Litigation Information - Congress and EPA Knowledge Regarding Use of MTBE as an Oxygenate

The Clean Air Act Amendments of 1990 (“CAAA”) established two programs, the Wintertime Oxyfuel Program (effective November 1992) and the Reformulated Gasoline Program (effective January 1995), which required refiners to add oxygenates to their gasoline. 

The legislative record from the CAAA demonstrates Congress’s (and EPA’s) recognition that MTBE would be the most widely used oxygenate in meeting the CAAA oxygenate mandates, and further demonstrates that MTBE usage was seen as a positive factor for the environment and energy security. 

For example: 

• “EPA predicts that the amendment will be met almost exclusively by MTBE, a methanol derivative,” 136 Cong. Rec. S 6383, 6384 (1990) (remarks of Sen. Daschle);
  
• “The MTBE market is expected to expand by more than 20 percent every year for the next five years” as a result of the CAA amendments, and “…. MTBE is going to be a major, if not ‘the’ major beneficiary of the [oxygenate] standard.”  136 Cong. Rec.  S. 2280, 2289 (1990) (remarks of Sen. Daschle);
  
• The RFG Program “will encourage the use of oxygen-containing additives like ethanol and MTBE”, 136 Cong. Rec. S 16954 (1990) (remarks of Sen. Chafee);
  
• “The requirements for reformulated gasoline will also encourage the use of oxygen-containing additives like ethanol and MTBE,” 136 Cong. Rec. S 17514 (remarks of Sen. Heinz);
  
• MTBE is “good for energy security and our balance of trade, as well as the environment” because RFG with a 15% MTBE content required 15% less gasoline, 136 Cong. Rec. S 3513 (1990) (remarks of Sen. Daschle).

In fact, Congress carefully drafted its fuel content requirements to ensure that refiners would be able to use MTBE to comply with the Oxy-Fuel and RFG mandates.  For example, at one point in the legislative process the proposed oxygenate level was set at 3.1% – which could not have been met by using MTBE.  In Congress’ final legislation, that level was reduced to 2.7% specifically to promote the use of MTBE:
 
The level of 2.7 percent was chosen in part to provide more even opportunities for competition between the two major oxygenates, methyl tertiary butyl ether (or MTBE), and ethyl alcohol (or ethanol).  The [EPA] Administrator may not discriminate among these different oxygenates, and should encourage fair competition among them.

136 Cong. Rec. H 12848, 12859 (1990) (remarks of Mr. Sharp).