MTBE: A Regulatory Pitfall or Cause for Legal Action?

Published June 1, 2005

While the gasoline additive MTBE was a relatively small element of the federal government’s efforts to address air pollution more than a decade ago, it now occupies center stage as a key issue related to our energy policies, environmental protection, and the fairness of our legal system.

MTBE, or methyl tertiary butyl ether, was originally put in use in 1979 when the U.S. Environmental Protection Agency (EPA) approved it as a way to replace lead content and promote cleaner-burning gasoline.

Despite MTBE’s role in fighting smog in traffic-congested cities, the chemical has a downside that EPA recognized long ago: When spilled, its water-soluble properties can cause it to seep into groundwater.

Use of MTBE expanded greatly in the 1990s after EPA named MTBE one of several gasoline additives approved for use in meeting Clean Air Act mandates. At that time, both EPA and members of Congress recognized that cost and availability factors meant MTBE would be selected to comply with the clean air regulations.

Regrettably, as use of MTBE increased in recent years, so did detections of the substance in water supplies.

Let’s be clear: No one wants to see MTBE causing problems with water resources. Significant contaminations, which can affect the smell and taste of water and can affect property values, need to be cleaned up by the responsible parties.

But companies that merely produced and used MTBE in compliance with the federal laws and regulations should not be dragged into court on the issue.

The U.S. House of Representatives passed a provision in its 2005 energy bill that protects energy producers from lawsuits that are being filed over adding MTBE to gasoline, because the producers’ actions were taken to comply with federal law. The Senate should pass the same provision.

We are seeing too many exaggerated claims in the media about MTBE today–about the extent of the problem, health impacts, the purpose of the House safe harbor provision, and the ability of responsible parties to clean up spills.

How big is the problem? A January 2005 EPA study found only 16–less than one-half of 1 percent (0.4%)–of 3,776 public water systems in the U.S. have MTBE levels that may require corrective action.

How harmful is MTBE to humans? The World Health Organization and National Toxicology Program are among those to report MTBE is not a known or probable carcinogen.

Does the House safe harbor provision of the energy bill take away the responsibility to clean up spills? Absolutely not. Nothing in the House energy bill prevents lawsuits seeking to force responsible parties to clean up MTBE spills. Moreover, a 1999 study by EPA found more than 95 percent of spills are being cleaned up by the responsible parties, often service station owners with underground storage tanks that leaked.

Plaintiffs’ lawyers and water suppliers are pinning their legal hopes on having MTBE declared a defective product in court. If they succeed, this fuel additive may become the subject of the next wave of massive litigation reminiscent of the asbestos and tobacco lawsuits. In fact, it’s not surprising the MTBE lawsuits are being led by some of the same plaintiffs’ lawyers who profited handsomely from asbestos and tobacco lawsuits.

Forging a national policy solution to MTBE would be better than unleashing a flood of MTBE-related lawsuits focusing on details of specific legal claims rather than broad national interests. As lawsuits drag on, policy issues, spills, and clean-up might languish for years.

Important issues surrounding our energy supplies and the environment, including MTBE, need to be addressed. Clearly, the solution should not be found through filing myriad lawsuits against those who were complying with the law.

J. Bennett Johnston, Jr. is a former Democratic U.S. Senator from Louisiana, serving from 1972 to 1997. He served as chairman of the Senate Energy and Natural Resources Committee from 1986 to 1994 and was ranking member from 1995 to 1996.