While a New Jersey judge approved the state's $225 million settlement with ExxonMobil, he expressed concern over delayed cleanup at a polluted creek, which a state lawmaker says could open up a route to appeal the decision.
Democratic state Sen. Raymond Lesniak said he believes Superior Court Judge Michael Hogan's concerns could give him an opportunity to appeal the judgment, ultimately with the goal of getting more money for the state but also starting the cleanup of Morses Creek in northern New Jersey. The creek is used in refinery operations to provide cooling water at the Linden, New Jersey, site.
The agreement calls for delaying remediation at the site until refinery operations cease, which Lesniak says could be as late as the year "3009." Currently the refinery is owned by Phillips 66.
Lesniak said he believes that deferment violates New Jersey law and is hopeful an appellate court will agree with him.
"The whole kahuna is gonna ride on that," he said. "That's a big kahuna."
Hogan said the deferment gave the court pause "though not fatally."
He went on to explain that the deal calls for delaying remediation more specifically until operations no longer require 30 million gallons of water per day to be released into the creek. Technology does not exist that would allow the refinery to operate without using at least 30 million gallons of non-contact cooling water, Hogan said, adding once that technology is developed, either the refinery owner will voluntarily adopt the new technology, or the state will cease to issue a permit. At that point, New Jersey will have a right to require ExxonMobil to clean up the site.
Lesniak said he has not formally filed an appeal yet but expects to soon. He's expected to be joined by environmental groups, including New Jersey Sierra Club, Clean Water Action and Environment New Jersey among others, who may file a separate appeal. The environmental groups will first need an appeals court to grant them permission to intervene in the case in an earlier, separate appeal.
New Jersey sued ExxonMobil for natural resources damage in 2004. The idea was to hold the company responsible not only for cleaning up polluted areas — which include two oil refineries in Bayonne and Linden and other sites and retail gas stations across New Jersey — but to compensate the public for the alleged harm to groundwater, surface water and other ecological resources.
Gov. Chris Christie, a Republican running for his party's presidential nomination, has hailed the deal as the nation's second-largest of its kind against a corporate polluter.
"This is an important settlement for the citizens of New Jersey and for our environment, one which came about because this administration aggressively pushed the case to trial," Acting Attorney General John Hoffman said.
Environmental groups and Democrats, a majority in the state Legislature, criticized the settlement and said it is just a fraction of the billions of dollars New Jersey should have recovered.
Under law, about $50 million of the settlement will go toward site remediation. Another roughly $50 million will go toward the state's private legal costs. The rest is slated to go into the general fund.
Environmentalists and critics of Christie contend the deal was a giveaway for a major company.
Hogan presided during 66 days of trial from January 2014 to September 2014 that included dueling damage estimates from experts hired by the state and Exxon. He said he was just beginning to work on a ruling when he received notice that the state and Exxon had reached a settlement in February 2015.
His decision to approve came after a 60-day public comment period. He said the vast majority of more than 16,000 public comments opposed the settlement.
Despite Lesniak's and the groups' expected appeals, Exxon spokesman Todd Spitler said the settlement brings the case to a "fair and reasonable conclusion."
"Both parties will now have the benefit of the certainty and finality that comes from this settlement," he said.