The opinion of the court was delivered by: Scheindlin, District Judge.
The plaintiffs in this consolidated multi-district litigation,*fn2
private well-owners, essentially allege that defendants, petroleum
companies doing business throughout the United States,*fn3 knowingly
caused the widespread contamination of groundwater as a result of their
use of a gasoline additive known as methyl tertiary butyl
ether—commonly referred to as MTBE. In January 2001, pursuant to a
Court Order, the plaintiffs filed a Master Complaint,*fn4 asserting six
state law claims against the defendants.*fn5 These claims, which are
premised on defendants' use of MTBE, include: (1) strict liability for
design defect; (2) negligence; (3) failure to warn; (4) deceptive
business acts and practices in violation of section 349 of New York's
General Business Law ("GBL § 349");*fn6 (5) public nuisance; and (6)
conspiracy to market an unsafe product.
Defendants moved to dismiss plaintiffs' state law claims, asserting as
one principal ground that these claims were barred by the doctrine of
conflict preemption, as articulated by the Supreme Court in Geier v. Am.
Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914
(2000). Specifically, defendants argued that MTBE was a "federally
approved" oxygenate that Congress intended and understood would be
available as a means of complying with the oxygenate requirements set
forth in section 211 of the Clean Air Act ("CAA"), 42 U.S.C. § 7545,
and any finding of liability based upon defendants' use of MTBE would
stand as an obstacle to the accomplishment and execution of the goals
articulated in the CAA. In the August 20 Opinion, this Court denied
defendants' motions to dismiss plaintiffs' claims on the ground of
conflict preemption. See In re MTBE, 175 F. Supp.2d at 614-15, 623.
Whether statutory or common law causes of action based
on defendants' use of methyl tertiary butyl ether
("MTBE") in gasoline pursuant to Section 211 of the
federal Clean Air Act are conflict preempted?
Memorandum in Support of Defendants' Joint Motion for Reconsideration
or, to Certify Question for Interlocutory Review at 2.
On September 7, 2001, this Court denied defendants' motion for
reconsideration, finding that no controlling decisions or factual matters
were overlooked that would have altered the decision. See In re: Methyl
Tertiary Butyl Ether ("MTRE") Products Liability Litigation, MDL No.
1358, 2001 WL 10420.51, at *2 (S.D.N.Y. Sept. 7, 2001). For the reasons
stated below, defendants' request for certification is now denied.
A. The Standard for § 1292(b) Certification
It is a "basic tenet of federal law to delay appellate review until a
final judgment has been entered." Koehler v. Bank of Bermuda, Ltd.,
101 F.3d 863, 865 (2d Cir. 1996) (finding certification inappropriate
where there had been no discovery or a hearing on a question of personal
jurisdiction). However, a court, in its discretion, may certify an
interlocutory order for appeal if the order " involves a controlling
question of law  as to which there is substantial ground for
difference of opinion and  that an immediate appeal from the order may
materially advance the ultimate termination of the litigation."
28 U.S.C. § 1292(b) (emphasis added).
When considering requests for certification, district courts must
carefully evaluate whether each of the above conditions are met. See
Wausau Bus. Ins. Co. v. Turner Constr. Co., 151 F. Supp.2d 488, 491
(S.D.N.Y. 2001) (denying motion for certification where defendant could
not demonstrate substantial grounds for difference of opinion as to
controlling questions of law). The Second Circuit has urged courts "to
exercise great care in making a § 1292(b) certification." Westwood
Pharm., Inc. r. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir.
1992). Section 1292(b) must be construed narrowly, see Cromer Fin. Ltd.
r. Berger, Nos. 00 Civ. 2284, 00 Civ. 2498, 2001 WL 935475, at *1
(S.D.N.Y. Aug. 16, 2001) (denying defendants' motions for certification
because the issues were neither controlling nor presented substantial
grounds for difference of opinion), and "only `exceptional circumstances
[will] justify a departure from the basic policy of postponing appellate
review until after the entry of a final judgment.'" Klinghoffer v.
S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (quoting Coopers
& Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d
351 (1978)). Indeed, even where the three legislative criteria of section
1292(b) appear to be met, district courts have "unfettered discretion to
deny certification" if other factors counsel against it. Nat'l Asbestos
Workers Med. Fend v. Philip Morris, Inc., 71 F. Supp.2d 139, 162-163
(E.D.N.Y. 1999) (assuming the statutory criteria were met but nonetheless