[Congressional Record Volume 155, Number 114 (Monday, July 27, 2009)]
[Senate]
[Pages S8110-S8121]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 ENERGY AND WATER DEVELOPMENT AND RELATED AGENCIES APPROPRIATIONS ACT, 
                                  2010

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to the consideration of H.R. 3183, which the clerk 
will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 3183) making appropriations for energy and 
     water development and related agencies for the fiscal year 
     ending September 30, 2010, and for other purposes.

  The ACTING PRESIDENT pro tempore. The Senator from North Dakota.


                           amendment No. 1813

                (Purpose: In the nature of a substitute)

  Mr. DORGAN. Mr. President, I call up the substitute amendment to H.R. 
3183, which is at the desk.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from North Dakota [Mr. Dorgan] proposes an 
     amendment numbered 1813.

  Mr. DORGAN. Mr. President, I ask unanimous consent to dispense with 
the reading of the substitute amendment.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. DORGAN. Mr. President, this is the Energy and Water Development 
Appropriations Subcommittee bill that I bring to the floor this week 
with my colleague, Senator Bennett, from Utah. I am chairman of the 
subcommittee, Senator Bennett is the ranking member, and we have worked 
on the bill for some long while.
  On July 9, 2009, by a vote of 30 to 0, the committee recommended the 
bill,

[[Page S8111]]

as amended, be reported to the Senate. That is, the full Appropriations 
Committee has recommended this bill, on a bipartisan basis, without 
objection, 30 to 0.
  I want to thank both Chairman Inouye and Vice Chairman Cochran for 
their support of this bill, and I want to especially thank Senator 
Bennett for his work with me in developing the legislation.
  Let me, perhaps as I begin rather than end, thank the staff of the 
subcommittee: Scott O'Malia, on the minority side; Doug Clapp, Roger 
Cockrell, Barry Gaffney, Franz Wuerfmannsdobler, and Molly Barackman.
  There are many staff on both sides who have worked very hard. Putting 
legislation of this type together is not easy. We are working with 
limited resources, at a time when we have relatively difficult 
circumstances, to try to deal with Federal budget deficits and other 
issues, but we have put a bill together that has garnered bipartisan 
support.
  The allocation for this bill is just under $34.3 billion. With score 
keeping adjustments, it comes down to about $33.75 billion. The total 
funding for our bill is 1.8 percent less than the President's budget 
request and just 1.4 percent over the regular energy and water bill of 
2009. That means there is a very modest increase for the programs in 
this legislation.
  Let me say generally this legislation deals with the energy and the 
water programs across the country. Energy and water are very important 
to this country's long-term future. What we are working to support is 
jobs and the economic health of our country as well as an adequate 
energy supply dealing. These energy challenges we face from being 
overly dependent on foreign oil doing something about climate change 
require action. We are dealing with energy accounts in this bill that 
are very important for the country.
  We have tried to make funding determinations about them that we think 
move this country in the right direction and help make us less 
dependent on foreign sources of oil. That means that we have, in 
related authorizing legislation, actually expanded drilling and the 
determination to try to find additional supply in this country. Fossil 
energy from coal, oil and natural gas is going to continue to be used 
in the future. But we need to use them differently.
  This legislation includes opportunities to do a range of activities 
that I believe will be in the country's best interests. Working with 
Senator Bennett, we know the legislation dealing with energy and water 
require substantially greater resources. We have far more water 
projects underway in this country than we can possibly fund in the 
short term. I believe we have something close to $60 billion of 
unfunded water projects. The Corps of Engineers, and particularly the 
Bureau of Reclamation, especially for western America, are charged with 
funding these projects.
  Then, on the energy side, the accounts dealing with efficiency and 
reliability and a wide range of energy accounts--all of those accounts 
understand and recognize that we do not have unlimited amounts of 
money. Our country has very substantial and growing budget deficits 
because we are in a deep recession.
  My colleague from Oklahoma was speaking as I came to the Chamber. I 
agree with most of what he described with respect to hydraulic 
fracturing. He is describing something that affects our ability to 
continue to produce a domestic supply of oil and natural gas. My 
colleague should know we have had now from both the previous Presidents 
that we zero out the research and development in oil and gas 
development. The current President's budget seeks to cut the oil 
program. My colleague and I have restored the funding for that. One of 
the reasons we have done it is our country leads the world, for 
example, in unconventional and ultra deep water drilling. We need to 
retain program funding to keep that advantage.
  We need to produce more here at home, and we have added the funding 
back. As I indicated, both the previous administration and this 
administration decided not to support the research and development 
funding for oil research and development.
  The description of the shale formations that Senator Inhofe talked 
about earlier remind me that 5 to 10 years ago we could not drill in 
these formations. They are now delivering substantially new resources. 
That energy was not accessible to this country because we didn't have 
the technology and the capability. My colleague described the Bakken 
shale in North Dakota, which I want to describe in a moment. I think it 
is so important for us to have the research and development funding 
which current technology benefitted from in the past. With sustained 
investments, we might have future technology options available as well.
  To go to the previous point, the Bakken shale is a formation 100 feet 
thick, and it is 10,000 feet underground. To drill through that 100-
foot-thick seam, they have divided it into thirds--top third, middle 
third, and bottom third. They go down two miles with one drilling rig, 
10,000 feet down, searching for the middle third of a seam of shale 
that is 100 feet thick. They do a big curve when they get down two 
miles, then they go out two miles. The same drilling rig, goes down two 
miles then makes a large curve and goes out two miles, following the 
middle third of a seam a hundred feet thick called the Bakken shale.
  A few years ago I asked the U.S. Geological Survey to do an 
assessment of what is recoverable in the Bakken shale. They came back 
with their estimate after a 2-year study, saying there are 4.3 billion 
barrels of recoverable oil using today's technology. It is the largest 
assessment of recoverable oil in the lower 48 States ever made in the 
history of our country.
  None of that was available to us a decade ago. It was there, but it 
was not available to us. How do we get that oil? When they drill down 
with a drilling rig, it takes about 35 days to drill that hole, then 
fracture it under high pressure--hydraulic fracture, they call it. 
After that, they tear down that rig and move it away a ways and drill 
another hole--every 35 days. The hydraulic fracture allows that rock 
formation to be fractured so that the oil drips and then is extracted 
from the well. They are pulling up oil out of those wells, in some 
cases 2,000 barrels a day. The key to that is, No. 1, have they carried 
out the research and development so that we lead the world in the 
ability to do that kind of very sophisticated exploration. We continue 
to put that funding in this bill and have always had it in this 
legislation. That is what has opened up this unbelievable opportunity.
  The second half of it, as my colleague described, is not something we 
are doing in this bill, but the ability to continue hydraulic 
fracturing, decade after decade, I think for nearly 50 years, I am not 
aware of any evidence that there is any contamination of groundwater 
with hydraulic fracturing when companies have followed the appropriate 
guidelines and regulations.
  I have been describing one small part of what Senator Bennett and I 
have done with respect to increasing our domestic energy needs in this 
bill.
  We also want to encourage the development of renewable energy. We 
have done a lot of things in this legislation to do that. We want to 
encourage the ability to use our most abundant resources, such as coal, 
but we must use them differently. That means, if you are going to have 
a lower carbon future you have to decarbonize the use of coal. So we 
need to make substantial investments to be able to decarbonize the use 
of coal.
  I think we can do that. Some say let's give up on it. I say let's 
find a way to use our most abundant resource by decarbonizing it so 
that we can move to a low carbon future to protect our planet.
  We are doing a lot of things in this legislation that I think move 
this country in the right direction for a better and a more secure 
energy future. When I talk about energy and say that nearly 70 percent 
of our oil now comes from outside of our country, I think most people 
would look at that and say that makes us vulnerable. That is an energy 
security issue. It is also a national security issue. If, God forbid, 
somehow, some way, someday, someone shuts off the supply of foreign oil 
to our country, this economy of ours would be flat on its back. So I 
think everyone--the previous administration, this administration--
believes we must be less dependent on foreign energy.

[[Page S8112]]

  The other thing that is important to understand is, although about 70 
percent of our oil comes from outside our country, nearly 70 percent of 
the oil is used in our transportation fleet. We are doing things in 
this appropriations bill that moves us toward a different kind of 
transportation fleet, an electric-drive fleet, for example. If we are 
using 70 percent of our oil for transportation in this country, how do 
we make us less dependent on foreign oil? Convert; move to something 
else.
  We have funding in this legislation and we had funding in the 
Economic Recovery Program for battery technology and for a whole series 
of things that help accelerate the movement toward an electronic 
transportation system.
  All of these things are things we can do. It is only a matter of 
establishing public policy that encourages it, public policy that is 
supportive of the direction we want to go.
  I am going to be describing in some detail some of the accounts. I 
have talked about the energy piece of this a bit. We have programs in 
here for electricity, fossil energy, energy efficiency and renewable 
energy--small little things that people don't think much about.
  Energy efficiency: Almost everything we use these days--a 
refrigerator, a dishwasher, an air conditioner--all of the appliances 
are much more efficient than they have ever been. I recall some years 
ago when I was supporting and pushing something called a SEER 13 
standard for air conditioners--a SEER 13 standard. You would have 
thought we were trying to bankrupt the country by insisting on a much 
higher standard of energy efficiency for air conditioners. We have 
gotten to SEER 13 and are looking beyond that now, but we have pushed 
standards so that when you put a new refrigerator in your kitchen these 
days it uses so much less electricity because it is so much more 
efficient.
  I recognize--someone told me this a while back--yes, we are putting 
these unbelievably efficient refrigerators in kitchens, and then they 
take the old refrigerator and put it in the garage to store beer 
and soda. I recognize we need to get rid of those old refrigerators, 
perhaps, but it is people's right to move them into the garage.

  My point is, these smaller issues we are funding, energy efficiency 
standards for appliances are very important. When we get up in the 
morning we flick a switch and a light goes on. We turn on an electric 
razor and never think much about what makes it go. We plug it into a 
wall. We go down and put something in the toaster and the bread toasts 
because there is electricity. We put a key in the automobile, and we 
drive off to work.
  As Dr. Chu says, 2,000 years ago, normally when you would go look for 
food someplace, 2000 years ago you would get on one horse and go look 
for something to eat. Now, of course, we get in modern conveniences and 
we take 240 horses to go to the 7-Eleven or grocery store. That is the 
way our engines work and use energy.
  But we are required now to be smarter and use energy in a different 
way. For a wide range of accounts, my colleague Senator Bennett and I 
will begin describing some of these accounts in more detail in between 
other presentations. With the funding in this legislation, we are 
trying to change the way we use energy: Develop a more abundant supply 
of energy, including changing the way our vehicle fleet is powered. One 
issue with respect to the transportation fleet is moving toward a 
hydrogen and fuel cell future, I think a future beyond electric drive. 
Still, hydrogen is everywhere; it is ubiquitous. I believe a hydrogen 
fuel cell future is something our children and grandchildren will 
likely see realized and will be very important to this country.
  The administration, in its budget request for this fiscal year to the 
Congress decided it would zero out 189 existing contracts in hydrogen 
and fuel cell program. We included the money again because we don't 
think that is wise to cut ongoing work.
  I agree in the short term we are going to move toward an electric 
drive transportation system, but, in the longer term, we need to 
continue the research toward hydrogen and fuel cells, and we included 
that money in this bill.
  Let me turn for a moment--I am going to come back to some energy 
issues a little later, after Senator Bennett talks about this bill as 
well. I want to talk about water, because this bill, after all, is also 
about water. As all of us who have studied history know, water is the 
subject of great controversy. Water is very important. So many things 
related to development and jobs in this country relates to accessible 
water.
  We have issues in this bill dealing with the Corps of Engineers and 
the Interior Department's Bureau of Reclamation with respect to water. 
These address storing water, moving water, dredging water in ports and 
channels so that commerce can occur, and much more. In some cases, we 
must address not having enough water or too much water. We have a lot 
of issues.
  As I indicated earlier, we have far more water projects than we can 
possibly fund. Senator Bennett and I decided we simply could not fund 
what are called new starts in construction and investigations this 
year. We hope to do that next year, but we could not do it this year. 
We didn't have the money. We think it is far better to continue funding 
for existing projects and try to complete some of the projects underway 
and then proceed with new starts next year. We had 92 requests for new 
projects starts. We have a $60 billion backlog and 92 requests, some of 
which came from the President. We believed we could not do it. I wish 
we could, but we could not do it.
  I also want to make a point that there are, in this legislation 
especially, legislatively-directed proposals, that is the Congress 
itself directs certain funding. The President sent us proposals, 
particularly on water projects--energy projects as well, but especially 
water projects. He requested earmarked funding. In other words, the 
President says, all right, here is what I want you to have for water. 
These are my Presidential earmarks and how I believe you should spend 
the water money.
  Some of them made a lot of sense. Some of them did not. Senator 
Bennett and I also included, in this legislation perhaps more than 
other legislation, legislative-directed funding on the amount of 
funding we believed should go to projects.
  Because, frankly, I think perhaps Members of Congress have a much 
better idea of what are the water needs more than the Corps of 
Engineers, the Bureau of Reclamation, Office of Management and Budget, 
or the White House. They know which projects will benefit their State's 
commerce.
  So this subcommittee, going back many decades, has had a tradition of 
legislatively-directed funding toward the highest priorities, 
particularly in water projects. That makes a lot of sense to me. I 
assume we may well have some folks come and decide that some of them do 
not have merit.
  It is important to discuss the individual programs for individual 
legislatively-directed amounts, and we will do that when necessary. But 
I did wish to say once again that we received a lot of recommendations 
from the President for earmarking the funding for various projects, and 
we have included many of these. We have also included projects that 
were recommended by the Members of Congress that were well underway.
  I have other things to discuss, but let me yield the floor because I 
know my colleague, Senator Bennett, will want to describe some of this 
bill as well.
  Let me close as I opened by saying it is a pleasure to work with 
Senator Bennett on these issues. These do represent investments in our 
country. Some things are spent and you never get it back, it is just 
spending. But when you build water projects or invest in the energy 
further such as through this bill, then it represents investments in 
the country's future that will provide very substantial dividends for 
the country for a long time to come.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. BENNETT. Mr. President, I appreciate the remarks of my chairman, 
Senator Dorgan. Even more, I appreciate the hard work he has put in. 
The level of cooperation between the two of us and between our two 
staffs is as he has described it. This is a truly bipartisan effort, 
aimed at trying to solve the problems we face. One demonstration of the 
fact is that we have, in a bipartisan fashion, come in with a number 
significantly below that which the

[[Page S8113]]

President requested. If it had been a single partisan effort, I am 
assuming it would have been responsive entirely to the President's 
request.
  As Senator Dorgan has indicated, we have a number of Member-directed 
items of spending. When people say: Well, where do you get the money 
for that? The answer is, we have canceled the President's directed 
orders of spending.
  I agree with Senator Dorgan that Members in these areas are closer to 
the people, closer to the problems, and understand them a little better 
than the folks downtown.
  I recommend passage of the bill to my colleagues. I am delighted with 
the prospect that it is highly likely this will be done prior to 
October 1, the start of the fiscal year. That is a goal that has not 
been achieved in decades and a further tribute to the leadership of 
Senator Dorgan that we are on that path.
  As I have said, the bill provides $643 million below the President's 
request. This is the number Senator Dorgan cited, the $34.271 billion, 
but it is $476 million above current year levels. One of the things we 
did that helps us come in below the President's request was focus on 
the fact that the stimulus package that passed earlier this year put a 
great deal of money into these accounts. We did not want to ignore the 
fact that they had that money from the stimulus bill in coming up with 
our own figures.
  The committee, as Senator Dorgan said, has said no new starts for the 
Corps of Engineers. I repeat that and reemphasize that because many of 
the complaints that I think we are going to get on the floor about 
Member-directed spending are for projects in the Corps of Engineers.
  They will say: Well, you are calling for earmarks. You use the dread 
word for this project and that project. Because we have no new starts, 
every project we are calling for is an ongoing project. So that if we 
were to cancel it, it would undoubtedly end up costing more money 
rather than would be saved if the earmark were to be struck down.
  For the Bureau of Reclamation, we are $55 million below fiscal 2009 
levels. Pardon me. The request is $55 million below the fiscal 2009 
level. The committee provides an additional $110 million to the Bureau. 
As Senator Dorgan has said, this is the tremendous backlog of 
underfunded projects. Let us take a sober lesson from what happens when 
we do not proceed with the proper maintenance in this area.
  In my own State of Utah, a privately owned irrigation canal broke and 
flooded the community of Logan, UT, and tragically, in the process, 
took the lives of two young children and their mother who were 
overwhelmed as a result. This is a reminder to us that we have a 
responsibility to keep this fund going because the human cost can be 
significant.
  These types of accidents are only avoidable if we are vigilant in 
maintaining the infrastructure and making the appropriate investments. 
With respect to the Department of Energy, the committee recommends 
$27.4 billion which is $1 billion below the President's request.
  Again, this is a demonstration of the fact that we are attempting to 
be good stewards, that we are paying attention to the fact that the 
Department of Energy was already the beneficiary of over $45 billion in 
supplemental and stimulus funding in fiscal 2009.
  Not all of that will be spent in this fiscal year, so that is a 
little bit of an overstatement of how much they will have to offset. 
But looking at the amount they had from the stimulus package, we felt 
we were appropriate in coming in $1 billion below the President's 
request.
  We do recommend an additional $100 million for Nuclear Power 2010 in 
order to complete this project. The bill restores $50 million funding 
for the Integrated University Program and Research and Reactor 
Facilities account to support nuclear engineering and research and 
training.
  That was eliminated in the budget request. I do that partly because I 
believe in it. I am joined with Senator Dorgan in doing it and also 
because, in my new assignment, I am taking the place of Senator 
Domenici, and he will come back and haunt us both if we are not 
appropriately supportive of nuclear power. His great work in that area 
is something I think we should carry on.
  There are other issues the Senator from North Dakota has already 
mentioned that I will not touch on as we go along because I do not want 
to be redundant. We do provide an increase in funding for the Office of 
Science, $127 million over the current year levels. I think that is 
essential to a sustained investment in important scientific facilities 
that we have throughout the country.
  Let's talk about cleanup. There are many Members of the Senate in 
States that support a strong environmental cleanup program, and the 
request reduced cleanup funding by over $200 million from current year 
levels. Well, we believe the faster we can move on cleanup, the cheaper 
it will be over the long term because contractors are out of work now. 
They are anxious to get back to work and they will make low bids and 
take advantage of that situation.
  We recommend $350 million in additional funding for both defense and 
nondefense cleanups. Again, there is such an activity going on in my 
State, and I know that moving ahead and having the funding available 
now will save us significant amounts long term. So funding has been 
added for cleanup activities at DOE facilities located in South 
Carolina, Idaho, Washington, New York, Illinois, Kentucky, New Mexico, 
and California.
  The committee has also restored critical funding in our national 
security sites, which was reduced in the President's budget request. An 
additional $83 million was added to the weapons account to invest in 
critical infrastructure and science facilities.
  We are attempting to highlight what I consider to be the failure of 
this administration to address fully spent nuclear fuel and defense 
waste inventory in this country. Consistent with the President's 
request, a minimum level of funding has been provided to sustain the 
NRC license review process of the Yucca Mountain Project.
  The Secretary of Energy has determined he will convene a blue ribbon 
panel of advisers to recommend other disposal options. But while the 
administration is considering these options, ratepayers across the 
country are required to pay $800 million annually to the nuclear waste 
fund to address spent fuel solutions.

  CBO estimates that by the end of the year the unspent balance in this 
trust fund will be $23.8 billion. The committee has included language 
directing the Secretary to conduct an evaluation of the sufficiency of 
the fund and suspend the annual collection from ratepayers until he has 
a strategy to address the issue of spent fuel inventory.
  Another problem that has arisen that we have dealt with has to do 
with the funding of pensions. We have provided the Secretary the 
authority to transfer funding within the Department to mitigate the 
impact to specific programs. The environmental cleanup mission has been 
hardest hit by pension shortfalls. The committee has not included any 
of the proposed budget gimmicks included in the request, and we have 
rejected a new tax on uranium fuel to pay for the cleanup.
  With that, I think I have covered the highlights. I am sure there is 
more the chairman will talk about. I will listen to what he has to say. 
If there is any pet project I think needs to be highlighted, I will 
rise to my feet again. But I wish to summarize that the committee has 
not included funding for new starts for either Members of this body or 
for the President. The funding is dedicated to the completion of 
ongoing projects. We have reduced the amount of Member-directed 
spending by 8 percent from previous years as we hear the complaint some 
people have with respect to that process.
  We have worked hard to rebalance the administration's request to 
ensure that investment in the water infrastructure is sufficient. We 
recognize that we could not accommodate all the needs across the 
country, so we focused our effort on ongoing projects and forgoing new 
starts.
  I believe this budget strikes an appropriate balance and I recommend 
its adoption.
  The ACTING PRESIDENT pro tempore. The Senator from Hawaii is 
recognized.
  Mr. INOUYE. Mr. President, today the Senate begins consideration of 
its third appropriations bill for fiscal year

[[Page S8114]]

2010. The bill before the Senate provides funding for the Department of 
Energy, the Army Corps of Engineers and for related agencies. The 
funding in the bill totals $33.75 billion. This is nearly $650 million 
lower than the administration requested.
  As we begin our debate on this bill, I urge my colleagues not to 
delay action on this measure. The Senate will only be in session for 2 
more weeks prior to the August recess. The Appropriations Committee has 
reported seven bills which have already passed the House and are 
awaiting Senate action. We need to get this bill passed so that we can 
move on to the other appropriations bills that are ready for 
consideration. Passing appropriations bills and providing the funding 
essential to run our Federal Government is one of the most important 
duties of this Senate. We need to act responsibly and move this 
legislation.
  All Senators should have an interest in seeing this bill passed. It 
provides critical funding for our nation's waterways, for safeguarding 
our nuclear power industry, and for programs to improve energy usage, 
conservation and discovery. I know of very little controversy 
associated with this measure. I would ask any Member who is interested 
in amending this bill to come to the floor today to offer any 
amendment.
  I am very grateful to Chairman Dorgan and Ranking Member Bennett for 
their hard work on this measure. The committee strongly endorsed the 
recommendations in this bill and passed the measure unanimously. I 
believe this bill deserves the support of all my colleagues. I urge all 
Members of the Senate to work with the managers and help us attain 
quick passage.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from North Dakota.
  Mr. DORGAN. Madam President, a couple of additional points:
  No. 1, the administration's budget to the Congress for this year did 
recommend an increase in Corps of Engineers funding for water issues. 
They should be complimented for that. That is a step forward. We have 
seen relatively flat and underfunded budgets for the Corps of Engineers 
in recent years. It is encouraging. We added to it, of course, but the 
investment needed in major water projects to be completed is very 
important. I appreciate the administration's decision to increase, at 
long last, the recommendations there.
  No. 2, my colleague, Senator Bennett, mentioned Yucca Mountain. I 
expect that will be mentioned more than once during this discussion in 
the next day or so. We are going to see the building of some additional 
nuclear power plants in this country. The reason is pretty obvious: 
Once built, nuclear power plants do not emit CO2 and 
therefore do not contribute to the warming of the planet. We are 
beginning to see additional activity. Companies are preparing license 
applications now.
  Senator Bennett described the issue of Yucca Mountain. I do want to 
make a point about that because it is important. I didn't come to the 
Congress with a strong feeling about building additional nuclear power 
plants. I have, with my colleague, increased some funding for loan 
guarantees for nuclear power plants in a previous appropriations bill 
because I come down on the side of doing everything, and doing it as 
best we can, to address this country's energy challenges. They are 
significant and require building some additional nuclear power 
capacity.
  This President campaigned last year against opening Yucca Mountain. 
It was not a surprise to the American people that he would at this 
juncture take the position that Yucca is not the place for a permanent 
repository for high level waste materials. The Secretary of Energy and 
the administration have recognized that, not proceeding with opening 
Yucca Mountain, does not mean we don't need an intellectual framework 
for nuclear waste. They have indicated and committed themselves to 
that, the development of an alternative framework for how we address 
the issue of waste. We have to do that because, in order to build 
plants, we have to establish waste confidence. I am convinced the 
administration is doing the right thing in the sense that they have 
said we don't want to open Yucca, but they are saying there has to be 
an alternative. We are committed to trying to find a solution and 
explore the alternatives with a blue ribbon commission.
  I wish to mention the National Laboratories. This bill funds our 
national science, energy, and weapons laboratories. These laboratories 
are the crown jewels of our country's research capability. We used to 
have the Bell Labs, and we had laboratories that were world renowned, 
world class, that didn't have anything comparable in the world. The 
Bell Labs largely don't exist at this point. Much of our capability in 
science for research and technology exists in these science labs we 
fund in this bill. I am determined to find ways to make certain those 
best and brightest scientists and engineers working on the future of 
tomorrow and the new technologies for tomorrow at the national science 
laboratories have some feeling of security about their future. The last 
thing we should want is to see the roller-coaster approach to jobs at 
our National Laboratories and our science labs.
  We had a hearing some while ago in our subcommittee on the issue of 
how to continue to use coal in the future. That leads to the question 
of carbon capture and sequestration. I held a hearing in our 
subcommittee on carbon capture and beneficial use. One of the witnesses 
from one of our laboratories, Margie Tatro from Sandia National 
Laboratory, talked about what they are working on. It was breathtaking. 
We have this giant problem related to using coal, but it is not an 
insurmountable problem. She talked about the work they are doing with 
respect to concentrated solar power to be used in a heat engine to take 
CO2 in on one side of the engine and water in on the other 
side. They fracture the molecules and, through thermal chemical 
dynamics, they create methane gas from the air. I don't know exactly 
where all this goes.
  Deep in our laboratories are some of the brightest people working on 
these issues. We will solve some very vexing and challenging energy 
issues through research and development programs. I look at what we are 
doing in those areas for energy efficiency and renewable energy such as 
for hydrogen, biomass and biorefineries, solar energy, wind energy, 
geothermal energy, vehicle technologies, building technologies, 
industrial technology, weatherization, State energy programs, advanced 
battery manufacturing, and more.
  All of these issues are investments in the country's future and will, 
no doubt in my mind, unlock the mysteries of science to give us the 
capability to do things we did not dream possible. That opens up the 
opportunity to find new sources of energy, to move us way from this 
unbelievable dependence on foreign oil, to move toward different 
constructs in building efficiency, appliances, and new vehicles. That 
solves a number of things, allowing us to produce more energy, more 
renewable energy, more fossil energy, but it also allows us to conserve 
much more because we are prodigious wasters of energy.
  I didn't mention one other area of electricity--and it goes with 
conservation--incorporating smart grid technologies. We will in the 
future see substantial amounts of smart metering in homes that allows 
people to change very substantially the way they use electricity in 
their homes. They have not had, up until this point, that capability, 
but the capability, because of the research going on and the 
demonstration programs, some of which we are funding, can increase all 
across the country in the future. That, too, will invest in making us 
less dependent on foreign oil.
  All of these things play a role in what we are trying to do.
  In the electric delivery and energy reliability portion of our bill, 
we have programs for clean energy transmission and reliability, smart 
grid, cyber-security for energy delivery systems. They are examples of 
a wide range of investments in all of these areas that will make this a 
better country and advance our energy and water interests.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.

[[Page S8115]]

  Mr. DORGAN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   In Memoriam: William Proctor Jones

  Mr. DORGAN. Madam President, I rise to make a statement in honor and 
in memory of William Proctor Jones. He died three weeks ago on July 7, 
the day before we actually wrote and marked up this bill in 
subcommittee.
  Proctor Jones was a longtime staff director of this subcommittee. His 
death is a great sorrow for our members and staff who worked with him. 
His life was a great blessing for this country.
  He first came to work in the Senate in April of 1961. He went to work 
for his home State senator, Richard Russell of Georgia. Proctor moved 
to the Appropriations Committee in 1970 and worked there 27 years until 
1997. Since 1973 and beyond and for the majority of his time on the 
committee, Proctor served as staff director of the Energy and Water 
Subcommittee.
  For decades, as this bill was brought to the floor of the Senate, 
Proctor Jones was sitting on the floor knowing that he played a very 
significant role in putting together the investments this country was 
making in the critical areas of energy and water. Proctor became a very 
close adviser and close personal friend of Senator Bennett Johnston, 
the Energy and Water Subcommittee's longtime chairman.
  For those of us who knew Proctor and relied upon him, he defined the 
very best of the term ``public servant.'' He was tireless in his work. 
He was a master of the budget and the appropriations process and an 
expert in many policy fields this subcommittee has dealt with over the 
years. His service made this country a much better place.
  This country moves forward because a lot of people do a lot of good 
things in common cause to make judgments about what will strengthen 
America. It is often the case that those of us who are elected and 
serve have our names on a piece of legislation or our names on a report 
of a subcommittee such as this, but it is also often the case that some 
very key people who have devoted their lives to good public service 
played a major role in making good legislation happen. William Proctor 
Jones is one of those.
  Today, as we take up the piece of legislation from a subcommittee he 
spent decades working on, I honor his memory and thank him and his 
family in this time of sorrow and thank Proctor Jones for all of the 
work he did for his country.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Madam President, I associate myself and those of all 
minority Members with the comments of the chairman about Proctor Jones. 
I didn't have the opportunity to work with him as closely as others 
have, but the legacy the chairman has described is genuine and real. 
All of us in the Senate, regardless of party, wish to acknowledge that.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DORGAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Madam President, the Senator from Utah and I would ask of 
Senators who have amendments to this legislation that if they wish to 
come now, we would very much like to have amendments offered. Certainly 
the majority leader has wanted to bring appropriations bills to the 
floor of the Senate. The chairman of the Appropriations Committee 
described appropriately, a few minutes ago, the importance of trying to 
get these appropriations bills completed. So working through the full 
committee we are winding our way through.
  Now Senator Reid is bringing them to the floor, and I deeply 
appreciate his determination to do that. It is a marked departure from 
what we were able to do previously. We would like to get individual 
appropriations bills done, get them to conference, have a conference 
with the House, and get them to the President for his signature. That 
is the way the Congress is supposed to work. It is the way 
appropriations bills are supposed to be done.
  We will have amendments, I am sure. We were told someone has prepared 
nearly 20 amendments. But, look, they ought to have that opportunity. 
In the past couple years they did not have that opportunity. That is 
what Senator Reid is doing now, to say: Bring these to the floor. Give 
people an opportunity to take a look at what the Appropriations 
Committee has done. If they disagree, come to the floor with 
amendments, have a discussion, and vote on the amendments. It is 
exactly what we should do.
  It is a problem, however, that we do not have unlimited time. My hope 
is--and I think Senator Bennett's hope is--we could have people come 
over, offer amendments, and we could finish this bill in the next 
couple of days. It would be great to finish it late tomorrow night or 
perhaps Wednesday at the latest. But in order to do that, we would need 
some cooperation. We would very much ask people to tell us what their 
amendments are, come over and file amendments, and come and debate the 
amendments. The point is, we are here and ready, and we very much want 
to get this piece of legislation completed.
  I have described in some respects the urgency of our energy policies 
in this country. Well, the fact is, passing this legislation, and doing 
so now, will give us the opportunity early in the fiscal year to have 
the Department of Energy and the administration develop energy strategy 
based on these investments. For the first time in a long time, we will 
know where we are headed.
  I have always felt we ought to be saying: Look, here is where America 
is headed on energy. Here is what we are going to do on renewable 
energy. Here is what we are going to do on carbon capture and storage. 
Here is where we are headed. You can invest in it. You can count on it, 
believe in it, because this is America's policy. Part of that policy is 
developed through the authorization committees, and no small part is 
developed in what we fund in the Department of Energy. Exactly the same 
is true with respect to water policy.
  Let me make this point as well. This country had an economy that fell 
off a cliff in the first part of October of last year, and we still are 
in a deep recession. In the middle of a very deep recession, a piece of 
legislation that is going to provide the funding, hopefully by October 
1, to proceed ahead building and creating water projects and other 
things puts people to work. It invests in the country's economy in a 
way that puts people to work and provides jobs. That is very important.
  For a lot of reasons, again, I commend the majority leader for 
bringing this to the floor. We will hope for some cooperation. We want 
amendments, if they want to bring amendments to the floor. We want them 
today or beginning in the morning. Senator Bennett and I wish to work 
with our colleagues to try to review amendments. We wish to work with 
them. Perhaps they have some ideas we did not think of. We could add to 
this bill by consent, or others perhaps we can debate and have a vote 
on.
  We want to make that known to our colleagues. We are looking forward 
to completing this bill in the early part or at least no later than 
midweek.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Unanimous Consent Request--S. 370

  Mr. INHOFE. Madam President, I want to spend a little time on a bill 
that has to do with one of the three major interests we are going to 
have during the recess. One of the issues is one I feel very strongly 
about; that is, what is happening right now at Guantanamo Bay. Some 
refer to it as Gitmo. I have some very strong feelings about that.
  I do not know why our President has this obsession that he is going 
to turn loose or bring these detainees, these terrorist detainees, back 
to the United States. If you do that, either to try them or to bring 
them back here, they become magnets for terrorist activity.

[[Page S8116]]

  We have detained about 800 al-Qaida and Taliban combatants at Gitmo. 
We have to understand that a terrorist combatant is someone different 
than you would normally--we are not talking about criminals here. We 
are not talking about even people who represent countries. We are 
talking about terrorist combatants. To date, over 540 have been 
transferred or released, leaving approximately 230 at Gitmo.
  Here is the problem we have. If I were making this talk, as I was, 
about a month ago, I would say we had about 280 detainees at Gitmo. The 
problem is, you cannot get rid of them by asking some country to take 
them because the countries will not do it. You do not want to bring 
them back to the United States because, as I said, that becomes a 
magnet.
  So our President has been, one by one, trying to bring these back, 
putting them in our system for trial here in the United States. It is 
important to understand the rules of evidence are different. If you are 
in a military tribunal, you can dispose of these people. But you cannot 
do it--for example, hearsay evidence is not admissible in the courts in 
the United States. So it would not fit in our Federal system.
  President Obama has ordered the Guantanamo facility be closed. He has 
recently given an extension to that.
  In 2007, the Senate voted 94 to 3 on a nonbinding resolution to block 
detainees from being transferred to the United States. It said: 
Detainees housed at Guantanamo Bay should not be released into the 
American society nor should they be transferred stateside into 
facilities in American communities and neighborhoods.
  Well, that is very specific. In fact, I had the amendment to do that 
on the Defense authorization bill only last week. Quite frankly, it was 
blocked by the Democratic majority.
  On May 20, 2009, the Senate voted 90 to 6--that was my and Senator 
Inouye's language; it was a bipartisan amendment--to prohibit funding 
for the transfer of Gitmo detainees to the United States. We are 
hitting them two different ways. One is, we are saying you cannot bring 
them over here. Second, you cannot try them over here. And now, 
thirdly, we are not going to pay for any relocation of these people.
  Unfortunately, the supplemental appropriations conference deleted 
that provision. That was a provision that passed 90 to 6, authored by 
me, Inhofe, and Senator Inouye, the senior Senator from Hawaii. But 
they took it out. So that means it is not there right now for trials. 
But the law does block funding for permanently transferred detainees 
from Gitmo to the United States for the 2009 budget year, which ends on 
September 30.
  The House Appropriations Committee will vote this week on language 
contained in a manager's amendment proposed by Representative Jerry 
Lewis of California prohibiting the administration from spending any 
money to move prisoners to U.S. soil. Last Thursday, the Senate 
Democrats again blocked an attempt to consider an amendment that would 
have permanently prevented the detainees from being transferred from 
Gitmo. That was my amendment. It was part of the Defense authorization 
bill. When President Barack Obama took office, there was one free bed 
at the supermax prison in Colorado, with a typically long waiting list 
to move high-security prisoners into supermax.
  To understand what this is, the supermax prison is one with the very 
highest level of security, a place where they might argue that you 
could put a terrorist there and that terrorist, regardless of how 
serious he was, is one who would be secure. The problem they are 
overlooking is, if they are located in the United States, they become a 
magnet for terrorism.
  I know President Obama, at one time, was proposing some 17 sites in 
America where we could put these Gitmo detainees. One of those happened 
to be in Fort Sill, in my State of Oklahoma. I went down to Fort Sill 
to look at our prison facility down there. There is a master sergeant--
no, I am sorry, Sergeant Major Carter was her name. She was in charge 
of the prison. That prison was set up as a normal military prison but 
certainly not suitable for detainees, not suitable for terrorists. It 
happens that Sergeant Major Carter--you can call her and ask her about 
this. She had two tours at Gitmo, and she said: Why in the world are 
you guys in Washington and this President trying to close Gitmo? It is 
an asset we need. It is a place where they can be secure. It is a place 
where they have treated them humanely over the years. Well, anyway, so 
when you look at what we have here, there are no places that are 
appropriate.
  Assistant Attorney General David Kris testified at the same hearing 
of the House Armed Services Committee that both civilian and federal 
jails and military prisons are being considered for potential future 
incarceration for prisoners facing criminal prosecution, military 
tribunals or long-term detention without trial, more than 50 have been 
cleared for release, and an administration task force is sorting 
through the remaining 229 prisoners to determine their fate. What we 
are saying is we have already picked the low-hanging fruit. We have 
already taken care of the problem of those individuals who either a 
country won't take back or you can find someplace to put them. But the 
remainder are the real tough guys, the bad guys whom we don't want in 
our society. Government lawyers in both the Obama and the Bush 
administrations have said that an unspecified number of detainees 
should continue to be held without trial, stating that some of the 
evidence against them will be classified or thin, and the government 
fears these most dangerous detainees could be released should they be 
given their day in court; that is, their day in court in the United 
States.
  If you look at the facility they have down there, it is made for this 
type of detainee. It is one that will allow the security of evidence so 
it doesn't threaten other people, and it is something that cannot take 
place in this country.
  Johnson also said the Obama administration has not yet determined 
where it will hold newly captured al-Qaida and Taliban prisoners for 
extended detention after the Guantanamo Bay prison closes, if it should 
close. Of course, my effort is to keep it open. So far the only 
Guantanamo Bay detainee brought to face trial in a U.S. criminal court 
is Ahmed Ghailani. He is the Tanzanian whom we sent to New York and 
faces charges in conjunction with the two bombings. We remember the two 
bombings in Tanzania and Kenya. Federal prosecutors said last Friday 
they no longer plan to hold Mohammed Jawad, who threw a grenade at a 
U.S. convoy in 2002, as a wartime prisoner, a signal that the Obama 
administration intends to bring him to the United States before a 
criminal court.
  Last week, Democratic Members in the House and the Senate said 
Michigan prisons set to close because of the State budget crunch could 
take the high-profile prisoners from Gitmo, creating jobs lost in the 
auto industry.
  Let's stop and think that one through. These are elected 
representatives from the State of Michigan, the two Senators and 
Representative Stupak, who are suggesting that we could put those 
prisoners, these high-level, high-security terrorist detainees in 
prisons in Michigan and that would cause them to have to go through 
there and provide jobs to update the prisons. Let's stop and think that 
one through. Why not just go ahead and do something with the 
individuals who are there, leaving them where they are right now, and 
get into a public works program where at least they could be spending 
that money on roads and highways.
  Let me do this. I have almost given up--in fact, I did give up--
trying to put the language in the Senate Armed Services Committee's 
Defense authorization bill to preclude the President from putting these 
individuals into the United States. There is only one vehicle left. 
That is my Senate bill 370, S. 370. It is a one-page bill. I have 22 
cosponsors. It merely says we cannot pay to transfer any of these 
detainees to the United States, and we are not going to be able to try 
them here. So it is the final answer to this matter.
  Madam President, at this time, I ask unanimous consent that S. 370 be 
brought up for immediate consideration.
  The PRESIDING OFFICER. Is there objection?
  The Senator from North Dakota.
  Mr. DORGAN. Madam President, reserving the right to object, and I 
will object, the Senator from Oklahoma knows that such a unanimous 
consent cannot be entertained at this point. He

[[Page S8117]]

has not consulted with the majority leader who is in charge of 
scheduling legislative matters to come to the floor of the Senate. So 
on behalf of the majority leader, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Oklahoma.
  Mr. INHOFE. Madam President, I would only respond to my very good 
friend from North Dakota--in fact, we were recently talking about how 
in agreement we were on some of these things, the potential we have to 
explore in the United States. I have talked to the leadership to try to 
bring this up and have not been able to do it. I guess you get to the 
point where you are frustrated and you know that two-thirds of the 
American people want to set something in place to keep these terrorists 
from coming into the United States. All I ask is to get my bill up. I 
will be trying to do that in the future.
  I wish to ask the manager of the current bill on the floor, the 
minority manager, if he desires to have the floor for the purpose of 
the consideration of the bill.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Madam President, the Senator from Oklahoma had asked to 
speak in morning business. Senator Bennett and I have no objection to 
that. We are waiting for amendments to be offered. If someone were to 
come and offer an amendment, we would hope the Senator would relinquish 
the floor.
  Mr. INHOFE. I thank the Senator from North Dakota and I assure him 
that if someone comes down with an amendment, I will cease and yield to 
them.


                             Cap and Trade

  In the meantime, there is another subject I wish to speak about. I 
have been doing this now for 10 years every week.
  It is safe to say that at 3:09 a.m., on June 26, most of America was 
asleep. While they slept, Democratic leaders in the House were creating 
a nightmare. In the early morning hours, Speaker Pelosi and her 
deputies were pushing the largest tax increase in American history.
  In the dead of night, with no one watching, they engaged in full-
scale arm twisting, back-room dealing, and outright pork-barreling to 
garner support for a massive bill few, if any, had actually read or 
understood. You have to keep in mind there are about 400 pages of this 
bill that weren't printed until 3 o'clock in the morning of the morning 
the bill was voted on.
  When America awoke, they found Democrats talking about green jobs and 
the new clean green energy economy. They spoke of free markets and 
innovation and energy independence. All of it sounded so appealing. Yet 
none of it was true. That is because Waxman-Markey is full of 
regulations, mandates, bureaucracy, and big government programs. 
Waxman-Markey is, to quote John Dingell, ``a tax, and a great big one'' 
on small businesses, families, and consumers.

  I don't blame the Democrats for selling cap and trade as something it 
is not. This is a political imperative for them because the American 
people now know what cap and trade is and they don't like it.
  According to independent political analyst Charlie Cook:

       Many Democrats getting back to Washington from Independence 
     Day recess reported getting an earful from their constituents 
     over the `energy tax hike' . . .

  Further, Cook noted--and I am quoting Charlie Cook right now:

       The perception is that this is a huge tax increase at a 
     time when people can ill afford one. Hence, Democrats, 
     whether they supported the bill or not, are getting battered, 
     increasing their blood pressure.

  Let me say this. This is an issue we are going to be talking about. I 
have been on the Environment and Public Works Committee since I came to 
the Senate in 1994. I was the chairman of that committee back when the 
Kyoto treaty was considered. At that time, as everyone else, I assumed 
manmade gases, anthropogenic gases, CO2, methane, were 
causing global warming. Now people are careful to say climate change 
and not global warming since we are in about the ninth year of a 
cooling period. But at that time I assumed it was true. That is all 
everybody talked about. Until the Wharton School did a study and the 
question was posed: If the United States were to pass and ratify the 
Kyoto treaty and live by its emissions requirements, how much would it 
cost? The range was between $300 billion and $330 billion a year. It 
was at that point that I decided it would be a good time to look at the 
science behind that and see if, in fact, the science was there.
  We are talking about 10 years ago. After looking at it and studying 
it, we found scientist after scientist who was coming out of the closet 
and saying this thing was started by the United Nations, the 
Intergovernmental Panel on Climate Change, and the reports they give 
are not reports from scientists; they are reports that are from 
policymakers. Consequently, on my Web site, the Web site 
inhofe.senate.gov, I have listed over 700 scientists who were on the 
other side of this issue and now are on the side saying: Wait a minute. 
This is something that is not real, and it certainly is not worth the 
largest tax increase in history.
  I remember when Vice President Al Gore was in office, the Clinton-
Gore administration, and at that time they decided they wanted to come 
out with a report, in order to sell the idea of ratifying the Kyoto 
treaty, that they would come up with a report to say how much good 
could be done, how much the temperature could be lowered over a 50-year 
period of time if all developed countries, all developed nations 
ratified and lived by the emissions requirements, how much would it 
reduce the temperature. The results--and the man's name was Tom 
Quigley. Tom Quigley was the foremost scientist at that time. He said 
it would reduce the temperature over a 50-year period by .07 of 1 
degree Celsius in 50 years. That is not even measurable.
  I wish to inquire if the Senator from Florida wishes to speak as in 
morning business or on this bill?
  Mr. NELSON of Florida. Madam President, morning business.
  Mr. INHOFE. Morning business. Well, I am going to be awhile.
  Anyway, what I would suggest doing is going back and looking at what 
has happened since the Kyoto treaty was considered. In 2005, we had the 
McCain-Lieberman bill. The McCain-Lieberman bill was very similar to 
the Kyoto treaty. It was cap and trade. It was very similar to the 
Warner-Lieberman bill and very similar to what we are looking at today, 
the cap-and-trade bill, which is the Waxman-Markey bill. They are 
essentially the same thing; that is, cap and trade, a very 
sophisticated way to try to regulate greenhouse gases or primarily 
CO2.
  I would suggest that many of the people who were talking about doing 
this in the very beginning were people who were saying: Well, why don't 
you pass a tax on CO2? I would say: If you want to get rid 
of CO2 and be honest and straightforward, go ahead and pass 
a tax and get rid of it. As it turned out, they didn't want to do that 
because that way people would know how much they are being taxed. If 
you have a cap and trade, that is government picking winners and 
losers, and you might be able to make people think they are actually 
not getting a tax increase.
  I wish to quote a few of the people who have weighed in on this 
issue. If you don't believe what I am saying about cap and trade, 
listen to some of the past quotes from members of the Obama 
administration and other proponents of cap and trade. They speak for 
themselves.
  This is what President Obama said prior to the time he was President. 
He said:

       Under my plan of a cap and trade system, electricity prices 
     would necessarily skyrocket . . . Because I'm capping 
     greenhouse gases, coal, power plants, natural gas--you name 
     it--whatever the plants were, whatever the industry was, they 
     would have to retrofit their operations. That will cost 
     money. They will pass that money on to consumers.
  John Dingell:

       Nobody in this country realizes that cap and trade is a 
     tax, and it's a great big one.

  Charlie Rangel said this not too long ago, speaking on cap and trade:

       Whether you call it a tax, everyone agrees that it's going 
     to increase the cost to the consumer.

  Then Peter Orszag, former CBO Director and current White House OMB 
Director, said:

       Under a cap and trade program, firms would not ultimately 
     bear most of the costs of the allowances, but instead would 
     pass

[[Page S8118]]

     them along to their customers in the form of higher prices.

  That is the appointed OMB Director, Peter Orszag, saying that.
  Continuing his quote:

       Such price increases stem from the restriction on emissions 
     and would occur regardless of whether the government sold 
     emission allowances or gave them away. Indeed, the price 
     increases would be essential to the success of a cap and 
     trade program, because they would be the most important 
     mechanism through which businesses and households would be 
     encouraged to make investments and behavioral changes that 
     reduced CO2 emissions.

  He said further:

       The government could either raise $100 by selling 
     allowances and then give that amount in cash to particular 
     businesses and individuals, or it could simply give $100 
     worth of allowances to those businesses and individuals, who 
     could immediately and easily transform the allowances into 
     cash through the secondary market.

  He said further:

       If you didn't auction the [CO2] permits, it 
     would represent the largest corporate welfare program that 
     has ever been enacted in the history of the United States. 
     All of the evidence is that what would occur is that 
     corporate profits would increase by approximately the value 
     of the permits.

  Further, although the direct economic effects of a cap-and-trade 
program described in the previous section would fall disproportionately 
on some industries, on some regions of the country, and on low-income 
households, we had several people testify before the Senate Environment 
and Public Works Committee--and you saw the most notorious one speak 2 
weeks ago, representing the U.S. Black Chamber of Commerce. He was 
testifying how regressive this cap-and-trade tax would be. If you stop 
and think about it, sure, it is true, if you raise necessarily, as they 
have to do, under the House-passed Waxman-Markey cap-and-trade bill--if 
you raise the cost, it is going to be the cost of energy. So you have 
poor families on fixed incomes who still have to heat their homes in 
the winter, so the percentage of their expendible income they use in 
heating their homes would be far greater. So it is regressive. That is 
why he got so emotional when he was here talking about what the cost 
would be to the poor people of America.
  Douglas Elmendorf, Director of the CBO, said that some of the effects 
of a CO2 cap would be similar to those of raising such 
taxes. The higher prices caused by the cap would reduce real wages and 
real returns on capital, which would be like raising marginal tax rates 
on those sources of income.
  All of these people are experts. They work in the government, and 
they work--most of them--in the Obama administration. They are saying 
this would be the largest tax increase in history on the American 
people.
  I think that during the recess--if we ever get to it--which is 
supposed to take place a week from Friday, we will be in a position to 
talk about three major issues. We have already talked about efforts to 
pass some kind of a government-operated health system. I talked about 
Gitmo, the closing of that, which I think there is no justification for 
whatsoever. The other thing is that it is the largest tax increase in 
the history of this country.
  In an interview with Michael Jackson, AutoNation CEO, he said:

       We need more expensive gasoline to change consumer 
     behavior.

  Otherwise, Americans will continue to favor big vehicles no matter 
what kinds of fuel economy standards the government imposes on 
automakers. He added that $4 a gallon ``is a good start.''
  These are people who do want to increase the cost of fuel for an 
agenda, which will not help the environment.
  Alan Mulally, CEO of Ford Motor Company, said:

       Until the consumer is involved, we are not going to make 
     progress in reducing the amount of oil the United States 
     consumes.

  On and on, we have people--I plan to spend time on the floor talking 
about the problems with this because I fear that if you don't do 
anything, we are going to end up passing the largest tax increase in 
the history of America.
  Even the Secretary of Energy, Steven Chu, said:

       Coal is my worst nightmare.

  He also said:

       Somehow we have to figure out how to boost the price of 
     gasoline to the levels in Europe.

  That is the Secretary of Energy for the Obama administration who said 
that.
  He also said:

       What the American family does not want is to pay an 
     increasing fraction of their budget, their precious dollars, 
     for energy costs.

  He said further:

       A cap and trade bill will likely increase the costs of 
     electricity. . . .

  This is the Secretary of Energy under President Obama. He said:

       These costs will be passed on to the consumers. But the 
     issue is, how does it actually--how do we interact in terms 
     with the rest of the world? If other countries don't impose a 
     cost on carbon, then we would be at a disadvantage. . . .We 
     should look at considering duties that would offset that 
     cost.

  Then, of course, the chairman of our committee, Senator Boxer, said:

       The biggest priority is softening the blow on our trade-
     sensitive industries and our consumers. I just want you to 
     know that that's the goal.

  I am glad she is saying that is a goal.
  Senator McCaskill weighed in--and I agree with her--saying:

       We need to be a leader in the world, but we don't want to 
     be a sucker.

  That is a good statement.

       And if we go too far with this, all we're going to do is 
     chase more jobs to China and India, where they've been 
     putting up coal-fired plants every 10 minutes.

  That was Senator McCaskill from Missouri. She is a Democrat. Yet she 
has very strong feelings that this would chase off our jobs to foreign 
countries. She mentioned China and India. They are cranking out two new 
coal-fired plants every week in China.
  Let me do this. Three weeks ago, in our Committee on Environment and 
Public Works--I want to commend the Director of the Environmental 
Protection Agency, Lisa Jackson--I asked her this on the record, on TV: 
If we pass the Waxman-Markey bill as it is written right now, as it 
came over from the House, and it were signed into law by the President, 
what would be the result of that in terms of reducing the amount of 
CO2 in the atmosphere?
  She thought for a minute, and then she said something that surprised 
me: It wouldn't reduce emissions at all.
  In other words, even if we pass this largest tax increase in American 
history on the people, we are still not going to reduce the amount of 
CO2 that goes into the atmosphere. In fact, you could 
argue--and it has been argued--that it would increase it because it 
would chase the manufacturing jobs to other countries. They are 
estimating 9.5 percent of the manufacturing jobs would be sent to China 
and other countries, where they have no emission restrictions, and that 
would have a net increase of CO2.
  With that, I see several colleagues coming to the floor. In deference 
to them, I will yield, but before I yield the floor, let me make one 
last request. I want to do this. I have been concerned--and I don't 
know that the Senator from Florida was here when we were talking about 
Gitmo. I was frustrated when we were unable to get my amendment on the 
Defense authorization bill that would have the effect of keeping Gitmo 
open. The only thing left for me is S. 370.
  At this time, I ask unanimous consent that the Senate proceed to the 
consideration of S. 370.
  The PRESIDING OFFICER. Is there objection?
  Mr. NELSON of Florida. Madam President, on behalf of the majority 
leader, Senator Reid, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Florida is recognized.
  Mr. NELSON of Florida. Madam President, I ask unanimous consent that 
I might speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Tourism in Florida

  Mr. NELSON of Florida. Madam President, most people know that tourism 
is certainly a vital part of my State's economy. I know that many of 
our Florida cities, just like so many cities elsewhere around the 
country, offer some of the finest and most competitive prices on hotels 
and conference facilities. So you can imagine that I was absolutely 
floored when I found out that some Federal agencies are blacklisting 
Florida cities and other cities in the country for travel

[[Page S8119]]

and conferences because they are looked at as a vacation or resort 
destination.
  The hotel industry in Florida is already reeling, it is facing a 
significant decline because of the recession. Orlando hotels are 
filling only about 64 percent of their rooms. That is a drop of 8 
percent from last year. So you can imagine that I was stunned when I 
found out that in a Wall Street Journal article last week they had 
listed Orlando and Las Vegas as cities mentioned in e-mails from the 
Department of Agriculture and the Department of Justice as no-go-to 
destinations.
  Well, what they ought to be looking at is what is most cost-effective 
for the government if it is going to an out-of-town location from 
wherever that particular agency is to have a conference. When you 
compare, for example--I could be talking about any city in Florida and 
many other cities in this country, but let me take Orlando, for 
example. When you compare the cost of a hotel room in Orlando during 
the season with the cost of a hotel room, let's say, in Washington, DC, 
during the season, you will find that the Orlando hotels on average are 
$100 less per night than the other city in that comparison. Likewise, 
if you look at the cost of airfare as a destination, you will find that 
the round-trip airfare to a place such as Orlando is considerably less. 
But some agencies in the Federal Government, because Orlando is looked 
upon as a resort or vacation destination, have gotten so sensitized to 
the fact that we saw the Wall Street bigwigs going haywire, with all 
their perks and all of their extra emoluments, that they want to avoid 
the perception of going to a resort destination.
  I wish it hadn't come to this, but I have had to draft legislation to 
make it illegal for the Federal Government agencies to design travel 
policies that blacklist certain U.S. cities simply because they are 
looked at as destination cities for a lot of tourism. Talk about a 
double whammy in tough economic times when we have seen tourism and 
business travel dropping like a rock.

  It is one thing to avoid nonessential trips for the government to 
save taxpayers money, but it is taking it a little far when it is 
another thing that if it is legitimate travel and you then avoid 
certain cities just because they are where they are.
  My Senate colleague, Senator Martinez, is helping me with this issue, 
and working together we ought to be able to put an end to any such 
practice.
  I certainly hope it is not going to take me having to push through 
this legislation. I am asking the head of the Department of Justice, 
the Attorney General, and the head of the Department of Agriculture, 
the Secretary of Agriculture, if they will dig down into the bowels of 
their organizations and root out this kind of narrow thinking that is 
going on and expressed in those e-mails as reported by the Wall Street 
Journal last Wednesday.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.


                          Sotomayor Nomination

  Mr. SESSIONS. Madam President, tomorrow the Senate Judiciary 
Committee will vote on the nomination of Judge Sonia Sotomayor to serve 
as Associate Justice of the U.S. Supreme Court.
  I thank the nominee and the members of the committee, including our 
Democratic colleagues, and Chairman Leahy, for their efforts throughout 
the process. I appreciate Judge Sotomayor's kind words to us about how 
well the hearings went and her expression of gratitude for the kindness 
and respect she was shown. She is a good person with experience, the 
kind of experience one desires in a nominee, and her personal story is 
certainly inspiring.
  However, based on her record as a judge and her judicial philosophy, 
I have concluded that she should not be confirmed to our Nation's 
highest Court. While differences in style and background are to be 
welcomed on the Court, no one should sit on the Supreme Court, or any 
court, who is not committed to setting aside their personal opinions 
and biases when they render opinions and who is not committed 
faithfully to following the law, whether they like the law or not. 
Impartiality is the ideal of American law. Judges take an oath to 
pursue it, and the American people rightly expect it.
  Judge Sotomayor's speeches and extrajudicial writings represent 
dramatic expressions of an activist view of judging that is contrary to 
that ideal. Judge Sotomayor made speech after speech, year after year, 
setting forth a fully formed judicial philosophy that conflicts with 
the great American tradition of blind justice and fidelity to the law 
as written.
  These speeches also contradict the oath that judges take to ``do 
equal right to the poor and the rich'' and to do so ``impartially'' 
``without respect to persons.'' Under the law, under the Constitution 
and laws of the United States, judges are subordinate to our 
Constitution and laws. This ideal is a high one indeed, and it requires 
a firm personal commitment to objective truth and a belief in the 
meaning of words.
  It has been suggested repeatedly that Judge Sotomayor's words and 
speeches are being taken out of context. I have read her speeches in 
their entirety. Her words are not taken out of context. In fact, when 
one reads the entire speeches, the context makes them worse, not 
better.
  My criticism also should not be considered as a personal attack on 
her as a person because there are a number of intellectuals, judges, 
and legal writers who believe in just such a new way of judging. It is 
quite fashionable among some--those who think they are more realistic 
than naive American citizens, judges, and lawyers who, they believe, 
delude themselves when they think a judge will or can find true facts 
and apply them fairly to the law as written.
  Most Americans and most Senators have heard about Judge Sotomayor's 
speeches, which are clearly outside the mainstream. She has repeatedly 
said, among other things, that judges must judge when ``opinions, 
sympathies and prejudices are appropriate.''
  She accepts that who she is will ``affect the facts I choose to see 
as a judge.''
  It is her belief that ``a Wise Latina woman, with the richness of her 
experiences, would more often than not reach a better conclusion than a 
white male.''
  That there is ``no neutrality'' in judging, just a ``series of 
perspectives.'' She has also said the appellate courts are where policy 
is made.
  These matters have been discussed in some detail by my colleagues and 
at the hearing. Her testimony at the hearing was that these speeches do 
not reflect her philosophy of judging. It is hard for me to accept that 
her words, expressed over a decade in these speeches, do not reflect 
what she actually believes. Indeed, it is an odd position in which to 
find oneself to be at a hearing and say you don't believe what you have 
been saying over the years.
  But Judge Sotomayor has asked, and her supporters have asked, that we 
look at her judicial record which proves, she and her supporters say, 
she is unbiased, and shows that she does not allow personal politics 
and views to influence her decisions. They cite over 3,000 cases she 
has decided, most without controversy.
  They have gone to some length to discuss and defend the process by 
which she decides cases. Indeed, in her opening statement, Judge 
Sotomayor explained: ``[t]he process of judging is enhanced when the 
arguments and concerns of the parties to the litigation are understood 
and acknowledged.''
  She did follow this style in many of the cases that came before her, 
going into detail and even being criticized by some in a Washington 
Post article for ``uncommon detail'' that risked ``overstepping'' the 
bounds of an appellate judge.
  But there is more to the story. Most cases before the courts of 
appeals are fact based and routine and do not raise the kind of serious 
constitutional issues that the Supreme Court hears and decides on a 
regular basis.
  I have reviewed carefully three cases--two decided in the last year, 
and one 3 years ago--that are the kinds of cases the Supreme Court 
deals with regularly. Unfortunately, Judge Sotomayor's handling of 
these cases was not good. They show, first of all, an apparent lack of 
recognition of the importance of the issues raised in these three 
cases.
  In each case, the decisions were extremely short and lacking any real 
legal analysis. These three cases also

[[Page S8120]]

reached erroneous conclusions. They ignore the plain words of the 
Constitution, and they provide a direct look at how the nominee will 
decide many important cases that will come before the Court, if she is 
confirmed, in the decades to come.
  The case of Ricci v. DeStefano came to her three-judge panel of the 
U.S. Court of Appeals for the Second Circuit as an appeal by 18 
firefighters. They had passed a promotion exam, but the exam had been 
thrown out by the city of New Haven because the city thought not enough 
of one group passed. The test was thrown out not because it was an 
unfair test. Indeed, the Supreme Court, when the case got there, found 
that ``there is no genuine dispute that the examinations were job-
related and consistent with business necessity.'' Instead, the city 
threw out the test because the city did not like the racial results. 
Thus, the city discriminated against the firefighters who passed the 
exam because of their race.

  This case is a sensitive case, it is an important case, and we need 
to analyze it carefully. It is noteworthy because the court failed to 
adhere to the simple but plain words of the Constitution.
  In Ricci, Judge Sotomayor's opinion violated the plain constitutional 
command that no one shall be denied ``the equal protection of the 
laws'' because of their race.
  Additionally, the case is subject to criticism because of the manner 
in which it was handled. I want to talk about that a minute. Judge 
Sotomayor did not deal with this important constitutional issue--a very 
important constitutional issue--in a thorough, open, and honest way. 
Without justification and in violation of the rules of the Second 
Circuit, Judge Sotomayor and the panel initially dismissed the case by 
summary order; that is, without any published opinion, without even 
adopting the trial court's opinion. No opinion, no explanation.
  The effect of this summary order was to deal with the case in a way 
that would not require the opinion to be published or even circulated 
among the other judges on the circuit. This was not justifiable. The 
circuit court rule states that summary orders are only appropriate 
where a ``decision is unanimous and each judge of the panel believes 
that no jurisprudential purpose would be served by an opinion. . . .''
  This is a huge constitutional question in this matter. If it were 
not, the Supreme Court would never have taken it up, and it almost 
slipped by. But by chance, other judges on the Second Circuit 
apparently found out about it through news accounts, apparently, and 
began to ask about this case that seemed to be of significant import. 
This resulted in a request by one of the judges--quite unusual when you 
are dealing with a simple summary order--to rehear the case before all 
of the circuit judges. It created a notable dustup. The result was a 
split court with half of the judges asking for a rehearing of the case, 
half against rehearing it, with the deciding vote not to hear the case, 
not to reconsider any of the precedent that may have existed, being 
cast by Judge Sotomayor herself.
  In effect, this was a vote to avoid the full and complete analysis 
this case cried out for from the beginning. It was only during this 
challenge that Judge Sotomayor's panel agreed to decide the case then 
by a per curium opinion, an unsigned opinion, which at least then 
adopted for the first time the lower court's opinion which, frankly, I 
don't think was a very fine opinion for this kind of important case. 
But that became the opinion she adopted.
  Still, the firefighters didn't give up hope. They then sought a 
review by the Supreme Court. Against long odds, the Supreme Court 
agreed to hear their plea. The Court found the ruling erroneous. They 
reversed the Sotomayor court's opinion and rendered a judgment in favor 
of the firefighters. They held that what the city of New Haven did, 
which Judge Sotomayor had approved, was simply wrong.
  At the Judiciary Committee hearing, firefighters Frank Ricci and Ben 
Vargas beautifully described what it meant for them to go from a 
summary dismissal in the Sotomayor court, to a summary judgment victory 
in the Supreme Court. Five years of personal cost, stress, and strain 
suffered by the firefighters were vindicated by an important victory 
for equal justice in the Supreme Court.
  But nothing can erase either the flawed result of Judge Sotomayor's 
panel decision or her panel's apparent attempt to sweep the case under 
the rug.
  Secondly, Judge Sotomayor's treatment of critically important second 
amendment issues that have come before her is equally troubling, for 
the same reasons. She simply got the text of the Constitution wrong and 
did so in such a cursory way that her actions seemed designed to hide 
the significance of the case and the significance of her ruling.
  Last year, in a case of great importance, the Supreme Court held in 
the Heller case that the second amendment, which protects the right of 
``the people to keep and bear Arms,'' provides an individual right--
which I think it clearly does--and that, therefore, the Federal city of 
Washington, DC could not ban its residents from having a handgun in 
their homes for protection. In a footnote, the Supreme Court left open 
the question, not raised in the case, of whether the second amendment 
would bind the States. The question is simple and of fundamental 
importance to the second amendment: Does the Constitution bar States 
and cities from denying their residents the right of gun ownership? 
Pretty big question. Huge question.
  On January 28 of this year, in Maloney v. Cuomo, Judge Sotomayor 
issued an opinion on this very issue. And in this opinion, Judge 
Sotomayor again failed to follow the text of the Constitution. The 
Constitution is plain and simple on this issue: ``. . . the right of 
the people to keep and bear Arms, shall not be infringed.'' And when 
you are talking about the people, you are talking about the right not 
just as it is applied to the Federal Government, I would submit, but 
also to the States and cities. So the Sotomayor panel looked at this 
text and decided that a State or local government may infringe, even 
deny your right.
  Some argue that Judge Sotomayor was bound by precedent in her 
decision and there was old case law that her decision followed. But we 
have looked at this closely and tried to think it through. I would note 
that the situation the court found itself in shortly after the well-
known, tremendously important Heller case had changed, and the Ninth 
Circuit panel, facing the very same issue, disagreed with Judge 
Sotomayor. It found that the second amendment does apply to the States. 
The Seventh Circuit, in a very thorough and carefully written opinion, 
and at its final conclusion, agreed with Judge Sotomayor's panel's 
decision, but it did so in such a way that it demonstrated its 
recognition of the importance of this right and the new situation 
created by the Supreme Court in Heller. This recognition was utterly 
lacking in Judge Sotomayor's very brief opinion.
  While it is argued that Judge Sotomayor relied on precedent, the 
precedent she cited was from the 1800s and does not use the modern test 
for incorporation that the Supreme Court employs in deciding whether 
rights apply to States, something that has been going on for nearly 100 
years. Not only that, but even after the watershed decision by the 
Supreme Court in Heller, she held that it was ``settled law'' that the 
second amendment did not apply to the States and that the right to keep 
and bear arms is not a ``fundamental right.''
  When these points were brought to the Judge's attention during the 
confirmation hearings, she declined to explain herself, claiming that 
she had not recently read the cases on which she so recently relied. 
This is not the level of analysis that the Judiciary Committee has the 
right to expect from a nominee to the U.S. Supreme Court.
  Make no mistake, the effect of this ruling, if not reversed, if it 
stands, will be to eviscerate the second amendment by allowing States 
and cities to ban all guns, as the District of Columbia had basically 
done before the Supreme Court reversed that in Heller. In simple terms, 
in a case of great constitutional importance, Judge Sotomayor, once 
again in an unjustifiably brief opinion, measured in mere paragraphs of 
analysis, gave short shrift to the plain words of the Constitution.
  I will say also that after the Supreme Court rendered its ruling in 
Heller, it had a footnote that said since this is a Federal cities 
case, we don't decide the

[[Page S8121]]

application of the second amendment to the States. But in that 
footnote, the Court made it quite clear that the prior old cases were 
decided before it had adopted a different approach to incorporating 
constitutional rights against the States. It is pretty clear from that 
they have left this matter open. The judge on the Ninth Circuit found 
that the question was an open question after Heller.
  To say it is ``settled law'' that the second amendment does not apply 
to the States is not good, in my view. It is not settled law. I would 
certainly hope, and millions of Americans will be hoping, that the 
Supreme Court will not rewrite the Constitution; rather, they hope they 
will declare that the second amendment does apply to the States.
  Further, she said it was not a fundamental right. That was not a 
phrase used by the other two courts which considered this question, and 
it is gratuitous, in my opinion. The combination of saying it is not a 
fundamental right, which is important to the ultimate analysis, and her 
statement that it is ``settled law'' that the second amendment does not 
apply to the States indicates a lack of appreciation for the importance 
of the second amendment right and a hostility toward the second 
amendment.
  And similarly troubling were the judge's equivocations as to whether 
she would appropriately recuse herself from considering this issue that 
will surely come before her on the Supreme Court. She declined to 
commit to recusing herself if the Seventh or Ninth Circuit cases came 
to the Court, even though those cases raise exactly the same issue as 
the one she decided against gun rights. I would note also that even the 
Heller case--breathtaking to me--decided by a narrow vote of 5-4 that a 
right to keep and bear arms provided in the Constitution explicitly 
applies to bar the city of Washington, DC, from banning all firearms, 
basically.
  In addition to the firefighters case and the second amendment case, 
both of which involve important issues of constitutional law, Judge 
Sotomayor handled, in a similarly cursory manner, a very important 
private property rights case which some have called the most egregious 
property rights decision in this area since the Supreme Court's 
infamous decision in the Kelo case a few years ago.
  Just 3 years ago, after Kelo was decided, which caused quite a storm 
of controversy and a great deal of academic writing, Judge Sotomayor's 
court issued an opinion in which a private property owner found his 
property, on which he planned to build a CVS pharmacy, taken by 
condemnation by the city so that another private developer could build 
a Walgreen's on the same property. The way this condemnation came about 
should send chills down the spines of ordinary Americans, because the 
Walgreen developer, who was pursuing a redevelopment plan supported by 
the city, told the landowner that he could keep his land and build a 
CVS and they wouldn't condemn it. All he had to do was fork over 
$800,000 or half ownership in his business. I look at that and I can 
understand why the landowner thought he was being blackmailed. Judge 
Sotomayor looked at that and called it business as usual--a simple 
negotiation. But it is no negotiation when one party possesses the 
power through the city to take your property, whether you agree or not.
  In another curiously short 2-page opinion, Judge Sotomayor's court 
rejected the landowner's claims, holding that the courtroom doors were 
closed to the landowner because he had brought his claim too late. The 
logic was that the landowner had to bring his claim to court months 
before the extortion occurred. The effect was to violate the 
Constitution. The Constitution plainly states that property ``shall not 
be taken for public use without just compensation.'' The Supreme Court 
has been quite clear that means you can't take private property except 
for public use.
  At Judge Sotomayor's hearing, Professor Ilya Somin, who has written 
extensively on property matters, said this case was the most anti-
property rights case since the infamous Kelo decision decided by a 
split Court a few years ago. Again, plain constitutional protections 
were ignored to the detriment of an individual American citizen who was 
standing up for his constitutional rights.
  So in three cases, contrary to the plain text of the Constitution, 
Judge Sotomayor has ruled against the individual and in favor of the 
State in the face of seemingly clear provisions of the Constitution, 
furthering what can be fairly said to be, in each case, a more liberal 
agenda in America. A liberal or a conservative political belief, a 
Republican or Democratic political belief does not disqualify someone 
from serving on the Supreme Court. What does disqualify is when a judge 
allows such beliefs or ideology or opinions to impact decisions that 
they make in cases.
  Anyone with more than a casual acquaintance with the law would 
instantly know that each of these three cases presented issues of great 
legal importance, and each deserved to be treated with great 
thoughtfulness. Judge Sotomayor surely understood that fact. Yet in 
each instance her decisions were unacceptably short. It seemed to me 
the only consistency in them was that the result favored a more liberal 
approach to government.
  So I have come to announce, regretfully, that I cannot support Judge 
Sotomayor's elevation to our highest Court. She also now sits in a 
lifetime appointment on the Nation's second highest court, the Court of 
Appeals. Her experience, however well rounded, and background, however 
inspirational, are not enough. What matters is her record on the bench 
and her stated judicial philosophy.
  I hope I am wrong, but my best judgment, my decision is that a 
Sotomayor vote on the Court--the Supreme Court--will be another vote 
for the new kind of ideological judging, not the kind of objectivity 
and restraint that have served our legal system in our Nation so well. 
Thus, I am unable to give my consent to this nomination.
  Madam President, I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.

                          ____________________