INTERNET TAX NONDISCRIMINATION ACT
Mr. INHOFE. Mr. President, the Senator from Ohio and I know something about unfunded mandates, as does the Chair. It keeps creeping up, and we are making every effort in the committee that I chair and the subcommittee the Senator from Ohio chairs to try to resolve that problem. I think maybe we will because we have the right people in line to do it. I may not agree with the Senator from Ohio on this particular issue, but I certainly do on unfunded mandates.
I just found out that the distinguished Senator from New Mexico, Mr. Domenici, has filed an amendment that is a slimmed-down version of the Energy bill. I just have to stake out a position early because it is my understanding that the safe harbor language that was in H.R. 6 that is so fair and so necessary is not a part of the slimmed-down version. If it is not in the bill, I am not going to be able to support the bill. I will do everything I can for the Senator from New Mexico, but this is very serious.
The bill should permit that manufacturers, producers, marketers, traders and distributors of gasoline containing federally approved oxygenate MTBE cannot be sued under a claim that it is a defective product.
The Federal Clean Air Act Amendments of 1990 created the reformulated gas. The reformulated gas program said they had to use oxygenates. The most prevalent oxygenate to be used in these reformulated gases is MTBE. In fact, EPA specifically approved MTBE for this purpose.
Here is the situation we have: We have the Government coming along and saying, You are going to have to use MTBE. For all practical purposes, they have said this, they have mandated it. Then they turn around and say, We are going to let the trial lawyers in to sue you because maybe this substance which we approved, which we endorsed, is causing harm to someone. It is very important to understand that the safe harbor provision is necessary to prevent the trial lawyers from using the court system to punish companies for simply complying with the Federal law by using a federally approved additive.
The safe harbor is narrowly targeted and does not affect any claim against any person or any company actually responsible for spilling gasoline containing MTBE. That is very important because I keep hearing on this Senate floor: You let all these people off the hook who are spilling and polluting. That is not true at all. It is very narrowly defined.
Since September 30, 2003, in anticipation of the Energy bill, trial lawyers, including many known for the work they have done and the wealth they have accumulated in asbestos litigation, have as of March 25 brought over 60 groundwater contamination lawsuits in 17 States seeking damages from over 169 different named companies that allegedly manufactured, sold, or transported gasoline containing the federally approved fuel additive called MTBE.
One of those companies is Frontier Oil. They have been sued. They have never produced MTBE. They have never used it. They blended MTBE. But they are one of the companies being sued. The lawsuits do not allege defendants actually leaked or spilled gasoline containing MTBE that allegedly contaminated their groundwater. The lawsuits do not even name the actual polluters. Instead, the cases target any company that at any time may have distributed or sold gasoline containing MTBE or even some, as I just cited, that did not.
Defendants are vigorously defending these cases and will incur millions of dollars in legal fees and expenses simply for having made or sold gasoline containing a fuel additive specifically approved for use by Congress and the EPA.
I believe it is necessary to stake out this position. I cannot think of a fairness issue with which we have dealt that is more significantly addressed than this one. Government comes along and says you have to use this stuff; then they come along later and say there is something wrong with it and we are not going to offer you any defense at all-any defense. We are talking about huge multimillion-dollar lawsuits.
In the event this language does not end up in the legislation of the slimmed-down bill, I will have to oppose it. I cannot conscientiously support an energy bill that leaves everybody out to dry, particularly in the MTBE case.
That is my position. I think there are many others who share that position of fairness in dealing with this bill.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.