EAST ST. LOUIS – Monsanto can challenge the constitutionality of a claim that its pollution violated East St. Louis city ordinances, U.S. District Judge David Dugan ruled on April 17.
He granted leave for Monsanto to file a counterclaim alleging the city violated due process and equal protection.
The counterclaim will also allege the city violated a constitutional prohibition against excessive fines by seeking penalties up to $2.7 billion.
Dugan found federal rules afforded him broad discretion in allowing joinder of counterclaims to expedite resolution of all controversies between the parties.
“If a counterclaim is closely related to the claims already before the court, then it normally should be permitted if interposed at any time prior to the trial stage,” he wrote.
East St. Louis city attorney C.J. Baricevic of Belleville sued Monsanto and its spinoff companies Solutia and Pharmacia in St. Clair County Circuit Court in 2021.
Baricevic claimed they contaminated city property with polychlorinated biphenyls, or PCBs, that they produced in Sauget.
Monsanto removed the complaint to U.S. district court, asserting diverse citizenship as a Missouri business.
Its counsel Charles Hobbs of Clayton, Missouri, filed the motion for counterclaim this January.
Hobbs claimed the city sought fines of $500 or $750 per day for each parcel it owns, “going back to the early 1970s when the penalty provisions of the ordinances were enacted.”
“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,” he wrote.
Hobbs claimed the city applied ordinances to a substance the ordinances didn’t identify.
He claimed the ordinances didn’t define a level of PCB that might violate them.
He added that the city never applied ordinances in this manner or provided notice that they would.
Hobbs also claimed the U.S. Constitution prohibits laws that retroactively alter definitions of crimes or increase punishment.
“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,” he wrote.
City counsel Zachary Howerton of Maryland responded that the penalties would be proportional to the damage.
Howerton claimed city code prohibited the conduct of defendants each time it occurred.
He claimed an ordinance is not invalid simply because a city has not seized upon every opportunity to enforce it.
Hobbs replied for Monsanto that an ordinance can’t be enforced when its standard is moving or hidden.
Dugan found the counterclaim wouldn’t be prejudicial or futile.
“The Court emphasizes that Plaintiff may still challenge the counterclaim under the appropriate rules of civil procedure,” he wrote.
Dugan found discovery relating to the counterclaim could reasonably overlap with underlying claims and defenses to those claims.
He set a June 27 deadline for fact discovery and a Feb. 23 deadline for all discovery.
He set trial in July 2024.