MTBE: A Tale of Air, Water, and Civil Procedure

Now banned in several states, the gasoline oxygen methyl tertiary butyl ether (MTBE) is at the center of hundreds of lawsuits involving standard toxic tort issues. Its low solubility in water has rendered MTBE a ubiquitous pollutant of groundwater. While the 1990 Clean Air Act Amendments did not mandate the use of MTBE by gasoline producers, the structure of the statute, combined with economics and technical limitations, pushed MTBE as the preferred oxygenate to improve air quality. Litigation involving MTBE has redirected civil procedure in ways previously unknown because of this unique situation. Preemption of state MTBE bans under the Act is discussed, as are issued of federal agent and bankruptcy removal, sovereign immunity, and collective liability.