Prop 65 Underground Storage Tank Litigation

Court Limits Application of Prop 65 to Active Leaks

The California Court of Appeal has resolved a long-standing question of interpretation, holding that the "discharge" prohibition of Prop 65 does not reach historic discharges that are passively migrating through groundwater. In a December 17, 2002 opinion [Word/pdf] in Consumer Advocacy Group v ExxonMobil, Inc. (Second Appellate No. B153817), the court not only had to attempt to divine the construction of an initiative lacking in much legislative history, but also the objection of Communities for a Better Environment, which alleged that the appeal was a collusive effort between the parties to avoid allowing CBE to appeal its own adverse rulings on the same subject matter.

Because the phrase "discharge or release" was not defined in the Act, the court relied heavily on dictionary definitions and the ballot statements to reach its conclusion. The court found that the plaintiff’s assertion that passive migration was a “discharge” was not consistent with the ordinary dictionary definitions of the term. “These definitions . . . all convey movement out of a confined space such as a container, not, as plaintiff suggests, simply movement from one point to another.” The court also found support in the Prop 65 ballot arguments, which had referred to “put[ting]” chemicals into the environment. “The use of these words indicates the electorate intended to subject to a penalty the action of actively placing toxic chemicals into the drinking water.”

Significantly, the court rejected the plaintiff’s argument that the narrow interpretation of “discharge” and “release” would undermine the purpose of Proposition 65, and be contrary to the Supreme Court’s charge that the Act be broadly construed. “We decline the parties’ implicit suggestion to construe Proposition 65 as a blank slate upon which any environmental remedy can be written simply because the drafters of the initiative promised it meant ‘the clearest, most effective toxic control laws in the nation’ and ‘tougher law enforcement.’ ”

CBE had objected to the appeal because of its unique procedural circumstances. In two prior cases brought by CBE (CBE v. Boeing and CBE v Tosco; see prior story), the Los Angeles and San Francisco Superior Courts had also determined that Prop 65 did not apply to passive chemical migration in groundwater. CBE had not yet been able to appeal those rulings but, in the interim, CAG had brought its action against ExxonMobil, and stipulated to the entry of judgment to facilitate appellate review, in light of the decisions in Boeing and Tosco. The court's opinion did not detail the nature of CBE's objection, other than to note that CBE had requested the court to "dismiss the appeal as being collusive and an improper attempt to obtain an advisory opinion about a controversy not yet ripe for adjudication. The request is denied."

Prior History on UST litigation.

This page last updated Sunday, February 23, 2003