EAST ST. LOUIS – Monsanto Company claims a lawsuit filed by the City of East St. Louis seeking penalties up to $2.7 billion for pollution violates the U. S. Constitution.
Monsanto has moved to file a counter claim against the city alleging violations of due process, equal protection, and a prohibition against excessive fines.
The city has responded that its penalties would be proportional to the damage from Monsanto’s production of polychlorinated biphenyl, or PCB.
City attorney C. J. Baricevic of Belleville sued Monsanto and its spinoff companies Solutia and Pharmacia in St. Clair County circuit court in 2021.
Monsanto removed the complaint to U. S. district court, asserting diverse citizenship as a Missouri business.
District Judge David Dugan has presided over discovery and has set trial for July 2024.
On Jan. 13, Monsanto counsel Charles Hobbs of Clayton, Missouri, moved for leave to file a counter claim.
He claimed the suit arose out of an East St. Louis city council meeting that took place on Jan. 9, 2020.
He claimed the city attorney presented what he described as a no risk proposition to hire private firms on contingency to pursue a novel idea.
“The lawyers proposed applying the city’s littering, sanitation, and nuisance ordinances against defendants if trace levels of PCBs could be found on city owned properties at any detectible level,” Hobbs wrote.
“They would then use the ordinances to seek fines of $500 or $750 per day for each city owned parcel going back to the early 1970s when the penalty provisions of the ordinances were enacted,” he continued.
Hobbs claimed the lawyers hired consultants who allegedly detected PCBs in parts per billion.
He claimed the city and outside counsel prepared citations and the police chief signed them.
He also claimed the novel interpretation of ordinances deprived defendants of their constitutional rights under color of state law.
“A law is unconstitutionally vague when it fails to give ordinary people fair notice of the conduct it punishes or is so standardless that it invites arbitrary enforcement,” Hobbs wrote.
“Due process is violated if a law fails to supply adequate guidelines to the administrative body which must enforce it,” he added.
He claimed the city applied ordinances to a substance the ordinances don’t identify.
He added that the ordinances didn’t define a level of PCB that might violate them.
Hobbs claimed the city’s position is that defendants must wait for experts, and the attorneys intend to decide what the standard will be.
He claimed the city never applied ordinances in this manner or provided notice to defendants that they would apply them in this manner.
He also claimed the Constitution prohibits ex post facto laws that retroactively alter definitions of crimes or increase punishment.
Hobbs claimed the city seeks to penalize defendants for conduct that occurred before the 1970s, when it added the penalty provision.
He claimed the city contends it could obtain a daily penalty for each parcel it owns.
“The city’s use of the penalty provision in this case is grossly disproportionate to the nature or severity of the alleged offense, is not intended to reimburse the city for damages, and does not correspond to the city’s costs to ameliorate an alleged ordinance violation,” Hobbs wrote.
Hobbs claimed the city never sought to collect daily penalties for days, weeks, months, years, or decades preceding the issuance of a citation.
He added that the starting point has always been the date a citation was issued or the scheduled hearing date.
City counsel Zachary Howerton opposed the counterclaim on Jan. 27, claiming city code has prohibited the conduct of defendants each time it occurred.
He claimed the fines are directly proportional to the gravity of the conduct.
Howerton added that the defendants must do more than establish that the standard is imprecise.
“Defendants must show that the statute specifies no standard at all,” he wrote.
Howerton claimed flexibility in language of an ordinance is essential for effective administration.
He claimed the court would determine the ultimate amount of penalties.
“In sum, an ordinance is not invalid simply because a city has not seized upon every opportunity to enforce it,” he wrote.
On Feb. 2, Hobbs replied that the city presented its allegations as facts and argued that defendants failed to prove elements of a counterclaim.
“Whether defendants will prove their claims is a fight for another day,” Hobbs wrote.
“When an enforcement standard is a moving or hidden target, the ordinance cannot be enforced and penalties cannot be levied consistent with due process,” he continued.
Hobbs claimed the city seeks to assess daily penalties going back 50 years and wants to multiply the penalties by the number of parcels it has sampled.
He claimed 200 parcels work out to $150,000 a day multiplied by more than 18,000 days.
He didn’t provide the total, but it would exceed $2.7 billion.
That would yield an average of about $150,000 for each of the 18,000 residents of East St. Louis.