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Stated v. Exxon Mobil Corp.

United States District Court, D. Maryland

October 24, 2018



          Hon. Ellen L. Hollander United States District Judge.

         The State of Maryland (“State” or “Maryland”) filed a 168-page Complaint in the Circuit Court for Baltimore City against approximately sixty-five defendants, seeking to redress the alleged contamination of the State's waters with methyl tertiary butyl ether (“MTBE”), an oxygenate additive that was commonly blended into gasoline in the 1980s and 1990s. ECF 2 (Complaint). Defendant Atlantic Richfield Company (“ARCO”) removed this case to federal court. ECF 1. Thereafter, the State filed a Motion to Remand (ECF 283), supported by a memorandum (ECF 283-1) (collectively, “Remand Motion”), and many exhibits. Defendants have filed an opposition to the Remand Motion (ECF 299), along with numerous exhibits.[1] The State has replied. ECF 303.[2]

         No hearing is necessary to resolve the Remand Motion. See Local Rule 105-6. For the reasons that follow, I shall deny the Remand Motion.

         I. BACKGROUND

         A. MTBE and Water Contamination

         MTBE is a chemical compound made by combining methanol (a derivative of natural gas) and isobutylene (a by-product of the gasoline-refining process). ECF 2, ¶ 103. It was commonly blended into gasoline in the 1980s and 1990s as an “oxygenate” and “octane enhancer” to reduce carbon monoxide tailpipe emissions. Id. ¶¶ 107, 117-129. Compared with other oxygenates like ethanol, MTBE was inexpensive to manufacture because it was made from readily available refinery byproducts. Id. ¶¶ 103, 127.

         Gasoline is made by processing crude oil at a refinery. Id. ¶ 105. It is then transported through pipelines, tank ships, and barges to “common storage tanks” located at terminals around the country. Id. ¶ 106. From there, it is further “transshipped” by pipeline or other means to “secondary terminals” or “depots, ” and then taken by trucks to gas stations for retail sale. Id. MTBE was blended into the gasoline at the refinery itself, or “splash blended” at terminals by adding it to truck tanks after those tanks were filled with gasoline from the terminal. Id. ¶ 105. Because MTBE-enhanced gasoline is fungible, batches were frequently comingled from different sources during the production and distribution process. Id. ¶¶ 99-100.

         MTBE allegedly enters the environment “through disposals, deposits, releases, leaks, overfills, spills, discharges and evaporative releases, ” and is “principally release[d]” while in underground storage tanks or during delivery. Id. ¶¶ 1, 109. When released, MTBE is highly soluble in groundwater, spreads rapidly, does not naturally degrade, resists removal and treatment from groundwater, and is difficult to locate. Id. ¶¶ 2, 110-11, 113. It can also migrate into subsurface-soil regions and penetrate into aquifers. Id. ¶¶ 112, 114. For these reasons, the State claims that MTBE “is and has been more difficult and more expensive to remove from groundwater than other contaminants.” Id. ¶ 114.

         The United States Geological Survey has reported that MTBE is the “second most frequently detected volatile organic chemical in groundwater in the United States.” Id. ¶ 130. Around the United States, MTBE has been detected in “over 20% of aquifers tested in places where high MTBE-content gasoline was used.” Id. MTBE has also been found in “varying concentrations and at varying times” in public water systems and private drinking-water wells in Maryland. Id. ¶¶ 218, 220. Studies allegedly show that MTBE “is a probable human carcinogen, ” can cause “significant adverse health effects when ingested, ” and “can render drinking water putrid and unfit for human consumption.” Id. ¶¶ 4, 137.

         B. History of MTBE Use and Legislative Background

         In 1979, before defendants allegedly knew the harmful effects of MTBE, the Administrator of the United States Environmental Protection Agency (“EPA”) granted a waiver for the use of 7% MTBE in unleaded gasoline, finding that MTBE as a fuel additive did not cause or contribute to the failure of any emission control device or system. Id. ¶¶ 117, 134; Application for Methyl Tertiary Butyl Ether, Decision of the Administrator, 44 Fed. Reg. 12, 242, 12, 243 (Mar. 6, 1979). The market demand for MTBE and MTBE-blended gasoline began around the same time and grew rapidly, continuing well into the 1990s. ECF 2, ¶¶ 117, 125. By 1996, MTBE “ranked second among all organic chemicals produced in the United States, with virtually the entire production going into gasoline.” Id. ¶ 129.

         Growth in the MTBE market was encouraged by the 1990 Clean Air Act Amendments, which established the Reformulated Gasoline Program (“RFG Program”). Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399 (1990) (“CAA”), § 219(k). The RFG Program required the use of reformulated gasoline containing at least 2.0% oxygen by weight in designated ozone “non-attainment” areas of the country, meaning areas that do not meet the national ambient air quality standards (“NAAQS”) for ozone. Id. § 219(k)(2)(B). Subsequent EPA regulations included MTBE as one of several oxygenates to be used in the testing of reformulated gasoline. See, e.g., Use of Alternative Analytical Test Methods in the Reformulated Gasoline Program, 40 C.F.R. § 80.46(g), 61 Fed. Reg. 58304, 58306 (Nov. 13, 1996). Portions of Maryland were subject to the RFG Program. ECF 2, ¶ 122.

         The 1990 Amendments also authorized EPA's initiation of the Oxygenated Fuel Program (“OF Program”), which required gasoline in some metropolitan regions to contain at least 2.7% oxygen by weight to reduce carbon monoxide during the fall and winter months. CAA, § 219(m). The State alleges that MTBE-blended gasoline sold in non-attainment areas often exceeded the minimum oxygenate requirements in the RFG and OF programs, and was even used in the regions that were not participating in the RFG program. ECF 2, ¶ 124.

         By 2000, the federal government recognized the dangers of the release of MTBE into groundwater and took initial steps to consider eliminating it as a fuel additive. See Methyl Tertiary Butyl Ether (MTBE); Advance Notice of Intent to Initiate Rulemaking Under the Toxic Substances Control Act to Eliminate or Limit the Use of MTBE as a Fuel Additive in Gasoline, 65 Fed. Reg. 16, 094 (Mar. 24, 2000). Around this time, several states had “taken actions designed to limit the use of MTBE in gasoline.” Id. at 16, 097. Many lawsuits alleging MTBE contamination were filed and consolidated before the United States District Court for the Southern District of New York. In re Methyl Tertiary Butyl Ether Prods. Liab. Litig. v. Atlantic Richfield Co., MDL No. 1358, 2000 U.S. Dist. LEXIS 14901, at *4 (J.P.M.L. Oct. 10, 2000).

         In 2005, Congress passed the Energy Policy Act (“EPACT”), which phased out the RFG oxygenate requirement and established the Renewable Fuel Program in its place. See Energy Policy Act of 2005, Pub. L. No. 109-58, §§ 1501, 1504, 119 Stat. 594 (2005). The new program requires gasoline suppliers to blend their product with renewable fuels, such as cellulosic biomass ethanol, waste derived ethanol, and biodiesel. Id.

         The EPACT also directly addressed the status of MTBE as an additive to gasoline. Congress made the following findings, id. § 1502:

(1) since 1979, methyl tertiary butyl ether (hereinafter in this section referred to as “MTBE”) has been used nationwide at low levels in gasoline to replace lead as an octane booster or anti-knocking agent;
(2) Public Law 101-549 (commonly known as the “Clean Air Act Amendments of 1990”) (42 U.S.C. 7401 et seq.) established a fuel oxygenate standard under which reformulated gasoline must contain at least 2 percent oxygen by weight; and
(3) the fuel industry responded to the fuel oxygenate standard established by Public Law 101-549 by making substantial investments in-
(A) MTBE production capacity; and
(B) systems to deliver MTBE-containing gasoline to the marketplace.

         Section 1503 of EPACT, the removal statute at issue in this case, provides:

Claims and legal actions filed after the date of enactment of this Act related to allegations involving actual or threatened contamination of [MTBE] may be removed to the appropriate United States district court.

         C. Claims and Procedural History

         Maryland filed suit in the Circuit Court for Baltimore City on December 13, 2017. ECF 2. In its capacity as parens patriae, as trustee of the State's natural resources, and under the Maryland Environmental Standing Act (id. ¶ 6), Maryland has sued approximately sixty-five defendant manufacturers, marketers, and distributors of gasoline that together “controlled all, or substantially all, of the market in Maryland for MTBE and MTBE gasoline” for the relevant period. ECF 2, ¶ 26. Between 1995 and 2001, about 1.2 billion gallons of pure (or “neat”) MTBE was included in the reformulated gasoline sold in Maryland. ECF 2, ¶ 214.

         Maryland alleges that defendants knew as early as 1980 that MTBE was harmful and could contaminate groundwater, ECF 2, ¶ 134, but refused to warn the public or to use safer alternatives like ethanol. Id. ¶ 206. The State asserts that defendants “knew, or reasonably should have known, ” that the MTBE gasoline distribution and retail system throughout Maryland contained leaks. Id. ¶ 204. Even so, defendants allegedly defended and promoted MTBE, despite knowledge of its risks, and engaged in deceptive marketing of MTBE as a clean or environmentally friendly gasoline. Id. ¶¶ 161-189, 225-232. According to the State, defendants “falsely or inadequately addressed MTBE” in their material safety data sheets provided to customers. Id. ¶ 233.

         Plaintiff's suit includes claims for strict liability (defective design, failure to warn, abnormally dangerous activity); public nuisance; trespass; negligence; and violations of various State environmental statutes. Plaintiff seeks compensatory and punitive damages and costs for testing, cleanup, monitoring, and restoration of State waters, as well as an injunction requiring defendants to test and treat drinking water wells containing MTBE. Id. at 163-166.

         Defendant Atlantic Richfield Company removed the case to federal court on February 14, 2018. See Notice of Removal, ECF 1. The Notice stated that the case was removed under Section 1503 of the Energy Policy Act of 2005, 42 U.S.C. § 7545, and that jurisdiction is proper in federal court because the case is within the court's Article III judicial powers. Id. ¶¶ 2, 5. Specifically, ARCO claimed that the allegations of MTBE contamination raise questions of federal law under the CAA and EPACT, which “together are part of a comprehensive federal scheme, ” id. ¶ 5, and that plaintiff's claims conflict with, and are preempted by, federal law. ECF 1, ¶¶ 5, 6. The Notice of Removal also raised other potential defenses under federal water quality standards and the Due Process and Excessive Fines Clause of the United States Constitution. Id. Moreover, ARCO asserted that “all defendants properly joined and served in this action have consented to this removal.” Id. ¶ 8.


         Federal courts are courts of limited jurisdiction and “may not exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Further, a federal court must presume that a case lies outside its limited jurisdiction unless and until jurisdiction has been shown to be proper. United States v. Poole, 531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)).

         A civil action filed in state court may be removed to federal court if it is one over which the district court has original jurisdiction. 28 U.S.C. § 1441(a). The burden of demonstrating jurisdiction and the propriety of removal rests with the removing party. See McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010); Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010); Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004). Therefore, “[i]f a plaintiff files suit in state court and the defendant seeks to adjudicate the matter in federal court through removal, it is the defendant who carries the burden of alleging in his notice of removal and, if challenged, demonstrating the court's jurisdiction over the matter.” Strawn v. AT&T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008).

         Courts are required to construe removal statutes narrowly. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). This is because “the removal of cases from state to federal court raises significant federalism concerns.” Barbour v. Int'l Union, 640 F.3d 599, 605 (4th Cir. 2011) (abrogated in part on other grounds by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758 (Dec. 7, 2011)). See also Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“Because removal jurisdiction raises significant federalism concerns, [courts] must strictly construe removal jurisdiction.”) (citing Shamrock, 313 U.S. at 108-09). Indeed, a federal court “should construe removal statutes narrowly, [with] any doubts . . . resolved in favor of state court jurisdiction.” Barbour, 640 F.3d at 617; see also Cohn v. Charles, 857 F.Supp.2d 544, 547 (D. Md. 2012) (“Doubts about the propriety of removal are to be resolved in favor of remanding the case to state court.”).


         Defendants oppose remand on four grounds, arguing:

(1) Section 1503 of EPACT provides Article III “arising under” jurisdiction on its own or as part of a “comprehensive federal scheme”;
(2) Section 1503 falls within Article III jurisdiction because defendants have identified a colorable federal defense;
(3) Section 1503 confers jurisdiction in this case based on “minimal diversity”; and
(4) Although defendants Vitol S.A. and Gerry Petroleum Marketing Inc. (“GPMI”) did not consent to removal, Section 1503 does not require unanimous consent (and alternatively, Vitol S.A. and GPMI were either improperly served or could not be served).

         For the reasons that follow, I conclude that Section 1503 does not provide Article III “arising under” jurisdiction on its own or as part of a comprehensive federal scheme involving either the Clean Air Act or the EPACT. However, defendants have identified a colorable federal defense of conflict preemption with the Clean Air Act that justifies removal. I decline to reach defendant's “minimal diversity” theory because defendants failed to plead it in the Notice of Removal and concede that this legal theory has not been fully tested. Finally, although it is unclear whether unanimous consent is required for removal under Section 1503, all defendants that were properly served have consented to removal.

         A. Article III “Arising Under” Jurisdiction and “Comprehensive Federal Scheme”

         Maryland argues that Section 1503 is a “pure jurisdictional” statute that does not convey Article III jurisdiction by itself. ECF 283-1 at 8.[3] Rather, it contends that Section 1503 must be paired with a separate, independent basis for Article III jurisdiction to be constitutional. Id. Defendants argue that the statute provides Article III “arising under” jurisdiction either (1) on its own terms under the theory of “protective jurisdiction, ” ECF 299 at 16-17, or (2) as part of a “comprehensive federal scheme, ” id. at 17-23.

         Article III of the United States Constitution provides: “The judicial Power shall extend to all Cases, in Law and Equity, arising under . . . the Laws of the United States.” U.S. Const. art. III, § 2, cl. 1. “Article III ‘arising under' jurisdiction is broader than federal question jurisdiction under [28 U.S.C. § 1331].” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 495 (1983). Although Congress has the power to prescribe the jurisdiction of federal courts under U.S. Const. art. I, § 8, cl. 9, it “may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution.” Verlinden, 461 U.S. at 491.

         In particular, a statutory grant of authority cannot support Article III “arising under” jurisdiction if it “[seeks] to do nothing more than grant jurisdiction over a particular class of cases, ” or “merely concern[s] access to the federal courts.” Id. at 496; see also Mesa v. California, 489 U.S. 121, 136 (1989) (“Section 1442(a) . . . is a pure jurisdictional statute, seeking to do nothing more than grant district court jurisdiction over cases in which a federal officer is a defendant, ” so it “cannot independently support Art. III ‘arising under' jurisdiction”); Mizuna, Ltd. v. Crossland Fed. Sav. Bank, 90 F.3d 650, 655 (2d Cir. 1996) (statutes that “‘do nothing more than grant jurisdiction over a particular class of cases' cannot support Art. III “arising under” jurisdiction'”) (quoting Mesa, 489 U.S. at 136).

         1. “Protective Jurisdiction” Theory

         Defendants contend that Section 1503 is not a “pure jurisdiction” statute, but confers Article III jurisdiction on its own because “Congress has full authority under Article III to grant federal courts jurisdiction as Congress sees fit to protect any federal interest.” ECF 299 at 16.

         “‘Protective jurisdiction' is a generic term for theories that attempt to justify Congress' use of federal question jurisdiction to vest in federal courts the authority to hear cases involving issues of state law.” 13D C. Wright & A. Miller, Federal Practice and Procedure § 3565 (3d ed. 2008) (“Wright & Miller”). This “protective jurisdiction” theory is unsupported by case law and is largely a matter of academic interest. See Mesa, 489 U.S. at 137-38 (“We have, in the past, not found the need to adopt a theory of ‘protective jurisdiction'” and “we do not see any need for doing so here because we do not recognize any federal interests that are not protected by limiting removal to situations in which a federal defense is alleged.”); A.I. Trade Fin., Inc. v. Petra Int'l Banking Corp., 62 F.3d 1454, 1461 (D.C. Cir. 1995) (“As Mesa illustrates, the Court has rejected the notion of a ‘protective jurisdiction' that goes beyond the reach of any substantive federal law.”); 13D C. Wright & A. Miller, Federal Practice and Procedure § 3565 (3d ed. 2008) (the protective jurisdiction doctrine “remains in the realm of speculation. Most of the speculation has been academic, but Congress does from time to time consider laws that would give federal courts jurisdiction over classes of cases to be governed by state law.”).

         Defendants rely on Osborn v. Bank of United States, 22 U.S. 738 (1824), to support this theory. However, the Supreme Court has questioned some of the broad language in that decision. See Verlinden, 461 U.S. at 492 (“Osborn thus reflects a broad conception of ‘arising under” jurisdiction, according to which Congress may confer on the federal courts jurisdiction over any case or controversy that might call for the application of federal law. The breadth of that conclusion has been questioned.”). Even if such a theory could apply, defendants have not stated what federal interest would be protected “by limiting removal to situations in which a federal defense is alleged.” Mesa, 489 U.S. at 137.

         Accordingly, I decline to find federal jurisdiction on the basis that Section 1503 confers Article III “arising under jurisdiction” on its own terms.

         2. Comprehensive Federal Scheme

         Nevertheless, Section 1503 could still provide Article III jurisdiction if it is part of a comprehensive federal scheme. See Mesa, 489 U.S. at 136 (stating that a “‘comprehensive scheme' compris[es] both pure jurisdictional provisions and federal law capable of supporting Art. III ‘arising under' jurisdiction”) (citing Verlinden, 461 U.S. at 496); Mizuna, 90 F.3d at 655-56 (“where the removal jurisdiction is part of ‘a comprehensive scheme comprising both pure jurisdictional provisions and federal law capable of supporting Art. III arising under jurisdiction,' the jurisdictional grant is effective”) (internal quotations omitted) (emphasis in original) (quoting Mesa, 489 U.S. at 136); Simmtech Co. v. Citibank, N.A., No. 13 CIV. 6768 KBF, 2013 WL 6334367, at *5 (S.D.N.Y. Dec. 4, 2013) (finding a jurisdictional statute “constitutional simply by virtue of its comprising part of a comprehensive federal scheme, rather than its relation to any particular federal rule of decision.”).

         Three Supreme Court and Court of Appeals cases, Verlinden, Mizuna, and A.I. Trade Fin., Inc., 62 F.3d at 1461, are instructive for what constitutes a “comprehensive federal scheme.” The Supreme Court in Verlinden upheld the constitutionality of the Foreign Sovereign Immunities Act (“FSIA”), which allows a foreign plaintiff to sue a foreign state in federal district court on a nonfederal cause of action if one of several conditions applied. Verlinden, 461 U.S. at 489-90. The Court noted that FSIA “comprehensively regulat[es] the amenability of foreign nations to suit in the United States, ” and the specifically enumerated conditions required the district court, as a “threshold” matter, to “apply the detailed federal law standards set forth in the Act.” Id. at 493-94. The Court considered the legislative history of FSIA and decided that “the jurisdictional provisions of the Act are simply one part of this comprehensive scheme” to confer or withhold foreign sovereign immunity. Id. at 496. Indeed, FSIA “codifies the standards governing foreign sovereign immunity as an aspect of substantive federal law, and applying those standards will generally require interpretation of numerous points of federal law.” Id. at 497 (citations omitted). This “broad statutory framework” was created by Congress “deliberately . . . to channel cases against foreign sovereigns away from the state courts and into federal courts, thereby reducing the potential for a multiplicity of conflicting results among the courts of the 50 states.” Id.

         Similarly, the Second Circuit in Mizuna found that the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) constituted a comprehensive federal scheme. Mizuna, 90 F.3d at 656-57. Even though the case before the court “raise[d] no federal issue of any kind, ” and even though not every action under FIRREA necessarily involves the application of a body of federal law, the court explained, id. at 656:

[T]his particular jurisdictional grant is part of a comprehensive scheme enacted by Congress to serve and promote incontestably federal goals on a comprehensive basis. FIRREA makes major administrative and structural changes in the FDIC and, even more broadly, in the reform of the thrift industry and federal deposit insurance.

         Therefore, the jurisdictional grant in FIRREA “enhances the effectiveness and uniformity of proceedings in which the FDIC exercises the sweeping powers conferred on it by the Act.” Id. at 657.

         Likewise, in A.I. Trade Fin., Inc., 62 F.3d at 1460, the D.C. Circuit found that 12 U.S.C. § 632 properly conveyed Article III jurisdiction over a suit “to hold an Edge Act corporation liable upon the controlling bank's guaranty of negotiable instruments, ” because “there is enough substantive federal law underlying the grant of jurisdiction in § 632 to render it constitutional.” Id. at 1463. See also Simmtech Co., Ltd., 2013 WL 6334367, at *4 (discussing the comprehensive federal scheme doctrine and agreeing with the court's conclusion in A.I. Trade Fin., Inc. that jurisdictional grants under § 632 are constitutional).

         Specifically, the substantive federal law was the Edge Act, which “was added to the Federal Reserve Act in 1919 to provide for ‘[c]orporations to be organized for the purpose of engaging in international or foreign banking or other international or foreign financial operations.'” A.I. Trade Fin., Inc., 62 F.3d at 1462. Even though § 632 was added to the Federal Reserve Act fourteen years after the fact, the court inferred from the historical setting that § 632 provided the “supervision” that these financial institutions needed. Id. It said, id.:

Crafted in the wake of the turmoil that the World War had caused in international financial markets, the Edge Act called forth a new type of federally controlled institution intended to increase the stability of, and the public's confidence in, international markets. . . . Federal supervision of these financial institutions was seen as essential if they were ever to succeed in the international marketplace.

         Therefore, the Court reasoned that Section 632 oversight of the Edge Act “regime” was “intended to facilitate and stimulate international trade by providing the uniformity of federal law.” Id.

         In this case, defendants argue that the MTBE is part of two comprehensive federal schemes: the CAA and the EPACT. See ECF 299 at 18-23. Plaintiff argues that Section 1503 is not an “integral”[4] part of either comprehensive federal scheme because it is a freestanding provision in the EPACT that is isolated from another federal regulatory or enforcement program. See ECF 283-1 at 10; ECF 303 at 9.

         The CAA was enacted in 1963. Clean Air Act, Pub. L. No. 88-206, 77 Stat. 392-401 (1963). Among other purposes, the CAA aims “to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population[.]” 42 U.S.C. § 7401(b)(1). It is an expansive statute separated into six Titles. It addresses pollution from stationary sources (Title I, 42 U.S.C. §§ 7401-7431, 7470-7479, 7491-7492, 7501-7515); pollution from moving sources (Title II, 42 U.S.C. §§ 7521-7554, 7571-7574, 7581-7590); noise pollution and acid rain control (Title IV, 42 U.S.C. §§ 7641- 7642 and 7651-7651o); and stratospheric ozone protection (Title VI, 42 U.S.C. §§ 7671-7671q). Title III contains general provisions, including definitions, citizen suits, and other administrative matters, and Title V governs permits. As noted, the 1990 CCA Amendments established the RFG and OF Programs, which address pollution from motor vehicles, enacted under Title II. Pub. L. No. 101-549, 104 Stat. 2399 (1990).

         The EPACT aimed to “ensure jobs for our future with secure, affordable, and reliable energy.” Pub. L.109-58, 119 Stat 594 (2005). It was also a broad and comprehensive statute at the time, including sections on energy efficiency, renewable energy, oil and gas, coal, Native American tribal energy, nuclear energy, vehicles and motor fuels, hydrogen, research and development, Department of Energy management matters, personnel and training, electricity, energy tax incentives, hydropower and geothermal energy, climate change technology, and other issues. Id. The jurisdictional grant in Section 1503 was passed as part of the Title XV “ethanol and motor fuels” section of the statute. Id. § 1503.

         In my view, defendants have not met their burden to show that Section 1503 is part of the CAA's comprehensive scheme “to protect and enhance the quality of the Nation's air resources” for jurisdictional purposes. 42 U.S.C. § 7401(b)(1).[5] The RFG and OF Programs are part of the CAA's comprehensive scheme because they seek to reduce certain types of air pollution by requiring oxygenated fuel additives. However, defendants' argument that the RFG Program included an “explicit balancing test” (ECF 299 at 19) merely shows that the RFG Program is part of the comprehensive federal scheme of the CAA, not that Section 1503 is a part of that same comprehensive scheme. Instead, Section 1503 provides the option of a federal forum for actions relating to the contamination of one type of fuel additive that could qualify under these programs. Section 1503 became effective 15 years after the 1990 CAA Amendments and 42 years after the CAA was initially passed. By that point, MTBE production was decreasing. SeeNew Jersey Dep't of ...

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