United States District Court, D. Maryland
Ellen L. Hollander United States District Judge.
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. The State has replied. ECF
hearing is necessary to resolve the Remand Motion.
See Local Rule 105-6. For the reasons that follow, I
shall deny the Remand Motion.
MTBE and Water Contamination
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.
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.
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.
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.
History of MTBE Use and Legislative Background
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.
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.
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.
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).
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.
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
1503 of EPACT, the removal statute at issue in this case,
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.
Claims and Procedural History
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.
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.
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.
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.
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)).
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).
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
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
(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).
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.
Article III “Arising Under” Jurisdiction and
“Comprehensive Federal Scheme”
argues that Section 1503 is a “pure
jurisdictional” statute that does not convey Article
III jurisdiction by itself. ECF 283-1 at 8. 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.
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.
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).
“Protective Jurisdiction” Theory
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.
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.”).
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
I decline to find federal jurisdiction on the basis that
Section 1503 confers Article III “arising under
jurisdiction” on its own terms.
Comprehensive Federal Scheme
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.”).
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.”
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.
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.
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
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
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.
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” 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
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
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.
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). 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 ...