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Former President Lyndon B. Johnson once warned that “[a] nation that fails to plan intelligently for the development and protection of its precious waters will be condemned to wither because of its shortsightedness.” Sadly, a provision to a pending energy bill that may become law before year’s end could end up testing Johnson’s ominous prediction. The “Fuels Safe Harbor” provision — � 17102 of U.S. House Bill 6 (referred to as the energy bill) currently in conference committee — would provide products liability immunity for manufacturers of methyl tertiary-butyl ether (MTBE), a gasoline additive that’s a proven contaminant in an increasing number of the nation’s public and private drinking-water supplies. Under the provision, no motor vehicle fuel containing MTBE can be classified as defective. The practical result of this provision will be to hold municipalities, water providers, private well owners and, ultimately, taxpayers liable for the estimated $29 billion needed to clean up MTBE contamination across the country. This is public policy at its worst. The U.S. Conference of Mayors and a coalition of 14 state attorneys general have joined groups such as the American Water Works Association, the Association of Metropolitan Water Agencies, the Association of California Water Agencies and the National Association of Water Companies to oppose immunity for MTBE manufacturers. The MTBE crisis began in the late 1970s, when gasoline refiners discovered that the combination of isobutylene — a waste product of the refining process — and methanol resulted in an octane-boosting gasoline additive. Gasoline refiners claimed the combination reduced “knocking” in auto engines caused by the phaseout of leaded gasoline. The use of MTBE skyrocketed after 1990 amendments to the Clean Air Act required the use of oxygenates in regions not in compliance with federal air quality standards. Oil companies picked MTBE over another oxygenate, ethanol, because it is less expensive. MTBE quickly proved to be a problem for many cities and private well owners due to its foul turpentine-like odor and taste. For instance, only a few drops of MTBE can make an Olympic-size swimming pool of pure water undrinkable, according to the Environmental Protection Agency. A gallon of gasoline contains about a cup of MTBE. The EPA lists MTBE as an animal carcinogen and a potential human carcinogen. Leaking underground gasoline storage tanks are the main cause for MTBE groundwater contamination, according to the EPA. In addition, because of its composition, MTBE does not adhere to soil easily, allowing it to escape quickly into groundwater. The problem is widespread. According to a 1998 U.S. Geologic Survey, MTBE contamination affected 86 percent of wells sampled in industrial areas, 23 percent of wells in residential areas and 23 percent of wells in areas of mixed urban land use, parks and recreation areas. It’s estimated that at least 500 public drinking water wells and 45,000 private wells are contaminated with MTBE, which has been banned in 17 states. Unfortunately, this nationwide crisis was preventable. In the early 1980s, major refiners allegedly knew that MTBE posed serious environmental risks to public water supplies, according to the Environmental Working Group, a Washington, D.C.-based not-for-profit environmental research organization dedicated to improving public health and protecting the environment by reducing pollution in air, water and food. The oil companies pushing for the immunity provision say they were required to add MTBE because of the 1990 Clean Air Act amendments that required the use of oxygenates. Although oxygenates were required, the truth is that MTBE never was cited specifically, and a viable alternative — ethanol — was readily available. But refiners already had realized the profit potential for MTBE. Those same refiners told the EPA in a 1987 letter that MTBE was safe for the environment despite mounting evidence to the contrary. In cases across the nation, defense attorneys have unsuccessfully argued that MTBE claims are pre-empted by the Clean Air Act. Given the oil companies’ losses on the judicial front, legislative immunity certainly is an attractive alternative to the wave of litigation they face. But the immunity provision would result in too high a public cost. It would set dangerous precedent on several grounds. First, it would seriously impede efforts by municipalities and water authorities to protect public drinking water supplies from the harmful effects of MTBE. By granting immunity to refiners/manufacturers, it would shift the burden of cleanup and treatment costs to municipalities and, ultimately, to taxpayers. In an era where the shortage of freshwater is widely recognized among world leaders as a major ecological problem, such a burden shift is sorely misguided. It also would establish a disturbing legislative precedent — allowing Congress to usurp state product liability laws and skirt the judicial process vis-�-vis a legislative determination that a proven hazardous product is not “defective.” Lobbyists for refiners/manufacturers maintain that the immunity provision will still allow well owners to pursue those who release gasoline that contains MTBE. Yet these lobbyists know that those who may have released the product were never warned of MTBE’s harmful characteristics and are largely “mom-and-pop” owners of local gas stations who do not have the financial resources to remediate the contamination, much less compensate well owners. In many instances, a well is contaminated with no known point source, making the identification of the party directly responsible for the release difficult. The courts, not Congress, are the proper forum for deciding whether a harmful product is “defective in design or manufacture.” In the words of President Johnson, “the hard lessons of history are clear, written on the deserted sands and ruins of once proud civilizations.” The shortsighted protection of the MTBE industry and the concomitant risks to human health may end up teaching our nation a hard lesson whose costs will be paid for years to come. Scott Summy is a shareholder in Baron & Budd (www.baronandbud.com) in Dallas and heads the firm’s water contamination litigation group. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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