Nestle, Pepsico and Clorox are among defendants in an environmental lawsuit that are allegedly reframing the case in a deceptive way in order to transfer it to federal court.
“These companies are trying to convince the court that this case is about more than just California and their argument is that it should be in federal court but it's not,” said Sumona Majumdar, general counsel for the Earth Island Institute. “We're alleging harm and seeking recompense for the harm here in the state of California.”
The Earth Island Institute sued the biggest manufacturers of food and drink in San Mateo Superior Court, accusing the companies of being responsible for plastics pollution in California and around the world.
The attorney for defendants, Andrew S. Tulumello, replied that plaintiffs are trying to use California law to rewrite federal and state recycling legislation.
“Plaintiff complains about the accumulation of plastic waste on beaches in Bali, Indonesia and in the Yangtze River in China; about municipal recycling programs from Philadelphia to Minneapolis to Alabama to Oregon; about plastic export policies in China; and about alleged lobbying in Vermont in the 1950s and Oregon in the 1970s,” wrote attorney Tulumello.
“The issues alleged in the Complaint have no unique connection to California and are governed by federal law.”
In response, the Earth Island Institute moved to remand and a hearing will take place before U.S. District Judge Haywood Gilliam on July 16.
“We put the problem in context in the complaint because it's hard to talk about plastic pollution and the story of how we've come to where we are without including the greater context but the actual harms that we're alleging are those here in California,” Majumdar told the Southern California Record.
As previously reported, the Earth Island Institute alleges that defendants refuse to adopt more sustainable alternatives because they prefer the higher profits secured from using virgin plastic.
“We've had models that were based on refillable and using glass or aluminum, which is more highly recyclable,” said Majumdar in an interview. “There are options of investing in science to create products that are truly biodegradable or plastic that is more highly recyclable. There are many different solutions that already exist and then there are many that we believe could exist if the playing field was more level.”
Causes of action within the state complaint include violations of the Calfornia Consumers Legal Remedies Act and public nuisance under California common law.
“It's all part and parcel of the same story that these companies have been telling that have convinced the public that using single-use plastic products will not create harm as long as we recycle it,” Majumdar said.
In addition to Nestle, Pepsico and Clorox, defendants also include Proctor and Gamble, Crystal Geyser, Colgate Palmolive, Mars, Danone, Mondelez and Coca-Cola.
“The worst-case scenario, if the case is transferred to federal court, is that we would need to refile,” said Majumdar. “We would need to amend our complaint to allege what the federal court decides what is really the basis of the case. But we would still have additional claims that would not change in nature in any way. It would probably take longer to litigate because federal courts are more overburdened.”