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In re Methyl Tertiary Butyl Ether

ELR Citation: 45 ELR 20131
Nos. 1:00-1898, (S.D.N.Y., 07/02/2015) (Scheindlin)

A district court dismissed Pennsylvania's public nuisance, trespass, and Pennsylvania Unfair Trade Practice and Consumer Protection Law claims against various refiners, manufacturers, marketers, distributors, and suppliers of methyl tertiary butyl ether (MTBE), a gasoline additive. The case is part of a consolidated multi-district litigation relating to the contamination of groundwater from various defendants' use of MTBE and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. The court has ruled repeatedly in this litigation that nuisance actions cannot lie against defendants who allegedly contribute to MTBE contamination merely as refiners, manufacturers, marketers, distributors, or suppliers, and Pennsylvania law does not provide otherwise. Because the defendants did not have "possession or control" over the sites from which the nuisance originated, Pennsylvania's nuisance claim was dismissed to the extent it is premised on defendants' manufacture or distribution of MTBE or MTBE gasoline. Likewise, to prevail on a trespass claim, Pennsylvania must allege that it exclusively possessed the groundwater at issue. But it has not made such an allegation, nor could it as a matter of law. Indeed, no Pennsylvania court has permitted the commonwealth to sue for trespass to groundwater or stated that the commonwealth has “exclusive possession” of such water. And Pennsylvania's Unfair Trade Practice and Consumer Protection Law claims lack specificity and fail to differentiate among defendants.