Vote-counters outside Congress have mounted an effort to identify issues in -- or not in -- the energy conference report that might incite a filibuster. (That excludes, of course, ANWR, which everyone recognizes as a bill-killer, a ‘red herring’ that is likely to be dropped from any final conference report.) Even now, the filibuster question is nearly impossible to answer. Central elements like ethanol and electricity have not yet moved from secrecy to sunshine. Until Democrats see the final conference report in its entirety, there is an unwillingness to make that judgment or declare what they will do. However, certain issues are clearly flash points in the Senate. Earlier Updates have highlighted some of these with the forwarding of letters that have 41 or more signatures. To this we add another letter – signed by 43 Senators – in opposition to waiving product liability for the controversial fuel additive MTBE: October 10, 2003 Dear Senator Domenici and Congressman Tauzin: We are writing to request that you oppose including a liability waiver for MTBE (methyl tertiary butyl ether) producers in any energy bill that comes out of conference. Although used in gasoline starting in 1979 in the United States, MTBE came into widespread use after Congress amended the Clean Air Act in 1990 to require that regions with poor air quality use reformulated gasoline containing oxygen. While the clean air benefits of the reformulated gas program have been significant, the use of MTBE, one oxygenate, has caused serious damage to water quality throughout the United States. MTBE is classified as a possible human carcinogen. Due to the chemical properties of MTBE, when it leaks into water, it moves through water rapidly, resists natural degradation, and causes water to take on the taste and smell of turpentine. According to the General Accounting Office, MTBE has now been detected in groundwater and drinking water in every state in the nation. Contrary to the assertions of MTBE producers, the Clean Air Act does not mandate the use of MTBE. In fact, MTBE was nowhere mentioned in the 1990 amendments, which were expressly fuel and additive neutral to allow the oil companies and the market to choose how to satisfy their requirements. Industry responded by choosing to use MTBE to meet that performance requirement. Court documents assert that MTBE manufacturers were aware that the fuel additive posed a threat to drinking water and failed to warn their customers. Specifically, several companies have settled suits after a jury decision in 2002 found that gasoline containing MTBE is a defective product because the risks of MTBE outweigh the benefits and because oil companies failed to warn customers of the risks MTBE poses to the environment and drinking water. Indeed, the jury found "clear and convincing evidence" that producers acted "with malice." There is no reasonable justification for Congress to step in and prevent a full and impartial airing of the liability issue in our courts. A September 2003 Zogby poll found that, "By an 86% - 8% margin, voters say that oil and petrochemical companies should be held responsible for paying to clean up the [MTBE] pollution." MTBE has contaminated significant portions of the nation's precious drinking water. Congress should act swiftly to discontinue its use and ensure that the polluters pay to clean up the mess to which they have knowingly contributed. There is no reason to shift the multi-billion dollar clean up costs to communities and citizens who were and are innocent of blame. Sincerely, Sen. Barbara Boxer Sen. Tom Daschle Sen. Charles Schumer Sen. Hillary Rodham Clinton Sen. Jack Reed Sen. Jeff Bingaman Sen. John McCain Sen. Lincoln Chafee Sen. Patrick Leahy Sen. John Kerry Sen. Tom Harkin Sen. Joe Lieberman Sen. Maria Cantwell Sen. Bill Nelson Sen. Barbara Mikulski Sen. Russell Feingold Sen. Jon Corzine Sen. Ron Wyden Sen. Tom Carper Sen. Daniel Inouye Sen. Susan Collins Sen. Patty Murray Sen. Joe Biden Sen. Fritz Hollings Sen. Mark Dayton Sen. Ted Kennedy Sen. Chris Dodd Sen. Frank Lautenberg Sen. Carl Levin Sen. Debbie Stabenow Sen. Paul Sarbanes Sen. Herb Kohl Sen. Gordon Smith Sen. Jim Jeffords Sen. Harry Reid Sen. Max Baucus Sen. Richard Durbin Sen. Ben Nelson Sen. John Edwards Sen. Daniel Akaka Sen. Tim Johnson Sen. Evan Bayh Sen. Olympia Snowe