Louisiana-Pacific Corp. v. Koppers Co.

Decision Date21 February 1995
Docket NumberNo. A063939,LOUISIANA-PACIFIC,A063939
CourtCalifornia Court of Appeals Court of Appeals
Parties, Prod.Liab.Rep. (CCH) P 14,172 CORPORATION, Plaintiff and Appellant, v. KOPPERS COMPANY, INC., Defendant and Respondent.

Jared G. Carter, Michael D. Macomber, Rawles, Hinkle, Carter, Behnke & Oglesby, Ukiah, for plaintiff and appellant.

Todd A. Murray, Jeffrey H. Graybill, Hefner, Stark & Marois, Sacramento, Robert L. Shuftan, Anthony G. Hopp, Wildman, Harrold, Allen & Dixon, Chicago, IL, for defendant and respondent.

CORRIGAN, Associate Justice.

INTRODUCTION

In this case we must decide whether plaintiff Louisiana-Pacific Corporation's (L/P) tort action against defendant Koppers Company, Inc. (Koppers) is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 1 We conclude the action is preempted and, hence, that the trial court correctly granted Koppers's motion for summary judgment.

BACKGROUND

L/P operated a lumber mill and wood treating facility in Potter Valley, Mendocino County. Beginning around 1973, L/P purchased from Koppers a wood preservative called Noxtane, which contains pentachlorophenol. Noxtane was registered with, and its label regulated by, the United States Department of Agriculture (USDA) and, later, the United States Environmental Protection Agency (EPA). The 55-gallon barrels of Noxtane that L/P purchased from Koppers bore USDA- or EPA-approved warning labels.

Between the mid-1970's and mid-1980's, L/P learned that state and federal regulatory agencies were concerned about potential soil and groundwater contamination from the use of pentachlorophenol chemicals, including Noxtane. In 1987, the California Regional Water Quality Control Board issued an order requiring L/P to abate further Noxtane discharges and submit a proposal for cleaning up contaminated soil, surface and groundwater.

L/P filed suit against Koppers seeking damages for the cost of investigating and remediating the Noxtane contamination. The complaint stated causes of action for strict product liability, indemnity, and partial indemnity. Each claim was premised on allegations that Koppers had failed adequately to warn L/P about the safe application, use, and disposal of Noxtane.

Koppers moved for summary judgment, arguing: (1) L/P's claims were time barred; (2) L/P could not establish factual elements essential to its claims; and (3) L/P's claims were preempted by FIFRA. The trial court granted summary judgment on the sole basis of FIFRA preemption, declining to reach Koppers's other arguments. L/P timely appealed the ensuing judgment.

DISCUSSION

In Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, ---- - ----, 112 S.Ct. 2608, 2619-2622, 120 L.Ed.2d 407 (hereafter Cipollone ), the United States Supreme Court held

the Public Health Cigarette Smoking Act of 1969 expressly preempts common law actions based on a manufacturer's failure to warn of smoking hazards. We conclude FIFRA's preemptive language compels a like result here.

I. Summary Judgment

Summary judgment is proper only if the suit presents no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c.) Because the trial court's ruling on a motion for summary judgment is one of law based upon the papers submitted, we independently determine whether the evidence submitted raises a triable issue of material fact. (Schrader v. Scott (1992) 8 Cal.App.4th 1679, 1683, 11 Cal.Rptr.2d 433; Wilkerson v. Wells Fargo Bank (1989) 212 Cal.App.3d 1217, 1224-1225, 261 Cal.Rptr. 185.) Here, as there is no dispute over the facts supporting the grant of summary judgment, FIFRA preemption presents a purely legal question. (See Schrader v. Scott, supra, 8 Cal.App.4th at p. 1684, 11 Cal.Rptr.2d 433.)

II. Federal Preemption

Federal preemption doctrine stems from the constitutional provision that the laws of the United States are the supreme law of the land, "any thing in the Constitution or laws of any state to the contrary notwithstanding." (U.S. Const., art. VI, cl. 2.) In Cipollone, the United States Supreme Court stated: "Consideration of issues arising under the Supremacy Clause start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress. Accordingly, [t]he purpose of Congress is the ultimate touchstone of pre-emption analysis....

"Congress' intent may be explicitly stated in the statute's language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, ... or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." (Cipollone, supra, 505 U.S. at p. ----, 112 S.Ct. at p. 2617, citations and internal quotations omitted, brackets in original, fifth ellipsis added.) The Cipollone plurality noted, however, that when a federal statute contains an express preemption clause providing a " 'reliable indicium of congressional intent with respect to state authority,' " courts are not free to consider theories of implied preemption. (Id. at p. ----, 112 S.Ct. at p. 2618.) Instead, a court called upon to interpret an express preemption provision "need only identify the domain expressly pre-empted...." (Ibid.)

III. FIFRA (7 U.S.C. § 136 et seq.)

In evaluating the preemption question, a brief overview of the legislation in this area is instructive. Congress enacted FIFRA in 1947 to replace and expand the Insecticide Act of 1910, the federal government's first effort to regulate pesticides. (See Wisconsin Public Intervenor v. Mortier (1991) 501 U.S. 597, 601, 111 S.Ct. 2476, 2479-2480, 115 L.Ed.2d 532.) Like its predecessor, the 1947 act was "primarily a licensing and labeling statute." (Ruckelshaus v. Monsanto Co. (1984) 467 U.S. 986, 991, 104 S.Ct. 2862, 2866, 81 L.Ed.2d 815.) In 1972, Congress significantly strengthened FIFRA's registration and labeling standards and transformed it into a comprehensive regulatory statute governing the use and sale of pesticides. (Id. at pp. 991-992, 104 S.Ct. at 2866-2867.)

FIFRA mandates that all pesticides sold in this country be registered by the EPA. (7 U.S.C. § 136a(a).) The EPA will not register any pesticide unless it determines, inter alia, that the labels submitted by the manufacturer are adequate to protect the public from fraud and personal injury and to prevent unreasonable adverse effects on the environment. (40 C.F.R. § 156.10(i )(1)(i) (1992); see 7 U.S.C. §§ 136a(c)(5)(B), (C), (D).) 2 Detailed regulations enacted pursuant

                to FIFRA specify not only particular information and warning language that must be included on the label, but also [32 Cal.App.4th 604] the type size, color, and placement of the warning on the label.  (40 C.F.R. §§ 156.10(a)(1)-(a)(2), (h)(1)-(h)(2), (i ) (1992).)   The regulations also suggest "typical precautionary statements" that the manufacturer must modify or expand as necessary to reflect specific hazards.  (40 C.F.R. § 156.10(h)(2)(i)(B) (1992).)   Once the EPA approves a label, the manufacturer may not change it without the agency's approval.  (Worm v. American Cyanamid Co.  (4th Cir.1993) 5 F.3d 744, 747.)
                
IV. Construed in Light of Cipollone, FIFRA's Preemption Clause Encompasses Common Law Claims

FIFRA (7 U.S.C. § 136 et seq.) expressly addresses the extent to which states may regulate pesticides. Section 136v(a) provides: "A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter." (Emphasis added.) Section 136v(b), however, titled "Uniformity," specifies that: "Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." (Emphasis added.) It is undisputed that section 136v(b) thus precludes state rulemaking bodies from imposing labeling or packaging requirements. The question we face, rather, is whether the section demonstrates a further congressional intent to preempt common law actions based on theories of failure to warn. No California case directly addresses this issue. 3 We now join with the vast majority of courts in holding that the principle in Cipollone dictates a finding of preemption.

In Cipollone, supra, 505 U.S. 504, 112 S.Ct. 2608, the United States Supreme Court compared the preemptive effect of the 1965 Federal Cigarette Labeling and Advertising Act 4 and its successor, the Public Health Cigarette Smoking Act of 1969 5 (hereafter 1969 cigarette act). Differing language in each act compelled divergent findings on the preemption issue. Section 5 of the 1965 act 6 stated in relevant part: " '(a) No statement relating to smoking and health, other than the [federally mandated warning], shall be required on any cigarette package. [p] (b) No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.' " (Id. at p. ----, 112 S.Ct. at p. 2616, emphasis added.) Construing this language in light of the presumption against federal preemption, the high court found no evidence of a congressional intent to preempt state law tort actions. (Id. at pp. ---- - ----, 112 S.Ct. at pp. 2618-2619.) Noting the lack of any "inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common law damages actions," the court concluded section 5 of the 1965 act only precluded state rulemaking bodies from mandating particular warning labels. (Ibid.)

Not so, however, with respect to the 1969 cigarette act. Section 5(b) ...

To continue reading

Request your trial
7 cases
  • People ex rel. Lungren v. Cotter & Co., A070904
    • United States
    • California Court of Appeals
    • March 31, 1997
    ...of sale warnings. 14 (Taylor AG Industries v. Pure-Gro (9th Cir.1995) 54 F.3d 555, 560 (Taylor AG ); Louisiana-Pacific Corp. v. Koppers Co. (1995) 32 Cal.App.4th 599, 38 Cal.Rptr.2d 257; Papas v. Upjohn Co. (11th Cir.1993) 985 F.2d 516.) Although the preemption provision in FIFRA is essenti......
  • Etcheverry v. Tri-Ag, S072524.
    • United States
    • United States State Supreme Court (California)
    • March 2, 2000
    ......Jones, Denver, CO.; Daniel J. Pope, Chicago, IL.; and Paul D. Kamenar, ...300, 126 L.Ed.2d 248; accord, Louisiana-Pacific Corp. v. Koppers Co. (1995) 32 Cal.App.4th 599, 38 ......
  • Etcheverry v. Tri-Ag Service, Inc., TRI-AG
    • United States
    • California Court of Appeals
    • July 8, 1998
    ...predicated on a failure to warn because We conclude, contrary to numerous earlier opinions (e.g., Louisiana-Pacific Corp. v. Koppers Co. (1995) 32 Cal.App.4th 599, 38 Cal.Rptr.2d 257; Taylor AG Industries v. Pure-Gro (9th Cir.1995) 54 F.3d 555; MacDonald v. Monsanto Co. (5th Cir.1994) 27 F.......
  • Reese v. Payless Drug Stores Northwest, Inc., A066468
    • United States
    • California Court of Appeals
    • April 17, 1995
    ...Mangini, supra, 7 Cal.4th at p. 1065, 31 Cal.Rptr.2d 358, 875 P.2d 73 [same as Cipollone ]; Louisiana-Pacific Corp. v. Koppers Co. (1995) 32 Cal.App.4th 599, 604, 38 Cal.Rptr.2d 257 [state regulation of sale or use of pesticides restricted].) Section 337 does not limit or prohibit state leg......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT