[Congressional Record Volume 149, Number 169 (Thursday, November 20, 2003)]
[Senate]
[Pages S15311-S15316]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ENERGY POLICY ACT OF 2003
Mr. GRASSLEY. Mr. President, I am going to discuss the legislation
before the Senate, the Energy bill. In order to secure our country's
economic and national security, we need to have a balanced energy plan
that protects the environment, supports the needs of our growing
economy, and reduces our dependence on foreign sources of energy.
Balance has been my guiding light as I worked legislation through the
Finance Committee, which I chair, for tax incentives for energy. I
wanted to make sure we had a very balanced piece of legislation. By
balanced, I mean balanced between fossil fuels, conservation, and
renewable fuels.
We do have in the finance provisions of this Energy bill very
balanced provisions for fossil fuels, for near-term energy needs, but
we also legislate for the future as we have emphasis upon renewable
fuels, wind energy, biomass, biodiesel, ethanol, and things of that
nature. We have tax incentives for that.
Then we also have tax incentives for conservation. It is my belief
that a well-balanced piece of energy legislation, with tax incentives
for fossil fuels, for renewable fuels, and for conservation, is not
only good for such policy, but I have come to the conclusion that is
the sort of legislation we have to have to get the bipartisanship it
takes to get a bill through the Senate.
Now, the other body, in writing similar legislation out of their
finance committee--over there it is called the Ways and Means
Committee--it seemed to me it was very tilted toward fossil fuels. It
was my job, representing the Senate, to make sure from the conference
with the House of Representatives we came out with a balance. I think
we did come out with that balance.
I commend that balance to this body, to think about that as you vote
on cloture tomorrow. Give us an opportunity to vote this bill up or
down, and consider that my committee, in bringing this balance--for
conservation, for renewable fuels, and for fossil fuels--tried to do
what we could to get a majority vote in this body.
Now, of course, we need a supermajority vote, and that supermajority
vote is to stop a Democrat filibuster against this bill. In a time like
this, when the energy needs of our country are so great, and we are in
a crisis situation, we should not tolerate a filibuster against this
bill.
Every man, woman, and child in the United States is a stakeholder
when it comes to developing a responsible, balanced, stable, and long-
term energy policy.
The events of September 11 have made very clear to Americans how
important it is to enhance our energy independence. We can no longer
afford to allow our dangerous reliance on foreign sources of oil to
continue.
But somehow we can wait; and we do wait. We should not wait, but we
seem to wait in a way that causes that wait to make ``too good of an
impact.'' It has been over 10 years since we passed energy legislation
in this body. But if we wait until we get that perfect piece of
legislation, we may be waiting forever. And by waiting forever, we will
suffer the consequences of less supply and higher prices.
I do not know about folks in all parts of the country, but I know I
was brought up in the State of Iowa just to have dependence upon our
sources of energy. When you go to the gas pump, you put the hose in
your car, you move the lever, you expect to get gasoline. When you flip
the light switch, you expect the lights to come on.
In order for that to happen, and for the price to be stable, just a
small percentage at the margins of supply is necessary in order for us
to have that stability and that certainty.
Some people in this country believe that one way to change American
lifestyle is to force down the supply of energy. I happen to believe
that Americans ought to have a massive amount of choice; that we do not
need a bunch of bureaucrats or interest groups in Washington dictating
to us that somehow, through an energy policy, by cutting back on the
amounts of energy, they are going to bring about their ``perfect''
society.
This bill is obviously not perfect. And to those who complain about
various provisions, I just remind them, if they drafted a ``perfect''
bill--and there probably would never be one--it would not pass the
House or the Senate.
Some say the process has not been perfect. But if the process had
been perfect for some, it would not have been perfect in the view of
others. And that is fairly common in any legislating process.
While we are talking about process, I would like to clarify the role
the Senate Finance Committee, which I chair, played in this bill. We
have heard a lot about Republicans shutting Democrats out of the
conference process. Well, that is not the way I operate as chairman.
That is not the way my Democrat counterpart, Senator Baucus, operated
when he was chairman of this committee when the Democrats were in the
majority in the last Congress.
With respect to the tax provisions of the bill, the process was open.
Senator Baucus attended conference committee meetings. Finance
Committee Democratic staff worked side by side with my Republican staff
in the conference negotiations.
I might add, they were a key asset for us in the protracted
negotiations with the House Ways and Means Committee. Conferee staff on
both sides of the aisle was informed as the process moved forward.
If it is ``perfection'' you are insisting upon, then you are in the
wrong business. Legislating is neither a perfect process nor does it
produce perfect products.
The Energy Security Act of 1992--the last one that Congress passed--
was not perfect. That quickly became clear.
In 1995, after extensive interagency review and analysis, under
provisions of section 232 of the Trade Expansion Act of 1962, the
Clinton administration concluded that oil imports threatened our
national security.
Such a finding, under this law, gave him the authority to impose
quotas and import fees on oil. But he chose to do nothing because he
believed that import adjustments would be too harmful to the economy.
Within 3 years of passing what was called an Energy Security Act, the
fact is, our national security only worsened. When national security is
not in good shape, it is probably because our economic security has
worsened.
So what do we do? Do we do nothing? Do we wait for a perfect piece of
legislation? Do we wait for market forces to save us? We heard earlier
today criticism of this Energy bill because it fails, in so many words,
to allow the free market to work its magic. The bill is not perfect, it
has been argued, because it favors one energy source over another. You
can go on and on and on. I would like to talk about that favoritism,
and I would like to talk about the marketplace.
During the debate on the 1992 Energy Security Act, the chairman of
the Energy Committee at that time, former Senator Bennett Johnston of
Louisiana, stated that each barrel of imported oil was subsidized by
the taxpayers to the tune of $200 per barrel. That is outrageous.
Anybody listening to that says I had to misquote something.
But again, let me explain from this leading Senate expert on energy,
as Senator Johnston was, he is telling us that imported oil is
subsidized $200 for each and every barrel. Is that favoritism, when we
subsidize imported oil at $200 a barrel? Are we picking winners and
losers? What does that tell us about the so-called free market system?
How can our domestic energy producers compete with that? It makes a
mockery of the argument that we must sit idly by and let the
marketplace control our energy policy.
How absurd can we be? On one hand, we subsidize imported oil, and we
do that through the military expense it takes to protect the trail of
oil from the Middle East to our shore or what we are doing in the
Middle East now to preserve peace over there, cutting down on terrorism
as part of that. But on the one hand we subsidize imported oil, and
then we wonder why we become dangerously dependent upon that foreign
oil. The Government, through a massive interagency review, declares
that our national security is at risk because of imported oil but then
declines
[[Page S15312]]
to do anything about it because we might disrupt our domestic economy.
So any way you look at it, we are in a box that we need not be in, if
we can get this legislation passed.
The marketplace won't save us because we stacked the deck in favor of
foreign oil. Again, I ask: What do we do in response to this imperfect
world in which we find ourselves? Pass a bill that picks winners and
losers? The answer is a definite yes. The winners we pick in this bill
are all Americans, all of whom have a stake in reducing our dependence
upon foreign sources of oil. We do this by favoring domestic producers
over foreign producers. That is true of oil and natural gas, but it is
also true of our supply of renewable fuels.
It is well past time that we get serious about implementing energy
efficiency and conservation efforts, investing in alternative renewable
fuels, and improving domestic production of traditional resources. I
support a comprehensive energy policy consisting of conservation
efforts on the one hand, the development of renewable and alternative
energy sources on the other hand, and on the third hand, domestic
production of traditional sources of energy.
As my colleagues well know, I have long been a supporter of
alternative and renewable sources of energy as a way of protecting our
environment, increasing our energy independence. That started with my
work with former Senator Robert Dole on legislation for tax incentives
for ethanol. It was my own work in 1992, developing the wind energy
tax credit, that has increased our production of electricity by wind.
My State of Iowa, for instance, is third of the 50 States in the
production of wind energy, as an example. So obviously, you know I
strongly support the production of renewable domestic fuels. I
particularly emphasize, in addition to ethanol, biodiesel made from
soybeans. As domestic renewable sources of energy, ethanol and
biodiesel can increase fuel supplies, reduce our dependence upon
foreign oil, and increase our national economic security.
For the first time we have a tax incentive in this legislation for
production of virgin and recycled biodiesel. This is a new market for
soybean farmers and yet another source of renewable energy. The
renewable fuels standard, supported by a broad coalition, is good for
America's farmers, obviously good for the environment, good for our
consumers, good for creating jobs in our cities in the production of
this fuel, and good for our national security, as we are less dependent
upon foreign sources of oil.
A key reform in this Senate bill deals with the treatment of ethanol-
blended fuels for highway trust fund purposes. Tax incentives for
ethanol are unique in terms of their treatment in the Tax Code. Unlike
incentives for other energy sources such as oil and gas, the revenue
for ethanol incentives comes out of the highway trust fund because it
simply is not paid into the trust fund in the first place. This bill
makes it clear that those incentives will be treated like all other
energy incentives: The revenue will be made up to the highway fund from
the general fund.
We didn't get all of the Senate reform in this conference agreement.
A gesture to the House was that we would defer repealing the partial
tax exemption these fuels get until the next highway bill, which is
early next year. The same is true with respect to the transfer of the
2.5 cents fuel tax that ethanol-blended fuels do pay. That highway bill
will be before us early next year. The current highway trust fund
spending authority runs out on February 29 next. So we have to get it
passed early.
My friend Senator Baucus has made this highway trust fund reform a
priority of his. Together, he and I will ensure that the highway trust
fund is made whole for the gap between now and February 29. I have the
assurance of the leadership of both bodies that our deferral will not
prejudice the highway community.
As chairman of the Senate Finance Committee, I worked closely with
ranking member Senator Baucus to develop a tax title that strikes a
good balance between conventional energy sources, alternative and
renewable energy, and conservation. Among other things, it includes
provisions for the development of renewable sources of energy such as
wind and biomass, incentives for energy-efficient appliances in homes,
and incentives as well for the production of nonconventional sources of
traditional oil and gas.
This bill reflects the broad diversity of energy resources in the
United States. There are new benefits for clean coal technology. Our
colleagues from the Rocky Mountains and the Ohio Valley produce and use
this abundant source for the generation of electricity.
Burning coal for electricity can lead to environmental problems. This
bill goes a long way toward remedying the pollution problems associated
with coal use. In the heartland, agriculture is a key part of our
economy. Agricultural activities result in food that our people in the
cities eat. There is also waste that results from farming. New
technology has given us a twofer in the farm community. I am talking
about equipment and processes that convert animal waste to energy. This
technology needs a bit of a lift to get off the ground, so we have tax
benefits to get these new technologies started.
Now we have heard some big city folks and big city papers ridicule
some of the tax benefits for this new technology. I guess I would ask
these folks from the big cities just a couple questions: Do you think
it is wise to address these environmental problems? Do you think it is
wise to ignore a new source of energy?
I believe the Senate Finance Committee did a good job in addressing
our Nation's energy security in a balanced and comprehensive way. I
believe the Congress has finally gotten to the point of addressing an
issue with such a direct impact on our national economic security. For
the sake of our children and grandchildren, we must implement
conservation efforts, invest in alternative and renewable energy, and
improve the development and production of domestic oil and natural gas
resources. We must do it now. That is what this legislation does.
Before we get to an up-or-down vote on this legislation, we have to
face the issue of a Democrat filibuster against this legislation, and
that filibuster is going to keep us from voting, if we don't get 60
votes tomorrow. We have to have those Senators of both parties that
represent primarily the grain-growing regions of the country, from Ohio
west to Nebraska, and from Arkansas north to the Canadian border, stick
together tomorrow on what we call the cloture vote, to get 60 votes. We
are going to lose six Republicans from the Northeast. We have to pick
up about 15 Democrats to get this job done. I expect that we can,
because most of the bulwark of support of the last 20 years for
renewable fuels--meaning ethanol, biodiesel but also including wind
energy, geothermal, things such as that--have come from people within
the Democrat Party, but particularly from what I call the upper Midwest
of the United States, the grain-producing regions of the country. If we
all stick together, I think we can produce these votes.
There is tremendous leadership from that part of the country. Senate
Democratic Leader Tom Daschle, from South Dakota, has always been a
leader in the production of renewable fuels, and particularly ethanol.
He can claim a lot of credit for what we have done in that area over
the past. I know he is not supporting cloture, but I also know, as
Democrat leader, he has an opportunity to use a lot of muscle in his
efforts as leader to produce the votes we need.
We cannot afford to lose votes on this issue if we are going to get
the job done. I think there are a lot of other people who ought to be
concerned about it. Senators on the other side of the aisle are
concerned about conservation of energy, and rightly so. I pointed out
how I felt, that we need a balanced bill between fossil fuel,
renewables, and conservation.
There are a lot of conservation provisions in the tax provisions of
my legislation that ought to get support from the other side. There has
been some talk, particularly from the other side, that some people have
tried to twist the arms of our colleagues to be against cloture, which
means to keep the bill from coming to a final vote, arguing that we can
refer this back to conference and get certain provisions taken out.
That is not going to work
[[Page S15313]]
under the Senate rules. This cannot be referred back to conference.
Once it passed the other body, conference doesn't exist.
There has been some talk, when it comes to the important provisions I
have talked about and have been a part of--I even complimented Senator
Daschle for being a proponent of these for a long period of time--what
we call the renewable portions of it, or this part of our legislation
that makes up for the road fund. The money lost to the road fund can be
made up from the general fund. That is all in this bill.
We have tax incentives for ethanol until the year 2010. We have an
ethanol-like tax incentive for biodiesel. We have the renewable fuels
standard, which mandates 5 billion gallons of ethanol to be used every
year, phased in over a few years. That is 20 percent of our corn crop.
Just think how that will benefit agriculture, cut down on taxpayers'
subsidies to farmers over the long haul, and clean up the environment
at the same time.
But all of these provisions are in this bill. It was not something
that was easy for me to get through conference. If it had not been for
the intervention of the Vice President in offering a compromise that
the House of Representatives did not want to accept, we would not have
such a perfect piece of legislation for renewable fuels in this bill.
As I started to say, there has been talk on the other side that
somehow we can get this all done in a conference on transportation next
year when the highway bill comes up. Well, all you have to do is sit in
conference with members of the Ways and Means Committee and find out
how they love fossil fuels. God only made so much fossil fuel; it is a
finite quantity. But on the other side of this Capitol Building, the
idea is there is no end to it. You don't need to worry about renewable
fuels.
So they come to conference with heavy emphasis upon fossil fuels, not
wanting to give tax credits to biodiesel, and to wind and ethanol, and
they don't like the renewable fuels standard mandate of 5 billion
gallons. Some people are being told it is just a simple process of
getting this done next February, so you can vote against cloture and
kill this bill.
If you knew how hard it is to negotiate this, this is the last train
to leave town. If you want good provisions for biodiesel, good
provisions for ethanol, good tax incentives for conservation, that is
the wave of the future for energy. But if this bill is filibustered to
death, don't count on me bringing back ideal provisions on renewables.
I cannot guarantee that. Nobody else can guarantee it. We don't know
what next January and February is going to be like.
When we have a bird in the hand, it is worth two in the bush. I hope
my colleagues, particularly the Democrats who are filibustering this,
and particularly anybody from the grain-producing parts of the United
States, where they benefit from renewable fuels, will work hard to
produce the votes and help us to get the 60 votes so we can pass this
bill in an overwhelming way.
Don't tell me you are for ethanol, don't tell me you are for
biodiesel, don't tell me you are for putting general fund money into
the road fund to make up for lost revenue from ethanol--and this bill
does that.
Don't tell me those things if you are not going to help us fight hard
to get the 60 votes necessary to break the filibuster.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Mr. President, I know the hour is late, and I appreciate
the indulgence of the staff on the floor of the Senate. It has been a
long day for them in the Senate to listen to a lot of speeches
predominantly about the Energy bill, although I gather there has been
some discussion about the Medicare prescription drug bill as well. I
apologize to those who have been around here a long time today to have
to listen to yet one more Member of this institution express his views
on the matter we will be voting on tomorrow morning at around 10:30
a.m.--and that is the Energy bill.
I listened with great interest to my good friend from Iowa, with whom
I have served now in the institutions of the Senate and the House of
Representatives for about 30 years. We have been through a lot of
battles, both together and on opposite sides. I always find his remarks
compelling, interesting, and admire him immensely. He has been a very
effective Member of this body for a long time. I appreciate his work.
He has been through a lot in the last couple of years. He is chairman
of the Finance Committee, and he has an awful lot of matters with which
to deal. I appreciate his service. I regret on the matter before us we
have a different point of view on the Energy bill. I care deeply about
the subject matter. I know my colleague from Iowa does. Certainly, he
raises some very significant issues as they pertain to renewable energy
resources. Were this a bill about just that question, he would have my
unyielding support.
Unfortunately, there is more to this bill--it is more than 1,100
pages. My Governor--a Republican Governor--of the State of Connecticut
and most of the membership of the State legislature have taken a
different view because of the adverse impacts on my State, just as it
has positive impacts on the State of Iowa and the grain-producing
States. That is a major reason many of our colleagues, both Democrats
and Republicans, are opposed to the bill.
They must understand, for those of us who come from other parts of
the country, we have to evaluate a bill such as this and take a look at
what it does to our economy, our environment, our energy needs, as well
as the health of our people. For those reasons, on a bipartisan basis
in my State, there have been strong expressions of opposition to this
bill. I wish to take a few minutes to outline those reasons.
Tomorrow morning at 10:30 o'clock, there will be bipartisan
opposition to invoking cloture. This is not a question where, on many
issues, Democrats and Republicans line up very neatly on one side of
the aisle or the other. There will be Democrats who will oppose
cloture; there will be Democrats who will support cloture; there will
be Republicans who oppose cloture; there will be Republicans who
support cloture. This is a matter of people looking at legislation that
evolved in the conference committee.
My respect for the Senator from New Mexico, Mr. Pete Domenici, as he
knows, is tremendous. I have great regard for him. I admire his
leadership in the Senate. I have enjoyed working with him on numerous
occasions. He has been a very fine Senator for many years. I know he
put a lot of work into this bill. If I were to vote on this measure
exclusively on the basis of friendship, I would be a strong supporter
of this bill because I happen to like Pete Domenici a great deal. But I
cannot, in all good conscience, vote for something that does such
damage to my State, to my region, to my country.
This legislation would have been better crafted at the end of the
19th century and the beginning of the 20th century than the beginning
of the 21st century. This is a 20th century Energy bill, not a 21st
century Energy bill. It is important, with the few hours remaining
between tonight and tomorrow morning, to know what this bill may do to
the country and the people of this country might express to their
elected representatives their strong feelings about what is in this
bill.
Like any other legislation in my 24 years here, there are good pieces
to this. I am not going to stand here and suggest everything in this
bill is wrong. It is not. The Senator from Iowa has already mentioned
the idea of using some of our natural resources to provide a renewable
source of energy.
As a Senator from Connecticut, I tried to be very sympathetic and
supportive of those kinds of issues. If this bill were exclusively
about that, I would not have any real difficulties with it. But no
Member ought to vote for a bill such as this for the simple reason that
one provision of this bill is good for their State. You must take into
consideration all the damage that can be done to the very people of
that State if we adopt the measures included in this bill.
This is not, as I say, a 21st century energy policy. Let me quote the
Orlando Sentinel of November 18. This is not a Connecticut newspaper,
it is a Florida newspaper. Listen to what they say:
Start Over: The Energy bill before Congress is worse than
what exists.
They continue:
[[Page S15314]]
Two-thirds of the tax breaks would go to the oil, natural-
gas and coal industries, helping to perpetuate the country's
dependence on fossil fuels. Less than a quarter of the breaks
would promote the use and development of renewable energy
sources, and less than a tenth would reward energy efficiency
or conservation.
Tonight there are literally thousands of young Americans who are
stationed in a place called Iraq. I don't believe they are there
exclusively, as some do, because of the oil issue, because of the
dependency that this Nation and the Western alliance has on the Middle
East for its energy supplies. I also don't think it is not a reason. It
is certainly part of the reason. I know there are others who believe it
is the whole reason. I don't subscribe to that. If I did, I would never
have supported the authorization of use of force by the President to go
into Iraq, for which I voted. I believe it is part of the reason. I
believe we are over there trying to protect the economic and energy
interests of the United States in part because of our dependency on
that part of the world.
Why at a moment such as this, when our country is at such risk,
particularly over its future economic policy, would we pass an Energy
bill such as this? Now more than ever, this bill ought to be doing
everything in its power to support energy resources that are truly
renewable, such as the Senator from Iowa suggested, balanced with other
resources that have been supported by other Members of this Chamber.
And it certainly should do more on conservation and efficiency.
As the Orlando Sentinel pointed out, as I mentioned a moment ago,
less than a tenth of this bill would reward energy efficiency or
conservation--less than one-tenth of this bill. Here we are in 2003,
with all of the problems we face in the Middle East and elsewhere, and
one-tenth of this bill is dedicated to energy conservation and
efficiencies, and only a quarter of the tax breaks would be to promote
the use and development of renewable energy sources. On that basis
alone, this bill ought to be reconsidered before we go forward.
The Governor of my State, John Rowland, has served as the president
of the Republican Governors Association during his tenure as Governor.
John Rowland and I have significant differences on a lot of issues. But
on this issue, he has written to all members of our delegation in
response to what is in this bill. I want to read into the Record some
of the comments of the Republican Governor of Connecticut, shared, I
might add, by many Governors all across this country.
This is a bipartisan notion of caution about what we are about to do.
He mentions five or six reasons why this bill ought to be reconsidered.
I ask unanimous consent that the full text of this letter be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
State of Connecticut,
Executive Chambers,
Hartford, CT, November 18, 2003.
Hon. Christopher J. Dodd,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Hon. Joseph I. Lieberman,
U.S. Senate, Hart Office Building, Washington, DC.
Gentlemen: Yesterday, the House and Senate energy conferees
approved of a multibillion dollar omnibus energy bill. The
energy bill passed the House just moments ago and, as such,
the Senate may hold a vote on the bill as early as tomorrow.
While this office is presently engaged in reviewing the
finer details of this legislation, a couple of noteworthy
items have already come to light that are especially
disconcerting.
First, this bill undermines the delicate balance of federal
and state rights. It gives unprecedented authority and
standards of review exclusively to the federal appeals court
in the District of Columbia to review actions required for
the construction of a natural gas pipeline. State
environmental and siting laws would essentially be reduced to
a process of rubber stamping Federal Energy Regulatory
Commission (``FERC'') certificates of public convenience and
necessity. In addition, any delay, however well founded it
may be, such as considering ways to protect the state's
natural resources, may be grounds for an appeal and federal
override of a state's ruling. State courts would be stripped
of jurisdiction over matters arising in the state that not
only affect the state, but also relate to the interpretation
of state statutes and regulations.
Second, this proposed legislation would codify a Department
of Energy Order that resulted in the operation of the Cross
Sound Cable that runs from New Haven to Brookhaven. You may
recall that the Cross Sound Cable was not operational before
the August 14, 2003, blackout because the cable failed to
meet federal and state permitting requirements concerning its
depth. Section 1441 of the bill states that ``Department of
Energy Order No. 202-03-2, issued by the Secretary of Energy
on August 28, 2003, shall remain in effect unless rescinded
by Federal statute.'' This sets a bad precedent.
Third, the bill generally limits the time frame for
development of Coastal Zone Management consistency appeal
records, constraining the states and the Secretary of
Commerce in making informed decisions. In the same vein, this
legislation limits the record on consistency appeals
addressing pipelines to the record developed by the FERC.
Historically, FERC's record has been inadequate to evaluate
and protect the state's natural resources. The legislation
deprives Connecticut and other coastal states of the tools
they need to manage their coastal resources.
Fourth, this legislation authorizes the postponement of
ozone attainment standards across the country when the
problems are shown to have originated outside the state. This
not only hinders Connecticut's progress toward improving air
quality, but also likely has significant health ramifications
for Connecticut's residents. Contrary to general practice,
this language was added behind closed doors, without
meaningful opportunity for public debate.
Fifth, the bill contains language that would preempt a
state's siting process in areas of interstate congestion, if
the FERC were to find that the state delayed or denied a
project. State siting authorities may very well be justified,
however, in delaying approval or imposing condition for
reasons such as public safety or environmental protection. It
may also be that the more complex the project, the more time
that may be needed to review its complexities. In addition,
the applicant may need an extension of time in which to
compile additional information for submittal to the siting
authority or to negotiate with adverse parties. The existing
language fails to take these reasons into account.
Finally, the proposed legislation provides immunity,
retroactive to September 5, 2003, to MTBE producers from
defective product liability arising from groundwater
contamination by MTBE. It also provides $2 billion in
transition assistance to producers, in preparation for an
MTBE ban effective in 2014. It is precisely because of
groundwater contamination caused by MTBE that Connecticut has
banned its use as a gasoline additive effective January 1,
2004. MTBE has been proven to be especially harmful; we
likely do not yet know how much damage it has done and
perhaps will do. It may be premature at this time to provide
such immunity.
While improvements are clearly needed to spur investment in
energy-related projects to enhance reliability in the power
grid, I would urge you to reject this proposed legislation
and return it to the House and Senate energy conferees for
further deliberation. I would be happy to assist Congress in
any way possible to further address these items of particular
concern. Thank you for your consideration.
Sincerely,
John G. Rowland,
Governor.
Mr. DODD. I also ask unanimous consent that a letter from the
attorney general of the State of Connecticut expressing other reasons
to oppose this legislation also be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
State of Connecticut,
Hartford, CT, November 18, 2003.
Hon. Christopher J. Dodd,
U.S. Senator, Russell Senate Office Bldg., Washington, DC.
Dear Senator Dodd: Yesterday I wrote to you about some
pressing concerns about outrageous provisions of the
Administration's Energy Bill, and urged you to filibuster it.
I write again today to inform you of another assault on well-
accepted state powers to protect our citizens--a provision
buried in this Bill, discovered during my review.
This provision, Subtitle D, new Section 1442, gives the
Federal Energy Regulatory Commission dictatorial power to
preempt and override all other federal agencies and all state
laws and officials in approving natural gas pipelines. It
would have the clear effect of forcing approval of
construction of the disastrous Islander East gas pipeline
project through the middle of the pristine Thimble Islands
area of Long Island Sound.
The Islander East pipeline is, as I have said, the worst
case in the worst possible place--an absolute environmental
disaster. Every state and federal regulatory agency
responsible for reviewing this proposal--the Connecticut
Department of Environmental Protection (DEP), the United
States Environmental Protection Agency (EPA), and the
National Marine Fisheries Service--has found that this
project will cause pervasive, enduring harm to the marine
environment in this uniquely valuable part of the Sound. Even
the Federal Energy Regulatory Commission's (FERC) own staff
concluded that there was a clearly environmentally preferable
alternative route, if any pipeline should be built across the
Sound.
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While FERC ignored the facts and voted to approve the
proposal anyway, the facts arrayed against this proposal are
so compelling that we are strongly positioned to stop it in
court, because it is insupportable environmentally. Section
1442 is plainly intended to strangle our challenge to this
project in court, no doubt because we were likely to succeed.
Section 1442 drastically changes current law by providing
that the courts must accept FERC's determination, although
every other state and federal agency disapproves of the
project.
The breathtaking sweep and far reaching ramifications of
Section 1442 would extend well beyond Connecticut. This
provision completely and permanently dismembers a carefully
crafted system of state and federal checks and balances for
all major gas pipeline projects. Under existing law,
pipelines require not only the approval of FERC, but state
approval for water quality issues, and for effects on the
coastal zone environment. State disapprovals on these
important environmental grounds are now generally sufficient
to bar the proposals. Under this amendment, FERC approval of
a project would effectively eliminate all state environmental
oversight. One of the other projects that will apparently be
rushed to final construction under this bill is the Millenium
Pipeline project in Westchester County, New York, which is
proposed to run through various minority neighborhoods and
under a section of the Hudson River. Senators Schumer and
Clinton, among many other New York state officials, have
expressed grave concerns about the millenium proposal.
This Bill contains many inexcusable giveaways to the energy
industry. Even among those giveaways, this one is especially
abhorrent, since it grants one federal agency supreme
dictatorial power to preempt enforcement of environmental and
consumer protection by all other state and federal
authorities. It would cause wanton lasting destruction of
Long Island Sound. If this Bill is passed, our environment
will suffer severe permanent damage, which is absolutely and
indisputably unnecessary to any legitimate public interest.
Once again, I urge to take a stand against this injustice.
Very truly yours,
Richard Blumenthal.
Mr. DODD. I will not get into the introduction of the letter and so
forth, but I will quote from the Governor of a New England State.
First, the Governor says the bill undermines the delicate balance of
Federal and States rights. Under this legislation, this bill gives
unprecedented authority and standards of review exclusively to the
Federal appeals court in the District of Columbia to review actions
required for the construction of a natural gas pipeline. State
environmental and siting laws would essentially be reduced to a process
of rubberstamping the Federal Energy Regulatory Commission certificates
of public convenience and necessity.
The letter goes on:
In addition, any delay, however well founded it may be,
such as considering ways to protect the State's natural
resources, may be grounds for an appeal and Federal override
of a State's ruling. State courts would be stripped of
jurisdiction over matters arising in the State that not only
affect the State, but also relate to the interpretation of
State statutes and regulations.
Now, I have historically opposed a State's right to veto important
national efforts, and I include energy as one of them. So I know there
have been efforts in the past to say States ought to be able to veto
matters that come before them affecting energy policy, but as strongly
as I have felt that States ought not to have exclusive veto power, I do
not think the Federal Government ought to also have veto power when it
comes to States needs and necessities.
I do not care where one lives in America, but they should pay
attention to this provision. This is an incredible overreaching by the
Federal Government. To come in and strip a State's ability to protect
its own citizens when it comes to natural resources and the energy
needs they may have, or a variety of other issues, and to shove those
matters up to an appeals court in the District of Columbia, whether one
is from Georgia, Connecticut, or anywhere else, I think would be highly
offensive to most people in this country.
That is not to say we have it all right. We do not. Lord knows our
States can make very parochial decisions, particularly when it comes to
energy policy, but the idea that the Federal Government could go into
any State in this country, regardless of our needs, our concerns, our
well-being, and say, I am sorry, you lose, you have no rights at all in
these matters. My Governor is right on that issue alone. This bill
ought to be sent back to the conference.
We are about to adopt something that overreaches beyond what I think
most of my colleagues would support in any other area of law, and yet
they are going to do it here. If a precedent is set here, it will
happen in other areas as well?
My Governor goes on to explain that there are other reasons:
The bill generally limits the time frame for development of
Coastal Zone Management consistency appeal records,
constraining the States and the Secretary of Commerce in
making informed decisions. In the same vein, this legislation
limits the record on consistency appeals addressing pipelines
to the record developed by the FERC. Historically, FERC's
record has been inadequate to evaluate and protect the
State's natural resources. The legislation deprives
Connecticut and other coastal States of the tools they need
to manage their coastal resources.
I mention this because the Presiding Officer--we share a lot of
things in common, not the least of which we share is having an Atlantic
coastline. All of the States on the eastern seaboard, the gulf, the
west coast, if they care about coastal zone management--and I know how
important that is all along the Atlantic coast--and wanting a say in
determining how those very delicate and fragile resources will be
managed, this bill makes it more difficult for our States to continue
in that vein.
Reading from the letter:
The legislation authorizes the postponement of ozone
attainment standards across the country when the problems are
shown to have originated outside of the State. This not only
hinders Connecticut's progress towards improving our air
quality, but also likely has significant health
ramifications for Connecticut's residents. Contrary to
general practice, this language was added behind closed
doors, without meaningful opportunity for public debate.
It would be one thing if this bill were just about energy policy. To
be able to now postpone the ozone attainment requirements written in
law, there are literally hundreds of thousands of people in this
country who suffer from significant ailments affecting their
respiratory functions. I know of what I speak. I have family members
who suffer from asthma. To roll back the provisions of the ozone
attainment standards in States such as mine and elsewhere is a major
health setback for people.
I suspect that various health organizations around the country will
have strong feelings about this. If no other provision to this bill
moves one to reconsider whether or not we ought to be moving forward,
the idea that we could do such great damage to the health of American
citizens is enough. We know what causes these problems--and in my State
of Connecticut we suffer because of the prevailing southwesterly winds
for most of the year. So we get a lot of the poor air quality coming
out of other States. So we have to live with the pollution that exists
elsewhere. We are trying to stop that on a national level. This
legislation will make it very difficult for that to happen in the
future.
My Governor goes on and says:
The bill contains language that would permit a State's
siting process in areas of interstate congestion, if the FERC
were to find that the State delayed or denied a project.
State siting authorities may very well be justified, however,
in delaying approval or imposing condition for reasons such
as public safety or environmental protection. It may also be
that the more complex the project, the more time that may be
needed to review its complexities. In addition, the applicant
may need an extension of time in which to compile additional
information for submittal to the siting authority or to
negotiate with adverse parties. The existing language [in
this bill] fails to take those reasons into account.
Again, this goes right back to the first point I made earlier, where
one can come in and basically shove these matters up to the Federal
appeals court in Washington. Again, I am not suggesting that States
ought to have outright veto power. But the idea that this legislation
would say, as categorically as it does, that the FERC could come in if
they find that a State denied a project or delayed a project to gather
more information, and just roll right over you.
Listen to this. The Governor goes on to say:
The proposed legislation provides immunity, retroactive to
September 5, 2003, to the MTBE producers from defective
product liability arising from groundwater contamination of
MTBE. It also provides $2 billion in transition assistance to
producers, in preparation for an MTBE ban effective in 2014.
It
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is precisely because of groundwater contamination caused by
MTBE that Connecticut has banned its use as a gasoline
additive effective January 1, 2004. MTBE has been proven to
be especially harmful; we likely do not yet know how much
damage it has done or perhaps will do [to people]. It may be
premature at this time to provide such immunity.
There is a growing body of evidence that this gasoline additive could
have caused great damage to people and now we are going to reach back
to September 5 of this year and provide immunity to the producers of
this product to the great detriment of maybe millions of people in this
country. What is that doing in this bill? We talk about tort reform,
and here we are providing immunity.
The idea in this bill that we would provide immunity from recovery
for people who get sick and suffer as a result of being exposed to
MTBE, I think is outrageous.
I am confident my colleague from New York, Senator Schumer, has
spoken eloquently on this subject matter. I heard him address the
matter the other day in a closed meeting of Senators, and I was moved
by the evidence that he provided to us. I am confident he has or will
lay it out again here. So I will not dwell on it.
It's bad enough we provide immunity, but now we are going to provide
MTBE producers with $2 billion in assistance, in preparation for a ban
effective 11 years from now.
Lastly, I mention a rather parochial matter and I don't want to make
my opposition to this bill based on parochial issues. But my
constituents are very concerned about a provision in this bill that was
written into the bill in conference--never in the House bill, never in
the Senate bill--and really tramples all over States rights. It would
codify a Department of Energy order that resulted in the operation of
the Cross Long Island Sound Cable that runs from New Haven, CT to
Brookhaven.
This Cross Sound Cable was not operational before the August 14
blackout because the cable failed to meet the Federal and State
permitting requirements concerning its depth. Section 1441 of the bill
states:
The Department of Energy order No. 202-03-2, issued by the
Secretary of Energy on August 28, shall remain in effect
unless rescinded by Federal statute.
You may say, ``I am sorry that has happened to your State, Senator,''
but it could be yours next.
We didn't argue during the blackout about allowing that cable to be
used, but its continued operation violates state and federal permitting
requirements. But that emergency is over. Yet, written into statutory
law, now it says, whether we like it or not, this temporary order is
now permanent and it will require a Federal statute to overturn it. Not
even FERC can overturn it. I have to pass a bill in the Senate to
overturn it.
I grant you it is a local issue, but you ought to be worried about
it. That is what happens around here: The precedent gets set.
These are several of the reasons why I believe this bill deserves to
be sent back.
It is November. We have another session of Congress coming up. Why
can't we go back and do some work on this? I have to believe that most
Members think that this bill is just too tilted in one direction. It is
not in the best interest of our country to be adopting this type of
energy policy.
As I mentioned earlier, knowing how important it is for our economy,
for our energy self-sufficiency, for our environment, and for health
reasons, this legislation deserves reconsideration. It is not balanced.
So I hope when the hour arrives tomorrow morning, our colleagues
respond. This is the kind of bill we will spend a good part of the next
decade undoing. When people discover what is really in this bill, they
will want to make changes. I think a wiser course of action would be to
go back and correct the legislation now and have a bill that would
enjoy broad bipartisan support. Instead, there will be broad bipartisan
opposition to invoking cloture tomorrow.
These new provisions giving extraordinary power to the Federal Energy
Regulatory Commission are really stunning in their scope and breadth. I
am rather amazed that there has not been more outspoken opposition to
this, in more predictable quarters, when States rights are involved.
I mentioned earlier the issue of health. I pointed out that dirty air
from outside our State impacts our air quality. It is a major cause of
asthma and may play a role in the development of that disease.
An estimated 86,000 of Connecticut children have asthma that's 10.4
percent of the children in my state. And 7.3 percent of the adult
population, approximately 180,000, have it as well. I represent a small
State, about 3.5 million people. These are significant numbers.
The fact that this bill rolls back the provisions on air quality is
going to mean that people in Connecticut are going to suffer. If for no
other reason, this bill ought to be sent back.
We are going to debate Medicare in a few days and talk about how to
keep down costs. Asthma doesn't go away. In fact, there is nothing
worse than an adult onset of asthma. I know because my wife has it and
she didn't have it as a kid. It is crippling. Anybody who has it or has
a family member with it knows what I am talking about.
There is time left to do this bill right. I hope this institution
would take a moment to do so.
I yield the floor.
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