Does New York's 2004 MTBE gasoline ban prohibit shipping MTBE-blended gasoline through the state in transit?

Plain-English summary

The New York Legislature banned MTBE (methyl tertiary butyl ether) in gasoline sold in the state, effective January 1, 2004. Agriculture and Markets Law § 192-g(2) reads: "[n]o person shall import into, or sell, dispense or offer for sale any gasoline which contains methyl tertiary butyl ether." MTBE had been added to gasoline as an oxygenate, but it had been leaching into groundwater and showing up in drinking water across the country. The 2000 law was a public-health response.

The petroleum industry asked the Commissioner of Agriculture and Markets whether the ban reached gasoline that simply passes through New York on its way somewhere else (for example, a pipeline shipment originating in New Jersey and ending in Massachusetts). The Commissioner asked the AG. The AG concluded that the statute does not reach in-transit gasoline.

The reasoning rested on the ordinary meaning of "import." Standard usage treats "import" as bringing goods in from somewhere else for trade or sale, not as conveying them through a place to an outside destination. Agriculture and Markets Law usage confirms that. Section 74 distinguishes "importing or bringing into" New York certain animals from "transporting" them through the state; Section 95-c does the same for horses. Section 117-a and Section 365 use "import" to mean bringing animals into the state for use here. The Legislature picked the same word for the MTBE statute, signaling that the prohibition was about goods entering for use, not goods crossing through.

The legislative history of L. 2000, ch. 35 supported the same reading. The Sponsor's Memorandum framed the law as protecting New York's water resources. The N.D.N.Y. district court in Oxygenated Fuels Ass'n, Inc. v. Pataki recognized that purpose. Goods crossing the state without entering its commercial stream do not threaten New York's groundwater in the way the ban was designed to prevent.

The AG also flagged a constitutional avoidance concern. Reading the ban to cover in-transit gasoline would have raised dormant Commerce Clause questions and possible federal preemption under the Hazardous Materials Transportation Act (49 U.S.C. § 5101 et seq.) and the Pipeline Safety Act (49 U.S.C. § 60101 et seq.). Tennessee Gas Pipeline Co. v. Urbach summarizes the dormant Commerce Clause concern. Kinley Corp. v. Iowa Util. Board (8th Cir.) and Jersey Central Power & Light Co. v. Township of Lacey (3d Cir.) frame the preemption concerns. Lavalle v. Hayden reminds courts to interpret statutes to avoid constitutional problems where possible. The AG used those authorities to confirm the narrower reading, without reaching the constitutional questions head-on.

The opinion expressly did not address common law liability or Navigation Law liability for petroleum discharges, which remained on the table even if a shipment was lawful under § 192-g.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did the 2004 MTBE law prohibit?
A: Agriculture and Markets Law § 192-g(2) made it unlawful to "import into, or sell, dispense or offer for sale any gasoline which contains methyl tertiary butyl ether." The ban took effect January 1, 2004.

Q: Why did the AG read "import" narrowly?
A: Because that is the ordinary meaning. Standard dictionary usage and the Court of Appeals' rule in Drew v. Schenectady County both call for the ordinary meaning unless the statute signals otherwise. The Agriculture and Markets Law uses "import" elsewhere to mean bringing in for use, and distinguishes "importing" from "transporting" through the state.

Q: Could a court have reached the opposite reading?
A: The AG acknowledged the textual hook in "import into," but found nothing in the statutory text, the broader Agriculture and Markets Law usage, or the legislative history to suggest the Legislature intended to reach pass-through traffic. The Sponsor's Memorandum framed the law as protecting state water resources.

Q: Does this opinion affect liability for a spill of MTBE-blended gasoline in transit?
A: No. The AG was explicit that the opinion was limited to § 192-g. Common law, the Navigation Law, and other discharge-liability statutes remained in play independently.

Q: What constitutional concerns informed the AG's reading?
A: Two. First, the dormant Commerce Clause limits state interference with interstate commerce, and a ban on in-transit shipments could trigger that limit. Second, the federal Hazardous Materials Transportation Act and Pipeline Safety Act preempt some state regulation of in-transit hazardous materials. The AG used the canon of constitutional avoidance, citing Lavalle v. Hayden, to confirm the narrower reading.

Background and statutory framework

Agriculture and Markets Law § 192-g was added by L. 2000, ch. 35, with effectiveness deferred to January 1, 2004. The statute reflects a national-trend response to MTBE contamination of drinking water sources. The federal courts had already considered constitutional challenges to it: Oxygenated Fuels Ass'n, Inc. v. Pataki, 158 F. Supp. 2d 248 (N.D.N.Y. 2001), upheld the ban against various federal challenges.

The AG's textual analysis drew on other sections of the same statute. Section 74 distinguishes "importing or bringing into" New York certain animals from "transporting" them through the state. Section 95-c does the same for horses. Section 117-a excludes from a low-cost spay/neuter program New York residents whose dog or cat was "imported" from outside the state, treating "import" as moving an animal in for keeping. Section 365 exempts from an ear-clipping ban dogs "imported" into the state for breeding. Each usage equates "import" with bringing in for use, not transit.

The constitutional avoidance overlay draws on Tennessee Gas Pipeline Co. v. Urbach (dormant Commerce Clause), Kinley Corp. v. Iowa Util. Board (state regulation in tension with the Pipeline Safety Act), and Jersey Central Power & Light Co. v. Township of Lacey (Hazardous Materials Transportation Act preemption). Lavalle v. Hayden articulates the presumption of constitutionality and the avoidance canon.

Citations and references

Statutes:

• Agriculture and Markets Law § 74 (importing vs. transporting animals)
• Agriculture and Markets Law § 95-c (importing vs. transporting horses)
• Agriculture and Markets Law § 117-a (spay/neuter program use of "import")
• Agriculture and Markets Law § 192-g (MTBE prohibition)
• Agriculture and Markets Law § 365 (ear-clipping exemption use of "import")
• L. 2000, ch. 35 (enacting § 192-g)
• 49 U.S.C. § 5101 et seq. (Hazardous Materials Transportation Act)
• 49 U.S.C. § 60101 et seq. (Pipeline Safety Act)

Cases:

• In re Drew v. Schenectady Co., 88 N.Y.2d 242 (1996)
• Oxygenated Fuels Ass'n, Inc. v. Pataki, 158 F. Supp. 2d 248 (N.D.N.Y. 2001)
• Tennessee Gas Pipeline Co. v. Urbach, 96 N.Y.2d 124 (2001)
• Kinley Corp. v. Iowa Util. Board, 999 F.2d 354 (8th Cir. 1993)
• Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103 (3d Cir. 1985)
• Lavalle v. Hayden, 98 N.Y.2d 155 (2002)

Other authorities:

• American Heritage Dictionary of the English Language, 4th Ed. (2000)
• Sponsor's Mem., Bill Jacket, L. 2000, ch. 35

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2003-F4_pw.pdf

Original opinion text

AGRICULTURE AND MARKETS LAW §§ 74, 95-c, 117-a, 192-g, 365; L. 2000, CH. 35; 49 U.S.C. §§ 5101, 60101.

Section 192-g of the Agriculture and Markets Law does not prohibit the transporting of gasoline containing MTBE from a point outside New York, through the State, to a point outside it.

December 29, 2003

Hon. Nathan L. Rudgers
Commissioner
Dept. of Agriculture and Markets
1 Winners Circle
Albany, New York 12235

Formal Opinion
No. 2003-F4

Dear Commissioner Rudgers:

You have requested an opinion interpreting Agriculture and Markets Law § 192-g, scheduled to take effect January 1, 2004. This statute provides, in relevant part, that "[n]o person shall import into, or sell, dispense or offer for sale any gasoline which contains methyl tertiary butyl ether." Ag. & Markets Law § 192-g(2). You have indicated that entities involved in the gasoline industry have asked whether this statute prohibits the transporting of gasoline containing methyl tertiary butyl ether ("MTBE") through New York from a point outside New York to another point outside the State. We believe that the provision is not intended to apply to the situation where gasoline is being conveyed through New York from and to jurisdictions outside the State, without being offered for sale within New York.

A fundamental rule of statutory construction is that words of ordinary import in a statute are to be given their usual and commonly understood meaning, unless it is clear from the statutory language that a different meaning was intended. See, e.g., In re Drew v. Schenectady Co., 88 N.Y.2d 242, 246 (1996). The word "import" is commonly understood as meaning "to bring or carry in from an outside source, especially to bring in (goods or materials) from a foreign country for trade or sale." American Heritage Dictionary of the English Language, 4th Ed. (2000).

Section 192-g prohibits a person from "import[ing] into, or sell[ing], dispens[ing] or offer[ing] for sale" any gasoline containing MTBE. We believe that the word "import" as used in this provision was intended to have its common meaning. Initially, we note that "import" is not defined in section 192-g or elsewhere in the Agriculture and Markets Law, nor does the statutory language contain any other indication that a different meaning was intended. Furthermore, this interpretation is consistent with the use of the term "import" elsewhere in the statutes governing New York's agricultural industry. These provisions distinguish "importing" products from "transporting" them, see, e.g., Ag. & Markets §§ 74 (distinguishing between "importing or bringing into" New York certain animals and transporting them through the State); 95-c (distinguishing between "importing or bringing into" New York and "transporting" within the State horses); or suggest that "importing" into New York includes use in, not just conveyance through, the State, see, e.g., Ag. & Markets §§ 117-a (excepting from eligibility for a low-cost spay/neuter program New York residents who own a dog or cat who was "imported" from outside the State); 365 (excepting from the prohibition against clipping the ears of dogs those dogs who are "imported" into the State for breeding purposes). Because section 192-g uses the word "import," rather than, for example, "transport through," we believe that the section was not intended to apply to the conveyance of MTBE-containing gasoline through New York from and to points outside the State.

In addition, we have found no evidence in the legislative history to section 192-g that the Legislature intended to regulate the conveyance of gasoline through New York. See Sponsor's Mem., Bill Jacket, L. 2000, ch. 35, at 6 ("This legislation will protect New York State's water resources . . .."); Oxygenated Fuels Ass'n, Inc. v. Pataki, 158 F. Supp. 2d 248, 252 (N.D.N.Y. 2001) ("The legislative history of the N.Y. MTBE Law establishes that its purpose is to protect New York's groundwater from contamination, and this is not seriously contested by plaintiff.").

Moreover, inferring an intent to limit the transporting of gasoline containing MTBE through New York from and to points outside of the State might draw into question the constitutionality of the statute. See, e.g., Tennessee Gas Pipeline Co. v. Urbach, 96 N.Y.2d 124, 130 (2001) (United States Supreme Court has interpreted the Commerce Clause as having "dormant" implication that prevents States from unduly interfering with interstate commerce); Kinley Corp. v. Iowa Util. Board, 999 F.2d 354 (8th Cir. 1993) (discussing Pipeline Safety Act, 49 U.S.C. § 60101 et seq., in context of federal preemption of state legislation); Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103 (3d Cir. 1985) (discussing Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq., in context of federal preemption of local legislation); see also Lavalle v. Hayden, 98 N.Y.2d 155, 161 (2002) (legislative enactments enjoy strong presumption of constitutionality; construction of statute should avoid, if possible, interpreting presumptively valid statute in manner that will needlessly render it unconstitutional).

For the reasons discussed above, we are of the opinion that section 192-g of the Agriculture and Markets Law does not prohibit the transporting of gasoline containing MTBE from a point outside New York, through the State, to a point outside it.

Very truly yours,

ELIOT SPITZER
Attorney General