UNION COUNTY, NJ — An 11th hour effort by Democrat State Sen. Ray Lesniak and a contingent of environmental groups to intervene in the proposed $225 million settlement the state forged with ExxonMobil was denied by a superior court judge Monday.
However, Lesniak is not giving up quite yet. In fact, he has come up with another way to try and stop the state from accepting a pennies on the dollar settlement from ExxonMobil; one in which the state previously argued should be as high as $8.9 billion.
Lesniak said Monday he fully intends to keep on fighting for the residents of the New Jersey by filing an “amicus brief,” or friend of the court motion, in an effort to prevent the state from settling for the pennies on the dollar settlement.
An amicus brief, Latin for “friend of the court,” is someone who is not a party to a lawsuit but has strong interest and can offer information that bears on the case.
The amicus brief will give the senator the potential to appeal the decision once the case is settled. In other words, it will give Lesniak the right for the court to decide if he has standing during an appeals process.
Amicus Curiae briefs, according to the Tech Law Journal, are commonly filed in appeals concerning matters of broad public interest and may be filed by private members of the public or the government. This type of brief educates the court on points of law that are in doubt, gathers and organizes information, or raises awareness about some aspect of the case that the court might otherwise miss.
The person is usually, but not always, an attorney, and has some knowledge or perspective that makes his or her views valuable to the court. An amicus walks a fine line between providing added information and advancing the cause of one of the parties. For instance, an amicus cannot raise issues that the parties themselves do not raise, since that is the task of the parties and their attorneys. An amicus can file briefs, argue the case before a judge and introduce evidence.
Lesniak said it is critical that any challenge he makes legally include consideration of the 16 Exxon facilities, 15 of which have not been cited with any site-specific damage assessments, along with 800 retail gas stations owned or previously owned by the oil company based in Houston, Texas.
Superior Court Judge Michael Hogan, the same judge who is deciding whether to give his stamp of approval to the multi-million proposed settlement the state and ExxonMobil agreed on, said Monday morning that approving a motion to intervene at this point would “unduly delay” wrapping up the 11-year-old lawsuit.
Hogan said Monday that Lesniak and the environmental groups, N.J. Sierra Club, New Jersey and New York Baykeeper, Clean Water Action, Delaware Riverkeeper, Environment New Jersey, Natural Resources Defense Council and New Jersey Audubon, failed to prove the state Department of Environmental Protection “abandoned their obligation to serve the public interest when it came to settling the case.”
Lesniak, who knew the motion to intervene was “a long shot,” argued in the brief he submitted to court July 8 there was a “fundamental flaw” by the state when they failed to represent thousands of New Jersey residents who lived or now live in the vicinity of the ExxonMobil Linden Bayway and Bayonne facilities. He also pointed out these same residents lost the use of natural resources destroyed by Exxon over the course of close to 100 years.
“These are New Jersey citizens who have a direct interest in the natural resources destroyed by ExxonMobil and have looked to me to be their spokesperson to challenge the proposed settlement,” he said in the motion, noting that the DEP had the “fiduciary obligation” it advocated for over ten years and then abandoned.
Lesniak also pointed out that “ExxonMobil made sure there are no non-settling parties to challenge the settlement” by entering into agreements with potential third parties, including the Linden Roselle Sewerage Authority and New Jersey Turnpike.
The senator stressed that as a result of a previous agreement made between the NJDEP and ExxonMobil, the oil company has to remediate the sites involved, but that does not involve compensating residents for loss of that benefit.
“When the state suddenly and without explanation abandons its position that fair and adequate compensation for ExxonMobil’s damage to the natural resources is $8.9 billion, the citizens who have been denied those natural resources are entitled to have a spokesperson speak to the court on their behalf,” Lesniak said in his motion to intervene.
The senator also hinted in the motion the sudden settlement of $225 million and not $8.9 billion “may engender some suspicions about collusion.” Lesniak explained there is a rule of law that limits intervention in environmental lawsuits “to cases of collusion between settling parties.”
He cited as an example a New York Times article dated Feb. 27, 2015, in which it was reported Exxon contributed $500,000 to the Republican Governor’s Association in May 2014 when New Jersey Governor Chris Christie was chairman.
“My concern with the proposed consent judgement is that it constitutes a sell-out by the NJDEP of its fiduciary obligations under the Spill Act, and abandonment of the positions that it successfully advocated for in this case for more than ten years,” the senator added.
On the other hand, the state argued that intervention by Lesniak and the environmental groups was “unwarranted” and would “serve to complicate and lengthen an already old and complex case.”
Hogan agreed, using almost identical language .
Also of critical concern to Lesniak and the environmental groups, if Hogan approves the settlement, is that only $50 million of the $225 million settlement is actually guaranteed to cover restoring more than 1,000 acres of marshes and waterways damaged by operations at the ExxonMobil refineries in Linden and Bayonne. The remainder, according to current law, can be applied to the 2016 fiscal budget.
Although the legislature is considering a resolution preventing the state from applying any monies to the general budget from natural resource damage lawsuits, it is questionable whether the measure will be approved in time to get it on the ballot in November as a constitutional amendment.
Despite the valiant last ditch effort to intervene, Hogan made it clear in his ruling Monday that neither the NJDEP or ExxonMobil “demonstrated collusion, nonfeasance, or lack of notice of the opportunity for public comments.”
Jeff Tittel, director of the New Jersey Sierra Club, said the state was “not representing the public interest.”
“They are representing Christie’s interest to get this done as quickly as possible in order to get money to balance the budget,” he said Monday.
Meanwhile, in April, in an ExxonMobil blog, the oil company’s general counsel, Jack Balagia, provided a different perspective to the $8.9 billion dollar proposed settlement number.
“To most people $225 million is a lot of money. But from all the news reports and editorials criticizing the ExxonMobil settlement with New Jersey over natural resources at the Bayway and Bayonne refineries, you wouldn’t know it,” said Balagia.
ExxonMobil’s general counsel points out that while the $8.9 billion number has been batted around, no one explains how that figure was calculated.
Balagia explained that damage claim figure actually came from a report state officials commissioned from Stratus Consulting after New Jersey launched its case against ExxonMobil in 2004.
“Stratus is the same firm that prepared the discredited damage report in the notorious litigation between the Ecuadorian plaintiffs and Chevron that has been the subject of much publicity these past several years,” he explained, adding the report, in ExxonMobil’s case, “has no scientific or economic foundation, nor does the $8.9 billion number it generated.”
Balagia said among the problems with this report is that Stratus calculated damages going back to the 1870s, “a full century before passage of the New Jersey law that is the basis of the state’s claims.”
ExxonMobil’s general council said even federal law does not permit damages to be assessed for periods prior to 1980.
“The Stratus report also failed to establish any injury to any natural resources at the refinery sites that was actually caused by discharges of hazardous substances,” he said. “This is a critical omission,” he added, noting Stratus “instead assumed, inaccurately, that any detectable level of contamination results from complete injury using thresholds even lower, in many instances, than background levels of contamination found throughout New Jersey and the rest of the country.”
The general counsel also pointed out this report failed to take into account that most of the land at the two sites is not on public property, but “on lawfully developed private property.” Balagia also mentioned that the majority of both sites had no natural resources “at all” because they were occupied by buildings, roads and other facilities permitted by the state and necessary to operate the refineries.
“And that is how a claim for $8.9 billion materializes out of thin air,” the general counsel said, adding “so if the $8.9 billion figure has no merit, why did earlier administrations in New Jersey make that claim after filing the lawsuit?”
“Well, unfortunately, it is not uncommon for people to file lawsuits and claim huge amounts of money in order to force a settlement, and in this case it resulted in the largest environmental settlement in New Jersey history,” said Balagia of the $225 million the state and oil company agreed on.
“But no one should delude themselves into thinking that the state’s $8.9 billion damage claim was anything more than a high stakes negotiating tactic, devoid of any scientific or economic legitimacy,” ExxonMobil’s general counsel added.