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Judge: Environmentalists, Lesniak Can’t Intervene in Exxon Mobil Case

Decision asserts DEP’s involvement in case creates ‘presumption of adequate representation’ and that Democratic senator isn't needed

bayway exxon refinery
Credit: Stephen Nessen/WNYC
Bayway ExxonMobil refinery

The state’s efforts to recover damages from Exxon Mobil for pollution at three refineries and other sites owned by the company may be settled quicker than anticipated.

In a 35-page decision handed down yesterday, Superior Court Judge Michael Hogan rejected efforts by several environmental groups and a prominent legislator to intervene in the 11-year-old case as causing “further undue delay.’’

The tentative settlement is opposed by many, because the proposed $225 million Exxon would pay is a fraction of the $8.9 billion the state originally sought during lengthy litigation. A hearing on the settlement is scheduled before the court next week.

Ostensibly, the $225 million would be used to restore more than a thousand acres of marshes, wetlands, and other lands harmed by decades of refinery operations, primarily in Linden and Bayonne. But a large part of the money may not go for that purpose.

Only $50 million would be used for restoration, while up to $40 million will go to an outside law firm hired by the state to litigate the case. The rest could be diverted to the general fund to balance the current state fiscal year budget, which began July 1.

In denying intervention, the judge ruled both the environmentalists and Sen. Raymond Lesniak (D-Union) fail to meet various tests enter the case at this late date. Their interests, he added, would be adequately represented by the New Jersey Department of Environmental Protection, which shares the same goals of restoring natural resources damaged by pollution.

“Previous courts have held where interveners and a party in the suit share the same goal, a presumption of adequate representation arises,’’ the court said.

The environmentalists contested that view and vowed to press on trying to scuttle the settlement.

“It is clear from the proposed settlement that Gov. (Chris) Christie and New Jersey Department of Environmental Protection (DEP) do not represent the public’s interest,’’ said Debbie Mans, NY/NJ Baykeeper, one of the groups that sought to intervene in the case. “Thousands of residents objected to the settlement, yet this decision leaves them voiceless.’’

Margaret Brown, an attorney for the Natural Resources Defense Council, agreed. “This big polluter should be held accountable for its dirty legacy, and called on to restore natural resources destroyed and damaged to their former glory, once and for all,’’ she said.

Both the DEP and Exxon sought to block the intervention by the environmentalists and Lesniak.

“This fight is far from over,’’ Lesniak said. He plans to file another brief, which would allow him to challenge the settlement on appeal, if it’s approved by the court.

Meanwhile, some lawmakers are seeking to put a constitutional amendment on this November’s ballot that would ensure money from natural-resources damage suits is used for that purpose. It is unclear, however, whether legislators will return and pass the measure, SCR-163, before an early August deadline.

Hogan stressed in the decision that he was not deciding the merits of the tentative deal. “At this stage, court does not pass judgment on the fairness and reasonableness of the proposed settlement.’’

In defending the settlement, the Christie administration noted that Exxon is still required under previous orders from the DEP to clean up contamination at the refineries and other sites, which could cost hundreds of millions of dollars.

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