- The Washington Times - Tuesday, June 14, 2005

There was much to dislike in previous energy bills, and there are likely to be many flaws in the energy bill now under consideration. Perhaps the best outcome would be no new energy bill — a bad bill being worse than none at all.

However, one provision would prevent gasoline producers from being sued when the fuel additive methyl tertiary butyl ether (MTBE) seeps into water systems from leaking underground gas tanks. That provision has contributed to the demise of previous energy bills, but is not as bad as it has been portrayed. Why? The brouhaha over MTBE is not about protecting public health or making the polluter pay. It’s all about trial lawyers and money.

MTBE was originally added to gasoline in 1979 as a replacement for lead to help engines burn cleaner. It became more widely used in the 1990s with passage of the revised Clean Air Act. In an attempt to reduce carbon monoxide (CO2) auto emissions, Congress required producers to add gasoline additives called oxygenates to fuel. The EPA approved MTBE as one of several acceptable fuel additives.

Congress should not have mandated adding oxygenates to gasoline for a number of reasons. First, improvements in engine efficiency and the natural turnover of the automobile fleet were already reducing CO2 levels without the mandate. Second, each of the approved oxygenates posed substantial environmental risks in their own right.

For instance, ethanol, MTBE’s only real competition as a fuel additive, absorbs water, and thus cannot be shipped through pipelines used to transport unblended gasoline — the water it absorbs could separate, causing pipelines and fuel lines to freeze in cold weather. Ethanol also increases emissions of volatile organic compounds that are a prime component of the smog plaguing many U.S. cities. Worse, when ethanol is burned, it emits acetaldehyde — which EPA considers a probable human carcinogen — and peroxyacetyl nitrate, which damages plants.

MTBE, on the other hand, does not contribute to other air pollution problems. However, when it seeps from leaky storage tanks it leeches relatively rapidly into ground water, contaminating local water supplies. While not carcinogenic, it does make the water supply smell awful and taste rancid — the water basically becomes undrinkable. In the intervening years, 16 of the 3,776 U.S. 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.

These are the factors that have trial lawyers acting like sharks who smell blood in the water. And if this were just a case of polluters forced to clean up messes they have created, liability protection would be unwarranted. But the case is not that simple. First, Congress, the EPA and the states knew about and debated the potential problems that MTBE posed when it was approved for use; and they knew MTBE would be used more often than other additives because it was less expensive and more readily available.

Secondly, the lawsuits under way and being considered target the wrong parties. MTBE is not defective. It cleans the air as promised and unless a fuel tank or pipeline leaks or has a spill, it does not pose a threat to drinking water.

However, those most often at fault, individual service station owners, don’t have the deep pockets politicians and trial lawyers crave. Nor can they be as easily portrayed as evil blackguards by legislators intent on derailing the energy bill entirely by labeling this provision as a payback to “Big Oil.”

Evidence abounds the energy bill’s opponents are using this provision to scuttle the bill. For instance, legislators are more than willing to protect the agriculture industry from lawsuits stemming from the harms caused by ethanol — no politician ever scored political points from beating up farmers.

In addition, protecting MTBE producers would not prevent lawsuits to force responsible parties to clean up the spills. Indeed, absent producer liability, 95 percent of spills are cleaned up by the responsible parties — the service station owners and fuel transporters — who owned the leaking tanks and pipelines.

MTBE is slated to be phased out regardless of whether producers receive liability protection — and this is good. However, simple fairness dictates producers get protection from unwarranted lawsuits. It is no fairer to hold MTBE producers responsible for the harm caused by leaking tanks than it would be to force Pennzoil or Quaker State to clean up my neighbor’s swimming pool if I dumped my used motor oil over the fence into it.

H. Sterling Burnett is a senior fellow at the National Center for Policy Analysis.

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