State of Maryland v. Exxon Mobil Corporation et al

Filing 322

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 7/30/2018. (kw2s, Deputy Clerk)

FILED
U:.5. DISTRiCT COURT
DIS I RICT OF ~1,\RYLAHD
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ZO/SJUL

30

Ali 11: 34

CLE?K'S OFFICE

AT BALTIMORE

STATE OF MARYLAND,

BY-------- ..
DEPUTy

Plaintiff,

Civil Action No. ELH-18-459

v.
EXXON

MOBIL CORPORATION

et aI.,

Dejendal1fs.

MEMORANDUM
Thc
defendants

State

C'Statc"

or "Maryland")

to redress the alleged contamination

cthcr ("MTBE"),
1990s.

of Maryland

an oxygenate

ECF 2. Defendant

has sued

of the State's

additive that was commonly

Atlantic Richfield

Company

approximately

waters with methyl tertiary

mixed into gasolinc

removed

to Federal

Question

(ECF 284), which was served on the Attorney

at

Rule of Civil Procedure

5.1 (a), the State filed a Notice

butyl

in the 1980s and

this case to fcdcral court.

I. The State timely filed a Motion to Remand (ECF 283), which is pending.
pursuant

sixty-five

ECF

On the same date,
of Constitutional

General of the United States.

ECF 284

2.1
The Court2 granted the United States an extcnsion

intervening
Intervene

1

in the action.
for thc Limited

All citations

ECF 3073
Purpose

corrcspond

On July 13,2018,

of Supporting

to the CM/ECF

of time until July 16, 2018, to consider
the United States tiled a Motion

thc Constitutionality

electronic

of Section

to

1503 of the

pagination.

2 This case
was prcviously
assigned to Judge Marvin J. Garbis, who granted the
extension.
Duc to Judge Garbis's retirement, the case was rcassigned to me on July 18,2018.
See Docket.

time.

) Generally, the Attorncy
See Fed. R. Civ. P. 5.I(c)

Gencral has 60 days to intcrvene unless the court sets a later
("Unless the court sets a later time, the attorney general may

Energy

Policy Act (ECF 320), supported

to Intervene").

No opposition

28 U.s.C.

by a memorandum

(ECF 320-1) (collectively,

"Motion

has been filed. See Docket.

~ 2403(a) (2012) provides:

In any action, suit or proceeding in a court of the United States to
which the United States . . . is not a party, wherein the
constitutionality
of any Act of Congress afTecting the public
interest is drawn in question, the court shall certify such fact to the
Attorney General, and shall permit the United States to intervene
for presentation of evidence, if evidence is otherwise admissible in
the case, and for argument on the question of constitutionality.
The State's

Motion to Remand draws into question

the constitutionality

of Section

1503

of the Energy Policy Act 01'2005, Pub. L. No. 109-58, 119 Stat. 594. It provides:
Claims and legal actions filed after the date of enactment of this
Act related
to allegations
involving
actual
or threatened
contamination
of methyl tertiary butyl ether (MTBE) may be
removed to the appropriate United States district court.
The State argues that Section
diversity

of citizenship

and present its arguments.

I am required

federal defense or

See ECF 283-1 at 14-20; ECF 284 at 2.

in order to be constitutional.

Under these circumstances,

intervene

1503 must be read to require a colorable

to permit the United States to intervene

in the action

See 28 U.S.c. ~ 2403(a) (the court "shall" permit the United States to

if "the constitutionality

of any Act of Congress

affecting

the public interest

is drawn

into question").
The Federal
"certify

to the appropriate

questioned."
provides

Rules of Civil Procedure
attorney

general

and 28 U.S.c.

that [the constitutionality

Fed. R. Civ. 1'. 5.1 (b); see also 28 U.S.c.

this certification

to the Attorney

intervene within 60 days after the notice
whichever is earlier.").

~ 2403 also require

General

IS

~ 2403(a).

before granting

01] a statute

Typically,

certifies

has been

the district court

the government's

filed or after the court

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the Court to

motion to

the challenge,

intervene.

See Hoffman v. Hunt, 126 F.3d 575, 579 n.4 (4th Cir. 1997) (noting that the district

court provided notice to the Attorney General and "thereafter" granted the motion to intervene).
Although
certification.

the United States has already moved to intervene,

I shall provide the

See Brown v. Santander Consumer USA, Inc., No. CIV. WDQ-14-3874, 2015 WL

4879288, at *2 n.9 (D. Md. Aug. 13,2015) ("Section 2403 is silent about when the Court must
notify the U.S. Attorney General[.]").
An Order follows.

Date:

lsi

July 30, 2018

Ellen Lipton Hollander
United States District Judge

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