The president of the Renewable Fuels Association (RFA), Eric Vaughn, says he is disappointed but not surprised by the Oxygenated Fuels Association's (OFA) federal court challenge to the state of California's two-year old phase-out of the toxic gasoline additive MTBE.

Filed on 24 January in the state capital Sacramento, the OFA challenge is based on what the RFA calls “the groundless notion that by moving to protect its drinking water from further MTBE pollution, California violated the federal Clean Air Act”.

"The OFA, an MTBE producer front-group, is clearly concerned about the ongoing switch from MTBE to safe ethanol in California," said Vaughn.

"They held their breath for more than two years, but now when Tosco Corporation, the largest independent gasoline refiner and marketer in the country, is successfully switching from MTBE to ethanol they are pulling out all the stops. This lawsuit flies in the face of Governor Davis' leadership in banning MTBE to protect water quality and Tosco's leadership in making the ban a reality.

"The switch from MTBE to ethanol has begun and is going smoothly. Tosco is proving that switching to ethanol is the right thing to do – for consumers, the environment, and the company's bottom line. Lawsuits and scare tactics won't stop the inevitable from happening. MTBE should be thrown on the ash heap of history and OFA's members should find a product that doesn't threaten our precious water supplies."

Ten states and the City of Chicago have already banned or enacted phase-outs of MTBE. The states are Arizona, California, Colorado, Connecticut, Iowa, Michigan, Minnesota, Nebraska, New York, and South Dakota. Several other states are considering banning MTBE this year. There are also bills pending in the U.S. Congress that would phase-out and ban MTBE nationwide.

"The OFA's contention that federal clean air law prohibits state action to protect drinking water is baseless and flies in the face of over 200 years of precedent. States have always been able to exercise their 'police powers' to protect the health and welfare of their citizens unless specifically limited by federal law. There is no limit on state action here."

Section 211 of the Clean Air Act does limit the ability of states to regulate fuel characteristics "for the purpose of motor vehicle emission control." The section also defines parameters on the content of oxygenates in reformulated fuels. However, it is the class of oxygenates that is regulated, not the individual chemicals that make up the class, such as MTBE.

"MTBE is not mentioned, regulated or protected by the Clean Air Act," said Vaughn. "Even if someone drew that incorrect conclusion, MTBE could still be regulated by states for purposes other than emission control. The Clean Air Act lays this out very clearly. And California enacted the MTBE phase-out to protect its water. California's phase-out of MTBE is not only legal, but in the best interests of its citizens."

In announcing their lawsuit, the OFA also sought to mislead the public on critical facts concerning MTBE and ethanol, the RFA contends.

"MTBE contamination from underground storage tanks, pipeline spills, car accidents, and recreational watercraft is a national nightmare," said Vaughn.

"While the OFA is long on rhetoric, it's often short on facts. The OFA lawsuit seeks only to delay the switch from toxic MTBE to safe ethanol, expand the spread of MTBE water pollution, and increase the burden on taxpayers to clean up this disaster."

Ethanol, a safe replacement for MTBE, does not pollute water and maintains the clean air gains of reformulated gasoline with oxygen. The RFA says that the OFA made several inaccurate statements concerning ethanol.