Exxon Case: We Lost but the People Won

Today the Appellate Court released their decision on NJ Sierra Club vs NJDEP on the Exxon settlement. They have ruled against our appeal based on merit but had a split decision on standing and right to appeal. The court decided that the Sierra Club, and the other environmental groups suing, have standing enough to appeal this case. By appealing the case, this decision comes after the constitutional dedication of settlement funds. This means that the money will not be able to be diverted for other purposes.

“We’re disappointed that the Appellate Division has ruled against us on the Exxon case. Although it’s not a surprise, we still believe that they are wrong. The Appellate Division tends to side with state agencies such as the DEP in this case, who have presumption of validity. However, what the Christie Administration did was so bad, we believe the courts should have seen through this sell-out of the environment and the taxpayers. By settling this case, they saved Exxon billions of dollars at the expense of the taxpayers and violated New Jersey law. Since the beginning, we have been doing the job that the Christie Administration should have been doing; standing up for the people and environment of New Jersey,” said Jeff Tittel, Director of the New Jersey Sierra Club.

In this settlement, out of the $225 million: $50 million is going towards legal fees. That means no monies will go to restoration or the environment and $175 million will go to the General Fund. State officials reported that this deal is in addition to Exxon spending about $260 million through 2014 to clean up the contaminated sites under a 1991 agreement. However, that was a separate ruling and not part of this case. It is clear that the Christie Administration wanted to settle this case fast.

“Although we lost the case, we still won. We were able to stop the settlement money from being stolen by the Christie Administration for budget holes or tax cuts. We were still in court challenging this decision when the constitutional dedication passed. Now that the case has been decided, the money will go towards where it supposed to go: to the environment and communities impacted by Exxon’s pollution. The people were victimized twice; first by the pollution and then again by Christie settling for pennies on the dollar so he could steal the funds,” said Jeff Tittel. “We sued so that Christie couldn’t steal the $175 million out of the $225 million settlement. Although we didn’t win this court case, we still have a victory for the environment because the monies will go where they’re supposed to go.”

Under this deal, Exxon does not have to clean-up sites to the extent that they had to before. That is a difference between site restoration and remediation. In the original court case, Exxon would have had to restore the site to its original conditions before the spill. They would have to remove all the oil and chemicals and then restore the wetlands to the state. Now Exxon can just cap the site, which is not really a clean-up.

“There was a split decision on the appeal and the court did rule that we had the right to appeal the Judge’s decision. However, we did not win on Judge Hogan’s decision that we didn’t have standing to intervene. We believe that the court is wrong because environmental groups and citizens do have a right to intervene. We will be appealing this part of the case to the Supreme Court. If we win, it could reopen the whole case and potentially get more money for the people,” said Jeff Tittel. “Had that decision been held, it would have set a bad precedent, making it difficult for environmental groups to challenge settlements based on the Spill Act. We want to thank our attorney for making such a strong argument on the need for us to intervene in this case.”

The Judge accepted the $225 settlement instead of the original $8.9 billion for damages at the Bayonne and Linden refineries, and then 16 additional contaminated sites along with over 800 gas stations were added to the case. Under this deal, Exxon does not have to clean-up sites to the extent that they had to before. The settlement now includes additional industrial sites in Paulsboro, Flemington and Pennington oil depots, Edison Research Lab, Linden oil depot and many other contaminated sites around New Jersey.

“We challenged the DEP in this dirty deal because polluters need to clean up their mess and pay for the damages they’ve done. We were not part of the case when it was originally filed because the DEP was doing their job then. It wasn’t until Governor Christie decided to become a national politician that he started raising money for the RGA. The people of New Jersey have been victimized twice- first by the pollution and second by the state settling less than $225 million for natural resource damages estimating more than $8.9 billion at two refineries and then adding 16 additional sites, and over 800 gas stations. What is more outrageous is by not cleaning up their mess, Exxon will get another billion-dollar tax break,” said Jeff Tittel.

The Paulsboro Refinery is a 950-acre site that has contaminated wetlands and tidal marshes and clean up there alone could cost billions. There was a 135,000-gallon oil spill and nine additional spills as well contaminating 63 acres of the aquifer and billions of gallons of groundwater. In our own files we’ve found information on two gas stations, the Linden Exxon lab, and the Paulsboro Exxon Lube site.

“We still believe that this settlement clearly violates the Spill Act because it requires clean-ups to include restoration; however, with this deal Exxon does not restore 1,500 acres of wetlands; and will just cap them and pave them over. This is more than an abuse of power it is a shameful manipulation of the judicial system,” said Jeff Tittel. “The settlement denies the public right to comment on the 15 additional sites added to the case, which also violates the Spill Act. The settlement also breaks Public Trust Doctrine.”

However, among the state’s environmental groups there were really over 70,000 submitted opposing the settlement. The public is outraged about this sellout by the Christie Administration of the environment and taxpayers. The public understands that this is a bad deal and understands the DEP is siding against the public and against the environment. One of the reasons we wanted to intervene is so all of the 70,000 comments will not only be included in the record, but for the Judge to acknowledge how important they are.

“The Appellate Division often sides with governmental agencies, making their final decisions disappointing, but not unexpected. Although we have the Spill Act on our side, the courts were still hesitant to separate themselves from state agencies. We believe we should have won the case because Christie sold out the people of the state by settling for so little. Now that we’re looking to appeal to supreme court, the Murphy Administration needs to weigh in. We have a new Attorney General and a new DEP, and we hope they see the importance of making Exxon pay for their pollution, rather than settling for pennies on the dollar,” said Jeff Tittel, Director of the New Jersey Sierra Club.