United States District Court, D. Rhode Island
OPINION AND ORDER
William E. Smith Chief Judge.
The
State of Rhode Island brings this case against various oil
and chemical companies alleging that they collectively caused
the widespread contamination of the State's waters by a
hazardous gasoline additive - methyl tertiary butyl ether
(“MTBE”). Defendants move to
dismiss[1] the whole of the State's case, with
limited success. (ECF No. 91).
I.
Background[2]
MTBE is
a synthetic gasoline additive that acts as an oxygenate,
increasing gasoline's oxygen content. (Compl.
¶¶ 34, 61.) Oil companies began adding MTBE to
gasoline in small doses beginning in the late 1970s.
(Id. ¶ 55.) These companies escalated the
amount of MTBE they used in the 1990s, after Congress
required an increase in the oxygen content of gasoline sold
in certain markets to combat smog. (Id. ¶¶
59-62.) One of several options, MTBE soon became the
oxygenate du jour, not because it was more effective or
easier on the environment, but because it was the least
expensive to manufacture, and therefore helped the oil
industry turn the biggest profit. (Id. ¶ 61.)
Gasoline continued to be laced with a sizable volume of MTBE
into the 2000s, until states began instituting bans on its
use like the one the Rhode Island General Assembly enacted in
2005. (See id. ¶ 185.)
The
bans materialized as evidence of MTBE's severe impact on
the environment became too great to ignore. (Id.
¶¶ 178-82.) MTBE, it turns out, was the most
menacing component of the gasoline to which it was added: it
is more water soluble and resists biodegradation better than
the conventional constituents of gasoline; it is a known
animal and suspected human carcinogen; and gives water a
turpentine odor and chemical taste, rendering it unfit for
human consumption at concentrations as low as one part per
billion. (Id. ¶¶ 37-42.) “In sum,
” the State alleges, “when MTBE is released into
the environment, it migrates far[] and fast[] through soil
and groundwater, penetrates deeply into aquifers, . . . and
results in persistent contamination that is costly to
address.” (Id. ¶ 43.)
Worse
is that the oil industry, including Defendants, knew this
about MTBE early on, but instead of alerting the public or
switching to a safer oxygenate, waged an obfuscation
campaign, downplaying the risks it knew about and frustrating
government efforts to learn more. (Id. ¶¶
74-176.) As early as 1980, for example, certain Defendants
learned of a serious incident of MTBE contamination in
Rockaway, New Jersey, followed later in the decade by MTBE
plumes discovered in Maryland and New York. (Id.
¶¶ 87- 93.) These episodes fouled the water used by
thousands, stalled residential development, and required the
monitoring of regulators years after the initial
contamination event. (Id. ¶¶ 87-92.) And
all this before MTBE's ‘90s heyday. (Id.)
The
science explaining the persistence of MTBE plumes was
provided in a report authored in 1986 by the Maine Department
of Environmental Protection. (Id. ¶¶
94-95.) The report supplied evidence of the qualities, listed
above, that make MTBE a potent environmental contaminant, and
advised that MTBE be banned or that gasoline containing it be
stored in double-lined tanks. (Id.) Industry
considered the report's recommendations not as a way to
prevent future environmental damage, but rather as a
“possible grave concern to the oxygenate
producers” among them. (Id. ¶ 98.) They
publicly assailed the report as “reactionary,
unwarranted and counter-productive, ” while internally
recognizing the plausibility of - and eventually replicating
- its scientific conclusions. (Id. ¶¶ 99,
102.)
The
federal government had suspicions of its own in the 1980s
that MTBE might be a danger to the environment, and
recommended further testing be done. (Id.
¶¶ 111-14.) Industry again sensed a threat, and in
a concerted effort to assuage government concerns with
disinformation, formed what they called the “MTBE
Committee.” (Id. ¶¶ 112, 115-16.)
One of the Committee's first orders of business was to
submit written comments regarding MTBE to the Environmental
Protection Agency (“EPA”). (Id.
¶¶ 117, 120-21.) By then aware of the plumes on the
East Coast and the work done by the Maine Department of
Environmental Protection sounding the alarm bells about MTBE,
the Committee wrote to the EPA in 1987 that “there is
no evidence that MTBE poses any significant risk of harm to
health or the environment, that human exposure to MTBE and
release of MTBE to the environment is negligible, . . . and
that testing is therefore not needed.” (Id.
¶¶ 120-21 (alteration omitted).) In fact, wrote the
Committee, “requiring long term testing of MTBE will
have a significant adverse environmental and economic impact,
” because such testing would slow demand for what they
assured the EPA was an environmentally sound product.
(Id. ¶ 121.) These and other efforts by
industry were effective in convincing the EPA to delay
testing on the effects of MTBE, which paved the way for the
ramp up in production that occurred after amendments to the
Clean Air Act passed in 1990. (See id. ¶¶
126, 137, 146.)
Throughout
the 1990s and into the 2000s, Defendants helped sustain the
bull market in MTBE by continuing to feed the EPA what they
knew were half-truths about MTBE's propensity to hurt the
environment. (Id. ¶¶ 171-72.) As late as
1994, an industry representative wrote that there was
“no basis to question the continued use of MTBE.”
(Id. ¶ 171.) And when, in 1996, the efficacy of
MTBE as a groundwater contaminant could no longer be denied,
an oil trade association invented a clever bit of spin,
writing that MTBE's special powers of adulteration allow
it to “serve as an early indicator of gasoline
contamination in groundwater, triggering its cleanup and
remediation.” (Id. ¶¶ 173-74.)
Pollution as public service. (See id.)
Demand
for MTBE was so great by the mid-1990s that the amount of it
produced in the United States was eclipsed by only one other
organic compound. (Id. ¶ 177.) And more than a
negligible amount ended up in the country's water: the
United States Geological Survey reports that MTBE is the
second-most detected chemical in groundwater, and has found
MTBE-contaminated wells across the country, including in 20
percent of aquifers where MTBE was once prevalent in
gasoline. (Id. ¶¶ 178-80.) Data such as
these led to the EPA announcing that MTBE “has caused
widespread and serious contamination, ” representing a
“threat to the nation's drinking water
resources.” (Id. ¶ 180.)
Rhode
Island did not escape the scourge. (See id.
¶¶ 183- 89.) By predictable leaks and spillage up
and down the gasoline distribution chain, as well as
inevitable mishandling by consumers, MTBE has contaminated
groundwater in the state, including public and private
drinking water supplies. (Id. ¶¶ 35- 36,
183.) Despite the state-wide ban on MTBE, contamination
continues to spread as MTBE slithers its way across Rhode
Island's water table. (Id. ¶¶ 184,
186.) This suit is the State's attempt to secure
compensation from those it avers are responsible for the
havoc MTBE has wreaked in the state. (Id.
¶¶ 11, 189, 192-296.) Its hopes for doing so hang
on the fate of the nine causes of action it asserts - all of
which Defendants claim are wanting as a matter of law.
II.
Discussion
The
Court treats below the issues raised in Defendants'
motion to dismiss seriatim, keeping in mind that to survive,
the State's Complaint “must contain factual
allegations that ‘raise a right to relief above the
speculative level, on the assumption that all the allegations
in the complaint are true . . . .'”
Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26,
29 (1st Cir. 2008) (quoting Bell Atl. v. Twombly,
550 U.S. 544, 555 (2007)).
Before
doing so, though, it is worth highlighting at the outset that
the Court decides this case sitting in diversity, and must
therefore apply Rhode Island substantive law when such
exists. Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). On issues state law has yet to settle, the
Court's task is to predict how the Rhode Island Supreme
Court would resolve them were it asked. See Butler v.
Balolia, 736 F.3d 609, 612-13 (1st Cir. 2013).
Prediction of this sort requires the Court to “consult
the types of sources that the [Rhode Island Supreme Court]
would be apt to consult, including analogous opinions of that
court, decisions of lower courts in the state, precedents and
trends in other jurisdictions, learned treatises, and
considerations of sound public policy.” Id. at
613. Special attention may be given to “sources cited
approvingly by the [Rhode Island Supreme Court] in other
opinions.” Id.
A.
Notice
Defendants
first argument is that the State's complaint fails to
meet the notice pleading standard set by Federal Rule of
Civil Procedure 8, which requires complaints to contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). They would have liked it if the State had provided
specifics about contamination sites, such as when exactly
they came to be and where they are located.
Their
argument, however, assumes a pleading standard above where
the law has it. “Specific facts are not
necessary” to satisfy Rule 8. Erickson v.
Pardus, 551 U.S. 89, 93 (2007). Moreover,
“[d]ismissal for noncompliance with Rule 8 is usually
reserved for those cases in which the complaint is so
confused, ambiguous, vague, or otherwise unintelligible that
its true substance, if any, is well disguised.”
Sayied v. White, 89 Fed.Appx. 284, at **1 (1st Cir.
2004) (alteration and quotation marks omitted). The
State's accusations, outlined above, are precise enough
to allow Defendants to fashion a response. Cf. Calvi v.
Knox Cty., 470 F.3d 422, 431 (1st Cir. 2006) (holding
that plaintiff sufficiently plead a Section 1983
excessive-force claim where she alleged that “with
reckless and deliberate disregard for her rights, [defendant
police officer] physically abused her and treated her cruelly
and callously, using force far in excess of that necessary
under the circumstances.” (alteration and quotation
marks omitted)). This argument fails.
B.
Standing
Defendants
next say that the State has not met its burden to prove it
has Article III standing to bring this suit. At the
motion-to-dismiss stage, this burden requires plaintiff to
plead facts which, taken as true, plausibly establish that
plaintiff has suffered injury in fact, traceable to the
challenged conduct, which is likely to be redressed upon
winning in court. Hochendoner v. Genzyme Corp., 823
F.3d 724, 731 (1st Cir. 2016). Defendants' plaint regards
the first of these requirements.
To
plead injury in fact, the State must demonstrate that what it
has suffered is “both concrete and particularized and
actual or imminent, not conjectural or hypothetical.”
Id. (quotation marks omitted). The State's
allegation that waters in which it has an interest have been
polluted by a possible human carcinogen due to Defendants
activities pleads a plausible injury in fact. (Compl.
¶¶ 2-11, 48.); cf., e.g., Duke Power
Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59,
73-74 (1978) (“Certainly the environmental and
aesthetic consequences of the thermal pollution of the two
lakes in the vicinity of the disputed power plants is the
type of harmful effect which has been deemed adequate in
prior cases to satisfy the ‘injury in fact'
standard.”).
Parroting
their notice argument, Defendants claim the State has not
provided them specific information about when and where
contamination occurred. Defendants again ask for too much too
soon: “[a]t the pleading stage, ” the Supreme
Court explained, “general factual allegations of injury
resulting from the defendant's conduct may suffice, for
on a motion to dismiss we presume that general allegations
embrace those specific facts that are necessary to support
the claim.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992) (modification and quotation marks
omitted).
The
State also plausibly pleads imminent future injury. Imminence
is “a somewhat elastic” part of the standing
doctrine whose purpose “is to ensure that the alleged
injury is not too speculative for Article III purposes - that
the injury is certainly impending.” Clapper v.
Amnesty Int'l USA, 568 U.S. 398, 409 (2013)
(emphasis and quotation marks omitted). The State's
allegations concerning MTBE's behavior once in the ground
- specifically its tendency to mix with water and ...