mr. chairman , there are so many ways to oppose this particular amendment that i am at a little bit of a loss as to which way to start in opposition , but i think i will start first on the procedural opposition . 
this is basically the same vote and the same amendment that the gentlewoman from california ( mrs. capps ) xz4000620 had a vote on yesterday on a point of order before consideration of the rule . 
that was defeated overwhelmingly , in the neighborhood of 231-188 or something like that . 
to give her credit , she has come back and she and her allies have found a way to use the rules to come up and get a second bite of the apple . 
but my first line of opposition is that if you voted against it yesterday , you ought to vote against it today . 
secondly , i want to talk about the concept that is embodied in the capps amendment , that somehow this is an unfunded mandate . 
what she is seeking to strike is a provision in the underlying bill which was in the bill last year that says you can not de facto go in and in an existing lawsuit state that mtbe , because it is mtbe , or also ethanol , is defective because of its chemical composition . 
you have to prove that it is defective , not just say that , because it is what it is . 
it is similar to saying this piece of wood that this table is made of is defective because it is wood . 
that is a very limited safe harbor provision . 
the gentlewoman from california ( mrs. capps ) xz4000620 would strike that . 
cbo last year looked at this language and said there is no unfunded mandate . 
in fact , several years ago in the medical malpractice legislation where we capped damages , capped awards , cbo said that is not an unfunded mandate . 
but this year the cbo analysts in question looked at it and said , while the evidence was difficult to ascertain , it could be construed as an unfunded mandate . 
the lawsuits that have been filed and could be filed are going to be filed on a wide range of issues . 
any particular court and any particular jury may find in this case or that case and we are not precluding that , but to somehow say that now because if the safe harbor provision were to become law that you would actually have to prove mtbe was defective , that somehow that is an unfunded mandate to me is just beyond the pale . 
i have got several court cases that have already been considered on the defective product situation with mtbe , and i would like to read those right now . 
in a new jersey case , a court ruled that mtbe was an oxygenate that congress contemplated would be used frequently . 
therefore , the court found : `` because congress required that gasoline include an oxygenate and specifically designated that mtbe would be one of the most common and effective oxygenates , this court concludes that gasoline containing mtbe can not be deemed a defective product. '' a california court , the state the gentlewoman hails from : `` federal law permits the use of mtbe , and the supremacy clause precludes state tort liability from attaching based on the mere use of this allowed option. '' the court reasoned that : `` permitting plaintiffs to pursue their common law claims conflicts with the reformulated gasoline and oxygenated fuels provisions of the clean air act and the regulatory actions taken under it. '' we have other court cases that we can put into the record . 
we have got several lines of opposition here . 
the first line is that we have already had the vote . 
we have the second line that this is not an unfunded mandate because we are not precluding what states can or can not do in the future . 
and under current law , the cleanup costs are borne 96 percent by the parties , not borne by the states . 
you have to have an orphaned site before the state would even come into it . 
so we think the allegation that it is unfunded is spurious on the measure . 
and , lastly , on the item of whether mtbe is defective as a product just because it is mtbe , it has clearly been ruled in several cases , and common sense would dictate , that something that is made properly and used properly and actually cleans up the air , there is no way that can be a defective product . 
i am giving members three lines of reasoning to vote against the capps amendment , and i would hope that when the vote comes that we keep the language in the bill and we are able to go to conference with the senate and continue to work to find a compromise if we need to do more to expedite the cleanup in those states that have mtbe contamination . 
mr. chairman , i reserve the balance of my time . 
