[Congressional Record Volume 155, Number 39 (Thursday, March 5, 2009)]
[Senate]
[Pages S2829-S2849]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. WHITEHOUSE (for himself, Mr. Leahy, Mrs. Feinstein, Mr. 
        Feingold, Mr. Nelson, of Florida, Mr. Kerry, Mr. Schumer, Mr. 
        Harkin, Mr. Dodd, Mr. Brown, and Ms. Klobuchar):
  S. 528. A bill to prevent voter caging; to the Committee on Rules and 
Administration.
  Mr. LEAHY. Mr. President, this week, the Nation commemorates the 49th 
anniversary of ``Bloody Sunday,'' a day which marked a crucial turning 
point in securing the right to vote for all Americans. On March 7, 
1965, in Selma, Alabama, John Lewis and his fellow civil rights 
activists marched for their right to vote but were brutally attacked by 
state troopers on the Edmund Pettus Bridge. We remember the acts of 
courageous Americans who fought through the years for equality. We 
honor their legacy by reaffirming our commitment to protect the right 
to vote for all Americans.
  On the week of this important anniversary, I am pleased to join Sen. 
Whitehouse in introducing the Caging Prohibition Act of 2009. This 
legislation contains commonsense reforms to strengthen the Nation's 
ability to combat organized efforts to suppress the right to vote and 
better protect the voting rights of countless Americans.
  Senator Whitehouse and I introduced a similar bill two years ago in 
an effort to bring urgent election reform to protect voters during the 
2008 presidential election. Although the Rules Committee held a hearing 
on the measure, the bill was not reported out of Committee before the 
Senate adjourned last year. I hope the Senate will do its part to 
prevent shenanigans from disenfranchising voters during the next 
Federal election, by promptly passing this bill.
  During my three decades in the Senate, I have devoted a considerable 
portion of my work to improving democratic participation and make our 
government more accessible to all Americans. For the past two years, I 
have been delighted to have Senator Whitehouse as a partner on this 
important issue. I thank him for his leadership on preserving and 
strengthening our voting rights.
  In recent years, we have seen a surge in a particularly alarming form 
of voter suppression known as voter caging. In voter caging, a 
political organization sends mail to addresses on voter rolls, compiles 
a list of returned mail, and uses that list as grounds for partisan and 
unjustified purges or challenges of voters' eligibility. During the 
last two presidential election cycles, we have seen evidence of voter 
caging efforts emerge in numerous States, including Ohio, Florida, 
Michigan, and Pennsylvania.
  Chief among the problems with voter caging is that it threatens to 
disenfranchise voters in an unreliable manner. Rather than preventing 
votes cast by ineligible voters, far too often the practice prevents 
legitimate voters from casting their ballots. According to a recent 
report from the nonpartisan Brennan Center for Justice, ``[V]oter 
caging lists are highly likely to include the names of many voters who 
are in fact eligible to vote.'' Of course, since government databases 
are often riddled with typos and clerical errors, these findings are 
hardly surprising.
  Even more troubling, voter caging often aims to disenfranchise 
minority voters. I recall during a Senate race in Louisiana, in 1986, a 
memorandum from the Republican National Committee concluded that hiring 
a consultant to distribute 350,000 mailings marked ``do not forward'' 
to mostly African-American districts would ``eliminate at least 60-
80,000 folks from the rolls . . . [and] could keep the black vote down 
considerably.'' That is unacceptable. That is wrong. No one's right to 
vote should be abridged, suppressed, or denied in the United States of 
America.
  The practice of voter caging chips away at core protections in our 
democracy. The right to vote, and have your vote count, is a 
foundational right because it secures the effectiveness of all other 
protections. Indeed, the very legitimacy of our government is dependent 
on the access all Americans have to the political process. That is why 
voting is the cornerstone of our democracy. Any infringement on this 
right harms the fabric of America.
  All too often, voter caging efforts have partisan goals. For example, 
the Judiciary Committee's investigation last Congress into the mass 
firings of U.S. Attorneys for political reasons shed light on how Tim 
Griffin, a former Bush White House aide, participated in a voter caging 
scheme aimed at disenfranchising African-American voters in Florida. He 
was later appointed interim U.S. Attorney for the Eastern District of 
Arkansas.
  Rooting out partisan voter caging tactics requires us to give Federal 
officials the tools and resources they need to investigate and 
prosecute organized efforts to suppress the right to vote. This bill 
will do exactly that.
  This legislation would prohibit challenging a person's eligibility to 
vote--or register to vote--based on a voter caging list, an unverified 
match list, or foreclosure status. A challenged voter may feel 
intimidated or discouraged, and may leave a polling site and not vote. 
In America, a person should not lose their fundamental right to vote, 
nor have that vote challenged, on the sole basis of a mistake, error, 
or because their mail failed to reach them. Similarly, as the current 
economic crisis reminds us, Americans should not have their fundamental 
right to vote jeopardized simply because they lose their jobs to 
layoffs or their homes to foreclosure.
  The bill would also require any private party who challenges the 
right of another citizen to vote--or register to vote--to set forth in 
writing, under penalty of perjury, the specific grounds for the alleged 
ineligibility. This provision deters illegitimate challenges to voters 
by requiring, at a minimum, a showing of good cause. It properly 
balances legitimate efforts to clean voting rolls with forbidding 
unreliable voter purges.
  I am pleased that this bill has the support of civil rights and 
voting rights organizations such as the Leadership Conference on Civil 
Rights, the Lawyers Community for Civil Rights under Law, the Brennan 
Center for Justice, and the People for the American Way. They 
understand that voter caging is a modern-day barrier to the ballot box 
that has created unique problems for legitimate voters for many years, 
and that a Federal ban on these undemocratic practices is necessary.
  I hope that this year all Senators will support this important 
legislation and take firm action to stamp out this intolerable voter 
suppression tactic.
                                 ______
                                 
      By Mr. LIEBERMAN (for himself, Mr. Brownback, Mr. Udall, of New 
        Mexico, Mr. Whitehouse, Mr. Cardin, Mr. Sanders, Mr. Kerry, and 
        Ms. Snowe):
  S. 529. A bill to assist in the Conservation of rare fields and rare 
canids by supporting and providing financial resources for the 
conservation programs of countries within the range of rare felid and 
rare canid populations and projects of persons with demonstrated 
expertise in the conservation of rare felid and rare canid populations; 
to the Committee on Environment and Public Works.
  Mr. LIEBERMAN. Mr President, I rise to speak about the Great Cats and 
Rare Canids Act, which I am introducing today along with my friends

[[Page S2830]]

Senators Sam Brownback and Tom Udall. This bipartisan legislation 
continues our tradition of protecting threatened and endangered species 
around the world and comes at a critical time in the survival of these 
animals.
  Of the 37 wild felid species worldwide, all are currently recognized 
as species in need of protection under the World Conservation Union, 
IUCN, Red List, the lists of species in CITES appendices I, II, and 
III, or the Endangered Species Act of 1973. Of the 35 wild canid 
species worldwide, nearly 50 percent are recognized as in need of such 
protection in one of these categories.
  This legislation would create the Great Cats and Rare Canids 
Conservation Fund and builds on the success of the Multinational 
Species Conservation Fund, NSCF, which presently provides funding to 
protect tigers, rhinoceroses, elephants, great apes, and marine 
turtles. The Great Cats and Rare Canids Conservation Fund would support 
the conservation of wild felid and canid populations outside the United 
States by providing financial resources to conserve 15 such species 
that are vital for their ecological value and are listed as endangered 
or threatened on the IUCN Red List of Endangered Species. The great 
cats and rare canids included in this bill are umbrella species that, 
if conserved appropriately, protect their corresponding landscapes and 
other species dependent on those ecosystems.
  Among the species protected under this act are the majestic jaguar of 
South and Central America, the elusive snow leopard, the cheetah, the 
African wild dog, and other rare carnivore species. These species are 
threatened by habitat loss, poaching, disease, and pollution.
  The struggle of the African wild dog is one example of the plight 
these large carnivores face. The less than 2,500 adults that remain not 
only have to combat the widespread misconception that they are 
livestock killers, but are extremely susceptible to diseases common in 
domesticated animals. They have lost 89 percent their habitat and are 
now found in only 14 of the 39 countries that comprise their historic 
range.
  The snow leopard is another example. Like all great cats, the snow 
leopard needs a large tract of uninterrupted land in which to live, but 
the snow leopard's habitat in China has been fragmented due to human 
encroachment. The cats are also under extreme poaching pressures as 
their fur is sold on the black market.
  In addition to protecting the species already listed in the Act, the 
U.S. Fish and Wildlife Service has been mandated to complete a study 
within two years of the bill's enactment to determine what other 
critically endangered species could become eligible for conservation 
assistance. The findings of this study will enable the United States to 
provide conservation assistance to protect additional great cat and 
rare canid species that are determined to need conservation assistance 
in the future.
  Our bill would authorize $5 million in annual spending for the 
conservation of more than a dozen species of great cats and rare 
canines. The Great Cats and Rare Canids Conservation Fund would 
leverage private conservation dollars from corporate and non-government 
sources in order to address the critical need to conserve these 
threatened large carnivores. Historically, for every $1 invested by the 
Federal Government in the programs that are part of the Multinational 
Species Conservation Fund, there is at least a $3 match by private 
donations.
  These funds enable the U.S. Fish and Wildlife Service to partner with 
nonprofit groups and foreign entities to undertake a range of 
conservation programs where threatened and endangered species live. 
Typical activities to protect the different species in the 
Multinational Species Conservation Fund include new educational 
programs for local populations to increase awareness of these species 
and prevent interactions that could be harmful to people and animals, 
as well as increased monitoring and law enforcement activities to 
prevent poaching and illegal animal trafficking. Great cats are 
particularly at risk from hunting for trade purposes while rare canids 
are susceptible to disease, and this bill will allow the establishment 
of programs to address these species-specific threats.
  The genesis of the Great Cats and Rare Canids program is nearly a 
decade old, and the bill under consideration today was also introduced 
in the past two Congresses. In that time, these species have continued 
to decline in numbers. I do not think our children and grandchildren 
will forgive us if we stand by and let these magnificent animals drift 
into extinction. With a relatively small investment, we can invigorate 
ongoing conservation efforts around the world.
                                 ______
                                 
      By Mr. BINGAMAN (for himself and Ms. Murkowski):
  S. 531. A bill to provide for the conduct of an in-depth analysis of 
the impact of energy development and production on the water resources 
of the United States, and for other purposes; to the Committee on 
Energy and Natural Resources.
  Mr. BINGAMAN. Mr. President, today I am introducing a bill, with 
Senator Murkowski's support, that will improve our understanding of the 
interdependence of energy and water and begin integrating decision-
making for both resources. The relationship between energy and water is 
an often overlooked but serious issue that is growing in importance.
  Energy and water are crucial components of modern life. Production of 
energy and freshwater are inextricably linked. Each is required for the 
production of the other, and neither resource is routinely considered 
in developing management policies for the other. As population density 
continues to increase in already water-stressed regions, it is crucial 
that the United States develop new policies that integrate energy and 
water solutions so that one resource does not undermine the use of the 
other.
  Thermal power generation, coal, natural gas, oil, and nuclear, 
accounts for 39 percent of freshwater withdrawals in the U.S., second 
only to agriculture-related withdrawals. Water use can range from 7,500 
gallons of water per megawatt-hour produced, gal/MWhr, for natural gas 
plants, to 60,000 gal/MWhr for some nuclear facilities. Petroleum 
refineries also use a significant amount of water, and the water 
demands of the transportation sector will only increase as the U.S. 
seeks to reduce its reliance on foreign oil. The two primary options 
for reducing gasoline use--plug-in hybrids and biofuels--are both more 
water intensive than gasoline. By some estimates, plug-in hybrids 
consume three times more water per mile traveled than conventional 
gasoline vehicles. If the entire production cycle is considered, some 
biofuels can consume as much as 20 times more water per mile traveled. 
Three provisions of the bill attempt to highlight and further analyze 
these issues: a National Academies study of water use in transportation 
fuel production and electricity generation; the development of power 
plant water use guidelines by the Department of Energy; and a directive 
to the Secretary of Energy to finalize an energy-water research and 
development roadmap to guide policy efforts in the future. Better data 
will lead to integration of water considerations in the development of 
energy policy.
  Just as our energy consumption uses large amounts of water, the 
acquisition, treatment, and delivery of water supplies consumes massive 
amounts of energy. For example, 19 percent of California's electricity 
consumption is for water-related energy uses. Overall, treatment and 
delivery of municipal water supplies consume 3 percent of the nation's 
electricity. The bill addresses the issue of water-related energy 
consumption by directing the Bureau of Reclamation to evaluate energy 
use in Reclamation projects and identify ways to reduce such use. The 
bill also directs the Energy Information Administration to gather data 
and report on the energy consumed by water treatment and delivery 
activities. Once again, better data will lead to improved decision-
making by State, local, and Federal water managers. Furthermore, the 
bill establishes research priorities for the Bureau of Reclamation's 
Brackish Groundwater Desalination Facility, including renewable energy 
integration with desalination technologies. To the extent that 
renewable energy can be integrated

[[Page S2831]]

with water treatment and delivery facilities, public acceptance of new 
water supply proposals is likely to increase.
  The bill being introduced today is a good first step towards 
integrating energy and water policy. Such efforts will become 
increasingly necessary as growing populations, environmental needs, and 
a changing climate continue to affect both energy and water resources. 
I look forward to this legislation increasing the dialogue on these 
issues and hope that we can incorporate additional ideas as the 
legislative process proceeds.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 531

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Energy and Water Integration 
     Act of 2009''.

     SEC. 2. ENERGY WATER NEXUS STUDY.

       (a) In General.--Not later than 90 days after the date of 
     enactment of this Act, the Secretary of Energy (referred to 
     in this Act as the ``Secretary''), in consultation with the 
     Secretary of the Interior and the Administrator of the 
     Environmental Protection Agency, shall enter into an 
     arrangement with the National Academy of Sciences under which 
     the Academy shall conduct an in-depth analysis of the impact 
     of energy development and production on the water resources 
     of the United States.
       (b) Scope of Study.--
       (1) In general.--The study described in subsection (a) 
     shall be comprised of each assessment described in paragraphs 
     (2) through (4).
       (2) Transportation sector assessment.--
       (A) In general.--The study shall include a lifecycle 
     assessment of the quantity of water withdrawn and consumed in 
     the production of transportation fuels, or electricity, to 
     evaluate the ratio that--
       (i) the quantity of water withdrawn and consumed in the 
     production of transportation fuels (measured in gallons), or 
     electricity (measured in kilowatts); bears to
       (ii) the total distance (measured in miles) that may be 
     traveled as a result of the consumption of transportation 
     fuels, or electricity.
       (B) Scope of assessment.--
       (i) In general.--The assessment shall include, as 
     applicable--

       (I) the exploration for, and extraction or growing of, 
     energy feedstock;
       (II) the processing of energy feedstock into transportation 
     fuel;
       (III) the generation, transportation, and storage of 
     electricity for transportation; and
       (IV) the conduct of an analysis of the efficiency with 
     which the transportation fuel is consumed.

       (ii) Fuels.--The assessment shall contain an analysis of 
     transportation fuel sources, including--

       (I) domestically produced crude oil (including products 
     derived from domestically produced crude oil);
       (II) imported crude oil (including products derived from 
     imported crude oil);
       (III) domestically produced natural gas (including liquid 
     fuels derived from natural gas);
       (IV) imported natural gas (including liquid fuels derived 
     from natural gas);
       (V) oil shale;
       (VI) tar sands;
       (VII) domestically produced corn-based ethanol;
       (VIII) imported corn-based ethanol;
       (IX) advanced biofuels (including cellulosic- and algae-
     based biofuels);
       (X) coal to liquids (including aviation fuel, diesel, and 
     gasoline products);
       (XI) electricity consumed in--

       (aa) fully electric drive vehicles; and
       (bb) plug-in hybrid vehicles;

       (XII) hydrogen; and
       (XIII) any reasonably foreseeable combination of any 
     transportation fuel source described in subclauses (I) 
     through (XII).

       (3) Electricity sector assessment.--
       (A) In general.--The study shall include a lifecycle 
     assessment of the quantity of water withdrawn and consumed in 
     the production of electricity to evaluate the ratio that--
       (i) the quantity of water used and consumed in the 
     production of electricity (measured in gallons); bears to
       (ii) the quantity of electricity that is produced (measured 
     in kilowatt-hours).
       (B) Scope of assessment.--The assessment shall include, as 
     applicable--
       (i) the exploration for, or extraction or growing of, 
     energy feedstock;
       (ii) the processing of energy feedstock for electricity 
     production; and
       (iii) the production of electricity.
       (C) Generation types.--The assessment shall contain an 
     evaluation and analysis of electricity generation facilities 
     that are constructed in accordance with different plant 
     designs (including different cooling technologies such as 
     water, air, and hybrid systems, and technologies designed to 
     minimize carbon dioxide releases) based on the fuel used by 
     the facility, including--
       (i) coal;
       (ii) natural gas;
       (iii) oil;
       (iv) nuclear energy;
       (v) solar energy;
       (vi) wind energy;
       (vii) geothermal energy;
       (viii) biomass;
       (ix) the beneficial use of waste heat; and
       (x) any reasonably foreseeable combination of any fuel 
     described in clauses (i) through (ix).
       (4) Assessment of additional impacts.--In addition to the 
     impacts associated with the direct use and consumption of 
     water resources in the transportation and electricity sectors 
     described in paragraphs (2) and (3), the study shall contain 
     an identification and analysis of any unique water impact 
     associated with a specific fuel source, including an impact 
     resulting from--
       (A) any extraction or mining practice;
       (B) the transportation of feedstocks from the point of 
     extraction to the point of processing;
       (C) the transportation of fuel and power from the point of 
     processing to the point of consumption; and
       (D) the location of a specific fuel source that is limited 
     to 1 or more specific geographical regions.
       (c) Report to Secretary.--Not later than 18 months after 
     the date of enactment of this Act, the National Academy of 
     Sciences shall submit to the Secretary a report that contains 
     a summary of the results of the study conducted under this 
     section.
       (d) Availability of Results of Study.--On the date on which 
     the National Academy of Sciences completes the study under 
     this section, the National Academy of Sciences shall make 
     available to the public the results of the study.
       (e) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Secretary such sums as are 
     necessary to carry out this section.

     SEC. 3. POWER PLANT WATER AND ENERGY EFFICIENCY.

       (a) In General.--To protect water supplies and promote the 
     efficient use of water in the electricity production sector, 
     the Secretary, in consultation with the Secretary of the 
     Interior and the Administrator of the Environmental 
     Protection Agency, shall conduct a study to identify the best 
     available technologies and related strategies to maximize 
     water and energy efficiency in the production of electricity 
     by each type of generation.
       (b) Generation Types.--The study shall include an 
     evaluation of different types of generation facilities, 
     including--
       (1) coal facilities, under which the evaluation shall 
     account for--
       (A) different types of coal and associated generating 
     technologies; and
       (B) the use of technologies designed to minimize and 
     sequester carbon dioxide releases;
       (2) oil and natural gas facilities, under which the 
     evaluation shall account for the use of technologies designed 
     to minimize and sequester carbon dioxide releases;
       (3) hydropower, including turbine upgrades, incremental 
     hydropower, in-stream hydropower, and pump-storage projects;
       (4) thermal solar facilities; and
       (5) nuclear facilities.
       (c) Report to Congress.--Not later than 18 months after the 
     date of enactment of this Act, the Secretary shall submit to 
     the appropriate committees of Congress a report that contains 
     a description of the results of the study conducted under 
     this section.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Secretary such sums as are 
     necessary to carry out this section, to remain available 
     until expended.

     SEC. 4. WATER CONSERVATION AND ENERGY SAVINGS STUDY.

       (a) Definitions.--In this section:
       (1) Major reclamation project.--The term ``major 
     Reclamation project'' means a multipurpose project authorized 
     by the Federal Government and carried out by the Bureau of 
     Reclamation.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior, acting through the Commissioner of 
     Reclamation.
       (b) Study.--
       (1) In general.--In accordance with paragraph (2), to 
     promote the efficient use of energy in water distribution 
     systems, the Secretary shall conduct a study to evaluate the 
     quantities of energy used in water storage and delivery 
     operations in major Reclamation projects.
       (2) Elements.--In conducting the study, the Secretary 
     shall--
       (A) with respect to each major Reclamation project--
       (i) assess and estimate the annual energy consumption 
     associated with the major Reclamation project; and
       (ii) identify--

       (I) each major Reclamation project that consumes the 
     greatest quantity of energy; and
       (II) the aspect of the operation of each major Reclamation 
     project described in subclause (I) that is the most energy 
     intensive (including water storage and releases, water 
     delivery, and administrative operations); and

       (B) identify opportunities to significantly reduce current 
     energy consumption and costs with respect to each major 
     Reclamation project described in subparagraph (A), including, 
     as applicable, through--
       (i) reduced groundwater pumping;
       (ii) improved reservoir operations;

[[Page S2832]]

       (iii) infrastructure rehabilitation;
       (iv) water reuse; and
       (v) the integration of renewable energy generation with 
     project operations.
       (c) Report to Congress.--Not later than 18 months after the 
     date of enactment of this Act, the Secretary shall submit to 
     the appropriate committees of Congress a report that contains 
     a description of the results of the study conducted under 
     this section.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Secretary such sums as are 
     necessary to carry out this section, to remain available 
     until expended.

     SEC. 5. BRACKISH GROUNDWATER NATIONAL DESALINATION RESEARCH 
                   FACILITY.

       (a) Definitions.--In this section:
       (1) Facility.--The term ``facility'' means the Brackish 
     Groundwater National Desalination Research Facility, located 
     in Otero County, New Mexico.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (b) Duty of Secretary.--The Secretary shall operate, 
     manage, and maintain the facility to carry out research, 
     development, and demonstration activities to develop 
     technologies and methods that promote brackish groundwater 
     desalination as a viable method to increase water supply in a 
     cost-effective manner.
       (c) Objectives; Activities.--
       (1) Objectives.--The Secretary shall operate and manage the 
     facility as a state-of-the-art desalination research center--
       (A) to develop new water and energy technologies with 
     widespread applicability; and
       (B) to create new supplies of usable water for municipal, 
     agricultural, industrial, or environmental purposes.
       (2) Activities.--In operating, managing, and maintaining 
     the facility under subsection (b), the Secretary shall carry 
     out--
       (A) as a priority, the development of renewable energy 
     technologies for integration with desalination technologies--
       (i) to reduce the capital and operational costs of 
     desalination;
       (ii) to minimize the environmental impacts of desalination; 
     and
       (iii) to increase public acceptance of desalination as a 
     viable water supply process;
       (B) research regarding various desalination processes, 
     including improvements in reverse and forward osmosis 
     technologies;
       (C) the development of innovative methods and technologies 
     to reduce the volume and cost of desalination concentrated 
     wastes in an environmentally sound manner;
       (D) an outreach program to create partnerships with States, 
     academic institutions, private entities, and other 
     appropriate organizations to conduct research, development, 
     and demonstration activities, including the establishment of 
     rental and other charges to provide revenue to help offset 
     the costs of operating and maintaining the facility; and
       (E) an outreach program to educate the public on--
       (i) desalination and renewable energy technologies; and
       (ii) the benefits of using water in an efficient manner.
       (d) Authority of Secretary.--The Secretary may enter into 
     contracts or other agreements with, or make grants to, 
     appropriate entities to carry out this section, including an 
     agreement with an academic institution to manage research 
     activities at the facility.
       (e) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as are necessary to carry out 
     this section, to remain available until expended.

     SEC. 6. ENHANCED INFORMATION ON WATER-RELATED ENERGY 
                   CONSUMPTION.

       Section 205 of the Department of Energy Organization Act 
     (42 U.S.C. 7135) is amended by adding at the end the 
     following:
       ``(n) Water-Related Energy Consumption.--
       ``(1) In general.--Not less than once during each 3-year 
     period, to aid in the understanding and reduction of the 
     quantity of energy consumed in association with the use of 
     water, the Administrator shall conduct an assessment under 
     which the Administrator shall collect information on energy 
     consumption in various sectors of the economy that are 
     associated with the acquisition, treatment, or delivery of 
     water.
       ``(2) Required sectors.--An assessment described in 
     paragraph (1) shall contain an analysis of water-related 
     energy consumption for all relevant sectors of the economy, 
     including water used for--
       ``(A) agricultural purposes;
       ``(B) municipal purposes;
       ``(C) industrial purposes; and
       ``(D) domestic purposes.
       ``(3) Effect.--Nothing in this subsection affects the 
     authority of the Administrator to collect data under section 
     52 of the Federal Energy Administration Act of 1974 (15 
     U.S.C. 790a).''.

     SEC. 7. ENERGY-WATER RESEARCH AND DEVELOPMENT ROADMAP.

       (a) In General.--Not later than 90 days after the date of 
     enactment of this Act, the Secretary shall develop a document 
     to be known as the ``Energy-Water Research and Development 
     Roadmap'' to define the future research, development, 
     demonstration, and commercialization efforts that are 
     required to address emerging water-related challenges to 
     future, cost-effective, reliable, and sustainable energy 
     generation and production.
       (b) Report.--Not later than 120 days after the date of 
     enactment of this Act, the Secretary shall submit to the 
     appropriate committees of Congress a report describing the 
     document described in subsection (a), including 
     recommendations for any future action with respect to the 
     document.
                                 ______
                                 
      By Ms. COLLINS (for herself, Mr. Kennedy, and Ms. Snowe):
  S. 533. A bill to amend the Coastal Zone Management Act of 1972 to 
establish a grant program to ensure waterfront access for commercial 
fisherman, and for other purposes; to the Committee on Finance.
  Ms. COLLINS. Mr. President, I rise today to introduce two bills that 
will improve the lives of our Nation's fishermen who are struggling to 
make a living at sea.
  The fishing industry in New England is an important part of our 
heritage. From our nation's earliest days, fishing has served as an 
economic driver that has allowed our nation to prosper. Maine's proud 
fishing heritage is woven deeply into the cultural fabric of our state. 
Sadly, the global economic downturn and heavy-handed federal 
regulations threaten the economic stability of this venerable industry. 
To attempt to assist our fishing families, I am pleased to be joined by 
my colleague from Massachusetts, Senator Kennedy, in introducing the 
Working Waterfront Preservation Act and the Commercial Fishermen Safety 
Act.
  All along our Nation's coasts there are harbors that were once full 
of the hustle and bustle associated with the fishing industry. 
Unfortunately, there is an erosion of the vital infrastructure known as 
our working waterfronts that is so critical to our commercial fishing 
industries. I have drafted legislation that will help combat the loss 
of commercial access to our waterfronts and support the fishing 
industry's role in our maritime heritage.
  When constituents first called asking me to help them in their 
efforts to stop the loss of their fishing businesses and the 
communities built around this industry, I learned that no Federal 
program exists that supports preserving or increasing waterfront access 
for the commercial fishing industry. This is especially disheartening 
because every week we are losing more of our working waterfronts in 
this country. Quite simply, once lost, these vital economic and 
community hubs of commercial fishing activity cannot be replaced.
  That is why I am introducing the Working Waterfront Preservation Act. 
This legislation would create a program to support our Nation's 
commercial fisherman and the coastal communities that are at risk of 
losing their fishing businesses.
  The need for such a program is demonstrated by the loss of commercial 
waterfront access occurring in Maine. Only 25 of Maine's 3,500 miles of 
coastline are devoted to commercial access. We are continually seeing 
portions of Maine's working waterfront being sold off to the highest 
bidder--with large vacation homes and condominiums rising in places 
that our fishing industry used to call home.
  The reasons for the loss of Maine's working waterfront are complex. 
In some cases, burdensome fishing regulations have led to a decrease in 
landings, hindering the profitability of shore-side infrastructure, 
like the Portland Fish Exchange. In other cases, soaring land values 
and rising taxes have made the current use of commercial land 
unprofitable. Property is being sold and quickly converted into private 
spaces and second homes that are no longer the center of economic 
activity. With each conversion of commercial waterfront access to 
private development, a piece of Maine's proud maritime tradition is 
irretrievably lost.
  Maine's lack of commercial waterfront prompted the formation of a 
``Working Waterfront Coalition.'' This coalition was comprised of an 
impressive number of industry associations, nonprofit groups, and State 
agencies, who came together to preserve Maine's working waterfront.
  I am pleased to note that the Working Waterfront Coalition was 
successful in contributing to the creation of two programs in Maine. 
The first is a tax incentive for property owners to keep their land in 
its current working waterfront state. The second is a pilot program for 
grant funding to secure and preserve working waterfront areas. Since 
2006, the Working Waterfront Access Pilot Program has secured 11 
properties totaling more than 25 acres of

[[Page S2833]]

land that supports more than 300 boats, 400 fishing industry jobs, and 
more than $26 million in income directly associated with our working 
waterfronts. The State of Maine has taken positive action to save its 
waterfronts and is a model for other States in the country facing this 
problem.

  This work is not, however, finished. The loss of commercial 
waterfront access affects the fishing industry throughout all coastal 
states. And a modest Federal investment could do so much to save these 
areas. Preservation of the working waterfront is essential to protect a 
way of life that is unique to our coastal States and is vital to 
economic development along the coast. Fishermen are being pushed out of 
the waterfront as their profitability shrinks and land values soar. Our 
legislation targeting this exact problem, as no Federal program exists 
to assist States like Maine, Florida, Washington, and Louisiana.
  The Working Waterfront Preservation Act would assist by providing 
Federal grant funding to municipal and State governments, non-profit 
organizations, and fishermen's cooperatives for the purchase of 
property or easements or for the maintenance of working waterfront 
facilities. The bill contains a $50 million authorization for grants 
that would require a 25 percent local match. Applications for grants 
would be considered by both the Department of Commerce and State 
fisheries agencies, which have the local expertise to understand the 
needs of each coastal State. Grant recipients would agree not to 
convert coastal properties to noncommercial uses, as a condition of 
receiving Federal assistance.
  This legislation also includes a tax component. When properties or 
easements are purchased, sellers would only be taxed on half of the 
gain they receive from this sale. This is a vital aspect of my bill 
because it would diminish the pressure to quickly sell waterfront 
property that would then, most likely, be converted to noncommercial 
uses, and would increase the incentives for sellers to take part in 
this grant program. This is especially important given that the 
application process for Federal grants does not keep pace with the 
coastal real estate market.
  This legislation is crucial for our Nation's commercial fisheries, 
which are coming under increasing pressures from many fronts. This new 
grant program would preserve important commercial infrastructure and 
promote economic development along our coast.
  Second, I am introducing the Commercial Fishermen Safety Act of 2009, 
a bill to help fishermen purchase the life-saving safety equipment they 
need to survive when disaster strikes.
  Every day, members of our fishing communities struggle to cope with 
the pressures of running a small business, complying with burdensome 
regulations, and maintaining their vessels and equipment. These 
challenges have been made worse by the growing economic crisis, which 
only adds to the dangers associated with fishing.
  Year-in and year-out, commercial fishing ranks among the nation's 
most dangerous occupations. Fatality rate data compiled by the Census 
of Fatal Occupational Injuries program for 2007 has, once again, listed 
fishing as having the highest fatality rate among selected occupations. 
While I am encouraged that 2007 saw a drop in the number of 
occupational-related fatalities in the fishing industry, we must be 
doing more to save lives at sea.
  The New England fishing community is no stranger to tragedy. Just 
this year, the Patriot, a 54-foot fishing boat out of Gloucester, MA, 
sunk off the coast of Massachusetts without warning. The ship's captain 
Matteo Russo and crew member John Orlando, who were lost in the 
incident, were unable to send a mayday call in the early morning of 
January 3, 2009. The unexplained circumstance of their deaths offers 
little solace to the families and communities that loved them. What is 
clear is that preventing further loss of life requires that we do all 
we can to promote safety at sea.
  Coast Guard regulations require all fishing vessels to carry safety 
equipment. The requirements vary depending on factors such as the size 
of the vessel, the temperature of the water, and the distance the 
vessel travels from shore to fish. Required equipment can include a 
liferaft that automatically inflates and floats free, should the vessel 
sink. Other life-saving equipment includes: personal flotation devices 
or immersion suits which help protect fishermen from exposure and 
increase buoyancy; EPIRBs, which relay a downed vessel's position to 
Coast Guard Search and Rescue Personnel; visual distress signals; and 
fire extinguishers.
  When an emergency arises, safety equipment is priceless. At all other 
times, the cost of purchasing or maintaining this equipment must 
compete with other expenses such as loan payments, fuel, wages, 
maintenance, and insurance.
  The Commercial Fishermen Safety Act of 2007 provides a tax credit 
equal to 75 percent of the amount paid by fishermen to purchase or 
maintain required safety equipment. The tax credit is capped at $1500. 
Items such as EPIRBs and immersion suits cost hundreds of dollars, 
while liferafts can reach into the thousands. The tax credit will make 
life-saving equipment more affordable for more fishermen, who currently 
face limited options under the federal tax code.
  We have seen far too many tragedies in this occupation. Please, let 
us support fishermen who are trying to prepare in case disaster 
strikes. Safety equipment saves lives. By providing a tax credit for 
the purchase of safety equipment, Congress can help ensure that 
fishermen have a better chance of returning home each and every time 
they head out to sea.
                                 ______
                                 
      By Mr. WYDEN:
   S. 536. A bill to amend the Clean Air Act to modify the definition 
of the term ``renewable biomass''; to the Committee on Environment and 
Public Works.
  Mr. WYDEN. Mr. President, there is an old saying about ``not seeing 
the forest for the trees'' that applies to the current myopic policies 
on biomass from Federal lands. Right now, instead of helping to provide 
part of the solution to our Nation's dependence on foreign oil, biomass 
from Federal lands allowed to build up in the woods or worse become 
fuel for catastrophic fires. Instead of being part of the solution for 
energy independence, it is creating a problem for forest management and 
communities that border on Federal forests.
  I rise today to introduce a bill that would allow woody debris and 
plant material--or ``biomass''--from Federal lands to become part of 
the solution to America's energy problems and to create new economic 
opportunities to help sustain our rural communities. This legislation 
would amend the Clean Air Act to modify the definition of the term 
``renewable biomass'' contained in the Federal Renewable Fuel Standard 
so that biomass from Federal lands is eligible as a fuel source under 
this standard.
  Today, biomass from Federal lands cannot be counted as a renewable 
transportation fuel. The change I am proposing would help tackle a 
number of critical problems--expanding the universe of biomass that can 
be used for fuel, helping pay for programs to reduce dangerous levels 
of dead and dying trees that fuel wildfires, thinning unhealthy, second 
growth forests, providing low-carbon fuels to address climate change, 
and create jobs in increasingly difficult economic times.
  The reason we need this legislation goes back to the 2007 energy 
bill--the Energy Independence and Security Act of 2007. In that 
legislation, the Congress dramatically expanded the Federal mandate for 
the use of renewable biofuels, such as ethanol from corn and cellulose, 
and biodiesel. Unfortunately, this legislation included a definition of 
renewable biomass that is now part of the Clean Air Act which excluded 
slash and thinning byproducts from Federal lands--all Federal lands. 
This occurred despite the bipartisan work we had undertaken here in the 
Senate and in the Energy and Natural Resources Committee to come up 
with a more commonsense definition. The result is that biomass from 
millions of acres of Federal lands are arbitrarily excluded from 
serving as feedstock for the very renewable biofuels that the mandate 
requires.
  Changing the definition of ``renewable biomass'' for the renewable 
fuels standard is very important to states like Oregon, where the 
Federal Government owns much of the land and where our forests are 
choked and overstocked. Critical work needs to take

[[Page S2834]]

place in these forests and utilizing the excess biomass--small diameter 
trees, limbs and debris--for energy will help us get that work 
accomplished while getting us the added benefit of green energy. These 
byproducts are often a critical energy source for rural Americans, who 
use them in environmentally-friendly wood pellet stoves. But more 
importantly, they are part of the future of clean, renewable fuels--as 
further development of cellulosic ethanol will allow us to use these 
waste materials reclaimed literally from the forest and mill floors. 
Conversely, by excluding biomass from Federal lands, the existing 
mandate places ever more weight on the use of biomass from other 
sources, including the use of food-based corn and grains and private 
forests.

  My bill seeks to utilize biomass from Federal lands in an 
environmentally responsible way. It will protect those natural 
resources that need to be protected, while allowing renewable biomass 
from Federal lands to contribute to our Nation's energy mix. First, my 
bill would allow biomass from National Forests and Bureau of Land 
Management forests to qualify as renewable biomass under the Federal 
Renewable Fuels Standard, but it would continue to exclude old growth 
and biomass from National Parks, Wilderness Areas and other 
environmentally protected areas. Second, the bill would require Federal 
land managers to ensure that the quantities of biomass harvested even 
from these eligible National Forest and BLM lands are sustainable. 
While biomass holds great potential as a clean source of energy, I want 
to ensure that it gets harvested at levels that are truly sustainable 
and that biofuels and bioenergy projects dependent on renewable biomass 
are sized appropriately so that we protect our forests and natural 
resources and ensure that biofuels production facilities will not 
wither and die because of inadequate feedstock supplies.
  I want to be clear that my legislation only addresses the question of 
how the Renewable Fuel Standard treats biomass from Federal lands. It 
does not and it is not intended to reopen or overhaul the Renewable 
Fuels Standard as a whole. It is simply a targeted fix for our Federal 
public lands.
  As we move forward with new energy legislation and work on developing 
additional green energy solutions, I want to ensure that renewable 
biomass is genuinely one of those solutions, including biomass from 
Federal lands. It is my hope that beyond fixing the definition in the 
Clean Air Act for the Renewable Fuels Standard, Congress will include a 
comparable definition in legislation addressing climate change and 
renewable electricity production requirements.
  I look forward to working with my colleagues here in the Senate and 
in the House of Representatives to advance a biomass definition that 
balances sound energy policy with practical and sensible use of our 
forests.
   Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 536

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. RENEWABLE BIOMASS.

       (a) Sense of Congress.--It is the sense of Congress that 
     Congress should seek to establish a consistent definition for 
     the term ``renewable biomass''.
       (b) Renewable Biomass.--Section 211(o)(1)(I) of the Clean 
     Air Act (42 U.S.C. 7545(o)(1)(I)) is amended--
       (1) by redesignating clauses (v) through (vii) as clauses 
     (vi) through (viii), respectively;
       (2) by inserting after clause (iv) the following:
       ``(v) Slash and precommercial sized thinnings harvested--

       ``(I) in environmentally sustainable quantities, as 
     determined by the appropriate Federal land manager; and
       ``(II) from National Forest System land or public land (as 
     defined in section 103 of the Federal Land Policy and 
     Management Act of 1976 (43 U.S.C. 1702), other than--

       ``(aa) components of the National Wilderness Preservation 
     System;
       ``(bb) wilderness study areas;
       ``(cc) inventoried roadless areas and all unroaded areas of 
     at least 5,000 acres;
       ``(dd) old growth stands;
       ``(ee) components of the National Landscape Conservation 
     System; and
       ``(ff) national monuments.''; and
       (3) by striking clause (vi) (as redesignated by paragraph 
     (1)) and inserting the following:
       ``(vi) Biomass obtained on land in any ownership from the 
     immediate vicinity of any building, camp, or public 
     infrastructure facility (including roads), at risk from 
     wildfire.''.
                                 ______
                                 
      By Mr. KOHL (for himself and Mr. Graham):
  S. 537. A bill to amend chapter 111 of tire 28, United States Code, 
relating to protective orders, sealing of cases, disclosures of 
discovery information in civil actions, and for other purposes; to the 
Committee on the Judiciary.
  Mr. KOHL. Mr. President, I rise today to introduce the Sunshine in 
Litigation Act of 2009, a bill that will curb the ongoing abuse of 
secrecy orders in Federal courts. The result of this abuse, which often 
comes in the form of sealed settlement agreements, is to keep important 
health and safety information hidden from the public.
  This problem has been recurring for decades, and most often arises in 
product liability cases. Typically, an individual brings a cause of 
action against a manufacturer for an injury or death that has resulted 
from a defect in one of its products. The injured party often faces a 
large corporation that can spend a virtually unlimited amount of money 
defending the lawsuit, prolonging the time it takes to reach 
resolution. Facing a formidable opponent and mounting medical bills, a 
plaintiff often has no choice but to settle the litigation. In exchange 
for the award he or she was seeking, the victim is forced to agree to a 
provision that prohibits him or her from revealing information 
disclosed during the litigation.
  Plaintiffs get a respectable award, and the defendant is able to keep 
damaging information from getting out. Because they remain unaware of 
critical public health and safety information that could potentially 
save lives, the American public incurs the greatest cost.
  This concern about excessive secrecy is warranted by the fact that 
tobacco companies, automobile manufacturers, and pharmaceutical 
companies have settled with victims and used the legal system to hide 
information which, if it became public, could protect the American 
people from future harms. Surely, there are appropriate uses for such 
orders, like protecting trade secrets and other truly confidential 
company information. This legislation makes sure such information is 
protected. But, protective orders are certainly not supposed to be used 
for the sole purpose of hiding damaging information from the public, to 
protect a company's reputation or profit margin.
  One of the most famous cases of abuse of secrecy orders involved 
Bridgestone/Firestone tires. From 1992-2000, tread separations of 
various Bridgestone and Firestone tires caused accidents across the 
country, many resulting in serious injuries and even fatalities. 
Instead of owning up to their mistakes and acting responsibly, 
Bridgestone/Firestone quietly settled dozens of lawsuits, most of which 
included secrecy agreements. It was not until 1999, when a Houston 
public television station broke the story, that the company 
acknowledged its wrongdoing and recalled 6.5 million tires. By then, it 
was too late. More than 250 people had died and more than 800 were 
injured as a result of the defective tires.
  If the story ended there, and the Bridgestone/Firestone cases were 
just an aberration, one might argue that there is no urgent need for 
legislation. But, unfortunately, the list of abuses goes on. There is 
the case of General Motors. Although an internal memo demonstrated that 
GM was aware of the risk of fire deaths from crashes of pickup trucks 
with ``side saddle'' fuel tanks, an estimated 750 people were killed in 
fires involving trucks with these fuel tanks. When victims sued, GM 
disclosed documents only under protective orders, and settled these 
cases on the condition that the information in these documents remained 
secret. This type of fuel tank was installed for 15 years before being 
discontinued.

  Evidence suggests that the dangers posed by protective orders and 
secret settlements continue. On December 11, 2007, at a hearing before 
the Senate Judiciary Committee Subcommittee on Antitrust, Competition 
Policy and Consumer Rights, Johnny Bradley Jr. described his tragic 
personal story that demonstrates the implications of court endorsed 
secrecy. In 2002, Mr. Bradley's

[[Page S2835]]

wife was killed in a rollover accident allegedly caused by tread 
separation in his Cooper tires. While litigating the case, his attorney 
uncovered documented evidence of Cooper tire design defects. Through 
aggressive litigation of protective orders and confidential settlements 
in cases prior to the Bradleys' accident, Cooper had managed to keep 
the design defect documents confidential. Prior to the end of Mr. 
Bradley's trial, Cooper Tires settled with him on the condition that 
almost all litigation documents would be kept confidential under a 
broad protective order. With no access to documented evidence of design 
defects, consumers will continue to remain in the dark about this life-
threatening defect.
  In 2005, the drug company Eli Lilly settled 8,000 cases related to 
harmful side effects of its drug Zyprexa. All of those settlements 
required plaintiffs to agree ``not to communicate, publish or cause to 
be published . . . any statement . . . concerning the specific events, 
facts or circumstances giving rise to [their] claims.'' In those cases, 
the plaintiffs uncovered documents which showed that, through its own 
research, Lilly knew about the harmful side effects as early as 1999. 
While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and 
generated $4.2 billion in sales in 2005. More than a year later, 
information about the case was leaked to the New York Times and another 
18,000 cases settled. Had the first settlement not included a secrecy 
agreement, consumers would have been able to make informed choices and 
avoid the harmful side effects, including enormous weight gain, 
dangerously elevated blood sugar levels, and diabetes.
  This very issue is currently before a Federal judge in Orlando, FL. 
There, the court is faced with deciding whether AstraZeneca can keep 
under seal clinical studies about the harmful side effects of an 
antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News 
sued to force AstraZeneca to make public documents discovered in 
dismissed lawsuits. Late last month, the court unsealed some of the 
documents at question, and is still deciding whether to unseal the 
remainder of the documents. This is exactly the sort of case where we 
need judges to consider public health and safety when deciding whether 
to allow a secrecy order.
  There are no records kept of the number of confidentiality orders 
accepted by State or Federal courts. However, anecdotal evidence 
suggests that court secrecy and confidential settlements are prevalent. 
Beyond General Motors, Bridgestone/Firestone, Cooper Tire, Zyprexa and 
Seroquel, secrecy agreements have also had real life consequences by 
allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other 
dangerous products and drugs to remain in the market. And those are 
only the ones we know about.
  While some states have already begun to move in the right direction, 
we still have a long way to go. It is time to initiate a Federal 
solution for this problem. The Sunshine in Litigation Act is a modest 
proposal that would require federal judges to perform a simple 
balancing test to ensure that in any proposed secrecy order, the 
defendant's interest in secrecy truly outweighs the public interest in 
information related to public health and safety.
  Specifically, prior to making any portion of a case confidential or 
sealed, a judge would have to determine--by making a particularized 
finding of fact--that doing so would not restrict the disclosure of 
information relevant to public health and safety. Moreover, all courts, 
both Federal and State, would be prohibited from issuing protective 
orders that prevent disclosure to relevant regulatory agencies.
  This legislation does not prohibit secrecy agreements across the 
board. It does not place an undue burden on judges or our courts. It 
simply states that where the public interest in disclosure outweighs 
legitimate interests in secrecy, courts should not shield important 
health and safety information from the public. The time to focus some 
sunshine on public hazards to prevent future harm is now.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 537

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Sunshine in Litigation Act 
     of 2009''.

     SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF 
                   CASES AND SETTLEMENTS.

       (a) In General.--Chapter 111 of title 28, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1660. Restrictions on protective orders and sealing of 
       cases and settlements

       ``(a)(1) A court shall not enter an order under rule 26(c) 
     of the Federal Rules of Civil Procedure restricting the 
     disclosure of information obtained through discovery, an 
     order approving a settlement agreement that would restrict 
     the disclosure of such information, or an order restricting 
     access to court records in a civil case unless the court has 
     made findings of fact that--
       ``(A) such order would not restrict the disclosure of 
     information which is relevant to the protection of public 
     health or safety; or
       ``(B)(i) the public interest in the disclosure of potential 
     health or safety hazards is outweighed by a specific and 
     substantial interest in maintaining the confidentiality of 
     the information or records in question; and
       ``(ii) the requested protective order is no broader than 
     necessary to protect the privacy interest asserted.
       ``(2) No order entered in accordance with paragraph (1), 
     other than an order approving a settlement agreement, shall 
     continue in effect after the entry of final judgment, unless 
     at the time of, or after, such entry the court makes a 
     separate finding of fact that the requirements of paragraph 
     (1) have been met.
       ``(3) The party who is the proponent for the entry of an 
     order, as provided under this section, shall have the burden 
     of proof in obtaining such an order.
       ``(4) This section shall apply even if an order under 
     paragraph (1) is requested--
       ``(A) by motion pursuant to rule 26(c) of the Federal Rules 
     of Civil Procedure; or
       ``(B) by application pursuant to the stipulation of the 
     parties.
       ``(5)(A) The provisions of this section shall not 
     constitute grounds for the withholding of information in 
     discovery that is otherwise discoverable under rule 26 of the 
     Federal Rules of Civil Procedure.
       ``(B) No party shall request, as a condition for the 
     production of discovery, that another party stipulate to an 
     order that would violate this section.
       ``(b)(1) A court shall not approve or enforce any provision 
     of an agreement between or among parties to a civil action, 
     or approve or enforce an order subject to subsection (a)(1), 
     that prohibits or otherwise restricts a party from disclosing 
     any information relevant to such civil action to any Federal 
     or State agency with authority to enforce laws regulating an 
     activity relating to such information.
       ``(2) Any such information disclosed to a Federal or State 
     agency shall be confidential to the extent provided by law.
       ``(c)(1) Subject to paragraph (2), a court shall not 
     enforce any provision of a settlement agreement described 
     under subsection (a)(1) between or among parties that 
     prohibits 1 or more parties from--
       ``(A) disclosing that a settlement was reached or the terms 
     of such settlement, other than the amount of money paid; or
       ``(B) discussing a case, or evidence produced in the case, 
     that involves matters related to public health or safety.
       ``(2) Paragraph (1) does not apply if the court has made 
     findings of fact that the public interest in the disclosure 
     of potential health or safety hazards is outweighed by a 
     specific and substantial interest in maintaining the 
     confidentiality of the information.
       ``(d) When weighing the interest in maintaining 
     confidentiality under this section, there shall be a 
     rebuttable presumption that the interest in protecting 
     personally identifiable information relating to financial, 
     health or other similar information of an individual 
     outweighs the public interest in disclosure.
       ``(e) Nothing in this section shall be construed to permit, 
     require, or authorize the disclosure of classified 
     information (as defined under section 1 of the Classified 
     Information Procedures Act (18 U.S.C. App.)).''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 111 of title 28, United States Code, is 
     amended by adding after the item relating to section 1659 the 
     following:

``1660. Restrictions on protective orders and sealing of cases and 
              settlements.''.

     SEC. 3. EFFECTIVE DATE.

       The amendments made by this Act shall--
       (1) take effect 30 days after the date of enactment of this 
     Act; and
       (2) apply only to orders entered in civil actions or 
     agreements entered into on or after such date.
                                 ______
                                 
      By Mrs. LINCOLN (for herself, Mr. Cochran, Mr. Leahy, Mr. 
        Menendez, and Mr. Pryor):
  S. 538. A bill to increase the recruitment and retention of school 
counselors, school social workers, and

[[Page S2836]]

school psychologists by low-income local educational agencies; to the 
Committee on Health, Education, Labor, and Pensions.
  Mrs. LINCOLN. Mr. President, on behalf of children in lower-income 
schools across our nation, I rise today to introduce the Increased 
Student Achievement through Increased Student Support Act.
  Each day, teachers in our schools are tasked not only with addressing 
the academic needs of students, but also with the behavioral, social, 
and emotional needs of the children in their classrooms. When they are 
left to address these emotional and behavioral issues, they have less 
time to deliver high quality academic instruction to the rest of the 
students in their class. Additionally, teachers often do not have the 
training or expertise to deal with many of the emotional issues their 
students face. Children overcoming mental illness or family issues such 
as the deployment of a parent to a war zone, homelessness, or domestic 
abuse, need the assistance of a trained professional, such as a school 
psychologist, school counselor, or school social worker.
  While student support services provided by these support personnel 
are readily available in many school districts, other low-income 
schools often lack access to these support personnel. Too many schools 
in low-income rural and urban areas have to share school counselors, 
social workers, and psychologists with many schools in the area, 
limiting their students' access to these services and placing an 
unnecessary burden on our teachers and our students.
  That is why I rise today along with my colleagues Senators Cochran, 
Leahy, Menendez, and Pryor to enthusiastically offer the Increased 
Student Achievement through Increased Student Support Act. This bill 
will authorize grant funding to form partnerships between higher 
education institutions that train school guidance counselors, social 
workers, and psychologists and qualified rural and urban low-income 
Local Education Agencies to train and place these important school 
support professionals in under-served schools across the country.
  This bipartisan bill also authorizes grant funding to universities to 
recruit and hire faculty to train graduate students to become school 
counselors, school social workers, and school psychologists. 
Additionally, it provides tuition credits to such graduate students, 
and offers student loan forgiveness to program graduates employed as 
school counselors, social workers, or psychologists by rural or urban 
low-income Local Education Agencies for a minimum of five years.
  By increasing the number of student support personnel in our 
country's under-served schools, we will provide students with the 
social and emotional support they need to succeed in the classroom. We 
will also provide teachers the assistance they need so they can 
concentrate on providing the academic instruction our children need.
  By taking these steps to improve student access to school counselors, 
school social workers, and school psychologists, I am confident we can 
make strides in raising academic achievement in schools across the 
country.
  As we move forward, I want to encourage my colleagues to support 
America's children by supporting this important piece of legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 538

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Increased Student 
     Achievement Through Increased Student Support Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Research shows that socioeconomic status and family 
     background characteristics are highly correlated with 
     educational outcomes, with a concentration of low-performing 
     schools in low-income and under-served communities.
       (2) Teachers cite poor working conditions, student 
     behavior, lack of student motivation, and lack of 
     administrative support as key reasons why they choose to 
     leave the teaching profession.
       (3) Teachers and principals working for low-income local 
     educational agencies are increasingly tasked with addressing 
     not only the academic needs of a child, but also the social, 
     emotional, and behavioral needs of a child that require the 
     services of a school counselor, school social worker, and 
     school psychologist, and these needs often interfere with 
     delivering quality instruction and raising student 
     achievement.
       (4) Rates of abuse and neglect of young children in 
     military families have doubled with the increased military 
     involvement of the United States abroad since October 2002; 
     likewise, adolescents with deployed parents report increased 
     perceptions of uncertainty and loss, role ambiguity, negative 
     changes in mental and behavioral health, and increased 
     relationship conflict, raising concerns about the impact of 
     deployment on military personnel and their families and 
     whether schools that serve a large number of children with 
     deployed parents have sufficient staff and expertise to meet 
     these challenges.
       (5) Children of military families in rural communities are 
     often geographically isolated, and schools that were already 
     experiencing understaffing of school counselors, school 
     social workers, and school psychologists face even greater 
     challenges meeting the increased needs of students enduring 
     the stress that comes along with having a deployed parent or 
     parents.
       (6) Schools served by low-income local educational agencies 
     suffer disproportionately from a lack of services, with many 
     schools sharing a single school counselor, school social 
     worker, or school psychologist with neighboring schools.
       (7) Too few school counselors, school social workers, and 
     school psychologists per student means that such personnel 
     are often unable to effectively address the needs of 
     students.
       (8) The American School Counselor Association and American 
     Counseling Association recommend having at least 1 school 
     counselor for every 250 students.
       (9) The School Social Work Association of America 
     recommends having at least 1 school social worker for every 
     400 students.
       (10) The National Association of School Psychologists 
     recommends having at least 1 school psychologist for every 
     1,000 students.
       (11) Recent research of victimization of children ages 2 to 
     17 suggests that more than one-half of the children 
     experienced a physical assault in the study year. More than 1 
     in 4 experienced a property offense, more than 1 in 8 
     experienced a form of child maltreatment, 1 in 12 experienced 
     a sexual victimization, and more than 1 in 3 had been a 
     witness to violence or experienced another form of indirect 
     victimization. Only 29 percent of the children had no direct 
     or indirect victimization.
       (12) Principals and teachers see signs of trauma-related 
     stress in many students including hostile outbursts, sliding 
     grades, poor test performance, and the inability to pay 
     attention.
       (13) It is estimated, based on recent data on the number of 
     children in foster care, that more than 500,000 children are 
     in the foster care system each year, with 289,000 exiting the 
     system each year due to aging out or adoption.

     SEC. 3. PURPOSE.

       The purpose of this Act is to increase the recruitment and 
     retention of school counselors, school social workers, and 
     school psychologists by low-income local educational agencies 
     in order to--
       (1) support all students who are at risk of negative 
     educational outcomes;
       (2) improve student achievement, which may be measured by 
     growth in academic achievement on tests required by the 
     applicable State educational agency, persistence rates, 
     graduation rates, and other appropriate measures;
       (3) improve retention of teachers who are highly qualified;
       (4) increase and improve outreach and collaboration between 
     school counselors, school social workers, and school 
     psychologists and parents and families served by low-income 
     local educational agencies;
       (5) increase and improve collaboration among teachers, 
     principals, school counselors, school social workers, and 
     school psychologists and improve professional development 
     opportunities for teachers and principals in the area of 
     strategies related to improving classroom climate and 
     classroom management; and
       (6) improve working conditions for all school personnel.

     SEC. 4. GRANT PROGRAM TO INCREASE THE NUMBER OF SCHOOL 
                   COUNSELORS, SCHOOL SOCIAL WORKERS, AND SCHOOL 
                   PSYCHOLOGISTS EMPLOYED BY LOW-INCOME LOCAL 
                   EDUCATIONAL AGENCIES.

       (a) Grant Program Authorized.--The Secretary of Education 
     shall award grants on a competitive basis to eligible 
     partnerships that receive recommendations from the peer 
     review panel established under subsection (d), to enable such 
     partnerships to carry out pipeline programs to increase the 
     number of school counselors, school social workers, and 
     school psychologists employed by low-income local educational 
     agencies by carrying out any of the activities described by 
     subsection (g).
       (b) Grant Period.--A grant awarded under this section shall 
     be for a 5-year period and may be renewed for additional 5-
     year periods upon a showing of adequate progress, as the 
     Secretary determines appropriate.

[[Page S2837]]

       (c) Application.--To be eligible to receive a grant under 
     this section, an eligible graduate institution, on behalf of 
     an eligible partnership, shall submit to the Secretary a 
     grant application, including--
       (1) an assessment of the existing ratios of school 
     counselors, school social workers, and school psychologists 
     to students enrolled in schools in each low-income local 
     educational agency that is part of the eligible partnership; 
     and
       (2) a detailed description of--
       (A) a plan to carry out a pipeline program to train, place, 
     and retain school counselors, school social workers, or 
     school psychologists, or any combination thereof, as 
     applicable, in low-income local educational agencies; and
       (B) the proposed allocation and use of grant funds to carry 
     out activities described by subsection (g).
       (d) Peer Review Panel.--
       (1) Establishment of panel.--The Secretary shall establish 
     a peer review panel to evaluate applications for grants under 
     subsection (c) and make recommendations to the Secretary 
     regarding such applications.
       (2) Evaluation of applications.--In making its 
     recommendations, the peer review panel shall take into 
     account the purpose of this Act and the application 
     requirements under subsection (c), including the quality of 
     the proposed pipeline program.
       (3) Recommendation of panel.--The Secretary may award 
     grants under this section only to eligible partnerships whose 
     applications receive a recommendation from the peer review 
     panel.
       (4) Membership of panel.--
       (A) The peer review panel shall include at a minimum the 
     following members:
       (i) One clinical, tenured, or tenure track faculty member 
     at an institution of higher education with a current 
     appointment to teach courses in the subject area of school 
     counselor education.
       (ii) One clinical, tenured, or tenure track faculty member 
     at an institution of higher education with a current 
     appointment to teach courses in the subject area of school 
     social worker education.
       (iii) One clinical, tenured, or tenure track faculty member 
     at an institution of higher education with a current 
     appointment to teach courses in the subject area of school 
     psychology education.
       (iv) One clinical, tenured, or tenure track faculty member 
     at an institution of higher education with a current 
     appointment to teach courses in the subject area of teacher 
     education.
       (v) One individual with expertise in school counseling who 
     works or has worked in public schools.
       (vi) One individual with expertise in school social work 
     who works or has worked in public schools.
       (vii) One individual with expertise in school psychology 
     who works or has worked in public schools.
       (viii) One administrator who works or has worked for a low-
     income local educational agency.
       (ix) One highly qualified teacher who has substantial 
     experience working for a low-income local educational agency.
       (B) At least one of the members described in subparagraph 
     (A) shall be a clinical faculty member.
       (e) Distribution of Grants.--From among the applications 
     receiving a recommendation by the peer review panel, the 
     Secretary shall--
       (1) award the first 5 grants to eligible partnerships from 
     5 different States;
       (2) to the extent practicable, distribute grants equitably 
     among eligible partnerships that propose to train graduate 
     students in each of the three professions of school 
     counseling, school social work, and school psychology; and
       (3) to the extent practicable, equitably distribute the 
     grants among eligible partnerships that include an urban low-
     income local educational agency and partnerships that include 
     a rural low-income local educational agency, with a minimum 
     of 16.3 percent of the funds (representing the percent of 
     low-income children served by rural local educational 
     agencies according to the United States Bureau of Census 
     Small Area Income Poverty Estimates, 2006) awarded to 
     eligible partnerships that include a rural low-income local 
     educational agency.
       (f) Priority.--The Secretary shall give priority to 
     eligible partnerships that--
       (1) propose to use the grant funds to carry out the 
     activities described under paragraphs (1) through (3) of 
     subsection (g) in schools that have higher numbers or 
     percentages of low-income students and students not meeting 
     the proficient level of achievement (as described by section 
     1111 of the Elementary and Secondary Education Act of 1965 
     (20 U.S.C. 6311)) in comparison to other schools that are 
     served by the low-income local educational agency that is 
     part of the eligible partnership;
       (2) include a low-income local educational agency that has 
     fewer school counselors, school social workers, and school 
     psychologists per student than other eligible partnerships;
       (3) include one or more eligible graduate institutions that 
     offer graduate programs in the greatest number of the 
     following areas:
       (A) school counseling;
       (B) school social work; and
       (C) school psychology; and
       (4) propose to collaborate with other institutions of 
     higher education with similar programs, including sharing 
     facilities, faculty members, and administrative costs.
       (g) Use of Grant Funds.--Grant funds awarded under this 
     section may be used--
       (1) to pay the administrative costs (including supplies, 
     office and classroom space, supervision, mentoring, and 
     transportation stipends as necessary and appropriate) related 
     to--
       (A) having graduate students of school counseling, school 
     social work, and school psychology placed in schools served 
     by participating low-income local educational agencies to 
     complete required field work, credit hours, internships, or 
     related training as applicable for the degree, license, or 
     credential program of each such student; and
       (B) offering required graduate course work for graduate 
     students of school counseling, school social work, and school 
     psychology on the site of a participating low-income local 
     educational agency;
       (2) for not more than the first 3 years after participating 
     graduates receive a masters or other graduate degree or 
     obtain a State license or credential in school counseling, 
     school social work, or school psychology, to hire and pay all 
     or part of the salaries of such participating graduates to 
     work as school counselors, school social workers, and school 
     psychologists in schools served by participating low-income 
     local educational agencies;
       (3) to increase the number of school counselors, school 
     social workers, and school psychologists per student in 
     schools served by participating low-income local educational 
     agencies to work towards the student support personnel target 
     ratios;
       (4) to recruit, hire, and retain culturally or 
     linguistically under-represented graduate students in school 
     counseling, school social work, and school psychology for 
     placement in schools served by participating low-income 
     educational agencies;
       (5) to recruit, hire, and pay faculty as necessary to 
     increase the capacity of a participating eligible graduate 
     institution to train graduate students in the fields of 
     school counseling, school social work, and school psychology;
       (6) to develop coursework that will--
       (A) encourage a commitment by graduate students in school 
     counseling, school social work, or school psychology to work 
     for low-income local educational agencies;
       (B) give participating graduates the knowledge and skill 
     sets necessary to meet the needs of--
       (i) students and families served by low-income local 
     educational agencies; and
       (ii) teachers, administrators, and other staff who work for 
     low-income local educational agencies;
       (C) enable participating graduates to meet the unique needs 
     of students at-risk of negative educational outcomes, 
     including students who--
       (i) are English language learners;
       (ii) have a parent or caregiver who is a migrant worker;
       (iii) have a parent or caregiver who is a member of the 
     Armed Forces or National Guard who has been deployed or 
     returned from deployment;
       (iv) are homeless, including unaccompanied youth;
       (v) have come into contact with the juvenile justice system 
     or adult criminal justice system, including students 
     currently or previously held in juvenile detention facilities 
     or adult jails and students currently or previously held in 
     juvenile correctional facilities or adult prisons;
       (vi) have been identified as eligible for services under 
     the Individuals with Disabilities Education Act (20 U.S.C. 
     1400 et seq.) or the Rehabilitation Act of 1973 (29 U.S.C. 
     701 et seq.);
       (vii) have been a victim to or witnessed domestic violence 
     or violence in their community; and
       (viii) are foster care youth, youth aging out of foster 
     care, or former foster youth; and
       (D) utilize best practices determined by the American 
     School Counselor Association, National Association of Social 
     Workers, School Social Work Association of America, and 
     National Association of School Psychologists;
       (7) to provide tuition credits to graduate students 
     participating in the program;
       (8) for student loan forgiveness for participating 
     graduates who are employed as school counselors, school 
     social workers, or school psychologists by participating low-
     income local educational agencies for a minimum of 5 
     consecutive years; and
       (9) for similar activities to fulfill the purpose of this 
     Act, as the Secretary determines appropriate.
       (h) Supplement Not Supplant.--Funds made available under 
     this section shall be used to supplement, not supplant, other 
     Federal, State, or local funds for the activities described 
     in subsection (g).
       (i) Reporting Requirements.--Each eligible partnership that 
     receives a grant under this section shall submit an annual 
     report to the Secretary on the progress of such partnership 
     in carrying out the purpose of this Act. Such report shall 
     include a description of--
       (1) actual service delivery provided through grant funds, 
     including--
       (A) characteristics of the participating eligible graduate 
     institution, including descriptive information on the model 
     used and actual program performance;
       (B) characteristics of graduate students participating in 
     the program, including performance on any tests required by 
     the State

[[Page S2838]]

     educational agency for credentialing or licensing, 
     demographic characteristics, and graduate student retention 
     rates;
       (C) characteristics of students of the participating low-
     income local educational agency, including performance on any 
     tests required by the State educational agency, demographic 
     characteristics, and promotion, persistence, and graduation 
     rates, as appropriate;
       (D) an estimate of the annual implementation costs of the 
     program; and
       (E) the numbers of students, schools, and graduate students 
     participating in the program;
       (2) outcomes that are consistent with the purpose of the 
     grant program, including--
       (A) internship and post-graduation placement;
       (B) graduation and professional career readiness 
     indicators; and
       (C) characteristics of the participating low-income local 
     educational agency, including changes in hiring and retention 
     of highly qualified teachers and school counselors, school 
     psychologists, and school social workers;
       (3) the instruction, materials, and activities being funded 
     under the grant program; and
       (4) the effectiveness of any training and ongoing 
     professional development provided--
       (A) to students and faculty in the appropriate departments 
     or schools of the participating eligible graduate 
     institution;
       (B) to the faculty, administration, and staff of the 
     participating low-income local educational agency; and
       (C) to the broader community of providers of social, 
     emotional, behavioral, and related support to students and to 
     those who train such providers.
       (j) Evaluations.--
       (1) Interim evaluations.--The Secretary may conduct interim 
     evaluations to determine whether each eligible partnership 
     receiving a grant is making adequate progress as the 
     Secretary considers appropriate. The contents of the annual 
     report submitted to the Secretary under subsection (i) may be 
     used by the Secretary to determine whether an eligible 
     partnership receiving a grant is demonstrating adequate 
     progress.
       (2) Final evaluation.--The Secretary shall conduct a final 
     evaluation to--
       (A) determine the effectiveness of the grant program in 
     carrying out the purpose of this Act; and
       (B) compare the relative effectiveness of each of the 
     various activities described by subsection (g) for which 
     grant funds may be used.
       (k) Report.--Not sooner than 5 years nor later than 6 years 
     after the date of enactment of this Act, the Secretary shall 
     submit to Congress a report containing the findings of the 
     evaluation conducted under subsection (j)(2), and such 
     recommendations as the Secretary considers appropriate.
       (l) Authorization of Appropriations.--
       (1) There is authorized to be appropriated to carry out 
     this section $30,000,000 for each of the fiscal years 2010 to 
     2020.
       (2) From the total amount appropriated to carry out this 
     section each fiscal year, the Secretary shall reserve not 
     more than 3 percent of that appropriation for evaluations 
     under subsection (j).

     SEC. 5. STUDENT LOAN FORGIVENESS FOR INDIVIDUALS WHO ARE 
                   EMPLOYED FOR 5 OR MORE CONSECUTIVE SCHOOL YEARS 
                   AS SCHOOL COUNSELORS, SCHOOL SOCIAL WORKERS, 
                   SCHOOL PSYCHOLOGISTS, OR OTHER QUALIFIED 
                   PSYCHOLOGISTS OR PSYCHIATRISTS BY LOW-INCOME 
                   LOCAL EDUCATIONAL AGENCIES.

       (a) Establishment of Program.--The Secretary shall 
     establish a program to provide student loan forgiveness to 
     individuals who are not and have never been participants in 
     the grant program established under section 4 and who have 
     been employed for 5 or more consecutive school years as 
     school counselors, school social workers, school 
     psychologists, other qualified psychologists, or child and 
     adolescent psychiatrists by low-income local educational 
     agencies.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Secretary such sums as may be 
     necessary to carry out the program under this section.

     SEC. 6. FUTURE DESIGNATION STUDY.

       (a) In General.--The Secretary shall conduct a study to 
     identify a formula for future designation of regions with a 
     shortage of school counselors, school social workers, and 
     school psychologists to use in implementing grant programs 
     and other programs such as the programs established under 
     this Act or for other purposes related to any such 
     designation, based on the latest available data on--
       (1) the number of residents under the age of 18 in an area 
     served by a low-income local educational agency;
       (2) the percentage of the population of an area served by a 
     low-income local educational agency with incomes below the 
     poverty line;
       (3) the percentage of residents age 18 or older in an area 
     served by a low-income local educational agency with 
     secondary school diplomas;
       (4) the percentage of students identified as eligible for 
     special education services in an area served by a low-income 
     local educational agency;
       (5) the youth crime rate in an area served by a low-income 
     local educational agency;
       (6) the current number of full-time-equivalent and active 
     school counselors, school social workers, and school 
     psychologists employed by a low-income local educational 
     agency;
       (7) the number of students in an area served by a low-
     income local education agency in military families (active 
     duty and reserve duty) with parents who have been alerted for 
     deployment, are currently deployed, or have returned from a 
     deployment in the previous school year; and
       (8) such other criteria as the Secretary considers 
     appropriate.
       (b) Report.--Not later than 2 years after the date of 
     enactment of this Act, the Secretary shall submit to Congress 
     a report containing the findings of the study conducted under 
     subsection (a).

     SEC. 7. DEFINITIONS.

       In this Act:
       (1) School counseling program definitions.--The terms 
     ``child and adolescent psychiatrist'', ``school counselor'', 
     ``school psychologist'', ``school social worker'', and 
     ``other qualified psychologist'' have the meaning given the 
     terms in section 5421 of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 7245).
       (2) ESEA general definitions.--The terms ``State 
     educational agency'', ``local educational agency'', and 
     ``highly qualified'' have the meaning given the terms in 
     section 9101 of the Elementary and Secondary Education Act of 
     1965 (20 U.S.C. 7801).
       (3) Best practices.--The term ``best practices'' means a 
     technique or methodology that, through experience and 
     research related to the practice of school counseling, school 
     psychology, or school social work, has proven to reliably 
     lead to a desired result.
       (4) Eligible graduate institution.--The term ``eligible 
     graduate institution'' means an institution of higher 
     education that offers a program of study that leads to a 
     masters or other graduate degree--
       (A) in school psychology that is accredited or nationally 
     recognized by the National Association of School 
     Psychologists Program Approval Board and that prepares 
     students in such program for the State licensing or 
     certification exam in school psychology;
       (B) in school counseling that prepares students in such 
     program for the State licensing or certification exam in 
     school counseling;
       (C) in school social work that is accredited by the Council 
     on Social Work Education and that prepares students in such 
     program for the State licensing or certification exam in 
     school social work; or
       (D) any combination of (A), (B), and (C).
       (5) Eligible partnership.--The term ``eligible 
     partnership'' means--
       (A) a partnership between 1 or more low-income local 
     educational agencies and 1 or more eligible graduate 
     institutions; or
       (B) in regions in which local educational agencies may not 
     have a sufficient elementary and secondary school student 
     population to support the placement of all participating 
     graduate students, a partnership between a State educational 
     agency, on behalf of 1 or more low-income local educational 
     agencies, and 1 or more eligible graduate institutions.
                                 ______
                                 
      By Mr. REID:
  S. 539. A bill to amend the Federal Power Act to require the 
President to designate certain geographical areas as national renewable 
energy zones, and for other purposes; to the Committee on Energy and 
Natural Resources.
  Mr. REID. Mr. President, as John F. Kennedy said about 50 years ago, 
``The Chinese use two brush strokes to write the word `crisis.' One 
brush stroke stands for danger; the other for opportunity. In a crisis, 
be aware of the danger--but recognize the opportunity.''
  America has not one crisis, but at least three crises that loom large 
before us. The economy is in obvious turmoil, pollution is causing the 
climate to change, and we are far too dependent on oil, particularly 
oil from unfriendly places around the world. These challenges hamper 
our security in profound ways.
  Fortunately, with a new President and a bipartisan mandate in 
Congress, the opportunities to change direction and turn crisis into 
opportunity have never been more abundant. Now is the time to focus our 
resources on investments that will create jobs today and sustainable 
economic growth into the future.
  I know that we have the technology to use less oil tomorrow then we 
used today, and even less the day after. We can move quickly toward 
greater energy independence, but only if we make major investments now 
in clean energy, like natural gas and electric vehicles and much more 
efficient fleets, and all produced right here in America and with 
American jobs.
  President Obama's economic recovery plan is a giant step in the right 
direction. It provides $11 billion for smart grid technology and 
expanding transmission to renewable rich areas, as well as hundreds of 
millions of dollars to promote greater use of alternative fuel 
vehicles, including plug-in hybrids and fueling insfrastructure.

[[Page S2839]]

That plan is a massive infusion to help Americans become more energy 
efficient, including $300 million for energy efficient appliance 
rebates.
  But even if we stopped wasting nearly one-third of the country's 
annual current energy consumption unnecessarily spending trillions of 
dollars and sending billions of tons of pollution up into the air we 
would still need new supplies of clean energy for sustainable economic 
growth.
  Fortunately, Nevada and other parts of the desert southwest have 
enough solar energy potential to power our country seven times over. If 
that potential is combined with the wind energy from the Great Plains 
and the hundreds of thousands of megawatts of geothermal energy deep 
beneath the earth, the whole country could have cost-free fuel for many 
generations to come.
  Innovators and entrepreneurs in every state have already begun to 
harness this power. But the field is in its infancy and it will only 
mature with significant and sustained support and attention at the 
Federal level.
  But we must also focus our attention and investments on planning and 
siting new electricity transmission and breaking down barriers to a 
truly national approach. Otherwise, the vast clean renewable power in 
the sun, wind and geothermal resources of Nevada, off the country's 
coasts in the oceans, in the biomass on our lands, forests and in our 
cities, and in the remote and rural areas of the country, will never 
get to consumers.
  Our transmission system and its regulations have been built up over 
many decades with the main target of assuring reliability and 
availability. Yet the grid is still fragile and not well equipped to 
meet the demands of this century's smart technologies or our 
environmental or national security challenges.
  These issues were the topic of focused discussion last week at a 
genuinely important event a National Clean Energy Summit hosted by the 
Center for American Progress, CAP. This followed up on a similar 
gathering that I hosted in Las Vegas last August with John Podesta and 
the CAP Action Fund and the University of Nevada Las Vegas.
  Last week's event was no ordinary meeting. It was admirably moderated 
by former Senator Tim Wirth and included President William Jefferson 
Clinton, Vice President Al Gore, Energy Secretary Steven Chu, Interior 
Secretary Ken Salazar, House Speaker Nancy Pelosi, Senator Jeff 
Bingaman, Representative Ed Markey, energy executive T. Boone Pickens, 
and leaders from government, business, labor, and the non-profit 
communities.
  In particular, I would like to note the very constructive 
participation of the country's State regulatory commissions and 
authorities, ably represented by Fred Butler of New Jersey, President 
of the National Association of Regulatory Utility Commissioners. They 
have extremely difficult jobs maintaining reliability, keeping costs 
down, and being held responsible for the utilities' every move.
  The outcome of our discussion was clear--reforming our energy 
policies to build a cleaner, greener national transmission system--an 
electric superhighway--must be a top national priority. However, 
equally clear was the sense that it will not be easy and will require 
everyone to work together with common purpose and through a strong 
public-private partnership to be effective in addressing our grave 
national challenges.
  The need for reform is very clear. That is why I am introducing a 
bill today that charts a course to a cleaner, greener, and smarter 
national energy transmission system without sacrificing reliability or 
affordability. This will ensure a more secure and sustainable energy 
future for America.
  Though this bill is loosely based on my legislation from the last 
Congress, this new and broader version is the product of input and a 
shared vision from many important stakeholders. In particular, the 
Center for American Progress and the Energy Future Coalition must be 
congratulated for their hard work and leadership in this complicated 
policy area. They have helped make it understandable to many in 
Washington, D.C.
  But no one can beat T. Boone Pickens in explaining to the American 
people how critically important it is to transform the nation's 
electricity grid to accelerate the use of renewable energy. He is a 
source of immense renewable energy and really helping to drive this 
issue home.
  My legislation will require the President to designate renewable 
energy zones with significant clean energy generating potential. Then, 
a massive planning effort will begin in all the interconnection areas 
of the country to maximize the use of that renewable potential by 
building new transmission capacity. The states would propose cost 
allocation means to fund the new lines in the green transmission grid 
plans. If either process falters, then the federal government would be 
given clear authority to keep things moving and get the new 
transmission built on schedule and funded equitably.
  This bill is not perfect and has ample room for improvement. But as 
the bill works its way through the legislative process, I am hopeful 
that people will come together in good faith and propose revisions that 
will help solve the problems that we tried to identify at the Summit. 
There has already been a great deal of non-partisan, thoughtful work 
that Congress can draw upon in legislating and I look forward to the 
hearing that Chairman Bingaman has scheduled on this topic for next 
week.
  Here are just a few of the organizations that provided valuable input 
in the drafting process for this bill: The Energy Future Coalition; the 
Center for American Progress; the Pickens Plan; Energy Foundation; 
Sierra Club; Natural Resources Defense Council; National Wildlife 
Federation; Audubon Society; The Wilderness Society; Bonneville Power 
Administration; Western Area Power Administration; Tennessee Valley 
Authority; Bureau of Land Management; Federal Energy Regulatory 
Commission; Department of Energy; North American Electric Reliability 
Corporation; National Association of Regulatory Utility Commissioners; 
California PUC; Working Group for Investment in Reliable and Economic 
Electric Systems; Florida Power & Light; Midwest Independent System 
Operator; PJM Interconnection; ITC Transmission; Trans-Elect 
Transmission; Pacific Gas & Electric; American Electric Power; American 
Public Power Association; Large Public Power Council; Salt River 
Project; National Rural Electric Cooperative Association; Solar Energy 
Industries Association; Bright Source Energy; RES-Americas; American 
Wind Energy Association; Iberdrola Renewables; Colorado River Energy 
Distributors Association; Electric Power Supply Association; National 
Electrical Manufacturers Association; and many more.
  Mr. President, I ask unanimous consent that the text of the bill and 
support material be printed in the Record.
  There being no objection, the material was ordered to be placed in 
the Record, as follows:

                                 S. 539

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Clean Renewable Energy and 
     Economic Development Act''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) electricity produced from renewable resources--
       (A) helps to reduce emissions of greenhouse gases and other 
     air pollutants;
       (B) enhances national energy security;
       (C) conserves water and finite resources; and
       (D) provides substantial economic benefits, including job 
     creation and technology development;
       (2) the potential exists for a far greater percentage of 
     electricity generation in the United States to be achieved 
     through the use of renewable resources, as compared to the 
     percentage of electricity generation using renewable 
     resources in existence as of the date of enactment of this 
     Act;
       (3) the President has set out a goal that at least 25 
     percent of the electricity used in the United States by 2025 
     come from renewable sources;
       (4) many of the best potential renewable energy resources 
     are located in rural areas far from population centers;
       (5) the lack of adequate electric transmission capacity is 
     a primary obstacle to the development of electric generation 
     facilities fueled by renewable energy resources;
       (6) the economies of many rural areas would substantially 
     benefit from the increased development of water-efficient 
     electric generation facilities fueled by renewable energy 
     resources;

[[Page S2840]]

       (7) more efficient use of existing transmission capacity, 
     better integration of resources, and greater investments in 
     distributed renewable generation and off-grid solutions may 
     increase the availability of transmission and distribution 
     capacity for adding renewable resources and help keep 
     ratepayer costs low;
       (8) the Federal Government has not adequately supported or 
     implemented an integrated approach to accelerating the 
     development, commercialization, and deployment of renewable 
     energy technologies, renewable electricity generation, and 
     transmission to bring renewable energy to market, including 
     through enhancing distributed renewable generation or through 
     vehicle and transportation sector use;
       (9) it is in the national interest for the Federal 
     Government to implement policies that would enhance the 
     quantity of electric transmission capacity available to take 
     full advantage of the renewable energy resources available to 
     generate electricity, and to more fully integrate renewable 
     energy into the energy policies of the United States, and to 
     address the tremendous national security and global warming 
     challenges of the United States; and
       (10) existing transmission planning processes are 
     fragmented across many jurisdictions, which results in 
     difficult coordination between jurisdictions, delays in 
     implementation of plans, and complex negotiations on sharing 
     of costs.

     SEC. 3. NATIONAL RENEWABLE ENERGY ZONES AND GREEN 
                   TRANSMISSION.

       (a) In General.--The Federal Power Act (16 U.S.C. 791a et 
     seq.) is amended by adding at the end the following:

   ``PART IV--NATIONAL RENEWABLE ENERGY ZONES AND GREEN TRANSMISSION

     ``SEC. 401. DEFINITIONS.

       ``In this part:
       ``(1) Biomass.--
       ``(A) In general.--The term `biomass' means--
       ``(i) any lignin waste material that is segregated from 
     other waste materials and is determined to be nonhazardous by 
     the Administrator of the Environmental Protection Agency; and
       ``(ii) any solid, nonhazardous, cellulosic material that is 
     derived from--

       ``(I) mill residue, precommercial thinnings, slash, brush, 
     or nonmerchantable material;
       ``(II) solid wood waste materials, including a waste 
     pallet, a crate, dunnage, manufacturing and construction wood 
     wastes, and landscape or right-of-way tree trimmings;
       ``(III) agriculture waste, including an orchard tree crop, 
     a vineyard, a grain, a legume, sugar, other crop byproducts 
     or residues, and livestock waste nutrients; or
       ``(IV) a plant that is grown exclusively as a fuel for the 
     production of electric energy.

       ``(B) Inclusions.--The term `biomass' includes animal waste 
     that is converted to a fuel rather than directly combusted, 
     the residue of which is converted to a biological fertilizer, 
     oil, or activated carbon.
       ``(C) Exclusions.--The term `biomass' does not include--
       ``(i) municipal solid waste from which hazardous and 
     recyclable materials have not been separated;
       ``(ii) paper that is commonly recycled; or
       ``(iii) pressure-treated, chemically-treated, or painted 
     wood waste.
       ``(2) Distributed renewable generation.--The term 
     `distributed renewable generation' means--
       ``(A) reduced electric energy consumption from the electric 
     grid because of use by a customer of renewable energy 
     generated at or near a customer site; and
       ``(B) electric energy or thermal energy production from a 
     renewable energy resource for a customer that is not 
     connected to an electric grid or thermal energy source 
     pipeline.
       ``(3) Electricity-consuming area.--The term `electricity-
     consuming area' means an area of significant electrical load.
       ``(4) Electricity from renewable energy.--The term 
     `electricity from renewable energy' means electric energy 
     generated from--
       ``(A) solar energy, wind, biomass, landfill gas, renewable 
     biogas, or geothermal energy;
       ``(B) new hydroelectric generation capacity achieved from 
     increased efficiency, or an addition of new capacity, at an 
     existing hydroelectric project; or
       ``(C) hydrokinetic energy, including--
       ``(i) waves, tides, and currents in oceans, estuaries, and 
     tidal areas;
       ``(ii) free flowing water in rivers, lakes, and streams;
       ``(iii) free flowing water in man-made channels, including 
     projects that use nonmechanical structures to accelerate the 
     flow of water for electric power production purposes; or
       ``(iv) differentials in ocean temperature through ocean 
     thermal energy conversion.
       ``(5) ERCOT.--The term `ERCOT' means the Electric 
     Reliability Council of Texas.
       ``(6) Federal land management agency.--The term `Federal 
     land management agency' means--
       ``(A) the Department of the Interior and the bureaus of the 
     Department that manage Federal land and water, including--
       ``(i) the Bureau of Land Management;
       ``(ii) the Bureau of Reclamation;
       ``(iii) the United States Fish and Wildlife Service; and
       ``(iv) the National Park Service;
       ``(B) the Forest Service of the Department of Agriculture; 
     and
       ``(C) if applicable and appropriate, the Department of 
     Defense.
       ``(7) Federal transmitting utility.--The term `Federal 
     transmitting utility' means--
       ``(A) a Federal power marketing agency that owns or 
     operates an electric transmission facility; and
       ``(B) the Tennessee Valley Authority.
       ``(8) Green transmission grid project.--
       ``(A) In general.--The term `green transmission grid 
     project' means a project for--
       ``(i) a new transmission facility rated at or above 345 
     kilovolts that is part of an Interconnection-wide plan 
     developed pursuant to section 403 for an extra high voltage 
     transmission grid to enable transmission of electricity from 
     renewable energy (including existing or projected renewable 
     generation) to electricity-consuming areas; or
       ``(ii) a new renewable feeder line that an Interconnection-
     wide plan or the Commission determines is needed to connect 
     renewable generation to the extra high voltage transmission 
     grid.
       ``(B) Inclusions.--The term `green transmission grid 
     project' includes any network upgrades associated with a 
     facility described in clause (i) or (ii) of subparagraph (A) 
     that are required to ensure the reliability or efficiency of 
     the underlying transmission network, including inverters, 
     substations, transformers, switching units, storage units, 
     and related facilities necessary for the development, siting, 
     transmission, storage, and integration of electricity 
     generated from renewable energy sources.
       ``(9) Grid-enabled vehicle.--The term `grid-enabled 
     vehicle' means an electric drive vehicle or fuel cell vehicle 
     that has the ability to communicate electronically with an 
     electric power provider or with a localized energy storage 
     system with respect to charging or discharging an onboard 
     energy storage device, such as a battery.
       ``(10) Indian land.--The term `Indian land' means--
       ``(A) any land within the limits of any Indian reservation, 
     pueblo, or rancheria;
       ``(B) any land not within the limits of any Indian 
     reservation, pueblo, or rancheria title to which was, on the 
     date of enactment of this part--
       ``(i) held in trust by the United States for the benefit of 
     any Indian tribe or individual; or
       ``(ii) held by any Indian tribe or individual subject to 
     restriction by the United States against alienation;
       ``(C) any dependent Indian community; and
       ``(D) any land conveyed to any Alaska Native corporation 
     under the Alaska Native Claims Settlement Act (42 U.S.C. 1601 
     et seq.).
       ``(11) Interconnection.--The term `Interconnection' has the 
     meaning given the term in section 215(a) of the Federal Power 
     Act (16 U.S.C. 824o(a)).
       ``(12) Load-serving entity.--The term `load-serving entity' 
     means any person, Federal, State, or local agency or 
     instrumentality, or electric cooperative that delivers 
     electric energy to end-use customers.
       ``(13) Regional planning entity.--The term `regional 
     planning entity' means an entity certified by the Commission 
     to coordinate regional planning for an Interconnection.
       ``(14) Renewable feeder line.--
       ``(A) In general.--The term `renewable feeder line' means 
     all transmission facilities and equipment within a national 
     renewable energy zone owned, controlled, or operated by a 
     transmission provider that are capable of being used to 
     deliver electricity from multiple renewable energy resources 
     to the point at which the transmission provider connects to a 
     high-voltage transmission facility.
       ``(B) Inclusions.--The term `renewable feeder line' 
     includes any associated modifications, additions, or upgrades 
     to or associated with the facilities and equipment described 
     in subparagraph (A).
       ``(C) Exclusions.--The term `renewable feeder line' does 
     not include--
       ``(i) a generator lead line capable of connecting only 1 
     generator; or
       ``(ii) equipment owned by a generator.
       ``(15) Secretary.--The term `Secretary' means the Secretary 
     of Energy.
       ``(16) Transmission provider.--The term `transmission 
     provider' means an entity that owns, controls, or operates a 
     transmission facility.

     ``SEC. 402. DESIGNATION OF NATIONAL RENEWABLE ENERGY ZONES.

       ``(a) Designations.--
       ``(1) In general.--Except as provided in paragraph (2), not 
     later than 90 days after the date of enactment of this part 
     for the Western Interconnection and not later than 270 days 
     after the date of enactment of this part for the Eastern 
     Interconnection, the President shall designate as a national 
     renewable energy zone each geographical area that, as 
     determined by the President--
       ``(A) has the potential to generate in excess of 1 gigawatt 
     of electricity (or a lower quantity of electricity determined 
     by the President) from renewable energy, a significant 
     portion of which could be generated in a rural area or on 
     Federal land within the geographical area;
       ``(B) has an insufficient level of electric transmission 
     capacity to achieve the potential described in subparagraph 
     (A); and
       ``(C) has the capability to contain additional renewable 
     energy electric generating facilities that would generate 
     electric energy consumed in 1 or more electricity-consuming 
     areas if there were a sufficient level of transmission 
     capacity.

[[Page S2841]]

       ``(2) Inclusion.--The President may include in any national 
     renewable energy zone designated under paragraph (1) a 
     military installation.
       ``(3) Exclusions.--The President shall not include in any 
     national renewable energy zone designated under paragraph (1) 
     any of the following areas:
       ``(A) National parks, national marine sanctuaries, 
     reserves, recreation areas, and other similar units of the 
     National Park System.
       ``(B) Designated wilderness, designated wilderness study 
     areas, and other areas managed for wilderness 
     characteristics.
       ``(C) National historic sites and historic parks.
       ``(D) Inventoried roadless areas and significant 
     noninventoried roadless areas within the National Forest 
     System.
       ``(E) National monuments.
       ``(F) National conservation areas.
       ``(G) National wildlife refuges and areas of critical 
     environmental concern.
       ``(H) National historic and national scenic trails.
       ``(I) Areas designated as critical habitat.
       ``(J) National wild, scenic, and recreational rivers.
       ``(K) Any area in which Federal law prohibits energy 
     development, or that the Federal agency or official 
     exercising authority over the area exempts from inclusion in 
     a national renewable energy zone through land use, planning, 
     or other public process.
       ``(L) Any area in which applicable State law enacted prior 
     to the date of enactment of this section prohibits energy 
     development.
       ``(b) Renewable Energy Requirements.--In making the 
     designations required by subsection (a), the President shall 
     take into account Federal and State requirements for 
     utilities to incorporate renewable energy as part of meeting 
     the load of load-serving entities.
       ``(c) Consultation.--Before making any designation under 
     subsection (a) or (e), the President shall consult with--
       ``(1) the Governors of affected States;
       ``(2) the public;
       ``(3) Federal transmitting utilities, public utilities and 
     transmission providers, and cooperatives;
       ``(4) State regulatory authorities and regional electricity 
     planning organizations;
       ``(5) Federal land management agencies, Federal energy and 
     environmental agencies, and State land management, energy, 
     and environmental agencies;
       ``(6) renewable energy companies;
       ``(7) local government officials;
       ``(8) renewable energy and energy efficiency interest 
     groups;
       ``(9) Indian tribes; and
       ``(10) environmental protection and land, water, and 
     wildlife conservation groups.
       ``(d) Recommendations.--Not earlier than 3 years after the 
     date of enactment of this part, and triennially thereafter, 
     the Secretary and the Secretary of the Interior shall, after 
     consultation with the Federal transmitting utilities, the 
     Commission, the Chief of the Forest Service, the Secretary of 
     Commerce, the Secretary of Defense, the Council on 
     Environmental Quality, and the Governors of the States, shall 
     recommend to the President and Congress--
       ``(1) specific areas with the greatest potential for 
     environmentally acceptable renewable energy resource 
     development that the President could designate as renewable 
     energy zones, considering such factors as the impact on 
     sensitive wildlife species, the impact on sensitive resource 
     areas, and the presence of already disturbed or developed 
     land; and
       ``(2) any modifications of laws (including regulations) and 
     resource management plans necessary to fully achieve that 
     potential, including identifying improvements to permit 
     application processes involving military and civilian 
     agencies.
       ``(e) Existing Processes.--In carrying out this section, 
     the President may use existing processes that designate 
     renewable energy zones.
       ``(f) Revision of Designations.--The President may modify 
     the designation of renewable energy zones, including 
     modification based on the recommendations received under 
     subsection (d).
       ``(g) Election.--The ERCOT Interconnection may elect to 
     participate in the process described in this section.
       ``(h) Administration.--The designation of a renewable 
     energy zone shall not be considered a major Federal action 
     under Federal law.
       ``(i) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section (including 
     renewable energy resource assessments) $25,000,000 for each 
     of fiscal years 2009 through 2019.

     ``SEC. 403. INTERCONNECTION-WIDE GREEN TRANSMISSION GRID 
                   PROJECT PLANNING.

       ``(a) In General.--To achieve Interconnection-wide 
     coordination of planning to integrate renewable energy 
     resources from renewable energy zones into the interstate 
     electric transmission grid and make the renewable energy 
     resources fully deliverable to electricity consuming areas, 
     not later than 60 days after the date of enactment of this 
     part, the Commission shall, by regulation or order, issue a 
     request for 1 or more organizations to be certified as the 
     regional planning entity for each Interconnection.
       ``(b) Contents of Application.--The application shall 
     include proposals for provisions for an open, inclusive, 
     transparent, and nondiscriminatory planning process that--
       ``(1) includes consultation with affected Federal land 
     management agencies and States within the Interconnection;
       ``(2) builds on planning undertaken by States, Federal 
     transmitting utilities, regional transmission organizations, 
     independent system operators, utilities, and other interested 
     parties;
       ``(3) takes account of corridor designation work and other 
     planning carried out by Federal land management agencies, the 
     Department of Energy, and other interested parties;
       ``(4) solicits input from transmission owners, regional 
     transmission organizations, independent system operators, 
     States, generator owners, prospective developers of new 
     transmission and generation resources, regional entities, 
     Federal land management agencies, environmental protection 
     and land, water, and wildlife conservation groups, and other 
     interested parties; and
       ``(5) includes an interim process to expeditiously evaluate 
     whether new renewable feeder lines should be added to the 
     green transmission grid project plan.
       ``(c) Designation.--Not later than 120 days after the date 
     of enactment of this part, the Commission shall designate 1 
     or more appropriate organizations to serve as the regional 
     planning entity to represent the Interconnection under this 
     part.
       ``(d) Interconnection-Wide Green Transmission Grid Project 
     Plan.--Not later than 1 year after the date of the deadline 
     for designations under section 402(a), the regional planning 
     entity in each Interconnection shall produce and submit to 
     the Commission an Interconnection-wide green transmission 
     grid project plan.
       ``(e) Term; Requirements.--An Interconnection-wide green 
     transmission grid project plan shall--
       ``(1) enhance transmission access for electricity from 
     renewable energy in renewable energy zones;
       ``(2) include identification of green transmission grid 
     projects (both high-voltage and renewable feeder lines) 
     needed to interconnect renewable energy zones with 
     electricity-consuming areas;
       ``(3) fully consider national reliability, economic, 
     environmental, and security needs;
       ``(4) take into account transmission infrastructure 
     required for efficient and reliable delivery of the output of 
     new renewable generation resources needed to meet established 
     and projected Federal and State renewable energy policies and 
     targets;
       ``(5) provide a plan for a period of at least 10 years into 
     the future;
       ``(6) consider alternatives to new transmission, including 
     energy efficiency, demand response, energy storage, and 
     distributed renewable generation;
       ``(7) include a timeline for construction of projects; and
       ``(8) be filed with the Commission annually for approval 
     consistent with this section.
       ``(f) Participation of Secretary.--The Secretary shall 
     provide technical expertise to States and regional planning 
     entities in development of Interconnection-wide plans 
     through--
       ``(1) analysis for the green transmission grid project 
     planning process; and
       ``(2) demonstration and commercial application activities 
     of new technologies in the green transmission grid project 
     plan.
       ``(g) Participation of Federal Transmitting Utilities.--
       ``(1) In general.--A Federal transmitting utility shall 
     participate in the planning process in the applicable 
     Interconnection.
       ``(2) Green transmission grid project facilities.--Not 
     later than 1 year after the date a regional planning entity 
     files a plan, a Federal transmitting utility that owns or 
     operates 1 or more electric transmission facilities in a 
     State with a national renewable energy zone shall identify 
     specific green transmission grid project facilities that are 
     required to substantially increase the generation of 
     electricity from renewable energy in the national renewable 
     energy zone.
       ``(h) Failure to Submit Plan.--
       ``(1) In general.--If a State in an Interconnection does 
     not participate in a timely manner in an Interconnection-wide 
     green transmission grid project planning process in 
     accordance with this section, or if such a planning process 
     is established but fails to result in the submission by the 
     regional planning entity of the requisite components of the 
     Interconnection-wide green transmission grid project plan by 
     the date specified in subsection (d), the Commission shall 
     develop through a rulemaking, after consultation with the 
     Secretary, Federal transmitting utilities, the Secretary of 
     the Interior, regional transmission organizations, the 
     electric reliability organization, regional entities, and 
     municipal and cooperative entities, an Interconnection-wide 
     green transmission grid project plan on behalf of the 1 or 
     more nonsubmitting States or regional planning entity in the 
     Interconnection.
       ``(2) Deadline.--Any final rule required under paragraph 
     (1) shall be completed not later than 1 year after the date 
     on which the Commission determines that--
       ``(A) the regional planning entity has failed to submit an 
     Interconnection-wide green transmission project plan on a 
     timely basis; or
       ``(B) a State has failed to participate in a timely manner 
     in the planning process.
       ``(i) Evaluation and Recommendations.--The Commission 
     shall--
       ``(1) periodically evaluate whether green transmission grid 
     projects to enable the delivery of renewable energy are being 
     constructed in accordance with the Interconnection-wide green 
     transmission grid project

[[Page S2842]]

     plan for both the Western and Eastern Interconnections;
       ``(2) take any necessary actions to address any identified 
     obstacles to investment, siting, and construction of projects 
     identified as needed under an Interconnection-wide plan; and
       ``(3) not later than 2 years after the date of enactment of 
     this part, submit to Congress recommendations for any further 
     actions or authority needed to ensure the effective and 
     timely development of transmission infrastructure necessary 
     to ensure the integration and deliverability of renewable 
     energy from renewable energy zones to electricity-consuming 
     areas in the United States.
       ``(j) Recovery of Costs Associated With Interconnection-
     Wide Green Transmission Grid Project Planning.--
       ``(1) In general.--A regional planning entity and a State 
     shall be permitted to recover prudently incurred costs to 
     carry out Interconnection-wide planning activities required 
     under this section pursuant to a Federal transmission 
     surcharge that will be established by the Commission for the 
     purposes of carrying out this section.
       ``(2) Surcharge.--A regional planning entity, in 
     consultation with States in an Interconnection, shall--
       ``(A) recommend the Federal transmission surcharge based on 
     a formula rate that is submitted to the Commission for 
     approval; and
       ``(B) adjust the formula and surcharge on an annual basis.
       ``(3) Cost responsibility.--Cost responsibility under the 
     surcharge shall be assigned based on energy usage to all 
     load-serving entities within the United States portion of the 
     Eastern and Western Interconnections.
       ``(4) Limitation.--The total amount of surcharges that may 
     be imposed or collected nationally under this subsection 
     shall not exceed $80,000,000 in any calendar year.
       ``(5) Distribution.--The Secretary shall, in accordance 
     with the regulations promulgated under paragraph (1), 
     distribute on an equitable basis funds received under that 
     paragraph among States and planning entities, if the Governor 
     of the receiving State--
       ``(A) in the case of the first year of distribution, 
     certifies to the Secretary that the State will participate in 
     an Interconnection-wide green transmission grid project 
     planning process; and
       ``(B) in the case of the second and subsequent years of 
     distribution--
       ``(i) is part of an Interconnection-wide planning process 
     that submits to the Commission timely Interconnection-wide 
     green transmission grid project plans under this section; and
       ``(ii) certifies annually to the Secretary that all load-
     serving entities in the State--

       ``(I) offer a fairly-priced renewable power purchase option 
     to all the customers of the entities; or
       ``(II) have demonstrated an increase in the number of 
     customers above the previous year participating in a demand-
     side management program that reduces peak demand, increases 
     reliability, and reduces consumer costs.

       ``(6) Applicability.--
       ``(A) In general.--Subject to subparagraphs (B) and (C), 
     this subsection applies to all users, owners, and operators 
     of the bulk-power system within the United States portion of 
     the Eastern and Western Interconnections.
       ``(B) Exclusions.--This subsection does not apply to the 
     State of Alaska or Hawaii or to the ERCOT, unless the State 
     or ERCOT voluntarily elects to participate in the planning 
     process, and to be responsible for a pro rata portion of the 
     Federal transmission surcharge imposed under this subsection.
       ``(C) Project developers.--Nothing in this section or part 
     prevents a project developer from carrying out a transmission 
     project to enable renewable development if the project 
     developer assumes all of the risk and cost of the proposed 
     project.

     ``SEC. 404. FEDERAL SITING OF GREEN TRANSMISSION GRID PROJECT 
                   FACILITIES.

       ``(a) In General.--The Commission, after consultation with 
     affected States, may issue 1 or more permits for the 
     construction or modification of an electric transmission 
     facility if the Commission finds that--
       ``(1) the transmission facility--
       ``(A) is included in an Interconnection-wide green 
     transmission grid project plan submitted under section 403; 
     or
       ``(B) is proposed by a project developer to integrate 
     renewable energy resources from renewable energy zones or to 
     integrate renewable resources from other geographic areas, if 
     the project developer assumes all of the risk and cost of the 
     proposed facilities;
       ``(2) the transmission facility optimizes transmission 
     capability based on the assessment by the Commission of 
     technical constraints, project economics, land use 
     limitations, and the potential generation capacity of 
     renewable energy zones interconnected to the project; and
       ``(3) the owner or operator of the transmission facility 
     has failed to make reasonable progress in siting the facility 
     based on timelines in the plan.
       ``(b) Evidence of Need.--Inclusion of a project in an 
     Interconnection-wide green transmission grid project plan 
     submitted under section 403 shall be considered to be 
     sufficient evidence of need for the project to warrant the 
     granting of a construction permit under subsection (a).
       ``(c) Permit Application.--
       ``(1) In general.--A permit application under subsection 
     (a) shall be made in writing to the Commission.
       ``(2) Administration.--The Commission shall promulgate 
     regulations specifying--
       ``(A) the form of the application;
       ``(B) the information to be contained in the application; 
     and
       ``(C) the manner of service of notice of the permit 
     application on interested persons.
       ``(d) Granting of Construction Permit.--
       ``(1) In general.--A construction permit may be issued to 
     any applicant described in subsection (a)(1)(B) if the 
     Commission finds that--
       ``(A) the applicant is able and willing to take actions and 
     perform the services proposed in accordance with this part 
     (including the requirements, rules, and regulations of the 
     Commission under this part); and
       ``(B) the proposed operation, construction, or expansion is 
     or will be required by the present or future public 
     convenience and necessity.
       ``(2) Administration.--The Commission shall have the power 
     to attach to the issuance of the construction permit, and to 
     the exercise of rights granted under the permit, such 
     reasonable terms and conditions as the public convenience and 
     necessity may require.
       ``(e) Construction Permit for an Area Already Being 
     Served.--Nothing in this section limits the power of the 
     Commission to grant construction permits for service of an 
     area already being served by another transmission provider.
       ``(f) Rights-of-Way.--
       ``(1) In general.--In the case of a permit under subsection 
     (a) for an electric transmission facility to be located on 
     property other than property owned by the United States, if 
     the permit holder cannot acquire by contract, or is unable to 
     agree with the owner of the property to the compensation to 
     be paid for, the necessary right-of-way to construct or 
     modify the transmission facility, the permit holder may 
     acquire the right-of-way by the exercise of the right of 
     eminent domain in the United States district court for the 
     district in which the property concerned is located, or in 
     the appropriate court for the State in which the property is 
     located.
       ``(2) Use.--Any right-of-way acquired under paragraph (1) 
     shall be used exclusively for the construction, modification, 
     operation, or maintenance of an electric transmission 
     facility, and any appropriate mitigation measures or other 
     uses approved by the Commission, within a reasonable period 
     of time after acquisition of the right-of-way.
       ``(3) Practice and procedure.--The practice and procedure 
     in any action or proceeding under this subsection in the 
     United States district court shall conform, to the maximum 
     extent practicable, to the practice and procedure in a 
     similar action or proceeding in the courts of the State in 
     which the property is located.
       ``(4) Limitations.--
       ``(A) In general.--Nothing in this subsection authorizes 
     the use of eminent domain to acquire a right-of-way for any 
     purpose other than the construction, modification, operation, 
     or maintenance of an electric transmission facility included 
     in a green transmission grid project plan or related 
     facility.
       ``(B) Administration.--The right-of-way--
       ``(i) shall not be used for any purpose not described in 
     subparagraph (A) or paragraph (2); and
       ``(ii) shall terminate on the termination of the use for 
     which the right-of-way is acquired.
       ``(g) State Authority.--
       ``(1) In general.--Except as provided in paragraph (3), in 
     granting a construction permit under subsection (a), the 
     Commission shall--
       ``(A) permit State regulatory agencies to identify siting 
     constraints and mitigation measures, based on habitat 
     protection, environmental considerations, or cultural site 
     protection; and
       ``(B)(i) incorporate those identified constraints or 
     measures in the construction permit; or
       ``(ii) if the Commission determines that such a constraint 
     or measure is inconsistent with the purposes of this part, 
     infeasible, or not cost-effective--
       ``(I) consult with State regulatory agencies to seek to 
     resolve the issue; and
       ``(II) incorporate into the construction permit such siting 
     constraints and mitigation measures as are determined to be 
     appropriate by the Commission, based on consultation by the 
     Commission with State regulatory agencies, the purposes of 
     this part, and the record before the Commission.
       ``(2) Nonadoption of recommendations.--If, after taking the 
     actions required under paragraph (1), the Commission does not 
     adopt in whole or in part a recommendation of an agency, the 
     Commission shall publish a statement of a finding that the 
     adoption of the recommendation is infeasible, not cost-
     effective, or inconsistent with this part or other applicable 
     provisions of law.
       ``(3) Interconnection-wide green transmission grid project 
     planning process.--The Commission shall not be required to 
     include constraints or measures described in paragraph (1) 
     that are identified by a State that does not participate in 
     an Interconnection-wide green transmission grid project 
     planning process under section 403.
       ``(h) Environmental Reviews.--
       ``(1) In general.--With respect to any project or group of 
     projects for which a construction permit is granted under 
     subsection (a), the Commission shall--

[[Page S2843]]

       ``(A) serve as the lead agency for purposes of coordinating 
     any Federal authorizations and environmental reviews or 
     analyses required for the project, including those required 
     under the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.);
       ``(B) in consultation with other affected agencies, prepare 
     a single environmental review document that would be used as 
     the basis for all decisions under Federal law relating to the 
     proposed project, in accordance with section 216(h) of this 
     Act, including siting constraints and mitigation measures;
       ``(C) not later than 90 days after the date of filing of an 
     application for a permit under this section, enter into a 
     memorandum of understanding with affected Federal agencies to 
     carry out this subsection, including--
       ``(i) a schedule for environmental review and a budget 
     necessary to comply with the schedule for each project or 
     group of projects; and
       ``(ii) the budget resources necessary to carry out the 
     memorandum; and
       ``(D) ensure that, once an application has been submitted 
     with such data as the Commission considers to be necessary, 
     all permit decisions and related environmental reviews under 
     applicable Federal laws shall be completed not later than 1 
     year after the date of submission of a complete application.
       ``(2) Appeal.--If any Federal agency has denied a Federal 
     authorization required for a certified project under this 
     part or has failed to determine whether to issue the 
     authorization not later than 1 year after the date of 
     submission of a complete application, the applicant or any 
     State in which the facility would be located may file an 
     appeal with the President, who shall, in consultation with 
     the affected agency, review the denial or failure to take 
     action on the pending application.
       ``(i) Restricted Areas.--In granting a construction permit 
     under subsection (a), the Commission shall consider and, to 
     the maximum extent practicable, select alternative routes to 
     avoid areas described in section 402(a)(3).
       ``(j) Access to Transmission.--
       ``(1) In general.--Subject to paragraph (2), the owner or 
     operator of any project described in subsection (a) that 
     traverses multiple States that participate in an 
     Interconnection-wide green transmission grid project planning 
     process under section 403 shall ensure that each State in 
     which the green transmission grid project traverses shall 
     have access to transmission under the project, unless the 
     access would make the project technically or economically 
     impractical.
       ``(2) Additional funds.--If a project owner or operator 
     described in paragraph (1) cannot make the assurances 
     described in that paragraph for a State, the State shall be 
     eligible for additional funds under section 405.
       ``(k) Minimum Renewable Requirement.--
       ``(1) In general.--Except as provided in paragraphs (2) and 
     (3), the transmission provider for a green transmission grid 
     project sited through the granting of a construction permit 
     under subsection (a) shall certify annually to the 
     Commission, in accordance with regulations promulgated by the 
     Commission, that at least 75 percent of the transmission 
     capacity of the project is available to renewable resources.
       ``(2) Application.--The requirements shall be applicable 
     only to generators directly interconnecting to the project.
       ``(3) Adjustment.--
       ``(A) In general.--Subject to subparagraph (B), the 
     Commission may reduce the minimum percentage specified in 
     paragraph (1) in any case in which the Commission determines 
     that it is necessary for a specific renewable feeder line to 
     have less than 75 percent of generation resources 
     interconnecting to the renewable feeder line be renewable 
     resources in order to maintain compliance with Commission-
     approved reliability standards.
       ``(B) Cost-effective energy storage options.--In making a 
     determination on a reduction for a proposed project under 
     subparagraph (A), the Commission shall consider cost-
     effective energy storage options in the area covered by the 
     project, including detailed reports developed by the project 
     developer or interconnecting generators at the direction of 
     the Commission.
       ``(l) Firm Transmission Rights.--The Commission shall 
     adopt, by rule, regulations requiring transmission providers 
     to offer, on a priority basis, firm or equivalent financial 
     transmission rights for any green transmission grid project 
     sited under this section for transmission of energy from 
     renewable resources to a load-serving entity that contracts 
     to purchase renewable resources, or to renewable energy 
     generation owners.
       ``(m) Administration.--Nothing in this section waives the 
     application of any applicable Federal environmental law.
       ``(n) State Siting Authority.--Nothing in this section 
     precludes a transmission project developer from seeking 
     siting authority from a State.

     ``SEC. 405. GRANTS FOR INTERCONNECTION-WIDE GREEN 
                   TRANSMISSION GRID PROJECT PLANS.

       ``(a) In General.--The Secretary, in consultation with the 
     Commission, shall make grants to States and planning entities 
     that submit or implement Interconnection-wide green 
     transmission grid project plans required to be developed 
     pursuant to this part in a timely manner for (as 
     appropriate)--
       ``(1) implementation of sections 403 and 404;
       ``(2) transmission improvements (including smart grid 
     investments) for States and planning entities that meet 
     deadlines in implementing those plans;
       ``(3) training for State regulatory authority staff and 
     local workforces relating to renewable generation resources, 
     smart grid, or new transmission technologies;
       ``(4) mitigation of landowner concerns and impacts;
       ``(5) habitat and wildlife conservation;
       ``(6) security upgrades to the transmission system and 
     authorized uses under title XIII of the Energy Independence 
     and Security Act of 2007 (15 U.S.C. 17381 et seq.);
       ``(7) energy storage, reliability, or distributed renewable 
     generation projects; and
       ``(8) other programs and projects that are consistent with 
     the purposes of this part.
       ``(b) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section $500,000,000, 
     including amounts made available--
       ``(1) under the American Recovery and Reinvestment Act of 
     2009; or
       ``(2) through the sale of carbon allowances in a law 
     enacted after the date of enactment of this Act that imposes 
     a limitation on greenhouse gas emissions.

     ``SEC. 406. COST ALLOCATION.

       ``(a) In General.--As part of an Interconnection-wide green 
     transmission grid project plan submitted under section 403, 
     the regional planning entity, after consultation with 
     affected State regulatory authorities, shall file with the 
     Commission under this section a cost allocation plan for 
     sharing the costs of developing and operating green 
     transmission grid projects that are identified and built 
     pursuant to an Interconnection-wide green transmission 
     project plan to enable delivery of electric energy from 
     renewable energy resources in renewable energy zones.
       ``(b) Approval.--Not later than 90 days after the date of 
     filing, the Commission shall approve a cost allocation plan 
     proposed under subsection (a) unless the Commission 
     determines that--
       ``(1) taking into account the users of the transmission 
     facilities, the plan will result in rates that are unduly 
     discriminatory or preferential or are not just and 
     reasonable;
       ``(2) the plan would unduly inhibit the development of 
     renewable energy electric generation projects; or
       ``(3) the plan would not allow the transmission provider 
     providing service over the facilities or the entity 
     constructing or financing the project, as appropriate, the 
     opportunity to recover prudently incurred costs, including a 
     reasonable return on investment, associated with the 
     transmission facilities the transmission provider has 
     committed to build pursuant to the Interconnection-wide green 
     transmission plan.
       ``(c) Failure to Submit a Cost Allocation Plan.--
       ``(1) In general.--If a regional planning entity is unable, 
     for whatever reason, to develop and propose an acceptable 
     cost allocation plan at the time the regional planning entity 
     files an Interconnection-wide green transmission grid project 
     plan, the Commission shall institute, on the motion of the 
     Commission, a proceeding to initially allocate the costs of 
     new transmission facilities built pursuant to an 
     Interconnection-wide green transmission project plan.
       ``(2) Cost allocation.--The Commission shall allocate the 
     costs of green transmission grid projects--
       ``(A) broadly to all load-serving entities in the 
     Interconnection; or
       ``(B) to load-serving entities within a part of the 
     Interconnection.
       ``(3) Renewable feeder lines.--
       ``(A) In general.--A renewable feeder line may be included 
     in a broad cost allocation if the Commission finds that the 
     renewable feeder line--
       ``(i) would be used by renewable energy resources remote 
     from existing transmission and load centers;
       ``(ii) will likely result in multiple individual renewable 
     energy electric generation projects being developed by 
     multiple competing developers; and
       ``(iii) has at least 1 project subscribed through an 
     executed generator Interconnection agreement with the 
     transmission provider and has tangible demonstration of 
     additional interest.
       ``(B) New renewable generation projects.--
       ``(i) In general.--As new renewable generation projects are 
     constructed and interconnected to a renewable feeder line 
     under subparagraph (A), the 1 or more new transmission 
     services contract holders shall be liable for a pro rata 
     share of the facility costs of the transmission grid project.
       ``(ii) Transmission revenues.--The transmission revenues 
     shall be applied as a credit to the initial allocation of 
     project costs.
       ``(d) Cost Allocation Rate Filings.--If a cost allocation 
     plan is approved by the Commission in accordance with this 
     section--
       ``(1) any public utility that has rates that are affected 
     by the approved cost allocation plan shall file the 
     allocation plan with the Commission pursuant to section 205; 
     and
       ``(2) the cost allocation plan shall be presumed lawful 
     under section 205 on filing, without notice or further 
     opportunity for comment or hearing.
       ``(e) Applicability.--
       ``(1) In general.--Except as provided in paragraph (3), the 
     authority of the Commission under this section and section 
     403 to approve transmission plans and to allocate costs 
     incurred pursuant to the plans applies to all transmission 
     providers, generators, and users, owners, and operators of 
     the

[[Page S2844]]

     power system within the Eastern and Western Interconnections 
     of the United States, including entities described in section 
     201(f).
       ``(2) Regional planning entities.--The Commission shall 
     have authority over regional planning entities to the extent 
     necessary to carry out this section and section 403.
       ``(3) Exclusions.--
       ``(A) In general.--This section does not apply in the State 
     of Alaska or Hawaii or to the ERCOT, unless the State or 
     ERCOT voluntarily elects to participate in a cost allocation 
     plan under this section.
       ``(B) Existing cost allocation agreements.--A project for 
     which a cost allocation or cost recovery agreement was 
     accepted by the Commission before the date of enactment of 
     this part shall not be included in cost allocation under this 
     section.

     ``SEC. 407. FEDERAL TRANSMITTING UTILITIES ENCOURAGING CLEAN 
                   ENERGY DEVELOPMENT IN NATIONAL RENEWABLE ENERGY 
                   ZONES.

       ``(a) Lack of Private Funds.--If, by the date that is 3 
     years after the date of enactment of this part, no privately-
     funded entity has committed to financing (through self-
     financing or through a third-party financing arrangement with 
     a Federal transmitting utility) to ensure the construction 
     and operation of a green transmission grid project (which the 
     Commission has identified as an essential part of an 
     Interconnection-wide green transmission project plan) by a 
     specified date, the Federal transmitting utility responsible 
     for the identification under section 403(d) shall finance 
     such a transmission facility if the Federal transmitting 
     utility has sufficient bonding authority under subsection 
     (b).
       ``(b) Bonding Authority.--
       ``(1) In general.--In addition to any other authority to 
     issue and sell bonds, notes, and other evidence of 
     indebtedness, a Federal transmitting utility may issue and 
     sell bonds, notes, and other evidence of indebtedness in an 
     amount not to exceed, at any 1 time, an aggregate outstanding 
     balance of $10,000,000,000, to finance the construction of 
     transmission facilities described in subsection (a) for the 
     principal purposes of--
       ``(A) increasing the generation of electricity from 
     renewable energy; and
       ``(B) conveying that electric energy to an electricity-
     consuming area.
       ``(2) Recovery of costs.--A Federal transmitting utility 
     shall recover the costs of green transmission grid project 
     facilities financed pursuant to subsection (a) from entities 
     using the transmission facilities over a period of 50 years.
       ``(3) Nonliability of certain customers.--Individuals and 
     entities that, as of the date of enactment of this part, are 
     customers of a Federal transmitting utility shall not be 
     liable for the costs, in the form of increased rates charged 
     for electric energy or transmission, of green transmission 
     grid project facilities constructed pursuant to this section, 
     except to the extent the customers are treated in a manner 
     similar to all other users of the green transmission grid 
     project facilities.

     ``SEC. 408. FEDERAL POWER MARKETING AGENCIES.

       ``(a) Promotion of Renewable Energy and Energy 
     Efficiency.--Each Federal transmitting utility shall--
       ``(1) identify and take steps to promote energy 
     conservation and renewable energy electric resource 
     development in the regions served by the Federal transmitting 
     utility; and
       ``(2) identify opportunities to promote the development of 
     facilities generating electricity from renewable energy on 
     Indian land within the service territory of the Federal 
     transmitting utility.
       ``(b) Wind Integration Programs.--The Bonneville Power 
     Administration and the Western Area Power Administration 
     shall each establish a program focusing on the improvement of 
     the integration of wind energy into the transmission grids of 
     those Administrations through the development of transmission 
     products, including through the use of Federal hydropower 
     resources, that--
       ``(1) take into account the intermittent nature of wind 
     electric generation; and
       ``(2) do not impair electric reliability.
       ``(c) Solar Integration Program.--Each of the Federal Power 
     Marketing Administrations and the Tennessee Valley Authority 
     shall establish a program to carry out projects focusing on 
     the integration of solar energy, through photovoltaic, 
     concentrating solar power systems and other forms and 
     systems, into the respective transmission grids and into 
     remote and distributed applications in the respective service 
     territories of the Federal Power Marketing Administrations 
     and Tennessee Valley Authority, that--
       ``(1) take into account the solar energy cycle;
       ``(2) consider the appropriate use of Federal land for 
     generation or energy storage, where appropriate; and
       ``(3) do not impair electric reliability.
       ``(d) Geothermal Integration Program.--The Bonneville Power 
     Administration and the Western Area Power Administration 
     shall establish a joint program to carry out projects 
     focusing on the development and integration of geothermal 
     energy and enhanced geothermal system resources into the 
     respective transmission grids of the Bonneville Power 
     Administration and the Western Area Power Administration, as 
     well as non-grid, distributed applications in those service 
     territories, including projects combining geothermal energy 
     resources with biofuels production or other industrial or 
     commercial uses requiring process heat inputs, that--
       ``(1) consider the appropriate use of Federal land for the 
     projects and activities;
       ``(2) displace fossil fuel baseload generation or petroleum 
     imports; and
       ``(3) do not impair electric reliability.
       ``(e) Renewable Electricity and Energy Security Projects.--
       ``(1) In general.--The Federal transmitting utilities, 
     shall, in consultation with the Commission, the Secretary, 
     the States, and such other individuals and entities as are 
     necessary, undertake geographically diverse projects within 
     the respective service territories of the Federal 
     transmitting utilities to acquire and demonstrate grid-
     enabled and nongrid-enabled plug-in electric and plug-in 
     hybrid electric vehicles and related technologies as part of 
     their fleets of vehicles.
       ``(2) Increase in renewable energy use.--To the maximum 
     extent practicable, each project conducted pursuant to any of 
     subsections (b) through (d) shall include a component to 
     develop vehicle technology, utility systems, batteries, power 
     electronics, or such other related devices as are able to 
     substitute, as the main fuel source for vehicles, 
     transportation-sector petroleum consumption with electricity 
     from renewable energy sources.
       ``(f) Reregulating Dams and Pumped Storage Study.--The 
     Secretary of the Interior and the Secretary of the Army 
     (acting through Chief of Engineers), in consultation with the 
     Secretary of Energy, shall--
       ``(1) study the potential for reregulating facilities and 
     pumped storage units at Federal dams to identify the 
     facilities and units that are most worthy of further 
     evaluation; and
       ``(2) submit to Congress a report on the results of the 
     study, including recommendations on the next steps that 
     should be taken.
       ``(g) Wind or Solar-hydro Integration Demonstration 
     Project.--
       ``(1) In general.--The Western Area Power Administration 
     may fund the construction of wind or solar generation to 
     supply firming energy to Western Area Power Administration to 
     test the economic feasibility of wind-hydro or solar-hydro 
     integration.
       ``(2) Tribal land.--In carrying out this subsection, the 
     Western Area Power Administration shall consider locating the 
     wind or solar generation facilities on tribal land.
       ``(3) Nonreimbursable costs.--All costs associated with a 
     demonstration under this subsection shall be considered 
     nonreimbursable to electric energy customers of the Western 
     Area Power Administration.

     ``SEC. 409. SOLAR ENERGY RESERVE PILOT PROJECT.

       ``(a) Purpose.--The purpose of this section is to establish 
     a solar energy reserve pilot program on Federal land for the 
     advancement, development, assessment, and installation of 
     commercial utility-scale solar electric energy systems that 
     will function as a potential model for the future development 
     of renewable energy zones identified under this Act.
       ``(b) Site Selection.--The Secretary of Energy and the 
     Secretary of the Interior, in consultation with the Secretary 
     of Defense, the Commission, States, and tribal and local 
     units of government (as appropriate), shall--
       ``(1) identify 1 or more areas of Federal land under the 
     jurisdiction of the Bureau of Land Management or land 
     withdrawn by the Secretary of Energy for other purposes that 
     is feasible and suitable for the installation of solar 
     electric energy systems that are sufficient to generate not 
     less than 4 gigawatts and not more than 25 gigawatts;
       ``(2) not later than 180 days after the date of enactment 
     of this part, initiate the process for withdrawal of 1 or 
     more tracts of land to the Secretary of Energy pursuant to 
     section 204 of the Federal Land Policy and Management Act of 
     1976 (43 U.S.C. 1714) for the purpose of creating solar 
     energy reserves or the designation of land withdrawn to the 
     Secretary of Energy for other purposes as a solar energy 
     reserve; and
       ``(3) identify the needed transmission upgrades to connect 
     the solar energy reserves to the transmission grid.
       ``(c) Ineligible Federal Land.--A solar energy reserve 
     shall not be established under this section on any land 
     excluded for designation under section 402(a)(2).
       ``(d) Development Within Reserves.--The Secretary of Energy 
     shall--
       ``(1) have the sole authority to issue land use 
     authorizations for land withdrawn under subsection (b);
       ``(2) establish criteria for approving applications and 
     developing infrastructure for solar reserves;
       ``(3) not later than 2 years after the date of enactment of 
     this part, work with Federal agencies, States, and other 
     interested persons to ensure, to the maximum extent 
     practicable, that adequate infrastructure is available for 
     operation of the first solar energy reserve;
       ``(4) provide, to the maximum extent practicable, for a 
     variety of utility-scale solar electric energy technologies; 
     and
       ``(5) ensure, to the maximum extent practicable, that all 
     solar energy reserves pursuant to this section are permitted 
     using an expedited permitting process.
       ``(e) Developing Solar Energy Reserves.--
       ``(1) In general.--Subject to paragraph (2), in carrying 
     out this section, the Secretary may--
       ``(A) install appropriate infrastructure, including--
       ``(i) roads;
       ``(ii) renewable feeder lines that connect to transmission 
     lines; and

[[Page S2845]]

       ``(iii) equipment to access public or private utility 
     systems;
       ``(B) recover reasonable costs to pay for the management of 
     the solar energy reserves and maintenance of the 
     infrastructure relating to the use of the land, except that 
     the Secretary shall not recover costs to pay for 
     infrastructure if the costs have or will be paid for by 
     Federal funds, to remain available until expended; and
       ``(C) negotiate agreements on behalf of all solar 
     electricity systems within the solar energy reserve for--
       ``(i) the purchase of materials and equipment;
       ``(ii) the provision of public utility services and other 
     services; and
       ``(iii) access to electric transmission facilities.
       ``(2) Opting out.--A developer of a solar electricity 
     system shall have the option, prior to the effective date of 
     the agreement, to opt out of any agreement negotiated by the 
     Secretary under paragraph (1)(C).
       ``(f) Royalties and Fees.--
       ``(1) In general.--In lieu of rental fees, each solar 
     electricity system developer shall pay to the Secretary a 
     royalty on the sale of electricity produced from a solar 
     electricity system placed into service on a solar energy 
     reserve established under this section.
       ``(2) Amount of royalty.--The amount of the royalty payable 
     for a solar electricity system placed into service on a solar 
     energy reserve under this subsection shall be equal to 1.0 
     mil per kilowatt-hour of electricity generated by the 
     facility.
       ``(3) Deposit in treasury.--All royalties received by the 
     United States from royalties under this subsection shall be 
     deposited in the Treasury.
       ``(4) Use of royalties.--
       ``(A) In general.--Subject to subparagraphs (B) and (C), of 
     the amount of royalties deposited in the Treasury from a 
     solar energy reserve for a fiscal year under paragraph (3)--
       ``(i) 20 percent shall be paid to the 1 or more States 
     within the boundaries of which the solar energy reserve is 
     located;
       ``(ii) 30 percent shall be paid to the 1 or more counties 
     within the boundaries of which the solar energy reserve is 
     located;
       ``(iii) 20 percent shall be deposited in a separate account 
     in the Treasury, to be known as the `BLM Solar Energy Permit 
     Processing Improvement Fund', except that if the Fund equals 
     $10,000,000 or more, no additional royalties under this 
     subsection shall be deposited in the Fund; and
       ``(iv) 5 percent shall be deposited into a separate account 
     in the Treasury, to be known as the `Solar Energy Land 
     Reclamation, Remediation, and Restoration Fund'.
       ``(B) BLM solar energy permit processing improvement 
     fund.--Amounts deposited under subparagraph (A)(iii) shall be 
     available to the Secretary of the Interior for expenditure, 
     without further appropriation and without fiscal year 
     limitation, for the purpose of paying for the coordination 
     and processing of solar energy right-of-way permit and land 
     use applications and planning for solar energy development on 
     land under the jurisdiction of the Bureau of Land Management.
       ``(C) Solar energy land reclamation, remediation, and 
     restoration fund.--Amounts deposited under subparagraph 
     (A)(iv) shall be available to the Secretary of Energy for 
     expenditure, without further appropriation and without fiscal 
     year limitation, for the purpose of reclaiming, remediating, 
     and restoring land within a solar energy reserve on which a 
     solar electricity facility has permanently ceased operation 
     before disposal or for withdrawn land that is returned to the 
     Department of the Interior.
       ``(g) Authorization of Appropriations.--There are 
     authorized to be appropriated to the Secretary of Energy and 
     the Secretary of the Interior such sums as are necessary to 
     carry out this section.

     ``SEC. 410. RELATIONSHIP TO OTHER LAWS.

       ``Nothing in this part supersedes or affects any Federal 
     environmental, public health or public land protection, or 
     historic preservation law, including--
       ``(1) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.);
       ``(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.); and
       ``(3) the National Historic Preservation Act (16 U.S.C. 470 
     et seq.).

     ``SEC. 411. REGULATIONS.

       ``Except as otherwise provided in this part, not later than 
     1 year after the date of enactment of this part, the 
     Commission shall promulgate such regulations as are necessary 
     to carry out this part.''.
       (b) Green Transmission Infrastructure Incentive Rates.--
     Section 219(a) of the Federal Power Act (16 U.S.C. 824s(a)) 
     is amended by striking ``purpose of'' and all that follows 
     through the end of the subsection and inserting ``purpose 
     of--
       ``(1) benefitting consumers by ensuring reliability and 
     reducing the cost of delivered power by reducing transmission 
     congestion; or
       ``(2) integrating renewable energy resources into the 
     transmission system.''.
       (c) Maximum Funding Amount for Third-Party Finance.--
     Section 1222 of the Energy Policy Act of 2005 (42 U.S.C. 
     16421) is amended by striking subsection (g) and inserting 
     the following:
       ``(g) Maximum Funding Amount.--The Secretary shall not 
     accept and use more than $2,500,000,000 under subsection 
     (c)(1) for the period of fiscal years 2009 through 2018.''.
       (d) Enforcement.--Section 316A of the Federal Power Act (16 
     U.S.C. 825o-1) is amended by striking ``part II'' each place 
     it appears and inserting ``part II or IV''.

     SEC. 4. RENEWABLE ENERGY PILOT PROJECT OFFICES.

       (a) In General.--Section 365 of the Energy Policy Act of 
     2005 (42 U.S.C. 15924) is amended by adding at the end the 
     following:
       ``(k) Pilot Project Office to Improve Federal Permit 
     Coordination for Renewable Energy.--
       ``(1) Definition of renewable energy.--In this subsection, 
     the term `renewable energy' means energy derived from a wind, 
     solar, geothermal, or biomass source.
       ``(2) Field project offices.--As part of the Pilot Project, 
     the Secretary shall designate 1 or more field offices of the 
     Bureau of Land Management in each of the following States to 
     serve as Renewable Energy Pilot Project Offices for 
     coordination of Federal permits for renewable energy projects 
     and renewable energy transmission involving Federal land 
     (other than permits issued by the Federal Energy Regulatory 
     Commission):
       ``(A) Arizona.
       ``(B) California.
       ``(C) Colorado.
       ``(D) Oregon or Washington.
       ``(E) New Mexico.
       ``(F) Nevada.
       ``(G) Montana.
       ``(H) Wyoming.
       ``(3) Memorandum of understanding.--
       ``(A) In general.--Not later than 90 days after the date of 
     enactment of this subsection, the Secretary shall enter into 
     an amended memorandum of understanding under subsection (b) 
     to provide for the inclusion of the additional Renewable 
     Energy Pilot Project Offices in the Pilot Project.
       ``(B) Signatures by governors.--The Secretary may request 
     that the Governors of each of the States described in 
     paragraph (2) be signatories to the amended memorandum of 
     understanding.
       ``(C) Designation of qualified staff.--Not later than 30 
     days after the date of the signing of the amended memorandum 
     of understanding, all Federal signatory parties shall, if 
     appropriate, assign to each Renewable Energy Pilot Project 
     Offices designated under paragraph (2) an employee described 
     in subsection (c) to carry out duties described in that 
     subsection.
       ``(D) Additional personnel.--The Secretary shall assign to 
     each Renewable Energy Pilot Project Office additional 
     personnel under subsection (f).''.
       (b) Permit Processing Improvement Fund.--Section 35(c)(3) 
     of the Mineral Leasing Act (30 U.S.C. 191(c)(3)) is amended--
       (1) by striking ``use authorizations'' and inserting ``and 
     renewable energy use authorizations''; and
       (2) by striking ``section 365(d)'' and inserting 
     ``subsections (d) and (k)(2) of section 365''.
                                  ____


   The Clean Renewable Energy and Economic Development Act of 2009--
                                Summary

       Sec. 402. Renewable Energy Zones: This bill directs the 
     President to designate renewable energy zones, which are 
     areas that can generate in excess of 1 gigawatt of 
     electricity from renewable energy, include rural areas or 
     Federal land, and have insufficient transmission capacity to 
     achieve their renewable energy generation potential. This 
     bill excludes environmentally sensitive and culturally 
     significant areas from renewable energy zones.
       Electricity from renewable energy is defined to include 
     solar, wind, geothermal, biomass, biogas, incremental 
     hydroelectric capacity and hydrokinetic resources.
       Some areas, especially the Western U.S., already have 
     processes in place to identify renewable energy zones. 
     Recognizing the ongoing efforts in the Western U.S., this 
     bill allows the President to use zones designated through 
     existing processes, and sets deadlines on designating 
     renewable energy zones for the Western Interconnection of 90 
     days after enactment of the bill and 270 days after enactment 
     of the bill for the Eastern Interconnection.
       Sec. 403. Interconnection-Wide Green Transmission Grid 
     Planning: Transmission planning today is a geographically 
     fragmented, lengthy process that does not address the types 
     of projects needed to integrate renewable energy into the 
     transmission grid. The U.S. electric transmission network is 
     divided into three interconnections, the West, the East, and 
     Texas. This bill requires participatory and transparent 
     transmission planning on an interconnection-wide basis for 
     green transmission projects to integrate renewable 
     electricity resources from renewable energy zones into the 
     transmission grid. The objective of the planning process is 
     to enhance transmission access for electricity from renewable 
     energy in renewable energy zones, while recognizing national 
     economic, reliability, and security goals. The planning 
     process established in this bill must be based on established 
     and projected Federal and State renewable energy policies and 
     targets. This bill requires the planning process to solicit 
     input from all stakeholders, including transmission owners, 
     regional transmission organizations, independent system 
     operators, State commissions, electricity generators, 
     prospective developers of new transmission and generation 
     resources, regional reliability organizations, and 
     environmental protection and land, water, and wildlife 
     conservation groups.
       This bill requires the plan to consider alternatives to new 
     transmission, including

[[Page S2846]]

     energy efficiency, demand response, distributed generation, 
     and cost-effective energy storage.
       To expedite building transmission to meet the President's 
     renewable energy goal, this bill requires the 
     interconnection-wide green transmission plans to be submitted 
     to the Commission within 1 year of the deadline for 
     designation of renewable energy zones.
       If a regional planning entity does not organize a planning 
     process, or does not complete a plan by the deadlines 
     established by FERC, this bill gives FERC backstop planning 
     authority to establish a planning process and conduct 
     planning, in consultation with DOE, federal power marketing 
     authorities, the electric reliability organization and 
     regional reliability organizations. This bill also gives FERC 
     backstop planning authority for any state that does not 
     participate in an interconnection-wide planning process.
       To cover costs of regional planning entities and states 
     participating in interconnection-wide planning, this bill 
     establishes a surcharge on all transmission customers. The 
     funds from the surcharge will be distributed to regional 
     planning entities and to states whose governors certify that 
     they are participating in green transmission planning for the 
     first year, and subject to timely submission of a green 
     transmission grid plan in subsequent years. State Governors 
     are also required to demonstrate that planning entities are 
     able to effectively represent a wide spectrum of 
     stakeholders, including the protection and conservation of 
     land, consumer protection, and fish and wildlife protection.
       Sec. 404. Federal Siting of Green Transmission Grid Project 
     Facilities: Transmission line siting is currently conducted 
     through a separate process in each state, which can cause 
     lengthy delays for multi-state transmission lines. This bill 
     allows transmission project developers to apply to FERC for 
     federal backstop siting for green transmission projects that 
     are part of the green transmission grid plan and integrate 
     renewable energy resources from renewable energy zones, or 
     for transmission projects that FERC determines are needed to 
     integrate renewable generation resources. For states that 
     participate in interconnection-wide planning, this bill 
     requires FERC to consider state recommendations in siting the 
     line, and to work with states to resolve differences. This 
     bill gives FERC the authority to issue a construction permit, 
     including the right of eminent domain, for green transmission 
     projects that meet specific conditions, including a minimum 
     renewable requirement, optimizing transmission capacity, and 
     providing transmission access to states the project passes 
     through. To coordinate the process of siting transmission on 
     Federal lands, this bill sets FERC as the lead agency for 
     environmental reviews, with a single environmental review 
     document, and directs affected agencies to develop a 
     memorandum of understanding, including a schedule for 
     environmental review and a budget necessary to carry out the 
     schedule.
       This bill ensures that green transmission projects are 
     truly green by requiring transmission line siting to consider 
     and use alternative routes where possible to avoid 
     environmentally sensitive or culturally significant areas. In 
     addition, this bill requires transmission projects that use 
     federal siting authority to ensure that at least 75% of the 
     capacity of transmission project is available to renewable 
     generation, or the maximum possible amount of renewable 
     generation that can be reliably interconnected. In addition, 
     to ensure that renewable generation resources have access to 
     transmission, transmission providers for green transmission 
     projects that use federal siting must give priority to load-
     serving entities contracting with renewable generators, or to 
     renewable generation developers, when offering firm 
     transmission rights.
       As a condition for federal siting, each transmission 
     project developer must demonstrate that it has sufficient 
     capacity to connect multiple renewable generation resources 
     in the renewable energy zone(s) to which it connects, based 
     on reliability criteria, land use limitations, economic 
     considerations and the potential generation capacity of the 
     renewable energy zones interconnected to the project. This 
     will allow future renewable generators to connect to the 
     transmission system without building multiple transmission 
     lines through an area.
       Large transmission lines may pass through states without 
     providing any benefit to the state. This bill requires green 
     transmission projects that use federal siting authority to 
     provide transmission access to load or generation in each 
     state they pass through. If a project cannot provide 
     interconnection to a state, that state will be eligible for 
     additional funds through DOE grants.
       Sec. 405. Grants for green transmission grid project plans: 
     This bill authorizes the DOE, in consultation with FERC, to 
     make grants to states and planning entities to implement the 
     planning and siting described in this bill, for transmission 
     improvements including smart grid investments, for training 
     for state public utility commission staff, for mitigation of 
     landowner concerns, for habitat and wildlife conservation, 
     for security upgrades to the transmission system, for energy 
     storage, for reliability projects, transmission business 
     development, and for distributed generation projects. These 
     grants are funded through the American Recovery and 
     Reinvestment Act of 2009, and in the future through sale of 
     carbon allowances if a carbon allowance system is 
     implemented. These grants are available only to states that 
     participate in green transmission grid planning and implement 
     green transmission grid projects in a timely fashion.
       Sec. 406. Cost Allocation: This bill encourages the States 
     and participants in a green transmission plan to agree on and 
     propose a cost allocation to FERC. If no cost allocation is 
     filed, this bill allows FERC to determine a just and 
     reasonable cost allocation that takes account of the widely 
     distributed impacts of the transmission project. This bill 
     allows FERC to allocate costs to all users, owners, and 
     operators of the bulk power system in a region of an 
     interconnection or throughout an interconnection.
       This bill provides that costs of a green transmission 
     project initially built with extra transmission capacity to 
     multiple renewable generators can initially be allocated with 
     the cost allocation. As new generation projects interconnect, 
     they will pay their share of the transmission grid project, 
     reducing the effect on rates of the transmission provider's 
     customers.
       Sec. 407. Encouraging Clean Energy Development in Renewable 
     Energy Zones: To ensure that transmission projects needed to 
     integrate renewable energy resources get built in a timely 
     manner, this bill allows federal transmitting utilities to 
     construct projects if no privately-funded entity commits to 
     financing them within 3 years. This bill extends bonding 
     authority of federal transmitting utilities to finance 
     construction of transmission.
       Sec. 408. Federal power marketing agencies: This bill 
     directs federal power marketing agencies to promote renewable 
     energy and energy efficiency, by developing wind, solar and 
     geothermal integration programs, and directs the federal 
     transmitting utilities to undertake renewable electricity and 
     energy security projects. It also directs WAPA to study 
     reregulating hydroelectric dams and allows WAPA to fund a 
     wind-hydro or solar-hydro integration demonstration project.
       Sec. 409. Solar Energy Reserve Pilot Project: This bill 
     establishes a pilot program on Federal land for commercial 
     utility-scale solar electric energy systems on lands 
     identified by the Secretary of Interior and the Secretary of 
     Energy.
       Sec. 410. Investment incentives: To encourage investment in 
     green transmission projects, this bill extends infrastructure 
     investment incentives from the Energy Policy Act of 2005 to 
     include transmission projects that integrate renewable energy 
     resources into the transmission system. The limit on third-
     party financing of transmission investments in the Western 
     Area and Southwestern Area Power Administration territories 
     is raised to $2.5 billion.
                                 ______
                                 
      By Mr. KENNEDY (for himself, Mr. Leahy, Mr. Durbin, Mr. Dodd, Mr. 
        Harkin, Mr. Bingaman, Mr. Reed, Mr. Sanders, Mr. Brown, Mr. 
        Casey, Mrs. Hagan, Mr. Merkley, Mr. Whitehouse, Mrs. McCaskill, 
        Mr. Johnson, Mr. Schumer, Mr. Udall of New Mexico, and Mrs. 
        Boxer):
  S. 540. A bill to amend the Federal Food, Drug, and Cosmetic Act with 
respect to liability under State and local requirements respecting 
devices; to the Committee on Health, Education, Labor, and Pensions.
  Mr. LEAHY. Mr. President, I am pleased to join Senator Kennedy once 
again in the introduction of this important legislation. The bill that 
we introduce today will correct the Supreme Court's decision in Riegel 
v. Medtronic, which misconstrued the intent of Congress and cut off 
access to our Nation's courts for citizens injured or killed by 
defective medical devices.
  Last year, the Senate Judiciary Committee held a series of hearings 
to examine the way in which the Supreme Court's decisions in the areas 
of retirement benefits, consumer product safety, workplace 
discrimination, and personal finance have consistently trended against 
the rights of consumers and in favor of big business. In many cases 
that have profound effects on the lives of ordinary Americans, the 
Court has either ignored the intent of Congress, deferred to corporate 
interests, or sided with a Federal agency's flawed interpretation of a 
congressional statute's preemptive force to disadvantage consumers. The 
impact of the decisions that were the focus of those hearings continues 
to be felt by Americans today, whether they are prohibited from seeking 
redress in the courts for an injury caused by a defective product, 
paying exorbitant credit card interest rates and fees with no relief 
from the laws of their own State, or subjected to the unscrupulous 
practices of some in the mortgage lending industry.
  These hearings raised awareness in Congress, and among Americans, 
about the impact the Supreme Court has on our everyday lives. And I am 
especially proud that following on these hearings,

[[Page S2847]]

and through the efforts of a determined and principled congressional 
majority, we witnessed our constitutional democracy at work when 
President Obama signed the Lilly Ledbetter Fair Pay Act. I am heartened 
that Congress reclaimed the intent of its original legislation and 
overrode the Supreme Court to restore the rights of Americans to be 
free from discrimination in the workplace.
  Just yesterday in the case of Wyeth v. Levine the Supreme Court 
foreclosed the need for Congress to act in another important area when 
it validated the views of many by rejecting the Bush administration and 
the Food and Drug Administration's extravagant views of a regulatory 
agency's ability to pre-empt State law. I am glad the Court spoke 
clearly and decisively on this issue. The Court's decision was not only 
a vindication of Congress's primary authority to pre-empt State law, 
but a victory for every American who relies upon pharmaceutical drugs 
and entrusts the manufacturers of those drugs with insuring their 
safety. The Court's decision also vindicated the laws and courts of the 
State of Vermont, and I am proud to have expressed my views to the 
Court as to Congress's intent in this area and on behalf of Diana 
Levine.
  The bill we introduce today is another important step to correct an 
erroneous reading by the Court of Congress's intent in enacting the 
medical device amendments of 1976. This legislation will make explicit 
that the preemption clause in the medical device amendments upon which 
the Court relied does not, and never was intended to preempt the common 
law claims of consumers injured by a federally approved medical device.
  The extraordinary power to preempt State law and regulation lies with 
Congress alone. Where the Court reaches to the extent it did in the 
Riegel decision to find Federal preemption contrary to what Congress 
intended, Congress is compelled to act, just as it was in the case of 
Lilly Ledbetter. I hope all Senators will join us in this effort.
  Mr. HARKIN. Mr. President, I am proud to join my colleagues in 
reintroducing the Medical Device Safety Act. This legislation reverses 
the Supreme Court's erroneous decision in Riegel v. Medtronic. There, 
the Court misread a statute designed to protect consumers by giving the 
Food and Drug Administration, FDA, the authority to approve medical 
devices as preempting State tort claims when a medical device causes 
harm. Riegel prevents consumers from receiving fair compensation for 
injuries sustained, medical expenses incurred and lost wages, and it 
must be reversed.
  Congressional action should be unnecessary. When Congress passed the 
Medical Device Amendments, or MDA, in 1976, it did so ``[t]o provide 
for the safety and effectiveness of medical devices intended for human 
use.'' In other words, Congress passed the MDA precisely to protect 
consumers from dangerous medical devices. Towards that end, Congress 
gave the FDA the authority to approve, prior to a product entering the 
market, certain medical devices. For over 30 years the MDA has been in 
effect, and over that period FDA regulation and tort liability have 
complimented each other in protecting consumers.
  Given the MDA's purpose, and the fact it has operated successfully 
for 30 years, I was disheartened to find the Court twist the meaning of 
the statute to strip from consumers all remedies when a medical device 
fails. In contorted logic, the Court found that the FDA's requirements 
in approving a medical device preempted State laws designed to ensure 
that manufacturers marketed safe devices. In other words, the Court 
believes that a company's responsibility to its patients ends when it 
receives FDA approval. I strenuously disagree.
  In fact, there is absolutely no evidence that Congress intended that 
under the MDA consumers would lose their only avenue for receiving 
compensation for injuries caused by negligent or inadequately labeled 
devices. Not a single Member or committee report articulated the view 
that the statute would preempt State tort law.
  Nevertheless, because of the Court's decision, it is imperative that 
Congress act to ensure that those harmed by flawed medical devices can 
seek compensation. The bill introduced today addresses the Court's 
action by explicitly stating that actions for damages under State law 
are preserved. Specifically, it amends section 521 of the Federal Food, 
Drug, and Cosmetic Act to state that the section shall not be construed 
to modify or otherwise affect any action for damages or the liability 
of any person under the law of any State. And the bill applies 
retroactively to the date of the enactment of the MDA, consistent with 
Congress's intent when it passed that act over 30 years ago. 
Practically, that means that it applies to cases pending on the date of 
enactment of this legislation or claims for injuries sustained prior to 
enactment.
  The harm from Riegel, unless Congress acts, cannot be more real. In 
the year since Riegel was decided alone, courts across the country have 
dismissed product liability claims. Take Charles Riegel. During an 
angioplasty, a catheter burst and caused him serious injuries and 
disabilities, and a State jury found Medtronic negligent. Because of 
the Supreme Court's decision, however, Mr. Riegel's wife will receive 
no compensation for the defective design and inadequate warning. Take 
Gary Despain. A defective hearing aid caused severe damage to his right 
ear, and he became disabled and unemployed. Because of the Supreme 
Court's decision, Mr. Despain has no ability to see remedies for his 
injuries.
  Recently, a court dismissed the claims of almost 1,500 patients who 
brought suit arising from Medtronic's Sprint Fidelis defibrillator--
specific models of thin wires that connect an implantable cardiac-
defibrillator directly to the heart. In October 2007, the product was 
recalled after lead fractured in several cases and was thought to 
contribute to deaths and serious injuries. Again, because of the 
Court's ruling, injured plaintiffs have no recourse against the company 
that caused the harm.
  While FDA approval of medical devices, moreover, is important, it 
cannot be the sole protection for consumers. FDA approval is simply 
inadequate to replace the longstanding safety incentives and consumer 
protections State tort law provides.
  As a senior member of the Health, Education, Labor and Pension 
Committee, which has oversight over FDA, I have worked hard to ensure 
that the FDA performs its job. No matter how effective the FDA is, 
however, the FDA simply cannot guarantee that no defective, dangerous, 
and deadly medical device will reach consumers. As the former Director 
of the FDA's Center for Devices and Radiological Health acknowledged, 
the FDA's ``system of approving devices isn't perfect, and that 
unexpected problems [with approved devices] do arise.'' In 1993, a 
House report identified a ``number of cases in which the FDA [had] 
approved devices that proved unsafe in use.''
  The fact is, the FDA conducts the approval process with minimal 
resources and simply does not have adequate funds to genuinely ensure 
that devices are safe or to properly and effectively reevaluate 
approvals as new information is available.
  Further, the FDA approval process is based on partial information. A 
principal shortcoming is that the device's manufacturer compiles the 
studies and data supporting an application, and the data is often 
unreliable. And the FDA does not conduct independent investigations 
into a device's safety. A manufacturer, moreover, is not required to 
submit information about development of the device, including 
alternative designs, manufacturing methods, and labeling possibilities 
that the manufacturer considered but rejected.
  In 1993, an FDA committee found flaws in the design, conduct, and 
analysis of the clinical studies used to support applications that were 
``sufficiently serious to impede the agency's ability to make the 
necessary judgments about [device] safety and effectiveness.'' It 
added, ``[o]ne of the main reasons [problems arise after approval] is 
that the data upon which we base our safety and effectiveness decisions 
isn't perfect.'' Likewise, in 1996, the inspector general of the 
Department of Health and Human Services reported ``serious deficiencies 
. . . in the clinical data submitted as part of pre-market 
applications.''
  Moreover, there is very little FDA oversight once a device reaches 
doctors

[[Page S2848]]

and patients. In fact, even the best designed and most reliable 
clinical studies by their very nature cannot duplicate all aspects and 
hazards of everyday use. Moreover, while manufacturers are supposed to 
report defects and injuries, the FDA has admitted that there is 
``severe underreporting'' of defects and injuries.
  Given the FDA's limitations, it is crucial that an individual have a 
right to seek redress. When defective medical devices reach the market, 
whether or not approved by the FDA, patients are often injured. Those 
injured are often left temporarily unable to work or to enjoy normal 
lives, and in many cases never fully recover. State tort law provides 
the only relief for patients injured by defective medical devices and 
should not be foreclosed.
  Not only does access to State court mean that a person injured can 
receive fair compensation, but there are other advantages. Such suits 
aid in exposing dangers and serve as a catalyst to address their 
consequences. Through discovery, litigation can help uncover previously 
unavailable information on adverse effects of products that might not 
have been caught during the regulatory system. Litigants can demand 
documents and information on product risks that might not have been 
shared with the FDA. In this way, the public as a whole is alerted to 
dangers in medical products.
  Finally, providing the ability to sue when injured provides an 
important incentive to manufacturers to use the utmost care. 
Additionally, threat of product liability suits creates continuing 
incentives for product manufacturers to improve the safety of their 
device, even after FDA approval.
  As the Supreme Court recognized this week, in Wyeth v. Levine, in 
holding that failure to warn claims involving FDA approved drugs are 
not preempted, ``[s]tate tort suits uncover unknown drug hazards and 
provide incentives for drug manufacturers to disclose safety risks 
promptly. They also serve a distinct compensatory function that may 
motivate injured persons to come forward with information.'' The Court 
continued, ``the FDA has long maintained that state law offers an 
additional, and important, layer of consumer protection that 
complements FDA regulation.''
  The same consumer protection that State courts provide which the 
Court recognized as important in the context of faulty drug warnings is 
equally important for those consumers harmed by faulty medical devices.
  In conclusion, sadly the Court fundamentally misread Congress's 
intent in passing the Medical Device Amendments in 1976, and Reigel 
appears to represent yet another victory by big business over 
consumers. That is not, however, the final say on the matter. To quote 
Chief Justice Roberts, ``every area involving an interpretation of a 
statute, the final say is not with the Supreme Court, the final say is 
with Congress. And if they don't like the Supreme Court's 
interpretation of it, they can change it.''
  Make no mistake, moreover, it can be done. Last year, Congress passed 
and the President signed the ADA Amendments Act, reversing decisions in 
which the Court consistently misconstrued the will of Congress and held 
that the ADA does not protect many people with serious disabilities 
from discrimination. This year, we were successful in reversing the 
Court's draconian Lilly Ledbetter decision, making clear that those 
discriminated against do have a recourse in law.
  Those injured by faulty medical devices deserve to have their day in 
court and are entitled to compensation when they are injured by faulty 
medical devices, have medical expenses to pay and lost wages, 
regardless of whether the FDA approved a device. We must reverse this 
erroneous decision and ensure that those who have suffered serious 
injury at the hands of others receive justice.
                                 ______
                                 
      By Mr. DODD (for himself, Mr. Crapo, Mr. Akaka, Mr. Brown, Mr. 
        Corker, Mr. Bond, and Mr. Isakson):
  S. 541. A bill to increase the borrowing authority of the Federal 
Deposit Insurance Corporation, and for other purposes; to the Committee 
on Banking, Housing, and Urban Affairs.
  Mr. DODD. Mr. President, I have been approached, along with my 
colleague Senator Shelby and leaders of the House Financial Services 
Committee, by the Chairman of the Federal Deposit Insurance 
Corporation, Sheila Bair, with a request to increase substantially the 
FDIC's borrowing authority from Treasury from the current $30 billion 
to $100 billion, for use by the FDIC's Deposit Insurance Fund and for 
temporary additional borrowing authority to help weather the economic 
crisis. In response to her request, I am introducing the Depositor 
Protection Act of 2009, which provides this authority. We are taking 
this step out of an abundance of caution and to meet any contingencies 
that the fund may face in the coming months.
  The FDIC's Deposit Insurance Fund DIF absorbs losses that result from 
the corporation's obligation to protect insured deposits when FDIC-
insured financial institutions fail. Insured financial institutions pay 
premiums that support the DIF and under current law those premiums can 
be increased to cover any losses to the fund.
  Today, the House passed legislation to substantially and permanently 
increase this borrowing authority as part of H.R. 1106, the Helping 
Families Save Their Homes Act of 2009. Last month, Treasury Secretary 
Geithner and Chairman Bernanke of the Federal Reserve Board wrote to me 
to underscore their support for the FDIC's increased borrowing 
authority.
  Since the FDIC's borrowing authority was last increased in 1991, the 
asset size of banks has tripled. Even more important, the financial 
system is under considerable stress, and the level of thrift and bank 
failures has been rising. This line of credit is designed strictly to 
serve as a backstop to cover potential losses to the DIF.
  Though this statutory borrowing authority has historically never been 
tapped, and Chairman Bair has made clear she does not anticipate doing 
so, I agree with Chairman Bair, Secretary Geithner, and Chairman 
Bernanke that under current economic circumstances such an increase in 
borrowing authority is both prudent and necessary. It is important that 
we increase this line of borrowing authority so that the FDIC has the 
funds available which might be needed to meet its obligations to 
protect insured depositors and to reassure the public that the 
Government continues to stand firmly behind the FDIC's insurance 
guarantee.
  Additionally, on Friday, February 27, the FDIC Board voted to impose 
a one-time special assessment of 20 basis points on insured depository 
institutions because of concern about the level of the DIF. This 
special assessment is in addition to the regular premiums, which were 
increased on February 27 to a range of 12 to 16 basis points. The DIF 
is significantly below the statutory minimum reserve ratio of 1.15. As 
of December 31, 2008, the DIF ratio stood at .4. The FDIC has informed 
us that with the increased borrowing authority provided in this 
legislation, it believes it can reduce the size of the special 
assessment while still maintaining appropriate assessments at a level 
that supports the DIF with funding from the banking industry.
  Mr. President, I ask unanimous consent that the text of the bill and 
letters of support be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 541

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``The Depositor Protection Act 
     of 2009''.

     SEC. 2. INCREASED BORROWING AUTHORITY OF THE FEDERAL DEPOSIT 
                   INSURANCE CORPORATION.

       Section 14(a) of the Federal Deposit Insurance Act (12 
     U.S.C. 1824(a)) is amended--
       (1) by striking ``$30,000,000,000'' and inserting 
     ``$100,000,000,000'';
       (2) by striking ``The Corporation is authorized'' and 
     inserting the following:
       ``(1) In general.--The Corporation is authorized'';
       (3) by striking ``There are hereby'' and inserting the 
     following:
       ``(2) Funding.--There are hereby''; and
       (4) by adding at the end the following:
       ``(3) Temporary increases authorized.--
       ``(A) Recommendations for increase.--During the period 
     beginning on the date of enactment of this paragraph and 
     ending on December 31, 2010, if, upon the written 
     recommendation of the Board of Directors (upon a vote of not 
     less than two-thirds of the members of the Board of 
     Directors) and

[[Page S2849]]

     the Board of Governors of the Federal Reserve System (upon a 
     vote of not less than two-thirds of the members of such 
     Board), the Secretary of the Treasury (in consultation with 
     the President) determines that additional amounts above the 
     $100,000,000,000 amount specified in paragraph (1) are 
     necessary, such amount shall be increased to the amount so 
     determined to be necessary, not to exceed $500,000,000,000.
       ``(B) Report required.--If the borrowing authority of the 
     Corporation is increased above $100,000,000,000 pursuant to 
     subparagraph (A), the Corporation shall promptly submit a 
     report to the Committee on Banking, Housing, and Urban 
     Affairs of the Senate and the Committee on Financial Services 
     of the House of Representatives describing the reasons and 
     need for the additional borrowing authority and its intended 
     uses.''.
                                  ____

         Federal Deposit


                                        Insurance Corporation,

                                    Washington, DC, March 5, 2009.
     Hon. Christopher J. Dodd,
     Chairman, Committee on Banking, Housing, and Urban Affairs, 
         U.S. Senate, Washington, DC.
       1Dear Mr. Chairman: I am writing to express my support for 
     the Depositor Protection Act of 2009, legislation to increase 
     the Federal Deposit Insurance Corporation's borrowing 
     authority with the Treasury Department if losses from failed 
     financial institutions exceed the industry funded resources 
     of the Deposit Insurance Fund (DIF).
       As you know, the FDIC's borrowing authority was set in 1991 
     at $30 billion and has not been raised since that date. 
     Assets in the banking industry have tripled since 1991, from 
     $4.5 trillion to $13.6 trillion. As I indicated in my 
     previous letter of January 26, 2009, the FDIC believes it is 
     prudent to adjust the statutory line of credit 
     proportionately to leave no doubt that the FDIC can 
     immediately access the necessary resources to resolve failing 
     banks and provide timely protection to insured depositors.
       The legislation would include important additional 
     authority for the FDIC and would rationalize the FDIC's 
     current borrowing authority. Under current law, the FDIC has 
     the authority to borrow up to $30 billion from Treasury to 
     cover losses incurred in insuring deposits up to $100,000. In 
     addition, when Congress temporarily increased deposit 
     insurance coverage to $250,000, it temporarily lifted all 
     limits on the FDIC's borrowing authority to implement the new 
     deposit insurance obligation.
       The bill would permanently increase the FDIC's authority to 
     borrow from Treasury from $30 billion to $100 billion. In 
     addition the bill also would temporarily authorize an 
     increase in that borrowing authority above $100 billion (but 
     not to exceed $500 billion) based on a process that would 
     require the concurrence of the FDIC, the Federal Reserve 
     Board, and the Treasury Department, in consultation with the 
     President.
       Because the existing borrowing authority for losses from 
     bank failures provides a thin margin of error, it was 
     necessary for the FDIC recently to impose increased 
     assessments on the banking industry. These assessments will 
     have a significant impact on insured financial institutions, 
     particularly during a financial crisis and recession when 
     banks must be a critical source of credit to the economy.
       The size of the special assessment reflected the FDIC's 
     responsibility to maintain adequate resources to cover 
     unforeseen losses. Increased borrowing authority, however, 
     would give the FDIC flexibility to reduce the size of the 
     recent special assessment, while still maintaining 
     assessments at a level that supports the DIF with industry 
     funding. While the industry would still pay assessments to 
     the DIF to cover projected losses and rebuild the Fund over 
     time, a lower special assessment would mitigate the impact on 
     banks at a time when they need to serve their communities and 
     revitalize the economy.
       In conclusion, the Depositor Protection Act would leave no 
     doubt that the FDIC will have the resources necessary to 
     address future contingencies and seamlessly fulfill the 
     government's commitment to protect insured depositors against 
     loss. I strongly support this legislation and look forward to 
     working with you to enact it into law.
           Sincerely,
                                                   Sheila C. Bair,
     Chairman.
                                  ____

                                         Board of Governors of the


                                       Federal Reserve System,

                                 Washington, DC, February 2, 2009.
     Hon. Christopher J. Dodd,
     Chairman, Committee on Banking, Housing, and Urban Affairs, 
         U.S. Senate, Washington, DC.
       Dear Mr. Chairman: I am writing to join the Secretary of 
     the Treasury in expressing my agreement that the authority of 
     the Federal Deposit Insurance Corporation (FDIC) to borrow 
     from the Treasury Department should be increased to $100 
     billion from its current level of $30 billion. While the FDIC 
     has substantial resources in the Deposit Insurance Fund, the 
     line of credit with the Treasury Department provides an 
     important back-stop to the fund and has not been adjusted 
     since 1991. An increase in the line of credit is a reasonable 
     and prudent step to ensure that the FDIC can effectively meet 
     potential future obligations during periods such as the 
     difficult and uncertain economic climate that we are 
     currently experiencing.
       I also support legislation that would allow the Secretary 
     of the Treasury, in consultation with the Chairman of the 
     Board of Governors of the Federal Reserve System if Congress 
     believes that to be appropriate, to increase the FDIC's line 
     of credit with the Treasury in exigent circumstances. This 
     mechanism would allow the FDIC to respond expeditiously to 
     emergency situations that may involve substantial risk to the 
     financial system.
       The Federal Reserve would be happy to work with your staff 
     on this matter, as well as on the other amendments under 
     consideration that would allow the FDIC more flexibility in 
     the timing and scope of assessments that it charges to 
     recover costs to the Deposit Insurance Fund in the event that 
     the systemic risk exception in the Federal Deposit Insurance 
     Act has been invoked.
           Sincerely,
                                                  Ben S. Bernanke,
     Chairman.
                                  ____



                                   Department of the Treasury,

                                 Washington, DC, February 2, 2009.
     Hon. Christopher J. Dodd,
     Chairman, Committee on Banking, Housing & Urban Affairs, U.S. 
         Senate, Washington, DC.
       Dear Mr. Chairman: I am writing to express my support for 
     the Federal Deposit Insurance Corporation's (FDIC) current 
     request to increase its permanent statutory borrowing 
     authority under its line of credit with the Treasury 
     Department from $30 billion to $100 billion. Since the last 
     increase in that authority in 1991, the banking industry's 
     assets have tripled. More importantly, the financial and 
     credit markets continue to be under acute stress, and the 
     level of thrift and bank failures has been rising. Although 
     the FDIC's Deposit Insurance Fund remains substantial at $35 
     billion, and the FDIC has never needed to tap the existing 
     line of credit with the Treasury Department in the past, the 
     proposed increase in the limit is a reasonable and prudent 
     step to ensure that the FDIC can effectively meet any 
     potential future. obligations.
       The Treasury Department also supports the FDIC's request to 
     make future adjustments to the line of credit based on 
     exigent circumstances, but recommends that such future 
     adjustments require the concurrence of both the Secretary of 
     the Treasury and the Chairman of the Board of Governors of 
     the Federal Reserve System. This future adjustment mechanism 
     would provide an additional layer of protection for insured 
     depositors and enhance the confidence of financial markets 
     during this turbulent period.
       The Treasury Department also supports the FDIC having 
     authority to determine the time period for recovering any 
     loss to the insurance fund resulting from actions taken after 
     a systemic risk determination by the Secretary of the 
     Treasury.
       I hope that you find our views useful in the Committee's 
     consideration of the FDIC's request. Thank you for the 
     opportunity to share these views.
           Sincerely,
                                              Timothy F. Geithner,
     Secretary of the Treasury.

                          ____________________