TCS Daily

Another Full-Employment Act For the Lawyers

By Benjamin Zycher - June 17, 2005 12:00 AM

Let us begin with the obvious: Politics is the art of wealth redistribution. And while the meek shall inherit the earth, someday, in the here and now it is Congress that bestows favors and imposes costs as we travel down that not-so-lonesome highway bedecked with signs proclaiming clean air and a myriad other goodies just over the next rise.

That Congress can be far more generous and destructive than even it imagines is illustrated by the saga of the 1990 Clean Air Act Amendments, and the efforts therein ostensibly to reduce summer air pollution by "reformulating" gasoline with the addition of two percent (by weight) of oxygenates. That requirement took effect in 1996.

From the very beginning serious doubts about the actual environmental benefits of oxygenates in gasoline were prominent; but wealth redistribution is a very different goal than environmental improvement. And so the oxygenation train left the Congressional station with a full head of steam, and with big smiles on the faces of those producing ethanol (corn alcohol) and methyl tertiary butyl ether (MTBE), the two oxygenates available.

The Corn Belt celebrates still. But MTBE now has been outlawed in several states due to concerns about leaking gasoline tanks at service stations and the ensuing contamination of ground water supplies. And while normal souls might see little upside in water pollution, a new group of smiling winners now is dancing with visions of many, many dollar signs in mind.

I refer, of course, to the lawyers, now leering at the oil companies as a pride of lions eyes a lame wildebeest. Forget the fact that Congress mandated the use of oxygenates even as the oil industry opposed it. Forget the fact that MTBE is less expensive to produce than ethanol, so that substantial MTBE use was predictable and predicted, as was the inevitable leakage of some MTBE from some storage tanks into some water supplies. Forget the fact that with some exceptions the big oil companies do not install or own or maintain the gasoline storage tanks.

Forget the fact that these central facts will be forgotten, quickly. Focus instead on the larger reality that the lawyers will seek out deep pockets, however tenuously connected to the leakage problem, so that what will be cast aside is the far more fundamental concept of actual culpability for actual harm causing actual damages actually demonstrated.

Air quality improvement? Water quality? Compensation for those actually harmed? Please... Officers of the court or not, the class-action litigation system will attract certain types of attorneys- -- there are thousands out there in lawsuit land -- for whom the prospect of huge fees will trump any fleeting concerns about fundamental truths. Should you find this too cynical, merely consider the asbestos litigation monster, years in the making, which has swallowed up huge companies whole in a purported effort to compensate "victims" utterly lacking in symptoms or demonstrable harm, aided by doctors and other experts deliberately misreading medical evaluations so that they too can claim a piece of the pie. So perverse a creature has the asbestos litigation become that actual victims find themselves on the outside looking in, even as pseudo-victims riding on the shoulders of their attorneys receive payments both huge and wholly unjustified. Indeed, the asbestos litigation problem has become so bad that Congress itself has been forced to consider an asbestos compensation fund -- hundreds of billions of dollars -- opposed by the lawyers and their allied politicians even as hundreds of billions of dollars already have been devoured.

Make no mistake about it: That is where the MTBE mess is headed. Congress now is considering a limitation of defective product claims for MTBE, which might impose a constraint on punitive damages, but negligence claims would remain. For the lawyers, that will be low-hanging fruit, as juries are likely to view "victims," whatever the ambiguity of their injuries, as more sympathetic than Big Oil. And the utter unfairness of it all? The ensuing damage to the economy, and other immense adverse effects? Those are other people's problems.

Benjamin Zycher is a senior fellow at the Pacific Research Institute for Public Policy. Email:


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