[Congressional Record (Bound Edition), Volume 155 (2009), Part 9]
[Senate]
[Pages 12273-12283]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF DAVID J. HAYES TO BE DEPUTY SECRETARY OF THE INTERIOR

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of David J. 
Hayes, of Virginia, to be Deputy Secretary of the Interior.
  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be 1 hour of debate equally divided and controlled between the 
two leaders of their designees.
  The Senator from Utah.
  Mr. BENNETT. Mr. President, I rise in opposition to the Hayes 
nomination. I am here with the Senator from Alaska, and I wish to be 
told after I have consumed 15 minutes so the Senator from Alaska and I 
can coordinate our presentations.
  The ACTING PRESIDENT pro tempore. The Chair will do so.
  Mr. BENNETT. Mr. President, I listened with interest to the statement 
of the majority leader with respect to David Hayes, and I agree with 
much of what he had to say. I feel compelled to correct some of the 
things he had to say because they are some of the same things the 
Department of the Interior has been saying that I find are, in fact, 
not factual.
  I agree with him that the President should be entitled to appoint 
whomever it is he wants. And I agree with him that David Hayes is 
qualified for this position. I also believe, however, that Members of 
this body, who have the responsibility of the confirmation vote, are 
entitled to clear answers to their questions before the confirmation 
should proceed.
  It is my opinion we have been asking for clear answers to those 
questions--to legitimate questions--and those answers have not been 
forthcoming. Therefore, I am not willing to proceed with the 
confirmation vote until we get those answers.
  This is not to say I am opposed to David Hayes and will do everything 
to see to it he is not confirmed. Indeed, I want to do everything I can 
to see that he is confirmed as rapidly as possible. But ``as rapidly as 
possible'' does not mean I must give up my rights to receive clear 
answers to legitimate questions.
  Let me go to some of the items the majority leader covered in his 
statement because they are the same items the Secretary of the Interior 
has used, and that others have used in press releases, that I believe 
need to be set straight. They are simply not factually true.
  Let's start with the question of leases. Numbers. How many leases 
were put up and sold by the BLM in the last month of the Bush 
administration in the State of Utah? The answer to that question is 
128. Not 77; 128. All of those 128 leases were subject to exactly the 
same kind of procedure. All of them went through the same kind of 
review. All of them were handled by the same team of experts: career 
people within the Department. And all of them ultimately were sold.
  The majority leader said this happened in the midnight hours of the 
Bush administration, as if this whole thing were cobbled together in 
the last minute. In fact, much of the activity dealing with the sale of 
these leases occurred over a 7-year period. Why? Because all of the 
parties involved wanted to make sure they complied with all of the 
rules. If it had been handled in a ``rush it through,'' ``get it done 
during our political circumstance'' sort of manner, they could have 
been granted in 2004 or 2007; it did not have to wait until the last 
months of 2008. The reason it waited until the last months of 2008 was 
because the plans were so meticulously reviewed to make sure they 
complied with every rule that it took that long. So let's get rid of 
the idea that this was a political decision on the part of the Bush 
administration. The record is very clear it was not.
  All right. After the Obama administration took over, out of the 128 
leases that were granted, suddenly 77 were withdrawn by the Secretary 
of the Interior. Why? If there was a flaw in the way these leases were 
handled, the entire 128 should have been withdrawn because they were 
all handled in exactly the same manner. The 77 were withdrawn because 
an environmental group filed a lawsuit. The environmental group decided 
which leases should be challenged, not the Department of the Interior. 
It was not a review by any career officer in the Department of the 
Interior that said these leases were flawed. It was a political 
decision by an environmental group that said we are going to file a 
lawsuit; and in response to that lawsuit, the Secretary of the Interior 
said: I am going to pull these 77 leases, and then gave the same 
justification for his actions that the majority leader has given here 
on the floor today; that is, they are right next door to the national 
parks and no one wants an oil rig next to a national park.
  No. 1, most of the leases are natural gas; there are not oil rigs 
involved at all. And, No. 2, they are not right next door to the 
national parks. Some of them are as far as 60 miles away.
  Let's look at a map I have in the Chamber and see where these leases 
are. On this map, shown in yellow are the national parks. This one is 
Arches National Park, and this one is Canyonlands National Park. Shown 
in green is existing oil and gas leases that were in place long before 
the December lease sale. Shown in red are the leases that were granted 
in the so-called midnight hours of the Bush administration.
  A quick glance at the map makes it very clear that the challenged 
leases alleged to be ``right next door to a national park'' are 
surrounded by existing leases that are closer to the national park than 
the leases that are being challenged.
  The facts simply are not there to support the position the Secretary 
of the Interior has taken and the majority leader has repeated here 
today. The majority leader has depended upon the Secretary for his 
facts. The majority leader made a mistake in depending on the Secretary 
because the Secretary is wrong. That is one of the things that has 
caused me to raise this issue.
  What is the real motivation behind this? Because to say the 
motivation is ``they are too close to the national parks'' simply does 
not apply.
  There are some leases shown in red on the map that do not have any 
existing leases between them and the national park. But they do have a 
highway. If you are concerned about the national park experience being 
degraded by having leases where there may be some natural gas activity 
going on--that this activity will somehow that will destroy your 
experience in the national park--how about a highway destroying the 
experience of a national park? They are separated from the national 
park by a highway.
  Let's look at another map, this one having to do with the Dinosaur 
National Monument. This is the one where some leases are 60 miles away. 
Yet the Secretary of the Interior would have you believe they are right 
next door, that they abut the existing boundaries of a national park.

[[Page 12274]]

  Look at the green on the map which does, in fact, abut the boundaries 
of the Dinosaur National Monument. No one has ever complained about 
that. This was a purely political decision based on the lawsuit filed 
by an environmental group rather than by any kind of review.
  I have asked the Department of the Interior: Justify your actions. 
Appoint a team that will give us the information we need and will tell 
us why these 77 leases are different than the rest of the 128 leases.
  This is the reaction, this is the response I have received from the 
Department of Interior to my questions.
  The first response that came from David Hayes was a supplemental 
answer to one of my questions regarding the review Secretary Salazar 
had committed to undertake. The next day, David Hayes followed up with 
a letter that came on Department of the Interior letterhead, and he 
signed it: David Hayes, Deputy Secretary Designee. This is as official 
a statement as we are going to get, and this is what he says in his 
response: ``If confirmed, David Hayes will have overall responsibility 
for undertaking the review of the 77 parcels that were withdrawn from 
the Utah lease sale. Pending Mr. Hayes' confirmation''--not dependent 
upon, but pending Mr. Hayes' confirmation--``the review team will 
consist of the Acting Assistant Secretary for Policy, Management and 
Budget, the Acting Directors of the BLM and the National Park Service, 
and their designees. The Acting Solicitor, Art Gary, will provide legal 
support to the extent needed.''
  In the document where this team was named and laid out, the 
commitment was made that there would be preliminary work done on the 
report by the first of May and that the entire matter would be resolved 
by the 29th of May. And when the first of May came along, and we 
expected some kind of preliminary report from the Department, Secretary 
Salazar said: ``We have done nothing, and we can do nothing until David 
Hayes is confirmed''--directly contradicting the statement we have in 
writing over the signature of David Hayes. I think we are entitled to 
raise a question about this kind of procedure.
  The majority leader talked about the real issue in this matter. The 
real issue in this matter is the credibility of the Department of the 
Interior. If we are going to deal with the Department in the coming 4 
or 8 years--whatever the electorate decides--we need to have some 
confidence that when the Department sends us a document and makes a 
promise, and names the specific people who will be involved in 
fulfilling that promise, that will happen. One final comment. The 
majority leader and the Secretary have said this happened without 
consulting the National Park Service. On that I have two points. No. 1, 
it is a matter of law that the BLM is not required to consult with the 
National Park Service on lease sales. They could have done this whole 
thing without talking to anybody at the National Park Service and been 
completely proper in terms of the law. They went beyond the 
requirements of the law and consulted with the Park Service to make 
sure there was no interference with national parks.
  Here is what Mike Snyder, the National Park Service Regional Director 
for the Intermountain Region, had to say about that kind of cooperation 
and coordination:

       I would like to personally extend my appreciation to the 
     BLM field office managers who worked with the Park Service on 
     the parcel-by-parcel review of these oil and gas lease 
     parcels. They did an outstanding job working in collaboration 
     with us.

  Secondly--Mr. Snyder said:

       Working with Selma Sierra, the BLM Utah State Director, has 
     resulted in the kind of resource protection that Americans 
     want and deserve for their national parks.

  The BLM didn't consult with the national parks? The BLM did not 
discuss this with the national parks, when the National Park Service 
makes a statement of this kind for the record?
  I repeat: The problem has to do with the credibility of the 
Department of the Interior. They have made a series of statements that 
are not true. They say these leases are too close to the national 
parks. Sixty miles away is not too close. They say there was no 
consultation with the National Park Service. The National Park Service 
is on record as saying it is done. They made a promise on official 
letterhead from the Department of the Interior that a team would be 
appointed and a date would be met and the team was not appointed and 
the date was not met.
  I am perfectly willing to vote for the confirmation of David Hayes as 
soon as the Department of the Interior lives up to the promises they 
have made and acknowledges that the statements they made about these 
leases are factually incorrect. It is not a matter of interpretation. 
It is not a matter of opinion. The maps are here. The documents are 
here. The statements are here. Let's have an honest discussion of it, 
and when that discussion is taken care of and a commitment made by Mr. 
Hayes on Department of the Interior letterhead is met, I will be happy 
to remove my hold and vote for his confirmation and urge all my 
colleagues on this side of the aisle to do the same. That is the issue 
with which we are faced.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from 
Alaska is recognized.
  Ms. MURKOWSKI. Mr. President, I appreciate the opportunity to follow 
my colleague from Utah, as he has so clearly laid out the grounds upon 
which he has placed a hold on the Department of the Interior nominee, 
David Hayes. I wish to make a comment at the outset: I don't think that 
either the Senator from Utah, and certainly not myself, in also placing 
a hold--this is not a situation where there is disagreement about Mr. 
Hayes' qualifications. This is not a personal matter or anybody out to 
get Mr. Hayes, if you will. This is about what is happening within the 
Department, as my colleague from Utah has mentioned, about the 
credibility within the Department of the Interior at this moment in 
time. The actions taken by Senator Bennett in placing a hold and 
subsequently my actions in also placing a hold on Mr. Hayes and his 
nomination are strictly in keeping with the practice of being able to 
ask a potential nominee--whether it is within the Department of the 
Interior or any other position within the administration--questions and 
expecting to receive a response from that individual.
  So I, too, rise to oppose the cloture motion for the nomination of 
David Hayes to be the Deputy Interior Secretary. From my perspective, 
this vote is over a very simple issue and it can be distilled quite 
easily and that is: Will this administration answer legitimate 
questions from Republican Senators? Before I give the background of my 
situation, I also wish to say I do regret being on the floor at this 
moment and having to make this statement. I believe this whole process 
we have gone through has been unnecessary, and at any point leading up 
to this, the Department of the Interior could very easily have cleared 
the way for this nominee without having to force a cloture vote. I will 
explain why.
  It was 2 weeks ago that I added my name to the procedural hold placed 
by the junior Senator from Utah on this nominee, and I did so very 
reluctantly. I did not do it to be obstructive, to be an obstructionist 
in any way but, rather, to constructively obtain an understanding of 
the actions by the Department of the Interior that seemed to be, at 
least in my opinion, dramatically at odds with statements made by 
Secretary Salazar and President Obama regarding domestic energy 
production. I will make a statement for the record that neither I nor 
Senator Bennett have asked the Department of the Interior to adopt or 
to repeal any specific rule or policy or take or repeal any specific 
administrative action.
  The Senator from Utah has laid out, very clearly, his concerns, and I 
will only summarize for those who are listening to what we are talking 
about that the Interior Department, very shortly after the beginning of 
this administration, canceled the 77 oil and gas leases in Utah and 
gave factually incorrect justifications for its actions. All the 
Senator from Utah is asking for is a review of this very same issue.
  Following the decision on the Utah leases, the administration 
announced a

[[Page 12275]]

180-day delay of the 5-year Outer Continental Shelf leasing plan. There 
was also a delay of the scheduled round of oil shale research, 
demonstration, and development leases. There was also a finding for 
justification of listing the yellow-billed loon, whose range extends 
through major oil and gas regions in my State in Alaska. There was also 
the determination that the Bush administration's mountaintop coal 
mining rule is considered legally defective. Finally, there was the 
unilateral reversal of the previous administration's Endangered Species 
Act consultation rules, and this was done without public hearing and 
without public comment.
  It was this last issue--this issue that relates to the Endangered 
Species Act--that, in my opinion, was the straw that broke the camel's 
back. When the Bush administration listed the polar bear as a 
threatened species due to loss of sea ice, the world changed insofar as 
there had to be clear guidelines for keeping normal activities out of 
the purview of a huge and impossible regulatory scheme. We have 
cautioned against an overbroad interpretation of the polar bear rule, 
and Interior, to their credit, has taken the correct path on some of 
the most important rulemakings. I truly do appreciate that, and I have 
had an opportunity to convey my appreciation to Secretary Salazar. We 
are thankful for that. However, my larger concern remains that 
consultations could still be required for a host of energy projects, 
and in any event, that the Endangered Species Act's citizen suit 
provisions are still going to give rise to a multitude of lawsuits on 
when and where consultation with the Fish and Wildlife Service is 
mandated.
  All this combined--all these various actions within the Department of 
the Interior within a very short time period--caused great concern 
about the direction of our Nation's energy policy.
  I have been very pleased about some of the comments I have heard from 
the President and from Secretary Salazar. They, themselves, have very 
clearly stated we do need oil and gas, and we should be producing more 
of it domestically. But what has been happening is the statements that 
have been made and the rulemaking and the policy directives have been 
at odds with one another. I will give a couple quotes from both the 
Secretary and the President.
  Secretary Salazar has said: There is no--he was talking about 
renewable energies, but he goes on to state:
  There is no question that the Nation will need to continue to produce 
oil and gas as a bridge to this energy future.
  I absolutely agree with the Secretary.
  The President a couple of weeks ago said:

       As I've often said, in the short term, as we transition to 
     renewable energy, we can and should increase our domestic 
     production of oil and natural gas. We're not going to 
     transform our economy overnight. We still need more oil, we 
     still need more gas. If we've got some here in the United 
     States that we can use, we should find it and do so in an 
     environmentally sustainable way . . .

  That is the end of the President's quote. I couldn't agree with him 
more.
  But there is an inconsistency, as I have said, in the statements that 
have been coming from the administration and the actions as evidenced 
through the rulemaking or the policy directives.
  I still have questions about whether this administration does indeed 
want to include increased domestic conventional energy production as 
one of the legs of our comprehensive energy policy or if the 
administration is going to say one thing and do another. If this 
President and his Interior Department want to scale back production, 
that is their prerogative, and we can certainly talk about that, but 
that is something I need to know, both as the ranking member on the 
Energy Committee and as a Senator coming from the State that has the 
greatest onshore and offshore oil and gas prospects left in North 
America. This is important that we know and understand where this 
administration is coming from.
  I sent a letter to the Secretary when I placed a hold on Mr. Hayes, 
and I outlined my concerns. All my questions in that letter focused on 
how Interior will implement the policies it has announced and how it 
will defend against things such as the third-party lawsuits to which we 
believe they have made themselves pretty vulnerable. The White House 
and the Interior Department have communicated with me and my staff 
since I wrote that letter. Initially, we were told DOI doesn't want to 
answer the questions because they are too hard, there are too many of 
them, and they are too mean. Since that time, my staff has received a 
draft of a letter. I received it last night about 7 o'clock. I 
appreciated their response, but in many ways it avoids many of the 
specific questions. I think there is an opportunity for us to go 
through my series of questions, have that discussion in a meaningful 
way, and get the clarity I am seeking which, as a Senator, I believe I 
am entitled to.
  I will ask: If we can presume the Interior Department has been making 
its decisions and policies based on rational and well-thought-out facts 
and science, how hard can it be to question the decisions and the 
policies behind it?
  Mr. President, I ask unanimous consent to submit for the Record the 
letter I sent to Secretary Salazar. I think my colleagues will see 
there are indeed some very hard questions contained in my letter, but 
at this level of Government, I would suggest there aren't very many 
easy questions left.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                                   Washington, DC.
     Hon. Kenneth L. Salazar,
     Secretary, Department of the Interior,
     Washington, DC.
       Dear Secretary Salazar: I appreciate the comments that you 
     and other members of the Department of the Interior have made 
     on the importance of domestic energy production. As you are 
     aware, however, this past Thursday, April 30th, at a business 
     meeting held by Senate Energy and Natural Resources 
     Committee, I expressed my strong concern over the widening 
     disparity between those statements and the Interior 
     Department's actions. At that meeting I announced my 
     procedural hold on the nomination of David Hayes for Deputy 
     Secretary of the Interior.
       I trust my announcement was not a surprise. On Friday April 
     24th, Will Shaffroth, your Principal Deputy Assistant 
     Secretary for Fish, Wildlife and Parks met with my staff 
     regarding potential repeal of regulations for consultations 
     under the Endangered Species Act (ESA). My staff noted that 
     these regulations were adopted in full compliance with the 
     Administrative Procedure Act, including public hearings and 
     extensive public comment. Staff strongly urged Mr. Shaffroth 
     that if you were determined to repeal the regulations, you 
     also comply with the Administrative Procedure Act. Instead, 
     you and Secretary Locke chose to repeal the regulations 
     without public hearings or public comment. Last week, prior 
     to my announcement, my staff talked to yours and informed 
     them what would happen at the hearing.
       It is my sincere hope and expectation that we can advance 
     our respective understandings of the issues set out in this 
     letter as quickly and honestly as possible. My intention is 
     not to make your job more difficult. My intention is, 
     however, to get clear answers and commitments with regard to 
     what I and the American people should expect from our 
     Interior Department when it comes to the pressing and fragile 
     issues surrounding the stewardship of energy and natural 
     resources on federal public lands under your jurisdiction and 
     mine.
       In my official statement on April 30, I expressed my 
     cumulative frustration with, among other things, the 
     cancelation of the 77 oil and gas leases in Utah; the 180-day 
     delay of the 5-year outer Continental Shelf leasing plan; the 
     delay of the new round of oil shale research, demonstration, 
     and development leases: the finding for justification of 
     listing the yellow billed loon only one day after Tom 
     Strickland's confirmation hearing; the determination that the 
     Bush Administration's mountaintop coal mining rule is 
     ``legally defective''; and, finally, the reversal of the 
     previous administration's Endangered Species Act consultation 
     rules.
       In reality, my decision to place the hold on Mr. Hayes is a 
     reflection of concerns that extend beyond these publicly-
     stated issues and include my dissatisfaction with the 
     questions for the record which I submitted to Mr. Hayes, as 
     well as Mr. Strickland and Ms. Hilary Tompkins, the designate 
     for Solicitor General. I have attached several examples of 
     what I consider to be vague, equivocal, and ultimately 
     meaningless responses to substantive questions which deserved 
     and frankly require significantly more thought, effort, and 
     specificity.
       Finally, I am troubled by Interior's lack of a swift and 
     assertive response to the DC Circuit Court's decision on 
     April 17th to vacate your department's outer Continental 
     Shelf Leasing Program. This decision alone could,

[[Page 12276]]

     depending on its interpretation, have sweeping impacts upon 
     the Obama Administration's stated policy of including 
     increased oil and gas production as a meaningful part of the 
     nation's comprehensive energy policy.
       The compounding nature of these acts and omissions 
     demonstrates a consistent pattern of steps that are nearly 
     certain to make domestic energy production more difficult, 
     more time-consuming, and more expensive. This is 
     fundamentally inconsistent with the repeated promises of the 
     President and yourself to actively advance increased 
     production of conventional energy sources. You are aware of 
     my full support for and strong record of aggressively 
     pursuing the technologies and infrastructure necessary to 
     dramatically increase America's renewable energy capacity, 
     but I am concerned that elements within the Administration 
     are meanwhile acting upon a misguided belief that quietly but 
     systematically and rapidly scaling back--or shutting down--
     domestic oil, gas, and coal production will somehow force a 
     faster and smoother transition to a clean and secure energy 
     future. It will not, and I trust you agree that the ultimate 
     consequences of such a policy would be devastating to our 
     Nation's economy and security, as well as the world's 
     environment.
       Given this fact pattern. I worry about what might be next. 
     So, I am left with no option other than exercising my 
     procedural remedies in order to obtain what I hope and 
     presume will be authoritative, binding, and realistic 
     responses to my concerns. To supplement the issues stated 
     above and the attached questions for the record, the latter 
     of which I would like to resubmit, please provide responses 
     to the following items in substantive detail. Though the 
     questions are detailed, I trust that all are issues that you 
     and your staff have already thought about extensively, before 
     you made the policy decisions referred to above.


   Endangered Species Act Modifications and Climate Change Generally

       Interior's basis for listing the polar bear as a threatened 
     species was based in significant part upon 7 of 10 climate 
     models showing a 97 percent loss in September sea ice by the 
     end of the 21st century, presenting threatened destruction, 
     modification, or curtailment of polar bear habitat. The 
     previous Administration's change to the subsequent 
     consultation rule attempted to ensure that a causal 
     connection between harm to listed species or their habitats 
     not be drawn from greenhouse gas emissions from a specific 
     facility, resource development project, or government action. 
     The rationale for this was that such connections are 
     manifested through global processes and cannot be reliably 
     predicted or measured at the scale of a listed species' 
     current range; or, would result at most in an extremely 
     small, insignificant impact on a listed species or critical 
     habitat; or, are such that the potential risk of harm to a 
     listed species is remote. Reversal of this rulemaking as 
     regards consultation procedures, both formal and informal, 
     risks resetting the required consultations to an all-
     encompassing level which I do not believe is sustainable, and 
     prompts the following questions:
       1. Since the Supreme Court has afforded Interior 
     considerable discretion in enforcing what it termed a 
     Congressional purpose and intent in ESA to provide 
     ``comprehensive protection'' to species, including protection 
     from significant habitat modification or degradation, please 
     describe in substantive detail how the Interior Department 
     will apply its discretion in deciding whether to require FWS 
     consultation and concurrence specifically for each of the 
     following federal actions, some of which will result, 
     directly and indirectly, in the emission of various amounts 
     of greenhouse gases upon completion, and most of which will 
     require major levels of operation of heavy equipment; 
     transportation of persons and goods; and large amounts of 
     concrete, steel, aggregate, and other products produced 
     through highly carbon-intensive processes:
       I. Clean Air Act permits for any or all of the 28 coal-
     fired power plants now under construction, as listed by the 
     Department of Energy's tally.
       II. Corps of Engineers permit for development and 
     construction of a pipeline to convey water from Dixie Valley 
     to Churchill County, Nevada.
       III. Department of Transportation permitting for a high-
     speed rail construction between Las Vegas, Nevada and 
     Southern California.
       IV. Federal funding of ``Pavement rehabilitation'' at 
     Denver International Airport.
       V. Federal funding to Caterpillar, Inc. for high-speed 
     diesel fuel combustion technology.
       VI. Department of Transportation funding of the Milwaukee 
     Avenue Reconstruction project in Chicago, Illinois.
       VII. Department of Transportation funding of the New Jersey 
     Trans-Hudson Midtown Corridor.
       VIII. NEPA documentation on grazing permit renewals.
       IX. Hazardous fuels reduction projects on federal lands 
     (resulting in changes in vegetation patterns.)
       2. In the event that the Interior Department does not 
     exercise its authority to mandate FWS consultations for the 
     federal actions necessary for the projects stated under (1), 
     does Interior anticipate multiple invocations of the citizen 
     suit provisions under ESA Sec. 9(g) to compel consultations?
       a. If so, to what extent is Interior prepared, equipped, 
     and funded to defend against the multitude of citizen suits 
     likely to be filed?
       3. Does the reversal of the ESA consultation rule provide, 
     in essence, for mandatory second-guessing on an 
     intradepartmental level, suggesting that any biologists on 
     staff at BLM, MMS, and other agencies are somehow less 
     qualified (or unqualified) to evaluate potential impacts from 
     and mitigation techniques for the activities which they 
     specifically oversee than are FWS biologists?
       a. If the non-FWS biologists are qualified, why is it 
     necessary to compel mandatory FWS consultation?
       b. If they are not qualified, what is the justification for 
     their continued employment?
       4. In science-based decisionmaking, what will be, in 
     substantive detail, the procedural process for moving forward 
     for those occasions when scientific consensus does not exist 
     at the departmental level?
       5. How will Interior deal with a lack of broad scientific 
     consensus outside of the Administration; i.e. new and 
     independent scientific reports in direct conflict with 
     Interior's scientists?
       6. Given the reversal of the ESA rule, regarding 
     development of the outer Continental Shelf, does the 
     Department intend to formally consult on the polar bear and 
     listed corals for every scheduled lease sale, exploration 
     plan, and other federal action necessary to advance offshore 
     development?
       a. If so, what are the minimum and maximum amounts of time 
     that this might take?
       b. Are you able to show the proximate causal connection 
     between the direct and local effects of oil and gas activity 
     and the species in question?
       c. Will the consultation requirement be based, in any 
     scenario, on indirect global effects of these activities?
       7. Is Interior presently conceptualizing, planning, or 
     formalizing any further modifications to or reversals of any 
     of the Bush Administration's ESA rules?


          Climate Change and Science-Based Decisions Generally

       8. In the science-based decisions which FWS must make, will 
     scientists and only scientists select from the multiple 
     climate change output models available with an ability to do 
     so independent of political and professional influence and 
     incentives?
       a. Will Interior commit to a stated policy that such 
     scientists must refrain from basing any part of the selection 
     of climate models upon the model's congruence with the 
     Department's desired administrative outcome?
       9. In the world of academic research, the difference 
     between a 4% and 7% probability of error can mean the 
     difference of a scientific paper being published or not. But 
     in the world of government science, as with the 
     Intergovernmental Panel on Climate Change, anything above a 
     probability of 66% is ``likely''. Does Interior agree that 
     regulatory decisions affecting real lives and livelihoods 
     ought to be held to and based on a standard commensurate or 
     approximate to those of academic research, or is a 66% 
     likelihood ``close enough for government work''?
       10. Regardless of the scientific standards, will Interior 
     commit to affording full transparency into, and disclosure 
     of, the uncertainty behind all ``science-based'' decisions?
       11. What is Interior presently doing to standardize how it 
     interprets uncertainty in scientific analyses?
       12. Will regulatory decisions, regardless of their economic 
     implications, move forward so long as one of the many climate 
     models suggests an impact has a 66% probability?
       13. How will Interior balance contradictory evidence of 
     competing climate models and will Interior establish a priori 
     as its preferred model?
       14. How will Interior avoid post-hoc decisions on which 
     model to choose based on an individual scientist's preferred 
     outcome?


 OCS Leasing as relates to the 5-Year Plan and 4/17 DC Circuit opinion

       15. Please describe in substantive detail the particular 
     process and timing it will take to remedy the issues cited by 
     the DC Circuit with regard to the 5-year plan?
       16. Please describe in substantive detail the factors and 
     the criteria Interior will be using to evaluate that it has 
     reached the ``. . . proper balance between the potential for 
     environmental damage, the potential for the discovery of oil 
     and gas, and the potential for adverse impact on the coastal 
     zone''?
       17. As Interior conducts a more complete comparative 
     analysis of the environmental sensitivity of different areas 
     of the outer Continental Shelf, attempting to identify those 
     areas whose environment and marine productivity are most and 
     least sensitive to OCS activity, will you commit to 
     specifically taking into account all existing statutes and 
     regulations that provide for coastal and ocean protection and 
     restoration, and will you presume all of those inherent 
     associated mitigations in your assessment of potential 
     impacts and sensitivities?
       18. What specific and detailed factors will the Interior 
     Department be weighing in assessing and reconsidering the 
     Leasing Program's relative assessment of the environmental 
     sensitivity and marine productivity of the various planning 
     areas?

[[Page 12277]]


       19. Presuming the eventual advancement of the exploration 
     and development of the Chukchi Sea planning area 193, what 
     specific factors will Interior require and/or take into 
     account in evaluating exploration plans for approval? Please 
     make this list of factors as comprehensive and exhaustive as 
     possible.
       20. Since the petitioners in the DC Circuit case were 
     focused on the Alaskan areas of the OCS leasing program, will 
     Interior reconsider the entire program or instead make 
     modifications only on those more controversial areas?
       21. At which individual stage of the Leasing Program, in 
     which Interior is required to conduct additional and more 
     detailed assessments of the Program's potential effect on the 
     proposed leasing areas, does Interior anticipate legal 
     ``ripeness'' for the Center for Biological Diversity to 
     survive threshold challenges to the justiciability of their 
     remaining claims?
       22. How will you ensure a timely turnaround on these issues 
     given the lack of extensive baseline data for many of the 
     areas?


               Gulf of Mexico Leasing and Royalty Relief

       23. Is it within any official or unofficial policy of 
     Interior to support efforts to require companies that paid a 
     premium to acquire 1998 and 1999 leases in the U.S. Gulf of 
     Mexico to now be required by legislation to agree to include 
     price thresholds in the leases they continue to hold as a 
     condition of acquiring additional leases?
       24. With such major projects as Shenzi and Tahiti now 
     coming on line, does Interior agree with the oil and gas 
     industry's assessment that the 1995 Outer Continental Shelf 
     Deep Water Royalty Relief Act provided an effective mix of 
     incentives to encourage the industry to invest billions of 
     dollars for the benefit of the American consumer? If so, does 
     Interior foresee any potential negative impact upon 
     exploration, development, and production of oil and gas as a 
     result of legislatively changing the terms of the deal struck 
     in 1995?
       25. In opposing various bills before the Congress last 
     year, the oil and gas industry took the position that the 
     legislation would, if enacted, constitute a breach of 
     contract and an unconstitutional taking of property without 
     compensation under the Fifth Amendment. Does Interior hold a 
     similar view of the contract and constitutional law 
     implications of such a material change in government terms?
       26. In the 110th Congress, Ambassadors from five allied 
     Nations (Norway, Spain, France, Canada, and Australia) 
     expressed their official opinions in writing about the 
     potential

      negative impact of any legislation to modify the lease 
     terms--including contravention of treaty obligations and 
     violation of numerous international trade agreements. Do you 
     believe the Ambassadors had a reasonable basis for these 
       concerns?a. If Interior considers the concerns of the 
     Ambassadors anything short of reasonable, does Interior 
     anticipate a situation where litigation or legislation may 
     lead to either strained foreign relations or reciprocal 
     treatment of U.S. investments in the corresponding nations?
       b. If Interior considers the concerns of the Ambassadors to 
     be valid, is it Interior's position that their added 
     complications warrant separate and distinct treatment than 
     domestic companies with similar interests in the Gulf?
       27. If Congress were to enact legislation comparable to the 
     excise tax proposal put forward last year by the Senate 
     Finance Committee, would you be concerned about the 
     likelihood of litigation and the diversion of the 
     Department's resources with respect to that litigation?
       28. Now that the U.S. Court of Appeals for the Fifth 
     Circuit has denied rehearing in the Kerr-McGee litigation, 
     would you consider it reasonable for Members of Congress to 
     oppose any legislation that would now seek royalties from 
     1996-2000 leaseholders on the basis of a price threshold?


                          MTR Coal Mining Rule

       29. On December 3, 2008 the Office of Surface Mining 
     Reclamation and Enforcement (OSM) issued a final rule 
     clarifying the treatment of excess spoil disposal from coal 
     mining operations after 7 years, 43,000 comments, and 4 
     public hearings. The rule requires mine operators to avoid 
     disturbing streams to the greatest extent possible and 
     clarifies when mine operators must maintain an undisturbed 
     buffer between a mine and adjacent streams, thereby 
     clarifying a long-standing dispute over how the Surface 
     Mining Control and Reclamation Act of 1977 should be applied. 
     Just last week Interior reversed its position on this issue 
     asking the Department of Justice to file a plea with the U.S. 
     District Court requesting that the rule be vacated as 
     ``legally defective.'' Please describe, in substantive 
     detail, the criteria for avoiding the apparent 
     insufficiencies in future rulemakings on this particular 
     issue.
       a. In reshaping a legally sufficient rule, what specific 
     steps will Interior take to ensure it observes the proper 
     administrative rulemaking process including issuing a draft 
     rule and opening it up for a comment period?
       b. What specific safeguards does Interior intend to put in 
     place to ensure that this change does not halt or delay coal 
     mining operations, jeopardize jobs, and reduce domestic 
     energy production?


                             General Policy

       30. If, at the close of the current four-year Presidential 
     term, America's overall oil production has decreased in terms 
     of pure volume, will Interior consider this fact a success or 
     a failure?
       31. If, at the close of the current four-year Presidential 
     term, America's overall oil production has decreased as a 
     percentage relative to foreign imports. (e.g. 25% of domestic 
     consumption as opposed to 35% of domestic consumption) will 
     Interior consider this fact a success or a failure?
       Again, thank you for your time, patience, and prompt 
     attention to these issues and questions. It is my hope that 
     the stated energy intentions of this Administration will 
     begin to track more closely with its day-to-day actions. In 
     the meantime, your careful consideration of this letter ought 
     to help inform the Interior Department's still-forming 
     policy. Your leadership will be critical, and it will be 
     appreciated well into the future.
           Sincerely,
                                                   Lisa Murkowski,
                                            United States Senator.

  Ms. MURKOWSKI. As I indicated in my initial comments, I am not trying 
to be an obstructionist. In response to DOI's complaints, I have 
offered to sit down with them, in good faith, and go through the 
questions one by one. The standard I would use would be if any Member 
of this body were to be Secretary of Interior, which of the questions 
would they have insisted that their staff extensively analyze prior to 
taking the actions the Department has taken? I do believe my questions 
will be answered, but it is clear that in the short term, these 
questions are being answered because of this cloture motion. That 
troubles me because I believe the Senate, in its role to advise and 
consent on Presidential nominees, is entitled to answers from the 
administration about what its policy is as we move forward.
  It should not matter whether these questions come from Republicans or 
Democrats. It is reasonable to expect that any one of us in this body 
can get honest answers about how this administration is going to pursue 
and implement an energy policy.
  I hoped we would have an opportunity to sit down and go over the 
questions, but, instead, this morning we are going to see a vote on the 
floor.
  My hold on David Hayes didn't come attached with demands to change a 
rule, make a rule, or approve a plan or policy. I just want some 
answers as to what the administration's policies are going to be. My 
commitment is to get those answers.
  Regardless of what happens with this vote today, I am certainly going 
to pursue actively the development of all forms of energy in this 
country because we are going to need all of them in high volumes. I do 
look forward to working in good faith with the Interior Department, 
whatever its makeup, because we have a lot of work to do. We know that. 
We need to commit to that level of activity.
  With that, 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. BINGAMAN. 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. BINGAMAN. Mr. President, David Hayes is a superbly qualified 
individual who has been nominated by the President to be the Deputy 
Secretary of the Interior. We know for a fact that he is superbly 
qualified because the Senate has already confirmed him for that exact 
office once before. That was 9 years ago. He served in that office with 
great distinction during the Clinton administration.
  Mr. Hayes also served as counselor to Secretary Babbitt for several 
years before being appointed Deputy Secretary. In those roles, he 
handled many of the most challenging issues facing the Department of 
the Interior, ranging from the acquisition of the Headwaters redwood 
forest in California, the restoration of the California Bay-Delta 
ecosystem, the negotiation of habitat conservation plans under the 
Endangered Species Act, Indian water rights settlements, and energy 
development on the public lands.
  In addition, Mr. Hayes has had a distinguished legal career, focusing 
primarily on environmental and natural

[[Page 12278]]

resource matters. He has served as a senior fellow for the World 
Wildlife Fund, a consulting professor at Stanford University's 
Environmental Institute, chairman of the board of the Environmental Law 
Institute, and chairman of the board of visitors for the Stanford Law 
School.
  Those of us who know Mr. Hayes and had the opportunity to work with 
him when he was the Deputy Secretary before know him as a man of great 
knowledge, ability, and integrity, and as someone who strives hard to 
find constructive, progressive, and consensus solutions to difficult 
environmental challenges.
  But the debate this morning is not really about Mr. Hayes or his 
qualifications for the office to which the President has nominated him. 
It is about certain actions that have been taken by the Bush 
administration during its final weeks in office and whether the Obama 
administration will be allowed to reconsider those actions.
  During its final weeks, the previous administration took a number of 
controversial actions on endangered species, land withdrawals, 
mountaintop mining, and oil-and-gas development. It is no secret that 
in its rush to lock in these actions before it left office, the 
previous administration didn't give adequate consideration to 
environmental concerns and legal requirements. Several of these actions 
have already been overturned by the courts.
  Secretary Salazar has inherited this legacy. He is doing his best to 
address the situation in a fair and balanced way but one that reflects 
the new administration's commitment to openness and to transparency and 
to strict adherence to the law.
  Among other things, this has meant having to withdraw 77 oil and gas 
leases issued by the Bush administration in Utah that a Federal court 
has enjoined because it appears that the previous administration failed 
to comply with the National Environmental Policy Act, the Federal Land 
Policy and Management Act, and the National Historic Preservation Act.
  It has also meant having to try to salvage the current 5-year plan 
for oil and gas development on the Outer Continental Shelf after an 
appeals court found that the previous administration had failed to 
follow legal requirements when it adopted that plan.
  I can understand why some Senators might be concerned about the new 
administration reviewing the policy decisions of the previous 
administration. But what I cannot understand is why they would want to 
obstruct the nomination of David Hayes.
  No one can seriously question Secretary Salazar's commitment to the 
responsible use and development of our natural resources or his 
commitment to protecting the public interest, basing his decisions on 
sound science and complying with the law. But more than 100 days into 
his tenure, Secretary Salazar remains only one of the two Presidential 
appointees in the Interior Department who has been confirmed by this 
Senate. We need to send him help. We need to confirm David Hayes.
  The Constitution entrusts this body with the power to advise and 
consent to the President's nominations. As former majority leader Mike 
Mansfield, said:

       Our responsibility is . . . to evaluate the qualifications 
     of the nominee and to record our pleasure or displeasure, to 
     give our advice and consent or our advice and dissent.

  I believe David Hayes is extremely well qualified to be Deputy 
Secretary again. Any fair evaluation of his qualifications on the 
merits warrants our advice and consent. If Senators wish to dissent, 
then they should do so, but they should go ahead and invoke cloture so 
we can vote on this nomination.
  Mr. President, at this point I yield the floor.
  Mr. SESSIONS. Mr. President, I share the deep concerns about the 
decision of the Secretary of the Interior not to go forward with 
cancelling certain oil and gas leases. I am afraid this represents yet 
another action that irrationally reduces America's production thus 
forcing the country to send wealth abroad to purchase oil from foreign 
nations to the detriment of our economy.
  While I had no particular objection to the nominee, I do believe that 
Senator Bennett and others deserve a complete hearing on their concerns 
and this is why I choose to oppose cloture at this time.
  Mrs. FEINSTEIN. Mr. President, I rise today to support the nomination 
of David Hayes to be Deputy Secretary for the Department of the 
Interior. I think extraordinarily highly of him.
  At a time when western water issues are at a crisis point, we need 
someone with experience and knowledge at the Department of the 
Interior. Many of our great rivers and estuaries are locked in 
conflict, and I can think of no one better than David Hayes to work to 
resolve these issues.
  He is smart, he is well respected, he gets into the details, and he 
can close a deal.
  David Hayes has been nominated for the No. 2 position at the 
Department of the Interior. This is an important job. As Deputy 
Secretary, he would work closely with Secretary Salazar and have 
management responsibilities over the entire Department, as well as 
policy responsibilities over the entire Department.
  He would have statutory responsibility as the chief operating officer 
to help lead a department of 67,000 employees and an annual budget of 
approximately $16 billion, including annual and permanent funding.
  The Deputy Secretary is the day-to-day administrative manager of the 
Department and an integral part of the policy decisions.
  His prior experience in the Clinton administration in the job means 
he can hit the ground running.
  We need him to be confirmed so we can move on issues like climate 
change, public lands management, and resolve some of the longstanding 
water conflicts, including the Bay-Delta in my home State.
  I believe he has the confidence of Secretary Salazar, and he has my 
confidence, and I think very highly of him.
  He has been able to take critical land and water issues and work out 
agreements. His great strength is his ability to negotiate.
  When it comes to western water, energy, Indian affairs, and many of 
the other issues that face Interior, having someone who can consult 
with the key parties and earn their support on a way to move forward is 
essential.
  David Hayes also was key to resolving a decades-old conflict about 
the Colorado River.
  The Quantification Settlement Agreement enabled California to reduce 
its overdependence on the Colorado River to its 4.4 million acre-foot 
apportionment over a 15-year grace period and assures California up to 
75 years of stability in its Colorado River water supplies.
  Without the agreement, California risked being suddenly cut off from 
the excess of almost 5 million acre-feet of Colorado River water it had 
been taking, instead of having 15 years to get there.
  David Hayes was instrumental in working out the Headwaters Agreement, 
which converted 75,000 acres of the largest private old-growth redwood 
grove to the public lands, protected forever.
  David Hayes worked very hard to bring the parties together and 
negotiate a path forward for the timber company on its remaining lands 
and to preserve the old-growth redwoods--a large, virtually untouched 
tract land with 1,000- and 2,000-year-old trees.
  David Hayes also worked on the historic Cal-Fed agreement, which 
affected the urban environmental and agricultural needs of the entire 
California Bay Delta region. We are again in crisis, and we need him 
back to help resolve it.
  All of these were difficult and sophisticated agreements which needed 
the determined and steady hand that David Hayes provided. Time and 
again he was able to bring people together behind a broadly agreeable 
plan.
  David Hayes has been well respected since his days at Stanford Law 
School in the late seventies, where he was recognized for his 
outstanding editorial contributions to the Stanford Law Review.

[[Page 12279]]

  He has a long and distinguished career in private practice, which has 
always focused on environmental, energy, and natural resources matters 
and the interconnectedness between the three.
  From 1997 to 1999, David Hayes served as the counselor to the 
Secretary of the Interior, and from 1999 to 2001, he served in the very 
position that we are considering him for here today.
  So there is no doubt that he is extremely well qualified to fill this 
position.
  David Hayes is well positioned to negotiate the many complex issues 
that face the Department of the Interior today, including the proposed 
removal of dams on the Klamath River, the development of renewable 
energy and conservation of the deserts, and the management and 
conservation of California's Sacramento-San Joaquin River Delta for 
habitat restoration and water supply goals.
  I know that there are some who believe that one cannot understand the 
West without being from the West. I can only say that there is no one 
whom I know of who is a candidate for this office who brings more 
experience in western issues than David Hayes. He is really 
unparalleled in the arena of Federal officials.
  I believe he would be a real asset to the administration, and I hope 
you will join me in supporting him. I urge my colleagues to vote to 
confirm David Hayes.
  Mr. MERKLEY. Mr. President, I rise today to speak in support of 
confirming David Hayes to be Deputy Secretary of the Interior. Mr. 
Hayes is supremely qualified--he has in fact held this exact position 
before, in the Clinton administration. He has an impressive track 
record of handling controversial issues and doing so by building 
consensus among diverse constituencies.
  He has successfully used this approach with some of the most pressing 
issues facing our western states. He worked closely with Senator Jon 
Kyl and a range of water and environmental interests to negotiate the 
framework for the Arizona Water Settlements Act--a historic settlement 
of water rights disputes involving municipal, agricultural and tribal 
water users in the State of Arizona. There are pressing water rights 
issues in the West and across the Nation that need resolution today.
  In addition, he worked with Senator Dianne Feinstein to negotiate the 
acquisition and protection of the old-growth redwood Headwaters Forest 
in northern California, along with an accompanying habitat conservation 
agreement that continues to protect endangered salmon and bird 
populations on 200,000 acres of adjacent, privately held forest lands 
in northern California. There are pressing needs to resolve forest 
management issues today--to protect old-growth habitat while restoring 
forest health and creating jobs in our forests.
  We need Mr. Hayes on the job.
  Over the last 4 months, Secretary Salazar has faced a difficult task 
of cleaning up the mess the previous administration left at the 
Department of the Interior.
  The American people remember the Department of the Interior under the 
Bush administration as a Department where ``anything goes.'' It is the 
Department the American people associate with Jack Abramoff. It is the 
Department where agency employees were serving the oil companies 
instead of the public. And it is the Department where the former 
assistant secretary in charge of fish and wildlife tampered with the 
science behind Endangered Species Act decisions.
  Again and again, the courts have thrown out the decisions of the Bush 
administration Interior Deparment because they didn't pass the smell 
test.
  Last month, for example, a Federal court vacated the entire 5-year 
plan for oil and gas leasing because the Bush administration didn't do 
the environmental review properly. So Secretary Salazar and the Obama 
Interior Department have had to go back to the court and ask for 
permission to fix it, so that current oil and gas activities aren't 
disrupted by the bad judgment of the previous administration.
  Before that, a court in Utah froze last-minute leases that the Bush 
administration had granted near Arches and Canyonlands National Parks 
because the Park Service hadn't been consulted. So Secretary Salazar 
and the Obama Interior Department have had to go back and review the 
leases, one by one, to see if any of them are appropriate for 
development.
  It is not a matter of politics in the decisions the Interior 
Department is making, it is a matter of fixing broken processes and 
restoring the trust of the American people in the Department that 
manages one-fifth of the Nation's landmass and 1.7 billion acres off 
the coasts.
  And Secretary Salazar is taking the decisions one by one.
  Where Interior is finding good decisions from the Bush 
administration, they are keeping them in place. Where they are broken, 
they are fixing them. And when they can't be fixed, they are going back 
to the drawing board.
  Not everyone in this--chamber will agree with every decision that the 
Interior Department will make. But wouldn't it be a breath of fresh air 
to see Interior following the rules; fixing problems; making decisions 
based on the public interest, the best scientific data available, and 
the rule of law.
  David Hayes has served his country under the Clinton administration 
as Deputy Sacretary of the Interior, and served well. He earned a 
reputation as a problem solver--as someone who will listen and find 
common ground.
  He will help our Nation tackle the complex natural resource 
challenges we face. There is much work to be done--on water rights, on 
forest health, on a number of critical issues.
  I urge my colleagues to vote in support of Mr. Hayes.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, how much time remains on the Democratic 
side?
  The PRESIDING OFFICER. There is 15\1/2\ minutes remaining.
  Mr. DURBIN. Thank you. Mr. President, I rise today to discuss the 
long list of nominees for the Obama administration who are being held 
up by the Republican Party of the Senate. The Republican Party has been 
characterized now as a ``party of no.'' It is a phrase we have been 
hearing a lot. Consistently, when President Obama has reached out in a 
bipartisan fashion to ask the Republicans to join him in changing the 
culture in Washington, in addressing the major issues of our day, in 
working with him to find compromise legislation, the answer has almost 
exclusively been ``no, not interested.''
  Why? Because despite our best efforts to work together, we have been 
met at every turn by a Republican negative response. Now the party of 
no--the Republicans in the Senate--has decided to filibuster the 
nomination of David Hayes to be the No. 2 person in the Department of 
the Interior.
  You must think that is a pretty controversial position, right? 
Senators on the Republican side, who have made long speeches against 
filibustering nominees, are breaking their word and now initiating 
these filibusters. This must be some red-hot controversial position 
that this man is clearly unqualified to fill. That is not the case.
  The Deputy Secretary of the Interior manages the day-to-day operation 
of the Department of the Interior and works closely with the Secretary 
on key policy decisions.
  David Hayes's previous 2-year tenure in the same position as Deputy 
Secretary of the Interior and his career of experience give him the 
knowledge and ability to immediately hit the ground running in this 
demanding position.
  The Secretary of the Interior, Ken Salazar, a former Member of this 
body, personally reached out to the Republican side of the aisle, 
telling them he needs to have David Hayes confirmed to make headway on 
the administration's and the Nation's priorities, including renewable 
energy production on Federal lands, the effects of climate change on 
the natural landscape, and reengagement in the resolution of 
challenging water issues.
  David Hayes has a long track record of negotiating solutions to 
difficult

[[Page 12280]]

natural resource issues and working cooperatively with Members of 
Congress.
  When he was Deputy Secretary under the Clinton administration, he 
worked closely with the Republican whip, Senator John Kyl of Arizona, 
on a range of water and environmental interests to negotiate the 
framework for the Arizona Water Settlements Act.
  He worked with Senator Feinstein, on the Democratic side, to 
negotiate the acquisition and protection of old-growth redwood 
Headwaters Forest in northern California.
  He partnered with Senator Mary Landrieu of Louisiana to secure Land 
and Water Conservation Fund monies to preserve bayou lands in 
Louisiana.
  This man has experience. He has worked with both sides of the aisle. 
He has 30 years of experience in natural resources and environmental 
law, with special expertise in resolving complicated issues. 
Apparently, 30 years of experience, having held the same job, and 
having worked with both sides of the aisle is not good enough for the 
party of no.
  On May 6, Senator Murkowski sent a letter to Secretary Salazar 
raising concerns about the decisions the administration has made in the 
last few months. The three issues are revisions that the administration 
has proposed to the Endangered Species Act, regulations relating to 
future leases in offshore drilling, and the administration's withdrawal 
of 77 oil and gas leases in Utah.
  Senator Bennett, who is on the Senate floor, continues to object to 
the administration's withdrawal of 77 oil and gas leases. These leases 
were withdrawn as a result of a court-ordered injunction, and they are 
currently under review by the Department.
  They are blaming David Hayes for this? Blame the court for this. Give 
this man a chance to serve our country.
  Well, he is not the only nominee held up by the party of no in the 
Senate. This year, 17 nominees have had to wait and wait and wait for a 
rollcall vote to be confirmed. In most years, these nominees would have 
been approved by unanimous consent. Not this year.
  Apparently, the Republicans in the Senate don't believe that 
President Obama has a mandate to lead this country. They are 
challenging his assemblage of a team of people to make this Federal 
Government run more efficiently and effectively. This year, the 
Republican minority demanded rollcall vote after rollcall vote on what 
were routine appointments by the Obama administration. They would 
threaten filibusters, force 2 and 3 days of delay, require a 60-vote 
margin, and then what happened?
  Here is one of the controversial nominees. Listen to his vote. Gil 
Kerlikowske, nominated to be Director of National Drug Control Policy, 
was held up, debated, and threatened. His confirmation vote was 91 to 
1. Thomas Strickland, nominated to be Assistant Secretary for Fish and 
Wildlife, Department of the Interior, was confirmed 89 to 2. Kathleen 
Sebelius, nominated to be Secretary of Health and Human Services, was 
confirmed 65 to 31. Christopher Hill, Ambassador to Iraq, confirmed 73 
to 23; Tony West, Assistant Attorney General, confirmed 82 to 4; Lanny 
Breuer, Assistant Attorney General, confirmed 88 to 0; Christine Anne 
Varney, Assistant Attorney General, confirmed 87 to 1; David Kris, 
Assistant Attorney General, confirmed 97 to 0.
  They made us wait for days and weeks and months to bring these names 
up before the Senate because of the controversy, and listen to the 
votes: 97 to 0, 87 to 1, 88 to 0. This isn't about the nominee. This 
isn't about controversy. This is about slowing down the assembly of 
President Obama's team to bring real change to Washington. That is what 
this resistance to David Hayes is about as well.
  This list goes on. I won't read them all. I will put them in the 
Record. But to put this in historical context, at the start of 2001, 
when the Senate was controlled by the President's party until May 24, 
there wasn't a single filibuster of a nomination. The Democratic 
minority didn't filibuster a single Bush nominee at the start of 2001. 
This time, we have had to file cloture six times because of threatened 
filibusters. The following nominees were at least initially 
filibustered and required a cloture motion: David Ogden, Austan 
Goolsbee, Cecilia Rouse, and Hilda Solis, for the sole and exclusive 
purpose of slowing down the assembly of President Obama's 
administration so there could be an effective and efficient handing 
over of power.
  These Senate Republicans are still negotiating the last election. 
They want another chance at it. Well, the American people had their 
day. On November 4 of last year, they elected a new President and asked 
him to do his best to lead our Nation in troubled times. Sadly, the 
Republican Party that lost that election will not face the reality that 
this President needs a team of skilled professionals to stand by him 
and deal with the real challenges we face in this country. They are 
slowing down and stopping nominations of well-qualified people who, 
when they are ultimately called to the floor for a vote, get 
overwhelming rollcall support.
  We have surpassed the number of cloture motions filed on nominations 
during President Bush's entire first term--four. When President Reagan 
was elected, in a landslide, a Democratically controlled Senate worked 
with him to confirm his nominees. So far, the Senate has confirmed 104 
Obama nominations. At the same point in 1981, with President Reagan and 
a Democratic Congress, it confirmed 125 Reagan nominations. The largest 
gap between nominations and confirmations during this point in the 
Reagan administration was 71. The largest gap between nominations and 
confirmations during the Obama administration is 124, a number reached 
last week.
  Unfortunately, this Republican delay is not likely to end soon. There 
are currently 18 nominees sitting on the Executive Calendar. By our 
count, there are almost 12 holds on the Republican side of the aisle. A 
couple of them are worth noting. Senator John Kerry's brother, Cam 
Kerry, a well-qualified man, has been nominated to be general counsel 
of the Department of Commerce, but the Republicans have refused to move 
his nomination, with no stated reason, no objection to this good man. 
Regina McCarthy, to be Assistant Administrator of the EPA for Air and 
Radiation, has been held up because two Senators want her to repudiate 
the administration's position on climate change.
  Once again, they want to renegotiate the November 4 election. Many of 
the holdups are the result of Republicans asking for policy changes to 
reinstate George W. Bush policies. Didn't we have an election to decide 
that?
  The nomination of David Hayes is an example. The holds have nothing 
to do with him. The Republicans holding up his nomination simply want 
to reinstate George W. Bush-era policies. They long for those good old 
days under President George W. Bush. They are going to resist change, 
resist this President, and hold up as many people as they can that he 
needs to be a success.
  Well, elections have consequences. Americans voted for change. But 
the party of no is holding up the President's agents of change. I urge 
my colleagues on the other side of the aisle to change their approach 
and to work with us to confirm a well-qualified man and much-needed 
person, David Hayes, and the rest of the Obama administration's 
nominations.
  Mr. President, how much time is remaining on the Democratic side?
  The PRESIDING OFFICER (Mr. Bennet of Colorado). There is 4\1/2\ 
minutes remaining.
  Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
  I am sorry, I withdraw that. I see Senator Bennett is on his feet.
  Mr. BENNETT. Mr. President, is there any time remaining on the 
Republican side?
  The PRESIDING OFFICER. There is no time remaining on the Republican 
side.
  Mr. BENNETT. I ask the assistant Democratic leader if he would 
respond to a single question?

[[Page 12281]]

  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Let me do this: I want to yield 1 of our 4 minutes to the 
Senator from Utah, and then I will respond.
  Mr. BENNETT. I thank my colleague.
  I have listened with interest to the comments of my friend from 
Illinois--and we use that term loosely around here, but he really is my 
friend--and I would simply like to add this one historical postscript: 
Two of the Deputy Secretaries for Interior were held up by Democratic 
holds in the Bush administration, one for 6 months and one for 8 
months, both on issues I consider to be less significant than the issue 
I have discussed here today. Senators have a right to get answers to 
their questions before they make their confirmation votes, as 
demonstrated by the Democratic Senators who held up these two Deputy 
Secretaries. My hold of this Deputy Secretary for Interior is nowhere 
near the amount of time Democrats used when they were holding them up. 
I would like that historic footnote added to the Senator's comments.
  Mr. DURBIN. Mr. President, I acknowledge what my colleague said, and 
I don't dispute it. I don't recall those particular deputies or their 
names, but I certainly don't question the facts he has given.
  How can you look at David Hayes for this spot, after 30 years of 
experience, after having held the job before, after actively working 
with Republicans and Democrats to resolve contentious issues, and say 
this man is not qualified for the job? I don't get it. I am waiting for 
the smoking gun to come out. What is this explosive issue that the 
Republicans know that would hold up this nomination, and they can't 
come up with it?
  Unfortunately, it is part of a pattern. This isn't just about David 
Hayes, it is about another 18 names sitting on our calendar here--18 
names of individuals who are willing to give up their private careers, 
willing to come to work here in Washington, sometimes for a cut in pay, 
under difficult circumstances, to serve this new administration and try 
to change this country. They make the commitment, they get the decision 
by the family, they come forward, they go through the nomination 
process, they fill out reams of paper, they sit through the committees 
and finally get approved by the committees, they get on the calendar, 
and what happens, usually? Not in this case because Senator Bennett has 
been very public about his opposition. Usually it is an anonymous hold 
by some Republican Senator, fearful of using his name publicly, who 
will hold up the nomination indefinitely. These poor people languish on 
this calendar. I commend Senator Bennett for standing up and stating 
his opposition. Although I don't agree with it, at least he has had the 
courage to come forward. That is not the case on many of these.
  This is the pattern that is emerging: Slow things down, force us to a 
vote, and when the vote finally comes, it is an overwhelming vote in 
favor of the nominee. The sole purpose is to try to stop the new Obama 
administration from putting in place the team they need to bring real 
change to America. President Obama said repeatedly during his campaign 
that real change is hard to come by, that it takes time and there will 
be people who will fight it every step of the way. We are seeing one of 
those battles on the floor of the Senate today when it comes to David 
Hayes.
  For goodness' sake, give President Obama and Secretary Salazar the 
people they need to be successful in the Department of the Interior. I 
urge my colleagues to support the cloture motion and to move this 
nomination forward.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I rise today to speak in support of 
confirming David Hayes to be Deputy Secretary of the Interior. Mr. 
Hayes is supremely qualified. He has, in fact, held this exact position 
before in the Clinton administration. He has an impressive track record 
of handling controversial issues and doing so by building consensus 
among diverse constituencies. He has successfully used this approach a 
number of times working in our Western States. He worked closely with 
the Senator from Arizona on a range of water and environmental 
interests and negotiated the framework for the Arizona Water 
Settlements Act, a historic settlement of water rights disputes 
involving municipal, agricultural, and tribal water users in the State 
of Arizona. And that is no small matter. You know, they say in the West 
that whiskey is for talking, but water, that is for fighting. That is 
how important it is, that is how difficult it is, and it took a good 
man like this to bring diverse interests together to solve those 
problems and move forward.
  In addition, Mr. Hayes worked with Senator Feinstein to negotiate the 
acquisition and protection of old-growth redwood Headwaters Forest.
  Mr. President, I ask that we have a strong, affirmative vote to fill 
out the Department of the Interior and put it to work on the issues 
facing our Nation.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order and pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will state.
  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, 
     hereby move to bring to a close debate on the nomination of 
     David J. Hayes, of Virginia, to be Deputy Secretary of the 
     Interior.
         Harry Reid, Mark Begich, Jeff Merkley, Max Baucus, Patty 
           Murray, Jon Tester, Jack Reed, Jeanne Shaheen, Barbara 
           A. Mikulski, Debbie Stabenow, Tom Harkin, Robert 
           Menendez, Byron L. Dorgan, Mark Pryor, Bernard Sanders, 
           Sherrod Brown, Barbara Boxer.

  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 the 
nomination of David J. Hayes, of Virginia, to be Deputy Secretary of 
the Interior 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. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy), the Senator from Massachusetts (Mr. Kerry), and the Senator 
from Maryland (Ms. Mikulski) are necessarily absent.
  The yeas and nays resulted--yeas 57, nays 39, as follows:

                      [Rollcall Vote No. 189 Ex.]

                                YEAS--57

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--39

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Reid
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--3

     Kennedy
     Kerry
     Mikulski
  The PRESIDING OFFICER. On this vote, the yeas are 57, the nays are 
39. Three-fifths of the Senators duly chosen and sworn having not voted 
in the affirmative, the motion is rejected.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the motion to 
reconsider the vote by which cloture was not invoked on the David Hayes 
nomination be considered entered by the majority leader.

[[Page 12282]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)
 Mr. KERRY. Mr. President, I was necessarily absent for the 
vote today on the motion to invoke cloture on the nomination of David 
Hayes to be Deputy Secretary of the Interior because I was attending a 
funeral. If I were able to attend today's session, I would have 
supported cloture on the Hayes nomination.
  Ms. SNOWE. Mr. President, I rise to expand on my vote in favor of Mr. 
David Hayes to be Deputy Secretary of the Interior. It is my 
understanding that Senator Bennett has requested answers to a series of 
substantive questions regarding the Department of the Interior's 
decision to withdraw 77 parcels in Utah from an oil and gas lease sale. 
I strongly believe that it is the prerogative of any Member of the 
Senate to have his or her questions answered in detail, especially 
concerning an issue relevant to their home State. I further understand 
that the Secretary of the Interior has indicated that there will be a 
thorough review of the administrative record concerning the 77 lease 
parcels and the Department will provide a report with recommendations 
by May 29, 2009. I believe that this is a reasonable path forward on 
the issues at this time. With that said, if Senator Bennett's questions 
are not sufficiently addressed by that date, I reserve my right to 
object to future executive nominations to the Department of the 
Interior. I look forward to successful resolution of Senator Bennett's 
concerns.
  Mr. DURBIN. Mr. President, I ask unanimous consent that following the 
statement by Senator Landrieu of 4 minutes, the Senate resume 
legislative session and resume consideration of H.R. 627.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I would amend that unanimous consent 
request. I wish to amend that to allow 5 minutes for the Senator from 
Louisiana, and 5 minutes for Senator Crapo, and then the Senate resume 
legislative session and resume consideration of H.R. 627; and at that 
point, Senator Menendez be recognized for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I wanted to take a few minutes in 
reference to the vote we just had. I cast my vote for the nominee, 
based on not only his experience with the Department, but based on my 
confidence in the Secretary that the President has appointed to help 
lead this country to a position of energy security, a position we do 
not enjoy at this very moment.
  Despite the work that has been done here and on the other side of the 
Capitol in the last couple of years, despite the rhetoric of several 
decades, we do not enjoy energy security. We have environmental issues, 
but we have security issues.
  I wanted to express this, because there was obviously some hesitancy 
about this nominee based on an issue, I believe, involving domestic oil 
and gas production. That is what this vote was about, not about this 
personal nominee.
  This was a vote to express concern, which I share to some degree, 
that this administration has not positioned itself appropriately and 
aggressively enough in the area of domestic energy production, of 
traditional as well as alternative and new sources.
  Here I want to express that while I voted yes on this nominee, that I 
plan, and Members on the Republican and Democratic side plan, to be 
more vocal in expressing our concern to this administration that the 
tax proposals on the oil and gas industry are not going to create jobs. 
We are going to lose jobs, 1.8 million.
  While we move to alternative fuels, we are turning our back on 
traditional natural gas, which is plentiful, which makes money for lots 
of people, which secures America, strengthens our industry and creates 
jobs.
  So this was a vote to indicate an unsettling on this floor, both from 
the Republican side and among some Democrats, that this issue needs to 
be addressed more directly and more aggressively.
  I have all the confidence, as I close, in Secretary Salazar. He 
served right here with us a few years ago. I know he seeks a balance. 
So I trust that we will start seeing some aggressive comments coming 
out from the administration as we push forward to keep leasing up in 
the gulf off the coast of Alaska, opening up Virginia, other parts of 
the Continental Shelf, as well as the plentiful gas in your own State, 
and in places such as Pennsylvania and Ohio, where our industries are 
desperate for this cheap, clean energy source.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAPO. Mr. President, I wish first to indicate to the Senator 
from Louisiana that I agree with her comments. I think the last time I 
got up to speak on this energy issue she was here on the floor as well. 
I share her sentiments about the need for us to continue to focus on 
developing a rational national energy policy for our Nation.
  On July 30 last year, I stood before this body to talk about the No. 
1 issue in the country to the people at that time: energy. Gasoline 
prices were over $4 a gallon and surging, and Americans were wondering 
what their leaders in Washington, DC, were going to do to help. I place 
tremendous faith in the opinions and ideas of Idahoans. So in early 
July I asked my constituents to write to me and tell me what they 
thought we ought to do and to describe to me what the impact of our 
failure to have a reasonable national energy policy was having on their 
lives. Then I made a promise that I would submit their stories to the 
Congressional Record, a process I vowed to continue until all of their 
stories had been submitted. In total, I received over 1,200 responses 
from my State, 600 almost overnight. It has taken me nearly 10 months 
to get all of these stories entered into the Congressional Record due 
to the requirements of the Congressional Record limitations as to how 
much can be submitted each day.
  Today I submit the last of those stories, and I want to share with 
you what we have learned. I received touching stories from Idahoans 
about how they have been negatively impacted by higher energy prices, 
and the stories indicate that high energy prices had impacted every 
aspect of their lives. Idahoans had to cut back on family time. Many 
were unable to visit elderly relatives and had to cut back on family 
activities together outside of the home such as sports or music 
lessons. But those were just some of the less serious challenges Idaho 
families faced. Many had to cut back on their home repairs, their air 
conditioning, and their contributions to their retirements plans. Many 
had to make a decision between whether to eat food or to pay for the 
gasoline they needed to get to their work and keep their job or to 
purchase needed medications.
  I can remember one story of a young mother telling me how she and her 
husband had started eating much less so that their children could have 
enough to eat, and they could still have enough gasoline each week to 
get to work and keep their jobs.
  Many of their stories were heart wrenching. Many talked about losing 
their jobs and being forced to relocate or to make decisions between, 
as I indicated, purchasing gas or eating their next meal. Many reduced 
their expenses, cut their luxuries and found ways to economize. But the 
dramatic increase we experienced last year brought Idaho families, as 
many in other States, to their knees asking for help.
  They offered explanations about what has happened and offered links 
to various publications and videos they found helpful. They attached 
photos of their circumstances. They sent legislative resolutions from 
national, State and local entities to remind us that other legislators 
around the country were interested in finding solutions to this issue 
as well. Many of them have spent a lot of time and energy on this 
subject, researching energy options and sharing their opinions on what 
they

[[Page 12283]]

have learned. They offered solutions. My constituents suggested we need 
more conservation, that we need more domestic drilling. They wanted 
more public transportation and more nuclear power options. They pushed 
for additional renewable and alternative energy sources and research.
  In short, they came through with the kind of common sense that people 
all across this country have been sharing with this Congress on the 
need for energy solutions. They want us to be less dependent on 
petroleum, and they want us to be less dependent on foreign sources of 
this petroleum. They want us to have a broad, diverse energy base of 
renewable and alternative fuels, including strong support for nuclear 
power. But above all, they were angry at Congress for not dealing with 
the issue of high energy prices. They couldn't believe the country had 
been through an energy crisis before but that Congress still has not 
managed the issue and come up with a solution. Idahoans expressed 
frustration with partisan politics and the inability to move past the 
age-old arguments and reach consensus on a comprehensive energy policy. 
Many said they were grateful I had asked for their thoughts.
  I come before the Senate to echo my constituents' comments and 
concerns about our energy policy and to offer solutions. As I stand 
before the Senate, we are no closer to a comprehensive energy policy 
than we were last July. Yet economic indicators point to a rally in 
crude oil prices. Oil is now above $58 a barrel and gas prices are the 
highest they have been in 6 months. We don't need a repeat of last 
summer. We need to work together to craft a comprehensive energy policy 
that promotes domestic security and creates American jobs while 
providing energy at the lowest cost possible to consumers.
  The key to the energy future is to take a balanced approach that 
includes domestic production, conservation, renewables, nuclear, and 
alternative fuel development.
  I would like to conclude my remarks by repeating my constituents' 
desire for the kind of bipartisanship that can transform this country's 
energy policy. I welcome the opportunity to work with all my colleagues 
on this issue. I encourage us not to a get into another energy crisis 
such as we faced last summer, with Congress having failed to take the 
important steps it can to help America become energy independent and a 
strong supplier of its own energy resources.
  I yield the floor.

                          ____________________