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. The trial court awarded a judgment of more than $100 million, which was affirmed by the U.S. Court of Appeals for the Second Circuit. ExxonMobil appealed to the Supreme Court, asking the Court to decide (1) whether a claim is ripe when it is predicated on a potential future injury and a mere good faith intent to use the water in 15 to 20 years, and (2) whether the federal oxygenate mandate preempts a state-law tort award that imposes retroactive liability on a manufacturer for using the safest feasible means available at the time for complying with that mandate.
The NAM and other business groups filed an amicus brief 2/14/14 supporting Supreme Court review of this case. We argued that the lower court allowed a suit based on a speculative chain of possibilities, in violation of existing standing requirements that litigants have an injury in fact. Allowing suits in such a case would open the floodgates to similar litigation alleging damage from the use and potential use of safe drinking water at water supply systems around the country. The lower court's ruling effectively redefines the term "drinking water" to mean "pristine water," so that the presence of any foreign substance constitutes a concrete injury.
We also underscored our concern about holding a company liable under state tort law for complying with a federal mandate with the safest feasible means available. The lower court came to this conclusion despite the fact that the jury in this case rejected the City's argument that there was a safer, feasible alternative to MTBE.
The Supreme Court declined to review this appeal on April 21, 2014.