We represent the State of New Hampshire in a groundwater pollution case against a score of oil companies, including Exxon-Mobil Corp., Irving Oil Corp., Shell Oil Co., Amerada Hess Corp., and others. New Hampshire has experienced widespread contamination of its water supplies with Methyl Tertiary Butyl Ether ("MTBE"). The State’s lawsuit alleges that the oil companies added this chemical oxygenate to their gasoline even though they knew that MTBE would contaminate groundwater. The suit also names as a defendant the primary MTBE manufacturer, Lyndondell Chemical Co. MTBE has numerous pernicious properties that spell trouble for groundwater, including a Houdini-like ability to escape from underground fuel tanks, a resistance to biodegradation, a rapid dispersal in groundwater, and a turpentine-like taste at levels of 1 ppb or even lower. Cleaning up MTBE is costly. From 1995 to 2006 the Clean Air Act required use of an oxygenate in gasoline in some areas of the country to reduce smog. The case alleges, however, that oil companies knew of MTBE's harmful characteristics for groundwater when they made MTBE their oxygenate of choice rather than ethanol. New Hampshire became the first State to bring an MTBE case when the Attorney General filed this legal action in 2003. The case seeks cleanup costs and other remedies under legal doctrines of product liability, public nuisance, and New Hampshire's oil spill statute, among others. The defendants improperly removed the case to federal court, where it was consolidated in a New York City court with over a hundred other MTBE cases. The State fought the removal in the Second Circuit Court of Appeals and, in May, 2007, the court of appeals ruled in our favor. The case has now been remanded to state court in New Hampshire and is moving toward trial.
The New Hampshire Superior Court’s rulings in the case thusfar include the following:
Partially because of New Hampshire's experience with severe MTBE contamination of its groundwater, both of New Hampshire's Senators voted against a disastrous energy bill in 2003 that had passed the House. This bill was President Bush's number one legislative priority and would have set back our nation's energy policy decades with numerous fossil fuel subsidies. The bill included a so-called "MTBE liability waiver" to protect industry from having to pay for its MTBE pollution under product liability law. The primary manufacturer of MTBE is located in the House district that, at the time, was represented by Congressman Tom DeLay. The Senate vote was extremely close.