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Vermont’s Statewide Methyl Tertiary Butyl Ether Claims Time-Barred

In an opinion that reinforces the importance of the statute of limitations to defendants, he Vermont Supreme Court upheld a trial court’s decision that the State’s claims of a “generalized injury” from methyl tertiary butyl ether (“MTBE”) groundwater contamination were time-barred under Vermont law. See State of Vermont v. Atlantic Richfield Co., 2016 VT 61 (May 27, 2016).  The State brought suit in 2014, alleging that gasoline refiners and marketers were liable for knowingly distributing gasoline containing the oxygenate, which then leaked into groundwater across the state.

Defendants argued in a motion to dismiss that the State was aware of any alleged injury to groundwater when it enacted its MTBE ban nine years prior to bringing the suit, and therefore the State’s claims were outside of the six-year statute of limitations. The State claimed a 1785 statue that excludes claims relating to “lands belonging to the state” from the six-year limitations period applied here because the State holds groundwater in public trust. The State also argued that its general claims arising under a 2008 statute that establishes a state policy to protect groundwater resources are not time-barred because that statute became effective less than six years before Vermont filed its complaint.  In January 2015, the trial court rejected the State’s arguments, and dismissed the State’s claims to the extent they alleged a generalized injury to Vermont’s groundwater system as a whole.   

The Court reaffirmed the trial court’s decision on interlocutory appeal. It held that the state lands exception has been consistently interpreted to apply only to claims of ownership of state property, not to generalized claims of injury. The Court also explained that, absent a showing of legislative intent, a statute cannot be read to include “unlimited retroactive application to conduct and injuries that occurred . . . decades prior to its enactment.” The State, the Court found, could make no such showing here.

The Court left open questions that were not part of the appeal, including whether the state-lands exception could apply to specific instances of groundwater contamination, and whether the continuing tort doctrine saves the State’s claims from the statute of limitations at specific sites.

This article was with the assistance of Matthew Schneider.

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 218


About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Graham C. Zorn Environmental, Toxic Tort, Products Liability Litigation Attorney Beveridge & Diamond Washington, DC

Graham Zorn focuses his practice on environmental, toxic tort, and products liability litigation.

His representative experience includes extensive work on a series of complex products liability and toxic tort cases related to alleged groundwater, and litigation over lead in drinking water. He has represented individual businesses, trade associations, and municipalities in litigation, as well as in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal environmental statutes. He also counsels domestic and international clients on a variety of product compliance, market access, and enforcement matters. In particular, he is well versed in reporting requirements related to conflict mineral use in electronics, medical devices, and consumer products.

Graham obtained his law degree from Vermont Law School where he was a Head Notes Editor for the Vermont Law Review and a student clinician in the Environment and Natural Resources Law Clinic. During law school, he clerked at the Wisconsin Department of Justice in the Environmental Protection Unit where he assisted in defending state agencies in a citizen suit alleging Clean Air Act new source review violations.

Before law school, Graham worked on domestic social policy, with a focus on health care, and environment and energy policy for U.S. Senator Russ Feingold. He obtained his undergraduate degree from Carleton College with a major in Geology.