessary. Any award received through the lawsuit will likely be allocated by the Legislature to cover the expenses of testing and remediation of PCBs at schools across Vermont, with fund disbursements likely being administered by a state agency.
Will the State’s lawsuit result in recovery for my school?
The State’s lawsuit is not a guarantee of any outcome. Litigation is uncertain and takes time. A case like this can take years and involve many twists and turns. The State is committed to pursuing its case to protect Vermont and Vermonters, whether that leads to a negotiated settlement or a litigated outcome.
What if my school has already filed a lawsuit? Should my school file its own lawsuit?
The State’s lawsuit does not include the Burlington School District, which has filed a separate lawsuit against Monsanto. Other schools do not need to hire their own lawyers to be a part of the State’s case, nor do they need to formally “sign on” in order to be included in the State’s lawsuit. The State cannot guarantee how Vermont courts would treat private lawsuits concerning the same subject matter filed independently by individual schools after the filing of the State’s lawsuit.[2]
What if my school has already retained a private attorney?
You should consult with your attorney and ask them to explain the impact of the State’s lawsuit and your options going forward.
Does the State’s lawsuit cover injuries to school personnel and students caused by PCBs?
No, the State’s lawsuit seeks to cover all the costs of testing and remediation of PCBs for school buildings, but it does not seek damages relating to personal or medical injuries to school personnel or students.
How can I contact the State for more information about the State’s lawsuit?
Schools may contact the Attorney General’s Office with any questions about the State’s case by calling 802-828-3171 or emailing AGO.info@vermont.gov. Schools that have already retained a private attorney should consult with their attorney before contacting the Attorney General’s Office directly.
A printable PDF of this Q&A is available here: https://ago.vermont.gov/sites/ago/files/2023-06/Q%26A%20for%20Vermont%2…
Original source can be found here.
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