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Post date: June 1 2001

Federal Court Upholds State Ban On Gasoline Additive

Attorney General Spitzer and Governor George E. Pataki today announced that a federal court has upheld a state law banning the gasoline additive MTBE, an important ruling for New York's continuing effort to protect drinking water.

At least 25 percent of the nation's gasoline contains MTBE, an additive intended to reduce air pollution. Refiners chose to add MTBE rather than other oxygenates to gasoline to comply with the Clean Air Act's reformulated gasoline program that requires gasoline sold in the New York Metropolitan area to contain 2% oxygen. Unfortunately, MTBE is a major source of water pollution. The chemical spreads quickly through the soil when gasoline with MTBE is spilled, including when auto accidents occur. MTBE has been detected in hundreds of private and public water wells throughout New York State.

"The citizens of New York State should not have to sacrifice clean water for clean air," said Attorney General Spitzer. "This court victory illustrates that it is important to consider all environmental effects of gasoline, including both water and air emissions."

"This decision is an important victory for all New Yorkers," Governor Pataki said. "While I am pleased the court has recognized the danger MTBE poses to public health and the environment, we will continue to fight for federal action to ban MTBE and identify an acceptable alternative. New Yorkers deserve clean air and clean water."

MTBE, (methyl tertiary butyl ether), which has been classified by the EPA as a possible human carcinogen, enters groundwater through leaking vehicle gasoline tanks, pipelines, overfilling of tanks, and automobile accidents. The sandy soils of Long Island are especially vulnerable to MTBE contamination.

Last year, Governor Pataki signed a law prohibiting gasoline containing MTBE from being sold in New York state beginning January 1, 2004. Violators would be subject to a civil penalty of up to $10,000.

The law was challenged in federal court by the Oxygenated Fuels Association, a trade group that represents the producers of MTBE. The MTBE producers claimed that the state law was preempted by the federal Clean Air Act.

But Federal District Court Judge Norman Mordue, sitting in Syracuse, recently ruled that the Clean Air Act's preemption of state laws "for the purposes of motor vehicle emission control" does not apply to the New York law, which is a public health measure designed to protect drinking water quality in the state.

Judge Mordue also held that Congress did not give the federal Environmental Protection Agency the "power to compel a state to accept a fuel additive which the state perceives as a threat to public health" and refused to interpret the Clean Air Act as "protecting the market share of MTBE even if it proves to be inferior to other oxygenates..."

The case was handled by Assistant Attorney General Carter H. Strickland, Jr. in the Environmental Protection Bureau under the direction of Bureau Chief Peter Lehner.