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Failure of R.I. public nuisance claims affects N.H. MTBE suit

In New Hampshire, Merrimack Superior Court Judge Philip Mangones has kept alive the state's suit against oil companies that produced the gas additive MTBE, but he has followed the Rhode Island Supreme Court in rejecting the state's public nuisance claim.

From the Concord Monitor, "State right to sue oil companies jointly":

In the state's biggest-ever environmental case, the attorney general's office is suing producers of MTBE and gasoline containing the additive, saying they should foot the bill for cleaning the thousands of wells and drinking water supplies across the state into which the chemical has seeped, in some cases making the water undrinkable.

The case names 26 defendants - companies such as Exxon Mobil, Irving, Citgo, BP and Hess - some of whom filed motions to dismiss four of the seven counts against them. Mangones denied their requests on three counts but dismissed one about public nuisance.

Citing a Rhode Island lead paint case, Mangones said public nuisance does not apply because the manufacturers were not in control of the product at the time it allegedly caused harm.

The story notes that D.C. attorney Rick Wallace, representing Shell and Chevron, is heartened by the dismissal because, "The state relied principally on this claim for its contention that it can demand payment for what it calls 'the cumulative effect' of MTBE 'statewide' without having to prove that it incurred damages from particular causes at specific sites." The other claims will require proof that a company contributed to a specific incident of contamination.

The original suit was filed in 2003 by Attorney General Peter Heed with the support of Gov. Craig Benson (both Republicans), and current AG Kelly Ayotte announced in January she would continue the suit. (Ayotte succeeded Heed after he resigned in 2004 over allegations of improper touching.)

Links and MTBE-related history below ...

The history of MTBE litigation is another case where justice has been sacrificed to an environmental cause celebre: The government demanded increased oxygenation in fuels and then punished the companies that complied.

In May 2008, oil companies agreed to settle litigation in California for $423 million, satisfying more than 500 lawsuits by water suppliers and users in California and 19 other states over groundwater contamination. (Los Angeles Times story. Michael Krauss at POL, "MTBE Settlement Despite Lack of Causation and Fault.")

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.