[Congressional Record Volume 163, Number 18 (Thursday, February 2, 2017)]
[Senate]
[Pages S611-S632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DISAPPROVING A RULE SUBMITTED BY THE DEPARTMENT OF THE INTERIOR
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of H.J. Res. 38, which the clerk will
report.
The bill clerk read as follows:
A joint resolution (H.J. Res. 38) disapproving the rule
submitted by the Department of the Interior known as the
Stream Protection Rule.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 6 hours of debate, equally divided in the usual form.
The Democratic whip.
Nomination of Neil Gorsuch
Mr. DURBIN. Mr. President, I listened carefully this morning to the
statement made by the Republican majority leader, and I was a little
bit curious as to what he was trying to say because he talked about a
judicial nominee who rated unanimously ``well qualified'' by the
American Bar Association, who received kudos from Republicans and
Democrats alike, including Members of the Senate, who went
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through the Senate without a hitch, and then he couldn't understand why
there would be more questions asked now for another appointment.
I was puzzled. I thought he was talking about Merrick Garland. We
remember him, don't we? Merrick Garland was, of course, President
Obama's nominee to fill the vacancy on the Supreme Court.
Senator McConnell this morning said repeatedly: So what has changed
since the first time Judge Gorsuch came before the Senate? Senator
McConnell, what has changed is you, what you did when Merrick Garland's
name was sent up. For the first time ever in the history of the U.S.
Senate, Senator McConnell denied a hearing and a vote to a Presidential
nominee to the Supreme Court. It never happened before, not once in
history. And if you think, well, maybe the Democrats didn't have a
chance to show the same steel will, the same political determination,
in the last year of his Presidency, Ronald Reagan nominated Anthony
Kennedy to fill a vacancy on the Supreme Court. He sent the nomination
down to the Senate. I believe Senator Biden was the chairman of the
Judiciary Committee at the time. There was a Democratic majority. In
the last year of Reagan's Presidency, a so-called lameduck year by
Senator McConnell's description, the Democratic majority in the Senate
gave President Reagan the respect of honoring his constitutional
responsibility to fill the vacancy and sent Anthony Kennedy to serve on
the Supreme Court. So Senator McConnell has asked what has changed. He
has changed. He has changed the Senate.
And here is the good news for him. We are not going to forswear our
own demands that a Presidential nominee for the Supreme Court is
deserving of a hearing and a vote. I said that over and over again when
Merrick Garland was being stonewalled by Senator McConnell and the
Republicans in the Senate. I will say it again. I do believe the
President's nominee has a right to a hearing and a vote. That nominee
also has a responsibility to show us that he is not only qualified to
serve on an important appellate court but to serve with a lifetime
appointment to the highest Court in the land.
On Tuesday night, President Trump announced he would nominate the
Tenth Circuit Court Judge Neil Gorsuch to the Supreme Court. It is
important to put that nomination in context. This is not a run-of-the-
mill nomination. It is an extraordinary time in America's history.
President Trump's announcement was actually supposed to happen today.
Why was it sped up? Why did they hurry it up? Well, because of the
avalanche of criticism being heaped on the Trump administration for
their Executive orders on refugees and immigration. They had to change
the subject. After dozens of legal immigrants were detained at airports
over the weekend solely because of their country of origin, including
children, seniors, interpreters who helped our troops, Federal courts
stepped in to block the President's Executive order.
We have done some research, and we are going to do some more. We
think this is the first time in the history of the United States that a
new President within the first 10 days had an Executive order stopped
in the Federal courts. It shows how controversial that order was, that
the Federal courts would step in with this brand new President and say:
Stop. This has to be weighed as to whether it is legal or
constitutional.
Then on Monday there was the unprecedented firing of an Attorney
General who refused to defend President Trump's unlawful Executive
order in court. President Trump moved up his Supreme Court announcement
to try to change the headlines. In doing so, he made it even more clear
how critical it is that we have an independent judicial system, not a
rubberstamp for the President. It's especially vital at this moment in
our history.
President Trump and his agenda are likely to come before the Supreme
Court eventually. From his violations of the Constitution's emoluments
clause to his unprecedented Executive actions, President Trump is
likely to keep the High Court busy. We need Justices on the Supreme
Court who are truly independent.
President Trump's announcement came 10 months and 15 days after a
White House announcement about another Supreme Court nominee I
mentioned earlier, Judge Merrick Garland, perhaps the most well-
qualified, mainstream, independent nominee to come before the Senate.
Merrick Garland is a son of Illinois, a good man, and an outstanding
judge. Judge Gorsuch himself once described Judge Merrick Garland as
``among the finest lawyers of his generation.''
Merrick Garland was subjected to unprecedented obstruction by Senate
Republicans and Senator McConnell. Republican Senators simply ignored
their constitutional responsibility to consider this nomination, for
political reasons. It was worse than a filibuster.
Do you remember the time when Senator McConnell and a number of
others in the leadership said they would not even meet with the
President's nominee--would not even give him the courtesy of a meeting?
Merrick Garland was the first Supreme Court nominee in our Nation's
history to be denied any consideration by the Senate--no hearing, no
vote--nothing. It was shameful.
I took an oath of office to support and defend the Constitution--
every Senator does--and to bear true faith and allegiance to it. I take
it seriously. Even though my Republican colleagues chose to ignore
their responsibilities when it came to filling that Supreme Court
vacancy in an election year, I know we have a constitutional
responsibility to give Judge Gorsuch a hearing and a vote. I will do my
due diligence as a Senator and give his nomination fair consideration.
That is what the advise and consent responsibility of article I,
section 8 of the Constitution requires.
If my Republican colleagues complain about the process for Judge
Gorsuch, just remember that no one ran a worse process on a Supreme
Court nominee than my Republican colleagues themselves did for Merrick
Garland. They really have no right to complain.
Now that President Trump has nominated Judge Gorsuch, Senators will
embark on a thorough review of his record. He was confirmed to the
Tenth Circuit in 2006, but the level of scrutiny is far higher
for Supreme Court nominees and lifetime appointments to the High Court.
He now has a lengthy judicial record which we will review carefully.
There are parts of his record that already raise questions and
concerns. In recent years, we have watched the Supreme Court transform
into a corporate Court, where all too often cases seem to break for the
big corporations, regularly against the little guy. We need a Supreme
Court that gives the American people a fair shot against corporate
elites, corporate special interests. Judge Gorsuch's record as a judge
and advocate raises concerns as to whether he would hasten that trend
toward a corporate court.
I note that yesterday, Reuters published an article entitled ``As
Private Lawyer, Trump High Court Pick Was Friend to Business.'' The
article said that while Judge Gorsuch was in private practice, he
``often fought on behalf of business interests, including efforts to
curb securities class action lawsuits, experience that could mould his
thinking if he is confirmed as a [Supreme Court] justice.''
During his time on the bench, Judge Gorsuch appears to have a
consistent pattern of favoring companies over workers in cases
involving employment discrimination, worker safety, and other matters.
That is why we need to carefully review his record.
Judge Gorsuch must also answer important questions about his views on
issues of fundamental importance to American people, such as our right
to privacy. Is there anything more important? Almost on a daily basis
we are being asked if we are ready to give up a little more of our
privacy. We know that corporate interests and business interests are
collecting data on us. We can find it every time we log on to the
Internet and there is this cascade of ads on the side of the page
asking us if we want to buy something that we just happened to buy a
couple months ago. We know as well that information is being catalogued
carefully and being used by business interests to promote their
products and to categorize us as Americans. We also believe--I think
there are even some Republicans who
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believe--that individuals have a right to privacy when it comes to the
overreach of the Federal Government and when it comes to critical
decisions so important to our personal lives. At that last
heartbreaking moment when a family member has to decide about the
medical care for someone who is nearing death, is that going to be
subject to a court order or is that going to be a decision made
privately by a family? At that moment when a family faces the pregnancy
of a teenage girl in the household, is that a family decision or is
that a decision where government has the last word? The Supreme Court
decides this, and we need to ask Judge Gorsuch what he thinks and
understand clearly what he says.
We also believe that when it comes to our security--not just our
privacy but our security--the Supreme Court time and again will have
the last word. When it comes to the issue of safety, health, and
environmental protection, where will this new Supreme Court nominee be?
Is he going to bend toward the corporate interests and look the other
way as we face climate change, the pollution of streams, the
contamination of our drinking water, and dangers to our public health?
If he is going to rule consistently for the corporate interest no
matter what, he certainly doesn't, as far as I am concerned, represent
the values we need on the Supreme Court. He needs to answer questions
as well on immigration, privacy, campaign finance, and voting rights.
Like Justice Scalia, Judge Gorsuch professes to be an originalist.
Let me address that for a moment. I have been with the Judiciary
Committee for quite a few years. Time and again, whether it is the
nominee for Attorney General or nominees for the High Court, here is
the cliche we are given: We are just going to apply the rule of law,
whatever the law says. That is what we do. We are originalists. I call
that the robotic view of justice; that if you just plug in the facts, a
computer can tell you the answer because a computer compares it to the
law. Yet we know better. We know judges make decisions based on a
variety of concerns, and they weigh some facts more carefully and give
some facts more strength than others. This rule of law by robotic
justice is a fiction. We know that each nominee, whether from a
Democrat or Republican, brings views to the Court that will decide how
many cases will lean.
Judge Gorsuch has to answer the questions forthrightly. There is a
cottage industry of teaching nominees to give thoughtful nonanswers to
important questions. That will not cut it for me or many of my
colleagues. The American people want honest, candid candidates for the
bench.
We know Judge Gorsuch is the hand-picked nominee by President Trump
and has been lauded by rightwing organizations all over the United
States. They hope he will be a dependable vote in their favor, but he
has to demonstrate--to me and to many other Senators--that he will be
prepared to disappoint the rightwing if the Constitution and law
require it.
Since the confirmation of Justice Clarence Thomas in 1991, Supreme
Court Justices have had to show they can pass the threshold of 60 votes
to get confirmed. I expect nothing less from this nominee. Justice
Elena Kagan, nominated by President Obama, received 63 votes; Justice
Sonya Sotomayor, nominated by President Obama, received 68 votes;
Justice Sam Alito had a cloture vote where he received 72 votes and
subsequently received 58 votes for his actual confirmation; Justice
Roberts, 78 votes; Justice Breyer, 87; Justice Ginsburg, 96.
Judge Gorsuch has a burden to bear. He has to demonstrate that he is
a nominee who will uphold and defend the Constitution for the benefit
of all of us, not just for the advantage of a privileged few.
I take my constitutional responsibility very seriously when it comes
to the Supreme Court. As a member of the Judiciary Committee, I am
reviewing the record and preparing questions to ask the nominee. It is
going to take some time. It usually does, several months. But my
Republican colleagues have kept this seat vacant since February of last
year, so they don't have any basis for arguing and complaining that we
just have to move on this really fast.
I am sorry we are not considering the nomination of Merrick Garland,
an eminently qualified mainstream judge who deserved better treatment
than he received from Senate Republicans and Senator McConnell. No one
deserved the treatment Merrick Garland received.
With my oath to support and defend the Constitution in mind, I will
consider Judge Gorsuch's nomination pursuant to the Senate's role of
advise and consent. I will strive to be thorough, fair, and focused on
the important principles I have discussed today.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from the great State of
Alaska.
Ms. MURKOWSKI. Thank you, Mr. President.
I come to the floor this morning to speak on the resolution of
disapproval that is before us, but I want to make just a few comments
following my colleague, the minority whip.
I am pleased to hear him say that he does look forward to the
opportunity for a hearing on Judge Gorsuch and the opportunity for a
vote. I think we recognize that we have in front of us an individual
who has truly a stellar legal reputation, who has committed himself to
the law in a remarkable way. When he was before this Senate for
confirmation leading up to the Tenth Circuit, he enjoyed very strong
support. I would like to think that on yet further review of this very
strong individual, our colleagues will do the due diligence that is
necessary as we perform our constitutional role of advise and consent.
There is so much that I will respond to at a later time when I go
into more detail about my support for Judge Gorsuch and why I think he
is exactly the type of individual we want to see named to the Supreme
Court, but the comment has been made, not only by my colleague from
Illinois but from others, that somehow or other Judge Gorsuch is for
Big Business and not the little guy. It seems that the criticism is
based on this viewpoint that courts should not defer to Federal agency
interpretations of their own rules, and certainly Big Business is a
frequent challenger of government overreach. But, as the Presiding
Officer and I both know, so are ordinary Americans--people like John
Sturgeon, an Alaskan who took on the Federal Government, took on the
agencies, and took on the Park Service because he was told he could not
use a hovercraft in an area where he had operated one for decades. John
Sturgeon, with the help of a few friends, who did everything from
garage sales to fund his litigation, and with just the generosity out
of their own pockets, took all the way to the Supreme Court the
question of whether or not the Park Service's regulation had exceeded
their legal authority.
I happen to believe very strongly that Judge Gorsuch is clearly on
the right track here when he questions the deference that courts give
to our government agencies. I think most Alaskans would probably agree
with us on this point--that when we are talking about the scales of
justice, they should not be tipped in favor of our Federal agencies.
Again, I am pleased to hear that the minority whip agrees that a
filibuster is not appropriate, is not the way to proceed with this fine
nominee. I look forward to learning more about Judge Gorsuch but also
to be able to share more of my observations at a later point in time.
Mr. President, I wish to join my colleagues in support of H.J. Res.
38 to disapprove and nullify the Department of Interior's so-called
stream protection rule. I wish to begin my comments by thanking
Majority Leader McConnell and Senator Capito of West Virginia for
sponsoring the Senate version of this resolution. I also wish to note
that I am proud to be listed with the Presiding Officer as a cosponsor
on this bipartisan measure with 28 colleagues in support.
Now, by name alone, the stream protection rule may sound pretty
innocent, pretty well intentioned, but as we have heard and as we will
hear throughout this debate, the reality is really different. This
regulation will have severe economic impacts. It will cost us jobs. It
will cost us revenues as well as affordable energy all across our
country.
By way of background, the rule revises longstanding regulations for
coal
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mining under the Surface Mining Control and Reclamation Act, something
around here we simply call SMCRA. Now this rule was finalized in
December of 2016, and it took effect 2 weeks ago, making more than 400
changes to existing regulations.
Now, 400 is just a number that shows the scope of the changes that
the Obama administration has made, but it hardly does justice to the
sweeping substance of the changes or the deliberately opaque process
that the Obama administration followed to make them.
SMCRA is supposed to be an example of cooperative federalism, and
many States have approved programs that allow them to regulate coal
mining within their own borders. But beyond that, the law explicitly
directs the Federal Government to work with States to engage with them
whenever any changes are made. So it requires a high level of
cooperation and collaboration.
Contrary to the collaborative mood intended by SMCRA, the Obama
administration chose to draft the stream protection rule behind closed
doors. It ignored the input and recommendations that were provided by
States and other stakeholders. It subverted the law, basically, to meet
its own policy objectives, which was to keep the coal in the ground.
Ultimately, that is what they wanted to do, and it finalized a rule
that will shut down coal mining in several regions in our country,
including possibly in Alaska, if it is allowed to stand.
Now, the Obama administration claimed that this rule would cost only
$81 million a year and that it did not qualify as what is considered
``economically significant'' as a rule, as a result of that. We will
likely hear that number touted by some of the opponents of this
resolution and probably some who will claim that we are exaggerating
the impact. But I don't think we should forget how the Obama
administration determined that the rule was insignificant in the first
place.
In January of 2011, the Associated Press obtained documents showing
that this rule was projected to eliminate 7,000 direct jobs across the
country. So instead of going back and fixing the rule to avoid these
potential job losses, what happened? The Department of Interior fired
the independent contractor that had made the projection. So,
effectively, we have a situation where the Department essentially cooks
the books instead of fixing the rule. It then took steps to rebrand the
rule, changing the name from the ``stream buffer zone rule'' to the
``stream protection rule'' making the rule sound rather innocuous.
So what the American people should know is that there is a real
discrepancy between the economic impacts the Obama administration
estimated and what other sources project will happen if the rule is
left in place. The projection is that up to 30 percent of the direct
jobs in coal mining will be lost, and domestic coal production will
fall 29 to 65 percent, with anywhere from $15 billion to $29 billion in
lost annual coal resource value and $3.3 billion to $6.5 billion in
lost State and Federal revenue.
So with estimates like this, it is no wonder that this rule has drawn
such strong bipartisan opposition from Alaska all the way to
Appalachia. If you are doubting the statistics--if you are saying,
well, I am hearing certain things on one side and others on another--
you need to talk to people out there. We did that. Instead of just
taking what the Obama administration said, we went out and we asked
people.
Last March, I held a field hearing of the Energy and Natural
Resources Committee, and we held the field hearing up in Fairbanks, AK.
Among our witnesses was a woman by the name of Lorali Simon. The
occupant of the Chair knows her well. She works for Usibelli Coal Mine,
an initially family-owned and operated coal mine--which has been very
successful--and provides coal and power to the residents of the
Interior, and has been for a long time. Ms. Simon spoke about how coal
resources contribute significantly to our State by providing jobs and a
reliable energy source.
She explained that coal is the cheapest source of energy in Interior
Alaska for everything from the local community to our military bases
there and how usability has helped to create business for others like
our Alaska railroad. She also highlighted the broader picture about how
coal strengthens our national and energy security. So those are all
good things, in my book.
But Lorali also testified about the stream protection rule. She said
that, if the rule was finalized as it was proposed--which it has been--
it will likely kill all coal development in Alaska. She also noted that
Congress passed SMCRA, but during the Obama administration, she said:
``We were seeing unelected federal employees violate legislative
intent, which will kill America's coal industry.''
Now, Lorali Simon is not alone in her criticisms or her opposition to
this rule. Our Governor in Alaska, an Independent by the name of
Governor Bill Walker, recently noted that it was one of the worst of
many different actions the Obama administration took to limit resource
development in our State of Alaska.
The attorneys general of 14 different States wrote:
The rule would have a disastrous effect on coal miners,
their families, workers in affected industries, and their
communities. It would also impose very significant costs on
American consumers of electricity, while undermining our
Nation's energy supply.
That is pretty tough--not only a disastrous effect on the coal miners
but the cost on American consumers of electricity, undermining our
Nation's energy supply.
The Interstate Mining Compact Commission described this rule as a
``burdensome and unlawful rule that usurps states' authority as primary
regulators of coal mining as intended by Congress under SMCRA'' while
also seeking to impose ``an unwarranted top-down, one-size-fits-all
approach that does not take into account important regional and
ecological differences.''
Then, finally, the U.S. Chamber of Commerce noted that the rule
``exceeds the Department's authority, will cause significant economic
harm and job losses, and interferes with longstanding and successful
state efforts to protect water quality.''
It is very clear to me that this rule simply cannot stand. We have an
opportunity here to make sure that is the case. So if you are concerned
about families paying more for their heating and their electricity
bills, you should support this resolution. If you are worried about job
losses due to access restrictions and rising energy costs, you should
support this resolution. And, if you care about States' rights, which
so many of us do, or overregulation by the Federal Government, which we
clearly do, you should support this resolution.
I have noted to a couple of people today that this is a pretty good
day to be debating a disapproval resolution under the Congressional
Review Act. It is Groundhog Day, and it is exactly what the last 8
years have felt like for anyone who has paid attention to the
regulations that were just churned out by the Obama administration. The
SPR rule is a perfect place to start as we sort through the major
burdens that the last administration imposed through its relentless
regulatory actions.
So, again, I wish to thank Leader McConnell and Senator Capito for
sponsoring and leading this legislation, and know that I intend to vote
for it. I urge my colleagues to do the same.
With that, I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. CANTWELL. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Fischer). Without objection, it is so
ordered.
Ms. CANTWELL. Madam President, I see my colleague from Texas. Did he
want to make remarks in leader time?
Madam President, I come to the floor to talk about the action today
in the Senate, which is to try to overrun the clean water rule as it
relates to the mining industry.
The bottom line is, polluters should pay for the pollution, and that
is what the rule says, and that is what is trying to be overrun today
after a very short debate in the Senate.
Some of my colleagues on the other side of the aisle would like to
say it is about the coal industry and a war on coal. If they are so
concerned about the coal industry, I would suggest to them
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and coal workers that they take up the pension bill they promised to
take up in the last Congress and have failed to take up.
Last December, thousands of coal miners came to Washington, DC, and
asked the Senate to live up to their promise that was made and put
their health on the line and make sure that they had a pension program.
More than 20,000 retired coal miners are at risk of losing their health
care if we do nothing by April, and they have a very small pension--
averaging about $530 a month--that is also at risk.
I know some of my colleagues would like to believe this is somehow
entirely related to a war on coal, but that narrative ignores the
facts. In 2008, right before the financial crisis, the United Mine
Workers' pension plan was 93 percent funded--in 2008, 93 percent
funded. Its actuaries projected it was on track to reach full funding
in several years.
So this notion that somehow the discussion behind the scenes by the
Interior Department or the EPA caused an implosion in the mining
industry and thereby they didn't have resources is not the case. What
is the case is that the financial crisis hit, and Wall Street
speculators blew up our economy, costing it $14 trillion--according to
the Dallas Fed--and many in this body bailed them out. But we did
nothing to bail out the miner pension program. Those pensions were
thrown into crisis. By 2009, the United Mine Workers' plan had dropped
from the 93-percent funded level down to the low seventies--a 20-
percent drop in a single year. So despite the fact that the plan was
well managed, the investment returns continued to be problematic. Wall
Street--not the Department of the Interior or EPA--is the reason mine
workers have so much challenge today.
If they care so much about the mining industry and the workers, then
bring that legislation forward on the floor of the Senate today instead
of trying to overturn a rule that says polluters should pay.
These safe drinking water issues and fishing issues are so important
to an outdoor economy that employs a million-plus workers and is a
vital part of practically every State's economy. The notion that
somehow this is a jobs issue--if they want to protect jobs in the
outdoor industry, then please allow people to fish in rivers where they
don't have to worry about selenium. This is a big issue, whether
talking about Montana, Colorado, Washington, or the State of Alaska.
I will say that the Alaskan issues of salmon and habitat far outweigh
the 113 jobs the Alaska coal industry produces. Both can be seen as
valuable jobs, but if we want to know about an economic impact to the
State, it is dwarfed by the issue of making sure salmon have clean
rivers and streams to migrate through.
This legislation today is about trying to protect those waters. I
would again say that the effects of mountaintop removal have been
called out by the press for a long time. I wish to quote from a
Washington Post editorial:
For decades, coal companies have been removing mountain
peaks to haul away coal lying just underneath. More recently,
scientists and regulators have been developing a clearer
understanding of the environmental consequences. They aren't
pretty.
In the 1990s, coal miners began using large equipment to
strip away mountaintops in states such as West Virginia. The
technique made it economical for them to extract more coal
from troublesome seams in the rock, which might be too small
for traditional mining or lodged in unstable formations.
Environmentalists were appalled, but the practice spread and
now accounts for more than 40 percent of West Virginia coal
production.
Burning coal has a host of drawbacks: It produces both
planet-warming carbon dioxide and deadly conventional air
pollutants. Removing layers of mountaintop in the extraction
process aggravates the damage. The displaced earth must go
somewhere, typically into adjoining valleys, affecting
streams that run through them. The dust that's blown into the
air on mountaintop removal sites, meanwhile, is suspected to
be unhealthy for mine workers and nearby communities.
Scientists have recently produced evidence backing up both
concerns. Over the summer, a U.S. Geological Survey study
compared streams near mountaintop removal operations to
streams farther away. In what should be ``a global hotspot
for fish biodiversity,'' according to Nathan Hitt, one of the
authors, the researchers found decimated fish populations,
with untold consequences for downstream river systems. The
scientists noted changes in stream chemistry: Salts from the
disturbed earth appear to have dissolved in the water, which
may well have disturbed the food chain.
Last week, the Charleston Gazette reported on a new study
finding that dust from mountaintop removal mining appears to
contribute to greater risk of lung cancer. West Virginia
University researchers took dust samples from several towns
near the mountaintop removal sites and tested them on lung
cells, which changed for the worse. The findings fit into a
larger, hazardous picture: People living near these sites
experience higher rates of cancer and birth defects.
Again, all this is from the Washington Post editorial.
With these sorts of problems in mind, the Environmental
Protection Agency is taking a more skeptical look at
mountaintop removal mining permits. The Clean Water Act gives
the government wide authority over industrial operations that
change rivers and streams.
The EPA has already used its efforts, in some cases where there was
concern, to revoke a permit and has instructed its branches and offices
to be more careful.
The coal industry and its allies--
And we have heard some of them here--
are howling. Skeptics of mountaintop removal, one industry
pamphlet insisted, ``promote an anti-coal, anti-business
agenda that uses environmental issues as a mere pawn to
redistribute wealth, grab power, and put forth liberal,
social ideology. The GOP-controlled House passed a bill that
would strip the EPA of some of its permitting power. But just
this month--
Because that was a couple years ago--
the Obama administration once again prevailed in court,
beating back another industry challenge.
This editorial ends by saying:
The emerging scientific evidence should cut through the
rhetoric. The EPA is right to move more firmly to protect
health and the environment.
We are right to defend this rule and law and say that polluters
should pay.
Madam President, I yield the floor.
The PRESIDING OFFICER. The majority whip.
Mr. CORNYN. Madam President, yesterday the Senate took up legislation
to block the stream buffer rule, which is a job-killing regulation from
the Obama administration--something the Obama administration will be
long remembered for--a regulatory overreach that strangled the growth
of our economy and the jobs that come along with it. This is a prime
example of a misnomer, though. It is not really about protecting
streams, as it claims, but about killing the coal industry and energy
production in our country.
One of the things that have caused our economy to grow historically
has been access to low-cost energy, but unfortunately this regulation
has made that not possible in coal country, taking many jobs along with
it and I think in part, at least, responsible for the vote President
Trump got in many parts of the country that felt left behind by the
economy and because of job-killing regulations like the stream buffer
rule.
Nomination of Neil Gorsuch
Madam President, yesterday I had the chance to meet with Judge
Gorsuch personally, the man President Trump nominated to serve on the
U.S. Supreme Court.
It is plain to me now why President Trump selected him to be the
nominee for the seat vacated by the death of Justice Scalia. Judge
Gorsuch's experience, intellect, and background make him uniquely
qualified and qualify him as a mainstream nominee. That seems to be the
nomenclature that has been embraced by our colleagues across the aisle.
They said they hope President Trump nominates a mainstream nominee.
Well, he did. But I fully expect our colleagues across the aisle to try
to paint him as some sort of extremist, which they can't do based upon
his distinguished record on the Tenth Circuit Court of Appeals for the
last 10 years as a Federal judge or his previous life. They are going
to have to make things up in order to cause people to believe this
nominee is not a mainstream nominee.
I look forward to working with my colleagues on the Judiciary
Committee to do our job of advice and consent and to see the nomination
come to the floor, where I hope he will be confirmed. I trust he will
be confirmed one way or the other.
Unfortunately, Senate Democrats--particularly their leader, the
Senator from New York--have already announced that they will fight
tooth and
[[Page S616]]
nail against any nominee put forward by President Trump. Predictably,
the minority leader has made clear that he will try to filibuster the
President's choice. It has been ironic to watch him come here and extol
the virtues of the 60-vote cloture requirement for confirming a Supreme
Court Justice when he and the rest of his colleagues invoked the so-
called nuclear option to change the Senate rules by breaking those
rules and reducing the cloture requirement for lower Federal court
judges and Cabinet members to 51.
We see what happened as a result of that action. Now they find
themselves on the receiving end of that 51-vote requirement caused by
the nuclear option. So much for immediate gratification and not so much
for taking the long view in terms of how the Senate ought to operate.
This sort of resistance mentality that has grown up among our
colleagues on the other side of the aisle ignores the fact that we had
an election on November 8. The American people made their choice, and
it is plain that our Democratic colleagues are simply not happy about
the choice they made and are going to undermine and resist this
President no matter what, particularly when it comes to staffing his
Cabinet with the people he has chosen to serve the Nation as part of
his administration.
The American people also indicated they wanted us to move forward,
away from the bickering, away from the gridlock, away from this
mentality that we were here to serve someone else other than the
American people. They want results, not politics as usual. I think that
is the lesson we all should have learned from this last election. The
sad reality is that it is increasingly clear to me that my Democratic
colleagues didn't learn the right lesson last November and are trying
to bring the Chamber to a standstill.
Thanks to the nuclear option that then-Majority Leader Senator Reid
championed and which all of our Democratic friends voted for, they are
not going to be able to stop President Trump's nominees to the Cabinet
because all it requires is 51 votes. Yes, they can slow it down, but
they can't stop it. My question is, What purpose is to be served from
keeping the President fully staffed with the Cabinet that he has
chosen, knowing that you are ultimately going to lose the fight?
Unfortunately, this is not about the Senate alone. This is about the
American people. For 2 days in a row, Senate Democrats on the Finance
Committee, which has been one of the most bipartisan committees in the
U.S. Senate--our Democratic colleagues, each and every one of them,
boycotted the meetings to consider President Trump's nominees.
I sit on the Finance Committee. As I said, it has historically been a
bipartisan committee, but our Democratic colleagues chose to relinquish
their responsibility and ignore their duties to their constituents.
Unfortunately, this type of behavior has become par for the course
throughout the first days of President Trump's administration. We have
seen other examples of slow-walking nominations, invoking every
procedural rule that there is to deny unanimous consent--the sort of
normal courtesies that go along with working in the Senate on technical
or procedural matters.
We have seen countless examples of their slowing down the nomination
process intentionally, even for highly qualified candidates.
On the Judiciary Committee, on which I also sit, there is another
example with respect to the nomination for Attorney General of Senator
Jeff Sessions, a well-respected colleague in this Chamber. I am glad we
were finally able to move his nomination out of the committee
yesterday. But the truth is that even though many Democrats on the
committee had worked side by side with Senator Sessions and had
cosponsored legislation with him, they themselves said what a good man
he was. They voted against him after slowing down this obvious choice
to lead the Justice Department.
President Trump talks about draining the swamp in Washington, DC. The
biggest swamp in Washington, DC, has been a Justice Department headed
by Eric Holder and, sadly, by his successor Loretta Lynch. They have
refused to enforce the rule of law and instead turned that into a
political outpost for the Obama administration. Attorney General Jeff
Sessions is going to change that. He is going to enforce the law, and
he will respect the law no matter who wins and who loses because his
duty is to the Constitution and laws of the United States and to
enforce those laws as Attorney General and, yes, to defend those laws.
Some of our Senate colleagues were shocked when Deputy Attorney
General Sally Yates--although the Office of Legal Counsel said that the
Executive order issued by the President was legal and proper in its
form--wrote a letter saying she was instructing the line lawyers in the
Justice Department not to defend it in court. President Trump fired
her, and he should have. That is political grandstanding by somebody
who should know better, considering her distinguished career at the
Department of Justice for the last 30 years.
I don't know who gave her the bad advice, but I am glad that
President Trump decided to fire someone who basically defied their
duties to the Department of Justice and to the U.S. Government and
preferred to take the side of politics and misinformation.
We know that the Senate is continuing with other nominations as well.
I see this morning that the Environment and Public Works Committee
finally voted out the nomination of the attorney general of Oklahoma,
Scott Pruitt, for Director of the Environmental Protection Agency.
Unfortunately, our Democratic colleagues' bad habits on the Finance
Committee have spilled over to the Environment and Public Works
Committee, and they chose to boycott that hearing as well.
Notwithstanding that boycott, the majority of the committee did vote
out the nomination, and we will take that up soon.
This lack of cooperation is unprecedented. It really is
unprecedented. At this point in 2009, President Obama had 11 of his
Cabinet members confirmed by the Senate--11. Today we have only five
confirmed, and many of those who have been confirmed were slow-walked
by our Democratic colleagues for one lame excuse or another. This is
not because President Trump's nominees aren't qualified; it is because
our colleagues on the other side of the aisle are determined to
undermine this new President and his administration, no matter what
cost is paid by the country.
After the election, President Obama, to his credit, talked about the
importance of a peaceful transition of power from one administration to
the next. Some of our colleagues who are now obstructing this
President's Cabinet members have also paid lipservice to a peaceful
transition of power. What we are seeing is a hostile transition of
power--mindless obstruction, foot dragging, and delay for delay's sake.
Let me remind them once again that the American people voted on
November 8 and chose a President who has the authority to nominate the
people he sees fit to serve on his Cabinet. We can't afford to let this
administration operate with one hand tied behind its back for the
foreseeable future. We need to do our job and provide the President and
the country with the experts and advisers that the administration needs
to keep our country safe and to keep government functioning for the
people.
I hope soon--I am not optimistic, but I hope that soon our Senate
Democrats will start working with us and not against us and, more
importantly, against the interests of the American people who sent them
here.
Tribute to Linda Bazaco
Madam President, I want to spend a few minutes recognizing an
extraordinary public servant on my staff who served in a unique
capacity that many may not know exists.
One of the most important things we get to do as Members of Congress
is to act as the intermediary or intercessor between our constituents
and a Federal Government that sometimes is not responsive, particularly
in dealing with Federal agencies. For instance, when somebody isn't
receiving their proper check from the Social Security Administration or
is having trouble getting an appointment at a Veterans Administration
clinic or is in need of assistance with foreign adoptions, where do
they turn? They turn to people like Linda Bazaco, who heads my casework
program in Dallas, TX, and is going to be retiring soon.
[[Page S617]]
I am proud to say that we do our very best to make sure that the 28
million people I have the privilege of representing get the very best
help possible to help navigate the very real and very personal issues
that involve the Federal bureaucracy. That way, my office--specifically
my constituent services or what we call my casework team--can help
ensure that no Texan who reaches out to us slips between the cracks.
In some circles, apparently, we have a reputation for bragging in
Texas, but I have to say my staff are some of the absolutely best in
the field when it comes to getting responses for Texans from Federal
agencies. I like to say that if it can be done, it will be done. In
that way, we play an important role in holding the bureaucracy
accountable and reminding the Federal Government who their customer
really is. It is the taxpayers to whom they ought to be responsive.
They shouldn't need to call their Senator or their Congressman or
Congresswoman in order to get responses from the Federal Government,
but, in fact, sometimes they do, and sometimes--well, it is our
privilege to help.
As I indicated, the person who has led this effort in my office for
the last many years is Linda Bazaco, someone whom I came to know after
she worked for my predecessor, Senator Phil Gramm. Linda fervently
believes in the concept of government accountability and has developed
a way to get the answers that Texans need and deserve.
As I indicated, she started under my predecessor, Senator Phil Gramm,
about 27 years ago. Today, Linda's system has become the gold standard
for other elected officials to get results on behalf of their
constituents and, in doing so, has impacted constituents' lives in
profound ways: benefits, checks, expedited passports, medical care, or
even the most basic--simply a return phone call from an agency. All the
while, Linda has done this with enthusiasm and with an eye toward
quality and getting results for the people of Texas.
Linda, along with the team she has built, has pushed the government
to be more accountable and responsive to the tens of thousands of
Texans who have reached out to my office and, in most cases, will never
know she was their secret weapon.
Soon Linda will be taking on another challenge. After serving the 28
million people of Texas for nearly 27 years now, she will take up an
even more important role; that is, a full-time grandmother
extraordinaire. I couldn't be prouder of having someone of her caliber
as a leader on my team, and I wish her and her husband Val and her
three children and her five beautiful grandchildren the absolute best
in the next chapter of their lives.
On behalf of all the generations of Texans you have helped over the
decades, the staff members you have led along the way, and at least two
U.S. Senators, Linda, thank you for your service.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Ms. CANTWELL. I know we are going back and forth. I wish to inquire
if my colleague seeks to speak.
Go ahead because we are expecting someone on our side.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. ROUNDS. Madam President, I ask to speak as in morning business
for up to 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Nomination of Neil Gorsuch
Mr. ROUNDS. Madam President, I rise today to discuss President
Trump's Supreme Court nominee, Judge Neil M. Gorsuch.
As you know, the vacancy exists because last year Supreme Court
Justice Antonin Scalia died suddenly at the age of 79, leaving an
unexpected vacancy on our Nation's highest Court.
As I said at the time of his passing, replacing Justice Scalia, one
of the Court's strongest defenders of our Constitution, would be
extremely difficult. For nearly three decades, with his brilliant legal
mind and animated character, Justice Scalia fiercely fought against
judicial activism and legislating from the bench. To say our next
Justice has big shoes to fill would be an incredible
understatement. That is why the decision was made early on by Leader
McConnell and others to give the American people a voice in this
process, by waiting to confirm the next Justice until the 45th
President was in office and able to nominate someone him or herself. We
held that belief, even when it looked like our party would not win the
Presidency.
As we have been reminded before, elections have consequences. The
American people chose to elect President Trump, who throughout his
campaign said that he would nominate someone in the mold of the late
Justice Scalia. With his pick of Judge Gorsuch, President Trump made an
excellent choice in fulfilling that promise. We believe Judge Gorsuch
espouses the same approach to constitutional interpretation as Justice
Scalia and has a strong understanding of federalism upon which our
country is built.
Because the current makeup of the Court is evenly split between
conservative- and liberal-leaning Justices, this ninth spot is as
important as it has ever been. The next Justice has the potential to
hold incredible influence over the ideological direction of the Court
for a generation to come. The Supreme Court is the final authority for
interpreting Federal laws and the Constitution. It is one of the most
important responsibilities found within our federalism.
Since our very first Supreme Court--Justice James Wilson took the
oath of office in October of 1789--there have been just 112 Justices to
serve on the Court. These lifetime appointments are established under
article III in the Constitution and are the ultimate authority over all
of the Federal courts and State court cases involving Federal law.
Since it was established, the decisions the Supreme Court has made
have guided and altered the course of our Nation. The decisions it
makes often have long-lasting ramifications, that in one vote can
dramatically alter the course of our country. Based on what I know of
Judge Gorsuch, I believe he has the aptitude for this lifetime
appointment. He is greatly respected on both sides of the aisle. In
fact, he was previously confirmed to the U.S. Court of Appeals for the
Tenth Circuit unanimously, and not a single Republican or Democratic
Member of the Senate dissented. As such, we expect the Senate will
continue its tradition of approving highly competent, qualified
individuals to the Supreme Court in an up-or-down vote, following a
thorough vetting process.
I thank President Trump for nominating to the Supreme Court a judge
who has lived up to the Scalia gold standard. I also thank the American
people who voted in November in support of our efforts to retain
Scalia's legacy on the Court when his replacement is confirmed.
Perhaps most importantly, I thank Judge Gorsuch for his lifelong
commitment to defending our Constitution and applying the law as it was
written. If confirmed, I am confident he will be an outstanding member
of the U.S. Supreme Court.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Ms. CANTWELL. Madam President, I would like to continue the debate on
the measure before the Senate, which is to basically overturn a
provision that would require coal polluters to make sure they clean up
the damage they do to the clean water streams of our Nation.
We are here today because the agency who is in charge of setting
these rules has finalized a rule. They did so after more than 5 years
of discussion. They set it because there was so much scientific
information about the great degradation to our streams caused by
mining, when rocks are blown up and selenium is introduced into the
stream. I have pictures I showed last night of deformed fish, pictures
of river streams that are polluted. I have pictures of obvious
degradation of the environment around them.
The real issue is, the rule is now in place, and my colleagues want
to exempt the coal industry from such regulation. Why would you want to
exempt anybody from cleaning up their mess? Polluters should pay. I
know my colleagues are starting to chorus on some refrain about the
economy, which makes no sense. Natural gas has driven a very
competitive market to consuming more natural gas than coal,
[[Page S618]]
and Wall Street blew up the pension program of the miners, and now it
is in jeopardy. If you want to help miners, then come address their
health and safety and their pension program. If you want to make
natural gas more expensive, maybe you could make coal competitive
again, but I don't think that is what we really want in America.
My colleagues somehow ignore the fact that the people of the United
States of America are going to demand clean water one way or another.
You can protect the coal industry here with special interests and the
amount of lobbying they do, or you can step up this process and have a
regulation that works for the United States of America so the outdoor
industry, sportsmen and fishermen--who have many more jobs--can
continue to thrive. Why do I say that? Because my colleague from Texas
brought up the EPA nominee, Mr. Pruitt, who is coming to us from
Oklahoma. I found, with great pleasure, the same arguments that the
other side of the aisle is trying to make, they tried to make in
Oklahoma. ``Oh, my gosh. It is environmental regulation that is
stopping us from producing a greater, more robust farming economy. We
need to do something to stop those untoward regulations.''
What did they do? They had a big initiative for the ballot that
basically said: Let's make it really hard for anybody to regulate in
regard to farming, unless they show it is somehow in the greater State
interest. Even in red-state Oklahoma, they got it. They knew it was a
fast run on the Clean Water Act, and they defeated that basically 60 to
40.
If we want to have a debate by debate, State by State, a discussion
about clean water because people here will not defend the right for
people to have clean streams, then we will have that debate. My
colleagues sometimes try to say: Well, this is what attorneys general
are concerned about. Some of them don't like the rule. You have ample
opportunity to change the rule. You could come here and propose
legislation. You could ask your colleagues now to do something and move
forward on an alternative, but that is not what is happening. This
egregious approach is not only getting rid of a rule that currently
protects us, for safe streams, but because it is a Congressional Review
Act overriding that rule, it will prohibit us from taking up, in the
same fashion, an approach to make sure this is regulated in the future.
That is right. Turning down the rule this way will stop an agency from
doing the job it is supposed to do. Why not just leave it to the
States? That is like saying: I am going to leave clean air, clean
water, or nuclear waste cleanup to whatever a State decides. That is
not what Federal law is about.
Here is an editorial from Kentucky where a ``proposed $660,000
settlement of the Clean Water Act violations between the State's
environmental agencies, and two of its largest companies, underwent a
30-day review.'' What was that about? That was about the State of
Kentucky failing to implement the old law. This was in 2010. The State
of Kentucky's Attorney General--they were such laggards at this--people
sued the companies in the State because the State wasn't doing its job.
Eventually, they uncovered, as the article says, ``massive failures by
the industry to file accurate water discharge monitoring reports. They
filed an intent to sue, which triggered the investigation by the
State's energy and environmental cabinet.'' The notion that States are
on the job and doing their job in Kentucky--they weren't.
A State case was provoked by other people who were monitoring for
clean water. It is our prerogative to set a standard for miners to
clean up their mess. That is what we are talking about. Now the other
side of the aisle wants to overturn that, saying that polluters don't
have to pay.
How did we get to this situation? As mentioned, the past
administration worked hard at coming up with a stream protection rule.
Why did they come up with a new stream protection rule? Because it had
been 33 years since we had a stream protection rule. The old rule did
not prohibit mining through streams. Guess what? Neither does the new
rule. The new rule says you are not prohibited from mining through a
stream, but by gosh you ought to be required to mitigate the mess you
create in the water system by mining through that stream.
We are talking about mitigation requirements, and we are talking
about measurements. Why do we need that? Because since 1983, when the
previous rule was put in place--we now know that things like selenium
cause very bad things to happen in water, with rocks and the discharge.
We know selenium can cause the deformation of fish and that eating
those fish can make you sick. That is why we want to have a rule to
understand the impacts and to mitigate for them. I think about this
particular picture, and the deformation in the fish tail and in the
fish lip--the front end of the fish--are extreme examples of what
selenium is doing in our water supply. Why would you not want--as
someone blowing up a mountaintop and creating this kind of stream
damage, why would you not want them to mitigate that? Why would you
want to protect them? Because you think you are protecting some coal
industry jobs that basically have fallen off because natural gas has
become a cheaper product? Your economic strategy is a race to the
bottom. You think if you have the lowest environmental standards in the
United States of America, that is somehow going to generate jobs? I
think it is just the opposite. I have so many people in Washington
State who say: I can't attract employees unless we have a clean
environment here because people want to live in a clean environment,
they want to fish, they want to hunt, they want to recreate, and they
want an opportunity to do so. As a company, I can attract the best and
the brightest because they know they are going to live in that kind of
environment.
The notion that this kind of ``let us make sure the coal industry
doesn't have to play by the rules, they get an exemption from clean
water'' is some sort of economic strategy for the future of coal
country, it is absolutely not.
Saying that AGs are going to do the job, we have many examples of
where they haven't. There are also examples from Ohio and Pennsylvania,
where the degradation is so bad it is nearly impossible to clean up.
Let us talk a little bit about the comparison of jobs from outdoor
industry and the coal industry. It is not to demean the jobs of the
coal industry and the individuals who have worked their whole lives in
that sector or to say that one job is better than the other. There are
over 6 million jobs directly in the outdoor industry. They generate $80
billion in tax revenue, but if you come to Montana and there is a mine
on top of a stream and people don't want to go there to fish and
recreate anymore, then you have caused damage. What are we talking
about by State? Let's look at it. Montana, there are 64,000 jobs
related to outdoor recreation. Why? Because Montana is beautiful. It
has so many streams. I mentioned last night that wonderful movie called
``A River Runs Through It.'' It doesn't say, ``A River Runs Through It
and a Mountaintop Mine Sits on Top of It.'' That is not what that movie
was about. It was about the beauty of the great outdoors. There are
122,000 recreation jobs in Utah. There are 125,000 in Colorado, 50,000
in Wyoming. There are 28,000 in North Dakota. Are people down here
defending those jobs? I am defending them because a clean stream is a
great source of recreation for people. I don't want to fish or hike in
a stream with selenium that could poison me or poison other people.
What is wrong with polluters paying? I say nothing.
The economic cost of this legislation is very minimal. The industry
would be responsible for less than .01 percent of the economic cost;
that is, the pollution that would be required to clean up from this
type of effort would be minimal to the industry. So what are they
complaining about? What are they complaining about? They don't want to
measure selenium in the water. They don't want to be responsible for
mitigating it.
The economic challenges that the industry faces from natural gas have
nothing to do with this issue. This issue is about whether polluters
should pay and whether we as a body are going to not only overturn this
rule that is about clean water and safety for our communities by having
streams protected. It is also about whether we are
[[Page S619]]
going to preclude another administrative approach to fixing this issue.
The Congressional Review Act is a very large cannon blowing a hole in
the clean water requirements for the coal industry. Once you turn this
down, you cannot easily reinstate something new. So our colleagues on
the other side of the aisle, if they truly wanted to do something about
this, could come to the floor today and say: I propose something
different. President Trump, if he wanted to propose something different
that both guaranteed clean water and moved us forward, he could propose
something. Instead, they simply want to repeal this.
So this chart shows just what I have been referring to; that coal
basically now in 2016 is getting beat by natural gas. It is getting
beat by natural gas because it has become a cheaper source. We are not
going to get into the details of how that happened, but we are going to
say here today that the notion that you want to let them off the hook
from meeting environmental rules and regulations as a way to be
competitive is a dangerous, dangerous precedent for the United States
to be setting.
We will not win, and our economy will not win from that situation.
What we have to do instead is make sure that we are taking care of our
environment and being competitive in all sorts of industry issues. For
example, this story was about, in West Virginia, how mountaintop mining
caused a fish species to disappear. ``We are seeing significant
reductions of the species of abundant fish downstream from mining
operations.''
To me, that would be an anathema in the Pacific Northwest. Fishing is
everything. If somehow we were involved in a mining process that was
killing fish, that would be the worst thing that could happen to our
economy. There is no reason for us not to set rules and regulations to
make sure the mining industry cleans up their mess.
I hope our colleagues will understand how detrimental this rule is.
Do not give the mining companies an exemption from cleaning up messes
in their streams. Let's say that we are going to do the public interest
and not special interests.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. SULLIVAN. Madam President, today we are going to be voting on the
first of what will be many resolutions of disapproval under the
Congressional Review Act to roll back the avalanche of Federal
regulations that the Obama administration placed on the U.S. economy
and, most importantly, the working men and women of this great country.
Nowhere have these regulations been more of a burden than on the
energy industry of America, which employs millions, millions of
Americans--Democrats, Republicans, good, hard-working Americans, and
thousands of hard-working Alaskans, my constituents. So I am
particularly pleased that the first of these actions--and we are going
to be using the Congressional Review Act a lot because the economy and
families in America need relief--in the Senate is to nullify the so-
called stream buffer rule of the Department of Interior.
My colleague and friend, the senior Senator from Alaska, Ms.
Murkowski, was down on the floor a little bit about ago. She described
just how sweeping this rule was in scope and how despite the Federal
law called SMACRA, which requires cooperative Federalism, working
closely with the States, the Obama administration did not give the
States any input--certainly not my State.
But what I wanted to talk about on this rule in particular and why it
is so important to have not just Republicans but Democrats--and I am
going to encourage my colleagues on the other side of the aisle to
please support this resolution of disapproval--why it so important we
vote for this resolution of disapproval today is because of the coal
miners in America--the coal miners in America, who have been under
incredible strain and their families.
The vote we take today is going to offer them the first signs of
relief in years. Now, there were projections by the Department of
Interior's own contractors--as my colleague, Senator Murkowski,
mentioned a little bit ago--that thousands of coal miners would lose
their jobs because of this rule--thousands.
A study showed that estimates would be one-third of coal miners,
coal-mining jobs in the country were at risk because of this rule. That
is a big deal. That is a big deal. One-third. Studies are showing that
by the Department of Interior's own contractor. But not to worry, the
Obama administration issued the rule anyway. Again, as my colleague
Senator Murkowski mentioned, there were concerns--very legitimate
concerns in my State--that this rule could literally kill every coal-
mining job in Alaska, at the Usibelli coal mine in interior Alaska.
So what was the so-called stream buffer rule really about? What was
it? Well, I think we all know. It was the last salvo in the Obama
administration's arsenal in the war on coal miners, a war that has left
thousands of hard-working Americans out of work, injured, in despair in
its wake. That is what happened. Just look at what happened. Look at
our own Federal Government going to war against hard-working Americans.
That is what happened for 8 years--disgraceful in my view.
Now it is time to fight back. Now it is time to fight back. Now it is
time for this body to show coal miners in America that we are actually
on their side and not against them and not trying to ruin them and
their families. I want to recount a recent colloquy by a bunch of my
colleagues from the other side of the aisle from last December--right
before recess.
Many of my colleagues--all of whom I respect highly--on the other
side of the aisle, my Democratic colleagues, came down to the floor.
They were saying how coal miners of America were under siege, how they
needed help. They were talking about my good friend and colleague
Senator Manchin's bill with regard to protecting coal miner pensions,
which, by the way, I am a cosponsor of.
So I agree about protecting our coal miners, but I watched a lot of
those remarks. My colleagues were down on the floor for several hours,
but what I found very ironic was that I looked at a lot of these
Senators and asked: Where were you during this 8-year war against coal
miners? What were you doing? I hate to say it, but a lot of them were
allies in the Obama administration's assault on hard-working families
and coal miners.
I am not saying that about my good friend from West Virginia, Joe
Manchin, but there were a lot who were. Heck, some were even leading
the charge, but, nevertheless, several were down here on the floor
right before the holidays lamenting about what has happened to the coal
miners in America. So to my colleagues who were down here shedding
tears for America's coal miners in December, I want to offer a
challenge to you. Here is your chance. Here is your chance. This is a
rule that our own Federal Government has said will put thousands of
coal miners out of work. If you really care about the coal miners of
America, whether in West Virginia or Alaska, come down on the Senate
floor this afternoon when we have this vote and vote for this
resolution of disapproval, if you want to help the coal miners, if you
want to turn this around so there is no war against them, led by the
Federal Government. Its own studies said: Yep. Sorry. You and your
families are going to be out of work. If you really care like you were
saying in December, then come down to the floor today and vote for this
resolution.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Ms. CANTWELL. Madam President, I think my colleague from
Massachusetts is here on the floor to speak. I will let him have some
time.
I would say to my colleague from Alaska, the real bait-and-switch is
the side of this aisle that allows the Finance Committee to pretend
like it is going to do something on the pension program and votes a
month before the election, and then after the election, fails to act on
such an important issue. I hope people are not advocating pollution as
an economic strategy because it will not work.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. MARKEY. Madam President, I thank the Senator from Washington
State for her tremendous leadership on all of these environmental
issues, which are now on the table in our
[[Page S620]]
country for the first time in a generation.
Tribute to Bill Bonnavillian
Before I turn to the resolution the Senate is debating, I want to
take a minute to recognize the contributions of Bill Bonnavillian to
advancing America's science and technology policy. Last month, Bill
stepped down as the head of the Washington office of the Massachusetts
Institute of Technology after 11 years.
Bill's leadership of the office continued MIT's historic role of
providing a vision for advancing science policy and ensuring that
knowledge generated at MIT was relevant and available for policymakers
in Washington, DC. His leadership will be missed at the MIT Washington
office, but I am glad to know he will be staying engaged with the MIT
community. I hope he will continue to provide guidance to this body
since now, more than ever, we need science to inform the decisions we
are making on the Senate floor.
Today, Madam President, congressional Republicans are beginning the
process of going one by one to overturn commonsense rules that have
long been opposed by the oil and gas, coal, and other industries in the
United States of America. The majority is trying to undo these rules by
deploying a rarely used procedural tool known as the Congressional
Review Act.
In fact, the majority is talking about using the Congressional Review
Act, or CRA, so often that it could actually get hard to keep track of
which industry is benefitting from week to week to week from the
Republicans' use of the CRA. I brought down a helpful tool so the
viewers at home can keep track of which industries are benefitting each
week from Republicans using the CRA to roll back protections for public
health, for clean air, for clean water, for clean soil, for the health
of the families in our country.
So let's consult our wheel to see who is the big winner of the GOP
giveaway this week.
Up first are the mining and the coal industries. They are the first
big winners of the GOP Congressional Review Act wheel of giveaways.
That is right. First up for repeal by the Republican Congress are
public health protections against the toxic practice of mountaintop
removal coal mining.
These protections were put in place by the Obama administration
because a Bush-era rule was thrown out by the courts. These commonsense
rules to monitor and ultimately restore streams impacted by coal mining
are despised by the coal industry. Those that created the problem
despise any rules that would require remedying the problem, as it
affected public health--no surprise.
Mountaintop removal mining is one of the most environmentally
destructive practices on Earth. Mountains are turned into barren
plateaus. Streams in the bottoms of nearby valleys are filled with
debris and buried. Heavy metals destroy water quality for nearby
residents and ruin ecosystems.
The rule that the Republicans are attempting to repeal today protects
the public health and drinking water of millions of American citizens
in Appalachia and elsewhere across our country.
The rule requires that lead, arsenic, selenium, and other toxic
pollutants are monitored. It requires that streams that are damaged or
destroyed must be restored.
Now, the majority likes to say that there is a war on coal, but the
only war that coal is losing is in the free market to natural gas, to
wind, to solar. These are the sources of electricity that the utilities
of our country, that the citizens of our country have been moving to
over the last 10 to 15 years. There is a war going on in the
marketplace.
Adam Smith is spinning in his grave as he listens to the Republicans
trying to protect an industry from market forces. Adam Smith is
actually spinning so fast in his grave that he could qualify as a new
energy source for our country. That is how shocked he would be about
this attempt to undermine the public health and safety in our country
on behalf of an industry that is losing a battle in the marketplace.
It is the free market that ultimately is causing these changes, and
the coal industry is saying: Please protect us from having to protect
the public health and safety--clean air, clean water. Please protect us
from having to protect families affected by our industries.
A few years ago, we generated roughly 50 percent of our electricity
from coal. Now it is down to 30 percent of all electricity generated in
our country from coal--50 percent to 30 percent of all electricity in a
handful of years.
Coal has been replaced in the free market by natural gas, which has
grown from a little over 20 percent of U.S. electricity generation a
decade ago to 35 percent today. That is coal's big problem--natural
gas, another fossil fuel, but one that emits one-half of the greenhouse
gas pollutants as does coal.
Coal has also been replaced by clean energy, by wind, especially,
which has grown by 5 to 6 percent of our generation, and by solar,
which is now 1 percent of our generation.
In other words, if you go back to 2005 and you look at our country,
natural gas was a relatively small percentage of electrical generation,
and so were wind and solar. As we debate this issue here today, wind
and solar are now up to 7 percent of all electricity generated in our
country, up from 1 percent just a little bit more than 10 years ago. It
is growing so fast as a preference for American industry, American
utilities, and American homes, that it poses a marketplace threat.
So what we need to do now, finally, is to have the big debate out
here as to what are the implications for public health and safety and
what do we have to do in order to maintain the high standards that we
have created for the protection of families over the last generation.
Last year, electricity generation from natural gas surpassed that
from coal for the first time since 1949, when data collection began.
Why? To quote the Department of Energy:
The recent decline in the generation share of coal, and the
rise in the share of natural gas, was a market-driven
response to lower natural gas prices that have made natural
gas generation more economically attractive.
Between 2000 and 2008, coal was significantly less
expensive than natural gas. However, beginning in 2009, large
amounts of natural gas produced from shale formations changed
the balance.
While the cost of coal has risen by 10 percent since 2008, the cost
of natural gas has fallen by more than 60 percent. For a power producer
considering new generation capacity, the lifetime cost of electricity
from a new coal-fired powerplant is 67 percent higher than from a new
natural gas powerplant and 17 percent than from a newly constructed
wind farm, according to the National Academy of Sciences.
The reason no one is building coal-fired powerplants is very clear:
It is the free market. Coal cannot compete in the free market. In 2016,
we added more than 14,000 new megawatts of solar. We are going to add 7
to 8,000 new megawatts of wind. We are going to add nearly 9,000 new
megawatts of natural gas, and we added virtually no new megawatts of
coal-fired generation in our country. We are projected to add no new
coal generation this year as well. It will be more natural gas, more
wind, and more solar.
The marketplace is rejecting coal as a source of electricity. The
marketplace is doing that. This isn't a conspiracy. It is competition
in the free market.
Lest my colleagues think that this is just happening in the United
States, it is not. More than half of all electrical generating capacity
added in the world last year was renewable.
Let me say that again. More than half of all new electrical
generating capacity added in the world last year was from renewable
energy--wind and solar--across the planet.
China recently announced that it intends to invest $360 billion on
renewable energy by 2020. They intend to create 13 million Chinese jobs
in renewable energy in that time.
This isn't a conspiracy. It is competition, and the competition for
those clean energy jobs is global.
When we started carrying iPhones, it wasn't a war on black rotary
dial phones; it was a technological revolution. When we started using
Macs and PCs, it wasn't a war on typewriters; it was a technological
revolution. The horseless carriage wasn't a war on horses; it was a
technological revolution that moved us to automobiles.
The move away from coal and oil toward clean energy and natural gas
isn't
[[Page S621]]
a war; it is a revolution--an American-made free market revolution.
We now have more than 400,000 Americans employed in the solar and
wind industries. By 2020, there are projected to be 600,000 Americans
working in these clean energy industries. It is not a war. It is a
revolution.
Now, next there is going to be another industry to win in the CRA,
the Congressional Review Act giveaway game. That is right. The next
winner will be the oil and gas industries.
Republicans intend to move to overturn a bipartisan requirement under
the Dodd-Frank bill that publicly traded oil, gas, and mining companies
disclose to their investors when they make payments to foreign
countries, but that requirement is vigorously opposed by ExxonMobil,
the American Petroleum Institute, and the oil and gas industry.
Section 1504 of the Dodd-Frank Wall Street Reform and Consumer
Protection Act was a bipartisan provision authored by Senators Cardin
and Lugar. It requires oil, gas, and mining companies to disclose
payments to foreign governments, and that is now in jeopardy.
The Dodd-Frank disclosure rule goes to the core of the Securities and
Exchange Commission's mission of investor protection. Secret payments
can easily be expropriated by corrupt governments. They can also be a
signal that a company is involved in risky business overseas--risks
that investors need to know about when making investments.
By eliminating this disclosure requirement, using the Congressional
Review Act, we are potentially allowing for oil companies to make
secret, undisclosed payments to foreign governments. Those could
include payments intended to gain an advantage over other companies or
even bribes to foreign officials.
Eliminating this disclosure requirement could allow for oil companies
to make secret payments to foreign nations that could have serious
implications for these nations and for investors.
I urge my fellow Senators to reject these resolutions and keep in
place the commonsense protections for public health, clean water, and
financial disclosure.
Earlier today, the Republicans on the Environment and Public Works
Committee reported out the nomination of Oklahoma Attorney General
Pruitt.
Democrats on the committee have grave concerns about his ability to
uphold the EPA's mission to ``protect human health and the
environment.''
So what we are talking about here is the totality of a picture. The
use of the CRA to--one by one by one--go after these environmental
protections that have been put in place to increase the health of
Americans, to reduce their exposure to arsenic, to lead, and to other
dangerous chemicals. This first one that we are debating goes right to
the heart of that issue. What the coal industry is doing is using the
justification of their need to be competitive with the natural gas,
wind, and solar industries, a battle they are losing in the financial
marketplace, as a justification for undermining the public health of
our country so they can be more competitive.
In other words, the price to be paid to make the coal industry more
competitive with other industries to which they are losing market share
in the electrical generation market is that the public health has to be
compromised and we have to turn a blind eye to the impact on the
children and the families in our country who are being exposed to these
dangerous chemicals.
That is the price we have to pay as a nation? It is unacceptably
high.
So Adam Smith looks on, and Adam Smith judges us here today.
This marketplace defeat of coal by natural gas, wind, and solar is
one that is being used to hurt children and hurt families in our
country. I do not think it is an acceptable position for our Nation to
take. I urge a rejection of that motion.
I yield back to the leader of this effort on the Senate floor, the
great Senator from Washington.
The PRESIDING OFFICER (Mr. Sasse). The Senator from Oklahoma.
Mr. INHOFE. Mr. President, first of all, I appreciate the opportunity
to get wedged in here. There are a number of very interesting things
happening today. One is the CRA that I am very much concerned about. I
know that my good friend from Massachusetts did not misrepresent
something intentionally; however, this is a little bit more complicated
than people think it is.
I spoke earlier this week on our need to roll back a lot of these
regulations that were handed down during the Obama administration. They
are all a part of that War on Fossil Fuels, and as you hear, that war
is still going on with some of those individuals. However, President
Obama is gone, and now we have to look at some of these
overregulations.
For a number of years, I chaired the Environment and Public Works
Committee. During that period of time, that particular committee had
the jurisdiction over the EPA, which is where most of the bad
regulations came from. When I say ``bad regulations,'' I am talking
about the overregulations that make it very difficult for our companies
to compete with foreign companies that don't have these types of
regulations.
Let me share something that is not very well understood, and that is
what a CRA really is. There are a lot of people of the liberal
persuasion who would like very much to have everything they could
regulated in Washington, DC. For example, one of the fights we had was
the WOTUS fight. If you ask any of the farmers and ranchers in
America--not just in my State of Oklahoma but Nebraska and many other
States--what is the most serious problem they have, they would say it
is the overregulation of the EPA. If you ask them, of all the
regulations, which ones are the most difficult for the farmers out
there trying to scratch a living, they will say it is the regulations
on water.
Historically, the jurisdiction of water is a State jurisdiction. Now,
a liberal always wants that jurisdiction to be with the Federal
Government in Washington. That is their nature. I don't criticize them
for that. They believe that. But if you ask the farmers in my State of
Oklahoma, they will say they don't want that to happen. Historically,
water has always been the State's jurisdiction, with the exception of
navigable water. We understand that navigable water should have a
Federal jurisdiction. In fact, I would have to say there was a real
effort 6 years ago by a Senator who at that time was representing the
State of Wisconsin and a House Member who was representing a district
in Minnesota. Those two individuals introduced legislation to take the
word ``navigable'' out of water regulations so the Federal Government
would have jurisdiction over all of the water in the States as opposed
to the State having that jurisdiction. Not only did we defeat the
legislation, but both of those Members were defeated in the polls when
they came up for reelection on that issue. The people are clearly on
our side.
Where does a CRA come in? A CRA is something that has been used to
shed light on what we are doing here. I am talking about with respect
to our elected representatives. If there are regulations that are
punitive to the businesses back home, when the Senator goes back to his
or her State, they can say: Well, that wasn't I, that was an unelected
bureaucrat who did that. I am opposed to it. They have a shield so
people don't really know where they stand. A CRA takes away that shield
because the CRA challenges a regulation, and it has to be voted on,
forcing Members of the Senate and the House to be responsible for how
they are really voting. It is a way of shedding light.
We have a lot of CRAs coming. One is going to be a CRA that I
sponsored having to do with a regulation in the Dodd-Frank bill, in
section 1504. As I mentioned, most of the overregulations come from the
EPA, but this particular regulation didn't come from the EPA. It came
from the Dodd-Frank banking legislation having to do with financial
services. It is in a section that had nothing to do with financial
services. Section 1504 requires all information to be made public that
would come from a bid. In the United States of America, our oil and gas
companies are in the private sector, but in China it is run by the
government. If we are competing for an oil and gas issue that might be
in Tanzania and we are competing with China, China would be competing
as a government, and we would be doing it
[[Page S622]]
in the private sector. Section 1504 requires the private sector to
disclose all elements of their bid when they are competing for a
contract with China. The reason for this initially was to preclude a
country's leaders from attempting to steal money that was given to them
for a certain oil project. With this disclosure, they would not be able
to do it. Well, you don't have to have all the components of the bid.
All you have to have is the top line, how much money was actually sent
to, in this case, the country of Tanzania.
The courts came along in 2014 and said this regulation was wrong.
There are a couple of problems. One problem is that there is no reason
in the world that you should have a mandate to disclose all the details
of a bid because that is giving away information to the competition,
giving the other side an advantage. The other problem is the expense of
it. We are talking about $600 million a year that would be borne by the
private sector in America that China would not have to pay. So it only
punishes those within the United States.
After the courts threw this out, the SEC should have reworked the
rule. They were instructed to rework the rule so every detail of the
bidding did not have to be disclosed, just the total amount. That
solved the problem that was perceived to be out there because then it
would be known that so much money, for instance, maybe a check for $50
million, would go out, and we wouldn't have to break down the details
of it. The main thing is, we need to know, in good government--and that
was the intention in the first place--how much money was going to a
foreign government.
Some have argued that the CRA is motivated by companies who want to
get around transparency. That is clearly not the case. The courts have
said it is not the case. Oil and gas companies in particular are
longstanding supporters of greater transparency initiatives such as the
Extractive Industries Transparency Initiative, the EITI, that is a
multilateral, multistakeholder global initiative composed of energy
companies, civil society organizations, and host governments. The EITI
rules would apply equally to all companies that would be operating in a
country. That would level the playing field.
We have also heard from those on the left saying that voting to
repeal the rule would be a vote in favor of corruption. Yet,
importantly, the United States already has in place the Foreign Corrupt
Practices Act, which prohibits the paying of bribes to foreign
officials to assist in obtaining or trying to retain business. The
Federal Government is able to bring civil enforcement actions against
companies that violate this rule, and section 1504 of the Dodd-Frank
Act did not change that. That was in place before and is still in place
now. If we pass the CRA and eliminate section 1504 of the Dodd-Frank
Act, it is not going to change things.
There are others in the humanitarian community who have expressed
concern to me that the CRA will undermine efforts to fight corruption
in other governments around the world. Let me assure you that I support
your goal.
The courts were emphatic when they said this regulation should be
repealed. In fact, it was taken down by the court way back in 2013.
Well, it has come back up again. What we want to do is merely comply
with what the courts told us to do in 2013, and that is to use the CRA
to knock out this section 1504 and go back and rewrite it to take out
merely the requirement for a breakdown of all the individual elements
of a contract. That is something we intend to do.
I see my good friend from West Virginia, who I think would understand
just as well as anyone that when I go back to my State of Oklahoma,
they say to me: You have a President--this was back when President
Obama was President--who has a War on Fossil Fuels. Fossil fuels are
coal, oil, gas, and I would include nuclear. Coming from my State of
Oklahoma, they ask: Explain how, if 89 percent of the power that is
generated in America comes from fossil fuels and nuclear and they are
successful in doing away with it, how do we run this machine called
America? The answer is, we can't. We have to have it.
I think we all understand what we want to do is have this rule
changed so we are not put at a competitive disadvantage so we are able
to go ahead and compete with countries that have a government-run
system. To be able to do that, we need to rewrite this particular act.
Again, the courts have already agreed to that and that is what we are
attempting to do.
For those concerned about the timing and speed of the CRA, I have
good news. The actual rule is not set to go into effect until 2018
anyway. The more swiftly we can enact the CRA, the more time it will
give us and the SEC to rework it. This is something that is perfectly
acceptable.
Some of my critics say we can't come back with a rule that is
substantially the same. This will not be substantially the same.
Actually, this is what the court recommended in 2013.
In closing, I want to ask this question: If we put forth a rule that
makes it harder for U.S. companies overseas, who will fill the void?
The U.S. companies have the best environmental standards, the best
labor practices, and the least corruption of many of the other
countries. However, if this vacuum is there, the business will go to
companies from China, India, and Mexico that don't care about pollution
and don't care about labor standards. That is not what we want to have
happen. What we need to do is foster a strong competitive environment,
with reduced corruption overseas, for the benefit of those living under
these governments.
So I invite my colleagues to join me in this effort to do away with
this regulation through the CRA and to repeal section 1504 of Dodd-
Frank and rewrite it so it accomplishes the goal of stopping corruption
and at the same time is not going to put us at a competitive
disadvantage.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. MANCHIN. Mr. President, I rise also to speak about the rule. I
want everyone to know that the State of West Virginia has been a heavy-
lifting State. We are a construction State. We mined the coal that made
the steel that built the guns and factories that enabled our Nation to
defend us and gave us the great country we have.
We have done everything. There is no one in West Virginia, Oklahoma,
or any extraction State who wants dirty water or dirty air. Pitting
people against each other is just wrong. The way this comes down is
that this is a duplicative rule, this stream protection rule that was
put in place.
My colleagues know that last year the Department of Interior Office
of Surface Mining and Reclamation Enforcement basically decided to send
the final stream protection rule to the White House without fulfilling
their obligations or even a request by myself to contact and work with
the local authorities and to work with the States that are involved.
They did nothing. They would not reach out to us whatsoever. This was
one of many of President Obama's administration's regulations that
absolutely crippled West Virginia families and businesses with no plan
to replace or create new jobs or help these communities.
Not only is this rule very alarming in its scope and potential
impacts, the rulemaking was executed in a very flawed way. The rules by
the Department of Interior and Office of Surface Mining and Reclamation
must be based on comprehensive data that is available to stakeholders,
particularly when those rules threaten to eliminate thousands of jobs.
All we have asked was to come to the DEP, the West Virginia Department
of Environmental Protection, and tell us what is not working, tell us
what you want us to do differently, work with us and help us strengthen
where there is a flaw.
Not once did we ever get that type of courtesy. States critical to
the implementation of this rule were left out of the process in any
meaningful way. The Office of Surface Mining failed to work with States
throughout this process, despite the clear congressional intent.
Furthermore, agencies should not be assuming duplicative rules that
overlap regulations under other environmental laws such as the Clean
Water Act.
This rule is excessive and duplicative. It has over 400 changes to
the Surface Mining Control and Reclamation Act--which is what we refer
to as SMCRA--that duplicate existing practices and protections that the
EPA and the Army Corps already oversaw.
[[Page S623]]
So, basically, we already have two agencies that have to do with any
type of permitting that goes through the EPA, in conjunction and in
alliance with the Army Corps. This overstepped and took all the powers
away from them completely. Why would we want to duplicate? If we have
an agency that is not doing its job, either change the personnel or get
rid of the agency; don't just create another duplicative role and
another agency to oversee it.
During my time in the Senate, I have been committed to policies that
protect our coal-mining communities and economies, and that is why I
introduced this resolution of disapproval to undo this harmful,
duplicative regulation.
I am a firm believer in the balance between the economy and the
environment. I believe that everything we do in life should have a
balance, and we should try to find that balance. But when you are
trying to basically use overreach, duplicative rules--a nuisance--which
do nothing but create havoc and make it almost impossible to go
forward, you can't hire enough lawyers and enough accountants to get
through the paperwork the government can put on you.
But never once, from any of us--from West Virginia or any other State
that does the heavy lifting--none of us think that we should discard
the Clean Water Act or the Clean Air Act. Those are things that we will
cherish and we will protect, and those came about by Republicans and
Democrats working together--Republican administrations. We are all for
that; we are just not for beating us over the head with a hammer when
we can work to fix things if we think there is an error.
The consequences of this regulation will have far-reaching impacts on
the future of coal mining and therefore all other things we can count
on. I think, as the Senator from Oklahoma just said, in West Virginia,
we have what we call ``all of the above'' energy. We want all of the
above to be used, and use it in the cleanest fashion, and design and
develop new technologies that we can use and depend on. We depend on
coal, we depend on natural gas, and we depend on nuclear power for the
majority of our energy.
The other thing I have said is that I believe we should be developing
renewables also, and we are doing that. Wind, solar, biomass--we do
everything. But if you believe that is going to run the country in the
energy you use every day and take for granted, then tell me what 4
hours of the day you want your electricity to run. What 4 hours of the
day do you want your refrigerator to stay cold? What 4 hours of the day
do you want to heat your home? Tell me what 4 hours of the day you take
for granted that anything and everything you want works 24 hours a day,
because you will not have baseload. Those are the facts. If you don't
like it, then let's continue to work to make it better, but don't just
put your head in the sand and say: I am going to have whatever I have.
This will work fine. And I have no fossil. I don't need fossil.
I am sorry, the world doesn't work that way. This country doesn't
work that way. The grid system--your light switch--doesn't work that
way.
So today once again I am standing on behalf of West Virginians and
commonsense people all over this country, and we have a lot of them in
West Virginia. I ask my colleagues to hear their voices and vote in
support of this resolution that gets rid of these overreaching,
duplicative rules that do nothing but create havoc on the economy and
the well-being of the citizens of our great country.
Thank you, Mr. President.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Ms. HEITKAMP. Mr. President, I think all of us understand the gravity
of moving forward on a CRA. It is not a usual procedure; it is limited
in terms of filibuster rules, and it is extraordinary. In this case,
unfortunately, it is necessary. Had the previous administration
actually listened and worked constructively with Senator Manchin and me
and my utilities and the coal industry in North Dakota, we would not be
standing here now.
This was a rule that had a specific intent of addressing mining
practices in Appalachia. Yet the former administration made the rule
applicable to the entire country.
I don't know that any of those folks drafting the rule had ever been
to North Dakota to see just how different our mining practices and
geology are compared to Appalachia, so I invited former Assistant
Secretary Schneider out last year to take a look for herself. When she
came out, she heard directly from North Dakota utilities, regulators,
and coal companies, and she saw how our operations differ and how my
State is a national leader in reclamation. Based on the final rule, it
is apparent that the rule was already made before her visit, and the
input of the folks back home in my State, quite honestly, was not taken
seriously.
North Dakota coal stakeholders estimate that the rule could cost coal
producers in North Dakota alone approximately $50 million annually in
additional compliance costs and take more than 600 million tons of
otherwise mineable, affordable coal off the table.
I will tell you, when you look at the landscape of North Dakota and
you are sitting there and you are explaining this and you are showing
how one rule would require equipment to be moved, draglines to be
moved, and how all of that makes absolutely no sense in terms of the
resource and, in fact, in terms of the difficulty of actually doing
reclamation that needs to be done in that situation; when you are
standing out there and you actually look at it, the only conclusion you
can come to when you see the net result of this rule is that it was
intended to shut down coal mining. That is the only conclusion I could
come up with. It wasn't about clean air and clean water; it wasn't
about protecting this resource; it was about shutting down the coal
mines.
So this impacts not only the ability of our utilities to access this
affordable and abundant resource, it hits thriving rural communities
throughout North Central North Dakota, communities like Hazen,
Washburn, and Beulah that rely on coal for good-paying jobs, for
funding our schools, for fire protection, for law enforcement and other
community resources that allow our rural communities and healthy middle
class to thrive in the State of North Dakota.
One-size-fits-all rules do not make any sense. And when you look at
the application of this rule and once-size-fits-all, it clearly makes
no sense. The beautiful mountains, forests, and streams that dominate
the West Virginia landscape, as just described by my great friend
Senator Manchin, are nothing like the rolling prairies, the buttes, and
the prairie potholes of North Dakota. How anyone can look at these two
States and think that a rule which is promulgated which will be
universally applied can logically be applied to those two different
landscapes--the logic of that completely escapes me.
A rule that requires enhancements to the land, including trees and
permanent fencing to keep livestock away from streams--well, in North
Dakota, we are pragmatists. Not only do we return the land to the same
or better condition, we usually convert that land from farm or
ranchland to this beautiful landscape we see here.
I want everyone to understand what reclamation looks like. I want you
all to understand that this used to be a strip mine. This used to be a
big hole in the ground producing coal. And over generations, and
restoring this to the topography--the biggest challenge we have in
North Dakota is convincing the original landowner, who would love it to
be straight so it is easier to farm, that we have to put it back the
way it was.
My colleagues can look at this landscape, and they cannot tell me
that the company that did this and the State that set the standards and
the commitment that was made to reclamation was not honored; that it is
not working in North Dakota and that we need a one-size-fits-all stream
regulation to fix a problem that doesn't exist--a problem that is going
to cost us $50 million and hundreds of jobs in my State. This is
exactly why the people of this country get frustrated, and the people
of this country do not understand why Washington, DC, thinks they know
it all.
As a matter of fact, our reclamation programs are highly regarded,
and we are, in fact, recognized for doing the best reclamation in the
country. I would point to the 2016 Abandoned Mine Land Reclamation
Small Project
[[Page S624]]
Award that went to our mine reclamation project in Bowman, ND.
Our coal industry and our utilities are always willing to work with
the Federal Government on regulations that focus on actual results, on
improving environmental safety and standards. They are willing to do
that again. They have never had an issue with updating this regulation.
All that was asked was that the former administration listen to them,
actually believe their eyes when they see the work we are doing and
understand the impact of that rule.
It was done in haste, it was done hurriedly, and it was done so they
could check a mark and say: See, we really are leaving it in the
ground.
If you want to be leave-it-in-the-ground, then have the courage to
come here and say that this country, in the next 20 years, will not
extract one fossil fuel from the ground.
I have great respect for Senator Markey. He was just here talking
about how we have made progress because of the conversion from coal
mining to natural gas. It is a little disingenuous, I would say,
because the whole while, we are talking about how this conversion would
not have been made possible if it weren't for industry practices of
utilizing fracking to extract natural gas.
This is a structured movement using bogus regulations to promote a
national policy without having the courage to just advance that
national policy forward, which is to leave it in the ground.
We heard from Senator Manchin. I want everyone who says: We are going
to pursue a leave-it-in-the-ground national policy--I want them all to
think about what that does to women and children who live on fixed
incomes. I want you to think about what that means for reliable,
redundant, and affordable power generation in our country. We are going
to let the market decide.
We have moved toward wind energy, which, ironically, the big movement
of wind energy was facilitated by a compromise we reached over a year
ago that dealt with allowing for the export of crude oil out of this
country--the lower 48--in exchange for more permanency and for
production tax credits and investment tax credits. We can, in fact,
achieve a public policy result if we work together and if we don't have
hidden agendas like ``leave it in the ground.''
This rule was wrong, it was structured wrong, and it attacks an
industry that does this. I will tell my colleagues, I have been out
there. I have worked in this industry and I have been a regulator of
this industry. This is not unique. This is what reclamation looks like
in North Dakota. And to suggest that we have not been good stewards, to
suggest that somehow we are contaminating this beautiful resource by
what we are doing, is wrong on so many levels. It is costly to our
consumers. It costs us jobs, and it is wrong on so many levels.
With that, I would say, please--this is a process that should only be
used very rarely but I think is being used appropriately in this
situation with the stream rule. So I stand with my friend Joe Manchin
in helping sponsor this CRA. We will continue to fight for our
industry, fight for our good-paying jobs, and fight for commonsense
regulation that actually achieves the purpose of protecting this
beautiful resource we have in North Dakota.
Thank you, Mr. President.
I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, I am deeply concerned about efforts
underway to use the Congressional Review Act to eliminate protections
that have saved lives and cleaned up our environment. I certainly
respect the views of my friend and colleague from North Dakota, but
there are other perspectives to consider. And while today it is a
stream buffer rule, tomorrow it will be some other rule intended to
protect the health of our communities and our citizens.
The Congressional Review Act is a rarely used tool that can erase
rules that have taken years and much public input to develop. Passing a
CRA resolution, as we are being asked to do in this instance, also
prevents us from implementing similar protections in the future. The
reason is that by passing this kind of resolution, it prevents us from
implementing any kind of other rule that is similar in nature.
Regardless of whether you voted for Donald Trump or Hillary Clinton,
nobody wants to live in a dirty environment where we don't have clean
water, clean rivers, clean streams, or clean air. Once again, we are
being told to choose between a clean environment and creating jobs.
In Hawaii, we have one of the lowest unemployment rates in the
country and some of the most robust protections for our environment.
Today's debate over the stream buffer rule and future debates under the
Congressional Review Act are not about States' rights. Today's debate
is not about regulation for the sake of regulation. It is not about a
war on coal; it is about preventing fossil fuel companies from creating
unhealthy communities by polluting the water we drink and the air we
breathe.
The Department of the Interior has been working on this rule for 7
years--7 years. It replaces an outdated regulation that was written
during the Reagan administration in 1983.
Science has come a long way in 34 years. In that time, we have
learned a lot about the detrimental impacts of coal mining on clean
water and public health. Clean water is essential, and politically
expedient decisions we make now will have lasting impacts for years to
come, as families in Flint, MI, know all too well.
The stream buffer rule that we are being asked to undo requires coal
companies to monitor water for contaminants. Communities have a right
to know what is in their drinking water. They have a right to know that
their water is clean. They have a right to know what kind of
contaminants are in their water. I don't think this is an unreasonable
expectation. Why are we making this debate a fight between supporting
jobs for coal miners and clean water?
Divide and conquer is a time-tested tactic that ends up hurting
vulnerable populations and communities. Let's not fall prey to such
divisive tactics. This is why I am perplexed as to why we are voting to
undo the progress we have made. I will be voting against the CRA and
any other CRAs that harm our environment and public health and force us
to make a false choice.
Again, while I respect the views of my colleagues who have a
different perspective on what we are being asked to do today, I urge my
colleagues to join me in defeating this resolution.
Mr. President, I yield the floor.
Mr. CARDIN. Mr. President, I wish to oppose the resolution of
disapproval on the stream protection rule. Each Congress has an
opportunity to promote having cleaner air and cleaner water. Our job
description shouldn't include hollowing out the protections for clean
air and clean water which previous Congresses have provided.
Clean air and clean water are vital not just to human health and the
environment, but to our economy as well. The number of premature deaths
due to poor water quality affects our economy. The number of school or
work days missed due to health problems affects our economy. The
ability of industries to have access to clean water affects our
economy.
Like many of my colleagues, I am proud to represent part of
Appalachia, in the western part of Maryland. I have enjoyed skiing,
hiking, and simply enjoying one of the most beautiful places in our
country. Recreational activities along the Appalachian Mountains depend
upon clean air and clean water. And recreation is a huge part of
expanding economic opportunities in Appalachia.
Over the years, I have met with many people directly affected by the
mining practice known as mountaintop removal, and I have worked very
hard to address their concerns in a bipartisan manner. For instance, in
the 111th Congress, I introduced S. 696, the Appalachia Restoration
Act, with the senior Senator from Tennessee, Mr. Alexander, to help
protect streams and rivers.
The stream protection rule updates 33-year-old regulations to
implement the Surface Mining Control and Reclamation Act. The update
establishes clear requirements for responsible surface coal mining that
will protect 6,000
[[Page S625]]
miles of streams and 52,000 acres of forests over the next two decades,
preserving community health and economic opportunities, while meeting
the Nation's energy needs.
The stream protection rule includes reasonable and straightforward
reforms to revise three-decades-old coal mining regulations to avoid or
minimize harmful impacts on surface water, groundwater, fish, wildlife,
and other natural resources. There are a number of very positive,
reasonable, and economically feasible changes in the proposed stream
protection rule that make it an improvement over the existing
regulations.
The rule incorporates the best available science, technology, and
modern mining practices to safeguard communities from the long-term
effects of pollution and environmental degradation that endanger public
health and undermine future economic opportunities for affected
communities.
The final Rule gives regulators more tools to measure whether a mine
is designed to prevent damage to streams outside the permit area.
The rule would require companies to avoid mining practices that
permanently pollute streams, destroy drinking water sources, increase
flood risk, and threaten forests.
It would also require companies to restore streams and return mined
areas to the uses they were capable of supporting prior to mining
activities and replant these areas with native trees and vegetation,
unless that would conflict with the implemented land use.
To help mining companies meet these objectives, the rule requires
testing and monitoring the condition of streams that might be affected
by mining before, during, and after their operations to provide
baseline data that ensures operators can detect and correct problems
and restore mined areas to their previous condition.
Using the Congressional Review Act, CRA, to attack a rule that
protects people and communities from harmful impacts of irresponsible
coal mining operations, such as buried streams, floods, and subsidence,
will benefit coal companies that cut corners at the expense of the
people who live in Appalachia. And if the resolution is passed,
agencies will be prohibited from promulgating any other ``similar''
rule, unless Congress passes enabling legislation.
Opponents of the rule call it a ``job killer.'' That is myth. The
regulatory impact analysis, RIA, for the rule estimates that, overall,
employment will increase by an average of 156 full-time jobs. According
to the RIA, the rule will create more than twice as many jobs as it
will eliminate by requiring operators to perform more duties for
reclamation, including stream monitoring. Likewise, the impact on an
average household's monthly electricity bill is slight: just 20 cents
per month.
Coal miners and their families need jobs, and they need clean water.
The two aren't mutually exclusive. What they don't need is this attempt
to gut a reasonable rule designed to protect them from an environmental
disaster, which is much more likely to occur if the Senate passes this
resolution of disapproval.
Mr. SANDERS. Mr. President, I oppose the Republicans' current efforts
to gut environmental protections that put industry profits before
public health. In repealing the EPA stream protection rule, Republicans
are again choosing to put the health and well-being of average
Americans in jeopardy in favor of the interests of the Big Coal
industry.
This bill seeks to unravel clean drinking water protections
implemented by the Obama administration. The last time I checked, no
one voted to pollute the environment in the last election. The majority
of Americans do not agree that we should be dismantling protections
that ensure clean air and clean water.
The stream protection rule shields communities from toxic pollution
from coal mining, updating regulations that are more than 30 years old.
These protections bolster those in the Clean Water Act and establish a
long-overdue monitoring requirement for water pollutants--including
lead, arsenic, and selenium--known to cause birth defects and other
severe human health impacts. The rule was updated to better protect
public health and the environment from the adverse effects of surface
and underground coal mining.
This rule would protect or restore about 6,000 miles of streams and
52,000 acres of forest over two decades. It would prevent water
pollution by authorizing approval of mountaintop removal mining
operations only when natural waterways will not be destroyed, requiring
protection or restoration of streams and related resources, such as
threatened or endangered species. It gives communities in coal country
much needed information about toxic water pollution caused by nearby
mining operations. Long-term, the rule would ensure that premining land
use capabilities are restored and guarantee treatment of unanticipated
water pollution discharges.
Mountaintop mining destroys communities. Let's be clear. This rule
helps protect communities from the pollution caused by mountaintop
removal coal mining. In Appalachia, mountaintop removal coal mining has
been responsible for the destruction of 2,000 miles of streams and 2.5
million acres of the region's ancient forests. States have issued
advisories that people should not eat the fish in mined areas because
of chemical contamination. In dozens of peer-reviewed studies,
mountaintop removal mining has been linked to cancer, birth defects,
and other serious health problems among residents living near these
sites. According to Kentuckians for the Commonwealth, the public health
costs of pollution from coal operations in Appalachia are $75 billion
every year.
According to a 2011 study in the Journal of Community Health, in
counties where mountaintop removal occurs, cancer rates are almost
twice than those nearby where there is none. As many as 60,000
additional cases of cancer are linked to the practice within those 1.2
million Americans who live in these areas.
In addition, a 2011 study in the scientific peer-reviewed journal
Environmental Research found that, even after accounting for
socioeconomic risks, birth defects were significantly higher in
mountaintop mining areas compared to non-mining areas.
Likewise, a 2011 study in the Journal of Rural Health found that
areas in Appalachia with mountaintop removal have significantly higher
death rates from heart disease than other areas with similar
socioeconomic conditions. Researchers in the same Rural Health study
estimated that more than 700 additional deaths occur annually.
Yet the rule is dogged by many myths and falsehoods spurred by the
fossil fuels lobby. Almost a quarter of a billion dollars have been
spent by opponents of the rule--the coal mining industry, electric
utilities, National Association of Manufacturers, railroads, and the
U.S. Chamber of Commerce--on political lobbying and campaign donations.
They--and Republicans--claim that implementing this rule will kill coal
production--not true. Coal production is impacted by many factors,
including low natural gas prices. The CEO of the coal company Murray
Energy even said, ``I've asked President-elect Trump to temper his
comments about . . . bringing coal back. It will not happen.''
In comparison, this rule could actually create jobs. Many of the jobs
created by the rule will be construction-type jobs easily conducted by
former coal miners.
Another myth is that the rule is a huge economic burden on industry--
not true. The economic impacts of implementing this rule are small
relative to the size of the coal industry. Industry compliance costs
are estimated to average only 0.3 percent or less of the coal
industry's $31.2 billion 2015 estimated annual revenues. Conversely,
the costs of repealing the rule are borne by Appalachian families and
small businesses. Families in these communities will be the ones to
endure significant health impacts. Businesses like restaurants, farms,
and the outdoor recreation industry rely on clean water and are
jeopardized by coal contamination in their community's streams.
I urge my colleagues to vote no on this effort to kill the important
protections provided by the stream protection rule. We must reject
efforts to put the interests of the Big Coal industry above the health
and well-being of the American people.
Mr. VAN HOLLEN. Mr. President, with the resolution on the floor
today, our Republican colleagues are beginning their effort to roll
back critical
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health, safety, and environmental safeguards that the Obama
administration put in place.
The tool that they are using, the Congressional Review Act, is a
particularly blunt instrument. The Congressional Review Act allows the
majority to rush a resolution of disapproval through the Senate with
limited debate and only a limited opportunity for Americans to see what
Congress is doing.
But a resolution of disapproval under the Congressional Review Act
does not just send a rule back to the drawing board. Instead, the
resolution repeals the rule and prohibits the Agency from ever
proposing anything like it again. An analysis in the Washington Law
Review reported that it is ``conceivable that any subsequent attempt to
regulate in any way whatsoever in the same broad topical area would be
barred.''
The rule before us today, the stream protection rule, deals with how
waste from surface mining, also called ``mountaintop mining,'' is
handled. The rule prevents this waste from being dumped near streams.
The waste from these mining operations includes toxic pollutants like
lead and arsenic. And these pollutants can cause serious health
problems in surrounding communities. A 2008 study in the Journal of the
North American Benthological Society found that 98 percent of streams
downstream from mountaintop mining operations were damaged. This rule
limits pollution near streams, requires monitoring of water quality,
and creates standards to restore streams after a mining operation ends.
The Reagan administration first put forward stream protections in
1983, exercising authority under the Surface Mining Control and
Reclamation Act of 1977. Today more than 30 years later, we better
understand the effects of surface mining, and it makes sense to update
our standards to protect public health. The Bush administration
revisited the issue in 2008, but a Federal court vacated the Bush
administration rule because they failed to fully consider effects on
wildlife.
Under the Obama administration, in 2009, the Office of Surface Mining
Reclamation and Enforcement, or OSMRE, began considering options to
bring these stream protections up to date with the current scientific
understanding. In the course of developing the updated rule, OSMRE
shared information and solicited comment from State regulatory
authorities and incorporated their feedback. The Office of Management
and Budget's Office of Information and Regulatory Affairs continued the
stakeholder engagement process. The Obama administration considered the
issue deliberately, for 7 years, before publishing the final rule in
December.
OSMRE acted appropriately with the Stream Protection Rule. But the
question before us today is not whether the rule is perfect. Today we
are considering whether the Agency should be permitted to update the
old 1983 rule at all. I believe that it was right for the government to
update this outdated regulation and use the best available science to
protect drinking water and safeguard public health. Therefore, I urge
my colleagues to join me to vote against this resolution to disapprove
the rule.
Ms. HIRONO. I suggest the absence of a quorum.
The PRESIDING OFFICER. Will the Senator withhold her suggestion?
Ms. HIRONO. Yes, I will.
The PRESIDING OFFICER. The Senator from Nebraska.
Nomination of Neil Gorsuch
Mrs. FISCHER. Mr. President, I rise to address the nomination of
Judge Neil Gorsuch to serve on the Supreme Court of the United States.
I will address Mr. Gorsuch's qualifications and his extensive legal
experience in a moment, but first, I invite my Senate colleagues to
consider: What do we seek in a nominee to our Nation's highest court?
Maybe it is easier to say what we don't want. We do not want a
lawmaker. Washington has plenty of those, 100 Senators and 435 Members
of Congress. We do not want a crusader for a cause. Most of all, we do
not want a trailblazer.
What we want is a follower of the Constitution. We want a Supreme
Court Justice who will follow the laws, as written, and uphold the rule
of law. This demands discipline; it requires the rarest of virtues:
humility. There is no room for hubris on the Supreme Court.
We do not want a Justice who believes he knows better than our
Founders. That is not his job. A Supreme Court Justice should neutrally
apply the laws as written by Congress and as understood by the Framers
of our Constitution. They must not impose their personal preferences
upon the law or upon the American people. I want to say again that we
want someone who will follow the law and uphold the rule of law.
We also seek a keen legal mind. A nominee must possess the sharpest
intellect and only the most rigorous academic qualifications. This
person may be one of nine human beings who will resolve questions
affecting the freedoms and the rights of millions. Therefore, in
addition to ironclad commitment to the rule of law and brilliant
intellect, this person must be a known quantity. There must be a
reliable record for us to carefully assess.
In exercising our constitutional power of advice and consent, we
don't make guesses here in the U.S. Senate. We hold hearings; we ask
probing questions. This is how we will determine if Mr. Gorsuch is the
legal disciple, brilliant mind, and known quantity the American people
need and the person the American people deserve. The evidence so far
suggests that he is.
As a judge on the U.S. Court of Appeals for the Tenth Circuit, Mr.
Gorsuch has served 10 years in extraordinary fashion. He was confirmed
by a voice vote here in the U.S. Senate. His opinions reflect a history
of upholding the rule of law. His conduct on the bench demonstrates an
exemplary judicial temperament. He is enormously well qualified. His
educational background is impressive: an undergraduate degree from
Columbia, a law degree from Harvard, and a Ph.D. from Oxford
University. Judge Gorsuch clerked for the Supreme Court. Further, he is
well within the mainstream.
Among his many impressive academic distinctions, he is a Truman
Scholar. This sizeable financial award is given by the Harry S. Truman
Scholarship Foundation to young people pursuing a career in public
service. I note that my colleague from Delaware, Senator Coons, is a
Truman Scholar. Former Secretary of State Madeleine Albright serves as
president of the Truman Foundation. Senator McCaskill of Missouri is a
board member. All are highly respected Democrats. It should be telling
that the organization, now headed by Secretary Albright and Senator
McCaskill, helped Mr. Gorsuch fund his graduate studies.
Jeffrey Rosen of the nonpartisan National Constitution Center had
this to say about the judge: ``He sometimes reaches results that favor
liberals when he thinks the history or the text of the Constitution or
the law require it, especially in areas like criminal law or the rights
of religious minorities.''
Norm Eisen, Special Counsel for Ethics and Government Reform in the
White House for President Barack Obama, attended law school with Mr.
Gorsuch. He called him, simply, ``a great guy.''
There is much more that can and will be said about the nominee in the
days to come. Much of it will contribute to a vigorous confirmation
process. Sadly, I suspect much of it will not. Many, including some in
this Chamber, have said they will oppose any nominee, no matter how
qualified.
Americans deserve better than this bitter feud in the U.S. Senate.
The Presidential campaign is over. As the Washington Post recently
editorialized, ``A Supreme Court nomination isn't a forum to refight a
presidential election.'' The newspaper's editors urged against ``a
scorched-earth'' response.
Senate Republicans gave President Bill Clinton an up-or-down vote on
his first two Supreme Court nominees. Senate Republicans gave President
Obama an up-or-down vote on his two first Supreme Court nominees. This
is a chance for my colleagues in the U.S. Senate to show how high-
minded they can be. They can permit a similar up-or-down vote on this
President's first Supreme Court nominee.
I invite them to engage with me in a respectful, civil dialogue as we
carry out our duty of advice and consent. We need a vigorous
confirmation process, and I will work for that vigorous, open,
respectful, and transparent process. I
[[Page S627]]
hope all of my colleagues on both sides of the aisle will join me in
that.
Mr. President, I yield back the remaining proponent debate time.
The PRESIDING OFFICER. The proponent's time is yielded back.
The Senator from Delaware.
Nomination Neil Gorsuch
Mr. CARPER. Mr. President, I would just remind my colleagues that a
lot of folks in my State and people I talk to around the country
believe it is outrageous that the last President nominated a candidate
for the Supreme Court for almost a year--a full 10 months--before
stepping down before his term ended, and that nominee never got a
hearing.
We had a National Prayer Breakfast this morning, as our Presiding
Officer knows. One of the occurring themes of the speakers at the
Prayer Breakfast was the Golden Rule, the obligation to treat other
people the way we want to be treated. I think that should apply to this
nominee from this President. I also believe it should have applied to
the last nominee from the last President. I think the way Merrick
Garland was treated was outrageous, and he was roundly praised by
Democrats and Republican, Members of this body, alike. The fact that he
never got a vote I think is appalling. It runs against everything I was
taught to believe.
Perhaps the Presiding Officer's parents raised him the same way. My
parents raised us to believe that two wrongs don't make a right. Two
wrongs don't make a right. Folks on our side believe--although deeply
troubled by the way the last nominee for the last administration was
treated--this nominee deserves a hearing. My hope is that he gets one
and there is time set aside to prepare for that hearing. My hope is
that he will take the time to come and meet with us, particularly those
of us who have concerns about his nomination.
I think he should be subject to the same 60-vote margin the last
several Supreme Court nominees were subjected to and passed; I think in
one case it was 62 votes, and in another case, 63 votes.
I just want to let my friends on the other side--and they are my
friends--know that we and, frankly, a lot of people in this country are
still troubled, looking back. We are going to look forward with the
Golden Rule in mind. My hope is that our colleagues will do the same in
the future.
Mr. President, I rise on a subject that some of my colleagues have
talked about here today. It is one that we have been discussing for
almost the last 24 hours. It is a Congressional Review Act resolution
to disapprove the stream protection rule.
People may wonder, What does this mean? There once was a Senator from
Nevada named Harry Reid. He once wrote a law that said: If Congress
doesn't like a particular rule that has been approved and has gone
through the process--drafting, all the approval processes--published in
the Federal Register, and something like 60 days on the legislative
calendar have run, then that rule is official; it is in full effect.
However, if a Member of this body or the House wants to use the
Congressional Review Act authored by Senator Harry Reid, they can
repeal a rule for which the 60-day legislative clock has not run since
that rule or regulation was published in the Federal Register.
In this case, 60 legislative days have not passed since the stream
protection rule was promulgated, printed in the Federal Register, and
one or more of our colleagues has said: Let's use the CRA--
Congressional Review Act--to see if we can block or repeal it.
I spoke on this yesterday, and I am happy to have a chance to talk a
little bit about it again today.
A prevailing argument in favor of this resolution to kill the rule is
the significant negative economic implications of managing mining
operations and site reclamation in such a way that life and economy
continue along with and after extraction ends.
Let's take a few minutes to reflect on the other side of the coin. I
can assure you that hunters, fishermen, birdwatchers, and recreation
enthusiasts of all ages, sorts, and varieties in my home State of
Delaware--and I am sure in every State in our Nation--value an
environment that supports the places they treasure and the species they
seek. That is not the legacy of mining.
Because of historically weak reclamation and restoration
requirements, Appalachia now has more than a million acres of
economically unproductive grasslands that cannot support farming,
ranching, or the hardwood forest products sectors. That is one of the
reasons for and one of the many strengths of this rule: to focus on
post-mining economic uses of land, which could include ranching,
forestry, tourism, birdwatching, hunting, fishing, and the list goes
on.
In America today, there are 47 million men, women, and children who
hunt and fish. We all represent them. According to a 2014 report from
the National Wildlife Federation, these activities deliver an
astonishing $200 billion to the country's economy, and they support one
and a half million jobs.
I wish to also point out that mining impacts on headwaters are
particularly important, as they represent the very foundation of our
water system that supports all these activities and generates all of
these benefits. Just to illustrate this point, Appalachia--a region in
which I grew up--is the world's leading hotspot of aquatic
biodiversity. I was born in Beckley, WV, and we lived there for 6 years
or so after I was born and I came back a whole lot over the years to
hunt and fish with my grandfather, but I had no idea there was this
kind of biodiversity in that region.
There are more species of freshwater fish in one river system in
Tennessee than in all of Europe. Think about that--more species of
freshwater fish in one river system in Tennessee than all of Europe.
Yet surface coal mining has destroyed more than 2,000 miles of streams
in this region alone. Cutting the heart out of our ecosystems is no way
to do business.
The question is, Would mining companies respect and consider these
values and benefits as part of their operations and reclamation efforts
without surface mining and clean water laws and the effective
protections provided by the stream protection rule? I would say
probably not. It is no surprise, then, that conservation and
fishermen's organizations, such as Trout Unlimited, the American Fly
Fishing Trade Association, the Izaak Walton League of America, and
Theodore Roosevelt Conservation Partnership, so strongly support this
rule and robust implementation of the Clean Water Act. In fact, 82
percent--over 8 out of 10--of America's hunters and anglers feel that
we can protect water quality and also have a strong economy and good
jobs at the same time. It is a false choice to say we can't have both
at the same time.
The stream protection rule would protect and restore an estimated
6,000 miles of streams and 52,000 acres of forest over two decades--
areas important for hunting, fishing, and outdoor recreation.
All these activities would provide local citizens and communities
with economic opportunity to replace or build upon what often are one-
industry regions. They, in turn, support local economies and create
accessible work opportunities for residents, many of whom would
otherwise struggle to make ends meet, care for their health, and
support their families. In the end, this is a much more valuable and
sustainable future for everybody concerned.
These truths hold in their unique ways in mining States across our
country, whether they involve ensuring salmon runs in Alaska or
ranching in Wyoming.
I will close by repeating a point I made previously in support of
this stream protection rule. This past year, the Office of Surface
Mining Reclamation and Enforcement and the Fish and Wildlife Service
completed consultation under the Endangered Species Act, resulting in
what is known as the 2016 Biological Opinion. This new Biological
Opinion smooths the way for more efficient Endangered Species Act
compliance and provides some important protections to industry and
State regulators regarding possible impacts of mining operations on
protected species.
I think it is important to note that if we kill this rule--and I hope
we will not--that protection for industry and State regulators will go
away, and those players will have to resort to a more cumbersome case-
by-case review under the Endangered Species Act for all activities that
might affect protected species. That would be a shame.
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That would be a shame, especially for a struggling industry.
For this and for so many other reasons, this is a job-creating,
economy-expanding rule. Why wouldn't we support it? Once again, I urge
a ``no'' vote on this resolution.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, yesterday I had the chance to come to the
floor and talk about the changes I have seen in the streams and rivers
in my home State of Oregon as we worked to clean them up, restore them
for wildlife, restore them for swimming, restore them for boating, and
restore them for drinking water, and how terrific it was to see this
occur.
We are now considering a parallel provision--a provision designed
really to protect the streams near intense mining zones. I had a chance
yesterday to go through the details of the regulation and how it made,
for example, the coal slurry ponds more secure so they wouldn't
rupture. As I pointed out, one ruptured and killed over 100 people and
injured more than 1,000 people, not to mention the damage it did to the
ecosystem for an extended length downstream. I talked about the toxic
chemicals that are leaching out of improperly developed piles, as they
are called. Today I want to share a few more of the stories of folks
who live in the area and how important it is for them.
Sam Needham, who lives near Appalachia, VA, talks about the changes
he has seen in rivers near his home since he moved there in 1978. Sam
said that when they first moved there, ``Callahan Creek that runs near
our house . . . was full of different kinds of fish. Now I don't see
any fish in the water. I wish it could be like it was in the 70's and
80's, but with all the runoff from sediment ponds and mines, I don't
think it will ever be like that again.'' Sam supports the stream
protection rule. He said: ``I would like to see regulations to protect
our waters and maybe one day be able to fish in Callahan Creek again.''
He is not asking for a tremendous amount.
Chad Cordell of Charleston, WV, said that he has ``been concerned
about the impacts of mountaintop removal since learning the beautiful
valleys and streams of my home state were being buried under hundreds
of feet of rubble.'' He said he wants ``strong, science-based
protections for the creeks, streams, and rivers that are the lifeblood
of our state,'' and he noted that ``attacking the Stream Protection
Rule isn't the way to build strong, healthy, resilient communities or a
strong, stable economy.''
John Kinney of Birmingham, AL, said:
I have lived most of my life in Jefferson County, Alabama,
enjoying the outdoors, particularly canoeing and fishing on
the Black Warrior and Cahaba River.
While it seems that many folks in regulatory agencies don't
consider Alabama to be part of Appalachia, and don't
understand the extent of coal mining in our state, I have
seen the devastating impact of coal mining in our state . . .
first hand.
He goes on:
I have seen lakes turned gray downstream of mines. I have
seen streams turned bright orange downstream of coal
preparation plants. I have seen sloughs that once formed deep
channels (perfect spots for largemouth bass) filled in with
sediment.
John wants to see Federal protections ``that help protect water
quality for all uses downstream of coal mines and associated
industries'' and wants to see the stream protection rule stay where it
is.
Here is a final story. It is from Chuck Nelson, a fourth-generation
coal miner from West Virginia who dug coal underground for 30 years. He
became an advocate for environmental rules like the stream protection
rule after a coal processing plant was built near his home. Thick,
black coal dust was always coating his home inside and out. His wife
developed very bad asthma problems, and his kids couldn't use the
swimming pool because of a thick black skin always on the top of the
water. He decided to make his voice heard, and he came to DC from West
Virginia 25 times to talk to lawmakers and regulators. He was a regular
citizen. He saw a problem impacting his wife, and he wanted us to work
to fix it. He finally succeeded when the stream protection rule was
finalized in December.
It amounts to this: The way that one conducts mountaintop coal mining
has a huge impact, just as it does with other industries. Having basic
rules about how that work is done ensures sustainability of the nearby
streams. This was done with a tremendous amount of involvement of
stakeholders, tremendous number of meetings, 6 years of coordination,
trying to find a way that doesn't paralyze coal mining but does protect
the streams. That is the balance which was being searched for,
discovered, and implemented with this rule, and we should leave it in
place. We shouldn't destroy these years of work to protect our
beautiful streams with just a few hours of debate, with no public
notice or awareness of what is going on. If we want to review this
thoughtfully and seriously, let's have it done in committee, where the
public can participate and Senators can take a deliberate stand and not
destroy this work to protect these thousands of miles of streams in a
blink of an eye.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, there is a provision in the law which
allows the Congress to review regulations within 60 days after they are
written and decide up or down. That is what we are doing here.
This is about the stream rule that has a direct impact on mining
operations, particularly coal mining operations. This has been a battle
that has been going on for decades--decades--trying to establish a fair
environmental standard for those in mining operations. Efforts have
been made, some with limited success. Courts have thrown out earlier
versions. So the Obama administration decided they would tackle this.
They spent 6 years rewriting 380 pages of rules. Over 150,000 public
comments were solicited and received.
This is a pretty controversial matter, as you can tell. I have been
amused by the critics of this rule who said: Well, Obama just did that
as he was going out the door. No. They worked on it for years. There
were, as I said, over 100,000 public comments. It is not easy. It is
tricky and it is challenging, but they produced it. Now today the
Republicans in the Senate and the House want us to wipe it away.
What difference would it make? If you don't live next to a coal mine,
do you think, well, what difference does it make in my life?
I listened to Jeff Merkley, my friend from Oregon, talk about the
streams and the rivers. Maybe I don't fish, and I don't care. I don't
go out camping, either, and I haven't been hiking. Whether the fish are
alive or dead or the streams are polluted or not, who cares? I guess
some people feel that way. I don't, even though I don't use our natural
resources as much as some. But there is a bigger issue here. This is
not just about whether there will be fish alive in the stream or the
lake.
Let me tell you what that issue is. The issue is the safety of our
drinking water. Do you know what is going on when these mining
operations dump all this debris into the streams? It rains. Water is
flowing. The stream water goes downstream. Now follow the water from
the dumping of the mining operations to the chemicals included in that
dumping--arsenic, for example. As it goes downstream, it doesn't just
kill the fish. In my State, 1 out of 10 people in Illinois depend on
those internal river and stream sources for their drinking water. If
you don't have honest, realistic, and safe standards when it comes to
drinking water, you have decided to up the risk of the people who are
drinking the water that comes out of the tap.
I think that is a problem. Have you had a conversation with your
family at any point about what is going on? Why do we have so much
cancer in this area? Why do we have so many problems in this area?
Could it be the drinking water? We have asked that question ourselves
in our own area of Central Illinois, and many other families have asked
the same.
If we take the approach which we are being asked to today and wipe
away the safety standards for the water that is ultimately flowing into
the taps where we drink it, shame on us. Shame on us. Is it too much to
ask the mining operations not to dump their trash into the streams? Is
it too much to ask
[[Page S629]]
them to restore vegetation after they have chopped off the top of a
mountain in West Virginia? In Illinois, I can tell you the strip
mining, which went on for years and decades left a lot of areas of
beautiful farmland in Illinois forever blighted.
Whatever happened to the coal companies that stripped off that land,
took the coal, and left the mess behind? Long gone. You couldn't find
them if you wanted to.
What Senator Cantwell has said, and we ought to remember, we believe
polluters should pay. We believe that the ultimate responsibility, when
it comes to keeping our environment clean, our drinking water safe, is
on the polluter. The Republicans disagree.
They say: Well, it is just Obama's War on Coal.
All right. If you want to bring it down to that level, then it is
Trump's War on Clean Drinking Water. That is what this vote is all
about. That is what it is all about. Shame on us if we decide to
eliminate this protection for families and run the very real risk that
the pollution in those streams could cause public health issues, as
well as the death of wildlife and fish downstream. That is why I think
this vote is so important.
This is a first. You heard what Republicans have said is the reason
American business is not growing--overregulation. You get this picture
of some mettlesome, busybody bureaucrat dreaming up some other way to
make life more difficult for people who own businesses. I will tell you
there is some of that, and I am not going to defend it, but there is
also a conscientious effort by people who are scientists to try to make
sure that those of us who are not scientists live in a world that is
safe, safe for the air we breathe, safe for the water we drink. If we
start sweeping that away, rejecting the science that proves
overwhelmingly that we are going through global warming and climate
change, rejecting the science that says the runoff in these streams and
rivers could ultimately hurt not only wildlife but ultimately hurt the
American people and the water they drink, shame on us.
Well, we will get rid of regulations, coal mining operations will
make more money, and maybe they will continue on--I am sure they will
in some respect--but will we be better off as a nation?
This is day 14 of the Trump Presidency. It seems like a lot longer to
some of us. Republicans in the Senate and the House have decided to
strike a blow for eliminating science-based regulation to protect the
public health. It is a shame, but it is going to happen. They have the
votes on the Senate floor. They are in control and now the American
families are going to ask us: Were you there? Were you standing up for
us when the safety of our drinking water was at stake?
I will be voting no on this effort to repeal this legislation.
The PRESIDING OFFICER (Mr. Cassidy). The Senator from Washington.
Ms. CANTWELL. Mr. President, I thank my colleague from Illinois for
being on the floor to speak. He is right. We are going to keep score.
There are going to be attempts by the Trump administration and the
other side of the aisle to level the score against clean water; that is
to say, polluters don't have to pay. So if we pass this override of
existing clean water rules--yes, this will be the start. Trump 1, clean
water 0.
Unfortunately, it is probably not going to the end because what is
happening now is, Republicans control everything in Congress. They want
to use their ability to have very little debate and to then override
rules that are on the books to protect streams in the United States of
America.
I so appreciate my colleagues coming to the floor to explain this
issue, as this is critical. It is critical because the impacts of
mining destroy headwaters. Between 1992 and 2000, coal mines were
authorized to destroy about 1,200 miles of headwater streams, and this
resulted in the loss of 4 percent of our upper headwater streams in
areas of Appalachia in a single decade.
The surface mining impact on water from fractured rocks above coal
seams react chemically with the air and water and produce higher
concentrations of minerals, irons and trace metals, and those
headwaters in West Virginia typically measure with electricity
conductivity on an order of magnitude of those downstream. What that is
saying is, these chemicals react in the water to create problems.
Understanding what has been going on with that level of conductivity is
one of the big advances in science in the last 10 years. That is why we
want to update the rule because we now know what goes on when selenium
is in the water. The conductivity is highly correlated with the loss
and the absence of various species that are very pollution sensitive.
This level of stream degradation comes from the various fractured
rock. When sulfate is present, you get acid mine drainage. That acid
mine drainage then mobilizes metals toxic to fish--such as iron and
aluminum and zinc--and that is where we start to have problems. A 2008
study found that 93 percent of streams downstream of surface mining
operations in Appalachia were impaired, and our colleagues don't want
to make sure that the mining companies monitor that and do stream
restoration?
Another study found that adverse impacts of Appalachian mines
extended on an average of 6 miles downstream; that is, this acid mine
drainage is flowing 6 miles downstream. Why not have the mines measure
this at the top of the stream, understanding what the selenium impact
is, and doing something to minimize the impact on our streams that we
are going to have to live with forever.
What is wrong with selenium? It causes very serious reproductive
problems, physical deformities, and at high concentration it is toxic
to humans. Basically, it is the similar effect to arsenic poisoning.
These coal mines are transforming our landscape, lowering our ridges,
and raising our valley floors. One study in 2013, in Central
Appalachia, found that mining lowered these ridgetops by an average of
112 feet. What we are trying to say is, you are impacting wildlife
downstream; that the deforestation of these sites allows the flow of
these rivers to increase flooding. The effects are worsened because the
compacted soil on these sites also causes a problem. It is not much
better than just plain old asphalt; that is, it means that plants and
forests cannot grow back, it means that it impairs these various
species, and it causes problems.
Mr. President, I ask unanimous consent to have printed in the Record
an article from the Pittsburgh Post-Gazette.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Pittsburgh Post-Gazette, Jan. 31, 2017]
A Plume of Pollution Discolors Part of Monongahela River
(By Don Hopey)
An iron-orange acid water discharge from a long-abandoned
coal mine discolored the Monongahela River for a four-mile
stretch along the Allegheny County-Washington County border
over the weekend, raising public concern but causing no
problems for public water suppliers downriver.
The discharge from the Boston Gas Mine, its volume boosted
by recent rains, enters the river in the small Sunfish Run
tributary at Sunnyside, in Forward, 34 river miles from
Pittsburgh's Point. Beginning Saturday evening and continuing
through Sunday, it was visible flowing downriver in a 75-foot
wide plume that hugged the east bank until blending into the
river near New Eagle.
``It was orange, and it had to be an enormous amount of
water to color the Mon,'' said Janet Roslund, a resident of
Monongahela, where she viewed the plume. ``Something about
that is just not right.''
Neil Shader, a spokesman for the Pennsylvania Department of
Environmental Protection, said the plume likely contained
iron, aluminum and manganese, and the department is
continuing to take water samples. ``At this time there is no
concern for drinking water, and water systems have systems in
place to remove the contaminants,'' he said.
The Ohio River Valley Water Sanitation commission notified
all downriver water suppliers on the Allegheny and Ohio
rivers, but the closest, Pennsylvania American Water, with
intakes 10 miles down the Mon in Elrama and 18 miles
downriver at Becks Run, reported no water quality problems.
``We've been monitoring the intakes for the past 40 hours
and have found no impacts to the water supply,'' Gary
Lobaugh, a water company spokesman said Monday. ``We've
increased our sampling of source water to every hour but seen
nothing impacting our water quality.''
According to Joe Donovan, a geologist at West Virginia
University who studies abandoned mine discharges in the Mon
Valley, the abandoned Boston Gas mine is a large
[[Page S630]]
mining complex that has approximately eight outcrop
discharges along the river between Donora and Monongahela.
The one on Sunfish Run that created the orange plume in the
river is the largest, he said.
``Nothing new here,'' he said. ``(The) flow may be up this
time of year, especially right after a precip event.''
Ms. CANTWELL. The discharge from the long-abandoned Boston Gas Mine
in Pennsylvania turned a 4-mile stretch of the Monongahela River
orange. The Pennsylvania Department of Environmental Protection said
the plume likely contained iron, aluminum, and manganese. A geologist
at West Virginia University who studies abandoned mine discharges said
the abandoned mine is a large mining complex that has approximately
eight outcrop discharges and created this large plume.
Mr. President, I ask unanimous consent to have printed in the Record
an AP story dated January 28, 2017.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Associated Press, Jan. 28, 2017]
Underground Fires, Toxins in Unfunded Cleanup of Old Mines
(By Michael Virtanen)
Preston County, W.Va. (AP).--An underground coal mine fire
burns beneath a sprawling hillside in West Virginia, the
pale, acrid smoke rising from gashes in the scarred, muddy
earth only a stone's throw from some houses.
The fire, which may have started with arson, lightning or a
forest fire, smoldered for several years before bursting into
flames last July in rural Preston County. The growing blaze
moved the mine to the top of a list of thousands of problem
decades-old coal sites in West Virginia awaiting cleanup and
vying for limited federal funds.
State officials say $4.5 billion worth of work remains at
more than 3,300 sites abandoned by coal companies before
1977, when Congress passed a law establishing a national fund
for old cleanups. That program was part of an effort to heal
the state from the ravages of an industry that once dominated
its economy but has fallen on hard times.
``West Virginia is right at the top for needs,'' said Chuck
Williams, head of Alabama's efforts and past president of the
National Association of Abandoned Mine Lands Programs. He
said Pennsylvania, Kentucky and West Virginia--all states
with a mining history that extends back two centuries--
account for the lion's share of unfinished work among the 28
states and Indian tribes in the program.
Despite being one of the most affected, federal officials
have only one-third of West Virginia's proposed cleanup costs
on their $7 billion national list of high-priority work. The
sites include old mines that leak acidic water into streams
and kill wildlife and dangerous holes that attract children.
Tunnels and caverns beneath homes also need to be shored up
and new water lines are needed where wells are polluted.
``Our program exists to abate health and safety hazards,''
said Rob Rice, chief of the West Virginia Office of Abandoned
Mine Lands and Reclamation, which is handling the mine fire.
``We have so much need. It's frustrating for us.''
Environmental improvements are a secondary but major
benefit, he said.
``This whole area has been extensively mined,'' said
Jonathan Knight, riding recently through the exurbs east of
Morgantown. A planner for the state office, he said housing
developments have been built above old mines that many
homeowners don't even know about.
The state will get $23.3 million from the federal
reclamation fund this year, which is replenished by fees on
mining companies. The mines pay 12 cents per ton of
underground coal mined and 28 cents per ton from surface
mining, but the funding has dropped the past three years with
a downturn in coal production.
It will cost about $1 billion just to extinguish all of
West Virginia's 43 fires in abandoned mines, according to the
state office. They could have been caused by forest fires,
arson, lightning strikes or even old underground explosions
that never went completely out.
About $5 million will be spent to extinguish the Preston
County fire, smoldering a stone's throw from houses in a
mostly rural area near the hamlet of Newburg. In October, the
office spent $209,400 to cut trees and plug holes feeding the
fire with oxygen.
The state office, with about 50 staff, is paid from the
federal Abandoned Mine Reclamation Fund along with the
contractors it hires. Together they close mine portals,
extinguish fires, support collapsing hillsides and sinking
houses, and treat acidic water leaking out along with
dissolved metals. The need for drainage work won't end for
centuries. The grants also fund water lines to replace
polluted wells.
``There's more water within mine pools in West Virginia
than there is in the lakes of West Virginia,'' Rice said.
``More than 2,500 miles of streams are severely degraded
because of mine drainage in West Virginia.''
The state program has brought several back to life with new
treatment systems.
The federal program is scheduled by law to expire in 2021,
leaving behind about $2.5 billion in a trust fund expected to
pay for any ongoing work needed by 25 states and three Indian
tribes to address problems from pre-1977 abandoned coal
mines. West Virginia has set aside about $55 million of its
grant money received already for continuing water treatment
funded by the interest.
The federal program has collected more than $10.5 billion
in fees from coal production and distributed more than $8
billion in grants to states and tribes, according to the
federal Office of Surface Mining Reclamation and Enforcement.
It will provide nearly $181 million in fiscal 2017.
``We continue to discover threats from left-behind mine
pits, dangerous highwalls, acid mine drainage that pollutes
our water supplies, and hazardous mine openings,'' federal
director Joe Pizarchik said earlier this year. An Obama
administration appointee, he resigned effective last week.
Pollution and lurking underground dangers from mining since
1977 fall into a different category because the federal
government made them the responsibility of the companies.
They were required to post bonds before opening mines, with
the state taking over if they default.
Ms. CANTWELL. The article talked about Preston, WV, and a fire in an
abandoned coal mine that smoldered for several years. This mine is one
of ``thousands of problem decades-old coal sites in West Virginia
awaiting cleanup.''
These abandoned sites include old mines that leak acidic water into
streams and killing wildlife. Tunnels and caverns beneath homes
threaten water sources where wells are polluted.
All of these are examples of the kind of damage that is being done by
these mines.
Mr. President, I ask unanimous consent to have printed in the Record
another article from the Columbus Dispatch.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Columbus Dispatch, July 20, 2014]
In West Virginia, Mountaintop Mining Is Causing Fish Species To
Disappear
Washington.--In West Virginia's Appalachian Mountains, fish
are vanishing. The number of species has fallen, the
populations of those that remain are down, and some fish look
a little skinny.
A new government study traces the decline in abundance to
mountaintop removal, the controversial coal-mining practice
of clear-cutting trees from mountains before blowing off
their tops with explosives.
When the resulting rain of shattered rock hits the rivers
and streams that snake along the base of the mountains,
minerals released from within the stone change the water's
chemistry, the study said, lowering its quality and causing
tiny prey such as insects, worms and invertebrates to die.
``We're seeing significant reductions in the number of fish
species and total abundance of fish downstream from mining
operations,'' said Nathaniel Hitt, a research fish biologist
for the U.S. Geological Survey's office in Kearneysville,
W.Va., and one of the study's two authors.
Hitt and his co-author, Doug Chambers, a biologist and
water-quality specialist in the Charleston, W.Va., office of
the USGS, took a 1999 study of the Guyandotte River basin's
fish populations by Penn State researchers to compare them
over time.
For two years starting in 2010, they sampled the
populations in waters downstream from an active mountaintop
coal-mining operation. In one of the sample areas, the Mud
River watershed, which contains the largest tributary of the
Guyandotte River, at least ``100 point-source pollution-
discharge permits associated with surface mining have been
issued,'' the study said.
North America's central Appalachian Mountains, where the
basin lies, are considered a global hot spot of freshwater-
fish biodiversity, but few researchers have investigated the
impact of mountain strip mining on stream fish, and the
effects ``are poorly understood,'' the study said.
Hitt and Chambers found that the number of species was cut
in half and the abundance of fish fell by a third. The
silverjaw minnow, rosyface shiner, silver shiner, bluntnose
minnow, spotted bass and largemouth bass, plus at least two
other species detected before their study, were no longer
there.
Another fish species--the small and wormlike least brook
lamprey, never before detected--had moved in.
In areas of the river basin where there was no mountaintop
mining, fish flourished. In addition to species that had been
in those waters previously, seven new ones were found,
including the spotfin shiner, the spottail shiner and the
golden redhorse.
``I think if we only focus on the fact that it's fish . . .
some people will say, `So what?'??'' Chambers said. But fish
and the invertebrates they eat are canaries in a coal mine
for researchers, ``indicators of the water quality,'' he
said.
The USGS looks ``at the nation's water resources . . .
their significance to the nation, and tries to understand
processes that are degrading water quality. Tainted water may
not be suitable for additional uses.''
Research such as the USGS' study of mountaintop mining,
published online this month by the Society for Freshwater
[[Page S631]]
Science, is viewed with suspicion in coal country, where
mining operations provide thousands of jobs.
``The people opposed to the coal industry are trying to
pile on with more studies,'' said Bill Raney, president of
the West Virginia Coal Association. ``It sounds like this is
one of those studies that sets out to show there's harm done.
It sounds like perhaps more of the same.''
Raney said he has not seen the USGS study and cannot
strongly criticize its methods or conclusions, but people
``don't just wake up in the morning and decide they are going
to do mountaintop mining,'' he said. ``It takes three to four
years to get a permit. Every aspect of the operation is
analyzed.''
Mountaintop removal as a way of extracting coal has been in
practice since the 1960s, but its use has expanded in the
past two decades, and it now takes place in the Appalachian
regions of Ohio, Kentucky and Virginia in addition to West
Virginia.
The coal that the process produces provides power to
hundreds of thousands of homes, industry advocates say, and
creates about 14,000 jobs that pay middle-income salaries in
regions where work is hard to find.
``The average mining wage is more than $66,000 per year . .
. 57 percent higher than the average for industrial jobs,''
according to the National Mining Association. ``Mountaintop
mining accounts for approximately 45 percent of the entire
state's coal production in West Virginia.''
Raney's association disputes allegations that mining
destroys streams and mountains, saying that state permits and
government regulations require the land to be restored after
use.
But the Sierra Club Eastern Missouri Group called the
practice ``quite possibly the worst environmental assault
yet'' because of the amount of landscape it removes and the
effects on people and animals.
Homeowners in one West Virginia community, Lindytown, were
bought out by a company before the town essentially
disappeared after mountaintop removal. Homes and a grave site
were left behind. Cascading debris has buried streams,
affecting a diversity of wildlife, a major concern raised by
the U.S. Environmental Protection Agency.
Often, companies are granted exemptions that ease
requirements to restore land. Conservationists call the
practice a plunder, and protesters, including Quakers in
Appalachia and demonstrators at the White House, have called
on the government to end it and banks to stop funding it.
``Mountaintop-removal mining is one of the fastest-changing
land-use forms in the region,'' Hitt said. ``One of the main
questions for our research lab is how biological communities
respond to land-use changes.''
In the case of the fish, they seemingly do not respond
well, Chambers said. ``To sum up, 10 fish species were
apparently extirpated from the mined sites,'' meaning they
were wiped out, he said.
Fish with a more diverse diet appeared to fare well, but
those that relied primarily on invertebrates, such as small
aquatic insects, tended to fare poorly.
``It's telling us that the water quality is changing,''
Chambers said. Water in that area is not used for drinking,
he said, but ``if you look at it from a regulatory
perspective, you have to determine if the water is fishable,
swimmable, drinkable--all of these are benchmarks.''
Ms. CANTWELL. The article states: ``The report found that the number
of species was cut in half and the abundance of fish fell by a third,
downstream from these mining operations.''
I wish to talk about a mine now owned by Murray Energy that in 2009
spewed pollution in Pennsylvania, killing 43,000 fish and 15,000
mussels. Seven years later, the fish and mussels are still missing and
not returning. They have paid a fine, but we are still living with the
damage.
As my colleagues can see, this issue is about overriding a rule that
helps protect our streams and rivers and makes sure that the wildlife
there has safe drinking water and to make sure that we enjoy these
natural areas. As I have pointed out through this debate, there are
many jobs in the outdoor industry, and that is why sportsmen such as
Trout Unlimited and the wildlife federations that are coalitions of
hunters and fishermen all support this rule and don't want it
overturned.
I know that the coal industry has spent $160 million over the last
dozen-plus years trying to defeat regulation of its industry. Actually,
the 0.1 percent they would have to pay was a lot lower than what they
were spending on their lobbying issues. Instead, they should help us
all get to the bottom.
But why have we done this by trying to fight today? That is because
the science has told us that since 1983, we have a lot more information
about the toxic level in the streams because of these products. We
simply want a rule that reflects that the mining industry must measure
and mitigate that impact. What is wrong with allowing science to lead
the way?
I know our colleagues like to say that States should be left to do
this, but you do have to have a Federal standard. You do have to have a
Federal standard that they adhered to. It would be as if today I said:
Let's override what we have done in this Nation in setting a miles per
gallon for automobiles and just leave it up to the States instead.
Well, we are saying we should have fuel efficiency but let's just
leave it up to the States about how many miles per gallon we really
should have in automobiles.
If we did that, how many regulations do you think we would have? Do
you think we would have the same fuel efficiency we have today?
What is happening is these coal companies are going into States,
going into their areas, and lobbying lawmakers there against
regulation, and in a couple of cases I have discussed today they were
successful in getting Kentucky to fall asleep at the switch so the
citizens brought the lawsuits to clean up the mines. They were
successful because they finally caught the attention of people who
should have been doing their job.
This rule, as it has been put in place, does give States flexibility.
Its key definition says States get discretion to establish an objective
criteria for measuring standards and restoring the streams. It
basically says the final rule has several options to demonstrate
compliance on the area of fish-and-wildlife. States can use their
judgment about the types, scope, and location of enhancements. It says
on groundwater, States can choose their sampling, protocol, subsequent
analysis, and baseline. On rain measurements, States can choose whether
to require mines to prepare a hydrologic model about the mine, and
States can choose to allow mining companies to change their drainage
patterns as they look at rebuilding ephemeral streams.
There is a lot of flexibility for the States. A lot of them haven't
been doing as good a job as we would like, but you have to have a
Federal standard. Your Federal standard is decades old. Science is
telling us we have a problem. Please, please, do not pass this override
of an important clean water law. Instead, if we want to fix it, let's
sit down and do that legislatively. Let's not allow the polluters to
get away with having their way on so many streams across America.
Mr. President, my comments here reflect my understanding as ranking
member of the Senate committee of jurisdiction over the Surface Mining
Control and Reclamation Act, SMCRA.
I am strongly opposed to disapproving the Office of Surface Mining
Reclamation and Enforcement's stream protection rule because I both
support the substance of the rule and I believe the Congressional
Review Act is an inappropriate and extreme legislative tool.
While my opposition to H.J. Res. 38 and its Senate companion, S.J.
Res. 10, is clear, in the event that either resolution is enacted, I
would look forward to a timely reissuance of a new rule.
Notwithstanding the delay resulting from enactment of either
disapproval resolution, the authority SMCRA grants to OSMRE through the
Secretary of the Interior will persist--so will the clear obligations
in the statute.
The provision in the Congressional Review Act that prohibits
reissuance of a future rule ``in substantially the same form'' as the
rule being disapproved, unless specifically authorized by another
future law, does not diminish my confidence. Under the ample authority
granted to the Secretary of the Interior under SMCRA, a large variety
of forms of implementing its obligations under SMCRA remain available
to the Agency.
The resolution represents a major setback for many communities
affected by coal mining that had participated in an extensive 8-year
rulemaking process. But it does not limit OSMRE's ability or obligation
to implement SMCRA's statutory requirements fully, including but not
limited to regulations that define material damage to the hydrologic
balance outside the permit area; give effect to the SMCRA's
prohibitions against material damage to the hydrologic balance outside
the permit area; prohibit harmful mining activity within a certain
perimeter, including the stream buffer zone as under the 1983
regulations; require permitting decisions to be based on full and
complete information; ensure protections
[[Page S632]]
for fish and wildlife; and guarantee that adequate financial assurances
are put into place to provide for full and complete reclamation.
I expect any Secretary of the Interior to follow the law and fully
implement the ongoing obligations under SMCRA.
I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Ms. CANTWELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. CANTWELL. Mr. President, I yield back the remainder of our time.
The PRESIDING OFFICER. All time is yielded back.
The joint resolution was ordered to a third reading and was read the
third time.
The PRESIDING OFFICER. The joint resolution having been read the
third time, the question is, Shall the joint resolution pass?
Mr. BURR. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Alabama (Mr. Sessions).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 54, nays 45, as follows:
[Rollcall Vote No. 43 Leg.]
YEAS--54
Alexander
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Cochran
Corker
Cornyn
Cotton
Crapo
Cruz
Daines
Donnelly
Enzi
Ernst
Fischer
Flake
Gardner
Graham
Grassley
Hatch
Heitkamp
Heller
Hoeven
Inhofe
Isakson
Johnson
Kennedy
Lankford
Lee
Manchin
McCain
McCaskill
McConnell
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--45
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Franken
Gillibrand
Harris
Hassan
Heinrich
Hirono
Kaine
King
Klobuchar
Leahy
Markey
Menendez
Merkley
Murphy
Murray
Nelson
Peters
Reed
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
NOT VOTING--1
Sessions
The joint resolution (H.J. Res. 38) was passed.
The PRESIDING OFFICER. The majority leader.
____________________