State v. Exxon Mobil Corp.

• Decision Date: 04 September 2019
• Docket Number: Civil Action No. ELH-18-0459
• Citation: 406 F.Supp.3d 420
• Parties: STATE of Maryland, Plaintiff, v. EXXON MOBIL CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of Maryland

406 F.Supp.3d 420

STATE of Maryland, Plaintiff,

v.EXXON MOBIL CORPORATION, et al., Defendants.

Civil Action No. ELH-18-0459

United States District Court, D. Maryland.

Signed September 4, 2019

Adam Dean Snyder, Brian E. Frosh, Matthew Spencer Zimmerman, Office of the Attorney General of MD, Stephanie D. Cobb Williams, Sari Mandel Levin, State of Maryland Office of the Attorney General Department of Environment, Baltimore, MD, Nathaniel Paul Short, Scott E. Kauff, Law Offices of John K. Dema, P.C., Rockville, MD, John K. Dema, Pro Hac Vice, Law Offices of John K. Dema PC, Christiansted, VI, Michael Axline, Pro Hac Vice, Miller and Axline PC, Sacramento, CA, Tyler E. Wren, Pro Hac Vice, Berger and Montague PC, Philadelphia, PA, for Plaintiff.

Ava E. Lias Booker, Melissa O. Martinez, McGuireWoods LLP, John Bucher Isbister, William W. Carrier, III, Tydings and Rosenberg LLP, Joseph William Hovermill, Alexander Peter Creticos, Joseph Lanham Beavers, Miles and Stockbridge PC, Michael Alan Brown, Nelson Mullins Riley & Scaborough LLP, Ezra Gollogly, Kramon and Graham PA, Daniel J. Donovan, Donovan and Rainie LLC, Baltimore, MD, Candace Ali Blydenburgh, Pro Hac Vice, Jonathan Paul Harmon, Pro Hac Vice, McGuireWoods LLP, Richmond, VA, Carlos Bollar, Pro Hac Vice, Daniel R. Farino, Pro Hac Vice, Archer & Greiner P.C., Haddonfield, NJ, James Franklin Sanders, Pro Hac Vice, Neal and Harwell PLC, Nashville, TN, Amanda A. Jacobowski, Pro Hac Vice, Andrew R. Running, Pro Hac Vice, Benjamin O'Connor, Pro Hac Vice, J. Andrew Langan, Pro Hac Vice, Kirkland and Ellis LLP, Lisa S. Meyer, Pro Hac Vice, Nathan P. Eimer, Pro Hac Vice, Pamela R. Hanebutt, Pro Hac Vice, Eimer Stahl LLP, Chicago, IL, James J. Maher, Pro Hac Vice, Jeremiah J. Anderson, Pro Hac Vice, King and Spalding LLP, Gabriel Kaim, Pro Hac Vice, Jessica G. Farley, Pro Hac Vice, Stephen C. Dillard, Pro Hac Vice, Norton Rose Fulbright, Christopher H. Domingo, Pro Hac Vice, Diane Myers, Pro Hac Vice, Jones Day, Houston, TX, Daniel C. Sale, King & Spalding LLP, Matthew R. Thurlow, Pro Hac Vice, Katherine Carol Ondeck, Laura Robinson Kaufman, Baker & Hostetler LLP, Brian Burgess, Goodwin Procter LLP, James R. Wedeking, Sidley Austin LLP, John S. Guttmann, Beveridge and Diamond PC, Meagan Elizabeth Roach, Jackson & Campbell, PC, Peter C. Condron, Crowell & Moring LLP, Christopher Danley, Pro Hac Vice, Joshua Frank, Pro Hac Vice, Martha S. Thomsen, Baker Botts LLP, Jeffrey Laurence Leiter, Pro Hac Vice, Alphonse Michael Alfano, Bassman Mitchell Alfano and Leiter Chtd., Connor Mullin, Stanley E. Woodward, Jr., Akin Gump Strauss Hauer and Feld LLP, Gary C. Adler, Clark Hill PLC, Jerry Stouck, Greenberg Traurig LLP, Peter C. Condron, Crowell & Moring LLP, Daniella Adar Einik, Jones Day, Anne E. Lynch, Pro Hac Vice, Michael D. Goodstein, Van Ness Feldman LLP, Washington, DC, James Messenger, Pro Hac Vice, Gordon Rees Scully Mansukhani LLP, Mark E. Tully, Pro Hac Vice, Goodwin Procter LLP, Traci Lovitt, Pro Hac Vice, Jones Day, Boston, MA, John McMeekin, Pro Hac Vice, Susan M. Dean, Pro Hac Vice, Rawle and Henderson LLP, Katherine Katchen, Pro Hac Vice, Akin Gump Strauss Hauer and Feld LLP, Philadelphia, PA, Stephen Riccardulli, Pro Hac Vice, Buchanan Ingersoll and Rooney PC, David Kahne, Pro Hac Vice, Francis Healy, Pro Hac Vice, Melvin A. Brosterman, Pro Hac Vice, Stroock and Stroock and Lavan LLP, James Pardo, Pro Hac Vice, Lisa Gerson, Pro Hac Vice, McDermott Will and Emery LLP, New York, NY, Erika M. Anderson, Pro Hac Vice, Meghan E. Ball, Pro Hac Vice, Dowd Bennett LLP, St. Louis, MO, Courtney Jones Kieffer, Pro Hac Vice, Elizabeth F. Griffin, Pro Hac Vice, Michael Andrew Walsh, Clark Hill Strasburger, Dallas, TX, Brian L. Zagon, Pro Hac Vice, VanNess Feldman LLP, Lafayette, CA, Charles Correll, Pro Hac Vice, King and Spalding LLP, San Francisco, CA, Chad W. Higgins, Pro Hac Vice, Bernstein Shur, Portland, ME, Brian A. Scotti, Gordon Rees Scully Mansukhani LLP, Alexandria, VA, Michael P. Cullen, Mr., Apex Oil Company, Inc., for Defendants.

MEMORANDUM OPINION

Ellen Lipton Hollander, United States District Judge This Memorandum Opinion resolves numerous motions to dismiss a 168-page Complaint filed by the State of Maryland ("State" or "Maryland") against approximately sixty-five defendants.¹ The State seeks to redress the alleged contamination of its waters with methyl tertiary butyl ether ("MTBE"), an oxygenate additive that was commonly blended into gasoline in the 1980s and 1990s. ECF 2 (Complaint).²

The Complaint contains eleven counts. ECF 2, ¶¶ 308, 417. The first six counts allege common law tort claims: Strict Product Liability Based on Defective Design (Count I); Strict Product Liability Based on Failure to Warn (Count II); Strict Liability for Abnormally Dangerous Activity (Count III); Public Nuisance (Count IV); Trespass (Count V); and Negligence (Count VI). The remaining counts seek to impose liability under various provisions of the Environment Article ("E.A.") of the Maryland Code (2013 Repl. Vol., 2019 Supp.): E.A. § 4–401 et seq. (Count VII); E.A. § 4–701 et seq. (Count VIII); E.A. § 9–301 et seq. (Count IX); E.A. § 9–401 et seq. (Count X); and E.A. § 7–201 et seq. (Count XI).

Several motions are now pending. Defendant Total Petrochemicals & Refining USA, Inc. ("TPRI")³ moved to dismiss the Complaint for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), and for failure to state a claim, under Fed. R. Civ. P. 12(b)(6). ECF 333. The motion is supported by a memorandum of law (ECF 333-1) (collectively, "TPRI Motion") and two exhibits. ECF 333-2; ECF 333-3. The State opposes the TPRI Motion (ECF 357), supported by two exhibits. ECF 357-1; ECF 357-2. TPRI has replied (ECF 377), with an exhibit. ECF 377-1.

Defendants Duke Energy Merchants, LLC ("Duke Energy"), George E. Warren Corporation ("Warren"), and Guttman Energy, Inc. ("Guttman Energy"), joined by TPRI and Hartree Partners, LP ("Hartree"), also moved to dismiss the Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim. ECF 334; see also ECF 338 (Hartree Joinder). The motion is supported by a memorandum of law. ECF 334-1 (collectively, "Warren Motion"). The State opposes the Warren Motion (ECF 358), supported by an exhibit. ECF 358-1. Defendants filed a reply (ECF 378), as well as two exhibits. ECF 378-1; ECF 378-2.

In addition, sixty-two defendants, including Exxon Mobil Corporation ("Exxon"), TPRI, Duke Energy, Warren, and Guttman Energy, jointly moved to dismiss the Complaint under Fed. R. Civ. P. 12(b)(6). ECF 335. It is supported by a memorandum of law (ECF 335-1) (collectively, the "Joint Motion") and an exhibit. ECF 335-3. The State opposes the Joint Motion. ECF 359. Defendants have replied (ECF 381), and submitted two exhibits. ECF 381-1; ECF 381-2.

In a separate motion, defendant 7-Eleven, Inc. ("7-Eleven") joins the Joint Motion (ECF 336), supported by a memorandum of law. ECF 336-1 (collectively, "7-Eleven Motion"). It moves to dismiss the Complaint for failure to state a claim. ECF 336 at 1. Alternatively, it seeks "a more definite statement of [the] claims against 7-Eleven," pursuant to Fed. R. Civ. P. 12(e). Id. The State opposes the 7-Eleven Motion (ECF 355), supported by an exhibit. ECF 355-1. 7-Eleven has replied. ECF 379.

In addition, defendant Lukoil Pan Americas LLC ("LPA") moved to dismiss the Complaint, pursuant to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction, and under Fed. R. Civ. P. 12(b)(6), for failure to state a claim. ECF 342. The motion is supported by a memorandum of law (ECF 342-1) (collectively, "LPA Motion") and an exhibit. ECF 342-2. The State has filed an opposition. ECF 368. LPA replied (ECF 387), with an exhibit. ECF 387-1.

Defendant PJSC Lukoil ("PJSC")⁴ also moved to dismiss the Complaint, pursuant to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction. ECF 343. It is supported by a memorandum of law (ECF 343-1) (collectively, the "PJSC Motion") and an exhibit. ECF 343-2. The State opposes the PJSC Motion (ECF 366), with exhibits. ECF 366-1; ECF 366-2; ECF 366-3. PJSC has replied. ECF 388.

No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons stated below, I shall grant the PJSC Motion, and grant in part and deny in the part the Joint Motion. I shall deny the remaining motions.

I. Background⁵

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 "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...