Mark Chenoweth '99 on New Hampshire's First Jackpot Justice Verdict

New Hampshire has played proud host to many firsts: the first-in-the-nation primary, the first American in space, and the first free public library, to name a few. But New Hampshirites should not be proud of the latest first: the state’s first jackpot justice verdict — $236 million.

New Hampshire officials courted this injustice by hiring out-of-state plaintiffs’ attorneys to file a massive lawsuit on a contingency-fee basis. They alleged that leaking underground storage tanks contaminated local groundwater with the chemical MTBE. But rather than sue gas stations that owned the leaking tanks (and violated EPA rules), the state’s hired guns went after deep-pocketed oil companies (that were following EPA rules). The lawyers calculated that they could win a large payday, regardless of those companies’ actual responsibility, by putting deep pockets and pollution claims in front of a jury.

Their plan worked, which raises the question: if pollution occurred and oil companies put MTBE in their gasoline, why is the verdict unjust? For starters, EPA specifically approved adding Methyl Tertiary Butyl Ether to comply with federal Clean Air Act mandates for cleaner-burning gasoline. The agency presumably decided the benefits of reducing air pollution and replacing harmful octane enhancers like lead outweighed the water pollution risk. If fuel manufacturers wanted to keep supplying cleaner-burning gasoline, they had little option but to add MTBE and allow stations they did not own to store the gas.