The speed with which Arkansas Attorney General Dustin McDaniel and U.S. Attorney Chris Thyer filed a lawsuit against ExxonMobil is unusual, according to pipeline experts InsideClimate News rounded up. No state or federal lawsuits have been filed as a result of the 2010 EnBridge spill in Michigan that sent more than a million gallons of tar sands oil into the Kalamazoo River.
Philadelphia attorney Andy Levine, a former senior assistant regional counsel for the U.S. Environmental Protection Agency, described the legal strategy being pursued in Arkansas as "a head scratcher."
"It makes you wonder what was happening behind the scenes that caused this to ramp up so quickly to full-blown litigation," Levine said.
Levine, the former EPA attorney, said a number of interim steps are usually taken before a lawsuit of this nature is filed.
The first step is asking for voluntary compliance, Levine said. The company and the regulators agree on what remediation is needed and what additional safeguards need to be put into place.
"Then there would be a period of time—longer than three months—where the company would act and regulators would monitor the progress," he said.
If a more formal plan is needed, Levine said regulators usually devise a consent order spelling out what the company needs to do. It is signed by both the regulator and company officials and can be enforced in court, if necessary.
A more aggressive form of compulsory compliance would be a consent decree, Levine said. Here a judgment confirms a voluntary agreement between parties to a lawsuit in return for withdrawal of the case.
Typically, consent decrees are orchestrated ahead of the litigation, Levine said, so by the time the case gets to court both parties have agreed to the terms.
It's usually only after these interim steps fail that regulators resort to litigation, he said.
"Environmental regulators have a wide variety of tools to gain compliance," Levine said. "In this instance regulators have chosen the most aggressive course of action from the beginning."
Politics is surely at least part of the answer. That ExxonMobil ignored regulators calls for it to move improperly stored contaminants from fracking tanks might reflect the company's cavalier treatment of state and federal officials. The lawsuit might be a play to get ExxonMobil to take the state and feds more seriously. It's also, of course, been a rehabilitative issue for McDaniel in the wake of him admitting to an extramarital relationship and withdrawing from the governor's race. He's sure to be eager to keep scoring points by standing up to a rich, multinational corporation many see as a bully.