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Burden Of Proof Hurt State In N.J.-Exxon Settlement, Some Say

State officials released the details of New Jersey's proposed $225 million settlement with ExxonMobil on Monday, giving us a closer look at one of the largest environmental settlements in the state's history.

Environmentalists complain the company is getting off easy after polluting wetlands for many decades. The settlement focuses on two of Exxon's former refineries, Bayonne and Linden, in northern New Jersey.

There's no question that the refineries were extensively polluting for close to a century. Exxon agreed to a state-supervised cleanup back in the 1990s. But in 2004, New Jersey filed another lawsuit, seeking $9 billion in damages. Exxon dug in its heels and fought back for a decade, until the two sides agreed to a settlement of $225 million.

"What we're looking at is a huge settlement. A huge commitment from ExxonMobil to clean up these sites to safe standards," says Bob Considine, a spokesman for the state's Department of Environmental Protection, which released the terms of the settlement on Monday.

Exxon declined to comment. But environmentalists made no secret of their disappointment.

New Jersey Sierra Club Director Jeff Tittel says, "We think it's the biggest sellout in history."

Tittel thinks the settlement is even worse than he feared, because it covers more than a dozen additional sites in the state that need to be cleaned up.

"If you add the other sites, this could have been at least a $10, if not a $15 billion court case," he says.

New Jersey's case seemed to be going well, he says, with a judge set to rule this year. But Considine, the DEP spokesman, says the state was worried about coming away with nothing.

"The burden of proof is on us to show resource damages," he says. "And it's complicated to do, it's not as easy as people make it out to be."

That didn't stop state officials from aiming high when they filed the case a decade ago. Attorney Steve Picco represents oil and chemical companies for the firm Saul Ewing. He says New Jersey was never going to collect $9 billion in damages.

"They're a victim of their own hyperbole," he says. "Had they not claimed this was a billion-dollar lawsuit, I think everybody would have been happy."

Picco says state officials have never written detailed regulations for how to assess natural resource damages — a point some environmentalists concede has hurt the state in court, and in settlement negotiations.

Bill Wolfe heads the New Jersey chapter of Public Employees for Environmental Responsibility.

"The polluter knows that he's gotta pay something," he says. "But they know that push comes to shove, they have a good likelihood of winning in court. So they've got a stronger hand than the state. And that negotiation results in the 3 cents on the dollar we've seen in the Exxon deal."

That deal still requires approval from a judge. But first, the public has a chance to comment over the next 60 days. Opponents of the settlement say they'll try to challenge it in court.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Joel Rose is a correspondent on NPR's National Desk. He covers immigration and breaking news.