Toxics Law Reporter™ delivers the most comprehensive, authoritative, and objective coverage of significant developments in toxic tort, hazardous waste, and related insurance litigation, all with...
Feb. 23 — Exxon Mobil's effort to persuade the U.S. Supreme Court to review a state court $236 million ground water contamination verdict got a boost Feb. 22, when the Washington Legal Foundation filed an amicus brief arguing the state case was preempted by federal law.
The Washington, D.C.-based foundation amplified Exxon's arguments in a Supreme Court petition filed in January, contending the company was hamstrung by New Hampshire's claims that the company had a duty to avoid polluting the state's waters with methyl tertiary butyl ether—a now-banned gasoline additive. MTBE was the only feasible means to meet federal gasoline oxygenation mandates in the 1990s, and the state-law duty conflicted with that mandate, the foundation contends.
The state case amounts to “jackpot justice,” according to a Feb. 22 statement by WLF chief counsel Richard Samp.
“For 15 years, oil refiners added MTBE to their gasoline because federal environmental officials required them to do so,” Samp said. “Yet, because they obeyed federal law, these refiners now face billions of dollars in legal claims arising under state law.”
The New Hampshire court wrongly discounted the “factual impossibility” of complying with the state duty and the federal mandate, the WLF said. WLF supports policies in favor of business interests, according to its website.
WLF's preemption argument underscores a broader theme in Exxon's petition that may pique the court's interest. The company contends the “trial by formula” facilitated an “abstract, aggregate, statewide case” that denied its right to present an individualized defense, according to the petition.
New Hampshire relied on its role as protector of that state's waters to justify statistical approximations used to prove injury and damages in private and public water statewide, an approach that skirted Supreme Court cases on the proof required in class actions, Exxon claims.
New Hampshire's reply to the petition is due March 23, according to court records.
To contact the reporter on this story: Steven M. Sellers in Washington at firstname.lastname@example.org.
To contact the editor responsible for this story: Nicholas Datlowe at email@example.com.
The amicus brief is available at http://src.bna.com/cNM.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)