DeLay's fumes cloud energy bill

The House majority leader has become the public face of a polluter-friendly provision of the president's energy plan, threatening its long-term prospects.

Published April 21, 2005 9:38PM (EDT)

Methyl tertiary-butyl ether, designed as a clean-air additive for fuel, has turned out to be fairly nasty stuff. Just a few drops of MTBE, as it's known, can make a water supply unusable. In larger concentrations, scientists say, it causes cancer. The chemical, in widespread use for decades, has been detected in nearly 2,000 water systems in 29 states, and that number is still rising. Although the companies involved -- including some of nation's largest oil refineries and suppliers -- have known for more than 20 years that MTBE was fouling waterways, they've been reluctant to get involved in the cleanup and are facing mounting litigation from affected communities.

Now these four little letters are absolutely guaranteed to raise the Bush administration's collective blood pressure as it tries to get an energy bill through Congress. But the MTBE threat the administration is most concerned with isn't environmental; it's political. Once before, House Majority Leader Tom DeLay's dogged determination to protect MTBE producers from legal jeopardy dragged the administration's entire energy plan down to defeat. And he's at it again.

A lot has changed since late 2003, the last time the Bush energy bill failed to make it through Congress. Gas prices have hit new highs -- prices have soared 80 percent since Bush first introduced his energy plan -- and the president's approval ratings have slid to new lows. A Gallup Poll earlier this month found that more Americans think the federal government needs to act immediately to lower gas prices (44 percent) than move on Social Security (37 percent), the president's top priority. No wonder the president feels a new urgency on energy legislation: "I wish I could simply wave a magic wand and lower gas prices tomorrow," Bush said on Wednesday.

The political sands may be shifting for Bush, but the one Washington constant is still Tom DeLay. For all the charges he's faced, DeLay has never been accused of a lack of consistency. Last week, he managed to add the same lawsuit-immunity provision to the House energy bill that torpedoed the energy bill's Senate chances last time around. And Tuesday night, he rebuffed the final frantic Democratic efforts to separate the measure from the main energy legislation, expected to pass the House as soon as Thursday.

But while DeLay's allegiance to MTBE producers may not have changed, the atmosphere around him has been undeniably transformed in recent months -- even Republicans on the House Ethics Committee now say they are ready for an investigation. DeLay's hardly the only big-time Republican to back MTBE liability immunity -- House Energy and Commerce Committee chairman Joe Barton, who's received around $750,000 from energy interests over the past decade, has also been a strong proponent of the measure -- but since last week's power play, the majority leader has become the public face of MTBE legal immunity, to the delight of Democrats and environmental groups.

Now that every move of the man from Sugar Land comes under a white-hot media spotlight, reporters have predictably spent the past few days scrutinizing the congressman's tangle of ties to oil companies and others who'd be spared legal jeopardy thanks to the provision. ("DeLay at Center of the Energy Debate" read one recent AP headline.) The energy bill's foes are scrambling to take advantage of the new reality around the majority leader. It's an association that pains the White House, but "to the public, this is becoming Tom DeLay's bill," admits a grim GOP congressional staffer.

"Last time, we were out front in identifying MTBE very aggressively as DeLay's measure. And we had some success," says Environmental Working Group Action Fund president Ken Cook. "The difference now is, the rest of the context is filled in: his junkets, the other corruption allegations." He adds, "There's kind of an odor around him this time, a willingness to believe things about Mr. DeLay and the lengths to which he's willing to go that is much stronger than was there before."

Democrats on the Hill predict the majority leader's woes may take a toll on the measure's long-term prospects. "He's still powerful, but people may not be as willing to take the hit for him the way they were two years ago," says a Democratic House committee staffer familiar with the legislation. "We're not talking fringe groups bringing these lawsuits here; we're talking the state of New Hampshire. Now people have to think: 'Am I willing to overlook a case by my school board, by the local water supplier, for Tom DeLay?' Some members still are, but it's becoming a harder sell."

And whether the DeLay controversy will further damage the bill's chances in the Senate, where the MTBE measure sank the bill last time, remains a very real question. Several Northeast Republicans, particularly New England senators such as John Sununu and Judd Gregg of New Hampshire (where MTBE was an issue during last year's presidential primary) have already signaled their unwillingness to support any measure that includes MTBE liability protection when the Senate takes up the measure next month. And Senate Energy Committee chairman Pete Domenici has made it clear the House will have to find a compromise on the issue, or the bill won't survive.

Of course, MTBE and Tom DeLay are hardly the only issues dogging the president's energy legislation. A provision inserted into the bill's "miscellaneous" section could mean the most drastic Clean Air Act changes since his father's administration. The measure, a favorite of groups like the National Association of Manufacturers, would free states from Clean Air Act requirements if some of their pollution comes from other heavily polluted areas located "upwind" until those areas had cleaned up their act. Outraged Democrats point out that nearly every state is "downwind" from somewhere else, and say this amounts to a repeal of federal air pollution requirements.

Meanwhile, the measure's growing tally of tax breaks for energy producers -- introduced at a time of sky-high oil prices -- is drawing scrutiny from press and politicians both. A new report by Taxpayers for Common Sense, one of several fiscal watchdog groups to announce their opposition to the energy bill this week, found the measure's cost this session had mushroomed by $35 billion in the three weeks since it was introduced, to the tune of a staggering $88.9 billion in tax breaks and industry subsidies over the next decade.

So the options for the GOP right now range from tough to tougher. Despite its lack of short-term solutions, the Bush energy bill is the Republican Party's sole proffered fix for high gas prices and other energy woes -- the political consequences of failing to pass it are unthinkable. But so is the impact, given the current climate, of creating legal immunity for an industry with a growing constituency of critics, using a provision now surrounded with an aura of corruption, or at least the perception of corruption.

Call it the mainstreaming of MTBE bashing: According to the most recent tallies, more than 20 million people in 112 congressional districts have been affected by MTBE-polluted drinking water -- the count of communities affected has risen by by more than 20 percent over the past two years -- and in 26 of those districts, municipalities have taken to the courts to force oil companies to fix the problem. More suits are on the way -- representing a lot of potentially angry voters.

The White House faces its own set of unappetizing options. Passing the energy bill remains priority No. 1 in the face of growing public pressure. But now the administration faces the very real prospect that a win on the energy bill could indirectly taint them with fallout from the DeLay mess.

What explains the Hammer's die-hard loyalty to liability immunity for MTBE? He's long stood up for the chemical industry out of conservative principle, and most MTBE manufacturers are Texas-based. But DeLay's detractors point to another motive closer to the bottom line: A recent Public Citizen tally of five years of contributions to DeLay's legal defense fund found that $107,000 came from energy and natural resources companies. His political action committee has been the recipient of even greater industry largesse; according to the Center for Responsive Politics, oil and gas companies, many of whom stand to benefit from the MTBE immunity provision, have donated more than $300,000 over the last three election cycles.

Last year, DeLay drew a rebuke from the Ethics Committee because he "at a minimum, created the appearance that donors were being provided with special access ... regarding the then-pending energy legislation." But it appears the congressman, never one to put much stock in appearances, hasn't yet taken that message to heart. Huntsman Corp., one of the nation's largest MTBE producers, has demonstrated a surge in DeLay-directed generosity over the past few months. Jon M. Huntsman Sr., Huntsman Corp., the Huntsman PAC and company CEO Peter Huntsman all gave the maximum contribution to the DeLay's legal defense fund in the last quarter of 2004; the $20,000 total put them in the top tier of his supporters. (And Huntsman's loyalty to DeLay doesn't stop there: Last January, the company hired the congressman's former deputy chief of staff, Tony Rudy, along with two of his colleagues from the Washington firm Alexander Strategies, to round out their formidable energy bill lobbying team.)

Besides protecting companies from the spate of MTBE-related lawsuits filed since late 2003, the House bill calls for phasing out the additive's use over a nine-year stretch. The increasingly handout-loaded bill would also give MTBE producers a $2 billion golden parachute to help with industry transition costs. Democrats are urging a faster phaseout plan that would end the additive's use by the end of the decade, and they are criticizing the GOP's generosity. "These [Republican] provisions represent a direct assault on the nation's safe drinking-water supply," a frustrated John Dingell, the ranking Democrat on the House Energy and Commerce Committee, told reporters. "MTBE producers have known for years that MTBE was a problem. They should not be asking the taxpayers to now pay for cleanup or for [a] corporate handout."

The GOP is clearly nervous about how the measure will play outside the Beltway. Anticipating the energy bill's House passage this week, Republican leadership launched a communications strategy on Tuesday designed to boost public support for the measure despite the lack of an immediate impact at the pump -- and to try to shift attention from the swarm of ethical questions surrounding Tom DeLay. The working idea, borrowed from the Bush administration, is to circumvent the national media, with its fixation on DeLay's corporate connections, in favor of local outlets. Republican representatives planned to blanket local airwaves using messages specifically developed for their region. (For instance: The winter-weary, blackout-wary Northeast is set to hear about home-heating cost assistance and an overhaul of the national power grid.)

Meanwhile, the White House's massive push for the energy plan has moved into high gear. The president devoted his radio address last Saturday to pressing the point, and he followed up a recent Hill lobbying visit by Energy Secretary Sam Bodman with scheduled meetings of his own yesterday with the chairmen of the House and Senate committees dealing with the bill. In a speech on Wednesday, he repeated his call for speedy passage. So far, the administration has kept largely mum on its views of both the MTBE provision and Tom DeLay's recent actions. As history draws closer to repeating itself, that may change, though success is far from certain; last time, White House calls for an MTBE compromise drew a public rebuff from the majority leader. ("We see no need for a giveaway to trial lawyers," sneered a DeLay spokesman shortly before the energy bill went down in flames.)

"I think if it comes down to having an energy bill or MTBE, the White House will speak out," says an organizer for a major environmental group actively opposing the legislation. "So the question is, does the cloud surrounding him, combined with the substance of this provision, cause Bush to speak out? The clearer it becomes that you can't have this liability shield and the bill both -- the question then is, not will the administration speak out publicly, but are they ready to pull out all the stops?"

Privately, even some GOP representatives who publicly support the measure have begun telling environmental lobbyists to keep the spotlight on Tom DeLay and what they view as the bill's flaws, particularly the MTBE provision. "What's ironic is, the White House has almost everything it wants in this bill, including ANWR. They did their best to strip it down to its bare essence, to ensure passage. Now this comes up," says Cook, of the Environmental Working Group Action Fund. "But Tom DeLay doesn't answer to anyone but himself."

By Rebecca Sinderbrand

Rebecca Sinderbrand is a writer based in New York.

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