By H. Sterling Burnett, Ph.D., KERA 90.1 commentator
Dallas, TX –
Why are politicians fighting to allow cities to sue the manufacturers of the fuel additive, MTBE? The answer: trial lawyers, money and politics - a toxic combination.
In 1979, MTBE replaced lead in gasoline to help engines burn cleaner. It became more widely used in the 1990s when the Clean Air Act was revised. To reduce the carbon monoxide emitted by automobiles, Congress required producers to blend additives called oxygenates in their fuel. MTBE was one of several oxygenates approved by the EPA to meet the requirement.
The Congressional oxygenate mandate was unwise as each of the approved oxygenates posed environmental risks in their own right.
For instance, ethanol, MTBE's chief rival as a fuel additive, increases the emissions of volatile organic compounds that are a prime component of smog. Worse, when ethanol is burned, it emits chemicals considered carcinogenic by the EPA.
MTBE is not defective and cleans the air as promised. However, when it seeps from leaky storage tanks it moves fairly quickly into ground water, contaminating local water supplies. While not carcinogenic, it does make the water supply smell awful and taste rancid - basically making the water undrinkable.
Thus far, 16 of the U.S.'s 3,776 public water systems have been contaminated by MTBE spills or leaks. The clean-up costs have run into the millions of dollars, and MTBE contamination is an ongoing threat for other water supplies.
Can't you just hear the "ka-ching!" in trial lawyers' offices around the country?
Don't get me wrong. Polluters should have to clean-up the messes they create. But providing liability protection for MTBE producers would not prevent that. Indeed, absent producer liability, 95 percent of the spills are being cleaned up by the responsible parties - the service station owners and fuel transporters - who owned the leaking tanks and pipelines. However, individual service station owners don't have the deep pockets that politicians and trial lawyers crave. Nor can they be as easily portrayed as blackguards by legislators intent on derailing the energy bill by labeling this provision as a payback to "Big Oil."
The battle over MTBE liability is about politics pure and simple. Congress, the EPA, and the states debated the potential problems that MTBE posed when it was approved for use; and they knew that MTBE would be used more often than ethanol because it was less expensive and more readily available.
In contrast to MTBE, legislators have already protected the agriculture industry from lawsuits stemming from the harms caused by ethanol, and efforts to strip ethanol's liability protection have failed. Rather, despite the risk, Congress seems intent to mandate that more ethanol be added to the nation's gasoline supply. Few politicians have ever gained politically by defending oil companies or by denying farmers a hand out.
If every time I changed the oil in my car I dumped the used oil on the ground and over time that oil seeped into my neighbor's swimming pool, my neighbor would certainly have a legal claim against me for the damage. He would not, however, be able to sue Quaker State or Pennzoil for the clean-up cost. Only politicians, who are rarely noted for having common sense and a normal sense of fairness, could argue otherwise.
Congress should end the oxygenate requirement entirely and grant the producers of MTBE the liability protection that they deserve and that ethanol makers already have.
Sterling Burnett is a senior fellow with the Dallas-based National Center for Policy Analysis. If you have opinions or rebuttals about this commentary, call (214) 740-9338 or email us.