The state law claims in a marine-focused environmental group’s litigation against the biggest manufacturers of food and drink don't invalidate any federal law nor do they interfere with any federal agency, according to an attorney representing the Earth Island Institute.
“Transferring this case to federal court would potentially disrupt the federal-state balance in light of the fact that states have a role to play in water quality management,” Noorjahan Rahman told U.S. District Judge Haywood Gilliam during a remote hearing on July 16.
Rahman, of Cotchett, Pitre, & McCarthy law firm, was arguing to remand Earth Island Institute’s complaint back to the Superior Court of California in San Mateo after the defendants removed the case to the Northern District of California.
Causes of action within the state complaint include violations of the California Consumers Legal Remedies Act and public nuisance under California common law.
“The only way that remand is required is that somehow federal common law necessarily supplants any sort of state remedy like the one the plaintiffs are seeking in a manner that is akin to complete preemption,” Judge Gilliam told the telephone litigants.
Big Plastic defendants named are Crystal Geyser, Nestle, Pepsico, Clorox, Proctor and Gamble, Colgate Palmolive, Mars, Danone, Mondelez and Coca-Cola.
As previously reported, the defendants’ attorney, Andrew Tulumello of Gibson Dunn & Crutcher law firm, alleged that the Earth Island Institute’s complaint has no unique connection to California and is governed by federal law.
“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,” Tulumello said.
In response, Earth Island Institute’s Rahman said at the hearing, “Many of the descriptions of plastic pollution and other parts of the world are simply background.”
Tulumello argued that ambient and interstate pollution are governed by federal common law.
“There's no authority in plain of sight that says that you must have statutory complete preemption in order to be able to remove,” Tulumello said. “The removal analysis simply asks if the district courts would have had original jurisdiction over the case had it been filed in federal court. The answer to that question is plainly yes.”
When Judge Gilliam asked Earth Island Institute’s counsel what in the complaint limits the allegations to California sovereign waters, Rahman mentioned the Submerged Lands Act, which dictates that the three miles extending from the ocean coastline of a state belongs to the state.
“We cited to the Audubon Society California Supreme court case, which describes the public trust doctrine and the responsibility of the states to manage and take care of the waters within the borders of a state,” Rahman responded.
Earth Island Institute alleges that defendants refuse to adopt more sustainable alternatives, such as using recycable refillable, glass or aluminum, because they prefer the higher profits secured from using virgin plastic.