The United States Supreme Court has rejected ExxonMobil’s appeal of a $236 million verdict in a case brought against the oil company by the state of New Hampshire.
The legal battle began more than a decade ago when the state Attorney General sued 22 oil companies for using a chemical called MtBE, which can contaminate soil and drinking water.
Richard Head was an Associate Attorney General at the time and now works for SL Environmental Law Group, which worked with the state on the suit. He spoke with NHPR’s All Things Considered host Peter Biello.
Bring us back to 2003. What led to this suit against ExxonMobil and 21 other major oil companies?
In 2003, and even before that, the state of New Hampshire was recognizing that MtBE was causing a significant problem of groundwater contamination throughout the entire state. MtBE was added to gasoline by the gasoline manufacturers as part of the Clean Air Act, but as was claimed in the lawsuit, the gasoline manufacturers decided they would be adding MtBE. There was nothing in the law that required that MtBE be added.
The addition of MtBE became a substantial problem in the groundwater, because MtBE behaves very differently in groundwater than regular gasoline does. It is very persistent. It lasts for a very long time, and it also travels very quickly once it hits the groundwater. So the state of New Hampshire was discovering these very large plumes of MtBE in the groundwater, resulting in the contamination of a large number of drinking water wells and also contaminating the groundwater resource.
As a result of that, the state of New Hampshire decided it was going to file a lawsuit and hired SL Environmental Law Group to help bring suit against the manufacturers of MtBE gasoline for the damage that was being caused to the groundwater and drinking water supply.
ExxonMobil was the only defendant not to settle. What argument did the company make in its defense?
ExxonMobil said that New Hampshire opted into the MtBE gasoline program, when in fact all that New Hampshire did was allow MtBE gasoline to be distributed in the state, not knowing what all of the problems that were going to be caused by MtBE gasoline. Exxon also argued that if New Hampshire was awarded any money, that New Hampshire would not use the funds to clean up MtBE gasoline, but would simply distribute it into its general fund. In fact, New Hampshire is using these funds exactly for the purpose we fought the lawsuit for, which was to clean up the groundwater and eliminate MtBE from the groundwater resource.
Has the state already received a portion of the $236 million?
Prior to trial, all of the other defendants except for Exxon settled for $136 million, and that money is currently being used in a new bureau that was established at the Department of Environmental Services for MtBE and groundwater remediation. That money is now being used for that purpose.
New Hampshire and Vermont are now struggling with the potentially cancer-causing chemical PFOA, which is believed to have originated at Saint Gobain Performance Plastics plants. What implications would this court decision have for possible suits against Saint Gobain?
Every case has to be evaluated on its own merits. With PFOA or any of these emergent chemicals we see in our groundwater and are now being tested for, every case should be evaluated for whether or not there are responsible parties. Not only should water suppliers be looking at the party that’s directly responsible for releasing the chemical into the environment, such as, as I understand it, Saint Gobain in the Merrimack area, but also to be looking at whether or not there are manufacturers who are also responsible, and that’s what we do around the country.
SL Environmental Law Group has found and identified emergent chemicals of concern that are affecting drinking water supplies and water supply companies, and evaluating whether there is manufacturer liability for instances like MtBE where the manufacturer knew of problems and failed to warn ultimate users of those products about the potential for groundwater and drinking water contamination.