[Congressional Record Volume 151, Number 48 (Wednesday, April 20, 2005)]
[House]
[Pages H2174-H2178]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    PROVIDING FOR CONSIDERATION OF H.R. 6, ENERGY POLICY ACT OF 2005

  Mr. SESSIONS. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 219 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 219

       Resolved, That at any time after the adoption of this 
     resolution the Speaker may, pursuant to clause 2(b) of rule 
     XVIII, declare the House resolved into the Committee of the 
     Whole House on the state of the Union for consideration of 
     the bill (H.R. 6) to ensure jobs for our future with secure, 
     affordable, and reliable energy. The first reading of the 
     bill shall be dispensed with. All points of order against 
     consideration of the bill are waived. General debate shall be 
     confined to the bill and shall not exceed one hour and 30 
     minutes, with 30 minutes equally divided and controlled by 
     the chairman and ranking minority member of the Committee on 
     Energy and Commerce, and 20 minutes equally divided and 
     controlled by the chairman and ranking minority member of 
     each of the Committees on Science, Resources, and Ways and 
     Means. After general debate the bill shall be considered for 
     amendment under the five-minute rule. The bill shall be 
     considered as read. No amendment to the bill shall be in 
     order except those printed in the report of the Committee on 
     Rules accompanying this resolution. Each such amendment may 
     be offered only in the order printed in the report, may be 
     offered only by a Member designated in the report, shall be 
     considered as read, shall be debatable for the time specified 
     in the report equally divided and controlled by the proponent 
     and an opponent, shall not be subject to amendment except as 
     specified in the report, and shall not be subject to a demand 
     for division of the question in the House or in the Committee 
     of the Whole. All points of order against such amendments are 
     waived. At the conclusion of consideration of the bill for 
     amendment the Committee shall rise and report the bill to the 
     House with such amendments as may have been adopted. The 
     previous question shall be considered as ordered on the bill 
     and amendments thereto to final passage without intervening 
     motion except one motion to recommit with or without 
     instructions.


                    Unfunded Mandate Point of Order

  Mr. McGOVERN. Mr. Speaker, I make a point of order.
  Mr. Speaker, pursuant to section 426 on the Congressional Budget Act 
of 1974, I make a point of order against consideration of the rule, H. 
Res. 219.
  Page 1, line 7, through page 2, line 1, of H. Res. 219 states, ``All 
points of order against consideration of the bill are waived.'' The 
rule makes in order H.R. 6, the Energy Policy Act of 2005, which 
contains a large unfunded mandate on State and local governments in 
violation of Section 425 of the Budget Act. Section 426 of the Budget 
Act specifically states that the Committee on Rules may not waive 
Section 425, and therefore this rule violates section 426.
  The SPEAKER pro tempore. The gentleman from Massachusetts (Mr. 
McGovern) makes a point of order that the resolution violates section 
426(a) of the Congressional Budget Act of 1974.
  In accordance with section 426(b)(2) of that Act, the gentleman has 
met the threshold burden to identify the specific language in the 
resolution on which the point of order is predicated.
  Under section 426(B)(4) of the act, the gentleman from Massachusetts 
(Mr. McGovern) and the gentleman from Texas (Mr. Sessions) each will 
control 10 minutes of debate on the question of consideration.
  Pursuant to section 426(b)(3) of the act, after that debate, the 
Chair will put the question of consideration, to wit: ``Will the House 
now consider the resolution?''
  The Chair recognizes the gentleman from Massachusetts (Mr. McGovern).
  Mr. McGOVERN. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, back in 1995, my Republican colleagues, the so-called 
champions of States' rights, led the fight to pass the Unfunded 
Mandates Reform Act, a bill they claimed would stop the Federal 
Government from imposing the costs of federally mandated programs on 
States and localities.
  Well, here we are 10 years later and the tables have turned. My 
Republican colleagues are bringing a bill to the floor that imposes a 
multibillion dollar unfunded mandate on communities around the country 
whose water supplies have been tainted by the fuel additive MTBE. This 
additive, a known brown water contaminant used by oil companies for 
nearly two decades, has seeped into our Nation's water supply. In all, 
MTBE has been detected in over 1,800 water systems, which serve 45 
million Americans. This is the water that our constituents, our 
communities and our families use, and it has been contaminated with a 
potential human carcinogen.
  Despite knowing all of this, the Republican leadership has no 
reservations about shielding oil companies from any liability to the 
damages caused by MTBE. And then if that were not bad enough, they have 
included a nearly $2 billion bailout for these same companies. So while 
communities will be left to cover the overwhelming costs of cleanup, 
not only will these oil companies get a free pass, but they will also 
get another kickback at the expense of taxpayers.
  Here the Republican leadership is once again weighing the interests 
of big oil above the health and safety of our communities.
  Specifically, Section 1502 of the energy bill we are talking about 
today creates a safe harbor for MTBE manufacturers against lawsuits 
that attempt to hold them accountable for the damage their product has 
wrought on the water supplies of communities all over the country.
  As the letter the Congressional Budget Office sent to the gentleman 
from California (Chairman Dreier) yesterday explains, while the bill 
creates a safe harbor for the MTBE manufacturers, it sticks our State 
and local governments with a bill that could be as large as $29 
billion.
  During these bad economic times, how many States and local 
communities can afford that?
  By blocking the claims of local governments against the MTBE 
manufacturers, this bill will force communities to come up with 
hundreds of millions of dollars to clean up their water. CBO concludes 
that the annual cost of this mandate over the next 5 years is likely to 
exceed $62 million, which accordingly triggers the unfunded mandate law 
Republicans so proudly backed in 1995.
  The fact is that the rule waives all points of order against the 
bill. The Budget Act specifically says that the Committee on Rules 
cannot waive points of order against unfunded mandates, yet the 
Republican leadership blatantly ignores this.
  Mr. Speaker, the House can either choose to consider this bill in 
spite of the bill's unfunded mandate, or it can send this bill back to 
committee and strike the MTBE section from the bill, eliminating the 
violation of this point of order. At the end of this debate, therefore, 
I will call for a vote on a motion to continue consideration or fix 
this problem.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SESSIONS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I appreciate the gentleman from Massachusetts (Mr. 
McGovern) bringing this issue up. In fact, the issue about the MTBE 
liability safe harbor is part of the bill. We believe that we are 
responsibly dealing with a problem that exists, has existed for quite 
some time.
  Years ago the EPA made a very clear decision about not only MTBE, 
they understood some of the effects of MTBE, they understood some of 
the

[[Page H2175]]

problems of MTBE, but they also understood MTBE cleans the air. It does 
a very effective job of making sure that the smog which we had seen in 
our cities, in our airways all across the United States was a huge 
problem and one that needed to be dealt with not only from a health 
perspective, but also from a perspective of the ability that we have of 
what we were creating as a result of emissions.
  So the EPA made a decision to ensure that MTBE would be a product 
that would be available in gasoline, and in many instances and in many 
States there was a provision that required companies to put MTBE in as 
additives in gasoline.
  We are aware that there are problems. We are aware that not because 
of MTBE but just as a result of storage tanks, underground storage 
tanks that do leak, that MTBE has been a part of that that has leaked 
into our underground water sources.
  Parties that are responsible for those tanks have paid almost 95 
percent of the underground storage tank cleanup according to the EPA. 
And we recognize that there are many other sites where this is still a 
problem, where cleanup is needed, where cleanup would be involved.
  Today what we are asking is part of this wonderful energy bill. We 
are asking to make sure that we will limit the liability, a safe harbor 
for those people who have been a part of this so that we can clean up 
these storage tanks and we can move on.
  There is more than $850 million in what is called a LUST Fund that 
has been set aside in this bill that will help communities to clean up, 
to work with those people who own those storage tanks, to clean up the 
groundwater, to clean up the contaminants and to clean up the problem.
  But the fact of the matter is that MTBE by itself is simply not 
necessarily a problem. And under the Federal Rules of Evidence and 
under the many statutes that are being claimed in lawsuits, they are 
calling this a defective product. MTBE is not a defective product. We 
knew from the EPA and we understood what MTBE was, the problems that 
were associated with it; and the EPA has never labeled it as a 
carcinogenic. It is still being utilized today because it does a great 
job of cleaning up smog.
  So what we are attempting to do in this bill is to make sure that we 
move forward with the problem, provide money, but let us move on with 
this country in going straight to the cleanup.
  We support, I support what is in the energy bill. I appreciate all of 
my colleagues voting in support of this, not only the MTBE provision, 
but also the bill.
  Mr. Speaker, I reserve the balance of my time.

                              {time}  1245

  Mr. McGOVERN. Mr. Speaker, I yield 3 minutes to the gentlewoman from 
California (Mrs. Capps).
  Mrs. CAPPS. Mr. Speaker, I thank the gentleman from Massachusetts for 
raising this point of order. I believe that it goes right to the heart 
of the problem with the MTBE provisions in this bill. They pass on huge 
costly problems to other parties.
  In this case, H.R. 6 would shift the costs of cleaning up MTBE 
groundwater contamination on to the towns, the cities, and the water 
districts around this country. In other words, it would shift these 
cleanup costs from the oil companies responsible for the mess to our 
constituents, who have to live with the mess.
  Mr. Speaker, MTBE has caused damage to the groundwater across our 
Nation. It is found in 1,861 different water systems, 29 different 
States, serving 45 million people. Cleanup costs are estimated at 
around 29, maybe $30 billion. I might point out to my colleagues that 
there are about $2 billion in the LUST fund, and it is to cover all 
kinds of leakage, not just MTBE.
  This is a huge problem, and it is not going away. It is the fault of 
the MTBE industry, and they should have to fix it.
  Mr. Speaker, the MTBE industry says it was forced to put MTBE in 
gasoline by the Clean Air Act amendments of 1990. There is no MTBE 
mandate in that law. Even the chairman of the Committee on Energy and 
Commerce has acknowledged that.
  Industry representatives have testified before Congress that MTBE has 
been widely used since 1979. This is an ARCO circular from around the 
1980s urging refiners to add MTBE. By the time of the 1990 Clean Air 
amendments, the industry had already added 120 million barrels of MTBE 
to gasoline.
  Even more damning are the documents unearthed in recent court cases 
proving conclusively that the industry knew as early as the 1980s about 
the dangers MTBE posed to groundwater. It still went on adding it to 
gasoline. The special protection for MTBE manufacturers is in this bill 
because they are finally being taken to task for the damages they 
knowingly caused.
  Recent court cases regarding responsibility for MTBE groundwater 
contamination have come down on the side of local water companies and 
cities. These cases have forced manufacturers to pay to clean up or 
replace MTBE-contaminated water supplies. The most celebrated has been 
the $60 million settlement for south Lake Tahoe and the nearly $400 
million for Santa Monica.
  In my district, the tiny little coastal town of Cambria had one of 
its two drinking water sources permanently damaged by MTBE. After it 
sued, Cambria was able to get Chevron to pay a $9 million settlement to 
help the town to build a desalinization plant; but under this bill, the 
taxpayers of Cambria, and of hundreds of towns, large and small, across 
this country would be forced to pay for the MTBE cleanup on their own.
  Mr. Speaker, the gentleman from Massachusetts (Mr. McGovern) is right 
to raise this point of order. We should support the point of order and 
take this terrible provision out, which is going to force our 
constituents to shoulder the burden of cleanup on to the constituents.
  Mr. SESSIONS. Mr. Speaker, I am proud to yield 5 minutes to the 
gentleman from Texas (Mr. Barton), the chairman of the Committee on 
Energy and Commerce, who is an expert on this issue.
  (Mr. BARTON of Texas asked and was given permission to revise and 
extend his remarks.)
  Mr. BARTON of Texas. Mr. Speaker, of all the things to come on the 
floor of the House of Representatives and claim with a straight face 
that we should have a debate about, claiming that what is in the bill 
with regards to the MTBE is an unfunded mandate, is one of the biggest 
whoppers I can imagine, with all due respect.
  I want to read some of the language of the bill, and I have to put my 
reading classes on to do it.
  We specifically authorize in the bill additional funding, $50 
million, to avoid the creation of unfunded mandates. It is in the bill, 
a specific allocation of $50 million to avoid the creation of unfunded 
mandates.
  The Leaking Underground Storage Trust fund has a balance right now of 
$2 billion. The bill before us dedicates some of that balance 
specifically to go out and inspect existing underground storage tanks, 
to enforce if those inspections find that there is a leak, and to fund 
improvements in the operation of these underground storage tank 
programs. It is in the bill. That is not an unfunded mandate. If 
anything, it is a specific allocation in the bill to enforce the 
program that we have, to put additional funds into it and to make sure 
that we prevent the problem. That is funded. That is not unfunded.
  Now, the real debate is not whether it is an unfunded mandate or not. 
The real debate is what we should do about MTBE; and as my good friend, 
the gentleman from Texas (Mr. Sessions), has already pointed out, we 
can have a legitimate policy debate about that. The bill allows States 
that want to ban MTBE to do it. That is not mandating the States. That 
is telling the States, you want to use MTBE in your gasoline supply to 
get cleaner air, fine. You do not want to use it, that is fine, too.
  The bill also has a provision in it that over the course of the next, 
I think, 10 years, depending on some scientific studies and various 
things, there could be a point in time that we have a Federal ban on 
MTBE. It may not, it may, but it could happen.
  People forget in the 1991 Clean Air amendments we required an oxygen 
amendment to make the gasoline burn cleaner in nonattainment areas. 
There were two ways to do that at the time: use ethanol or use MTBE. 
There was not a mandate to use MTBE, but there was a requirement in 
nonattainment areas you had to do something in terms

[[Page H2176]]

of putting more oxygen in the gasoline to make it burn cleaner. Most of 
the market went to MTBE.
  We then found out, and we knew before the fact actually, that if the 
gasoline that had MTBE leaked out into the environment that the MTBE 
would disassociate a little bit quicker because it was more missable, 
and it would get into the water supply, or water table, and it causes 
an odor. So there have been a number of lawsuits. The gentlewoman 
mentioned two of them, in Lake Tahoe, one in California, where there 
have been out-of-court settlements for several millions of dollars 
because of that odor. That did not establish that MTBE is a defective 
product.
  This bill does have a safe harbor, not just for MTBE but also for 
ethanol, that by definition of the product, the chemical composition, 
that it is not defective; but if you use it negligently, you can be 
sued upon it. If the right warnings are not with it, you can be sued. 
There are all kinds of reasons. You can sue and win, as has been shown; 
but that does not mean that it in and of itself is defective.
  Interestingly enough, in one of the cases the gentlewoman from 
California quoted, the amount of the settlement was less than the legal 
fees that the law firm representing the community in California 
claimed. So that community is now suing their law firm, saying you 
ripped us off, you are asking for more money to settle the suit than we 
got to clean the water up.
  Mr. McGOVERN. Mr. Speaker, I yield myself 30 seconds.
  (Mr. McGOVERN asked and was given permission to revise and extend his 
remarks, and include extraneous material.)
  Mr. McGOVERN. Mr. Speaker, let me respond to my colleague, the 
gentleman from Texas (Mr. Barton), and simply say this is an unfunded 
mandate. The CBO says so. Here is the letter we received yesterday, and 
it says very clearly that this is an unfunded mandate.
  I know my colleagues all have great confidence in the CBO. My 
colleague, the gentleman from Texas (Mr. Sessions), made the following 
statement on CBO just a few months ago. He said, the Congressional 
Budget Office is a professional organization that assists the United 
States Congress in knowing in a nonpartisan way those impacts on the 
laws that we pass.
  Well, here it is in black and white. CBO says this is an unfunded 
mandate, and people need to understand that if they do not vote for 
what we are saying here today, they are supporting an unfunded mandate.
                                                    U.S. Congress,


                                  Congressional Budget Office,

                                   Washington, DC, April 19, 2005.
     Hon. David Dreier,
     Chairman, Committee on Rules, House of Representatives, 
         Washington, DC.
       Dear Mr. Chairman: Based on a preliminary review of H.R. 6, 
     the Energy Policy Act of 2005, as introduced in the House of 
     Representatives on April 18, 2005, CBO estimates that 
     enacting this legislation would reduce direct spending by 
     $1.1 billion over the 2006-2010 period and by $0.4 billion 
     over the 2006-2015 period. CBO and the Joint Committee on 
     Taxation estimate that the legislation would reduce revenues 
     by $4.0 billion over the 2006-2010 period and by $7.9 billion 
     over the 2006-2015 period. The estimated direct spending and 
     revenue effects are summarized below. A table with additional 
     details is attached.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         By fiscal year, in millions of dollars--
                                ------------------------------------------------------------------------------------------------------------------------
                                    2005       2006       2007       2008       2009       2010       2011       2012       2013       2014       2015
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimted Budget Authority......          0        221        509     -1,640        211       -331        146        139        141        139         62
Estimated Outlays..............          0        196        424     -1,605        221       -311        166        139        141        139         62
Estimated Revenues \1\.........        163       -272     -1,175     -1,227       -707       -655       -673       -714       -761       -820       -865
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The JCT estimate assumes the bill will be enacted by July 1, 2005. CBO's estimate assumes enactment near the end of fiscal year 2005.
 
Sources: CBO and Joint Committee on Taxation (JCT).

       Implementing this legislation also would affect spending 
     subject to appropriation action, but CBO has not completed an 
     estimate of the potential discretionary costs.
       H.R. 6 contains numerous mandates as defined in the 
     Unfunded Mandates Reform Act (UMRA) that would affect both 
     intergovernmental and private-sector entities. Based on our 
     review of the bill, CBO expects that the mandates (new 
     requirements, limits on existing rights, and preemptions) 
     contained in the bill's titles on motor fuels (title XV), 
     nuclear energy (title VI), electricity (title XII) and energy 
     efficiency (title I) would have the greatest impact on State 
     and local governments and private-sector entities.
       CBO estimates that the cost of complying with 
     intergovernmental mandates, in aggregate, could be 
     significant and likely would exceed the threshold established 
     in UMRA ($62 million in 2005, adjusted annually for 
     inflation) at some point over the next five years because we 
     expect that future damage awards for state and local 
     governments under the bill's safe harbor provision (title XI) 
     would likely be reduced. As explained below, that provision 
     would shield the motor fuels industry from liability under 
     certain conditions.
       Section 1502 would shield manufacturers of motor fuels and 
     other persons from liability for claims based on defective 
     product relating to motor vehicle fuel containing methyl 
     tertiary butyl ether or renewable fuel. That protection would 
     be in effect as long as the fuel is in compliance with other 
     applicable federal requirements. The provision would impose 
     both an intergovernmental and private-sector mandate as it 
     would limit existing rights to seek compensation under 
     current law. (The provision would not affect other causes of 
     action such as nuisance or negligence.)
       Under current law, plaintiffs in existing and future cases 
     may stand to receive significant amounts in damage awards, 
     based, at least in part, on claims of defective product. 
     Because section 1502 would apply to all such claims filed on 
     or after September 5, 2003, it would affect more than 100 
     existing claims filed by local communities, states, and some 
     private companies against oil companies. Individual judgments 
     and settlements for similar lawsuits over the past several 
     years have ranged from several million dollars to well over 
     $100 million. Based on the size of damages already awarded 
     and on information from industry experts, CBO anticipates 
     that precluding existing and future claims based on defective 
     product would reduce the size of judgments in favor of state 
     and local governments over the next five years. CBO estimates 
     that those reductions would exceed the threshold established 
     in UMRA in at least one of those years. Because significantly 
     fewer such cases are pending for private-sector claimants, 
     CBO does not have a sufficient basis for estimating expected 
     reductions in damage awards for the private sector.
       CBO cannot determine whether the aggregate cost of the 
     private-sector mandates in the bill would exceed the 
     threshold established in UMRA primarily for two reasons. 
     First, some of the requirements established by the bill would 
     hinge on future regulatory action for which information is 
     not available. Second, UMRA does not specify whether CBO 
     should measure the cost of extending a mandate relative to 
     the mandate's current costs or assume that the mandate will 
     expire and measure the costs of the mandate's extension as if 
     the requirement were new. The bill would extend the existing 
     mandate that requires licensees to pay fees to offset roughly 
     90 percent of the Nuclear Regulatory Commission's annual 
     appropriation. Measures against the costs that would be 
     incurred if current law remains in place, the cost to the 
     private sector of extending this mandate would exceed the 
     annual threshold established in UMRA ($123 million in 2005, 
     adjusted annually for inflation).
       If you wish further details on this estimate, we will be 
     pleased to provide them. The CBO staff contacts are Lisa Cash 
     Driskill, (for federal costs), who can be reached at 226-
     2860, Theresa Gullo (for intergovernmental mandates), who can 
     be reached at 225-3220, and Patrice Gordon (for private-
     sector mandates), who can be reached at 226-2940.
           Sincerely,
                                              Douglas Holtz-Eakin,
                                                         Director.
       Attachment.

                                              ESTIMATED EFFECTS ON DIRECT SPENDING AND REVENUES FOR H.R. 6
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         By fiscal year, in millions of dollars--
                                ------------------------------------------------------------------------------------------------------------------------
                                    2005       2006       2007       2008       2009       2010       2011       2012       2013       2014       2015
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               CHANGES IN DIRECT SPENDING
 
Title I--Energy Efficiency:
    Estimated Budget Authority.          0          0        300        200          0          0          0          0          0          0          0

[[Page H2177]]

 
    Estimated Outlays..........          0          0        255        215         30          0          0          0          0          0          0
Title VI--Nuclear Matters:
    Estimated Budget Authority.          0         64          0          0          0          0          0          0          0          0          0
    Estimated Outlays..........          0         64          0          0          0          0          0          0          0          0          0
Title IX--Research and
 Development:
    Estimated Budget Authority.          0         50         50         50         50         50         50         50         50         50         50
    Estimated Outlays..........          0         25         50         50         50         50         50         50         50         50         50
Title XII--Electricity:
    Estimated Budget Authority.          0         50        100         50        100         50         50         50         50         50         50
    Estimated Outlays..........          0         50         60         70         80         70         70         50         50         50         50
Title XVIII--Geothermal Energy:
    Estimated Budget Authority.          0          2          2          2          2          2          2          2          2          2          2
    Estimated Outlays..........          0          2          2          2          2          2          2          2          2          2          2
Title XX--Oil and Gas:
    Estimated Budget Authority.          0         54         56         57         59         66         44         37         39         37         34
    Estimated Outlays..........          0         54         56         57         59         66         44         37         39         37         34
Title XXI--Coal:
    Estimated Budget Authority.          0          1          1          1          1          1          1          1          1          1          1
    Estimated Outlays..........          0          1          1          1          1          1          1          1          1          1          1
Title XXII--Arctic National
 Wildlife Refuge:
    Estimated Budget Authority.          0          0          0     -2,000         -1       -500         -1         -1         -1         -1        -75
    Estimated Outlays..........          0          0          0     -2,000         -1       -500         -1         -1         -1         -1        -75
    Total:
        Estimated Budget                 0        221        509     -1,640        211       -331        146        139        141        139         62
         Authority.............
        Estimated Outlays......          0        196        424     -1,605        211       -311        166        139        141        139         62
 
                                                                 NET CHANGES IN REVENUES
 
Title XII--Electricity.........          0         38         38         38         38         38         38         38         38         38         38
Title XIII--Energy Tax                 163       -310     -1,213     -1,265       -745       -693       -711       -752       -799       -858       -903
 Incentives \1\................
      Total....................        163       -272     -1,175     -1,227       -707       -655       -673       -714       -761       -820       -865
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The JCT estimates the bill will be enacted by July 1, 2005. CBO's estimates assume enactment near the end of fiscal year 2005.
 
Source: Joint Committee on Taxation and CBO.

  Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. 
Costa).
  (Mr. COSTA asked and was given permission to revise and extend his 
remarks, and include extraneous material.)
  Mr. COSTA. Mr. Speaker, I want to thank the gentleman from 
Massachusetts for raising this point of order.
  When the current majority took over the control of the Congress, one 
of their first actions was to pass the Unfunded Mandated Reform Act; 
and as a State legislator, I applauded their efforts because it was 
appropriate and fitting. The bipartisan legislation provided a funding 
cap that Congress could impose on States and local governments.
  Mr. Speaker, here, today, I believe that we are breaking that 
commitment to our local governments and to communities if we pass this 
energy bill without moving to strike the legislation to MTBE. Unless we 
impose a spending cap, we are imposing too great of a financial burden 
on local government that is already hard pressed throughout our 
country.
  There is no doubt that the MTBEs pose a significant environmental 
health threat to our communities. If released into the water table, a 
small portion of MTBEs can ruin a community's supply of drinking water. 
In addition, exposure to this has resulted, as we know, in a number of 
cases of cancer, birth defects, and other illnesses.
  Mr. Speaker, it is also evident that the legislation, I believe, is a 
direct violation of the Unfunded Mandated Reform Act. The MTBE 
provisions presented in the energy bill would restrict the existing 
rights of States and communities to seek compensation under the law. 
The same provisions would impose larger financial costs of the cleanup 
of those communities throughout our country; and notwithstanding the 
argument of a Member of $50 million, that is but the tip of the 
iceberg.
  Approximately half the Members of our House have served in our State 
legislatures. I was a past president of the National Conference of 
State Legislatures. I will enter into the Record at the end of my 
statement their opinion, in fact, that this is a violation of the 
Unfunded Mandates Act that they, too, supported in the mid-1990s when 
the majority enacted this very important piece of legislation.
  For my own district, the 20th district in California, we believe the 
costs could exceed $150 million because of the large number of sites 
that we have. This bill eliminates my district's ability to hold 
producers liable for the problem and help them assist in cleaning up. 
On top of this, I believe that this does little to deal with the 
threats.
  I urge that we support the point of order of the gentleman from 
Massachusetts.

                                            National Conference of


                                           State Legislatures,

     Re H.R. 6--Unfunded Mandates
                                                   April 20, 2005.

     Hon. Joe Barton,
     Chairman, House Energy and Commerce Committee, Washington, 
         DC.
     Hon. David Dreier,
     Chairman House Rules Committee,
     Washington, DC.
     Hon. John Dingell,
     House Energy and Commerce Committee,
     Washington, DC.
     Hon. Louise Slaughter,
     House Rules Committee,
     Washington, DC.
       Dear Representatives: The National Conference of State 
     Legislatures urges you to support a point of order against 
     H.R. 6 for its inclusion of unfunded federal mandates that 
     would be imposed on state and local governments with the 
     adoption of this legislation. NCSL further urges you to 
     strike those sections that include these unfunded mandates 
     that exceed the Unfunded Mandates Reform Act threshold as 
     identified by the Congressional Budget Office's preliminary 
     review of H.R. 6, The Energy Policy Act of 2005.
       During the 108th Congress, unfunded federal mandates 
     exceeding $51 billion were imposed on state and local 
     governments. The House's FY2006 Budget Resolution, H. Con. 
     Res. 95, would impose unfunded mandates of over $30 billion 
     in FY2006 alone if adopted by a conference committee. The 
     unfunded mandates proposed in H.R. 6 would serve to 
     worsen what already is an unacceptable situation.
       Thank you for your consideration of our concerns and we are 
     hopeful you will vote not to impose further unfunded mandates 
     on state and local governments.
           Respectfully,
                                       Representative Joe Hackney,
     North Carolina House of Representatives, Chair, NCSL Standing 
                                                        Committees
                                             Senator Beverly Gard,
        Indiana State Senate, Vice Chair, NCSL Standing Committees
  The SPEAKER pro tempore (Mr. Foley). The gentleman from Texas (Mr. 
Sessions) has 1 minute remaining. The gentleman from Massachusetts (Mr. 
McGovern) has 1\1/2\ minutes remaining. The gentleman from Texas has 
the right to close.
  Mr. McGOVERN. May I ask the gentleman from Texas how many other 
speakers he has.
  Mr. SESSIONS. Mr. Speaker, yes. I appreciate the gentleman asking. I 
will be closing, so if the gentleman would please proceed.
  Mr. McGOVERN. Mr. Speaker, I yield my remaining time of 1\1/2\ 
minutes to the gentleman from California (Mr. George Miller).
  Mr. GEORGE MILLER of California. Mr. Speaker, I thank the gentleman 
for yielding me time, and I rise in strong support of this point of 
order.
  Simply saying in the legislation that this is not an unfunded mandate 
does not make the fact that it is not an unfunded mandate. Failure to 
provide the resources by which the directed activity is required under 
the law is what makes it an unfunded mandate.
  We have communities throughout California that have had environmental 
and economic havoc wreaked

[[Page H2178]]

upon them from the use of MTBE, in many instances, as the gentlewoman 
from California (Mrs. Capps) pointed out, after the knowledge was 
available and was continued to pursue the use of this compound as an 
additive to the fuels of our automobiles.
  Those communities now are stuck with the costs of either cleaning up 
that drinking water supply, finding an alternative source and dealing 
with it, and they must do so. To suggest now that we are going to 
provide a safe harbor, that we are going to restrict the liability or 
prohibit the liability from those who knew of the dangers of this to 
our environment, to our drinking water supplies, to our citizens, and 
on the other hand, we are going to direct communities to clean this up 
when, in fact, the resources will not be available to do that, they are 
not there at the local level, and they are not forthcoming from the 
United States.
  MTBE is just another way in which this Congress, this Republican 
leadership, wants to corrupt the process by which these communities can 
be made whole. They want to corrupt the process by which these 
companies can be protected from the liability that they assumed when 
they knowingly did that. It is just a continued process of corruption 
of the process of this Congress that we cannot deal with this straight 
up.

                              {time}  1300

  Mr. SESSIONS. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, we have already heard the chairman of the Committee on 
Energy and Commerce tell us how this trust fund, the LUST Trust Fund, 
has $2 billion that has been set aside, that is waiting for this issue, 
for cleanup of MTBE. We heard very clearly that some almost $1 billion 
more will be added to the bill to make sure that we address this issue.
  MTBE is not a defective product. MTBE does a very good job at what it 
is supposed to do, and that is clean the air.
  Today and tomorrow this House will be considering the energy bill. I 
think it is time for us to move forward. I urge each of my colleagues 
to vote ``yes,'' that we will continue the debate on the rule today.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Foley). All time for debate has expired.
  Pursuant to section 426(b)3 of the Congressional Budget Act of 1974, 
the Chair will now put the question of consideration.
  The question is, Will the House now consider House Resolution 219?
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. SESSIONS. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  THE SPEAKER pro tempore. Pursuant to clause 8 and 9 of rule XX, this 
15-minute vote on consideration of House Resolution 219 will be 
followed by two 5-minute votes; suspending the rules and agreeing to 
House Concurrent Resolution 126, and suspending the rules and agreeing 
to House Resolution 208.
  The vote was taken by electronic device, and there were--yeas 231, 
nays 193, not voting 10, as follows:

                             [Roll No. 112]

                               YEAS--231

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Bean
     Beauprez
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boustany
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Chocola
     Coble
     Cole (OK)
     Conaway
     Cox
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (KY)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     Dent
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Ehlers
     Emerson
     English (PA)
     Everett
     Feeney
     Ferguson
     Fitzpatrick (PA)
     Flake
     Foley
     Forbes
     Fortenberry
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Gohmert
     Gonzalez
     Goode
     Goodlatte
     Granger
     Graves
     Green (WI)
     Green, Gene
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hinojosa
     Hobson
     Hoekstra
     Hostettler
     Hulshof
     Hunter
     Hyde
     Inglis (SC)
     Issa
     Istook
     Jenkins
     Jindal
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Keller
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris
     Melancon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Neugebauer
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Ortiz
     Osborne
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pombo
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reyes
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schwarz (MI)
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (NJ)
     Smith (TX)
     Sodrel
     Souder
     Stearns
     Sullivan
     Tancredo
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)

                               NAYS--193

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Barrow
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carnahan
     Carson
     Chandler
     Clay
     Cleaver
     Clyburn
     Conyers
     Cooper
     Costa
     Costello
     Cramer
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis (TN)
     DeFazio
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Doyle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Gordon
     Green, Al
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Herseth
     Higgins
     Hinchey
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kildee
     Kilpatrick (MI)
     Kind
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren, Zoe
     Lowey
     Lynch
     Maloney
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Schwartz (PA)
     Scott (GA)
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     Taylor (MS)
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                             NOT VOTING--10

     Case
     DeGette
     Diaz-Balart, L.
     Foxx
     Kelly
     Kennedy (RI)
     Kuhl (NY)
     Portman
     Sweeney
     Young (FL)


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Foley) (during the vote). Members are 
advised 2 minutes remain in this vote.

                              {time}  1327

  Messrs. PEARCE, SMITH of Texas, ORTIZ, REYES and Ms. Bean changed 
their vote from ``nay'' to ``yea.''
  So the question of consideration was decided in the affirmative.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  Stated for:
  Ms. FOXX. Mr. Speaker, on rollcall No. 112 I was unavoidably 
detained. Had I been present, I would have voted ``yea.''
  Stated against:
  Ms. BEAN. Mr. Speaker, on rollcall No. 112, I cast a vote of ``yea'' 
which should have been ``nay.'' It is my wish to correct this matter 
for the record. Had I been present, I would have voted ``no.''




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