The stalling of the Republican-backed energy bill by a Democrat-led Senate filibuster was only a temporary reprieve. Now Senate majority leader Bill Frist vows to bring the bill up for “top priority” reconsideration when Congress reconvenes in January. For maximum speed he’d like the Senate to adopt the conference report intact and make any changes in a separate bill. The bill’s sponsor, Pete Domenici, is trying to round up enough votes during the recess to overcome the filibuster, but the bill is so tightly knit that pulling one thread could unravel the whole bundle. Democrats say they’ll use the opening to amend the bill so it addresses their concerns.

Both sides agree that what tipped the balance against this energy company piñata was the provision giving liability protection to Texas oil companies–pals of House majority leader Tom DeLay–responsible for contaminating the water supply with the gasoline additive methyl tertiary butyl ether, or MTBE. DeLay has blustered that he won’t go along with any tampering with the amnesty. If he gets his way, the MTBE cleanup could cost more than $140 billion–about the same as the savings and loan bailout.

Ignoring the warnings of scientists in and out of industry, oil companies started adding MTBE to gasoline in the 1980s. Foul-tasting and a suspected carcinogen, MTBE started leaking from underground storage tanks and into the nation’s drinking water the day they started adding it to gasoline. Today, the EPA says it is finally satisfied with proof that MTBE causes cancer in animals; the industry, predictably, disagrees. But none dare argue that MTBE tastes other than horrible, or that it has not contaminated at least 1,500 public water supplies in all fifty American states.

The energy bill would outlaw MTBE while relieving the oil industry of any potential liability in connection with its past use of the chemical or its cleanup. Call it high-test tort reform, more polluter-friendly than regular tort reform, which merely seeks to cap liability for punitive damages. This is a full-service, commit-a-crime-and-don’t-do-the-time, get-out-jail-free card to an industry that has behaved badly for a century.

The most painful irony is that MTBE wasn’t necessary in the first place. The industry claims the government forced it to use the stuff when, in 1990, it mandated the addition of so-called oxygenates to gasoline to improve air quality. The problem with this assertion is that the government never specified MTBE as the oxygenate. In fact, a completely viable alternative, ethanol, was used by many refiners to meet the oxygenation requirement. A proven octane booster that contains 35 percent oxygen, ethanol is water-soluble, biodegradable, nontoxic, easily made and readily available. While MTBE is made from a hazardous byproduct of oil refining, ethanol is derived from renewable farm products and crop waste–no oil necessary.

Yet the oil companies preferred MTBE because it was more profitable. Internal documents dating back almost twenty-five years show they lobbied for it before they started selling it–even though Shell, Exxon and others knew the additive had a propensity for traveling faster than gasoline in search of the ground water deep below leaking underground storage tanks. They knew MTBE didn’t biodegrade, that tanks leaked routinely. A Shell hydrogeologist testified in court that he dealt with MTBE spills as early as 1980, and around Shell, employees joked that the letters really stood for Most Things Biodegrade Easier or Money To Be Extracted. In January 1982 the National Petroleum News called leaking underground storage tanks “a serious problem now…literally a million time bombs.” A 1990 government study reported that of 6 million underground storage tanks in the United States, 2 million were leaking.

The MTBE story is remarkable in its similarity to the history of another gasoline additive–tetraethyl lead [see Kitman, “The Secret History of Lead,” March 20, 2000]. Both mark a familiar paradigm in America. An industry introduces a product that promises hefty profits but carries a recognizable potential for harm to people and the environment. Warnings are raised, but government regulators supinely accept industry’s claims about the product’s salubrity. In time, evidence of the product’s harmfulness mounts, buttressed by independent studies. The industry fights a delaying action, contending that the dangers are “not proven,” that “more studies are needed.” But by then the damage has been done.

In 2002 a California jury found Shell, Texaco, Equilon and Tosco guilty of irresponsibly manufacturing and distributing MTBE, which they knew would contaminate water. The jury also found that both Shell and Lyondell Chemical Company acted with “malice” by neglecting to warn customers of the dangers of MTBE water contamination. Countless suits like this one could be brought against America’s biggest oil companies and refiners, and many juries would lay the blame where it belongs. Oil companies would start having to cough up for cleanup. Instead, they are encouraged to hope that by Congressional fiat, they will be able to defy regulation, statute, tradition and every venerable precept of common law–and walk away scot-free.