[Congressional Record (Bound Edition), Volume 151 (2005), Part 10]
[Senate]
[Pages 13966-14049]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       ENERGY POLICY ACT OF 2005

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of H.R. 6 which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 6) to ensure jobs for our future with secure, 
     affordable and reliable energy.

  Pending:

       Wyden-Dorgan amendment No. 792, to provide for the 
     suspension of Strategic Petroleum Reserve acquisitions.
       Reid (for Lautenberg) amendment No. 839, to require any 
     Federal agency that publishes a science-based climate change 
     document that was significantly altered at White House 
     request to make an unaltered final draft of the document 
     publicly available for comparison
       Schumer amendment No. 811, to provide for a national tire 
     fuel efficiency program.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10 a.m. shall be equally divided between the Senator from New 
Mexico, Mr. Domenici, and the Senator from New Mexico, Mr. Bingaman, or 
their designees.
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I understand we have 30 minutes; is that 
correct?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. KENNEDY. First, I thank my friend and the ranking member, Senator 
Leahy, for permitting me to go first so we can attend in an appropriate 
way the Armed Services Committee and Secretary Rumsfeld. It is typical 
courtesy on his part.
  I yield myself 9 minutes.
  The ACTING PRESIDENT pro tempore. The Senator is recognized.


                         supreme court vacancy

  Mr. KENNEDY. Mr. President, as we all know, a major debate may soon 
be underway in the Senate and the country if there is a vacancy on the 
Supreme Court. It is clear that the Bush administration is well along 
in choosing its nominee for the vacancy, and the Senate must be well-
prepared as well.
  The initial major question is whether, for the highest judicial 
position in the land, President Bush will choose consultation and 
consensus or confrontation and conflict. I urge the President not to 
cede this important constitutional responsibility to a narrow faction 
of his own party--and to groups so extreme they have called for the 
impeachment of six of the current nine Justices because those Justices 
refuse to make the law in accord with the groups' wishes.
  In the landmark May 23rd agreement, the bipartisan group of 14 
Senators spoke clearly for this body on two vital points. First, we 
intend to remain the world's greatest deliberative body, where the 
rules, not raw power, prevail, and where the rights of the minority are 
respected--not silenced. Second, the agreement sent a strong reminder 
to the President that the Constitution requires him to obtain both the 
advice and consent of the Senate before appointing judges, and that we 
expect him to do so in good faith.
  When the Framers of the Constitution adopted our system of checks and 
balances 218 years ago, they focused intently on the process for 
selecting judges. They wanted judges to be independent, so they gave 
them lifetime positions and prohibited any reduction in their 
compensation.
  Initially, they were so concerned that Presidents might abuse the 
power

[[Page 13967]]

to select judges that they gave the Senate the sole power to appoint 
Federal judges. But some delegates argued for a Presidential role, and 
they debated the issue at length.
  Benjamin Franklin, always ready with new ideas, pointed to the 
Scottish system, where the lawyers themselves selected the judges. 
Invariably, he said, the best and smartest candidates were selected as 
judges, because the other lawyers wanted to remove their toughest 
competitor and divide his business among themselves.
  In fact, in three separate votes in July 1787, the Framers refused to 
give the Executive any role in judicial selection, because they did not 
believe the President could be trusted with that responsibility. They 
again placed the entire appointment power in the Senate.
  Later, as the Constitutional Convention was ending in September, they 
agreed to a compromise, based on the procedure that Massachusetts had 
used successfully for over a century. To get the best possible judges, 
the President and the Senate would have to agree on appointments to the 
Federal courts. The President was powerless to appoint judges without 
considering the Senate's advice and obtaining its consent.
  For over two centuries that system has worked well. At the Supreme 
Court level, Presidents have nominated 154 Justices. Most of them were 
confirmed by the Senate, but some 20 percent were not. Some could not 
get Senate consent because the Senate did not feel they were qualified 
for the job, some because they were selected for reasons of politics or 
ideology with which the Senate did not agree, and some because they 
were perceived as being too close to the President to be independent.
  A few of us who have been here in the Senate for all of the 
confirmations of the current nine Justices know that most of them were 
consensus choices. Seven of them--including all six whom the right-wing 
wants to impeach--were confirmed with such strong bipartisan support 
that no more than nine Senators voted against them, and, of those, four 
received unanimous Senate support.
  We learned many things from past debates. One of the most important 
is that there are large reservoirs of excellent potential nominees 
among the many capable judges and lawyers in the United States, and 
that, if they are chosen for the High Court, they will receive 
overwhelming support in the country and in the Senate. Presidents who 
have listened to the Senate's advice and selected such candidates have 
had no problem obtaining Senate consent. President Bush can do that, 
too. If he takes our bipartisan advice, he will have no trouble 
obtaining our bipartisan consent.
  Presidents who have had the most trouble with the confirmation 
process are those who listened to erroneous advice about the process. 
As recently as this week, a Member of this body argued in print that:

       Senate practice and even the Constitution contemplate 
     deference to the President and a presumption in favor of 
     confirmation.

  That's not what the Constitution says. Since the days of George 
Washington--whose nomination of a Justice was denied consent by the 
Senate of that day, there has been no ``presumption in favor of 
confirmation'' of lifetime judicial appointees. In general, many of us 
do give some deference to a President's nominees to the executive 
branch, since they are not lifetime appointments. But even there, if 
the President overreaches, we act to fulfill our constitutional 
responsibility.
  Three times in my experience, Presidents have pushed the Senate too 
far on Supreme Court nominations, and the Senate has said ``no.'' Each 
time, the White House argued for Senate deference and the Senate, each 
time with bipartisan support, refused to defer. Two of those rejections 
were consecutive nominations for the same vacancy, with members of the 
President's own party providing the majority for rejection each time. 
In the second of those two, the selection was so plainly an arrogant 
affront to the Senate, that the best argument the proponents could make 
was that mediocrity deserved representation, too, on the High Court, a 
proposition the Senate soundly rejected.
  Clearly, Senators should not support a nominee just because a 
President of their party proposed the nomination. The Framers relied on 
each of us to make independent and individual judgments about the 
President's nominees. We do not fulfill our constitutional trust if we 
merely ``placate-the-President.'' I have seen repeated examples of 
Senatorial courage when numerous members of the President's party--even 
members of his leadership team--have refused to go along with plainly 
inappropriate Presidential selections.
  We should do exactly what the Framers intended us to do--be joint and 
co-equal defenders of the rule of law and the fairness and quality and 
independence of the Federal courts. We must listen to their voices now, 
summoning us across the centuries, to uphold that basic ideal, with 
full devotion to our role in the checks and balances that have served 
the Nation so well. We fail them if we march in lockstep with the White 
House.
  As past experience shows, nominees selected for their devotion to a 
particular ideological agenda are likely to have the most difficulty 
being confirmed, because that kind of choice rarely achieves a 
consensus. History shows plainly that the better course is to search 
for the highest quality candidates who have demonstrated their respect 
for the rule of law. They respect core constitutional principles, 
especially those that define the rights of each citizen. They have 
demonstrated their commitment to finding the law, not making the law. 
They respect stare decisis, the deference to well-accepted past 
decisions that have kept the Nation strong by reconciling traditional 
principles with new needs and challenges. They show respect for the 
basic structure of Government, especially for Congress when it acts 
within its established powers. They have demonstrated the ability to 
subordinate their own ideological and result-oriented preferences to 
the rule of law.
  Especially at the Supreme Court level, the choices should not be 
partisan choices based on today's partisan issues. The Justice we may 
select this year could well be providing justice to our children and 
grandchildren for decades to come. It is more important that the 
nominee have a strong dedication to principles of justice than a strong 
position on controversial issues of the day.
  It is a disservice to the Court to attempt to install ideological 
activists bent on making sudden and drastic shifts in the Court's 
careful, gradual jurisprudence. The Supreme Court is at its worst when 
it splits into extreme, contentious sides, and reaches extreme results 
that make much of the Nation cringe and leave only the ideological 
activists satisfied.
  Like sausage and legislation, the confirmation or rejection of a 
Supreme Court nomination is not always something pleasant to watch or 
be part of. The course is set by the President. If the President 
submits an ``in your face'' nomination to flaunt his power, it takes 
time and effort and sweat and tears before the truth about the 
candidate is fully discovered and explained to the public and voted on.
  We are fortunate to have had a dress rehearsal for the process. 
Before the White House decided to threaten the Senate with the nuclear 
option, few Americans had any idea what was happening here and how 
important it was. It took some time, but eventually the public 
understood the seriousness of the threat to break the rules in order to 
change the rules, so that for the first time in Senate history, a bare 
majority of the Senate could impose a gag rule on every other Senator 
and enable the President to exercise absolute power over the courts 
without meaningful review by the Senate. Fortunately, the Senate 
stepped back from that brink, and the Senators who reached that 
bipartisan agreement to make it possible deserve great credit.
  Those who want the Senate to be a rubber stamp for a White House 
nominee to the Supreme Court will undoubtedly try to rush us through 
our duty. But if we are to do our job for the American people in good 
faith, the process of considering a Supreme Court

[[Page 13968]]

nominee cannot be rushed. It will take time to obtain the necessary 
information and documents, and to review and understand them. It will 
take time to gather witnesses and prepare for hearings. If the 
nomination is not a consensus nomination, the hearings will be 
intensive and extensive. If the nominee is evasive, there will be 
longer hearings and follow-up questions, which will also take time to 
analyze. Only when all the information is available and fairly 
considered, can the nomination go forward.
  If President Bush resists his fringe constituencies, and seeks the 
advice of the Senate as he should, the nomination process can have a 
happy ending. I hope our colleagues across the aisle will urge the 
President to respect the May 23rd bipartisan agreement and its 
memorandum of understanding, and take to heart its serious request that 
he consult with Senators from both parties before proposing a Supreme 
Court nominee.
  We already have in place a process for doing so. In selecting 
district judge nominees in our States, the White House sends us the 
list of persons being considered seriously, and asks for our comments 
on each, as well as our suggestions for additional names to consider. 
When they have narrowed down the list, they share the short list with 
us, so that we can give our final advice as to which ones are best and 
which ones would raise problems. Almost always, our advice is 
considered and respected. As a result, most District Judges go through 
the confirmation process quietly and expeditiously, and obtain the 
consent of the Senate.
  Article II, Section 2, Clause 2, of the Constitution clearly says, 
``with the advice and consent of the Senate,'' not the advice of anyone 
else, just 100 of us here in the Senate, who speak for all the American 
people. It doesn't take much to get our consent. All the President has 
to do is seek out his preferred non-ideological choices, ask us about 
them, and listen to our answers.
  I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I appreciate the strong, eloquent statement 
of the Senator from Massachusetts. He is a former chairman of this 
committee, the Judiciary Committee. Of course, he is not only a former 
chairman but, as one of the three most senior Members of the Senate, is 
well aware of what has been our practice.
  I think we may also hear from the senior Senator from Delaware, Mr. 
Biden, who is another former chairman.
  Let me speak in my capacity also as a former chairman of the 
Judiciary Committee.
  It is now almost 1 month since the bipartisan agreement was forged to 
avert an unnecessary ``nuclear'' showdown in the Senate. Democratic 
Senators who signed the Memorandum of Understanding on Judicial 
Nominations that averted the nuclear option have fulfilled their 
commitments with respect to invoking cloture on several controversial 
nominees. Sadly, with Republicans voting party-line on almost every one 
of these nominees, they have been confirmed. Meanwhile, as the 
Democratic leader had offered months ago, the Senate considered and 
voted upon two Sixth Circuit nominees and an additional DC Circuit 
nominee.
  What has yet to take place, however, is the kind of meaningful 
consultation that Republican and Democratic Senators explicitly called 
for in that memorandum. They ``encouraged the Executive branch of 
government to consult with members of the Senate, both Democratic and 
Republican, prior to submitting a judicial nomination to the Senate for 
consideration.'' They called for a ``return to the early practices of 
our government'' that reduced conflict and led to consensus. We have 
not yet noticed an abundance of consultation. And unfortunately, White 
House officials have declared that the President has no interest in and 
feels no obligation to assist in implementing this feature of the 
memorandum.
  Since the White House will not acknowledge the record, I thought it 
worth noting that 214 of this President's judicial nominations have 
already been confirmed by the Senate. That includes 41 circuit court 
nominees, an almost 80-percent confirmation rate of his many divisive 
circuit court nominees. These figures are all well ahead of the rates 
during President Clinton's administration. At a similar point in the 
last administration, only 180 nominees had been confirmed, including 
only 31 circuit court nominees, which amounted to barely 74 percent of 
President Clinton's circuit court nominees.
  With all the recent talk from Republicans about the principle of 
every nominee being entitled to an up-or-down vote, it is striking that 
such a standard was not considered at all while Republicans pocket 
filibustered more than 60 of President Clinton's judicial nominees. As 
I demonstrated during the time I served as chairman and since then, 
President Bush's nominees have been treated far more fairly than were 
President Clinton's nominees.
  I have spoken over the last 4\1/2\ years, most recently in the last 
few weeks, about the benefits to all if the President were to consult 
with Members of the Senate from both sides of the aisle on important 
judicial nominations. I return today to emphasize, again, the 
significance of meaningful consultation on these nominations. It bears 
repeating given what is at stake for the Senate, the judiciary and the 
American people.
  In a few more days the U.S. Supreme Court will complete its term. 
Last year the Chief Justice noted publicly that at the age of 80, one 
thinks about retirement. I get to see the Chief Justice from time to 
time in connection with his work for the Judicial Conference and the 
Smithsonian Institution. Sometimes we see each other in Vermont or en 
route there, and I am struck every time by his commitment to service. 
He is waging his personal battle against ill health with his 
characteristic resolve. I know that the Chief will retire when he 
decides that he should, and not before. He has earned that right after 
serving on the Supreme Court for more than 30 years, the last 19 as the 
Chief Justice. I have great respect and affection for him, and he is in 
our prayers.
  In light of the age and health of our Supreme Court Justices, 
speculation has accelerated about the potential for a Supreme Court 
vacancy this summer. In advance of any such vacancy, I have called upon 
the President to follow the constructive and successful examples set by 
previous Presidents of both parties who engaged in meaningful 
consultation with Members of the Senate before selecting nominees. This 
decision is too important to all Americans to be unnecessarily 
embroiled in partisan politics.
  I have said repeatedly that should a Supreme Court vacancy arise, I 
stand ready to work with President Bush to help him select a nominee to 
the Supreme Court who can unite Americans. I have urged consultation 
and cooperation for 4 years and have reached out to the President, 
again, over these last few weeks. I hope that if a vacancy does arise 
the President will finally turn away from his past practices, consult 
with us and work with us. This is the way to unite instead of divide 
the Nation, and this is the way to honor the Constitution's ``advise 
and consent'' directive, and this is the way to preserve the 
independence of our federal judiciary, which is the envy of the rest of 
the world.
  Some Presidents, including most recently President Clinton, found 
that consultation with the Senate in advance of a nomination was highly 
beneficial in helping lay the foundation for successful nominations. 
President Reagan, on the other hand, disregarded the advice offered by 
Senate Democratic leaders and chose a controversial, divisive nominee 
who was ultimately rejected by the full Senate.
  In his recent book, ``Square Peg,'' Senator Hatch recounts how in 
1993, as the ranking minority member of the Senate Judiciary Committee, 
he advised President Clinton about possible Supreme Court nominees. In 
his book, Senator Hatch wrote that he warned President Clinton away 
from a nominee whose confirmation he believed ``would not be easy.'' 
Senator Hatch

[[Page 13969]]

goes on to describe how he suggested the names of Stephen Breyer and 
Ruth Bader Ginsburg, both of whom were eventually nominated and 
confirmed ``with relative ease.'' Indeed, 96 Senators voted in favor of 
Justice Ginsburg's confirmation, and only three Senators voted against; 
Justice Breyer received 87 affirmative votes, and only nine Senators 
voted against. Nor are these recent examples the only evidence of 
effective and meaningful consultation with the Senate over our history.
  The Constitution provides that the President ``shall nominate, and by 
and with the Advice and Consent of the Senate, shall appoint'' judges 
and explicitly the members of the only court established by the 
Constitution itself, the Supreme Court. For advice to be meaningful, it 
needs to be informed. Despite his public commitment at a news 
conference three weeks ago specifically regarding the Supreme Court, 
the President has not even begun the process of consulting with 
Democratic Senators. I wrote to the President, again, last month, 
urging consultation and even making suggestions on how he might wish to 
proceed.
  Bipartisan consultation would not only make any Supreme Court 
selection a better one, it would also reassure the Senate and the 
American people that the process of selecting a Supreme Court justice 
has not become politicized.
  The bipartisan group of 14 Senators who joined together to avert the 
``nuclear option'' included the following in their agreement:

       We believe that, under Article II, Section 2, of the United 
     States Constitution, the word ``Advice'' speaks to 
     consultation between the Senate and the President with regard 
     to the use of the President's power to make nominations. We 
     encourage the Executive branch of government to consult with 
     members of the Senate, both Democratic and Republican, prior 
     to submitting a judicial nomination to the Senate for 
     consideration.
       Such a return to the early practices of our government may 
     well serve to reduce the rancor that unfortunately 
     accompanies the advice and consent process in the Senate.
       We firmly believe this agreement is consistent with the 
     traditions of the United States Senate that we as Senators 
     seek to uphold.

  I agree. Bipartisan consultation is consistent with the traditions of 
the Senate and would return us to practices that have served the 
country well. Our fellow Senators have history and the well-being of 
the Nation on their side in urging greater consultation on judicial 
nominations. They are right.
  What is troubling are the recent reports that the White House plan 
does not include meaningful consultation at all, but instead plans a 
political-style campaign and some sort of preemptive contact to allow 
them to pretend they consulted, without anything akin to the kind of 
meaningful consultation that this important matter deserves. Partisan 
activists supporting the White House boasted last week about a war 
chest of upwards of $20 million to be used to crush any opposition to 
the White House's selection. That sounds awfully like preparations for 
all out partisan political warfare. If the White House intends to 
follow that type of plan, it would be most unfortunate, unwise and 
counterproductive.
  Though the landscape ahead is sown with the potential for controversy 
and contention should a vacancy arise on the Supreme Court, 
confrontation is unnecessary. Consensus should be our mutual goal. I 
would hope that the President's objective will not follow the path he 
has taken with so many divisive circuit court nominees and send the 
Senate a Supreme Court nominee so polarizing that confirmation is eked 
out in the narrowest of margins. This would come at a steep and 
gratuitous price that the entire Nation would have to pay in needless 
division. It would serve the country better to choose a qualified 
consensus candidate who can be broadly supported by the American people 
and by the Senate.
  The process begins with the President. He is the only participant in 
the process who can nominate candidates to fill Supreme Court 
vacancies. If there is a vacancy, the decisions made in the White House 
will determine whether the nominee chosen will unite the Nation or will 
divide the Nation. The power to avoid destructive political warfare 
over a Supreme Court vacancy is in the hands of the President. No one 
in the Senate is spoiling for a fight. Only one person will decide 
whether there will be a divisive or a unifying process and nomination. 
If consensus is accepted as a worthy goal, bipartisan consultation will 
help achieve it. I believe that is what the American people want, and I 
know that is what they deserve.
  If the President chooses a Supreme Court nominee because of that 
nominee's ideology or record of activism in the hopes that he or she 
will deliver political victories, the President will have done so 
knowing that he is starting a confirmation confrontation. The Supreme 
Court should not be a wing of the Republican Party, nor should it be an 
arm of the Democratic Party. If the right-wing activists who were 
disappointed that the nuclear option was averted convince the President 
to choose a divisive nominee, they will not prevail without a difficult 
struggle that will embroil the Senate and the country. And if they do, 
what will they have wrought? The American people will be the losers: 
The legitimacy of the judiciary will have suffered a damaging blow from 
which it may not soon recover. Such a contest would itself confirm that 
the Supreme Court is just another setting for partisan contests and 
partisan outcomes. People will perceive the federal courts as places in 
which ``the fix is in.''
  Our Constitution establishes an independent federal judiciary to be a 
bulwark of individual liberty against incursions or expansions of power 
by the political branches. That independence is what makes our 
judiciary the model for others around the world. That independence is 
at grave risk when a President tries to pack the courts with activists 
from either side of the political spectrum. Even if successful, such an 
effort would lead to decisionmaking based on politics and would forever 
diminish public confidence in our justice system.
  The American people will cheer if the President chooses someone who 
unifies the Nation. This is not the time and a vacancy on this Supreme 
Court is not the setting in which to accentuate the political and 
ideological division within our country. In our lifetimes, there has 
never been a greater need for a unifying pick for the Supreme Court. At 
a time when too many partisans seem fixated on devising strategies to 
force the Senate to confirm the most extreme candidates with the least 
number of votes possible, Democratic Senators are urging cooperation 
and consultation to bring the country together. There is no more 
important opportunity than this to lead the Nation in a direction of 
cooperation and unity.
  The independence of the federal judiciary is critical to our American 
concept of justice for all. We all want Justices who exhibit the kind 
of fidelity to the law that we all respect. We want them to have a 
strong commitment to our shared constitutional values of individual 
liberties and equal protection. We expect them to have had a 
demonstrated record of commitment to equal rights. There are many 
conservatives who can readily meet these criteria and who are not rigid 
ideologues.
  This is a difficult time for our country, and we face many 
challenges. Providing adequate health care for all Americans, improving 
the economic prospects of Americans, defending against threats, the 
proliferation of nuclear weapons, the continuing upheaval that afflicts 
our soldiers in Iraq--all these are fundamental matters on which we 
need to improve. It is my hope that we can work together on many issues 
important to the American people, including maintaining a fair and 
independent judiciary. I am confident that a smooth nomination and 
confirmation process can be developed on a bipartisan basis if we work 
together. The American people we represent and serve are entitled to no 
less.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from New York.
  Mr. SCHUMER. How much time remains?
  The PRESIDING OFFICER. The minority side controls 10 minutes.

[[Page 13970]]


  Mr. SCHUMER. I ask unanimous consent that others who wish to add 
statements to the record on this subject be allowed to do so.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. President, I thank my colleague from Vermont, our 
leader on the Judiciary Committee, for, as usual, being right on point 
with eloquence and with no malice.
  As many know, there is a real possibility that a vacancy on the 
Supreme Court will be announced shortly. The Supreme Court should 
finish its term either Monday or Thursday, depending on the caseload.
  There is one question American people are asking about the Supreme 
Court; that is, how, if and when a vacancy occurs--and we all pray, of 
course, for Chief Justice Rehnquist's health, but if and when a vacancy 
occurs--how do we avoid the divisiveness that has plagued this body, 
this town, and this country about Court nominees over the last several 
years?
  The answer is simple. It can be described in one word: consultation. 
The ball is in the President's court. If the President chooses to do 
what he has done on court of appeals nominees--not consult, just choose 
someone, oftentimes way out of the mainstream, and say take it or leave 
it--the odds are very high there will be a battle royal over that 
nomination. If, on the other hand, the President follows the path of 
what so many other Presidents before him have done--consults with the 
Senate, with the Congress, both Republicans and Democrats, and takes 
their advice to heart--we can have a smooth, amiable, easy Supreme 
Court nomination.
  Again, the ball is in the President's court. Consultation is part of 
the constitutional process, advise and consent. The Founding Fathers 
did not use words lightly. The relatively short document of our 
Constitution is amazing for its brilliance and its brevity. When they 
decide to put a word in like ``advise,'' lots of thought has gone in 
before it. ``Advise'' means seek the advice of the Senate. It does not 
say in the Constitution, seek the advice of your party or seek the 
advice of people who agree with you. The intention, it is quite clear, 
is to seek a breadth of advice.
  That is why, today, a letter signed by 44 of the 45 members of the 
Democrat caucus, asking the President to consult with us, will be sent. 
The 45th member, Senator Byrd, agrees with the thrust and the concept 
of our letter but felt so strongly about the issue he is sending his 
own letter, which I am sure will be in his own wonderful style and make 
the point well.
  The need for advice, the need for consultation, was made clear when 
the group of 14--seven Democrats and seven Republicans--got together. 
In their agreement, they wrote:

       We believe that, under Article II, Section 2, of the United 
     States Constitution, the word ``advice,'' speaks to 
     consultation between the Senate and the President with regard 
     to the use of the President's power to make nominations. We 
     encourage the Executive branch of government to consult with 
     members of the Senate, both Democratic and Republican, prior 
     to submitting a judicial nomination to the Senate for 
     consideration.

  This is a moderate, bipartisan group. They tend to be some of the 
more conservative Democrats and some of the more liberal Republicans. 
It is certainly mainstream. Will the President heed their advice and 
seek the advice of the Senate? If he seeks advice, will it be real? To 
simply call someone in for a meeting and say, what do you think, and 
then go about things as if the meeting did not happen is not advice. 
Real advice means talking about specific nominees in private, saying: 
What do you think of this name or that name, this person or that 
person? That is, indeed, what President Clinton did as he consulted 
Senator Hatch, hardly his ideological soul mate, and many others. 
Senator Hatch told President Clinton some proposed nominees might be 
out of the mainstream and garner opposition, at least from the other 
side of the aisle. But some, even though Senator Hatch clearly did not 
agree with their politics, were in the mainstream and would get through 
the Senate with relatively little acrimony. President Clinton took 
Senator Hatch's advice and the nominations were smooth.
  That is not the only time advice has been sought. In 1869, President 
Grant appointed Edward Stanton to the Supreme Court in response to a 
petition from a majority of the Senate and the House. In 1932, 
President Hoover presented Senator William Borah, the influential 
chairman of the Foreign Relations Committee, with a list of candidates 
he was considering to replace Justice Oliver Wendell Holmes. Borah 
persuaded Hoover to move the name of the eventual nominee, Benjamin 
Cardozo, from the bottom of the list to the top, and Cordozo was 
speedily and unanimously confirmed.
  There are many instances of Presidents seeking the advice in terms of 
the advice and consent of the Senate. When the President has done it on 
judicial nominees here, it has worked. Frankly, the President and the 
White House have consulted with me about nominations to the district 
courts in New York and the Second Circuit Court of Appeals. They have 
actually bounced names off of me and said: What do you think of this 
one? What do you think of that? As a result, every vacancy is filled 
quickly with little acrimony and with broad consensus.
  Most of the nominees I have supported in my area do not agree with me 
philosophically. But they are part of the mainstream, and I was 
willing, able and, in many cases, happy to support them. So it can be 
done and should be done.
  There is all too much divisiveness in Washington. On the issue of the 
courts, it is our sincere belief on this side of the aisle that the 
President's refusal to consult and willingness to nominate some who are 
so far out of the mainstream that they cannot be regarded as 
interpreters of law rather than makers of law. That is the main reason 
we stand at this point of great acrimony in terms of judicial 
nominations. All of that can be undone by some sincere consultation.
  President Bush, when he ran for office and got into office, said he 
wanted to change the tone and climate in Washington; he wanted to bring 
people together. That was a noble sentiment, a wonderful sentiment. He 
can, despite the acrimony that has occurred on judicial nominations and 
so much else over the last few years, almost like with a magic wand, 
undo much of it by seeking real consultation should there be a vacancy 
on the Supreme Court.
  On behalf--I believe I can say this without any hesitation--of all 44 
of my colleagues on this side of the aisle, we plead, we pray, with the 
President to engage in real consultation, to heed the advise and 
consent of the Constitution, and to come up with a Supreme Court 
Justice, should a vacancy occur shortly, that we all--from the most 
conservative to the most liberal Member of this body--can be proud to 
support.
  I yield the floor.
  The PRESIDING OFFICER. The minority time is expired.
  The Senator from New Mexico.
  Mr. DOMENICI. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ISAKSON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Who yields time?
  Mr. DOMENICI. How much time does the Senator want?
  Mr. ISAKSON. Three minutes.
  The PRESIDING OFFICER. The Senator from Georgia is recognized for 3 
minutes.
  Mr. ISAKSON. Mr. President, I thank the Senator from New Mexico for 
yielding the time.
  (The remarks of Mr. Isakson are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I yield myself as much time as I may 
use.
  Mr. President, fellow Senators, shortly the Senate is going to vote. 
We are going to have a cloture vote to decide

[[Page 13971]]

whether we should bring closure to what I think has been an excellent 2 
weeks of debate about a new American policy, a policy which is directed 
at trying to make our energy supply for the future more secure for our 
domestic growth and for our national security.
  We have been waiting a long time for this day. If the Senate, indeed, 
at its pleasure, grants cloture, which I hope we will, it means we will 
bring to a conclusion in short order a long debate and fulfill a 
longstanding need for an American energy policy that is encapsulated in 
this bill, which was produced by the Energy and Natural Resources 
Committee over weeks of hearings and day after day of debate, with 
voting, and finally concluding that the bill that is before us is the 
right thing to do.
  Since then, the Senate has exercised its right to offer amendments 
and discuss them. Some amendments were adopted to change, alter what 
the committee recommended. But in essence, fellow Senators, we have a 
rare opportunity today, in a reasonable period of time--not with 
acrimony but with debate--to pass this legislation. That is, in a 
sense, consistent with the best of the Senate: having amendments openly 
debated, many of them; views, some in accord with the bill, some in 
opposition to the bill here on the floor, as witnessed by those who pay 
attention to what goes on in the Senate.
  So I say, as one who has been a participant for a few years, this is 
an effort to bring this matter to a vote in the Senate so we can bring 
this legislation to the House of Representatives. Our Constitution 
requires that both Houses agree on the legislation. Some do not 
understand that our Constitution is rather conservative when it comes 
to passing legislation. You do not just have your vote in the Senate; 
the House has theirs. Then you have to go to conference and agree on 
the same text in both Houses, which is done by a committee called a 
conference committee.
  That will occur only when we have voted out a bill. We will vote out 
a bill only when we have completed debate under our rules. We probably 
will not conclude debate for a long time unless cloture is imposed.
  I believe on a domestic bill, cloture should not be invoked 
arbitrarily or in advance of a reasonable amount of time. People should 
be permitted to talk, to amend. But, fellow Senators, we have been at 
this on the floor for enough time. And when you consider the prior 
efforts, I believe the American people are wondering why we cannot get 
something done. Why more time? The purpose for this activity called 
cloture is to say we have had enough time. With cloture invoked, sooner 
rather than later, the bill will be voted ``yes'' or ``no'' by the 
Senate.
  So we seek that. That is the privilege of saying to the Senate, we 
are going to vote ``yes'' or ``no'' soon rather than later. The way we 
can do that is by voting ``aye'' on the cloture vote.
  I note the presence of Senator Bingaman. I have additional time. 
Would the Senator care to address the issue of cloture today?
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I appreciate my colleague's comments and 
his willingness to let me speak for a few minutes.
  I join him in urging that we go ahead and invoke cloture on the bill. 
I do believe we have had a good debate on the Senate floor. We have had 
a good opportunity for amendments to be offered. The process has been 
open. I have supported some amendments that have been offered to the 
bill; I have opposed others. I note my colleague has done the same. I 
believe each Senator has done the same. That is exactly how the Senate 
is intended to operate.
  Obviously, there are Senators who still have amendments they would 
like to offer. Some of those amendments will be germane after the 
cloture vote occurs even if cloture is invoked. Those amendments can be 
considered by the Senate and disposed of at that time. That is 
appropriate.
  But I understand the scheduling problems the majority leader has and 
the Democratic leader has as well. They believe they need to move to 
other legislation early next week, or even as early as tomorrow. 
Therefore, they would like to go ahead and conclude work on this bill.
  This bill is not coming to the Senate sort of ab initio, as they 
teach you in law school. It has come here after we had a substantial 
debate on these very same issues two Congresses ago, and again last 
Congress. As the Senator from New Mexico pointed out, we had a very 
thorough and open process in the committee. This process we have had on 
the floor has been a thorough and open process as well.
  I believe the bill that came out of committee was a good product. It 
was a substantial improvement over current law. And I said that. I 
believe it has been further improved as we have been working here on 
the Senate floor in considering amendments to the bill, so I do not 
doubt it could be improved even more. Some of the amendments which 
Members may still want to offer may well improve it more, and I may be 
a strong supporter of those. But clearly this has been a process that I 
think has given everyone an opportunity to participate and offer 
amendments. It has been a process that has led to a good product which 
we can take to conference with the House of Representatives. As I say, 
there will be additional opportunities, even if cloture is invoked, for 
us to further improve this bill with germane amendments.
  So I will support cloture. I know each Senator can make his or her 
own mind up about that vote, but I believe the chairman of our 
committee has worked diligently to get us to this point. I have tried 
to work with him in that process. I think the majority leader and the 
Democratic leader are very focused on trying to get conclusion on this 
legislation. I support their efforts.
  I yield the floor.
  Mr. DOMENICI. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DOMENICI. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. I ask for the regular order.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  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 on H.R. 6, a bill 
     to ensure jobs for our future with secure, affordable, and 
     reliable energy.
         Bill Frist, Pete Domenici, Lamar Alexander, Kay Bailey 
           Hutchison, Jim DeMint, Michael Enzi, Ted Stevens, Larry 
           Craig, Craig Thomas, Mike Crapo, Conrad Burns, David 
           Vitter, Richard Burr, Kit Bond, Wayne Allard, Jim 
           Inhofe, Lisa Murkowski, George Voinovich.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on H.R. 6, 
as amended, the Energy Policy Act of 2005, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Minnesota (Mr. Coleman).
  Further, if present and voting, the Senator from Minnesota (Mr. 
Coleman) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from North Dakota (Mr. 
Conrad, the Senator from Minnesota (Mr. Dayton), and the Senator from 
North Dakota (Mr. Dorgan) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 92, nays 4, as follows:

[[Page 13972]]



                      [Rollcall Vote No. 152 Leg.]

                                YEAS--92

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Cochran
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McConnell
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                                NAYS--4

     Corzine
     Durbin
     Lautenberg
     McCain

                             NOT VOTING--4

     Coleman
     Conrad
     Dayton
     Dorgan
  The PRESIDING OFFICER. On this vote, the yeas are 92, the nays are 4. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. DOMENICI. Madam President, 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. DOMENICI. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LAUTENBERG. Madam President, parliamentary inquiry.
  The PRESIDING OFFICER. The Senator will state his inquiry.


                           Amendment No. 839

  Mr. LAUTENBERG. Madam President, I have an amendment, Amendment No. 
839, related to altering scientific documents. Would that amendment be 
germane postcloture?
  The PRESIDING OFFICER. It would not be germane postcloture.
  Mr. LAUTENBERG. I thank the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Regular order, Madam President.
  The PRESIDING OFFICER. Is the Senator making a point of order against 
the amendment?
  Mr. DOMENICI. I make a point of order that the amendment is not 
germane.
  The PRESIDING OFFICER. The point of order is sustained. The amendment 
falls.


                           Amendment No. 891

    (Purpose: To modify the section relating to the coastal impact 
                          assistance program)

  Mr. DOMENICI. Madam President, I call up amendment No. 891 and ask 
for its immediate consideration.
  The PRESIDING OFFICER. Without objection, the pending amendments are 
set aside. The clerk will report.
  The legislative clerk read as follows:

       The Senator from New Mexico [Mr. Domenici], for himself, 
     Mr. Bingaman, Ms. Landrieu, Mr. Vitter, and Mr. Lott, 
     proposes an amendment numbered 891.

  Mr. DOMENICI. Madam President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Madam President, I am pleased to be a cosponsor of this 
amendment, along with the Senator from Louisiana, Mr. Vitter, and many 
other Senators. We feel very strongly about this particular amendment.
  I first thank the chairman of the committee and the ranking member 
for the excellent work they have done to move this Energy bill forward 
to this point. It has been a very difficult, tedious, and time-
consuming task that has required a lot of patience and a lot of 
compromises to get a bill of this nature in this climate to this point. 
We appreciate their patience and their skill.
  This is an amendment both leaders have been working on for many 
weeks. Amendment No. 891 would basically direct a portion of revenues 
to six States in the United States that have production off their 
shores, Louisiana being the prime State that produces so much of that 
energy resource for our Nation, but in addition, obviously Texas, 
Mississippi, to some degree Alabama, there is some production off the 
coast of California today--not much but some--and even the State of the 
Presiding officer, the State of Alaska, that contributes so much to the 
Nation's energy reserves, has some production off the coast.
  Because of this tremendous contribution we have made these many 
years, let me say willingly and very ably, so many small, medium, and 
large companies have worked to perfect the technology. They have 
invented the tools, established the procedures, and have been pioneers 
in this industry. Many of the tools and technology invented for the 
environmentally responsible extraction of these minerals--not just in 
the United States but around the world--have actually been invented and 
developed in Louisiana. We are extremely proud of the contribution we 
have made.
  In addition to this technological contribution we have made, we have 
contributed over $150 billion to the Federal Treasury since this began.
  I see my colleague from Louisiana on the floor ready to speak in a 
few moments, but I would like to make a couple of other comments.
  The wetlands in Louisiana are not Louisiana's wetlands, they are 
America's wetlands. They are host to some of the largest commercial 
shipping in the world. There are seven ports that comprise the ports of 
south Louisiana and, if combined, it is the largest port system in the 
world.
  We have leveed the Mississippi River for the benefit of the Nation, 
not just for Louisiana's benefit. Realize, there were people living in 
Louisiana before the United States was a country. So we have been doing 
this a very long time. Controlling and taming this river, while it has 
been a great benefit to the Nation, has come at great cost to the State 
that holds this mouth of the great Mississippi River.
  What do I mean by that? Because we channeled this river, again for 
the benefit of the Nation so we can ship grain out of Kansas and can 
ship goods throughout this world--north, south, east, and west--and 
serve as the vibrant global port that we are, the river has ceased to 
overflow its banks. So this great delta, the seventh largest in the 
world, is rapidly sinking. If we do not get some infusion of revenue 
through this mechanism and others that we are seeking, we will lose 
these wetlands. It will not be Louisiana's loss, it will be America's 
loss.
  In addition to the commerce we support for our Nation, we also serve 
as a great migratory flyway for all the many bird species in North 
America. If they do not have a place to land when they come up from 
South America and Mexico--that is the place they land, that is the 
place they nest, that is the first land that is available to them off 
the water, and that is the marshland we are losing.
  In addition, this delta, besides the commerce, besides the 
environmental benefits for birds and other wildlife, is the fisheries, 
the nursery for the Gulf of Mexico. More than 40 to 50 percent, 
estimated by scientists, of all the fisheries in the Gulf of Mexico 
have some part of their life cycle spent in this great expanse of 
wetlands.
  I have been so pleased to have Senator Domenici and Senator 
Bingaman--both Senators from New Mexico--come down to Louisiana to fly 
over our marsh and see it. You cannot get there any other way. You 
cannot drive to our coast as you can to the coast in Florida or to the 
beaches in Mississippi where many of us spent many of our years growing 
up. There are actually only two beaches, and they are each only about 5 
miles long. There are no highways. The only way you can get there is by 
pirogue, motor boat, skiff, helicopter, or air boat in the marsh. So 
not

[[Page 13973]]

many people have seen these wetlands. I have pictures to show any 
colleague who would like to see them.
  It is a magnificent stretch of land. The Everglades can fit inside 
it. It is three times the size of the Everglades in Florida. It is a 
huge expanse we are losing. If we do not capture these revenues in some 
annual, reliable amount to help the State of Louisiana put the 
resources into saving this wetlands, it will be, indeed, a great loss 
to America.
  In addition to what this wetlands contributes to the United States, 
it is not only all the above I have described, but it also drains water 
from two-thirds of the United States. Without the ability to drain this 
water out, we would have flooding all the way up the Missouri. As you 
know, because of the geography of our Nation, that water has to leave 
those areas or businesses and communities will flood.
  We think we are making such--we don't think, we know we are making 
such a great contribution to this Nation in so many ways. We think this 
amendment is quite reasonable. There is money available for this 
purpose. It will be shared with these producing States.
  From Louisiana's perspective, this money would be used primarily and 
almost exclusively for the restoration of America's wetlands so that 
these wetlands will be there for our children and our grandchildren.
  It is with great pride I helped to lead this effort, along with my 
colleague from Louisiana and many cosponsors. That number continues to 
grow. We have substantial support because of the leadership of Senator 
Domenici and Senator Bingaman.
  Again, Louisiana has contributed so much. We simply ask an investment 
back to preserve this wetlands, which is America's, and to recognize 
the contribution our State makes to the energy independence of this 
Nation and to the future economic viability of this Nation.
  I want to recognize my colleague from Louisiana, Senator Vitter.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Madam President, I rise in strong support of amendment 
No. 891 as well. I am proud to join my Louisiana colleague, Mary 
Landrieu, in doing so.
  I want to make five important points why this amendment is clearly 
the right thing to do.
  First, as Senator Landrieu said, this amendment has very broad, very 
deep, and very bipartisan support. I thank her for her leadership, as 
well as so many others who have come together and worked very hard to 
craft a responsible amendment to move this issue forward in a concrete 
way.
  Senator Domenici, the chairman of the committee, has led in an 
extraordinary way on this issue and is the primary author of this 
amendment. We thank him. Senator Bingaman, the ranking member of the 
committee, has led on this amendment as well and is a cosponsor and 
supportive of it. We thank him. Senator Landrieu and I, of course, as 
well as Senators Lott and Cochran, Sessions, and others are all coming 
together, very broad based, in a bipartisan way to support this effort. 
That is point No. 1.
  Point No. 2 is this is an utterly fair and just thing to do. In this 
overall debate about an energy bill, we are constantly looking for ways 
to secure our energy future, to increase our energy independence, to 
lessen our dependence on foreign sources, which is so troublesome, 
particularly in a post-9/11 world.
  While in that debate, it is important to remember that there are a 
few States that have been leading that effort and have been doing their 
part all along, particularly these five coastal producing States--
Louisiana, Texas, Mississippi, Alabama, Alaska, and California to a 
much lesser extent. So in this energy debate, it is certainly important 
to remember that some of us have been pulling our weight and far more 
than our weight every step of the way. Yet up until this moment, we 
have gotten virtually nothing for it.
  While oil and gas and other mineral production on public lands 
onshore gives significant royalties to the host State--usually about 50 
percent--that same sort of oil and gas production offshore gives 
virtually nothing to the host State, less than 1 percent.
  That is utterly unfair and this amendment is a small initial step to 
correct that. As Senator Landrieu said, these coastal areas have 
produced $150 billion or more of Federal revenue, virtually no State 
revenue. This amendment would correct that injustice in a very small 
way by capturing a truly tiny percentage of that overall production and 
royalty figure for the host States.
  Point No. 3 is that the host States, the coastal producing States, 
need this revenue to address problems directly related to this oil and 
gas production and our contribution to the Nation's energy security. In 
my home State of Louisiana, we have an absolute crisis going on. It is 
called coastal erosion. The easiest way I can summarize it is as 
follows: Close your eyes and try to picture a piece of land the size of 
a football field. That piece of land disappears from Louisiana, drifts 
out into the Gulf, lost forever, every 38 minutes. That is around the 
clock, 24 hours a day, 7 days a week, 52 weeks a year. The clock never 
stops. It goes on and on.
  That loss is directly related to this oil and gas activity. So we 
have been contributing to the Nation's energy security, but the only 
thing we have gotten directly for it is these monumental problems which 
this revenue will help address.
  Point No. 4 is that this amendment does not open any new areas to 
drilling. It does not provide incentives to open any new areas. 
Personally, I would like to do that. I think more of America needs to 
contribute to our energy security. I think we need to look in other 
areas. But clearly that is very politically controversial and this 
amendment does not attempt to do that in any way. So States that are 
not in the business, that do not want to be in the business, have 
nothing to fear from this amendment.
  Point No. 5 has to do with the budget. All of us, led by Senator 
Domenici, a former budget chairman, have worked extremely hard so that 
this does not bust the budget in any way. We have bent over backward to 
fashion this amendment so it is within all the budget numbers.
  A budget point of order may nevertheless be raised and I expect it to 
be raised. I want to explain what that is because it is not busting the 
numbers built into the budget. There is a reserve fund or a contingency 
fund within the budget that was part of the budget and part of the 
Budget Act specifically associated with the Energy bill. This amendment 
is well within the numbers of that fund and therefore does not go 
beyond the numbers of the budget. However, in the Budget Act, the 
chairman of the Budget Committee has the role of having to sign off on 
the use of that contingency fund. The chairman may not do that. He may 
therefore raise a budget point of order, and that is his right, and I 
respect his right and what he views as his obligation, but I want to 
make the point very clearly that is a technical point of order which is 
fundamentally different from an amendment which busts the budget 
numbers, which goes beyond the numbers built into the budget.
  We have worked extremely hard with the budget chairman's staff, I 
might add, hand in glove with them, to make sure this amendment falls 
within all of the numbers of the budget and is well below that 
contingency fund number specifically for the Energy bill. So if that 
budget point of order is raised, it is valid, but it is, in a sense, a 
technicality because our amendment does not go beyond the numbers built 
into the budget and the Budget Act.
  Mr. GREGG. Will the Senator yield on that point?
  Mr. VITTER. I would be happy to yield.
  Mr. GREGG. Is it the position of the Senator from Louisiana, 
therefore, that when a discretionary program is taken and turned into a 
direct spending entitlement program, that that is a technical point?
  Mr. VITTER. No. The point which I just made was that this amendment 
is well within all of the numbers laid out in the Budget Act. That was 
the point I was trying to make.

[[Page 13974]]


  Mr. GREGG. Madam President, would the Senator yield for a question?
  Mr. VITTER. I will be happy to.
  Mr. GREGG. It appears to be the Senator's position that since this 
budget point of order involves taking a discretionary program and 
making it an entitlement program that that is a technical point.
  Mr. VITTER. That is not my----
  Mr. GREGG. My position is that is not technical.
  Mr. VITTER. If I could clarify and respond to the question, that is 
not my position at all. My position, which I think I laid out pretty 
clearly, is this amendment is well within all of the numbers within the 
budget. It does not bust those numbers. It does not go beyond those 
budget numbers. That is what I said, that is what I meant, and I 
believe to the extent the Senator did not argue the point, it is 
confirmed.
  Mr. GREGG. Madam President, would the Senator from Louisiana yield 
for a question?
  Mr. VITTER. I will be happy to.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. The Senator from Louisiana appears to want to have it both 
ways, that the chairman of the Budget Committee has a right to make 
this point of order because the chairman of the Budget Committee is 
given that authority by the Senate in order to protect the integrity of 
the budget process, and when the chairman of the Budget Committee rises 
and asks a question which is the basis of his point of order, which is 
that this amendment takes a discretionary program and turns it into an 
entitlement program, and asks the Senator from Louisiana does he deem 
that to be a technical point, the Senator from Louisiana says, no, that 
is not my argument. My argument is something else.
  Well, I would simply say to the Senator from Louisiana, he cannot 
have it both ways. He cannot say to the budget chairman he has the 
authority to do this and then say to the budget chairman, when he asks 
the Senator whether it is a technical point when the budget chairman 
elicits why he is doing it, that it is not a technical point.
  It is a very unusual position to take, that moving a discretionary 
program to an entitlement program is a technical point, and that is the 
gravamen of the argument of the Senator from Louisiana.
  Mr. VITTER. Reclaiming my time, I think I have laid out my position 
very clearly. This is a broad-based, bipartisan amendment. This is a 
fair amendment, particularly considering everything that these coastal 
producing States have given the country in terms of our energy 
security. Unfortunately, we are a very small number of States that have 
contributed in that way. This is designed to address a very real crisis 
in Louisiana and other coastal States. By the way, that is not some 
parochial problem. That is a national problem, as my colleague, the 
senior Senator from Louisiana, has outlined. It threatens national oil 
and gas infrastructure. It threatens national maritime commerce and 
ports. It threatens nationally significant fisheries.
  Fourth, we are not opening new areas with this amendment. We are not 
providing incentives to open new areas with this amendment.
  Fifth and finally, we are within all the numbers within the budget.
  I thank the chairman of the committee. I thank Senator Bingaman and 
others. I thank my colleague, Senator Landrieu, for her leadership on 
this issue.
  I yield back my time.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Madam President, I rise in support of this amendment. I 
am a cosponsor of this amendment. It would dedicate funding for coastal 
impact assistance to States that currently produce oil and gas from the 
Federal OCS adjacent to State waters.
  I have visited the coastal area near Louisiana with Senator Landrieu. 
I know of the very serious concerns which many in that State have about 
the loss of coastal wetlands caused by a variety of factors, including 
some activities related to the oil and gas development that has 
occurred there. Senator Landrieu has been a tireless advocate for her 
State on this issue and I know her colleague has as well.
  It is important for my colleagues to know what the amendment does not 
do. The amendment does not modify any moratorium on OCS leasing. It 
does not provide an incentive for States to start production. It does 
not provide for a State opt-in or opt-out for resource assessment or 
leasing activities. What the amendment does is establish a coastal 
impact assistance program and provide a stream of revenues for coastal 
impact assistance to States that already have OCS production off their 
coast.
  Under the amendment, funding would be made available to address the 
loss of coastal wetlands as well as for other projects and activities 
for the conservation, protection, and restoration of coastal areas, 
mitigation of damage for fish and wildlife and other natural resources, 
and implementation of federally approved marine coastal and 
conservation management plans.
  In addition, up to a fixed percentage of the funding could be used 
for mitigation of the impact of OCS activities through funding of 
infrastructure projects. In other words, the amendment allows funding 
of certain infrastructure projects and public services, but the amount 
of funds that can be expended for those purposes is capped.
  Before concluding, let me clarify one significant point. I support 
the amendment because it does provide dedicated funds from the Treasury 
for coastal impact assistance. The amendment does not provide a 
percentage of revenues or future revenues or otherwise call for 
revenuesharing from the Outer Continental Shelf. I have stated 
repeatedly my opposition to that idea. It is my view that the oil and 
gas resources in the OCS belong to the entire Nation, and the revenue-
sharing arrangement, which was earlier discussed but is not part of 
this amendment, would run contrary to that principle.
  In closing, I reiterate my support for this amendment. I hope my 
colleagues will join me in voting aye for the amendment and waiving the 
Budget Act, if necessary.
  I yield the floor.
  Ms. LANDRIEU. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  Mr. GREGG. I object.
  The PRESIDING OFFICER. The Senator may not object to a quorum call. 
The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GREGG. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GREGG. Madam President, I do not sense that the manager of the 
bill is on the floor, but I would be interested in knowing whether the 
Senators from Louisiana wish to enter into a time agreement so we can 
move to a vote on this point of order.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Madam President, it is my understanding there are other 
Members who have asked to be given a chance to speak, some in 
opposition to the amendment, perhaps some additional in favor. So we 
are not able to go to a vote at this point.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Did the Senator from Louisiana wish to respond to my time 
agreement? I was going to speak.
  Ms. LANDRIEU. No. I am sorry. I am wondering if we could have some 
additional time. Did the Senator want to speak for a certain amount of 
time?
  Mr. GREGG. I understand there is an objection. I believe I have the--
do I have the floor?
  The PRESIDING OFFICER. The Senator from New Hampshire has the floor.
  Mr. GREGG. It is my understanding from the Democratic leader on the 
bill that there is an objection to any time agreement at this point so 
there is no point in even entering a discussion on that matter, I 
guess.
  Madam President, I rise to address this issue as chairman of the 
Budget Committee. I begin with this rather

[[Page 13975]]

unfortunate characterization that a budget point of order is a 
technical event around here.
  Budget points of order are not technical events. In my humble 
opinion, they are rather important. I guess that is because I am 
chairman of the Budget Committee. We pass a budget and we say as a 
Congress and as a party specifically, because nobody on the other side 
of the aisle participated in passing the budget, that we are going to 
discipline our house, we are going to be fiscally responsible. In fact, 
the budget we passed was extremely disciplined. It limited nondefense 
discretionary spending to a zero increase over the next 3 years. For 
the first time in 7 years, it attempted to address entitlement spending 
because we see that as probably the most significant threat to our 
fiscal integrity as a nation.
  It had very aggressive language in the area of enforcement. Certain 
accounts were set up, such as the reserve account which has been 
referred to, in order to make sure that dollars were spent 
appropriately and not whimsically or outside the purposes of the 
budget.
  That budget passed. It was voted on. It passed by a couple of votes 
but with no Democratic support. However, it was the first budget to 
pass this Congress in 2 years and only the second time in 4 years did 
we actually get a budget out of the Congress. I think it is important 
that we look to the budget for leadership, or at least for guideposts 
as to how we are going to function around here. To represent that 
points of order made under the budget might be technical is, to say the 
least, inconsistent with the purposes of the budget and the points of 
order under the budget.
  There are a lot of points that have been raised in presenting this 
case. There have been substantive points and then there have been 
arguments that it is not outside the budget and therefore should be 
paid for.
  Let me speak initially to the substantive points. I do respect the 
comments of the senior Senator from Louisiana, when she quite 
forthrightly stated that the problem that is being caused in Louisiana, 
relative to loss of frontage and land, is a function of the levying 
situation--which benefits the Nation. I do not deny that. I read the 
book ``Rising Tide'' and was amazed at the impact of that flood and 
know that the levee situation addresses that as well as commerce.
  But here is the essential problem. I have reviewed this, briefly. I 
haven't reviewed it in depth, but I asked my people who are expert in 
this area, especially those who work in NOAA or have worked in NOAA, 
what causes this erosion. I agree with the Senator from Louisiana, the 
senior Senator, that the erosion is essentially being caused by the 
levees.
  It is not a function of drilling offshore, and therefore there is no 
nexus here. Between drilling offshore and the need to restore, the 
conservation issues around the land that is being lost, there is no 
nexus. A scientific nexus does not exist. The issues are really 
independent of each other. How you fund the restoration of those shore 
lands is the issue at hand. But what I think is important is that, from 
a substantive policy debate purpose, the problem is not being caused by 
energy production, and the amendment, as proposed, has no relationship 
to energy production, and this is an Energy bill. In other words, this 
amendment does not create new production. This amendment does not 
create new renewables, and it does not create conservation.
  This amendment conserves land, but the land that is being lost is not 
necessarily being impacted by energy production, or at least there is 
no scientific evidence to that effect that I can glean. It hasn't been 
presented, and I think the senior Senator from Louisiana made the case 
better than I could make it on that point. So there is not a 
relationship between what this amendment wants to gather money for and 
the Energy bill.
  Second, I think it is important to note that this amendment uniquely 
benefits five States at the expense of the General Treasury. It 
essentially says those five States have a unique conservation issue 
which the General Treasury has an obligation to support over other 
States which have conservation issues.
  There may be other places that have conservation issues which are 
probably directly related to the production of energy. I suspect West 
Virginia has some very serious conservation issues dealing with the 
production of coal. There is a pretty good nexus. But this amendment 
doesn't say we use general revenues, that we use the General Treasury 
to support that effort. No, it says five States have gathered together 
to take money out of the General Treasury for the purposes of 
addressing what they see as their conservation needs, which have no 
nexus of any significance that can be proven to the energy production.
  Granted, those States do produce a lot of energy and that energy is a 
benefit to this country and I appreciate the fact that they do that. 
But New Hampshire produces more energy than we consume--a significant 
amount more than we consume--because we built a nuclear plant. I will 
tell you that produced some conservation issues. But we are not seeking 
a special fund, for which the taxpayers will have to pay, in order to 
take care of that issue that will be uniquely tied to New Hampshire.
  Ms. LANDRIEU. Will the Senator yield?
  Mr. GREGG. After I finish my comments, I will be happy to yield for a 
question.
  The more appropriate approach here, if this is what the game plan is, 
is probably to fund something such as--use these moneys, if you are 
going to take money out of the General Treasury and set up an 
entitlement program for a few States--is to say that program should be 
for more than a few States. It should be for all the States that have 
impact from conservation. But I don't think we should be doing even 
that because I don't think we should be creating new entitlement 
programs, which is the gravamen of this case, creating a new 
entitlement program.
  Louisiana already benefits rather uniquely--and I think this point 
should be made, and folks should focus on it a bit--from a variety of 
different funds which are generated by energy, which help them in the 
area, theoretically, of conservation. They get 100 percent of the 
royalties for the first 3 miles of drilling. Last year that was over 
$800 million. I think they get 27 percent of the rights for the next 3 
miles, and last year that was about $38 million. What we are talking 
about are royalties beyond those areas, in Federal water--not State 
water; Federal taxpayers, Federal water.
  Louisiana is already receiving a fair amount of money through the 
present royalty process. In addition, due to the creativity--I suspect 
the senior Senator from Louisiana was involved in this, and I know the 
prior Senator from Louisiana was involved in this--through their 
creativity, when Dingell-Johnson was reauthorized, they managed to get 
a dedicated stream of money for conservation land, and they are the 
only State in the country that has this; the only State that has a 
dedicated stream of money.
  I congratulate them for their creativity, but I don't think they 
should get another dedicated stream of money. They already did it once. 
Why should they get it twice? Every time you start a lawnmower in this 
country, whether you start it in Louisiana or whether you start it in 
upstate New York or Montana or Washington or Oregon, every time you 
pull that cord and it doesn't start and you pull it again and you 
finally get it started, you are sending money to Louisiana.
  Every time somebody in New Hampshire gets on a snowmobile, you are 
sending money to Louisiana. A lot of people don't get on snowmobiles in 
Louisiana, but in New Hampshire they do. But we are sending our dollars 
to Louisiana every time we take out a snowmobile. It is a dedicated 
stream. I think last year it was $767 million they received out of that 
fund, unique to Louisiana. I guess they thought it was such a good idea 
they would come back again: Let's get another dedicated

[[Page 13976]]

stream of money. What the heck, if it worked once, why not try it 
twice?
  The problem they have, of course, is that this time there is a budget 
point of order against it. So they have to convince 60 people that 
Louisiana should get this unique treatment, after Louisiana already 
gets 100 percent of the royalties from the 3-mile area, which is over 
$800 million; 27 percent of the royalties from 3 to 6 miles, which is 
about $38 million; and $71 million from Dingell-Johnson, which no other 
State gets in that dedicated stream.
  Then they put it forward for a program which has no relationship to 
energy production. Interestingly enough, if you read the amendment, it 
appears that not only does it have no relationship to energy production 
but that the money could actually be spent on just about anything. It 
could probably go into the General Treasury of Louisiana. It basically 
will become a revenue-sharing event. It doesn't have to go to 
conservation. On page 14 it says:

       Mitigation of impacts of Outer Continental Shelf activities 
     through the funding of onshore infrastructure projects and 
     public service needs.

  ``Public service needs'' is a term that means you can fund anything. 
You could fund the fact that fishermen are not having a good year 
fishing or that the casino didn't have a good year of gambling or 
maybe, as we have seen occasionally in the past, that you wanted to 
build a Hooters in order to hold the shoreline in place. ``Public 
service needs'' is a pretty broad term, and I know there are some very 
creative people who, when they see language such as that, see Federal 
revenue sharing. Give me the dollars, I am going to spend it on 
whatever.
  So this amendment not only does not have a nexus to energy, it 
doesn't even necessarily have a nexus to conservation with that 
language in there. So it has some serious problems.
  Those are a few of the substantive problems. There are obviously 
more. Just the issue of fairness is probably the biggest one.
  But the bigger issue, of course, is the attack on the General 
Treasury. The representation that this is a technical event when you 
create an entitlement, to me, affronts the sensibility of fiscal 
responsibility. The creation of entitlements around here has become a 
game. What happens is the Appropriations Committee, of which I am a 
Member--and I honor my service there and appreciate my chance to serve 
on it--has given up massive amounts of spending responsibility to the 
entitlement side. Why? Because every time they create an entitlement to 
do something which is a discretionary program, it frees up money to 
spend on some other discretionary program. So it is a very attractive 
event, quite honestly, to create an entitlement for a discretionary 
program because that gives an appropriator freedom to spend the money 
that has just been freed up--again.
  That is how you end up driving up Federal spending. Because suddenly 
you have taken money, for which there was going to have to be some 
prioritization because the Appropriations Committee would have had to 
say: If we spend ``X'' million here, we can't spend ``X'' million over 
there because we can't have it because we are subject to a budget cap. 
You take that money and put it over on the entitlement side so that 
money can be spent again.
  That is why this is such an outrage as an approach, creating an 
entitlement. There is no way that, as budget chairman, in good 
conscience, I can allow this type of activity to go forward without 
being at least noticed--without at least putting up the red flag and 
saying: Hey, folks, this is highway robbery. This is a attempt to raid 
the Treasury, to stick it to the taxpayers twice.
  That is why I raised the point of order. I will probably lose it 
because there is a log rolling exercise going on around here that is 
significant. But it doesn't mean I should not raise it; That is my job. 
That is what I am here for, I guess--temporarily, anyway.
  So that is the essence of the problem. Substantively, this is not an 
energy issue. The State of Louisiana already has many revenue streams, 
including, ironically, unique revenue streams which they have been 
successful in the past in gaining. This would be an additional revenue 
stream which would be inappropriate to limit to five States because 
conservation is not a unique problem for Louisiana, and there are other 
States that actually have higher equity arguments relative to impacts 
from energy directly related to where the conservation dollars are 
going.
  I am sure there are significant conservation issues in Louisiana 
relative to energy production, but the loss of this frontage doesn't 
appear to be one of them. And creating an entitlement where there was a 
discretionary program is just bad fiscal policy.
  So that is the reason I will be making a point of order at the proper 
time. I am perfectly happy to go to that vote as soon as the parties 
wish to do so. I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Madam President, I wanted to briefly respond to each of 
the major points that the distinguished chairman of the Budget 
Committee has made because I believe, quite honestly and sincerely, he 
is misinformed about each of these points.
  No. 1, the idea that there is no causal linkage between the problem, 
at least in Louisiana we are trying to address, and offshore oil and 
gas production: Nothing could be further from the truth. I am glad the 
distinguished Senator has read ``Rising Tide.'' But I suggest he needs 
to read a lot more and maybe come to Louisiana.
  There are, of course, several causes that have all worked to create 
this coastal erosion problem, but one of the biggest has been all of 
the oil and gas service activity which comes off the swampy coast of 
Louisiana. All of that 50 years of activity has created channelization 
of our marshes. That has directly led to the intrusion of saltwater 
into the marshland, the loss of vegetation, which is the glue that 
holds it together, and this coastal erosion.
  There is an absolute identifiable, scientifically proven, causal 
connection between offshore oil and gas activity and this coastal 
erosion problem. It is not speculative. It has been scientifically 
proven. Are there other contributing factors? Of course. Is levying of 
the Mississippi a significant factor? Of course. But there is a direct 
causal connection.
  Point No. 2, the chairman has suggested there is no relation between 
this money and energy production. Again, nothing could be further from 
the truth. The amendment specifically states these States share in this 
fund in direct proportion to their Outer Continental Shelf energy 
production. The way to calculate how much each State gets is according 
to what activity, in meeting the Nation's energy needs, goes on off our 
coast. There is a direct connection between the calculation of the 
money and this activity. Again, a direct connection in terms of what 
money the States get directly dependent on what OCS oil and gas 
activity exists.
  Point No. 3 causes me the most angst being from Louisiana, the notion 
that there is no justice to this amendment, or that this is somehow a 
rip-off to the advantage of Louisiana and other coastal States. Nothing 
could be further from the truth. We have worked 50 years to produce 
energy in this country. We are one of the only States in this country 
to have done this. The other States are also represented in this 
amendment. Yet we have gotten hardly anything for it and truly hardly 
anything for it in terms of direct revenue to the State.
  States that have onshore mineral production or onshore oil and gas 
production on public land get a 50-percent royalty share. A State such 
as Louisiana that has this production offshore in the OCS gets less 
than 1 percent. Yes, there is a justice issue, but the justice issue is 
weighted in our favor.
  I note two things, in particular, the distinguished Senator from New 
Hampshire mentioned. He talked about other conservation needs. What 
about the conservation needs brought about by coal activity in West 
Virginia? The chairman should note West Virginia gets a 50-percent 
royalty share that directly relates to that activity. Put us

[[Page 13977]]

on par with West Virginia. We will take that; we will take 50 percent. 
The fact is this is a pittance compared to that.
  Is there a justice problem? You bet there is. West Virginia produces 
coal, and that is great for the country, and they get a 50 percent 
royalty share. We produce oil and gas, and that is great for the 
country, and we get less than 1 percent. This is a justice issue, and 
all the justice arguments are in our favor.
  The Senator also mentioned that Louisiana has a windfall because 3 
miles off our coast is State waters. That is true. But the 
distinguished Senator from New Hampshire should note that for Texas, 
that seaward boundary is 9 miles. For Florida, that seaward boundary is 
9 miles. Yet because of historical accidents and idiosyncracies, it is 
only 3 miles for Louisiana and Mississippi and Alabama. Everywhere else 
it is 9 miles or more. For Louisiana, Mississippi, Alabama, it is a 
third of that, about 3 miles.
  You bet there is a justice issue. But, again, the injustice for 50 
years and more has been against us. We are trying to correct that in a 
truly modest way with this amendment.
  Fourth and finally is the budget point. I reiterate and am very 
specific and very clear: This amendment is wholly within the numbers 
built into that budget. As the chairman knows, built into the budget is 
a fund specifically dedicated to the Energy bill. This amendment is 
well within those numbers.
  There are lots of things in the Energy bill that are mandatory 
spending. There are lots of tax provisions. There are lots of other 
provisions that basically can amount to mandatory spending. This is the 
same as that. There are lots of other things that are not subject to 
future decisions or future appropriation or other decisions. This is 
tantamount to that, and it is within the numbers built into the budget 
for the Energy bill. We have bent over backwards, worked very hard, to 
make sure that was the case.
  I yield time to the senior Senator from Louisiana, Ms. Landrieu.
  The PRESIDING OFFICER. There is no time.
  The Senator from Louisiana.
  Ms. LANDRIEU. I ask unanimous consent to speak for 5 minutes since we 
have no timeline.
  The PRESIDING OFFICER (Mr. Ensign). Without objection, it is so 
ordered.
  Ms. LANDRIEU. Mr. President, I appreciate so much the support we have 
on this amendment from both sides of the aisle. A great deal of thought 
has gone into this amendment. My colleague from Louisiana answered 
every single one of the objections raised against this amendment by the 
Senator from New Hampshire. I add just a few words.
  First of all, the Senator has done a very good job as budget 
chairman. I have enjoyed working with the Senator on many issues, 
including the education reform issue and trying to move toward a 
balanced budget. I share his goals in so many ways.
  He, of course, is a great advocate for his State, although he is 
somewhat critical of an act that we fondly, and in a very appreciative 
way, refer to as the Breaux Act in Louisiana. We take that in Louisiana 
as a great compliment when a Representative, a Senator or a 
Congressman, can use their committees to do something that is so 
warranted and so worthy and so necessary for a State. Senator Breaux 
served so ably in this Senate for many years. We refer to that act as 
the Breaux Act.
  The Senator is correct, we get a relatively substantial amount of 
money, $50 million a year. It started out at $20 to $25 million and has 
gone up to $50 million. However, that is a drop in the bucket 
considering the money that Louisiana has generated for this Nation and 
for the Senator's general fund. There has been $155 billion generated 
since 1953. Last year alone, $5 billion came off the coast of 
Louisiana. That would not be possible without our State agreeing to lay 
the pipeline, drive the pipe, allow the trucks to come down our two-
lane roads that go underwater even when it rains. Forget the storm and 
hurricanes. Five billion dollars last year.
  If any State has contributed to the Federal Treasury anywhere near 
that amount with their resources, please, I would like to know. No 
other State, except the State of Wyoming, contributes more to energy 
independence than the State of Louisiana. Wyoming gets prize 1 and we 
get prize 2. I am speaking about all sources--nuclear, hydro, 
geothermal, wood, wind, waste, solar, oil, natural gas, and coal. All 
of it. The States of Wyoming, Louisiana, West Virginia, Alaska, New 
Mexico, Kentucky, Oklahoma, Montana, North Dakota, Colorado, and Utah, 
generate more energy in their State than they consume, more energy than 
their industries need, and we export it out. And we are happy to do it 
because we actually believe in our State what we say in the Senate, 
that we want to be energy independent.
  These States are at the top of the chart for usage: California, New 
York, Ohio. There are others.
  People say every State contributes what it can. Some produce sweet 
potatoes, some produce Irish potatoes, some States have beaches, some 
States have mountains. I understand that argument. That is what makes 
our Nation great. We all contribute to this great whole. But Louisiana 
contributes more than its share and it has since 1940.
  Are we asking anybody else to do that? No. Are we trying to move 
moratoria? No. We are saying for the money we contribute--we understand 
the OCS does not belong to us; we do not claim it does--we are saying 
for the money we contribute, could we please have six-tenths of a 
percent. If it means an entitlement, let me say to the Senator, the 
people in Louisiana are entitled. They are entitled to the money we 
helped contribute to the general fund. I don't take that as an insult, 
I take it as a compliment to the people of my State. We are entitled to 
some small amount of money we are asking for. We are willing to share 
it with the States that did not produce nearly the amount we produce, 
but we are happy to do that. In fact, the Presiding Officer may 
remember we have had bills to try to share the money with everyone. No 
matter what we try, we can share with everyone, but it is never quite 
enough, never quite right.
  We have it right this time because we probably have over 60 
supporters of this amendment to give Louisiana and these coastal States 
a small share of the money that, yes, they are most certainly entitled 
to.
  Second, in this bill, the use of this money will go to wetlands 
conservation and resources. There have been a lot of pictures shown of 
the coast. I will show one of my favorites because this is what our 
coast looks like. This is what we are trying to keep healthy, a place 
where wildlife can flourish. A lot of people live near marshes like 
this. When they open their kitchen windows, they do not see interstates 
or big highways, they see this marsh.
  If you live near the Atchafalaya and you open your back windows, you 
will see a beautiful cypress forest. Most are gone in North America, 
but we are fortunate to have some in Louisiana we are trying to 
preserve. If you go out near Lake Maurepas around Lake Pontchartrain, 
this is what you see when the sun sets in the evening.
  I am tired of people coming to the Senate and putting up pictures of 
pelicans with oil all over them. We are wise people. We are an 
industrious people. We are a people who care about our environment. We 
have cared about it for hundreds of years. And we continue to try to 
save it.
  The Senator from New Hampshire can most certainly appreciate how much 
we love our State because he loves his, and how smart the people in 
Louisiana are to use the resources appropriately, the Senator would 
understand that these are some of the extraordinarily beautiful places 
that we are trying to save.
  There is a delta that is growing in Louisiana. It is the Atchafalaya 
Delta. And because of its natural beauty and because the water 
continues to flow and because of the good technologies our great 
universities have contributed to understanding the ecology of a delta--
there is no delta in New Hampshire, I don't believe. The last time I

[[Page 13978]]

checked there wasn't one, but there is a big one in Louisiana, the 
seventh largest delta in the world. It is a growing delta. If you 
looked on a map from the satellite, you could see there is land growing 
off the coast of Louisiana. We are proud that this Atchafalaya Delta is 
growing. We are preserving it. The State is spending millions of 
dollars to buy this land and preserve it.
  Any argument in the Senate that the people of Louisiana are sitting 
around twiddling their thumbs, not smart enough to figure this out, is 
an insult. I don't think that is what the Senator meant, but sometimes 
people in Louisiana hear words in the Senate that lead them to believe 
that might be the conclusion. I am certain that is not what he meant.
  We have every intention of using this money to preserve these 
wetlands, to make the place that we have lived for over 300, 400 years 
more beautiful, and most importantly to make it secure for the future. 
As this marsh goes away, it threatens not only the life and livelihood 
and investments of the 2 million people who happen to live there and 
the 1 million people who live on the coast of Mississippi--because this 
marsh land protects them, as well--it also puts at risk billions and 
billions of dollars of infrastructure that the oil and gas industry has 
invested for the benefit of every single solitary American, whether 
they live in New Hampshire, Maine, Illinois, California, or Florida.
  The Senator from Louisiana and I have made our points very well. We 
appreciate the work of the Senator from New Hampshire and his work on 
the budget. We understand he has a tough job. But we have a job to do, 
as well. That job is to get six-tenths of 1 percent of the money that 
we generate for this Nation without bellyaching about it, without 
complaining about it. We have patiently and consistently asked for some 
fair share.
  Yes, Senator Breaux was quite successful in managing a small amount 
of money, but the tab that we have, the Corps of Engineers has helped 
us to appreciate. The tab that we have to pick up right now in our 20/
50 plan is estimated to be $14 billion.
  So am I to believe the Senator from New Hampshire expects the 4.5 
million people in Louisiana to pick up the tab--$14 billion--to fix the 
wetlands that is not ours but belongs to everyone, that we did not 
destroy but the Mississippi River leveeing destroyed, and put taxes on 
us to do this? I do not think he would suggest that.
  This is a partnership we ask for. We will do our part. The Federal 
Government should do its part. We are going to continue to press this 
issue. I am pleased to be able to answer some of those questions and 
concerns.
  Finally, this is a picture of the wetlands itself from a satellite 
view. This is Louisiana's coast. It is very different from Florida, 
very different from California. As I said, most people have never quite 
seen it because there are only two places you can get to. One is Grand 
Isle, which is shown right here, that tiny, little place. It is a 
beautiful little island, but it keeps getting battered by the 
hurricanes that continue to come. And Holly Beach is somewhere right 
around here on the map. It is too small to see on the map.
  There are only two roads you can get to. No one can see our coast 
unless you are one of the thousands of fishermen who come fish and tie 
their boats up next to the rigs. They actually fish next to the oil and 
gas rigs. That is where the best fishing is in the Gulf of Mexico. So 
unless you are one of those fishermen, or one of the trappers who have 
trapped here--for hundreds of years families have trapped here--you 
would not know where this is or what it looks like. But we do because 
we represent this State.
  We are losing this land and must find a way to save it.
  This amendment is a beginning. My colleagues have been so patient. 
Our colleagues have been so helpful. Chairman Domenici and Ranking 
Member Bingaman have seen this land.
  Again, as my partner from Louisiana said--and I am going to wrap up 
in a moment--this does not open moratoria. It is not an opt-out or opt-
in amendment. It is simply a revenue-sharing amendment. We believe the 
people of Louisiana and Mississippi and Texas and California and Alaska 
and Alabama are entitled to some of the money, a small amount of money 
they are contributing to the general fund that helps us keep our taxes 
low and funding projects all over the Nation.
  Mr. President, 30 more seconds. The Senators have been so patient, 
but I want to say this one response.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. LANDRIEU. When the Senator says no other States share the 
revenues, that is inaccurate. I know he is aware that interior States 
share 50 percent of their revenues from Federal land in their States. 
Louisiana does not have a lot of Federal lands. Texas has very little 
Federal land. Mississippi does not have much Federal land. Most of that 
is in the West. We are different. We are not the West. We are the 
South, although Texas could claim to be both. But Louisiana and 
Mississippi are Southern States. We do not have a lot of Federal land. 
What we do have is a lot of land right off of here, as shown on the 
chart, that belongs to the Federal Government. But the Federal 
Government could not get to it unless we allowed pipelines. There are 
20,000 miles of pipelines put under this south Louisiana territory to 
go all over the country, to keep our lights on and our industries 
running.
  So again, there is revenuesharing. We would like our share. This is 
going to go for a good cause, for the preservation of an extraordinary 
marsh. It is time for us to make this decision today for Louisiana and 
the coastal States.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I appreciate the forthrightness of the 
Senator from Louisiana. She has made my case. She says it is 
revenuesharing. I agree with her. She says it is an entitlement. I 
agree with her. She says they want their share. I agree that is what 
this plan would do. It would create a new entitlement. It would take 
money from the general fund and send it to Louisiana.
  Fifty-four percent of the money under this amendment goes to 
Louisiana. The amendment started out as a $200 million a year 
amendment. Now it is up to $250 million a year, which would mean 
Louisiana would get about $135 million.
  The issue of whether it violates the budget is obvious. It does. And 
the issue of whether it is technical is obvious. It is not technical. 
It would create a new entitlement. And it is certainly not technical to 
say five States should have a unique role in conservation revenues from 
the Federal general treasury, that they should have a unique right to 
that as compared to other States which have equal arguments of equity 
relative to conservation.
  So it is very hard to understand--well, no, it is not hard to 
understand. The Senator from Louisiana made the case. They want their 
share, they want revenuesharing, and they want an entitlement. That is 
what they are going after here. It is a grab at the Federal Treasury. 
Maybe they will be successful at it. But before they do that, they are 
going to have to at least overcome a point of order and vote to 
disregard the budget.
  At this point, I do make that point of order. Mr. President, this 
additional spending in this amendment would cause the underlying bill 
to exceed the committee's section 302(a) allocation; and, therefore, I 
raise a point of order against the amendment pursuant to section 302(f) 
of the Budget Act.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Mr. President, I move to waive the applicable sections of 
the Budget Act with respect to this amendment.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I think the fact that this budget point of 
order has to be waived makes the case there is a budget point of order 
that lies. It is not an insignificant point of order when it involves 
creating a new entitlement.
  Mr. President, I yield the floor. I would be happy to vote on this 
now,

[[Page 13979]]

but I understand the other side has reservations about voting now. But 
it is fine with me to go to a vote.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, first, let me say to the Senator from 
New Hampshire----
  Mr. GREGG. Can I get the yeas and nays on the motion to waive?
  Mr. DOMENICI. Of course.
  Mr. GREGG. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, might I say to the Senator from New 
Hampshire, of course, this motion is debatable, as the Senator knows. 
We do not want to take a lot of time, and we do not want them to take a 
lot of time. But we have objection to proceeding from the other side, 
so we are going to be here a while. Sooner or later we will vote, even 
if it is at the end of 30 hours. Everybody should know that. So whoever 
is delaying this, all the other amendments are waiting.
  Mr. GREGG. Mr. President, I leave it to the good offices of the 
chairman of the committee, who is an exceptional floor leader, to tell 
me when he wants to have a vote.
  Mr. DOMENICI. I say to the Senator, you should know that at some 
point I am going to take 3 minutes to explain my version of the budget.
  Mr. GREGG. I look forward to that.
  Mr. DOMENICI. You do not have to be here, but I want you to know that 
so you don't think I am doing it without your knowledge. I will not 
take more than 3 minutes explaining what I think it says. All right.
  I yield the floor.
  Mr. CORZINE. Mr. President, 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. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORZINE. I object.
  The PRESIDING OFFICER. Objection is heard.
  The clerk will continue the call of the roll.
  The legislative clerk continued with the call of the roll.
  Mr. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. The pending business is the amendment offered by Senators 
Landrieu, Domenici, Vitter, and others with regard to the offshore 
royalty.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LOTT. Mr. President, I believe there are some negotiations going 
on on other issues. My intent is to speak strictly on this amendment, 
and then I would be glad to put a quorum back in place if there is not 
another Senator waiting to speak.
  To me, this amendment is about energy production, but it is also 
about basic fairness. I am not going to argue at this point with those 
who are opposed to oil and gas drilling in various and sundry places. I 
personally think we should drill where the oil, where the gas is. I 
know that is a novel idea. I do believe we need a national energy 
policy that is broad, that will have more production of oil and gas and 
clean coal technology and hydropower and nuclear power and LNG plants 
and conservation and alternative fuels--the whole package.
  I am glad we appear to be getting to the end of this debate and 
amendment process and hopefully will produce a bill that passes 
overwhelmingly and will get into conference and will come up with a 
bill that can be passed. We need to do it for the country.
  This legislation is about national security, and it is about economic 
security. If we don't deal with the problems of energy needs, if we 
don't become less dependent on foreign imported oil, the day will come 
when we are going to have a problem. Just remember, those troops in 
Iraq and Afghanistan and around the world, those sailors steaming in 
ships, those tanks, those planes, it takes fuel to run them. So it is 
about national security.
  We are an energy-driven economy. We need this diversity. We need more 
production, more independence. I believe we should open more areas than 
we are prepared to do apparently. But the fact is, in my part of the 
country and the Gulf of Mexico, we have been prepared to have an energy 
policy. We have been prepared to have the oil and gas industries and 
refineries and nuclear plants and LNG plants. We are prepared to do 
what is necessary not just for our own people and for the financial 
benefit of our own but, frankly, for the whole country.
  We are prepared to produce fuels and oil and gas and other fuels. We 
are prepared to refine it and share it with the rest of the country. We 
are prepared to wheel our power to other parts of the country because 
we have been willing to take the risks. We are willing to build utility 
plants.
  Other parts of the country don't want to drill. They don't want coal. 
They don't want nuclear power. They don't want hydropower. They don't 
want utility plants. They want nothing. But they want to flip the 
switch and have the lights come on. They want to get in their SUVs and 
drive off into the sunset. I resent that hypocrisy, quite frankly, but 
that is the way it is.
  All we are saying is, in our area--Texas, Louisiana, Mississippi, 
Alabama--we have been willing to do what needs to be done, the right 
thing for our region, for our people, and for our country. So we have 
oil and gas off the coast. I haven't had a problem with it. I live on 
the Gulf of Mexico. When I get up in the morning and look out the 
window, I am looking at the gulf. I am looking at the pelicans that now 
are plentiful. I am sure they are coming from Louisiana. When I look at 
ships going and coming, I am looking at oil tankers, smaller tankers 
that are lightering oil from bigger tankers. I can remember sitting on 
my front porch and looking at a natural gas well being flared late at 
night. It wasn't ugly. It was really quite pretty. But there are risks 
that go with this.
  Particularly in Louisiana, they have paid some prices for what we 
have done. We levied the Mississippi River, the big and mighty 
Mississippi River, to keep it from overflowing year after year. That 
has affected their wetlands because now you don't have that overflow 
that goes particularly west of the river that puts sediment out there. 
The levees send it right on out into the gulf. Now we are concerned 
about dead zones. We are concerned about the impact on salinity. We are 
concerned about the fisheries in the gulf, the shellfish and others.
  We have had to oil drill. In some areas of our region, that has led 
to some channelization. When you are taking things from under the 
Earth, I think it has an effect on elevation in certain areas, wetlands 
areas in particular, estuaries.
  You might say: Wait a minute. You get the benefit of the business. 
Some, yes, I don't deny that. It does create some jobs--some good-
paying jobs, some dangerous jobs. It does, though, create a lot of 
activity for which we have to provide services--roads, harbors. Some of 
the big companies in the Gulf of Mexico drill off of our coast of 
Mississippi, but they don't do business there, not in my State. They 
don't really even hire that many employees. So there is some good from 
this, but there is some risk and some bad things.
  Other parts of the country, when you drill in their States, they get 
50 percent of the royalties, and we get an infinitesimal 1 percent plus 
some benefits within, I guess, the 6-mile limits of the State. But that 
money coming out of the gulf goes into the deep dark hole of the 
Federal Treasury. A lot of it goes into land and water conservation for 
other parts of the States.
  Other States are saying: We don't want you to drill or produce or 
build utility plants in our area. And by the way, we don't want you 
folks down there who are doing the job and taking

[[Page 13980]]

the risk to get any of that money. We want that money to come up to the 
Federal Treasury and come to our States.
  Now we are accused of trying to bust the budget. No, we are trying to 
get a fair share. It is not big money in my State, but it would make a 
huge difference. When you come from a small 2.8 million-population 
State with a history of poverty and needs, even though we are making 
some progress now--we are not 50th or 49th or 48th on most lists; we 
are moving up the line, creating more jobs, more businesses, better 
education, better roads--we have other problems. We do have wetlands 
that are being disturbed or destroyed. We are losing some land, as they 
are in Louisiana. We do have some environmentally sensitive and some 
historic sites we need to preserve, protect, and improve. We need some 
help. We are prepared to do the dirty work. We are prepared to take the 
risks. We are prepared to do the right thing and share it with America. 
But we do think we should get a little bit of the return on the 
royalties that go right through our hands to the rest of America.
  This is not a great money grab by Louisiana or Texas, Alabama. This 
is a way that we can get some help from things that we are producing, 
some benefit that will help our people and preserve the areas we live 
in and love. We are accused of being insensitive to the environment and 
to conservation. Well, this will give us a way to do something about 
it. Quite often, we don't do what we need to do because we cannot 
afford it; we do not have the money. I plead with my colleagues from 
all parts of the country: Look at what we are doing. Look at what 
problems we are coping with, and look at what we will do with this 
small amount of money.
  By the way, the budget allowed $2 billion in this energy area for us 
to make some decisions on. Yes, it can be objected to on a point of 
order at the committee or on the floor or out of conference. But there 
was money allowed, and this amendment gets well within that number. I 
think this is a questionable budget point of order, although I don't 
dispute that the chairman has that authority. I want him to have that 
authority. Chairman Judd Gregg is doing his job. I am not mad at him. I 
told him I hope he will do his job and I hope he will do it for effect, 
but don't get mad about it. If anybody should get mad, the Senators 
from Louisiana and the Texans should get mad, and the Mississippians, 
too.
  I support this amendment. I plead with my colleagues, let us have a 
little bit to help ourselves, and we will in turn help the country.
  Ms. LANDRIEU. Mr. President, will the Senator yield for a question?
  Mr. LOTT. I yield to the Senator from Louisiana.
  Ms. LANDRIEU. The Senator from Mississippi has made such excellent 
points, and we appreciate his comments and support. The Senator may 
want to express for a moment the terror that reigned south Louisiana, 
Mississippi, and Florida last hurricane season with the unusual number 
of storms that came up through the Gulf of Mexico and how frightening 
it is to people on the coast when these wetlands continue to disappear. 
The intensity of those storms gets greater and greater, and the damage 
to property and the threat to life is fairly serious.
  As a Senator who lives on the Gulf of Mexico, maybe just a word to 
talk about what happened to our States last hurricane season.
  Mr. LOTT. Mr. President, we have great fear that some day, one of 
those hurricanes will go right up the mouth of the Mississippi River 
and inundate New Orleans. When Hurricane Ivan was coming through the 
gulf last year, when it got to the hundred-mile marker, it was headed 
for my front porch. Then it veered to the east and missed us by about 
90 miles and did a lot of damage.
  What can we do about that? First of all, you have to have evacuation 
routes. We need more money for roads to allow the people to get out of 
there. The best buffer against the damage is the wetlands, the 
protective barrier islands, protective areas. The only reason my house 
hasn't been wiped out is because we have a seawall in front of my 
house, and we are up on a relatively high point. My house is 11 feet up 
off the ground, what we call an old Creole house.
  It survived hurricanes for 150 years. But these estuaries, these 
areas outside the main area in which we live, are critical because once 
that high wind and water hits that area, it begins to lose its 
strength. If we keep losing land into the gulf, across the Gulf of 
Mexico, the hurricane damage--even though the violence may not 
increase, the damage will really increase. This is just one aspect.
  By the way, we have to be prepared to get people off these oil rigs 
and out of the Gulf of Mexico. We have to have infrastructure to do 
that. This will help us achieve that goal.
  I yield to my colleague from Mississippi.
  Mr. COCHRAN. Mr. President, I appreciate the Senator's remarks. I 
assure him that I support everything he has said, and I agree it is now 
time for us to recognize that the initiative of the Senators from 
Louisiana, Senator Vitter and Senator Landrieu, and others, including 
my colleague from Mississippi, deserves to be supported. It deserves 
our support.
  I understand the question about the budget, but I am reminded about 
an appeal that I had to defend one time in the Supreme Court of the 
State of Mississippi. The lawyer on the other side started off his 
brief he filed with the supreme court, and he said that this is a 
classic example of a claim not being paid on the basis of a mere 
technicality. Well, of course, there was a lot more to it than just 
that. The technicality was a real impediment to the appeal being filed 
by my opponent in that case. But I was reminded of that when I was 
walking over here. This is an issue that could go either way, in terms 
of the point of order and the provisions of the Budget Act. The Senator 
has made that point, and I congratulate him for doing that.
  We are not quarreling with the fact that you can make a point of 
order, but you should not as a matter of the overriding national 
interest. It is a national interest; the integrity of the Gulf Coast 
States are at risk. We have before us a solution to the problem, and it 
is in the national interest that we support it. That is the argument 
that is being made to the Senate right now. So however this vote is 
couched, in terms of a motion to waive the Budget Act or on the 
validity of the point of order, I hope the Senate will come down on the 
side of the gulf coast Senators who are trying to solve a problem that 
is in the national interest. We ought to recognize that and vote that 
way on this issue.
  Mr. LOTT. I thank my colleague from Mississippi for his comments and 
his knowledge of the issue and the procedures we are dealing with. It 
is a great comfort to have him here.
  One final point before I yield the floor. I thank Senator Domenici 
and Senator Bingaman for working with the Senators who are sponsoring 
this legislation to try to help us find a way to make this effort, to 
get it at a level that would be helpful to us that would not be a 
budget buster, that would comply with the amount of money that was 
allowed in the budget resolution. So I commend Senators Vitter and 
Landrieu, and I hope we will be able to get this provision approved.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, on behalf of the people of Utah, I thank 
the managers of this Omnibus Energy bill for their leadership in 
producing a comprehensive and broadly supported proposal.
  If the American people think bipartisanship is dead in Congress, they 
should look at this bill and how it is being managed on the floor these 
past 2 weeks.
  On behalf of the people of Utah, I want to thank the managers of this 
Omnibus Energy bill for their leadership in producing such a 
comprehensive and broadly supported proposal.
  If the American people think that bipartisanship is dead in Congress, 
they should take a look at this bill, and how

[[Page 13981]]

it is being managed on the floor these 2 weeks.
  I must commend the leadership of Chairmen Domenici and Grassley, and 
their Democratic counterparts, Senators Bingaman and Baucus as the 
Senate considers this critically important piece of legislation.
  In addition, I want to thank Chairman Grassley and Senator Baucus for 
working so closely with me on the energy tax incentive package, now 
part of the Omnibus Energy bill.
  In particular, this bill includes a number of provisions of great 
importance to Utahns, provisions I authored. These include my CLEAR 
Act, which promotes alternatives in the transportation sector, my Gas 
Price Reduction through Increased Refinery Capacity Act, and my 
proposal to improve the treatment of geothermal powerplants. All were 
included in the energy package.
  I am also grateful to the leaders of the Energy Committee, Chairman 
Domenici and Senator Bingaman, for agreeing to include the major 
provisions of another bill of keen interest to Utahns, my bill, the Oil 
Shale and Tar Sands Promotion Act, S.1111, which was cosponsored by 
Senators Bennett and Allard.
  Our bill would promote development of the largest untapped resource 
of hydrocarbons in the world. There is more recoverable oil in the oil 
shale and oil sands of Utah, Colorado, and Wyoming than in the entire 
Middle East.
  The chairman and his staff have done yeomen's work to successfully 
strike a compromise on S. 1111 that is agreeable to all sides and that 
can be accepted into this bill. I thank both leaders for that effort.
  And finally, I thank them for including my bill, S. 53, in the Energy 
bill. S. 53 would amend the Mineral Leasing Act to authorize the 
Secretary of the Interior to issue separately, for the same area, a 
lease for tar sands and a lease for oil and gas, thus freeing up a new 
resource of natural gas in our Nation.
  Now, I would like to turn to the Hatch-Bennett amendment on high 
level nuclear waste, which we filed in an effort to bring some focus to 
our Nation's policy for handling spent nuclear fuel.
  In my hand is an article from yesterday's Washington Post.
  The headline reads, ``Bush Calls for More Nuclear Power Plants.'' And 
the article begins: ``President Bush called today for a new wave of 
nuclear power plant construction as he promoted an energy policy that 
he wants to see enacted in a bill now making its way through 
Congress.''
  The President is calling for a robust nuclear power strategy, and his 
reasons are clear: nuclear power is clean and safe, and there is an 
abundant supply of cheap uranium in Northern America.
  But my question is, ``What are we going to do with all the waste?''
  We cannot have a nuclear power strategy until we know what to do with 
all the spent nuclear fuel.
  And what is becoming quickly apparent to me and to the people of Utah 
is that we do not have a coherent national nuclear waste policy. Until 
we do, we are putting the cart before of the horse.
  For years, I have supported sending this high level nuclear waste to 
the desert of Nevada.
  To be honest, it has never been an easy vote for me, because it was 
against the wishes of my friends and colleagues from that State. 
However, it has been our national policy for more than two decades to 
build a site at Yucca Mountain, a safe, remote location, where spent 
fuel could be taken over by the Federal Government and buried deep 
beneath the desert.
  Even though Utah does not use or produce nuclear power, I have 
recognized the need to have a nuclear power program in the U.S. that 
relies on a plan to safely handle our waste. In other words, we need a 
strong nuclear waste program.
  Here is a picture of the desert area where Yucca Mountain actually 
is. You can see it is desolate and out in the middle of nowhere.
  Unfortunately, a few nuclear power utilities are attempting to hijack 
our Nation's nuclear waste strategy by joining forces to build an away-
from-reactor, aboveground storage site for one-half of our Nation's 
high level nuclear waste on a tiny Indian reservation in Tooele, UT.
  Even more unfortunate is that the only tribe they could con into 
taking this waste was the Skull Valley Band of the Goshutes, whose 
small reservation just happens to sit on one of the most dangerous 
sites you could imagine for storing high level nuclear waste.
  The Skull Valley reservation is directly adjacent to the Air Force's 
Utah Test and Training Range and Dugway Proving Grounds where live 
ordnance is used.
  Here is an illustration of an F-l6 that flies regularly in this area.
  This location proposed for the aboveground storage of half of our 
nuclear waste sits directly under the flight path of 7,000 low altitude 
F-16 flights every year.
  Even if this area were truly remote from all civilization, which it 
is not, its location alone should disqualify it for the storage of even 
one cask of high level nuclear waste. But that's the problem with 
allowing private intrests to establish our nuclear waste strategy, 
economics can get in the way of reason and safety.
  Mr. President, 80 percent of Utah's population sits within 50 miles 
of the Skull Valley reservation.
  Represented on this picture are the type of communities we have near 
that place.
  As a crow flies, Skull Valley is less than 15 miles away from Tooele 
City, one of the fastest growing cities in Utah, which is becoming a 
major suburb of Salt lake City.
  Skull Valley is only about 30 miles from the Salt Lake City 
International Airport. And let us not forget that many of the families 
of the Skull Valley Band live right on the reservation, and half, if 
not more, of them are against this. These families face, by far, the 
greatest risk.
  When this group of utilities, known as Private Fuel Storage, or PFS, 
applied for a license from the Nuclear Regulatory Commission, the 
Commission's three judge Atomic Licensing Board ruled that the threat 
of a crash from an F-16 was too great to allow a license for the 
proposed facility. Not letting science get in its way, PFS came back 
later after two of the three judges were replaced with new ones, this 
time making a different pitch even though all the facts remained the 
same.
  As a result, the two new judges ruled, in a two-to-one decision, that 
the risk of a crash from an F-16 was low enough to allow the license.
  One has to wonder who in the world would allow the license for a 
small tribe in this area with this type of danger. The trustee I don't 
think could possibly do that. Nevertheless, they ignored the prior 
commission and went ahead and did it.
  However, Judge Peter Lam, the senior member of the panel, and its 
only nuclear engineer, gave a very strong dissent. I would like to 
quote from Judge Lam's dissent:

       The proposed PFS facility does not currently have a 
     demonstrated adequate safety margin against accidental 
     aircraft crashes. . . . This lack of an adequate safety 
     margin is a direct manifestation of the fundamentally 
     difficult situation of the proposed PFS site: 4,000 spent 
     fuel storage casks sitting in the flight corridor of some 
     7,000 F-16 flights a year.

  Judge Lam also cited the inadequacy of the new methodology used to 
determine that the site would be safe.
  He writes:

       In this current proceeding, the Applicant has performed an 
     extensive probability analysis and a structural analysis to 
     rehabilitate its license application. As explained below, the 
     Applicant's probability and structural analyses both suffer 
     from major uncertainties. These uncertainties fundamentally 
     undermine the validity of the analyses.

  Mr. President, with 7,000 F-16 flights every year, one can imagine 
that emergency landings are not uncommon at the training range, and I 
am unhappy to report that crash landings are not rare, either.
  In the last 20 years, there have been 70 F-16 crashes at the Utah 
Test and Training Range, and a number of these

[[Page 13982]]

crashes have occurred well outside the boundaries of the training 
range.
  I have found it baffling that the Final EIS for the Skull Valley plan 
does not require PFS to have any on-site means to handle damaged or 
breached casks. Rather, the NRC staff concluded the risk of a cask 
breach is so minimal that they did not have to consider such a scenario 
in their EIS. I find this conclusion dubious and dangerous in light of 
the facts relating to F-16 overflights.
  In his dissent, Judge Lam refers to the threat of accidental aircraft 
accidents. He doesn't even go into the possibility of terrorists. Since 
the events of September 11, we have learned that one of our Nation's 
most serious threats may come in the form of deliberate suicide air 
attacks. It would seem inconceivable that a Government entity would 
consider giving their endorsement of the PFS plan without thoroughly 
taking into account the added terrorist threat our Nation now faces.
  Yet the Nuclear Regulatory Commission has refused to reopen the 
Environmental Impact Statement to consider this new threat, even though 
post-9-11 studies have been completed at all other facilities licensed 
by the NRC.
  It is apparent they just want to dump this stuff somewhere. I have to 
say, if this continues, I am certainly going to do some reconsidering 
myself.
  I found this especially troubling since the NRC has never granted a 
license for the storage of more than about 60 casks, but the Skull 
Valley site will hold up to 4,000 casks of this waste.
  I want my colleagues to understand that not only is the size of the 
PFS proposal a gigantic precedent, but issuing itself a license for a 
private away-from-reactor storage site has never been done and runs 
counter to the Nuclear Waste Policy Act which clearly limits the NRC to 
license storage sites only at Federal facilities or onsite at nuclear 
powerplants.
  Former Secretary of Energy Abraham stated publicly he shares our 
interpretation. In a letter to members of the Utah congressional 
delegation, Secretary Abraham issued a policy statement that barred any 
DOE reimbursement funds from being used in relation to the Skull Valley 
site. This would include industry members who would lease space at the 
site. He said:

       Because the PFS/Goshute facility in Utah would be 
     constructed and operated outside the scope of the [Nuclear 
     Waste Policy] Act, the Department will not fund or otherwise 
     provide financial assistance for PFS, nor can we monitor the 
     safety precautions the private facility may install.

  My amendment is compatible with the policy outlined by Secretary 
Abraham in his letter. It would ban the transportation of high level 
nuclear waste to private away-from-reactor waste sites and calls for a 
study to the feasibility of storing spent fuel either at Department of 
Energy facilities or of the Department taking possession of the spent 
fuel onsite at nuclear reactors.
  My amendment calls also for a study of reprocessing spent nuclear 
fuel for future use.
  Let me state the obvious for the record. The PFS plan is vehemently 
opposed by the entire Utah congressional delegation, Gov. Jon Huntsman, 
former Gov. Michael Leavitt, and an overwhelming majority of Utahans. 
In fact, virtually everybody in Utah. A large portion of the 70-member 
Goshute Band is strongly opposed to the proposal. We believe a majority 
of them are, but there is some indication of fraud in their elections 
out there.
  Furthermore, the leader of the band, Leon Bear, has pleaded guilty to 
a Federal indictment. It is notable that every other tribal government 
in Utah has come out flatly against it. How could any trustee for the 
Indians allow something like that to be?
  Utahns are well aware of the points I have made today. Because of the 
risks we face associated with the PFS proposal, we know better than any 
that our Nation's nuclear waste policy is broken. It was with good 
reason that our Nation's nuclear waste strategy has been built around 
the expectation that the Federal Government, namely the Department of 
Energy, would take possession of spent nuclear fuel rods. What better 
example do we need than the PFS plan to see why private industry should 
not be allowed to develop and implement our Nation's nuclear waste 
strategy.
  Think about it. PFS is a shell corporation. If anything went wrong, 
Utah is going to eat it. That is all there is to it. It is ridiculous.
  I understand why our colleagues from Nevada oppose the Yucca Mountain 
site. I am getting more and more understanding of that as I go along. 
But if they are concerned about waste at Yucca Mountain, they should be 
exponentially more concerned over the PFS site which is so flawed as to 
be inherently dangerous, extremely dangerous.
  In closing, let me drive home one point. Our President has called for 
a dramatic increase in our Nation's capacity to generate nuclear power. 
As Congress considers that proposal, I ask, Should any increase we 
might authorize rest on a nuclear waste policy established by the 
Federal Government or should that policymaking rest with a couple of 
private companies that are driven by profit?
  Do we want the Federal Government to take possession of our high 
level nuclear waste or is our national waste policy to allow private 
companies to control the transport, storage, and security of this 
waste? And with shell corporations at that. If that is to be our 
policy, then I need to inform our colleagues that our Nation's nuclear 
power strategy is a house built on sand.
  Let me summarize my remarks. We Utahns are adamantly opposed to the 
storage of spent nuclear fuel at the Skull Valley reservation. The 
current site that has been selected by a consortium made up of eight 
utilities has several fatal flaws, including the fact that it 
contemplates a facility that is, one, located fewer than 50 miles from 
the Salt Lake Valley where 80 percent of our fellow Utahans live; two, 
directly under the Utah Test and Training Range where roughly 7,000 
low-altitude F-16 training flights take place each year, many with live 
ordnance, and over a range where 70 crashes have taken place already; 
and three, on the small Skull Valley Goshute Indian reservation where 
about 40 of the band's 120 total members reside--only 40. Moreover, the 
Skull Valley Band's leadership is in question. Leon Bear, the band's 
current chairman, has been accused by his colleagues of disregarding a 
vote of no confidence. In addition, Mr. Bear recently pleaded guilty to 
Federal criminal charges and is awaiting sentencing relating to his 
management of tribal financial resources.
  I would like to know if my friend, the chairman of the Senate Energy 
Committee, believes that storing spent nuclear fuel on a privately run 
and privately owned offsite facility, such as the Skull Valley 
reservation in Utah, is a component of our national nuclear waste 
policy.
  Mr. DOMENICI. Mr. President, in response to that question, I would 
say that our national policy for handling high level nuclear waste is 
to store it at the proposed DOE site at Yucca Mountain. I don't know 
whether the Skull Valley site will receive the regulatory approval it 
needs. That is not my decision. However, in my view, our focus should 
remain on a solution that puts this waste directly in the hands of the 
Federal Government.
  Mr. HATCH. Mr. President, I thank the chairman for that 
clarification.
  I again thank the leaders of this bill who have done such a great job 
in bringing both sides together to pass what will be one of the most 
important energy bills in the history of the world. It certainly is 
going to do a lot for our country if we will continue to follow this 
through conference and get it back for final passage. It is long 
overdue.
  I know it has been an ordeal for Senator Domenici in particular and 
others as well. I pay my tribute to them for the hard work they have 
done.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Graham). The Senator from Virginia.


                           Amendment No. 891

  Mr. ALLEN. Mr. President, I rise to speak in favor of this Energy 
bill and in particular the amendment that is primarily sponsored by 
Senators

[[Page 13983]]

Domenici, Bingaman, Landrieu, Vitter, and others.
  First, I thank Chairman Domenici and Ranking Member Bingaman for 
their skillful leadership, their dedication, their patience, and 
everything they have done to craft a bipartisan bill. It is a 
bipartisan energy policy that I believe encourages, incents, provides 
us, as a country, with clean and affordable energy in a growing and 
obviously more secure economy.
  We have made significant progress so far on this measure. I look 
forward to passage of this bill in the Senate so we can get a final 
measure passed before the summer recess.
  This bill is important for three salient reasons: No. 1, the security 
of this country; No. 2, jobs in this country; and No. 3, the 
competitiveness of the United States of America.
  As far as security and energy independence, we must become less 
reliant on foreign sources of oil and natural gas from unstable, 
unreliable places in the world.
  Second, as far as jobs are concerned, this measure, when passed, will 
save jobs. Hundreds of thousands of jobs will be saved and hundreds of 
thousands of jobs in a variety of ways will be created--new jobs. It is 
important for saving jobs especially in the areas where there is 
manufacturing of chemicals, fertilizers, plastics, forestry products, 
and even tires. All of those can be manufactured anywhere in the world, 
but we have a high-intensity need for clean burning natural gas right 
here in America. And jobs will be saved if we produce it here within 
our own borders.
  We are supporting new technologies for the production of electricity 
using clean coal technology--where we are embracing the advances of 
technology to utilize an abundant resource, coal--we are the Saudi 
Arabia of the world in coal, and we ought to be using it, as well as 
new technologies for clean nuclear power generation. That is where jobs 
matter.
  As far as competitiveness, there is not a person here, not a person 
in this country, whether it is driving to school, driving to work, 
operating a business, and it could be the highest, most technologically 
advanced business, that doesn't need electricity. Everything we consume 
goes by rail, truck, air, or a combination thereof before it gets to 
the store or to our homes or to our places of business. This bill is 
essential for lower gasoline and diesel costs for transport of these 
products.
  We need to have an affordable energy source for our economy, for 
jobs, and the competitiveness of our country in the future because many 
of these jobs can be put anywhere in the world. In addition to proper 
tax policies, reasonable regulatory policies, less litigation, and the 
embracing of innovations, an energy policy for this country is long 
overdue.
  With regard to competitiveness, I was Governor at one time. We would 
always try to get businesses to locate in the Commonwealth of Virginia. 
We succeeded. The businesses looked at the cost of operations in 
different States. They looked at what the cost was; what is the 
regulatory burden; do you have a right-to-work law, which we did; what 
is the cost of health care. They cared about transportation, but they 
also looked at the cost of doing business with electricity. We would 
have a report to top management in New York City, and we would compare 
our electricity rates in Virginia to those in the New York City area. 
Virginia's electricity rates, compared to those, looked as though they 
were almost free. That was an attribute, a strong selling point for 
businesses to come to the Commonwealth of Virginia. These same 
principles apply to the entire United States of America.
  Let's look at natural gas. Natural gas, that wonderful clean burning 
fuel, is in many places around the world, in many strong economies 
around the world. We would certainly want to be able to match other 
countries in the cost of producing this clean burning fuel, whether for 
our homes, but also for manufacturers. It is not just the chemical and 
fertilizer manufacturers, it is the farmers who have to pay these 
higher prices, and when farmers have to pay higher prices to run their 
tractors or to fertilize their fields, that means the cost of food goes 
up, which affects us all in that way as well.
  Look at our prices--and these prices are from February, and prices of 
natural gas have gone up in this country since this report. In the 
United States of America, we are over $7 for 1 million Btus of natural 
gas and it is rising.
  Take the United Kingdom, Great Britain. It is $5.15. Turkey is only 
$2.65. Ukraine is $1.70. Russia is less than a dollar per 1 million 
Btus. You say, well, we are not competing with them. Who are we 
competing with then? We are competing with them, as well as with South 
America. Look at the prices of natural gas in South American countries: 
$1.50 in Argentina compared to over $7 in the United States. In North 
Africa, it is less than a dollar.
  What about real competition we are facing in the loss of 
manufacturing jobs to India and to China? China and India are 
increasing in their economies and, of course, demand for oil, natural 
gas, coal and other fuels is going up, too, exacerbating the prices. We 
see China now trying to buy up our gasoline companies, specifically 
Unocal. For our national security, it's important that we have a 
comprehensive review of the types of investments State owned Chinese 
companies are making in international and U.S. based energy resources.
  Even there, where China has this booming economy, their price is 
$4.50 compared to us. The same with Japan. India pays half the price we 
do in natural gas, $3.10 per 1 million Btus. Our friends in Australia 
pay $3.75 for a million Btus of natural gas.
  As a result of what we are seeing in these higher natural gas prices, 
we are already losing jobs in this country. The chemical industry, one 
of our Nation's largest industrial users of natural gas, has watched 
more than 100,000 jobs, one-tenth of the U.S. chemical workforce, 
disappear just since the year 2000.
  Recent studies by the National Association of Manufacturers and the 
American Chemistry Council found that 2 million jobs could be saved if 
Congress lays out a fresh blueprint for the supply, delivery, and 
efficient use of all forms of energy, including clean burning natural 
gas.
  To address this natural gas crisis that is crippling our American 
farmers and manufacturers, we need a positive, proactive strategy for 
greater fuel diversity. The bill does just that by supporting clean 
coal. It supports nuclear energy and a whole host of renewable 
technologies, such as biofuels and incentives for fuel cells.
  In the area of nuclear, I think it is one of the most important 
aspects of the bill. When one thinks of the generation of electricity, 
we ought to be using clean nuclear and clean coal technology while 
allowing natural gas to be utilized not for base load electricity 
generation but rather for factories, manufacturing jobs, and in our 
homes.
  The President's Nuclear Power 2010 Program is designed to work with 
the nuclear industry in a 50/50 cost-sharing arrangement. It also 
addresses some of the risks and litigation aspects of it. One thing 
that is not in this measure but I am going to work on in the future is 
the repository.
  The Senator from Utah, Mr. Hatch, was talking about Yucca Mountain. I 
fully understand why the people in Nevada would not want to have highly 
radioactive fuel rods that are radioactive for 40,000 years. What we 
need to do long term is look at what France is doing with nuclear 
power. What they have done is taken a technology that was started in 
this country on reprocessing and they have perfected it. We ought to be 
reprocessing this nuclear fuel, these spent fuel rods. If we do that, 
it is a much more efficient and much less dangerous approach. It is 
much less volume, and are decreased. That is something we need to do 
long term. It is not in this measure, but we need to move forward with 
it in the future.
  Also in this bill we have set efficiency standards for everything 
from buildings to appliances that will help reduce our demand for 
electricity and natural gas.

[[Page 13984]]

  Ultimately, we need to need to produce more natural gas. This 
amendment talks about coastal States that are committed to more 
exploration, the impact on their coastal areas and allowing them to get 
some assistance to these States closest to the exploration.
  What I am going to say is not part of this amendment, but the issue 
of exploration off the coasts of different States came up during the 
hearings in our committee. It is not necessarily part of--in fact, it 
is not part of this amendment, but for the people of the Commonwealth 
of Virginia, this is an issue of some interest in our General Assembly. 
Our State legislature, in a very strong bipartisan action, stated that 
they were in favor of allowing or at least determining if there is any 
natural gas--not oil but natural gas--far off the coast of Virginia, 
beyond the viewshed, and, in the event that there is, allowing Virginia 
to share some of those revenues. That is not going to be part of this 
measure, and I say to Senator Bingaman, it is not part of this measure.
  I realize things move slowly around here, slower than some of us 
would like, but I do think that the people in the States should have 
more of a say in energy production. Right now, if one looks at these 
coastal areas, it is all subject to the whims of the Federal 
Government. The Federal Government says they own it; the Federal 
Government says: We will determine if it is in a moratorium or not.
  I am one, having been Governor, who would actually like the people in 
the States to have more prerogatives. There may be a different batch of 
folks in the Senate, and we may have a different President who says, 
No, we are going to do this, we do not care what the people of New 
Jersey think; we are going to go forward and explore. I would like to 
protect the prerogatives of the people of the States and also allow the 
people in the States, if they so choose to explore, to actually share 
in those revenues.
  I have suggested that in Virginia, we ought to use a good portion of 
it for universities and colleges to reduce in-State tuition costs; 
another big chunk for transportation to alleviate traffic congestion; 
and another portion to the coastal areas, such as places like Virginia 
Beach, for things like beach replenishment. That is just something I 
would like to see ultimately allowed, but that is not part of this 
measure.
  I also do think that I know the President's views on the inventory 
issue. People in South and North Carolina, Florida, and New Jersey do 
not even want an inventory. They do not even want to know what is off 
their coast. In my view, the compromise to all of this, if they do not 
want to, they don't have to. Why spend money looking off those coasts 
because the people of Florida, North Carolina, New Jersey, and maybe 
South Carolina as well, do not want to. So why waste the money? 
However, if the people of Georgia and Virginia would like to know what 
is off their coasts, allow them to at least find out what is out there 
and then make a determination therefrom. That might be the good 
compromise to this issue in conference.
  This measure that Senator Landrieu and Senator Vitter have brought up 
has to do with Louisiana and a great deal, obviously, with the gulf 
coast. They have certain needs in Louisiana. Being in Cajun country and 
all around Louisiana last year for a variety of purposes, I know this 
is a very big issue to the people of Louisiana. We should be thankful 
to the people of Louisiana for the efforts they have made in the 
exploration off their coast because they are powering this country.
  Granted, natural gas prices are high, and maybe we will get more 
production out of Alaska, and maybe we will get some more out of 
Louisiana or maybe off of Mississippi, but the point is that they have 
great coastal impacts, not because of the exploration way off in the 
Gulf of Mexico but because of the services to transport it, just the 
nature of the bayous. It is just the topography, that they have coastal 
erosion there that is of great concern to everyone in the State of 
Louisiana, especially south Louisiana. They are all proud of that 
sportsman paradise, as they call it.
  I strongly support Senator Domenici's and Senator Bingaman's effort 
in this bill to consider the needs of producing States. Long term, what 
we are looking at is supporting, creating, and preserving manufacturing 
jobs and finding environmentally safe ways to increase production of 
clean burning natural gas. It is important for jobs in this country. It 
is important for our national security to be less dependent on foreign 
energy. We need to be more independent, and, of course, we need to be 
much more competitive for investments and jobs if we are going to be 
the world capital of innovation.
  So I urge my colleagues most respectfully to vote for this amendment 
that allows coastal impact assistance to States closest to this 
exploration. We have listened in meetings to Senator Vitter argue very 
persuasively to me and to others, I hope, and the same with Senator 
Landrieu in a variety of forums as well--they have made a persuasive 
argument for Louisiana, but ultimately it is a persuasive argument for 
the United States of America.
  I thank my colleagues for their attention, and most importantly I 
thank my colleagues in anticipation of a positive vote for this 
amendment and moreover getting this Energy bill passed so that this 
country can become more independent of foreign oil, foreign energy, 
save those jobs, create more jobs, and make this country more 
competitive for investment and creativity in the future.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, before the Senator from Virginia leaves 
the floor, might I say to all of those who pay attention to these 
issues that the Senator is a new member of the Energy Committee, and I 
wondered when we made up the committee why the Senator had chosen to be 
on the committee. Then I found out that Virginia has a terrific 
interest in a lot of these issues, and I found that the Senator was 
very knowledgeable and a very good participant. The Senator helped us 
get a good bill. I commend the Senator on his analysis today. This is a 
bill that should direct us in the right way, especially in the natural 
gas area.
  Clearly, we are at our knees. People say it is the gas pump, but it 
is also the price of natural gas that is causing America great trouble. 
We have resources. We just cannot use them because we need new 
technology and we need to do a better job of getting them ready for the 
marketplace so that we do not damage the air. We are working on that, 
and I thank the Senator for that.
  Also, I want to compliment the Senator on seeing the value of the 
offshore resources of the United States. I am not suggesting that I 
understand each State's political issues, but I do understand that 
there is a lot of natural gas offshore. No. 2, I do understand it can 
be produced with little or no harm to anybody. A lot of it can be 
produced if it is there.
  I commend the Senator for realizing that is an American asset and he 
would like very much for the Congress to face up to that.
  I yield to the Senator.
  Mr. ALLEN. I say to my chairman that the reason I wanted to get on 
his committee was because I believed that this Energy bill was the most 
important legislation we will pass in this Congress that will affect 
our competitiveness, jobs in this country, as well as our independence 
or less dependence on foreign oil and foreign energy, whether it is 
natural gas, liquefied natural gas, and all the rest.
  I have been so impressed by the bipartisan way the Senator has 
methodically tried to move this measure forward that has great 
importance for the future of our country, not just for the next 5 or 10 
years but, indeed, for generations to come. It is a model for how we 
can work in a bipartisan way. Does everyone get everything they want? 
No. But I think the American people ultimately will be much better off, 
there will be more people and families working, and we will be more 
competitive, thanks to the Senator's leadership.

[[Page 13985]]

  I am very proud and pleased to have been appointed and elected to the 
Energy Committee, and I look forward to working with the chairman. He 
is a magnificent leader with the right vision for this country.
  Mr. DOMENICI. I thank the Senator. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I support the Landrieu/Vitter amendment. 
As a State that is a producer of oil and gas off its shore, I certainly 
believe we should have some slight, minor benefit from that effort, 
particularly in light of the fact that State after State just blithely 
announces they will not have any off their shore. I believe that a 2-
percent part of the revenue that is going to the Federal Government to 
the States that bear the burden of this offshore production is not too 
much to ask. It is not a violation of the budget. The money is set 
aside that can be spent on this. It is a question of priority. I 
believe we should go forward with that.
  I wish to say how much I appreciate the remarks of Senator Allen. I 
believe he has analyzed our energy situation well. I would also join in 
my praise for Chairman Domenici for his work. He understands that 
nuclear and all other sources of power have to be increased to have us 
more energy independent. It is not just one step that we can take. 
Frankly, if one wants my opinion, and I believe it is correct, the area 
most overlooked, the area in which we can have the largest short-term 
surge of energy in our country that can be so important for our economy 
and jobs is offshore production of oil and gas, particularly natural 
gas.
  We had an amendment just yesterday that I joined with the Senators 
from California to support--it did not pass--to have more controls over 
the building of liquefied natural gas terminals in our States, to give 
the States some more ability to participate in that process.
  Why do we have liquefied natural gas terminals? We have not had them 
before. The reason is we are not producing enough natural gas in our 
country to supply our needs, and there are resources worldwide offshore 
that can be produced around countries such as Qatar in the Persian 
Gulf--some of whom have been friends, some of whom have not been 
friends of the United States--so they would have us produce it on those 
waters, to liquefy it at great expense, transport it around the world 
to some terminal in my hometown in Mobile, AL, and then put it in our 
pipelines. And where does the money go? Where does 100 percent of the 
royalty money go in that circumstance? It goes to the Saudi Arabias and 
the Qatars and Venezuela and those other countries, sucking out huge 
sums of money from our country, when we could keep all of that money in 
our national economy if we produced the existing supplies of natural 
gas that are off our shores.
  I go down to one of the prettiest beaches in America. It is becoming 
more and more recognized--Gulf Shores, AL. You can stand on those 
beaches and at night you can see the oil rigs out off the shore. We 
have not had a spill there. In fact, I had the numbers checked, and I 
understand there was one spill off Louisiana in 1970. None of that 
reached the shore.
  By the way, as all who have studied this know, natural gas is far 
less a threat to our environment, if there is a leak, than is oil. Oil 
is thicker and heavier and can pollute if there is a large amount 
spread on our shore. But we have not had any of that, and hundreds--
thousands--of wells have been drilled and produced in the Gulf of 
Mexico. According to the Energy Committee, 65 percent of all energy 
produced from oil and gas comes from the Gulf of Mexico. That is a 
tremendous amount right off our coast. So Texas and Louisiana and 
Mississippi and Alabama have participated in that. Yet under the law of 
the United States and the tax provisions of our country, you cannot 
receive any revenue from it. It is moving in interstate commerce. You 
can't tax a truck going through your State, under the Constitution. You 
can't tax fuel going through a pipeline. So you produce it, and it 
moves out.
  An LNG terminal, by the way, some have said, is an economic benefit 
to your community. It only has about 30 jobs, and it does have some 
safety risk, no doubt. Some say a lot. I don't know how much, but it 
has some safety risk. It has some tendency to diminish the value of 
property around it for sure. But you can't tax it because it is the 
interstate flow of a resource.
  So they want these States to continue to be serving the American 
economy with no compensation whatsoever. The 2-percent figure that has 
been proposed here is not at all unreasonable to me. I think that is a 
modest charge, in fact.
  Let me tell you the extent of the hypocrisy that goes on. My 
colleagues from Florida, the leaders in the State of Florida, have 
beautiful beaches such as we have. We border their beaches. They 
declare you cannot have a well if you have a beach in sight of it. Now 
they said you can't have an oil well so close--even outside of the 
sight of the beach. In fact, they are objecting to drilling oil wells 
250 miles from the Florida beaches, as if this is somehow some 
religious event of cataclysmic proportions, if somebody were to drill 
an oil or gas well--mostly gas wells--out in the deep Gulf of Mexico. 
You know what. They are proposing right now, they desire and are moving 
forward with a plan to build a natural gas pipeline from my hometown of 
Mobile, AL, to Tampa, FL. They want to take the natural gas produced 
off the shores of Alabama, Mississippi, Louisiana, put it in a pipeline 
and move it to their State so they can have cheaper energy, and they 
don't want to have anything within 100 to 250 miles of their State. 
This is not correct.
  Mr. President, I know you are a skilled lawyer and a JAG Officer in 
the military, but I was a U.S. attorney and represented the U.S. 
Government. Let me tell you, under the law of the United States, 
Florida does not own the land 200 miles off its shore. I have to tell 
you, that is U.S. water. There is no doubt about it. For the Senator 
from Louisiana and I, our boundary line is just 3 miles. Everybody else 
in the country has 9 miles, but after 9 miles, it is Federal water. Yet 
we show deference to the States and want to work with the States and 
listen to what they have to say, but as a matter of law, they don't get 
to decide who drills in the waters of the United States of America.
  This country is at a point where we have to ask ourselves where we 
want this offshore oil and gas produced. Do we want to have it produced 
off Venezuela, in the lake down there, or in the Persian Gulf where all 
the money we have to pay for it goes to those countries, sucking it out 
of our economy or would we rather have it produced in this Nation, in 
the huge amounts that exist so our country can benefit from it? We have 
these crocodile tears by people who begrudge a little 2 percent that 
would go to our States that produce it, and they are not complaining 
one bit, I suppose, about an LNG terminal in Mobile, AL, designed to 
bring natural gas from halfway around the world, from some country that 
may be hostile to our national interests.
  It makes no sense whatsoever. It is time for us to have a lot bigger 
discussion about this matter. I see the Senator from Louisiana is here. 
I know her State has more offshore wells than any other. I know they 
have had probably more environmental degradation as a result of it. I 
don't see anything wrong with them being able to ask for some 
compensation.
  I have enjoyed working with her on this legislation.
  Ms. LANDRIEU. Will the Senator yield for a question?
  Mr. SESSIONS. I am pleased to.
  Ms. LANDRIEU. If the Senator will yield, he has made so many 
excellent points, and I am not sure I heard them. Maybe if he would 
repeat--right now we are building a pipeline from Alabama to Florida? 
Could the Senator explain that, again? I am not sure people understand 
that you are building a pipeline from Alabama and sending the gas--
where?
  Mr. SESSIONS. To Tampa, FL, to some of those people, I guess, who 
have

[[Page 13986]]

the multimillion-dollar mansions on the coast, who want to use that 
natural gas to cool their hot houses. I remember when it first came up, 
this debate was ongoing, former Congressman ``Sonny'' Callahan, from 
Mobile, was in the House. I suggested that he put in an amendment that 
just blocked the pipeline. If they don't want to produce any oil and 
gas, why should they get it? And he did, almost perhaps as a bit of 
humor, but also to raise a serious point. People want to utilize this 
resource but they are opposing its production.
  But let me ask the Senator from Louisiana this question. Don't you 
think that some of the areas, such as California and others, that are 
so hostile to producing offshore, are ill-informed about the risk? It 
is almost as though it is this huge risk that their entire beaches are 
going to be threatened every day, but we have not had problems in our 
beaches. Have you in Louisiana?
  Ms. LANDRIEU. I thank the Senator for that question. I would like to 
respond this way. I do think there is a lot of misunderstanding and 
fear associated with an industry that not everyone knows about. As the 
Senator knows, we do know a great deal about the industry. We 
understand that 40 years ago, 30 years ago, the industry was relatively 
new and mistakes were made and technology was being tried out. We just 
did not have all the environmental data that we have today. But as the 
Senator knows, in every industry there has been tremendous advancement 
made.
  Not too along ago I was watching a program on television that was 
showing the way hot water heaters were developed in the Nation. I think 
the chairman from New Mexico would appreciate this. The whole program 
was about how in the early days people really wanted to have water, 
clean water, but they needed it warm for many purposes--not just for 
convenience and health, but cleanliness. They couldn't figure it out. 
So they kept trying to figure out a way to get hot water to people's 
houses.
  But what would happen is these early hot water pumps, as you know, 
would blow up, they would blow the whole house up and people were 
actually killed; they lost their lives. But did we stop trying to bring 
hot water into the homes of Americans?
  I know this might seem to be a small matter to people who live in the 
United States, but turning on a faucet, in your home, for clean, 
drinkable cold and hot water is still a luxury in the world today. But 
Americans did not stop with that technology. So today we take it for 
granted. Everybody can go home and turn the hot water on and it comes 
out and nobody blows up.
  The Senator from Alabama is absolutely correct. There are people who 
just do not know. This technology is very safe. Plus, we have the Coast 
Guard, we have Federal agencies, we have the State court system, and 
the Federal court system, in answer to your question, that all enforce 
the laws, and agencies that are ``Johnny on the spot'' if something 
goes wrong.
  Are there accidents? Yes. Can things go wrong? Yes. But I think as we 
start telling people more and at least give people more good 
information--the Senator from Alabama is correct--then they can make 
better decisions for the country. Again, to be respectful, if some 
States have accepted this information and still make the choice not to 
go forward, that might be their prerogative. But the Senator is 
absolutely correct. For those States such as Alabama, such as 
Mississippi, such as Texas and Louisiana, that have decided this is in 
our State's interests and the Federal interest, then most certainly 
this small amount of money for coastal impact assistance--to help us 
with our wetlands, to help us with beach erosion, to help make those 
investments that are so necessary--is absolutely the right thing to do 
at this time.
  Mr. SESSIONS. May I ask the Senator another question? It has been 
reported that Cuba is going to be drilling for oil and gas out in the 
Gulf of Mexico. I wonder if our colleague would prefer that Cuba would 
do this where, I assume, it would be less safe, with less management, 
and all the money go to them rather than to the United States? Is that 
a fact? Is Cuba considering participating in drilling for oil and gas 
off the coast of Mexico, off our coast?
  Ms. LANDRIEU. The Senator is correct. There is some thought that 
perhaps Cuba may open drilling and Canada may open drilling. But again, 
this amendment that the Senator has cosponsored, along with my 
colleague from Louisiana, who is here on the floor as well, is not a 
drilling amendment. It is not touching the moratoria. It is not laying 
down any boundary changes whatsoever. It is a coastal impact assistance 
revenue sharing for only the current producing States. So while there 
has been an extended debate--because we are not able to go to a final 
vote because there are some things that are being worked out and there 
has been an extended debate in these last hours, as my good friend from 
Florida knows, who is here on the floor--this amendment is a coastal 
impact amendment.
  We have already debated the moratoria issue. We have debated the 
drilling issue. We could not come to a compromise on that so that issue 
is going to be saved to another day.
  I have said to my friends from New Jersey and my friends from Florida 
and to my friends from Virginia and to you, the Senator from Alabama, 
this debate is not going to go away. We are going to have to continue 
to debate it. But this is not the debate at this moment. This debate 
now, this amendment that has broad bipartisan support, is about coastal 
revenue sharing, coastal impact assistance for States that produce oil 
and gas.
  If I could, I wanted to make mention of something that would help the 
country understand, I think. This is from the Department of Energy, 
Energy Information Agency's Report of 2001.
  These numbers will have changed, obviously, since 2001, but probably 
not by too much, and I doubt the quarter will change too much.
  This is all energy produced--nuclear, hydro, geothermal, wood, wind, 
waste, solar, oil, natural gas, and coal. That is everything--nuclear, 
hydro, geothermal, wood, wind, waste, solar, oil, natural gas, coal.
  There are only 11 States in the Union that produce more energy than 
they consume. All of these States, starting from No. 1, California, all 
the way down to Vermont, use more energy than they produce.
  Again, I am aware that we are a Nation of 50 States. Some States grow 
sweet potatoes, some States grow Irish potatoes; some States make 
tractors, some States make automobiles.
  But the problem here is that some are saying we don't want to produce 
energy but we want the benefits. So I am saying to my friends on all 
sides, if you don't want to drill for oil and gas on your shore or off, 
then put up a nuclear powerplant. If you don't want to put up a nuclear 
powerplant, put up windmills. If you don't want to put up windmills, 
you have to try to do something to generate energy for this country.
  That is my only argument. That is not this amendment. This amendment 
is just recognizing that the States that have--let me just say this. I 
am trying to speak the truth here. Not only does Louisiana produce more 
than it uses, but please remember how much industry we have. Most of 
the chemical plants are in Louisiana, New Jersey, Illinois. Those are 
the areas where there are a lot of chemical plants.
  We are proud of the petrochemical industry. But we also supply all of 
those manufacturing facilities--huge manufacturing facilities--that 
produce products that are not just bought by Louisiana; these chemicals 
go into better products we create in America. We sell them overseas, we 
sell some to ourselves, and we make money.
  Not only are we producing all the gas and energy we need, we are 
fueling all of our plants and then exporting. When you add that on top 
of the numbers on my chart--and I want this corrected for the record. I 
am not sure this chart counts offshore; I think this may be just 
onshore. I don't think this counts offshore. If you add that, these 
numbers go up exponentially.

[[Page 13987]]

  Wyoming gets the first prize. Some States say, We do not have the 
resources. I understand that. Not everyone has oil and gas. Not 
everyone has coal. The point Senator Domenici has been trying to make 
is, that is fine, but everybody has an ability to do something. Either 
conserve more, do not let SUVs come to your State if that is what you 
want to do, or produce more. That is the point--not on this amendment--
one of the points of this bill.
  Mr. SESSIONS. First, the Senator is exactly correct. This amendment 
is a very modest amendment. It has nothing to do with production of oil 
and gas. It is with frustration that our State has worked toward that 
goal and has not been able to receive any compensation, and many other 
States seem to be slamming the door on even considering that.
  I ask the Senator if there is not a difference in safety and 
environmental impact when we deal with natural gas as opposed to oil? 
And is it not true that much of the energy capacity in the Gulf of 
Mexico and probably off our other States, is natural gas? I know that 
is important. We have probably seen a tripling of natural gas prices.
  I know the Senator agrees that pipelines commence out of the gulf 
coastal areas--Alabama, Mississippi, Louisiana, Texas--that move the 
natural gas all over the country, and those States, if the price keeps 
going up when they heat their houses, they heat their water, their 
industries utilize natural gas, those prices are going up, also, which 
threatens their economic competitiveness. It is not that our States 
have a particular benefit from having the production. It goes in the 
pipelines that move it all over the country.
  Ms. LANDRIEU. The Senator is correct. The Senator from Louisiana 
could answer as well, Senator Vitter. I will yield to him for a 
response.
  We get the benefit of jobs. We are happy for the jobs, and we are 
proud of the technology we are developing.
  The Senator from Alabama is correct. This oil and gas that comes 
through our State and is generated in and around our State goes to the 
benefit of everyone to try to keep the lights on in Chicago, New York, 
California, and Florida. We are happy to do it. We are not even 
complaining. We are just saying, in light of this, could we please 
share less than 1 or 2 percent of the money generated. Last year we 
gave $5 billion to the Treasury.
  The PRESIDING OFFICER (Mr. Burr). The Chair reminds Senators that the 
Senator from Alabama controls the microphone and the Senator from 
Louisiana does not have the ability to yield to the Senator from 
Louisiana.
  Mr. SESSIONS. Mr. President, we had a nice discussion and I thank the 
Chair for reminding us of that.
  Before I yield the floor, I have enjoyed discussing this with the 
Senators from Louisiana, Senator Landrieu and Senator Vitter.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I will yield momentarily.
  I say to the Senators who are listening and to their staffs, we are 
in the process of trying to put together a short list of amendments 
that are absolutely necessary. We are getting close to the end--the end 
will be here when 30 hours have elapsed and then we could have a series 
of votes, but I don't think anyone wants that.
  The Democratic and Republican staffers are taking these amendments 
and they are working together to see how many are absolutely necessary.
  I ask Senators, do not wait, because we will have to go back and call 
you all. If you are serious about an amendment, there are people on the 
Democratic side and the Republican side and in the respective 
cloakrooms waiting to see and talk with you through your staffs or 
otherwise as to what you want to do about the amendments.
  Clearly, there are numerous amendments and I am sure they are all not 
going to be offered. They were submitted in good faith, but I am sure 
they are not intended to be voted on before we finish.
  Would Senators on both sides of the aisle--I think Senator Bingaman 
agrees--try to help by getting word to the cloakrooms whether they are 
serious, whether they want to work on their amendments so we can put 
our list together.
  Mr. NELSON of Florida. Will the Senator yield?
  Mr. DOMENICI. I am pleased to yield.
  Mr. NELSON of Florida. It is my understanding the Senator wants to 
get this bill done quickly. I certainly support him in his desire to 
get that done quickly. It is also my understanding, in order to achieve 
that goal, the two managers of the bill are presently negotiating down 
the number of amendments.
  Is it correct, the understanding that the Senator from Florida has, 
that the amendments that would be agreed to take up would not include 
any amendments having to do with the Outer Continental Shelf drilling?
  Mr. DOMENICI. Might I say it this way. We are not going to agree 
unilaterally or even together what the list is. Senators have to agree. 
So, Senator, you and others who do not want that on the list, you will 
be there and you will say no, and so it will not be on that list. That 
is the best way to say it. It is not going to be on the list unless 
Senators want it on the list. If you do not want it on the list, when 
we get there, we will call, as you know, and we will find out. We 
cannot tell you now because we have a lot of amendments. Let's follow 
the regular order. You will be there and everyone should know that.
  Mr. NELSON of Florida. Indeed. And this Senator understands where 
both Senators from New Mexico are trying to get with the legislation. I 
certainly want you to get there and get there fast.
  Basically you come up with a list of amendments that would be 
considered and you would consider under unanimous consent in the 
Senate, that is the list to be considered for the rest of the debate on 
the bill before final passage?
  Mr. DOMENICI. The Senator is absolutely right. That is the way it is 
done. That is the way it will be done.
  Mr. NELSON of Florida. I thank the Senator for his clarification.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Mr. President, I follow up on some of the previous 
comments regarding this coastal amendment and quickly underscore two 
very important points.
  As my colleague from Louisiana has explained, this is merely treating 
those coastal producing States that have produced so much of the 
Nation's energy needs, taken care of so much of those needs, simply 
treating those coastal producing States fairly.
  If only more States were like us in producing far more energy than we 
consume, of course, this energy crisis we are facing would be less and 
less onerous, but that is not the case.
  In particular, the distinguished chairman of the Budget Committee was 
in the Senate and said his State produced more energy than it consumed. 
I would love to hear the distinguished chairman's sources for that. I 
checked with the U.S. Department of Energy and they flatly disagreed. 
The most recent figures I could obtain, September 5, 2003, certainly 
include the nuclear energy plant the distinguished Senator from New 
Hampshire was referring to. That produces far less than the State of 
New Hampshire consumes. In fact, the total energy production from New 
Hampshire comes from that nuclear facility, .036 quadrillion Btus. The 
total energy consumption of New Hampshire is .329 quadrillion Btus. So, 
according to my source from the U.S. Department of Energy, the best 
information I have, dated September 5, 2003, New Hampshire consumes 
about nine times what it produces from that nuclear plant or any other 
source.
  I use that as an example because, unfortunately, the coastal 
producing States we are talking about are in the distinct minority. We 
do produce the Nation's energy needs. We do produce far more energy 
than we consume. That is great for the Nation. I wish that load were 
spread around more, but it is not. That is a very important element of 
this debate.

[[Page 13988]]

  The second point that directly flows into is a question of fairness. 
The Senator from New Hampshire talked about some boondoggle to coastal 
States. Nothing could be further from the truth. We are simply asking 
for a small, modest modicum of fairness. This amendment covers 4 years, 
2007, 2008, 2009, 2010, 4 years, and then it goes away. During those 4 
years, the royalties into the Federal Treasury from this offshore 
production are expected to be $26 billion. Under this amendment, during 
those 4 years, our share is $1 billion. That is less than 4 percent. 
Meanwhile, onshore oil and gas and mineral production is shared in 
terms of royalties on public lands 50 percent to the States and 50 
percent to the Feds.
  The Senator from New Hampshire, when he was here, cited the example 
of West Virginia coal production. That royalty share on public lands is 
50/50. We will take 50 percent. If the Senator from New Hampshire wants 
to offer that amendment, we will accept that. We are only asking for 4 
percent for 4 years and then it goes away.
  This is fair. It is a fair way to treat those few States that help 
produce the energy the Nation needs. Those are very important points.
  I hope all Senators remember those points as they vote, particularly 
on an amendment that is squarely within the budget, that does not bust 
any of the numbers within the budget.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, I have new pictures. Before I 
show the pictures, I will state the situation in the Senate.
  The Senator from New Jersey, Senator Corzine, and this Senator from 
Florida, are insisting the debate remain on the Landrieu amendment as a 
means, as the clock is ticking, and with most of the Senate having an 
interest to recess tonight for the purpose of many schedules that need 
to be met for tomorrow, including a number of BRAC Commission hearings, 
especially in the State of New Mexico, that are being held tomorrow, 
very important pieces of business that Senators need to attend.
  What the managers of the bill are presently doing, because the 
Senator from New Jersey and this Senator from Florida are insisting, 
since, lo and behold, we discovered what we thought we had taken care 
of yesterday, which was amendments would not be offered for further 
attempts at drilling on the Outer Continental Shelf--lo and behold, 
those amendments have been filed and they were declared germane by the 
Parliamentarian. Therefore, regardless of all of the agreements that 
have been made, they can be brought up at any time.
  So the Senator from New Jersey and this Senator from Florida, simply 
recognizing the clock is ticking, in order that those amendments will 
not be brought up, are continuing to keep the debate on the Landrieu 
amendment. At such time as we expect the normal process would be done, 
which is the winnowing down of the remaining amendments, we then would 
ask for unanimous consent from the Senate to take up only those 
remaining amendments and that those amendments will not include the 
amendments further causing the drilling off the Outer Continental 
Shelf. So that is the parliamentary procedure we find ourselves in.
  Now, I have heard a number of statements on this floor over the last 
several days. I wish to clarify. I also wish to bring an update to the 
Senate. As shown in this picture, this is what we have at stake in 
Florida. It is the pristine beaches. That is not the only reason for 
not wanting to drill off the coast of Florida, but that is one of the 
reasons, and it is a major reason. We do have a $50 billion-a-year 
tourism industry that depends on those pristine beaches. Of course, 
people from all over the world come to enjoy the extraordinary 
environment we have. That is one of the reasons.
  I have enumerated over the last several days many other reasons. 
Those reasons certainly include the delicacy of the balance of nature 
in some of the estuaries and bays; the brackish waters; the mangrove 
swamps which you find on the coast of Florida, which is not 
specifically a beach. Generally you will find a beach on what is known 
as a barrier island. It is those barrier islands that have these 
extraordinary opportunities for guests to come and visit.
  I have enumerated over the last several days also another reason; 
that is, the major national asset that we have off the gulf coast of 
Florida and off a good part of the Atlantic coast of Florida. It is 
called restricted airspace. Is it any wonder why the training of pilots 
for the new F-22 Stealth Fighter is at Tyndall Air Force Base? Is it 
any wonder why the training of pilots from all branches of the military 
for the new F-35 Joint Strike Fighter is at Eglin Air Force Base?
  It is not any wonder when you realize the place they train is out 
over the Gulf of Mexico, most of which is restricted airspace, and most 
of which has had now increased training coming because the Navy 
Atlantic Fleet training was shut down on the island of Vieques off of 
Puerto Rico. Most of that training has come to northwest Florida. That 
training is done out off the Gulf of Mexico. You cannot have surface 
ships coordinating and training with aircraft, which are practicing 
with their targets on virtual land masses that have been created by 
computers on the Gulf of Mexico, if you have oil rigs down there on the 
surface of the Gulf of Mexico. That is another reason.
  But I want to dwell for a minute on this reason right here as shown 
on this picture. I said I had a new picture. I do. This picture is a 
week old. This is an oilspill that just occurred off of Louisiana in 
the last week. There have been now 600 pelicans threatened, and 200 
pelicans have died from this oilspill. This was a relatively minor 
oilspill: 560 gallons--13 barrels--of oil, a relatively minor spill. 
You can see the damage it has done.
  Now, I have shown other pictures out here. Shown on this picture is 
what we do not want. And shown on this picture is what we want. That is 
why the Senators from Florida, the Senators from other coastal States 
such as North Carolina and South Carolina, the Senators from New 
Jersey--and you could go on up the coast and then go out to the west 
coast and start in the North with Washington, Oregon, and California--
that is why these Senators are so concerned about the protection of the 
interests of their particular States.
  Now, this next picture is of an oilspill from years ago. I think this 
was actually from the Exxon Valdez, which was a much larger oilspill. 
That was a whole tanker. But a tanker can do that damage. And the spill 
from a week ago, which was a relatively minor spill, can also do 
damage, where 200 pelicans have died and 600 are threatened.
  Now I want to address what has been stated here. It is as if Florida 
is not doing its part, as suggested by the list that was shown earlier 
of those that are net-plus of energy and those that are net-minus of 
energy. Is this the way we are going to solve our energy crisis? I 
think we ought to all be doing each thing we can to solve our energy 
crisis. It is absolutely inexcusable that America today is in a 
position whereby we are importing almost 60 percent of our daily 
consumption from foreign shores. That is not only inexcusable, that is 
unsustainable, when you consider the defense interests of our country, 
that we would be so dependent on oil coming from the Mideast and the 
Persian Gulf region.
  By the way, 15 percent of our daily consumption comes from Venezuela. 
Guess what. We do not exactly have good relations with the Government 
of Venezuela these days. And the President of Venezuela, Hugo Chavez, 
from time to time beats his chest and beats the desk and says he is 
considering the cutting off of oil. That is another story. We could 
discuss that at length. But it all is forming a composite picture that 
we ought to be doing something about our dependence on foreign oil.
  Well, where do you do the most good the quickest? It is to go where 
you consume the most energy. Where is most energy in America consumed? 
It is in transportation. And where in transportation is most energy 
consumed? It is

[[Page 13989]]

in our personal vehicles--automobiles, trucks, SUVs. Yet you see we are 
considering an energy bill, and we cannot even get past an amendment 
that will raise miles per gallon on SUVs, phased in over a 10-year 
period. We do not have the votes. Why? Because there are certain 
interests here that say no. They want those gas guzzlers. Yet it is 
completely contrary to the interests of the United States.
  If we really want to do something, we have to do something about 
miles per gallon. I wish to share with the Senate a recent experience I 
had talking with the former Director of Central Intelligence, Jim 
Woolsey, about a proposal he has that I believe makes a great deal of 
sense. It is quite exciting. This proposal could, according to his 
statistics, have the equivalent of having vehicles that would run at 
500 miles per gallon. This is not science fiction. Let me tell you the 
three components.
  The first component has to do with the fact that we already mix 
ethanol with gasoline, the ethanol being made primarily from corn. That 
is an expensive process, but we do that. In different places, there are 
various percentages of that ethanol. The ethanol and the gasoline burn 
together, and the ethanol starts replacing the gasoline.
  What if you could replace that gasoline with more ethanol so that, 
say, it is 50 percent gasoline and 50 percent ethanol? You may say: 
Well, it would not be economical because it is very expensive to get 
that ethanol from corn. Jim Woolsey has said you can make ethanol from 
prairie grass. We have 31 million acres of prairie grass in the United 
States. It would have to be harvested each year, cutting the grass. You 
would have refined processes, just like in making ethanol from corn, 
but you have a different ingredient, and it would be much cheaper to 
make the ethanol. So why don't we start replacing oil--in other words, 
gasoline--with ethanol?
  What the experts are telling me is you could use the same engines 
that we have. Perhaps they would have to have a little bit of tweaking 
to accommodate 50 percent ethanol and 50 percent gasoline, but look how 
much oil per day we would be saving just with that. But that is just 
the first component.
  The second component is, what happens if you start turning all of 
America's new automobile engines into hybrid engines? A hybrid engine 
is what the Japanese have already done so successfully that they have 
these long waiting lists for these cars that have hybrid engines, that 
have computers that shift to electricity at one point and to gasoline 
at another point. The Japanese automakers' cars today--and they have 
been for several years--are getting better than 50 miles per gallon. 
That is the second component.
  So what happens if you take fuel which is a mixture of ethanol and 
gasoline and put it into hybrid cars which are being run off of 
electricity and the mixture of fuel is that you start to see you are 
beginning to use less and less oil, and you are allowing technology to 
start working for us.
  But there is a third component; that is, taking your hybrid vehicle--
that is in your garage at night when you are not using it--and just 
plugging it in, so that in the morning, when you are ready to use your 
vehicle, your battery is fully charged up to its capacity. It would be 
using electricity that has been coming from a powerplant that is 
usually a powerplant that is fueled by something other than oil.
  So now you have a car that leaves the garage. It is fully powered up 
in its battery, so as it is going to its electric side of the fuel 
component, it has that extra reserve. The gasoline side does not have 
to produce all that much for the electrical side of the hybrid.
  And, by the way, when it is over on the gasoline side, it is using a 
lot less gasoline because the gasoline is mixed with ethanol. What Jim 
Woolsey has told a number of Senators is the calculations are that, 
under present standards, you would actually have a car that would be 
the equivalent of 500 miles per gallon. Can you imagine what that would 
do to our dependence on foreign oil, since our personal vehicles are, 
in fact, the major factor in our daily consumption of oil? We are 
talking serious changes. We are talking about not having to have a 
foreign policy--and I want to recognize my colleague because I want to 
hear what she says--where we, the United States, become the protector 
for the entire civilized world of the oil supply flowing out of the 
Persian Gulf region.
  We are talking about a United States foreign policy that, Lord 
forbid, if radical Islamists were to cause the Saudi Royal Family to 
fall and then the other gulf states start falling like dominos and 
suddenly radical Islamists are in control of a major source of the 
world's oil supply--you can imagine what that would do to the rest of 
the free world and the industrialized world. We are talking about major 
crisis.
  And how much of a threat is it that there is such a crisis? Look what 
we are dealing with in Iraq today. Who are the insurgents? Most of the 
terrorists in the world are now coming there not only to kill our boys 
and girls but are coming there to train to be terrorists instead of 
training in the former area of Afghanistan. It is easier for them to 
come where all the action is in Iraq. Lord help us if ever radical 
Islamists took over in Iraq.
  Ms. LANDRIEU. Will the Senator yield?
  Mr. NELSON of Florida. I am happy to yield to my distinguished and 
very persistent colleague from the State of Louisiana.
  Ms. LANDRIEU. I thank the Senator from Florida.
  I wanted to say that he has made some excellent points about our need 
for energy independence. He has stated it eloquently and correctly in 
terms of our overdependence. In large measure that has been what so 
many of our debates in the last few weeks have been.
  As the Senator knows, the underlying bill we are trying to get to a 
final vote on within a few hours actually addresses so many of the 
concerns the Senator has so rightly raised. He is correct that we can 
move to a new kind of vehicle that you can plug in at night, drive 
during the day, switch from electricity to gasoline. That gives us 
extraordinary hope, without compromising our industry, without 
Draconian measures. What he spoke about is real, it is not fantasy, and 
it is in this bill. The ethanol provisions that he talked about are in 
this bill because of the great work of Senator Domenici and Senator 
Bingaman, a Republican and a Democrat. Yes, they are from the same 
State, but they have different views--some more conservative, some more 
liberal. But they have come together on a great, balanced bill.
  We are attempting to pass this good bill today. We are very close. We 
are down to the last few amendments. The Senator from Florida has made 
some excellent points. I also want to say he has been tireless in his 
advocacy for Florida. He is a Senator from Florida, along with Senator 
Martinez. They have been down here for hours telling us about their 
beautiful beaches. We acknowledge it. In Louisiana--I tease the Senator 
from Florida--we know about those beaches. We grew up on those beaches 
as well. People from Mississippi and Alabama and Louisiana spend a lot 
of time on those beaches. We want to help them preserve their beaches.
  I wanted to ask the Senator: Does he intend, if we can get our 
situation cleared up, to support the amendment we have on the floor, 
which is a revenue coastal impact assistance sharing? He has been so 
good in his comments about the contribution that Louisiana and other 
coastal producing States make. I know he is aware that this amendment 
we are considering is not a drilling amendment. It is not a boundary 
amendment, the Bingaman-Domenici-Landrieu-Vitter-Lott amendment. I 
wanted to ask him to comment on that.
  Mr. NELSON of Florida. As the Senator well knows, her original 
amendment had the provisions for drilling off the coast of Florida, 
which this Senator vigorously fought. But when I sought the advice and 
counsel of the Senator from Louisiana, she had explained to this 
Senator that what she wanted was revenuesharing so that she could help 
with the bays and estuaries and coastal waters of her State. This 
Senator from Florida did not find that at all to be contrary to any 
interest in

[[Page 13990]]

Florida. Therefore, it was the expectation of this Senator that if the 
Senator from Louisiana backed off of her attempts to want to drill off 
the coast of Florida, then certainly this Senator would try to help her 
with regard to the Senator from Louisiana protecting the interests of 
her State. That is part of the wonderful process of the give and take 
and the consensus building that we have around here where each State is 
represented by two Senators. We can look out for our interests, and you 
can look out for your interests, and then we can look out for our 
mutual interests. As the Good Book says: Come and reason together.
  That is what we have attempted to do. I suspect that although several 
of us coastal Senators have had to scratch and claw and stand on the 
floor and make objections and stand up and filibuster and do all of 
those kinds of things to get our point across, it looks as though the 
Senator from Louisiana is going to be flying on cloud nine passing her 
amendment. But she has a higher threshold to get to. She has a 
threshold of 60 votes in order to pass a budgetary waiver in order to 
get it through. It is my hope the Senator from Louisiana will get her 
60 votes.
  Would the Senator like me to yield for purposes of a question and 
retaining the floor?
  Ms. LANDRIEU. I thank the Senator for those comments.
  Again, I recognize Senator Domenici and Senator Bingaman, who have 
tried to work through the great differences between all of us, 
representing our individual States, trying to move a bill forward that 
achieves the purpose we all want. The goal of more energy independence 
for our Nation, stronger conservation measures, opening the supply of 
different types--that is the purpose of the bill. So as we get to the 
final hours, having debated this bill now for 2 hours, I hope we can 
stay in the spirit of moving this important legislation. One of our 
colleagues from Virginia said this morning that in his opinion this 
might be the most significant piece of legislation we may pass this 
Congress.
  We have tried for 14 years. The Senator from Florida is aware we have 
tried to pass an energy bill. This is not an easy bill to pass, not 
because Democrats and Republicans disagree, but because regions of the 
country disagree about how best to achieve that goal. It is an 
extremely difficult piece of legislation.
  If we had not had the two leaders we had, with the patience of Job--
as I have said many times, I don't know how they have brought us to 
this point. I know it is the Domenici-Bingaman amendment that is 
pending. Senator Vitter and I are cosponsors. Both Senators from 
Mississippi came earlier to speak on the amendment. We hope sometime in 
the next hour or so--hopefully sooner--to get a vote on the amendment--
it would be a bipartisan vote--and then move on to take care of the 
other amendments and finalize the bill.
  The Senator from Florida knows that despite our differences on this 
issue, we will agree to debate it in the future. This debate will go 
on. The underlying debate is not about the moratoria. It is not a 
drilling amendment. I look forward to having his support.
  Mr. NELSON of Florida. This Senator thought the agreement to support 
the amendment of the Senator from Louisiana is that the Senator from 
Louisiana would forever and always support the Senator from Florida to 
keep drilling off of the coast of Florida.
  Senator Landrieu has been such a tremendous advocate for the 
interests of her State. She has a need that is in front of the Senator. 
This Senator intends to help her, even though this Senator would 
certainly appreciate a little more help in the future from the Senator 
from Louisiana.
  I want to point out again why the Senator from New Jersey, Mr. 
Corzine, and I have been so exercised about now that this amendment is 
out there, filed, and it is germane to the bill, an amendment offered 
by Senator Alexander, why it is such anathema to us. I will simply give 
you the explanation. When they say: Oh, we are just going to let States 
decide if they want to have the drilling off their coasts, there is 
something known as seaward lateral boundaries that are drawn as to what 
is the waters off of a State according to a Law of the Sea Treaty 
which, by the way, was never ratified by the United States, so it is 
not the law of this country. Let me show you what the line would be off 
the State of Florida for the State of Louisiana under that Law of the 
Sea Treaty.
  This is Louisiana. This is Mississippi. This is Alabama. And this is 
the line on the latitudes of Alabama and Florida. Guess what would be 
considered under the drawing of these lines called seaward lateral 
boundaries for Louisiana. It is a faint line, but I will point it out 
with my finger. This is the line for Louisiana. All that off the coast 
of Florida would be Louisiana.
  I suspect that in the case of Senator Corzine off New Jersey, he 
would have to worry about something that is not the law of this land 
but those boundaries being drawn that an adjacent State would say: We 
want to drill. And lo and behold, it would end up off the coast of New 
Jersey.
  I yield to the Senator from New Jersey.
  Mr. CORZINE. I thank my colleague, who is pointing out the legal 
argument about seaward lateral boundaries which are those that would 
end up applying in a practical sense where drilling might occur. There 
is also the reality of oil spills, some associated with drilling for 
natural gas which has occurred on more than a small percentage of 
situations in drilling for natural gas, and oil spills moved with the 
flow of the tides. As is shown in the map the Senator from Florida is 
presenting, not only do you have a legal boundary, you have a practical 
boundary because there are no boundaries in the water. And there are no 
boundaries for fish to swim.
  There are grave risks if the environmental and ecological elements of 
protection are not thought about. And there is a huge cost-benefit for 
many States with regard to how their economies and the quality of life 
and lifestyles are developed. That has to be put in measurement and 
measured against what is going to be gained.
  In the case of New Jersey and the Mid-Atlantic and North Atlantic 
region, earlier tests show very limited supplies of natural gas and oil 
on that Outer Continental Shelf. Why do we want to put ourselves at 
that kind of risk on a cost-benefit analysis? I ask the question, Is 
that the same kind of analysis at which my distinguished colleague from 
Florida has arrived?
  Mr. NELSON of Florida. Indeed it is. But we feel so passionately 
about this for the reasons that I have articulated much earlier. When 
somebody then wants to claim the patina of legality suddenly for their 
State's waters and, in fact, allow the drilling off the coast of 
another State, then it is starting to get absurd. That is when we have 
to put our foot down.
  As the Senator from New Jersey was talking, it occurred to me that I 
want to show, once again, these charts. This is from the Exxon Valdez, 
which is many years ago. But that was last week. That is last week off 
the coast of Louisiana. That is what we want to prevent.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. I ask unanimous consent to be allowed to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Consultation on Supreme Court Nominees

  Mr. CORNYN. Mr. President, I want to talk about the anticipated 
vacancy on the U.S. Supreme Court. Whatever the timeframe for a vacancy 
on the Court, the process for selecting the next Associate or Chief 
Justice should reflect the very best of the American judiciary, not the 
worst of American politics. We deserve a Supreme Court nominee who 
reveres and respects the law--and a confirmation process that is civil, 
respectful, and keeps politics out of the judiciary.
  This morning, a number of our colleagues on the other side of the 
aisle asked to be consulted about any future Supreme Court nomination.
  I have two responses. First, we should be clear. Although 
consultation,

[[Page 13991]]

in theory, may or may not be a good idea, there is no constitutional 
requirement or Senate tradition that obligates the President, or anyone 
in the executive branch, to consult with individual Senators, let alone 
with the Senate as an institution.
  Second, consultation may or may not be a good idea, but Senators 
should behave in a manner that is both respectful and deserving of such 
a special role in the Supreme Court nomination process, if they expect 
the administration to meet them halfway.
  At a minimum, the President should consider the following three 
conditions before agreeing to any special consultation with any 
particular Senator. First, whoever the nominee is, the Senate should 
focus its attention on judicial qualifications, not personal political 
beliefs. Second, whoever the nominee is, the Senate should engage in 
respectful and honest inquiry, not partisan, political, or personal 
attacks. Third, whoever the nominee is, the Senate should apply the 
same fair process that has existed for more than two centuries, and 
that is confirmation or rejection by a majority vote.
  First, as I said, there is no constitutional or Senate tradition 
requiring consultation with individual Senators, let alone with the 
Senate as an institution.
  The text of the Constitution contemplates no formal role for the 
Senate as an institution--let alone individual Senators--to advise on 
selecting Justices on the Supreme Court, or on any Federal court.
  As renowned constitutional scholar and historian, David Currie, has 
pointed out, President George Washington did not consult with the 
Senate. I quote: ``Madison, Jefferson, and Jay all advised Washington 
not to consult the Senate before making nominations.''
  Professor Michael Gerhardt, the top Democrat adviser on the 
confirmation process, has similarly noted that ``the Constitution does 
not mandate any formal prenomination role for the Senate to consult 
with the President; nor does it impose any obligation on the President 
to consult with the Senate prior to nominating people to confirmable 
posts.''
  My second point: If there is to be any consultation, the Senate must 
first show that it will behave itself in a manner worthy of such a 
special role in the Supreme Court nomination process. After all, there 
is a right way and a wrong way to debate the merits of a Supreme Court 
nominee. And history itself provides some useful benchmarks.
  First, whoever the nominee is, the Senate should focus its attention 
on judicial qualifications--not on personal political beliefs.
  When President Clinton nominated Ruth Bader Ginsburg to the Court in 
1993, Senators knew that she was a brilliant lawyer with a strong 
record of service in the law. Senators knew that she served as general 
counsel of the American Civil Liberties Union, a liberal organization 
that has championed the abolition of traditional marriage laws and 
attacked the Pledge of Allegiance. And they know that she had 
previously written that traditional marriage laws are unconstitutional; 
that the Constitution guarantees a right to prostitution; that the Boy 
Scouts, Girl Scouts, Mother's Day, and Father's Day are all 
discriminatory institutions; that courts should force taxpayers to pay 
for abortions against their will; and that the age of consent for 
sexual activity should be lowered to the age of 12. The Senate, 
nevertheless, confirmed her by a vote of 96 to 3.
  Similarly, when Steven Breyer, nominated in 1994 by President 
Clinton, and Antonin Scalia, nominated in 1986 by President Reagan, the 
Senate recognized that these were brilliant jurists with strong records 
of service. Breyer had served previously as chief counsel to Senator 
Ted Kennedy on the Senate Judiciary Committee. His nomination to the 
Court was opposed by many conservatives because of alleged hostility to 
religious liberty and private religious education, while Scalia was 
known to hold strongly conservative views on a number of topics. The 
Senate, nevertheless, confirmed them by votes of 87 to 9 and 98 to 0, 
respectively.
  Second, whoever the nominee is, the Senate should engage in 
respectful and honest inquiry, not partisan political or personal 
attacks.
  Unfortunately, as we know, respect for nominees has not always been 
the standard--at least it has not always been observed.
  Lewis Powell, a distinguished member of the U.S. Supreme Court, 
during his nomination process was accused of demonstrating ``continued 
hostility to the law,'' and waging a ``continual war on the 
Constitution.'' Senate witnesses warned that his confirmation would 
mean that ``justice for women would be ignored.'' John Paul Stevens, 
also with a distinguished record of service on the Supreme Court, was 
charged during his confirmation hearings with ``blatant insensitivity 
to discrimination against women.'' Anthony Kennedy, also on the Court, 
was scrutinized for his ``history of pro bono work for the Catholic 
Church,'' and found to be ``a deeply disturbing candidate for the 
United States Supreme Court,'' according to some accounts.
  David Souter, also on the U.S. Supreme Court, during his confirmation 
process, was described as ``almost neanderthal,'' ``biased,'' and 
``inflammatory.'' One Senator actually said Souter's civil rights 
record was ``particularly troubling'' and ``raised troubling questions 
about the depth of his commitment to the role of the Supreme Court and 
Congress in protecting individual rights and liberties under the 
Constitution.'' That same Senator condemned Souter for making 
``reactionary arguments'' and for being ``willing to defend the 
indefensible'' and predicted that, if confirmed, Souter would ``turn 
the clock back on the historic progress of recent decades.'' At Senate 
hearings, witnesses cried that, ``I tremble for this country if you 
confirm David Souter,'' warning that ``women's lives are at stake,'' 
and even predicting that ``women will die.''
  The best apology for these ruthless and reckless attacks is for them 
never to be repeated again. Unfortunately, recent history is not 
particularly promising. Even before President Bush took office in 
January 2001, the now-leader of the opposition party in the Senate told 
Fox News Sunday that ``we have a right to look at John Ashcroft's 
religion,'' to determine whether there is ``anything with his religious 
beliefs that would cause us to vote against him.'' And over the last 4 
years, this President's judicial nominees have been labeled ``kooks,'' 
``Neanderthals,'' and even ``turkeys.'' Respected public servants and 
brilliant jurists have been called ``scary'' and ``despicable.''
  Third, whoever the nominee is, the Senate should apply the same fair 
process that has existed for over two centuries when it comes to 
confirmation or rejection--by an up-or-down vote of the majority.
  Our colleagues on the other side of the aisle have recently asked to 
be consulted about any future Supreme Court nomination--even though the 
Constitution provides only for advice and consent of the Senate, not 
individual Senators, and only with respect to the appointment, not the 
nomination of any Federal judge. If Senators want an extraordinary and 
extraconstitutional role in the Supreme Court nomination process, the 
President should first consider seeking a commitment from them to 
subscribe to the three principles that I have talked about briefly 
above.
  After years of unprecedented obstruction and destructive politics, we 
must restore dignity, honesty, respect, and fairness to our Senate 
confirmation process. That is the only way to keep politics out of the 
judiciary.
  Mr. McCONNELL. Will the Senator yield for a question before yielding 
the floor?
  Mr. CORNYN. Yes.
  Mr. McCONNELL. I was listening carefully to my friend's comments 
about the process by which we react to the President's nominees to the 
Supreme Court. Did I hear my colleague correctly, in discussing the 
issue of what is or is not a mainstream nominee, that Ruth Bader 
Ginsburg, for whom I voted--and I believe the final vote was something 
like 96 to 3--had at one time speculated that there might

[[Page 13992]]

be a constitutional right to prostitution? Did she not suggest that at 
some point in one of her writings?
  Mr. CORNYN. The distinguished assistant majority leader is correct.
  Mr. McCONNELL. Also, had she not suggested at one point that there be 
a uni-sex ``Parent's Day'' instead of a Father's Day or a Mother's Day, 
or something similar to that?
  Mr. CORNYN. Again, the distinguished assistant majority leader is 
correct.
  Mr. McCONNELL. I ask my friend from Texas, is it not the case that 
many nominations that have been sent up here by Presidents have opined, 
from time to time, controversial or provocative views, particularly if 
they have had a background as a teacher, that might strike many of us 
on this side of the aisle, and I suspect a majority on the other side, 
as outside of the mainstream to the left?
  Mr. CORNYN. I say to the distinguished assistant majority leader that 
any lawyer--and we are likely to get a lawyer nominated for this 
important job on the Supreme Court--is going to have taken on behalf of 
a client, someone they have represented, or if they have taught, as the 
question suggests, during the course of their academic musings, 
programs, or writings, in Law Journal articles or otherwise, they are 
going to engage in the kind of intellectual exercise speculating 
perhaps about the limits of the law or what the law would or would not 
be under a particular set of circumstances.
  It is simply unreasonable to ascribe to those nominees, let's say, 
the views of someone they are defending in a criminal case because they 
have volunteered to serve pro bono to defend somebody accused of a 
crime, or to ascribe to them as their own personal beliefs or ones they 
will actively seek and enforce from the bench or what they have written 
in academic writings on perhaps the limits of the Constitution or what 
would or would not stand up in a particular court decision.
  I agree we should be fair to the nominees. We should require they 
rule in accordance with precedent and the intent of Congress when it 
comes to interpreting acts of Congress. But we should not try to 
mischaracterize them or paint them as out of the mainstream by viewing 
in isolation some of these writings or representations in their legal 
practice.
  Mr. McCONNELL. Finally, let me ask, is it not largely the case, I ask 
my colleague from Texas, that until the last few years, controversial 
or provocative comments or writings have, in fact, not been used as a 
rationale for defeating nominees, assuming they are lacking in 
qualifications or ``outside the mainstream'' as a rationale for 
defeating otherwise well-qualified nominees?
  Mr. CORNYN. As the distinguished assistant majority leader knows, 
there has been a mischaracterization of the record of many nominees who 
have come up in recent times and one I hope we do not see repeated when 
we have this Supreme Court vacancy to consider, the President's 
nominee. But we have not had a good record recently of treating these 
nominees respectfully, understanding that these are people who are 
subjecting themselves to this process and public service at some 
personal sacrifice. I worry if this process becomes too mean and too 
unfair that we will simply see people who will not answer the call when 
the President requests they serve as a judge.
  We have seen those kinds of characterizations and attacks, as the 
assistant majority leader described them. It is my hope, and I know 
his, that we will not see a repetition of that, but we will see a 
respectful process. We will see one where the Senate does its job. We 
ask tough questions. We do a thorough investigation. But at the end of 
the day, we do not try to paint these nominees as something they are 
not and that we have an up-or-down vote on these nominees, as we have 
had for more than 200 years.
  Mr. McCONNELL. I thank my friend from Texas for responding to my 
questions.
  Mr. CORNYN. I yield the floor, Mr. President.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Kentucky.


                         Supreme Court Nominees

  Mr. McCONNELL. Mr. President, I listened with interest this morning 
to the remarks of our Democratic colleagues. They talked about a 
potential Supreme Court vacancy. While we have no knowledge of the 
occurrence of such a vacancy at this time, our friends implored the 
White House to consult with them in selecting a Supreme Court nominee. 
It is on this subject that I wish to make a few observations in the 
event such a vacancy were to occur.
  From time to time, Senators may suggest to a President who he should 
nominate to the Federal bench. Sometimes Presidents agree with the 
suggestions and sometimes they do not. This White House has observed 
this practice, and I believe it will continue to do so. But we should 
not confuse the solicitude that any President may afford the views of 
individual Senators on a case-by-case basis with some sort of 
constitutional right of 100 individual Senators to co-nominate persons 
to the Federal court.
  Unfortunately, I am afraid our Democratic friends are under a 
misapprehension that they have some sort of individual right of co-
nomination. In the past, our colleague Senator Schumer has said that in 
his view--in his view--the President and the Senate should have ``equal 
roles'' in picking judicial nominees.
  And just last week, and again on the floor this morning, my good 
friend from Vermont said that he ``stands ready to work with President 
Bush to help him select a nominee to the Supreme Court.''
  Such a view of the confirmation process is completely at odds with 
the plain language of the Constitution, the Framers' intent, common 
sense, and past statements of our Democratic friends themselves.
  Let's start with the Constitution. Article II, section 2 provides 
that the President, and the President alone--no one else--nominates. It 
says ``the President shall nominate.'' It does not say ``the President 
and the Senate shall nominate,'' nor does it say ``the President and a 
certain quantity of individual Senators shall nominate.'' It says ``the 
President shall nominate''--the plain words of the Constitution.
  It then adds that after he nominates, his nominees will be appointed 
``by and with the Advice and Consent of the Senate.''
  This plain language meaning of article II, section 2 is confirmed by 
the Founding Father who proposed the very constitutional language I 
just cited. Alexander Hamilton wrote that it is the President, not the 
President and members of the opposition party, who nominates judges. 
Specifically, in Federalist No. 66, Alexander Hamilton wrote:

       It will be the Office of the President to nominate, and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no exertion of choice--

I repeat, no exertion of choice--

     on the part of the Senate. They may defeat one choice of the 
     Executive and oblige him to make another; but they cannot 
     themselves choose--they can only ratify or reject the choice 
     [of the President].

  Nothing could be more clear--Alexander Hamilton in Federalist No. 66 
interpreting the plain language of article II, section 2 of the 
Constitution.
  The Framers were, of course, as we all know, brilliant. They 
recognized that the judicial confirmation process would not function at 
all if we had the President and a multitude of individual Senators 
selecting judges. How could a President hope to accommodate the views 
of 100 different Senators on who he should nominate, each of whom might 
submit their own slate of nominees? That is why the only person who won 
a national election is charged with the power of nomination--the only 
person who won a national election is charged with the power of 
nomination.
  Our Democratic friends at one point at least recognized this as well. 
For example, during Justice O'Connor's confirmation hearing, my good 
friend from Delaware, the former chairman of the Judiciary Committee, 
said:

       I believe it is necessary at the outset of these hearings 
     on your nomination--

Talking to Sandra Day O'Connor at the time--

     to define the nature and scope of our responsibilities in the 
     confirmation process, at

[[Page 13993]]

     least as I understand them. . . . [A]s a Member of the U.S. 
     Senate, I am not choosing a nominee for the Court.

This is our colleague from Delaware.

     . . . I am not choosing a nominee for the Court. That is the 
     prerogative of the President of the United States, and we 
     Members of the U.S. Senate are simply reviewing the choice 
     that he has made.

  That was Senator Biden in 1981.
  And on the subject of deference, I must respectfully disagree with my 
good friend from Massachusetts, Senator Kennedy. Professor Michael 
Gerhardt, on whose expertise in constitutional law our Democratic 
friends have relied, notes that:

       The Constitution . . . establishes a presumption of 
     confirmation that works to the advantage of the President and 
     his nominees.

  Finally, let me reiterate that at the end of the day, the Senate 
gives the President's nominees an up-or-down vote. This has been the 
practice even when there were highly contested Supreme Court nominees. 
There were no Supreme Court nominees more contested than Robert Bork 
and Clarence Thomas. Yet those Supreme Court nominees received up-or-
down votes. I expect the same courtesy will be afforded to the next 
Supreme Court nominee regardless of who the nominating President is.
  I thank the Chair, and 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.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I am sorry I was at the DPC lunch, but I 
heard that a number of my colleagues had a little debate about 
consultation, a letter that 44 of the 45 Democrats sent to the 
President today, and the 45th, Senator Byrd, agreed in theory with the 
letter, agreed in the sentiments of the letter but wanted to write his 
own. He felt so strongly about it, he told me, that he wanted to put it 
in his own words.
  All of a sudden we are hearing two things from the other side about 
consultation. First--and I could not believe this statement--my good 
friend from Texas, Senator Cornyn, said the Democrats are being 
political. If 1984 has not arrived, when asking to consult and bring 
people together is political and asking to be divided and not consult 
is nonpolitical, I don't know what is. This is 1984. We are asking the 
President to bring people together. We are asking the President to 
follow the Constitution. There is the word ``advise.'' And all of a 
sudden that is called being political? Please, give me a break.
  The American people have asked us--every one of us; we can be from 
any one of the 50 States, we can be of any political philosophy, and I 
am sure we are asked when we get home: How do we break this 
partisanship on judges? The wisdom of the Founding Fathers, as always, 
is usually best. They recommended advise as well as consent, meaning 
consult. And here we, in a way--all the Democrats--in a desire to avoid 
confrontation, asked for consultation, and we are called political?
  It seems to my good friend from Texas the only thing that is not 
political is we just say yes to whatever the President asks. That is 
not what we will do, and that is not what America is all about.
  Our letter, I say to the American people, was heartfelt.
  Our letter said: Let us avoid the confrontation on judges. The only 
way to do it is by consultation, plain and simple. President Clinton 
consulted. He called Senator Hatch at a time when Senator Hatch was not 
in the majority. According to Senator Leahy, he told me this morning 
that Senator Hatch at that time--it must have been 1993 or 1994--was 
the ranking minority member, and as I understand it President Clinton 
bounced names off Senator Hatch: How about this one, how about that 
one?
  Senator Hatch was wise enough to know that he was not going to get a 
conservative. The President would not nominate a conservative, just as 
we know and do not expect the President to nominate a Democrat or a 
liberal. We know that. But there are always shades of gray which only 
the ideologues of the hard right and the hard left never see. There are 
people who are mainstream conservatives who would be acceptable to most 
of us because we believe--my test, and I think it is the test of most 
of us is not on any one issue but, rather, would be people who would 
interpret the law, not make it.
  I do not like judges who are ideologues. I do not like judges at the 
extremes. Obviously, the President has nominated some judges at the 
extremes, but my judicial committee, under my instructions in New York, 
where I get a say in nominations, knocks out anybody on the far left. 
That is because ideologues want to make law. They are so sure they are 
right that they can ignore everybody else.
  Consultation is what it is all about. In my judgment, consultation is 
the only way to avoid the kinds of confrontations which I am sure none 
of us likes when it comes to judges. To call it political, that does 
not pass the laugh test.
  Then I heard--and again, I was not here--that my friend from Texas 
and I believe my friend from Kentucky were having a debate on what 
should be allowed to be in the record in terms of if and when a Supreme 
Court Justice is nominated. I was told, Well, what they considered and 
argued while in court should not be considered because they were 
representing a client, or it should not be this or it should not be 
that.
  The nomination and the confirmation of a U.S. Supreme Court Justice 
and a U.S. Chief Justice is one of the most important things we shall 
do as Senators. Let me put my colleagues on notice: Everything should 
be on the record--everything. Some will have less importance, some will 
have more importance, but to already, before someone is even nominated, 
start saying, Oh, this should not be part of the record, that should 
not be part of the record, sounds a little defensive.
  I suppose we should not know anything about the nominee; just take 
the President's recommendation. Well, again, read the Constitution, I 
would advise my colleagues, with respect. It does not say the President 
determines who are Supreme Court nominees. In fact, for two-thirds of 
the period when the Founding Fathers wrote the Constitution, they had 
the Senate choose the Supreme Court. The only reason they changed it to 
have the President nominate is--I think they called it unity of 
purpose. They thought having--then it was probably 30--26 people try to 
choose 1 nominee was far more difficult than 1 choosing a nominee. But 
make no mistake about it, they wanted the Senate to be very active. In 
fact, as we know from our history and we have repeated on this floor, 
although it does not seem to make much of a dent, the early Senate 
rejected one of George Washington's nominees, and I believe in that 
Senate there were eight Founding Fathers.
  They ought to know better than any of us. Here we are saying this 
should not be part of the record, that should not be part of the 
record. Maybe my colleagues are being a little defensive. Maybe they do 
not want--I do not know who the nominees will be. I have no idea. But 
maybe they are worried that if all the facts came out, the American 
people might not want the nominee. I am of the other view. Justice 
Brandeis stated that sunlight is the greatest disinfectant. The more we 
see and the more we learn, the better we will be prepared.
  I see my good friend, our great leader from Hawaii, has come to the 
floor of the Senate, and I do not want to delay him.
  In conclusion, one, we plead with the President to consult with the 
minority, as President Clinton did, as President Hoover did, as 
President Grant did, and as so many others. That will make the process 
go more easily. When the American people ask us what can avoid the kind 
of confrontation we have seen with judges, there is a one word answer: 
consultation. Advise, as in advise and consent.

[[Page 13994]]

  The ball is in the President's court. He can determine whether we 
have the kind of process the American people want--careful, thorough 
but harmonious, without acrimony, by consulting--or he can be like Zeus 
from Mount Olympus and throw down judicial thunderbolts and say: This 
is the nominee. Then maybe some of his minions will say: You cannot 
admit this fact about the nominee or that fact about the nominee or 
that fact about the nominee. That is not legitimate. That will not 
create a harmonious process in this body.
  We are on the edge of perhaps a nomination for the U.S. Supreme 
Court--again, one of the most important things we Senators do. Let us 
hope, with consultation, it will occur in a harmonious and bipartisan 
way.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.


                          we are all americans

  Mr. INOUYE. Mr. President, according to press reports last evening 
one of the principal advisors to the President, Mr. Karl Rove, 
criticized Democrats for failing to respond to the attacks on 
9/11. He is reported to have said that the Democratic Party did not 
understand the consequences of the Sept. 11, 2001, attacks. He is 
quoted saying, ``Liberals saw the savagery of the 9/11 attacks and 
wanted to prepare indictments and offer therapy and understanding for 
our attackers, Conservatives saw the savagery of 9/11 and the attacks 
and prepared for war.''
  Oftentimes in press reports, words are taken out of context or simply 
misquoted. I would hope that is the case here. I would hope that the 
views that were reported to have been expressed do not really represent 
the thoughts of Mr. Rove and certainly not the President of the United 
States.
  It is not often that I come to the floor to question what someone 
might have said. My view is that most of the time it is better to just 
remain silent and not to dignify the remarks which might have been made 
in the heat of partisan rhetoric, but this is a bit different.
  All of us who were in the Congress at that time recall 9/11 vividly. 
Like all Americans we saw the jet liners crash into the Twin Towers on 
our televisions and we could all see the smoke rising from the Pentagon 
just across the river.
  Perhaps Mr. Rove forgets what that day was like as we evacuated our 
offices and tried to maintain an aura of calm for the American public. 
Perhaps he forgets the spontaneous action of many of my colleagues who 
gathered on the steps of the Capitol to sing ``God Bless America.'' It 
wasn't Republicans on the steps and it wasn't conservatives, it was 
Americans. All colors, all religions, both parties came together in a 
patriotic symbol to demonstrate the resolve of America.
  Mr. Rove must also not remember that the Senate was in the hands of a 
Democratic majority in September 2001. It was the Democratic majority, 
acting with the Republican minority, which pushed through a resolution 
authorizing the use of force to go after Osama Bin Laden. There was no 
dispute between the parties on this issue. We all agreed that we had to 
defeat this enemy of America.
  I was Chairman of the Defense Appropriations Subcommittee at that 
time. I worked with my colleague Ted Stevens to put together an 
emergency appropriations bill to support the Defense Department's 
requirements to mount an attack on the terrorists. It was a bipartisan 
plan that provided the administration wide latitude to respond to this 
tragedy. There was no dissent. We were united across party lines.
  Perhaps Mr. Rove just forgets. I cannot forget visiting the Pentagon 
and examining the extent of the damage and the continuing rescue 
efforts with my colleague Senator Stevens. I vividly recall flying to 
New York City one week later to tour the site of the disaster. I will 
never forget the acrid smell that still arose through the smoke from 
the site as we flew over the area in a helicopter. I will forever 
recall seeing the widows of lost firefighters being escorted, and 
literally held up, by other New York emergency workers as they visited 
the site.
  It has not been often in our Nation's history that we have been 
tested. As a teenager I was present on December 7, 1941 at another time 
in our Nation's history when we suffered a savage attack.
  At the time the Nation responded in a bipartisan fashion to respond 
to that awful attack. Our response to the 9/11 attack was similar. All 
Americans were outraged by the attack and we proved our resolve to 
respond. To claim that one party had a monopoly on a patriotic response 
or a will to act is not only factually in error it is an insult to all 
Americans.
  I have been in politics for many years. I understand the use of 
partisan political rhetoric to play to an audience. I also know that in 
this era of instantaneous information, erroneous statements can become 
accepted as facts. This statement, if it truly reflects the views of 
the President's advisor, needs to be refuted before it can be thought 
of as being historically accurate.
  There has been a lot said in the press recently about demanding 
apologies for words that have been spoken. The White House needs to 
take a look at these statements and consider an appropriate response to 
repudiate these words.
  Patriotism is not owned by one political party. Our national resolve 
is not Democratic or Republican. It is American.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. I ask unanimous consent that I be excused from the 
Senate between the hours of 3 p.m. and 6 p.m. today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, I ask for recognition in my own right and 
I ask my comments be printed in an appropriate place in the Record and 
be given as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Kennedy are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER (Mr. Thomas). The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I see the distinguished Senator from 
Massachusetts. I know he wants to speak. I do want to explain the 
position I am in. I am trying very hard to get the amendment that is 
pending voted on. We have been waiting for a long time. Both Senator 
Bingaman and Senator Domenici have to leave. Our scheduled time of 
departure is 3:30 to get home to go to a BRAC Commission meeting where 
six commissioners will be there. I need all the time between now and 
3:30 to get it done. But if the Senator wants to speak, I will yield 
and see what happens.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. I want to accommodate and help my friend and colleague. 
What I would like to find out is, if I could be part of a unanimous 
consent request to simply be recognized after the business the Senator 
needs to do, I am happy to accommodate him.
  Mr. DOMENICI. The Senator wants to be recognized for a speech.
  Mr. KERRY. I want to be recognized to be able to speak immediately 
after the business the Senator has to conduct. If I can be so 
recognized, I would appreciate it very much.
  Mr. DOMENICI. So long as there is no misunderstanding, the business I 
am talking about would include a vote.
  Mr. KERRY. I understand. The Senator needs to have a vote now, and I 
will happily accommodate that.
  Mr. DOMENICI. I am appreciative. I thank the Senator so much.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 13995]]


  Mr. KERRY. I understand I am part of the unanimous consent request to 
be recognized after the vote.
  The PRESIDING OFFICER. That is correct.
  Mr. DOMENICI. Yes, indeed. As soon as this business is finished on 
the pending amendment, he will be recognized for whatever time he 
needs.
  In order to save time, I wonder if I could have 2 minutes of colloquy 
with the Senator from Louisiana, which is part of the proposal we are 
trying to finish. No amendments, just a colloquy with reference to the 
subject matter. I know the Senator from New Jersey is here. This 
colloquy has to do with some amendments he is pulling down that put our 
compromise together so we don't have any amendments that offend you. He 
wants to ask me about two amendments which he will withdraw.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Louisiana.


                       Amendment No. 802 Recalled

  Mr. VITTER. Mr. President, I rise to engage in a colloquy with the 
distinguished chairman about one amendment in particular, amendment No. 
802. It is based on an underlying bill I introduced, the Alternative 
Energy Enhancement Act, which would provide some regulatory structure 
and some royalty sharing for new alternative energy that is developed 
offshore, particularly on the Outer Continental Shelf. These are new 
forms of energy which are not in production now, things such as solar 
energy, thermal energy, wave energy, methane hydrates.
  First, I compliment the chairman for his work on the bill because the 
underlying bill includes most, if not all, of the regulatory provisions 
of my bill. What it does not include is royalty sharing. I would like 
to ask the chairman if he could continue to work with me as this energy 
bill goes to conference to create a fair system of royalty sharing for 
these new forms of energy, noting that it is absolutely no loss to the 
Federal Treasury because those revenues are not coming in yet.
  Mr. DOMENICI. The Senator has my assurance. Just as I have tried to 
do that in the past, I will continue to do it. It cannot be included in 
this bill for a lot of reasons, including those the Senators from 
offshore States understand. We will continue to work on it and see how 
we can move it along in due course.
  Mr. VITTER. I thank the chairman.
  Mr. DOMENICI. Will you pull your amendment after this colloquy?
  Mr. VITTER. Yes, this first amendment is No. 802. My second amendment 
we can deal with much later on. We don't to have deal with it 
immediately.
  Mr. DOMENICI. Will you withdraw it?
  Mr. VITTER. Mr. President, I withdraw amendment No. 802.
  The PRESIDING OFFICER. The amendment is withdrawn.
  Mr. CORNYN. Mr. President, I rise to add my support to the Domenici 
amendment No. 891. However, before I proceed, I want to extend my 
gratitude and congratulations to the chairman and ranking member of the 
Energy and Natural Resources Committee, Senator Domenici and Senator 
Bingaman, for their hard work in producing this Senate energy bill.
  Congress has tried several times to approve a comprehensive energy 
bill. Under their wise guidance and counsel, I believe that we will be 
successful this time. It is critical that we provide the country with 
the resources and tools to meet our growing energy needs and this bill 
will go a long way in accomplishing that goal.
  It is toward this same goal that I support this amendment that would 
share a portion of the revenues generated by off-shore oil and gas 
operations with coastal producing States. As we work to address our 
Nation's growing energy needs and to increase our domestic production 
of oil and gas, there will be enormous pressures placed on the 
communities along our coasts that serve as a platform to these 
operations. These pressures take a variety of forms and present a 
number of challenges. By giving coastal States an arrangement that 
States with in-land development already have by sharing some of these 
oil and gas revenues, we can mitigate some of these pressures. This 
includes assistance with conservation of critical coastal habitats and 
wetlands to providing coastal communities with help for infrastructure 
and public service needs. There has been a significant amount of 
discussion on the issue of coastal erosion in Louisiana, but I want the 
Senate to know that parts of Texas are experiencing some of the very 
same problems.
  I also appreciate the comments and reservations expressed by the 
distinguished Chairman of the Budget Committee. As a member of the 
Budget Committee, I recognize the significance and implications of 
waiving the Budget Act. However, in this case, the budget resolution 
does contain a specific reserve fund to accommodate spending in the 
energy bill. This amendment does not cause the bill to exceed the funds 
provided in the resolution for the bill and is fully within the amount 
of money Congress set aside for the energy bill.
  Texas is proud of its heritage as an energy producing State. Texas 
will continue to play a vital role in providing for the Nation's energy 
needs. This amendment is a reasonable proposal to address an issue of 
basic fairness. This will demonstrate to those communities along the 
coast that are so vital to the production of oil and gas for the Nation 
that they are valuable, important, and supported.


                           Amendment No. 891

  Mr. DOMENICI. Might I ask if we are ready to proceed now? Is the 
chairman of the Budget Committee prepared to make his closing remarks?
  The PRESIDING OFFICER. The amendment I mentioned has been recalled.
  Mr. DOMENICI. The appropriate word is ``recalled.''
  The PRESIDING OFFICER. Recalled.
  Mr. DOMENICI. I thank the Parliamentarian.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, what is the parliamentary situation? Is 
there unanimous consent agreement?
  Mr. DOMENICI. There is none. When you finish, we are going to vote.
  Mr. GREGG. So I have the last say here and then we will go to a vote.
  Mr. DOMENICI. Equal time, 1 minute, 2 minutes; whatever you take, I 
take. Then we vote.
  Mr. GREGG. Well, since it is my point of order, I would like to go 
last, and I will need about 5 minutes.
  Mr. DOMENICI. I will use 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. Mr. President, the distinguished chairman of the Budget 
Committee has the right to raise a point of order and he did. There is 
also a provision in the Budget Act that says if a point of order is 
made, the Senate may waive the point of order. So the issue before the 
Senate is whether we should waive the point of order. I want to make 
two points.
  First, the Energy and Natural Resources Committee, which has the bill 
on the floor, was allotted $2 billion. People think we were allotted a 
lot of money. We were allotted $2 billion to be spent by the committee 
on matters pertaining to this bill. We have a debate as to whether we 
can spend it on this amendment or whether we have to spend it on the 
bill in committee. The Senator from New Mexico maintains that we 
should, as a Senate, say the $2 billion was given to the committee. We 
are spending it on legitimate committee business, and we ought to be 
allowed to spend it on this amendment. We do not break the budget, we 
just use the money we were allotted. So it isn't a budgetary question. 
It is a budget issue whether we should waive based upon whether we 
should have used it in the committee or whether we could use that very 
same amount of money on the floor of the Senate. That is the issue.
  I yield back any time I have.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. I am now recognized for 5 minutes.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. GREGG. Mr. President, it is important to review the bidding here. 
The

[[Page 13996]]

situation is that a budget point of order has been raised. It is 
properly founded, and there is a motion to waive it. The logic behind 
the point of order is very simple. We are taking a discretionary 
program and moving it over to be an entitlement program to benefit five 
States, primarily Louisiana, which will get 54 percent of the money 
that is allocated. It is hard to understand why we would want to create 
a new entitlement program simply for Louisiana to address their 
conservation concerns. There are a lot of States that have conservation 
concerns. There is, in my opinion, virtually no nexus between the 
conservation issues which will be addressed theoretically by this 
amendment, should it pass, and the energy that is being sought off the 
coast of Louisiana. But even if there were, it would be inappropriate 
to pass such an amendment to create a new entitlement unless you 
included other States which had the same type of impact, because they 
were producing energy, on their environment. Furthermore, we have heard 
a great deal about how Louisiana has a right to this money. They have 
an entitlement to this money. Those were the words used by my friends 
across the aisle. As we look at the numbers relative to how funds are 
disbursed from the Federal Government, it appears that Louisiana is 
doing pretty well.
  For every dollar Louisiana sends to the U.S. Treasury, Louisiana gets 
$1.43 back. That is pretty darn good. They are getting a 43-cent bonus 
on every dollar they spend from what they send up here. Of the five 
States that will benefit from this, all of them get more money back 
than they send to Washington, and four get substantially more money. In 
fact, they are in the top 10 of States to get more money back.
  The equities of this Louisiana case are weak, to say the least. When 
you throw into the factor that they already have a dedicated fund--the 
only State in the country--for all the money raised as a result of 
people running lawnmowers in places such as Montana, Oregon, or 
Massachusetts, you end up, if you start your lawnmower or your 
snowblower, sending money to Louisiana to help them with environmental 
mitigation. They already have a fund, and they want more on top of 
that.
  The issue is simple. We passed a budget. The other side of the aisle 
didn't participate in the process. The Republican side of the aisle 
did. We passed a budget. Now the question is, Are we going to enforce 
that budget or are we going to spend money creating an entitlement 
program that is totally outside of the bounds of the budget, which is 
wrong, and which has no equities behind it, other than that group of 
States decided to raid the Federal Treasury?
  It seems to me we have to make some decisions as to whether we are 
going to enforce the budget process. I note that the administration 
supports this point of order and opposes this amendment. I hope my 
colleagues will join me in that position, also.
  I yield back the remainder of my time.
  The yeas and nays have been ordered, as I understand it.
  Mr. DOMENICI. Mr. President, before the yeas and nays are called, I 
think we have a unanimous consent agreement that everybody put their 
fingerprints on. I will read it, after which time we will vote.
  I ask unanimous consent that the list of amendments that I send to 
the desk be the only first-degree amendments remaining in order to the 
bill, including the managers' amendment, which are enumerated; provided 
further that this agreement does not waive the provisions of rule XXII; 
further, that upon disposition of the pending Domenici amendment, no 
further amendments relating to the issue of OCS moratorium and natural 
gas and oil exploration be in order to the bill, with the exception of 
amendments Nos. 802 and 804, to be offered by the distinguished Senator 
Vitter; and that upon his statements on them, the amendments will be 
withdrawn. I modify that to strike the amendment we have already 
recalled, and that was amendment No. 802. So I strike No. 802, which 
has already been recalled. The rest of the proposal I leave with the 
Senate.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The list of amendments is as follows: .

                    Final List of Energy Amendments

       Talent--#819; Baucus--#846; Rocky Mountain Fund (to be 
     withdrawn); Durbin--#902, CAFE, #903, Small Business Next 
     Generation Lighting; Lautenberg--#778, P-FUELS; Inouye/
     Akaka--#876, Deep Water Renewable Thermal Energy; Pryor--
     #881, Weatherization Assistance Credit; Dodd--#882, SOS: 
     Power Rates in New England; Schumer--#810, Uranium Exports; 
     Obama--#851; Sununu--#873; Bond/Levin--#925; Salazar--#892; 
     and a Manager's Package.

  Mr. DOMENICI. I understand that we will proceed to an up-or-down 
vote. Mr. President, I might say to the Senate, after this vote, I 
don't believe either Senator from New Mexico will be here for the 
remainder of the votes. Senator Larry Craig will assume my role as 
manager of the bill. I thank everybody for their cooperation to get the 
bill this far.
  I yield the floor.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
waive the Budget Act. The yeas and nays have been ordered. The clerk 
will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Minnesota (Mr. Coleman), and the Senator from Alaska (Mr. 
Stevens).
  Further, if present and voting, the Senator from Minnesota (Mr. 
Coleman), would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from North Dakota (Mr. 
Conrad), the Senator from Minnesota (Mr. Dayton), and the Senator from 
North Dakota (Mr. Dorgan), are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 69, nays 26, as follows:

                      [Rollcall Vote No. 153 Leg.]

                                YEAS--69

     Akaka
     Alexander
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Burr
     Cantwell
     Carper
     Clinton
     Cochran
     Cornyn
     Corzine
     Craig
     DeWine
     Dodd
     Dole
     Domenici
     Durbin
     Ensign
     Feinstein
     Frist
     Graham
     Grassley
     Hagel
     Hatch
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Lincoln
     Lott
     Martinez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Stabenow
     Talent
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--26

     Allard
     Bunning
     Burns
     Byrd
     Chafee
     Chambliss
     Coburn
     Collins
     Crapo
     DeMint
     Enzi
     Feingold
     Gregg
     Harkin
     Inhofe
     Isakson
     Kyl
     Leahy
     Lugar
     McCain
     McConnell
     Santorum
     Specter
     Sununu
     Thomas
     Wyden

                             NOT VOTING--5

     Coleman
     Conrad
     Dayton
     Dorgan
     Stevens
  The PRESIDING OFFICER. On this vote, the ayes are 69, the nays are 
26. Three-fifths of the Senators, duly chosen and sworn, having voted 
in the affirmative, the motion is rejected. The point of order fails.
  Under the previous order, the Senator from Massachusetts will be 
recognized, but first the question is on agreeing to amendment No. 891.
  Mr. CRAIG. 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. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to amendment No. 891.
  The amendment (No. 891) was agreed to.
  The PRESIDING OFFICER. The Senator from Pennsylvania.


                          Judicial Nominations

  Mr. SPECTER. Mr. President, I have sought recognition to comment 
about

[[Page 13997]]

certain statements made this morning that were somewhat critical of the 
President on the issue of consultation on a prospective Supreme Court 
nomination. One of the Senators from the other side of the aisle said 
that there would be a battle royal unless there was consultation that 
met the requirements of the other side of the aisle. Two other lengthy 
speeches were also presented along the same line.
  There has been a letter submitted by some 44 Senators that called for 
consultation by the President on the issue of a Supreme Court 
nomination. However, I think the first thing to acknowledge is that 
there is no vacancy. It would be premature to be critical. It would be 
premature to raise the issue in a confrontational sense until the 
matter is ripe for consideration.
  A number of us had occasion to have lunch with members of the Supreme 
Court last week, and the Chief Justice looked remarkably fit. We saw 
him when he administered the oath to the President some 5 months ago, 
when he was helped down to the podium, a little shaky and his voice a 
little faltering, but last Thursday he looked remarkably well. What he 
intends to do or what anyone else intends to do remains to be seen, but 
it is hardly the time, given the kind of confrontation in this body 
which we have seen on the judicial nomination process, to be looking to 
pick a fight. I am not saying anyone is picking a fight--just that we 
ought to avoid picking one. I respect the letter which was sent, dated 
June 23, to the President, and signed by some 44 Senators. It quotes 
the President at the press conference on May 31, 2005, where he said: 
``I look forward to talking to Members of the Senate about the Supreme 
Court process to get their opinions as well and will do so. We will 
consult with the Senate.''
  That is an extract from the letter sent to President Bush dated 
today. Well, May 31 was only 24 days ago and when the President has 
made a commitment to consult with the Senate, that is pretty firm and 
that is pretty emphatic.
  Given his other responsibilities, and the fact that there is no 
vacancy on the Supreme Court, it is presumptuous to say that there is 
some failure on his part. I have asked the President to consult with 
Democratic Members and to listen. The advice and consent clause of the 
Constitution is well known. He has asked me, in my capacity as Chairman 
of the Judiciary Committee, about the issue, and I recommended to him 
consultation. He has been very receptive to the idea. Although he has 
made no commitment to me, he did make a very flat commitment in his 
speech, as cited in this letter.
  I might comment that during the confirmation proceedings of Attorney 
General Gonzales, I think it is fair to say Senator Schumer was 
effusive in his praise of Mr. Gonzales as White House counsel regarding 
consultation with New York Senators.
  May the record show that Senator Schumer is nodding in the 
affirmative. As former prosecutors we sometimes say such things.
  It is my hope that we will proceed to the Supreme Court nomination--
if and when it occurs--in a spirit of comity. I do not have to speak 
about my record on the subject. When we were fighting during the 
Clinton administration about confirming Paez and Berzon, I broke party 
ranks and supported them. It is my view that there is fault on both 
sides regarding stalling nominations. It began during the last two 
years of President Reagan, all four years of Bush No. 1, and reached an 
intense line, frankly, during the administration of President Clinton, 
when some 60 nominations were held up in committee. We know what 
happened with the systematic filibuster and the interim appointment, 
and we are past that.
  We have a very heavy responsibility, if a vacancy occurs on the 
Supreme Court, to move ahead in a spirit of comity to try to get 
somebody who can be confirmed; somebody who is acceptable to the 
Senate. If we are to fail in that and have an eight-person Court, it 
would be dysfunctional. As we all know, there are many 5-to-4 
decisions. The country simply could not function with 4-to-4 court.
  It would be my hope that we would lower the rhetoric and not put 
anybody in the position of being compelled to respond to a challenge. 
Let us not challenge each other. Let us not challenge the President. 
Let us move toward consultation.
  This is something I have discussed with the distinguished Democratic 
Leader, Senator Reid. Also, Senator Leahy and I have talked about the 
subject at length. I think we have established--as Senator Leahy 
called--it an atmosphere of comity in the Judiciary Committee. Such 
that we will approach this very important duty with tranquility, 
comity, and good will to do the work of the American people and not 
presume that the President is going to pick someone characterized as 
out of the mainstream or someone objectionable.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The minority leader.
  Mr. REID. First, I underscore what the distinguished chairman of the 
Judiciary Committee said. We all hope that Chief Justice Rehnquist's 
health permits him to continue serving on the Court. I became an 
admirer of his during the impeachment proceedings. I got to know him. 
He has a great sense of humor, and we all know he has a tremendous 
intellect. I wish him the very best health. So I hope we do not have to 
consider a vacancy in the Supreme Court.
  I would say to my friend, the distinguished chairman of the Judiciary 
Committee, we on this side of the aisle, as most all of the Senate, 
have the greatest respect for Arlen Specter. We are very happy with the 
relationship he has with the ranking member, Senator Leahy. They have a 
relationship that is going to allow us to get work done in the 
Judiciary Committee. They have respect and admiration for each other.
  I always joke with Senator Specter that I am one of the people who 
have read his book--and I have read his book. But my feelings about the 
Senator from Pennsylvania have only increased in recent years, 
especially during the last few months when he has responded so well to 
the illness that he has. We are all mindful of the physical strength 
this man has. So anything we do in the Judiciary Committee is never 
disrespectful of the chairman of the Judiciary Committee.
  I would say, I attended one of the press events, and I think there 
was only one, dealing with the Supreme Court, that we talked about 
today. It was not a battle royal. It was a very constructive statement 
that we all made.
  We are hopeful and confident the President will follow through. Like 
Senator Hatch's relationship with President Clinton, it was a good way 
to do things. As a result of the work done with President Clinton and 
then Senator Hatch, we were able to get two outstanding Supreme Court 
Justices--Ginsburg and Breyer. No one can complain about the intellect 
or the hard work and what they have done for our country and for the 
Court.
  We believe there should be advice and consent on all judicial 
nominations but at least on the Supreme Court. As the Senator from 
Pennsylvania said, the President a month ago indicated he was going to 
do that, and we, today, wanted to remind the President, in the letter 
we sent to him, that he should follow what he said before.
  We look forward to a hearing. I have spoken to our ranking member, 
Senator Leahy, and he is in the process of working with the Senator 
from Pennsylvania to come up with a protocol, how we proceed on Supreme 
Court nominations.
  This is a very unusual time in the history of this country. We have 
gone more than 11 years without an opening in the Supreme Court. As a 
result of that, staff is not as familiar with how things have happened 
in the past, and most Senators were not even here when the Supreme 
Court vacancies were filled last time--at least many of the Senators.
  So I say to my friend from Pennsylvania, we look forward to working 
with you and the administration if, in fact, there is a vacancy on the 
Supreme Court. And even if there is not a vacancy on the Supreme Court, 
I believe

[[Page 13998]]

it is important that you and Senator Leahy work toward a protocol so 
when one does come up, it is not catchup time. I say if there is no 
Supreme Court vacancy, we look forward to working with you on the many 
things over which the Judiciary Committee has jurisdiction. We are 
confident your experience and intellect and love of the law will allow 
this body to be a better place.
  Mr. SPECTER. I thank the Senator.
  The PRESIDING OFFICER. The Senator from Massachusetts.


                               Karl Rove

  Mr. KERRY. Mr. President, last night in New York City, Karl Rove made 
some comments to the Conservative Party of New York that need to be 
discussed on this floor and for which an apology is needed.
  None of us here will ever forget the hours after September 11, the 
frantic calls to our families after we evacuated the Capitol, the 
evacuations themselves, the images on television, and then the 
remarkable response of the American people as we came together as one 
to answer the attack on our homeland.
  I remember being in a leadership meeting just off the Chamber here at 
the moment that the plane hit the Pentagon and we saw the plume of 
smoke. Then the word came from the White House that they were 
evacuating and that we should evacuate. I will never forget the anger I 
felt as we walked out of here, numbers of people running across the 
street, and I turned to somebody else walking with us and I said, 
``We're at war.'' That was the reaction of the American people. That 
was the reaction of everybody in the Senate and Congress.
  We drew strength when our firefighters ran upstairs in New York City 
and risked their lives so that other people could live. When rescuers 
rushed into smoke and fire at the Pentagon, we took heart at their 
courage. When the men and women of flight 93 sacrificed themselves to 
save our Nation's Capitol, when flags were hanging from front porches 
all across America and strangers became friends, it brought out the 
best of all of us in America. That spirit of our country should never 
be reduced to a cheap, divisive political applause line from anyone who 
speaks for the President of the United States.
  I am proud, as my colleagues on this side are, that after September 
11, all of the people of this country rallied to President Bush's call 
for unity to meet the danger. There were no Democrats, there were no 
Republicans, there were only Americans. That is why it is really hard 
to believe that last night in New York, a senior adviser, the most 
senior adviser to the President of the United States, is twisting, 
purposely twisting those days of unity in order to divide us for 
political gain.
  Rather than focusing attention on Osama bin Laden and finding him or 
rather than focusing attention on just smashing al-Qaida and uniting 
our effort, as we have been, he is, instead, challenging the patriotism 
of every American who is every bit as committed to fighting terror as 
is he.
  For Karl Rove to equate Democratic policy on terror to indictments or 
to therapy or to suggest that the Democratic response on 9/11 was weak 
is disgraceful.
  Just days after 9/11, the Senate voted 98 to nothing, and the House 
voted 420 to 1, to authorize President Bush to use all necessary and 
appropriate force against terror. And after the bipartisan vote, 
President Bush said:

       I'm gratified that the Congress has united so powerfully by 
     taking this action. It sends a clear message. Our people are 
     together and we will prevail.

  That is not the message that was sent by Karl Rove in New York City 
last night. Last night, he said: ``No more needs to be said about their 
motives.'' The motives of liberals.
  I think a lot more needs to be said about Karl Rove's motives because 
they are not the people's motives. They are not the motives that were 
expressed in that spirit that brought us together. They are not the 
motives of a Nation that found unity in that critical moment--Democrat 
and Republican alike, all of us as Americans.
  If the President really believes his own words, if those words have 
meaning, he should at the very least expect a public apology from Karl 
Rove. And frankly, he ought to fire him. If the President of the United 
States knows the meaning of those words, then he ought to listen to the 
plea of Kristen Brightweiser, who lost her husband when the Twin Towers 
came crashing down. She said:

       If you are going to use 9/11, use it to make this Nation 
     safer than it was on 9/11.

  Karl Rove doesn't owe me an apology and he doesn't owe Democrats an 
apology. He owes the country an apology. He owes Kristen Brightweiser 
and a lot of people like her, those families, an apology. He owes an 
apology to every one of those families who paid the ultimate price on 
9/11 and expect their Government to be doing all possible to keep the 
unity of their country and to fight an effective war on terror.
  The fact is, millions of Americans across our country have serious 
questions about that, and they have a right to have a legitimate debate 
in our Nation without being called names or somehow being divided in a 
way that does a disservice to the effort to be safer and to bring our 
people together. The fact is that mothers and fathers of service people 
spend sleepless nights now, worrying about sons and daughters in 
humvees in Iraq that still are not adequately armored. They are asking 
Washington for honesty, for results, and for leadership--not for 
political division. Before Karl Rove delivers another political 
assault, he ought to stop and think about those families and the unity 
of 9/11.
  The 9/11 Commission has given us a path to follow to try to make our 
Nation safer. He ought to be working overtime to implement the 
provisions. We should not be letting 95 percent of our container ships 
come into our country uninspected. We should not be leaving nuclear and 
chemical plants without enough protection. Until the work is done of 
truly responding in the way that Kristen Brightweiser said we should, 
making America safer, using 9/11 for that purpose only, we should not 
see people trying to question the patriotism of Americans who are 
working in good faith to accomplish those goals.
  Before wrapping themselves in the memory of 9/11 and shutting their 
eyes and ears to the truth, they ought to remember what America is 
really about; that leadership is not insult or intimidation, it is the 
strength of making America safe. And they ought to remember what their 
responsibility is to every single American, and they ought to just 
focus on the work of doing that. That is what Americans expect of us, 
and that is what is going to make this country safer in the long run.
  I yield the floor.
  Mr. JOHNSON. May I direct a question to my colleague from 
Massachusetts?
  Mr. KERRY. I am happy to yield for a question.
  Mr. JOHNSON. Is it your view that Mr. Rove understands that the men 
and women in uniform in Afghanistan and Iraq are Republicans and 
Democrats in political registration and political philosophy, but they 
are Americans working together to protect us, to protect our Nation?
  As my friend from Massachusetts knows, my oldest son, a staff 
sergeant in the U.S. Army, served in combat--he is a Democrat--in 
Afghanistan and Iraq. There is no political division among those young 
men and women fighting and endangering their lives each and every day 
in those countries. They are responding to the call of their country, 
to endanger their lives. They fought heroically, Republicans and 
Democrats alike. For anyone to suggest that there are differences of 
motive about protecting America, about responding to 9/11, is beyond 
the pale. Do you believe Mr. Rove understands that or do you believe 
that he honestly thinks that the defense of this country is a partisan 
issue?
  Mr. KERRY. Mr. President, let me say to the Senator, first of all, 
every one of us is proud of him and proud of his family and proud of 
the service of his son. I remember talking to the Senator from South 
Dakota about how he felt while his son was in harm's way. If ever there 
were a sort of clear statement about the insult of Karl Rove's 
comments, it is the question asked by

[[Page 13999]]

the Senator. I don't know if Karl Rove understands that. His comments 
certainly do not indicate it. But I will tell you this: It raises the 
question of whether he is, as many have suggested, prepared to say 
anything for political purposes.
  I think he owes your son. I think he owes every Democrat. I have been 
to Iraq. I met countless soldiers who came up to me and said, ``I voted 
for you'' or people who said ``I support you'' or people who said they 
are just Democrats. This comment by Karl Rove insults every single one 
of them who responded to the call of our country, as did every Senator 
on this side of the aisle in voting to go into Afghanistan and in 
supporting the troops across the board. If we are going to get things 
done and find the common ground here, this is not the way for the most 
senior adviser to the President to be talking about our country.
  I remember the storm created in the last week over the comments of a 
Senator. Here is a senior adviser to the President of the United States 
who has insulted every Democrat in this country, every patriot in this 
country who is trying to do their best to protect our troops and 
provide good policy to our Nation. To suggest there was a weak 
response, when we voted 98 to 0, is an insult to that vote and to the 
unity of the moment and to the words of his own President, and I think 
he owes an apology to your son and to all of those soldiers.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, we are on the Energy bill at this moment 
and have put forth a unanimous consent that moves us forward. We have a 
finite list of amendments I will work with Senator Johnson on in the 
next few minutes. We are about to do a unanimous consent. Those who 
have amendments should come to the Senate so we can work out the time 
agreement as we work on the managers' package.
  The majority leader is committed to finishing this bill tonight. If 
we line ourselves up and move in reasonable order with those amendments 
that will need votes, we might get out of here at a reasonable time. 
Other than that we could be here quite late.
  I hope Senators who do have amendments remaining, and we have not 
worked them out, can work with us as we finalize the unanimous consent.
  I am happy to yield.
  Mr. DURBIN. I have one of those amendments. I am prepared to either 
discuss it or to wait until there is some agreement as to the order, 
sequence, and time of debate.
  What would the Senator prefer?
  Mr. CRAIG. I ask the Senator to hold for just a few moments until we 
work out a unanimous consent of order. We are about there. We have two 
or three Senators ready to go. We know of your concern and interest and 
the amendment to be offered. If the Senator withholds for a few 
moments, we can do that.
  Mr. DURBIN. I thank the Senator.
  Mr. CRAIG. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, with the agreement of the distinguished 
manager, I ask for 10 minutes to speak on the subject of asbestos as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Specter are printed in today's Record under 
``Morning Business.'')
  Mr. CRAIG. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, we are now ready to proceed to continue, 
and hopefully within the next few hours finish this very important 
bill.
  I ask unanimous consent Senator Baucus and Senator Schumer be 
recognized to offer amendment No. 810 and that there be 30 minutes 
equally divided in the usual form; provided further that following that 
time the amendment be temporarily set aside for Senator Sununu to offer 
amendment No. 873, and that there be 30 minutes for debate equally 
divided in the usual form. I further ask consent that following the use 
or yielding back of time, the Senate proceed to vote in relation to the 
amendments in the order offered with no second-degree amendments in 
order to the amendments and with 2 minutes equally divided for closing 
remarks prior to each vote.
  Mr. DURBIN. Reserving the right to object, and I will not object, but 
I want to establish a spot in the queue. I have been waiting patiently 
for 2 days. I have said on the CAFE amendment I will be more than happy 
to allow Senators Bond and Levin to offer their alternative amendment 
at the same time, debate it at the same time, with an agreement on time 
limitation on debate, but my fear is we are going to drift into the 
night hours and drift away. I don't want that to happen.
  I ask if the Senator would be kind enough to tell me what his 
intention is after we have completed these two amendments.
  Mr. CRAIG. I appreciate the Senator's concern. He has every right to 
ask. The Senator is in the queue and on the list. We have worked out 
this tranche of amendments and we will now work to see when we can fit 
you in. I would hope sooner rather than later. So my advice would be to 
stick around.
  Mr. DURBIN. Being on the Senator's list is as safe as being in a 
mother's arms.
  Mr. SCHUMER. Reserving the right to object, as I understand it, the 
procedure precludes second degrees?
  Mr. CRAIG. It does.
  Mr. SCHUMER. The amendment I am going to offer--there is a friendly 
second degree that Senator Kyl and I have agreed to.
  As I understand it, Senator Domenici and his staff know of the Kyl 
amendment and approve of it. Senator Kyl is on his way. If my colleague 
will yield, it is filed.
  Mr. CRAIG. The Senator makes a good point.
  I will withdraw the UC so we can get this solved. I would advise the 
Senator to start debating his amendment now, and let us see if we 
cannot resolve that. If you have opening remarks on your amendment, I 
believe this can be solved. I talked to Senator Kyl on the issue. I 
will talk with staff, and we will move forward.
  Is the Senator ready to proceed?
  Mr. SCHUMER. I am. I do not have that much to say, and we limited the 
time. I do not want to finish before Senator Kyl gets here. His staff 
has told him to get here. I guess I can talk about a lot of different 
subjects until he gets here.
  Mr. CRAIG. I withdraw the UC for that purpose.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. First, Mr. President, I ask unanimous consent that 
following my remarks Senator Kyl be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 810

  Mr. SCHUMER. Mr. President, I rise today to offer an amendment with 
my colleague from Arizona to strike language from this Energy bill that 
would undermine years of progress toward combating nuclear terrorism in 
an effort to solve a problem that does not exist.
  I want to repeat myself for the benefit of my colleagues. By 
weakening existing law, section 621 of this Energy bill would 
drastically undercut efforts to encourage reductions in the circulation 
of weapons-grade uranium and to defend against the specter of nuclear 
terrorism.
  I have often said that the prospect of a nuclear attack on America's 
soil is

[[Page 14000]]

our nightmare. That is why I, like many of my colleagues, have been so 
aggressive in pushing the administration to install nuclear detection 
devices in our ports, and to take other measures to make sure that 
nuclear materials cannot be obtained by terrorists and used against us. 
The human, environmental, and economic impact of such an attack on the 
United States--any part of our dear country--would be almost 
unfathomable.
  So I urge my colleagues to contemplate that when they are examining 
what exactly the provision in the Energy bill would do. For years, we 
have prohibited what this provision of the Energy bill would allow.
  The supporters of the language claim that it is necessary to avert an 
impending crisis in the supply of medical isotopes used in 
radiopharmaceuticals. A look at the current isotope industry raises 
some serious questions as to whether that is what is really going on 
here. Isotope producers currently make isotopes for use in 
radiopharmaceuticals and other products by taking a mass of fissionable 
material, known as the fuel, and using it to shoot neutrons through 
another mass of fissionable material; that is, the target. Reactors 
have traditionally used highly enriched uranium, HEU, which can be used 
to make a nuclear bomb, for fuel and targets.
  The Law that we enacted over 10 years ago, in the Energy Policy Act 
of 1992, has encouraged reactors to shift to low-enriched uranium. And 
the difference is very simple. It does the same medically, but it 
cannot be used to create a nuclear weapon. What we do in present law is 
require that any foreign reactor receiving exports of United States 
HEU, highly enriched uranium, work with our Government in actively 
transitioning to LEU, low-enriched uranium, the kind that cannot be 
used in bombs. It makes common sense, complete common sense. Why the 
heck would we want to encourage companies to have HEU?
  Now, the language in the Energy bill undoes that. After 12 years of 
it working, after 12 years of everyone getting the medical isotopes 
they need, and after 12 years of moving countries away from HEU--highly 
enriched uranium, which bombs can be made from--to LEU, the language in 
the Energy bill needlessly and dangerously undercuts this requirement. 
What does it do? It exempts research reactors that produce medical 
isotopes from current U.S. law.
  As our Nation continues to fight the war on terror, now is clearly 
the wrong time to relax export restrictions on bomb-grade uranium and 
potentially increase the demand for that material.
  By increasing the amount of HEU in circulation around the world, the 
language in the Energy bill would create an unacceptable risk by 
heightening the possibility that weapons-grade uranium could be lost or 
stolen and fall into the hands, God forbid, of terrorists with known 
nuclear ambitions.
  What makes this language even more astonishing is that it creates so 
much risk for no reward by claiming to fix a problem that does not 
exist. Supporters of the language argue we are in danger of running out 
of medical isotopes if the current law is not changed. All of the 
isotopes that can be produced with HEU can also be produced with LEU, 
which has no danger to us. And under current law, no producer has ever 
been denied a shipment of the material necessary to produce isotopes. 
Let me repeat that. No producer has ever been denied a shipment of the 
material necessary to produce isotopes.
  In fact, the Department of Energy's Argonne National Laboratory has 
declared that the proposition that our supply of medical isotopes is in 
danger because LEU targets have not been developed is incorrect, and 
the U.S.-developed LEU target ``has been successfully irradiated, 
dissembled, and processed in Indonesia, Argentina, and Australia,'' a 
move from HEU to LEU because of our law.
  Mr. President, I would like to be clear about one thing. I do not 
intend to trivialize in any way the plight of those suffering from 
illnesses overseas that require isotopes to treat. My colleagues and I 
who support this amendment take this point seriously and are 
unequivocally supportive of making sure that patients can get the 
medicine they need. In fact, if current law hindered the ability to get 
isotopes and treat the sick, maybe this debate would be different. But 
that is not the case.
  Under existing law, medical isotope production capacity has grown to 
250 percent of demand. Let me repeat that. Under present law, which the 
Energy bill seeks to change, medical isotope production capacity has 
grown to 250 percent of demand.
  In addition, I repeat, no medical isotope producer has ever been 
denied a shipment of HEU as a result of the successful incentivization 
of efforts to convert to LEU.
  Existing law guarantees continued use of HEU to produce medical 
isotopes until LEU substitutes are available, so long as the foreign 
producers cooperate on efforts to eventually convert to LEU.
  For example, exports to Nordion, a Canadian producer, have never been 
affected by current law, and the company which is at issue here has 
several years' worth of material stockpiled at soon-to-be-operating 
reactors. Quite frankly, maybe we have given them too much access and 
made them complacent. Despite the efforts of the United States to 
operate in good faith and keep supplying Nordion, this company has 
decided to resist and slow-walk the conversion process to LEU.
  Why? Because it may inconvenience them or cost them a few more 
dollars in the short run. So for one company, not an American company, 
we are going to increase the chances of nuclear terrorism by whatever 
amount with no benefit other than to that company because everyone is 
getting the isotopes. Maybe they can save a few dollars. If they think 
that the Senate is willing to risk a catastrophe for their convenience, 
they have another thing coming.
  Existing law does not jeopardize an adequate supply of medical 
isotopes. Instead, it has been successful in enticing foreign operators 
to begin converting to LEU, thereby reducing the risk of proliferation.
  The record shows that the program works. As a result of existing law, 
reactors in several nations have successfully instituted measures to 
convert to LEU. The Petten reactor in the Netherlands, where the major 
isotope maker Mallinckrodt produces most of its isotopes, will convert 
its fuel to LEU by 2006 because of incentives in the current law.
  The Department of Energy has recognized the importance of this goal 
and the effectiveness of the program. Secretary Bodman has said we 
should set the goal of ending commercial use of weapons-grade uranium, 
and that the LEU allows great progress toward that end. The Department 
of Energy's Reduced Enrichment for Research and Test Reactors Program 
Web site states:

       This law has been very helpful in persuading a number of 
     research reactors to convert to LEU.

  So what we have here is an effort to undermine an existing program 
that has not had a negative impact on health care and has played a role 
in our fight against nuclear terrorism.
  If the provision in the Energy bill does become law, make no mistake, 
it will create a proliferation risk. By increasing the amount of 
weapons-grade uranium in circulation, this bill would increase the 
likelihood that lost or stolen material would find its way into the 
wrong hands.
  I know the list in this bill looks innocent enough with countries 
such as Canada, Germany, Belgium, the Netherlands, and France. However, 
four of these countries are members of the EU and subject to the U.S.-
EURATOM Agreement on Nuclear Cooperation.
  Under the agreement, these nations will not be required to inform the 
United States of retransfers of U.S.-supplied materials from one 
EURATOM country to another, report on alterations to U.S.-supplied 
materials, or inform the United States of retransfers of these 
materials from one facility in one country to another facility in that 
same country.
  As a result, HEU could end up being directly sent to any of the 25 
countries in the European Union, including those

[[Page 14001]]

in which the Department of Energy is spending a considerable amount of 
money to remove existing HEU stockpiles.
  So to my colleagues I say, if you support the language in the Energy 
bill, do not do it because of assurances that the countries the 
material is heading to are safe. In reality--in reality--we do not know 
this and cannot control where the material may end up. That is a 
terrifying thought.
  In conclusion, the reality of this situation is that terrorists do 
not care if the weapons-grade uranium they can try to get their hands 
on was meant for a military or medical purpose. All we know they care 
about is how they can use it to attack our Nation and harm our way of 
life.
  If we learned anything from the attacks on September 11, it should be 
that we can never again afford to underestimate the ingenuity or 
determination of those who would cause us harm. Likewise, we must take 
every step to ensure that they can never lay their hands on the 
materials they would need to launch an attack of mass destruction 
against the United States.
  Mr. President, a needless risk is a reckless risk, and that is 
exactly the type of risk the language in the Energy bill lays before 
us. I urge my colleagues to support the existing law that has 
effectively combated nuclear proliferation without degrading the 
quality of health care in the United States by voting for my amendment, 
along with the friendly second-degree amendment that my colleague from 
Arizona, I believe, will offer.
  Mr. President, under the unanimous consent agreement, I now yield to 
my colleague from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I thank you. I think what we are going to be 
able to agree to is that after the proponents and opponents of the 
Schumer amendment have concluded their debate, we will have an up-or-
down vote on the Schumer amendment. In either event, I believe we could 
at that point get a unanimous consent agreement that the study and 
report called for in the Kyl second-degree amendment could be voted on 
by voice vote.
  But until Senator Bond is available to confirm that, we do not need 
to propound that particular request. So we should simply go ahead with 
the debate on the underlying Schumer amendment. Given the fact that 
Senator Schumer just spoke in favor of that, let me simply take about 2 
minutes to second what Senator Schumer did and then turn time over to 
an opponent of the amendment, perhaps the Senator from North Carolina.
  Mr. CRAIG. Mr. President, will the Senator from Arizona yield?
  Mr. KYL. Yes.
  Mr. CRAIG. Mr. President, as we tried to craft the UC, we gave this 
issue of the Schumer amendment 30 minutes. So I would hope we could 
keep in the spirit of 15 and 15 so we can keep ourselves on track this 
evening. So the opponents would have 15 minutes, as we finish 
fashioning this UC.
  Mr. KYL. If I could, Mr. President, just inquire of the manager of 
the bill, we don't have a set 30 minutes yet, but that is the desire; 
is that correct?
  Mr. CRAIG. We are hoping that adds in.
  Mr. KYL. Mr. President, let me take a moment to say that I totally 
agree with Senator Schumer that we need to restore existing law in this 
area. The reason is because highly enriched uranium is used to build 
bombs. We want to be very careful how we export that. In the case of 
the production of medical isotopes, we do need to export it because 
that is all that is available right now to produce medical isotopes in 
relatively large quantities. Low enriched uranium for a target for 
these isotopes is a process that scientifically works. We are trying to 
work out whether or not it can happen on a large-scale production 
basis. Current law says we will continue to export highly enriched 
uranium as long as the recipient of that highly enriched uranium is 
working with the United States cooperatively to try to get to the 
production of these isotopes with low enriched uranium. That is a goal 
that I think everybody agrees with. We need to have that incentive so 
that when we export this, we are exporting it to somebody that is 
cooperating with us.
  What the Energy bill did was to eliminate that requirement of 
cooperation. It is stricken from the language. That is wrong. If we 
want an incentive for people to continue to work with us, we have to 
retain the existing law's language. That is why the Schumer amendment 
is critical, to ensure that we can both continue to produce these 
medical isotopes, but also to do so in a way that does not proliferate 
highly enriched uranium around the world.
  The manufacturer of this product in Canada has enough of this 
material right now to build a couple of bombs. In Canada that is 
probably OK, as long as they continue to cooperate with us. But you 
eliminate that requirement of cooperation, all of us will have a real 
problem on our hands. Were something bad to happen, each one of us 
would be responsible for that. That is the reason the Schumer amendment 
is so important.
  My second-degree amendment, if it is agreed to, simply requires a 
study and report to us about the status of the development of this 
technology, whether it is cost beneficial and whether it is 
scientifically achievable.
  With that, let me yield the floor to an opponent of the amendment.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from North Carolina.
  Mr. BURR. Mr. President, I rise in opposition to the Schumer 
amendment. Let me compliment Senator Kyl for his willingness, over the 
last 24 hours, to try to bring assurances, through some consensus 
legislation, of where we both agree we need to get to, that we had 
language that would do it. We do have a slight disagreement because I 
believe the language that is in the bill does meet the move towards 
low-enriched uranium. I believe that the health of the American public 
should be at the forefront of our consideration. Because if, in fact, 
we adopt a policy that eliminates the availability of 
radiopharmaceuticals, then we have greatly affected the diagnostic 
capabilities that exist, that technology has created over the last 
decade and, in many cases, the treatments for cancer. An interruption 
that happened from even the Canadian source before meant that doctors 
were rationed on what they could receive in radiopharmaceuticals. We 
know how fragile this is because we are reliant on reactors outside 
this country for those radiopharmaceuticals.
  Senator Kyl and, hopefully, Senator Schumer agree that when this is 
all decided--and I hope it is decided with the language that the entire 
Energy Committee worked on and what is in the House language and has 
been there--when it is all said and done, I hope we find a way to 
either get the Department of Energy or somebody to begin to produce 
low-enriched uranium in this country. It is an awful policy that we 
still turn outside the country for those reactors to produce the 
medical isotopes, but there is a rich history of that. The Department 
of Energy has looked at this since 1992. They looked at Los Alamos and 
using the reactors there to begin to make low-enriched uranium. Then 
they looked at Sandia. Then they talked about privatizing Sandia. The 
net result was, in the year 2000, the Department of Energy came to the 
conclusion that they were going to disband this effort, that they 
couldn't figure out how to do it. The fact is, there is not a lot of 
profit generated from it. But this is clearly a treatment that will 
grow as researchers find new tools for it.
  I know there is an attempt to try to address a time limit here, but I 
am not sure that we can put a time limit on all the patients in America 
that are relying on the decision we are going to make tonight. We would 
spend a lot more time on individual health bills.
  Nuclear medicine procedures using medical isotopes are heart disease, 
cancer, including breast, lung, prostate, thyroid and non-Hodgkin's 
lymphoma, and brain, Grave's disease, Parkinson's, Alzheimer's, 
epilepsy, renal failure, bone infections. Our ability to take 
radioisotopes and send them to an organ, where now we can see that 
organ without an incision, without

[[Page 14002]]

opening a person up, a noninvasive way to determine exactly what is 
happening in the human body and, on the oncology side, a way to treat 
cancers, when we can take the chemotherapy product and send it right to 
where we want those cells to be killed.
  I would like to submit, for the record, a letter from the Nuclear 
Regulatory Commission because they have commented on this language. I 
ask unanimous consent to print it in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           U.S. Nuclear Regulatory


                                                   Commission,

                                     Washington, DC, June 3, 2004.
     Hon. Christopher S. Bond,
     Chairman, Subcommittee on Transportation and Infrastructure, 
         Committee on Environment and Public Works, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: On behalf of the U.S. Nuclear Regulatory 
     Commission (NRC), I am responding to the letter of April 20, 
     2004, from you and Senator Inhofe, requesting information on 
     the security measures employed by the NRC regarding the 
     licensing and transport of high-enriched uranium (HEU).
       As you noted in your letter, the NRC has twice provided 
     comments on the provision related to export shipments of HEU 
     used in medical isotope production (a letter signed by 
     Chairman Meserve to Representative Tauzin, dated March 31, 
     2003, and a letter signed by me to the members of the 
     Conference Committee considering the differing versions of 
     H.R. 6, the ``Energy Policy Act of 2003,'' passed by the 
     Senate and the House of Representatives, dated September 5, 
     2003). The NRC continues to have no objections to the 
     provision pertaining to the export of HEU targets for the 
     production of medical isotopes by specified countries. The 
     NRC continues to believe that the enactment of this measure 
     could be of benefit in ensuring the timely supply of medical 
     isotopes in the United States.
       Additional information responding to your specific 
     questions is provided in the Enclosure. If you have any 
     further questions or comments, please feel free to contact 
     me.
           Sincerely,
                                                     Nils J. Diaz.

  Mr. BURR. They have been consulted. They are the agency that 
determines whether a license is granted. It was suggested that this is 
some willy-nilly program, that anybody who wants to send highly 
enriched uranium out to a reactor somewhere just simply does that, and 
hopefully we get back radiopharmaceuticals. That is not the case. This 
is a very stringent licensing program, where they apply to the Nuclear 
Regulatory Commission. They are instructed by the Atomic Energy Act as 
to the process they go through, currently in the law, that was written 
by Senator Schumer in 1992. Over the years, the interpretation of that 
provision has changed. Over the years, that has caused indecision at 
the Nuclear Regulatory Commission.
  It was that indecision, that vagueness in the current law that 
Senator Schumer is attempting to strike and go back to provision in law 
that the Nuclear Regulatory Commission has said: We don't feel that we 
can successfully make this evaluation without you clarifying the 
parameters you want us to be in.
  So in short, we asked the Nuclear Regulatory Commission to write us 
on the language and asked them if it cleared it up, asked them if, in 
fact, this gave them the proper direction from the Senate, from the 
Congress. This is the letter back from the Nuclear Regulatory 
Commission that says:

       The NRC continues to have no objections to the provisions 
     pertaining to the export of HEU targets for the production of 
     medical isotopes by specified countries.

  I know there are others anxious to speak. I have so much more to say. 
I see the chairman of the bill has stood and may have a unanimous 
consent request. I am not sure. But I would like to see if my colleague 
from Arkansas is prepared to speak in opposition to the Schumer 
amendment.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mrs. LINCOLN. Mr. President, I would like to take a few moments. I 
rise to join the Senator from North Carolina in speaking in opposition 
to the Schumer amendment. I certainly am concerned that the amendment 
before us would remove a carefully crafted provision from the bill that 
seeks to ensure that Americans will maintain a reliable supply of 
medical isotopes or the radiopharmaceuticals used to diagnose and treat 
so many diseases. We are on the brink, all of us here, working hard to 
increase funding for the discovery of eliminating these diseases. In 
the meantime, being able to provide the hope to those who suffer from 
these diseases is so critically important.
  These diseases include everything from heart disease to 
hyperthyroidism, Parkinson's disease, Alzheimer's, epilepsy, kidney 
failure, bone infection, brain cancer, lung cancer, prostate cancer, 
thyroid cancer, non-Hodgkin's lymphoma, and brain cancer--so many of 
these that plague the lives of Americans who can get some relief from 
the medical treatment that is provided by these medical isotopes.
  At least 14 million Americans are diagnosed and treated with medical 
isotopes each year. While I believe America should continue in the vein 
of developing policies consistent with our nonproliferation goals, we 
must make sure that these and future patients do not lose access to the 
radiopharmaceuticals. We cannot move forward in a way toward 
nonproliferation and wrest the responsibility, not knowing full well 
what the future might be for these patients and their needs.
  I support the provision in the underlying bill, as was mentioned by 
my colleague from North Carolina, that was carefully crafted in the 
committee to take into consideration all of these needs, making sure 
that we are recognizing the sensitivity and the caution that needs to 
exist and yet recognizing that the development of technologies and new 
information and medical treatments are something that are vital to 
these 14 million Americans.
  The provision in the underlying bill permits the export of the highly 
enriched uranium used only for the production of the medical isotopes 
until a low-enriched uranium alternative is commercially viable and 
available. We know that those are also issues. We talk about the 
reimportation of those isotopes, making sure that the production of 
them is something that is going to continue in order to make sure that 
the access to these pharmaceuticals is available.
  This provision is balanced, it is fair, and it is supported by the 
nuclear medicine community, including those in my home State of 
Arkansas. I urge my colleagues to vote against this amendment. Vote 
against it so that patients do not lose their access to these very 
necessary drugs.
  I don't know that my colleagues have mentioned all of those in 
support of this effort: The American College of Nuclear Physicians, the 
American College of Radiology, the American Society of Nuclear 
Cardiology, the Council on Radionuclides and Radiopharmaceuticals, the 
National Association of Cancer Patients, the National Association of 
Nuclear Pharmacies, the Nuclear Energy Institute, and the Society of 
Nuclear Medicine.
  We have an opportunity to stay on course with something that has been 
negotiated and very thoroughly vetted in the underlying bill that will 
keep us on the right track and make sure that these 14 million 
Americans and their families will continue to have the access to these 
pharmaceuticals that they need while we continue to work forward in the 
manner which we can to make sure that all of the safety and caution 
that needs to be there is there, will remain there, while we still 
enjoy the unbelievable technologies that have been discovered in recent 
medicine.
  I thank the Senator from North Carolina for yielding. I do encourage 
my colleagues to rise in opposition to the amendment so that we can go 
back to what is in the underlying bill. I think it will prove well for 
all of those who suffer from many diseases that we can treat with these 
medical isotopes.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I will attempt to offer a unanimous consent 
now that will finalize action on the Schumer amendment and move us to 
the Sununu amendment.
  I ask unanimous consent that Senator Schumer be recognized to offer 
his

[[Page 14003]]

amendment No. 810 and that there be--there has already been 
approximately 30 minutes of debate on this. I ask for another 30 
minutes, and I would hope that my colleagues would use it wisely and 
judiciously or we will be here until early tomorrow morning, that 30 
minutes be equally divided in the usual form; provided further that 
following that time, the amendment be temporarily set aside for Senator 
Sununu to offer amendment No. 873, and that there be 30 minutes for 
debate equally divided in the usual form. I further ask consent that 
following the use or yielding back of time, the Senate proceed to votes 
in relation to the amendments in the order offered, with no second-
degree amendments in order to the amendments, and with 2 minutes 
equally divided for closing remarks prior to each vote; provided 
further that following the vote in relation to the Schumer amendment, 
the Kyl amendment, No. 990, as modified, be considered and agreed to.
  Finally, Senator Bond will be allocated 7 minutes prior to the vote 
on or in relation to the Schumer amendment. That will come out of the 
15 minutes allocated of the 30 for debate on the Schumer amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. KYL. Mr. President, reserving the right to object, so long as the 
unanimous consent agreement did not say that the last word was Senator 
Bond. The last word is ordinarily reserved for the proponent of the 
amendment.
  Mr. CRAIG. That is the intent. It is just to secure for Senator Bond 
7 minutes of debate on the Schumer amendment prior to the vote.
  Mr. KYL. Further reserving the right to object, would the manager of 
the bill at this time have an estimate--we will temporarily lay this 
aside for the presentation of another amendment and then back to this 
amendment and, with the 30 minutes, presumably, we would be voting at 
about 6 o'clock, or thereabouts; is that correct?
  Mr. CRAIG. That is correct.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New York is recognized.


                           Amendment No. 810

  Mr. SCHUMER. Mr. President, I call up my amendment No. 810.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from New York, [Mr. Schumer], proposes an 
     amendment numbered 810.

  Mr. SCHUMER. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To strike a provision relating to medical isotope production)

       Beginning on page 395, strike line 3 and all that follows 
     through page 401, line 25.

  Mr. SCHUMER. Mr. President, I will let some of the opponents speak 
now, since I have spoken, unless my colleague from Arizona would like 
to speak. We could have some of the opponents go.
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Mr. President, I will speak very briefly in opposition to 
the Schumer amendment.
  Since 1971, there have been more than 45 million successful shipments 
of radioactive materials. And the Nuclear Regulatory Commission tracks 
and licenses all of these statements of medical isotope production. The 
NRC takes its job very seriously. This is a phenomenally safe track 
record that we are involved in.
  My colleagues from North Carolina and Arkansas have talked of the 
tremendous importance of being able to have adequate supplies of 
radioisotopes. Doctors conduct 14 million procedures each year in the 
United States using medical isotopes to diagnose and treat cancer, 
heart disease, and other serious sicknesses. The Senator from North 
Carolina has clearly laid out why this language is in this bill, and it 
is important.
  Mr. President, hundreds, of thousands of Americans depend on medical 
isotopes to diagnose and treat life-threatening diseases.
  It is also a fact that we do not produce these isotopes in the United 
States. We must ship enriched uranium to producers in Canada and 
Western Europe that produce the isotopes and return them to hospitals 
in the United States.
  Yet some of my colleagues ask: Why must we ship these isotopes 
internationally at all? Does this pose security risks?
  My answer: An emphatic no!
  Let me explain why . . .
  It is understandable to be concerned about the shipment of enriched 
uranium outside of the United States. And, of course, I share your 
concern. But it is important to recognize that these shipments are safe 
and secure.
  The U.S. Nuclear Regulatory Commission tracks and licenses all of the 
shipments for medical isotope production. The NRC takes its job very 
seriously.
  The shipments are carefully tracked by the NRC and corresponding 
agencies in Canada and Western Europe throughout their journey. They 
are subject to the same sort of strict guidelines in these countries 
that they are under in the United States.
  Since 1971, there have been more than 45 million successful shipments 
of radioactive materials. Shippers, State regulators, government 
agencies, and international organizations carefully handle and track 
each and every shipment--time after time. The result: The isotopes can 
do what they are made for--fight deadly disease.
  Doctors conduct 14 million procedures each year in the United States 
using medical isotopes to diagnose and treat cancer, heart disease and 
other serious sicknesses. We must ensure a reliable supply of medical 
isotopes so that doctors can carry out these procedures.
  The diagnosis and treatment of diseases like cancer, heart disease 
and other dreaded diseases depend on radiotherapy using medical 
isotopes. Doctors and patients depend on a stable supply of medical 
isotopes.
  That supply depends on the assurance that these isotopes are 
transported safely and securely. And they are. But the NRC must have 
the tools it needs to carry out its mission.
  This bill before us today helps the NRC to effectively license these 
shipments so that supply of medical isotopes is there when we need 
them.
  I urge my colleagues to support this important and timely legislation 
as written, to insure a reliable supply of isotopes to help treat and 
diagnose heart disease; cancer, including breast, lung, prostate, 
thyroid cancer, Non-Hodgkin's Lymphoma, and brain; Grave's Disease 
(hyperthyroidism); Occult infection (in AIDS); Parkinson's Disease; 
Alzheimer's Disease; Epilepsy; Renal (kidney) Failure; and Bone 
Infections.
  I yield the floor and ask my colleagues to oppose the Schumer 
amendment.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I was not on the floor when the unanimous 
consent request was proposed. It is not typical to have 7 minutes on 
the other side and only 1 for us right before the amendment.
  I ask unanimous consent that 7 out of our 15 minutes be used right 
before the vote on the Schumer-Kyl amendment.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, I will speak for a moment. I am responding 
both to the senior Senator from Idaho and also the Senator from 
Arkansas. The Senator from Idaho is correct. Under existing law, we 
have had numerous shipments since 1992, and we have been producing 
these medical isotopes, and everything has been fine. That is what the 
Schumer amendment seeks to do--to ensure that the existing law is in 
place. So that condition the Senator from Idaho spoke to is precisely 
the good condition that would prevail if

[[Page 14004]]

the Schumer amendment is adopted and we return to existing law.
  The problem is that an amendment was inserted in the Energy bill in 
committee which strikes existing law and eliminates the requirement 
that the recipient of this highly enriched uranium provide assurances 
to the United States that it is cooperating with us to move to a low-
enriched uranium target. That is everybody's goal. Nobody disagrees 
with that goal.
  But because of that amendment, we would no longer have the assurance 
that we could eventually get off of highly enriched uranium--which is 
used to build nuclear bombs--and get to low-enriched uranium. This is a 
proliferation issue, not a medical issue. That is what I say to the 
Senator from Arkansas.
  There is no suggestion that there is going to be any lack of medical 
treatment as a result of the existing law. Since 1992, we have had 
medical isotopes available for treatment, and we are going to have them 
available in the future. There is nothing in existing law that takes 
away from that. There is an attempt by somebody to scare people into 
believing that somehow or another the existing law--in effect since 
1992--is somehow going to result in a lack of medical isotopes. That is 
false, and it is pernicious. Whoever is trying to spread this notion 
should not do that because it will scare people into thinking there are 
not going to be medical isotopes available for treatment. Nothing could 
be further from the truth. Existing law has worked. Not once has an 
export license been denied. So let's forget this scare tactic. We are 
going to have the medical isotopes that we need.
  The real question here is proliferation. We have had a law that has 
worked very well since 1992. We are trying to move toward low-enriched 
uranium. Listen to what the Secretary of Energy has had to say about 
this. In a speech delivered on April 5, Secretary Samuel Bodman said:

       We should set a goal of working to end the commercial use 
     of highly enriched uranium in research reactors.
       The availability today of advanced, high-density low 
     enriched uranium fuels allows great progress toward this 
     goal.
       The Department of Energy's Reduced Enrichment for Research 
     and Test Reactors program Web site states:
       This law has been very helpful in persuading a number of 
     research reactors to convert to LEU.

  That is existing law, which we want to retain. Why would we want to 
strike the one provision in existing law that helps us to achieve this 
goal? The provision that says that the recipient of this highly 
enriched uranium has to provide assurances to the United States that it 
is cooperating with us toward this goal--something is going on here, 
Mr. President, and it is not good.
  Let me also say, with regard to this myth about the lack of medical 
isotopes, the fact is that DOE's Argonne National Laboratory 
characterized this very claim as a ``myth,'' adding that the U.S.-
developed low-enriched uranium foil target ``has been successfully 
irradiated, disassembled, and processed in Indonesia, Argentina, and 
Australia.'' Furthermore, HEU exports for use as targets in medical 
isotope production are not prohibited under current law, and no such 
export has ever been denied under that law, as I said. Current law is 
intended to encourage conversion to low-enriched uranium, which can't 
be used to make nuclear bombs. But in no way does it prohibit the 
export of highly enriched uranium. We are not at the technological 
stage where we can mass produce through low-enriched uranium.
  The bottom line is this: Current law has been working, as the Senator 
from Idaho so eloquently noted. It provides the medical isotopes we 
need. No export license has ever been denied. Recently, the Secretary 
of Energy made the point that we are trying to convert, eventually, to 
low-enriched uranium, and the current law that requires recipients of 
highly enriched uranium to work with us toward that goal has worked 
very well toward this end.
  Why would we eliminate that requirement of cooperation, when we are 
trying to make sure that this highly enriched uranium doesn't 
proliferate around the globe? As I said, a company in Canada that is 
currently working with us has enough of this stuff for two bombs. It 
would not be a good idea for us to allow further proliferation of 
highly enriched uranium around the world when we are concerned about 
terrorists getting a hold of a nuclear weapon. Let's keep the law in 
place. I urge my colleagues to support the Schumer amendment.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. BURR. Mr. President, I have all the respect in the world for my 
colleague, Senator Kyl. I think it is reasonable in life that two 
people can disagree on what something says.
  In this particular case, an entire committee looked at it, the 
Nuclear Regulatory Commission. When the question is asked, Who asked 
for change? the answer is simple: The Nuclear Regulatory Commission. 
This is with over 10 years of working with the current language. And as 
time has gone on and technology has changed, and as the requirement for 
the size of what we needed in radioisotopes has changed, it was the 
Nuclear Regulatory Commission that, in fact, suggested they needed 
Congress's help.
  Let me address the last fact Senator Kyl brought up. One, only 
Argentina currently produces medical isotopes using LEU target 
technology, which is unable to even meet the current needs in Argentina 
medical community. Indonesia has ceased any further testing of the 
U.S.-developed LEU through the technical obstacles. We all want low-
enriched uranium. After this is over, I hope this body will take on 
that challenge, the challenge of domestically producing medical 
isotopes and the Department of Energy will probably have a hold of the 
tiger that we give them when we instruct the Department to go back to 
what they dropped in 2000, after they have reviewed it, and look at our 
reactors here and how we accomplish production, whether we can make 
money at it or not.
  I want to go back to health, though. Some have suggested that health 
is not important. Health is important. I list it up here on the chart. 
Annually, over 14 million nuclear medicine procedures are performed in 
the United States that require medical isotopes manufactured from 
highly enriched uranium. Patients and doctors in the United States are 
100 percent reliant on the import of medical isotopes that are used 
with highly enriched uranium. That is a fact. Every day, over 20,000 
patients undergo procedures that use radiopharmaceuticals developed to 
diagnose coronary artery disease and assist in assessing patient risk 
for major cardiac-related deaths, such as strokes.
  This is not just what we treat; this is what we prevent from 
happening through this diagnostic tool. The CDC estimates that 61 
million Americans--almost one-fourth of the U.S. population--lives with 
the effects of stroke or heart disease, and heart disease is the 
leading cause of disability among working adults.
  Medical isotopes are one of the tools used to diagnose and treat many 
forms of cancer, as we have listed. Medical isotopes are also used to 
help manage pain in cancer patients, such as decreasing the need for 
pain medication when cancer spreads or metastasizes to the bone. 
Thyroid cancer. Radiopharmaceuticals are used to diagnose and treat 
thyroid disorders and cancer which, according to the American Cancer 
Society, is one of the few cancers where the incident rate is 
increasing.
  Mr. President, we are talking about dealing with real health problems 
that are on the rise, and technology can come up with new treatments. 
But that treatment is held in limbo until we decide. Non-Hodgkins 
lymphoma is the fifth most common cancer in the United States. 
According to the American Cancer Society, approximately 56,000 new 
cases of non-Hodgkins lymphoma will be diagnosed in the year 2005. The 
voice of proliferation, Alan Kuperman, of the Nuclear Control 
Institute, said this about the language that is currently in the Energy 
bill:

       This provision is not controversial and, thus, likely to 
     remain in the energy bill when and if it is enacted.

  He went on to say:


[[Page 14005]]

       Ironically, an amendment originally drafted to pave the way 
     for continued HEU exports [which is his interpretation, not 
     that of the committee] for isotope production may have the 
     unintended consequences of terminating them.

  That is exactly the opposite of what those who suggest the need for 
this amendment is. Even the person who is the most outspoken in this 
country says: You know what. What the Energy Committee has done will 
force us into the use of low-enriched uranium.
  In fact, this tells me from the person who is the most outspoken that 
our committee has done exactly what we attempted to do. We have written 
exactly the right language.
  Without a secure and permanent supply of medical isotopes, it is 
unlikely that new nuclear medicine procedures will be researched or 
developed. If, in fact, we suggest we will cut off this source, why 
would any researcher around this country look at how to further what 
they can do with medical isotopes?
  My colleague from Arkansas stated it very well. This is not just 
Members of the Senate who are suggesting we have read the language and 
it is right; it is the American College of Nuclear Physicians, the 
American College of Radiology, the American Society of Nuclear 
Cardiology--and the list goes on. Every Member can see it. Can this 
many health care professionals be wrong?
  Separate this, as Senator Kyl suggested. This is a proliferation 
issue, and it is a health issue. As to the health issue, I do not think 
anybody questions the value of this product for the health of the 
American people.
  There is no better gold standard on deciding whether an application 
or license should be approved than the Nuclear Regulatory Commission. 
The Nuclear Regulatory Commission is still in charge of this process. 
That has not changed. It will not change. If it is a national security 
risk, it will not just be the Nuclear Regulatory Commission that 
screams, it will be the Government--the House and Senate, the White 
House--that screams.
  The PRESIDING OFFICER. There is 7 minutes remaining to the opposition 
which has been allocated to Senator Bond.
  Mr. BURR. Mr. President, I want to maintain the 7 minutes for Senator 
Bond. I thank Senator Kyl for the gracious way we tried to negotiate. I 
think it is unfortunate that we have not. I urge Senators to defeat 
this amendment. Protect the patients.
  Mr. CRAIG. Mr. President, how much of that time remains of the window 
of 7 minutes for the Schumer side?
  The PRESIDING OFFICER. There is 10 minutes remaining on the Schumer 
side.
  Mr. CRAIG. A total of 10.
  Mr. KYL. Mr. President, let me use part of that 3 minutes right now 
to ask unanimous consent to print in the Record a statement and a 
letter from the Physicians for Social Responsibility, dated June 20, 
2005. I ask unanimous consent that this material be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            Stop the Proliferation of Weapons-Grade Uranium


       Support the Schumer and Kyl Amendments to the Energy Bill

       Senator Schumer and Senator Kyl intend to offer amendments 
     (Amendments 810 and 990, respectively) to the Energy Bill to 
     eliminate language that would undermine U,S. efforts to 
     encourage reductions in the circulation of weapons grade 
     uranium. Senators Schumer and Kyl urge their colleagues to 
     support these amendments, which will maintain current 
     restrictions on the export of bomb-grade uranium and reduce 
     the possibility that nuclear material will wind up in 
     terrorists' hands.
       Isotope producers currently make isotopes for use in 
     radiopharmaceuticals and other products by taking a mass of 
     fissionable material, known as fuel, and using it to shoot 
     neutrons through another mass of fissionable material, the 
     target. Reactors have traditionally used highly enriched 
     uranium (HEU), which can be used to make a nuclear bomb, for 
     fuel and targets. Language in the Energy Policy Act of 1992 
     has encouraged reactors to shift to low-enriched uranium 
     (LEU), which cannot be used to create a nuclear weapon, by 
     requiring any foreign reactor receiving exports of U.S. HEU 
     to work with the United States in actively transitioning to 
     LEU.
       Section 621 of the Energy Bill dangerously undercuts this 
     requirement by exempting research reactors that produce 
     medical isotopes from current U.S. law. It would weaken 
     efforts to reduce the amount of weapons-grade uranium in 
     circulation around the world and reward producers that have 
     been most resistant to complying with U.S. law. It would do 
     so by allowing facilities to avoid ever having to move to an 
     LEU ``target'', even if it is technically and economically 
     feasible to do so. This is in direct contradiction to 
     Secretary of Energy Bodman's call to ``set a goal of working 
     to end the commercial use of highly enriched uranium in 
     research reactors.''
       As our nation continues to fight the War on Terror, now is 
     clearly the wrong time to relax export restrictions on bomb-
     grade uranium and potentially increase the demand for that 
     material. Not only does the language in the Energy bill pose 
     a threat to national security, it seeks to fix a problem that 
     does not exist. Supporters of the language argue that we are 
     in danger of running out of medical isotopes if current law 
     is not changed. No producer has ever been denied an export 
     license for HEU to be used in medical isotope production 
     because of the restrictions in the 1992 Energy Policy Act. 
     Indeed, all that a facility must do to continue to receive 
     these exports is work in good faith with the United States on 
     eventual conversion to LEU when it is technically and 
     economically feasible. This is not an unreasonable standard, 
     it does not jeopardize our supply, and it is, as intended, 
     encouraging conversion.
       Senator Schumer plans to offer a first degree amendment to 
     strike section 621. Senator Kyl will second degree his 
     amendment with a requirement for a study. The rationale is 
     that it is prudent to conduct a comprehensive study before we 
     even consider lifting the restrictions, as opposed to after 
     lifting them, as the Energy bill language would do.
                                  ____


              Medical Isotope Production: Myths and Facts

       Myth: Our supply of medical isotopes is in danger because 
     LEU targets have not been developed, and an adequate supply 
     of medical isotopes cannot be produced with LEU.
       Fact: The Department of Energy's Argonne National 
     Laboratory characterizes this claim as a ``myth,'' adding 
     that the US-developed, LEU foil target ``has been 
     successfully irradiated, disassembled, and processed in 
     Indonesia, Argentina, and Australia.'' Furthermore, HEU 
     exports for use as targets in medical isotope production are 
     not prohibited under current law, and no such export has ever 
     been denied under that law. Current law is intended to 
     encourage conversion to low-enriched uranium, which cannot be 
     used to make a nuclear bomb. It is working without 
     jeopardizing our supply of medical isotopes.
       Myth: Section 621 has broad agency support.
       Fact: The fact is that the United States has a long-
     established policy of reducing HEU exports. In a speech 
     delivered on April 5th, Secretary of Energy Bodman stated, 
     ``We should set a goal of working to end the commercial use 
     of highly enriched uranium in research reactors. The 
     availability today of advanced, high-density low-enriched 
     uranium fuels allows great progress toward this goal.'' The 
     Department of Energy's Reduced Enrichment for Research and 
     Test Reactors program website states, ``This law has been 
     very helpful in persuading a number of research reactors to 
     convert to LEU.''
       Myth: Existing law needs to be weakened to ensure a 
     reliable supply of medical isotopes for use in medical 
     procedures.
       Fact: Under existing law, medical isotope production 
     capacity has grown to 250% of demand. In addition, no medical 
     isotope producer has ever been denied a shipment of HEU as a 
     result of the successful incentivization of efforts to 
     convert to LEU. The Schumer-Kyl amendments would guarantee 
     continued use of HEU to produce medical isotopes until LEU 
     substitutes are available, so long as foreign producers 
     cooperate on efforts to eventually convert to LEU when 
     possible. For example exports to Nordion, a Canadian 
     producer, have never been affected by current law and the 
     company has several-years worth of material stockpiled at 
     soon-to-be-operating reactors.
       Myth: Weakening existing law will not create a 
     proliferation risk.
       Fact: Weakening existing law will increase the amount of 
     HEU in circulation and the frequency with which it is 
     transported, resulting in a greater proliferation risk of 
     loss or theft. For example, Section 621 exempts five 
     countries from current law restrictions, including four 
     members of the European Union. These four nations would be 
     subject to the requirements of the U.S.-EURATOM Agreement on 
     Nuclear Cooperation. Under the EURATOM agreement, EURATOM 
     countries are not required to inform the U.S. of retransfers 
     of U.S.-supplied materials from one EURATOM country to 
     another, report on alterations to U.S.-supplied materials, or 
     inform the U.S. of retransfers of these materials from one 
     facility in one country to another facility in that same 
     country. As a result, HEU could end up being indirectly sent 
     to any of the 25 countries in the European Union including 
     those in which the Department of Energy is spending a 
     considerable

[[Page 14006]]

     amount of money to remove existing HEU stockpiles.
       Myth: Existing law has not been effective in decreasing the 
     risk of proliferation.
       Fact: As a result of existing law, reactors in several 
     nations have successfully instituted measures to convert to 
     LEU. For example, the Petten reactor in the Netherlands, 
     where the major isotope maker Mallinckrodt produces most of 
     its isotopes, will convert its fuel to LEU by 2006 because of 
     incentives in the existing law. The Department of Energy's 
     Reduced Enrichment for Research and Test Reactors program 
     website states, ``This law has been very helpful in 
     persuading a number of research reactors to convert to LEU.''
                                  ____

                                                    Physicians for


                                        Social Responsibility,

                                    Washington, DC, June 20, 2005.
     U.S. Senate,
     Washington, DC.
       Dear Senator: Physicians for Social Responsibility (PSR), 
     representing 30,000 physicians and health professionals 
     nationwide, is writing to urge you to reject a provision in 
     the Energy Policy Act of 2005 (Section 621 of the nuclear 
     title, ``Medical Isotope Production'') that would seriously 
     weaken export controls on highly enriched uranium (HEU), the 
     easiest material for terrorists to use to make a nuclear 
     bomb. As physicians and health care professionals, we support 
     the use of medical isotopes, but this legislation is not 
     necessary to ensure the supply of medical isotopes to U.S. 
     hospitals and clinics. We urge you to support instead the 
     amendment offered by Senators Chuck Schumer (D-NY) and Jon 
     Kyl (R-AZ), which would retain current HEU export control 
     provisions.
       Under existing law, medical isotope production capacity has 
     grown to 250 percent of demand. In addition, no medical 
     isotope producer has ever been denied a shipment of HEU as a 
     result of the successful incen-
     tivization of efforts to convert to LEU. The Schumer-Kyl 
     amendment would guarantee continued use of HEU to produce 
     medical isotopes until LEU substitutes are available, so long 
     as foreign producers cooperate on efforts to eventually 
     convert to LEU when possible. For example exports to Nordion, 
     a Canadian producer, have never been affected by current law 
     and the company has several-years worth of material 
     stockpiled at soon-to-be-operating reactors.
       Moreover, there is no shortage of medical isotopes. An 
     April 2005 paper entitled ``Production of Mo-99 in Europe: 
     Status and Perspectives,'' by Henri Bonet and Bernard David 
     of IRE, a major producer of medical isotopes, reports both 
     ``current production'' and ``peak capacity'' production by 
     the major isotope producers at the major reactors used for 
     isotope production. Nordion's current production is 40 
     percent of current world demand. The firms IRE and 
     Mallinckrodt (Tyco-Healthcare), at Petten and BR-2, together 
     currently produce 39 percent of current world demand. But 
     their peak capacity production is 85 percent of current world 
     demand. That means that IRE and Mallinckrodt, by themselves, 
     could more than replace Nordion's entire current production.
       In addition, the Safari reactor in South Africa currently 
     produces 10 percent of current world demand. But its peak 
     capacity is 45 percent of current world demand. That means 
     that the South African reactor, by itself, could almost 
     entirely replace Nordion's entire current production.
       A final illustrative statistic is that worldwide peak 
     capacity production today is 250 percent of current world 
     demand. So, we do indeed have a surplus of production 
     capacity. Worldwide production capacity is more than twice 
     worldwide demand.
       There is therefore absolutely no need to put Americans at 
     risk of nuclear terrorist attack by loosening rules on 
     international shipments of HEU. We would gain nothing from 
     repealing the Schumer Amendment but an increased 
     proliferation threat.
       Existing law limiting U.S. HEU exports (Section 134 of the 
     Atomic Energy Act, known popularly as the Schumer amendment) 
     has been on the books for more than a decade, and there is no 
     evidence that it has interfered in any way with the supply of 
     medical isotopes in the past, or that it will suddenly begin 
     to do so in the future. The law as it stands allows continued 
     export of HEU to producers of medical isotopes, as long as 
     they agree to convert to low-enriched uranium (which cannot 
     be used as the core of a nuclear bomb) when it becomes 
     technically and economically possible to do so, and to 
     cooperate with the United States to bring that day closer. We 
     strongly believe that this law has served our country well 
     for more than ten years, drastically reducing commerce in 
     potential bomb material while ensuring continued supplies of 
     needed medicines, and that this is the right policy to 
     maintain for the future. This law directly supports the call 
     of Energy Secretary Samuel Bodman, made in a speech on April 
     5, to ``set a goal of working to end the commercial use of 
     highly enriched uranium in research reactors.''
       The purpose of Schumer amendment was to phase out HEU 
     exports in order to reduce the risk of this material being 
     stolen by terrorists or diverted by proliferating states for 
     nuclear weapons production. The law bars export of HEU for 
     use as reactor fuel or as targets to produce medical 
     isotopes, except on an interim basis to facilities that are 
     actively pursuing conversion to low-enriched uranium (LEU), a 
     material that, unlike HEU, cannot be used to make a 
     Hiroshima-type bomb. Because the United States has been the 
     primary world supplier of HEU, the law provides a strong 
     incentive for reactor operators and isotope producers to 
     convert their operations from HEU to LEU. The law does not 
     impose an unreasonable burden on isotope producers and indeed 
     exempts them if conversion would result in ``a large 
     percentage increase in the total cost of operating the 
     reactor.''
       This is entirely in line with administration policy. 
     President Bush has repeatedly said that the deadliest threat 
     facing the United States is that of terrorists armed with 
     nuclear weapons. Repealing the Schumer amendment would make 
     access to HEU easier, and thus a terrorist nuclear attack on 
     an American city more likely. It is further likely that 
     countries such as Latvia, Poland and Hungary would be allowed 
     to receive retransfers of U.S. HEU, despite holding poorly 
     safeguarded stocks of this material already. Once this 
     material gets into the hands of terrorists, it is a 
     relatively simple task to produce a crude nuclear weapon that 
     could kill hundreds of thousands of people if exploded in a 
     major city. It makes no sense to take action that would not 
     make our medical isotope supply more secure, but would 
     increase the terrorist threat to our cities.
       The legislation on which you are about to vote would 
     eliminate the Schumer amendment's legal restriction on supply 
     of HEU to the main producers of medical isotopes and thereby 
     dramatically reduce their incentives to convert from HEU to 
     LEU. The likely result would be perpetual use of HEU by these 
     isotope producers instead of the phase-out foreseen by 
     current law. Worldwide, such isotope production now annually 
     requires some 50-100 kg of fresh HEU, sufficient for at least 
     one nuclear weapon of a simple design, or several of a more 
     sophisticated design. (Each of the world's major isotope 
     production facilities already requires annually about 20 kg 
     of fresh HEU.) If conversion to LEU is derailed, the annual 
     amount of HEU needed for isotope production is likely to grow 
     in step with the rising demand for isotopes. Moreover, after 
     the HEU targets are used and processed, the uranium waste 
     remains highly enriched (exceeding 90 percent), and cools 
     quickly, so that within a year the remaining HEU is no longer 
     ``self-protecting'' against terrorist theft. Thus, 
     substantial amounts of weapon-usable HEU waste accumulate at 
     isotope production sites, presenting yet another vulnerable 
     and attractive target for terrorists.
       Contrary to its stated intent, section 621 would do nothing 
     to ensure the supply of medical isotopes to the United States 
     because that supply is not currently endangered by 
     restrictions on exports of HEU. The United States now gets 
     most of its medical isotopes from the Canadian supplier 
     Nordion, which still produces such isotopes at its aging NRU 
     reactor and associated processing plant. The Schumer 
     Amendment does not block continued export of HEU for isotope 
     production at this facility prior to its impending shutdown. 
     In addition, Nordion has stockpiled four years' worth of HEU 
     targets specially designed for its new isotope production 
     facility, which is scheduled to commence commercial operation 
     soon. Even in the unexpected circumstance that Nordion's 
     isotope production were to cease, the United States could 
     turn to alternate suppliers in the Netherlands, Belgium, and 
     South Africa that currently enjoy excess production capacity.
       We wish to underscore that the existing law does not 
     discriminate against Canada or any other foreign producer. 
     Indeed, in 1986, the U.S. Nuclear Regulatory Commission (NRC) 
     ordered all domestic, licensed nuclear research reactors to 
     convert from HEU to LEU fuel as soon as suitable LEU fuel for 
     their use became available. The NRC recognized that 
     prevention of theft and diversion of HEU from civilian 
     facilities cannot be assured by physical protection and 
     safeguards alone, but rather requires a phase-out of HEU 
     commerce. The Schumer Amendment applied the same standard to 
     foreign operators.
       Supporters of the new legislation, like the Burr Amendment 
     before it, such as the American College of Nuclear 
     Physicians, have argued erroneously that the Schumer 
     Amendment ``was not drafted with medical uses of HEU in 
     mind.'' In fact, the approximately 500-word Schumer Amendment 
     uses the word ``target'' nine times. Targets, in distinction 
     to ``fuel,'' are used exclusively for the production of 
     medical isotopes. Thus, it is readily apparent that the 
     current law was drafted explicitly to include the HEU targets 
     that are used in medical isotope production.
       We also wish to underscore that conversion of isotope 
     production from HEU to LEU is technically and economically 
     feasible. Australia has produced medical isotopes using LEU 
     for years. According to Argonne National Laboratory, the main 
     consequence of Nordion converting from HEU to LEU would be to 
     increase its waste volume by about ten percent. That is a 
     small price to pay to

[[Page 14007]]

     eliminate the risk that this material could be stolen by 
     terrorists and used to build nuclear weapons.
       The main obstacle to Nordion converting its production 
     process from HEU to LEU has been the company's refusal to 
     pursue such conversion in good faith, as required by the 
     Schumer amendment as a condition for interim exports of HEU. 
     In 1990, Atomic Energy Canada, Ltd. (from which Nordion was 
     spun off) pledged to develop an LEU target by 1998 and to 
     ``phase out HEU use by 2000.'' Nordion and AECL failed to 
     meet this target. During the last few years, to qualify for 
     additional HEU exports, Nordion repeatedly has pledged to 
     cooperate with the United States on conversion. However, 
     Nordion stopped engaging in such cooperation more than a year 
     ago.
       The Schumer Amendment will never lead to an interruption in 
     Nordion's ability to produce isotopes unless Nordion 
     aggressively refuses to cooperate with U.S. policies designed 
     to prevent terrorists from acquiring the essential 
     ingredients of nuclear weapons. No company has a perpetual 
     entitlement to U.S. bomb-grade uranium, and any such exports 
     should be reserved for recipients who cooperate with U.S. law 
     intended to prevent nuclear proliferation and nuclear 
     terrorism.
       During the past 25 years, an international effort led by 
     the U.S. has succeeded at sharply reducing civilian HEU 
     commerce. In 1978, the U.S. created the Reduced Enrichment 
     for Research and Test Reactors (RERTR) program at Argonne 
     National Laboratory. In 1980, the UN endorsed the conversion 
     of existing reactors in its International Nuclear Fuel Cycle 
     Evaluation. In 1986, the NRC ordered the phase-out of HEU at 
     licensed facilities. Also in 1986, the RERTR program began 
     work on converting isotope production. And in 1992, the 
     Schumer amendment was enacted. All of these far-sighted 
     efforts were undertaken well in advance of the concrete 
     manifestation of the terrorist intent to wreak mass 
     destruction that our country experienced on September 11, 
     2001. For Congress now to undermine this longstanding U.S. 
     effort to prevent nuclear terrorism flies in the face of the 
     Bush Administration's stated determination to protect our 
     country from weapons of mass destruction.
       For over forty years PSR physicians have dedicated 
     themselves to protecting public health and opposing spread of 
     nuclear weapons and material. We strongly oppose current 
     efforts to repeal part of the Schumer Amendment to relax 
     export controls on nuclear-weapon grade material because be 
     believe that rather than ensuring the supply of medical 
     isotopes, the main effect of section 621 would be to 
     perpetuate dangerous commerce in bomb-grade uranium and 
     increase the risk that this material will find its way into 
     terrorist hands. We urge you to support the amendment offered 
     by Senators Schumer and Kyl, maintaining important 
     proliferation controls and safeguarding the medical isotope 
     needs of Americans.
       Thank you for your attention to this important national 
     security matter. PSR physicians stand ready to provide 
     further information upon request.
       Sincerely,

                                          John O. Pastore M.D.

                                                        President,
                   President Physicians for Social Responsibility.

                                  Robert K. Musil, Ph.D., MPH,

                                       Executive Director and CEO,
                             Physicians for Social Responsibility.

  Mr. KYL. Mr. President, I will quote a couple lines from this letter. 
I appreciate the comments of my colleague from North Carolina. I am 
tempted--I do not know if he is a poker player--to use that old phrase, 
``I will see you one and call you here,'' talking about the number of 
people who are supportive. We have a letter from 30,000 physicians. 
That letter is in the Record and I will quote from it briefly.
  The Physicians for Social Responsibility, representing 30,000 
physicians and health professionals nationwide, is writing to urge 
support for the Schumer amendment and opposition to the language 
supported by the Senator from North Carolina.
  As noted, the letter says:

       As physicians and health care professionals, we support the 
     use of medical isotopes, but this legislation--

  Meaning the legislation in the Energy bill--

     is not necessary to ensure the supply of medical isotopes to 
     U.S. hospitals and clinics.
       Under existing law, medical isotope production capacity has 
     grown to 250 percent of demand. In addition, no medical 
     isotope producer has ever been denied a shipment of HEU as a 
     result of the successful incentivization of efforts to 
     convert to LEU. The Schumer-Kyl amendment would guarantee 
     continued use of HEU to produce medical isotopes until LEU 
     substitutes are available, so long as foreign producers 
     cooperate on efforts to eventually convert to LEU when 
     possible.

  It makes the point that under existing law, we have all the medical 
isotopes we need, but we also have something else. We have assurances 
from these producers that they are working with the United States to 
eventually try to move away from using highly enriched uranium, which 
makes nuclear bombs, and move instead to low-enriched uranium, when 
that is possible.
  The essence of the Schumer amendment is to retain that law because 
the language that is in the bill right now eliminates that requirement 
of assurances. Why on Earth would we want to do that?
  I urge my colleagues to support the Schumer amendment. I simply note 
that if there is any confusion, after the Schumer amendment is 
dispensed with, the Kyl second-degree amendment will be automatically 
voted on or adopted, and that provides for a study and a report to the 
Congress on the status of this situation so that instead of having 
competing claims by all of us, we will have a report upon which I think 
we can all rely to help guide us in the future. In the meantime, it 
seems to me only to make sense to keep current law in effect.
  Mr. President, might I inquire if there is more than 7 minutes 
remaining on the Schumer side?
  The PRESIDING OFFICER. There is precisely 7 minutes remaining on the 
Schumer side.
  Mr. KYL. I leave it to the manager at this point to determine what to 
do.
  Mr. CRAIG. Mr. President, I ask, consistent with the unanimous 
consent request, that we set the Schumer amendment aside for 
consideration of the Sununu amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. The Sununu amendment has 30 minutes equally divided 
allotted under the unanimous consent agreement.
  The PRESIDING OFFICER. That is correct.
  The Senator from New Hampshire.


                           Amendment No. 873

  Mr. SUNUNU. Mr. President, I call up amendment No. 873.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from New Hampshire [Mr. Sununu], for himself 
     and Mr. Wyden, proposes an amendment numbered 873.

  Mr. SUNUNU. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To strike the title relating to incentives for innovative 
                             technologies)

       Beginning on page 756, strike line 1 and all that follows 
     through page 768, line 20.

  Mr. SUNUNU. Mr. President, I am pleased to offer this amendment on 
behalf of myself and Senator Wyden. This is a very comprehensive energy 
bill. As I have said before on this floor and outside this Chamber, I 
think it is probably much too comprehensive an energy bill; there is 
too much in it; it is too large; it spends too much money. There are 
authorizations. There is mandatory spending. We, unfortunately, voted 
to waive the budget limitations in our budget resolution earlier today. 
There is an $11 billion tax package that creates all manner of 
incentives and subsidies for producing energy.
  It is time that we exercise just a little bit of restraint, and the 
amendment I offer this afternoon with Senator Wyden would do just that 
in one particular area, and that is in the area of loan guarantees for 
building new powerplants.
  We need a competitive energy sector including nuclear power, coal, 
gas, hydroelectric, solar, and wind. And we should do everything 
possible to establish a competitive marketplace that avoids trying to 
pick winners and losers in that energy production marketplace. 
Unfortunately, in too many areas, this bill fails to do so.
  In particular, this title provides loan guarantees--taxpayer 
subsidized loan guarantees--for building new privately owned 
powerplants. That simply is not sound economic policy, sound fiscal 
policy, or sound energy policy. They could be coal plants. They could 
be nuclear plants. They could be renewable energy plants.
  Over the course of the 5-year authorization in this bill, the 
Congressional

[[Page 14008]]

Budget Office estimates that nearly $4 billion worth of loan guarantees 
will be offered at a cost to the taxpayers of $400 million. But the 
potential cost could be much higher because the Federal Government and 
the taxpayers would be on the hook for the full subsidy, the full cost 
of those loans.
  The Congressional Budget Office says the following in their report on 
the Energy bill:

       Under the bill, the Department of Energy could sell, 
     manage, or hire contractors to take over a facility to recoup 
     losses in the event of a default or it could take over a loan 
     and make payments on behalf of the borrowers.

  These are private sector borrowers.

       Such payments could result in the Department of Energy--

  That is the Federal Government and the taxpayers--

     effectively providing a direct loan with as much as a 100-
     percent subsidy rate.

  That just is not sound economic policy. The administration, through 
its budget office, states that ``the administration is concerned about 
the potential cost of the bill's new Department of Energy programs to 
provide 100 percent federally guaranteed loans for a wide range of 
commercial or near commercial technologies.''
  Therein lies the heart of the problem. We are subsidizing, providing 
loan guarantees for privately owned and operated and profitable 
powerplants, whether coal or nuclear or renewable energy. It is not 
sound economic policy. Our amendment simply strikes this portion of the 
bill.
  There is still $11 billion in tax subsidies to every conceivable kind 
of energy production. There is still an 8-billion-gallon mandate to 
purchase ethanol and it still contains a taxpayer subsidy for ethanol. 
This does not touch the electricity title. It does not touch the 
authorization for the clean coal technologies or fossil fuel research 
and development or other areas in the bill that provide subsidies to 
successful private companies. We are just trying to target this loan 
guarantee which just does not make any sense. It would be a new 
program. It is a terrible precedent, putting the taxpayers on the hook 
for billion-dollar loans to successful private profitable corporations.
  I urge my colleagues to support this amendment. It is supported by a 
number of taxpayer groups concerned about the size and scope of 
Government--Taxpayers for Common Sense and National Taxpayers Union. It 
also is supported by the Sierra Club and a host of other environmental 
groups that are focused on good environmental policy as well as good 
energy policy.
  I reserve the remainder of our time.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I urge our colleagues to reject the 
Sununu-Wyden bill and support the Domenici-Bingaman bill. The provision 
the Senator seeks to strike is one of the most innovative and one of 
the crucially important parts of the legislation. As I will explain in 
a minute, it is not a free ride, and it costs the Government nothing. 
It scores at 0. It is constructed in conformance with the Federal 
Credit Reform Act.
  Let me explain the amendment and, in doing so, I am doing it on 
behalf of the chairman of the committee, Senator Domenici. This is his 
idea. It is an idea to help us jump-start legislation which we have 
probably come to think of as a clean energy bill, as a bill which 
transforms the way we produce electricity in the United States, puts us 
on a path toward low-carbon and no-carbon electricity, and involves, in 
doing so, using a number of new technologies, technologies that are not 
yet commercially proven.
  For example, in our legislation, the Domenici-Bingham clean energy 
legislation, we talk about more efficient coal plants. We talk about 
carbon sequestration, a technology which has not yet been fully 
demonstrated. We talk about advanced nuclear plants, plants that are of 
the next generation of nuclear plants. We talk about new forms of 
solar. Solar has a very limited use in the United States, but there is 
some exciting new technology there. We talk about new biomass and 
hybrid cars, a technology which is just beginning to emerge.
  One of the largest and most important of these new technologies is 
what we call IGCC, or clean coal gasification, the idea of using coal, 
of which we have hundreds of years supply, to turn it into gas. I will 
say more about that in a minute. We have higher efficiency natural gas 
turbines, a hydrogen economy. We are quite a bit away from there, and 
research and development is important for that.
  We are excited about these incredible potential new technologies, and 
our goal here is to jump-start these technologies, get them into the 
marketplace--only new technologies, only technologies that are not 
commercially viable--and then we step back and get out of the way.
  That is not just the idea of our Energy Committee, which voted 21 to 
1 for a bill that contains this provision and heard a great amount of 
testimony, it is the idea, for example, of the bipartisan National 
Commission on Energy Policy, which pointed out that the energy 
challenges faced by the United States mean many new technologies and, 
unfortunately, ``both public and private investments in research and 
development, demonstration and early deployment of advanced energy 
technologies have been falling short of what is likely to be needed to 
make these technologies available in the time frames and on the scales 
required.''
  We have since World War II invested in research and development. Half 
our new jobs since World War II, according to the National Academy of 
Sciences, have come from research and development. Our R&D, our 
scientific capacity, is our cutting edge advantage. If we do not, for 
example, help launch a handful of new clean coal gasification plants, 
if we do not, for example, invest in the next generation of nuclear 
plants, they either will not happen or they will happen so slowly that 
we do not get on the path we intend to be on.
  In conclusion, let me point out exactly what we are talking about. 
This title is limited to technologies that are not commercial, that are 
not in general use. These technologies have to avoid reduced or 
sequestered air pollutants or manmade greenhouse gases, and the 
technology has to be new or significantly improved over what is 
available today in the marketplace.
  In addition, this is not a free ride. The guarantees can only be for 
80 percent of the cost of the project. The developers will share the 
risk.
  More important, the program is constructed in accordance with the 
Federal Credit Reform Act and it costs the Government nothing. In every 
case, the cost of the guarantee has to be paid in advance. It could be 
done through appropriations, but that would have to be decided each 
time. But in most cases it will be done because the project sponsors 
will simply write a check to the Federal Treasury before the guarantee 
is issued. These payments are calculated based upon the risk that any 
one of the guaranteed loans might go into default--that always could 
happen--so that the amount collected will be sufficient to pay off that 
portion of the loans that do default.
  In other words, it is in the form of an insurance premium that takes 
into account, actuarially, what the defaults might be should there be 
any.
  This is not new. The Federal Credit Reform Act has been on the books 
since 1990. It applies across the Government, and I want to emphasize 
this key point: The provision scores at zero. Only if Congress later 
decides to appropriate money for the program will it cost anything.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, let me respond briefly just to a couple of 
points there. There was a lot of discussion at the end of Senator 
Alexander's remarks about the credit law and scoring and the suggestion 
that this scores at zero.
  This scores at zero cost, as we stand here on the Senate floor, 
because no loans have been issued. So, obviously, it scores at zero. To 
say that, and to suggest to the American taxpayers that there won't be 
any liability or any cost to this program is absolutely outrageous.

[[Page 14009]]

  This is a program that does authorize, No. 1, no limit of the number 
of loans that could be offered; no limit in the total principal that 
could be put at risk. The Congressional Budget Office estimates $3.75 
billion in loans over the 5 years. Yes, when you use our credit law, 
that would mean $400 million in appropriations. But to say it scores at 
nothing, as if this is a program with no cost or risk to the taxpayer, 
is absolutely misleading.
  We need to be clearer about what this program really does and does 
not do. There are no limits on the number of projects, no limits on the 
principal that could be guaranteed, and it certainly does authorize a 
program that puts the taxpayers at risk.
  At this time I yield to my cosponsor on this amendment, Senator 
Wyden.
  Mr. CRAIG. Mr. President, before the Senator from Oregon speaks, 
could I ask what time remains on both sides?
  The PRESIDING OFFICER. The Senator from New Hampshire has 8\1/2\ 
minutes; the time in opposition is 9\1/2\ minutes.
  Mr. CRAIG. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. I ask unanimous consent to speak for up to 5 minutes and 
then allow my friend and colleague to conclude on behalf of the Sununu-
Wyden amendment.
  The PRESIDING OFFICER. Does the Senator from New Hampshire yield 5 
minutes?
  Mr. SUNUNU. I yield 5 minutes to the Senator from Oregon.
  Mr. WYDEN. Mr. President, I rise in support of the Sununu-Wyden 
amendment to strike the so-called incentives title of this legislation 
because I believe this title is a blank check for boondoggles. The fact 
is, we are now at the point when some of the special interests in this 
country are going to be triple-dipping. They are going to get tax 
incentives as a result of the tax cut; they are going to get loan 
guarantees under the amendment of the distinguished Senator from 
Nebraska; and this amendment, this section that we seek to strike, 
offers additional loan guarantees.
  These loan guarantees are not only costly, they are also risky. 
American taxpayers would be required, under title XIV, to subsidize as 
much as 80 percent of the cost of constructing and operating new and 
untried technologies. According to the Congressional Budget Office, the 
risk of default on these projects funded by guarantees is between 20 
percent and 60 percent. The amendment that Senator Sununu and I offer 
today would block this unwise and risky investment and stop throwing 
good taxpayer money after bad.
  I see our friend from Tennessee is here. He heard me discuss this to 
some extent in the Energy Committee. I have believed that this 
legislation is already stuffed with a smorgasbord of subsidies for 
various industries. As I touched on earlier, the buffet of subsidies is 
so generously larded that you are going to have industries in this 
country come back for seconds and even third helpings from this 
taxpayer-subsidized buffet table.
  You look for examples: the Hagel amendment, which provides secured 
loan guarantees for virtually the same projects and technologies as 
title XIV loan guarantees; coal gasification, advanced nuclear power 
projects, and renewable projects receive up to 25 percent of their 
estimated costs for construction activity, acquisition of land and 
financing. There is no need to double the subsidies for these projects 
with the incentives under title XIV as well.
  I want to be clear. I am not against incentives for new technologies. 
That is why, as a member of the Finance Committee, I supported the 
energy tax title that provides tax benefits for a variety of energy 
technologies, ranging from fuel cells and renewable technologies to 
fossil fuel and nuclear energy. So I am already one who has voted, at 
this point in the debate, to say that we ought to have some incentives 
with respect to these promising industries.
  But what concerns me is the double- and triple-dipping. There is an 
important difference between the tax incentives that I supported in the 
Finance Committee and the loan guarantees under title XIV. The tax 
incentives that were produced on a bipartisan basis in the Finance 
Committee reward those who produce or save energy. By contrast, the 
loan guarantees subsidize projects whether they produce energy or not.
  As I mentioned, the Congressional Budget Office says there is a very 
substantial risk of failure. I might even be persuaded to go along with 
the 25-percent subsidy provided by the Hagel amendment to help kick-
start new energy technologies, but I don't think it is a wise use of 
taxpayer money to provide up to an 80-percent subsidy for the very same 
projects that would also get a 25-percent subsidy under the Hagel 
amendment.
  Just with that example alone, you are talking about some projects 
that would receive a subsidy of 105 percent.
  With respect to who reaps the benefits from these extraordinary loan 
guarantees, we know a variety of interests would. In my area of the 
country, we still remember WPPSS, the nuclear powerplants where there 
was a huge default and we had many ratepayers very hard hit. Our 
ratepayers are still paying the bills for the powerplants that were 
planned years ago but were never built. Skyrocketing cost overruns led 
to defaults. The collapse shows that Federal loan guarantees are a 
gamble that taxpayers should not be forced to take.
  I am very hopeful my colleagues will support the Sununu-Wyden 
amendment. At this point, I think it is fair to say that we have voted 
for multiple subsidies for a lot of the industries that we hope will 
help to some degree cure this country's addiction to foreign oil. But 
at some point the level of subsidies ought to stop. I urge my 
colleagues to support the amendment, and I yield.
  The PRESIDING OFFICER. The time of the Senator has expired. Who 
yields time?
  The Senator from Idaho.
  Mr. CRAIG. Mr. President, I don't know that all has been said, but 
most nearly all has been said. Let me speak briefly about the Sununu 
amendment.
  If I have heard it once I have heard it a lot of times in the last 
few years: Oh, we need new technology. We need innovation. We need 
clean energy. All of those kinds of things are at the threshold of the 
American consumer's opportunity: Sequestration of carbon, new nuclear 
technology, biomass, hybrid cars--some of those are beginning to enter 
the market--coal gasification--here we have a very large part of our 
energy being supplied by coal; we want to clean it up so we can 
continue to use it--high, efficient natural gas turbines, hydrogen, and 
on and on and on.
  New technologies are wonderful, but sometimes it is very hard to get 
them started, get them into the marketplace, allow them to be 
mainstreamed, create the cost effectiveness, the duplication, and 
multiplying effects that occur in the marketplace. That is why, in 
working this major piece of energy legislation for our country, we 
looked at incentives. We also looked at assuring that we protect the 
American taxpayer, who is also now, because we failed over the last 5 
years to develop an energy policy, being taxed at the pump higher than 
any of these incentives would ever tax them. Yet we have some who would 
suggest that this is simply the wrong approach--to add some incentive, 
to build guarantees, to do that which assures that we can mainstream a 
variety of these technologies, that we can become increasingly self-
sufficient.
  The Senator from Tennessee is right, and he has explained it very 
well. Many of these are scored as zero, not because the loan has not 
been made but because the cost of the guarantee is paid by the person 
taking out the loan.
  So this is clearly, here, the right thing that is being done, and 
that does not mean that the Government of our country, our taxpayers, 
is ``off the hook.'' It doesn't mean that at all. It means right now 
they are on the hook and paying through the nose for high-cost energy 
because we have not done for the last 5 years what we are now trying to 
do in this bill, and that is to build a new marketplace, new 
opportunities, clean technologies, get them

[[Page 14010]]

into the marketplace, get them working, mainstream them so America and 
American business can pick them up and make them available to the 
American consumer.
  I think it is a very important amendment. If you are for the Energy 
bill as it is before us, you must vote no on the Schumer amendment. It 
guts the very underlying premise of the bill. It is not a double-dip, 
it is not a triple-dip, it is a slam-dunk to defeat and destroy a very 
valuable piece of legislation.
  I hope my colleagues will oppose the Sununu amendment.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, first I apologize to my colleague, Senator 
Schumer of New York. It was just a slip of the tongue by the Senator 
from Idaho, I am sure. Senator Schumer may be in trouble if he is 
easily confused with me when he goes back home to New York.
  Mr. CRAIG. I do apologize. I do know the difference, and I apologize.
  Mr. SUNUNU. No offense taken, but I would say, lightheartedly, that 
you might wish to apologize to the Senator from New York.
  If the owners of these powerplants were paying the risk premium, then 
the Congressional Budget Office would not estimate that in the year 
2006 there will have to be $85 million in appropriated taxpayer 
resources to support this program; or, in 2007, $85 million; or 2008, 
$85 million; or 2009, $85 million; or 2010, $60 million. The owners of 
these powerplants are not picking up the risk. That money will have to 
be appropriated because there will be risks borne by the Federal 
Government, by the taxpayer, when these loans are issued. To suggest 
otherwise is to misunderstand how the program operates.
  With regard to technology, let me close in response on this broad 
point of our concerns for technology. I also would like to see new and 
innovative technologies brought to the market. Only, when I talk about 
the importance of those new technologies, I then do not hesitate to say 
I have confidence in the engineers and scientists and investors and 
financial people, working in the solar industry and nuclear industry 
and coal industry, to continue to develop new ideas and new 
technologies. I am not so arrogant, as an elected representative, or 
someone here in Washington, to think that only someone working in the 
Department of Energy in Washington, DC, can know or understand what 
kind of technologies are deserving of a billion-dollar loan subsidy or 
a $500 million loan guarantee.
  That is the problem with this kind of a program. It presumes that the 
only people who understand technology and innovation and how it might 
make a contribution to our energy markets and our environment reside in 
Washington. That is wrong.
  We need more competitive markets. We need to do something about the 
costs of regulation, but we do not need to put the taxpayers on the 
hook for billions of dollars in loan guarantees for privately owned and 
operated powerplants that are operated by successful, profitable 
corporations. I wish them well, I want to see them compete, but I do 
not want to put taxpayers on the hook for the cost.
  I urge my colleagues to support this amendment that is endorsed and 
supported by those concerned about the cost to the Federal budget as 
well as those concerned about the environment.
  I yield back the remainder of our time.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I would hope that timewise, all time could 
be used on the Sununu amendment, understanding there is still a minute 
to close at the time of the vote and that we can return now to the 
Schumer amendment. Senator Bond is on the Senate floor, and he could 
utilize his 7 minutes prior to Senator Schumer utilizing his 7 minutes 
in closure so we could bring these two amendments to a close and to a 
vote.
  The PRESIDING OFFICER. The Senator yields back the time in opposition 
to the Sununu amendment?
  Mr. CRAIG. We have no objection. I yield back time on our side.


                           Amendment No. 810

  The PRESIDING OFFICER (Mr. DeMint). There are now 7 minutes per side 
on the Schumer amendment.
  The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I urge my colleagues to oppose the amendment 
by Senator Schumer and Senator Kyl to prevent cancer patients from 
getting the cancer medicine they need. Both Senator Schumer's first-
degree amendment and Senator Kyl's second-degree amendment would strip 
provisions we put in the Energy bill to ensure cancer patients continue 
to have a reliable and affordable source of cancer medicine. We cannot 
do this to our cancer patients.
  Cancer is a scourge that affects millions of people across the Nation 
in each of our States and in many of our families. Cancer will strike 
over a million people this year, 30,000 in my home State of Missouri, 
and cancer will kill 12,000 Missourians this year. Cancer takes our 
mothers and fathers. Cancer takes our spouses, our children. But many 
people beat cancer.
  Section 621 of the Energy bill will help people beat cancer. Cancer 
patients beat cancer with nuclear medicines, also known as medical 
isotopes, to diagnose and treat their cancer. Doctors use slightly 
radioactive forms of iodine, xenon, and other substances to help them 
find and diagnose breast cancer, lung cancer, prostate cancer, and 
other cancers. Doctors also use nuclear medicines to treat cancer 
patients fighting non-Hodgkin's lympho-
ma, thyroid cancer, and relieve cancer symptoms such as bone pain.
  Andrew Euler, seen here, is a boy from the small town of Billings, 
MO, in my home State. Drew was 8 years old when cancer struck him. 
Drew's parents described the day the doctors told them that their son 
had cancer as the most horrific experience of their lives. The Eulers 
learned that cancer is the leading cause of death among children like 
Drew under 15 years of age. Thyroid cancer will strike 23,000 Americans 
this year and take the lives of 1,400 children and adults.
  With the help from the fine cancer doctors at Washington University 
in St. Louis, Drew underwent surgery and received doses of nuclear 
medicine in the form of radioactive iodine to treat his cancer. Drew, I 
am happy to say, is now cancer free, living a normal teenage life of 
basketball, skateboarding, and swimming. Having good doctors and access 
to medicine is a blessing too many take for granted. Drew and many 
others across the country are alive today because of the nuclear 
medicine administered after his surgery.
  Section 621 of the Energy bill, which Senator Burr and I authored, 
will ensure that cancer patients like Drew can continue to get and 
afford the cancer medicine they need.
  This provision is needed because the Atomic Energy Act requires 
industry to change the way they make nuclear medicines. The law 
requires a shift from highly enriched uranium, HEU, to low enriched 
uranium, LEU. I have no problem with the switch. Indeed, our energy 
provisions encourage this switch. What I have a problem with is that 
current law makes no accommodation for supply disruptions or 
affordability. That means cancer patients might not get their medicine.
  Currently, law was written that way to address fuel for nuclear 
reactors but is now being applied to nuclear medicine. It would force a 
premature switch in the nuclear medicine production process before we 
have a feasible and affordable alternative. That would mean cancer 
patients could not get the medicine they need at prices they could 
afford. Section 621 still requires a production changeover but not 
before we know that patients will retain affordable access to their 
medicine.
  Unfortunately, well-meaning stakeholders want to strip this cancer 
medicine provision from the bill. Opponents of this provision somehow 
think that making the cancer medicine that helped cure Drew will help 
terrorists build a bomb, but that is simply not the case. The nuclear 
medicine production process is highly regulated by the U.S. Nuclear 
Regulatory Commission. Raw material shipments of HEU are

[[Page 14011]]

conducted under strict Government requirements, including armed guards. 
These shipments go to Canada and back because no U.S. reactor is 
designed to make medical isotopes. We send HEU because that is the only 
raw material target that the Canadian reactor can accept.
  In the post-9/11 world, we are obliged to take this concern 
seriously, check it out, and see whether it is valid. I can assure my 
colleagues that the concern is not one we have to worry about. Homeland 
security is fully protected in the production of nuclear medicines. No 
one has to take my word for it. We wrote to the U.S. Nuclear Regulatory 
Commission to ask them whether the shipment of HEU to Canada endangers 
homeland security. The NRC said it did not. Indeed, they said:

       The NRC continues to believe that the current regulatory 
     structure for export of HEU provides reasonable assurance 
     that the public health and safety and the environment will be 
     adequately protected and that these exports will also not be 
     inimical to the common defense and security of the United 
     States.

  The full response is for official use only, so I cannot describe it 
on the Senate floor. This has been cleared. I will be happy to share 
the full response with any Senator who wishes to see it.
  There are other smaller issues raised by stakeholders that are 
addressed in our provision. The section only applies to nuclear 
medicine production, not reactor fuel. It allows HEU so long as there 
is no feasible and affordable alternative. Once the Department of 
Energy finds that a feasible and affordable alternative exists, then 
the switch occurs and the provision sunsets.
  These provisions sound reasonable because they are the outcome of a 
compromise. Section 621 represents a compromise reached in the Energy 
bill in the last Congress. Indeed, this section has garnered nothing 
but unanimous approval as it has gone through the committee process. 
The Energy Committee approved it unanimously during their markup. My 
colleagues on the Environment Committee approved this section 
unanimously last Congress and again this Congress. Members of the 
medical community support this provision and strongly oppose attempts 
to strike it such as the Schumer and Kyl amendments. These groups 
include: The National Association of Cancer Patients, American College 
of Nuclear Physicians, American College of Radiology, American Society 
of Nuclear Cardiology, Council on Radionuclides and 
Radiopharmaceuticals, National Association of Nuclear Pharmacies, and 
Society of Nuclear Medicine.
  Of course, Drew Euler supports this provision. He is alive today 
because of nuclear medicines. Drew got the medicine he needed. I hope 
the Senate will act today to ensure that cancer patients continue to 
get the medicine they need. I ask my colleagues to oppose the Schumer 
and Kyl amendments.
  I yield such time as remains to my colleague from North Carolina.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Mr. President, I thank the Senator and would only make this 
point. Some have made the accusation that this legislation weakens 
existing law. Let me point out to my colleagues item 7 in the language, 
termination of review:

       After the Secretary submits a certification under paragraph 
     (6), the Commission shall, by rule, terminate its review of 
     export license applications under this subsection.

  This does fulfill the national security. It is reassured by the 
Nuclear Control Institute and the person who is most outspoken, Alan 
Kuperman. Ironically, he says this amendment, originally drafted to 
pave the way to continued HEU exports, would actually do away with 
them. We would go to LEU faster, is his conclusion.
  We urge our colleagues to oppose the Schumer amendment.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. It is now my understanding that Senator Schumer will 
close, and the 7 minutes remaining includes the 2 that had been 
allotted in the original UC.
  Mr. SCHUMER. I am going to take 3\1/2\ minutes and yield the closing 
3\1/2\ minutes to my colleague from Arizona, Senator Kyl.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, again, the argument is simple: Do we want 
nuclear proliferation? If we do, we allow highly enriched uranium to be 
floating around the world with very few checks.
  There is no issue of health. Let me repeat: Everyone, every single 
person in this country and in other countries who needs isotopes has 
gotten them. Let me quote from Physicians for Social Responsibility, a 
group that has been involved: Contrary to its stated intent, section 
621, the new section added to this bill, would do nothing to ensure the 
supply of medical isotopes to the United States because that supply is 
not currently endangered by restrictions on exports of HEU.
  So the bottom line is simple: We want sick people to get these 
isotopes. They are all getting them. But why do we have to trade away 
the ability to prevent highly enriched uranium from proliferating 
around the world? God forbid the consequences to our country if a 
terrorist steals such uranium or it gets lost.
  No U.S. firm has any interest in this. It is one Canadian firm that 
does not want to pay the extra price that other firms have been paying 
to require foreign countries to convert from HEU, highly enriched 
uranium, which can be used for weapons, to low-grade uranium, LEU, 
which cannot.
  So the argument is simple. There are a large number of organizations 
that support our amendment, many of them concerned with nuclear 
proliferation and, of course, organizations concerned with health such 
as Physicians for Social Responsibility.
  The argument is clear-cut. This amendment never should have been put 
in the Energy bill. The policy that our country has had for the last 12 
years has been working very well, and we have had our cake and eaten 
it, too. Everyone gets isotopes, and various reactors and foreign 
countries are required to convert from HEU to LEU. Right now, we are 
worried about Iran. We are worried about North Korea. We are worried 
about terrorists stealing weapons-grade uranium, and we are now doing 
something here, mainly at the behest of one Canadian company, to allow 
more of that uranium out on the market.
  If my friends on the other side could point to a single person who is 
denied the isotope they need for health purposes, they might have an 
argument, but they do not. The argument is simple: the cost to one 
Canadian company versus our ability to prevent weapons-grade uranium, 
highly enriched uranium, from proliferating around the world.
  I hope we will go back to present law, stay with present law, stick 
to the law that has been supported by both administrations, Republican 
and Democrat, and prevent the danger of nuclear terrorism from getting 
any greater than it is.
  I yield my remaining time to my colleague and friend from Arizona, 
Jon Kyl. 
  The PRESIDING OFFICER. The Senator from Arizona has 4 minutes.
  Mr. KYL. Mr. President, my colleagues first should be astonished that 
Senator Schumer and I are in total agreement on something, and I cannot 
wait to tell them why and hope that will persuade them that if the 
Senator from New York and I are in agreement on something, there must 
be something to it. Indeed, both Senator Schumer and I have been very 
strong advocates against proliferation of nuclear material.
  The chairman of the Senate Foreign Relations Committee, Senator 
Lugar, is strongly in agreement with the position that Senator Schumer 
and I are taking. He will be listed as one of the people in support of 
the Schumer-Kyl approach. No one has fought this harder than Senator 
Lugar. We are all familiar with the Nunn-Lugar work.

[[Page 14012]]

  The reason Senator Lugar is so strongly supportive, the reason 
members of the Democratic Party are so strongly supportive, the reason 
people who have been involved in national defense and proliferation on 
nuclear issues from day one, like myself, are so concerned about this 
is that we are in danger, unless this amendment passes, of changing a 
law that has helped us to control proliferation of nuclear material. 
Why would we want to change the law?
  Since 1992, our law has enabled us to export highly enriched uranium, 
from which you can make bombs, as long as there is an assurance that 
the recipient is cooperating with us in trying to control 
proliferation; in this case, trying to eventually move to low-enriched 
uranium. We would all love to be able to move to low-enriched uranium 
to produce, for example medical isotopes. That is why we are so 
concerned.
  The language in the bill, unfortunately, removes the requirement for 
that cooperation. Why would we want to do that? Because one Canadian 
company is concerned about the cost. That shouldn't even be a concern 
because today the Nuclear Regulatory Commission issues these export 
licenses and one of their considerations is cost. They have already 
made the decision that this is not an issue for the issuance of a 
license.
  Has one license ever been denied? Never. None. It is a false choice 
to suggest somebody is going to be denied medical treatment, a little 
boy or a little girl or anybody else, if this amendment is adopted. 
Since 1992, nobody has been denied treatment with medical isotopes. The 
law has permitted the development of this kind of treatment, and there 
is nothing to suggest that it will not continue.
  The law does something else, too. It requires assurances that the 
people who are producing this are working with us to eventually try to 
convert to low-enriched uranium. What does the Department of Energy say 
about that? The Department of Energy, on its Web site dealing with this 
subject with regard to current law, says this law has been very helpful 
in persuading a number of research reactors to convert to low-enriched 
uranium.
  Why, if we have a law that has never denied any license and has 
permitted the production of these isotopes for medical production and 
moves us toward a nonproliferation, toward low-enriched uranium, why we 
would want to scrap that and say we will do away with the requirement 
that the companies work with the United States to work toward low-
enriched uranium? It makes no sense at all.
  That is why the group of physicians I cited earlier is in support of 
the current law. It is why the Department of Energy Web site notes the 
fact that the current law is working well.
  I ask my colleagues, in summary, this question: If ever a terrorist 
group gets a hold of this high-enriched uranium and builds a bomb 
because we eliminated this requirement for no particular purpose, what 
are we going to say about that? Let's retain the existing law the 
Department of Energy believes has been working. Nobody is denied 
medical treatment as a result of this law.
  I urge my colleagues to support the Schumer amendment. Please support 
the Schumer amendment at this time.
  The PRESIDING OFFICER. All time is expired. The question is on 
agreeing to the amendment.
  Mr. SCHUMER. I ask for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays were previously ordered. The 
clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from New Mexico (Mr. Domenici).
  Mr. DURBIN. I announce that the Senator from New Mexico (Mr. 
Bingaman) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 52, nays 46, as follows:

                      [Rollcall Vote No. 154 Leg.]

                                YEAS--52

     Akaka
     Alexander
     Bayh
     Biden
     Boxer
     Byrd
     Cantwell
     Clinton
     Collins
     Conrad
     Cornyn
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Ensign
     Feingold
     Feinstein
     Gregg
     Harkin
     Inouye
     Kennedy
     Kerry
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Martinez
     McCain
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Reed
     Reid
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Sununu
     Vitter
     Wyden

                                NAYS--46

     Allard
     Allen
     Baucus
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Carper
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Enzi
     Frist
     Graham
     Grassley
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Jeffords
     Johnson
     Landrieu
     Lincoln
     McConnell
     Murkowski
     Pryor
     Roberts
     Sessions
     Shelby
     Smith
     Stevens
     Talent
     Thomas
     Thune
     Voinovich
     Warner

                             NOT VOTING--2

     Bingaman
     Domenici
       
  The amendment (No. 810) was agreed to.
  Mr. SCHUMER. I move to reconsider the vote.
  Mr. CRAIG. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 873

  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, under the unanimous consent, we now have 
the Sununu amendment with a minute allocated to each side for closing 
comments.
  The PRESIDING OFFICER. The Senator is correct. Who yields time?
  The Senator from Idaho.
  Mr. CRAIG. I yield 1 minute for closure to the Senator from 
Tennessee.
  Mr. ALEXANDER. Mr. President, if Chairman Domenici were here tonight, 
he would urge our colleagues to oppose the Sununu amendment because it 
is critical to this clean energy bill. If we want lower natural gas 
prices, we need new technologies for carbon sequestration, for advanced 
nuclear, for solar, for biomass, and for hybrid vehicles. We need to 
invest in these options and jump start them. We have done that 
throughout our history in America. That is our secret weapon, our 
science and technology, research and development. Chairman Domenici 
likes the existing provision because this is for new technology. It is 
not a free ride.
  Chairman Domenici would urge Members, as I do, to vote no on Sununu-
Wyden because his existing provision jumpstarts new technologies for a 
clean energy bill from coal plants to sequestration to advanced nuclear 
to solar, new technologies not in general use. It costs the Government 
nothing, according to the scoring of the Congressional Budget Office. 
It is like an insurance policy. The user of the guarantee pays the 
premium.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, there are nearly $4 billion in estimated 
loan guarantees over the next 5 years in this title. Those absolutely 
will cost the Federal Government something. That is exactly why money, 
$400 million, has to be appropriated to support them.
  I was pleased to work on this amendment with Senator Wyden to whom I 
yield the remainder of my time.
  Mr. WYDEN. Mr. President, when it comes to subsidies, without the 
Sununu-Wyden amendment, some of the country's deepest pockets will be 
triple-dipping. These industries get subsidies under the tax title from 
Finance. That is dip 1. The Hagel amendment, yesterday adopted, 
provides loans. That is dip 2. Title XIV that we seek to strike 
provides loan guarantees of up to 80 percent. That is dip 3. I urge 
Senators to join all the country's major environmental groups, all the 
country's major organizations representing taxpayer rights and support 
the bipartisan Sununu-Wyden amendment.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
873.
  Mr. CRAIG. Mr. President, I ask for the yeas and nays.

[[Page 14013]]

  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senators are necessarily absent: the 
Senator from New Mexico (Mr. Domenici), and the Senator from Nevada 
(Mr. Ensign).
  Mr. DURBIN. I announce that the Senator from New Mexico (Mr. 
Bingaman) is necessarily absent.
  The PRESIDING OFFICER (Mr. Burr). Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 21, nays 76, as follows:

                      [Rollcall Vote No. 155 Leg.]

                                YEAS--21

     Allard
     Boxer
     Coburn
     Collins
     Corzine
     DeMint
     Durbin
     Feingold
     Gregg
     Harkin
     Kennedy
     Kyl
     Lautenberg
     McCain
     Mikulski
     Reed
     Sarbanes
     Schumer
     Smith
     Sununu
     Wyden

                                NAYS--76

     Akaka
     Alexander
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Conrad
     Cornyn
     Craig
     Crapo
     Dayton
     DeWine
     Dodd
     Dole
     Dorgan
     Enzi
     Feinstein
     Frist
     Graham
     Grassley
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McConnell
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sessions
     Shelby
     Snowe
     Specter
     Stabenow
     Stevens
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--3

     Bingaman
     Domenici
     Ensign
  The amendment (No. 873) was rejected.
  Mr. CRAIG. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.


                     Amendment No. 990, As Modified

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report amendment No. 990, as modified.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. Kyl], for himself, Mr. Lugar, 
     and Mr. Lott, proposes an amendment numbered 990, as 
     modified.

  The amendment is as follows:

          (Purpose: To provide a substitute to the amendment)

       On page 401, after line 25 insert the following:

     SEC. 621. MEDICAL ISOTOPE PRODUCTION: NONPROLIFERATION, 
                   ANTITERRORISM, AND RESOURCE REVIEW.

       (a) Definitions.--In this section:
       (1) Highly enriched uranium for medical isotope 
     production.--The term ``highly enriched uranium for medical 
     isotope production'' means highly enriched uranium contained 
     in, or for use in, targets to be irradiated for the sole 
     purpose of producing medical isotopes.
       (2) Medical isotopes.--The term ``medical isotopes'' means 
     radioactive isotopes, including molybdenum-99, that are used 
     to produce radiopharmaceuticals for diagnostic or therapeutic 
     procedures on patients.
       (b) Study.--
       (1) In general.--Not later than 60 days after the date of 
     enactment of this Act, the Secretary shall enter into an 
     arrangement with the National Academy of Sciences for the 
     conduct of a study of issues associated with section 134 of 
     the Atomic Energy Act of 1954 (42 U.S.C. 2160d), including 
     issues associated with the implementation of that section.
       (2) Contents.--The study shall include an analysis of--
       (A) the effectiveness to date of section 134 of the Atomic 
     Energy Act of 1954 (42 U.S.C. 2160d) in facilitating the 
     conversion of foreign reactor fuel and targets to low-
     enriched uranium, which reduces the risk that highly enriched 
     uranium will be diverted and stolen;
       (B) the degree to which isotope producers that rely on 
     United States highly enriched uranium are complying with the 
     intent of section 134 of the Atomic Energy Act of 1954 (42 
     U.S.C. 2160d) to expeditiously convert targets to low-
     enriched uranium;
       (C) the adequacy of physical protection and material 
     control and accounting measures at foreign facilities that 
     receive United States highly enriched uranium for medical 
     isotope production, in comparison to Nuclear Regulatory 
     Commission regulations and Department administrative 
     requirements;
       (D) the likely consequences of an exemption of highly 
     enriched uranium exports for medical isotope production from 
     section 134(a) of the Atomic Energy Act of 1954 (42 U.S.C. 
     2160d(a)) for--
       (i) United States efforts to eliminate highly enriched 
     uranium commerce worldwide through the support of the Reduced 
     Enrichment in Research and Test Reactors program; and
       (ii) other United States nonproliferation and antiterrorism 
     initiatives;
       (E) incentives that could supplement the incentives of 
     section 134 of the Atomic Energy Act of 1954 (42 U.S.C. 
     2160d) to further encourage foreign medical isotope producers 
     to convert from highly enriched uranium to low-enriched 
     uranium;
       (F) whether implementation of section 134 of the Atomic 
     Energy Act of 1954 (42 U.S.C. 2160d) has ever caused, or is 
     likely to cause, an interruption in the production and supply 
     of medical isotopes in needed quantities;
       (G) whether the United States supply of isotopes is 
     sufficiently diversified to withstand an interruption of 
     production from any 1 supplier, and, if not, what steps 
     should be taken to diversify United States supply; and
       (H) any other aspects of implementation of section 134 of 
     of the Atomic Energy Act of 1954 (42 U.S.C. 2160d) that have 
     a bearing on Federal nonproliferation and antiterrorism laws 
     (including regulations) and policies.
       (3) Timing; consultation.--The National Academy of Sciences 
     study shall be--
       (A) conducted in full consultation with the Secretary of 
     State, the staff of the Reduced Enrichment in Research and 
     Test Reactors program at Argonne National Laboratory, and 
     other interested organizations and individuals with expertise 
     in nuclear nonproliferation; and
       (B) submitted to Congress not later than 18 months after 
     the date of enactment of this Act.

  Mr. KYL. Mr. President, my amendment would simply add a reporting 
requirement.
  Current law--known as the Schumer amendment to the Energy Policy Act 
of 1992--is intended to phase out U.S. exports of highly enriched 
uranium in order to reduce the risk of that material being stolen by 
terrorists or diverted by proliferating states for nuclear weapons 
production.
  The importance of phasing out these exports is glaringly obvious in 
the post-September 11 world, as we are confronted with terrorist-
sponsoring regimes, such as North Korea and Iran, that are intent on 
developing nuclear weapons and terrorist organizations that would like 
nothing more than to attack the United States using a nuclear device.
  Asked several years ago about suspicions that he is trying to obtain 
chemical and nuclear weapons, Osama bin Laden said:

       If I seek to acquire such weapons, this is a religious 
     duty. How we use them is up to us.

  U.S. law bars export of HEU for use as reactor fuel or as targets to 
produce medical isotopes, except on an interim basis to facilities that 
are actively pursuing conversion to low-enriched uranium.
  Because the United States is the world's primary supplier of HEU, the 
law also provides a strong incentive for such conversion, an objective 
that is strongly supported by Secretary of Energy Samuel Bodman's 
recent statement that, ``We should set a goal of working to end the 
commercial use of highly enriched uranium in research reactors.''
  Why is this important? Unlike highly enriched uranium, low-enriched 
uranium cannot be used as the core of a nuclear bomb.
  Section 621 of the pending bill would essentially exempt HEU exports 
to five countries for medical isotope production from the standards set 
by the 1992 Schumer amendment. If enacted, it would allow foreign 
companies to receive U.S. HEU for use in medical isotope production 
``targets'' without having to commit to converting to low-enriched 
uranium.
  Specifically, for export license approval, the new language requires 
only a determination that the HEU will be irradiated in a reactor in a 
recipient country that ``is the subject of an agreement with the United 
States Government to convert to an alternative nuclear reactor fuel 
when such fuel can be used in that reactor.''
  In contrast, current law requires the proposed recipient of a U.S. 
HEU export to provide ``assurances that, whenever an alternative 
nuclear reactor fuel or target can be used in that

[[Page 14014]]

reactor, it will use that alternative in lieu of highly enriched 
uranium.'' In addition, current law permits such exports only if ``the 
United States government is actively developing an alternative nuclear 
reactor fuel or target that can be used in that reactor,'' which 
requires the proposed recipient to actively cooperate with the United 
States on conversion.
  This is a difficult distinction, so let me be clear: current law 
places restrictions on exports of targets and fuel, and the Energy bill 
exempts targets from these restrictions. How are fuel and targets used? 
Fuel is used to generate the chain reaction that powers a reactor; a 
target is a mass of fissionable material that is irradiated to produce 
a medical isotope. The target is inserted in an operating reactor and 
then withdrawn after it has been irradiated.
  This change would allow countries to avoid ever having to move to an 
LEU target, even if it is technically feasible to do so.
  Furthermore, four of the five countries to which the Energy bill's 
exemption would apply are members of the European Union and, therefore, 
U.S. exports of HEU to them would be subject to the requirements of the 
U.S.-EURATOM Agreement on Nuclear Cooperation.
  Under that agreement, EURATOM countries are not required to inform 
the United States of retransfers of U.S. supplied materials from one 
EURATOM country to another or report on alterations to U.S. supplied 
materials. As such U.S. HEU--once transferred to one of these four 
countries--can go anywhere else in the EU. Given EU expansion, it is 
not difficult to imagine the concern this creates. The Energy bill 
language ostensibly exempts only five countries from current law; in 
practice, the number is much larger.
  This is all the more reason not to remove the incentive to convert to 
LEU.
  One of the gravest threats we face today is the possibility that a 
terrorist will obtain nuclear material and use it in an attack against 
the United States. It simply makes no sense to loosen our own 
restrictions on the export of nuclear weapon-grade uranium to countries 
where we do not have direct control over its security.
  Proponents of the new language contained in the Energy bill argue 
that weakening current law is needed to ensure the continued supply of 
medical isotopes--for the diagnosis and treatment of sick patients--and 
that this reality justifies any increased proliferation risk. They 
claim that there is a danger we will run out of these isotopes.
  But we have seen no compelling evidence that the United States is in 
danger of running out of medical isotopes. Our main supplier--a 
Canadian company called Nordion--has stockpiled over 50 kg of U.S.-
origin HEU, which is enough to make one simple nuclear bomb or two more 
sophisticated bombs. Indeed, Nordion has enough U.S.-origin bomb-grade 
uranium to produce medical isotopes for the next three to four years. 
[Source: Union of Concerned Scientists and the Nuclear Control 
Institute]
  Supporters of the language in the Energy bill seem to be concerned 
that Nordion will cut off from U.S.-HEU exports and that will result in 
an isotope deficiency. But that claim does not mesh with the facts. 
Nordion produces about 40 percent of the world's supply of medical 
isotopes today; worldwide production capacity is 25 percent of current 
wordwide demand.
  That means that, even without Nordion's medical isotopes, production 
could still reach 210 percent of world demand.
  Finally, it is important to note that no company has ever been denied 
an export license under the Schumer amendment for HEU to be used in 
targets for medical isotope production AND current law has, as 
intended, incentivized countries to begin to convert to LEU. The 
Netherlands is one good example; conversion of that country's Petten 
reactor (to LEU fuel) is scheduled to be completed by 2006.
  Senator Schumer's amendment, which I strongly support, strikes 
section 621 of H.R. 6. Maintaining current law restrictions will ensure 
that the United States plays an active role in encouraging other 
countries to convert to using low-enriched uranium. All that they must 
do in order to continue to receive U.S. HEU exports is agree to convert 
to low-enriched uranium--which cannot be used as the core of a nuclear 
bomb--when it becomes technically and economically possible to do so 
and actively cooperate with the United States on that conversion. This 
is not unreasonable.
  And, as I mentioned, there is no danger of running out of medical 
isotopes at this time--the largest supplier to the United States 
currently has a surplus of U.S. HEU and worldwide maximum production 
capacity is more than twice demand.
  My second-degree amendment would simply add a requirement for a 
report from the National Academy of Sciences. That report includes an 
analysis of:
  The effectiveness of current law (the Schumer amendment) in 
compelling conversion to low-enriched uranium; the likely consequences 
with respect to nonproliferation and antiterrorism initiatives of 
removing current restrictions;
  Whether implementation of current law has ever caused an interruption 
in the production and supply of medical isotopes to the U.S.; and
  Whether the U.S. supply of isotopes is sufficiently diversified to 
withstand an interruption of production from any one supplier.
  It is prudent to conduct such a comprehensive study before we even 
consider lifting the restrictions in current law, as opposed to after 
lifting them, as the Energy bill language would do.
  The report would be due 18 months after enactment of the Energy bill. 
So, even if Nordion were cut off from U.S. exports tomorrow, the due 
date would be long before Nordion's surplus HEV runs out.
  The PRESIDING OFFICER. Under the previous order, the amendment is 
agreed to.
  The amendment (No. 990), as modified, was agreed to.
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Mr. President, we are going to move as quickly as we can. 
It appears that we can complete all work on this bill tonight. We have 
a few remaining amendments. I am going to offer a unanimous consent 
request at this time and, hopefully, we can cut the time down from it, 
if our colleagues will expedite their effort on behalf of these 
amendments that are outstanding.
  Mr. President, I ask unanimous consent that Senator Bond be 
recognized in order to offer the Bond-Levin CAFE amendment No. 925; 
provided further that the amendment be set aside and Senator Durbin be 
recognized immediately to offer his CAFE amendment No. 902; provided 
further that there be 80 minutes of debate total to be used in relation 
to both amendments, with Senators Bond and/or his designee in control 
of 40 minutes, and Senator Durbin and/or his designee in control of 40 
minutes.
  I further ask that following the use or yielding back of time, the 
Senate proceed to a vote in relation to the Bond amendment, to be 
followed by a vote in relation to the Durbin Amendment, with no second 
degrees in order to either amendment prior to the vote, and with 2 
minutes equally divided for debate prior to the second vote.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. CRAIG. I thank the Chair. I trust that our colleagues are on the 
Senate floor. I see them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.


                           Amendment No. 925

  Mr. BOND. Mr. President, I call up the Bond-Levin amendment, as 
described by the distinguished acting floor manager of this bill.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for himself, Mr. 
     Levin, Ms. Stabenow, and Mr. Voinovich, proposes an amendment 
     numbered 925.


[[Page 14015]]

  Mr. BOND. Mr. President, I ask unanimous consent that further reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of Wednesday, June 22, 2005 
under ``Text of Amendments.'')
  Mr. BOND. Mr. President, pursuant to the order, I ask that that 
amendment be set aside.
  The PRESIDING OFFICER. The amendment is set aside under the order.


                           Amendment No. 902

  Mr. DURBIN. Mr. President, I call up amendment No. 902.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Illinois [Mr. Durbin], proposes an 
     amendment numbered 902.

  Mr. DURBIN. I ask unanimous consent that further reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of Wednesday, June 23, 2005, 
under ``Text of Amendments.'')
  Mr. DURBIN. Mr. President, I ask unanimous consent that the following 
Senators be added as cosponsors: Dodd, Cantwell, Lautenberg, Kennedy, 
Reed of Rhode Island, and Boxer.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, it is my understanding, under the terms of 
the agreement, that we have 40 minutes on our side, and there are 40 
minutes under the control of Senators Bond or Levin.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DURBIN. Mr. President, I will start by reading a paragraph, but 
it is not from an environmental magazine or a political magazine or 
from a liberal magazine. It is from BusinessWeek, published in their 
most recent online edition of June 20, entitled ``Energy; Ignoring the 
Obvious Fix.'' I will read this paragraph because it describes where we 
are at this moment in time:

       As Congress puts the final touches on a massive new energy 
     bill, lawmakers are about to blow it. That's because the 
     bill, which they hope to pass by the end of July, almost 
     certainly won't include the one policy initiative that could 
     seriously reduce America's dependence on foreign oil: A 
     government-mandated increase in the average fuel economy of 
     new cars, SUVs, light trucks and vans.

  That is BusinessWeek. They say that Congress is about to blow it. 
Sadly, BusinessWeek is correct because you can search this bill, page 
after page, section after section, and find no reference to the obvious 
need in America to increase the fuel efficiency of the cars and trucks 
that we drive.
  The amendment that I am proposing addresses the CAFE standards. This 
amendment would result in more fuel-efficient vehicles in America. This 
amendment would incrementally increase fuel economy standards in 
automobiles over the next 10 years.
  Regardless of what the opponents of this amendment say, technology is 
available to reach these goals, the safety of our vehicles need not be 
compromised in the process, and we don't have to lose American jobs in 
order to have safer, more fuel-efficient cars.
  I suggest to those who have no faith in the innovative capacity of 
our Nation that America has risen to the challenge before. We can do it 
again.
  Before I explain my amendment and highlight why improving fuel 
efficiency would be a priority, let me read from a few headlines that 
make this debate especially important.
  This was in this week's Washington Post:

       Gas price rises as oil hits a record high.

  What was the dollar amount, the latest amount? It was $59.42 a 
barrel--record high amounts for oil. In my State of Illinois, the 
average price of gasoline is $2.16 per gallon.
  From the Wall Street Journal, here is the big headline:

       Big Thirst for Oil is Unslaked, Demand by U.S., China 
     Rises.

  The Wall Street Journal says:

       Oil consumption remains strong even as petroleum prices 
     approach $60 a barrel, sparking concerns that growing demand 
     could spur still-higher prices and further dampen economic 
     growth.

  Philip Verleger, senior fellow at the Washington-based Institute for 
International Economics, says:

       I can see oil at $90 a barrel by next March 31.

  I have read from BusinessWeek. We understand their consideration of 
this provision. They understand that if we do not deal with more fuel-
efficient vehicles, we are ignoring the obvious.
  I am offering this amendment to give my colleagues an opportunity to 
put America back on track, to reduce consumption of oil-based products 
by our transportation fleet by increasing fuel economy standards.
  The BusinessWeek online piece continues:

       If we don't act now, a crisis will probably force more 
     drastic action later.

  I first say to my colleague following this debate, I wish them all a 
happy 30th anniversary. It was 30 years ago we faced an energy crisis 
in America. This year marks the 30th anniversary of the Energy Policy 
and Conservation Act that created the original CAFE program and 
responded to that crisis.
  Listen to these oil prices that brought America's economy to its 
knees 30 years ago. I am going back to October of 1973. The price of 
oil rose from $3 a barrel to $5.11 per barrel, sending a shock across 
America. By January, just a few months later, the prices were up to 
$11.65 a barrel. At the time, however, the United States was only 
dependent on foreign oil for 28 percent of its use. That percentage has 
grown to 58 percent today.
  Put it in context: 30 years ago, 28 percent of our oil was coming 
from overseas, and we were dealing with $11 a barrel. Today, 58 percent 
is, and we are dealing with $59.60 a barrel, roughly speaking. So we 
have seen a dramatic increase in our dependence, a dramatic increase in 
price, and there is no reason to believe it is going to end. We are 
captives of OPEC and that cartel.
  When Maria Cantwell came to the floor of the Senate and offered an 
amendment to reduce America's dependence on foreign oil by 40 percent 
over the next 20 years, it was soundly defeated. I think only three 
Republicans joined the Democrats who supported it.
  To think we are overlooking in a debate on an energy bill dependence 
on foreign oil and the inefficiency of cars and trucks tells you how 
irrelevant this debate is. Any serious debate about America's energy 
future would talk about our dependence--overdependence--on foreign oil 
and the fact that we continue to drive cars and trucks that are less 
fuel efficient every single year.
  The recent prices that have shown up also create anxiety over oil 
exports from other producer nations. This past Friday, the United 
States, Britain, and Germany closed their consulates in Nigeria, in its 
largest city of Lagos, due to a threat from foreign Islamic militants. 
The countries we are relying on for foreign oil are politically shaky, 
and we depend on them. If they do not provide the oil, our economy 
suffers, and American families and consumers suffer.
  In response to the 1973 oil embargo, Congress created the CAFE 
program and decided at the time to increase the new car fleet fuel 
economy because it had declined from 14.8 miles per gallon in 1967 to 
12.9 miles per gallon in 1973.
  Today we face even more embarrassing statistics. Today we consume 
more than 3 gallons of oil per capita in the United States, whereas 
other industrialized countries consume 1.3 gallons per capita per day, 
and the world average is closer to a half a gallon per capita per day. 
We use four times more oil than any nation.
  The amendment I am proposing would increase passenger fuel economy 
standards by 12.5 miles per gallon over the next 11 years, increasing 
fuel economy standards for nonpassenger vehicles by 6.5 miles per 
gallon in the same time period, for a combined fleet average of nearly 
34 miles per gallon. I am increasing it 5.3 miles per gallon over 
current plans. Current NHTSA rulemaking would only raise it to 22.2 
miles per gallon by 2007.
  The average mileage of U.S. passenger vehicles peaked in 1988 at 25.9

[[Page 14016]]

miles per gallon and has fallen to an estimated 24.4 in 2004.
  Let me show one chart which graphically demonstrates the sad reality. 
Remember the oil embargo I talked about, in 1973, the panic in America, 
the demand that our manufacturers of automobiles increase the fuel 
efficiency of cars over the next 10 years? They screamed bloody murder. 
They said the same things we are going to hear from my colleagues 
tonight in opposition to this amendment. They said if you want cars 
that get so many miles per gallon over the next 10 years, America is 
going to be riding around in little dinky cars such as golf carts. I 
heard exactly the same words on the Senate floor today.
  Furthermore, if you want more fuel-efficient cars, they are going to 
be so darned dangerous, no family should ride in them. This is what our 
big three said back in 1973: We can't do this; it is technologically 
impossible. Frankly, if you do it, we are going to see more and more 
foreign cars coming into the United States.
  Thank God Congress ignored them. We passed the CAFE standards. Looked 
what happened. Fuel-efficiency cars in a 10-year period went up to 
their highest levels. Now look what has happened since. It is flat or 
declining in some areas. It tells us, when we look at both cars and 
trucks, that our fuel efficiency has been declining since 1985. How can 
this be good for America? How can this make us less energy dependent? 
How can this clean up air we breathe? It cannot.
  People will come to the floor of the Senate today and say: We think 
every American ought to buy and drive the most fuel-inefficient truck 
or car they choose, and if you do not stand by that, you are violating 
the most basic American freedom. What about the freedoms that are at 
stake as we get in conflicts around the world with oil-producing 
nations?
  If we want to preserve our freedoms, we should accept personal 
responsibility as a nation, as families, and as individuals. Personal 
responsibility says we need better cars and better trucks that are more 
fuel efficient. We need to challenge all manufacturers of cars and 
trucks, foreign and domestic, to meet these standards so that we are 
not warping the market, we are setting a standard for the whole market.
  Unfortunately, there is strong opposition to this notion. Some of 
those who oppose it have the most negative and backward view of 
American technology that you can imagine.
  We understand now from reliable scientific sources--in particular the 
National Academy of Sciences--that we have technologies and can improve 
fuel efficiency of trucks by 50 to 65 percent and cars by 40 to 60 
percent. But Detroit is so wedded to the concept of selling these 
monster SUVs and big cars that they will not use it. They will not use 
the technology that is currently there.
  We are dealing now with hybrid technology. Let me tell a little story 
about hybrid technology.
  First let me tell you what we are dealing with on the overall 
picture. This chart shows U.S. consumption of oil in the transportation 
sector. As we can see, light-duty vehicles represent the biggest part 
of it--60 percent. It is a huge part.
  We also have general oil consumption in America. If we want to reduce 
our dependence on foreign oil, we have to focus attention on 
transportation--68 percent usage of the oil we import.
  We know if we want to reduce dependence on foreign oil, this is what 
we need to do. Here is a list of all the different technologies 
currently available. I won't read them all through but will make them 
part of the Record as part of my statement: transmission technology, 
engine technologies, vehicle technologies that could be used right now 
to make cars and trucks more efficient.
  What is going to happen over a period of time, though, is we are 
going to see a lot of debate about different cars and different trucks. 
Let me show you one in particular. I just mentioned hybrid vehicles. My 
wife and I decided a few months ago to buy a new car. We wanted to buy 
American. We did not need a big monster SUV. It is basically just the 
two of us and maybe a couple of other passengers. We wanted something 
American and fuel efficient.
  Go out and take a look. You will find there is one American-made car 
on the market today that even cares about fuel efficiency--the Ford 
Escape hybrid. That is the only one. The others are made by 
manufacturers around the world. It turns out they are not making too 
many of these Ford Escape hybrids. In the first quarter of this year, 
Ford made 5,274. Take a look at the competition. Japan again, sadly, 
got the jump on us. When they came up with their Honda Accords and 
Civics, they ended up selling 9,317 and then 14,604 the first quarter. 
Toyota was 13,602, and look at the number here: 34,225.
  What I am telling you is, how could Detroit miss this? When we look 
at the big numbers, the total sales for these cars for hybrids sold, 
total hybrids sold in 2004 before we ended up having an American car on 
the market was 83,000 vehicles. Where was Detroit? Where are they now? 
The only place one can turn is a Ford Escape hybrid. What are they 
waiting for? Do they want the Japanese to capture another major market 
before they even dip their toe in the water?
  We have to understand that there is demand in America for more fuel-
efficient cars. We also have to understand the technology is there to 
dramatically increase gas mileage. This Ford Escape hybrid my wife and 
I drive is getting a little better than 28 miles a gallon. I wish it 
were a lot better. Sadly, some of the Japanese models are a lot better. 
At least it is better than the average SUV by a long shot and better 
than most cars we buy. They can do a lot better if Ford, General 
Motors, and Chrysler would wake up to the reality. Instead, they are 
stuck in the past. They are going to sell more this year of what they 
made last year. They cannot just look ahead as, unfortunately, their 
competitors in Japan have done.
  The National Research Council puts away this argument that we cannot 
have a fuel-efficient car that is safe. The National Research Council's 
recent report found that increases of 12 to 27 percent for cars and 25 
to 42 percent for trucks were possible without any loss of performance 
characteristics or degradation of safety.
  What we know now is that we have the technology to make a more fuel-
efficient car. They do not have to be so dinky you would not want to 
drive in them. They accommodate a family, and you do not compromise 
safety in the process.
  Look at history. The automobile industry in America has resisted 
change for such a long time. I can remember as a college student when 
they came out with all the exposes about the dangers of the Corvair. 
Oh, Detroit just denied it completely. The auto industry, sadly, has 
fought against safety belts, airbags, fuel system integrity, mandatory 
recalls, side impact protection, roof strength, and rollover standards. 
I am not surprised they are fighting against fuel efficiency, but I am 
disappointed. They just don't get the marketplace. As the price of oil 
goes up and the price of gas goes up, Americans want an alternative--a 
safe car they can use for themselves and their family that is fuel 
efficient.
  Let me talk about the loss of jobs. The argument is made that if we 
have more fuel-efficient cars, we are just going to be giving away 
American jobs. It comes from the same industry where General Motors 
announced 2 weeks ago they were laying off 25,000 people, and Ford 
announced they were laying off 1,700 this week. They have to see the 
writing on the wall. Their current models are not serving the current 
market. Their sales are going down while the sales from foreign 
manufacturers are going up.
  There was an auto industry expert on NPR a few weeks ago, Maryann 
Keller. She said:

       General Motors has been focused in the United States on big 
     SUVs and big pickup trucks. . . . It worked as long as gas 
     was cheap, but gas is not cheap . . . They really have not 
     paid attention to fuel economy technology, nor have they paid 
     attention to developing crossover vehicles which have better 
     fuel economy. They've just been very late to the party and 
     that's probably their primary problem today in the 
     marketplace.


[[Page 14017]]


  We ought to ask the American people what they want. We are going to 
hear a lot of people stand up and say what they want. I will tell you 
what the latest polls say: 61 percent of Americans favor increasing 
fuel-efficiency requirements to 40 miles a gallon. They get it; they 
understand it. The problem is they can't buy it. If you want to buy an 
American car that meets this goal in your family's mind, there is only 
one out there. Some will come trailing along in a year or two, but the 
Japanese have beaten us to the punch again.
  Let's create an incentive for Detroit and for Tokyo. Let's create an 
incentive for all manufacturers that are selling cars in the United 
States, an incentive that lessens our dependence on foreign oil, cleans 
up the air, and gives us safe vehicles using new technology. Those who 
are convinced that America cannot rise to this challenge do not know 
the same Nation I know. We can rise to it. We can succeed. We can meet 
our energy needs in the future by making good sense today in our energy 
policy.
  Mr. NELSON of Florida. Will the Senator yield?
  Mr. DURBIN. Mr. President, how much time have I consumed?
  The PRESIDING OFFICER. The Senator from Illinois has 22 minutes 
remaining.
  Mr. DURBIN. I will be happy to yield to the Senator from Florida.
  Mr. NELSON of Florida. I thank the Senator for laying out so clearly 
the fact that we are so dependent on foreign oil. If we really want to 
do something about it--as the Senator has explained by the charts, it 
is clear that most of the oil that is consumed in America is consumed 
in the transportation sector and most of the oil that is consumed in 
the transportation sector is consumed in our personal light vehicles. 
So if we really want to do something about weaning ourselves from 
dependence on foreign oil, of which almost 60 percent of our daily 
consumption of oil is coming from foreign shores, this is where we can 
make a difference.
  Mr. DURBIN. The Senator from Florida is correct. I will tell him I 
know what I am up against. I think the Senator from Florida, being a 
realist, does too. When you have the major automobile manufacturers who 
are frightened by the challenge--they are afraid of this challenge. 
They do not think they can meet it. They have been beaten to the punch 
by Japan when it comes the hybrid cars. Instead, they started talking 
about hydrogen fuel vehicles. That may happen in my lifetime, but it is 
just as likely it will not happen in my lifetime. Instead of dealing 
with hybrid vehicles that are already successful with consumers in 
America, they are afraid of this challenge. Because they are afraid of 
this challenge, they throw up all of these arguments: oh, that car is 
going to be a golf cart, it is going to be so tiny if it is fuel 
efficient, it is not going to be safe; there is just no way that 
American engineers can even figure out how to make them.
  I do not buy it. I think, as I said to the Senator and others who are 
listening, the technology is there. We do not have to compromise 
safety. What is wrong with the challenge? What is wrong with the 
challenge from the President and the Congress asking the manufacturers 
selling cars in America to make them more fuel efficient? This 
legislation does not do it; my amendment would.
  Mr. NELSON of Florida. Would it not be something if we could start to 
have all new vehicles be required, in some way, to be hybrid and/or 
higher miles per gallon standard, if that were combined with an 
additional thing like ethanol into gasoline, ethanol that could be made 
more cheaply, perhaps from prairie grass--that is on 31 million acres; 
all it needs to be is cut--instead of a more expensive process of corn, 
although that certainly is a good source of ethanol. Would we not start 
to see exponentially our ability to wean ourselves from dependence on 
foreign oil?
  Mr. DURBIN. The Senator from Florida has a vision that I share, and 
that is alternative fuels, fuels that are renewable such as those the 
Senator has described, ethanol and biodiesel, and vehicles that do not 
use as much fuel.
  Senator Obama and I have a public meeting every Thursday morning, and 
there was a real sad situation today. A group of parents brought in 
children with autism to talk about that terrible illness and the 
challenges they face. More and more of that illness, and others, are 
being linked to mercury. Whether it is in a vaccine, I do not know; 
whether it is in the air, most certainly it is. If we can reduce 
emissions by reducing the amount of fuel that we burn, would my 
colleagues not believe we would be a healthier nation? Maybe there 
would be fewer asthma victims. Maybe some of these poor kids who are 
afflicted with respiratory problems would be spared from them.
  I cannot believe people can rationally stand on the Senate floor and 
say what we need is to give Americans a choice of driving a car that 
burns gasoline and gets 6 miles per gallon; boy, that is the American 
way. Well, that is selfish. It really is. We ought to be looking at 
national goals that bring us, as an American family, together to do the 
responsible thing.
  Mr. NELSON of Florida. I thank the Senator for being so eloquent in 
laying out what is a looming crisis. The crisis is going to hit us. We 
may not suspect it. It may hit us in the way of radical Islamists 
suddenly taking over major countries where those oilfields are, such as 
Saudi Arabia. If that occurs, Lord forbid. Then we are going to have a 
crisis, and we are going to be wishing that we were not so dependent on 
foreign oil, as we are now.
  Mr. DURBIN. I thank the Senator. I yield the floor and reserve the 
remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Missouri.
  Mr. BOND. Mr. President, I yield myself 15 minutes.
  I rise to address some of the lingering questions regarding Corporate 
Average Fuel Economy, or CAFE standards. I was hoping this debate would 
not be necessary because we have debated it, we have resolved it, we 
have set a process in place, and it is working. Obviously, we are here 
again. We have been through this CAFE debate in the 107th and 108th 
Congresses, and with the Durbin amendment before us we get to go 
through it once again in this Congress. Surely, my colleagues remember 
that both of the previous CAFE amendments in the last two Congresses 
were soundly defeated.
  Why were they? Because Members of this body realize that CAFE is a 
complex issue that requires thought and scientific analysis, not just 
political rhetoric.
  The Bond-Levin amendment that was passed in 2003 by a vote of 66 to 
30 requires the National Highway Traffic Safety Administration, or 
NHTSA, to increase CAFE standards as fast as technology becomes 
available. It is a scientific test based on science, not politics.
  We must recognize at the beginning that the Durbin amendment costs 
lives, costs U.S. jobs, and deprives consumers of their basic free will 
to choose the vehicle that best fits their needs and the needs of their 
families. Neither the lives of drivers or passengers on our Nation's 
highways nor the livelihood of autoworkers and their families should be 
placed in jeopardy so Congress can arbitrarily increase infeasible and 
scientifically unjustified standards for fuel efficiency.
  Any fuel efficiency standard that is administered poorly, without a 
sound scientific analysis, will have a damaging impact on automobile 
plants, suppliers, and the fine men and women who build these vehicles.
  There have been many arguments that a large increase in CAFE 
standards is needed to pressure automakers to invest in new 
technologies which will consistently increase automobile fuel 
efficiency. Automobile manufacturers already utilize advanced 
technology programs to ensure the improvement of fuel efficiency, the 
reduction of emissions and driver and passenger safety, and they are 
being pushed to do so by NHTSA regulations. Auto manufacturers are 
constantly investing capital in advanced technology research by the 
integration of new

[[Page 14018]]

products, such as hybrid electric and alternative fuel vehicles and 
higher fuel efficiency vehicles. So far, the auto industry has invested 
billions of dollars in developing and promoting these new technologies. 
Diverting resources from further investments in these programs in favor 
of arbitrarily higher CAFE standards would place a stranglehold on the 
technological breakthroughs which are already taking place.
  Alternative fuels, such as biodiesel, ethanol, and natural gas, have 
continuously been developed to service a wide variety of vehicles. The 
automotive industry continues to utilize breakthrough technology which 
focuses on the development of advanced applied science to produce more 
fuel-efficient vehicles, while at the same time producing innovative 
safety attributes for these vehicles.
  Furthermore, modifications need time to be implemented. According to 
the National Academy of Sciences:

       Any policy that is implemented too aggressively (that is, 
     too much in too short a period of time) has the potential to 
     adversely affect manufacturers, suppliers, employees and 
     consumers.

  The NAS further found that no car or truck can be prepared to reach 
the 40 miles per gallon or 27.5-mile-per-gallon level required for 
fleets within 15 years. The Durbin amendment would require it in 11. 
That makes it clear that if we try to shove unattainable standards down 
the throats of automakers, the workers and the companies, we will have 
a problem.
  What will we have achieved by doing so? There is the false perception 
that the Federal Government has done nothing to address CAFE standards. 
Nothing could be further from the truth. On April 3, 2003, NHTSA set 
new standards for light trucks for the model years 2005 through 2007. 
These standards are 21 miles per gallon this year; 21.6 next year; and 
22.2 the following year. This 1\1/2\-mile-per-gallon increase during 
this 3-year-period more than doubles the last increase in light truck 
CAFE standards that occurred between 1986 and 1996. This recent 
increase is the highest in 20 years.
  In addition, by April 1 next year, NHTSA will publish new light truck 
CAFE standards for model year 2008 and possibly beyond. Most 
stakeholders expect a further increase in CAFE standards for these 
years as well.
  It is important to understand that NHTSA is doing this, utilizing 
scientific analysis as a basis for these increases. We must proceed 
with caution because higher fuel economy standards, based on emotion or 
political rhetoric, not sound science, can strike a major blow to the 
economy, the automobile industry, auto industry jobs, and our Nation. 
Highway safety and consumer choice will also be at risk.
  Letting NHTSA promulgate standards is the appropriate way to do it, 
and that is what almost two-thirds of the Members of this body decided 
when we brought the last Levin-Bond amendment before us.
  In an April 21 letter this year, Dr. Jeff Runge, Director of NHTSA, 
said:

       The Administration supports the goal of improving vehicle 
     fuel economy while protecting passenger safety and jobs. To 
     this end, we believe that future fuel economy must be based 
     on data and sound science.

  Those advocating arbitrary increases may try to avert any discussion 
of the impact on jobs or dismiss the argument. However, I have heard 
from a broad array of union officials, plant managers, local automobile 
dealers and small businesses who have told me that unrealistic CAFE 
standards cut jobs because the only way for manufacturers to meet these 
numbers is to make significant cuts to light truck, minivan and SUV 
production. But these are the same vehicles that Americans continue to 
demand and American workers produce.
  On June 17, this month, I received a letter from the UAW regarding 
CAFE amendments, such as the Durbin amendment, which speaks volumes 
about the detrimental impact that further CAFE increases could have on 
the automotive industry. The letter states that:

     the UAW continues to strongly oppose these amendments because 
     we believe the increases in CAFE standards are excessive and 
     discriminatory, and would directly threaten thousands of jobs 
     for UAW members and other workers in this country.

  It further states:

       In light of the economic difficulties currently facing GM 
     and Ford, the UAW believes it would be a profound mistake to 
     require them now to shoulder the additional economic burdens 
     associated with extreme, discriminatory CAFE standards. This 
     could have an adverse impact on the financial condition of 
     these companies, further jeopardizing production and 
     employment for thousands of workers throughout this country.

  However, the UAW does strongly support the newly introduced Bond-
Levin amendment requiring NHTSA to continue the rulemaking efforts to 
issue new fuel economy standards for cars and light trucks, based on a 
wide range of factors such as technological feasibility and the impact 
of CAFE standards. I ask unanimous consent that the letters be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         International Union, United Automobile, Aerospace, & 
           Agricultural Implement Workers of America--UAW
                                    Washington, DC, June 17, 2005.
       Dear Senator: Next week the Senate is scheduled to continue 
     debate on the comprehensive energy legislation. At that time, 
     the Senate may consider a number of amendments relating to 
     Corporate Average Fuel Economy (CAFE) standards.
       The UAW strongly supports the Levin-Bond amendment which 
     would require the Department of Transportation to engage in 
     rulemaking to issue new fuel economy standards for both cars 
     and light trucks, taking into consideration a wide range of 
     factors, including technology, safety, and the impact on 
     employment. This amendment is similar to the Levin-Bond 
     amendment that was approved by the Senate in the last 
     Congress. The UAW supports the approach contained in this 
     amendment because we believe it can lead to a significant 
     improvement in fuel economy, without jeopardizing the jobs of 
     American automotive workers.
       The UAW understands that Senators McCain, Feinstein or 
     Durbin may offer amendments that I would mandate huge 
     increases in the CAFE standards. These amendments are similar 
     to proposals that have been considered and rejected 
     decisively by the Senate in previous Congresses. The UAW 
     continues to strongly oppose these amendments because we 
     believe the increases in the CAFE standards are excessive and 
     discriminatory, and would directly threaten thousands of jobs 
     for UAW members and other workers in this country. In our 
     judgment, fuel economy increases of the magnitude proposed in 
     these amendments are neither technologically or economically 
     feasible. The study conducted by the National Academy of 
     Sciences does not support such increases. The UAW is 
     particularly concerned that the structure of these proposed 
     fuel economy increases--a flat mpg requirement for cars and/
     or light trucks--would severely discriminate against full 
     line producers, such as GM, Ford and DaimlerChrysler, because 
     their product mix contains a higher percentage of larger cars 
     and light trucks. This could result in severe disruptions in 
     their production, and directly threaten the jobs of thousands 
     of UAW members.
       Furthermore, in light of the economic difficulties 
     currently facing GM and Ford, the UAW believes it would be a 
     profound mistake to require them now to shoulder the 
     additional economic burdens associated with extreme, 
     discriminatory CAFE increases. This could have an adverse 
     impact on the financial condition of these companies, further 
     jeopardizing production and employment for thousands of 
     workers throughout this country.
       The UAW continues to believe that improvements in fuel 
     economy are achievable over time. But we believe that the 
     best way to achieve this objective is to provide tax 
     incentives for domestic production and sales of advanced 
     technology (hybrid and diesel) vehicles, and to direct the 
     Department of Transportation to continue promulgating new 
     fuel economy standards that are economically and 
     technologically feasible.
       Thank you for considering our views on these important 
     issues.
           Sincerely,
                                                     Alan Reuther,
     Legislative Director.
                                  ____

                                                    June 16, 2005.
     Hon. Bill Frist,
     Senate Majority Leader,
     Washington, DC.
       Dear Majority Leader Frist: The U.S. Senate is in the 
     process of considering various energy-related provisions and 
     amendments to the comprehensive energy bill which passed the 
     Committee on Energy and Natural Resources earlier this month. 
     It has come to our attention that amendments may be 
     forthcoming calling for increases to the Corporate Average 
     Fuel Economy (CAFE) standards including light trucks. The 
     Committee on Energy and Natural Resources defeated similar 
     amendments, in a bipartisan

[[Page 14019]]

     way. The organizations listed below strongly oppose any 
     increase in CAFE standards.
       Our opposition is based on concerns that such a federal 
     mandate will have a negative impact on consumers and 
     translate directly into a narrower choice of vehicles for 
     America's farmers and ranchers, who depend on affordable and 
     functional light trucks to perform the daily rigors of farm 
     and ranch work. Our groups cannot support standards that 
     increase the purchase price of trucks, while decreasing 
     horsepower, towing capacity, and torque. In addition, recent 
     studies indicate that an aggressive increase in the CAFE; 
     standard for light trucks could add over $3,000.00 in the 
     purchase price per vehicle. This would result in yet another 
     added production cost for U.S. farmers and ranchers that 
     cannot be passed on when selling farm commodities.
       On behalf of farm and ranch families across the country who 
     rely on affordable light trucks and similar vehicles for 
     farming and transportation needs, we urge you to oppose any 
     amendments calling for an increase in CAFE standards as well 
     as any amendment which will have the effect of increasing 
     those standards.
           Sincerely,
     National Cattlemen's Beef Association,
     American Farm Bureau Federation,
     Agricultural Retailers Association,
     National Corn Growers Association,
     The Fertilizer Institute,
     National Milk Producers Federation,
     National Grange,
     American Soybean Association.
                                  ____

                                                     May 13, 2005.
     Hon. Pete Domenici,
     Chairman, Senate Energy and Natural Resources Committee, 
         Washington, DC.
       Dear Chairman Domenici: The Senate Energy and Natural 
     Resources Committee will soon consider various energy-related 
     provisions and amendments to the comprehensive energy bill 
     which passed the U.S. House of Representatives a few weeks 
     ago. It has come to our attention that amendments may be 
     forthcoming calling for increases to the Corporate Average 
     Fuel Economy (CAFE) standards including light trucks. The 
     organizations listed below strongly oppose any increase in 
     CAFE standards.
       Our opposition is based on concerns that such a federal 
     mandate will have a negative impact on consumers and 
     translate directly into a narrower choice of vehicles for 
     America's farmers and ranchers, who depend on affordable and 
     functional light trucks to perform the daily rigors of farm 
     and ranch work. Our groups cannot support standards that 
     increase the purchase price of trucks, while decreasing 
     horsepower, towing capacity, and torque. In addition, recent 
     studies indicate that an aggressive increase in the CAFE 
     standard for light trucks could add over $3,000.00 in the 
     purchase price per vehicle. This would result in yet another 
     added production cost for U.S. farmers and ranchers that 
     cannot be passed on when selling farm commodities.
       On behalf of farm and ranch families across the country who 
     rely on affordable light trucks and similar vehicles for 
     farming and transportation needs, we urge you to oppose any 
     amendments calling for an increase in CAFE standards.
           Sincerely,
         National Cattlemen's Beef Association, Public Lands 
           Council, The Fertilizer Institute, National Corn 
           Growers Association, National Grange, American Farm 
           Bureau Federation, Agricultural Retailers Association, 
           National Milk Producers Federation, National 
           Association of Wheat Growers.

  Mr. BOND. This is very important to know because 1 out of every 10 
jobs in our country is dependent on new vehicle production and sales. 
The auto industry is responsible for 13.3 million jobs, or 10 percent 
of private sector jobs. Auto manufacturing contributes $243 billion to 
the private sector, over 5.6 percent of the private sector 
compensation. Every State in the Union is an auto State. Let us take a 
look at that chart. The occupant of the chair is from North Carolina. 
That has 158,000. The State of Illinois has 311,000. My State has 
221,000. The State of Michigan has 1,007,500.
  I have heard it said that we should not worry about these jobs. The 
proponents of the amendment to increase it say that it is not going to 
do any harm.
  But if you adopt this amendment you can kiss tens of thousands of 
good, high-paying, American, union manufacturing jobs goodbye. I am not 
willing to do that to the 36,000 men and women working directly in the 
automotive industry, nor to the over 200,000 men and women who work in 
auto-dependent jobs in my State.
  But it is not just jobs. It is safety. According to the National 
Academy of Sciences:

       Without a thoughtful restructuring of the program . . . 
     additional traffic fatalities would be the tradeoff if CAFE 
     standards are increased by any significant amount.

  You see, we have learned in the past that when you have politically 
inspired CAFE increases which cannot be achieved with technological 
means, the only way of achieving them is by making the cars lighter, 
1,000 pounds to 2,000 pounds lighter.
  Do you know what. More people die in those smaller cars than in the 
full-size cars that they replace. Since it began, we are running about 
1,500 deaths a year. In August of 2001, the NAS issued a report which 
found that between 1,300 to 2,600 people in 1993 alone were killed in 
these smaller automobiles. It is not just smaller automobiles hitting 
larger automobiles--43 percent of those deaths were in single-car 
accidents.
  My colleague from Illinois has suggested we disregard these 
statistics as estimates. These are not estimates, these are dead 
people. These are people who died from politically inspired CAFE. That 
is what we are talking about. Excessive CAFE standards pressure 
automobile manufactures to reduce the weight for light trucks, 
completely do away with larger trucks used for farming and other 
commercial purposes.
  My colleague from Illinois mentioned golf carts--yes, golf carts 
would comply. But certainly the pickup trucks that a lot of farmers in 
my State drive would not make it.
  If an increase in fuel economy is brought about by encouraging 
downsizing, weight reduction, or more small cars, it will cause 
additional traffic fatalities. The notion that people's lives and 
safety are hanging in the balance because of unwarranted CAFE increases 
should cause all of us some concern. The ability to have a choice of 
the vehicle assures the safety of one's family. It should not be a 
sacrifice that must be made in favor of arbitrary fuel efficiency 
standards.
  I don't want to tell the people in my State or any other State they 
are not allowed to purchase an SUV because Congress decided it would 
not be a good choice. That sounds like the command and control economy 
of the Soviet Union.
  Another very important point is the impact of increased CAFE 
standards on consumer choice and affordability. Despite the record high 
cost of gasoline sales, light truck sales have continued to skyrocket. 
In the past 25 years, sales of light trucks have almost tripled. In 
March of 2005, full-size pickup trucks occupied three of the top five 
sales positions, including the No. 1 and 2 spots. From these numbers 
and from these charts it is obvious that consumers consistently favor 
safety, utility, performance, and other characteristics over fuel 
economy. The only way to stop sales of these vehicles would be to enact 
Soviet-style mandates, declaring that auto manufacturers could no 
longer produce light trucks and SUVs, and consumers could no longer buy 
them.
  Some people in this body apparently believe our fellow Americans 
cannot be trusted to make the right choice when purchasing a vehicle. 
As far as I am concerned, when you get down to having the Government 
making the choice or the consumer making the choice, I am with the 
consumer.
  Just how arbitrary would these CAFE cost increases be to consumers? 
The CBO last found that raising fuel standards for cars and trucks by 4 
miles per gallon could cost consumers as much as $3.6 billion.
  I also have a copy of a recent letter that was sent to Chairman 
Domenici and Majority Leader Frist from a consortium of agricultural 
organizations which states that ``recent studies indicate that an 
aggressive increase in CAFE standards for light trucks could add over 
$3,000 to the purchase price per vehicle. It is signed by the National 
Cattlemen's Association, the National Corn Growers, the American Farm 
Bureau, National Milk Producers and the

[[Page 14020]]

National Association of Wheat Growers among others. They oppose these 
arbitrary increases because they believe they will have a negative 
impact on consumers, and translate directly into a narrower choice of 
vehicles for America's farmers and Ranchers, who depend on affordable 
and functional light trucks to perform the I daily rigors of farm and 
ranch work. I submitted this letter for the Record.
  Finally, I must to dispel the myth that CAFE increases reduce our 
Nation's dependence on foreign oil. According to the American 
International Automobile Dealers:

       Despite the claims of CAFE advocates, experience shows that 
     CAFE does not result in the reduction of oil imports. The 
     import share of U.S. oil consumption was 35% in 1974. Since 
     that time, new car fuel economy has doubled but our oil 
     imports share has climbed to almost 60%.

  In that 30 year time frame, the consumption of gasoline has increased 
and not decreased. The bottom line is that after 30 years of CAFE 
standards, our nation is more dependent on foreign oil than ever 
before.
  I believe that there are other better ways to reduce our Nation's 
dependence on foreign oil than massive increases in CAFE standards. 
These include promoting the development and use of alternative fuels 
such as ethanol, bio-diesel and natural gas. We should pass legislation 
that encourages the development of advance fuel technology such as 
hybrid and fuel cell vehicles that utilize hydrogen and other sources 
of energy. We should also focus on increasing domestic supplies I of 
energy that include oil and natural gas.
  We must talk about what is technologically feasible and what will 
produce better fuel economy, while continuing to preserve and produce 
jobs, and not risk the lives of drivers and their families on our 
nation's roads. We must continue to ensure the safety for parents and 
their children, and we must not throw out of work the wonderful 
American men and women who are making these automobiles in my state and 
across the entire nation.
  In light of this, Senator Levin and I have reintroduced an amendment 
that was `` adopted by the Senate in the previous two Congresses, which 
maintains the authority of the National Highway Traffic Safety 
Administration--subject to public comment--to determine passenger auto 
standards based upon the ``maximum feasible'' level. Under the Bond-
Levin Amendment, determinations to this feasibility level include the 
following factors:
  No. 1. Technological feasibility;
  No. 2. Economic Practicability;
  No. 3. The effect of other government motor vehicle standards on fuel 
economy;
  No. 4. The need of the nation to conserve energy;
  No. 5. The desirability of reducing U.S. dependency on foreign oil;
  No. 6. The effects of fuel economy standards on motor vehicle safety, 
and passenger safety;
  No. 7. The effects of increased fuel economy on air quality;
  No. 8. The adverse effects of increased CAFE standards on the 
competitiveness of U.S. manufacturers;
  No. 9. The effects of CAFE Standards on U.S. employment;
  No. 10. The cost and lead time required for the introductions of new 
technologies; and
  No. 11. The potential for advanced hybrid and fuel cell technologies.
  Every factor, which I have just mentioned, must play a major role in 
the consideration of setting future fuel efficiency standards for 
vehicles. The Bond-Levin amendment provides for these impacts and 
leaves it to the experts at NHTSA to develop viable standards based on 
this criteria and sound scientific analysis.
  The Bond-Levin amendment also extends the flexible fuel or ``duel 
fuel'' credit to continue to provide incentives for automakers to 
produce vehicles that are capable of running on alternative fuels such 
as ethanol/gasoline blends. So far these incentives have been 
successful in putting more than 4 million alternative fuel vehicles on 
our nation's roads. This will be another positive step in helping our 
Nation reduce its dependence on foreign oil.
  Again, this debate is about safety, jobs, consumer choice and sound 
scientific analysis.
  I urge my colleagues to oppose the arbitrary and unscientific Durbin 
amendment, and to support the Levin-Bond 2nd degree amendment.
  I yield to my colleague from Michigan--how much time does he want?
  The PRESIDING OFFICER. The Senator from Missouri has 24\1/2\ minutes.
  Mr. LEVIN. Is the time combined on the two amendments?
  The PRESIDING OFFICER. The Senator from Illinois has 17 minutes 
remaining.
  Mr. LEVIN. That is on both amendments combined?
  The PRESIDING OFFICER. That is correct.
  Mr. BOND. I yield 15 minutes to the Senator from Michigan.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Mr. President, first let me thank Senator Bond for his 
work on this amendment, which offers an alternative, a rational 
alternative. This alternative would allow the agency that is the expert 
to weigh all the factors that should go into a rulemaking and to raise 
CAFE standards in a logical and rational and scientific way rather than 
a totally arbitrary way, which is what the Durbin amendment does.
  Of course, we want to raise CAFE standards. We want to do it in a way 
that protects the environment and protects jobs in America. But we do 
not want to do it in a way that will not protect the environment and 
will destroy jobs in America at the same time.
  We need to improve fuel economy, but how we increase it is critical. 
That is the main point I am going to make. You need to do it, but how 
we do it is critical. The question is whether we are going to do it 
through a rulemaking on the part of an agency looking at all the 
relevant factors, and I am going to list them in a moment or whether we 
are going to just pick a number out of the air. The number of the 
Senator from Illinois is 40--just go to 40 miles per gallon on the 
fleet and at the same time, by the way, just add trucks to the car 
fleet for the first time. It is not just cars now that have to get to 
40 miles per gallon under the proposal of the Senator, but we add 
minivans and sport utility vehicles to that fleet--and it is done 
arbitrarily. It is not based on the considerations that a rational 
agency should bring to bear on rulemaking, which is what NHTSA is there 
for.
  Instead we are going to 40 miles per gallon for the whole fleet. We 
are throwing trucks into the car fleet to boot. It is a triple whammy 
to American jobs in the Durbin amendment. The first whammy is that the 
numbers that he picks are total arbitrary numbers: 40 miles per gallon, 
and he adds two of the three types of light trucks to the car fleet.
  Rather than legislating an arbitrary number, what the Bond-Levin 
amendment does is to tell NHTSA to take a number of important 
considerations into account when setting the level of the standard. 
Here are the 13 factors that we tell NHTSA to consider. We think we 
have found and identified every rational standard or criterion which 
they ought to look at in setting this number.
  First, maximum technological feasibility.
  Second, economic practicability.
  Third, the effect of other Government motor vehicle standards on fuel 
economy--because we have other standards, in terms of clean air and 
emissions, which bear on fuel economy. Someone, NHTSA, should take that 
into account.
  Fourth, the need to conserve energy.
  Fifth, the desirability of reducing U.S. dependence on foreign oil.
  Next, the effect on motor vehicle safety. This is a point which 
Senator Bond has made, which the National Academy of Sciences has 
commented on.
  Next, the effects of increased fuel economy on air quality.
  Next, the adverse effects of increased fuel economy standards on the 
relative competitiveness of manufacturers.
  Next, the effect on U.S. employment.
  Next, the cost in lead time required for introduction of new 
technologies.

[[Page 14021]]

  Next, the potential for advanced technology vehicles, such as hybrid 
and fuel cell vehicles, to contribute to significant fuel usage 
savings.
  Next, the effect of near-term expenditures required to meet increased 
fuel economy standards on the resources available to develop advanced 
technologies.
  Finally, to take into account the report of the National Research 
Council entitled ``Effectiveness and Impact of Corporate Average Fuel 
Economy Standards.''
  Those are 13 factors that ought to be considered in a rulemaking, 
instead of just an arbitrary seizure on a number that is then put into 
law and imposed on everybody arbitrarily.
  The Durbin amendment, in addition to adopting an arbitrary number, 
worsens the discriminatory features of the existing CAFE system because 
there are inherent discriminatory features in that system that give an 
unfair competitive advantage to foreign automotive manufacturers while 
not benefiting the environment. The reason for this is a bit 
complicated. I hope every Member of this body will look very hard at 
the CAFE system and not just look at the amendments that are before us, 
but also look at the situation we have where CAFE already gives a 
discriminatory boost to imported vehicles. The CAFE system gives this 
boost, not because the vehicles are more efficient--because they are 
not. The same size imported vehicles have about the same fuel economy 
as the same size domestic vehicles.
  I want to give some examples. There is no difference in terms of fuel 
economy. But the CAFE system, because of the way it has been designed, 
gives a discriminatory boost to imports because the domestic 
manufacturers provide a full line of different sized vehicles, which 
results in a lower fleet average.
  Let's just take four vehicles. This is a comparison of vehicle fuel 
economy, pound per pound. We are looking at vehicles of the same size.
  Here is an example of a large SUV. The Chevrolet Suburban weighs 
6,000 pounds. The Toyota Sequoia weighs 5,500 pounds. So the Sequoia, 
in this case, is actually lighter than the Suburban. But the Sequoia, 
Toyota, is less fuel efficient--although it is slightly lighter--than 
the Chevrolet Suburban.
  The Jeep Liberty, 19 miles per gallon; the Toyota 4Runner, slightly 
less fuel efficient, although they are the same weight, 4,500 pounds.
  The example of a large pickup truck, the Chevrolet Silverado gets 18 
miles per gallon, the Toyota Tundra gets 17 miles per gallon. They both 
weigh the same amount, 4,750 pounds. The Toyota Tundra, slightly less 
fuel efficient than the Chevrolet Silverado.
  The Chevrolet Venture and the Toyota Sienna both weigh exactly the 
same, 4,250 pounds. The Chevrolet Venture is slightly more fuel 
efficient than the Toyota Sienna.
  The point of this is to try to bring to bear the fact that, when you 
have vehicles of about the same weight, you have about the same fuel 
economy, in these cases slightly better fuel economy on the part of the 
Chevrolet and the Jeep, than we do the Toyota.
  You never get that impression from the charts that we see from the 
Senator from Illinois. That is not the impression that you get. He says 
that Toyota does everything more efficiently, they do all the hybrids. 
We, on the other hand, do all the big vehicles.
  We do not make all the big vehicles. As a matter of fact, the growth 
in the sale of Toyotas and Hondas, when it comes to light trucks 
primarily pick up trucks and SUVs is dramatically greater than anything 
they are doing in the area of hybrids. Their hybrid sales are a peanut 
compared to the growth in light truck sales. Hybrids represent 1 
percent of the market, but when you look at the light truck sales on 
the part of Toyota and Honda, there are dramatic increases in numbers 
of sales of those vehicles. That is not because they are more fuel 
efficient, they are not. In some cases, they are slightly less. Let's 
assume they are the same. The sale of those light trucks has nothing to 
do with their fuel efficiency. It has to do with legacy costs, but I am 
not going to get into that at this point.
  So we have a situation where, because of the CAFE system, which is 
designed to look at the entire fleet average, because the imports have 
traditionally had a lot smaller vehicles--smaller trucks and SUVs in 
their fleet, they have a lot more ``headroom'' to sell all the light 
trucks they want without being penalized under the CAFE system.
  It doesn't do the environment one bit of good to tell people you can 
buy a Toyota Tundra but not a Chevrolet Silverado. But that is what the 
CAFE system does.
  That is what the CAFE system does. Toyota has ``headroom''--and I 
will give you the numbers in a moment--to sell huge additional numbers 
of their vehicles but a company like GM does not. That does nothing for 
the environment. Quite the opposite, it slightly hurts the environment. 
But call it a draw. It does nothing for the environment, and it damages 
American jobs. That is an inherent defect in the CAFE system. The 
Durbin amendment exacerbates that defect because it builds into the 
system an even larger number that must be met.
  By the way, these are the numbers I said a moment ago. This is the 
headroom, the additional sale of large pickups or SUVs allowed under 
CAFE. Toyota can sell an additional 1.8 million vehicles and still meet 
the CAFE standard. Honda can sell an additional 2.6 million vehicles 
and still meet the CAFE standard. But GM cannot sell any additional 
vehicles. But that is not because the Toyota and Honda vehicles are 
more fuel efficient. I cannot say that enough times. It is not because 
they are more fuel efficient. They are not more fuel efficient. At 
best, they are even.
  What good does it do to tell folks: You can buy a Tundra but not a 
Silverado? Why are we doing that to ourselves? It is not for the 
environment because it is no more environmentally friendly. Why are we 
doing that to ourselves? Why are we doing that to American jobs?
  The growth in sales of the imported vehicles is dramatic. It 
overwhelms the numbers of hybrids being sold. My dear friend from 
Illinois shows on his chart hybrid sales of something like 35,000. 
Meanwhile, Toyota's truck sales include 700,000 pickup trucks and SUVs 
this year. The impression of my colleague's chart is, look at all of 
the hybrids they are selling. But this is a peanut compared to the 
number of large trucks they are selling. So do not say the Big 3 are 
selling all the large vehicles and let everyone else off the hook. They 
are all selling a lot more large trucks than they are hybrids.
  Mr. BIDEN. Will the Senator yield?
  Mr. LEVIN. I am happy to yield.
  Mr. BIDEN. Why don't we change the standard, the CAFE standard? Why 
is no one recommending that? Why don't we say that every vehicle, based 
on weight, no matter where it is made, must meet the same exact 
standard? Why don't we do that?
  Mr. LEVIN. It could be done. And NHTSA has a right to do that under 
our bill if it is logical to do that. But we should not set the number. 
We could say to NHTSA, and it is a perfectly logical argument, it seems 
to me that you should have the same mile per gallon standard for the 
same size vehicle. That is a logical argument. But that is not what is 
in this amendment. This builds on a defective system and makes it 
worse.
  Mr. BIDEN. If the Senator will yield, I have trouble with the 
amendment of the Senator from Illinois, but I also have trouble with 
the amendment of the Senator from Michigan. It seems to me we have a 
problem, a big problem. I don't think we can meet the standard of the 
Senator from Illinois in time, and I think it would damage American 
jobs significantly.
  But I don't understand why we do not bite the bullet and say, whether 
NHTSA does it or not, you can't drive a Toyota that gets less miles 
than a Dodge Durango or an American-made car because you have a fleet 
average.
  The PRESIDING OFFICER. The Senator from Michigan should be advised 
his time has expired.
  Mr. DURBIN. Mr. President, how much time is remaining on each side?

[[Page 14022]]

  The PRESIDING OFFICER. The Senator from Illinois has 17 minutes; the 
Senator from Missouri has 9 minutes 20 seconds.
  Mr. DURBIN. I will speak for a few minutes and yield to my colleague 
and friend from Missouri.
  To the Senator from Delaware, I am talking fleet average. That 
applies to German, Japanese, American cars--to all cars. The argument, 
buy a Toyota Tundra, do not buy a Chevrolet Silverado that is not true. 
This is not a standard for American-made cars but a standard for cars 
sold in America from wherever they are manufactured.
  Yes, the rules will apply to American manufacturers the same as they 
apply to others. Don't we want that? Isn't our goal to reduce the 
consumption of oil in America and our dependence on foreign oil? I no 
more stand here and put a discriminatory amendment up for American 
manufacturers and workers and say, You have to play to a higher 
standard than Japanese, German, Swedish, or whatever the source might 
be of the other car. This is a fleet average. It does not mean that 
every car has to meet this average. It is an average, which means there 
will be larger cars and larger trucks that will get lower mileage, but 
there must be more fuel-efficient cars that bring it to an average 
number.
  Let me also talk about the unrealism of my proposal. For the record, 
increasing the fuel efficiency of passenger cars by 12\1/2\ miles per 
gallon over the next 11 years, the argument that it is beyond us, 
Americans cannot imagine how we would do such a thing--NHTSA has 
required that trucks in our country increase their fuel efficiency by 
2.2 miles a gallon over 2 years. So they are improving by more than a 
mile a gallon over 2 years. My standard for all is 12\1/2\ miles over 
11 years. Why is this such a huge technological leap? I don't think it 
is.
  I yield for a short question on a limited time.
  Mr. BIDEN. I truly am confused. I don't doubt what the Senator says. 
I don't fully understand it.
  It is a fleet average. Toyota makes an automobile--I am making this 
up--that gets 60 miles per gallon when people drive around in Tokyo 
that they will not sell here at all in order that they can make a giant 
Toyota truck that gets poorer mileage or as poor mileage as our truck, 
and they get to sell it here because they have averaged out their 
fleet.
  My question is, Why don't we just say, based on the weights of these 
vehicles, everybody has to meet the same standard, not an average, 
because people are not buying two-seater 60-mile-per-gallon vehicles 
here as they are in Europe where it is $4 a gallon. That is my 
question.
  Mr. DURBIN. Let me say to the Senator from Delaware, if that is the 
loophole, I want to close it.
  Mr. BIDEN. I think it is.
  Mr. DURBIN. I am concerned about what is sold in America. I am 
concerned about the oil that is consumed in America and the gasoline 
consumed in America. I don't care if Toyota makes a car that is sold in 
Australia and what the mileage might be. That is their concern.
  For us to take the attitude or approach that we are not even going to 
hold the manufacturer to any higher standards with fuel efficiency in 
my mind is a concession that we will be dependent on foreign oil for as 
long as we can imagine.
  The Senator from Missouri says I am engaged in a ``Soviet survival'' 
approach to the economy. I will just tell him that I don't believe it 
was a Soviet-style approach which enacted CAFE in the first instance 
and resulted in such a dramatic decline in our dependence on foreign 
oil.
  As to the argument that this kills jobs, the idea this kills jobs, I 
ask unanimous consent to have printed in the Record a letter of 
endorsement from the Transport Workers Union of America. Here is one 
union that supports it.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Transport Workers Union


                                                   of America,

                                    Washington, DC, June 16, 2005.
       Dear Senator: On behalf of the 130,000 members of the 
     Transport Workers Union and transit and rail workers 
     everywhere, we urge you to vote for the Durbin CAFE amendment 
     to the pending energy bill to raise fuel economy standards.
       The amendment requires all car companies in America--both 
     domestic and foreign--to increase average fuel efficiency. 
     This is achievable with current technology and so clearly in 
     the national interest that it is difficult to understand how 
     anyone could oppose it:
       (1) National Security--in an era when the United States is 
     under attack from foreign fanatics, it is of critical 
     importance to reduce our dependence on foreign oil imports, 
     most especially when those imports support and subsidize 
     those very nations which are the source of these attacks.
       (2) Air Pollution--Opponents of environmental measures are 
     fond of citing the need for established, proven science. 
     There is no dispute that auto emissions are one of the major 
     sources of air pollution in the modern era.
       (3) Reducing Health Costs--Auto emissions are a major cause 
     of asthma and other respiratory diseases and a major 
     contributor to the rising health care costs in America. These 
     costs are, in turn, a major factor in the difficulty American 
     manufacturers have in competing with foreign manufacturers.
       It would be disingenuous to pretend that the members of the 
     Transport Workers Union do not have a major stake in reducing 
     the costs to the U.S. economy--accidents, death, healthcare, 
     pollution cleanup, and enforcement--of automobile use. 
     Certainly anything that would stop the extreme subsidizing of 
     auto use in America and allow the marketplace to drive 
     consumers to the most efficient use of transportation 
     resources would increase jobs for the rail and transit 
     workers we represent.
       But that is an important point. Tightening auto fuel 
     efficiency standards would not, as some argue, reduce 
     American jobs. It would simply transfer them from one 
     industry to another--to an industry which is not only highly 
     unionized and highly compensated, but which promotes the 
     national interest of security, a clean environment and lower 
     health care costs.
       We urge you to vote for the Durbin fuel economy amendment 
     to the energy bill.
           Sincerely,

                                                  Roger Tauss,

                                             Legislative Director,
                                          Transport Workers Union.

  Mr. DURBIN. And I might also say the National Environmental Trust 
says that by 2020, nearly 15,000 more U.S. autoworkers would have jobs 
because of a higher fuel efficiency standard, a 14-percent increase in 
average annual growth in U.S. auto industry employment, an auto 
industry that is declining in terms of the people who are working 
there.
  In terms of the savings, the Senator from Missouri was troubled by 
the notion that American consumers would spend $3.6 billion for this 
new technology in these more fuel-efficient vehicles. What the Senator 
does not acknowledge is that by making that investment of $3.6 billion, 
under my amendment the savings in fuel to consumers will be over $110 
billion; $3.6 billion in new cars and trucks, $110 billion of savings 
to consumers.
  So would you get rid of an old gas guzzler to have a more fuel-
efficient engine if it meant a trip to the gasoline station did not 
require taking out a loan at a local bank? Of course you would. That is 
only smart and only sensible.
  Let me also say on the issue of safety, if you see the memo on safety 
on the vehicles involved, we know that we have the potential here of 
building vehicles that are safer and fuel efficient. We have statistics 
that relate to cars and trucks sold, but, in fairness, these are 
statistics in a period from 1994 and 1997. I will assume SUVs are a lot 
safer today.
  But if you think it is a given that an SUV is safer than a car, the 
Honda Civic, at 2,500 pounds, had a year death rate of 47 per million 
registered vehicle miles; a 5,500-pound vehicle--twice as large--four-
wheel-drive Chevy Suburban had a death rate of 53 per million 
registered vehicle miles. Other popular SUVs are even more lethal 
during that period: four-door Blazers, at 72 deaths per million; the 
shorter-wheel-base two-door Blazer had an appalling 153 deaths per 
million; the Explorer, 76; Jeep Grand Cherokee had 52; and of course, 
in fairness, Toyota 4Runner, a large SUV, 126 deaths per million.
  The notion that SUVs are automatically safer--we know the problems 
with rollovers, and we know that some of the difficulties with even the 
larger cars have to be reconciled. To assume

[[Page 14023]]

that a larger, bigger SUV is always safer is not proven by these 
numbers, these statistics.
  Let me also say what I propose would apply to Toyota and Honda SUVs 
sold in America as well. I honestly believe we should hold those to the 
same standard.
  Mr. BIDEN. Will the Senator yield?
  Mr. DURBIN. I am happy to yield.
  Mr. BIDEN. I have trouble explaining to my Chrysler workers when I 
want to raise the CAFE standard. They are not happy with me. I voted 
against it last time.
  My friend from Michigan, if you can drive a Toyota into that Chrysler 
parking lot that gets less mileage than the vehicle being made in that 
Chrysler plant under the way CAFE standards are set up, you would be 
able to do that because the fleet average means you can drive in a big 
old Toyota getting 16 miles to the gallon or 17 miles to the gallon, 
but you could not drive the Dodge Durango that gets 18 miles a gallon--
1 mile better--because the fleet average causes the Durango to be out 
of the ballpark.
  That is my problem with all of this. That is why I cannot vote for 
what the Senator is suggesting even though I agree with the thrust of 
what he is saying. That is why I have difficulty with my friend from 
Michigan. He solves that problem in a sense, but he does not solve the 
larger problem of kicking the requirements higher.
  I thank the Senator.
  Mr. DURBIN. How much time remains?
  The PRESIDING OFFICER. The Senator from Illinois has 8 minutes 40 
seconds.
  Mr. DURBIN. I also say about a Bond-Levin amendment that will be 
offered that it does not set goals for increased fuel economy for oil 
savings. That is unfortunate. It gives the decisionmaking over to the 
National Highway Traffic Safety Administration. They do not have a very 
good track record in holding the automobile maker selling in America to 
increased fuel efficiency.
  I like dual E85 vehicles. I think those are sensible. Sadly, at this 
point, there are very few places to turn to to buy the fuel.
  My colleague, Senator Obama, was talking about a tax treatment that 
would give incentives to set up these E85 stations. It was, 
unfortunately, not included in this bill. I think it should have been. 
Right now, there are precious few to turn to. Dual-fuel use is part of 
the Bond-Levin amendment, but it is a very rare occurrence where you 
can actually find the E85 fuel to put in your car. Plus, we find when 
they are dual-fuel use vehicles, which the Senators rely on a great 
deal for their savings, fewer than 1 percent of the people actually use 
the better fuel. They stick to the less fuel efficient source of energy 
for their car. They do not use the E85 fuel.
  Sadly, the Bond-Levin amendment will increase our 2015 oil 
consumption by almost as much as we currently import from Saudi Arabia. 
So no more fuel efficiency, a response to the problem which is not 
realistic and, unfortunately, even more dependent on foreign oil in the 
future.
  Mr. President, I reserve the remainder of my time.
  Mr. LEVIN. Mr. President, I wonder if the Senator from Missouri would 
yield 30 additional seconds to me to put a statement in the Record.
  Mr. BOND. I so yield, Mr. President.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, this is a National Academy of Sciences 
finding about the CAFE system that the Senator from Delaware made 
reference to. It states:

     . . . one concept of equity among manufacturers requires 
     equal treatment of equivalent vehicles made by different 
     manufacturers'' that is, ``equal treatment of equivalent 
     vehicles made by different manufacturers.''

  The NAS continues, ``The current CAFE standards fail this test.''
  That is what the Senator from Delaware was referring to.
  Mr. President, I ask unanimous consent that the full paragraphs from 
the National Academy of Sciences study be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           National Academy of Sciences Report on Cafe [2002]


         CAFE Discriminates Against the Domestic Auto Industry

       ``. . . one concept of equity among manufacturers requires 
     equal treatment of equivalent vehicles made by different 
     manufacturers. The current CAFE standards fail this test. If 
     one manufacturer was positioned in the market selling many 
     large passenger cars and thereby was just meeting the CAFE 
     standard, adding a 22-mpg car (below the 27.5-mpg standard) 
     would result in a financial penalty or would require 
     significant improvements in fuel economy for the remainder of 
     the passenger cars. But, if another manufacturer was selling 
     many small cars and was significantly exceeding the CAFE 
     standard, adding a 22-mpg vehicle would have no negative 
     consequences.'' (page 102)
       ``A policy decision to simply increase the standard for 
     light-duty trucks to the same level as for passenger cars 
     would operate in this inequitable manner. Some manufacturers 
     have concentrated their production in light-duty trucks while 
     others have concentrated production in passenger cars. But 
     since trucks tend to be heavier than cars and are more likely 
     to have attributes, such as four-wheel drive, that reduce 
     fuel economy, those manufacturers whose production was 
     concentrated in light-duty trucks would be financially 
     penalized relative to those manufactures whose production was 
     concentrated in cars. Such a policy decision would impose 
     unequal costs on otherwise similarly situated 
     manufacturers.'' (page 102)

  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Missouri.
  Mr. BOND. Mr. President, I thank my colleague from Michigan.
  I would say that, No. 1, NHTSA has said they will consider basing 
light-truck standards on vehicle weight or size, as the Senator from 
Delaware suggested. The Senator from Illinois was downplaying the CAFE 
increases by NHTSA, but he just talked about them. The difference 
between the 1.5-mile-per-gallon increase that NHTSA ordered for light 
trucks--and they did order it--and what he is proposing is that NHTSA's 
was based on science and technology.
  With that, Mr. President, I yield 4 minutes to my friend from 
Missouri.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. TALENT. Mr. President, I thank my friend for yielding me time.
  Mr. TALENT. Mr. President, Missouri is an auto State. Each year the 
hard-working employees of six assembly plants produce well over 1 
million cars and light trucks that are shipped around the country. In 
fact, we have 221,000 auto-related workers in Missouri. There are 6.6 
million autoworkers around the country. I raise the question: What 
happens to our automobile economy, what happens to the workers, what 
happens to the people who buy them, what happens to the people on the 
highways if suddenly our auto manufacturers are forced to make 
unreasonable changes in fuel economy standard?
  When enacted, CAFE established a 14.6-mpg level for combined car and 
light truck fuel economy. That level increased to 17.5-mpg in 1982 and 
to 20.7-mpg in 1996. Since the early 1970s, new vehicles have continued 
to become more fuel efficient. According to the EPA data, efficiency 
has increased steadily at nearly 2 percent per year on average from 
1975 to 2001 for both cars and trucks. Fuel economy rates in cars have 
more than doubled in the past generation, from 14.2 miles per gallon in 
1974 to more than 28.1 miles per gallon in 2000.
  Today's light truck gets better mileage than the compact cars from 
the 1970s. This bipartisan approach, offered by Senator Levin and the 
Senior Senator from Missouri, Kit Bond, increases fuel economy. It does 
it in a way that also allows the domestic manufacturing industry in our 
U.S. economy to thrive as well. The two are not mutually exclusive. We 
can accomplish both goals. If we rush to legislate higher CAFE 
standards it will have a negative effect on the American economy and on 
manufacturing jobs in America. If we do it wrong, we will not even 
benefit the environment the way we should.
  I drive a Ford, and I just toured the Ford Motor plant in Kansas 
City. I listened to the car manufacturers, the working men and women in 
the unions

[[Page 14024]]

who build the cars, and the other impacted groups, and the 
significantly higher CAFE standard creates a real possibility of 
costing thousands of Americans their jobs, including many of the 
221,000 auto-related workers in Missouri. The Ford F150 pickup truck is 
made in Kansas City. They estimated that an increase in CAFE standards 
to the 34-mpg that others are suggesting would raise the price of the 
truck by $3,000. That is a lot of money to a farmer or a construction 
worker considering a purchase. Adding $3,000 or more to the sticker 
price of a new SUV or truck hurts sales and it kills jobs. This 
compromise offered by Senators Bond and Levin is a reasonable measure 
that gives our U.S. automakers equal footing with their foreign 
counterparts. The adverse effects of an increased fuel economy standard 
will have a negative effect on the relative competitiveness of U.S. 
manufacturers.
  A higher fuel economy discriminates against the American auto 
industry. The American-manufactured vehicles, like those made in 
Missouri, are just as fuel efficient as the imports. However, they are 
put in a negative position, because of the CAFE structure--the fact 
that it looks at a fleetwide average rather than looking at class of 
vehicles compared to class of vehicles. Nothing is gained for the 
environment if an imported SUV is bought instead of an American-made 
SUV where the American SUV is at least as fuel efficient as the foreign 
SUV. Nothing is gained for the air, but a lot of American jobs are 
lost. This is the impact of a 36-mile-per-gallon combined car/truck 
standard on five manufacturers. Honda only has to increase theirs by 20 
percent; Toyota, 36 percent; GM, 51 percent; Ford, 56 percent; 
DaimlerChrysler, 59 percent.
  Instead of saying the same size vehicle will be subject to the same 
CAFE standard, the same mileage standard, it lumps together all 
vehicles of a manufacturer, and the results are, in my judgment, 
bizarre and costs huge numbers of American jobs without the benefit to 
the environment. While CAFE standards do not mandate that manufacturers 
make small cars, they have had a significant effect on the designs 
manufacturers adopt--generally, the weights of passenger vehicles have 
been falling. Producing smaller, lightweight vehicles that can perform 
satisfactorily using low-power, fuel-efficient engines is the most 
affordable way for automakers to meet the CAFE standards.
  The only way for U.S. automakers to meet the unrealistic numbers that 
others are proposing is to cut back significantly on the manufacturing 
of the light trucks, minivans, and SUVs that the American consumers 
want, that the people of my State and the people of the other States 
want--to carry their children around safely and conveniently, to do 
their business.
  Levin-Bond asks the Department of Transportation to consider 
rulemaking that would also consider the effect on U.S. employment, the 
effect on near-term expenditures that are required to meet increased 
fuel economy standards on the resources available to develop advanced 
technology. It puts in place a rational and science-based system of 
looking at many criteria which are relevant to the question of where 
the new standards for fuel economy ought to be instead of arbitrarily 
picking a number out of the air. CAFE should be addressed through a 
rational rulemaking process that is put in place by experts over a 
fixed period of time that then makes a decision on what the new 
standards should be. Politicians who don't fully understand the 
technologies involved should not arbitrarily set unattainable CAFE 
standards.
  As we struggle to get our economy moving again, we ought to be 
developing proposals that will increase the number of jobs--not 
eliminate them. We are debating this obscure theory of CAFE where 
foreign manufacturers are relatively unconstrained by CAFE because of a 
fleet mix, not because they are more fuel efficient class by class. For 
those who say, too bad, we must force the U.S. Big Three to build more 
fuel-efficient cars and trucks, do you know that under CAFE it doesn't 
matter what the companies manufacture and build? It is calculated based 
on what the consumer buys.
  Our auto manufacturers can produce vehicles that get 40 miles per 
gallon. Sure, they can. They can produce electric vehicles which even 
do better than that. The question is: Are there people who want to buy 
them? Light trucks today account for about 50 percent of GM sales, 60 
percent of Ford sales, and 73 percent of DaimlerChrysler sales. There 
are over 50 of these high economy models in the showrooms across 
America today. But guess what. They represent less than 2 percent of 
total sales. Americans don't want them. You can lead a horse to water; 
you can't make him drink. You can lead the American consumer to a whole 
range of lightweight, automobiles, but you can't make them buy them.
  Additionally, with the higher cost of new vehicles, farmers, 
construction workers and parents aren't going to afford the more 
expensive new light truck. More older, less efficient cars will stay on 
the road longer. How does that improve our air quality or reduce the 
need for imported oil?
  Let's put this debate in perspective. Support the American 
autoworker, support the American economy, support the Levin-Bond 
amendment and oppose the unreasonable proposal from Senator Durbin.
  Mr. President, I sure agree with what the Senator from Delaware was 
saying, and the Senator from Michigan, so I do not have to repeat it 
all. I want to make what I think are four brief points.
  Let me clarify, whether you meet CAFE standards does not depend on 
the cars you offer to sell. It depends on the cars that people actually 
buy. It is very important to remember that. That is the reason for the 
problem with the amendment of the Senator from Illinois that the 
Senator from Michigan and Senator Biden both mentioned.
  The Japanese have been effective in capturing more of the small-car 
market. American manufacturers have been more effective in capturing 
the SUV and truck market. Now, the Senator from Illinois says we missed 
a bet by going after the truck and SUV market. Well, the Japanese don't 
think so. The Senator from Michigan made the point, they have been 
going like a house afire to try to capture precisely that market. And 
the amendment of the Senator from Illinois would make it much easier 
for them to do it.
  The reason is, the trucks and the SUVs we sell now are general fleet. 
They tend to be big and, therefore, have somewhat lower mileage. So if 
the amendment of the Senator from Illinois were adopted, the Japanese 
manufacturers could continue to sell lower mileage bigger trucks and 
bigger SUVs and still comply with his standard under the CAFE laws. The 
result would be they would be able to capture the SUV and larger truck 
market.
  His amendment would not cause people to buy fewer large SUVs and 
trucks. It would cause them to buy fewer American SUVs and American 
trucks. That is the point the Senator from Michigan and my friend from 
Missouri have made.
  Now, the Senator from Illinois talks about monster SUVs. I have to 
comment, people do not buy SUVs or trucks because they have lower gas 
mileage. They buy them generally for reasons of safety or utility. We 
went through this in my family. We used to drive smaller cars. When we 
started having kids, my wife put her foot down and said: The car you 
have been driving would fold up like an accordion if you ever got in an 
accident. We have kids now. You have to get a bigger car. That is the 
first time we bought an SUV. That kind of decisionmaking goes on all 
over the United States.
  Let me close by commenting on some of what the Senator from Illinois 
said about our auto manufacturers. He was criticizing decisions they 
made and mentioning they are having difficult economic times. It is 
true that our auto manufacturers are going through some troubled times. 
Is that a reason to heap a new burden on them? It is true they have not 
been as effective as any of us would have liked in capturing the small-
car market. Is that a reason to take the larger truck market from them? 
It is true that America relies too much on overseas oil. Is that a 
reason to send our jobs overseas?

[[Page 14025]]

  We have an alternative in front of us that is going to encourage 
greater fuel economy: higher mileage automobiles. It is working. It is 
rational and logical, as the Senator from Michigan has said, rather 
than arbitrary. It is the Bond-Levin amendment.
  I urge the Senate to adopt that amendment and stay the course. It is 
working, and it will protect American jobs.
  I thank the Senate, Mr. President. I yield whatever time I have.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank my friend from Missouri.
  Mr. President, I ask unanimous consent that the Senator from 
Missouri, Mr. Talent, and the Senator from Kentucky, Mr. Bunning, be 
added as cosponsors to the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. Mr. President, I yield 2 minutes to the Senator from Ohio.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. VOINOVICH. President, as cochairman of the Senate Auto Caucus, I 
am pleased to join with my colleagues, Senator Bond and Senator Levin, 
as a cosponsor of this corporate average fuel economy standards 
amendment to the Energy bill. It is an important issue, and it impacts 
on the economy of our country, the environment, and the safety of the 
traveling public.
  There is no doubt that each of us wants the automobile industry to 
make cars, trucks, SUVs, and minivans that are energy efficient. It is 
not only good for the environment, but it means more money in the 
pockets of the American consumers because they are going to spend less 
money at the gas pump.
  However, I am deeply concerned that the artificial and arbitrarily 
chosen CAFE standard supported by some of my colleagues will have a 
devastating effect on jobs. Ohio is the No. 2 automotive manufacturing 
State in America, employing more than 630,000 people either directly or 
indirectly. I have heard from a number of these men and women whose 
livelihood depends on the auto industry and who are, frankly, very 
worried about their future.
  There is genuine concern that a provision mandating an arbitrary 
standard could cause a serious disruption and shifting in the auto 
industry resulting in the loss of tens of thousands of jobs across the 
Nation.
  Domestic automakers build the light trucks that consumers want. 
DaimlerChrysler's fleet of light trucks makes up more than 50 percent 
of their entire fleet. The company manufactures the Jeep Liberty and 
the Jeep Wrangler in Toledo, OH, and employs approximately 5,200 
workers at this plant. If an arbitrary CAFE provision is mandated that 
targets light trucks, this plant could close because Chrysler would be 
forced to redistribute their manufacturing base to build more small, 
high-mileage cars.
  The concern of auto workers was evident at the polls in Ohio last 
November. Voters rejected a candidate for President who had advocated 
an arbitrary standard that would have cost jobs and raised prices on 
the vehicles that consumers demand.
  Another concern is that an arbitrary standard would have a harmful 
effect on public safety, as well as put a severe crimp in the 
manufacturing base of my State of Ohio which is already under duress 
because of high natural gas costs, litigation, health care costs, and 
competition from overseas.
  In 2001, new vehicle sales of trucks, SUVs, and minivans outpaced the 
sale of automobiles for the first time in American history. This 
remarkable result can be attributed to a number of factors, but one 
reason that is often cited is the fact that these vehicles are seen as 
safer.
  On the other hand, the Bond-Levin amendment is a rational proposal 
based on sound science that will keep workers both in Ohio and 
nationwide working, allowing these men and women to continue to take 
care of their families and educate their children while also 
encouraging greater fuel efficiency and safer vehicles.
  This amendment calls for the Department of Transportation to increase 
fuel economy standards based on several factors including the 
following: technology feasibility; economic practicability; the need to 
conserve energy and protect the environment; the effect on motor 
vehicle safety; and the effect on U.S. employment.
  I believe this is a much more responsible approach that will improve 
the fuel efficiency of our Nation's vehicles while also protecting 
public safety and our Nation's economic security.
  This amendment also requires that the Department of Transportation 
complete the rulemaking process that would increase fuel efficiency 
standards for 2008 model vehicles. If the administration doesn't act 
within the required timeframe, Congress will act, under expedited 
procedures, to pass legislation mandating an increase in fuel economy 
standards consistent with the same criteria that the administration 
must consider.
  This administration is already taking steps to improve fuel 
efficiency. As you know, in 2003, the National Highway Traffic Safety 
Administration enacted the largest fuel efficiency increase for light 
trucks in over 20 years. By 2007, fuel efficiency requirements will 
increase to 22.2 miles per gallon from the 20.7 miles per gallon that 
had been in place through the 2004 model year.
  The amendment will also increase Federal research and development for 
hybrid electric vehicles and clean diesel vehicles.
  Additionally, the amendment will increase the market for alternative-
powered and hybrid vehicles by mandating that the Federal Government, 
where feasible, purchase alternative powered and hybrid vehicles.
  I believe that this guaranteed market will encourage the auto 
industry to continue to increase their investment in research and 
development with an eye towards making alternative-fuel and hybrid 
vehicles more affordable, available, and commercially appealing to the 
average consumer.
  As a matter of fact, I have ridden in a hybrid manufactured by 
DaimlerChrysler and I have driven a fuel-cell automobile manufactured 
by General Motors. I firmly believe that my children and grandchildren 
will one day be driving automobiles that run on hydrogen and give off 
only water. However, it will take time for the technology that makes 
these vehicles possible to be cost-effective and for these vehicles to 
be marketable.
  Until then, I believe that consumer demand will continue to drive the 
market place. While truck, SUV, and minivan demand is not expected to 
decrease any time soon, automakers will meet this demand.
  In the meantime, many consumers are making the decision to move from 
light trucks to smaller vehicles as their needs change. In light of 
today's gas prices, consumers will demand more fuel efficient-vehicles 
that do not jeopardize their personal and family safety.
  For example, my daughter-in-law currently drives a full-size van. As 
the mother of four young children, she has needed the space and 
flexibility a van provides in order to accommodate the necessary safety 
seats for my grandchildren. Now that her children are getting older and 
are able to travel without car safety seats, she is looking into 
purchasing a station wagon. Such a vehicle will meet her needs while 
saving fuel over the long term.
  As consumer demands change because of trends and fuel prices, 
automakers will change to meet that demand. These changes in auto 
manufacturing should be driven by consumer choice, not by a government-
mandated arbitrary standard.
  The Bond-Levin amendment is supported by the AFL-CIO, the UAW, the 
U.S. Chamber of Commerce, the automotive industry, the American Farm 
Bureau Federation and a number of other organizations.
  I urge my colleagues to support the Bond-Levin amendment. It meets 
our environmental, safety and economic needs in a balanced and 
responsible way, contributing to the continued and needed harmonization 
of our energy and environmental policies.

[[Page 14026]]


  Mr. McCAIN. Mr. President, I support increasing corporate average 
fuel economy standards. In fact, I have supported strengthening CAFE 
standards for several years, and in 2002 I introduced legislation that 
would have significantly improved such standards. My strong support for 
raising CAFE standards makes it all the more difficult for me to oppose 
the amendment offered by Senator Durbin this evening.
  When this body considers legislation, we must always be mindful of 
distinguishing between the advisability and the feasibility of the 
proposal before us. I strongly support the Durbin amendment's goals of 
lowering our reliance on foreign oil and of reducing the emission of 
greenhouse gases. I strongly support those goals. But this amendment, 
sadly, does not appear to be achievable without significantly and 
detrimentally affecting our economy.
  Mr. President, there are realistic options available to us. For 
example, I support legislation that would require passenger cars and 
light trucks to meet the same average fuel economy standard of 27.5 
miles within a reasonable amount of time. I will continue to work 
towards such achievable and beneficial improvements to our Nation's 
average fuel economy.
  The PRESIDING OFFICER. Who yields time?
  Mr. DURBIN. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. The Senator from Illinois has 6 minutes 53 
seconds. The Senator from Missouri has 1 minute 50 seconds.
  The Senator from Illinois.
  Mr. DURBIN. Thank you very much, Mr. President.
  Take a look at this chart and see what is happening in America. As 
the price of gasoline goes up, this veracious appetite for SUVs is 
going down. SUV sales in America are declining, with a 19-percent 
decrease from the first quarter of 2004 to 2005.
  Detroit, are you listening? Are you listening to consumers across 
America? They do not like to take expensive gasoline and put it into an 
SUV that gets terrible mileage. They are telling you what the future is 
going to look like when we have $50- and $60- and $70- and $80- and 
$90-a-barrel oil coming into the United States.
  The consumers are speaking already. Sadly, their response is not 
being picked up. Sadly, their response is not being picked up by some 
of the major manufacturers of U.S. automobiles.
  Take a look at this chart. The Chevy Suburban: I know the Chevy 
Suburban. The car I am provided in the Senate is a Chevy Suburban. It 
is a great car but a big, heavy car. It is picked for that reason for 
security purposes. Whatever. But take a look at the comparable sales: 
the Toyota Prius, 34,225 in U.S. sales so far in 2005; 35,756 Ford 
Expeditions; 24,000 Chevy Suburbans.
  The point I am making is the American consumer's appetite is growing 
for a car which Detroit is not making. We are, sadly, 2 years behind. 
These Toyota Priuses, which one of our colleagues in the Senate drives, 
happen to be cars for which you can get 50 miles a gallon and more. 
People want them, but they cannot buy an American version. What is 
Detroit waiting for?
  Look where we are as a nation. When we took the leadership--Senator 
Bond may call this Soviet-style leadership, command-and-control 
leadership--in 1975 and said we were going to have more fuel-efficient 
vehicles, look at that increase in average miles per gallon in a 10-
year period of time--dramatic. Look what has happened since then--flat-
lining.
  As we have increased our dependence on foreign oil, our cars and 
trucks are less and less fuel efficient. The end is near, my friends. 
It is going to reach us sooner rather than later if we do not accept 
the reality that we need to say, if America is going to be truly less 
dependent on foreign oil, we have to set standards that move us toward 
energy conservation and energy efficiency. The first place to start is 
in the cars and trucks we drive.
  I think if a President, if a Congress, stood up and said: ``America, 
we are in this together; we are challenging Detroit to come out with a 
fuel-efficient car; we need one that is going to make America less 
dependent on foreign oil so we do not get involved in wars, so we do 
not have to walk hand-in-hand with Saudi sheiks around America; we want 
to be less dependent and will you join us, America, the businesses and 
families of this country would stand up and say: We are ready.
  I wish to say, in response to the Senator from Ohio, the Chair of the 
Senate Auto Caucus, Mr. Voinovich, I could not agree with him more. 
This is a hugely important industry. It is in trouble because the 
market share for American automobile manufacturers continues to 
decline. They are building cars that Americans are not buying. 
Americans are looking to Japanese and German and other cars instead.
  There is a message there. We have to revitalize this industry by 
thinking forward instead of thinking backward. And thinking forward 
says, the price of gas is going up. You better have a more fuel-
efficient vehicle. You can reach it if you use innovation and 
creativity. Unfortunately, that is not occurring today.
  Let me close with a comment I opened with from BusinessWeek magazine:

       As Congress puts the final touches on a massive new energy 
     bill, lawmakers are about to blow it. That's because the 
     bill, which they hope to pass by the end of July, almost 
     certainly won't include the one policy initiative that could 
     seriously reduce American's dependence on foreign oil: a 
     government-mandated increase in the average fuel economy of 
     new cars, SUVs, light trucks, and vans.

  The Bond-Levin amendment does not do that. It does not increase fuel 
efficiency. It does not reduce dependence on foreign oil. The amendment 
which I offer does, and I hope my colleagues will support it.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Missouri.
  Mr. BOND. Mr. President, I think there is a clear difference. My 
colleague from Illinois has a political idea of a fuel standard and 
says that will increase efficiency. The difference is that the Bond-
Levin approach relies on what is working and that is having sound 
science, administered by the National Highway Traffic Safety 
Administration, pushing the manufacturers of cars to improve mileage as 
quickly as it can be improved, using science and technology, rather 
than forcing them to go to small automobiles which, according to NHTSA, 
have caused between 1,300 and 2,600 more vehicle deaths a year as a 
result of the lower weight cars needed to meet arbitrary fuel standards 
previously imposed.
  I urge my colleagues to oppose the Durbin amendment but to support 
the Bond-Levin amendment to ensure that we maintain safe, efficient 
automobiles, getting better fuel economy, and providing choices for our 
families.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, does the Senator from Missouri have time 
remaining?
  The PRESIDING OFFICER. The Senator has 37 seconds.
  Does the Senator wish to reserve that time or yield it back?
  Mr. BOND. I reserve my time.
  Dr. DURBIN. In the interest of picking up a few more votes, I yield 
back all my time.
  The PRESIDING OFFICER. The Senator from Illinois yields back all his 
time.
  The Senator from Missouri.
  Mr. BOND. I yield back all my time as well.
  The PRESIDING OFFICER. The Senator yields back his time. All time has 
expired.
  The junior Senator from Missouri.
  Mr. TALENT. Mr. President, I have talked to both sides to get 
permission for a unanimous consent request allowing me to offer an 
amendment that is acceptable to both sides on a voice vote.


                           Amendment No. 819

  So I ask unanimous consent to be permitted to offer amendment No. 819 
and proceed to a vote right after I explain it.
  The PRESIDING OFFICER. Is there objection?
  Mrs. BOXER. Reserving the right to object, some of us have to catch a

[[Page 14027]]

flight. I was hoping we would get the vote off here.
  Mr. CRAIG. Let me work this through. This will take a minute or 2 for 
the Senator from Missouri. It has been agreed to. It will be a voice 
vote, and then we will move immediately to the votes.
  Mrs. BOXER. I object if it is more than a minute. That is how close 
it is. I can give him a minute.
  Mr. TALENT. Thirty seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Missouri [Mr. Talent], for himself, Mr. 
     Johnson, Mr. Bond, and Mr. Dorgan, proposes an amendment 
     numbered 819.

  The amendment is as follows:

   (Purpose: To increase the allowable credit for fuel use under the 
           alternatively fueled vehicle purchase requirement)

       On page 420, strike lines 5 through 16 and insert the 
     following:

     SEC. 702. FUEL USE CREDITS.

       (a) In General.--Section 312 of the Energy Policy Act of 
     1992 (42 U.S.C. 13220) is amended to read as follows:

     ``SEC. 312. FUEL USE CREDITS.

       ``(a) Definitions.--In this section:
       ``(1) Biodiesel.--The term `biodiesel' means a diesel fuel 
     substitute produced from nonpetroleum renewable resources 
     that meets the registration requirements for fuels and fuel 
     additives established by the Environmental Protection Agency 
     under section 211 of the Clean Air Act (42 U.S.C. 7545).
       ``(2) Qualifying volume.--The term `qualifying volume' 
     means--
       ``(A) in the case of biodiesel, when used as a component of 
     fuel containing at least 20 percent biodiesel by volume--
       ``(i) 450 gallons; or
       ``(ii) if the Secretary determines by rule that the average 
     annual alternative fuel use in light duty vehicles by fleets 
     and covered persons exceeds 450 gallons or gallon 
     equivalents, the amount of the average annual alternative 
     fuel use; and
       ``(B) in the case of an alternative fuel, the amount of the 
     fuel determined by the Secretary to have an equivalent energy 
     content to the amount of biodiesel defined as a qualifying 
     volume under subparagraph (A).
       ``(b) Allocation.--
       ``(1) In general.--The Secretary shall allocate 1 credit 
     under this section to a fleet or covered person for each 
     qualifying volume of alternative fuel or biodiesel purchased 
     for use in a vehicle operated by the fleet.
       ``(2) Limitation.--The Secretary may not allocate a credit 
     under this section for the purchase of an alternative fuel or 
     biodiesel that is required by Federal or State law.
       ``(3) Documentation.--A fleet or covered person seeking a 
     credit under paragraph (1) shall provide written 
     documentation to the Secretary supporting the allocation of 
     the credit to the fleet or covered person.
       ``(c) Use.--At the request of a fleet or covered person 
     allocated a credit under subsection (b), the Secretary shall, 
     for the year in which the purchase of a qualifying volume is 
     made, consider the purchase to be the acquisition of 1 
     alternative fueled vehicle that the fleet or covered person 
     is required to acquire under this title, title IV, or title 
     V.
       ``(d) Treatment.--A credit provided to a fleet or covered 
     person under this section shall be considered to be a credit 
     under section 508.
       ``(e) Issuance of Rule.--Not later than 180 days after the 
     date of enactment of the Energy Policy Act of 2005, the 
     Secretary shall issue a rule establishing procedures for the 
     implementation of this section.''.
       (b) Table of Contents Amendment.--The table of contents of 
     the Energy Policy Act of 1992 is amended by striking the item 
     relating to section 312 and inserting the following:

``Sec. 312. Fuel use credits.''.

  Mr. TALENT. Mr. President, this is an amendment that has been 
accepted by unanimous consent and voice vote by the Senate in the past. 
It would allow municipalities to help meet their EPAct requirement by 
using biodiesel. I am offering it on behalf of Senators Johnson, Bond, 
Dorgan, and myself.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
819.
  The amendment (No. 819) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Mr. CRAIG. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 925

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
925 offered by the Senators Bond and Levin.
  Mr. BOND. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Sentors are necessarily absent: the 
Senator from New Mexico (Mr. Domenici), and the Senator from 
Mississippi (Mr. Lott).
  Mr. DURBIN. I announce that the Senator from New Mexico (Mr. 
Bingaman), the Senator from Connecticut (Mr. Dodd), and the Senator 
from Hawaii (Mr. Inouye) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 64, nays 31, as follows:

                      [Rollcall Vote No. 156 Leg.]

                                YEAS--64

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Carper
     Chambliss
     Coburn
     Cochran
     Coleman
     Conrad
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dole
     Dorgan
     Ensign
     Enzi
     Feingold
     Frist
     Graham
     Grassley
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kohl
     Kyl
     Landrieu
     Levin
     Lincoln
     Lugar
     Martinez
     McConnell
     Mikulski
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Salazar
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stabenow
     Stevens
     Talent
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--31

     Akaka
     Biden
     Boxer
     Cantwell
     Chafee
     Clinton
     Collins
     Corzine
     Durbin
     Feinstein
     Gregg
     Harkin
     Jeffords
     Kennedy
     Kerry
     Lautenberg
     Leahy
     Lieberman
     McCain
     Murray
     Nelson (FL)
     Obama
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Sununu
     Thomas
     Wyden

                             NOT VOTING--5

     Bingaman
     Dodd
     Domenici
     Inouye
     Lott
  The amendment (No. 925) was agreed to.
  Mr. CRAIG. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, for the information of Senators, in all 
likelihood the next vote will be the last vote tonight. We cannot say 
with certainty, but in all likelihood this is the last vote. The plan 
is to have final passage on the Energy bill at 9:45 on Tuesday morning. 
We will complete the bill tonight. We still have the managers' package. 
That is why I cannot say absolutely no votes. But there is a 99-percent 
chance that the next vote will be the last vote.
  We will be working on the Interior bill on Friday and Monday. We will 
be stacking the votes on Interior, hopefully, for Tuesday and complete 
passage of the Interior bill.
  I yield the floor.


                           Amendment No. 902

  The PRESIDING OFFICER. Under the previous order, the Durbin amendment 
is next for consideration.
  Mr. DURBIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  Senators have yielded back their time. The question is on agreeing to 
amendment No. 902. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senators are necessarily absent: the 
Senator from New Mexico (Mr. Domenici), and the Senator from 
Mississippi (Mr. Lott).
  Mr. DURBIN. I announce that the Senator from New Mexico (Mr. 
Bingaman), the Senator from California (Mrs. Boxer), and the Senator 
from Hawaii (Mr. Inouye) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
California (Mrs. Boxer) would vote ``yea.''

[[Page 14028]]

  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 28, nays 67, as follows:

                      [Rollcall Vote No. 157 Leg.]

                                YEAS--28

     Akaka
     Cantwell
     Carper
     Chafee
     Collins
     Corzine
     Dayton
     Dodd
     Durbin
     Feinstein
     Gregg
     Harkin
     Jeffords
     Kennedy
     Lautenberg
     Leahy
     Lieberman
     Lugar
     Murray
     Nelson (FL)
     Obama
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Wyden

                                NAYS--67

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Clinton
     Coburn
     Cochran
     Coleman
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Dorgan
     Ensign
     Enzi
     Feingold
     Frist
     Graham
     Grassley
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kerry
     Kohl
     Kyl
     Landrieu
     Levin
     Lincoln
     Martinez
     McCain
     McConnell
     Mikulski
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Salazar
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--5

     Bingaman
     Boxer
     Domenici
     Inouye
     Lott
  The amendment (No. 902) was rejected.
  Mr. CRAIG. Mr. President, I move to reconsider the vote, and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, before I move to a couple of other items to 
complete our work this evening, I will yield the floor to the Senator 
from Georgia for a brief statement.
  The PRESIDING OFFICER. The Senator from Georgia.
  (The remarks of Mr. Chambliss are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Idaho.


   Amendments Nos. 811; 832, as Modified; 871, as Modified; 886, as 
  Modified; 899, as Modified; 808; 825; 940, as Modified; 1005; 1006; 
1007; 1008; 851, as Modified; 892, as Modified; 903, as Modified; 919, 
                            as Modified; 834

  Mr. CRAIG. Mr. President, we have a series of managers' amendments 
that have been cleared on both sides. Therefore, I now ask unanimous 
consent that the series of amendments at the desk be considered and 
agreed upon en bloc and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments were agreed to as follows:


                           amendment no. 811

  (The amendment is printed in the Record of June 21, 2005, under 
``Text of Amendments.'')


                     amendment no. 832, as modified

       On page 724, line 12, insert before ``shall enter'' the 
     following: ``, in consultation with the Administrator of the 
     Environmental Protection Agency,''.
       On page 726, line 5, insert ``and the Administrator of the 
     Environmental Protection Agency'' after ``Interior''.
       On page 726, line 10, insert before ``shall report'' the 
     following: ``and the Administrator of the Environmental 
     Protection Agency, after consulting with states,''.
       On page 726, line 14, strike ``Secretary's agreement or 
     disagreement'' and insert ``agreement or disagreement of the 
     Secretary of the Interior and the Administrator of the 
     Environmental Protection Agency''.


                     AMENDMENT NO. 871, AS MODIFIED

 (Purpose: To provide whistleblower protection for contract and agency 
                 employees at the Department of Energy)

       At the appropriate place, insert the following:

     ``SECTION. WHISTLEBLOWER PROTECTION FOR EMPLOYEES OF THE 
                   DEPARTMENT OF ENERGY.

       (a) Definition of Employer.--Section 211(a)(2) of the 
     Energy Reorganization Act of 1974 (42 U.S.C. 5851(a)(2)) is 
     amended--
       (1) in subparagraph (C), by striking `and' at the end;
       (2) in subparagraph (D), by striking `that is indemnified' 
     and all that follows through `12344.'; and
       (3) by adding at the end the following:
       `(E) the Department Of Energy.'.
       (b) De Novo Judicial Determination.--Section 211(b) of the 
     Energy Reorganization Act of 1974 (42 U.S.C. 5851(b)) is 
     amended by adding at the end the following:
       `(4) De Novo Judicial Determination.--If the Secretary does 
     not issue a final decision within 180 days after the filing 
     of a complaint under paragraph (1) and the Secretary does not 
     show that the delay is caused by the bad faith of the 
     claimant, the claimant may bring a civil action in United 
     States district court for a determination of the claim by the 
     court de novo.'.


                     amendment no. 886, as modified

     (Purpose: To include waste-derived ethanol and biodiesel in a 
                        definition of biodiesel)

       On page 159, after line 23, add the following:

     SEC. 211. WASTE-DERIVED ETHANOL AND BIODIESEL.

       Section 312(f)(1) of the Energy Policy Act of 1992 (42 
     U.S.C. 13220(f)(1)) is amended--
       (1) by striking ```biodiesel' means'' and inserting the 
     following: ```biodiesel'--
       ``(A) means''; and
       (2) in subparagraph (A) (as designated by paragraph (1)) by 
     striking ``and'' at the end and inserting the following:
       ``(B) includes biodiesel derived from--
       ``(i) animal wastes, including poultry fats and poultry 
     wastes, and other waste materials; or
       ``(ii) municipal solid waste and sludges and oils derived 
     from wastewater and the treatment of wastewater; and''.


                     amendment no. 899, as modified

   (Purpose: To establish procedures for the reinstatement of leases 
             terminated due to unforeseeable circumstances)

       On page 296, after line 25, add the following:

     SEC. 34__. REINSTATEMENT OF LEASES.

       Notwithstanding section 31(d)(2)(B) of the Mineral Leasing 
     Act (30 U.S.C. 188(d)(2)(B)), the Secretary may reinstate any 
     oil and gas lease issued under that Act that was terminated 
     for failure of a lessee to pay the full amount of rental on 
     or before the anniversary date of the lease, during the 
     period beginning on September 1, 2001, and ending on June 30, 
     2004, if, (1) not later than 120 days after the date of 
     enactment of this Act, the lessee--
       (A) files a petition for reinstatement of the lease;
       (B) complies with the conditions of section 31(e) of the 
     Mineral Leasing Act (30 U.S.C. 188(e)); and
       (C) certifies that the lessee did not receive a notice of 
     termination by the date that was 13 months before the date of 
     termination; and (2) the land is available for leasing.


                           amendment no. 808

      (Purpose: To establish a program to develop Fischer-Tropsch 
             transportation fuels from Illinois basin coal)

       On page 346, between lines 9 and 10, insert the following:

     SEC. 4__. DEPARTMENT OF ENERGY TRANSPORTATION FUELS FROM 
                   ILLINOIS BASIN COAL.

       (a) In General.--The Secretary shall carry out a program to 
     evaluate the commercial and technical viability of advanced 
     technologies for the production of Fischer-Tropsch 
     transportation fuels, and other transportation fuels, 
     manufactured from Illinois basin coal, including the capital 
     modification of existing facilities and the construction of 
     testing facilities under subsection (b).
       (b) Facilities.--For the purpose of evaluating the 
     commercial and technical viability of different processes for 
     producing Fischer-Tropsch transportation fuels, and other 
     transportation fuels, from Illinois basin coal, the Secretary 
     shall support the use and capital modification of existing 
     facilities and the construction of new facilities at--
       (1) Southern Illinois University Coal Research Center;
       (2) University of Kentucky Center for Applied Energy 
     Research; and
       (3) Energy Center at Purdue University.
       (c) Gasification Products Test Center.--In conjunction with 
     the activities described in subsections (a) and (b), the 
     Secretary shall construct a test center to evaluate and 
     confirm liquid and gas products from syngas catalysis in 
     order that the system has an output of at least 500 gallons 
     of Fischer-Tropsch transportation fuel per day in a 24-hour 
     operation.
       (d) Milestones.--
       (1) Selection of processes.--Not later than 180 days after 
     the date of enactment of this Act, the Secretary shall select 
     processes for evaluating the commercial and technical 
     viability of different processes of producing Fischer-Tropsch 
     transportation fuels, and other transportation fuels, from 
     Illinois basin coal.
       (2) Agreements.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary shall offer to enter 
     into agreements--
       (A) to carry out the activities described in this section, 
     at the facilities described in subsection (b); and
       (B) for the capital modifications or construction of the 
     facilities at the locations described in subsection (b).
       (3) Evaluations.--Not later than 3 years after the date of 
     enactment of the Act, the Secretary shall begin, at the 
     facilities described in subsection (b), evaluation of the

[[Page 14029]]

     technical and commercial viability of different processes of 
     producing Fischer-Tropsch transportation fuels, and other 
     transportation fuels, from Illinois basin coal.
       (4) Construction of facilities.--
       (A) In general.--The Secretary shall construct the 
     facilities described in subsection (b) at the lowest cost 
     practicable.
       (B) Grants or agreements.--The Secretary may make grants or 
     enter into agreements or contracts with the institutions of 
     higher education described in subsection (b).
       (e) Cost Sharing.--The cost of making grants under this 
     section shall be shared in accordance with section 1002.
       (f) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section $85,000,000 for 
     the period of fiscal years 2006 through 2010.


                           amendment no. 825

  (Purpose: To establish a 4-year pilot program to provide emergency 
relief to small business concerns affected by a significant increase in 
the price of heating oil, natural gas, propane, gasoline, or kerosene, 
                        and for other purposes)

       On page 208, after line 24, insert the following:

     SEC. 303. SMALL BUSINESS AND AGRICULTURAL PRODUCER ENERGY 
                   EMERGENCY DISASTER LOAN PROGRAM.

       (a) Small Business Producer Energy Emergency Disaster Loan 
     Program.--
       (1) Disaster loan authority.--Section 7(b) of the Small 
     Business Act (15 U.S.C. 636(b)) is amended by inserting after 
     paragraph (3) the following:
       ``(4)(A) In this paragraph--
       ``(i) the term `base price index' means the moving average 
     of the closing unit price on the New York Mercantile Exchange 
     for heating oil, natural gas, gasoline, or propane for the 10 
     days, in each of the most recent 2 preceding years, which 
     correspond to the trading days described in clause (ii);
       ``(ii) the term `current price index' means the moving 
     average of the closing unit price on the New York Mercantile 
     Exchange, for the 10 most recent trading days, for contracts 
     to purchase heating oil, natural gas, gasoline, or propane 
     during the subsequent calendar month, commonly known as the 
     `front month'; and
       ``(iii) the term `significant increase' means--
       ``(I) with respect to the price of heating oil, natural 
     gas, gasoline, or propane, any time the current price index 
     exceeds the base price index by not less than 40 percent; and
       ``(II) with respect to the price of kerosene, any increase 
     which the Administrator, in consultation with the Secretary 
     of Energy, determines to be significant.
       ``(B) The Administration may make such loans, either 
     directly or in cooperation with banks or other lending 
     institutions through agreements to participate on an 
     immediate or deferred basis, to assist a small business 
     concern that has suffered or that is likely to suffer 
     substantial economic injury on or after January 1, 2005, as 
     the result of a significant increase in the price of heating 
     oil, natural gas, gasoline, propane, or kerosene occurring on 
     or after January 1, 2005.
       ``(C) Any loan or guarantee extended pursuant to this 
     paragraph shall be made at the same interest rate as economic 
     injury loans under paragraph (2).
       ``(D) No loan may be made under this paragraph, either 
     directly or in cooperation with banks or other lending 
     institutions through agreements to participate on an 
     immediate or deferred basis, if the total amount outstanding 
     and committed to the borrower under this subsection would 
     exceed $1,500,000, unless such borrower constitutes a major 
     source of employment in its surrounding area, as determined 
     by the Administration, in which case the Administration, in 
     its discretion, may waive the $1,500,000 limitation.
       ``(E) For purposes of assistance under this paragraph--
       ``(i) a declaration of a disaster area based on conditions 
     specified in this paragraph shall be required, and shall be 
     made by the President or the Administrator; or
       ``(ii) if no declaration has been made pursuant to clause 
     (i), the Governor of a State in which a significant increase 
     in the price of heating oil, natural gas, gasoline, propane, 
     or kerosene has occurred may certify to the Administration 
     that small business concerns have suffered economic injury as 
     a result of such increase and are in need of financial 
     assistance which is not otherwise available on reasonable 
     terms in that State, and upon receipt of such certification, 
     the Administration may make such loans as would have been 
     available under this paragraph if a disaster declaration had 
     been issued.
       ``(F) Notwithstanding any other provision of law, loans 
     made under this paragraph may be used by a small business 
     concern described in subparagraph (B) to convert from the use 
     of heating oil, natural gas, gasoline, propane, or kerosene 
     to a renewable or alternative energy source, including 
     agriculture and urban waste, geothermal energy, cogeneration, 
     solar energy, wind energy, or fuel cells.''.
       (2) Conforming amendments.--Section 3(k) of the Small 
     Business Act (15 U.S.C. 632(k)) is amended--
       (A) by inserting ``, significant increase in the price of 
     heating oil, natural gas, gasoline, propane, or kerosene'' 
     after ``civil disorders''; and
       (B) by inserting ``other'' before ``economic''.
       (b) Agricultural Producer Emergency Loans.--
       (1) In general.--Section 321(a) of the Consolidated Farm 
     and Rural Development Act (7 U.S.C. 1961(a)) is amended--
       (A) in the first sentence--
       (i) by striking ``operations have'' and inserting 
     ``operations (i) have''; and
       (ii) by inserting before ``: Provided,'' the following: ``, 
     or (ii)(I) are owned or operated by such an applicant that is 
     also a small business concern (as defined in section 3 of the 
     Small Business Act (15 U.S.C. 632)), and (II) have suffered 
     or are likely to suffer substantial economic injury on or 
     after January 1, 2005, as the result of a significant 
     increase in energy costs or input costs from energy sources 
     occurring on or after January 1, 2005, in connection with an 
     energy emergency declared by the President or the 
     Secretary'';
       (B) in the third sentence, by inserting before the period 
     at the end the following: ``or by an energy emergency 
     declared by the President or the Secretary''; and
       (C) in the fourth sentence--
       (i) by inserting ``or energy emergency'' after ``natural 
     disaster'' each place that term appears; and
       (ii) by inserting ``or declaration'' after ``emergency 
     designation''.
       (2) Funding.--Funds available on the date of enactment of 
     this Act for emergency loans under subtitle C of the 
     Consolidated Farm and Rural Development Act (7 U.S.C. 1961 et 
     seq.) shall be available to carry out the amendments made by 
     subparagraph (A) to meet the needs resulting from natural 
     disasters.
       (c) Guidelines and Rulemaking.--
       (1) Guidelines.--Not later than 30 days after the date of 
     enactment of this Act, the Administrator of the Small 
     Business Administration and the Secretary of Agriculture 
     shall each issue guidelines to carry out this section and the 
     amendments made by this section, which guidelines shall 
     become effective on the date of their issuance.
       (2) Rulemaking.--Not later than 30 days after the date of 
     enactment of this Act, the Administrator of the Small 
     Business Administration, after consultation with the 
     Secretary of Energy, shall promulgate regulations specifying 
     the method for determining a significant increase in the 
     price of kerosene under section 7(b)(4)(A)(iii)(II) of the 
     Small Business Act (15 U.S.C. 636(b)(4)(A)(iii)(II)), as 
     added by this section.
       (d) Reports.--
       (1) Small business administration.--Not later than 12 
     months after the date on which the Administrator of the Small 
     Business Administration issues guidelines under subsection 
     (c)(1), and annually thereafter, the Administrator shall 
     submit to the Committee on Small Business and 
     Entrepreneurship of the Senate and the Committee on Small 
     Business of the House of Representatives, a report on the 
     effectiveness of the assistance made available under section 
     7(b)(4) of the Small Business Act, as added by this section, 
     including--
       (A) the number of small business concerns that applied for 
     a loan under such section 7(b)(4) and the number of those 
     that received such loans;
       (B) the dollar value of those loans;
       (C) the States in which the small business concerns that 
     received such loans are located;
       (D) the type of energy that caused the significant increase 
     in the cost for the participating small business concerns; 
     and
       (E) recommendations for ways to improve the assistance 
     provided under such section 7(b)(4), if any.
       (2) Department of agriculture.--Not later than 12 months 
     after the date on which the Secretary of Agriculture issues 
     guidelines under subsection (c)(1), and annually thereafter, 
     the Secretary shall submit to the Committee on Small Business 
     and Entrepreneurship and the Committee on Agriculture, 
     Nutrition, and Forestry of the Senate and to the Committee on 
     Small Business and the Committee on Agriculture of the House 
     of Representatives, a report that--
       (A) describes the effectiveness of the assistance made 
     available under section 321(a) of the Consolidated Farm and 
     Rural Development Act (7 U.S.C. 1961(a)), as amended by this 
     section; and
       (B) contains recommendations for ways to improve the 
     assistance provided under such section 321(a).
       (e) Effective Date.--
       (1) Small business.--The amendments made by subsection (a) 
     shall apply during the 4-year period beginning on the earlier 
     of the date on which guidelines are published by the 
     Administrator of the Small Business Administration under 
     subsection (c)(1) or 30 days after the date of enactment of 
     this Act, with respect to assistance under section 7(b)(4) of 
     the Small Business Act, as added by this section.
       (2) Agriculture.--The amendments made by subsection (b) 
     shall apply during the 4-year period beginning on the earlier 
     of the date on which guidelines are published by the 
     Secretary of Agriculture under subsection (c)(1) or 30 days 
     after the date of enactment of this Act, with respect to 
     assistance under section 321(a) of the Consolidated

[[Page 14030]]

     Farm and Rural Development Act (7 U.S.C. 1961(a)), as amended 
     by this section.


                     amendment no. 940, as modified

       An amendment intended to be proposed by Mr. Inhofe:
       ``(vi) Not later than July 1, 2007, the Administrator shall 
     promulgate final regulations to control hazardous air 
     pollutants from motor vehicles and motor vehicle fuels, as 
     provided for in section 80.1045 of title 40, Code of Federal 
     Regulations (as in effect on the date of enactment of this 
     subparagraph), and as authorized under section 202(1) of the 
     Clean Air Act. If the Administrator promulgates by such date, 
     final regulations to control hazardous air pollutants from 
     motor vehicles and motor vehicle fuels that achieve and 
     maintain greater overall reductions in emissions of air 
     toxics from reformulated gasoline than the reductions that 
     would be achieved under section 211(k)(1)(B) of the Clean Air 
     Act as amended by this clause, then sections 211 (k)(1)(i) 
     through 211(k)(l)(v) shall be null and void and regulations 
     promulgated thereunder shall be rescinded and have further 
     effect.


                           amendment no. 1005

               (Purpose: To make a technical correction)

       At the end of subtitle H of title II, add the following:

     SEC. 2__. ENERGY POLICY AND CONSERVATION TECHNICAL 
                   CORRECTION.

       Section 609(c)(4) of the Public Utility Regulatory Policies 
     Act of 1978 (as added by section 291) is amended by striking 
     ``of 1954 (42 U.S.C. 6303)'' and inserting ``(42 U.S.C. 
     6303(d))''.


                           amendment no. 1006

  (Purpose: To require the Secretary to carry out a study and compile 
   existing science to determine the risks or benefits presented by 
     cumulative impacts of multiple offshore liquefied natural gas 
facilities reasonably assumed to be constructed in an area of the Gulf 
           of Mexico using the open-rack vaporization system)

       On page 755, after line 25, insert the following:

     SEC. 13__. SCIENCE STUDY ON CUMULATIVE IMPACTS OF MULTIPLE 
                   OFFSHORE LIQUEFIED NATURAL GAS FACILITIES.

       (a) In General.--The Secretary (in consultation with the 
     National Oceanic Atmospheric Administration, the Commandant 
     of the Coast Guard, affected recreational and commercial 
     fishing industries and affected energy and transportation 
     stakeholders) shall carry out a study and compile existing 
     science (including studies and data) to determine the risks 
     or benefits presented by cumulative impacts of multiple 
     offshore liquefied natural gas facilities reasonably assumed 
     to be constructed in an area of the Gulf of Mexico using the 
     open-rack vaporization system.
       (b) Accuracy.--In carrying out subsection (a), the 
     Secretary shall verify the accuracy of available science and 
     develop a science-based evaluation of significant short-term 
     and long-term cumulative impacts, both adverse and 
     beneficial, of multiple offshore liquefied natural gas 
     facilities reasonably assumed to be constructed in an area of 
     the Gulf of Mexico using or proposing the open-rack 
     vaporization system on the fisheries and marine populations 
     in the vicinity of the facility.


                           Amendment No. 1007

         (Purpose: To improve the clean coal power initiative)

  (The amendment is printed in today's Record under ``Text of 
Amendments.'')


                           amendment no. 1008

  (Purpose: To clarify provisions regarding relief for extraordinary 
                              violations)

       On page 696, lines 24 and 25, strike ``unlawful on the 
     grounds that it is unjust and unreasonable'' and insert ``not 
     permitted under a rate schedule (or contract under such a 
     schedule) or is otherwise unlawful on the grounds that the 
     contract is unjust and unreasonable or contrary to the public 
     interest''.


                     amendment no. 851, as modified

 (Purpose: To require the Secretary to establish a Joint Flexible Fuel/
  Hybrid Vehicle Commercialization Initiative, and for other purposes)

       On page 424, between lines 7 and 8, insert the following:

     SEC. 706. JOINT FLEXIBLE FUEL/HYBRID VEHICLE 
                   COMMERCIALIZATION INITIATIVE.

       (a) Definitions.--In this section:
       (1) Eligible entity.--The term eligible entity means--
       (A) a for-profit corporation;
       (B) a nonprofit corporation; or
       (C) an institution of higher education.
       (2) Program.--The term ``program'' means the applied 
     research program established under subsection (b).
       (b) Establishment.--The Secretary shall establish an 
     applied research program to improve technologies for the 
     commercialization of--
       (1) a combination hybrid/flexible fuel vehicle; or
       (2) a plug-in hybrid/flexible fuel vehicle.
       (c) Grants.--In carrying out the program, the Secretary 
     shall provide grants that give preference to proposals that--
       (1) achieve the greatest reduction in miles per gallon of 
     petroleum fuel consumption;
       (2) achieve not less than 250 miles per gallon of petroleum 
     fuel consumption; and
       (3) have the greatest potential of commercialization to the 
     general public within 5 years.
       (d) Verification.--Not later than 90 days after the date of 
     enactment of this Act, the Secretary shall publish in the 
     Federal Register procedures to verify--
       (1) the hybrid/flexible fuel vehicle technologies to be 
     demonstrated; and
       (2) that grants are administered in accordance with this 
     section.
       (e) Report.--Not later than 260 days after the date of 
     enactment of this Act, and annually thereafter, the Secretary 
     shall submit to Congress a report that--
       (1) identifies the grant recipients;
       (2) describes the technologies to be funded under the 
     program;
       (3) assesses the feasibility of the technologies described 
     in paragraph (2) in meeting the goals described in subsection 
     (c);
       (4) identifies applications submitted for the program that 
     were not funded; and
       (5) makes recommendations for Federal legislation to 
     achieve commercialization of the technology demonstrated.
       (f) Authorization of Appropriations.--There are authorized 
     to be appropriated to carry out this section, to remain 
     available until expended--
       (1) $3,000,000 for fiscal year 2005;
       (2) $7,000,000 for fiscal year 2006;
       (3) $10,000,000 for fiscal year 2007; and
       (4) $20,000,000 for fiscal year 2008.


                     Amendment No. 892, as Modified

       On page 342, strikelines 1 through 19 and insert the 
     following: 

     SEC. 407. WESTERN INTEGRATED COAL GASIFICATION DEMONSTRATION 
                   PROJECT.

       (a) In General.--Subject to the availability of 
     appropriations, the Secretary shall carry out a project to 
     demonstrate production of energy from coal mined in the 
     western United States using integrated gasification combined 
     cycle technology (referred to in this section as the 
     ``demonstration project'').
       (b) Components.--The demonstration project--
       (i) may include repowering of existing facilities;
       (ii) shall be designed to demonstrate the ability to use 
     coal with an energy content of not more than 9,000 Btu/lb.; 
     and
       (iii) shall be capable of removing and sequestering carbon 
     dioxide emissions.
       (c) All Types of Western Coals.--Notwithstanding the 
     foregoing, and to the extent economically feasib1e, the 
     demonstration project shall also be designed to demonstrate 
     the ability to use a variety of types of coal (including 
     subbituminous and bituminous coal with an energy content of 
     up to 13,000 Btu/lb) mined in the western United States.
       (d) Location.--The demonstration project shall be located 
     in a western State at an altitude of greater than 4,000 feet 
     above sea level.
       (e) Cost Sharing.--The Federal share of the cost of the 
     demonstration project shall be determined in accordance with 
     section 1002.
       (f) Loan Guarantees.--Notwithstanding title XIV, the 
     demonstration project shall not be eligible for Federal loan 
     guarantees. 


                     amendment no. 903, as modified

(Purpose: To provide that small businesses are eligible to participate 
              in the Next Generation Lighting Initiative)

       Beginning on page, 469, strike line 10 and all that follows 
     through page 470, line 20, and insert the following:
       (d) Industry Alliance.--Not later than 90 days after the 
     date of enactment of this Act, the Secretary shall 
     competitively select an Industry Alliance to represent 
     participants who are private, for-profit firms, including 
     large and small businesses, that, as a group, are broadly 
     representative of United States solid state lighting 
     research, development, infrastructure, and manufacturing 
     expertise as a whole.
       (e) Research.--
       (1) Grants.--The Secretary shall carry out the research 
     activities of the Initiative through competitively awarded 
     grants to--
       (A) researchers, including Industry Alliance participants;
       (B) small businesses;
       (C) National Laboratories; and
       (D) institutions of higher education.
       (2) Industry alliance.--The Secretary shall annually 
     solicit from the Industry Alliance--
       (A) comments to identify solid-state lighting technology 
     needs;
       (B) an assessment of the progress of the research 
     activities of the Initiative; and
       (C) assistance in annually updating solid-state lighting 
     technology roadmaps.
       (3) Availability to public.--The information and roadmaps 
     under paragraph (2) shall be available to the public.
       (f) Development, Demonstration, and Commercial 
     Application.--
       (1) In general.--The Secretary shall carry out a 
     development, demonstration, and commercial application 
     program for the Initiative through competitively selected 
     awards.
       (2) Preference.--In making the awards, the Secretary may 
     give preference to participants in the Industry Alliance.

[[Page 14031]]




                     Amendment No. 919, as modified

  (Purpose: To enhance the national security of the United States by 
providing for the research, development, demonstration, administrative 
     support, and market mechanisms for widespread deployment and 
       commercialization of biobased fuels and biobased products)

  (The amendment is printed in the Record of June 22, 2005 under ``Text 
of Amendments.'')


                           Amendment No. 1009

              (Purpose: To provide a Manager's amendment)

  (The amendment is printed in today's Record under ``Text of 
Amendments.'')


                           amendment no. 834

  (Purpose: To provide for understanding of and access to procurement 
     opportunities for small businesses with regard to Energy Star 
           technologies and products, and for other purposes)

       On page 52, line 24, strike ``efficiency; and'' and all 
     that follows through page 53, line 8 and insert the 
     following: ``efficiency;
       ``(C) understanding and accessing Federal procurement 
     opportunities with regard to Energy Star technologies and 
     products; and
       ``(D) identifying financing options for energy efficiency 
     upgrades.
       ``(2) The Secretary, the Administrator of the Environmental 
     Protection Agency, and the Administrator of the Small 
     Business Administration shall make program information 
     available to small business concerns directly through the 
     district offices and resource partners of the Small Business 
     Administration, including small business development centers, 
     women's business centers, and the Service Corps of Retired 
     Executives (SCORE), and through other Federal agencies, 
     including the Federal Emergency Management Agency and the 
     Department of Agriculture.
       ``(3) The Secretary, on a cost shared basis in cooperation 
     with the Administrator of the Environmental Protection 
     Agency, shall provide to the Small Business Administration 
     all advertising, marketing, and other written materials 
     necessary for the dissemination of information under 
     paragraph (2).
       ``(4) There are authorized to be appropriated such sums as 
     may be necessary to carry out this subsection, which shall 
     remain available until expended.''.


                      Amendment No. 792 withdrawn

  Mr. CRAIG. I ask unanimous consent the Wyden amendment be withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 puhca repeal and ferc merger authority

  Mr. SHELBY. Will the chairman yield for a question?
  Mr. DOMENICI. I will be happy to yield.
  Mr. SHELBY. I thank the chairman. As the chairman is aware, repeal of 
the Public Company Utility Holding Act of 1935 has been a priority of 
the Senate Banking Committee for almost 25 years. As recently as 1997 
and 1999, the Senate Banking Committee reported PUHCA repeal bills out 
of committee. As chairman of the Banking Committee, I have been pleased 
to work with the Chairman of the Energy Committee to ensure that PUHCA 
repeal was included as part of a comprehensive Energy bill.
  I congratulate the chairman for reporting a bill out of Committee 
that includes PUHCA repeal. Nevertheless, I have concerns that the 
expanded merger review authority for FERC provided for in the 
Electricity title undermines the important policy goals behind PUHCA 
repeal. It is widely understood that PUHCA has served its purpose and 
is outdated. Now, PUHCA acts as a barrier to interstate capital flows, 
and other Federal laws make the PUHCA regime redundant.
  The purpose of PUHCA repeal legislation is to eliminate these 
duplicative and unnecessary regulatory burdens. I am concerned that 
PUHCA repeal is undermined by legislation providing FERC with enhanced 
merger review authority over utility companies. I do not believe that 
Congress should repeal PUHCA, only to replace it with a burdensome 
regulatory framework administered by FERC. But I am afraid that may be 
exactly what we are doing in the Electricity title of this bill. I do 
not believe that Congress should require enhanced FERC merger authority 
as a prerequisite for PUHCA repeal.
  I would ask the chairman to consult with me during conference to 
ensure against this result. As the Senate Banking Committee has done 
recently, I think it is important that we repeal PUHCA without creating 
additional regulatory burdens.
  Mr. DOMENICI. I thank the Senator from Alabama for his remarks, and I 
share his concern regarding additional FERC merger review authority. I 
look forward to working with him in conference to ensure that PUHCA 
repeal is not accompanied by the grant of unnecessary merger review 
authority to FERC.
  Mr. SHELBY. I thank the chairman.


              ELECTRIC TRANSMISSION PROPERTY DEPRECIATION

  Mr. THOMAS. Mr. President, I would like to speak about an amendment I 
filed to the tax title of this bill on electric transmission property 
depreciation and engage Mr. Grassley in a colloquy on this important 
issue if I may.
  I did not push this issue to a vote during the committee markup, and 
I don't intend to do so on the floor either since I understand the 
provision is included in the House version of the bill and enjoys broad 
support in both the House and the Senate.
  That said, I felt it was important to underscore the importance of 
energy infrastructure in the United States. It is completely irrelevant 
how much we have in the area of energy-producing resources if we can't 
transport that energy to where it's needed.
  And electric transmission capacity is a prime example.
  There are a number of barriers to building additional transmission 
capacity, among them being stringent regulations at the federal, state, 
and local levels; NIMBY-ism, in other words, those who want it, but not 
in their backyard; and high capital cost.
  My amendment--which would have incorporated my bill, S. 815, into the 
tax title--addresses the substantial investment required to build 
additional capacity.
  I thank Senators Snowe, Bingaman, Bunning, and Smith for cosponsoring 
both the bill and the amendment.
  The provision would shorten the depreciation life of electric 
transmission property from the current 20 years to 15 years, thereby 
substantially reducing the cost.
  I understand Chairman Grassley's hesitancy to include provisions in 
the Senate package that are already covered in the House bill. However, 
I am asking for the Chairman's commitment to ensure this important 
provision is included in a final energy package.
  Mr. GRASSLEY. I agree that energy infrastructure, particularly 
electric transmission capacity, is a critical component of our domestic 
energy policy, and I am committed to helping you ensure that it is 
included in the final energy bill.


               Sec. 261, Hydroelectric Relicensing Reform

  Ms. CANTWELL. Mr. President, Section 261 of the underlying bill 
contains provisions designed to reform the hydroelectric relicensing 
process. These provisions are the result of a hard-won compromise, and 
I thank the chairman and ranking member, along with Senators Craig, 
Smith and Feinstein for their leadership on this issue. In particular, 
these provisions significantly differ from previous House- and Senate-
passed versions, as they will allow States, tribes and the public to 
propose alternative licensing conditions, and will further allow these 
entities to trigger the trial-type hearing process outlined in this 
section. I believe these public participation provisions are key 
improvements in this legislation. I would also like to more fully 
explore the process by which alternative conditions proposed by these 
stakeholders should be considered.
  Before an alternative condition or prescription to a license may be 
approved, the Secretary must concur with the judgment of the license 
applicant that it will either cost significantly less to implement, or 
result in improved operation of the hydro project for electricity 
production--at the same time it provides for adequate protection of the 
resource--or in the case of fishway prescriptions, will be no less 
protective than the fishway initially proposed by the Secretary. This 
provision does not provide the license applicant a so-called veto power 
over proposed alternatives, because this judgment requires the 
Secretary's concurrence. In addition, it is the Senate's intent that 
these judgments be supported by substantial evidence as required by 
Section 313 of the Federal

[[Page 14032]]

Power Act. I would like to ask the senior Senator from New Mexico the 
following question: If the Secretary determines that a license 
applicant's judgment has been based on inaccurate data and thus fails 
to meet the test of being supported by substantial evidence, can the 
Secretary withhold his or her concurrence?
  Mr. Domenici. The Senator from Washington is correct in expressing 
our intent that the license applicant's judgment be supported by 
substantial evidence. It is not our intent to provide an incentive for 
applicants to provide poor data in order to prompt the rejection of a 
condition by other stakeholders. If the Secretary of a resource agency 
determines that the evidence provided by the license applicant is of 
insufficient quality and therefore does not meet the substantial 
evidence test, the Secretary should not concur with the license 
applicant's judgment in the matter.


                      integrated coal gasification

  Mr. SALAZAR. Mr. President, I am pleased to join with the 
distinguished majority leader in support of H.R. 6.
  I am particularly pleased with the bill's support for integrated coal 
gasification, IGCC, technology development and deployment into 
commercial use. Our Nation needs a comprehensive energy policy which 
promotes new, cleaner, and more advanced generation technologies.
  I have been increasingly concerned with the challenges associated 
with developing IGCC technology for burning Western coal. Western coal 
is a valuable resource and crucial to our economy; however, both cost 
and technological difficulties have prevented development of IGCC in 
the West. That is why I support a provision for a Western IGCC 
Demonstration Project, Section 407. This project would allow for 
development of an IGCC technology designed to use Western coal and in a 
cost-effective manner.
  I have also been increasingly concerned with the need to address 
climate change. The promise of IGCC technology's ability to reduce 
carbon dioxide emissions should be realized as soon as possible. That 
is why the Western IGCC demonstration project shall include a carbon 
technology component.
  I wish to also take this opportunity to clarify an important point. 
There have been media reports expressing concern that the Western IGCC 
demonstration project is special legislation designed to benefit a 
single company building a new project in Wyoming. I can assure you that 
neither this provision, nor any other provision I have sponsored, is 
designed to benefit any specific project or any specific company. My 
sincere objective is simply to provide for the development of an IGCC 
demonstration project in the West, using Western coal, regardless of 
who owns or develops it.
  This provision is designed to provide incentives to an IGCC project 
using Western coal at high altitudes. I have heard from many 
stakeholders, the utility industry, environmental groups and energy 
consumers, regarding the potential environmental and energy benefits of 
this new technoloy. However, I have also heard that IGCC has been 
applied primarily in the East. It is not yet demonstrated to be viable 
and cost-effective in the high altitude West using the low-rank coals 
mined in Western States. This provision would allow the region to prove 
the viability of this important technology, assess carbon capture and 
sequestration opportunities, and, I hope, lead to its successful 
deployment in my region of the country.
  The purpose of the Western coal demonstration project will be to show 
that coal gasification works for the different kinds of coals mined in 
the West. This includes the lower energy coals like those mined in 
Wyoming's Powder River Basin, and it includes higher energy coals like 
those found in Colorado. These coals vary by energy content, and in 
other ways such as moisture and sulfur content. My colleague from 
Wyoming and I want to ensure that the demonstration project will show 
the feasibility of gasification for the entire range of Western coals. 
In that way, hurdles to gasification can be removed and our Nation can 
move forward into a cleaner energy future, and one that recognizes the 
importance of our abundance of coal resources.
  I want to close with a special tribute to Senator Thomas for his 
diligence in this effort. We are both Western Senators and we share a 
concern that the Western United States should benefit from IGCC 
technology as much as the Eastern United States. I want to thank him 
for his initiative and support for this provision.
  Mr. DOMENICI. I thank Senator Salazar for his support for H.R. 6 and 
share his interest in developing a sound and forward-looking energy 
policy for our Nation. I understand his concern that the West enjoy 
clean energy generation. I look forward to working with him to move 
H.R. 6 as quickly as possible.


                        Innovative Technologies

  Mr. CONRAD. Mr. President, I would like to engage the distinguished 
manager of the bill in a brief colloquy. I understand that title XIV of 
the bill before us includes incentives for ``innovative technologies,'' 
including gasification projects that will allow us to use our vast 
domestic coal reserves to produce clean transportation fuels.
  Mr. DOMENICI. The Senator is correct.
  Mr. CONRAD. I thank the distinguished Senator from New Mexico for 
accepting clarifying language that will allow additional coal-to-fuel 
facilities to qualify for the loan guarantees included in title XIV of 
the Energy bill.
  As a result of these changes, the incentives included in section 
1403, which include loan guarantees, would apply to the development of 
projects that will utilize various gasification technologies to produce 
clean transportation fuels from any of our coal types, including 
bituminus, sub-bituminous, and lignite coals.
  Mr. DOMENICI. The Senator is correct.
  Mr. CONRAD. Again, I thank the distinguished chairman of the Energy 
Committee for working with me to ensure that facilities in my State 
will be eligible for these incentives for coal-to-liquids technologies. 
It is my hope that North Dakota's coal resources will play an important 
role in reducing our dependence on foreign oil, allowing us to create 
jobs here at home and clean our environment.


                          Governor's Authority

  Mr. VITTER. Mr. President, I would like to discuss a Governor's 
authority to approve the issuance of a license for an offshore LNG 
facility.
  Mr. DOMENICI. I understand that intend to emphasize the current role 
of a Governor in the licensing of offshore LNG facilities pursuant to 
the Deepwater Port Act.
  Mr. VITTER. The Senator is correct. In Louisiana, there has been a 
tremendous amount of controversy involving the licensing of offshore 
LNG terminals recently related mainly to a technology for reheating the 
gas called open rack vaporization. My amendment is designed to 
emphasize the Governor's current authority under the Deepwater Port 
Act. Under current law the Deepwater Port Act allows the Governor of a 
state to approve--or be presumed to approve--the issuance of a license 
for an offshore LNG facility.
  Mr. DOMENICI. The Senator saying that a Governor currently has a 
clear opportunity to disapprove that a license be issued for any 
offshore LNG terminal?
  Mr. VITTER. That is correct. So, no changes to existing law are 
necessary in order for the Governor to approve or disapprove issuance 
of a license for offshore LNG facilities.
  Mr. DOMENICI. How many times has a Governor used this authority to 
approve or disapprove that a license be issued?
  Mr. VITTER. A Governor has never attempted to use this authority. In 
the case of Louisiana, we have two licensed offshore LNG facilities and 
the Governor of Louisiana approved both of these facilities.
  Louisiana has lost thousands of jobs due to the high costs of energy. 
The underlying bill does much to address this challenge and LNG will 
play an important role in addressing the increasing demand for natural 
gas.
  I thank the Senator from New Mexico for clarifying the Governor's 
authority to approve or disapprove an offshore LNG facility.

[[Page 14033]]




        blm policy on oil and gas development in potash reserve

  Mr. CORNYN. Mr. Chairman, I rise to speak to an amendment I have 
filed to address the Bureau of Land Management's policy toward 
development of much needed oil and gas resources in the potash reserve. 
Notwithstanding the strong bipartisan consensus that the U.S. must 
expeditiously develop its readily available domestic oil and gas 
resources, for decades the Bureau of Land Management has restricted 
development of large volumes of oil and gas located in the Known Potash 
Leasing Area near Carlsbad, NM. BLM has authority to permit compatible 
oil and gas development in conjunction with potash mining in the area, 
but the agency has failed to do so due to asserted concerns with 
adverse impact on potash mining reserves and mine safety. For a long 
time the oil and gas industry has had the technical ability to drill in 
the potash region without creating any such threat to these potash 
mining interests. Concerns with BLM's administration of the Interior 
Secretary's October 1986 order have been raised with Congress over many 
years. However, given the Nation's continuing economic stress due to 
the oil and gas price and supply situation, and the policy imperative 
underlying the current energy bill debate to facilitate resource 
development on Federal lands where Federal rules or policies have 
unnecessarily inhibited such activity, the time has come to 
expeditiously resolve the administrative problems that have impeded 
reasonable oil and gas development in the Nation's potash reserve.
  The BLM has denied approximately 190 applications for drilling 
permits and applicants strongly believe that their permits have been 
denied without appropriate consideration of their technical ability to 
develop oil and gas in the potash area while not creating any safety 
risks to potash mining or jeopardizing economically recoverable potash 
reserves.
  My amendment would address this disadvantage for oil and gas drilling 
permits in the potash area, insuring that BLM allows drilling 
compatibly with the interest in maintaining potash reserves and mining 
in the area. Specifically, my amendment would still allow BLM to deny 
permits out of concern for adverse impact on potash mining, but only if 
the agency could specify with particularity the reasons why approval of 
the oil and gas permit would jeopardize potash mining safety or 
threaten recoverable potash reserves the value of which exceeded the 
value of the recoverable oil and gas associated with the relevant 
permit.
  I understand that the chairman is well aware of the protracted 
history of this problem and has directed his staff to investigate the 
situation with BLM. Indeed, this week my staff attended a meeting with 
the BLM State director and the Chairman's staff to discuss this issue.
  I certainly could offer the amendment for a vote at this time, but 
may I first inquire of the chairman whether he shares my concern with 
the BLM policy regarding the amount of oil and gas drilling being 
permitted in the potash region?
  Mr. DOMENICI. This has been an evolving problem for some time now and 
I share the Senator's concern about whether the proper balance is being 
struck. Particularly in light of available technologies, I believe that 
there should be a way to produce oil and gas in the potash area without 
interfering with the recovery of the potash resource. My desire is to 
see both a vibrant potash industry and a vibrant oil and gas industry 
in the region, with both generating strong economic activity and 
employment.
  Mr. CORNYN. I share the Chairman's views and would furthr inquire 
whether the chairman would be willing to work with me through the 
course of the conference on the energy bill to assure that this problem 
with BLM policy is properly addressed?
  Mr. DOMENICI. I would tell the Senator that I would be pleased to 
give him that commitment.
  Mr. CORNYN. I thank the Chairman.


                              section 1270

  Ms. CANTWELL. Mr. President, I wish to clarify for my colleagues the 
intent of section 1270 of the underlying Energy bill, which is a 
provision of extreme importance to my Washington State constituents. 
Ratepayers in my State were harmed by the Western energy crisis and the 
manipulation and fraudulent practices of Enron in wholesale electricity 
markets. A number of proceedings remain underway at the Federal Energy 
Regulatory Commission, which will determine the relief granted to 
consumers harmed by Enron's unlawful trading practices. An important 
issue that remains is whether utilities--such as Washington State's 
Snohomish County Public Utility District--should be forced to make 
termination payments to Enron, for power Enron never delivered in the 
midst of its scandalous collapse into bankruptcy.
  The intent of section 1270 of the underlying bill and the technical 
correction we have adopted today is simply to affirm that the Federal 
Energy Regulatory Commission has exclusive jurisdiction under sections 
205 and 206 of the Federal Power Act to determine whether these 
termination payments should be required. This provision expresses 
Congress's belief that the issues surrounding the potential requirement 
to make termination payments associated with wholesale power contracts 
are inseparable and inextricably linked to the commission's 
jurisdictional responsibilities.
  Mr. CRAIG. I would like to inquire of the Senator from Washington, 
does section 1270 predetermine or in any way prejudice the manner in 
which FERC employs its jurisdiction in matters currently pending before 
the Commission?
  Ms. CANTWELL. This provision in no way prejudices or predetermines 
FERC's decisions in those matters. During the Senate Energy Committee's 
work on this legislation, the supporters of this amendment and I 
initially considered offering an amendment that would have gone further 
to require a certain outcome, had the commission made certain findings. 
We chose not to pursue that amendment in response to concerns that were 
raised by colleagues. Section 1270 of this legislation is completely 
neutral regarding how the commission uses its authority under sections 
205 and 206 of the Federal Power Act. As such, the provision does not 
in any way implicate what is known as the Mobile-Sierra doctrine, 
related to which standard FERC should apply to its review of 
jurisdictional wholesale power contracts.
  Mr. CRAIG. How does the technical amendment adopted today further 
clarify the committee and Congress's intent in regard to section 1270 
of the underlying legislation?
  Ms. CANTWELL. The clarifications to section 1270 effectuated by the 
amendment accepted today are consistent with the committee's intent in 
adopting section 1270. In addition, they are completely consistent with 
Supreme Court precedent.
  The committee sought assurances that section 1270 would not disturb 
underlying legal doctrines such as the Mobile-Sierra doctrine or the 
separation of powers principles. The amendment provides further clarity 
that section 1270 is not intended to otherwise disturb or modify the 
Mobile-Sierra doctrine by adding the phrase ``or contrary to the public 
interest.'' This phrase, when coupled with the standard recital of 
FERC's exclusive authority to determine whether a charge is just and 
reasonable, makes it clear that Congress is making no pronouncements 
regarding the manner in which FERC exercises its authority, but rather 
only that it is the appropriate forum to resolve these issues. Congress 
is giving no guidance to FERC on Mobile-Sierra one way or another 
through this provision.
  The committee's overarching intent with respect to section 1270 was 
to ensure that the Federal Energy Regulatory Commission, and not the 
bankruptcy court involved in the Enron matter, decides all of the 
issues surrounding whether termination payments are lawful. The 
addition of the phrase ``rate schedules and contracts entered 
thereunder'' ensures that result.
  In addition, this clarification is completely consistent with Supreme 
Court

[[Page 14034]]

decisions permitting Congress to give a Federal agency the authority to 
resolve matters that are also normally addressed by our judicial branch 
of government. As the Supreme Court stated in a case entitled Commodity 
Futures Trading Commission v. Schor, 478 U.S. 833, 854 (1986),

       ``looking beyond form to the substance of what Congress has 
     done'', we are persuaded that the congressional authorization 
     of limited CFTC jurisdiction over a narrow class of common 
     law claims as an incident to the CFTC's primary, and 
     unchallenged, adjudicative function does not create a 
     substantial threat to the separation of powers. Thomas v. 
     Union Carbide Agricultural Products Co., 473 U.S. 568, 589 
     (1985).

  Similarly, in this instance, the grant of authority to FERC to decide 
this matter is exceedingly narrow insofar as it relates solely to the 
legality of Enron collecting additional profits in the form of 
termination payments for power not delivered. Clearly, it is directly 
related to the agency's core function to ensure just and reasonable 
rates and guard against market manipulation. Moreover, these are public 
rights that are at stake in this dispute--the rights of electric 
ratepayers across the country to just and reasonable rates, rights that 
have existed under federal statute since 1935--and not mere private 
rights that should be resolved by a non-article III bankruptcy 
tribunal. Accordingly, the clarification provided by the amendment is 
completely consistent with Supreme Court precedent on the separation of 
powers principle.


                    clean diesel passenger vehicles

  Mr CARPER. Mr. President, I would like to take a moment to discuss 
with my friend, the Senator from Montana, a tax incentive which I 
believe is very important to our efforts to reduce fuel consumption in 
America. As you know, Senator Baucus is the ranking Democrat on the 
Senate Finance Committee and has a great understanding of our nation's 
tax policy, as well as a great institutional memory of tax legislation 
through the years. Senator Baucus and Senator Grassley, the chairman of 
the Finance Committee, provide us with advice and counsel concerning 
tax policy and do a superb job in that role.
  The specific incentive I would like to discuss with my friend from 
Montana is a provision included in the House energy bill to encourage 
the use of clean diesel passenger vehicles. It is called the ``diesel 
advanced lean-burn'' tax credit, and it would give consumers a credit 
on their income taxes when they purchase a clean diesel vehicle meeting 
stated fuel efficiency and environmental requirements. I am very 
supportive of this provision and want to encourage my colleagues to 
consider it when the Senate energy bill is conferenced with the House 
bill.
  Why is that? Why do I think this provision is so important to our 
energy policy? For these reasons.
  Diesel fuel contains more energy than gasoline, resulting in fuel 
economy increases of more than 40 percent compared to equivalent gas 
powered autos.
  In fact, the Department of Energy estimates that 30 percent diesel 
penetration in the U.S. passenger vehicle market by 2020 would reduce 
net crude oil imports by 350,000 barrels per day.
  So why aren't diesel vehicles more common on U.S. highways? Because 
until recently, they have been considered significantly dirtier in 
terms of air pollution. But the technology has changed. Today, you will 
have a difficult time telling a new diesel car from its gasoline 
counterpart. New diesels are clean, quiet, and powerful. And they will 
get even cleaner with the introduction of low sulfur diesel fuel in the 
United States late next year as the result of new regulations.
  Diesel engines have become increasingly popular in Europe over the 
last 20 years to the extent that market penetration now exceeds 40 
percent. The situation is very different in the U.S. where diesel 
accounts for only 1 percent of light vehicles.
  Clean diesel engines provide the perfect platform for the use of 
BioDiesel which comes from products grown here at home by American 
farmers. The more diesel engines on the road, the greater demand for 
this renewable product, and the less petroleum imports from overseas to 
meet our fuel needs.
  We now have the opportunity to take advantage of the advances in 
clean diesel technology and to do what we can to get more of these fuel 
efficient vehicles on the road.
  In the 2003 Energy Bill there was a tax incentive for ``new advanced 
lean burn motor vehicles,'' and the House recently passed an Energy 
Bill containing essentially the same provision.
  So with that background, I wanted to ask my friend from Montana 
whether it is correct that high efficiency diesel vehicles would be 
considered ``lean burning'' vehicles?
  Mr. BAUCUS. First, let me compliment my friend for his thoughtful 
discussion of this issue. The Senator from Delaware has obviously done 
a fair amount of homework on automotive technology, and I appreciate 
his insights on the benefits of clean diesel technology. Let me also 
congratulate the Senator on his work with Senator Voinovich and others 
on the recently introduced legislation to clean up heavy-duty diesel 
engines through retrofitting. We adopted that measure as an amendment 
to the energy bill earlier this week, and I think it is an important 
addition, so I thank the Senator for his work in that regard.
  Now, to respond to the Senator's question concerning the diesel lean-
burn provision from the House bill. Under the House provision, the tax 
credit would be available for the purchase of diesel vehicles meeting 
certain fuel efficiency and emissions standards. As long as a vehicle 
met those standards, it would be considered a ``lean burning'' vehicle 
and thereby merit the tax credit to the purchaser.
  Mr. CARPER. The 2003 conference legislation contained incentives for 
lean-burn diesel vehicles. Is it fair to say that you are interested in 
this technology and in promoting cleaner diesel cars in the U.S.?
  Mr. BAUCUS. I agree with my colleague that lean-burn diesel is 
promising technology. We did include the diesel lean-burn credit in the 
energy conference measure in 2003. As you know, in the Senate bill, we 
have included similar incentives for the purchase of other energy-
efficient vehicles--hybrids, alternative fuel vehicles and fuel cell 
vehicles. We often start out with different positions than our House 
counterparts, and typically we merge together the best pieces of each 
bill in conference. I think any new technology warrants serious 
consideration if it can help make U.S. vehicles more fuel efficient and 
lessen our dependence on foreign oil.
  Mr. CARPER. And is it your thought that the Senate conferees should 
carefully consider the tax incentives provided in the House version of 
the bill for these types of vehicles?
  Mr. BAUCUS. I believe we should, and I believe we will. I am 
confident that the clean diesel credit will get very careful 
consideration by the Senate conferees.
  Mr. CARPER. I thank my friend for taking a moment to discuss this 
matter with me, and I would encourage my colleagues who will be 
negotiating the tax provisions of the Energy Bill with the House of 
Representatives to do just that--to carefully consider the benefits 
that new clean diesel vehicles have to offer. I think the benefits are 
substantial, that diesel passenger vehicles are already very clean and 
will get even cleaner next year when low sulfur fuel becomes available, 
and that a transition toward this technology will pay big dividends for 
the country over the next few years. This is something we can do which 
will have an almost immediate positive effect, and I encourage my 
colleagues to consider this incentive positively.
  Ms. CANTWELL. Mr. President, I rise to speak to a particular section 
of the comprehensive energy bill (S. 10) that we have been discussing 
for the past 2 weeks. My comments focus specifically on section 1270 of 
this legislation.
  Section 1270 was an amendment I offered in the Energy & Natural 
Resources Committee mark-up of this legislation. It was accepted after 
considerable debate and discussion, on a bipartisan voice vote. Since 
then, I have continued to work with my colleagues on the Energy 
Committee, to

[[Page 14035]]

further clarify and perfect this language. In fact, I was pleased to 
work with my colleague from Idaho, Senator Craig, on a technical 
amendment to this language, amendment No. 895, to refine it even 
further.
  This provision, entitled ``Relief for Extraordinary Violations,'' is 
extremely important to the consumers of Washington State and ratepayers 
in other parts of the West, who bore tremendous costs as a result of 
Enron's schemes to manipulate our wholesale electricity markets. The 
principle at the heart of this provision is simple. The consumers of 
Washington State must not be forced to become the deep-pockets for 
Enron's bankruptcy. The same ratepayers who have paid so dearly for the 
Western energy crisis and Enron's schemes to manipulate markets should 
not be forced to pay even more--four years later--for power that Enron 
never even delivered.
  I must thank my colleagues on the Energy Committee for their 
thoughtful consideration of this issue, particularly my colleagues from 
the Pacific Northwest and West as a whole who have seen first-hand the 
toll the crisis has taken on our economy and our constituents. I must 
also express my gratitude to the rest of the members of the committee, 
and to the chairman and ranking member for indulging what was a very 
thoughtful debate on this issue.
  At the conclusion of the committee debate, this Senator was extremely 
satisfied; first, because of the very nature of the debate itself, in 
which--for almost an entire hour--a bipartisan group of Senators 
focused their valuable time and attention on a situation that is highly 
complicated, and likely unprecedented in the history and application of 
our Nation's energy laws. And second, because, at the end of the day, 
the committee struck a blow for justice and for Western consumers. It 
was an important statement. This is not the kind of country where we 
should reward Enron for its criminal conspiracy to commit fraud; a 
fraud of historic proportions perpetrated against the consumers of the 
West.
  As my colleagues appreciate by now, my State was particularly ravaged 
by the western energy crisis of 2000-2001. One of my State's public 
utility districts, Public Utility District No. 1 of Snohomish County, 
had a long-term contract with Enron, to purchase power. The contract 
was terminated once Enron began its scandalous collapse into 
bankruptcy. Nonetheless, Enron has asserted before the bankruptcy court 
the right to collect all of the profits it would have made under the 
contract through so-called ``termination payments.'' Enron has made 
this claim even though Enron never delivered the power under the 
contract, even though Enron had obtained its authority to sell power 
fraudulently, and even though Enron was in gross violation of its legal 
authority to sell power at the very time the contract was entered into. 
This has been demonstrated by the criminal guilty pleas of the senior 
managers of Enron's Western power trading operation, in which it has 
been admitted that Enron was engaged in a massive criminal conspiracy 
to rig electric markets and rip off electric ratepayers. But it has 
been further illustrated by the now-infamous Enron tapes, in which 
Enron employees discuss many unsavory topics, including specifically 
how they were ``weaving lies together'' in their negotiations related 
to the contract with Snohomish.
  I will tell my colleagues that there is no way under the sun that I 
believe my constituents owe Enron another penny. Not one single penny 
more. What this amendment does is ensure that, when the Federal Energy 
Regulatory Commission FERC comes to a conclusion later this year about 
how to cleanup the Enron mess, that the bankruptcy court cannot 
overturn FERC's decision about whether these ``termination payments'' 
are just, reasonable or in the public interest. It says to FERC, ``do 
your job to protect consumers, and when you make a decision, that 
decision will stand.'' Interpreting our nation's energy consumer 
protection laws is not the job of a bankruptcy judge.
  Now, this Senator has a very strong opinion on this matter in 
general. I believe there is no way no stretch of the imagination, or 
interpretation of law in which these termination payments could be 
deemed just, reasonable or in the public interest, knowing everything 
we know today about what Enron did to the consumers of my state. In 
fact, during committee debate on the underlying provision in this bill, 
some of my colleagues suggested that we should just out-right abrogate 
these contracts; simply declare them null and void on their face. But 
what we recognized, relying on the legal expertise of the committee 
staff, is that an act like that--as tempting as it may seem--would pose 
certain constitutional issues. We recognized that this provision 
section 1270--is the best way for Congress to express its will in this 
matter.
  I have, as my colleagues know, had substantial differences with FERC 
over the course of the past few years. But I am glad to say today, 
after 4 long years, it appears that the commission may be on the right 
track on this issue. This March, FERC issued a ruling in which the 
commission definitely found that the termination payments at issue here 
``are based on profits Enron projected to receive under its long-term 
wholesale power contracts executed during the period when Enron was in 
violation of conditions of its market-based rate authority.'' For the 
first time, FERC found that Enron was in violation of its market-based 
rate authority at the time victimized utilities such as Washington's 
Snohomish PUD inked power sales contract with the now-bankrupt energy 
giant. That FERC process is on-track to wrap-up this year; but so long 
as that process is ongoing, utilities like Snohomish have been 
operating under the threat that the bankruptcy court would swoop in and 
demand payments for Enron, regardless of the pattern of market 
manipulation and fraud. In a series of rulings, the bankruptcy court 
has expressed its will to do just that. What this provision does is 
ensure the bankruptcy court cannot force these utilities and their 
consumers to make termination payments that are unjust, unreasonable or 
contrary to the public interest.
  Section 1270 states that notwithstanding any other provision of law, 
and specifically the bankruptcy code, FERC ``shall have exclusive 
jurisdiction'' to make these determinations. Many of my colleagues 
might naturally assume that this provision merely sets forth what is 
already the case. But as I stated earlier, that is not necessarily the 
case. This provision is necessary and critical because the Federal 
bankruptcy court has already concluded that it will not defer to FERC 
with respect to whether our constituents will be required to make 
termination payments. Not only has the bankruptcy court not deferred to 
FERC, it compounded the seriousness of the issue by enjoining FERC from 
proceeding with its own specific inquiry into whether Enron is owed the 
termination payments. It forced FERC to stop on a matter that FERC had 
said required its special expertise.
  Imagine making it through the arduous and frustrating, years-long 
process of proving the case against Enron and proving it to FERC, only 
to find out at the end of the day that the bankruptcy court would 
intervene and force these termination payments anyway. It is this 
situation--a collision between FERC and the bankruputcy court that this 
legislation addresses. And what the Congress is saying with this 
amendment, as counsel for the Energy Committee stated during our 
extended discussion, is that ``the Commission, not the bankruptcy 
[court], is the proper forum in which these question be resolved.'' 
That is certainly my view, and the view of many of us who represent 
ratepayers harmed by Enron.
  I do not assume this position in denigration of the responsibility of 
the bankruptcy court. The bankruptcy court has an important role to 
play in our law and our economic community. However, I do think it is 
fair to say that it is a forum in which it naturally looks first to 
maximizing the assets of the estate. In contrast, the Federal Energy 
Regulatory Commission's first obligation is to protect our nation's 
ratepayers. In this very unique context, in

[[Page 14036]]

which a seller of electricity that has fraudulently and criminally 
manipulated the market in violation of the tariffs on file with the 
commission--and where the seller is now seeking to reap the profits 
from that activity in the form of termination payments for power never 
delivered--what we are saying here, unequivocally, is that FERC is the 
forum in which this should be resolved. FERC is the entity that is 
supposed to look after our nation's ratepayers, and should have make 
the decision about whether termination payments are permissible under 
the Federal Power Act..
  Given the nuanced, legal nature of this provision, I can assure my 
colleagues that this ``rifle shot,'' as the ranking minority member of 
the committee called it, is narrowly drawn in order to minimize any 
unanticipated impacts. It is only applicable to contracts entered into 
during the electricity crisis with sellers of electricity that 
manipulated the market to such an extent that they brought about unjust 
and unreasonable rates. There is only one such seller, and that is 
Enron, and there are only a handful of terminated contracts with Enron 
that haven't been resolved as of this date.
  As a result, the amendment does not tamper with or otherwise disturb 
long-standing legal precedents. It does not tamper with the Mobile-
Sierra doctrine, nor does it disturb other recent federal court 
decisions regarding the relationship of the bankruptcy courts and FERC 
in the context of the rejection in bankruptcy of FERC approved power 
sales contracts. It is, as the ranking minority member of the committee 
observed, a ``clean shot'' that ``affirms that FERC is the entity with 
the authority to review whether termination payments associated with 
cancelled Enron power contracts are lawful under the Federal Power 
Act.''
  The ultimate disposition of this issue is of paramount concern to my 
constituents. It will decide whether they will be on the hook for more 
than $120 million, an amount that means more than $400 in the pocket of 
each ratepayer in Snohomish County, WA. It is critical that this issue 
be decided by the forum with the specialized expertise in matters 
relating to the sale of electricity with a stated mission of protecting 
ratepayers, and that is the Federal Energy Regulatory Commission.
  Let me conclude by saying that I am very pleased that this provision 
has broad bipartisan support as well as the support of the Edison 
Electric Institute, the National Rural Electric Co-operative 
Association and the American Public Power Association. I believe my 
colleague from Oregon, Senator Smith, said it exactly right when this 
amendment was debated in committee, and I am extremely grateful for his 
support. He essentially said that no Senator Republican or Democrat 
should feel any limitation in ``lending their shoulder to this wheel,'' 
to get this situation fixed. Senator Smith, Senator Allen, and Senator 
Craig all played important roles during the mark-up in allowing this 
measure to move forward.
  And I would be remiss if I did not mention the invaluable assistance 
from the Senators from Nevada on this issue the minority leader, 
Senator Reid, but also Senator Ensign. While Senator Ensign does not 
serve on the Energy Committee, he played a crucial role in ensuring 
that colleagues on both sides of the aisle understood the importance 
and reasonableness of this measure, and the importance of this 
provision to him and to the people of Nevada.
  I thank my colleagues, look forward to the passage of this provision 
out of the Senate and to working together to ensure this critical 
measure is included in legislation that emerges from the Energy bill 
conference with the House of Representatives.
  Mrs. MURRAY. Mr. President, I would like to express my support for a 
provision in this energy legislation that provides relief for 
Washington State ratepayers who suffered from Enron's market 
manipulation schemes.
  All of us from the West Coast remember the energy crisis of 2001, 
when consumers and businesses were hit with massive increases in the 
cost of energy. Many in California faced shortages and brownouts. In 
Washington State, we felt the impact as well.
  Washington State ratepayers have been continually penalized for 
failures in the energy market and failures by Federal energy 
regulators. While there were many causes for the energy crisis, the 
most disturbing is the fact that energy companies, such as Enron, 
manipulated the marketplace to take advantage of consumers.
  As we saw throughout the crisis, the Federal Energy Regulatory 
Commission did not take aggressive action to protect consumers from 
market manipulation. In fact, over the last several years, as we in the 
West have sought to clean up the mess that these companies left in 
their wake, FERC has continued to drag its regulatory feet.
  For more than 3 years, many of us in the Northwest delegation have 
been urging FERC to better protect consumers, and provide relief to 
ratepayers affected by market manipulation. At the height of the 2001 
energy crisis, FERC was urging companies to enter into long-term 
contracts at highly-inflated rates, advice which many Northwest 
companies followed.
  In 2003, FERC found that market manipulation occurred during the 2001 
energy crisis, but indicated it would be unlikely that Washington State 
ratepayers would be reimbursed for the harm caused by the manipulation. 
When Western utilities--including Snohomish PUD, which was hit 
particularly hard--terminated their contracts with Enron, Enron turned 
around and sued them for ``termination payments.''
  It was very disturbing for all of us to see FERC agree that there was 
manipulation, but leave Washington ratepayers holding the bag--with no 
relief--for the harm they experienced in 2001 and continue to 
experience today.
  I am pleased that this energy legislation addresses this important 
issue by giving FERC exclusive jurisdiction to determine whether 
termination payments are required under certain power contracts are 
unjust and unreasonable.
  This is wonderful news for Washington State ratepayers because of a 
March 2005 order, in which FERC found Enron in violation of its market-
based authority at the time Snohomish PUD signed its power contract. 
This provision ensures Snohomish PUD's ratepayers will not be required 
to pay the now-bankrupt Enron for power the region did not receive.
  Mr. President, I support this provision as it will protect Northwest 
ratepayers and give FERC more tools to better police the energy market.
  Mr. ENSIGN. Mr. President, I rise to thank my colleagues for 
including a provision in this bill which give the people of Nevada a 
fair chance to keep their hard earned money away from the clutches of 
Enron.
  Enron is still seeking to extract an additional $326 million in 
profits from my State's utilities for power that was never delivered. 
Enron, after all of its market manipulation and financial fraud, is 
still trying to profit from its wrong-doing at the expense of each and 
every Nevadan.
  Section 1270 of the Energy Policy Act ensures that the proper 
government agency will determine whether Enron is entitled to more 
money from Nevada. That agency is the Federal Energy Regulatory 
Commission. When FERC was established by Congress, its fundamental 
mission was, and remains, to protect ratepayers. FERC has specialized 
expertise required to resolve the issues surrounding some of the 
contracts that Enron entered into and eventually terminated.
  Many of my colleagues know that Enron has filed for bankruptcy 
protection. There is an issue in the bankruptcy case as to whether 
Enron can enforce contracts that it terminated. The enforceability of 
these contracts should not be decided by a bankruptcy court. A 
bankruptcy judge does not have the specialized expertise required for 
this job. A bankruptcy court is responsible for considering different 
equities than an oversight agency, like FERC, would. The bankruptcy 
court is responsible for enhancing the bankruptcy estate for the 
benefit of creditors. FERC, on the other hand, sees a more complete 
picture which includes

[[Page 14037]]

protecting the interests of the general public.
  This is why section 1270 is so important. It is a provision that is 
limited in scope. It does not seek to resolve the issue in the favor of 
one party. Though many Senators from affected States may have been 
tempted to legislate the outcome, we have refrained from doing so. Let 
me set the stage for why this provision is so critical. It is a 
complicated story. It is one that should be told in order to understand 
why I so strongly support this provision and why I believe the 
provision should be enacted into law.
  There are two major utilities that serve Nevada: Nevada Power and 
Sierra Pacific Power. Both need to buy power in the wholesale power 
market to meet the growing energy needs of Nevada. Las Vegas is the 
fastest growing city in the country. It takes a lot of power to keep 
the lights on in Las Vegas, Reno, and other parts of our growing State. 
At the height of the western electricity crisis, when spot market 
prices for electricity were going not just through the roof but through 
the stratosphere, FERC urged utilities like the Nevada utilities to 
reduce their purchases of spot supplies and enter into long-term 
contracts for electricity.
  That is precisely what the Nevada utilities did. Enron was one of the 
biggest suppliers of wholesale electricity at the time. Starting in 
December 2000, the Nevada utilities entered into long-term contracts 
with Enron to meet a significant portion of their long-term needs. At 
the time, no one was aware of Enron's on-going criminal conspiracy to 
manipulate the market. No one knew that Enron had engaged in fraud to 
hide its true financial picture.
  The prices that the Nevada utilities agreed to pay Enron for long-
term power were truly outrageous. The prices fully reflected Enron's 
success in manipulating the market. Prices were three times as high as 
the threshold that FERC had established as a ceiling price that would 
trigger close scrutiny under the just and reasonable standard. As a 
result, in November 2001, the Nevada utilities asked FERC to review the 
rates to determine whether those contract prices were just and 
reasonable.
  Two days after the Nevada companies filed their complaints against 
Enron, Enron filed for bankruptcy. Its financial house of cards had 
finally collapsed. As one definitive study of Enron concluded, Enron 
had been insolvent at the time the company entered into each and every 
contract with the Nevada utilities.
  The contracts between Enron and the Nevada utilities incorporated the 
Western Systems Power Pool Agreement, a master agreement on file and 
approved by FERC. This master agreement governs transactions of more 
than 200 parties throughout the west.
  Under the terms of that agreement, if one of the parties files for 
bankruptcy, the other party may rescind the agreement. So in this case, 
Enron's bankruptcy would have given the Nevada utilities cause to 
terminate the contracts. Under the unique terms of this agreement, 
however, the commercial party that is ``in the money'' will still be 
able to benefit if the contract is rescinded. So while the Nevada 
companies could terminate the contract, they still would have had to 
pay Enron the difference between the contract price and the market 
price at the time of terminating, to say nothing of the need to buy 
replacement power.
  When Enron entered bankruptcy, the price for electricity had fallen 
to the level power had sold for prior to Enron's market manipulation. 
This demonstrates that there was a huge difference between the 
artificially and unlawfully manipulated price that Enron commanded at 
the time of the contract and the market price at the time Enron filed 
for bankruptcy. Given the huge financial hit that the Nevada companies 
would have had to pay to terminate the Enron contracts, the Nevada 
companies continued to honor their commitment to purchase power under 
these contracts.
  In March 2002, the Public Utilities Commission of Nevada refused to 
allow the Nevada utilities to pass more than $400 million in purchased 
power costs on to ratepayers. As a result, the credit ratings of the 
Nevada utilities fell below investment grade. Under the terms of the 
WSPPA, this downgrade gave Enron the right to request assurances 
regarding the Nevada companies' intentions with respect to their 
contracts. In meetings and in telephone calls, the Nevada Companies 
assured Enron that they would be able to pay Enron everything that 
would be owed under the contracts.
  The WSPPA required Enron to use ``reasonable'' discretion with 
respect to the contracts. Despite this requirement, Enron terminated 
the contracts with the Nevada companies and demanded that the Nevada 
companies pay Enron termination payments totaling approximately $326 
million. These termination payments represent pure profit to Enron on 
power than Enron never delivered. By pure profit, I mean just that. The 
termination payments are calculated, as I previously noted, by the 
difference between the cost of power today and the outrageous, 
manipulation-based prices Enron was able to extract during the energy 
crisis that Enron had unlawfully created.
  The Nevada companies refused to make payment. At this time, it was 
known that Enron had manipulated the entire western market. As part of 
Enron's bankruptcy, an ``adversary proceeding'' was initiated to 
determine the enforceability of these contracts and whether Enron would 
be allowed to continue to profit under fraudulent contracts at the 
expense of Nevada's ratepayers.
  At this point, the legal proceedings become very complex but the 
proceedings should be summarized so my colleagues will understand 
exactly what has happened.
  On June 24, 2003, FERC determined that the ``just and reasonable'' 
standard of review is not available to the Nevada companies with 
respect to their long-term contracts with Enron. This decision was made 
because FERC argued that it had previously ``pre-determined'' that the 
contracts would be just and reasonable when they granted Enron its 
authority to sell electricity at market-based rates years earlier.
  On the very next day, FERC withdrew Enron's authority to sell 
electricity at market-based rates because of its ``market manipulation 
schemes that had profound adverse impacts on market outcomes'' which 
violated its ``market-based rate authorizations.''
  The bankruptcy court judge, on August 23, 2003, ruled on a summary 
judgment motion that the Nevada utilities were required to pay Enron 
$326 million in termination payments. The court held that, because FERC 
had not found that Enron's contracts should be modified by virtue of 
its market manipulation, the filed-rate doctrine applied. It further 
ruled that it did not need to defer to FERC on whether Enron had 
complied with the tariff since it could interpret the tariff as well as 
FERC.
  On October 6, 2003, the Nevada Companies filed a complaint with FERC. 
The complaint sought to have FERC determine: Enron's termination was 
unreasonable under the tariff; Enron was not entitled to termination 
payments on equitable grounds; and, assuming Enron was otherwise 
entitled to termination payments, the contract provision should be set 
aside as contrary to the public interest.
  Then, on July 22, 2004, FERC set for hearing the narrow question of 
whether Enron's termination was reasonable. FERC deferred ruling on the 
issue of whether the contract should be set aside under the public 
interest standard until that issue became ``necessary.'' At the 
hearing, FERC did not address the issue of equitable claims. On that 
same day, FERC ruled in a separate case that Enron could be required to 
disgorge all of its profits.
  On September 30, 2004, FERC's administrative law judge denied Enron's 
motion to dismiss the case, finding, among other things, that FERC's 
specialized expertise is required.
  U.S. District Court Judge Barbara Jones reversed a ruling of the 
bankruptcy court on October 15, 2004. The district court considered the 
issue of whether the Nevada companies owed Enron the termination 
payments. The district court found that the Nevada

[[Page 14038]]

companies had offered timely assurances and that the issue of whether 
Enron rejected those assurances and terminated reasonably were issues 
of fact which required a trial.
  On December 3, 2004, the bankruptcy court enjoined FERC from further 
proceedings after finding that FERC had violated the ``automatic stay'' 
provisions of the Bankruptcy Code. A hearing on termination payments 
was tentatively scheduled for this coming July. Currently, motions for 
interlocutory appeal are pending before a U.S. District Court Judge.
  Despite the ruling of a FERC administrative law judge that FERC's 
expertise was necessary to interpret the master tariff's requirement 
that a terminating party act ``reasonably,'' the bankruptcy court has 
enjoined FERC from further considering this issue. Section 1270 of this 
legislation confirms the decision of the FERC administrative law judge. 
This section says the judge is correct and the bankruptcy court is 
wrong. It makes clear that, in this limited matter, FERC has the 
exclusive jurisdiction to determine the merits of the claims at issue.
  This provision is very reasonable. It is a targeted response to a 
clash among competing jurisdictions over which tribunal, FERC or the 
bankruptcy court, should decide this issue. If Congress doesn't address 
the issue of jurisdiction now, the Supreme Court will have to do so 
years from now. That need not happen. Congress can decide this 
jurisdictional issue. The decision of the Senate, as reflected in 
Section 1270, is the right decision.
  The language of the amendment tracks Supreme Court precedent that 
recognizes that Congress can choose to give jurisdiction over issues to 
administrative agencies when the jurisdiction is consistent with the 
core functions of the agency. In this instance, the recognition of 
authority to FERC to decide this matter is narrow. It relates solely to 
the legality of Enron collecting additional profits in the form of 
termination payments for power not delivered. It is also directly 
related to the agency's core function to ensure just and reasonable 
rates and guard against market manipulation.
  I want to assure my colleagues that this provision does not encroach 
upon the sanctity of contracts. It merely picks the proper forum for 
determining whether Enron complied with its tariff obligations. 
Likewise, it also does not alter the standard of review for challenging 
the contract. Congress is not picking a standard; it is only picking a 
forum.
  Mr. President, this reasonable provision has the support of key 
industry leaders such as the National Rural Electric Cooperative 
Association, the American Public Power Association, and the Edison 
Electric Institute. It has bipartisan support. Anyone who has been as 
harmed by Enron as ratepayers in my state have understands the need to 
ensure that only the most qualified tribunal should rule on whether 
Enron can collect an additional $326 million in windfall profits.
  Mr. SALAZAR. Mr. President, as I have said time and again during this 
debate over the last several weeks, America is being held hostage to 
its over-dependence on foreign oil. This Energy bill is our first step 
in setting America free.
  From the National Renewable Energy Laboratory in Golden to the 
balanced development of oil and gas, Colorado is already playing a big 
part in setting America free.
  With a huge, untapped resource called oil shale, Colorado can play an 
even bigger role in this effort. If properly developed, oil shale that 
exists in my great State of Colorado has the potential to be part of a 
strategy to address America's dependence on foreign oil.
  Colorado is home to tremendous deposits of oil shale, a type of 
hydrocarbon bearing rock that is abundant in Western Colorado, as well 
as Utah and Wyoming. Estimates place the potential recoverable amount 
of this type of oil as high as 1 trillion barrels. Let me say that 
again--1 trillion barrels.
  Let me put that in perspective:
  Saudi Arabia's proven conventional reserves are said to be around 261 
billion barrels.
  Several of our colleagues argued earlier this spring that ANWR is a 
resource so remarkable that we must open that pristine land to 
drilling. According to the U.S. Geological Survey--USGS--the mean 
estimate of technically recoverable oil is 7.7 billion barrels--billion 
bbl--but there is a small chance that, taken together, the fields on 
this Federal land could hold 10.5 billion bbl of economically 
recoverable oil. That's one percent of the potential oil shale.
  Assuming we use 15 million barrels of oil a day just for 
transportation, oil shale could keep our transportation going for 
another 200 years.
  Colorado has some experience in trying to access this potential 
asset. We have had two boom and bust periods, one in the 1800s and the 
other in the 1980s.
  The most recent story is about the ``Boom & Bust'' Colorado 
experienced during the last oil shale development cycle that began in 
the 1970's and ended in May of 1982 on ``Black Sunday.''
  I will never forget the powerful lessons of Black Sunday.
  Colorado invested millions in new towns, only to see thousands of 
residents flee when oil prices fell, leaving behind them a devastated 
real estate market.
  Communities that invested heavily in schools and roads and housing 
could no longer meet the burden of paying for this critical 
infrastructure.
  Buildings on the Western Slope--and even in Denver--were built and 
left empty, if the construction was completed at all.
  Towns that thought they were seeing a bright future, struggled to 
deal with crippling unemployment.
  The technical challenges of oil shale and the searing memories of 
Black Sunday have taught all of Colorado some important lessons.
  We now recognize that oil shale's potential can only be realized if 
it is approached in the right way.
  Oil shale development must be considered a marathon and not a sprint.
  I believe, as many in Colorado do, that oil shale research and 
development must be conducted in an open, cautious and thoughtful 
manner that includes our local communities.
  As Congress instructs Federal agencies to consider oil shale research 
and development leasing and commercial leasing, it must give careful 
consideration to environmental and socioeconomic impacts and 
mitigations as well as the sustainability of an oil shale industry.
  Colorado is a team player. The people of my State are ready to share 
the abundant natural resources with which we have been blessed. In 
exchange, Colorado expects to have a seat at the table.
  That is why I introduced the Oil Shale Development Act of 2005. I am 
very pleased that it has been incorporated into the Energy bill we are 
now considering.
  I believe the oil shale provision in this Energy bill is a thoughtful 
approach to future oil shale development. It is full of commonsense 
provisions that build on the lessons we learned in that painful 
experience 30 years ago.
  It directs leasing for research and development;
  It requires a programmatic Environmental Impact Study to ensure that 
we take a comprehensive environmental look at potential commercial 
leasing;
  It directs the Secretary of Interior to work with the States, local 
communities, and industry to identify and report on issues of primary 
concern to local communities and populations with commercial leasing 
and development;
  and it insists that States--not the Federal Government--retain 
authority over water rights.
  I know we are going to hear more and more about oil shale development 
in the Rocky Mountain west. That is as it should be, and we will embark 
on a thoughtful, balanced approach to oil shale development with this 
bill.
  Mr. ALLEN. Mr. President, as we move forward on Energy legislation 
crucial for our country's national security, jobs, and competitiveness, 
I wish to raise an issue which is threatening global energy security. 
The surging demand for energy in developing countries coupled with the 
dynamic rise in

[[Page 14039]]

power and influence of government operated energy companies is changing 
the global energy market. Specifically, I am concerned about the role 
of the People's Republic of China with its national oil companies, and 
the potential adverse effects on U.S. energy supplies. I am also 
concerned about our ability to compete for energy assets.
  China's surging demand for energy is impacting the world. China has 
now emerged as the second largest consumer of energy, and demand could 
double by 2020. According to the U.S. Energy Information 
Administration, China is consuming 7.2 million barrels of oil per day 
and this is expected to rise to 7.8 million barrels of oil per day by 
next year. China alone has accounted for 40 percent of growth in oil 
demand over the last 4 years. According to recent studies, China's 
growing demand for oil is one of the significant factors driving oil 
prices to record high levels. With such growth in the Chinese economy, 
it is understandable why there is greater demand for energy in the form 
of coal, oil, and nuclear power as well as materials ranging from 
cement to steel.
  With limited domestic resources, China has embarked on an aggressive 
program through its national energy companies to secure energy and in 
doing so has proposed acquisition of energy assets around the world, 
including assets of U.S. based companies. It has become increasingly 
difficult for private companies in the U.S. to compete against these 
government-owned energy companies, such as the Chinese state-owned 
company known as CNOOC. The inherent advantage that these state-owned 
companies have is that they can operate under non-market terms and 
conditions for the purchase of energy supplies and assets, including 
accepting very low rates of return. Thus, private entities in free 
countries are disadvantaged in competing for energy assets.
  China in the past year has signed deals for oil reserved in Africa, 
Iran, South America, and now Canada. Today, one of China's largest 
state-controlled oil companies made a $18.5 billion unsolicited bid for 
Unocal, signaling the first big takeover battle by a Chinese company 
for a U.S. corporation.
  Energy is a global issue and we need to understand the implications 
for American interests on how these energy shifts may impact us as well 
as the rest of the world.
  It is important that we have a comprehensive review which would 
include a full assessment of the types of investments China is making 
in international and U.S. based companies, a better understanding of 
the relationship between the Chinese energy sector and the Chinese 
government, and what we can do to ensure a level playing field and 
flexibility in the global market. Perhaps most importantly, we need to 
understand how we can better work cooperatively to pursue energy 
interests as well as work together on conservation, energy efficiency, 
and technology.
  It is nice to talk about working cooperatively with China, but I am 
concerned that we may be headed on a collision course. Energy is the 
lifeblood of economic growth and we are beginning to see an imbalance 
occur. I look forward to hearing from the administration to gain a 
better understanding of the issues and how the U.S. can best proceed to 
secure our future energy needs.
  Mr. FEINGOLD. Mr. President, while I voted for a similar amendment 
offered by the Senators from Arizona, Mr. McCain, and Connecticut, Mr. 
Lieberman, in 2003, unfortunately, the current version of the amendment 
includes over $600 million in taxpayer subsidies for the creation of 
new nuclear powerplants. The nuclear industry is a mature industry that 
does not need to be propped up by the taxpayers. Over 300 national 
environmental and consumer organizations, including the League of 
Conservation Voters, Public Interest Research Group, and the Sierra 
Club, oppose this amendment. Our Nation faces an ever-growing budget 
deficit and we must be fiscally and environmentally responsible. I 
strongly believe that global warming is an important national issue, 
which is why I supported the Bingaman-Specter sense-of-the-Senate 
amendment to push for a national policy on global warming. I will 
continue to work with my colleagues on both sides of the aisle to 
create a meaningful global warming program.
  Mr. JEFFORDS. Mr. President, I rise today to congratulate my 
colleagues on our efforts to pass an energy bill through the Senate 
that does not include exemptions for the oil and gas industry from 
drinking water and clean water protections. Section 327 of H.R. 6 as 
reported contains an exemption to the Safe Drinking Water Act for the 
practice of hydraulic fracturing. Section 328 of H.R. 6 contains an 
exemption for the oil and gas industry from obtaining stormwater 
discharge permits under the Clean Water Act, rolling back fifteen years 
of environmental protection. These efforts to weaken the protections 
applied to our Nation's waters should be stricken from the bill as the 
conferees on H.R. 6 work to resolve the differences between the two 
bills.
  Over half of our Nation's fresh drinking water comes from underground 
sources. Hydraulic fracturing occurs when fluids are injected at high 
rates of speed into rock beds to fracture them and allow easier 
harvesting of natural oils and gases. It is these injection fluids, and 
their potential to contaminate underground sources of drinking water, 
that are of high concern. In a recent report, the EPA acknowledged that 
these fluids, many of them toxic and harmful to people, are pumped 
directly into or near underground sources of drinking water. This same 
report cited earlier studies that indicated that only 61 percent of 
these fluids are recovered after the process is complete. This leaves 
39 percent of these fluids in the ground, risking contamination of our 
drinking water.
  In June of 2004, an EPA study on hydraulic fracturing identified 
diesel as a ``constituent of potential concern.'' Prior to this, EPA 
had entered into a Memorandum of Agreement with three of the major 
hydraulic fracturing corporations, whom all voluntarily agreed to ban 
the use of diesel, and if necessary select replacements that will not 
cause hydraulic fracturing fluids to endanger underground sources of 
drinking water. However, all parties acknowledged that only technically 
feasible and cost-effective actions to provide alternatives would be 
sought.
  Litigation over the last several years has resulted in findings that 
hydraulic fracturing should be regulated as part of the underground 
injection control program in the Safe Drinking Water Act. Yet, EPA 
indicated in a letter in December of 2004 that they have no intention 
of publishing regulations to that effect or ensuring that state 
programs adequately regulate hydraulic fracturing.
  I will include our letter to EPA dated October 14, 2004, and their 
response dated December 7, 2004, in the Record.
  We need to be moving in the right direction--taking steps to ensure 
that hydraulic fracturing is appropriately regulated under the Safe 
Drinking Water Act. I have introduced S. 1080, the Hydraulic Fracturing 
Safety Act of 2005 to ensure that the practice of hydraulic fracturing 
is regulated under the Safe Drinking Water Act through the Underground 
Injection Control, UIC, Program. I would like to thank Senators 
Lautenberg, Boxer, and Lieberman for co-sponsoring that bill. The House 
energy bill takes steps in the wrong direction--exempting hydraulic 
fracturing from the Safe Drinking Water Act.
  I urge the conferees of this energy bill to strike section 327 of the 
House-passed energy bill. By striking this language, the conferees will 
help to ensure that the drinking water enjoyed by all Americans is not 
damaged through the process of hydraulic fracturing.
  This exemption for hydraulic fracturing is not the only step 
backwards that the House energy bill takes. Section 328 of the bill 
exempts the oil and gas industry from stormwater protections in the 
Clean Water Act.
  Stormwater runoff is a leading cause of impairment to the nearly 40 
percent of surveyed U.S. water bodies that do not meet water quality 
standards.
  Currently, the oil and gas industry is regulated under Phase I of 
EPA's

[[Page 14040]]

stormwater regulations which requires National Pollution Discharge 
Elimination System, NPDES, permits for medium and large municipal storm 
sewer systems and eleven, 11, categories of industrial activity, 
including construction sites disturbing more than 5 acres of land. In 
1999, EPA adopted the Phase II permitting requirements, effective March 
10, 2003, covering small municipal separate stormwater systems and 
construction sites affecting one to five acres of land. However, EPA 
extended the Phase II permitting deadline to June 12, 2006 for only the 
oil and gas industry.
  Now, section 328 of the House energy bill completely exempts the oil 
and gas industry from compliance with both Phase I and Phase II of the 
NPDES stormwater program.
  This action will adversely impact water quality. Oil and gas 
construction activities require companies to undertake a number of 
earth disturbing activities, including: clearing, grading, and 
excavating. Oil and gas site development may also include road 
construction to transport equipment and other materials, as well as 
pipeline construction. The stormwater pollution created from these 
activities can be devastating to the environment.
  According to the EPA, over a short period of time, stormwater runoff 
from construction site activity can contribute more harmful pollutants, 
including sediment, into rivers, lakes, and streams than had been 
deposited over several decades. Sediment clouds water, decreases 
photosynthetic activity, reduces the viability of aquatic plants and 
animals; and ultimately destroys animals and their habitat. Sediment 
rates from cleared and graded construction sites are typically 10 to 20 
times greater than those from agricultural lands and one-thousand to 
two-thousand times greater than those from forest lands. Other harmful 
pollutants in stormwater runoff from construction sites include 
phosphorous and nitrogen, pesticides, petroleum derivatives, 
construction chemicals, and solid wastes that may be mobilized when 
land surfaces are disturbed.
  More than 5,000 cities, towns, and counties and eleven, 11, 
industrial sectors are required to obtain NPDES stormwater permits. 
Large oil and gas construction sites covered under the Phase I 
stormwater program have been taking action to reduce the impact of 
sediments and pollutants on water quality since 1990. In 2005, GAO 
reported that over a one-year period, 4,330 oil and gas construction 
sites obtained Phase I stormwater permits in three of the six largest 
oil and gas producing states. In 20 the Warren County Conservation 
District submitted information to EPA indicating that 70 percent of the 
oil and gas projects they inspected between 1997 and 2002 were in 
violation of Phase I permit conditions. If this amendment is adopted, 
these actions will no longer be required. In FY 2002/2003, the Alaska 
Department of Environmental Conservation estimated that they would 
review 400 engineering plans as part of the stormwater permitting 
process. The House provision would exempt these sites from 15-year-old 
requirements to reduce the pollution they send into surrounding waters 
through stormwater discharges.
  The environmental impact from this amendment is even more severe when 
you factor in the approximately 30,000 oil and gas ``starts'' per year 
that EPA anticipates could be covered by the Phase II stormwater 
regulation. EPA is currently reviewing the impact of the regulation on 
these sites. Adopting this amendment would circumvent this review 
process and exempt thousands of sites from taking action to protect 
water quality.
  Section 402(l) of the Clean Water Act contains a limited exemption 
for specific types of uncontaminated discharges from specific types of 
oil and gas sites from stormwater permit requirements. The language of 
the Act and the legislative history of this section indicate that when 
adopted, section 402(l) was intended to give a narrow exemption for 
specific circumstances in the oil and gas industry that did not include 
construction activities at every oil and gas--related site.
  I urge the conference committee on H.R. 6 to reject the Clean Water 
and Safe Drinking Water Act exemptions included in the House energy 
bill. These provisions represent a major step backward in efforts to 
protect water quality and could pose a direct threat to the safety of 
drinking water supplies. Should these exemptions be included in the 
final conference report, we will see our Nation's water quality 
standards go down the drain.

  I ask unanimous consent to print the above-referenced letters in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         U.S. Senate, Committee on


                                 Environment and Public Works,

                                 Washington, DC, October 14, 2004.
     Administrator Michael O. Leavitt,
     Environmental Protection Agency, Ariel Rios Building, 
         Washington, DC
       Dear Administrator Leavitt: We are writing to you regarding 
     the Environmental Protection Agency's (EPA's). administration 
     of the Safe Drinking Water Act (SDWA) as it pertains to 
     hydraulic fracturing. In recent months, the Agency has taken 
     several key actions on this issue:
       On December 12, 2003, the EPA signed a Memorandum of 
     Understanding with three of the largest service companies 
     representing 95 percent of all hydraulic fracturing performed 
     in the U.S. These three companies, Halliburton Energy 
     Services, Inc., Schlumberger Technology Corporation, and BJ 
     Services Company, voluntarily agreed not to use diesel fuel 
     in their hydraulic fracturing fluids while injecting into 
     underground sources of water for coalbed methane production.
       In June of 2004, EPA completed its study on hydraulic 
     fracturing impacts and released its findings in a report 
     entitled, ``Evaluation of Impacts to Underground Sources of 
     Drinking Water by Hydraulic Fracturing of Coalbed Methane 
     Reservoirs. The report concluded that hydraulic fracturing 
     poses little chance of contaminating underground sources of 
     drinking water and that no further study was needed.
       On July 15, 2004, the EPA published in the Federal Register 
     its final response to the court remand (Legal Environmental 
     Assistance Foundation (LEAF), Inc., v: United States 
     Environmental Protection Agency, 276 F. 3d 1253). The Agency 
     determined that the Alabama underground injection control 
     (UIC) program for hydraulic fracturing, approved by EPA under 
     section 1425 of the SDWA, complies with Class II well 
     requirements.
       We are concerned that the Agency's execution of the SDWA, 
     as it applies to hydraulic fracturing, may not be providing 
     adequate public health protection, consistent with the goals 
     of the statute.
       First, we have questions regarding the information 
     presented in the June 2004 EPA Study and the conclusion to 
     forego national regulations on hydraulic fracturing in favor 
     of an MOD limited to diesel fuel. In the June 2004 EPA Study, 
     EPA identifies the characteristics of the chemicals found in 
     hydraulic fracturing fluids, according to their Material 
     Safety Data Sheets (MSDSs), identifies harmful effects 
     ranging from eye, skin, and respiratory irritation to 
     carcinogenic effects. EPA determines that the presence of 
     these chemicals does not warrant EPA regulation for several 
     reasons. First, EPA states that none of these chemicals, 
     other than BTEX compounds, are already regulated under the 
     SDWA or are on the Agency's draft Contaminant Candidate List 
     (CCL). Second, the Agency states that it does not believe 
     that these chemicals ate present in hydraulic fracturing 
     fluids used for coalbed methane, and third, that if they are 
     used, they are not introduced in sufficient concentrations to 
     cause harm. These conclusions raise several questions:
       1. The data presented in the June 2004 EPA study identifies 
     potential harmful effects from the chemicals listed by the 
     Agency in this report. Has the Agency or does the Agency plan 
     to incorporate the results of this study and the fact that 
     these chemicals are present in hydraulic fracturing agents 
     into the CCL development process, and if not, why not?
       2. In the June 2004 EPA study, the Agency concludes that 
     hydraulic fracturing fluids do not contain most of the 
     chemicals identified. This conclusion is based on two items--
     ``conversations with field engineers'' and ``witnessing three 
     separate fracturing events'' (June 2004 EPA Study, p. 4-17.)
       a. How did the Agency select particular field engineers 
     with whom to converse on this subject?
       b. Please provide a transcript of the conversations with 
     field engineers, including the companies or consulting firms 
     with which they were affiliated.
       c. How did the Agency select the three separate fracturing 
     events to witness?
       d. Were those events representative of the different site-
     specific characteristics referenced in the June 2004 study 
     (June 2004 EPA Study, p. 4-19) as determining factors in the 
     types of hydraulic fracturing fluids that will be used?
       e. Which companies were observed?
       f. Was prior notice given of the planned witnessing of 
     these events?

[[Page 14041]]

       g. What percentage of the annual number of hydraulic 
     fracturing events that occur in the United States does ``3'' 
     represent?
       h. Finally, please explain why the Material Safety Data 
     Sheets for the fluids identified as potentially being used in 
     hydraulic fracturing list component chemicals that the EPA 
     does not believe are present.
       The Agency concludes in the June 2004 study that even if 
     these chemicals are present, they are not present in 
     sufficient concentrations to cause harm. The Agency bases 
     this conclusion on assumed flowback, dilution and dispersion, 
     adsorption and entrapment, and biodegradation. The June 2004 
     study repeatedly cites the 1991 Palmer study, ``Comparison 
     between gel-fracture and water-fracture stimulations in the 
     Black Warrior basin; Proceedings 1991 Coalbed Methane 
     Symposium,'' which found that only 61 percent of the fluid 
     injected during hydraulic fracturing is recovered. Please 
     explain what data EPA collected and what observations the 
     Agency made in the field that would support the conclusion 
     that the 39 percent of fluids remaining in the ground are not 
     present in sufficient concentrations to adversely affect 
     underground sources of drinking water.
       After identifying BTEX compounds as the major constituent 
     of concern (June 2004 EPA study, page 4-15), the Agency 
     entered into the MOU described above as its mechanism to 
     eliminate diesel fuel from hydraulic fracturing fluids.
       3. a. How does the Agency plan to enforce the provisions in 
     the MOD and ensure that its terms are met?
       b. For example, will the Agency conduct independent 
     monitoring of hydraulic fracturing processes in the field to 
     ensure that diesel fuel is not used?
       c. Will the Agency require states to monitor for diesel use 
     as part of their Class II UIC Programs?
       4. a. Should the Agency become aware of an unreported 
     return to the use of diesel fuel in hydraulic fracturing by 
     one of the parties to the MOU, what recourse is available to 
     EPA under the terms of the MOU?
       b. What action does the Agency plan to take should such a 
     situation occur?
       c. Why did EPA choose to use an MOU as opposed to a 
     regulatory approach to achieve the goal of eliminating diesel 
     fuel in hydraulic fracturing?
       d. What revisions were made to the June 2004 EPA study 
     between the December 2003 adoption of the MOU and the 2004 
     release of the study? Which of those changes dealt 
     specifically with the use and effects of diesel fuel 
     hydraulic fracturing?
       e. The Agency also states that it expects that even if 
     diesel were used, a number of factors would decrease the 
     concentration and availability of BTEX. Please elaborate on 
     the data EPA collected and the observations the Agency made 
     in the field that would support the conclusion that the 39 
     percent of fluids remaining in the ground (1991 Palmer), 
     should they contain BTEX compounds, would not be present in 
     sufficient concentrations to adversely affect underground 
     sources of drinking water.
       We are also concerned that the EPA response to the court 
     remand leaves several unanswered questions. The Court 
     decision found that hydraulic fracturing wells ``fit squarely 
     within the definition of Class II wells,'' (LEAF II, 276 F.3d 
     at 1263), and remanded back to EPA to determine if the 
     Alabama underground injection control program under section 
     1425 complies with Class II well requirements. On July 15, 
     2004, EPA published its finding in the Federal Register that 
     the Alabama program complies with the requirements of the 
     1425 Class IT well requirements. (69 FR No. 135, pp 42341.) 
     According to EPA, Alabama is the only state that has a 
     program specifically for hydraulic fracturing approved under 
     section 1425. Based on this analysis, it seems that in order 
     to comply with the Court's finding that hydraulic fracturing 
     is a part of the Class II well definition, the remaining 
     states should be using their existing Class IT, EPA--approved 
     programs, under 1422 or 1425, to regulate hydraulic 
     fracturing.
       To date, EPA has approved Underground Injection Control 
     programs in 34 states. Approval dates range from 1981-1996.
       5. Do you plan to conduct a national survey or review to 
     determine whether state Class IT programs adequately regulate 
     hydraulic fracturing?
       At the time that these programs were approved, the 
     standards against which state Class IT programs were 
     evaluated did not include any minimum. requirements for 
     hydraulic fracturing. In its January 19, 2000 notice of EPA's 
     approval of Alabama's 1425 program, the Agency stated, ``When 
     the regulations in 40 CFR parts 144 and 146, including the 
     well classifications, were promulgated, it was not EPA's 
     intent to regulate hydraulic fracturing of coal beds. 
     Accordingly, the well classification systems found in 40 CFR 
     144.6 and 146.5 do not expressly include hydraulic fracturing 
     injection activities. Also, the various permitting; 
     construction and other requirements found in Parts 144 and 
     146 do not specifically address hydraulic fracturing.'' (65 
     FR No. 12, p. 2892.)
       Further, EPA acknowledges that there can be significant 
     differences between hydraulic fracturing and standard 
     activities addressed by state Class IT programs. In the 
     January 19, 2000 Federal Register notice, the Agency states:

     ``. . . since the injection of fracture fluids through these 
     wells is often a one-time exercise of extremely limited 
     duration (fracture injections generally last no more than two 
     hours) ancillary to the well's principal junction of 
     producing methane, it did not seem entirely appropriate to 
     ascribe Class II status to such wells, for all regulatory 
     purposes, merely due to the fact that, prior to commencing 
     production, they had been fractured.'' (65 FR No. 12, p. 
     2892.)
       Although hydraulic fracturing falls under the Class II 
     definition, the Agency has acknowledged that hydraulic 
     fracturing is different than most of the activities that 
     occur under Class II and that there are no national 
     regulations or standards on how to regulate hydraulic 
     fracturing.
       6. In light of the Court decision and the Agency's July 
     2004 response to the Court remand, did the Agency consider 
     establishing national regulations or standards for hydraulic 
     fracturing or minimum requirements for hydraulic fracturing 
     regulations under state Class II programs?
       7. a. If so, please provide a detailed description of your 
     consideration of establishing these regulations or standards 
     and the rationale for not pursuing them.
       b. Do you plan to establish such regulations or standards 
     in the future?
       c. If not, what standards will be used as the standard of 
     measurement for compliance for hydraulic fracturing under 
     state Class IT programs?
       We appreciate your timely response to these questions in 
     reaction to the three recent actions taken by the EPA in 
     relation to hydraulic fracturing--the adoption of the MOU, 
     the release of the final study, and the response to the Court 
     remand. Clean and safe drinking water is one of our nation's 
     greatest assets, and we believe we must do all we can to 
     continue to protect public health. Thank you again for your 
     response.
           Sincerely,
     Jim Jeffords.
     Barbara Boxer.
                                  ____

                                     U.S. Environmental Protection


                                                       Agency,

                                 Washington, DC, December 7, 2004.
     Hon. Jim Jeffords,
     U.S. Senate,
     Washington, DC.
       Dear Senator Jeffords: Thank you for your letter to 
     Administrator Michael Leavitt dated October 14, 2004, 
     concerning the recent actions that the Environmental 
     Protection Agency (EPA) has taken in implementing the 
     Underground Injection Control (UIC) program with respect to 
     hydraulic fracturing associated with coalbed methane wells.
       The Office of Ground Water and Drinking Water (OGWDW) has 
     prepared specific responses to your technical and policy 
     questions regarding how we conducted the hydraulic fracturing 
     study, the reasons behind our decisions pertaining to the 
     recommendations contained in the study, and any plans or 
     thoughts we may have on the likelihood for future 
     investigation, regulation, or guidance concerning such 
     hydraulic fracturing.
       Since the inception of the UIC program, EPA has implemented 
     the program to ensure that public health is protected by 
     preventing endangerment of underground sources of drinking 
     water (USDWs). The Agency has placed a priority on 
     understanding the risks posed by different types of UIC 
     wells, and worked to ensure that appropriate regulatory 
     actions are taken where specific types of wells may pose a 
     significant risk to drinking water sources. In 1999, in 
     response to concerns raised by Congress and other 
     stakeholders about issues associated with the practice of 
     hydraulic fracturing of coalbed methane wells in the State of 
     Alabama, EPA initiated a study to better understand the 
     impacts of the practice.
       EPA worked to ensure that its study, which was focused on 
     evaluating the potential threat posed to USDWs by fluids used 
     to hydraulica11y fracture coalbed methane wells was carried 
     out in a transparent fashion. The Agency provided many 
     opportunities to all stakeholders and the general public to 
     review and comment on the Agency study design and the draft 
     study. The study design was made available for public comment 
     in July 2000, a public meeting was held in August 2000, a 
     public notice of the final study design was provided in the 
     Federal Register in September 2000, and the draft study was 
     noticed in the Federal Register in August 2002. The draft 
     report was also distributed to all interested parties and 
     posted on the internet. The Agency received more than 100 
     comments from individuals and other entities.
       EPA's final June 2004 study, Evaluation of Impacts to 
     Underground Sources of Drinking Water by Hydraulic Fracturing 
     of Coalbed Methane Reservoirs, is the most comprehensive 
     review of the subject matter to date. The Agency did not 
     recommend additional study at this time due to the study's 
     conclusion that the potential threat to USDWs posed by 
     hydraulic fracturing of coalbed methane wells is low. 
     However, the Administrator retains the authority under the 
     Safe Drinking Water Act (SDWA) section 1431 to

[[Page 14042]]

     take appropriate action to address any imminent and 
     substantial endangerment to public health caused by hydraulic 
     fracturing.
       During the course of the study, EPA could not identify any 
     confirmed cases where drinking water was contaminated by 
     hydraulic fracturing fluids associated with coalbed methane 
     production. We did uncover a potential threat to USDWs 
     through the use of diesel fuel as a constituent of fracturing 
     fluids where coalbeds are co-located with a USDW. We reduced 
     that risk by signing and implementing the December 2003 
     Memorandum of Agreement (MOA) with three major service 
     companies that carry out the bulk of coalbed methane 
     hydraulic fracturing activities throughout the country. This 
     past summer we confirmed that the companies are carrying out 
     the MOA and view the completion of this agreement as a 
     success story in protecting USDWs.
       In your letter, you asked about the Agency's actions with 
     respect to hydraulic fracturing in light of LEAF v. EPA. In 
     this case, the Eleventh Circuit held that the hydraulic 
     fracturing of coalbed seams in Alabama to produce methane gas 
     was ``underground injection'' for purposes of the SDWA and 
     EPA's UIC program. Following that decision, Alabama 
     developed--and EPA approved--a revised UTC program to protect 
     USDWs during the hydraulic fracturing of coalbeds. The 
     Eleventh Circuit ultimately affirmed EPA's approval of 
     Alabama's revised UIC program.
       In administering the UIC program, the Agency believes it is 
     sound policy to focus its attention on addressing those wells 
     that pose the greatest risk to USDWs. Since 1999, our focus 
     has been on reducing risk from shallow Class V injection 
     wells. EPA estimates that there are more than 500,000 of 
     these wells throughout the country. The wastes injected into 
     them include, in part, storm water runoff, agricultural 
     effluent, and untreated sanitary wastes. The Agency and 
     States are increasing actions to address these wells in order 
     to make the best use of existing resources.
       EPA remains committed to ensuring that drinking water is 
     protected. I look forward to working with Congress to respond 
     to any additional questions, or the concerns that Members of 
     Congress or their constituents may have. If you have further 
     comments or questions, please contact me, or your staff may 
     contact Steven Kinberg of the Office of Congressional and 
     Intergovernmental Relations at (202) 564-5037.
           Sincerely,
                                             Benjamin H. Grumbles,
                                   Acting Assistant Administrator.
       Attachment.

   EPA Response to Specific Questions Regarding Hydraulic Fracturing

       The data presented in the June 2004 EPA study identifies 
     potential harmful effects from the chemicals listed by the 
     Agency in this report. Has the Agency or does the Agency plan 
     to incorporate the results of this study and the fact that 
     these chemicals are present in hydraulic fracturing agents 
     into the Contaminant Candidate List (CCL) development 
     process, and if not, why not?''
       Although the EPA CBM study found that certain chemical 
     constituents could be found in some hydraulic fracturing 
     fluids, EPA cannot state categorically that they are 
     contained in all such fluids. Each fracturing procedure may 
     be site specific or basin specific and fluids used may depend 
     on the site geology, the stratigraphy (i.e. type of coal 
     formation), depth of the formation, and the number of coal 
     beds for each fracture operation. The Agency's study did not 
     develop new information related to potential health effects 
     from these chemicals; it merely reported those potential 
     health effects indicated on the Material Safety Data Sheet 
     (MSDS) or other information we obtained from the service 
     companies.
       As noted in the final report, ``Contaminants on the CCL are 
     known or anticipated to occur in public water systems. . .'' 
     The extent to which the contaminants identified in fracturing 
     fluids are part of the next CCL process will depend upon 
     whether they meet this test.
       2. In the June 2004 EPA study, the Agency concludes that 
     hydraulic fracturing fluids do not contain most of the 
     chemicals identified. This conclusion is based on two items--
     ``conversations with field engineers'' and ``witnessing three 
     separate fracturing events''.
       a. How did the agency select particular field engineers 
     with whom to converse on this subject?
       The Agency did not ``select'' any of the engineers; we 
     talked with the engineers who happened to be present at the 
     field operations. In general those were engineers from the 
     coalbed methane companies and the service companies who 
     conducted the actual hydraulic fracturing. When we scheduled 
     to witness the events, we usually conversed with the 
     production company engineer to arrange the logistics and only 
     spoke with the field engineers from the service companies at 
     the well site.
       b. Please provide a transcript of the conversations with 
     field engineers, including the companies or consulting firms 
     with which they were affiliated.
       EPA did not prepare a word-for-word transcript of 
     conversations with engineers.
       c. How did the Agency select the three separate fracturing 
     events to witness?
       The events selected were dependent on the location of the 
     fracturing events, the schedules of both EPA OGWDW staff and 
     EPA Regional staff to witness the event, and the preparation 
     time to procure funding and authorization for travel. EPA 
     witnessed the 3 events because the planning and scheduling of 
     these happened to work for all parties. In one event, only 
     EPA HQ staff witnessed the procedure, in another event only 
     EPA Regional staff witnessed it, and in one event both EPA HQ 
     and Regional staff attended with DOE staff.
       d. Were those events representative of the different site-
     specific characteristics referenced in the June 2004 study 
     (p. 4-19) as determining factors in the types of hydraulic 
     fracturing fluids that will be used?
       Budget limitations precluded visits to each of the 11 
     different major coal basins in the U.S. It would have proven 
     to be an expensive and time-consuming process to witness 
     operations in each of these regions. Additionally, even 
     within the same coal basin there are potentially many 
     different types of well configurations, each of which could 
     affect the fracturing plan. EPA believed that witnessing 
     events in 3 very different coal basin settings--Colorado, 
     Kansas, and south western Virginia--would give us an 
     understanding of the practice as conducted in different 
     regions of the country.
       e. Which companies were observed?
       EPA observed a Schlumberger hydraulic fracturing operation 
     in the San Juan basin of Colorado, and Halliburton hydraulic 
     fracturing operations in southwest Virginia and Kansas.
       f. Was prior notice given of the planned witnessing of 
     these events?
       Yes, because it would have been very difficult to witness 
     the events had they not been planned. To plan the visit, EPA 
     needed to have prior knowledge of the drilling operation, the 
     schedule of the drilling, and the scheduling of the services 
     provided by the hydraulic fracturing service company. Wells, 
     in general, take days to drill (in some cases weeks and 
     months depending on depth of the well) and the fracturing may 
     take place at a later date depending on the availability of 
     the service company and other factors beyond anyone's 
     control.
       g. What percentage of the annual number of hydraulic 
     fracturing events that occur in the United States does ``3'' 
     represent?
       Because of a limited project budget, EPA did not attempt to 
     attend a representative number of hydraulic fracturing 
     events; that would have been beyond the scope of this Phase I 
     investigation. The primary purpose of the site visits was to 
     provide EPA personnel familiarity with the hydraulic 
     fracturing process as applied to coalbed methane wells. The 
     visits served to give EPA staff a working-level, field 
     experience on exactly how well-site operations are conducted, 
     how the process takes place, the logistics in setting up the 
     operation, and the monitoring and verification conducted by 
     the service companies to assure that the fracturing job was 
     accomplished effectively and safely. EPA understands that 
     thousands of fracturing events take place annua1ly, for both 
     conventional oil and gas operations and for coalbed methane 
     production, and that three events represent an extremely 
     small fraction of that total.
       h. Finally, please explain why the Material Safety Data 
     Sheets for the fluids identified as potentialIy being used in 
     hydraulic fracturing list component chemicals that the EPA 
     does not believe are present.
       In Table 4-1 of the final study, EPA identified the range 
     of fluids and fluid additives commonly used in hydraulic 
     fracturing. Some of the fluids and fluid additives may 
     contain constituents of potential concern, however, it is 
     important to note that the information presented in the MSDS 
     is for the pure product. Each of the products listed in Table 
     4-1 is significantly diluted prior to injection. The MSDS 
     information we obtained is not site specific. We reviewed a 
     number of data sheets and we noted that many of them are 
     different, contain different lists of fluids and additives, 
     and thus we concluded in the final report that we cannot say 
     whether one specific chemical, or chemicals, is/are present 
     at every hydraulic fracturing operation.
       3. a. How does the Agency plan to enforce the provisions in 
     the MOU and ensure that its terms are met?
       There is no mechanism to ``enforce'' a voluntary agreement 
     such as the MOA signed by EPA and the three major service 
     companies. The MOA was signed in good faith by senior 
     managers from the three service companies and the Assistant 
     Administrator for Water, and EPA expects it will be carried 
     out. EPA has written all signers of the MOA and asked if they 
     have implemented the agreement and how will they ensure that 
     diesel fuel is not being used in USDWs. All three have 
     written back to EPA, stating that they have removed diesel 
     from their CBM fracturing fluids when a USDW is involved and 
     intend to implement a plan to ensure that such procedures are 
     met. EPA intends to follow up with the service companies on 
     progress in implementing such plans.
       b. For example, will the Agency conduct independent 
     monitoring of hydraulic fracturing processes in the field to 
     ensure that diesel fuel is not used?

[[Page 14043]]

       It is unlikely that EPA will conduct such field monitoring. 
     First, in most oil and gas producing states, and coalbed 
     methane producing states, the State Oil and Gas Agency 
     generally has UIC primary enforcement responsibility, and the 
     state inspectors are the primary field presence of such 
     operations. Second, EPA has a very limited field staff and in 
     most cases they are engaged in carrying out responsibilities 
     related to Class I, III and V wells in states in which they 
     directly implement the UIC program. EPA plans to work with 
     several organizations, including the Ground Water Protection 
     Council and the Independent Petroleum Association of America 
     to determine if there are other smaller companies conducting 
     CBM hydraulic fracturing with diesel fuel as a constituent 
     and will explore the possibility of including them in the 
     MOA.
       c. Will the Agency require states to monitor for diesel use 
     as part of their Class II programs?
       Given limited funds for basic national and state UIC 
     program requirements, EPA does not have plans to include the 
     states as parties to the MOA or require them to monitor for 
     diesel fuel in hydraulic fracturiug fluids. The State of 
     Alabama's EPA-approved UIC program prohibits the hydraulic 
     fracturing of coalbeds in a manner that allows the movement 
     of contaminants into USDWs at levels exceeding the drinking 
     water MCLs or that may adversely affect the health of 
     persons. Current federal UIC regulations do not expressly 
     address or prohibit the use of diesel fuel in fracturing 
     fluids, but the SDWA and UIC regulations allow States to be 
     more stringent than the federal UIC program.
       4. a. Should the Agency become aware of an unreported 
     return to the use of diesel fuel in hydraulic fracturing by 
     one of the parties to the MOU, what recourse is available to 
     EPA under the terms of the MOU?
       There are no terms in the MOA that would provide EPA a 
     mechanism to take any enforcement action should the Agency 
     become aware of an unreported return to the use of diesel 
     fuel in hydraulic fracturing by one of the parties to the 
     MOA. However, EPA would work c1osely with the companies to 
     determine why such action occurred and discuss possible 
     termination procedures. The agreement defines how either 
     party can terminate the agreement. EPA would make every 
     effort to work with such a company to maintain their 
     participation in the agreement. EPA entered the agreement 
     with an assumption that the companies would honor the 
     commitments they have made about diesel use in hydraulic 
     fracturing fluids.
       b. What action does the Agency plan to take should such 
     action occur?
       If such a situation does happen, and EPA learns that diesel 
     fuel used in hydraulic fracturing fluid may enter a USDW and 
     may present an imminent and substantial threat to public 
     health, EPA may issue orders or initiate litigation as 
     necessary pursuant to SDWA section 1431 to protect public 
     health. Otherwise, EPA would take the actions described under 
     the previous question.
       c. Why did EPA choose to use an MOU as opposed to a 
     regulatory approach to achieve the goal of eliminating diesel 
     fuel in hydraulic fracturing?
       While the report's findings did not point to a significant 
     threat from diesel fuel in hydraulic fracturing fluids, the 
     Agency believed that a precautionary approach was 
     appropriate. EPA chose to work collaborative1y with the oil 
     service companies because we thought that such an approach 
     would work quicker and be more effective than other 
     approaches the Agency might employ (i.e. rulemaking, 
     enforcement orders, etc.). We believed that once the service 
     companies became familiar with the issue, they wouid 
     willingly address EPA's concerns. After several months of 
     meetings and negotiations between representatives of the 
     service companies and high level management in EPA's Office 
     of Water, a Memorandum of Agreement (MOA) was drafted and 
     signed by all parties effective December 24, 2003.
       We believe that the MOA mechanism accomplished the intended 
     goal of removing diesel from hydraulic fracturing fluids in a 
     matter of months, whereas proposing a rule to require removal 
     would have taken at least a year or more.
       d. What revisions were made to the June 2004 EPA study 
     between the December 2003 adoption of the MOU and the 2004 
     release of the study? Which of those changes dealt 
     specifically with the use and effects of diesel fuel in 
     hydraulic fracturing?
       During the specified time-frame, EPA focused on making 
     editorial changes to the report and clarifying information 
     relative to its qualitative discussion of the mitigating 
     effects of dilution, dispersion. adsorption, and 
     biodegradation of residual fluids. With respect to tbe use 
     and effects of diesel fuel. changes in the study primarily 
     focused on including language in the text of the report which 
     acknowledged that we had successfully negotiated an MOA with 
     the service companies. Specifically, EPA referenced this 
     agreement in the text of the report in the Executive Summary 
     at page ES-2 and on page ES-17, and further discussed the MOA 
     in Chapter 7 in the Conclusions Section of the study.
       e. The Agency also states that it expects that even if 
     diesel were used, a number of factors would decrease the 
     concentration and availability of BTEX. Please elaborate on 
     the data EPA collected and the observations the Agency made 
     in the field that would support the conclusion that 39 
     percent of fluids remaining in the ground (1991 Palmer), 
     should they contain BTEX compounds, would not be present in 
     sufficient concentrations to adversely affect underground 
     sources of drinking water.
       EPA reiterates that the 39 percent figure from the 1991 
     Palmer paper is only one instance where it has been 
     documented what quantity of the hydraulic fracturing fluids 
     injected into wells will remain behind. Dr. Palmer, who 
     conducted the original research, estimated that coalbed 
     methane production wells flow back a greater percentage of 
     fracturing fluids injected during the process. Where 
     formations are dewatered or produced for a substantial period 
     of time, greater quantities of formation and fracturing 
     fluids would presumably be removed. We used 39 percent 
     remaining fluids as a ``worst case'' scenario while doing our 
     qualitative assessment, since it was the only figure we had 
     from research conducted on coalbed methane wells.
       With respect to the BTEX compounds, we no longer believe 
     that they are a concern owing to the MOA negotiated between 
     EPA and the three major service companies.
       5. Do you plan to conduct a national survey or review to 
     determine whether state Class II programs adequately regulate 
     hydraulic fracturing?
       At this time, EPA has no plans to conduct such a survey or 
     review regarding the adequacy of Class II programs in 
     regularing hydraulic fracturing. In its final study design, 
     EPA indicated that it would not begin to evaluate existing 
     state regulations concerning hydraulic fracturing until it 
     decided to do a Phase III investigation. The Agency, however, 
     reserves the right to change its position on this if new 
     information warrants such a change.
       6. In light of the Court decision and the Agency's July 
     2004 response to the Court remand, did the Agency consider 
     establishing national regulations or standards for hydraulic 
     fracturing or minimum requirements for hydraulic fracturing 
     regulations under Class II programs?
       When State UIC programs were approved by the Agency--
     primarily during the early 1980s--there was no Eleventh 
     Circuit Court decision indicating that hydraulic fracturing 
     was within the definition of ``underground injection.'' Prior 
     to LEAF v. EPA. EPA had never interpreted the SDWA to cover 
     production practices, such as hydraulic fracturing. After the 
     Court decision in 1997, the Agency began discussions with the 
     State of Alabama on revising their UIC program to include 
     hydraulic fracturing. The net result of that process was the 
     EPA approval of Alabama's revised section 1425 SDWA UIC 
     program to include specific regulations addressing CBM 
     hydraulic fracturing. This approval was signed by the 
     Administrator in December 1999. and published in the Federal 
     Register in January 2000.
       In light or the Phase I HF study and our conclusion that 
     hydraulic fracturing did not present a significant public 
     health risk, we see no reason at this time to pursue a 
     national hydraulic fracturing regulation to protect USDWs or 
     the public health. It is also relevant at the three major 
     service companies have entered into an agreement with EPA to 
     voluntarily remove diesel fuel from their fracturing fluids.
       7. a. If so, please provide a detailed description of your 
     consideration of establishing these regulations or standards 
     and the rationale for not pursuing them.
       b. Do you plan to establish such regulations or standards 
     in the future?
       c. If not, what standards will be used as the standard of 
     measurement for compliance for hydraulic fracturing under 
     state Class II programs?
       EPA has not explored in any detailed fashion minimum 
     national or state requirements for hydraulic fracturing of 
     CBM wells, except when it evaluated the revised UIC program 
     in Alabama.
       Considering and developing national regulations for 
     hydraulic fracturing would involve discussions with numerous 
     stakeholders. the states, and the public and it would require 
     an intensive effort to arrive at regulatory language that 
     could be applied nation-wide. As EPA's study indicates, 
     coalbeds are located in very distinct geologic settings and 
     the manner in which they are produced for methane gas may be 
     very different in each locale. The proximity of USDW to the 
     coal formations. and the regional geology and hydrology all 
     play roles in how hydraulic fracturing operations are 
     conducted.
       If EPA receives information of drinking water contamination 
     incidents and follow-up investigations point to a problem, 
     EPA would then re-evaluate its decision to not continue with 
     additional stndy relating to CBM hydraulic fracturing.
       Should additional states submit revised UIC programs for 
     EPA's review and approval which include hydraulic fracturing 
     regulations, we would evaluate these programs under the 
     ``'effectiveness.'' standards of the SDWA section 1425 as we 
     did or the State of Alabama.

[[Page 14044]]

     
                                  ____
                            Oil and Gas Accountability Project

                                       Durango, CO, June 14, 2005.
     Hon. James M. Jeffords,
     U.S. Senate,
     Washington, DC.
       Dear Senator Jeffords: Please accept this letter of 
     endorsement for S. 1080, the Hydraulic Fracturing Safey Act 
     of 2005.
       Hydraulic fracturing is the industry practice of injecting 
     fluids and other substances underground in order to increase 
     production of oil and gas. While the industry refuses to 
     fully list the chemicals it injects underground, the EPA has 
     found that many of these chemicals are known to be toxic to 
     humans and some are actually considered hazardous under 
     federal law. Yet, the EPA and all states except Alabama have 
     refused to regulate the toxics that are used during hydraulic 
     fracturing operations. What this, means, in practice, is that 
     is it legal for hydraulic fracturing companies to inject 
     toxic chemicals into or close to drinking water aquifers. The 
     EPA has even admitted that a number of toxic hydraulic 
     fracturing chemicals can be injected into drinking water 
     sources at concentrations that pose a threat to human health.
       With thousands of new oil and gas wells being drilled each 
     year, the impacts of hydraulic fracturing are beginning to 
     show up. In western Colorado, hydraulic fracturing literally 
     blew up one homeowner's water well and contaminated it with 
     methane. In Alabama, hydraulic fracturing turned water wells 
     black, and citizens have experienced health problems 
     following contact with the affected water. The true scope of 
     the problem, is not known, however, because state agencies do 
     not monitor groundwater for chemicals used in hydraulic 
     fracturing operations.
       Despite the fact that unregulated hydraulic fracturing may 
     be poisoning our drinking water. Senator Inhofe has 
     introduced a bill, S.837, on behalf of the oil and gas 
     industry, that would completely exempt hydraulic fracturing 
     from EPA regulation under the Safe Drinking Water Act.
       Thank you and Senators Lautenberg, Boxer and Lieberman for 
     introducing the Hydraulic Fracturing Safety Act of 2005 (S. 
     1080). requiring the use of nontoxic products in hydraulic 
     fracturing operations during oil and gas production. This 
     important bill will help to protect our precious underground 
     drinking water sources.
           Sincerely,
                                                     Gwen Lachelt,
     Director.
                                  ____



                                 National Wildlife Federation,

                                     Washington, DC, May 25, 2005.
     Hon. James M. Jeffords,
     Ranking Member, Senate Environment and Public Works 
         Committee, U.S. Senate, Washington, DC.
       Dear Ranking Member Jeffords: On behalf of the National 
     Wildlife Federation, and the millions of hunters, anglers and 
     outdoor enthusiasts we represent, I am writing to thank you 
     for introducing the Hydraulic Fracturing Safety Act of 2005.
       I am pleased that your legislation would ban the use of 
     diesel or other priority pollutants listed under the Federal 
     Water Pollution Control Act in hydraulic fracturing for oil 
     or natural gas exploration and production and also require 
     the EPA to regulate hydraulic fracturing.
       EPA does not currently regulate hydraulic fracturing, a 
     common technique used to stimulate oil and gas production 
     that can potentially compromise groundwater resources and 
     reserves. An EPA whistle-blower and other experts agree that 
     hydraulic fracturing is a serious threat to drinking water. 
     Hydraulic fracturing has already impacted residential 
     drinking water supplies in at least three states (Colorado, 
     Virginia and Alabama) and incidents have been recorded in 
     other states (New Mexico, West Virginia and Wyoming) where 
     residents have recorded changes in water quality or quantity 
     following hydraulic fracturing operations near their homes.
       I am disappointed that the U.S. House of Representatives 
     passed an energy bill that exempts the oil and gas industry 
     from being regulated under the Safe Drinking Water Act for 
     hydraulic fracturing. The House passed bill would also exempt 
     all oil and gas construction activities from the Clean Water 
     Act; cut the heart out of environmental reviews by allowing 
     for numerous National Environmental Policy Act exemptions; 
     and require the BLM to rush to judgment on complex energy 
     permitting decisions. These provisions would harm America's 
     wildlife and Americans' water resources and recreational 
     opportunities. I urge you to remain steadfast and oppose any 
     amendments on the Senate floor that would provide egregious 
     exemptions to the laws that protect water resources, wildlife 
     and their habitat.
       NWF and the millions of hunters, anglers and outdoor 
     enthusiasts we represent commend you for your leadership on 
     safeguarding our water resources and wildlife habitat. If you 
     have further questions, please do not hesitate to contact me.
           Sincerely,
                                                         Jim Lyon,
                              Senior Vice President, Conservation.

  Mr. JEFFORDS. Mr. President. I thank Senator Grassley, Senator Baucus 
and the other members of the Senate Finance Committee for agreeing to 
my recycling amendment, which I call the Recycling Investment Saves 
Energy, RISE, provisions. These provisions were added to the tax title 
of the energy bill last week and have now been incorporated into the 
Energy bill as section 1545 of H.R. 6.
  The current Senate Energy bill contains important provisions to 
promote the use of energy savings in vehicles, appliances, new homes, 
and commercial buildings. As we move forward with fostering energy 
efficiency, we must not neglect recycling. Recycling should be an 
integral component of our nation's energy efficiency strategy.
  The RISE provisions will create jobs, increase productivity, and 
conserve energy by establishing a tax credit to preserve and expand 
America's recycling infrastructure. Specifically, the provisions 
establish a 15 percent tax credit for the purchase of qualified 
recycling equipment used to sort or process packaging and printed 
materials, such as beverage containers, cardboard boxes, glass jars, 
steel cans and newspapers.
  The tax credit could be claimed by material recovery facilities, 
manufacturers or other persons that purchase recycling equipment that 
sorts or processes residential or commercial recyclable materials, even 
if such equipment also is used to handle material from industrial 
facilities.
  This national investment in our recycling infrastructure is necessary 
to reverse the declining recycling rate of many consumer commodities, 
including aluminum, glass and plastic, which are near historic lows. 
For example, 55 billion aluminum cans were wasted by not being recycled 
in 2004, which represents approximately $1 billion of aluminum lost to 
industry. The recycling rate of paper is estimated to be roughly 50 
percent, glass containers 35 percent, and PET plastic bottles less than 
20 percent.
  The energy savings from greater recycling are significant. Increasing 
the recycling of containers, packaging and paper could save the 
equivalent energy output of 15 medium-sized power plants on an annual 
basis. Recycling aluminum cans, for example, saves 95 percent of the 
energy required to make the same amount of aluminum for its virgin 
source. Increasing the U.S. recycling rate to 35 percent would result 
in annual energy savings of 903 trillion BTUs, enough to meet the 
annual energy needs of 8.9 million homes.
  Due to the diminishing quantity and quality of available recyclable 
materials, many companies are not able to obtain the volume of quality 
recycled feedstock needed to meet demand. This new economic challenge 
makes it even harder for recycled products to compete in the 
marketplace. For example, two Michigan plastic recycling facilities 
recently closed, affecting 100 jobs, as a result of inconsistent supply 
of recycled plastic. Similarly 17 percent of the recycling capacity at 
U.S. paper mills has been shut down, in part due to insufficient 
quality recyclable materials. One leading glass manufacturer also 
reports that they are able to obtain only a small fraction of the 
volume of recycled glass that their facilities can use.
  In some cases, recyclers have been forced to shut down their 
operations in the United States and relocate to other countries due in 
part to insufficient or poor quality recycled feedstocks. This is 
particularly unfortunate as, on a per-ton basis, sorting and processing 
recyclables are estimated to sustain 10 times more jobs than 
landfilling or incineration.
  The RISE provisions aim to reverse the declining recycling rate and 
resulting energy loss by incentivizing greater collection of quality 
recyclable materials. The bill would expand collection efforts by 
making innovative technology more affordable, such as reversible 
vending machines that collect and process empty containers. It could 
also be used to finance equipment at recycling collection centers.
  This targeted tax credit would address quality concerns by reducing 
the barriers hindering investment in optical sorting and other state of 
the art equipment needed at material recovery facilities. By reducing 
material loss

[[Page 14045]]

and improving quality, RISE will increase both the quantity and quality 
of recycled feedstock available to manufacturers.
  Reducing the barriers to recycling also serves a number of 
environmental goals, including lessening the need for new landfills, 
preventing emissions of many air and water pollutants, reducing 
greenhouse gas emissions, and stimulating the development of green 
technology. But most importantly, recycling helps preserve resources of 
our children's future. For these reasons, I urge my colleagues to 
support these provisions.
  Mr. President, last night the Senate narrowly defeated the Kerry 
amendment No. 844, sense-of- the-Senate resolution on climate change. I 
was unable to be present for the vote, but I strongly supported this 
sense of the Senate. The United States has consistently failed to 
constructively engage in international discussions in a manner 
consistent with our obligations under the United Nations Framework 
Convention on Climate Change or even under a basic good neighbor 
policy. The Bush administration policy on global warming is 
ineffective, unproductive, and irresponsible.
  The administration's voluntary approach and efforts to address global 
warming have been underfunded and will not produce real emissions 
reductions in the timeframe necessary. Fortunately, many of the States 
have taken up the mantle of leadership, since there is a tremendous 
vacuum in the White House. By reversing his pledge to control carbon 
dioxide from powerplants, walking away from the Kyoto Protocol, and now 
snubbing British Prime Minister Tony Blair's request for assistance 
from the United States on this critical climate change problem, the 
President is reneging on this Nation's responsibility and opportunity 
to be a world leader.
  Carbon dioxide levels have never been higher and the United States 
disproportionately contributes to the global warming problem. We need 
to reengage with the world in producing a binding global plan that 
reduces greenhouse gases below levels that would cause dangerous 
interference with the Earth's climate.
  The administration and the world should pay close attention to the 
passage of the Bingaman-Specter resolution that committed the Senate to 
adopting legislation containing mandatory controls on carbon dioxide. 
This is an important resolution and it should serve as a wakeup call to 
the administration and those among the carbon-intensive industries. We 
must shoulder our moral responsibility to reduce the risks of global 
warming.
  Mr. President, I thank the bill managers, Senator Domenici and 
Senator Bingaman, for agreeing to accept my amendment in the managers' 
package that was agreed to last night by unanimous consent. My 
amendment directs the Architect of the Capitol to study the feasibility 
of installing energy and water conservation measures on the rooftop of 
the Dirksen building, specifically the roof area above the cafeteria in 
the center of the building.
  Today, all that exists is open space in the center of the building. 
My amendment will assist the Architect in obtaining information that 
will allow this space to be used in a more efficient manner and save 
taxpayer dollars.
  During debate on the energy bill, the Senate has heard numerous 
arguments on the importance of conserving energy. In August of 2003, 
nearly 50 million people in the Northeast and Midwest were affected by 
a massive power outage. This event emphasized the vulnerability of the 
U.S. electricity grid to human error, mechanical failure, and weather-
related outages. Failure to maintain a reliable grid had a huge impact 
on our Nation's economy, businesses, and individuals' everyday lives.
  It is vital, then, that we here in the Senate do our part and put 
measures in place to make the Nation's Capitol a more secure and 
sustainable user of electricity. The Capitol Complex is largely 
dependent upon the electrical grid for power. Our daily operations 
should not be compromised by grid failure.
  My amendment moves us forward in the right direction. Technology 
already exists to ensure that our operating systems can continue to 
operate despite loss of a main power supply. By creating onsite 
generating capacity through the installation of cogeneration equipment 
at the power plant and using solar powered equipment, like photovoltaic 
panels, we could produce energy to operate essential systems during a 
blackout or significant loss of power. We can start slowly by powering 
emergency lighting and notification systems in hallways so the 
occupants know how to exit the building safely or upgrade the 
electrical generating capacity of the complex. Technology is only 
getting better. My amendment asks the Architect of the Capitol to 
explore the use of this new technology to ensure that the Nation's 
Capitol always has reliable power.
  In addition, this new technology also has the potential to provide 
significant savings in the Capitol's operating budget. We are all 
looking for ways to save the taxpayers money and reduce the Nation's 
deficit. We have the opportunity today to set an example and practice 
what we preach. As Members of Congress, we can educate ourselves and 
our staff on the benefits of energy efficiency, and see first hand the 
savings it can generate. The Nation's Capitol can join those already 
utilizing this technology and help encourage others to adopt it as 
well.
  My amendment requires a feasibility study be conducted to look at the 
Dirksen building rooftop, including the open space in the center of the 
building directly above the cafeteria. The study will focus on more 
efficient use of the space while providing energy and water savings to 
the Capitol Complex.
  I envision a wonderful park and garden area that Members and staff 
can actually use. These gardens would not only provide a beautiful 
environment by utilizing native plants, but they would also reduce 
energy use, and provide insulation for the building to reduce heat and 
energy loss.
  These gardens would also provide a collection system for rainwater to 
limit the amount of stormwater runoff in the area. This collected water 
could be utilized for basic plumbing, watering the vegetation, or even 
the fire sprinkler systems; thereby reducing the use of water in the 
Capitol Complex.
  Installation of technology, like photovoltaic panels, could collect 
the rays of the sun and provide energy to the building. These can be 
installed on the rooftops of our buildings in many different areas. 
These panels are now made to blend into any environment
  There is even technology that exists to funnel natural daylight into 
the cafeteria in the basement. Imagine enjoying natural daylight as you 
consume your lunch or hold that quick meeting. Preliminary studies show 
that exposure to daylight improves worker productivity and results in 
less absenteeism due to illness.
  The Architect of the Capitol is currently updating the master plan 
for the Capitol Complex. This small project fits into that plan. The 
Architect is making great strides to update our operating systems with 
newer and efficient technology with sustainable features. I appreciate 
his efforts and encourage him to continue doing so.
  Before I conclude, I would like to thank a former staffer who helped 
me develop this great idea, Mary Katherine Ishee. Mary Katherine was 
creative enough to look beyond the barren view from the committee 
offices on the fourth floor of the Dirksen building and realize the 
opportunity it presented.
  It is about time we bring our home, the Capitol Complex, up to date 
with the rest of the world. This language is a step in that direction. 
We have the potential to use the latest technology to save energy, 
address security concerns, conserve our resources, and make more 
efficient use of this space.
  We will all benefit from a wonderful, efficient, and useful park in 
the middle of the Dirksen building, and the taxpayers will benefit from 
our reduced energy and water use in the form of lower utility bills. I 
am very pleased that this measure has been added and I hope it will be 
retained by the conferees.
  Mr. President, I want to thank Senators Domenici and Bingaman for

[[Page 14046]]

adopting my amendment No. 774, as part of the Senate Energy bill. The 
amendment authorizes up to $20 million a year for 7 years for the 
establishment of a new Department of Energy grant program to aid local 
governments, municipal utilities, rural electric cooperatives, and not-
for-profit agencies. The cost of repairing transmission lines is 
proving particularly difficult for small communities in Vermont and 
across America.
  I became interested in creating such a program due to the challenges 
that communities in my State are facing with respect to the upgrading 
and siting of transmission and distribution lines. For example, 
residents in Lamoille County, VT, have been struggling to find ways to 
expand the transmission system to accommodate the demands of a growing 
tourism industry without overly burdening local residents with the cost 
of such an upgrade. Currently, the transmission system that delivers 
electricity to this area of my State is at peak capacity, leaving the 
local community in jeopardy should a single event like a fallen power 
line or damage to a key piece of equipment occur.
  Not only must communities afford the costs of the infrastructure 
itself, but also the costs of integrating these new technologies into 
the rural landscape in a way that does not destroy their scenic quality 
and protects their lifestyle.
  These grants will help rural communities meet these needs. They can 
be used for increasing energy efficiency, siting or upgrading 
transmission lines, or providing modernizing electric generating 
facilities to serve rural areas. Under the generation grants portion of 
the program, preference will be given to renewable facilities such as 
wind, ocean waves, biomass, landfill gas, incremental hydropower, 
livestock methane, or geothermal energy.
  By adopting my legislation as part of this Energy bill, small 
electric cooperatives and local governments in Lamoille County, VT, 
will be eligible to apply for Federal grants to construct new 
facilities and transmission upgrades. This is a good amendment and it 
should be retained by the conferees.
  Mr. President, last night the Senate defeated amendment No. 961 that 
would have banned the siting of windmills in many areas in the lower 48 
States and made them ineligible to receive Federal tax subsidies. Had I 
been present to vote, I would have opposed this amendment. In my 30 
years in Congress, I have been a strong proponent of renewable energy 
sources including wind power. I am very optimistic about the role wind 
energy can play in satisfying a growing proportion of this Nation's 
energy needs.
  If the objective of this amendment was to protect scenic qualities of 
America's lands and shorelines, it did not achieve that goal. The 
amendment only targeted the siting of windmills within 20 miles of 
Federal public lands, but did not address the siting of coal-fired 
powerplants and other energy sources that have far greater impacts to 
our public lands. Just look at the impacts that air pollution blowing 
in from coal-fired Midwest powerplants is currently having on the Great 
Smoky Mountain National Park, Shenandoah National Park, and the 
protected areas in the beautiful green mountains of Vermont.
  This amendment also failed to treat all public lands and wildlife 
refuges equally. As ranking member of the Environment and Public Works 
Committee, the committee with jurisdiction over our Nation's wildlife 
refuges, I was concerned that, had this amendment been approved, no 
wind turbine situated anywhere near Federal lands in the lower 48 
States would have been eligible to receive Federal tax subsidies, 
thereby severely limiting the expansion of wind power in the United 
States. Oddly, this amendment specifically exempted some other 
federally protected areas such as coastal wildlife refuges in Louisiana 
and Alaska. By defeating this amendment by a wide margin, the Senate 
sends a strong message that wind power has a role to play in satisfying 
this Nation's energy needs.
  Mr. PRYOR. Mr. President, families in Arkansas want and deserve a 
national energy policy that truly moves us towards energy independence. 
We must look beyond oil, gas, and coal and develop cleaner alternatives 
and new sources of energy, especially renewable fuels.
  This bill offers a good starting point in achieving this goal, and I 
am pleased the Senate has agreed to adopt my amendment that embraces 
the potential of biodiesel and hythane as part of this effort.
  My amendment requires that the Department of Energy, in conjunction 
with universities throughout the country, prepare two reports. These 
reports would evaluate the potential markets, infrastructure 
development needs and possible impediments to commercialization for two 
alternative fuels: biodiesel and hythane.
  Biodiesel can substitute directly for petroleum-based diesel fuel, 
usually with no engine modifications, and offers a number of health and 
environmental benefits. It produces less carbon monoxide, less sulfur 
oxides emissions, and less particulate or soot emissions from some 
engines. It allows for safer handling. It is an agricultural-based 
feedstock may be produced anew every year, unlike fossil fuels which 
have declining reserves. And in Arkansas and other agricultural states, 
the robust commercializing of biodiesel would mean an economic boon to 
our farmers.
  The promise of biodiesel as a fuel source is just beginning to show. 
Biodiesel only currently accounts for less than 0.1 percent of diesel 
fuel consumption in the U.S. But total U.S. diesel fuel use was 
estimated at 39.5 billion gallons in 2001, including 33.2 billion of 
on-road highway use.
  The enhanced commercialization of biodiesel can help reverse this 
trend, but only if we enable this industry to get off the ground on a 
solid footing. We have seen an enormous amount of federal assistance 
help support and catapult the ethanol industry. Our soybean farmers and 
our Nation could benefit from similar treatment.
  My amendment also requires a study on the feasibility of hythane 
deployment, which is a blend of hydrogen and methane. Hythane is 
considered a stepping stone or bridge to the hydrogen economy because 
it represents an initial commercial application of hydrogen as a 
legitimate fuel option. It reduces nitrogen oxide, NOx, 
emissions by 95 percent relative to diesel, and makes significant 
reductions in carbon dioxide.
  China is now leading the way in developing hythane-powered vehicles. 
In preparation for the 2008 Olympics, Beijing, is in the process of 
replacing 10,000 diesel buses with hythane buses.
  Additionally, hythane offers a solution to improve waste management 
in our communities. According to the Environmental Protection Agency, 
municipal solid waste landfills are the largest source of human-related 
methane emissions in the United States, accounting for about 34 percent 
of these emissions. Landfill gas is created as solid waste decomposes 
in a landfill and consists of about 50 percent methane.
  Instead of allowing this gas to escape into the air, it can be 
captured, converted, and used to make hythane. As of December 2004, 
there are approximately 380 operational Landfill Gas energy projects in 
the United States and more than 600 landfills that are good candidates 
for projects. Companies ranging from Ford to Honeywell to Nestle are 
converting landfill gas into energy.
  There is similar potential for chemical plants who also release 
methane into the atmosphere, contributing to local smog and global 
climate change. If they sequestered methane to sell to a hythane 
manufacturer, I believe they would take advantage of the profits it 
would yield.
  My State of Arkansas, for example, has significant methane seams, 
including the Fayetteville shale bed methane seam, which Southwest 
Energy and CDX Gas are already using to their advantage. These 
resources could contribute to hythane fuel production as well.
  Our Nation's energy problems cannot be solved overnight; however, we 
would

[[Page 14047]]

be remiss if we did not at least further explore innovative and 
practical solutions, such as biodiesel and hythane. This amendment is a 
win-win situation for our energy dependence, health, economy and 
environment. I thank my colleagues for their support.
  Mr. FEINGOLD. Mr. President, I regret that I was unable to take part 
in yesterday's cloture vote because I was testifying before the BRAC 
Commission in St. Louis, MO, along with the senior Senator from 
Wisconsin, in an effort to save the Milwaukee-based 440th Airlift Wing 
from closing. The fate of the 440th is very important to me and my 
constituents, and, while I have only missed a handful of votes in my 12 
years in the Senate, it is clear to me that testifying in St. Louis was 
the right decision.
  If I had been present I would have again voted against the cloture 
motion on the nomination of John Bolton. Since the motion required 60 
votes to pass, my absence did not affect, and could not have affected, 
the outcome of the vote.
  Mr. BYRD. Mr. President, for too long, we as a body, and we as a 
Nation, have fallen short in our efforts to address some of the most 
profound and far reaching challenges of our time--global climate change 
and energy security. For too long, we have skirted the issues and have 
shirked our responsibilities. We have convinced ourselves that we are 
doing something but, in reality, we continue to take no real action. 
Rather than lead, we have stood by, paralyzed, undermining any efforts 
to forge an effective response.
  It is time to pull ourselves out of that quicksand and confront the 
tasks at hand. First, we must establish practical and comprehensive 
steps to reduce U.S. emissions of greenhouse gases and to reduce our 
dependence on foreign energy sources. Second, we must work in a 
partnership with developing nations to deploy clean energy technologies 
that can meet their urgent development needs while reducing their own 
contribution to global climate change and their growing energy 
dependency. Third, we must commit ourselves to the fundamental task of 
forging an effective and sound international agreement to guide a truly 
global effort to confront this most daunting problem, global climate 
change.
  In 1997, during the 105th Congress, the Senate passed S. Res. 98, by 
a vote of 95 to 0. As the primary author, along with Senator Hagel, of 
S. Res. 98, I sought at that time to express the sense of the Senate 
regarding the provisions of any future binding, international agreement 
that would be acceptable to the Senate.
  However, almost from the day of that vote, those on both sides of the 
issue have misrepresented and misconstrued its intent. What was meant 
as a guide for action has instead been invoked, time and again, as an 
excuse for inaction. Yet no one has misrepresented and misconstrued S. 
Res. 98 more so than this present administration. Rather than employing 
it as a tool to positively influence the international negotiations, 
the administration used it as cover to simply walk away from the 
negotiating table.
  For the U.S., the issue should no longer be about the Kyoto Protocol. 
Certainly, everyone in this Chamber knows that the United States will 
not join the Kyoto Protocol. The rest of the world has come to accept 
that fact as well. So let us exorcize the specter of the Kyoto Protocol 
from this debate. The real question is what comes next. How do we 
arrive at a credible, workable strategy, one compatible with the best 
interests of the United States and of the other major emitting 
industrial and developing countries? That must be the question now 
before us.
  We must send a clear signal that we recognize our responsibilities, 
and we must be prepared to work toward a fair and effective framework 
for action. We must be bold leaders. We owe this to ourselves; we owe 
it to the other nations of the world; and we owe it most of all to our 
children and to future generations.
  Technology is a critical component to resolving the climate change 
challenges in the U.S. and around the world. But let me be clear. Even 
as the administration has touted technology as the solution, it 
continues to woefully underfund these very programs. Technology 
policies by themselves cannot be the silver bullet. Technology policies 
must be paired with commonsense, market-based solutions to create 
incentives for innovation and adoption of new and improved technologies 
that will provide a signal to reduce emissions.
  There must be a broader approach. I want to commend Senators McCain 
and Lieberman for their diligence and hard work to find a middle 
ground. I want to commend Senator Bingaman on his efforts as well. Like 
them, I believe that we face a problem, and it requires that we craft 
an economically and environmentally sound solution.
  The McCain-Lieberman amendment did not pass in its current form. 
While I did not vote for their amendment, I want to make it very clear 
to the administration and to others who just want to say ``no'' that I 
will work with Senator McCain, Senator Lieberman, and Senator Bingaman, 
and other Republican and Democratic Senators who want to craft a 
constructive solution.
  I have long said that global warming and our energy security are 
major challenges in the U.S. and around the world. Troubling things are 
happening in our atmosphere, and we should wake up. I am not alone in 
this belief. The U.S. cannot bury its head in the sand and hope that 
these problems will simply go away.
  I have insisted on a rational and cost-effective approach for dealing 
with climate change, both domestically and internationally. I have no 
doubt that the far right and the far left will oppose any moderate 
approach on this issue, but it is time to get the right architecture 
and solid funding in place to make a first step a reality. I am 
concerned that the McCain-Lieberman approach, in its present form, will 
negatively impact my State, but that does not mean that we will not be 
able to find some common ground in the future. I hope that my friends 
in the energy industry will decide to work with them as well.
  Mr. President, we cannot just stand still. I know Senator McCain. He 
is tenacious, and Senators Lieberman and Bingaman are equally 
tenacious. If 14 Senators in the middle can come together to diffuse 
the Nuclear Option, then I am certain that a solid center of Senators 
can find a new path forward to address global climate change and our 
Nation's energy security needs. I would certainly not support actions 
that would harm the economy or the people of my State of West Virginia 
or the United States in general. Yet, I repeat, I believe that there is 
a middle path forward, and I stand ready to work with those who share 
that view.
  Mr. REID. Mr. President, I rise to speak to a particular section of 
H.R. 6, the Energy bill that would lead to Nevada and Washington 
ratepayers being relieved of $480 million in fees under fraudulent 
contracts entered into with Enron, the defunct energy company.
  The largest utility in my State, Nevada Power, had a $326 million 
contract with Enron for power. The contract was terminated once it 
became impossible for Enron to hide its financial frauds any longer and 
instead was forced to declare bankruptcy. Nonetheless, Enron has 
asserted before the bankruptcy court the right to collect all of the 
profits it would have made under the contract through so-called 
``termination payments.'' Enron has made this claim even though Enron 
never delivered the power under the contract, even though Enron had 
obtained its authority to sell power fraudulently, and even thought 
Enron was in gross violation of its legal authority to sell power at 
the very time the contract was entered into.
  The energy bill ensures that the proper government agency will 
determine whether Enron is entitle to more money from Nevada. That 
agency is the Federal Energy Regulatory Commission, FERC. When FERC was 
established by Congress, its fundamental mission was, and remains, to 
protect ratepayers. FERC has specialized expertise required to resolve 
the issues surrounding some of the contracts that Enron entered into 
and eventually terminated. The provision is an outgrowth

[[Page 14048]]

of the Enron criminal conspiracy to rip off ratepayers throughout the 
West.
  Enron is still seeking to extract an additional $326 million in 
profits from my State's utilities for power that was never delivered. 
Enron, after all of its market manipulation and financial fraud, is 
still trying to profit from its wrong-doing at the expense of every 
Nevadan.
  Starting in December 2000, Nevada utilities entered into long-term 
contracts with Enron to meet a significant portion of their long-term 
needs. No one was aware of Enron's fraudulent activities to manipulate 
electricity markets. The prices that Nevada Power agreed to pay were 
three times as high as the threshold that FERC had established as a 
ceiling price. In November 2001, Nevada Power asked FERC to review the 
rate to determine whether those contracts were just and reasonable. Two 
days after the complaint was filed against Enron, Enron filed for 
bankruptcy. There is an issue in the bankruptcy case as to whether 
Enron can enforce contracts that it terminated. The bankruptcy court is 
responsible for enhancing the bankruptcy estate for the benefit of 
creditors. FERC, on the other hand, sees a more complete picture which 
includes protecting the interests of the general public.
  This issue is of paramount concern to my constituents. It will decide 
whether they will be on the hook for more than a hundred million 
dollars, an amount that when spread out over a relatively small number 
of ratepayers, would translate into rate increases. It is critical that 
this issue be decided by the forum with the specialized expertise in 
matters relating to the sale of electricity with a stated mission of 
protecting ratepayers, and that is the Federal Energy Regulatory 
Commission.
  I would like to especially thank Senators Bingaman, Cantwell, 
Domenici, and Ensign for their assistance on this provision. I thank my 
colleagues on both sides of the aisle for their support up until this 
point, and for their continuing support in making sure that this 
critical measure is included in the legislation that emerges from the 
conference committee.
  I yield the floor.
  Mr. CRAIG. Mr. President, I am not aware of any further amendments. 
Therefore, I ask for a third reading of the bill.
  The PRESIDING OFFICER. The question is on the engrossment of the 
amendments and third reading of the bill.
  The amendments were ordered to be engrossed and the bill to be read a 
third time.
  The bill was read the third time.
  Mr. CRAIG. I ask unanimous consent that the vote on passage of the 
bill occur at 9:45 a.m, on Tuesday, June 28, with paragraph 4 of rule 
XII waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, before I yield the floor, let me extend a 
very special thanks to all who have participated in the crafting and 
the final work product that we now have before us, a national energy 
policy for our country. A good many have contributed and most assuredly 
the chairman of the committee, Pete Domenici, and the ranking member, 
Senator Bingaman, have done an excellent job, in a very bipartisan way, 
to bring us to where we are at this moment.
  Let me also extend a special thanks to the staff of the committee who 
have expended extraordinary time and hours to get us to this point. I 
thank my personal staff for a near 5-year effort, as we have worked 
over a long period of time to winnow out, shape, and bring before us 
what I think I can say is a very fine work product.
  I am anxious to see its final passage, which will occur on Tuesday, 
and a conference with the House. I hope we can have this bill on the 
President's desk sooner, rather than later. The American people deserve 
a national energy policy that allows this country to get back into the 
production of energy of all of the types that have been addressed in 
this legislation.
  I thank all of my colleagues for their work effort, and I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               KARL ROVE

  Mr. REED. Mr. President, I rise to join many of my colleagues to 
express my dismay concerning the deplorable comments by Karl Rove that 
suggest that--indeed states that Democrats did not respond to the 
attack on this country on 9/11, that they did not join in with other 
Americans who not only recognized the consequences but came together to 
work together to attack those who attacked us and to bring to justice 
those who had callously attacked and killed thousands of Americans. 
Such a statement is beyond the pale.
  Mr. President, 9/11 is a moment in which the Nation was attacked, and 
we all came together, not as Democrats or Republicans, liberals or 
conservatives, but as Americans. We all came together.
  The record itself clearly undercuts this contention of Mr. Rove. 
Within days of the attack of 9/11, we passed in this Senate an 
authorization for the use of military force. The vote was 98 to 
nothing. Every Republican and every Democratic Senator voting cast his 
or her vote to give the President of the United States the authority 
and the power to go forward, seek our enemies, and destroy them.
  I can recall going up to Providence, RI, my State capital, that 
afternoon, and standing with every one of the elected officials in the 
State, Republican and Democrat, before a crowd of 25,000 people. My 
message was very simple. The Senate unanimously has authorized the 
President to seek out and destroy those who attacked us. That is what 
happened on 9/11. It was not as Mr. Rove tries to distort, to spin some 
situation in which we did not recognize the consequences or respond to 
the responsibilities of that dreadful moment.
  Mr. Rove suggests that our response was simply to suggest therapy, to 
understand our attackers. That is a misstatement of the fact. In fact, 
following that authorization of the use of force, we succeeded in this 
Senate, acting with virtual unanimity on measure after measure, to give 
the President and this Nation what we all needed to defend ourselves 
and to inflict upon our adversaries the justice which they so richly 
deserved.
  We passed the Aviation Transportation Security Act. We passed the 
fiscal year Intelligence Authorization Act--unanimously, the fiscal 
year Defense Authorization Act, the fiscal year Defense Appropriations 
Act, on and on and on, with virtual unanimity.
  We did this because we recognized that we are Americans. Today, Mr. 
Rove seeks to distort this historic record, to suggest we did not come 
together as Americans, but that there were those who knew the way and 
took it and those who tried to ignore the reality. That is a gross 
misstatement of history, of the facts, and he should apologize for it. 
It is inappropriate that an individual who works in the White House 
should make such callous and clearly erroneous statements for political 
effect.
  Mr. Rove suggests, in the article I have seen in the newspaper 
describing his speech, that our response was one of moderation and 
restraint. Nothing could be further from the truth. Our response was 
one voice authorizing the President to attack, giving him the tools to 
carry out the attack. Mr. Rove suggested that conservatives saw 9/11 
and said we will defeat our enemies. That is exactly what all Americans 
said or did. He goes on to suggest that what liberals saw prompted 
liberals to say: We must understand our enemies.
  Again, that is not the reality. I hope Mr. Rove is not suggesting 
unwittingly that we should go about without respecting and 
understanding our enemies. He should look back at Sun Tzu, the Chinese 
philosopher whose ``Art of War'' speaks to us today as it did centuries 
ago. As Sun Tzu said:

       If you know the enemy and know yourself, you need not fear 
     the results of 100 battles.

  In fact, some might suggest we are learning about our enemy too late 
in Iraq today.
  The point I make is this type of attack has no place, it does not 
conform

[[Page 14049]]

to history, it undercuts the spirit of that moment, a moment in which 
every American came together as one people, indeed, as the world 
responded to us. That unanimity may have lessened over the last several 
months, but it was there. To view September 11 any other way is a gross 
distortion. Mr. Rove should apologize for it.
  He went on to attack my colleague, the Senator from Illinois, Mr. 
Durbin. Senator Durbin has apologized for his comments, and that 
apology is appropriate. But to continue to attack this individual does 
nothing to advance any of the ideals or aspirations or policies that we 
must be engaged with. What it does is distort a person, someone I have 
come to know, respect, and admire. Someone who is caring and concerned 
for people, whose thoughtfulness, whose intense commitment to doing 
what is appropriate for all Americans, and who is particularly 
sensitive to the needs of our military forces has impressed me.
  Like anyone who has had the privilege of serving and understanding in 
the U.S. Army or any uniformed service, I had the privilege of 
commanding paratroopers of the 82nd Airborne Division. We understand 
the extraordinary courage and bravery and valor of those individuals.
  I have been impressed many times with Senator Durbin's commitment to 
help those individuals in meaningful ways by providing the equipment 
they need, by ensuring that our veterans who have served with 
distinction are not ignored. The attacks on him are without correlation 
to the person and to the service of this individual.
  I hope Mr. Rove would apologize for these remarks and would refrain 
in the future from distorting the historial record. I don't think that 
is too much to ask of someone who is in such a position of power in the 
White House.
  At this point, it is sufficient to conclude by saying I hope, indeed, 
that we can avoid this kind of personalized attack, this gross 
distortion, which is untrue, misleading, and divides a nation and does 
not unite it. I hope we move on to substantive policy as we face real 
problems that face this Nation.
  I yield the floor and 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.

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