The State of New Hampshire acts to protect its private well owners from MTBE contamination

State of New Hampshire v. Hess Corp., et al.

New Hampshire Superior Court, Merrimack County, Case No. 03-C-0550

In the early 2000s, the State of New Hampshire became aware that it had a serious methyl tertiary butyl ether (MTBE) problem: MTBE was being discovered in groundwater throughout the state and, because of the state’s hydrology and MTBE’s chemical characteristics, the problem had become a serious public health hazard that was likely to increase in severity over time. Compounding the problem, the majority of the State’s citizens rely on water sourced from private wells for drinking water. Protecting those citizens from consuming MTBE-contaminated drinking water required putting in place treatment systems on every private well in the state. The State knew that this would be an incredibly expensive undertaking, but the State had a solution in mind.

The State understood that the MTBE-producing oil companies should bear the responsibility for the clean-up efforts. New Hampshire hired SL Environmental Law Group (then known as Sher Leff) to lead the litigation against the oil companies to hold them accountable for the MTBE cleanup costs. Working with the Office of the Attorney General, SL filed a case (State of New Hampshire v. Hess Corporation, et al.) on September 30, 2003 against more than 20 major oil and chemical companies that had supplied the State of New Hampshire with gasoline containing MTBE. Although filed in state court, the defendants removed the case to federal court in New York where it was made part of In re MTBE Products Liability Litigation being presided over by the Honorable Shira A. Scheindlin.

The State fought hard to return the case to New Hampshire state court, having to make stops in state court with different judges and twice appearing before the State Supreme Court. The case eventually landed in the hands of New Hampshire Superior Court Justice Peter H. Fauver. In fact, knowing the State’s case would require a skillful judicial manager who would have the time to devote to this massive case, Judge Fauver came out of retirement to handle the matter.

By the time trial started in January 2013, the State had settled with all but two defendants, resulting in a collective recovery of approximately $121 million. After the first day of trial, Citgo agreed to the State’s settlement demand of $16 million, which left ExxonMobil as the sole defendant. The SL team, having prevailed against ExxonMobil in a jury trial in another case, was up to the task. After three months of trial, the verdict was handed down in favor of the State, with the jury awarding the state total damages of $816 million. ExxonMobil was found liable for $236 million (or 28.94%) of the jury’s $816 verdict.

Summing up the incredible victory, New Hampshire Attorney General Michael Delaney was quoted as saying: “We have made history with this case.”