In a unanimous opinion, the Vermont Supreme Court ruled last week that the state had missed its chance to sue a slew of oil refiners over generalized claims of groundwater contamination.
The ruling was a significant setback for Attorney General Bill Sorrell, who two years ago accused ExxonMobil and 28 other companies of knowingly polluting state waters with the gasoline additive MTBE. A similar lawsuit filed a decade earlier in New Hampshire won that state a $236 million jury verdict from ExxonMobil and a $90 million settlement from two dozen other companies.
In the Vermont case, the oil companies argued that the state had known about the perils of MTBE since at least 2005, when the legislature banned the chemical, and therefore had exceeded a six-year statute of limitations. A trial court judge agreed and dismissed the blanket claim in January 2015. The state appealed, but in Friday’s decision the Supreme Court upheld the dismissal.
Sorrell’s suit drew significant scrutiny last year due to the unusual manner in which it came to be filed. By the attorney general’s own admission, representatives of the Texas law firm Baron & Budd handed him an envelope filled with $10,000 worth of checks directed to his reelection campaign at a December 2013 fundraiser. They subsequently asked him to sue the oil refiners over MTBE contamination and offered their services to the state.
Within months, Sorrell’s office assented. It hired Baron & Budd and three other firms as outside counsel, guaranteeing them 25 percent of any verdict or settlement — potentially tens of millions of dollars. Another of the outside firms, the Law Office of L. Michael Messina, brokered the deal between Sorrell and Baron & Budd, according to the New York Times, and also contributed to the attorney general’s reelection campaign.
Following press coverage of the arrangement — and a complaint from a Vermont Republican Party official — Gov. Peter Shumlin appointed an independent attorney last May to investigate Sorrell’s actions. The attorney, Tom Little, and the panel that supervised him eventually referred that complaint to law enforcement authorities. Federal Bureau of Investigation agents met with the Vermont State Police in January to discuss the matter but would not say whether they would pursue it.
Sorrell, who is not running for reelection, has maintained his innocence.
While a setback for the state, the Supreme Court’s Friday decision does not put an end to the case. The trial court judge, Mary Miles Teachout, ruled last year that the state could still amend its complaint to focus on specific sites where it had discovered contamination within the past six years.
Assistant Attorney General Scot Kline said this week that it intends to do so.
“We had hoped for a better outcome in this appeal, but the decision is fairly narrow and the case will go forward. We plan to file an amended complaint,” he said in a written statement. “The number of sites or wells still at issue, we allege, is in the hundreds in the state.”
ExxonMobil did not respond to a request for comment, but a company spokesman told the trade publication Law360 that the suit was “untimely” and “unnecessary.”
“MTBE has not been used in Vermont since 2005, almost a decade before the state filed this lawsuit,” the spokesman, Bill Holbrook, said. “ExxonMobil takes seriously its responsibility to conduct business in an environmentally sound manner, and we work hard to protect the health and safety of communities where we operate.”
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Vermonters for a Clean Environment tried to help residents of the Whispering Pines Mobile Home Park in 2005, when the owner J.P. Carrara and Sons filed with Act 250 to increase the blasting loads at their aggregate quarry next to the mobile home park, and deepen the quarry more than 100 feet. The mobile home park’s well was contaminated with MTBE, which was found to have leaked from two neighboring businesses, coincidentally around the time the quarry began blasting. The state installed a “temporary” stripper system in the mobile home park’s water supply and 15 years later it was still in use. Lots of health issues and cancer among the residents. The park owner refused to fix things, told residents if they didn’t like it they could get out. People had sewage in their front lawns, stories of it overflowing and going down the halls of their homes. Tap water was full of dirt. The situation was so serious, the AG’s office got involved. Instead of helping, AG Wendy Morgan took the side of the quarry/mobile home park owner, against the residents. Instead of suing over MTBE then, the state approved the quarry expansion, and delisted the water supply because some residents relocated so it fell under the threshold. The state continued to spend money to supply the residents with bottled water. Seven Days reporter Ken Picard did a number of excellent stories about it. Tim Ashe worked for CVOEO and helped the residents form an association. Long and sad story with no positive resolution except for the quarry owner. The AG’s office didn’t just fail the mobile home park residents, they made things worse for them. But then, the AG came after me this year, so I guess they don’t think much of helping people.
The notion that there is a “statute of limitations” on something like MTBE contamination is totally asinine, given the fact that the chemical itself doesn’t have a similar limitation in it’s ability to poison and kill people. And the statement from the ExxonMobile public relations drone Bill Holbrook [“ExxonMobil takes seriously its responsibility to conduct business in an environmentally sound manner, and we work hard to protect the health and safety of communities where we operate”] is Orwellian, given that company’s long history of screwing and poisoning communities, people and the planet. Seriously Bill, I know you’re paid to say such tripe, but to expect people to actually believe it is laughable. That kind of PR relies on a dumbed-down populous incapable of critical thought. You can fool some people some of the time, but you can’t fool all the people all of the time. I have been boycotting ExxonMobile since their 1989 Exxon Valdez oil spill disaster. The way they handled those lawsuits, dragging them out for years and paying a reduced pittance settlement was absolutely shameful. And now we find out recently that Exxon scientists knew in the 70’s that fossil fuels cause climate change but covered it up. ExxonMobile works hard to protect it’s bottom line, and does so at the expense of the health and safety of people everywhere. Even if they had been forced to pay a big settlement to Vermont, they would have been able to claim it as a business expense, so it wouldn’t have had too much of an effect on the company in the long run. So they get a free pass to poison people, and then respond by saying they really care about us so much. It’s the height of arrogance from a company with no conscience.
I referenced Seven Days’ Ken Picard’s reporting in my previous comment. It is excellent reporting, especially the third story below which includes the details of the AG’s involvement and the MTBE. He really deserves an award for this reporting.
http://www.sevendaysvt.com/vermont/tenants…
http://www.sevendaysvt.com/vermont/ms-fix-…
Seven Days Cover Story
http://www.sevendaysvt.com/vermont/home-al…
This article is about the Environmental Court decision.
http://www.sevendaysvt.com/vermont/court-o…
The mobile home park residents were represented by a former Federal Prosecutor who did the case pro bono. An Environmental Engineer who worked for the company that developed MTBE testified pro bono, too. They recognized the case was a serious environmental justice issue.
The Environmental Court decision was appealed to the Vermont Supreme Court, which affirmed the lower court’s approval of the quarry expansion and eliminated all the good conditions the Act 250 District Commission put on the permit.
It is the story of how Vermont’s Attorney General dealt with MTBE contamination in 2005 and 2006. Rocks won, people lost. In 2008 VCE put out a report, see #1 of this file for photos of the MTBE stripper
http://www.vce.org/VCE_ANR_Ten_Stories.pdf
Sorrell: Not only incompetent, but corrupt.
My impression of Mr. Sorrell will be determined by how he handles the criminal investigation of the Brattleboro Retreat. If he comes out on the side of the people and recovers public funds while punishing those who stole from hundred of mental health and psychiatric patients at the hospital over a decade which the federal Complaint allegations included, then I will be very satisfied with Mr. Sorrell’s performance. Vermont Attorney General Sorrell has a golden opportunity to show the people of our great state that he is truly on the side of the people by how he handles the Retreat matter which is now in his hands. History will judge all of us so there is no need for us to make judgments of others. I am grateful to Mr. Sorrell for the criminal investigation of “broad scope” which has now entered its 10th month. http://www.brattlebororetreat.info/
Bad news. The State of Vermont turned it’s eyes on MTBE for years and are just as much to blame for MTBE contamination.
Sorrell : When fat envelopes need priority over justice.