Lawmakers' liability

MTBE: Who's to blame?

September 28, 2004|By Gordon Chipman

PREDICTABLY, REPORTS that traces of the fuel additive MTBE have been found in wells in Harford County make a great issue for liability lawyers. And, right on cue, Baltimore lawyers are showing up with investigators to determine where the chemical might be coming from.

At the same time, Harford County Executive James M. Harkins signed off on a moratorium on new gas stations in the county. Just how banning new service stations will help clean up the contaminated wells, Mr. Harkins didn't say.

But the imbroglio over MTBE (methyl tertiary butyl ether) raises an interesting question: What has happened to persuade many members of Congress to support a bill that would give partial liability protection to oil companies and manufacturers of MTBE? The short answer is, plenty.

Most importantly, MTBE is an oxygenate that proved to be extremely effective in reducing tailpipe emissions. It was mandated in 1990, when Congress amended the Clean Air Act requiring the use of a fuel additive in those metropolitan areas with the most heavily polluted air. The Baltimore area was among them.

Smog levels dropped sharply in many areas. The use of MTBE has enabled millions of asthmatics, others who suffer from lung ailments and the elderly to breathe easier. Lives were saved. An Environmental Protection Agency panel said as much. But MTBE, which smells like turpentine, is water soluble and it wound up in underground water systems. Despite claims to the contrary, its presence is at levels so low that there's no appreciable health risk. There is no scientific evidence indicating MTBE poses a cancer risk to humans. Liability is supposed to fall on "defective," unduly dangerous products, which MTBE is not.

More than a decade ago, when Congress mandated a 2 percent oxygenate in gasoline to improve air quality, it was well understood that substantial amounts of MTBE would be required. The government, including the EPA and Congress, was aware that MTBE could pose water contamination problems. The debate in Congress at the time confirms this.

The idea persists that MTBE is the culprit. Some states have banned MTBE or are phasing it out, but the additive was never the issue. The real problem is leaking fuel storage tanks. The leaks can be stopped. There is money available in a special trust fund for repairs and ground-water cleanup, paid through a one-tenth of a cent tax on each gallon of gas since Congress established it in 1986 -- the Leaking Underground Storage Tank fund, which has about $2 billion.

A bill before Congress authorizes a sizable increase in fund expenditures for the cleanup of ground-water systems, primarily MTBE-related. If there is credible evidence that supports negligence in the handling of motor fuels, oil companies and MTBE producers should be held accountable. But the government ordered the use of MTBE and, therefore, it bears responsibility for any adverse effects.

Water companies, including some that are suing oil companies and MTBE makers in California and other states, are asking Congress for liability protection in lawsuits involving contaminants such as cancer-causing chemicals and arsenic in drinking water. They argue that at a time when they face huge costs for better purification equipment, security upgrades and deadlines to meet new federal and state drinking water standards, one burden they should not have to face is unwarranted lawsuits.

These companies know they will have no choice but to follow the most stringent standards set by any jury in the country in order to avoid liability, even if they fully comply with applicable government regulations.

Yet the same water companies, along with municipal utilities and local governments, are trying to deny protection for oil companies and MTBE producers. Holding the oil industry to a different standard might be politically seductive, but it's disingenuous and not sound policy.

We know there has been a steady improvement in air quality since passage of the 1970 Clean Air Act, but auto emissions remain a serious problem in our largest cities. So there's still a need to develop new and improved fuel additives that can reduce tailpipe emissions. But it's very doubtful companies will answer future calls from the government for cleaner additives if it refuses to fairly allocate the risks for its past mandates.

In short, a shield against punitive liability is essential. With MTBE, as in many other issues requiring remedy, the temptation toward litigation as the solution might satisfy a hankering to do something. But it's best to resist that temptation because it will probably exacerbate the problem and industry will be less likely to develop and deploy the technologies that will lead to cleaner air.

Gordon Chipman, an energy consultant, was a deputy assistant secretary in the Energy Department from 1982 to 1985.

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