Like Oil and Water
Like Oil and Water
As Congress Considers Legal Immunity for Oil Companies More Communities Go To Court Over MTBE Pollution
Two years ago, support for Tom DeLay's MTBE liability shield for oil and chemical companies stalled when documents surfaced showing the companies had, contrary to their claims, aggressively lobbied for MTBE's adoption as a gasoline additive. The memos and other correspondence showed that oil companies knew the toxic chemical would pollute drinking water, and that they — not the government — had pushed for its adoption anyway.
Now, as Congress takes up the energy bill again, DeLay and his deputy, Joe Barton, are pushing their colleagues once more to shield big oil companies from legal accountability, but they face a much more difficult task this time. Dozens of communities now know that their groundwater is polluted with MTBE, and many have taken the oil companies to court to force the companies to pay to clean up the mess their pollution has made of people's drinking water. Two communities, South Lake Tahoe and Santa Monica, California, have already obtained clean-up relief through high profile lawsuits.
A new analysis by the EWG Action Fund finds that detections of MTBE are rising sharply across the country, with contamination now found in 1,861 water systems in 29 states, serving more than 45 million Americans, up from 1,500 systems two years ago. More significantly for the fate of the waiver, MTBE has been found in more than 650 water systems in the districts of 97 House members who voted for the energy bill and the waiver. Twenty seven (27) of these members represent communities that are suing MTBE makers for tainting their water supplies — lawsuits that will be thrown out if the liability waiver becomes law. The other 85 do not yet represent communities in litigation, but voted to protect oil companies from future lawsuits by communities they represent.
26 House Members Who Voted in 2003 To Protect Oil Companies From MTBE Lawsuits, Represent Communities That Have Subsequently Sued Those Companies Over MTBE-Contaminated Drinking Water
Source: Environmental Working Group. Data on MTBE lawsuits obtained from court records and law firms representing communities. Information on MTBE contamination is derived from data obtained from state agencies under the Federal Freedom of Information Act or state public records laws. Data were unavailable for some states; other states reported no MTBE detections. Some states currently do not require reporting of MTBE detections.
MTBE, or methyl tertiary butyl ether, is made by blending methanol (methyl alcohol) and other byproducts of gasoline refining. It was touted by the oil companies as a so-called oxygenate that, added to gasoline, would help cars burn cleaner (although research has since shown it's not all that effective). It seeps into water systems from leaking underground gasoline storage tanks and spreads rapidly. At high doses, the Environmental Protection Agency says MTBE is a possible human carcinogen, but even at very low levels of contamination, its overwhelming stench renders water unfit for drinking. It is very difficult and expensive to remove from water supplies, and in addition to its own health risks, accelerates the spread in water of benzene, a known carcinogen, and other toxic chemicals in gasoline.
The liability waiver is a top priority for House Majority Leader Tom DeLay and Energy and Commerce Committee chair Joe Barton, both of Texas, home of most the oil and chemical companies that produced MTBE until contamination problems prompted California and 16 other states to ban it. According to federal records, DeLay and Barton together received more than $350,000 in campaign contributions from the oil and gas industry in the 2004 campaign cycle. [Center for Responsive Politics 2005]
The waiver, included in a draft of the energy bill from Barton's committee, would prohibit lawsuits charging that the additive was a faulty product that the industry knew would leak from storage tanks and contaminate water supplies — the exact argument two California communities used in court to win multimillion-dollar settlements to clean up the contamination and secure new supplies. The bill not only closes the door to new defective-product lawsuits, but throws out of court all cases filed since Sept. 5, 2003. The bill bans MTBE nationwide in 2014, but in the interim gives the chemical's manufacturers $250 million a year — $2 billion total — in "transition assistance grants" to convert their facilities to other products. [View Draft]
MTBE makers and their political allies claim they should not be liable because they were forced to add the chemical to gasoline in the early 1990s by EPA air pollution regulations requiring the use of an oxygenate. But oil industry documents unearthed in the California lawsuits show that it was the oil industry who chose and promoted MTBE over other oxygenates because it was a previously unwanted refinery byproduct they could turn into a source of profit. The documents show that Shell, one of the first refiners to add MTBE to gasoline, and other companies knew as early as 1980 that the additive posed an extraordinary threat to water supplies, but ignored or suppressed scientific evidence and concerns raised in internal memos.
Now, new evidence has surfaced that a decade ago, Commerce Committee lawyers told Barton himself that using MTBE was the industry's choice, not EPA's requirement. A June 5, 1995 memo from staff counsel to an Energy and Commerce subcommittee chaired by Barton explained that the EPA's Reformulated Gasoline Program (RFG) did not mandate or favor MTBE (made from methanol) over any other oxygenate that could be used to reformulate gasoline:
A major aspect of the debate on the 1990 Clean Air Act Amendments was the issue of "fuel neutrality." In essence, since various fuels and fuel constituents compete for the RFG and alternative fuels market, an effort was made to avoid dictating any particular fuel choice. On this matter ... the Committee on Energy and Commerce ... could not have been more clear. The Committee stated at the time that, "It is intended that this (clean alternative fuels) be a fuel-neutral program. Although some believe that EPA has a strong preference for methanol, the Committee intends no such preference for that or any other fuel." [U.S. House of Representatives 1995] [Emphasis added.] [View Document]
In 2003, the power of the majority leader and heavy lobbying by the oil industry were enough to persuade all but 25 House Republicans who voted, plus 46 Democrats, to support the energy bill and MTBE waiver. In 2005, the increased contamination, growing number of lawsuits, and fresh evidence against the oil companies' claim that EPA required the additive will make it harder for House members to explain to their constituents why they voted for a bailout for oil companies rather than clean drinking water in their own districts. In addition, DeLay's clout has been diminished by a series of ethics scandals. [Curtius 2005] But he and Barton continue to insist they will not move an energy bill without an MTBE liability waiver. [Chemical Week 2005] The House Republican leaders' scheme to get their home-state oil companies off the hook for billions of dollars in cleanup costs will hinge on this question: Is political blood thicker than polluted water?