New York City sued various companies for alleged low-level ground-water contamination from MTBE, a gasoline additive mandated by federal law and for which there was no safer, feasible alternative. ExxonMobil appealed a judgment of more than $100 million to the U.S. Court of Appeals for the Second Circuit.
The NAM and other business groups filed an amicus brief 4/28/2011 arguing that the city has not proven an injury and that the claim that it might have an injury in the next 25 years was not ripe for court review. The jury found that the MTBE levels would never exceed safe drinking water standards, but nevertheless awarded damages. Our brief warned that the trial judge's redefinition of drinking water would deem such water damaged with the presence of any trace amount of any foreign substance. That ruling would potentially transform every public drinking water supply into a ready-made multi-million dollar lawsuit. Virtually any manufacturing emissions might lead to liability.
We noted that the city was not suffering any present injury in its ability to provide safe drinking water, and its claim that it could suffer injury in the future was based on a series of speculative findings that were not sufficiently developed in fact to be suitable for litigation then. In addition, the city will not be harmed by waiting until its injury can actually be shown, if at all, some time in the future.
On July 26, 2013, the Second Circuit affirmed the trial court's award. It characterized the suit as seeking future damages for a past injury, and refused to find the claims preempted.