OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

This is a consolidated multi-district litigation ("MDL") relating to contamination — actual or threatened — of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE") and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. In this case, the Commonwealth of Puerto Rico ("the Commonwealth") alleges that defendants' use and handling of MTBE has contaminated, or threatened to contaminate groundwater within its jurisdiction. Familiarity with the underlying facts is presumed for the purposes of this Opinion.

Currently before the Court is a motion for partial summary judgment brought by certain defendants1 pursuant to Rule 56 of the Federal Rules of Civil Procedure, on claims brought by the Commonwealth at five designated focus trial sites ("Phase 1 Trial Sites") .2 Specifically, defendants move for partial summary judgment on Counts I through IV of plaintiff's Third Amended Complaint on several grounds.3 For the reasons stated below, defendants' motion for partial summary judgment is DENIED.

II. BACKGROUND

A. Plaintiff's Claims

The Commonwealth brings Counts I through IV pursuant to its authority under the common law doctrine of parens patriae, "to recover damages and protect [its] citizens."4 Count V is brought by the Commonwealth, acting through the Environmental Quality Board ("EQB"), pursuant to "regulatory" and statutory authority vested in it by the Environmental Public Policy Act of 1970 ("EPPA").5

1. Count V: The EPPA Cause of Action

The Commonwealth, acting through the EQB,6 asserts claims against certain defendants7 for violating regulations promulgated by the EQB and laws incorporated by the EPPA, with respect to water pollution.8 The EQB identifies one defendant at each Phase 1 Trial Site.9 The EQB "seek[s] the total amount of damages caused to the environmental and natural resources of the Commonwealth caused by [] defendants' unlawful discharge of MTBE."10

2. Counts II-IV: General Statutory Causes of Action

In its authority as parens patriae,11 the Commonwealth asserts public nuisance, trespass, and negligence claims in Counts II, III, IV.12 The Commonwealth seeks "administrative, investigation, remediation, cleanup, restoration, removal, treatment and/or monitoring costs and expenses related to the contamination of waters" that "the Commonwealth has incurred[,] is incurring[,] and will continue to incur."13 The Commonwealth also prays for "other substantial expenses and damages."14

3. Count I: Common Law Cause of Action

Also in its authority as parens patriae, the Commonwealth claims that certain defendants are liable for strict product liability under a theory of defective design and failure to warn.15 This claim is brought pursuant to a "standard common law cause of action [] universally recognized by Puerto Rico's courts."16 The Commonwealth seeks damages in the amount that it has expended and will continue to spend "on evalut[ing], investigat[ing], monitor[ing], abat[ing], clean[ing]-up, correct[ing], contain[ing], and remov[ing] MTBE from waters of the Commonwealth."17 The Commonwealth also seeks the recovery of attorneys' fees.18

B. Defendants' Motion for Summary Judgment

Defendants' motion relies on three different but related arguments. First, the EPPA, evidenced by (1) its plain language and legislative intent, and (2) the First Circuit's holding in Puerto Rico v. S.S. Zoe Colocotroni ("Zoe"),19 "displaced any implied common law parens patriae authority that [would allow] the Commonwealth to file for environmental-injury damages," as well as the common law and general statutory causes of action.20 Second, the Commonwealth cannot prevail as a matter of law on its trespass claim because it lacks "exclusive possession" of the groundwater at issue — an element of trespass under Puerto Rico law.21 Third, because the Commonwealth is a public agency that does not own the injured property, it may not recover damages on its nuisance claim, but is limited solely to the remedy of abatement.22

III. APPLICABLE LAW

A. Preemption

1. The EPPA

The EPPA reiterates the Commonwealth's "commitment to the most effective conservation of its resources."23 In adopting the EPPA in 1970, the Legislature sought to "establish a policy which [would] stimulate a desirable and convenient relationship between man and his environment; [] develop the efforts which might hinder or eliminate damages to the environment . . . [; and] enrich the comprehension of ecological systems and natural resources important to" the citizens of Puerto Rico.24 The policy statement of the EPPA provides that "all persons responsible for polluting our soils, waters and atmosphere shall be accountable for decontamination[] and restoration-related costs, and when applicable, for compensating the people of Puerto Rico for harm inflicted."25

To implement these objectives, the EPPA: (1) created the EQB;26 (2) incorporated EQB regulations and Civil Code provisions governing the welfare of Puerto Rico's environmental and natural resources;27 and (3) vested in the EQB the power to institute civil actions on behalf of the Commonwealth "to recover the total value of the damages" caused by violations of the EPPA.28 The EQB also provides a private cause of action against any "natural or juridicial person on the grounds of damages sustained on account of violations of this chapter."29

The EPPA gives the EQB power to institute a civil action to collect damages resulting from the violation of the provisions of the Federal Clean Water Act30 and the Commonwealth's pollution standards.31 These provisions specify who the EQB can sue for environmental damages. The EPPA limits liability to those defendants that are "directly or indirectly" responsible for "throw[ing], discharg[ing], pour[ing] or dump[ing] . . . any organic or inorganic matter capable of polluting or of leading to the pollution of [waters] in such manner as to place them out of the minimum standards of purity that the Secretary of Health may establish. . . ."32

The EPPA is silent with respect to whether it displaces non-EPPA causes of action for environmental damages. The Puerto Rico Supreme Court has held that in a private civil action under the EPPA, the private litigant may complement its EPPA claims with non-EPPA claims to recover damages for injury to natural resources on his or her property.33 However, Puerto Rico's highest court has yet to resolve whether the EPPA displaces alternate common law and general statutory causes of action to recover environmental injury damages, or whether the Commonwealth may utilize its parens patriae authority to institute such a suit.

2. The First Circuit's Holding in Zoe

At issue in Zoe were damages caused to Puerto Rico's coastline after the captain of a tramp oil tanker, the SS Zoe Colocotroni, "ordered the dumping of more than 5,000 tons of crude oil onto the surrounding waters."34 The EQB and the Commonwealth brought suit as two separate and distinct plaintiffs.35 The EQB brought suit pursuant to the EPPA.36 "[A]s the owner of the real property primarily effected by the oil spill," the Commonwealth could have brought suit pursuant to a cause of action in admiralty "like any private landowner."37 Instead, the Commonwealth sought relief under an implied common law cause of action, whereby it "asserted a right to recover as a governmental entity on behalf of its people for the loss of living natural resources on the land such as trees and animals."38 This implied common law cause of action brought by the Commonwealth and the cause of action brought by the EQB under the EPPA overlapped significantly.39 The First Circuit held that the EPPA displaced this cause of action asserted by the Commonwealth as "public trustee" of Puerto Rico's natural resources.40

3. Alternative Pleading and Displacement of State Law

Rule 8 of the Federal Rules of Civil Procedure states that a "party may set out [two] or more statements of a claim . . . alternatively or hypothetically."42 Further, "[a] party may state as many separate claims or defenses as it has, regardless of consistency."43 A "plaintiff may plead both statutory and common law grounds for relief for the same conduct by the same defendant."44 While Rule 8 allows a plaintiff to plead in the alternative, the Rule does not allow it to plead a claim pursuant to a cause of action that has been statutorily displaced; however, "the legislative grant of a new right does not ordinarily cut off or preclude other non-statutory rights in the absence of clear language to that effect."45

Under Puerto Rico law, "a special law governing a specific matter prevails over a general law."46 However, this statutory construction is applied only when the two statutes are in conflict with each other.47 Where legislation is silent with respect to whether it preempts or displaces state law remedies, the court must look for a heightened standard of "evidence of clear and manifest legislative purpose" that is otherwise not required in determining the displacement of federal common law.48 Federal courts must tread carefully when interpreting comprehensive statutory schemes adopted by state legislatures — silent on the issue of displacement — as preempting existing state law remedies.49 Here, principles of federalism counsel against a federal court's displacing established state law.50

B. Trespass and Exclusive Possession

Under Puerto Rico law, only the people of Puerto Rico can own water, not the Commonwealth.51 Nevertheless, the Commonwealth has a 75 with respect to "termination of agency contracts" where the more comprehensive Insurance Code is "in fact, silent on this matter"). constitutional and statutory duty to conserve, protect and administer the groundwater on behalf of the citizens of Puerto Rico.52 Section 19 of Article VI of Puerto Rico's Constitution mandates that "it shall be the public policy of the Commonwealth to conserve, develop and use its natural resources for the general welfare of the community.53 Puerto Rico law "imposes on the Commonwealth the unavoidable duty to administer and protect [Puerto Rico's] waters, in the name and the benefit of the Puerto Rican population."54 This duty includes the Commonwealth's mandate to establish a permit and franchise system for the public use of such waters.55 The Commonwealth has authorized the Puerto Rico Aqueduct and Sewer Authority ("PRASA") to assume the "administration, operation, maintenance and conservation" of the Class SG-1 groundwater at issue in the Complaint.56

It is unclear whether Puerto Rico law requires a plaintiff to show exclusive possession in order to prevail on a trespass claim.57 Under Puerto Rico law, possession is recognized in "one of two different aspects: in that of the owner, or in that of the holder of the thing."58 In other words a corporeal thing can be exclusively possessed by two distinct and separate possessors: (1) the owner of the thing that possesses a legal right to that thing, and (2) the holder of the thing, who despite not having any vested legal right in it, has exclusive use or custody of that thing.59

C. Nuisance

Section 2761 of Title 32 of the Laws of Puerto Rico ("section 2761") authorizes both private parties and government agencies to seek damages for nuisance.60 Section 2761 provides that a nuisance claim "may be brought by any person, public agency, or municipality whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered."61 Under Puerto Rico law, nuisance "has a dual purpose: the abatement of the nuisance by way of injunction and the compensation of the damages caused by nuisance."62

IV. DISCUSSION

A. The EPPA Does Not Displace Non-EPPA State Law Remedies

Defendants point to a number of varied authorities and policy rationales in an effort to demonstrate that the EPPA displaces Counts I through IV.63 However, defendants' interpretation of the EPPA and the holding in Zoe, would create a public policy that cannot be reconciled with the legislative intent expressed in the EPPA's plain language, legislative history, and application.

1. Plain Language and Legislative Intent of the EPPA

Defendants argue that the EQB's power to "recover the total value of damages inflicted on the environment and/or the natural resources by the commission of any violation of the provisions of [the EPPA] or its regulations,"64 "enables the EQB to recover all environmental-injury damages"65 and prohibits the Commonwealth from recovering such damages under non-EPPA claims. Defendants reach this conclusion based on two primary policy goals of the EPPA — resolving uncertainty and preventing double recovery.

Defendants argue that the Legislature intended to replace dubious, "possible" claims brought under the Commonwealth's parens patriae authority, with "known" claims brought pursuant to the EPPA.66 The Legislature accomplished this by identifying the EQB as the proper plaintiff, identifying the proper defendants, identifying the essential elements the EQB must prove, and designating the recipients of any recovery.67 Defendants further argue that by recognizing the EPPA as the only cause of action for the recovery of environmental damages, the Legislature of the Commonwealth sought to avoid double recovery or windfalls.68 However, in asserting these public policy aims defendants disregard the spirit of the EPPA and the context in which it was passed.

Puerto Rico has a rich history and tradition of environmental conservation and activism. The EPPA was passed in 1970 during a period of burgeoning environmental legislation in the United States.69 However, Puerto Rico's concern for the environment and natural resources of the territory was prevalent before these issues were nationally recognized. Puerto Rico's environmental concerns began with the 1952 Constitutional Assembly for the Commonwealth, where the Assembly revised Article VI of the Constitution to add that "it shall be the public policy of the Commonwealth to conserve, develop and use its natural resources for the general welfare of the community."70 A majority of the Assembly voted that this language would better serve the people of Puerto Rico if it were expressed as a constitutional mandate, rather than a law.71 Moreover, the EPPA was not the only environmental legislation Puerto Rico passed during the 1970s. The Organic Law of the Department of Natural Resources and the Water Law were passed shortly after the EPPA in 1972 and 1976 respectively, in light of the concern that "[t]he magnitude of the demographic, economic and geographic forces that unite in Puerto Rico tend to accelerate environmental deterioration."72

While neither the political landscape when the EPPA was passed nor Puerto Rico's historical commitment to environmental conservation is dispositive of legislative intent, other provisions of the EPPA weigh heavily against construing the EPPA's silence on the matter of displacement as barring non-EPPA remedies. The EPPA's primary purpose is to institute a policy of protecting and conserving Puerto Ricans' environmental and natural resources from dangers presented by increased population growth, development and industry on the Island and constantly worried about their use, development, and conservation. The preservation of [our natural resources] should be one of the main functions of our government.'" Paoli Mendez, 138 D.P.R. at 461 (citing 4 Diario de Sesiones de la Convención Constituyente 2622 (1952)). compensating the public for any environmental harm.73 While implementing this policy is the EQB's essential function, the Legislature recognized that relying exclusively on the EQB would not be "effective."74 Consequently, the Legislature included provisions in the EPPA that evince an intent to create a broad remedial scheme.

First, the Legislature incorporated a citizen suit provision that vested in citizens of Puerto Rico the power to sue and seek damages for harm to precious natural resources. Puerto Rico's courts have explicitly held that this cause of action may be supplemented by other more general tortious claims, including negligence.75 This provision recognizes the public's interest in the environmental resources of Puerto Rico, and while it does not speak directly to the Commonwealth's authority as parens patriae to supplement an EPPA cause of action with general statutory and common law tort claims, the clear intent of the provision is to ensure the people of Puerto Rico are not limited in their potential causes of action against environmental tortfeasors. To permit a private litigant to plead in the alternative when damage occurs on a small scale to environmental resources located on his or her property, but to prevent the Commonwealth from utilizing all causes of actions when suing for damages to environmental resources which impact the entire population of Puerto Rico, is inconsistent with the EPPA.

Second, the language of section 8001b of Title 12 of the Laws of Rico Annotated ("section 8001") makes clear that the EPPA's policies "are complementary to those established in the already existing authorizations for agencies."76 This provision also states that "the Government of Puerto Rico and its political subdivisions shall, to the broadest extent possible, interpret, apply, and administer all laws and regulatory bodies, as well as those instituted in the future in strict conformance with the public policy set forth in [the EPPA]."77 Although this provision refers to the rights and obligations of agencies, rather than the Commonwealth's parens patriae authority, it demonstrates that the intent behind the EPPA is not to create a sophisticated and limited body of law that displaces all non-EPPA remedies in pursuit of "certainty" and resolving potential double recovery issues at the outset of litigation. Rather, the EPPA's purpose is to supplement existing state law causes of action — including the Commonwealth's parens patriae authority to seek damages pursuant to common law and general statutory provisions — with a clear, sophisticated, and complex statutory scheme governing environmental torts.78

2. Defendants Misinterpret the First Circuit's Holding in Zoe

Additionally, Defendants argue that because Zoe held that the EPPA "must be construed as taking the place of any implied common law action [that] the Commonwealth as trustee, might have brought,"79 this Court must find that the Commonwealth is barred from instituting a suit under its parens patriae authority. "Any other construction," the First Circuit reasoned, "would invite the risk of double recovery and . . . confusion as to the rights of two state plaintiffs in their identical or nearly identical actions."80 However, Zoe is inapposite.

In Zoe, the Commonwealth claimed to have standing under a "public trustee" theory analogous to parens patriae. The First Circuit explicitly stated that although "the parties and the district court [spoke] in terms of `standing'" the relevant issue in the case "is more properly [described as] whether plaintiffs have stated a cognizable cause of action."81 The First Circuit took issue with the implied cause of action that was "identical or nearly identical" to the cause of action provided by the EPPA, but not with the Commonwealth's "public trustee" doctrine. There is nothing in Zoe that supports defendants' contention that it requires the preclusion of the Commonwealth's ability to sue under its parens patriae authority.

The EPPA provides a cause of action to the EQB to institute a suit to recover "the total value of the damages inflicted on the environment and/or natural resources" of Puerto Rico.82 The EPPA exclusively vested this power and duty in the EQB. The implied common law cause of action brought by the Commonwealth in Zoe was "identical or nearly identical"83 to the cause of action provided to the EQB in the EPPA. The Commonwealth sought relief "under an asserted right to recover as a governmental entity on behalf of its people for the loss of living natural resources on the land such as trees and animals."84 In precluding the Commonwealth from asserting such a claim, the First Circuit held that only the EQB could bring an action pursuant to the EPPA.85 Zoe reemphasized that where a cause of action has been legislated for the exclusive use of a particular governmental agency — in this case, the EQB — the Commonwealth acting as public trustee is precluded from asserting that statutory cause of action. The implied cause of action asserted in Zoe by the Commonwealth, as public trustee, was the functional equivalent of an EPPA cause of action, and was preempted because the claim was an end-run around this rule.

In contrast, the claims brought in Counts I through IV of the Commonwealth's Complaint here bear no resemblance to the cause of action provided to the EQB in the EPPA. The product liability, trespass, nuisance, and negligence claims have a broader purpose and goal than protecting the public's interest in natural resources. Because the claims brought in Counts I through IV are different from the EPPA claim, this Court's determination that the EPPA does not displace the non-EPPA claims does not conflict with Zoe.

Finally, there is no risk of double recovery here as there was in Zoe. In Zoe, the Commonwealth and EQB filed separate suits and asserted identical claims against the defendants, creating a substantial risk that plaintiffs would recover "double awards for the same injury."86 Here, there is only one plaintiff — the Commonwealth of Puerto Rico.87 One of the most important components of the holding in Zoe, was upholding the constitutionality of the EPPA. This disposed of the need for the EQB and Commonwealth to file separate lawsuits. Because there is only one plaintiff in this suit — the Commonwealth — acting pursuant to both its parens patriae and regulatory authority, there is no risk of double recovery that warrants displacement of non-EPPA remedies as in Zoe. Although defendants have repeatedly claimed there are two plaintiffs in this suit, there is only one plaintiff, the Commonwealth, asserting claims pursuant to different powers and authorities.88

B. The Commonwealth Enjoys Exclusive Possession of Groundwater

Defendants argue that under Puerto Rico law a plaintiff is required to show exclusive possession to prevail on a trespass claim. Assuming this is so, the Commonwealth enjoys exclusive possession in one of the two cognizable aspects of possession under Puerto Rico Law. The Commonwealth exclusively holds, and therefore possesses, the Class SG-1 groundwater that is the subject of this suit. It is the Commonwealth's affirmative constitutional and statutory duty to "administer and protect the waters of Puerto Rico on behalf of the people."89 That the Commonwealth must buy its water from PRASA does not disrupt this exclusive possession. Rather, the Commonwealth granted PRASA its permit and franchising rights pursuant to its "unavoidable" duty to the people of Puerto Rico to take custody and control of the groundwater at issue.90 Because the Commonwealth enjoys exclusive possession of the Class SG-1 groundwater, defendants' partial motion for summary judgment on the trespass claims is denied.

C. The Commonwealth's Recovery for Its Nuisance Claim Is Not Limited to Abatement

Defendants argue that the Commonwealth's only available remedy for nuisance is abatement, not damages. This argument relies on California law, which provides that where a public agency lacks an ownership interest in the property affected by the nuisance, it is limited to abatement as a remedy.91 This analogy to California law is inapposite, however, because the relevant Puerto Rico statute, section 2761, articulates a clear intent to give public agencies two types of available remedies when pursuing a public nuisance claim — abatement and compensation.92 Unlike the California nuisance statute, section 2761 explicitly states that "public agenc[ies ]" are entitled to damages for a nuisance claim. Accordingly, defendants' motion for summary judgment seeking to limit the remedy for nuisance claims is denied.93

V. CONCLUSION

For the foregoing reasons, defendants' motion for partial summary judgment is DENIED. The Clerk of Court is directed to close this motion (Docket No. 481).