[Congressional Record (Bound Edition), Volume 149 (2003), Part 21]
[Senate]
[Pages 29620-29660]
[From the U.S. Government Publishing Office, www.gpo.gov]




        ENERGY POLICY ACT OF 2003--CONFERENCE REPORT--Continued

  The PRESIDING OFFICER (Mr. Hagel). The Senator from Illinois.
  Mr. DURBIN. Mr. President, what is the order of the business before 
the Senate?
  The PRESIDING OFFICER. The Senator is recognized for 30 minutes on 
the conference report.
  Mr. DURBIN. Mr. President, I ask unanimous consent that period of 
time be extended to 45 minutes, if there is no objection.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. DURBIN. Thank you, Mr. President.
  This is a bill that has been before Congress for quite some time. It 
is a bill that relates to America's energy needs. It certainly is one 
that is timely. Our energy supplies and use of energy are critical to 
the state of our economy and its growth.
  This bill was first proposed by the Bush administration under the 
leadership of Vice President Cheney. Most people followed it in the 
news because Vice President Cheney called together a task force to 
write the administration's energy policy. When he was asked to identify 
who was in the room, the people who were involved in the task force, he 
refused. Despite the pleas of Members of Congress and requests for that 
information about the origin and creation of this energy policy, the 
Vice President basically said he was not going to disclose the identity 
of those who were part of the energy task force.
  The General Accounting Office took the Vice President to court and 
the Vice President prevailed. He was allowed to conceal the names and 
identities of those who were on the energy task force. So this idea of 
an energy policy was conceived in secret.
  Then there were lengthy debates on the floor of the Senate and House 
about Energy bills, both during the period when the Democrats were in 
control of the Senate and the period with Republicans in control. We 
spent many, many days going through Energy bill options and amendments, 
voting on them, and moving forward. The net result of it was we 
produced a Senate Energy bill which was sent to conference.
  Conference committees, as defined under our Constitution, and by the 
practice and precedent of the Senate, usually involve both political 
parties sitting down, and the House and Senate conferees trying to work 
out some agreement or some compromise.
  As has been the case more recently than not, this conference 
committee did not follow that standard. The conference committee met 
primarily with Republican Members only, and primarily in secret.
  So ultimately the work product of this energy conversation or energy 
analysis that we have before us today was not only conceived in 
secrecy, it was produced in secrecy.
  So today we have a great epiphany, a great opening, a great 
revelation. The bill is finally before us, and we have a chance to look 
at this bill, which was brought together with special interest groups 
and the Vice President at the outset, and which was hammered out in a 
conference committee with those same special interest groups.
  Having considered the origin of this bill, and its maturation 
process, it is no surprise that this bill is heavily larded with 
giveaways to the energy industry. In fact, if you go through this bill 
you will find two things that stand out. The first relates to a 
question which we have to face as a nation: Is it possible for us to 
have a sound energy policy which allows for economic growth and 
sustains our standard of living without endangering our environment?
  I think the answer to that is yes, and I think we have proven that it 
can happen. We have seen an expansion of the

[[Page 29621]]

American economy over the past several decades while we have reduced 
pollution in our air and water. That is a positive. It shows we are 
thinking ahead, that we are not trying to enjoy the benefit of the 
moment with energy as an expense which our children will pay for.
  But, sadly, this bill, by its contents, comes to an opposite 
conclusion. Because this bill finds, first and foremost, that in order 
to pursue the administration's energy policy, and the energy policy of 
a Republican majority in Congress, we have to basically sacrifice our 
environment. I think that is a horrible conclusion. I find it totally 
unacceptable, and it is the reason I stand today in opposition to this 
bill.
  Secondly, aside from the question of whether we can have a sound 
energy policy and a safe environment, we are challenged with this 
question: Can you promote in America the energy we need for this 
generation and future generations without providing generous, lavish 
subsidies to private corporations?
  Now, this morning, one of my colleagues from Oregon, on the 
Republican side, came to the floor and was critical of Governor Dean of 
Vermont for saying yesterday that we had to consider reregulation in 
America. This Senate critic said that is exactly what we do not need. 
We do not need Government regulation in America.
  His argument was--and the traditional Republican argument is--let the 
free market work its will. Well, that, in the abstract, sounds like 
good medicine, but in reality it is far from the truth.
  The market worked its will with Enron. The market has worked its will 
with the scandals involving mutual funds. The market is working its 
will every day when it comes to the cost of health insurance to 
businesses and families across America.
  As we look at how the market has worked its will, it is clear the 
results are unacceptable. So the question before us in the Energy bill 
is, Can we rely on a free market, then, to develop sources of energy in 
America?
  The answer from this bill is no. The answer from this bill is that 
the Government must inject itself into the energy sector of our economy 
and make substantial subsidies to certain elements in the economy in 
order for America to meet its energy needs. I will outline some of 
those subsidies in a moment.
  So the two conclusions from this Energy bill are that America's 
energy supply and its growth are inconsistent with a safe environment; 
and, secondly, that giving the free market its rein, it will not 
produce the energy that we need in the future. Instead, we have to 
generously subsidize energy markets.
  Now, that is a lot different than what you have heard from the 
administration. They have talked about balance and they have talked 
about a forward-looking energy policy. But I will tell you, when you 
look at the specifics in this bill, it is clear that it is not 
balanced.
  It is sad to report that this bill, as it is written, has turned out 
to be a piece of legislation which I believe this Congress should 
reject. This energy policy that is being promoted in this bill is a 
gush of giveaways to corporate special interests that is masquerading 
as an energy policy.
  There is a way out of this embarrassment for the Senate. There is a 
way to come up with an energy policy that works. That way, of course, 
is to stop this bill and to ask our friends on the important committees 
dealing with energy to go back to work, go back to work to deliver a 
bill which, frankly, will be bipartisan, a bill which will be balanced, 
a bill that will not sacrifice the environment for energy, and a bill 
which would not be the gush of giveaways this bill has turned out to 
be.
  Let me tell you some of the specifics included in this Energy bill 
when it comes to the environment, specifics that tell the story about 
how what was conceived as an Energy bill turned out to be the worst 
piece of environmental legislation that I have seen in the Senate.
  Among the provisions in this bill are the following: It allows more 
smog pollution for longer than the current Clean Air Act authorizes. 
Under the existing act, areas that have unhealthy air are required to 
reduce ozone-forming smog pollution by a strict statutory deadline. If 
these areas fail to meet the deadline, they are given more time to 
clean up, but must adopt more rigorous air pollution control measures. 
The bill attempts to allow more polluted areas more time to clean up 
without having to implement stronger air pollution controls, placing a 
significant burden on States and communities downwind from the urban 
areas.
  This bill exempts all oil and gas construction activities including 
roads, drill pads, pipeline corridors, refineries, and compressor 
stations from having to obtain a permit controlling polluted storm 
water runoff as currently required under the Clean Water Act. So in 
these first two provisions, this bill violates the Clean Air Act and 
the Clean Water Act. It delays pollution cleanup in southwestern 
Michigan for 2 years while the EPA conducts a study, dramatically 
increases air pollution and global warming with huge new incentives, 
claims to promote clean coal, which I support, but inhibits its 
development by disqualifying federally funded clean coal projects as 
best available control technologies; threatens drinking water sources 
by exempting from the Safe Drinking Water Act regulation the 
underground injection of chemicals during oil and gas development.
  Do you remember the squabble we had here in the Senate about arsenic 
in drinking water and whether or not it was safe, and how the Bush 
administration finally backed off of weakening regulations that would 
protect us from arsenic in drinking water? This so-called Energy bill 
is going to increase the danger in our drinking water by exempting from 
coverage by that act the underground injection of chemicals during oil 
and gas development. There is a whole section on MTBE, which I will 
speak to specifically. It encourages the mixture of hazardous waste in 
cement and concrete products as an alternative to safe disposal in 
permitted hazardous waste landfills. The list goes on and on and on.
  When it comes to our public lands, this bill allows the Interior 
Secretary, by Secretarial order, to designate utility and pipeline 
corridors across public lands owned by Americans without any seeking 
public input through a land use planning process. It authorizes the 
leasing of the national petroleum reserve in Alaska for oil and gas 
production without protection for wildlife. It allows the Secretary to 
waive royalties, which means payments to taxpayers for those who are 
drilling for oil and gas on the lands that we own as Americans. It 
allows the Secretary to waive royalties so these companies can drill on 
our public lands for free.
  The list continues. The list is overwhelming. In each and every 
page--and there are five of them--you will find 10 or 20 examples of 
environmental degradation, abandonment of environmental standards, 
endangerment of the air that we breathe and the water we drink. For 
what? So that someone can make a dollar. That is what it is all about. 
It is about profit taking at the expense of public health. That is what 
this Energy bill does.
  Did anyone ever announce at the outset that was our goal? Did anyone 
ever conceive during the debate that what we were trying to do was to 
provide some more energy at the expense of the environment and at the 
expense of public health? That is exactly what this bill does.
  Before I get into the MTBE issue, which I think is possibly one of 
the worst I have seen in the time I have served in Congress, let me 
tell you what this bill fails to do. What is the No. 1 use of oil that 
we import into the United States today? We use it to fuel our cars and 
trucks, of course. Of course, a lot of us own quite a few of them. And 
we know as well that if these cars and trucks are not fuel efficient, 
they will burn more gas and require us to import more oil. So if you 
want to have an honest discussion about energy security in America, 
would you not be pursuing goals which would reduce our dependence on 
foreign oil? Would you not want to find ways that America can ween 
itself

[[Page 29622]]

away from its dependence on Saudi Arabia and its oil sources? Shouldn't 
that be front and center the main topic in our energy policy? Well, 
everybody I have spoken to in my State agrees, of course, that is where 
you should start the energy discussion.
  You can search this bill, 1,400 pages or more, and not find a word 
that gives you comfort that we as a nation will even seriously consider 
improving the fuel efficiency of the cars and trucks we drive. Why? 
Because the big three in Detroit--General Motors, Ford, and Chrysler--
have said they are not capable of producing more fuel-efficient cars to 
compete with those that are being imported from Japan. They have 
convinced the majority in the Senate--I know because I offered an 
amendment to improve fuel efficiency--that America is technically 
incapable of competing when it comes to fuel-efficient cars. That is 
such a sad commentary. It is one which I reject.
  Let me tell you what fuel efficiency means for us. First, a little 
history: The year was 1975. Gas lines were long. People were concerned 
about the availability of energy in America. An argument was made that 
we had to do something about the efficiency of the cars and trucks we 
drive. Of course, there are two ways to achieve it: One is to raise the 
price of gasoline. If the price of gasoline at the pump doubled 
tomorrow, every American family would start asking how many miles a 
gallon do I get from this hog? Well, I don't want to see that happen, 
nor do most Americans. That imposes new financial burdens on families 
and small businesses and, frankly, is inflationary.
  But there is another one. In 1975 Congress said: We are going to 
mandate doubling the fuel efficiency of cars and trucks. It is going to 
be a Federal mandate. It has to happen.
  The automobile manufacturers in Detroit said: It can't be done. It is 
technically not feasible for us to double over 10 years the fuel 
efficiency of our cars. Secondly, those cars are going to be so small, 
they are going to be unsafe. Third, you are just playing into the hands 
of foreign automobile producers who will beat us to the punch.
  Thankfully, Congress ignored them and passed a law. In a matter of 10 
years, fuel efficiency went from about 14 miles a gallon fleet average 
to 27.5 miles a gallon. In a 10-year period of time, we virtually 
doubled the fuel efficiency of our cars, reducing our dependence on 
foreign oil.
  What have we done since 1985, since we reached 27.5 miles a gallon? 
Nothing, except drive larger, less fuel-efficient vehicles, import more 
oil from overseas, and pollute our air even more in America.
  What has Congress done? Absolutely nothing. This bill is silent on 
the issue of fuel efficiency. The Energy bill for America's energy 
policy is silent when it comes to fuel efficiency.
  Let me correct myself. It isn't silent. It creates a new loophole 
that will be added to the process which will make it even more 
difficult in the future for us to even consider increasing fuel 
efficiency.
  I offered an amendment which said, what if we went to 40 miles a 
gallon from 27.5 miles a gallon by 2015. Let's have 12 years. Look at 
the dramatic savings we would have in the barrels of oil that are 
consumed.
  This is what drilling in the Arctic National Wildlife Refuge is 
worth, this tiny little line down here. But just by increasing the fuel 
efficiency of our cars and trucks, we could answer a major part of the 
challenge of America's energy future. This bill sadly does nothing.
  In addition, this bill excludes a renewable portfolio standard. It 
does not in any way encourage new ways to use energy from renewable 
fuels in a way that could make a sizable difference. I think we ought 
to be embarrassed by this. What an embarrassment it was to read in the 
Washington Post yesterday that China, a developing nation, now has 
higher fuel efficiency standards and fuel economy standards than the 
United States. Can you believe it? Can you believe that this growing 
economy, just developing, has decided they see the future, and the 
future is in more fuel-efficient cars and less dependence on foreign 
oil; and the United States, this great economic engine that we run, 
doesn't see the same? As a consequence, we find ourselves in a position 
where this bill is silent when it comes to fuel efficiency.
  I think that is a terrible deficiency in this legislation. I cannot 
imagine it can be taken seriously in a conversation about America's 
energy policy. We know full well that we use a lot of oil. According to 
this chart, the global consumption of oil per capita in 1999, in 
gallons per day, the United States is 3; other industrialized 
countries, 1\1/2\; and the rest of the world less than \1/2\. The U.S. 
continues to consume more oil than other countries.
  The gasoline savings we realized going from 14 miles a gallon in 1970 
to 28 miles a gallon in 1999 reduced, by 3.7 billion gallons, the 
gasoline we consumed in a given year. Less gasoline, less polluted oil, 
less pollution. This bill is silent on that issue, and that is 
unfortunate.
  Let me speak for a minute to what I consider the single most 
outrageous part of this legislation.
  Mr. President, I have been in Congress a few years. I have noticed 
that at the end of a session strange things happen. Some of these 
strange things involve massive giveaways to individual companies or 
interest groups. Over the years I have paraded out my personal award 
for this activity. I call it the moonlight mackerel award. It is given 
to that effort or amendment or bill in the closing days of the session 
which is the most outrageous. It goes back to a quote where someone 
said that a certain thing would shine and stink like a mackerel in the 
moonlight.
  The one I am about to describe, I believe, may retire the trophy, the 
moonlight mackerel trophy, which has been coveted by special interest 
groups forever. Frankly, it is now being challenged by what may be the 
worst provision in this Energy bill. It is a provision that led me to 
oppose the bill. Even though I have had people from Illinois call me 
who support this bill and genuinely want to see it pass, I have told 
them that as long as this provision is in the bill, there is no way I 
will support it. I think it is that bad and that embarrassing.
  The provision is on methyl tertiary-butyl ether, or MTBE. MTBE was an 
additive to gasoline so that engines ran a little smoother, called an 
oxygenate. Oil companies started adding that to our fuel and selling it 
across America. There are alternatives. They could have used ethanol, 
for example; but they said, no, we will use MTBE. So they used this 
MTBE additive, this compound, in gasoline and then discovered 
something. They discovered it a long time ago. This MTBE compound is 
dangerous. MTBE, when it leeched out of underground storage tanks, 
could get into the groundwater and into the public water supply.
  If you took out a boat on a lake with MTBE mixed with gasoline and it 
discharged into the lake, it could contaminate the lake.
  The contamination went beyond the foul-smelling additive itself to 
raise serious public health questions. According to the GAO, it has 
been detected in groundwater and drinking water all across the U.S. It 
is classified as a potential human carcinogen, a cause of cancer. At a 
level of 2 parts per billion, MTBE produces a harsh chemical odor that 
renders tap water undrinkable. Removing MTBE is difficult and costly. 
Water utilities must either blend contaminated water with clean sources 
to dilute the MTBE to acceptable levels, install systems to remove 
chemicals, or abandon certain water sources altogether.
  The most effective argument of those who have been harmed and seek a 
day in court is a defective product argument. The fact is that the oil 
industry knew MTBE was, in fact, dangerous and they continued to use it 
and sell it, despite the danger it posed to public health. That was the 
basis for a lawsuit filed in California near Lake Tahoe, where the oil 
companies eventually paid $60 million, conceding their guilt.
  The producers of MTBE knew the problems they had. I believe the 
producers of the MTBE should be held responsible. In fact, in one 
powerpoint presentation, the producers cynically

[[Page 29623]]

dubbed MTBE as ``most things biodegrade easier.'' They were making a 
joke of the fact that MTBE would stand for those initials, realizing 
that it did not biodegrade easily. It was a persistent, troublesome, 
and dangerous element, which stayed for a long time.
  Who should pay for the cleanup for MTBE? According to this bill, not 
the polluters, not the producers, but the taxpayers of America. That is 
the conclusion in this bill. This bill provides the single most 
expensive immunity to litigation of any bill that I have ever seen 
before Congress. It says the producers of MTBE cannot be held 
accountable in product liability legislation for what they knew to be a 
dangerous product, and it doesn't stop there. It is retroactive, saying 
that lawsuits already being prosecuted in States across America cannot 
be pursued to verdict or settlement.
  Think about that for a minute. This is the single biggest giveaway to 
a special interest group that I have ever seen in the time I have 
served in Congress. This jury in Tahoe, considering the contamination 
near the Lake Tahoe area, found that gasoline with MTBE is a defective 
product because of the risk of this additive, and because the oil 
companies failed to warn consumers of the risk to the environment and 
drinking water. The jury found ``clear and convincing evidence'' that 
the producer of MTBE acted with malice, and they are going to have a 
field day and a holiday with this Energy bill. They were found to have 
acted with malice in selling this product that endangered the lives of 
the people in the community.
  MTBE producers know they are vulnerable to these lawsuits. If you are 
vulnerable for wrongdoing, if you created a product that endangers 
thousands of Americans, where should you turn? Come to Congress. Come 
to Capitol Hill. Come to mama.
  That is what happened with this conference committee. They came to 
this conference committee and the conference committee delivered. This 
conference committee let the MTBE producers and oil companies off the 
hook. About three-fourths of the producers are located in Texas and 
Louisiana, and it has been the Congressmen from these States who have 
pushed this provision.
  Let me tell you what it means to Illinois. We are hit, but not as 
hard as some. Only 26 to 29 communities in my State of Illinois have 
drinking water currently contaminated with MTBE, affecting over 200,000 
people where I live.
  Currently, there are four lawsuits in Illinois that this waiver in 
this bill would eliminate--in the communities of Crystal Lake, Island 
Lake, Village of Alton, and Woodstock. The lawsuits currently underway 
will be eliminated by the language in this bill. So where does that 
leave the community with the contaminated water supply? Where does it 
leave the families who cannot live in their homes because of this MTBE 
contamination? It leaves them, frankly, at the mercy of those who would 
turn and give them money. Should you not hold the polluters 
accountable? Not according to this bill. This lets the polluters off 
the hook.
  The community of East Alton, with a population of 6,500 people, was 
faced with a MTBE plume that threatened its drinking water supply. A 
million dollars was spent to clean it up, and the community went to 
court to recover the cost of that million-dollar expenditure.
  In the town of Island Lake, individual wells were affected.
  In Kankakee County, Oakdale Acres subdivision and two other small 
subdivisions were forced to shut down their groundwater systems and 
connect to a nearby community's public water supply, after a pipeline 
rupture contaminated the subdivision's aquifer.
  Roanoke, with a 2,000 population--like you might find in Nebraska, 
New Hampshire, and all across America--has had to use one of their 
wells as a hydraulic containment area with treatment and discharge to 
surface water in order to protect their well field from an MTBE plume 
with a concentration exceeding 1,000 parts per billion.
  These communities and others deserve a fair and reasonable hearing. 
They deserve a judge and jury. They deserve their day in court. This 
Energy bill locks the courthouse door and says to these communities 
that they will not have their day in court.
  With the defective product liability waiver which reaches back to 
September 5, 2003, this conference report meddles with the courts at 
the request of the oil companies. At least 35 States have problems such 
as I have just described in Illinois.
  By 1986, the oil industry was adding 54,000 barrels of MTBE to 
gasoline every single day. By 1991, the number was up to 100,000 
barrels of MTBE per day. Yet oil company studies conducted as early as 
1980 showed that the oil industry knew that MTBE contaminated ground 
water virtually everywhere it was used. There was a $60 million 
settlement in Lake Tahoe.
  Some have analyzed this and said the reason this provision is in here 
is if the oil companies were going to accept the expansion of ethanol, 
they had to be given something.
  I have been a strong supporter of ethanol for over 20 years, and I 
will continue to be, but if that is what it is all about, if the only 
way to increase ethanol is to provide this kind of immunity from 
liability for the producers of MTBE, it is too high a price to pay, as 
far as this Senator is concerned.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 16\1/2\ minutes.
  Mr. DURBIN. I thank the Chair.
  Let me say another word about this MTBE. In these lawsuits that have 
been filed, it has been shown that these oil companies knew what they 
were getting into. You would think at some point in time they would 
have at the Federal level banned MTBE perhaps long ago. It took State 
leadership for this to happen. In California, Colorado, Connecticut, 
Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, 
Missouri, Nebraska, New York, Ohio, South Dakota, and the State of 
Washington, they took the initiative, when the Federal Government 
didn't move quickly, to ban MTBE. They know what it is all about, and 
they understand the damage that has been done to their communities.
  In the State of New York, in Liberty, after fighting for 11 years 
because they found MTBE in their local well water, they finally got the 
State to move forward to establish new standards for public water 
supplies after a lot of families there had serious health problems. 
That is just a story that is going to be repeated all over, not just in 
New York.
  In New Hampshire last spring, they filed a string of lawsuits against 
22 oil companies. If these lawsuits are being brought on product 
liability theories--the ones that are the most successful--they will be 
thrown out by this legislation. These lawsuits will be eliminated. The 
businesses, the families, the individuals who have been damaged by this 
deadly additive are going to lose their day in court because we are 
going to mandate it in this legislation.
  How does this enhance the energy security of America? It certainly 
adds to the bottom line of profitability of the oil companies which 
would be held responsible for their misconduct, I will agree with that. 
But is it just? Is it fair? Is it something we should be doing, giving 
blanket immunity to companies that, by their wrongdoing, endanger the 
health of families and individuals across America?
  In the State of New Hampshire, the State sued 22 major oil companies 
on October 6 because of MTBE. According to Governor Craig Benson, they 
claim the oil companies have added increasing amounts of MTBE to the 
gasoline, even though they knew years ago it would contaminate water 
supplies.
  The General Accounting Office told Congress what this was all about. 
In the year 2002, John Stevenson, Director of GAO's Natural Resources 
and Environmental Division, testified before a House subcommittee and 
said that MTBE created health risks which he described as follows:

       Such health risks can range from nausea to kidney or liver 
     damage or even cancer.

  He pointed out that a school in Roselawn, IN, discovered students had

[[Page 29624]]

been drinking water with nearly 10 times the Federal recommended level 
of MTBE. Officials are trying to determine if the additive came from a 
nearby tank and whether it is causing the students to have an 
inordinate number of nosebleeds. These are real health issues, real 
health problems.
  Mr. President, ``60 Minutes'' on January 16, 2000, brought the MTBE 
issue to the attention of America. They noted at the time there was 
contamination in some 49 States--as I said earlier, about 35 that we 
can directly link MTBE to contamination of water supplies. They 
estimate that MTBE is a contaminate in 35 percent of the Nation's urban 
wells. A single cupful of MTBE in a 5 million gallon reservoir is 
sufficient to render the water in that reservoir undrinkable.
  In 1995, an Italian study on the effects of MTBE showed high doses of 
this chemical caused three types of cancer: lymphoma, leukemia, and 
testicular cancer. We are saying to those hapless innocent victims of 
MTBE contamination of their water supply that we are closing the 
courthouse door for their recovery in product liability suits. How in 
the world can we do this in good conscience? How can we turn our back 
on these innocent victims across America, these communities forced to 
pay millions of dollars for the wrongdoing of oil companies, and give 
them this sort of special giveaway and special break?
  I, frankly, don't understand how we can. I don't understand how what 
started out to be an Energy bill has become something much different. I 
don't know how a bill which was supposed to give us energy security 
could be so damaging to our environment in so many specific ways. I 
don't know how a bill that was supposed to be giving Americans peace of 
mind about their energy future instead in community after community and 
in State after State is going to close the courthouse doors to holding 
oil companies accountable for their misconduct.
  This is the worst. This retires the trophy in the Moonlight Mackerel 
Award. I cannot recall a time when we have gone this far, and that is 
saying something. There is a way out of our embarrassment, and it is a 
way I would encourage colleagues on both sides of the aisle to take 
very seriously. We will have an opportunity on a cloture motion soon to 
decide whether this bill goes forward. If we can gather 41 Senators to 
oppose it from going forward, then the bill will stop and be returned 
to conference or perhaps back to committee for further consideration.
  I think that is the way it should be, and the sooner we do that the 
better. If enough of my Republican colleagues will step forward with 
Democratic colleagues, we can make that difference.
  In case you think this is a partisan issue, the Wall Street Journal, 
which is not known to be friendly to many Democrats, including this 
one, went after this bill and criticized it on Tuesday, November 18, 
calling this Energy bill one of the great logrolling exercises in 
recent congressional history. In the words of the Wall Street Journal:

       The Republican leadership has greased more wheels than a 
     NASCAR pit crew.

  They go on to say:

       The bill's total price tag of new outlays is a tidy $72 
     billion according to Taxpayers for Common Sense. That's not 
     counting $23 billion in tax giveaways to nuclear, oil, gas, 
     and coal concerns all over the country, 3 times more than the 
     President said he would accept.

  The Washington Post, November 18:

     . . . producers of MTBE, another gasoline additive that is 
     believed to pollute drinking water, have not only been 
     exempted from product liability, they also have been 
     retroactively exempted, a change that cancels out lawsuits . 
     . .

  Across America.
  They go on to say:

       This bill does not, for example, provide a clear direction 
     for the development of the electricity grid . . . it does not 
     encourage the U.S. car industry to manufacture vehicles that 
     consume less fuel . . . and it does not significantly 
     encourage energy conservation.

  The New York Times says this bill is:

     . . . hardly surprising in a bill that had its genesis partly 
     in Vice President Dick Cheney's secret task force.

  It creates:

     . . . exemptions for the Clean Water Act, protection against 
     lawsuits for fouling underground water and an accelerated 
     process for leasing and drilling in sensitive areas at the 
     expense of environmental reviews and public participation.

  The list goes on. The Anchorage Alaska newspaper calls the Energy 
bill a setback.
  The Atlanta Journal Constitution, quoting Keith Ashdown of Taxpayers 
for Common Sense, says:

       [T]he legislation is ``a smorgasbord of subsidies to big 
     companies masquerading as energy policy.''

  The Atlanta Journal Constitution concludes in its editorial:

       This bill is about as bad as it gets. When it comes up for 
     a vote, members of Congress who remain committed to more 
     rational energy policy for America and still believe in the 
     dignity of the legislative body in which they serve shouldn't 
     hesitate to reject it.

  The Chicago Tribune, from my home State, said the Democrats were 
virtually locked out of the final negotiations and we were given some 
48 hours to digest and evaluate this lengthy bill.
  The Patriot News in Harrisburg, PA, says:

       The energy issue is an upside-down world for sure when they 
     look at this bill.

  They say there is no more blatant example than the 100-percent tax 
credit available to business owners who purchase gas guzzling Hummers 
and more than 30 other models of large SUVs. The tax credit was enacted 
as part of the President's economic stimulus package and was intended 
to help farmers and other small business, but the tax break is so 
attractive it has caused a run on vehicles that average 9 to 15 miles 
per gallon.
  We are going to have energy security and energy independence with a 
tax policy that encourages the purchase of these gas guzzlers?
  They go on to say that hybrid cars which offer 50 to 60 miles a 
gallon are subject to a $2,000 tax deduction, and that is in the 
process of being phased out. The list goes on and on of editorial 
comments across America.
  I hope we can return to this bill and do it in a sensible fashion. I 
hope we can put conservation and energy efficiency at the forefront as 
we discuss energy security. Though there are many good things in this 
bill, the good things are outweighed by the negatives.
  This exemption from MTBE liability is the absolute worst. To say to 
these families, these individuals, and these communities that we are 
going to lock the courthouse door to them no matter what damage they 
have sustained is a new low.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I am very glad I was present today to 
hear the speech of the distinguished Senator from Illinois so that 
immediately after it I might speak a few words.
  First, for everybody in this Chamber who wants ethanol--now, I am 
making the point very clear that I am not talking about whether ethanol 
is the greatest, whether ethanol is the least, or whether ethanol is 
the best thing in the world. I am just addressing the millions of 
people in this country, most of them farmers, many thousands in the 
State of the occupant of the chair, who would like to see ethanol, 
since it would do great things for them and at the same time diminish 
our demands on gasoline from crude oil. Now I am speaking to them.
  Whatever has been said by the good Senator from Illinois, all the 
farmers in his State who produce corn and the other products should 
know there is no way to get an ethanol bill of any consequence without 
addressing the issue of MTBE. The way the issue has been addressed by 
the Senator from Illinois on MTBE is wrong, but nonetheless let us just 
talk about the reality of it. Do my colleagues want a major ethanol 
program for America? The answer is overwhelmingly yes. Then go to 
conference with the House like we did and say to them: We want an 
ethanol bill like the one that passed the Senate.
  They will say: Not on your life, unless you decide to treat those who 
produce MTBE, a forerunner to ethanol, fairly.

[[Page 29625]]

  We said: What does that mean?
  They said: For those who have used MTBE properly, they shall not be 
liable for any damages that result from MTBE.
  I am reminded in my home State, there was a product liability case 
against a company that delivers more coffee and hamburgers than any 
other company in the world, McDonald's. The suit was against McDonald's 
for delivering coffee to the front window of a car and then spilling 
the coffee on the lap of the purchaser. The purchaser sued McDonald's 
because the coffee was too hot.
  They did not sue Folgers Coffee for making the coffee. They sued 
McDonald's for delivering the coffee that was too hot. I think that 
most people would say that is about right. If the coffee was too hot, 
then let a jury decide whether they ought to be delivering coffee that 
is so hot. But what if they would have gone off and sued Folgers Coffee 
because they made the coffee that somebody used wrongly, to wit, made 
it too hot and burned the legs of a purchaser of hot coffee? That is 
exactly what is going on with MTBE.
  I am not a proponent of it. I did not know anything about it until I 
got intimately involved in this legislation and then I found that MTBE 
is a product that has been authorized and prescribed by the Federal 
Government. It is something that is supposed to be used because the 
Government says you can use it and it is all right.
  In response to the U.S. House insistence, all we have done is say if 
someone uses MTBE, as prescribed by the Federal Government, they are 
not liable in damages. We are very narrow. As a matter of fact, we have 
unquestionably said if one uses it wrong, if they negligently use it, 
if they spill it, if they throw it around, if they do not handle it 
properly and damages result, they can be sued.
  I do not think that is exactly what my friend from Illinois said, but 
I believe that is what this legislation says. I believe that is what we 
did, and I believe there is no other way to do it.
  Then we said in the meantime, it is going to be phased out. That is 
in the legislation, too, that in a certain number of years it cannot be 
used anymore. Even if it is used right, it is not going to be used 
anymore. There is something that takes its place.
  Across this land, people file lawsuits in product liability cases and 
otherwise about many things, and we all know about it. Sometimes we 
look at a lawsuit and we are abhorred to think they could take such a 
case to court. Sometimes we think, right on, somebody really messed up 
and they ought to pay for it. But when the House said to us, if you 
want an ethanol bill, you have to look at litigation that is ensuing 
out there in America where MTBE producers are getting sued for a valid, 
appropriate product, okayed by the Federal Government, used properly, 
and they are getting sued for damages.
  They said: We want to limit that. If it is used improperly and causes 
damages, the suits can go on. Then we argued and said let's get rid of 
it in due course, and we have language that says what date it will 
expire in terms of being a product that can be used.
  I want to say again, so that everybody understands, the last speaker 
has suggested that this bill should be killed by cloture, and that is 
the right of the Senate on any bill. But I suggest to them if they kill 
this bill by cloture, which I urge that they not do, they have killed 
ethanol, and I do not know when it ever comes back.
  As a matter of fact, if they think it is coming back without some 
restraint on MTBE legislation that is going rampant in this country, of 
the type I have described, suing Folgers Coffee because somebody 
spilled hot coffee on them, that kind of analogy, for those who think 
that is going to continue on, then they have given up and abandoned 
forever ethanol. If that is what they would like, then follow the 
directions and the wishes of the Senator from Illinois who has plenty 
of farmers who are waiting and wondering what is going to happen to 
this bill because of what they think is going to be fair treatment, 
creating a new market over the next decade and the next decade after 
that for a product that has been on a roller coaster for farmers who 
have been on a roller coaster.
  Having said that, I want to talk to another group of people. 
Throughout the deliberation on this bill, I have not heard more from 
any group of Americans and any group of Senators than the group 
concerned about the issues of wind energy, solar energy, biomass, and 
related energies. Everybody came to us, day by day, as we put this bill 
together and said: Senator, you know wind energy is working. You are 
not going to kill it in this bill, are you? Senator, bioenergy is right 
on the edge, ready to go. All these different energies are ready to go. 
In the case of wind energy, it is not only ready to go, it is going. It 
is beginning to show up because it is working so well.
  Let me say to my friend, it is gone; wind energy is finished when you 
kill this bill. It is gone.
  You might say: How can that be? It is moving along right now. In 
fact, over in Massachusetts they wanted to build some out there and 
some people didn't want them building them out there in the ocean. I 
don't know which people around but some. How come? It was being built.
  Yes, but existing today is a great big credit, tax credit for solar 
and for wind. Guess what. It expires very shortly. It is gone, out the 
window. The people who are building wind in America are up here in the 
halls, knocking on our doors, and saying: Do you really want to kill 
wind energy in America?
  The answer is: Oh, no, I just don't like the MTBE portion of this 
bill. But I don't want to kill wind. I want to carve it out and save 
it.
  But you know what, people who want wind, you can't do it that way. Do 
you think we are going to start over next month writing another bill of 
this nature because this one was dead on a side issue of the type I 
have been describing, and we don't have any credit for wind, we don't 
have any credit for solar? Not on your life. In fact, I don't know when 
we would get around to it.
  We can look back to the day after tomorrow or the day after that and 
say: There it went. There she blew, like they say out in the ocean. 
There she blew, right out the window with those who decided they wanted 
to talk this bill to death.
  Then you look around and there are people saying, another group 
around here, a lot of eastern Senators walking up and saying: What is 
going to happen to coal? We have a lot of coal and nobody uses it. 
Can't you do something about that in the Energy bill?
  We say we have. We have given as good a credit for research and 
production of clean coal technology in America as has ever existed. It 
is in this bill.
  In fact, I had one Senator yesterday from the East, somebody trying 
to make this an East versus West bill. I don't know how they did that, 
either. This Senator said: I was wondering what was in this bill for my 
State--being an Eastern State, a big coal State. He said: I found out 
that it has the finest set of credits for companies to try to use this 
great asset called coal that could ever be put in a bill. All of that 
within this total cost of $2.6 billion a year, on average, over 10 
years.
  That Senator said: I am voting for it. We have to give coal a shot in 
my State, said that Senator.
  We can go on and on and talk about this. But it is much easier to 
pick a piece of the bill such as MTBE and state the facts wrong and 
tell everybody they should not vote for this because of MTBE. But I 
follow by saying the MTBE situation is not what has been said, and 
before you decide to kill the bill on MTBE, you ought to remember you 
don't kill this bill in pieces.
  So everybody out there will know who has an interest: You don't kill 
this bill in pieces. You adopt it all or none.
  For those who think MTBE is of that importance as I have explained it 
here today--and we will be glad to meet privately with any experts 
around who want to look at it--but if anybody thinks MTBE is of such a 
proportionate disadvantage to America that we ought to kill the future 
of windmills and solar energy and we ought to decide we are not going 
to do any of these other technologies that will develop America's 
energy base, they are all going out the window.

[[Page 29626]]

  This Senator thinks in the end the Senators who are looking at the 
pluses and minuses of this bill may sit back in their chair and say, 
you know, I might have done it differently. No, Senator Bingaman said, 
maybe he could have done better if he had more time. Yes, maybe they 
should have given the Democrats more time in the committee. But that 
same Senator may say: Didn't we do that last year? Didn't we give them 
all the time in the world and what did they do? Nothing. So we produced 
something this year.
  I will take full credit and full blame that I couldn't figure out how 
to do this with a regular, day-by-day markup of a bill of this 
magnitude with input from all sides, and I thought we should have input 
in a different way. We have established input from the minority party 
in a different way, there is no question. They got e-mails and portions 
of this bill as it was produced. They had meetings when they offered 
amendments. Some were adopted. The last 30 percent of the bill was 
delivered to them at the end, for them to look at, and they got the 
message for almost all the amendments were on those things that had to 
do with electricity and the like. They just didn't win any of them, 
which usually happens in a conference.
  Conferences are usually dominated by the majority party. That is 
history. That is tradition or whatever you want to call it around here. 
Many of the early provisions of this bill are provisions that were 
adopted last year as part of the bill when Senator Bingaman was 
chairman. But we didn't get a bill.
  I decided we were going to get a bill. We worked, and worked as hard 
as people can work, to put one together, and, frankly, you can go 
through it and find provisions taken all by themselves and say it 
doesn't have much to do with energy. But I tell you, you can't go 
through the whole bill and say it doesn't have a lot to do with 
America's energy future. In fact, I believe we will see the biggest 
change in agricultural America in modern history with this bill.
  Some will say that is not what the bill is for. The bill is for that 
if, in fact, in doing that we are producing gasoline for automobiles. 
It is not bad to get the two for one.
  Second, this bill is going to produce alternate activities to get 
natural gas in abundance, and it is also going to produce just about 
every stitch of natural gas we can produce as a nation without doing 
damage to our environment, and that will be used by America for 
American purposes.
  I wish we could do more. I wish we could have done more with Alaskan 
resources. But you know what, everybody knows, you get one thing and 
you lose something. You move ahead on one and somebody thinks it is the 
wrong thing and you take two steps backwards.
  To get this bill, well over 1,200 pages, on all the subjects we have 
done, and get it together and get it here this far and get it through 
the House yesterday by a majority vote of more than 60, a 60-vote 
plurality or thereabouts, is pretty good.
  I am very sorry it is hung up here in the Senate. I will repeat, I 
have heard quietly--not openly--that some say this is a bill that is 
for regions of the country. I can't find it. If they would stand up 
here and say this bill favors the East or the West and show me how, I 
would be more than glad to go out and look, listen, and try to explain 
why it isn't. If MTBE, as I have explained, is an East versus the West 
issue, then I would assume there is no litigation or potential 
litigation on product liability in nature from the West. I don't think 
that is the case. If it has to do with resources, we have tried to 
produce the basic resource that is good for America's future, wherever 
it lies--whether it is the coal of Pennsylvania or the coal of Wyoming. 
We have tried to build under it incentives that will make it used more 
rather than less. We have done that.
  In the next few days, we will hear a lot more. Most of it will be 
about the issues of which I am speaking.
  I want to repeat, for those who want ethanol and want it bad and have 
been waiting 6 or 7 years for it and want a real bill for it, we have 
exactly what is necessary. That took 4 weeks of debate and frustration 
galore, but we got what the Senate said we should get. Yes, you can 
throw it all away because we had to take MTBE, as I have explained, 
with it. Those lawyers who like MTBE like to tell it one way. I tell it 
my way because I think my way is right. The lawyers' way probably would 
be if you were using Folgers Coffee at MacDonald's and coffee was 
spilled on someone's lap, you ought to be able to sue Folgers Coffee. 
But if you put in legislation you can't sue Folgers, then I don't think 
they can come to the Senate floor and argue the way they are arguing 
about MTBE because Folgers didn't make it hot and spill it. Neither did 
MTBE get spilled around where it shouldn't be, or used unpropitiously 
or contrary to the Federal Government standards.
  Everywhere you look, there is a smattering of Senators for whom I 
have great respect who would like to see a nuclear powerplant built one 
of these days. You can throw them away if you kill this bill. They 
won't be built. If you pass the bill, there will be a chance there will 
be one following every law and every rule in the books. We might get 
one or two. I think that is pretty good.
  I am prepared, as are a number of Senators who worked with me, to 
return to answer as other Senators bring this issue up.
  I thank the group that helped work on this bill. They were a mighty 
group of seven who worked as Senators on our side of the aisle. I thank 
each and every one of them. They had to learn an awful lot, make a 
whole bunch of hard votes, and make some very close decisions. Now we 
are here. I hope we go beyond it and get the bill passed.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Thomas). The Senator from Nevada.
  Mr. REID. Mr. President, on the minority side, we have a number of 
Senators who are going to speak. I will ask unanimous consent that they 
speak. I have three who wish to speak now, and we have a time at which 
they want to speak. If there are Senators from the majority who want to 
come in between those, that would also be part of the order. I think 
that would be fair.
  I ask unanimous consent that on our side Senator Kennedy be 
recognized for \1/2\ hour, Senator Cantwell be recognized for \1/2\ 
hour, and Senator Dorgan be recognized for 30 minutes. As I indicated, 
if there are Senators from the majority who wish to speak following 
Senator Kennedy, Senator Cantwell, and Senator Dorgan, that would be 
appropriate. If not, we have other Senators who have indicated a desire 
to speak. This is not in the order which they will appear.
  So that everyone knows, there are a number of speakers who want to 
talk: Senators Akaka, Reed of Rhode Island, Feinstein, Stabenow, 
Feingold, Landrieu, Sarbanes, and Clinton.
  I ask unanimous consent that Senator Kennedy be recognized for \1/2\ 
hour, Senator Cantwell for \1/2\ hour, and Senator Dorgan for 30 
minutes. If there are Republicans who wish to speak in between, those 
Senators will be part of the order.
  The PRESIDING OFFICER. Is there objection?
  Mr. DOMENICI. Mr. President, reserving the right to object--I will 
not--I ask how you might work this in your schedule. We have been told 
for some time that Senator McCain would like to speak.
  Mr. REID. Senator McCain can come at any time he wants, either after 
Senator Kennedy or Senator Cantwell or Senator Dorgan. Whenever the 
distinguished senior Senator from Arizona shows up, we always give him 
the floor anyway.
  Mr. DOMENICI. He may be around at 2:30 or 2:45. That might work it 
out perfectly.
  Mr. REID. That would be perfect.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. REID. Mr. President, the other statement I made was just to 
inform both the minority and the majority that the Members who desire 
may speak sometime this evening without any specified time or in any 
necessary order.
  The PRESIDING OFFICER. The Senator from Massachusetts.

[[Page 29627]]




                       Prescription Drug Benefit

  Mr. KENNEDY. Mr. President, the Medicare system is the system which 
is relied on, trusted, and a beloved health care system which our 
seniors use just about every day. They know it is always there for many 
of them. It gives them an enormous sense of security as they are 
looking down the road towards the future. I was here in the Senate in 
1965 when the Medicare bill was passed. It failed in 1964. It passed in 
1965. It is generally recognized today across the country that even 
though the Medicare bill provided for hospitalization and physicians' 
fees, the one thing that it did not provide for was the prescription 
drugs.
  In 1965, only 3 percent of all of the private health care bills 
provided for prescription drugs. But now it would be inconceivable that 
this institution would pass a health care program for our seniors and 
give our seniors who have paid into the Medicare system the assurance 
that their health care needs would be attended to because we know that 
prescription drugs is of such extraordinary importance to all of them.
  It will become increasingly clear. We are in the period of the life 
sciences century. We are seeing these extraordinary breakthroughs in 
DNA and genes. The Congress has doubled the NIH budget, and the 
prospects for breakthroughs are just enormous. If we were to see a 
breakthrough, for example, in Alzheimer's, we would empty three-
quarters of the nursing home beds in my State of Massachusetts. The 
prospects in terms of what these prescription drugs can do and what 
they are doing today is enormous. Therefore, we have a very important 
responsibility to get a prescription drug program.
  I believe the bill which passed the Senate was a good bill. Seventy-
six Members supported it. It was a prescription drug bill.
  But the proposal that is coming out of the conference committee 
failed to meet the basic and fundamental test; that is, to do no harm 
because the particular proposal that is being recommended by the 
conferees will do harm to the Medicare system. The House of 
Representatives adopted important changes in the Medicare system under 
the guise of a prescription drug program, and they have been accepted 
in that conference committee. Now, for the first time since 1965, the 
Medicare system itself is threatened. Many of us are going to do 
everything we can to make sure that is not the case.
  An editorial in the Des Moines Register today gets it exactly right. 
It says:

       Once upon a time, lawmakers wanted to add a prescription-
     drug benefit to Medicare. In year one, they failed. In year 
     two, they failed. Now, in year three, the quest for a drug 
     benefit has ballooned into a plan to change the entire 
     health-care program for 40 million seniors.
       As a few details about the 1,100-page bill crafted in 
     conference committee trickle out, it's clear another failure 
     this year would be best for Americans.

  The editorial concludes:

       Lawmakers need, once again, to go back to the drawing 
     board.

  Effectively, what they are saying is that no bill is better than a 
bad bill. This is Des Moines Register. They get it right.
  The editorial continues:

       This time they should try a new approach: Focus on holding 
     drug prices down, keep 40 million seniors in one buying group 
     to leverage lower prices, open up the global market on drugs 
     to Americans, and remind themselves their job is to serve the 
     interests of the people, not industry lobbyists.

  There it is, Mr. President, the Des Moines Register gets it. This 
proposal will do virtually nothing for keeping prices down.
  Access to prescription drugs and costs to senior citizens are the two 
elements with which our seniors are concerned. This bill does virtually 
nothing regarding costs. It is flawed in its effort to provide 
prescription drugs by undermining Medicare.
  This conference report represents a right-wing agenda to privatize 
Medicare and force senior citizens into HMOs and private insurance 
plans. I guess seniors should not get to choose their doctor and 
hospital, they just do not know enough. That choice should be made for 
them by the insurance company bureaucrats. The conference report 
includes no serious program to reduce the double-digit drug price 
increase. The attitude of the special interests who hijacked this 
process is clear: Control senior citizens, not drug costs.
  The day this program is implemented, it will make millions of seniors 
worse off than they are today. It is an attempt to use the elderly and 
disabled's need for affordable prescription drugs as a Trojan horse to 
destroy the program they have relied on now for 40 years. It is an 
enormous give-away to the insurance industry and an enormous take-away 
from the senior citizens.
  The new study that has just been released today indicates, when this 
program goes into effect, the HMOs and private insurance industry will 
increase by more than $100 billion if this bill passes. That is more 
for the private insurance companies and for the HMOs. No wonder our 
Republican friends and the insurance companies are for this bill. No 
wonder senior citizens are against it.
  The more senior citizens learn of these problems, the more they 
oppose the legislation. In a poll released this morning, only one in 
five older voters, 18 percent, say this bill should be allowed to pass 
in its current form. In fact, 59 percent of the AARP members agree with 
Democrats that this bill does more harm than good.
  Regarding the drug plan itself, even before getting to the problems 
of privatization and the subsidies for HMOs that are in this bill, 
older voters oppose the drug plan by 65 to 26 percent. In fact, only 27 
percent of all seniors say they would bother to enroll in this plan at 
all.
  Seniors are deeply concerned about the way Republicans have hijacked 
the drug plan to undermine Medicare. They oppose the subsidies for 
private plans, 65 to 23 percent. In fact, among the AARP members, 
opposition to the subsidies is even stronger--68 percent to 19 percent. 
Older voters oppose the cost caps on Medicare services, 60 percent to 
26 percent. And they are deeply concerned, 64 to 26 percent, about the 
failure of this bill to control drug costs to allow drugs to be 
reimported from Canada.
  As elected representatives of the people, we pass this bill at our 
peril. In fact, by a margin of 3 to 1, older voters are saying they are 
less likely to support politicians who support this bill.
  It is important to understand how we got to this point. We started in 
the Senate with a bipartisan bill to expand the prescription drug 
coverage. A bill passed with 76 votes. The Senate solidly rejected the 
President's plan to privatize Medicare by telling senior citizens they 
could only get the prescription drugs they needed by joining HMO and 
other private insurance plans. That was the position of the President 
in the spring of this year: You are only going to get prescription 
drugs if you join an HMO or private insurance plan. You will not be 
able to under the Medicare system. Then the administration shifted.
  But the House took a different course. They realized the President's 
plan would not be accepted by the American people, so they passed a 
more subtle proposal, one that tries to privatize Medicare by stealth. 
Their only problem was it was not stealthy enough. That is why it 
passed by a slim partisan majority of one vote in the House of 
Representatives--one Republican vote.
  Now the conference has been hijacked by those who want to radically 
alter Medicare and to privatize it, to voucherize it, to force seniors 
into HMOs and private insurance plans. The bill the Senate will 
consider shortly is not a bill to provide a prescription drug benefit. 
It is a bill to carry out the right-wing agenda. It allows the elderly 
to swallow unprecedented and destructive changes to the Medicare 
Program in return for a limited, inadequate, small prescription drug 
benefit. This conference report is so ill conceived that not only does 
it put the whole Medicare Program at risk, it makes 9 million seniors, 
almost a quarter of the Medicare population, worse off than

[[Page 29628]]

they are today. I will illustrate that in one moment.
  On issue after issue, this report abandons the bipartisan Senate bill 
and capitulates to the partisan House bill. On some issues it is even 
to the right of what the House passed. One of the most important of 
these destructive changes is a concept called premium support. It 
should really be called ``insurance company profit support'' or 
``senior citizen coercion support.'' It replaces the stable, reliable 
premium senior citizens pay for Medicare today with an unaffordable 
premium for the future. Here is how it works.
  Today, the Medicare premiums are set at 75 percent of the cost of 
Part B of the Medicare Program, the part that pays for doctors' care. 
Beneficiaries pay the remaining 25 percent. The premium is the same no 
matter where you live. It is universal whether you live in Key West or 
Portland, ME, whether you live in Takoma, WA, or whether you live in 
San Diego. You pay the same premium. You pay into the system and you 
pay the same premium. It increases from year to year at the same rate 
as the Medicare increases. It is stable. It is reliable. It is now 
$58.70 a month Part B premium and $704 for the year.
  Premium support would change all that. The senior citizens can 
choose, if they want to, get their Medicare benefits through HMOs and 
other private insurance plans. The Government pays these plans 
approximately the same amount it costs Medicare to provide the 
services. The senior citizens pay at least the same Part B premium to 
enroll in the plans they pay for the regular Medicare, but the plans 
can charge more if they offer additional services or lower copayments. 
If the plans can provide services more cheaply than Medicare, they give 
the difference back to the beneficiaries in the form of better services 
or lower copay without additional charge.
  Senior citizens who choose the private plans may get some additional 
benefits, but the senior citizens who prefer to keep the freedom to 
choose their own doctor are not penalized. And 9 out of 10 seniors have 
chosen Medicare over Medicare HMOs.
  What happens, as everyone knows, is the insurance companies cherry-
pick and get the healthier and younger seniors. Therefore, it costs 
them less, although they get the payment that would otherwise be going 
into Medicare. So we have the healthier ones leave and the sicker ones 
remain in the Medicare system. That is what has happened today. There 
is no reason it will not happen in the future. As a result, we will get 
increases in the cost of premiums under the Medicare system.
  This chart reflects what the Medicare actuaries--not what I estimate 
but what the Medicare actuaries--estimate would be the national average 
for seniors. It would be $1,205. And their estimate national average 
for premium support, the current estimate, would be $1,501. And 2 years 
ago they estimated the national average was $1,771.
  The fact is, no one knows what the premiums will be. You are playing 
roulette with premium support. Here we have a swing of $300 in 
estimates, estimates made by the Medicare actuaries. It could be 
$1,205, but under this bill for those who fall into the trial category, 
they will be paying at least $1,500 or the $1,771.
  Look at this chart. Let me give you a few examples of the disparity. 
Again, this is from the Medicare actuaries. If you live in 
Massachusetts, and in Barnstable--that is primarily Cape Code--the 
premium for Medicare will be $1,400. If you live in Hampden, it will be 
$900. That is a $500 difference.
  Today, everyone pays in the same amount and they get the same premium 
on it. Under this legislation, everyone is going to be paying in, and 
if you live 100 miles apart, you are going to get a $500 disparity in 
the payments under the premium support system. This information is from 
the Medicare actuaries. This is the kind of roulette our seniors do not 
want.
  Here is another example in Florida. In Dade County, the best estimate 
from the Medicare actuaries is you will pay $2,050; and in Osceola 
County, you will pay $1,000; you will be paying twice as much.
  How do you explain that to the seniors? How do you explain that they 
pay in and their premiums are going to have this amount of swing to 
them? No one can accurately predict with any certainty, but we are 
buying this program? It is untested, untried. It is the greatest social 
experiment with whom? With our senior citizens. Why? Because there is 
going to be all kinds of money in there for those private insurance 
companies and those HMOs. That is what it is about--risking the 
Medicare system.
  Here we have the example in Los Angeles, $1,700; in Yolo, CA, $775. 
And in New York City, $2,000 if you live in the Queens area; $975 in 
Erie. This is the Medicare actuaries' data, these premiums and 
estimates. And that is the element that is written in this bill.
  Now you hear our colleagues who defend their proposal say: Well, 
Senator, this is really just a trial program. It is not going to be 
anything more than a trial program.
  Well, they are going to have five what they call MSAs, metropolitan 
statistical areas. If you take five metropolitan statistical areas and 
then you take one small one--here they are--if you take the States of 
New York, New Jersey, and Pennsylvania, that is 2.6 million people who 
are affected. For California--Los Angeles, Long Beach, Santa Ana--that 
is 1.4 million. For Illinois, Indiana, Wisconsin, that is 1.1 million. 
For Florida it is 833,000; that is Miami, Fort Lauderdale. For 
Pennsylvania, Delaware, Maryland, New Jersey, that is 866,000. And then 
take a small one, Nevada--Reno and Sparks--47,000. So 6.8 million of 
the 40 million; you are almost up to a quarter who are going to be 
included in their program, who are going to be subject to these kinds 
of swings.
  They call this a demonstration? This is a Mack truck. This is not 
just a small Volkswagen, it is a Mack truck, and they are calling it a 
Volkswagen. And seniors ought to understand it. So that is one threat.
  Now, listen to the second threat. We say, well, what about the risk?
  Mr. President, how much time have I used?
  The PRESIDING OFFICER. The Senator has used 18 minutes.
  Mr. KENNEDY. Fine. Let me know when I have 3 minutes left.
  The PRESIDING OFFICER. I shall.
  Mr. KENNEDY. Now, on the second situation, our Republican friends 
say: Well, we believe in competition. With competition we will get the 
best health care for the best price and the best cost. Oh, we say, 
well, how are you going to do that?
  Let's see what is in the bill now that you say that is what you want 
to do. You think you have competition in this proposal? Let me show you 
and explain to you how this is a rigged proposal.
  First of all, in this legislation they give to all of the HMOs and 
the PPOs a 9 percent increase in the cost of living over what they give 
in the Medicare--9 percent. Nine percent? Nine percent? Why are they 
doing that? Because: They think they ought to get it. They want 
competition.
  The second point that is in this bill is that those who are in HMOs 
today and in the private insurance companies are 16 percent healthier 
than those in traditional Medicare. That is not my estimate, that is 
CMS's estimate, the agency which provide the reimbursement. That is 
their estimate.
  You add these two together and you get a 25 percent subsidy for every 
private plan and every HMO. They call it competition. I thought 
competition was an even playing field. This is not an even playing 
field. And who is paying this additional 25 percent? Our seniors are. 
It is coming out of their payments. It is coming out of the Medicare 
trust fund. It is cutting out the benefits they ought to have. That is 
ridiculous. That 25 percent should be reinvested in the drug program, 
not used as a subsidy for the private sector.
  Now, we say: Well, you have that 25 percent on that. If you looked 
through, you would say: Well, that is a pretty big chunk of change for 
it. You think they would be happy with that, wouldn't you? No, no, no, 
no, Senator Kennedy, we are not even happy

[[Page 29629]]

enough with that. We are going to include, on top of the 25 percent 
subsidy, a $12 billion slush fund in this bill--$12 billion. So 25 
percent is not enough. We will be able to provide hundreds of 
millions--hundreds of millions--billions of dollars to those HMOs, some 
of which made more than $1 billion last year. Some of those CEOs are 
getting paid more than $22 million a year. And we are going to take $12 
billion more on top of the 25 percent and use that as a slush fund.
  Talk about an even playing ground. What could that $12 billion 
provide for? These are the leading diseases about which our elderly are 
concerned: Arthritis, osteoporosis, diabetes, cholesterol, acid reflux, 
thyroid deficiency, and depression. That $12 billion could provide for 
11 million of our senior citizens who suffer from arthritis a year, or 
12 million who suffer from osteoporosis, or 11 million who suffer from 
depression, or it could be used for those who suffer from high 
cholesterol, right on down the line. That is what it could mean for our 
senor citizens. But, oh, no, this conference said no, we are going to 
take that and add that in. Not only are we going to threaten you with 
this premium support program, you will never really know what your 
premiums are, except that they are going up.
  I want to take just a few more minutes about this proposition. I had 
mentioned earlier that the day this bill passes, you are going to have 
9 million of our 40 million Americans who are going to be worse off and 
pay more. Do we understand that?
  On top of what I have already explained--the completely unfair 
playing ground that is so tilted towards those who do not support 
Medicare--now we are saying to our elderly that between 2 million and 3 
million--and closer to 3 million.
  Low-income seniors pay more. Six million of them will be receiving 
Medicare but also receive Medicaid. The conference proposal denies 
States the ability to provide wraparound coverage to those low-income 
seniors. Instead, a uniform Federal co-payment is imposed, and it is 
indexed, so that it goes up every year. Their out-of-pocket payments 
for drugs will be raised, and they may not even have coverage for the 
drugs they need the most. If they need a drug that is not on the 
insurance company formulary, they will have to go through a burdensome 
appeals process. Most will simply go without.
  Every one of these 6 million will be paying more. Maybe it is $2 a 
prescription, but if you have three prescriptions, that is $6. You may 
have to get a refill every other week, and it begins to go up, $24, 
$25. Nine million lose the day this passes. Let's keep our eye on these 
6 million low-income seniors.
  Prescription copays hurt the very poor. You will have almost double 
the amount of serious adverse events when seniors don't take those 
medicines. Emergency visits go up as well, double the amount. For those 
6 million, these are the statistics from all the health care studies. 
Not only will they be paying more, but their health condition will be 
threatened. It makes absolutely no sense from a health policy point of 
view.
  One of the most important aspects of the legislation passed in the 
Senate was to say we were going to make sure that the asset test, which 
has been around for many years, the asset test for the very poor would 
no longer be in effect. As a result, we took steps with regard to 
prescription drugs that we haven't even done with regard to Medicaid. 
The Senate bill really reached down for the poorest of the poor 
elderly.
  We said: OK, maybe you can have the car, $4,200; you can have the 
personal savings, $2,300; you can have even a $1,500 insurance policy 
and a burial plot for $1,500, and we were not going to hold that 
against you. People who had worked all their lives perhaps had those.
  What do our good Republican friends do? They reimpose the assets test 
and say, if you have that, you are not eligible. Three million of the 
poorest of the poor are dropped out of coverage under this proposal. 
That is enormously unworthy of the proposal.
  I want to mention an aspect of this because I am running out of time. 
I have mentioned that we have the premium support which is going to 
threaten the Medicare system. We have the subsidy programs which are 
going to threaten the whole Medicare system by enticing, coercing, 
bribing seniors out of that, and then letting the Medicare system 
collapse right in front of them.
  Then they have added another program which they call health savings 
accounts--what used to be called medical savings accounts--which 
provides billions of new tax breaks for the healthy and the wealthy. 
The money that should have been used in this bill to provide additional 
prescription drugs, they have taken billions out to provide for this 
new program. They encourage the healthy and the wealthy to take high-
deductible policies, policies that require you to pay thousands of 
dollars before you get benefits. That is fine for people who can afford 
to put money into tax-free savings accounts but it is not good for 
ordinary working Americans.
  The PRESIDING OFFICER. The Senator has 3 minutes remaining.
  Mr. KENNEDY. The Urban Institute and the American Academy of 
Actuaries have estimated that the healthiest people are pulled out of 
the risk pool for regular comprehensive policies by these accounts. 
Premiums skyrocket, if this policy becomes law. If you want to keep 
your insurance policies, you can see your premiums increase as much as 
60 percent.
  The Urban Institute estimates that premiums, and this will be for all 
those who are employees working in small companies all across the 
country, once this program gets started, could increase by over 60 
percent and the American Academy of Actuaries have estimated that 
premiums would jump $1,600.
  Why are we doing this? Why are we taking a chance with the Medicare 
system? The American people and our seniors have confidence in 
Medicare. Why not just do what we did in the Senate in a bipartisan way 
and have a good downpayment rather than threaten the Medicare system?
  This was the wrong way to go. This bill does not deserve the support 
of the Senate. I hope it will be defeated.
  The PRESIDING OFFICER. The assistant minority leader.
  Mr. REID. Mr. President, the distinguished senior Senator from 
Arizona has called and wishes to speak following Senator Cantwell. I 
ask unanimous consent that that be a part of the order, following her 
statement, the Senator from Arizona, Mr. McCain, be recognized for 
whatever time he may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Washington.
  Ms. CANTWELL. Mr. President, how much time do I have allocated to me?
  The PRESIDING OFFICER. One hour.
  Ms. CANTWELL. If the Chair will notify me after 40 minutes.
  The PRESIDING OFFICER. Yes.
  Ms. CANTWELL. We are now going to go back to the Energy bill. I know 
many of my colleagues have already been on the floor today discussing 
the conference report that is before us. While I think my colleagues 
have done a good job of outlining some of the most egregious parts of 
this legislation, because it certainly is shocking legislation, the 
point I would like to make in the next few minutes is about how we got 
to this process and how America is very disappointed in what we have 
come up with as far as a conference report.
  It should be no surprise to people here when they find out that this 
bill has basically been drafted in secret without a bipartisan effort, 
without a lot of daylight shown on the details of the legislation until 
just this weekend. Now many people are curiously reading through 
various aspects of the legislation trying to understand all the 
giveaways, all the subsidies, and whether it could possibly mesh into 
any kind of comprehensive energy policy. I think the bill is a disaster 
as it relates to moving us off our foreign dependence and coming up 
with a concrete energy policy. It should be no surprise, when this 
energy policy legislation started

[[Page 29630]]

with a task force meeting with the Vice President in which no input was 
given, no open session as to what was being discussed.
  That a bill is brought here to the House and Senate that ultimately 
included a conference report drafted in secret makes it very difficult 
for us to have good legislation. But don't take my word for that 
because I do want to discuss the policy ramifications. Let's talk about 
what America is saying.
  In the last 24 hours, we have had a variety of people around the 
country, particularly in the press, look at this legislation and 
actually make editorial comment on it. When I woke up this morning and 
saw the stack of editorials that are before us on each Member's desk, I 
was shocked to read the detail and comments from newspapers all over 
the country. That is good news because it means America is watching 
this energy policy, that those of us in the Northwest who have suffered 
from Enron market manipulation are not the only ones watching, that 
those in New York who have suffered through blackouts are not the only 
ones watching, that people all across America are.
  In fact, the question is, Are we better off having to pass this 
Energy bill or are we better off without it?
  I will take from what the Great Falls Tribune said:

       Once again, let this energy bill die.

  Why would somebody say that? Some of my colleagues are trying to say 
this Energy bill actually has a concrete policy. According to the Great 
Falls Tribune: We are as certain today as we have been for a of couple 
years that no Energy bill is a better option than the bills being 
hashed around in the marble halls of Washington, DC.
  Other newspapers have said this bill should be a ``do not pass go.''
  The Minneapolis Star Tribune, again an independent newspaper 
organization, that probably, if it took a close look at this bill, saw 
there were some projects that the State of Minnesota could benefit 
from. Yet they say the Energy bill is a fine target for filibuster. A 
newspaper organization in a State that actually has energy projects in 
this bill thinks we should filibuster this bill:

       The energy bill unveiled over the weekend is wrong headed 
     policy prepared in a high handed way, fitted with perhaps 
     enough gifts to selected opponents to buy its passage. It's 
     an abusive approach to lawmaking, egregious enough to 
     deserve--indeed, to invite--a filibuster.

  That is from a State that has energy projects in it. So this is a 
national energy policy, which some, such as colleagues on the other 
side, like to talk about. According to the Houston Chronicle, in a 
State that would benefit in the millions of dollars from different 
subsidies and sweetheart deals in this legislation, they say:

       Fix the Flaws.
       A bill setting out a national energy policy should 
     encourage conservation, investment and new technology; 
     increase available energy; make the distribution system more 
     reliable; and reduce pollution from burning fuel. The energy 
     bill unshrouded Monday by congressional Republicans is, at 
     best, half of a loaf that has been dropped repeatedly in the 
     dirt.

  Some people say this was a process, it went through committee 
hearings and through all sorts of hearings, and we had discussions on 
the floor. I remind my colleagues that we got to this point on July 31 
of this year where we could not agree on an energy bill. I personally 
thought we should hold the bill up at that time and send it back and 
basically make the point that it wasn't going to be a successful 
product, hoping my colleagues would go back to the drawing board and 
get more bipartisan legislation.
  What happened was, we got so desperate, we passed last year's Senate 
bill and many of us said: We know what will happen. They are going to 
take last year's Senate bill and dump it and overreach in the 
conference because it will be controlled by the Republicans, not in a 
bipartisan policymaking fashion, but they are going to overreach. A lot 
of people say this has been written by the energy lobbyists.
  The Philadelphia Inquirer said:

       The Energy Bill: Lobbyists Gone Wild.

  They say:

       After all, there's something for everyone here. Everyone, 
     that is, with enough dough to finance a lobbyist's next pair 
     of Gucci [shoes].

  It is amazing that so many newspapers have so much on the ball and 
took time in their editorial pages in the last couple of days to shine 
the bright light on this policy that has been drafted in the dark and 
not in a bipartisan fashion.
  The Chicago Tribune said:

       Energy Legislation on the Fly.
       If those problems don't sink the bill, the process by which 
     the Republican majority cobbled it together certainly ought 
     to. Democrats literally were locked out of the final 
     negotiations, and now Congress--and the public--have about 48 
     hours to digest and evaluate the contents of this mammoth 
     document. This is no way to craft sensible national energy 
     policy.

  That was the Chicago Tribune.
  My colleague, Senator Durbin from Illinois, has been out here talking 
about the MTBE provisions and how those who might be affected by that 
and the public might become deep pockets on what really is the 
responsibility of individual businesses. But I think he should be very 
proud that his hometown newspaper is trying to educate people all over 
Illinois who might think, gee, what is wrong with this bill? Probably 
ethanol provisions are in it, and it ought to be a good bill. They are 
actually doing the work to show that this is quite controversial.
  Another newspaper, the Milwaukee Journal Sentinel, wrote something 
pretty humorous:

       Indigestion Before the Holidays.
       The Old Testament is only slightly longer and is a lot more 
     readable. . . .

  We should take our time with this bill.
  The St. Paul Pioneer Press is obviously pointing to what Members 
would refer to as pork-lined elements:

       Energy Bill Lavishes Billions to Drill . . .

  I don't think that is what we thought the future energy policy of 
America would be--lavishing billions to drill. We thought we were going 
to have an energy policy that was about innovation, technology, about 
moving forward on conservation, and about alternative fuels. Not that 
we didn't think we were going to continue to use some fossil fuels, but 
we didn't think we would lavish billions on them.
  We also heard from USA Today. At a time when we have ballooning 
deficits, what is this bill doing to help us get on the right track? 
They said:

       Costly Local Giveaways Overload Energy Plan.
       The Nation can't afford an energy program that drives up 
     the Federal deficit without addressing critical problems.

  Part of this is not addressing critical problems. There are many 
aspects of this earlier legislation draft that I think could have gone 
a long way toward getting us on track with jobs, along with the Alaskan 
natural gas pipeline, that probably are not going to come about now, 
which could have gotten us further ahead on a hydrogen fuel economy and 
would have established U.S. leadership in that new technology. Yet that 
was left out of the bill.
  The Wall Street Journal, which I think has followed the energy debate 
very closely, was shocked to find out in the last couple of days:

       The fact that it's being midwifed by Republicans, who claim 
     to be free marketers, arguably makes it worse. By claiming 
     credit for passing this ``comprehensive'' energy reform, 
     Republicans are now taking political ownership of whatever 
     blackouts and energy shortages ensue. Good luck.

  Why is that? That is the Wall Street Journal, and it is basically 
putting these issues that have happened in America already--energy 
blackouts and shortages--on the other side of the aisle, on their lap, 
and saying this policy isn't going to work.
  I have to say, as a former businessperson, we have had a lot of 
debate about standard market design and regional transmission 
organizations. I want to see free markets work. But free markets work 
when there is transparency and when there are rules in place. This 
legislation does very little to provide for transparency in the market. 
I think that, along with many of the other items of oversubsidization 
and special interest initiatives in this legislation, is what drew the 
Wall Street Journal to say it is not a good piece of legislation.
  What else do people say?

[[Page 29631]]

  The Concord Monitor basically said this is:

       Abuse of Power: The Federal Energy Bill is Ultimately Worse 
     Than No Bill At All.

  That is what America is starting to understand--that this policy is 
worse than no bill at all. It is a disappointment that we are at this 
stage of the ball game, and I have to say as a member of the Energy 
Committee for the last almost 3 years, before joining the committee, I 
talked to colleagues and former members about joining that committee. 
People pointed out to me that it had been almost 10 years since the 
last time we had an energy bill pass out of that committee. Who knew 
whether we would have an energy policy in the future? I think it is 
safe to say, with this product in front of us, we bit off more than we 
could chew by cobbling together a bill that is not really centered 
around the future energy policy but is specific giveaways to 
individuals so that they will buy in on support of this legislation. 
But it is worse than I could have imagined, and certainly doing nothing 
is better than this legislation.
  What about the blackouts? I know some of my colleagues would like to 
say this is legislation that is going to move us forward in this area. 
I can tell you what the Providence Journal said:

       Energy Gridlock.
       Unfortunately, Congress seems intent on passing a bill that 
     does nothing to make our energy supply cleaner, safer, or 
     more affordable, and certainly does nothing to prevent a 
     major failure. We hope that it won't take another huge 
     blackout for Congress to see the light.

  That was written in the last week or so.
  I have a lot to complain about here because my predecessor--we had a 
blackout in the Northwest prior to New York's, and my predecessor, 
former Senator Slade Gorton, actually proposed reliability standards 
and a process for moving forward so that the industry was accountable 
for energy supply and standards that would prevent us from having 
blackouts.
  What happened? His legislation actually passed out of the Senate and 
got held hostage in the House because the industry wanted more 
deregulation before they were going to put reliability standards in 
place. How is that responsible?
  Now we are moving forward on an energy bill that basically, at best, 
as it relates to FERC and its jurisdiction and responsibility, is 
confusing and muddling. We do nothing about the market manipulation 
issue of Enron in this legislation.
  While I would like to believe the reliability standards will help in 
some ways, I don't know, given the overall aspects of the bill, that 
they are going to be as helpful as we need them to be. Why should we 
have to be told that you have to swallow the whole energy policy that 
is bad for America just to get reliability standards so people in New 
York or Ohio or Michigan can be sure their lights will turn on at 
night? That is a ridiculous policy. This body should have passed 
reliability standards as a stand-alone bill when Slade Gorton proposed 
it, and it should have passed it as soon as we came back after the 
August recess.
  I am amazed again at how many newspapers across the country are 
writing about this bill. We talk about, obviously, some of the Clean 
Air Act and Clean Water Act issues, and I will get to those in a 
minute.
  The Fresno Bee calls this legislation ``political wheezing.''
  They say:

       The valley representatives in Congress have put a 
     particular stake in this fight. The problems of air 
     pollution, especially diesel particulate matter, are worse 
     here than anywhere else, and we must do everything we can to 
     address this.

  What about the Ventura County Star newspaper talking about the 
obviously bad coastal oil and gas language? Every year on the west 
coast there is a battle that goes on. Basically, we have had for 20-
some years now a moratorium on drilling off the coast of Washington, 
Oregon, and California. While that is an Executive order moratorium, we 
always have to worry that some interest or some group is going to try 
to lift that moratorium. It happens every year, and every year in an 
appropriations bill Congress continues to say: We want a moratorium on 
drilling off our coast of Washington, Oregon, and California.
  Why do we have to drill there? We have marine sanctuaries. We have 
terrific problems with tanker traffic and a variety of other issues. We 
have had spills off the coast of Washington that have caused incredible 
damage. Why do we have to worry now about legislation that makes that 
issue more cloudy by saying you could give the Secretary the power to 
expedite and approve a process on this? What did the Ventura County 
Star say?
  They said:

       Instead of trying to continually slip in language that 
     harms the Nation's coast lines, puts thousands of communities 
     at risk of an economic and environmental disaster, Congress 
     should be focused on the public's welfare, the environment, 
     and the rights of States to protect their residents.

  This bill undermines those rights. It undermines States rights, it 
undermines the rights of individuals, and it will leave our shorelines 
less protected.
  What did the Nashville Tennessean say? It said:

       An energy bill without savings has no steam. The President 
     and his allies have built an energy policy on their 
     convenience--

  On their convenience.

       When they are willing to build on conservation, then 
     they'll have an energy policy that will work for all 
     Americans.

  Makes sense, doesn't it? The bottom line is, this bill is what some 
people are saying. It is about Hooters and polluters. It is about 
special interests. It is not about a conservation policy that is good 
for America, and it does very little to get us off our dependence on 
foreign oil. America deserves better.
  If our generation has been smart enough to put a man on the Moon, our 
generation can be smart enough to get off our dependence on foreign 
oil, but we in this body have to do our job. We have to draft an energy 
policy that has a vision, that has a focus, that has the right 
incentives and ask America to step up and help with this process.
  I wish to continue with a few other charts. The Orlando Sentinel 
agrees with what I have just articulated and that is a concern about 
this Energy bill and where the focus is for tax breaks.
  The Orlando Sentinel said:

       Start over: The energy bill before Congress is worse than 
     what exists.

  Why do they say that? They articulate:

       Two-thirds of the tax breaks will go to the oil and natural 
     gas and coal industries, helping to perpetuate this country's 
     dependence on fossil fuels.

  A lot of people hear about these tax breaks and think we are talking 
about new technology, either smart metering, wind energy, or 
something--even clean coal. But the clean coal percentages of the 
dollars spent on tax incentives in this bill are very minor as well. So 
we are spending money on subsidies, but we are spending them in the 
wrong direction.
  What does America say when you ask them about this? What do they say 
when you say: Gee, here's the choice. The question to them is, Do you 
support giving subsidies to oil and natural gas companies and giving 
tax incentives. Basically, when you read a description of this, the 
majority of voters in this country, 55 percent of them, think Congress 
would be better off if we didn't pass this legislation. A majority of 
Americans are already saying they are not interested in this 
legislation.
  This bill is about as bad as it gets. Obviously, I am encouraging my 
colleagues to vote no. As the Atlanta Journal-Constitution said:

       Put backroom energy bill out of country's misery.

  It goes on to urge, when Members of Congress have the chance, 
``Members of Congress who remain committed to a more rational energy 
policy . . . shouldn't hesitate to reject it.
  I have just read for my colleagues, not my thoughts, but the thoughts 
of newspapers around the country. Why did I do that? I am sure my 
colleagues can read. I know they have busy schedules today. I know they 
have these editorials on their desks. I spent time to do that because I 
want them to know that America is watching, and America expects us to 
stand up and do the right thing. This bill that we have had very

[[Page 29632]]

little time to really understand, and basically on this side of the 
aisle have been shut out of the process as it relates to the conference 
report, are trying to respond in very short order to say that this bill 
is a mistake. I want my colleagues to know that the rest of America is 
watching.
  Some of these issues my colleagues have gone over before, but I want 
to articulate a few of my objections to this legislation because I 
think it is important for America to understand the various aspects of 
this legislation.
  First, there are a variety of environmental laws that are basically 
undermined by this legislation: the Clean Water Act, the Clean Air Act, 
the Safe Drinking Water Act, the Outer Continental Shelf public lands 
issues. I ask myself: Why is it that we have to undermine current 
environmental law to have a national energy policy? I have sat on the 
Energy Committee in various hearings about public lands, about energy 
companies, about getting more supply. I have not heard an industry show 
up and testify that they have to do something about the Clean Water 
Act, but this legislation does undermine the Clean Water Act. It 
exempts all construction activities at oil and gas drilling sites from 
the coverage of runoff requirements under the Clean Water Act.
  Is that what America wants? Is America so desperate for new oil and 
gas drilling sites that they say the runoff at those sites are 
something from which those particular industries should get an 
exemption? Everybody else who is a developer in America has to deal 
with runoff. It is not an easy problem.
  We set a priority. We said we wanted clean water in America and so we 
set standards. So why would we let new oil and gas construction out of 
that?
  We, obviously, care about clean air. Why do we have to have an energy 
policy that basically changes clean air attainment levels that we have 
already set in policy just to get new energy construction? Is that what 
the Congress thinks the message ought to be? Obviously, this 
legislation is a rewrite of existing law and it postpones ozone 
attainment standards across the country. This is a matter that was 
never considered in the House and Senate bill and that has now been 
inserted into the conference report. That is what one gets out of a 
secret process. They get bad legislation as it relates to some of our 
strongest environmental laws.
  Now, why does a national energy policy have to step on safe drinking 
water? Are we in such desperate straits to get energy supply that we 
are willing to say there can be an exemption from safe drinking water? 
The provisions in this act basically remove an oil and gas extraction 
technique from regulation of the Safe Drinking Water Act.
  Hydraulic fractioning is a process by which water, sand, and toxic 
chemicals are injected into rock so the oil and natural gas that they 
contain can be extracted. So if we do that in some large body of water 
within my State of Washington, somehow that company that is involved in 
that technique does not have to meet the regulations under the Safe 
Drinking Water Act?
  Somebody who is going to explore for that kind of oil and gas, is it 
so important for us to have that that somehow we are going to say they 
do not have to meet safe drinking water standards? I do not understand 
that.
  I already articulated a little bit our concerns about public lands. 
Since when does an energy policy for America, that ought to be focused 
on a hydrogen fuel economy, about energy efficiency, about fuel 
efficiency, a whole variety of things, have to have an assault on 
public lands?
  When drilling on those public lands, one has to pay a royalty. Oh, 
but under this bill now less is paid because we are forgiving some of 
those royalties. Why? Because we want to incentivize more oil and gas 
drilling on public land.
  Why? If we look at the research that shows where the availability of 
oil and gas is, it basically shows on most public lands it is 
uneconomical; it is hard to reach. One cannot get that far on the 
access to public lands to make it even efficient. So why now further 
incentivize it by saying we are going to make them pay less in 
royalties?
  The other thing is it creates this new entity--I do not know what one 
would want to call it. I do not know if it is the Cheney committee. I 
do not know what it is, but somewhere in the White House this 
legislation says now there will be an organization that plays a policy 
role on expediting oil and gas drilling and making sure that if it is 
about waiving access to public lands, this group will help get the job 
done. I do not understand why we have to go through that process of 
dealing with our public lands to make energy policy work in America.
  I think there are many other things we should be doing. Let's talk 
about a few other things, because I know that I have colleagues who 
want to chime in on this, but I have to mention a few other things that 
I was shocked to find in this legislation.
  As a Member who spent many hours on the electricity title, I do not 
understand why this bill has to have an exemption for Texas. Why does 
the State of Texas get out of compliance with the electricity title as 
it relates to electricity market rules, market transparency rules that 
are so important to making markets work, basically protecting the 
consumer? Texas gets protected from the cost shifting that happens in 
transmission construction, but the rest of us in the country do not get 
to be protected.
  Now, I wanted to bring this issue up when we were debating this bill 
in July but we decided, because there was so much turmoil, to take this 
out and to basically go back to the Senate Democratic bill passed from 
the previous year just to try to get something going. As I said 
earlier, now we know what the end result was: A bill in secret in 
conference that has all sorts of things in it, including this exemption 
for Texas.
  In the electricity title, after what we have seen in California with 
deregulation, as we have seen with various market manipulation 
activities, we want better rules. We want transparency. We want things 
to work and to have individual utilities held accountable, but we are 
going to exempt Texas. Some of the people have said, well, Texas is not 
tied to the rest of the country so for some reason Texas should be 
exempt from this.
  Here is the facility right here. This facility does interstate and 
intrastate commerce and is connected, and if this electricity title is 
good enough for Washington, good enough for New York, and good enough 
for Ohio, it ought to be good enough for Texas, too. They should not 
have an exemption in this bill.
  What about the sweetheart deals in this legislation? I could go on 
actually forever about the sweetheart deals in this legislation. My 
favorites are the $1.1 billion for a new nuclear facility in Idaho. Not 
that this Senator has an out and out opposition to nuclear facilities. 
We have some in Washington State. I spend a good deal of my time 
talking about Hanford cleanup and the billions of dollars taxpayers 
have spent on trying to clean up nuclear waste. But why are we going to 
spend $1.1 billion for a new nuclear facility in Idaho to see if 
nuclear power can produce hydrogen? There are thousands of ways to 
produce hydrogen. You do not have to have a new nuclear facility to do 
it.
  My other favorite little part of the sweetheart deal is basically a 
process in the bill in which DOE can help pay for and finance the 
transmission hookups that might end up being used for a coal company in 
Texas.
  My colleagues might say, well, geez, if someone has new power and 
they want to put it on the transmission grid in my State they get in 
line. If they have capacity and they want to be added to the grid, they 
come to the Bonneville Power Administration and work with them about 
how they are going to add capacity to the grid, but they do not have 
DOE coming in and basically saying they will help them get connected 
and get capacity to the grid.
  That is just part of the aspects of this legislation, the many 
sweetheart deals. I am sure many of my colleagues are going to go 
through this and talk in more detail about some of this legislation, 
but this energy policy, more

[[Page 29633]]

than anything else, is a missed opportunity. Instead of incentivizing 
the right programs, we are spending $23.5 billion in tax incentives 
where only a small percentage of them go to the renewables, 
conservation, and energy efficiency that America thought it was 
investing in when it heard about this energy policy.
  The whole provision that we talked about dealing with hydrogen fuel, 
which was an investment in goals and basically a process for us to get 
to a hydrogen economy, have been thrown out of the legislation. The 
only thing that remains is sort of a small incentive for that.
  What about creating the clean energy economy of the future in which 
we thought we could estimate a creation of 750,000 jobs in America over 
the next 10 years by focusing on these energy efficiencies? Well, if 
they are spending $23.5 billion and only have 32 percent going to that, 
those 750,000 jobs are never going to be created in America.
  I know my colleague from New York wants to speak, and I know I have 
other colleagues who want to speak, so I will try to wrap up, but I 
feel disappointed for the policy opportunity that is being missed. 
America wants to know what this legislation is about. They want to know 
where we are going with energy policy. This policy could be far more 
reaching in response, not just to the crises that we have had in 
Washington, California, and Oregon, and not just to the policies of 
blackouts or the fact that these institutions, the House and the 
Senate, have not passed a reliability standard that would give people 
in New York and other places in the country the kind of security they 
need. We are missing a big opportunity to be leaders in energy policy 
in the world. You might hear some people say we are going to get this 
national grid. It is not about a national grid. I guarantee we are not 
going to build a national grid and ship power from Seattle to Miami 
Beach, and anybody who tells you that they are going to does not 
understand energy policy. A national grid is not about shipping power 
all the way across the country. We are entering an era of distributed 
power. That means you produce power closer to the source and to the 
individuals who want to have it.
  What do you do now that you have hydrogen fuel cells? You have new 
forms of energy that can connect to the grid. What do you do to make 
that a reality? First of all, you obviously provide the right 
transparency and stabilization of the system and give oversight to an 
entity that hopefully does its job. Obviously FERC, in a lot of 
instances, has failed to do its job. But you create these decentralized 
energy plans in which individuals can connect their power source and 
their generation to the grid and have it delivered in that region. That 
is the most economical delivery of energy. That is the future.
  This bill does not invest in that. It does not invest in net 
metering, which would basically have a framework for people to 
understand how to get their power source onto the grid. It doesn't 
invest in an interconnecting standard by which everybody could start 
understanding how they could connect to the grid. It doesn't even set 
standards for some of these new technologies that everybody wants to be 
part of developing. There should not only be a national standard for 
the United States on how to build a hydrogen economy, it ought to be an 
international standard so the United States can be a leader in job 
creation in that new economy. But that is not in this bill.
  As bad as this legislation is, and it is bad, my colleagues should 
make no mistake; this bill should not pass. But the tragedy is that 
America is not grabbing its future opportunity to both get off of its 
dependence on foreign oil and also to invest in an energy economy that 
will produce jobs and have America lead the way in new energy 
technology. Let's not embarrass America by passing this bad legislation 
that undermines environmental laws, that puts the tax incentives in the 
wrong way, runs the deficit up without giving us a return on jobs, that 
basically does little to address the market manipulation and blackout 
situations that happened in the past and, as I am sure my colleague 
from New York will talk about, really sticks some Americans with the 
deep pocket expenses of cleaning up waste.
  Let's not pass this legislation. Let's listen to America. Let's 
listen to what those newspapers are saying because they are the first 
shot at this legislation and they understand. Let's go back to work, 
even if it means next year. Let's go back to work and let's put an 
Energy bill together that America can be proud of. Let's make it a goal 
of our generation that we are going to get off our foreign dependence, 
but we are going to do it the right way--the Members of this body will 
work together to get that legislation done.
  I yield the floor to my colleague.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from New York.
  Mr. SCHUMER. I only need 5 minutes of time, and I can yield back the 
rest of my time to my colleague from Washington to finish. I know she 
had an hour.
  How much time remains?
  The PRESIDING OFFICER. There remains 21 minutes.
  Mr. SCHUMER. I ask unanimous consent I be given 5 minutes, and the 
remainder of that 21 minutes goes back to my colleague from Washington 
State.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. President, I thank my colleague from Washington for 
her stellar leadership on this issue. She has been just a beacon on 
this bill, on which it is appropriate to have a beacon. She is the 
beacon from Washington State, and I thank her for the good work she has 
done.
  I thank my colleague from New Mexico. We are good friends. I regret I 
feel so strongly about this legislation in opposition to him. But I 
believe this is the worst legislation that I have seen in my over 20 
years in the Congress. It is bad for what is in it, and it is bad for 
what is not in it. I will speak at much greater length on those issues 
when I have more time, but I would just like to mention a few things.
  It is laden with special interest provisions. There is no question 
about it. So many people got little things for their States. Some of 
them are good, some of them are not good. When you add them up they are 
extremely expensive. It is hard to believe in an administration that is 
watching costs so much that a bill that was originally $8 billion 
should balloon to $23 billion. This includes $1 billion to build a 
nuclear reactor in Idaho. I understand we need projects in people's 
States to sort of grease the wheels of legislation, but at $1 billion a 
shot?
  There is so much bad in this bill. To me, the two worst provisions 
are the MTBE and the ethanol provision: MTBE, taking people's 
livelihood they put into their home; their homes are ruined. Their only 
hope is for the oil companies, which knew how bad MTBEs were and didn't 
tell anybody, to help pay. We pulled the rug out from under tens of 
thousands of present homeowners, and millions of future homeowners who 
cannot even live in their homes anymore. They can't take a shower. They 
can't drink the water. And we are saying: Tough luck. We are giving the 
MTBE industry $2 billion to close. We don't give a small store owner 
any money when they close. In addition, we say you are absolved from 
your mistakes and the taxpayers, the homeowners, pick up the bill.
  The ethanol provision, I have such disagreement with so many on my 
side of the aisle I am not going to get into it. Suffice it to say, if 
you want to subsidize corn, good. Don't make the drivers of New York 
State or Washington State or some of the other States on the coasts pay 
for it. I believe this can raise our gasoline prices 4 cents to 10 
cents a gallon in my State, and in many others. That is not how we do 
things around here. It is not how we should do things around here.
  How can we be asked to support a bill that does that?
  But the worst thing about this bill is what my colleague from 
Washington mentioned, which is the missed opportunities. If there was 
ever a time, if

[[Page 29634]]

there was ever a perfect storm to create a real energy policy in this 
country, one that we don't have, it is now. We have 9/11, and everyone 
realizes how we have to become independent of Middle Eastern oil. We 
had Enron, and everyone realizes the problems in trafficking in 
electricity and in the grid and that things have to be changed. We had 
the blackouts this summer, and everyone realizes the grid that we have 
can't be piecemeal anymore.
  These are perfect opportunities to get our hands around the policy 
that will serve us well for the future. Nothing is in there. It is not 
simply that there are special interests and a policy, but there are 
special interest provisions and they take the place of any real energy 
policy. That is what so bothers me about this bill.
  China is adopting more stringent CAFE standards than we are. Should 
that make us wonder what we are doing?
  I read history. Great empires, great countries--and I love this 
country. It has been the most wonderful thing for my family that has 
ever happened--begin to lose it when they fail to come to grips with 
reality. We have a reality here. We have three realities. We are just 
fiddling while Rome burns. We are dancing on our merry way and giving 
out a little bit of pork here and a little bit there and a little bit 
here and not dealing with the fundamental energy problems we face.
  I will have more to say later. I thank the Chair. I thank my 
colleague from Washington for her courtesy. I yield the remainder back 
to her.
  Ms. CANTWELL. Mr. President, does the Senator from Illinois wish to 
speak? I yield to the Senator from Illinois 5 minutes.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank the Senator from Washington.
  Mr. DOMENICI. Mr. President, I have been waiting to speak. I didn't 
understand what happened.
  Mr. DURBIN. I believe the Senator from Washington has time remaining 
and yielded 5 minutes to me.
  Mr. DOMENICI. After that, are we finished?
  Ms. CANTWELL. I will probably have about 10 minutes left and we will 
wrap up.
  Mr. DURBIN. Mr. President, I thank the Senator from Washington for 
yielding.
  Consider this: You buy a home in a neighborhood and you start hearing 
about people around your neighborhood who are getting sick. It turns 
out it is not just a common, ordinary sickness. It is serious; it is 
cancer. Then you are puzzled and start wondering: Is there something in 
the water. Isn't that the first thing you ask? Then you find out there 
is something in the water. It turns out it is something called MTBE. 
You never heard of it before. They explain to you, it is in the 
gasoline in your car. Incidentally, at that service station on the 
corner--the one where they dug up the tank--that tank was leaking. The 
leaking gasoline from that tank contained MTBE, and it got down so low 
that it got into the water supply of the village in which you live. The 
water you have been drinking and giving to your kids contains MTBE.
  Studies have shown that MTBE can be cancer causing. Think about that. 
Totally innocent and unsuspecting, you have now learned that a public 
health hazard that threatens your family, the value of your home, and 
your community is linked to something you had never seen before and 
never heard about.
  So what do you do? You are concerned about the health of your family. 
But you turn around and say: Whoever is responsible for that additive 
that threatens my family and my home and my community needs to be held 
accountable.
  That is what America is all about. Nobody gets off the hook. So 
people go to court. They say to the oil company: Did you know that MTBE 
in your gasoline could threaten public health? Well, it turns out they 
did. They knew for a long time.
  They also knew that if that MTBE got in the environment, that didn't 
disappear, it stuck around forever. A tiny amount of it could be 
dangerous to thousands, if not millions, of people. They knew it. They 
continued to make it. They continued to sell it. They knew all along 
that people would get sick and some would die as a result of that 
product.
  Should they be held accountable or should they be let off the hook?
  Turn to our Energy bill and look at section 1502 which answered that 
question for America. The makers of MTBE are given safe harbor. It 
sounds great, doesn't it. Here is what it means. You cannot sue to hold 
that oil company or maker of MTBE accountable for that deadly additive 
that is poisoning people and causing cancer if it is a product 
liability lawsuit--can't do it. But we have decided that in order to 
strike a political bargain here, we are going to let the oil companies 
off the hook.
  What does the family do? What are they supposed to do about water 
they can't drink, where people are sick in their neighborhood and where 
houses are losing value in a community that is scared to death? We tell 
them to read the Energy bill we are producing here. That is the best we 
can do for you. We can't answer your problems. We can tell you that we 
passed a good bill and the oil companies love it.
  The Senator from New Mexico came to the floor earlier and very 
candidly--I salute him for this--said you had better understand the 
deal. If you want to help ethanol, you had better let the MTBE 
polluters off the hook. Otherwise, there is no deal.
  We have spent 20 years producing ethanol. My State produces more than 
any State in the Union. I have proudly stood behind this product 
because I believe it is good, it is healthy for the environment, and it 
reduces our dependence on foreign oil. But I have said to my friends 
back home who support ethanol and I will say it on the floor: If the 
bargain I have to strike for ethanol is to turn my back on families who 
are dying from disease because of MTBE, the deal is off. The deal is 
off. That is unjust. It is immoral. It is wrong. If that is what it 
takes to promote ethanol in America, I will not be part of it; 
absolutely not. Count me out.
  That is a basic injustice, to say those oil companies would not be 
held accountable for their wrongdoing in order to promote the ethanol 
industry. It is a deal with the Devil. It is a Faustian bargain, and I 
don't want to be a part of it, and no Member of the Senate should 
either.
  If this is as good as it gets on the floor of the Senate, shame on 
all of us. This bill should be stopped in its tracks. We ought to send 
the people back to the committee and say start over and get the work 
done. America's energy future depends on thoughtful, visionary 
policies. It doesn't include this kind of a deal with oil companies to 
let them off the hook.
  How in the world can you turn your back on these families who, 
through no fault of their own, are facing these terrible health 
problems? These families can't go to court now to hold the oil 
companies that knew better accountable. That is what this bill does.
  The Senator from New Mexico has been very candid. I admire his 
candor. But his candor tells the story. We can do a lot better.
  I thank the Senator from Washington for her leadership on electricity 
and protecting our public lands, and other areas.
  I yield the floor.
  Ms. CANTWELL. Mr. President, I will not take all 10 minutes. I know 
we have other colleagues in the Chamber. I wish to make one final 
point.
  I thank the Senator from Illinois for continuing his talk about this 
issue as it impacts his State and national policy which we are all 
trying to fight. But many of my colleagues know that on one provision 
in the Energy bill relating to Enron, we really tried to make a point. 
In fact, 57 Members of this body passed an amendment, albeit on the 
Agriculture appropriations bill because we couldn't get it on the 
Energy bill when we recessed in August, which basically said we think 
market manipulation has taken place and something needs to be done 
about it.
  In fact, at that time I argued that in this legislation we ought to 
have a prohibition on the types of market manipulation that actually 
happened with

[[Page 29635]]

Enron and include that in the Energy bill. My colleagues on the other 
side of the aisle drafted language that basically prohibited one of the 
Enron abuses but not all of the Enron abuses. But in a separate piece 
of legislation, we got 57 of my colleagues--a majority of Senators--to 
say, Let's say that market manipulation on contracts was wrong.
  That language still exists in a conference committee on Agriculture 
appropriations. That language is sitting there hoping we will get it 
out of conference, even though the industry is lobbying against it. 
Yes, that is right. The remnants of Enron are lobbying against it.
  What do we do? In this conference report, we basically change current 
Federal law and say those contracts shouldn't stand. We go one step 
further in the Federal Power Act and say manipulated contracts are not 
in the public's interest.
  This legislation should be defeated alone on the fact that it 
continues the Enron price gouging. We as a body failed to stand up to 
that kind of activity. We can say all we want about the reforms we have 
with the SEC, all the reforms we had on auditing, but in our energy 
policy we have done nothing to be the policemen on the street. These 
energy companies, under this legislation, are still going to run free 
to continue to manipulate market. Not only that, we are putting in this 
bill that it is OK to do so.
  I urge my colleagues: Please, in the next 24 hours review this 
legislation carefully. It has so many issues that are the wrong 
direction for our country.
  I urge my colleagues to stand up to the special interests that have 
promulgated this bill and say no to the conference report.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, Senator McCain is on the list we made as 
the next speaker.
  I ask if I could speak for about 2 minutes before Senator McCain. He 
has indicated yes.
  Mr. REID. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. Mr. President, fellow Senators, my good friend from the 
State of Washington went through a series of newspapers and read what 
newspapers had to say. I will not do that. But I suggest that she and 
other Senators, instead of reading what the newspapers have to say, 
read what their constituents have to say.
  I want to cite some constituents of hers and of everyone else in the 
Senate and what they have had to say. The Solar Industry of America 
applauds this. They are the largest group of American businessmen 
involved in development of solar energy. They sent a letter in full 
support, along with the National Hydropower, American Coalition for 
Ethanol, Renewable Fuels, National Biodiesel Board, American Soybean 
Board, North American Electric Reliability Council. While we are on 
that one, let me suggest that the board that looked at the blackout we 
had in the Northeast and just issued a report. I will talk about it 
later.
  Most interestingly, the biggest thing they found that caused that 
blackout was the violation of reliability standards. Those standards 
are in this legislation. That will not happen again. The study group 
says we have taken care of them in this legislation. Do not forget, if 
we do not pass this, they are out the window. Who knows when we will 
get back to them.
  The National Rural Electric Coops of America, a letter of full 
support; the Large Public Power Council; the APPA, the American Public 
Power Association; Coalition for Renewable Fuel Standards--totally in 
support. I have a multi-industry letter in support of this bill from 
Interstate Natural Gas, National Association of Manufacturers, Ocean 
Industries, National Corn Growers, North American Manufacturers 
Association, Edison Electric Institute, and Domestic Petroleum Council.
  Some day before the debate is over I will finish reading the names of 
groups supporting the bill. The point I make, it is one thing for the 
editors of our newspapers to write about a bill, it is another for the 
thousands and thousands of businessmen, large and small, who are going 
to benefit from this, to be writing what they think about the bill. 
Remember, most of the things they are talking about are not in the law 
now. Throw away this bill and we have thrown away the things they say 
are necessary for their continued operation in the United States.
  The biggest and most important is the wind industry in America, large 
and small, that produces wind energy for the United States. It is a 
growing new industry. Listen clearly: It is growing because it has a 
subsidy. For those who do not like subsidies, we can cut it off and 
there will be no more wind energy produced for who knows how long, 
maybe 10 years. Maybe that is what some would like. Without this bill, 
the current production credit for wind energy is gone. This bill starts 
it and continues it. It will be gone. It will not be there.
  We can talk a lot about special interests, about where the money is 
going, where the $2.6 billion a year is going over the next 10 years. 
We have an American energy use of $450 billion a year. We are trying to 
move it around the edges. It does not seem to this Senator to be an 
exorbitant amount of money or an exorbitant effort to produce a variety 
of energies, diversity of source, and diversity of base so we are not 
totally dependent again on a source such as natural gas, soon dependent 
on it from overseas.
  Overall, there are problems with the bill, yes; problems we had to 
concede, yes. But overall, it is a bill that will work.
  I will answer MTBE concerns at least once a day, but I don't think 
two or three times a day. I have done it once. I will ask other 
Senators who are familiar with the subject, including the Senator in 
the chair, to answer these concerns. Suffice it to say, some of the 
descriptions about MTBE in this bill are wrong.
  I have given my best shot at it, but I will close with a very simple 
example. If you use Folgers Coffee and produce hot water that is too 
hot, you sell it and burn somebody with the coffee, I doubt very much 
if you will sue Folgers Coffee. That is the issue of MTBE. It is a 
legitimate, valid product, certified by the United States of America to 
be used. For those who use it right, we have said they will not be 
liable. For those who use it wrong, and there are many who have, they 
will remain liable. In 15 years there will no longer be any more of 
that.
  I say to the corn growers, we have the same issue looming over us on 
alcohol and ethanol. We have said there, too, the product is not 
liable; using it improperly does create liability.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I think this legislation is very timely 
because if we pass it, Thanksgiving will come early for the Washington 
special interests. The American public will be presented with an 
enormous turkey stuffed with their tax dollars. Tell your constituents 
to save their holiday Turkey carcasses because this farsighted bill 
even provides subsidies for carcasses used as biomass to generate 
energy.
  We cannot discuss the bill without looking at the fiscal condition of 
the United States of America today. According to recent reports, 
Government spending, thanks to the Congress, grew at 12 percent. We are 
looking at a half a trillion budget deficit next year. We have gone 
from a $5 trillion surplus over the last few years to a multitrillion-
dollar deficit. So what do we do? We are passing a bill that will 
increase the deficit by at least somewhere around $24 billion.
  By the way, I am really sorry we have not gotten the bill. I 
understand it is 1,200 to 1,600 pages long. Of course, we are 
considering it without even having a chance to observe it, but it is 
printed in the Record. I imagine the Record is pretty big.
  Adding to this feast, this bill also contains the other white meat. 
Of course, I am referring to pork. I fear

[[Page 29636]]

for the passage of a 1,200-page, pork-laden bill. The outbreak of 
Washington trichinosis will be so severe we will be forced to have a 
field office for the Centers for Disease Control right next to the 
Capitol. I am not saying this will not generate some energy, not at 
all. It will fill the coffers of oil and gas corporations, propel 
corporate interests, and boost the deficit into the stratosphere.
  Indeed, I have stated on several occasions the name of this bill 
should be the ``Leave No Lobbyist Behind Act of 2003.'' Given the 
magnitude of the largess offered in this bill, I hardly know where to 
begin. I feel somewhat like a mosquito in a nudist colony. I hardly 
know where to begin.
  At a time when it is crucial for our national security and economic 
welfare that we pursue a new course toward energy independence and 
global environmental protection, the provisions in this bill take 
exactly the wrong direction: increasing our dependence on conventional 
fuels; increasing environmental degradation; increasing our energy use; 
increasing our national debt; and diminishing protection for consumers 
and public health.
  Let's start at the top of the corporate subsidy heap. We have the 
biggest increase in corn and cash this Congress has ever seen, doubling 
the national ethanol mandate. A doubling. Gasohol production is the 
worst subsidy-laden energy use ever perpetrated on the American public, 
and it starts with sweet corn. Ten percent of the corn grown in this 
country is used to produce ethanol. Corn producers, like producers of 
other major crops, receive farm income and price supports.
  Let me remind my colleagues in the 107th Congress this body passed a 
farm bill which appropriated more than $26 billion in direct assistance 
to corn growers over 6 years. That is an average of $4.3 billion in 
direct subsidies each year just to corn growers. But obviously, they 
have not gotten enough. But add it up, and we are over $3 per gallon of 
ethanol.
  The cost to consumers does not stop with the production of energy. 
Environmental costs of subsidized corn results in higher prices for 
meat, milk, and eggs because about 70 percent of corn grain is fed to 
livestock. A GAO report concluded, ``ethanol tax incentives have not 
significantly enhanced United States energy security since it reduced 
United States gasoline consumption by less than 1 percent.'' So if we 
double it, maybe we will have less than 2 percent. It takes more energy 
to make ethanol from grain than the combustion ethanol produces. 
Seventy percent more energy is required to produce ethanol than the 
energy actually in ethanol. Every time you make 1 gallon of ethanol 
there is a net energy loss.
  The National Academy of Sciences concluded in 2000 that ``the use of 
commonly available oxygenates in Reformulated Gasoline (RFG) has little 
impact on improving ozone air quality and has some disadvantages.'' 
They found that oxygenates can lead to higher nitrous oxide emissions, 
``which are more important in determining--ozone levels in some 
areas.''
  Reformulated gasoline, without oxygenates like ethanol, are widely 
available and are superior to gasohol. California has started a program 
called the ``Cleaner Burning Gasoline,'' which has better fuel economy 
and overall efficiency than gasohol.
  I believe it was in recognition of this fact that the House and 
Senate both passed Energy bills that would remove the Clean Air Act 
requirement to include an oxygenate in reformulated gasoline. But, the 
overall economic and environmental benefits of no longer requiring an 
oxygenate is wiped out by the $2 billion ethanol mandate doubling 
ethanol production in this bill.
  Another subsidy for ethanol producers is a partial exemption for the 
motor fuels excise tax, which is paid to the Highway Trust Fund. 
Presently, corn-to-gasohol producers take a $.052 per gallon exemption 
from the $.18 per gallon excise tax fuel producers are required to pay 
into the Highway Trust Fund.
  According to a recent General Accounting Office study, between 1979-
2000, this exemption has cost the Highway Trust Fund between $7.5 and 
$11.2 billion.
  While a tax credit in this bill, called the Volumetric Ethanol Excise 
Tax Credit Act of 2003, attempts to change this trend, it merely 
provides the option for gasohol producers to pay the entire $.18 per 
gallon excise tax to the Highway Trust Fund, and claim a $.052 per 
gallon credit on their income tax. The credit would come from general 
treasury funds, and leave the Highway Trust Fund income in place, most 
blenders will continue to take the exemption, which is an immediate 
discount, rather than switching to the credit. This is a useless 
provision which won't actually bolster the Highway Trust Fund, or the 
U.S. Treasury. In fact, with doubled ethanol usage, the Federal 
government stands to lose even more in fuel tax revenue in the upcoming 
years.
  The national ethanol consumption in 2002 was 2.1 billion gallons. 
Multiply that by 52 cents per gallon, and you see how much revenue the 
highway trust fund has lost in excise tax in this past year alone. 
About $1.1 billion. How much more, then, of taxpayer funds, will be 
given back to the ethanol producers, as ethanol production and 
consumption doubles? The Joint Committee on Taxation estimates that the 
ethanol mandate will cost $2 billion over the next 5 years.
  For decades the largest ethanol producer has been Archer Daniels 
Midland, producer of more than one-third of all ethanol in 2002, and 
whose nearest competitor has the capacity to produce one-tenth of ADM's 
capacity.
  The excise tax exemption from ethanol has been estimated to account 
for more than $10 billion in subsidies to ADM--one corporation with $10 
billion in subsidies--from 1980 to the late 1990s. In fact, it has been 
estimated that every dollar in profits earned by Archer Daniels Midland 
costs the taxpayers $30.
  Speaking of highly objectionable fuel additives, I must join my 
colleagues who have spoken against the MTBE liability waiver.
  Mr. President, it is an outrage to see a product liability waiver for 
producers of MTBE retroactive to September 5, 2003. This nullifies the 
lawsuits against MTBE producers that were filed after September 5, such 
as the case last year in the Superior Court in California, where a jury 
found that MTBE was a defective product and resulted in a settlement in 
which MTBE producers agreed to pay more than $50 million to clean up 
MTBE-contaminated water supplies.
  Who is going to pay to clean it up now? This provision to shield MTBE 
producers from product liability could, according to the U.S. 
Conference of Mayors, cost taxpayers--taxpayers, not industry--$29 
billion to clean up contaminated ground and surface water.
  In 1998, the U.S. Geological Survey conducted an MTBE survey of water 
wells in industrial areas, commercial areas, residential areas, and 
mixed urban areas nationwide, and also estimated that cleaning up the 
MTBE-contaminated sites in soil and water nationwide is approximately 
$29 billion.
  Just when you believe this bill cannot get any worse, it does.
  Mr. President, $800 million--I usually go through these bills, and we 
find pork in the hundreds of millions, sometimes billions. This exceeds 
all of my past experiences. Mr. President, $800 million for a loan 
guarantee to subsidize the creation of a brand new polluting, coal 
gasification plant in an economically depressed area of Minnesota. This 
new company, Excelsior Energy, was formed by lobbyists and executives 
with ties to a company that filed for bankruptcy after amassing a $9.2 
billion debt and being fined $25 million for market manipulation.
  This brand new giveaway, which was in neither the House nor Senate-
passed Energy bills, is estimated to cost between $2 billion to $3 
billion. While this technology turns coal into a synthetic gas that can 
be combusted more efficiently, coal plants continue to be a leading 
source of global warming and should not be subsidized with scarce 
taxpayer dollars. Further, this $800 million loan guarantee does not 
require Excelsior Energy to meet any concrete job creation goals or 
standards. In a

[[Page 29637]]

time of $400 billion annual budget deficits, why should U.S. taxpayers 
cover the cost of a new plant that will not even guarantee jobs? 
Minnesota already has a powerplant owned by Exel Energy. Now they need 
Excelsior Energy, a new plant burning more carbon?
  Mr. President, $95 million for a subsidy for a process known as 
``thermal depolymerization.'' This is a good one. Now you can get a tax 
credit if you compress turkey carcasses into energy. ConAgra Foods and 
Changing World Technologies, the two companies that would benefit from 
this giveaway, have built the only commercial ``thermal technology'' 
plant, which is located in Carthage, MO. The plant would convert 
poultry waste products from ConAgra's Butterball Turkey plant into 
energy.
  After including their cash cows and all the polluter pork they could 
find, energy conferees have now moved on to tax breaks for turkey. I 
encourage my colleagues to save their leftover turkey this year after 
Thanksgiving dinner. Instead of making sandwiches the next day, how 
about turning in your poultry for a tax credit?
  An amendment was added Monday night--Monday night--to authorize the 
lignite coal-fired electrical generating plant, which would employ 
clean coal technology to provide energy for a rapidly growing region. 
This amendment was not included in either the House or Senate passed 
energy bills.
  Another provision that we understand was inserted at the eleventh 
hour, and was never reviewed by either the House or the Senate, would 
suspend important environmental reviews to facilitate the construction 
of uranium processing facilities in New Mexico by the consortium, 
Louisiana Energy Services. A Time magazine article that appeared 
earlier this year raised serious questions about one of the consortium 
members, which it characterized as ``a European consortium linked to 
leaks of enrichment technology to, yes, Iran, Iraq, and North Korea--as 
well as to Pakistan.'' The article in Time magazine quotes a high-level 
U.S. nuclear security administrator as saying ``to have this company 
operating in the U.S. after it was the source of sensitive technology 
reaching foreign powers does raise serious concerns.''
  I want to add, I do not know if that is true or not. I do not know if 
the Time magazine story is true or not. We do not know because we never 
had any scrutiny of the amendment. But I think it is a serious issue. I 
do not know.
  In addition to possible security concerns suggested by the time 
article, this extraordinary rider raises critical environmental 
concerns.
  Even though I understand that both Tennessee and Louisiana have 
rejected this facility, the Energy bill rider shortcuts the NEPA 
process and meaningful judicial review of the Environmental Impact 
Statement, for the construction of this facility in New Mexico. To add 
insult to injury, the provision further requires the Government to 
acquire the waste and dispose of it for a price that is possibly 
significantly less than the cost.
  I ask unanimous consent the Time magazine article be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [From Time Magazine, Jan. 21, 2003]

                  Nukes: To Pyongyang From Nashville?


Backers of a proposed uranium enrichment plant have a bad history with 
                            keeping secrets

                           (By Adam Zagorin)

       Is President Bush's ``axis of evil'' campaign about to be 
     undermined in his own backyard? A proposed uranium enrichment 
     facility planned in Hartsville, Tenn. (pop. 2,395) raises 
     just that question. One of the plant's principle backers is 
     URENCO, a European consortium linked to leaks of enrichment 
     technology to, yes, Iran, Iraq, and North Korea--as well as 
     to Pakistan.
       Sources tell TIME that senior Bush appointees, upset by the 
     ongoing crisis with North Korea, have held detailed 
     discussions in recent days on the need to stop leaks of 
     nuclear technology to rogue states. ``To have this company 
     operate in the U.S. after it was the source of sensitive 
     technology reaching foreign powers does raise serious 
     concerns,'' a high-level U.S. nuclear security administrator 
     told TIME, the first public comment by a Federal official on 
     the proposed plant's ownership. ``The national security 
     community or the new Homeland Security Department will need 
     to look at this.''
       Concerns about URENCO first emerged more than 10 years ago 
     when thousands of centrifuge parts, based on URENCO designs, 
     were discovered by U.N. inspectors in Iraq after the Gulf 
     War. A one-time URENCO scientist, known as the ``father'' of 
     Pakistan's nuclear bomb, is said to have taken URENCO 
     centrifuge blueprints and information on the company's 
     suppliers to his homeland, later passing similar sensitive 
     material to North Korea and Iran.
       The company that wants to build the new Tennessee 
     enrichment plant is called Louisiana Energy Services. A 
     consortium of U.S. and foreign companies in which URENCO has 
     a major financial role, LES insists that the link between 
     URENCO and nuclear proliferation is ``long ago and far-
     fetched at this point.'' URENCO itself has denied authorizing 
     leaks of technology to rogue states.
       The only previous attempt by LES to build an enrichment 
     plant involved a multi-year effort in the 1990's targeting a 
     small town in Louisiana. Closed Congressional hearings on 
     Iraqi attempts to acquire nuclear weapons were held not long 
     before, and delved into URENCO's record. Subsequently, 
     powerful Michigan Democrat John Dingell raised concerns that 
     the LES plant in Louisiana might violate provisions governing 
     the movement of classified technology from foreign countries 
     under the Federal Atomic Energy Act. That issue was never 
     resolved, but LES gave up attempts to build the Louisiana 
     facility amid controversy over its impact on nearby African-
     American residents.
       With its latest effort in Tennessee, LES seems especially 
     anxious to avoid a reprise of those controversies. In an 
     unusual move, LES has asked for a greenlight from the Nuclear 
     Regulatory Commission without the usual public comment on 
     various environmental, safety and security issues. But groups 
     like the Sierra Club and the National Resources Defense 
     Council contend that this will simply, ``reduce the . . . 
     licensing procedure to a flimsy rubber stamp.'' LES plans to 
     file its 3,000 page license application with the Federal 
     government by January 30, to be followed by a review process 
     that could take at least a year.
       Also controversial are unanswered questions about the 
     disposal of the Tennessee plant's radioactive waste. 
     Officials in Tennessee have reached a tentative agreement 
     with LES to cap the amount of waste and, last week, the 
     company announced that the material would not stay in 
     Tennessee permanently. But it offered no details as to where 
     the waste might be transferred, a process that can be subject 
     to complex federal licensing procedures.
       So far few Tennessee politicians have taken a position on 
     the new enrichment plant. That includes Sen. Bill Frist, the 
     new Senate Majority Leader, who has remained neutral on the 
     proposed plant in his home state. But he plans to follow the 
     debate ``very closely,'' says an aide.

  Mr. McCAIN. There are also four proposals known as green bonds that 
will cost taxpayers $227 million to finance approximately $2 billion in 
private bonds. One of my favorite green bond proposals is a $150 
million riverfront area in Shreveport, LA. This riverwalk has about 50 
stores, a movie theater, and a bowling alley. One of the new tenants in 
this Louisiana riverwalk is a Hooters restaurant. Yes, my friends, an 
Energy bill subsidizing Hooters and polluters, probably giving new 
meaning to the phrase ``budget busters.'' Although I am sure there is a 
great deal of energy expended at Hooters, I have never been present. 
Perhaps something has been missing in my life.
  This bill was developed in a secret, exclusive, partisan process, but 
it is no secret anymore. In the last few days, editorials have appeared 
in papers throughout the country. Here are a few choice words from 
various papers.
  One thing that is worthy of note, Mr. President, is that for the 
first time in my memory, the New York Times and the Wall Street Journal 
both editorialize strongly against this bill. It is on the rarest of 
occasions that the Wall Street Journal and the New York Times--the Wall 
Street Journal: ``The Grassley Rain Forest Act,'' which refers to: 
``Special applause goes to Senator Chuck Grassley for grabbing millions 
to build an indoor rain forest and a million-gallon aquarium in lush, 
tropical Iowa. ''
  Of course, the New York Times editorial, titled ``A Shortage of 
Energy,'' describes how the bill is a very serious one. Today China's 
message on energy--where it goes into a report from China--is that the 
Chinese are worried about their increasing reliance on foreign oil. The 
difference is, the Chinese are ready to do something about it,

[[Page 29638]]

where Congress is not. Indeed, loopholes in the Energy bill could make 
American cars less efficient than they are. While the Chinese say their 
main concern is oil dependency, not global warming, more efficient cars 
should help on that, too. And where are our American leaders? 
Feathering nests rather than imposing discipline on the Nation's fuel 
use.
  I will not go through all of the editorials that I have seen, but it 
is overwhelming. Everybody who has looked at this bill realizes that it 
is a terrible mistake. It seems to me that this is the result of a 
broken process, a process that is conducted behind closed doors.
  I still do not have the bill in front of me. None of us do. I guess 
it is printed in the Record. I understand, because it is 1,200 pages 
long, the Record might be long.
  There was very little, if any, consultation with other Members of the 
Senate. My understanding is the Democratic side was cut out of it 
completely. And we are given a few short hours to examine a 1,200-page 
``Energy bill.''
  I want to return to my initial comments. It is serious when we are 
looking at a $\1/2\ trillion debt next year, when we have growth in the 
size of Government of 12 percent. What has happened to the Republican 
Party? What has happened to the balanced budget amendment to the 
Constitution? What has happened to the lockbox where we were going to 
take your Social Security money and put it into an account with your 
name on it? Instead, we have a $20 billion and some energy bill loaded 
with wasteful porkbarrel projects most of us had not either seen or 
heard of until the last few hours.
  I hope we can muster 40 votes--I hope so--because I think we have to 
restore some kind of fiscal sanity, some kind of environmental sanity 
to this Nation. This legislative process needs to be fixed.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I see the manager of the bill. Senator 
Dorgan is going to speak. It is my understanding that Senator Collins 
wishes to speak following Senator Dorgan. Does Senator Domenici wish to 
speak in between?
  Mr. DOMENICI. No, I think I will wait.
  Mr. REID. Does the Senator from Maine have an idea how long she is 
going to speak?
  Ms. COLLINS. I say to the Senator from Nevada, about 12 minutes.
  Mr. REID. Mr. President, I ask unanimous consent that she be given 15 
minutes.
  On our side, the next speaker would be Senator Akaka. As we have done 
during this day, we have gone back and forth on speakers, so after 
Senator Collins, Senator Akaka would be recognized.
  Would you like to be recognized after Senator Collins?
  Mr. DOMENICI. That is what I thought I said.
  Mr. REID. And do you have any idea how long you wish to speak?
  Mr. DOMENICI. Ten minutes.
  Mr. REID. So Senator Domenici for 15 minutes and then Senator Akaka. 
How long would he like?
  Mr. DOMENICI. Could we substitute Senator Inhofe for me and my 10 
minutes and I will come later?
  Mr. INHOFE. Let's say 15. It probably will be 10.
  Mr. REID. Just so we don't get the time out of balance, Senator Akaka 
wants 30 minutes. So Senator Domenici would follow Senator Inhofe. 
Because we are taking a little extra time here, we would have two 
Republican speakers, Inhofe for 15 minutes and Domenici for 15 minutes 
following Senator Akaka.
  Mr. INHOFE. Let me make a request of the assistant minority leader. 
Since Senator Akaka is going to take 30 minutes, would it be possible, 
after the conclusion of the remarks by Senator Dorgan and Senator 
Collins, to have me go so we would have two at this point and then go 
to Senator Akaka for 30 minutes?
  Mr. REID. That would be fine. He would be followed by Senator 
Domenici, and then we would have Senator Jack Reed go after that for 20 
minutes. Senator Akaka for 30 and Senator Reed for 20. I so ask the 
Chair to approve our unanimous consent request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I have had the opportunity to listen to 
some of the presentations today. I especially listened to my colleague 
from Arizona and found it interesting. This is a serious discussion for 
the Congress. I find much with which to agree with virtually all of my 
colleagues.
  My friend from Arizona just described the serious fiscal policy 
problem. He says we are spending more money. He mentioned the Congress. 
It is true that spending is up substantially. The President has 
recommended very large spending increases for the military budget, very 
large spending increases for homeland security, very substantial cuts 
in revenue. We have a fiscal policy that does not add up. There is no 
question about that. It starts with the President's fiscal policy and 
begins and ends as well with the Congress. But we have to have a fiscal 
policy that adds up.
  Our economy is dependent on energy. If we don't put in place an 
energy policy that addresses our concerns about energy and the need for 
this economy to be satisfied with the energy that is required, we won't 
have an economy that produces revenue and jobs. If, God forbid, 
tomorrow night a terrorist interrupted the supply of foreign oil, our 
economy would be flat on its back. Fifty-five percent of that which we 
use, in terms of oil resources, comes from outside our borders. Much of 
it from troubled regions of the world.
  I have said for a long while that we need to do four things in an 
Energy bill. We need to incentivize additional production. The fact is, 
I want to see us move towards a different energy construct and a 
different energy future.
  But we are going to use fossil fuels in our future. We are going to 
use coal, oil, and natural gas. So the question is, how do we 
incentivize additional production of those fossil fuels while at the 
same time protecting our country's environment, and then, importantly, 
how do we conserve? A barrel of oil saved is equal to a barrel of oil 
produced. Conservation is a very important part of an Energy bill. So 
you have production and conservation. Third, you have efficiency. The 
efficiency of all the appliances and the things we use in our daily 
lives is a very important area of conservation.
  And fourth, and very important, the issue of renewable and limitless 
sources and supplies of energy. Those four things need to be in energy 
legislation.
  I will describe what is wrong with this bill, and there is plenty. 
This bill was, in my judgment, constructed behind closed doors in a 
manner that was arrogant. It is not going to happen again. Never again 
are we going to allow conferees to be appointed here in the Senate and 
then have a conference in which Democrats are told they can't 
participate. That is what happened in this conference. That is not 
going to happen again. The next time someone asks consent to appoint 
conferees, we are going to ask the prospective chairman of that 
conference, Is this going to be a conference in which you close the 
doors and do it in secret with no Democrats included? Because, if so, 
you don't get consent. We are sorry. We are not going to proceed. This 
will not happen again because it is arrogant. It should not have 
happened this time. The process was wrong.
  Let me talk about what that process has wrought. Some good things and 
some not so good. My colleagues have raised a series of concerns and 
objections about this bill. I agree with many of them.
  I offered an amendment in the conference committee to deal with MTBE 
and strip the provision out of this bill that provides protection for 
those oil companies that produce MTBE, the fuel additive. That 
amendment was defeated. But I offered that amendment

[[Page 29639]]

because I feel strongly that this protection should not be in this 
bill. I strongly supported the amendment to put the Renewable Portfolio 
Standard in this bill. It ought to be in the bill.
  The failure to include the 10-percent requirement for electric 
utilities to produce electricity, 10 percent of their electricity from 
renewable sources, that requirement needs to be in energy legislation. 
It is not here. That is a serious deficiency. There are others.
  Let me also say that this bill has some elements that are important. 
In the area of production, providing incentives for production in 
certain areas is very important. Let me take coal as an example. Coal 
can cause some very serious consequences for our environment. But we 
are going to continue to use coal. So we need an aggressive provision 
in the legislation dealing with clean coal technology so that we can 
use coal in a manner that is not degrading to our environment. There is 
a very serious attempt in this bill to address clean coal technology.
  This piece of legislation deals perhaps more aggressively than we 
have ever contemplated with respect to renewable and limitless sources 
of energy.
  Wind energy. This extends the production tax credit for 3 years. We 
will see the unleashing, I believe, of substantial new projects to 
build wind farms in which you take energy from the wind and you extend 
America's energy supply. That will happen as a result of this bill.
  Biodiesel, biofuels, a range of areas dealing with renewable sources 
of energy, are incentivized in a significant way in this piece of 
legislation.
  My colleague spoke about ethanol. One of the strongest provisions in 
the bill, in my judgment, is doubling the requirement for ethanol in 
this country. We are banning MTBE, and for good reason. We are going to 
replace it with ethanol and double, to 5 billion gallons, the 
production of ethanol. Don't tell me that isn't good for this country. 
It is good to extend our energy supply by growing energy in the fields, 
and it is renewable. You can do it year after year. It produces new 
markets for family farmers, extends our energy supply, and is good for 
this country's environment.
  Those who call ethanol a boondoggle, in my judgment, don't understand 
it. It is far preferable to extend our energy supply by growing energy 
in our fields, producing the agricultural commodity from which you 
extract the alcohol to make ethanol, have the protein feedstock for 
animals, extend our energy supply, clean our air, and relieve our 
dependence on foreign oil. That is a huge step forward for this 
country. It is not a boondoggle, it is good public policy.
  Now let me talk about conservation just a bit. One of the things I 
have been very concerned about is something called efficiency. This 
deals with all the things we use every day--stoves, refrigerators, 
toasters, air-conditioners--these appliances all use electricity. What 
are the efficiency standards by which we should aspire to conserve 
electricity and energy?
  This bill includes nearly the identical efficiency standards that we 
wrote as Democrats when we controlled the Senate. That title, in this 
bill, is a good one. I support that title. It promotes conservation in 
a strong and positive way.
  I believe my colleagues who talk about deficiencies in this bill with 
respect to the areas dealing with consumer protections are right. I am 
very concerned about that. But with respect to electricity reliability, 
the standards in this bill are good ones. They address the issues, not 
all, but most of the issues that are related to the recent blackouts, 
which caused electricity outages for 50 million people in this country.
  As I mentioned before, there are several things in this bill I don't 
like. As I reviewed this measure last weekend, I asked myself whether 
or not we would advance this country's interest if we passed this 
legislation? I concluded that, yes, we would. But, we leave a lot 
behind. There will be a lot left to do and to correct if we pass this 
legislation, but, nevertheless, I concluded that deciding not to 
embrace the advancements in renewable and limitless supplies of energy 
would be a mistake. Deciding not to embrace those reliability portions 
in the bill would be a mistake because we need them. Deciding not to 
have the clean coal technology that will allow us to continue to use 
coal without degrading our environment--it would be a mistake not to 
embrace that.
  To decide not to embrace the efficiency standards in this bill for 
virtually all of the appliances we use would be a mistake.
  MTBE should not have been included and I tried hard to take it out. 
There are other provisions in this legislation that I don't like and 
they ought to be taken out as well. There are provisions that should be 
in the bill that are not there. The protections for consumers should 
have been stronger. If we are going to repeal PUHCA, then we need 
strong provisions protecting consumers. This falls short, in my 
judgment.
  However, I believe, on balance, this legislation will advance our 
country's interests in energy production, and we need to produce more. 
Additionally, I believe this legislation charts a new course that looks 
at a different kind of energy future, a future I strongly support. That 
future is hydrogen and hydrogen fuel cells. I have been working on this 
initiative for a number of years, believing we cannot continue to run 
gasoline through carburetors. We cannot continue, as we have for a 
century, to just stick liquid gasoline through the carburetors and 
decide that is what our future is going to be. That is our past and we 
should realize if we keep doing that, we lose.
  When we began producing automobiles in this country a century ago, we 
put gasoline through the carburetor. Do you know what we do with a 2003 
car? We put gasoline through the carburetor.
  The power from that gasoline is much less efficient than going to a 
different kind of energy future, using hydrogen and fuel cells, which 
would double the efficiency of getting power to the wheel. Hydrogen is 
everywhere. We can produce it, we can transport it, we can store it, 
and we can move toward a different future that will relieve us of our 
dependence on foreign oil.
  I believe strongly that the $2.15 billion in this bill for the 
hydrogen initiative should have been doubled. I fought like the dickens 
on the floor of the Senate and elsewhere for an increase in this 
funding. It did not happen. The fact is, a $2 billion start is not 
insignificant.
  The President proposed in his State of the Union Address something I 
had already introduced in the Congress as legislation, which is that we 
move toward hydrogen and fuel cells, as a new energy future. The reason 
it is important and the reason I support it is because the fastest 
rising part of our energy consumption is transportation. Why? Because 
we have decided our automobile fleet has, is, and perhaps always will 
be a fleet that has a carburetor through which you run gasoline. That 
doesn't make any sense to me.
  We need to make a decision at this point. Let's pole-vault over some 
of these issues and create a new type of energy future. Some 
environmental organizations said that when the President proposed this 
initiative in his State of the Union he was just making an excuse not 
to deal with CAFE standards, and so forth.
  I don't know what the motives are at the White House. I disagree with 
the President on a lot of things. But I do know this: If we just keep 
thinking that 25 years from now, and 50 years from now, our kids, their 
kids, and their grandkids ought to be running gasoline through 
carburetors, we lose. That is a philosophy of yesterday forever. I 
don't believe it satisfies the interests and the needs of this country.
  You cannot be a world economic power without addressing the issue of 
energy. We use an enormous amount of energy. We need strong 
conservation standards, and, frankly, I looked at this bill skeptically 
last Saturday morning because I worried that the efficiency standards 
would not be there. But they were--almost the same standards we 
produced as a Democratic committee when we controlled the Senate.

[[Page 29640]]

  We need conservation and incentives for new production of fossil 
fuels in a way that protects our environment. We need strong incentives 
for the use of renewables. But as important as those measures are, we 
also need to think differently about the future. That is why the 
hydrogen title in this piece of legislation is a step in the right 
direction.
  My colleague from New Mexico is in the Chamber. He will not like the 
fact that when I started I said this process was an arrogant one. I 
told him during the process, at a time when I was a conferee and was 
locked out of the meetings, on the floor--and I don't care whether he 
likes my saying this or not--``You would not accept that in a million 
years. You would be shouting from the rooftops.''
  Again, because my colleague wasn't in the Chamber, this process was 
awful. This process will not happen again because we will not allow 
conferees to be appointed--we simply won't allow that--until the 
prospective chairpersons from the House and Senate agree to have real 
conferences, where both parties are allowed to have substantive 
discussions on the pending legislation.
  Having said all that, and being upset about the way this conference 
process worked, my main interest today is what is in this legislation 
for the country. Does it advance this country's interests or does it 
retard them? Is this a huge giveaway that does nothing to address the 
country's energy interests? Is it just laden with pork? Is it 
worthless? Should we start over?
  As I look at this bill in the four areas I talked about a year ago--
production--production that is sensitive to the environment; 
conservation--conservation that is real; efficiency--efficiency that 
really does address those products that we use every day in our lives 
and the standards by which we improve them and make them more 
efficient; and finally, limitless and renewable sources of energy--in 
every one of those four categories, I think this legislation has 
provisions that commend it for the future of this country.
  I can think of probably a dozen areas that I want to strip out of 
this bill, and I can think of a dozen provisions I want to put in this 
bill. I can't do that because this is a conference report, and also 
because I had limited opportunity to do it the other evening when we 
had a bifurcated, abbreviated conference.
  Having said all that, I don't think in this Chamber you ever give up. 
The Renewable Portfolio Standard, that is coming. It was kept out of 
this legislation in conference because some people had the clout to do 
that, but it is going to happen. As sure as I stand at this desk in the 
Senate, I will demand and enough of my colleagues will demand, a 
renewable portfolio standard by which we say to the electric utilities 
in this country that 10 percent of what you produce must come from 
renewable energy. As sure as I am standing here, it is going to happen 
because we will make it happen. Not in this bill because it is a 
conference report and we cannot amend it.
  The question is not what is left out or what is in. The question is, 
Does this product in the aggregate promote this Nation's energy 
interest as we move forward? Does it advance us or retard us in terms 
of our desire to do something about energy? Although it is a tough 
choice, I conclude the right choice is to adopt this conference report.
  I regret that I disagree with some of my colleagues. I am usually on 
the floor fighting for the same interests for which they fight for. I 
don't come to the floor to challenge their assertion that the MTBE 
provisions shouldn't be in here. I happen to agree with them. I don't 
challenge their assertion that there should be better consumer 
protections. I agree with them. But I also hope they understand that 
when you take a look at a bill which has something that is historic in 
renewable fuels and limitless fuels, limitless sources of energy--yes, 
ethanol especially, but wind energy, solar, and so many other areas of 
renewable energy--and when you have legislation that has real and 
significant standards of efficiency that represent significant 
conservation, and when you have legislation that incentivizes the 
current production of fossil fuels in a way that allows us to continue 
to use them in a manner that is safe for our environment, such as the 
aggressive use of clean coal technology, in my judgment--speaking only 
for myself--that meets the standard of deciding whether or not this 
legislation advances our country's interests.
  Let us pass what is good and fix what is wrong. We have time to do 
that as we move ahead in the coming years.
  For all of those reasons, I choose to advance this legislation.
  Mr. President, I yield the floor.
  Mr. DOMENICI. Will the Senator yield before he yields the floor?
  Mr. DORGAN. I will be happy to yield.
  Mr. DOMENICI. Mr. President, I have on my right a diagram. I wish it 
were bigger, but I think the Senator from North Dakota can see it.
  The Senator spoke about midway through his speech about our growing 
dependence, and one of the dependencies he spoke of was natural gas. It 
is almost incredible--we should show the American people this diagram 
for them to see what has been happening to their country--the red or 
pink is the annual use of natural gas in our generating capacity for 
electricity. If we look back to 1990, the pink is hardly a little 
sliver, and go out to 2003 and we see that almost the entire generating 
capacity of the country is natural gas.
  As the Senator from North Dakota has so eloquently stated this 
afternoon, it is clear we can't continue down that path. We have to do 
something about it.
  First, I will take whatever criticism he has lodged today with 
reference to how the bill evolved. I guess it is pretty fair to say 
that very few people get the luxury, privilege--or whatever it is--of 
having to write one from beginning to end and get it to the floor. I 
was given that privilege this year. It could have been done a different 
way, some of which the Senator from North Dakota has suggested. For 
that I thank him, and I hope we will do better if we have a chance 
again.
  I also think that his genuine interest in hydrogen as a fuel is not 
going to go unnoticed. He is right out there ahead of everybody, and he 
is right.
  Some people stand up and tell us: Why don't you change the CAFE 
standards and reduce dramatically the fuel use of each car that 
Americans drive? I don't know how the Senator from North Dakota feels 
about it, but I have been at it long enough to know that the Senate 
will not do it and the House will not do it. The question is to find 
another way to do it.
  I think Senator Dorgan's notion of having to use another fuel is the 
appropriate one to be putting our resources, our energy, and our 
enthusiasm behind with our major researchers and our major companies. 
If what we got in here is not sufficient, I will join Senator Dorgan as 
soon as we can and try to put in more.
  I would like to see what they do with some of the agreements that are 
advocated for the use of this money and how we use our technology to 
heat up that hydrogen so it is usable. I am sure Senator Dorgan would 
like to see that happen soon, too.
  I thank the Senator from North Dakota for his words. Whether they be 
words that agree with me or words that disagree, I think his conclusion 
is the one that a vast majority of Senators should make, that we should 
not throw this package away. We should do it. I know one of his 
interests is ethanol, and I don't say this just because it happens to 
be a big interest of his, but there is no question that part of the 
bill that was hardest to get, and it took the longest and it made most 
of us frustrated was how do we get that maximum ethanol issue quantity 
that he described today. It was nigh unto impossible to get the numbers 
out of the House and out of their writing committees, but we did. We do 
not get any of these provisions, I regret to say, unilaterally, 
unscathed, with no commitments of any kind extracted. I am just hopeful 
that the good outweighs the bad in terms of the compromises we made to 
get us there.

[[Page 29641]]

  In my State and Senator Dorgan's State and adjoining States, there 
are thousands of people who see this bill a little differently than 
some of those who don't care about ethanol. I heard a Senator say that 
wouldn't be part of a bill because he didn't think we even should do 
it, but I don't think that is the Senator's people. I don't think it is 
the thousands of people represented by these letters of support.
  Second, the Senator from North Dakota is absolutely right on 
renewable resources. We are beginning to make a big show as Americans--
solar, wind is beginning to kick up its heels. We have a very powerful 
tax incentive in this bill. If this bill doesn't pass, it doesn't 
exist. If it doesn't exist, I don't know what happens to the fast start 
and the moving along of these technologies. I am not sure.
  I have been told by the biggest manufacturers and those who sell this 
energy that it will stop. Windmills will stop turning within 3 or 4 
months because the tax credit will disappear. I don't want that to 
happen, especially since we are making some very big headway.
  I thank the Senator. I yield the floor.
  Mr. DORGAN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER (Mr. Gregg). The Senator has 6 minutes.
  Mr. DORGAN. Mr. President, let me say with respect to wind energy, if 
the production tax credit isn't extended, the windmills will not stop 
turning. We have very efficient turbines, but the projects that are 
already planned and ready to go simply will not happen. We won't have 
the initial capacity for wind energy because without the production tax 
credit, it will not exist.
  Let me make this point. If energy policy is analogous to a novel, 
then this is a chapter, and we might well decide this chapter ought to 
be rejected. I come to the conclusion that it is a chapter that is 
probably worthwhile and is a starting point. I want to at some point in 
the future amend it, change it, and improve it, but the choice for us 
is: Do we do nothing and pray that we don't have further blackouts or 
further price spikes, or, God forbid, a terrorist interrupting the 
supply of energy?
  Or do we enact the proposed legislation and consider it the first 
brick of a foundation by which we start to construct an energy policy 
that provides the best of what both political parties has to offer? I 
come down on the side of believing this ought to be advanced.
  There are a series of things I have explained that I believe are 
important in this legislation, so I will make one final point. Earlier, 
my colleague from Arizona talked about the cost of this bill. We have a 
$10 trillion to $11 trillion economy. This economy will only grow if it 
has a supply of energy. If tomorrow, for some reason, our supply of 
foreign oil were shut off, this American economy would be lying flat on 
its back. Talk about consequences for jobs and devastating consequences 
to opportunities in this country. We have to think through all of this 
and plan ahead.
  This legislation is not as comprehensive, as wise, or as bold as I 
hoped it would be, but it is a start. I go back to the issue of 
hydrogen. My colleague talked about natural gas. We are going to face 
natural gas price spikes again this winter. We have serious supply 
problems. We have significant problems in a range of energy sectors, in 
the short and intermediary term with respect to supply and demand. I 
think we should offer no apology for supporting increased efforts to 
produce additional fossil fuels. We have to do that.
  This legislation has something very important in it dealing with 
clean coal technology, which I strongly support. So I again regret that 
I come to a different conclusion than some of my colleagues. I hope my 
conclusion is right. At this point, as I look at this country's needs 
and as I balance legislation that has some good features to it, some 
good titles in it, with some things that should never have been put in 
it, as I balance all of that, I ask the question: Does this advance the 
country's energy interest? Do I believe on balance that it makes sense 
to proceed? The answer for me is yes, and that is why I intend to vote 
to support this conference report.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine is recognized for 15 
minutes.
  Ms. COLLINS. Mr. President, I rise to express my strong opposition to 
the conference agreement on the Energy bill we are debating today.
  Our Nation needs a balanced energy policy that will increase supply, 
decrease demand, reduce our reliance on foreign oil, and protect our 
environment. Unfortunately, the Energy legislation before us fails to 
strike this necessary balance. In fact, it would be poor energy policy, 
poor environmental policy, and poor fiscal policy. It favors special 
interests, it contains billions of dollars in wasteful subsidies, and 
it fails to promote energy conservation. It would be bad for Maine's 
electricity consumers, it would be bad for Maine's manufacturers, and 
it would be bad for Maine's environment.
  I am very disappointed that the renewable energy provision that I 
coauthored with Senator Bingaman was not included in the final version 
of this legislation. This provision would have required that 10 percent 
of our electricity come from clean, renewable energy sources by the 
year 2020. A majority of the Senate conferees voted in favor of this 
proposal, but unfortunately the House voted to remove it, thus passing 
up an important opportunity to increase fuel diversity, decrease 
natural gas prices, and reduce greenhouse gases.
  This legislation would do very little to reduce our dangerous and 
increasing reliance on foreign fuels. The United States is nearly 60 
percent reliant on foreign oil, and this number is projected to 
increase in the coming years, reaching as high as 70 or even 75 percent 
in the next decade to 15 years.
  Senators Landrieu and Specter and I joined to offer an amendment to 
the Senate Energy version that directed the President to devise a plan 
to save 1 million barrels of oil per day by the year 2013. We did not 
dictate how that should be done. It could be done by increasing fuel 
efficiency standards for our trucks and cars. It could be done by 
moving toward more energy-efficient appliances. There are many ways 
that goal could be accomplished.
  Not surprisingly, our amendment enjoyed widespread support in the 
Senate. In fact, it passed by a vote of 99 to 1. Inexplicably, the 
conferees voted to drop that provision from the final bill.
  This legislation also contains numerous wasteful and very expensive 
subsidies, including a 5-billion-gallon ethanol mandate that will 
subsidize corn production in the Midwest at the expense of higher gas 
prices in New England. Ethanol is more expensive than gasoline. It is 
difficult to transport, it is of dubious value to the environment, and 
it does little to reduce our reliance on foreign fuels. In fact, 
studies show that it takes about 4 gallons of oil to produce 5 gallons 
of ethanol. If the goal were to reduce reliance on foreign fuels, we 
would be much better off increasing automobile fuel economy standards 
or mandating other achievable efficiency improvements.
  The liability waiver for MTBE manufacturers also does not belong in 
this bill. The gasoline additive MTBE is a suspected carcinogen and has 
contaminated a number of ground water supplies in my home State of 
Maine, and I know it is also a problem in the home State of the 
Presiding Officer.
  In 1998, for example, a ground water system serving 5,000 people and 
operated by the Portland Water District was contaminated by MTBE. This 
incident cost the Portland water district $1.5 million. The liability 
provisions in this legislation will leave MTBE manufacturers with 
little incentive to help clean up contaminated water supplies. The 
likely result will be that municipal ratepayers will have to shoulder a 
majority of the cleanup costs.
  The electricity title of this bill is particularly troubling to me 
because it is biased against the Northeast. Three months ago, the 
largest blackout in our Nation's history illustrated the fundamental 
flaws in a haphazard and poorly regulated electricity market.
  Just today, the General Accounting Office, at my request, released a 
new

[[Page 29642]]

report on electricity restructuring that analyzed the blackout and 
identified what steps should be taken to ensure greater reliability of 
the electric grid. Unfortunately, the recommendations that are in the 
GAO report fly in the face of what has been done in the legislation we 
are debating today.
  Electricity regulators in the areas most affected by the blackout in 
the Northeast and the Midwest have stated that the Federal Energy 
Regulatory Commission, known as FERC, needs to move ahead with 
standardized electricity markets in order to improve the reliability of 
our markets. Since electricity flows across power lines without regard 
to State boundaries, we need clear and consistent electricity rules 
that apply to the entire Nation. Unfortunately, this legislation would 
actually prohibit FERC from moving ahead with standardized markets for 
another 3 years. I am astounded by that.
  Earlier this year, many of us representing States in both the 
Northeast and the Midwest wrote to the conferees to share our views on 
the electricity issues that were being debated in the conference. We 
quoted our regulators on the impact of delaying these FERC rules. 
Specifically, we stated:

       Our States feel strongly that any delay of SMD [the 
     standard market design] hurts efforts to provide reasonably 
     priced and reliable electricity to consumers and businesses.

In fact, Ohio Governor Bob Taft, in testimony before the House Energy 
and Commerce Committee, stated that he believes that any delay would 
``impose an intolerable risk on the nation.''

  He went on to say:

       We urge you to reject proposals to further delay FERC's 
     ability to address issues which have a direct effect on the 
     cost and reliability of electricity, for millions of our 
     constituents.

  Mr. President, I ask unanimous consent the letters we sent to the 
conferees be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Ms. COLLINS. Mr. President, in view of our urging the conferees to 
not interfere with FERC going ahead with these commonsense and 
necessary regulations, you can imagine my disappointment to discover 
that this bill, in fact, delays these regulations by FERC for 3 years.
  I am also very troubled by the subsidies for pollution control 
equipment for some of our Nation's dirtiest powerplants. Why should 
taxpayers pay for pollution control technologies for 40-year-old coal-
fired powerplants that were grandfathered under the Clean Air Act? 
Recently, when three advanced natural gas plants were built in Maine, 
these plants installed state-of-the-art, advanced pollution control 
technologies without any subsidies, without being subsidized by the 
American taxpayers. The cost of this technology was borne by 
electricity consumers in the State of Maine and other States in the 
Northeast. The cost of electricity from the oldest coal-fired 
powerplants has long been subsidized through exemptions from the 
pollution controls mandated by the Clean Air Act. To further this 
subsidy by authorizing billions--billions--of taxpayer subsidies for 
the dirtiest plants makes no sense at all, and it will have the effect 
of continuing to ensure a disparity in the price of electricity between 
regions in which pollution and other costs are subsidized and regions 
such as ours, in New England, which are not the beneficiary of these 
subsidies. That is not fair. It is not fair to our taxpayers, and it is 
not fair to our electricity consumers.
  I am further disappointed by the inclusion of language in the 
electricity title which will undercut the nationwide development of 
clean power generation. This language, which is known as the 
participant funding language, effectively negates the benefits of the 
combined heat and power provisions that Senator Carper and I worked so 
hard to include in this bill. The participant funding language actually 
creates a disincentive for clean energy generation by allowing monopoly 
utilities to shift the costs of transmission upgrades onto clean power 
generation, such as combined heat and power--the cogeneration plants.
  This provision is particularly harmful to our manufacturers, many of 
whom use combined heat and power to generate products and jobs.
  The last thing we need in this country is another disincentive for 
our manufacturers. In the Northeast in particular, manufacturers are 
already struggling to cope with high electric rates. The last thing we 
should be doing is shifting more of the costs on to them.
  The legislation would also increase greenhouse gas emissions, waste 
natural gas and other already scarce fuels, and harm air quality.
  The bill's failure to address climate change is yet another 
disappointment. It seems a near certainty that greenhouse gas emissions 
will increase by hundreds of millions of tons under this legislation. 
Yet the entire climate change title has been stripped from this bill. 
If we are going to spend billions of dollars on oil and gas and coal 
projects that will increase greenhouse gas emissions, then at least we 
should determine whether such an increase in emissions could cause an 
abrupt and potentially dangerous change in our climate.
  Unfortunately, the abrupt climate change provisions that I authored 
were also omitted from the final version of the bill.
  In summary, this bill does not offer the balanced energy policy that 
America needs. It does not do enough to increase energy efficiency or 
renewable energy. It does not promote conservation. It does not protect 
our environment. It does not give FERC adequate authority to provide 
reliable electricity markets. And it will not reduce our reliance on 
foreign oil.
  I cannot in good conscience vote in favor of ending the debate on 
this legislation, and I call on my colleagues to take a close look at 
the provisions of this bill. I believe as they delve into this bill 
they will realize that it is fundamentally flawed and should be 
rejected.
  In doing so, we would save the taxpayers some $80 billion, and we 
would signal our support for a more balanced energy policy for this 
Nation.
  I yield the remainder of my time.

                               Exhibit 1


                                                  U.S. Senate,

                                    Washington, DC, July 25, 2003.
     Hon. Pete V. Domenici,
     Chairman, Committee on Energy and Natural Resources, U.S. 
         Senate, Washington, DC.
     Hon. Jeff Bingaman,
     Ranking Member, Committee on Energy and Natural Resources, 
         U.S. Senate, Washington, DC.
       Dear Chairman Domenici and Ranking Member Bingaman: We are 
     writing to urge you to continue our nation's efforts to move 
     toward competitive wholesale electricity markets that will 
     benefit consumers and businesses. National competitive 
     markets, where multiple buyers and sellers can negotiate 
     bargains and pass cost savings along to consumers, are the 
     best approach to the challenges facing the electricity 
     industry.
       We would like to bring to your attention a number of issues 
     addressed in the electricity title of the Senate Energy Bill 
     (S. 14) that have implications for residents and businesses 
     in the Northeast-Midwest region.
       Delay of Standard Market Design--S. 14 and the proposed 
     substitute amendment delays the implementation of the Federal 
     Energy Regulatory Commission's (FERC) standard market design 
     until July 2005. Electricity markets have outgrown state 
     boundaries. We are writing to express our concern with the 
     proposed delay of standard market design and the provision to 
     make participation in regional transmission organizations 
     voluntary. The delay has serious implications for residents 
     and businesses in the Northeast-Midwest region and throughout 
     the nation.
       A standard market design would streamline the wholesale 
     electricity industry, encourage transmission investments and 
     move the lower 48 states toward a more competitive 
     electricity market. Congested power lines, which are the 
     result of the current electricity system, cost customers and 
     businesses throughout the United States billions of dollars 
     each year, whereas competitive wholesale power markets could 
     deliver billions of dollars in economic benefits.
       Schwab Capital Markets detailed the importance of 
     standardized markets to increasing investment in our nation's 
     transmission grid and electricity generation.
       Testifying before the House Subcommittee on Energy and Air 
     Quality, Christine Tezak with Schwab states: ``We believe 
     that capital will be less expensive for all market 
     participants if FERC continues (and is permitted to continue) 
     its efforts to provide reasonably

[[Page 29643]]

     clear and consistent rules for this business . . . Schwab WRG 
     continues to view continued efforts to move forward with the 
     restructuring of the electricity industry to be the best 
     investment environment for the widest variety of participants 
     in the electricity marketplace--whether they provide 
     generation, transmission, distribution or a combination of 
     these services--and most importantly, the most likely to 
     provide sustained long-term benefits to consumers.'' Further, 
     Ms. Tezak stated: ``Congress needs to decide whether or not 
     it still believes in the 1992 Energy Policy Act. Today, 
     Congress is becoming an increasing part of the reason capital 
     is hard to attract to this business. Congress is calling for 
     FERC to slow down, Wall Street is frustrated FERC won't move 
     faster.''
       S. 14 makes participation of federal utilities in Regional 
     Transmission Organizations voluntary. Federal taxpayer 
     dollars were used to develop and maintain Federal power 
     marketing agencies such as the Tennessee Valley Authority and 
     Bonneville Power. The energy generated by these facilities 
     should benefit all Americans. TVA and Bonneville should be 
     required to participate in RTOs so communities throughout the 
     United States have access to the power generated at these 
     Federal facilities.
       The Energy Bill must put national interest above the 
     interest of a few vertically-integrated utilities that want 
     to maintain regional monopolies. We encourage you to support 
     standardizing electricity markets and prevent further delay 
     of these efforts.
       Participant Funding--S. 14 and the proposed substitute 
     amendment directs FERC to establish rules to ``ensure that 
     the costs of any transmission expansion interconnection be 
     allocated in such a way that all users of the affected 
     transmission system bear the appropriate share of costs.'' 
     The language requires FERC to fairly align the costs and 
     benefits of transmission upgrades, a judgment that can 
     include a consideration of relevant local factors. This is 
     not only the most equitable approach but also the one most 
     likely to ensure that transmission development will keep pace 
     with growing electricity demand.
       Combined Heat and Power--S. 14 currently contains the 
     ``Carper-Collins'' language which keeps in place incentives 
     to operate combined heat and power facilities until true 
     competition exists in electricity markets. This language 
     retains, for a limited time, the provisions of the Public 
     Utility Regulatory Policy Act (PURPA) which require utilities 
     to provide back-up power and buy electricity from qualifying 
     combined heat and power facilities. As soon as competitive 
     electricity markets are established, these requirements are 
     repealed. Since combined heat and power saves energy, reduces 
     greenhouse gas emissions, increases energy independence, and 
     is good for the competitiveness of American manufacturing, we 
     urge you to retain such provisions.
       We urge you to complete the work Congress started with the 
     Energy Policy Act of 1992 to provide reliable, low-cost 
     electricity to customers. Please stand strong against 
     pressure to reverse court on Congress' efforts to establish 
     better working, competitive markets, and to continue working 
     towards competitive electricity markets.
           Sincerely,
         Jack Reed, Olympia J. Snowe, Edward M. Kennedy, Arlen 
           Specter, Susan M. Collins, Debbie Stabenow, Frank 
           Lautenberg, Carl Levin.
                                  ____



                                                  U.S. Senate,

                               Washington, DC, September 22, 2003.
     Hon. Pete Domenici,
     Chairman, Senate Energy Committee,
     Washington, DC.
     Hon. Jeff Bingaman,
     Ranking Member, Senate Energy Committee,
     Washington, DC.
       Dear Chairman Domenici and Ranking Member: As the 
     Conference Committee on the Energy Policy Act of 2003 
     continues its deliberations, we would like to bring to your 
     attention an issue of great concern to us.
       We believe the Energy Bill must set forth a policy that 
     will complete the work that Congress started with the Energy 
     Policy Act of 1992. The vision of Congress and President 
     George H.W. Bush in 1992 was to transition our nation's 
     electricity industry to competitive wholesale power markets. 
     The vision of today's Congress should be to complete the 
     transition to competitive markets by allowing the Wholesale 
     Power Market Platform (WMP) of the Federal Energy Regulatory 
     Commission (FERC) to move forward.
       Wholesale power markets remain the best approach to 
     optimizing our country's energy resources by increasing 
     generation efficiencies, stimulating investment in new 
     technologies and infrastructure, providing greater choice in 
     energy sources, especially in renewable power, and passing 
     cost savings onto consumers. Wholesale power markets have 
     naturally grown into regional bodies, spanning multiple state 
     boundaries. The recent blackouts that impacted many of our 
     states clearly illustrate the regional nature of our 
     electricity grid. Events that occur in one state have impacts 
     in other states.
       Moreover, while we respect the need for certain regional 
     variations among power market structures, we firmly believe 
     that any Energy Bill should not harm those regions of the 
     country that want to move forward with efforts to bring the 
     benefits of competitive power markets to consumers. 
     Accordingly, we urge the passing of an Energy bill that will 
     appropriately reflect the physical and business realities of 
     the electricity business by allowing the FERC to implement 
     its WMP.
       The FERC's Standard Market Design proposal and subsequent 
     Wholesale Power Market Platform are the logical and necessary 
     responses to the problems experienced by nascent regional 
     wholesale power markets. WMP seeks to standardize market 
     rules while adhering to regional variations and allows FERC 
     to oversee the process of Regional Transmission Organization 
     (RTO) formation and participation. The timely implementation 
     of WMP is critical in achieving the efficient, seamless, and 
     non-discriminatory wholesale power markets that will optimize 
     our nation's energy resources. Delay will only serve to 
     further injure much needed investment in generation, 
     transmission and demand response facilities that are the 
     foundation of our nation's economic well-being.
       The health of our state economies depends upon the free 
     flow of interstate commerce governed at the federal level to 
     ensure consistent, clear and fair laws over state lines. 
     Similarly, vibrant competitive power markets rely on the free 
     flow of electrons through state and regional boundaries. To 
     the extent there is a standard set of rules, states with 
     either competitive retail markets or vertically-integrated 
     utility service will benefit in terms of greater 
     efficiencies, greater reliability and reasonably priced 
     electricity that our homes and businesses need.
       Furthermore, a delay in the implementation of the SMD 
     rulemaking will only serve to add uncertainty to potential 
     investments in our energy infrastructure and negate years of 
     progress made in the rulemaking process by the FERC, state 
     commissions and market participants alike. Consider the 
     testimony of Christine Tezak of Schwab Capital Markets before 
     the House Subcommittee on Energy and Air Quality: ``Congress 
     needs to decide whether or not it still believes in the 1992 
     Energy Policy Act. Today, Congress is becoming an increasing 
     part of the reason capital is hard to attract to this 
     business. Congress is calling FERC to slow down, Wall Street 
     is frustrated FERC won't move faster.''
       Specifically, we believe that an energy conference report 
     should:
       Support FERC's Efforts to Promote Competitive Wholesale 
     Markets--Our states feel strongly that any delay of SMD hurts 
     efforts to provide reasonably priced and reliable electricity 
     to consumers and businesses. In fact, Ohio Governor Bob Taft 
     in testimony before the House Energy and Commerce Committee 
     stated that he believes that any delay would ``impose an 
     intolerable risk on the nation''. We urge you to reject 
     proposals to further delay FERC's ability to address issues 
     which have a direct effect on the cost and reliability of 
     electricity for millions of our constituents.
       Promote Regional Transmission Organization (RTOs)--
     Effective, well-functioning regional transmission 
     organizations and independent system operators are necessary 
     for the creation of well-designed, competitive regional 
     markets. The Electricity Title should not disrupt existing 
     regional markets nor stall their development in regions that 
     want to develop them. RTOs and ISOs are a key to effectively 
     managing the increasingly interstate flow of electricity and 
     are critical to the success of electricity restructuring. 
     Increased participation in RTOs will help address the 
     structural problems in our grid that created conditions for 
     the recent blackout. RTOs will help our nation improve our 
     ability to respond to problems in the grid by having an 
     effective regional ``traffic cop'' with a reliability mission 
     to manage any future incidents. They will also help improve 
     the climate for investment in transmission infrastructure to 
     enhance the reliability of the grid in the first place.
       We urge you to complete the work Congress started with the 
     Energy Policy Act of 1992 to provide reliable, low-cost 
     electricity to consumers. Please stand strong to continue the 
     efforts of Congress to establish well-functioning, robustly 
     competitive wholesale power markets while creating a federal 
     policy that would bring much needed certainty to our nation's 
     energy sector.
       Thank you for your consideration of these comments and we 
     look forward to working with you to ensure the Electricity 
     Title respects the difference among regions while moving 
     forward with efforts to bring the benefits of competitive 
     power markets to all American consumers.
           Sincerely,
         Rick Santorum, Jack Reed, Olympia J. Snowe, Edward M. 
           Kennedy, Lincoln D. Chafee, Thomas R. Carper, John 
           Cornyn, Jon S. Corzine, Arlen Specter, Frank 
           Lautenberg, Barbara A. Mikulski, Mike DeWine, Joseph R. 
           Biden, Jr., Carl Levin, Susan M. Collins, Paul S. 
           Sarbanes, Peter G. Fitzgerald, Debbie Stabenow, Evan 
           Bayh, Richard G. Lugar.

  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, I have been listening to the debate. I 
have

[[Page 29644]]

come to some conclusions. First of all, one of the things the Senator 
from Maine said that I agree with is this bill does little to reduce 
our reliance upon foreign countries for our ability to run this great 
machine called America. I would like to have had more provisions in 
there. I would have liked to have had some more generous nuclear 
generation provisions, maybe ANWR, and a few things that would more 
directly address this. I am hoping we will be able to do this in the 
future.
  The Senator from North Dakota, when he was talking about the bill, 
said there were several things in here that he didn't like, and many 
things in here that he would have liked to have had in here. I feel the 
same way. That is almost by definition the sign of a good bill because 
neither one of us is real happy with it. However, we both are going to 
support this bill.
  I think we could have gone further. I have been concerned for many 
years about our dependency, going all the way back to the Reagan 
administration when Don Hodel, who was the Energy Secretary at that 
time, and I used to go around the country to explain to people in 
consumption States that our reliance upon foreign countries for our 
ability to fight a war is not an energy issue but a national security 
issue.
  Finally, this is the first approach. I have to say President Reagan 
didn't really address this, the first President Bush didn't address it, 
President Clinton didn't address it. This President is addressing it. 
This may not be perfect, certainly it is far from perfect, but it is 
the first major step since 1980 to correct a problem we all agree is 
there.
  In deference to the time that we have here I am going to concentrate 
on one thing. There are a lot of things I would like to talk about 
because I chair the Environment and Public Works Committee. There are a 
number of issues that are within my jurisdiction. I thank the manager 
of this bill, Senator Domenici, for his willingness to let me have 
input even though I am not on the conference over some of these issues 
that would have been in my committee.
  My concern right now, and what I want to address, is the whole idea 
of the ethanol and MTBE safe harbor provisions. It has been treated as 
a red herring. I would like to go over what it really is and what it is 
not. What we have heard on the floor is good rhetoric from the trial 
lawyers, but it is not factual.
  The premise of the ethanol and MTBE safe harbor is simple: If the 
Federal Government approves and mandates a product, such as it did with 
ethanol and MTBE, that product should not be considered ``a defective 
product by virtue of the fact that it is, or contains, such a renewable 
fuel or MTBE.'' So let's walk through this and see what the safe harbor 
provision does.
  The ethanol and MTBE safe harbor states:

       Notwithstanding any other provision of Federal or State 
     law, no renewable fuel, as defined by section 211(o)(1) of 
     the Clean Air Act . . . used or intended to be used as a 
     motor vehicle fuel containing such renewable fuel or MTBE, 
     shall be deemed a defective product by virtue of the fact 
     that it is, or contains, such renewable fuel or MTBE.

  That stands to reason. That is perfectly legal. Yet that is the 
provision to which most of these people are objecting. How can it be 
reasonable if we mandate something by law and then turn around and say 
it is defective by definition? It is just not reasonable.
  We know that Congress is mandating renewable fuels in this conference 
report. The energy bill states:

       Not later than one year after the enactment of this 
     subsection, the Administrator [of the EPA] shall promulgate 
     regulations ensuring that motor vehicle fuel sold or 
     dispensed in the United States . . . contains the applicable 
     volume of renewable fuel. . . .

  That is in essence the language of the legislation that we are 
considering today.
  MTBE was also similarly mandated. The Clean Air Act Amendments of 
1990 signed into law by the first President Bush clearly states:

     [t]he oxygen content of gasoline shall equal or exceed 2.0 
     percent by weight. . . .

  At that time, Congress knew the only two additives that could be used 
were MTBE and ethanol. And the Record shows that.
  For example, on March 29, 1990, Senator Tom Daschle, the author of 
the floor amendment that established this 2-percent standard, stated 
during debate:

       The ethers, especially MTBE and ETBE, are expected to be 
     major components of meeting a clean octane program.

  Under certain forms of an oxygenate mandate, Senator Daschle went as 
far as to note that:

       EPA predicts that the amendment will be met almost 
     exclusively by MTBE, a methanol derivative.

  Senator Daschle recognized what we all know: There are substantial 
benefits to using MTBE as far as environmental protection is concerned. 
In the floor debate on the 2-percent standard, Senator Daschle cited 
evidence that:

       NOX, hydrocarbons, and carbon monoxide are 
     dramatically reduced by adding the oxygenate MTBE to 
     gasoline.

  So it is clear that Congress mandated ethanol and MTBE in 1990, and, 
in this conference report, is increasing the mandate on ethanol.
  Let me go on reading the ethanol and MTBE safe harbor. The safe 
harbor applies only:

       If it [ethanol or MTBE] does not violate a control or 
     prohibition imposed by the Administrator of the Environmental 
     Protection Agency under section 211 of such Act, and the 
     manufacturer is in compliance with all requests for 
     information under subsection (b) of such section 211 of such 
     Act.

  So the safe harbor in this conference report applies only if you are 
in compliance with all the tough fuel requirements of the Clean Air 
Act.
  So to review so far, if ethanol or MTBE is used as required by the 
Federal Government and is in full compliance of the Clean Air Act, it 
should not be found defective. Alternatively, if a party does not meet 
the requirements of the Clean Air Act, the safe harbor does not apply, 
stating that:

     the existence of a claim of defective product shall be 
     determined under otherwise applicable law.

  It can still be exercised if they don't comply.
  Most importantly, the safe harbor does not impact numerous legal 
mechanisms available for cleanup and damages. Specifically, the safe 
harbor states that:

       Nothing in this subsection shall be construed to affect the 
     liability of any person for environmental remediation costs, 
     drinking water contamination, negligence for spills or other 
     reasonably foreseeable events, public or private nuisance, 
     trespass, breach of warranty, breach of contract, or any 
     other liability other than liability based upon a claim of 
     defective product.

  In all those other cases, it remains unchanged. The safe harbor does 
not apply to anything except liability based upon a claim of defective 
product, assuming they have complied with the Clean Air Act. It is as 
simple as that.
  As the energy conference report clearly states, the safe harbor does 
not affect liability under other tort theories. Tort law provides a 
remedy when there is a breach of a duty resulting in harm to a person, 
property, or intangible personal interests. The following types of 
actions have been used in environmental cases. These are actions where 
recovery took place:
  Trespass--interference with the plaintiff's possessory interest in 
his land. Is that affected by safe harbor? No.
  Nuisance--intereference with the plaintiff's use and enjoyment of his 
property--that is not affected by safe harbor.
  Negligence--may be a basis for product liability actions, as well as 
actions involving the release of allegedly toxic materials. negligence 
could be based on the design of manufacture of the product, or failure 
to give warnings necessary to make the product safe. Is this affected 
by safe harbor? No. It is not affected.
  Breach of implied warranty--similar to strict products-liability--is 
not affected by safe harbor.
  Under breach of express warranty--if a manufacturer, distributor, or 
retailer makes express promises regarding a product, the party is 
liable if the product fails to perform as promised and that failure 
leads to injury. It is not affected by safe harbor.
  The only thing that is affected is in the areas we have been 
discussing.

[[Page 29645]]

  Moreover, this safe harbor in no way shape or form impacts any 
environmental law. The safe harbor provision would not affect 
liability, and therefore response, remediation and clean-up, under 
Federal and State laws. The facts of a given situation would dictate 
which of the following statutes would be most appropriate for an 
action. Here are examples of environmental laws that could apply. The 
following are not impacted: The Resource Conservation and Recovery Act, 
RCRA; Clean Water Act; Oil Pollution Act--OPA; Comprehensive 
Environmental, Response, Compensation, and Liability Act--CERCLA or 
Superfund; not to mention natural resource damages available under OPA, 
CERCLA, and the Clean Water Act. They are not impacted.
  Furthermore, the leaking underground storage tanks provision in this 
energy conference report greatly enhances the amount of resources 
available to states and localities through the underground storage 
funds.
  If the language and the impact are so clear, why is the debate so 
muddy? The answer is because trial lawyers stand to lose billions.
  What is the positive affect of this safe harbor?
  Liability protection is consistent with environmental protection. 
Without some stability in liability risk, powerful disincentives will 
be created to continued manufacturing of clean-fuel additives. Why 
should we manufacture clean fuel additives if there is no protection? 
Clean fuel programs have saved thousands of lives across the country. 
Opposition to commonsense legislation may endanger those most 
susceptible to air pollution impacts by reducing the ready supply of 
clean fuel additives.
  Failure to limit liability endangers future energy security and clean 
air. Simply put, additive manufacturers will be extremely reluctant to 
invest in MTBE replacement additives without some sense of certainty 
that the Federal Government will not allow those investments to become 
the basis of undue liability. In other words, as additive manufacturers 
seek access to capital, demonstrating a responsible Federal role in 
liability limitation may be crucial to justify future investments in 
clean additive manufacturing. It is simply a supply and demand 
argument.
  In conclusion, I ask my colleagues to look at the facts. The fact is 
that the safe harbor is a fair and important provision in an important 
piece of legislation, which is critical to our national and economic 
security.
  The safe harbor only applies to defective products claims.
  I believe very strongly we need to have that clarification.
  I repeat one more time what is actually written into the law. It says 
if the Federal Government approves and mandates a product such as 
ethanol or MTBE, that product should not be considered a defective 
product by virtue of the fact that it is or contains such renewable 
fuel or MTBE which is mandated by law. I appreciate the opportunity to 
clarify that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. AKAKA. Mr. President, I rise today to express a profound sense of 
disappointment. The Nation needs an energy bill. We need a 
comprehensive blueprint for an energy policy that will take us in new 
directions, away from dependence on declining reserves of fossil fuel 
and foreign sources of oil. We need a policy which will reconcile 
growth and energy conservation in our transportation, manufacturing, 
utility, and consumer sectors across the nation. We need to bring down 
the high costs of electricity and gasoline for the country, 
particularly in my state of Hawaii, and pursue greater energy 
independence from petroleum products. The conference report does not 
make these goals achievable.
  I believe a comprehensive energy bill is possible. As a senior member 
of the Senate Energy and Natural Resources Committee, I am familiar 
with cutting-edge technologies and approaches to generating energy. I 
was closely involved in crafting the energy bill that we considered 
earlier this year under Senator Domenici's leadership. I also 
contributed heavily to the energy bill that passed the Senate under 
Democratic leadership last year.
  I wish to thank the senior Senator from New Mexico for his 
persistence in drafting this energy bill under extremely difficult 
circumstances. The energy policies that we are addressing in this 
legislation cover a vast range of authorities and a patchwork of unruly 
regional alliances. This translates to an enormous challenge, and I 
appreciate Senator Domenici's hard work in the face of this intractable 
situation. I want to make it clear that I have not given up on the 
opportunity to have an energy bill and I will continue to work with my 
colleagues to shape an energy bill for the continental United States as 
well as for Hawaii and Alaska, which often have special energy needs.
  Unfortunately, the report that has emerged from the conference 
committee does not bear much resemblance to either of the two earlier 
bills, this year or last year, that had bipartisan support. I rise 
today to express my disappointment with the outcome of the conference 
report for several reasons.
  I am particularly concerned about Title VIII, the hydrogen title. 
During the Committee's consideration of S. 14 earlier this year, the 
hydrogen title authorizing research and development, demonstration 
projects, and buy-back and fleet provisions was carefully worked out by 
a bipartisan group of Senators on the Committee. Even though my 
colleague from Iowa, Senator Harkin, is not on the Committee, he 
contributed mightily. The hydrogen title was based on the Spark 
Matsunaga Hydrogen R&D Act, which has been the basic authority for 
federal hydrogen programs for the last 20 years. I introduced a bill to 
reauthorize the Matsunaga Act earlier this year, along with Senators 
Domenici, Bingaman, Bayh, Lieberman, Kyl, Reid, and Inouye. I continue 
to believe that the Matsunaga Act's basic focus on renewable R&D for 
the production of hydrogen is a critical component of a national 
hydrogen R&D program. I greatly appreciate the vision of Senator 
Domenici, who led the effort earlier this year to craft the hydrogen 
title in S. 14, along with myself and Senators Bingaman, Dorgan, 
Alexander, Wyden, Schumer, and Harkin who dedicated time and energy to 
the bipartisan compromise. Title VIII was agreed to unanimously in the 
Committee in markup.
  Title VIII, as it was crafted earlier this year, contained a robust 
authorization of hydrogen research, development, and demonstration 
projects to lead us into the hydrogen future. The title was later 
successfully amended on the floor during debate on S. 14, led by my 
good friend and colleague from North Dakota, Senator Dorgan. Senator 
Dorgan offered an amendment, which I cosponsored, to include important 
measurable goals and timelines for the commercial introduction of 
hydrogen fuel cell vehicles.
  The federal government should be a leader in introducing hydrogen to 
the federal fleet of cars, trucks, and vans that are used to accomplish 
our government's business. Not many people realize it, but the federal 
government has a fleet of about half a million transportation units 
that, as a by-product of using fossil fuels, emit nitrogen oxides, 
ozone, and other pollutants. The original hydrogen title sought to 
usher in a transition to a fuel cell fleet.
  The revised hydrogen title in the conference report eliminates key 
federal purchase requirements for vehicle fleets, stationary power, and 
hydrogen fueling infrastructure. It provides only the vaguest guidance 
to the Secretary of Energy of voluntary projects to shape demonstration 
programs.
  Why are we going to spend $1.4 billion over six years on the 
production of hydrogen energy by way of a demonstration project using 
nuclear energy to produce hydrogen? We cannot decide what to do with 
our nuclear waste as it is now. Why are we going to produce waste by 
using nuclear material to produce hydrogen? We need to explore the 
production of hydrogen using renewable resources, and we need to spend 
a great deal more on it than this conference report provides. Hydrogen 
may fuel the economy of the future, but we must take action now to

[[Page 29646]]

ensure that it comes from renewable sources for those parts of the 
country that will not or cannot host nuclear facilities.
  The new hydrogen title authorizes less funding through 2008 than we 
agreed on in the Senate earlier this year. It eliminates key 
demonstration programs and federal purchase requirements that I believe 
are critical to ensuring a hydrogen future. Mr. President, the hydrogen 
title is a pale ghost of what it was when it left the Senate on July 
31st of this year.
  This bill has some hopeful features. It provides tax incentives for 
wind, solar, and geothermal energy--but not enough. It encourages 
energy efficiency in household appliances and homebuilding. I am 
pleased that the report contains provisions that I specifically 
requested for energy studies in Hawaii and insular areas, and for non-
contiguous areas to opt-in to the ethanol trading system. I thank 
Senator Domenici and Senator Bingaman for their assistance on these 
provisions, which take into account the unique energy situation faced 
by more remote states and territories. I also am pleased that Senator 
Domenici has included provisions of a bill I introduced earlier this 
year, S. 1045, to designate an office in the Department of Energy and a 
process within the Department for safely disposing of Greater-Than-
Class C, GTCC, radioactive waste. According to a General Accounting 
Office study that I requested on this topic, we need a stronger plan 
for continued recovery and storage of GTCC waste until a permanent 
disposal facility is available.
  The conference report has some objectionable features. It provides 
waivers for manufacturers of MTBE, thus leaving it to counties and 
cities to pay for the cleanup of groundwater contamination. There must 
be a better solution than that. We cannot leave the burden of cleaning 
up drinking water contaminated by gasoline additives to local 
communities.
  The conference report also has objectional omissions. It does not 
include fuel economy standards which significantly increase the fuel 
efficiency of automobiles--a vital component of a comprehensive energy 
policy. The American people want to spend less money on gasoline, be 
less dependent on foreign supplies of oil, seriously address the issue 
of climate change, and breathe cleaner air. Strong fuel economy 
standards address these needs. The conference report fails to address 
the accumulation of greenhouse gases, which I have spoken about several 
times on the floor of the Senate.
  Mr. President, I am disappointed in the conference report. It will 
not open the door for radically new energy futures such as hydrogen or 
even liquefied natural gas. It will not alleviate the high prices of 
energy in the Nation. And it will not reduce our dependency on foreign 
oil.
  I yield back the remainder of my time.
  The PRESIDING OFFICER (Ms. Collins). Without objection, the Senator 
from Louisiana is recognized.
  Mr. REID. Madam President, if the Senator will yield for a question, 
through the Chair, how long does the Senator wish to speak? There are 
other Senators who wish to speak. There is no rush. I want to know when 
they should come over.
  Ms. LANDRIEU. Approximately 15 minutes.
  Madam President, I join my colleagues on the floor to make relatively 
brief remarks about this very important energy bill.
  As a member of the Energy Committee that has worked very hard to 
produce this bill, and as confident as I am that a majority of the 
people in Louisiana want us to produce a good and balanced bill, I want 
to stand to support the bill that is before us and to urge our 
colleagues to vote yes on this measure. I commend the chairman from New 
Mexico and the ranking member from New Mexico on the Senate side and 
the chairman and the ranking member on the House side for producing a 
bill that is truly the best bill this Congress can produce.
  Is it a perfect bill? Absolutely not. Does it leave some very 
important sections out that many of us would like to see? Absolutely 
yes. Does it address every regional concern? No. And no national bill, 
no bill that comes out of this Congress, would ever be able to make 
each region perfectly happy because energy, of all issues, is not 
really a Democrat or Republican issue. It really is based on the 
regions of the country from which we all come.
  Some regions consume a great deal more energy than they produce. Some 
regions and states, like Louisiana, are a net exporters of energy. We 
are proud of that fact. We get beat up a lot about it from people who 
do not necessarily understand the oil and gas industry, but we are 
proud to drill in environmentally sensitive ways for oil and gas and 
proud that we contribute so much to nations energy supply.
  So we will never have a bill that is going to satisfy the regional 
and parochial interests of every Member. I am convinced, having worked 
on this Energy bill, or something like it, for the 7 years I have been 
in the Senate, that this is the best bill this Congress can put 
forward.
  The second point is, after we pass this bill--and I am confident we 
will pass and the President will sign it, there is nothing that 
prevents us, either individually or as a Congress, from stepping 
forward in the next few months or years to make improvements and 
adjustments to the bill. We can continue to push for policies that 
increase our supply, increase new and renewable fuels, improve our 
conservation, and make this Nation more energy self-sufficient.
  But we have not had an Energy bill since 1992. In that bill, Congress 
revolutionized wholesale electricity markets, encouraged renewable 
energy production through tax incentives and streamlined and reformed 
the licensing for nuclear facilities.
  In this bill, one of the things I am proudest of, working with 
Senator Domenici, is to improve, increase and facilitate the 
construction and licensing of new nuclear facilities because I believe 
it is time for the United States to have a renaissance in its nuclear 
industry, so we can increase the supply of energy and drive down prices 
for all of our consumers, whether they be residential, industrial, or 
commercial.
  For the life of me, I cannot understand why the United States cannot 
recognize the importance of nuclear energy as a component of our energy 
policy. Many developed countries, such as France, have realized the new 
and exciting technologies in this area that make nuclear safe, clean, 
and reliable. In France, approximately 80 percent of all their 
electricity consumption is produced by nuclear power.
  I am also very proud of the fact that we have, for the first time, 
recognized the tremendous contribution that Louisiana and Texas and, to 
a certain degree, Mississippi and Alabama make in producing oil and gas 
off of our shores.
  We have sent to the Federal Government billions and billions of 
dollars of tax revenues. We have produced many jobs. We are doing our 
part in Louisiana to make our Nation energy self-sufficient, and we are 
proud of it because we think for every hour we work, every month we 
contribute, every year we send money, we put our troops less at risk 
having to defend America's interests for oil and gas and energy 
supplies around the world. It is something that people in Louisiana are 
very proud of.
  The fact is, there is something for all of us to gain from this 
compromise bill. We need to move forward on this bill, in my opinion.
  No. 1, it increases our domestic production of energy and, therefore, 
lowers the prices for everyone. It is hard to estimate what the 
lowering of the prices will be, but this bill addresses that concern 
and make steps towards providing a variety of energy sources.
  Second, it creates new jobs. So for everyone who is concerned, it 
lowers unemployment. There is not a Senator in this Chamber who is not 
concerned about increasing employment rolls and lowering unemployment 
rolls. This bill, by creating hundreds of thousands of jobs, will, in 
essence, do that.
  We also take steps to conserve, not as many steps as this Senator 
would have liked to take. I appreciate the

[[Page 29647]]

comments of the Senator from Hawaii and others, including Senator 
Dorgan, who spoke about the missed opportunities in this bill. They 
encouraged us to really step up for conservation measures and I agree. 
The Presiding Officer made some very appropriate and, I thought, 
discerning remarks about our missed opportunities for conservation. We 
have missed some opportunities, but there are still, in this bill, some 
very excellent conservation and research and development initiatives to 
be proud of.
  I might remind the Democratic caucus, our No. 1 objective--not my No. 
1 objective but the No. 1 objective of our Democratic caucus--was not 
to drill in ANWR. There is no drilling of ANWR in this bill. Other 
Democrats objected to more drilling off the coast of Florida. There is 
no more drilling off the coast of Florida in this bill. There were 
Democrats who objected to drilling in the Great Lakes. There is no 
drilling in the Great Lakes. So for those who wanted not only energy 
conservation but, in their view, environmental protections, this bill 
represents that compromise.
  Let me say a word about natural gas because it is very important to 
Louisiana. Demand is exceeding supply and prices have been abnormally 
high for the better part of this year. The growing gap between demand 
and supply has been apparent for some time. Presently our demand is 22 
trillion cubic feet annually. The Energy Information Administration 
projects that the demand will increase by over 50 percent by the year 
2025. There is a naturally occurring abundance of natural gas. If we 
don't do something about producing more of this precious resource the 
gap between what we need and what we consume is only going to grow. We 
must act now. If we don't, the problem will continue to drive up prices 
and make our industries noncompetitive with industries in Europe and 
Asia, Africa, and other parts of the world. Natural gas is at the heart 
of helping this Nation to secure and stabilize its employment sector.
  In the short term, we provide royalty relief for ultra deep gas 
wells, something I worked on. I am proud that is in this bill. In the 
long term, the bill provides for the construction of a natural gas 
pipeline--a great deal of controversy. The bottom line is this pipeline 
could bring 65 trillion cubic feet into the market over the next 10 or 
20 years. It is gas we need, gas we are going to use, and gas that will 
lower prices.
  In addition to all of that, it is going to put several hundred 
thousand people to work. Whether you are in Alaska or other States, a 
lot of people could use jobs right now. This is a jobs bill.
  Let me say a word about coal. We don't produce a lot of coal in 
Louisiana, but there are some States that do. I guess I have a great 
deal of sympathy for States that, like Louisiana, utilize their natural 
resources. West Virginia and Pennsylvania are natural resource-based 
States. Why shouldn't the people of those States get to use the natural 
resources they have to create jobs and to do it in a way that helps 
keep the environment clean?
  We have some clean coal technology in this bill. It might not be 
perfect, but what is the alternative? Shut down all the coal mining in 
the country, put thousands of people out of work, and drive up energy 
prices? Let's use the technology and encourage the development of even 
better technology. We have over 250 years of coal reserves in this 
Nation. The people of our Nation deserve to use those reserves 
responsibly to their benefit.
  I am proud that this bill includes some important renewable fuel 
standards. In addition to some of the other issues that have been 
discussed in this bill, we promote wind power. That is very exciting. 
You wouldn't imagine, though, that we are going to have some of the 
same interesting debates we have had over oil and gas production; that 
is, ``not in my backyard.'' I want the energy, but I don't want to see 
the rigs.
  I was quite amused by the fight that went on in Massachusetts or off 
the east coast about where we are going to put the windmills. People 
want wind power, but they don't want the windmills that produce the 
power. Unless our technology can put windmills underground and have the 
wind go underground, I don't know how we can avoid the aesthetics 
issue.
  Since I am used to seeing oil rigs, I kind of like the way they look 
and most certainly enjoy fishing around them because they make 
excellent places to fish that we in Louisiana have understood now for 
quite some time. I am encouraging wind power and hope we won't have the 
same ``not in my backyard'' attitude that we have had about other ways 
to produce energy. Certainly, wind is a very interesting source of 
power and evidently something that we will never run out of. It is an 
endless supply.
  We are encouraging wind power in this bill and solar energy which is 
quite exciting. I happened to visit some of the most outstanding solar 
institutes in the world, one of my last visits to Israel several years 
ago. I was very encouraged by the technology that is ready to come on 
the market with the right kind of encouragement and incentives. Many of 
these are in this bill. We can create new building materials that can 
lead the way to the 21st century.
  This bill includes $300 hundred million for solar programs, several 
hundreds of millions of dollars for wind and energy production, and 
$500 million in grants for biomass programs. Biomass is another example 
of a new and exciting technology which takes other materials to create 
energy. It serves to move us to a more diverse portfolio of supply to 
produce the energy we need for our Nation.
  Another important part of this bill is the increased authorization 
for the Low Income Heating Assistance Program. Being from Louisiana, a 
State that is hot most of the year, and that we have had a hard time 
explaining to people that you can die from heat as well as die from 
cold, we have not been able to get the low-income housing assistance 
program directed to Southern States. This bill accomplishes that. For 
Southern States, this is very important to help our people who pay high 
energy bills and need the air-conditioning, not for comfort but 
literally to keep them from dying or expiring in some of the hottest 
and most humid weather. We are very happy that this increased 
authorization is in this bill.
  Finally, I know the chairman from New Mexico and the ranking member 
will work with us to put some real teeth in the freedom car proposal 
that the President has launched and I support. It is not strong enough 
in this bill, but, as I said, nothing will stop us from coming back and 
putting real time frames and real measures of success.
  Mandates for hydrogen fuel cells in our Federal fleet could be added 
to this bill. But our clean schoolbus technology, some other things 
that are in this bill, make it, on balance, a very fine bill and one 
that this country needs.
  Again, this is not a Democrat or a Republican bill. It is really a 
bill in which regional interests are at stake. But from the perspective 
of Louisiana and particularly in the South, places that produce a lot 
of energy, this bill gives us relief. It gives us hope that natural gas 
prices can be reduced. It produces jobs, and it helps us lower the 
unemployment rate as well as makes our country more energy self-
sufficient.
  For all of those reasons, I will give my vote and support to the 
bill.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Rhode Island is recognized for 20 minutes.


                                Medicare

  Mr. REED. Madam President, we are debating at the moment the Energy 
bill, but there is another major initiative that we are all 
considering. That is the Medicare bill. I would like for a moment to 
speak about the Medicare bill.
  We have a history. For 38 years, Medicare has been a central part of 
the life of America, not just seniors in America but every American 
family. Now we are being asked to consider, in the waning days of this 
session, fundamental changes not just to the addition of a pharmacy 
benefit for seniors

[[Page 29648]]

but fundamental changes to the structure of the Medicare Program. We 
are being asked to do so in the waning hours of this session of 
Congress.
  What we have seen from the situation in the committee is that it was 
a period of negotiation between very few people, producing fundamental 
changes for our Medicare system. It is important, I believe, to look at 
some of the changes today.
  Much of the discussion that has taken place in the conference with 
respect to this proposal has not really been how best to use the $400 
billion for pharmacy benefits for seniors but, rather, to make profound 
changes in Medicare, which I believe undermine, in the long run, the 
Medicare Program.
  One could suggest that the original $400 billion budget allocation 
for pharmaceutical benefits for seniors was too meager. But we could 
have addressed at least how to make that money go as far as we could 
rather than simply using it as, I believe, a subterfuge in some 
respects to make changes to Medicare that have been promoted by many--
particularly conservatives--for years previously.
  The purpose of S. 1 and H.R. 1 was supposedly to craft a 
pharmaceutical benefit. Indeed, what happened is much more profound and 
more pervasive and indeed will go to undermine our Medicare Program, 
not strengthen it. I have serious reservations.
  We all recognize that seniors need relief. Again, the $400 billion 
was a small part of the relief they need. It has been estimated by CBO 
that seniors will spend a total of $1.8 trillion on pharmaceuticals 
from 2003 to 2012, the 10-year period this bill will likely cover. The 
$400 billion, in context, is just a fraction of what seniors will pay. 
Nevertheless, we could have provided, I believe, much more focused, 
targeted, and beneficial relief to seniors than has been accomplished 
by this bill. More than that, we could have avoided these very serious 
and deleterious changes being proposed for Medicare.
  Let me address a few issues. There is an issue in the bill that has 
been discussed, which is cost containment. It represents sort of a 
doublespeak, if you will. I believe if you asked most of my seniors 
about cost containment, they would say, hallelujah, finally, you are 
going to bring down the cost of the pharmaceutical drugs.
  Wrong. In the language of this bill, cost containment is limiting the 
amount of money the Federal Government will contribute to the Medicare 
Program--not just pharmaceuticals but to the Medicare Program. In fact, 
if you look at what they have done with respect to the cost of 
pharmaceuticals they have made it very difficult for the Federal 
Government, through the Medicare Program, to negotiate lower prices.
  Once again, if you asked any senior in this country, or any American, 
about cost containment, in the context of pharmaceutical drugs, they 
would say it has to be the reduction in the costs charged to seniors, 
not a reduction of the contribution this Government will make for 
seniors. It has turned the whole notion of containment upside down, 
topsy-turvy. Again, it will go a long way not to help seniors but to 
continue the unchecked increases in pharmaceutical costs we have seen.
  There are reasons for this. Frankly, everyone has to recognize that 
revolutions in pharmaceuticals have provided a higher quality of health 
care in the United States. But my expectation, and my hope, was that if 
we were talking seriously about a Medicare benefit for seniors with 
respect to pharmaceuticals, we would have been able to use the market 
power of a nationwide Medicare Program to control prices--not set them 
but control them through the marketplace.
  A large number of beneficiaries, purchasers, could go to 
pharmaceutical companies, through the Medicare system, and negotiate 
prices, which represents the buying power of millions of seniors. That 
is not going to happen because, quite deliberately and consciously, 
this program fragments seniors; it creates regions where certain 
programs will vie for the business of seniors through the Medicare 
system. That is not going to control costs. Yet we are talking about 
cost containment, not in that context at all but in the notion of just 
limiting the contribution we will make.
  Again, I think what we have to recognize is that this is not going to 
be the way to deal with the crisis we face today and the crisis of the 
years ahead.
  There is a provision in the legislation which essentially says that 
as the Medicaid Program exceeds 45 percent of the general fund 
contribution--our contribution to Medicare exceeds 45 percent of total 
program expenditures, and then the President must submit a plan to 
Congress, and there is pressure for Congress to move. But that is a 
rather arbitrary and artificial way to approach the cost of Medicare.
  First of all, it doesn't consider the number of beneficiaries. It 
doesn't consider other factors, such as quality issues. It is an 
arbitrary device which I think will not control the real costs, which 
is the cost of drugs, but it will really inhibit and hamper our ability 
to serve our seniors. Again, this is one aspect of the legislation that 
I find particularly troublesome.
  There is another doublespeak, and that doublespeak is premium 
support. Again, if you asked any senior in Rhode Island, Michigan, or 
Maine about premium support, they would say: Hallelujah, you are going 
to help me pay my premium; I have been waiting for that. That is not 
the case. It is helping the private insurance companies by assisting 
them not only in their operating expenses but with their bottom line in 
the process. That is not what most people thought about when we talked 
about premium support.
  It will provide wide variations of premiums throughout the country, 
State by State, and even within States, region by region. Essentially, 
it will also encourage cherry-picking, a term we are all familiar with, 
in which these private companies that are being encouraged to now go 
after the seniors' business will be able to structure their marketing 
and their appeals to take the healthiest, younger seniors, leaving the 
older seniors--the most vulnerable and most expensive--to be covered in 
the Federal program. This will be great for their bottom line, but it 
will drive the cost of traditional Medicare up and up, and it will run 
right back into the cost containment trap we set up.
  Medicare will be less ``efficient'' than private plans. Therefore, it 
will be subject to increased Federal pressure to lower the cost. All of 
this violates a fundamental principle of insurance, which is that you 
pool risk by aggregating a range of risk. You don't segregate the 
healthiest people and say we will ensure just those--well, if you are a 
profitable private insurance company, you do. But if you are trying to 
plan for a national program to assist seniors, you certainly don't do 
that.
  It also defies the fundamental facts of history. In 1965, when the 
Medicare Program was created, seniors could not get health insurance 
because they were expensive to insure. They were a bad risk. No private 
insurance company would step up in any systematic way to insure them--
unless you were phenomenally wealthy and you could probably pay for all 
of your medical care out of your wealth. For the average senior, in 
1961, 1962 and 1963, you were not getting private insurance. That is 
why we stepped in. That hasn't changed.
  Seniors today are still, on average, much more expensive to insure 
than younger people because of the nature of life and nature of disease 
and morbidity--all of this. This legislative proposal totally ignores 
that 35 years of history and the experience we all have.
  Again, going back to our experience, it was not uncommon when I was a 
youngster, teenager or younger, to visit homes of my friends and there 
was at least one grandparent there--a grandmother or grandfather. Why? 
Because their health needs required somebody to care for them. It was 
the families, the 40-year-olds, 35-year-olds. Much of that changed in 
1965 because now seniors had the ability to obtain health care 
coverage.
  This whole system is being threatened by premium support, which will 
incentivize private insurers to come in and attract and subscribe the 
youngest healthiest seniors, leaving the traditional Medicare Program 
with the

[[Page 29649]]

older, most expensive population to cover; and, again, all of this is 
leading into that trap in which cost containment will tell the Federal 
Government, oh, stop, we are paying too much money for seniors.
  I believe this is, again, a profoundly poor concept, and it is 
further complicated and exacerbated by another aspect. We are creating 
a $12 billion stabilization fund, again, for private insurers. We are 
taking Medicare money, the money which our seniors--in fact, all 
Americans believe we are earmarking for senior health care and setting 
up a fund--a slush fund--that will provide further incentives to 
private health care purveyors and further unbalance the playing field 
between traditional Medicare and these new private plans.
  We could have done much with this stabilization fund. We could have 
lowered the so-called donut hole when benefits expire for some seniors 
and then renew themselves after several thousand dollars of additional 
expenses. We could have closed that gap. We could have done a lot of 
creative, innovative things that not only would have assisted seniors 
but would also make a real concerted effort to control the cost of the 
program in a principled way. Yet we didn't do that.
  We have created a situation in which, again, the deck has been 
stacked against traditional Medicare and against, I believe, the logic 
of insurance of aggregating as many risks as possible across regions, 
across the country, across ages from the youngest seniors to the oldest 
seniors, the healthiest seniors to the ones who are sick and frail.
  We are also going to hit and create a situation where we will give 
incentives to these companies to fragment the Medicare system. Frankly, 
if insuring seniors was a profitable area of endeavor, 35 years ago we 
wouldn't have had to step in and create Medicare. If it was a 
profitable endeavor today, we wouldn't have to have a $12 billion 
stabilization fund, and we wouldn't have to have premium support.
  We will spend more money than we have to and we will get less for our 
money and seniors will get less in terms of the benefits, not just 
pharmaceutical benefits but the overall Medicare Program. I emphasize 
again, this is not just trying to tailor and contain the cost of 
pharmaceuticals. This applies across the board.
  Ms. STABENOW. Madam President, will my friend yield for a question?
  Mr. REED. Yes.
  Ms. STABENOW. I thank my friend from Rhode Island for laying out in a 
clear and concise way what our concerns are about this bill.
  Madam President, wouldn't the Senator agree that our first goal 
should be to do no harm, rather than the items he is talking about? 
That the first goal of any plan to provide Medicare prescription drug 
coverage should be to make sure people are paying less and getting more 
coverage and getting more help? This bill doesn't do that, does it?
  Mr. REED. I concur with my colleague from Michigan. Our first goal 
should have been to do what we told seniors for years we were going to 
do: help them buy pharmaceuticals, not change, undermine Medicare but 
to help them buy pharmaceuticals.
  We could have applied all that $400 billion to do that. We didn't. We 
have stabilization funds to encourage private health concerns to 
compete with the traditional Medicare Program; we have health savings 
accounts, with billions of dollars there to encourage the insurance 
industry to sell health care plans to individuals. All of that very 
scarce money could have been used simply to say how much can we help 
the seniors to buy drugs and maintain our program. I agree with the 
Senator.
  Ms. STABENOW. If I may ask another question, what the Senator is 
saying is there are billions of dollars being used in this plan on 
items that have nothing to do with helping pay for medicine, helping 
people get their care; is that right? The Senator is talking about 
billions of dollars going to HMOs, to insurance companies to help them 
compete against Medicare, which costs less, and that money could be 
used to buy medicine for people?
  Mr. REED. The Senator from Michigan is absolutely right. I said this 
before. This represents, in some respects, the greatest bait and switch 
in the history of the Republic. Seniors think they are getting 
pharmaceutical protections, and they will wake up and discover the 
Medicare Program they thought was there forever has been changed 
irrevocably.
  Indeed, even the pharmaceutical protection is not that extensive, 
comprehensive, or effective. The Senator's point about the cost of 
traditional Medicare is well taken. We already have experience with 
this. We have had the Medicare+Choice plans. These are private plans 
that are not able to provide a benefit as cheaply as traditional 
Medicare.
  The 2003 Medicare trustees report estimated that reimbursement from 
managed care enrollees would exceed traditional Medicare costs. We are 
reimbursing HMOs more to care for their Medicare beneficiaries than we 
are through the traditional Medicare Program. We know that. That is 
2003. That is the report of the trustees of the Medicare system. Yet we 
are still under this illusion that if we pour more money into the 
private HMOs through slush funds, through premium support--through all 
sorts of mechanisms--somehow we will change the reality.
  We are not going to change the reality. The reality is that this 
general Medicare Program is efficient, is effective, it has stood the 
test of almost 40 years, and it is a system that I think every American 
sees as being effective, efficient, and, indeed, an important part of 
their family's well-being in the future as it has been in the past.
  Ms. STABENOW. If I may continue with questions, when the Senator is 
saying this shifts money to HMOs and to insurance companies, I assume--
at least my understanding of HMOs is--you don't choose your own doctor. 
We are talking about seniors who now can go anywhere. I know in 
Michigan, they can go from the Upper Peninsula over to Detroit over to 
the west coast and the cost is the same. They can choose their doctor 
and go to the hospital they want.
  Madam President, is it true that what Senator Reed is talking about 
will take away people's ability to choose their own doctor and 
hospital?
  Mr. REED. The Senator from Michigan is right again. Not only do you 
not have the ability to choose your own doctor, but sometimes it is the 
HMO that chooses you. We had the experience in Rhode Island of seniors 
signed up for HMO programs and the HMO said: We are not making enough 
money; we are leaving. They left the seniors high and dry. They found 
care by going back to the general Medicare system or another HMO. They 
found coverage, of course.
  This is a one-way street. It is not a two-way street. You get to do 
what they tell you you can do. That is the way they make money. It is a 
profit-making enterprise. Frankly, there is nothing wrong with that, 
and if we were the managers of these companies, we might be pursuing 
the same techniques of carefully selecting our beneficiaries and 
questioning the doctors in every instance about whether this procedure 
is right or wrong. In fact, the greatest criticism of HMOs comes not 
from seniors but doctors. They can't abide working with them. It is 
accountants, not health care people, who are making the decisions.
  We are setting this system up again. It is unbelievable, in some 
respects, that having had the experience of Medicare+Choice, having had 
the experience of a private insurance system that wouldn't touch a 
senior in 1965, and having the success of Medicare, we are entertaining 
these notions as if this is a good change, this is a good thing. We 
haven't learned.
  This represents a triumph of aspirations or hope over the facts and 
reality of 30-plus years of experience and of the dynamics of the 
marketplace.
  I thank the Senator from Michigan for her intervention because it has 
been useful in clarifying the discussion.
  There is one other area that concerns me, and that is the notion of 
means testing. In the doublespeak of this bill, it is not means 
testing, it is income relating. It is like cost containment and

[[Page 29650]]

premium support. It is income relating. It is really means testing.
  What it does is it begins to lower the effective subsidy that the 
Federal Government provides the seniors based on their income. Frankly, 
starting off at a level of $80,000--you may say, well, maybe it is not 
too bad; maybe people that comfortable should be able to pay.
  The point is, it begins to add another way in which we will segregate 
participants in the Medicare system because if your subsidy falls from 
75 percent, which is what it is roughly today, down to 20 percent, that 
will be wealthy Americans, if this plan goes through, what it does is 
start raising questions: Why should I be in Medicare?
  If I have to pay copays and I have to do this and I only get small 
support, why should I be in Medicare? A multiple class of health care 
is being created in this country. For all these reasons, I hope we have 
time to debate. I hope we have time to look at the legislation very 
carefully and not in the last few moments vote because time ran out.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Madam President, I ask unanimous consent that Senator 
Clinton be allowed to speak following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. STABENOW. I first want to again commend my friend from Rhode 
Island for his comments in laying out the concerns that many of us 
have. In thinking about this and thinking about my coming to the 
Senate, I came with a very important goal. One of my top priorities has 
been to help create a real comprehensive Medicare prescription drug 
benefit. Part 2 of that is to lower prices for everyone, for our 
seniors, so that the Medicare dollars, those precious dollars, can be 
stretched farther, but also for our businesses who are paying for very 
high health care costs.
  We know about half of that is due to the explosion of prescription 
drug prices. So for businesses, for workers, for families, we have, I 
believe, an obligation to do everything we can to create more 
competition and more accountability to bring prices down. I came to the 
Senate with those two goals for health care for our seniors, as well as 
lowering prices for everyone.
  Even though the bill that passed the Senate was not at all what I 
would personally have written, it had good bipartisan give-and-take. We 
passed a bill that I was willing to support in the Senate. Even though 
I believed it was just a first step, there was much more that could be 
done. We did include a strong bill to close patent loopholes and allow 
unadvertised brands, called generic brands, on the marketplace for 
better competition. We did create a low-income benefit that I believe 
was very good for seniors and a number of other provisions, helping our 
rural health providers, as well as all of our doctors and hospitals and 
other providers.
  Now we are in a situation where, unfortunately, instead of the 
bipartisan effort that we came forward with in the Senate, we have seen 
a plan put forward primarily by only one side, and, unfortunately, one 
that goes way beyond the scope of any bill dealing with prescription 
drugs.
  On the positive side, it does have positive provisions that can be 
pulled out if we choose not to move forward with this bill. I would 
hope in a bipartisan way we could pull out providing for rural health, 
pull out provisions for our physicians who continue to be cut and 
threatened with cuts as they are providing care for our hospitals and 
home health and nursing homes. We can do that if we want to. We can 
pull that out and pass that. It is very positive.
  When we look more broadly at this bill, it is not a comprehensive 
prescription benefit under Medicare. It is not even a good first step. 
As my colleague from Rhode Island said, it feels like bait and switch. 
We are talking about prescription drug coverage, and we are going to 
end up dismantling Medicare. We started out talking about: How do we 
help seniors pay for their medicine? How do we make sure folks are not 
choosing between food and medicine and paying the utility bill? How do 
we make sure we do not continue to have the explosion in prescription 
drug pricing that is affecting every part of our economy and every 
family in this country? That is what we started out to do.
  Now we find ourselves in a situation where the fight that started to 
add a drug benefit to Medicare is turning into a fight to save Medicare 
as we know it, to save it as a universal health care benefit, the only 
one we have in this country.
  I view this as a matter of values and priorities. I am very proud of 
the fact that in 1965, this Congress and the President of the United 
States came together and decided that we, as Americans, were going to 
say to those 65 and older and the disabled in this country that health 
care would be there for them; regardless of where they live, regardless 
of their situation, health care would be for them.
  Now, what has happened? Well, we have seen the quality of life 
improve for older Americans. We have seen people live longer as a 
result of the benefits of Medicare. Those over the age of 85 are the 
fastest growing part of the older generation. Why? Because Medicare has 
made sure that health care is available, the doctor is available, the 
hospital is available, and so on. This is not a bad thing. This is a 
good thing. This is a great American success story that we should be 
celebrating together, not beginning the process of unraveling the 
promise of Medicare.
  When I explain to folks what is before us, they look at me, frankly, 
like I am crazy. When we say, well, we have a deal for you; a quarter 
of Medicare beneficiaries would pay more for their prescription drugs 
under this plan, not less, not even the same but more. That is because 
6 million seniors who are the poorest of the poor, who are on Medicaid, 
6 million seniors who really are choosing between their food and their 
medicine would end up paying more under this plan than they would 
staying under Medicaid.
  Another issue of particular concern to my State, up to 3 million 
seniors could lose their current coverage. In Michigan, I have a whole 
lot of folks who have worked hard their whole life, sometimes giving up 
a pay raise to get good health care and to get a good pension. In fact, 
in my State of Michigan, it is estimated that 138,810 Medicare 
beneficiaries would lose their retiree health benefits under this plan. 
How in the world can that be a good idea? How in the world can we say 
to people, ``We have a deal for you; you are going to lose your 
coverage as a result of this plan''? We started out saying we are going 
to put together a voluntary prescription drug benefit under Medicare, 
and now we are seeing a situation where people would actually lose 
benefits.
  In Michigan, 183,200 Medicaid beneficiaries, the poorest of the poor 
seniors, will pay more for their prescription drugs that they need, and 
90,000 fewer seniors in Michigan will qualify for low-income 
protections--90,000 fewer than in the Senate bill that we worked on, on 
a bipartisan basis, because of the assets test and the lower qualifying 
income levels.
  I see my friend from Iowa, who I know has worked very hard on this 
legislation and who led the effort in the Senate that resulted in a 
bill that many of us embraced because it was a true, honest, bipartisan 
effort. I thank him again for that. This bill does not reflect what we 
did in the Senate. It does not reflect what we did on a bipartisan 
basis.
  Unfortunately, even though hours and hours have been spent on this 
issue, we find ourselves in a situation where too many of the folks we 
represent will be worse off than they are now. That is of deep concern 
to me.
  I am also very concerned that we are not seeing the competition put 
into this bill that would lower prices. When we talk about bringing 
prescription drugs back from Canada in particular, which is right next 
to my State of Michigan, that is something near and dear to me and the 
people I represent. It takes only 5 minutes to cross a bridge or a 
tunnel to go to Canada to bring back prescription drugs. Many of them 
are made in the United States. In

[[Page 29651]]

fact, most of them are made in the United States, sold in Canada for 
50, 60, 70 percent less, and then brought back.
  In some cases they are prescription drugs that are made by American 
companies but actually manufactured in other countries--Lipitor, 
manufactured in Ireland; Viagra, manufactured in Ireland. They have a 
way to safely bring those back to the United States, working with the 
FDA and the companies. With a closed supply chain, they can do that.
  There is absolutely no reason we cannot do that through our licensed 
pharmacists in the local drugstore or the licensed pharmacists in the 
hospital. There is no reason we cannot do that if we want to do that. 
It is just as safe. It can be crafted to be exactly the same, and just 
as safe, by allowing our local pharmacists to bring back these lower 
priced drugs to the local pharmacy rather than doing what is happening 
today, which is too many folks getting in a car or a bus and going to 
Canada.
  I do have concerns about folks going through the Internet more and 
more, or mail order where they are not working with a physician, not 
working with a pharmacist, and don't know the interactions of their 
drugs and may not know, in fact, where those drugs are coming from. 
That is something we ought to be tackling as well from a safety 
standpoint, but that is different from reimportation. That is different 
than giving licensed pharmacists the ability to do business with a 
licensed pharmacist in other countries and, in particular, Canada where 
their system is so much like ours in terms of safety.
  I am very concerned that that provision is not in this bill, despite 
a heroic effort among House Members, a bipartisan effort to pass a bill 
that would do what needed to be done to create that competition.
  Also, I am very concerned that we have a lessened provision in here 
relating to closing patents and allowing more generic drugs to compete 
on the market because those things would really bring prices down.
  Although we have yet to see everything in final form, it is my 
understanding there is actually language that doesn't allow Medicare to 
bulk purchase, to negotiate on behalf of all of our 39 million seniors 
to get a big group discount to lower prices.
  Essentially, on top of our poorest seniors paying more, those with 
coverage possibly losing their coverage, we are being told that our 
precious tax dollars and Medicare dollars are going to be forced to pay 
the highest prices for prescription drugs. In fact, because our 
uninsured pay the highest prices in the world, I think it is fair to 
say we would be paying the highest prices in the world for Medicare 
prescription drugs. That means the dollars are spread even thinner than 
they would be. In order for us to really spread these precious dollars 
as far as they can be spread, we need to bring prices down. This bill 
not only does not allow competition, it stops Medicare from group 
purchasing in order to bring the price down.
  Thank goodness we don't include that language for the VA and our 
veterans. In the VA, we negotiate for our veterans for prescription 
drug coverage. We don't pay retail as the Federal Government. We don't 
pay retail. We get somewhere between a 30 percent and a 40 percent 
discount.
  That is exactly what the pharmaceutical industry doesn't want to 
happen under Medicare, which is exactly why there is no competition in 
here. There is no ability to group purchase in terms of overall 
Medicare leverage.
  This is a bill celebrated by the large pharmaceutical companies, 
because they know they are going to get a whole new group of folks, 
their customers, who will be locked into the highest possible prices.
  I know they have a reason to celebrate. I understand. There are six 
drug company lobbyists--probably more with this bill but at least six--
to every one Senator. They must be celebrating. But I know the seniors 
of this country and the disabled, when they see what is really 
happening--unfortunately, it doesn't take effect until 2006 so they 
won't really be able to see what is happening until then--but once they 
see it, they are not going to be celebrating. They are, in fact, going 
to be very angry.
  We can do better than this. We have to do better than this. There is 
no reason we can't come together, as we did when this bill was before 
the Senate, and work out something that makes sense. People are 
counting on us to do that. They are trusting us to do that.
  Unfortunately, what is in front of us is much more about making sure 
we are protecting special interests than the people's interests. This 
is much more about HMOs and insurance companies and pharmaceutical 
companies than what seniors are going to be doing tonight when they 
decide if they are going to be able to have dinner or they are going to 
have to wait because they have to buy the medicine tomorrow.
  We can do better. I hope we will. If what comes before us is what we 
have heard and what I have described tonight, I will strongly oppose it 
and do everything I possibly can to join others to oppose this and send 
this back to the drawing board.
  I saw some numbers this morning of a poll done in the last couple of 
days of those 55 and older, describing this plan. It was interesting to 
me, of those polled, 65 percent who were members of AARP said: Go back 
and go to work and get it right. Don't pass this.
  I agree with those 65 percent of the people. I know they reflect the 
people I represent in Michigan. I urge we go back to work and get it 
right.
  The PRESIDING OFFICER (Mr. Alexander). Under the previous order, the 
Senator from New York is recognized.
  Mrs. CLINTON. Mr. President, this is a day of considerable activity 
around the Senate because we have two significant pieces of legislation 
that are drawing the attention of Members who come to this floor to 
express their opinions. It is hard to know where to start. There are 
significant problems and issues with both the Energy bill and the 
proposed Medicare bill. But because they have only recently been 
provided--with the Energy bill only in the last 24 to 48 hours finally 
being made available; with the Medicare bill still not being available 
in its full form--it is difficult to know what to say because, although 
we have the outlines of legislation, we don't have the full details, 
and we certainly don't have adequate time to digest and analyze these 
important matters.
  So, I am sure that, like others, I am somewhat bewildered by the rush 
to deal with these two bills, to force action before the Thanksgiving 
holiday on such grave matters before our country.
  I want to say just a few words about the Energy bill, and then I want 
to say a few words about the Medicare bill, because I think it is 
important that the country understand what is at stake with both of 
these significant changes.
  With respect to the Energy bill, I am strongly opposed to it. I think 
it is bad for my State of New York and I think it is bad for our entire 
Nation. Yet I am very disappointed to find myself in this position 
where I feel compelled to oppose something called an Energy bill. There 
are provisions in this bill that are good, ones that I have worked on 
and have supported and am very pleased that they made their way into 
the final product.
  Of course, after the August blackout, I wanted to do everything I 
could in my power to ensure that New Yorkers never had to go through 
anything like that again. I thought certainly in the face of a massive 
blackout that this body and our friends on the other side of Capitol 
Hill would rally together to take appropriate steps to increase the 
reliability of our electricity transmission and distribution system. 
What could be more obvious? The lights went out, and they went out 
because of failures and problems within that system.
  Unfortunately, the Energy conference report did not get that job 
done, which to me is job one. I know the bill's proponents point to the 
fact that it includes mandatory enforceable reliability standards. I 
agree. Reliability rules are important. There should be mandatory rules 
with penalties, but those rules are not terribly meaningful if the 
entities that operate and manage the transmission system

[[Page 29652]]

are unable to plan for and respond to crises. For that, you need a 
transmission system to be operated on a regional basis so responses can 
be coordinated on a regional basis and connected up to a national grid. 
At the very least, you need regional transmission organization.
  What have we found out today? There has been a report issued about 
what happened to cause the blackout. Although details are not yet fully 
available, we know there were a number of causes for what happened to 
us on August 14. The fact is, no one appears in charge of the 
sprawling, heavily loaded, and troubled part of the transmission grid 
running around Lake Erie. A portion of the Midwestern grid centered in 
Ohio has long worried industry regulators.
  The Energy bill that passed the House yesterday and which is now 
before us would create operating rules to lessen the risk of blackouts, 
but it does not overcome that region's fragmented line of authority 
where control is shared by 23 different power and transmission 
companies. The bill before us prevents the Federal Energy Regulatory 
Commission from setting up regional transmission organizations--so-
called RTOs--that can effectively coordinate transmission on a regional 
basis.
  If you are supporting this bill because you think it will prevent 
future blackouts, you had better take another look at the bill.
  I start with this point because it is absolutely critical to my 
constituents and because there has been a lot of talk about how we had 
to move this bill because of the blackout. But how ironic it is that we 
move a bill which does very little to solve the problems that have now 
been analyzed and pinpointed as being at the root of what happened to 
us in August.
  That is just one of many problems with the bill. I join many of my 
colleagues in expressing dismay about the MTBE provision in the 
legislation.
  First, the bill provides a retroactive liability waiver for MTBE 
producers. This provision turns the so-called polluter-pay principle on 
its head. It basically says to communities from New York to California: 
Guess what; we may have contaminated your groundwater, we may have 
contaminated your wells, and we are not going to help you clean it up.
  I heard some of my friends on the other side say: Wait a minute; it 
doesn't remove liability from people who negligently used MTBE. The 
fact is, there is no good use for MTBE. It is a contaminant. It 
pollutes water. Whether somebody poured it in fast or poured it in 
slow, the result is the same.
  We don't know the full cost of these cleanups. I have read estimates 
that it could be on the order of $29 billion nationwide. In New York, 
we are coming to grips with that kind of extraordinary cost, especially 
in light of the budget problems that we face.
  Paul Granger, superintendent of the Plainview, NY, Water District, 
has provided estimates to my office about contamination on Long Island, 
one part of our State. But it is a beautiful part that has an 
underground water aquifer from which we draw water for Long Island. Mr. 
Granger estimates that testing the 130 supply wells known to be 
contaminated by MTBE will cost between $990 million to $1.4 billion. If 
you divide the 3.3 million Long Island population into that cost range, 
the MTBE drinking water cleanup costs will range from $118 to $315 per 
person. The cost impact for a typical family of four trying to make 
ends meet would be from $472 to $1,206 per family.
  With respect to the Plainview Water District, Mr. Granger informs me 
that in the event that MTBE wellhead treatment is required at all of 
its facilities, the average monthly cost for water will jump by 49 
percent.
  As far as I can tell, this is another one of these unfunded mandates 
we like to pass around here. You have problems with water contamination 
directly caused by a contaminant that was manufactured by large 
conglomerates. They have deep pockets, and they could at least 
participate or contribute to helping to clean up water systems on Long 
Island, across New York, and across our country.
  Well, you are out of luck. Is that fair? I don't think it is fair. I 
don't think it is fair to the people of Plainview, NY. But it is fair 
if you consider it along those terms for the MTBE producers.
  Apparently, that is all that matters to the people who put this bill 
together. Maybe they don't have this problem in their States, although 
I have looked at the numbers. It looks as if all but 8 or 10 States are 
affected by MTBE. The costs associated with cleanup--where is money 
going to come from? Is this body going to pass on the billions and 
billions of dollars that are going to be needed to clean up our water 
systems across our country?
  I can't imagine under our current budget situation that is a likely 
possibility. Therefore, what are we going to have happen? Once again, 
the taxes on local people will rise--again, another unfunded mandate 
just like special education, just like No Child Left Behind, and so 
much else that we passed in this body and then let somebody else pay 
for it.
  New York City, which obviously has a very significant water issue, 
had been taking action to try to get some help in paying the bills and 
had sued the MTBE producers. Under this bill, their lawsuits are going 
to be thrown out of court.
  I find it hard to understand why local governments aren't going to be 
permitted to protect themselves and to get the resources from the 
people who profited from producing and selling MTBE. I thought that is 
the way the system worked. Somebody said it is the trial lawyers. I 
don't think so. Mr. Granger in Plainview, NY, and the city of New York 
are trying to protect their water supply. Yes, they may have to go to 
court to do that. Why should they be prohibited in this bill from doing 
so?
  As bad as the MTBE liability waiver is, the bill doesn't stop there 
when it comes to the MTBE producers. Unbelievably, the bill provides $2 
billion in grants to MTBE producers. What about grants for the water 
systems of our country? What about lending a helping hand to Plainview, 
NY, and all the other places in my State that are looking at tens of 
millions of dollars to clean up their water supply?
  I can't understand how anybody can go home from this body and go back 
to wherever they represent and look into the eyes of their fellow 
citizens and say: Not only did we tell your mayor and your city council 
and your county leaders they couldn't sue, we are going to give $2 
billion to the folks who polluted your water but not a penny for you.
  I wasn't on that side of this argument. Nevertheless, that is what is 
in this bill.
  There are many other problems in this bill. The numerous rollbacks of 
environmental and health protections deeply concern me.
  I hope we will be able to revisit those and try to figure out ways to 
avoid turning the clock back on making our air cleaner, on helping 
people avoid the ill effects of pollution and contaminants in their 
emissions.
  But there is so much else in this bill that, unfortunately, I believe 
will set us back. It is a shame because there are many ways this could 
have turned out differently, that we could have had the good provisions 
without so many of the egregious ones being put into this legislation.
  I will now turn to the other issue we are confronting in the Senate. 
I don't see how we can deal with a Medicare bill of this significance 
at this time when, so far as my office knows, we still do not have the 
final bill as I came to the floor. We will have a lot of explaining to 
do to our constituents.
  Every Member hoped we could get a bill to provide a prescription drug 
benefit for our seniors. They need it and they deserve it. I wish I 
could support this bill. Analyzing what we are able to find out and 
what the likely impacts will be leads me to conclude that not only will 
this bill not deliver on the promise of a drug benefit for our seniors 
but it will mean the slow, but steady unraveling of the Medicare 
system.
  Let's look at some of the people who will be directly affected by 
this 1,100-

[[Page 29653]]

page bill. I cannot avoid mentioning this is a long bill. I am not sure 
anyone has read it yet--maybe some staff person in the basement has 
read it all--but it is 1,100 pages. I remember another long bill 10 
years ago, a bill to change the whole health care system, not just 
tinkering with Medicare and trying to provide a benefit.
  A lot of our seniors are asking: What does this mean? Who can tell me 
what is in it? How will it affect me? On an individual level, that is 
an impossible question to answer. We do not know who is a winner or 
loser. My office is being inundated with calls from constituents, 
asking: I am a senior in New York City living on a small pension; what 
does this do for me? Or a widow in Buffalo, with high drug benefits: 
What does this do for me? We do not know yet.
  Here is what we do know. At first glance, there are a number of 
groups who definitely lose under this legislation. The numbers in the 
groups add up to about 25 percent of all Medicare recipients, 10 
million or so. This bill causes retirees to lose benefits they 
currently have. At least 2.2 million retirees will lose under this deal 
and over half of them have incomes below $30,000. In New York, over 
200,000 Medicare beneficiaries are likely to lose their retirement 
benefits.
  As a result, my phones are ringing off the hook over this. People are 
saying: I have good benefits; I do not want this if it will take away 
the good benefits.
  I have to say, honestly, based on my reading, the assessment on the 
numbers who will lose, I may even be a little conservative. 
Nevertheless, there will be a loss.
  We could have done more to avoid having 2.2 million lose, but the 
conferees chose instead to spend $12 billion on a slush fund for 
private insurers and $6.8 billion on tax breaks that will undermine 
insurance coverage even beyond Medicare.
  It is fair to say this bill threatens benefits that people already 
receive from their employers. There is no argument it is going to take 
that reality and turn it into something other than what it is. It is a 
bitter pill to swallow.
  This bill also threatens to reduce drug coverage for the 6 million 
people who are eligible for both Medicare and Medicaid. I have spoken 
about the so-called dual eligibles before because they are the people 
about whom I am most concerned. They are the lowest-income, sickest 
Medicare beneficiaries. Many rely on Medicaid right now for drugs 
because Medicare does not cover drugs. This bill bars Medicaid from 
providing drugs not covered by the new Medicare plan. That is a 
departure from the practice for all other Medicare benefit gaps. This 
will affect nursing home residents, people with disabilities, and the 
truly indigent nationwide. We estimate it will affect 440,000 in New 
York alone.
  If we look at the New Yorkers who are eligible for both Medicaid and 
Medicare, right now they can get access to any drug they need and they 
can access most any pharmacy. This bill will increase their copays, 
limit their choice of drugs, and restrict the pharmacy network.
  HIV/AIDS patients are particularly affected since this bill only 
requires coverage of two drugs in any class. HIV/AIDS patients need 
multidrug cocktails that may require more than two such drugs and often 
require very specific medicines that are prescribed for their 
condition. Some drugs they might take or have taken for a period of 
time could eventually encounter resistance within their bodies. For 
those patients, this provision on dual eligibles does a grave 
injustice.
  The millions who currently receive coverage through State 
prescription drug assistance programs, such as the one we have in New 
York called EPIC, are also at risk. In New York, over 400,000 seniors, 
nearly a quarter of our Medicare beneficiaries, rely on EPIC, which 
does not have a formulary and often offers better coverage than what a 
senior will be able to get under this bill. The compromise in the bill 
puts seniors in EPIC at risk of a new formulary, higher copays than 
they have now, and places limitations on the pharmacies they can use. 
It will force the New York Legislature to change the law and the design 
of EPIC, assuming they even want to continue it.
  I have also asked that seniors who will either have to disenroll from 
the current EPIC plan or will have to enroll in two plans to continue 
to qualify for drug coverage be given a grace period so they are not 
penalized if, in the confusion and disruption of this transition, they 
do not understand what they have to do to continue to get whatever 
State program is available because they have to sign up for a new 
Medicare benefit program to continue with EPIC.
  I recently heard from the people who are finalizing the bill that the 
new formularies, limitations on pharmacies, and higher copays will not 
only affect seniors in State prescription programs but also veterans 
who depend on the VA and members of the military in TRICARE, many of 
whom currently pay very low and in some cases zero copays. Again, the 
millions who have coverage throughout these programs will be worse off 
than they are now.
  What about the issue of premium support? For those 6 million seniors 
affected by the premium support experimental demonstration, overall 
Medicare premiums will increase yet again; this time, as the price of 
privatization.
  MedPAC has studied this issue and found that private plans cherry-
pick. That means they pick the healthiest seniors to be in their plans. 
That is how they make a profit. If you are insuring the healthiest 
people, you do not have to pay as much money as if you insure people 
who are not so healthy. Therefore, they try to attract the healthiest 
beneficiaries. That way, they get a big payment for those healthy 
beneficiaries and they, frankly, do not have to pay much out when it 
comes to beneficiaries needs.
  The GAO has said the population is so much healthier that the 
Medicare+Choice plans are now overpaid by 19 percent when one considers 
the health condition of their beneficiaries.
  If fee-for-service has to compete and it is the only plan willing to 
continue to serve the sickest and costliest patients, anyone who wishes 
to keep their regular fee-for-service Medicare will see their cost 
rise, probably up 5 percent each year. But who knows how high that 
percentage will go in the future? Ultimately, the 6 million seniors 
across the country who are going to be put in the demonstration 
experiment will pay more just to maintain their Medicare benefit.
  This is not just an academic exercise for me because New York is 
likely to be one of the States with residents chosen for this 
experiment. Our seniors will be used as guinea pigs, so to speak, in 
the rush to try to in some way prove that Medicare, which has the most 
cost-effective delivery system, which has provided a guaranteed benefit 
that is the same across the country now for nearly 40 years, is somehow 
inadequate and unable to really deliver the goods. So we are going to 
see what happens when over 500,000 New York seniors who reside in areas 
that could be chosen for premium support are thrown into that mix, and 
told that you are just going to have to pay those higher prices, and 
just shovel that money out the door to the HMOs and other health 
insurers that are going to be standing there with their hands out.
  But the bill does not just create a radical scheme for Medicare; it 
really does take aim at our whole system of insurance by the inclusion 
of these so-called HSAs. They used to be called MSAs, medical savings 
accounts; so now I guess they are health savings accounts. The new name 
does not change the fundamental problems with these proposals.
  By promoting these accounts, these provisions will allow wealthy and 
healthy seniors to get tax benefits. But it would also mean increased 
premiums of as much as 60 percent for those who wish to keep their 
current private insurance.
  To arm the enemies of Medicare, there is a so-called cost containment 
provision which designates an arbitrary cap on Medicare. We are bound 
to hit that cap as the baby boomers age. Once we hit it, that 
guarantees that current Medicare benefits will be on the chopping block 
year after year. So

[[Page 29654]]

I have to send out a big warning to everybody on Medicare, but also to 
those like me who are not that far away from Medicare, that we are 
looking at the dismantling of this program, and we are moving back 
toward a survival of the richest and the fittest.
  Now, considering all those harmed by the bill, you would think we 
would be getting a generous drug benefit out of all of this. Well, in 
fact, we do not. Many seniors will be paying more out of pocket for 
drugs under the skimpy benefit in this proposal than they are now 
without any so-called drug benefit at all.
  Every single senior in this country will pay more out of pocket than 
they do now for doctor services in 2005. That means that before the 
drug benefit even starts, seniors will be hit with increased cost-
sharing. Seniors can expect a 10- increase in their Part B deductible 
right away, and yearly increases after that for the first time in 
history. Those increases are pegged to grow at a rate faster than 
seniors' Social Security checks.
  In addition, the drug premium may be $35 a month, on average, but it 
increases so quickly that seniors will be left paying more and more for 
little additional benefit.
  As we know, this bill creates a new insurance structure where seniors 
will continue to pay premiums for part of the year even though they are 
receiving zero benefit at the same time. Now, I don't know. I don't 
think we have ever passed an insurance plan in this country where you 
are told you have to pay all year but there are going to be a few 
months in the year that you don't get sick, don't get hurt, don't have 
an accident because you will be out of luck.
  There is not an insurance commissioner in this country who would 
gladly allow such an insurance policy to be marketed in their State. 
Yet here we are. Seniors will pay premiums, even in the so-called gap 
months, when they have no benefits.
  Then the $35 premium goes up to $40, and then nearly doubles, 
reaching $60 by 2013. I think that is a burden for seniors if the 
benefit they return is not guaranteed all year, every year, and if it, 
in and of itself, may not even meet the cost they put into the system.
  I have heard from some analysts that the break-even point for seniors 
in this bill is $835. Now, 40 percent of seniors spend less than that 
on drugs each year. According to the analysis I was given, this bill 
will actually represent a net loss to 40 percent of our seniors if they 
join. That is a lot of seniors. We are talking about 16 million or so. 
They will end up paying more in costs in premiums than they receive in 
returns. So when all is said and done, this is a bill that decreases 
some people's benefits, eliminates other people's benefits, and costs 
more to many.
  I think history has demonstrated the political repercussions of such 
experiments that go right to the heart of what people value the most; 
namely, their health.
  But now, even though there are many losers in this bill, I want to be 
fair. There are also some winners. They are many industries and some 
individuals. But there are winners. A recent study found this bill will 
give drug companies a $139 billion windfall. Because there is no cost 
containment in the bill, the drug companies are assured of their 
profits.
  Furthermore, the health plans--already overpaid 19 percent compared 
to what Medicare is paying for seniors in traditional Medicare--will 
receive another 7 percent on top of that in addition to the $12 billion 
slush fund in this bill.
  Now, there may be some help in this bill for some of the 12 million 
or so Medicare beneficiaries without any kind of drug coverage--not 
through Medicaid, not through Medicare+Choice, not through the VA, not 
through TRICARE. They simply do not have it. Maybe some among those 12 
million might be winners but only if they make it through a thicket of 
confusion and hit a moving target.
  Because, let's face it, this is a very complicated bill. It is going 
to be very complicated to implement. I remember hearing a lot of 
complaints about that bill of 1,300 pages, the Health Security Act back 
in 1994, and that dealt with the entire health care system, not just 
with seniors.
  Now, all signs show this bill is not seeking to add prescription 
drugs; it is seeking to change the whole health care system. I have to 
give them credit, they got it to 200 pages less, so that is some 
accomplishment.
  I think we ought to look at what is going to be facing seniors as 
they try to make decisions about their health care.
  What I have done is to take the tales of two seniors, to look at what 
the differences would be, and what a typical senior would face when 
trying to determine what they could have under this bill.
  The first tale concerns a retired small business owner in New York 
City, an urban senior. Now, this senior has many choices in the first 
year, 2006. He looks at his choices. He has PPOs and HMOs and private 
drug plans and Medicare. He has choices. So he takes a look at his 
choices and decides to stay in traditional Medicare. He picks the 
private, stand-alone drug plan with the lowest premium of $35 a month.
  He gets into that plan.
  Then he discovers, too late, that his drug that he has been taking 
for a few years is not on the private insurer's formulary. So even 
though he has had bad side effects from the drug that is listed, he has 
to go through a lengthy appeals process. Although he eventually wins 
his battle with the private insurer, he has had to pay out of pocket 
for the drug in the interim.
  So suppose what he is suffering from is, let's say, diabetes--a very 
common disease among our seniors. In the process of trying to get on 
the right drug, trying to pay for the drug he has been on, he is locked 
into this plan and he cannot change until the next year.
  Now, let's go to year 2, 2007. So let's say the private drug insurer 
plan the senior was in has dropped out of Medicare, which happens all 
the time because its low premium, the $35 a month premium, could not 
sustain enough profit. But our elderly gentleman does not mind because 
he wanted to switch anyway. He did not want to stay in that drug plan 
because they did not treat him well.
  So he chooses another private drug insurer and he pays a higher 
premium. This time he decides to go with a more expensive premium, 
thinking he is going to get more of what he needs. He pays $50 for drug 
coverage on top of his now $79 Part B premium. But he makes absolutely 
sure his drug for diabetes is on the plan's preferred drug list and he 
can continue to see his doctor.
  During the year, however, the private insurer changes its formulary--
there is no rule that says it cannot--so that his drug gets assigned a 
higher coinsurance amount. Although the plans can change what they 
cover during the year--it can be the old bait and switch: Sign up with 
us. Your drug is on the formulary; and 6 months later, no, it is not--
the senior cannot get out of the plan until the year is up.
  So year 3, our senior does the math. This is a man who has really 
been working on this. He has spent a lot of his waking hours trying to 
figure out this maze of so-called benefits.
  To stay in traditional Medicare, he will pay the monthly premium of 
$83 in 2008, plus at least $50 for prescription drugs, in addition to 
relatively high copayments. The private insurer he was with has dropped 
out. If he joins an HMO, he can pay $75 for base Medicare coverage, 
plus $42 for prescription drug coverage. Now he is up to $192 a year 
extra to stay in regular Medicare, and he has to worry about whether or 
not the private drug plans are going to change on him again as they 
have in the past.
  You could make this even worse because suppose that the HMO plan no 
longer recognizes his doctor, and if he joined he would be stuck again 
for another year. It just goes on and on. I am not looking forward to 
explaining this to my 84-year-old mother. We are going to have to set 
up a whole gigantic bureaucracy of individual case counselors to try to 
explain to seniors what this all adds up to. And this maze, this 
totally confused picture, is what is available in an urban area where 
at least

[[Page 29655]]

there are choices for seniors. Let's look at what happens to a woman 
who lives in upstate New York.
  Let's pick an 85-year-old widow who has had a stroke. She hasn't had 
drug coverage before. She has lived on a Social Security payment and a 
small pension from her late husband. She took regular trips across the 
border to Canada, though, because we are lucky in upstate New York. We 
can just go right across that border, or we used to be able to go right 
across that border. She could afford those drugs because they were a 
lot cheaper, and they were absolutely the same drugs. She takes five 
different drugs on a daily basis.
  In the first year, 2006, no private HMOs or PPOs plan to come to her 
town. She is up in the north country, up near the Adirondack Park. For 
anybody who has been up there, it is really beautiful. It is isolated, 
and it is really rural. She loves living there, and she wouldn't live 
anywhere else.
  Well, she has never had any of these private plans in her community 
before, and she doesn't know what is going to be available to her. So 
two of the new private drug-only plans are offered. One has monthly 
premiums of $60; the other has monthly premiums of $50. The lower 
premium plan has a complicated set of copayments that tends to be 
higher, when you add it all up--assuming somebody helps you figure out 
how to add it all up--than the higher premium plan. But she goes ahead 
and chooses the $50 plan, and she sees some relief. But she calculates 
that with annual drug costs below the catastrophic benefit, she is 
still not getting a very good deal because for her, she is still paying 
about 70 to 80 percent of what she had before.
  Now year 2--and this happens all the time in rural areas, as we 
know--the private plan drops out of Medicare. That is a common 
experience for rural residents. So Medicare must provide a fallback 
plan. This plan seems quite good to our widow. She pays $5 less than 
what she paid in the private plan the previous year, and her 
prescription drug benefits are covered. But year 3 the local papers 
announce that the payment rates for HMOs, which are 30 percent above 
the local cost of traditional Medicare, have finally attracted an HMO 
to the area. Remember, we are pumping all this premium subsidy out 
there. We have billions and billions of dollars to entice folks to come 
to the North Country and other areas.
  Well, this creates a dilemma for our senior because she now has to 
determine with whom she can go and who is going to take best care of 
her because if the HMO comes, maybe it will attract some competition. 
And let's say that another private drug-only insurer shows up. Medicare 
is providing bonuses to private plans who come to the area. So as a 
result, remember, even if it only lasts for just a year, even if it 
doesn't have your drug on the formulary, even if it no longer is 
affordable for you, once you have two competing private insurers, there 
is no fallback plan as an option. So the senior faces the so-called 
choice of monthly premium increases of $24 to stay in traditional 
Medicare or just $1 more per month to join the HMO. Given that this 
difference is $288 a year, it is not even a choice. That would wipe out 
her annual increase in Social Security benefits.
  She feels forced to go into the HMO. She loses her doctor, she loses 
the drug that she needs, and she has to go through an appeal. I can 
guarantee you, there is not going to be a lot of appeals courts in 
isolated areas like the North Country. So it is going to take a while 
even to go through this. Now this 87-year-old woman is having to fight 
for, litigate for, argue for the drug her doctor says she needs, or her 
former doctor, because she can't go to him anymore because there is no 
affordable regular Medicare fallback. So she is stuck with one of these 
two private plans. Here today; gone tomorrow.
  The lesson I draw from this is whether you live in a rural or an 
urban area, your choices are tilted toward enrolling in HMOs and PPOs. 
I think that is a shame.
  Medicare's strength, a reliable system of coverage and 
predictability, will have been replaced by a complex, insured-driven, 
cherry-picking system. There may be some seniors who will be helped 
under this bill. I hope I am healthy enough when I reach that age that 
I am not going to be disadvantaged by whatever we have in place, but I 
find it hard to explain how we could end up with a bill that is so much 
narrower, so much more uncertain than the bill that received a majority 
of votes in the Senate last year, the Graham-Miller-Kennedy bill.
  Among those who might gain under this bill, they are not only small 
in number, they don't even know who they are. I asked seniors this 
morning at a big meeting: Who among you knows for sure that you won't 
get hit by the fine print in the bill? How many of you really believe 
you are winners under this bill? Don't you wonder why nobody is really 
telling you everything you need to know to be an informed citizen, to 
make a decision in your own mind that you can then tell your elected 
officials what you think should be done?
  We are on a course to passing a bill where no senior watching or 
listening to this debate is going to be sure that he or she will be 
helped. We have pushed it past the next election so the full burden of 
trying to figure it out won't really fall on anybody until 2006. And if 
you look at this chart, it is kind of hard to draw any other 
conclusion. If you are a retiree, you would have no idea of knowing 
whether your former employer will keep you or drop you. If you are 
poor, you be poor enough to get coverage under Medicaid. And if you 
are, you may no longer get all the coverage you need for your needs. If 
you are sick, will you be sick enough to be covered under Medicaid, and 
under this bill will Medicaid really cover your particular health care 
needs? If you are in a nursing home, are you going to be really left to 
fend for yourself in a nursing home in a State prohibited from 
providing Medicaid wraparound funding? And your health needs will 
compete with those of children and other needy people. If you are in a 
State prescription drug program, you will pretty likely be a loser as 
well. If you are in the premium support guinea pig category, good luck, 
because I think you will see that you are going to have an amazing 
obstacle course to try to run.
  I must say many of the obstacles confronting our seniors are 
triggered by decisions we have had made for us in this conference that 
was quite small in number and exclusive in membership and came out with 
a product that is going to be very hard to defend. It will be 
particularly hard to defend if we look down the road and we see the 
threats to Medicare on the horizon.
  I have heard colleagues say--and I respect this--that this bill is 
not perfect, but it is all we could get. I understand that perspective. 
There is good and bad in every bill. I don't think since I have been 
here I have voted for a perfect bill or voted against a totally bad 
bill. I understand that perspective. I am grateful this bill does take 
steps to help our rural and small community hospitals to resolve some 
of our teaching hospital issues and to address the absolutely 
compelling physician payment issues. We should be addressing those 
important matters, but not in the context of a bill which will further 
undermine the program providing the capacity for hospitals and doctors 
to provide decent care at an affordable cost.
  This bill has too many flaws for us to go forward. The privatization 
scheme that is tied into this bill, in a box with a big bow saying 
prescription drugs, is one that will make structural changes to this 
program which has been the bedrock of protecting our seniors and 
guaranteeing them the health care they have needed.
  So I hope we can still salvage this bill. I hope we can still try to 
keep faith with our seniors. I think we should postpone dealing with it 
beyond the forced deadline of right before Thanksgiving, so that 
everybody has a chance to read and evaluate it.
  But if we are required to go forward, then I certainly cannot be a 
party to a bill that I think will undermine health care for our 
seniors, fail to provide the benefit that is advertised, and lead to 
the slow and steady unraveling of

[[Page 29656]]

Medicare, which I consider to be one of the great achievements of our 
country in the 20th century.
  On behalf of the hundreds of thousands of seniors I represent, who 
are definitely losers under this bill, I have to respectfully request 
that we go back to the drawing board, that we try once again to do a 
job on a bill that will really help our seniors, and that we not take 
steps that will undermine the guarantee of health care under Medicare.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, is there a time agreement?
  The PRESIDING OFFICER. There is not.
  Mr. SESSIONS. Mr. President, I don't think we are rushing into the 
prescription drug bill, nor are we rushing into the Energy bill. We 
have been wrestling with those bills for an interminable period of 
time--years. They have been up and down and debated and discussed, and 
conferees have worked their hearts out on these bills.
  We are spending, on prescription drugs, an additional $400 billion. I 
don't believe anyone is going to be hurt by this effort. AARP has 
reviewed this bill and they support it. They would like it to spend 
even more, but they are supportive of this bill as a historic effort.
  There is no doubt, with regard to prescription drugs, that there is 
the potential to provide the poor in this country, many of whom this 
very day are choosing between food and drugs that they need for their 
health, with prescription drugs essentially for free, up to 150 percent 
of the federal poverty level. A huge percentage of the seniors in this 
country are going to have access to necessary prescription drugs, 
virtually free, under this bill.
  If there is any problem with it, I suggest that maybe we have done a 
bit too much, that we could have been somewhat more restrained and 
focused less universally on this bill. But conferees debated it and it 
is a bipartisan effort by Democrats and Republicans in both the House 
and the Senate. Now we have a bill and we will have to see how it goes.
  I hope to be able to support it because I told my people in Alabama 
that I wanted the people who could not afford drugs to have them paid 
for. This change does, fundamentally, make sense. At the present time, 
we pay for your surgery, we pay for your heart operations, but we will 
not pay for the drugs that we know will help prevent a heart operation. 
We will not pay for the drugs that could avert the need for a kidney 
transplant, but we will pay for the kidney transplant. It is an odd 
thing.
  I will take a few moments to talk about the MTBE question. It is a 
matter that has become a big point in the debate on the Energy bill. 
Frankly, I think it is a bit overdone. Some senators have said that if 
a company makes a product, the company ought to pay for it if their 
product causes damage. But that is not true. That is not the law in 
America.
  That is not classical American liability law, tort law. As a matter 
of fact, it is an indication that this Congress and this country is 
losing its discipline on what is a legitimate basis for a lawsuit.
  You can say, well, they made MTBE and it got into the water system in 
this community; therefore, the maker of MTBE ought to pay for it. They 
say that is what the law ought to be and they ought to pay.
  Would somebody say Folgers should be responsible if a Folgers brand 
of hot coffee burned somebody in a McDonald's restaurant, or that 
McDonald's should be liable? If somebody takes a can of Campbell's soup 
and smashes a guy on the head with it, is the maker of the can of soup 
liable? Certainly not.
  Let me share a couple of things. After 9/11, we realized we were 
facing a situation in which airlines had suffered a dramatic loss of 
ridership. Somebody woke up and said: Wait a minute, they are going to 
sue the airlines for 9/11. Why? Well, maybe somebody was asleep at the 
switch when a terrorist got by, so we can sue them. They think the 
airlines have a lot of money and they can pay for everybody and 
everybody will make lots of money. We can attach liability to them.
  Congress, in considering that, passed legislation that would 
compensate the victims in New Jersey and their families for $1 million 
or $2 million each. As a consequence of that, they would waive 
liability claims against the company. The airlines' planes were seized, 
commandeered by terrorists. In truth, in the history of America, under 
classical law, the airlines are victims just as much as the owner of 
the Trade Center towers is a victim. We are in a situation in which the 
lawsuits in America, having eroded classical constraints on them, too 
often are successful in suing whoever is standing around--whether they 
have any real liability or not.
  I think about the gun liability question. There are over 60 Senators, 
including Democratic Leader Tom Daschle, who support legislation to 
protect gun manufacturers, under certain circumstances, from liability. 
Why? Because cities and other groups, for political reasons, are suing 
the gun manufacturers because someone used their gun and committed a 
crime with it.
  Well, under the classical rule of law--and I used this defense in one 
case--a person is not responsible for an intervening criminal act. The 
gun manufacturers make a gun that does what it is supposed to do. You 
aim it and point it and a bullet hits something or somebody. That is 
what the gun is supposed to do. The Federal Government passes 
legislation about how and to whom you can sell a gun, under what 
circumstances. They have to sign a statement, and there is a waiting 
period. They have to certify that they are not a drug addict or they 
have not been convicted of a felony. Then they can buy the gun, under 
certain circumstances. States have even more rules, and they comply 
with that. But they want to go further. They want to sue the gun 
manufacturer because somebody took a legal product, sold according to 
Federal law, and used it for a crime. They want to sue the gun 
manufacturer because I guess they think the gun manufacturers have a 
deep pocket of money. That is not what we ought to be about.
  The MTBE was essentially a Government requirement over a decade ago. 
It is an oxygenate. It was produced and it did what we required to be 
done in order to improve air quality in America. The EPA could have 
stopped it if they had wanted to, but they never stopped utilization of 
it. It was encouraged. It was passed by Senator Daschle, who introduced 
an amendment that required it to happen. Everybody knew MTBE would be 
the product utilized more than any other product as an oxygenate to 
meet the environmental regulations.
  So you say, well, if they put it in the water system, they ought to 
be liable. Right, if they put it into the water system, they ought to 
be liable. But if they didn't put it in the water system, they ought 
not to be liable. It is getting into water, but not because it is 
burned in the engines and goes through the environment and settles into 
the water. The argument is that some water aquifers are being polluted 
with MTBE as a result of leaking from tanks and from pipelines and 
matters of that kind.
  It is legitimate, fair, legal theory that if a manufacturer of MTBE 
allowed its pipeline to leak or allowed the storage tanks to leak and 
the chemical got into the water system, then you can sue him. That is 
what we ought to be doing.
  As I understand the language in this bill, it does not prohibit that 
kind of lawsuit. If you allow it to escape negligently into the system, 
then you are liable. That is what classical American law is all about. 
That is what it has always been about. However, it has never been about 
the producer of a substance being liable for pollution if somebody else 
takes it and dumps it into the water system of America. How ridiculous 
can that be? The person who dumped it in the water system is the one 
who ought to be liable and ought to pay.
  As I understand the language in the bill, that is all that it says. 
You have to be the one who was responsible for

[[Page 29657]]

letting it get into the water system. Maybe it is a local gasoline 
distributor who has a bunch of old tanks that leak and that person 
allowed it to get into the water. Is a manufacturer somewhere that 
didn't have any contact with this company liable for the leak? 
Certainly not. If we have any legal discipline left in this country, 
certainly not. But that is where we are heading.
   I also know there have been a good many problems with leaking tanks 
in this country. There is a big trust fund--I believe there is $2 
billion in that fund--in case the gas station or the small gasoline 
distributor has gone bankrupt, doesn't have insurance, or doesn't have 
any money. What happens then if some of these even more dangerous 
chemicals, certainly more dangerous chemicals than MTBE, leak? Who 
would pay? This fund will pay.
  The point is, Shouldn't we make sure we are thinking clearly about 
this issue? What is wrong with having within this legislation language 
that affirms a classical understanding of liability? That is what it is 
all about.
  Companies get nervous. You get a water system that has some MTBE in 
it, which is not a cancer-causing substance, it is not a disease-
causing substance, according to every report I have seen. If enough of 
the substance gets into the water, it will have a bad taste and 
unpleasant smell, and it is bad--we don't want it in our water system--
but it has not proven to be any kind of significant health hazard, to 
my understanding----
  Mr. GREGG. Will the Senator yield at that point?
  Mr. SESSIONS. Yes.
  Mr. GREGG. Has the Senator been in a home that has MTBE pollution?
  Mr. SESSIONS. No, I have not.
  Mr. GREGG. I suggest the Senator--Mr. President, I ask the Senator a 
question--I suggest the Senator might want to go to a home with MTBE 
pollution before the Senator makes the representation the home is 
livable.
  Mr. SESSIONS. I didn't say the home. I understand the water smells. 
Is the Senator aware of any report that says MTBE is a cancer-causing 
substance?
  Mr. GREGG. I didn't suggest that MTBE was cancer causing. The Senator 
suggested it is not a health hazard. I ask the Senator, if a person 
cannot live in their home, is that not a health hazard? If a person 
cannot take a shower, is that not a health hazard? If a person cannot 
drink the water, is that not a health hazard?
  Is that the Senator's position, that if you cannot live in your home, 
if you cannot shower, if you cannot drink the water you, therefore, do 
not have a health hazard? Is that the Senator's position?
  Mr. SESSIONS. The Senator's position is this--if someone polluted 
your water so you can't drink it, and did so to the required degree of 
negligence and liability, they are responsible for it and should pay.
  The question is, What if you didn't do anything that justifies a 
lawsuit? What if you had no connection whatsoever? You made MTBE and 
somebody takes it and pollutes your house with it. Who is responsible? 
I can tell you what the law has been historically in America.
  Mr. GREGG. Will the Senator yield for a further question?
  Mr. SESSIONS. The person who caused the action, made the house 
uninhabitable, that is who should pay; not the person who made the 
substance.
  Mr. GREGG. Will the Senator yield for a further question?
  Mr. SESSIONS. Yes.
  Mr. GREGG. Is it the Senator's position that if a person cannot use 
their house, cannot use the water, cannot take a shower, that person 
should be barred from suing the potential people who are responsible 
for that and that a State that has brought an action on that issue 
should have a law passed by the Congress which says that action brought 
by that State will no longer be in existence?
  Mr. SESSIONS. Two questions there. One is the existing lawsuit 
question. The Senator makes a legitimate point and expresses a 
legitimate concern. Frankly, I am not sure it is fully meritorious, but 
he certainly raises a legitimate concern.
  The second point is, Who should be responsible? That is the question. 
That is all, as I understand it, this legislation deals with.
  If this legislation were to say that the person who is responsible 
for putting the MTBE in a New Hampshire citizen's home was not liable, 
I would oppose it. But if they took asphalt and dumped it in somebody's 
home, should the asphalt maker be liable if they were not responsible 
for putting it in that home? That is the legal question with which we 
are dealing.
  Mr. GREGG. Will the Senator yield further?
  Mr. SESSIONS. I yield.
  Mr. GREGG. Is it, therefore, the Senator's position that the 
determination of whether or not the person who polluted the water in 
that home which is no longer livable, can't take a shower and can't 
drink the water, that the person who seeks redress on that should have 
the Congress unilaterally decide that a product which appears to have a 
fairly significant proximity to the problem should no longer be subject 
to liability simply because the product has been designed in a certain 
way, and that it should be the Congress--many Members of Congress never 
having even been in that home or a home of a similar nature--that 
should eliminate the capacity of that individual to have redress in a 
lawsuit? Would it not be a court's decision or jury's decision to make 
the determination if the product was produced without defect, that 
product should not be liable rather than the Congress unilaterally 
deciding that product should not be liable?
  Mr. SESSIONS. I thank the Senator for the question. I think it is a 
good one. I just hosted and chaired a hearing on the question of 
restaurants that sell food that might cause obesity. The question is, 
Is a restaurant that makes a good cake responsible for somebody's 
obesity? They made the product that perhaps made the person overweight 
and obese, but they are not responsible for it. Should Congress act?
  I think it is perfectly appropriate and fair that the Congress set 
the rules for litigation in America. We established when the statute of 
limitations runs. We established a lot of rules. In fact, we 
established basically that MTBE should be used. It was a congressional 
action that required this to be done before I arrived in the Senate.
  I don't know how the Senator from New Hampshire voted on that 
legislation. It was a good government environment bill at the time. 
Senator Daschle, I believe, was the prime sponsor of it.
  The question is this, Companies make a substance. Somebody else 
spills it in the environment. Now we are going to have the person who 
made it, because maybe they have good insurance, pay for cleaning up 
any place in America that this stuff was spilled? I don't think so. Of 
course, we have in this bill liability protection for ethanol, and the 
House stuck in the liability protection for MTBE. It really was not 
considered in the Senate, I admit, but I think it is appropriate we 
follow through with it. At least I believe there is a strong 
justification for it. I don't believe this bill should be blocked on 
that basis.
  Mr. TALENT. Will the Senator yield for a brief question?
  Mr. SESSIONS. I will be delighted to yield.
  Mr. TALENT. I wonder if the Senator's position isn't similar to mine, 
on the point the Senator from New Hampshire raised, that we at least 
should not refuse to vote on a bill that could mean millions of jobs 
for everybody in the country in all sections of the country because of 
one provision in the bill which could perhaps be fixed or compromised 
in some other legislation. I wonder if that isn't the Senator's 
position.
  Mr. SESSIONS. I think that is a very good point. I know a number of 
Senators who favor this bill said they would be open to consider 
reforming it on a short basis if there was any abuse. Any language of 
this kind deserves to be carefully examined. I understand New Hampshire 
has filed a lawsuit that might be prohibited by this legislation, so I 
can understand the Senator from New Hampshire being concerned about 
that.

[[Page 29658]]

  From what I understand, if the fundamental principle in the 
legislation appears to be sound, I can be supportive of it. If, in its 
application, it is unfair and unjust, I would be prepared to support 
reform.
  Mr. TALENT. I thank the Senator for yielding for a question.
  Mr. SESSIONS. Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Missouri.
  Mr. TALENT. Mr. President, it is a real pleasure for me to come down 
and speak on behalf of the Energy Policy Act. I want to begin by 
congratulating those involved in the conference committee who reached 
an agreement upon it.
  I saw my friend, the senior Senator from Iowa. He certainly did 
yeomen's work on behalf of a provision that is very important to us in 
Missouri: The renewable fuel standard, as well as the biodiesel tax 
credit. I am going to begin my brief remarks and end them by commenting 
on those provisions. They stand to create hundreds of thousands of jobs 
in the short term around the country and in the long term have the 
potential not just to revolutionize family production by bringing in a 
whole new wave of value-added enterprise but also help create energy 
independence for this country.
  As we have said on this floor on many occasions, when we are able to 
grow our own fuel, by growing corn, by growing soybeans, and turning 
them into fuel that we can burn in our cars, it just revolutionizes 
international relations in the world and also helps the environment and 
protects the economy as well. This bill is a major step in that 
direction. For that reason alone, I think it deserves to be voted on 
and passed.
  There are provisions in this bill, as the Senator from North Dakota 
said before in his very eloquent remarks, that all of us would pick out 
or change if we could. But this is one Energy bill that this Congress 
has had to write for a very diverse country. I would suggest, when we 
are trying to come out of a recession, when we are trying to create 
jobs, when we are trying to achieve energy independence for this 
country, now is the time for statesmanship, not obstruction. Now is the 
time for compromise rather than confrontation over discrete points of a 
very big bill. Now is the time to move forward with all the good parts 
of this bill that we know are going to create jobs, that we know are 
going to help create energy independence, that we know are going to be 
good for the environment, with a view toward getting together afterward 
and helping to fix or reform the parts of the bill about which we may 
have some doubts. I hope we can do that. I hope we can get a vote on 
this bill.
  I hope in particular that we will not see that weapon, the 
filibuster, hauled out to stop us from even expressing an opinion on 
the first national energy policy that this Congress has ever really 
passed.
  We have heard much discussion in the last week or two about the 
importance of jobs. I very much believe in that. We cannot do anything 
we want to do in this country, we cannot do education, we cannot have 
health care, we cannot have defense, we cannot have opportunity without 
prosperity, and we cannot have that without jobs. This bill flat 
creates jobs. It will protect hundreds of thousands of jobs against 
being lost. It will create nearly a million. The natural gas and coal 
provisions, which are not those over which Missouri has a parochial 
interest but which I strongly support, would create more than 400,000 
direct and indirect new jobs just through the construction of the 
Alaska natural gas pipeline, which will at the same time bring 
affordable energy to the lower 48 States, 38,000 direct jobs, 80,000 
indirect jobs, an estimated 400,000 jobs from the multiplier effect. 
The investment the bill provides for in clean coal technology creates 
62,000 jobs; 40,000 construction jobs created by the construction of 
approximately 27 large new clean coal plants.
  When we use this clean coal technology and we make coal 
environmentally safe, we secure America's energy future because we have 
hundreds of years of reserves of coal. There is no reason not to move 
forward so as to create the possibility of reliance upon that even more 
greatly in the future, if necessary.
  The renewable fuel standard I will discuss in a few minutes. Nuclear 
energy, building a first of its kind nuclear reactor to co-generate 
hydrogen will create 3,000 construction jobs and 500 long-term high-
paying, high-tech jobs. I toured the nuclear energy plant in Missouri 
in Callaway County just a few weeks ago. It is the wave of the future. 
We can have more nuclear energy plants like that securing energy for 
our people around this country. This bill is a key to achieving that.
  Some examples of job losses that the Energy Policy Act will prevent 
in the future, these are job losses we have had in the past: The Potash 
Corporation, one of the world's largest producers of fertilizer 
products located in Northbrook, IL, and Canada, that spends $2 million 
per day on natural gas, has announced layoffs at its Louisiana and 
Tennessee plants.
  Economists predict that Louisiana's chemical industry will lose more 
than 2,000 jobs in the next 2 years. I have had people come and visit 
me from the chemical industry saying they are being forced to push jobs 
offshore because of the high cost of energy. I have had manufacturers 
in Missouri tell me that the high cost of energy and the 
unpredictability of the cost of energy is driving jobs offshore. It 
does not have to be that way. We can have an energy policy that 
encourages all different kinds of energy--the traditional forms, the 
alternative forms. This bill does that.
  No, the bill is not really liked too much, if I may so, by those on 
the extreme ends of either part of the political spectrum. There are 
some who do not want the Government involved at all, even in 
stimulating the production of supply of energy. There are others who 
for other reasons on the other side of the spectrum do not want the 
private market to be stimulated for the production of energy. But 
Americans are out there, Missourians are out there, worrying about the 
loss of their jobs, worrying about what opportunities are going to be 
available in the future. Access to affordable, stable supplies of 
energy of all kinds is a key to this country's prosperity and 
independence, and that is what it comes down to.
  Those of us on the Energy Committee, on both sides of the aisle in 
the Senate, have had that target in view from the minute that we began 
writing this bill. The Senator from Tennessee is certainly well aware 
of that because of the major part that he played in it.
  I close by talking about the special importance of the renewable 
fuels section of this bill. Everybody back home is so pleased that we 
have recognized in this Congress, by an overwhelming margin, the 
importance of ethanol and biodiesel to this Nation's energy supply. The 
bill will increase ethanol production and the use of ethanol throughout 
our national economy to 5 billion gallons by the year 2012. It will 
create 214,000 jobs, $5.3 billion in new investment in renewable fuels 
production facilities. The biodiesel tax credit of a dollar is 
groundbreaking for the production of biodiesel in this country. With 
this tax credit, we can expect biodiesel, in just a few years, to be in 
the same situation that ethanol is now, and a few years after that the 
situation that ethanol will be in in the future, one of the mainstays 
of energy production. These are a key to value-added enterprises as 
well.
  I will never forget on a day I was traveling around central Missouri 
and I talked to some corn farmers and they were talking about commodity 
prices. They were pretty depressed, and there has been a lot of reason 
to be depressed about prices of corn in the last 2 years. They did not 
really see a lot of hope. These were great producers, efficient 
producers, but they knew even if prices creeped up, one change in the 
international situation might push them down again. Then I went to the 
ethanol plant in Macon, the same kind of producers, but these were 
investors in the ethanol plant. One of them pulled me aside. There was 
an air of optimism there, an air of energy. One of them

[[Page 29659]]

pulled me aside and said: Jim, the good thing about this is when the 
price of corn goes down, I just make more money off the ethanol. That 
is what value-added enterprises mean to family production in this 
country.
  If we lose family farmers, if we lose the family production sector in 
this country, we lose something that we cannot recover, the values that 
go with an attachment to and a belief in the land. Value-added 
enterprises, of which the chief is renewable fuel, is the future for 
family producers. It is the future for energy independence in the 
country as well.
  We are proud in Missouri, as I know the Presiding Officer is proud in 
Minnesota, of the leadership role we have played in the production of 
ethanol. We expect to have a leadership role, we do, and expect our 
leadership role to grow in the production of biodiesel. That is what 
this bill provides for.
  I close by saying that although there are many parts of the bill that 
are going to help Missouri, there is no question about that, and I am 
enthusiastic about it, I am pleased to have participated in writing a 
lot of the bill, and pleased to vote for it, there are many parts of it 
I like. This renewable fuels section is really important to Missouri. 
Agriculture and tourism are the two biggest parts of Missouri's 
economy.
  This bill is a joint effort. I think it is idle for any section of 
the country or any group of Senators who want a particular kind of 
energy to believe that they can get what they want for their section of 
the country, or that they can get what they want for the kind of energy 
supplies that they favor apart from a bill like this that helps 
everybody pull together. We cannot unravel this thing and pass a bunch 
of different bills. It is not going to happen. We are one country. We 
have to rely on many different sources of energy, but it has to be one 
policy. We have to have it all in one policy. It is not going to be 
perfect, but it is going to make a difference for the future. To the 
extent that it is not perfect, we can work on it.
  I would so much rather have a view of legislation that says, look, we 
would rather go ahead knowing that we will take what is good and we can 
work on the things that we are concerned about than stopping everything 
because we cannot achieve that perfection given the state of human 
nature and the realistic possibilities in which we have to operate.
  I am going to be pleased to support this bill. I urge Senators who 
have greater doubts than I do, or maybe who have themselves dug in on 
one issue or another, to try to work out an arrangement with the 
bipartisan group of Senators who have pushed this bill for so long. I 
know the Senator from New Mexico is ready to talk. The leadership is 
ready to talk. I am hopeful we will see the leaders on both sides of 
the aisle supporting this bill.
  Now, as I said before, is the time for us to pull together and send a 
clear signal to this country that we can and will pass a comprehensive 
national energy policy that will create a stable and affordable supply 
of energy for years to come and allow our entrepreneurs, our 
manufacturers, our farmers, our small business people, to move ahead 
with the predictability that a stable energy supply gives them.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  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.


                    Unemployment Insurance Extension

  Ms. CANTWELL. Mr. President, I know we are still under consideration 
of the Energy conference report and many Members have been to the floor 
talking about the prescription drug conference report as well.
  Before we adjourn, whatever date that is, sometime in the very near 
future, hopefully before the Thanksgiving holiday, it is imperative 
that this body take a stance and pass the unemployment benefit 
extension before we go home.
  We are in the same position we were in virtually a year ago. What has 
changed? The economy might have gotten slightly better but not really 
much better. We have a .4 percent improvement in the unemployment rate. 
We in Washington State are still just above 7 percent in unemployment.
  The reason we do the unemployment benefit extension program at the 
Federal level is to help States, which includes those that have been 
hardest hit by unemployment, get some extra weeks of unemployment 
benefits. It has been a successful program in the times of downturns of 
our economy. During the first Bush and Clinton administrations, when 
our economy was not doing so well, we basically extended Federal 
unemployment benefits for a total of 30 months. At that time, the 
benefits were at the Federal level, 20 additional weeks.
  We are at this point in time now where we have extended the Federal 
program in this recession for about 22 months. Yet while we have seen a 
slight economic improvement, as I said, .4 percent, I believe it is not 
enough to continue the improvements we would like to see in our 
economy.
  In an economic downturn, make no mistake about it, working Americans 
would rather have a paycheck than an unemployment check. But giving 
people an unemployment check in times of tough economic situations 
helps our economy overall. Every $1 spent on unemployment benefits 
generates $2.15 of stimulus. That is mortgage payments paid, health 
care bills that are met, a continuation of the economy at the most 
stable level we can have when we are not seeing job increases.
  It is vitally important, before we adjourn--we have spent all this 
time debating judges and there was a good debate on both sides--we get 
back to some of the basic issues that need to be accomplished before we 
adjourn. Certainly unemployment benefits, I believe, should be that 
priority.
  What is going to happen in December if we adjourn sometime next 
week--this program expires at the end of December. What is likely, if 
that happens, is we will see 90,000 people at the national level fall 
off this benefit program and as many as 2 million people in the first 
several months of the year could be without unemployment benefits.
  Like many of my colleagues, I hope the economy improves. But I don't 
think we are seeing an indication it will improve that rapidly that 
soon. To leave these people without benefits at a time when we could be 
stimulating the economy is irresponsible.
  For Washington State, the numbers are similar. We have about 200,000 
people in Washington State who will exhaust their benefits in the first 
6 months of 2004. I would rather those people be receiving some 
benefits and having the certainty of receiving those benefits now, even 
if it is a shorter extension period.
  The challenge we ran into last December as we bantered back and 
forth--and, actually, the Senate did the right thing in the eleventh 
hour by passing the unemployment benefit extension; the House decided 
not to act on it. What happened was we left many Americans without 
certainty of the unemployment benefits.
  Some of my colleagues believe nothing happened, that when we got back 
in January we reconstituted that program and people did not lose a 
thing. That is not true. I know constituents who made alternative 
plans, not knowing whether Congress had the intention of extending the 
unemployment benefit program. There was not the certainty. I had 
constituents who took money out of pension programs with 30 percent 
penalties, basically trading off their long-term investment for short-
term return because they did not think we were going to extend 
benefits.
  We ought to give working Americans some certainty that as this 
economy continues to struggle, we are going to be there with 
unemployment benefits.
  My colleague from Nevada has cited several times that many Members of 
Congress voted to terminate this program. In the 1990s, after we had 
the 30 months of an extension of employment

[[Page 29660]]

benefits by both the Bush and Clinton administrations, and after we had 
a 1.2 percent improvement in the unemployment rate, yes, we curtailed 
that program. However, we are doing less now, less under more severe 
economic conditions, than the first President Bush and President 
Clinton did during that time period. They went for 30 months. They had 
a Federal program that was 20 weeks instead of the 13 we have now, and 
they only curtailed the program once they saw a better return to the 
economy.
  I encourage my colleagues to put this bill on the priority list for 
the next several days. Let's figure out a way to give unemployed 
Americans some certainty as they face the holiday season. Let's give 
those millions of people who are going to be impacted by not having 
this Federal program continued some relief and know we will be also 
holding up our economy. Let's not say to people that this Congress went 
ahead and passed tax cuts for the wealthiest of Americans, did a 
variety of things that may have been targeted tax credits, but failed 
to extend to hard-working Americans the unemployment benefit program 
into which they have paid.


                       Unanimous Consent Request

  I ask unanimous consent that the Senate proceed to legislative 
session and the Finance Committee be discharged from further 
consideration of S. 1853, a bill to extend unemployment insurance; that 
the Senate proceed to its immediate consideration; the bill be read the 
third time and passed, and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. On behalf of the majority leader, in my 
capacity as a Senator from Minnesota, I object.
  Ms. CANTWELL. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Cloture Motion

  Mr. FRIST. Mr. President, we have had a full day of debate on this 
very important conference report. We have had a number of Senators come 
to the floor in support of the bill and others who have used this as an 
opportunity to highlight their opposition to one aspect of the bill or 
another. The bill finally establishes a comprehensive energy policy, 
and I do urge my colleagues to look at the bill not just piece by piece 
but in its entirety. Chairman Domenici had to negotiate a whole range 
of tough issues to put together a bill that requires a very fragile 
balance, as people even more fully understand this and come to the 
floor to address different aspects of the bill.
  I understand there are some Members who want to preserve their rights 
on this legislation and who don't want to allow a time limitation. But 
given the importance of the legislation, at this juncture I send a 
cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate to the conference 
     report H.R. 6, the energy policy bill to enhance energy 
     conservation and research and development, to provide for 
     security and diversity in the energy supply for the American 
     people, and for other purposes.
         Bill Frist, Pete Domenici, John Cornyn, Mike Crapo, Larry 
           Craig, Ben Nighthorse Campbell, Michael B. Enzi, Mike 
           DeWine, Christopher Bond, Robert F. Bennett, Trent 
           Lott, Pat Roberts, Jim Bunning, Mitch McConnell, 
           Richard G. Lugar, Norm Coleman, Conrad Burns.

  Mr. FRIST. Mr. President, this cloture vote will occur on Friday of 
this week unless changed by unanimous consent. I hope that cloture is 
invoked and that the Senate can then act expeditiously to vote adoption 
of the conference report. Until that time, Members will be allowed to 
come to the floor to express themselves with regard to this 
legislation. We encourage them to do so.

                          ____________________