[Congressional Record (Bound Edition), Volume 163 (2017), Part 2]
[Senate]
[Pages 1574-1587]
[From the U.S. Government Publishing Office, www.gpo.gov]




    DISAPPROVING A RULE SUBMITTED BY THE DEPARTMENT OF THE INTERIOR

  The PRESIDING OFFICER. The clerk will report the joint resolution.
  The legislative clerk read as follows:

       A joint resolution (H.J. Res. 38) disapproving the rule 
     submitted by the Department of the Interior known as the 
     Stream Protection Rule.

  The PRESIDING OFFICER. Pursuant to 5 USC 802(d)(2), there will be up 
to 10 hours of debate, equally divided between the proponents and the 
opponents of the resolution.
  The Senator from Utah.


                       Nomination of Neil Gorsuch

  Mr. LEE. Mr. President, I rise to speak about the nomination of Judge 
Neil M. Gorsuch to be an Associate Justice on the U.S. Supreme Court.
  Confirmation of anyone appointed to the Federal judiciary is a big 
deal. Confirmation of someone appointed to serve on the Supreme Court 
of the United States is an exceptionally weighty matter. I therefore 
approach this with the seriousness it deserves. I approach this as one 
who has argued in front of Judge Gorsuch. I found as a lawyer that he 
is an exceptional judge, an unusual judge--a judge who comes to 
argument with an unusual degree of preparation, having read all the 
briefs and apparently all of the cases and all of the statutes cited in 
the briefs.
  There are some judges who at oral argument are constantly asking 
questions, but they are not necessarily questions that need to be 
asked. Perhaps some judges want to hear the sound of their own voices. 
That is, of course, something that would never happen here, in the U.S. 
Senate, but it happens sometimes with other people. There are other 
judges who might be quiet throughout an argument. Then there is a 
unique category of judge, a judge who doesn't necessarily speak 
constantly but a judge who listens attentively and then pounces at the 
moment when he or she sees the pivotal moment in the case arising.
  The late Justice Oliver Wendell Holmes, Jr., used to say there was a 
point of contact in every case. When asked, he pointed out that the 
point of

[[Page 1575]]

contact in any case is the place where the boy got his finger caught in 
the machinery. I learned that quote when I was in law school. I have 
never entirely understood what it means, but it reminds me of the fact 
that in every case, there is a pivotal fact and a pivotal aspect of the 
law which, when properly understood, can help lead the court to a 
proper disposition of the legal question at hand.
  Judge Gorsuch is one of those rare judges who is able to seize upon 
the point of contact in any case. He does so with seeming 
effortlessness. Yet I know he does it in a way that requires a lot of 
effort because these things don't just come naturally. They come only 
as a result of faithful study of the law, of faithful attention to 
detail in every case, reading every brief in every case.
  Judge Gorsuch does this in part because he was well trained. When we 
look at his background, we can see that excellence has always been 
something we have been able to see from him. He graduated with honors 
from Harvard Law School and received a doctorate in jurisprudence from 
Oxford. He clerked for three brilliant and very well-respected jurists: 
Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit 
and Justice Byron White, as well as Justice Anthony Kennedy of the U.S. 
Supreme Court. We could not ask for a better legal education or a 
stronger record of accomplishment from a young lawyer.
  After his clerkship, Judge Gorsuch entered into private practice, 
where he was a trial attorney for 10 years. In 2005, he joined the U.S. 
Department of Justice as Principal Deputy Attorney General, and he 
became a judge on the Tenth Circuit in 2006, where he has served for 
the last decade.
  Judge Gorsuch has what I would consider--and I think what most would 
acknowledge--is the correct approach to the law. He is a judge's judge, 
both literally and figuratively--literally, because he sits on the U.S. 
Court of Appeals for the Tenth Circuit. He literally judges the rulings 
of other judges. It is his job to decide whether other judges have done 
the right thing. And he is a judge's judge figuratively in the sense 
that he has the characteristics that all judges aspire to--or at least 
should. He decides cases based on what the law says and not on the 
basis of what a particular judge might wish the law said.
  I particularly enjoyed last night listening to Judge Gorsuch speak at 
the White House, his reference to what he considers an important, 
telltale sign of a good judge or a bad judge. He said: ``A judge who 
likes every outcome he reaches is very likely a bad judge, stretching 
for results he prefers rather than those the law demands.'' So a bad 
judge is one who necessarily likes all the results he reaches, and it 
naturally follows that a good judge will, from time to time, 
necessarily disagree with some of the judge's own rulings. In other 
words, the outcome of the case doesn't necessarily match up with the 
outcome the good judge would prefer--or the judge, an all-powerful 
ruler who had the power not only to interpret the law but also make it, 
establishing rules, embodying policies that would govern in all cases.
  This is the essence of the conservative legal movement--the judicial 
conservative movement, we might say--in which Justice Scalia was so 
influential, which is why it is so fitting that Judge Gorsuch has been 
named to replace Justice Scalia.
  Judges do not have a roving commission specifically to address all of 
the evils that plague society. They don't have a roving commission to 
decide big policy questions of the sort we debate in this Chamber every 
day. The judge's role, rather, is to apply the facts to the case at 
hand, and, in the case of the Supreme Court, to provide guidance to 
lower courts so they can resolve difficult and consequential questions 
of law. Judge Gorsuch understands the difference between being a judge 
and being a legislator, and that is very much reflected in his work on 
the bench.
  When I had the privilege of practicing law and appearing in front of 
Judge Gorsuch, I was able to be the beneficiary of his skill as a judge 
and of his commitment to the rule of law. Over the last few days, I 
have had the privilege of reading many of his opinions. I spent hours 
upon hours poring through his opinions. Knowing that he might well be 
named to the Supreme Court, knowing he was one of the potential 
nominees made me want to learn more about him than I already knew. I 
have to say, every single opinion I read, without exception, was 
impeccable to an unusual degree. They are methodical. They are careful. 
They are studious. They reflect a degree of academic and professional 
craftsmanship rarely seen. He treats the parties appearing before him 
with dignity and respect. He takes their arguments seriously, and he 
respectfully explains their arguments as he addresses them.
  I know from my time in the practice of law that no one likes to lose 
a case, but I doubt any litigant has read a Judge Gorsuch opinion and 
felt like he failed to understand their position or that he failed to 
take their views seriously with the credibility and dignity they 
deserve. This is a crucial yet, sadly, often underrated factor when 
reviewing the work of any judge.
  Most of all, his opinions are just brilliant. They are digestible to 
lawyers and nonlawyers alike. This is crucial because the judiciary 
belongs to everyone in this country, not just to attorneys. Judge 
Gorsuch's opinions are memorably written without being snarky, and he 
scatters his opinions with literary and philosophical references to 
highlight the legal points he is making while also just making the 
opinion much more interesting. As someone who has read more than my 
fair share of judicial opinions, I can tell you that Judge Gorsuch's 
opinions are among the very best I have ever read. I don't just mean a 
few of them, I mean every single one of them that I have read, which is 
a lot of them. They are very, very good. In fact, they are Supreme 
Court caliber.
  Judge Gorsuch has written hundreds of opinions, but there are two 
recently decided cases I wish to highlight.
  He is a critic of an obscure but very significant legal rule known as 
the Chevron doctrine. When the Supreme Court decided the Chevron case 
back in 1984, the Justices may not have thought they were deciding a 
big case. They might not have realized the extent to which the decision 
in Chevron v. NRDC--the extent to which that case would have such a 
profound impact on the Federal judiciary and on the state of the law in 
the United States of America, but Chevron is in fact one of the most 
important Supreme Court cases that most of us have never heard of. It 
says that the courts must defer to an agency interpretation of a 
statute if the statute is ambiguous.
  The problem with Chevron, as Judge Gorsuch has pointed out, is that 
it tends to divest the courts of their obligation to ``say what the law 
is,'' as Chief Justice John Marshall wrote in Marbury v. Madison. It 
has led to a system in which executive agencies not only make and 
enforce the law but also interpret the law, arrogating to themselves, 
in effect, some aspects of the powers allocated to all three branches 
of the Federal Government. This is a violation of the doctrine of 
separation of powers, one of the most important protections in the 
Constitution, one of the two fundamental structural protections in the 
Constitution, as important as any other provision in our founding 
document.
  Worse, doctrines that have developed in response to Chevron allow 
agencies to stake out a legal position, lose in court, and stake out a 
new legal position that reaches the same outcome. As Judge Gorsuch 
points out, that creates fair notice and equal protection problems.
  Now, there are two additional points to make about Chevron. First, in 
the coming days, we will undoubtedly hear some of my colleagues 
complain that getting rid of Chevron will somehow make the air less 
clean, our food less safe, our financial system more unstable, and 
cause a whole lot of other problems, but as Judge Gorsuch has written, 
``We managed to live with the administrative state before Chevron. We 
could do it again. Put simply, it seems to me that in a world without

[[Page 1576]]

Chevron, very little would change--except perhaps the most important 
things.''
  Second, it is important to note here that the Chevron doctrine is not 
a particularly ideological one.
  Indeed, in the 1980s, Chevron primarily assisted the Reagan 
administration's deregulation efforts, and junking the doctrine today 
would constrain the Trump administration's use of regulations. So 
eliminating the doctrine would affect equally Republican and Democratic 
policy goals. In any event, I am sure, based on his background and on 
his record, Judge Gorsuch's critique of the doctrine is not about 
politics; it is about first principles. At the end of the day, Chevron 
is neither Republican nor Democratic; it is neither liberal nor 
conservative. It is simply wrong.
  In another notable case, Judge Gorsuch was the lone dissenter in a 
case in which an 11-year-old student was arrested for generating fake 
burps in class. As heinous a crime as some might perceive this to be, 
it is not ordinarily the kind of thing that results in calling the 
police. Judge Gorsuch would have concluded that clearly established law 
prevented the arrest and that the child's parents should prevail in a 
lawsuit against the school officials who decided to call the police in 
response to this childish act in class. This is not uncommon for Judge 
Gorsuch, who has voted not to provide qualified immunity in several 
cases and has voted in many cases for the underdog, for someone who 
might otherwise not have had a chance in court but for the willingness 
of one very brave and astute and diligent judge to study the law and 
the facts of that case aggressively so as to make sure that justice was 
accorded to the parties.
  There are other important areas of the law where Judge Gorsuch has 
made an important contribution during his time on the U.S. Court of 
Appeals for the Tenth Circuit. I will be talking about some of those at 
length in the days and weeks to come. He has been a staunch advocate 
for the First Amendment. He has read criminal statutes to constrain the 
government's power, where appropriate, and has voted in several cases 
to withhold qualified immunity. All of these are important, and I look 
forward to discussing them with my colleagues.
  Before I close, I want to talk a bit about the confirmation process. 
In 2006, Judge Gorsuch's nomination to the Tenth Circuit was so 
uncontroversial that it lasted 26 minutes--just 26 minutes, less time 
than a ``Brady Bunch'' episode. He was confirmed on a voice vote. Among 
other notable Members of the Senate the day that Judge Gorsuch was 
confirmed were Minority Leader Schumer, ranking member of the Judiciary 
Committee Feinstein, Senator Durbin, and Senator Leahy.
  Already, prominent liberal lawyers are praising his nomination. Neal 
Katyal, who served as Acting Solicitor General under President Obama, 
has a New York Times op-ed in which he urges liberals to support Judge 
Gorsuch. Katyal writes:

       I, for one, wish it were a Democrat choosing the next 
     justice. But since that is not to be, one basic criterion 
     should be paramount: Is the nominee someone who will stand up 
     for the rule of law and say no to a president or Congress 
     that strays beyond the Constitution and laws? I have no doubt 
     that if confirmed, Judge Gorsuch would help restore 
     confidence in the rule of law. His years on the bench reveal 
     a commitment to judicial independence--a record that should 
     give the American people confidence that he will not 
     compromise principle to favor the president who appointed 
     him.

  Judge Gorsuch is exactly the type of judge who should be confirmed, 
who should be allowed to serve on the Supreme Court of the United 
States. This vacancy was a central issue in the 2016 election. The 
people have now spoken, and I plan to honor the results of this 
election by working as hard as I can to see Judge Neil Gorsuch 
confirmed to the Supreme Court of the United States.
  The PRESIDING OFFICER (Mr. Perdue). The Senator from Washington.
  Ms. CANTWELL. Mr. President, I come to the floor tonight to start 
debate on what is called the Congressional Review Act of the stream 
protection rule. For people who are probably saying ``I don't 
understand any of that; could you explain it to me?'' what we are going 
to do tonight is to start this debate, which is really about clean 
water, and it is about making sure that polluters clean up their 
messes, particularly when it comes to streams and the beauty we have in 
our country that is used by many people. And it is about making sure 
that rules for polluters paying are enforced in law and, clearly, 
agencies which have developed those rules in conjunction with laws that 
are already on the books continue to have those laws in effect.
  We are in a new administration, and already the debate is starting 
where people would like this end result to be clean water, 0; Donald 
Trump, the new President, 1. That is because this administration is 
starting a war on clean water, and tonight that debate is coming to the 
Senate floor. It is coming to the Senate floor because the last 
administration worked for more than 5 years on producing something to 
make sure that we had safe drinking water and safe stream water for 
fishing and to make sure that industries that are known for polluting 
ensure that their level of pollution is cleaned up.
  After more than 5 years in the implementation of that rule, after 
thousands and thousands of hours of discussion and debate, as it has 
become a rule, now there is one thing that can stop it. There is one 
thing that can stop it; that is, if Congress uses its authority under 
the Congressional Review Act to repeal it within the 60 days of 
legislative action that it has become effective.
  What is happening is that the Trump administration and our colleagues 
on the other side of the aisle are trying to say that we want to repeal 
more than 5 years of hard work of clearly outlining a stream protection 
rule to protect streams in the United States of America from pollution 
caused by certain types of mining activity.
  Let me show you a picture of what I am talking about. This stream 
could be anywhere in America. It could be anywhere in the United States 
of America. It is probably a good picture. Why? Because it shows the 
great outdoors. Probably for me, it is somewhere I would like to hike. 
It shows a stream, but it shows the degradation of that stream with the 
pollution in the stream.
  Whether you are Trout Unlimited, which supported this rule, or you 
are the Wilderness Society, or all the hunting and fishing groups that 
supported this rule, or you are just one of the many citizens in a 
State where mining exists and you are happy that it exists there but 
you also want them to be clean up their messes--these are the people 
who do not want to see this level of degradation in the streams.
  Why don't they want to see it? Because first and foremost they 
obviously don't want to see it, but if you are a fisherman and you are 
out fishing, you certainly don't want to see the impacts that selenium 
is causing on fish.
  There are a couple of incidents here where the impacts of selenium on 
fish are shown in this diagram. Deformation both here in the tail and 
here in the mouth of fish are impacts from selenium in streams. We do 
not want to see selenium having that kind of impact on our fish.
  What do we want to do? We want to make sure that we are measuring 
selenium in the streams and that we are cleaning it up. That is what we 
want to do. The notion that somehow people have described a rule for 
stream protection that is about having safe drinking water and having 
safe fishing water is about a ``war on coal'' is just wrongheaded. This 
is about making sure that we don't overturn something that took over 5 
years to get in place. And I should say, it is the first time in 33 
years that we have updated this rule.
  For 33 years, the Department of the Interior has said that the 
hydraulic impact of mining on a stream should be mitigated. What has 
changed in the last 33 years is that we now have better technology and 
we have more information about selenium. We know that it impacts fish, 
and we want mining companies to measure their impacts on headwaters and 
make sure they are doing something to minimize this selenium impact.

[[Page 1577]]

  I know people think that maybe in this process for 5 years--somehow 
that created a decrease in the amount of coal in the United States of 
America, even though the rule was just getting started. Let's look at 
the real issue. The real issue is that natural gas becoming cheaper in 
the United States of America has pushed down the demand for purchasing 
coal, a more expensive product that had nothing do with this rule.
  I have been in business and, yes, you plan for the future. And if you 
think your business is going to have to increase its insurance or 
change its business practices, yes, you consider all of that, but this 
chart clearly shows that our electricity grid has gone from having 50 
percent of it supplied by coal now down--as this line is crossing 
here--to about 30 percent of our electricity grid from coal.
  This rule was not in place. Saying that you want to have safe 
drinking water has nothing to do with what has happened in the 
marketplace as natural gas has become a more viable option than coal. 
This chart shows it.
  We have another chart that also shows this 23-percent decline in 
coal. Why? Again, because of natural gas consumption going up. For 
those on the other side who would like to say this is somehow about a 
war on coal, I will tell you, we should not denigrate anybody for the 
job that they have done to support their families. In fact, I believe 
we should make sure they have a pension, make sure they have health 
care.
  It is a tragedy that we bailed out Wall Street from the U.S. 
Treasury, and as pension programs all across America imploded, nobody 
wanted to bail out the pension program for miners so they could retire 
with the kinds of health benefits that other people do. If we want to 
help individuals who are suffering in coal country, I suggest that we 
take care of their pensions.
  In the meantime, what we should do is make sure we are preparing for 
the health and safety of people who depend on these streams for 
multiple uses; that is to say, there are those in an outdoor economy 
who count just as much on those streams and count on them not being 
polluted because of certain mining activities.
  This chart can be shown in just about every State of the United 
States. The outdoor economy in our States--the people who like to go 
fishing, the people who like to go hunting, the people who like to 
navigate our rivers and want to do so when they are not polluted--is 
6.1 million direct jobs in the United States. That basically dwarfs the 
coal industry.
  This isn't about saying one job is better than the other, but the 
notion that somehow we are hurting our economy because we want to have 
clean streams and we want people to be able to safely catch fish 
without selenium in them is basically ignoring the facts. By not 
regulating the coal industry to make sure they are cleaning up their 
mess, you are hurting the 6.1 million jobs that depend on having clean 
streams.
  I know people here probably understand that Montana is full of 
streams. That movie, ``A River Runs Through It,'' is iconic in the 
Northwest as an example of why people love the outdoors because they 
want to fish. They want the experience of going and being outdoors and 
having the wonder of that.
  I personally have been in the streams of West Virginia and have had a 
fabulous time. I want other people to understand that these streams are 
worth protecting all over the United States of America. But the movie 
is not called ``A River Runs Through It and a Mine Sits on Top of It.'' 
We don't have people moving to Montana and buying ranches, making 
investments, hiring people, and diversifying because they want to see 
the mines in Montana. They want to see the beauty of the outdoors. They 
want it to be pure and pristine, and they want people to clean up their 
pollution. If we are talking about an economy and you want to talk 
about jobs, do not ruin the $80 billion in tax revenue that comes from 
an outdoor industry because you want to allow an industry to continue 
to pollute.
  I am going to continue for the next year to make this point to my 
colleagues in the West who are going to try to overturn every rule they 
don't like because they think somehow that they want to claim it 
impacts jobs. We are going to have this discussion, and we are going to 
show that the outdoor economy is just as important and is actually 
producing more jobs and producing more revenue. The only point of 
conflict, I think, is when one impacts the other to the degree of 
creating pollution and then taking a beautiful stream away from us--
because no one wants to fish in a stream with that level of pollution.
  Why are we here? We are here because certain types of mining--
particularly, mountaintop removal mining--make it way more challenging 
to protect those streams. As I mentioned, for the last several years, 
people have been discussing what to do to make sure that these 
companies are making sure the environmental impacts are minimized. The 
production of these mines has actually fallen a great degree in the 
last several years.
  We have been working, as I said, during this time period to make sure 
that we implement the right kind of regulations so that people will 
clean up this mess. As I mentioned, it has been basically since the 
early eighties until this level of attention was given to a new rule. 
Why do we want to change a rule that was from 1983? Because it says 
that you must minimize the disturbances to the prevailing hydraulic 
balance at the mine site and offer areas and quality of water and 
ground water systems, both during and after the mining operations.
  President Trump did not invent that. That has been in law all along. 
The notion that somehow that has changed is not correct. It has been in 
the opening days of the Trump administration that people are trying to 
say that stewardship doesn't matter, that somehow, yes, we want to have 
immaculate water and immaculate air--as President Trump said--but it is 
OK if regulations cause a problem for business. What business? The 
outdoor industry or the coal industry? Because right now, you are 
talking about making a change to what is protection of those streams 
and repealing a law that is about safe drinking water. We don't want to 
eliminate that.
  We want to make sure that we use the best technology available to 
minimize the disturbances, address the impacts on fish and wildlife, 
and any other related environmental issues. We know a lot more about 
mining and fishing. As I showed you one picture, I will show you 
another impact of selenium. Basically, it is showing the deformation. 
What we now know much more about is how selenium does impact these 
areas.
  What is at stake if you kill the stream protection rule? Our 
sportsmen--groups like the National Wildlife Federation and Trout 
Unlimited--say this:

       The resolution is an ill-conceived tool for jettisoning a 
     very useful rule that protects mountain head water streams 
     and communities throughout the coal country in Appalachia. We 
     urge you to oppose striking this rule, and to instead work 
     with the Department of Interior to protect these streams, and 
     make necessary improvements to improve the CRA, instead of 
     using it as a cleaver.

  They go on to say:

       150,000 passionate trout anglers work to conserve, protect 
     and restore our Nation's trout and salmon fisheries and their 
     watersheds. And our members give back to the resources they 
     love by investing dollars and hundreds of thousands of 
     volunteer hours to conserve streams.

  So you can see that they feel passionately about this. They feel 
passionately because this is part of our outdoor economy and what 
people have passion about.
  In my State, people would say: Well, you have these other jobs. No, 
actually, in our State, there are 250 abandoned mines in Washington. 
Yes, if we don't clean them up, and if we don't make sure there is 
reclamation, there is still pollution.
  We have had a mine history in our State, but we want responsible 
mining and we want responsible cleanup. With today's rule that is in 
place and that you are trying to repeal--to repeal safe drinking water, 
basically--that would

[[Page 1578]]

take those tools away and allow pollution to continue. What is the cost 
of that? It is very small. You would think that the way some people go 
on about this, that somehow this is astronomical amounts of money. 
Basically, it is about 0.1 percent of the industry's annual revenue. 
When you are in business, you think about your costs. You think about 
your cost of doing business. Yes, the cost of doing business has to 
include making sure that you clean up pollution. To me, this is an 
industry that makes way more than this in its annual revenue.
  Am I empathetic to my colleagues who represent States that are 
changing in their energy mix and resources? Do you think we need to 
have a plan for that? Yes. Do I think we need to have a plan for how we 
are going to diversify? Yes, I do. But this is not an economic debate 
about how we are going to save jobs. In reality, as I showed in the 
chart before, the natural gas prices are driving coal to a much lower 
level of our electricity grid than ever before in our history, and that 
is not going to change.
  Let's make sure we clean up our streams. Let's make sure we use the 
best technology available to make sure we are detecting that pollution 
and require people to have a minimal amount of responsibility in the 
cost of what it takes to make sure that selenium is not in drinking 
water or impacting our fish.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.


                        Spirit of Bipartisanship

  Mr. TILLIS. Mr. President, I want to thank my colleague from Utah and 
his eloquent comments about the Supreme Court nominee. I would like to 
associate myself with everything he said. He has the kind of experience 
and insight that I hope so many Members on both sides of the aisle will 
listen to.
  I am here to talk about the spirit of bipartisanship and getting 
things done. I submitted an editorial to my local newspaper down in 
Charlotte a couple of weeks ago. The whole premise of my opinion was 
that in November the voters did not vote for a Republican mandate; they 
voted for a results mandate. They are tired of the gridlock they see up 
here in Washington. They are tired of people promising things they know 
they can't deliver. They are wanting for a leader in President Trump 
and in the congressional leadership people who want to produce results. 
They want people who want to work across the aisle and come up with 
bipartisan solutions to a lot of the problems that confront this 
Nation.
  You would have thought that I changed my registration and became a 
member of the minority party with the criticism that I got from people 
on my side of the aisle. I was called a RINO. For those of you who 
don't know what that is, that is a Republican in name only.
  When I was the speaker of the house in North Carolina, the last thing 
I was ever called was a RINO. We worked on a conservative agenda that 
made sense. We gained the support of a number of Democrats along the 
way. North Carolina is a lot better place because of the courage of 
those folks who were willing to work across the aisle to help our great 
State, to go from one of the laggards in terms of economic performance 
to one of the leading States in the Nation for economic performance 
over the course of about 4 years.
  I don't really care about the criticism from the talking heads--from 
the far left or the far right--because I consider them one of the great 
threats that we have to actually turning this Congress around and 
getting things done. I am going to do everything I can to reach across 
the aisle and produce solutions to some of the most vexing problems we 
have.
  There are solutions within our reach. If you think about immigration 
reform, there is a 40-year-old failure on the part of the Republicans 
and Democrats to address the immigration problem. Everybody wants their 
position on one end of the spectrum or the other versus what the 
American people want or a solution to the problem--a solution that 
makes sure the American worker is respected and taken care of, that our 
borders are secure, and that we end this 40-year-old failure on the 
part of Washington to solve the problem.
  They want solutions on criminal justice reform. We have many people 
in prison who, after they get out, are more likely to go back into 
prison because we really haven't thought about commonsense ways to help 
them enter back into society and have productive lives, beyond just 
going back into a criminal enterprise. We can solve that problem, but 
we can only solve it if we have Republicans and Democrats come 
together--and silence the voices who want their perfect version based 
on their ideology--on a solution that makes sense to the average 
American.
  The agenda that we want to complete can only be completed if we have 
people who have the courage to come to this floor and do what I 
consider to be political courage. It is not courageous for me as a 
Republican to stand up to a Democrat and oppose their view. That is my 
job. I am a conservative. I am a proud conservative. Courage, in terms 
of someone who would walk onto this floor, is someone who can look at a 
person--a fellow Republican and conservative--and say: We are not going 
to go where you want to go because we are here to get something done--
not just to make speeches, not to talk about an unachievable goal, but 
to make progress on things that are sound, conservative policies. But 
maybe we have to make some compromises. Maybe we have to go a little 
bit further than we want because we want to get something done. We want 
to pass things that are good. If we wait to only pass things that are 
perfect, then we will be guilty of doing exactly what many other people 
have done in this body--to promise a lot and deliver very little.
  I took a lot of hits for my op-ed and my public comments about 
bipartisanship, about compromise, about respect, about reaching across 
the aisle. I am willing to take those hits because I would rather go 
down as someone who is willing to go get something done than someone 
who is willing to only settle for the perfect, knowing that perfect 
never happens here. The Founding Fathers didn't expect perfect. The 
Founding Fathers introduced defects, if you read the Federalist Papers, 
that prevented any one ambition from prevailing. To have ambition set 
against ambition is foundational to our democratic institution here. We 
are not going after perfect. We are going to go after good.
  I was really excited. I got some great comments from my friends 
across the aisle. I thought this is an area where we can work together. 
There are a lot of areas where we can't work together because our world 
views are so different. Let's not focus on those. Let's focus on things 
on which we can work together. I thought we had a minority leader who 
was actually committed to that. At least that is what I thought. But I 
have to say I am beginning to wonder if we haven't gotten a different 
sort of view of the leadership. Comments today do not reflect the 
comments of not so long ago. In 2012, the minority leader said:

       Everything doesn't have to be a fight. Legislation is an 
     art of working together, building consensus, compromise.

  I could have written that. I absolutely agree with that principle. 
That is why I got criticized by folks on my side of the aisle--or the 
talking heads, anyway, the conservative talking heads--because I wasn't 
willing to take a purist position.
  Now, you fast forward. And the minority leader made this comment when 
he was not the minority leader. But today this is what we are hearing 
just within the last month: ``The only way we're going to work with 
him''--that would be President Trump--``is if he moves completely in 
our direction and abandons his Republican colleagues.''
  Does that sound like bipartisanship? Does that sound like somebody 
who wants to reach across the aisle and work on immigration reform, 
criminal justice reform, sentencing reform--things where I believe 
there is a majority of people in this body, as many as 60 or more 
votes--who would be willing to move legislation? I don't think so.

[[Page 1579]]

  We have to make sure that people like this are accountable to the 
American people, the so-called real people. I will get to that in a 
little bit. That is not bipartisanship. That is not leadership. That is 
divisiveness. That is gridlock. That is the stuff that inspired me to 
run in 2014. That is the thing I am against, whether it is a Democrat 
saying it or a Republican saying it.
  I think we can also expect more of what really stems--or what you can 
infer from the latest position of the minority leader, more gridlock. 
We will go to the next chart. The sort of a double standard here, 
duplicity, really drives me crazy. Situational ethics I will call it or 
situational principles. On the one hand, you stand firm on something. 
You fast forward because you didn't like the outcome of the election, 
and suddenly you no longer take that same position.
  People can rationalize it any way they want to, but I think the real 
people, the real voters, the folks out there, see this for what it is. 
It is taking a so-called principled position when that particular 
position benefits your agenda, not necessarily something that is 
bipartisan, something that actually serves a political agenda.
  The Supreme Court, I think that is what we are going to see here. I 
have presided. I have been a freshman for 2 years. We get to preside a 
lot. I get to hear a lot of these floor speeches. I heard endless 
speeches talking about how we needed to do our job, how we actually--
here is another quote from the now minority leader:

       The Supreme Court handles the people's business. As 
     President Reagan put it, every day that goes by without a 
     ninth justice is another day the American people's business 
     is not getting done.

  Now what we are hearing is that same group of people say they are 
going to use every lever they can to stop us from seating a ninth 
Supreme Court Justice. What has changed, except for the fact that you 
are not happy with the outcome of the election? So I think we need to 
recognize that the American people are sick of Democrats and 
Republicans promising things, but if they don't get their way in the 
election outcome, if they are not able to set the agenda, then they are 
no longer interested in bipartisanship.
  I have a lot of confidence in this body. I have a lot of confidence 
in a number of people on the other side of the aisle. I think there is 
a pent-up demand among Members here who want to see results--not 
perfect, but good. I am going to do everything I can to work with 
those. I will do an equal amount of time focused on those who I don't 
think are acting in the best interests of their own constituents. They 
are not listening to the real people in America, the real people who 
did not endorse a Republican mandate in November.
  They said: It is time to stop. It is time to get things done. It is 
time to treat people with respect on both sides of the aisle. It is 
time to accept good, and it is time to stop pretending that this body 
can produce perfect. Now, I have to say I am glad to see my colleagues 
on the other side of the aisle are starting to look at the so-called 
real people.
  Last week, the Republicans were in Philadelphia. We were at a 
retreat. At the same time, there was a group of my colleagues on the 
other side of the aisle who were meeting up in West Virginia. There was 
a Politico article that I thought was particularly interesting. This 
was a part of the published agenda that was reported by Politico, an 
agenda that says they are getting people together. They want to talk 
about speaking to those who feel invisible in rural America, listening 
to those who feel unheard, and a discussion with Trump voters.
  There was another entry in the agenda, I believe, that says talking 
to real people. I am here to talk to the real people tonight. You have 
Members in the Senate who want to get things done. We know you are 
hurting. We know the government has failed you, Democrats and 
Republicans. We have failed to actually take the tough votes. We have 
failed to deliver. It is time for us to deliver.
  I believe we have a President who expects us to reach across the 
aisle and solve problems. I am going to be a part of solving that 
problem. We have a great opportunity here with the Supreme Court 
nomination. It is time to get past the election results, get over it, 
and get to work. It is time to recognize that the real people, the 
people who sent a mandate here--but the mandate was not Republican, it 
wasn't far right, it wasn't far left--all they said was produce 
results.
  I am going to produce results. I am going to expect my Members to 
produce results. I am going to go into my conference, when it looks 
like we are going down the path of taking an intransigent position that 
does not produce a result, and I am going to call them out. I am also 
going to hold my colleagues on the other side of the aisle to the same 
standard.
  I am going to hope to find folks who want to solve the immigration 
problem in a respectful, methodical way. I want to work with people on 
the other side of the aisle who want to solve the criminal justice 
problem, the sentencing reform, the judicial reform bills that are 
moving through that have, I believe, far more than 60 votes to support 
it.
  We have to work on these. We will save the other ones where we simply 
can't find common ground, and those will be the arguments that we can 
have that can influence future elections, but for the next 2 years, 
let's get work done. Let's actually be able to go back to our State and 
proudly proclaim that we had the courage to stand up to people on our 
side of the aisle when getting to perfect was at the expense of doing 
something good.
  If we do that, we will have one of the most productive legislative 
sessions. The 115th Congress could go down in history as one of the 
most productive Congresses in the last 100 years. I want to be a part 
of that story. I want to go back to North Carolina and be proud of what 
I did, proud of the compromises, proud of the bipartisan relationships 
that we did to solve these problems.
  I am going to go to other States who may be up for reelection in 2018 
and either thank the Members on the other side of the aisle who worked 
with us for those solutions or campaign against them because they 
failed to actually look at their constituents and do the right thing.
  There are a lot of opportunities here. I, for one, am going to spend 
every waking hour to make sure I do my part, and I can be proud of the 
work I did to produce results, to answer that mandate by the electorate 
that came in November to produce results.
  I have every confidence that there are enough Members here to join 
us. With that, we will do great things. We will fulfill the promises we 
made. There is nothing more rewarding than being able to look your 
constituents in the eye and say: We did it. We listened to you. We 
compromised. We treated people with respect. We delivered.
  I call on all my Members to think again about what they can do to be 
a part of providing the solutions. I look forward to working with them 
in this Congress.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. SCHATZ. Mr. President, I rise to speak on the stream protection 
rule. One of the first things we learn as kids is that if you make a 
mess, you are responsible to clean it up. It is good manners, but it is 
also a matter of ethics. It is about doing the right thing. This is the 
spirit, this is the idea behind the stream protection rule. It simply 
tells coal companies doing mountaintop mining that they need to clean 
up their mess if they make a mess. It seems pretty common sense to me.
  Opponents of this rule argue that this is somehow an unfair burden on 
coal companies because coal is doing poorly in the emergency markets. 
Opponents seem to want to say that asking companies to be responsible 
to clean up whatever mess may have been made makes it harder for them 
to compete.
  The truth is, coal is having a very difficult time in energy markets, 
but it is not because they are being required to clean up after 
themselves. It is because other energy resources are becoming cheaper. 
Solar is cheaper now

[[Page 1580]]

than ever. The natural gas revolution is now in competition with coal. 
It is very difficult to get a new coal-fired powerplant on line. It may 
be even more difficult to recapitalize an old one. So coal is 
struggling, but the reason is not the stream protection rule.
  There is another aspect of this, which is, since when is there no 
cost to doing business? Since when are any companies allowed to come 
in, pollute, and then walk away without doing anything about it? If you 
hired a contractor to work on your house and they left a pile of 
materials in your kitchen, you wouldn't say: Well, that is just the 
cost of doing business. You would say: Clean up the mess. That is part 
of the job.
  There is no question that coal mining is a tough business, but it 
also can sometimes be a messy business. That is a simple fact. If we 
ignore the pollution that is caused, if we ignore the cost the public 
bears when toxic substances are dumped without proper treatment or when 
coal-fired powerplants spew carbon pollution into the atmosphere, for 
that matter, we are ignoring the cost of doing business.
  To be fair, we have to make sure every industry, including the coal 
industry, plays by the same rules as everyone else. Up until December 
of last year, some coal companies just were not playing by the same 
rules. Mountaintop mining had leaked dirty water and waste into the 
streams. Researchers estimate that this has destroyed 2,000 miles of 
stream in the United States of America.
  That destruction has a domino effect. It threatens the health of 
people who depend on those streams for their drinking water, it poisons 
fish, birds, plants, and it reduces the quality of life for people 
across the country. That is why the stream protection rule was 
established. It is there so parents don't have to worry when their kids 
go play by the stream or go fishing behind their house. It is there so 
ranchers don't have to worry about a nearby mine that could harm their 
land, and fishermen don't have to worry if the salmon catch is poisoned 
or if there are fewer fish because salmon are dying from pollution.
  This rule is so communities don't have to worry that their daily 
lives will be changed because a company is not being responsible and 
cleaning up after itself. This may surprise some people, but the rule 
will actually create jobs. People like to talk about how burdensome 
regulations are, especially in the environmental space, but the truth 
is, it will not lead to fewer jobs.
  The Department of Interior predicted it will actually create hundreds 
of jobs a year, not take them away. Most of all, it is going to have a 
real positive impact on the world we live in. Over the next two 
decades, researchers estimated that the stream protection rule would 
protect or restore 6,000 miles of streams. That is more than the 
distance between eastern Maine and my home State of Hawaii.
  So if you care about protecting local water supply, if you care about 
having a place for your kids to go hiking and fishing, if you care 
about holding everyone to the same standard, then don't let this 
bureaucratic mumbo jumbo get in the way. This rule was created to fix a 
specific problem, and repealing it could effectively exempt mountaintop 
coal mining from modern regulation indefinitely.
  This is a very important point that has to be made about 
Congressional Review Act votes. We are going to have a slew of them 
over the next probably 2 or 3 months. Here is the thing about a CRA 
vote because it gets rather technical. It is not just overturning a 
regulation. The way the law works, is that not only is the regulation 
overturned but an administration can never touch this issue again. We 
can't do anything that is ``substantially similar.''
  So if you want to do something about the stream protection rule, make 
a law; override the rule that was just made and craft legislation. You 
have a working majority in both Chambers, work with the bipartisan 
group. You have four or five Democrats who voted for the CRA. Let's 
legislate.
  What is going to happen when the CRA vote succeeds is we are never 
going to be able to touch the question of pollution from mountaintop 
removal again--literally. That is how CRA works. So every time we have 
a CRA vote, it is not just whether you like the particular rule and 
want to overturn it, it is whether you never want to touch this subject 
matter again. That is a rather serious threshold that we have to come 
through.
  We are going to do a lot of CRAs. I know everybody on the Republican 
side is raring to go to sort of undo all the rules that were done under 
the Obama administration. Fair enough. We understand. You have the 
Presidency. You have both Chambers. It is certainly your prerogative to 
take up all of these CRAs, but be careful because you are not going to 
be able to touch these issues again. You are forfeiting your 
prerogative to touch these issues again.
  So for the sake of public health and in order to leave a better world 
for our kids, we need to keep this rule in place.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mrs. CAPITO. Mr. President, I am here to speak in support of the 
Congressional Review Act on the stream protection rule.
  I want to say to those who participated in the last election--where 
part of the discussion was the Federal Government knows all and needs 
to be in your life and in your business life every day, and it knows 
the best one-size-fits-all way--that help is on the way today. A lot of 
the talk of the election is now going into action in the form of the 
Congressional Review Act.
  In particular, the stream protection rule was a last-minute power 
grab that was aimed at giving more power to the Federal Government.
  Now, at the onset, I would like to say this: I don't have any charts. 
I don't have any pictures, but then I thought, you know what. Yes, I 
do. I have a lot of pictures on my device here, which I will not open 
up because it is against the rules and you will not be able to see 
anyway. But in these pictures, you will see a picture of me fishing in 
a beautiful stream in West Virginia, where trout is unlimited. You will 
see me riding an ATV on a Hatfield-McCoy Trail, which is the old mining 
trails and the old lumber trails in southern mine country in West 
Virginia, where thousands of people come every year. You will see me 
visiting a school or a business park that is built on the top of what 
is a reclaimed mountaintop removal.
  If you have ever been to West Virginia, they don't call us the 
Mountain State for nothing. It is mountain after mountain after 
mountain, difficult terrain, and in some ways it is very difficult to 
have any kind of economic development.
  So when the laws are enforced--the laws that we have now, in terms of 
water protection and reclamation--after the mining is finished, we have 
been able to have some economic development projects that have been to 
the benefit of many communities there.
  So I have no charts. I live there. This is my home. I can drive 4 
miles and be at a coal mine very easily, probably less than that.
  I heard the argument about outdoor recreation, that people want to 
have outdoor recreation. I just described three outdoor recreation 
activities in my State, and the ranking member was talking about how 
she fished in West Virginia and enjoyed it and had good luck, I hope. 
Anyway, we have beautiful trout streams, but the outdoor recreator 
doesn't want to see a coal mine. I would bet the outdoor recreator 
doesn't want to see a nuclear plant, probably doesn't want to see a 
windmill farm, probably doesn't want to see a natural gas plant because 
when you are getting away to recreate, I don't know that anybody would 
want that, but I can tell you what they do want.
  They want the steel that is in their truck to get them there. They 
want the electricity that they have to have when they go home at night 
to cook their food or clean their clothes or all the different things 
that electricity does.
  There are tradeoffs to everything. Certainly coal has provided the 
baseload of the industrial revolution for

[[Page 1581]]

this country, and we still, I think, have a great role to play.
  There are estimates with this rule. The other thing is, it was said 
that there were no rules in place until we had this rule. That is 
absolutely false--absolutely false. This rule was rushed in. It was 
worked on for 5 years, yes. It had 10 State regulators. Let me go back.
  The regulation, under the Clean Water Act, is done by the States 
through the EPA, in conjunction with State and Federal, with the EPA 
overseeing what the States are doing to make sure they are meeting the 
minimum standards.
  So there are protections in place, and we welcome those protections. 
Where we live, where everybody lives, we want that. Can we do better? 
Absolutely, we can do better. We should always strive to do better.
  This rule has been in the making for 5 years. Ten States came to this 
table, 10 States which were most heavily impacted, to try to help the 
Department of Interior develop this rule.
  Our DEP Secretary Randy Huffman says that this proposed version of a 
stream protection rule--and this is not a Republican-Democrat thing. 
This is a Democratic Governor's DEP commissioner saying that it was 
``an unnecessary, uncalled for political gesture.'' He went on to say 
that ``the combined administrative record developed throughout the 
history of mining regulation under SMCRA is totally devoid of any 
indication of a need for this radical rewrite of the regulations 
governing the way coal is mined in America.''
  Other States have made comments as well. We had the Ohio Chief of 
Mineral Resources Management Lanny Erdos testify before our EPW 
Committee. ``OSM has not provided for meaningful participation with the 
cooperating or commenting agency States.''
  Basically, these State regulators who were charged with the primacy 
of putting forward the water standards in their States and overseeing 
mining in their States were basically invited into the party and then 
put in another room and not listened to. Then, eight of them walked 
away. That has to tell you, this wasn't an even playing field and was 
probably a very insincere effort to include everybody's opinions.
  In Wyoming, Todd Parfitt said: ``The failure to engage cooperating 
agencies throughout this process is reflected in the poor quality of 
the proposed rule.''
  We have heard a lot about the empathetic voices of the job losses: 
60,000 miners since 2011, many of them in my State. Many of these men 
and women who were making $80, $90,000 a year no longer have a job. 
They are living in communities that are decimated.
  Our State is $500 million in the hole. We are trying to transition. 
We are trying to do the right thing, but rules like this that we are 
about to overturn through the CRA process are such an overreach of 
authority.
  The EPA has already gotten slapped down by the Supreme Court for the 
match rule. They put a stay on the Clean Power Plan. There are definite 
questions as to the authorities that the past administration has put 
forward.
  United Mine Workers of America President Cecil Roberts says: ``We are 
especially concerned with the long-term negative impact this rule is 
very likely to have on future longwall coal mining in the United States 
and associated employment impacts on our miners.''
  We have heard about mountaintop removal. There is a strong belief 
that this will impact our underground mining as well. That is pretty 
much--I wish I knew the exact percentage, but I would say well over 70 
or 75 percent of the mining and maybe more than that.
  I hosted Senate committee field hearings centered on energy jobs in 
Beckley, Logan, and Morgantown. Bo Copley, a coal miner who lost his 
job, talked about the impact regulatory policies were having on him, 
his young family, his community, and his former colleagues.
  We heard about the fact that the health and pension of our miners is 
in deep trouble. I have been very much on board. Senator Manchin and I 
have been working hard--along with Senator Portman, Senator Brown--with 
those more affected regions to make sure the health care and pensions 
of our miners are funded and that those miners know that the benefits 
that were promised will be there for them and their families. The 
promises made will be promises kept, but this downturn in the coal 
industry heavily affects the ability for the pension funds to be 
solvent and for the health benefits to be carried on. So there is a 
direct correlation between the overregulation we have seen and the 
effects in the health and pension funds.
  The ranking member on the Energy Committee--and we just had a good 
conversation. I will paraphrase what she said: Sometimes I think we are 
sort of talking by one another. And I think maybe she is right in 
certain respects, and she mentioned the effect of natural gas on the 
coal industry. Yes, that has had an effect on the coal industry, but 
this rule that was proposed, rushed in at the last minute by the 
Department of Interior, would have an even more devastating effect than 
the combination of regulations to this point, the combination of the 
natural gas and market conditions.
  So you ask: Oh, how rushed in was it if it was being worked on for 5 
years?
  Well, they didn't publish the rule until December 20, 2016, after the 
election--the election in which overregulation was one of the key 
factors that was discussed during the election and the effect on 
economies and businesses and the ability for American workers to 
continue to work hard and keep their jobs, but Americans rejected the 
continuation of these policies.
  So they published the rule on December 20, 2016, and then it was made 
effective January 19, 2017.
  What is January 19, 2017? It was the day before President Obama left 
office. There is no irony there at all, I don't think.
  I am here to say that Senator McConnell and I have put this forward. 
It is one of the first ones that has come forward in terms of the 
Congressional Review Act. Help is on the way, and the President will 
sign this. He has said in his Statement of Administration Policy: ``The 
administration is committed to reviving America's coal communities, 
which have been hurting for too long.''
  Again, I can tell you about it. I could probably show you pictures of 
it. I live there. These are my friends. These are folks I see every 
day. I see them in the grocery store. And we have seen the effects in 
our region to the point of six of our counties are in deep, deep 
depressions.
  So I want to congratulate the House of Representatives for passing 
this earlier today. I want to thank West Virginia Representatives David 
McKinley, Evan Jenkins, and Alex Mooney for voting yes and getting a 
strong vote. I would like to thank Leader McConnell for his leadership 
on this and the 27 other cosponsors of this bill.
  Lastly, I would like to say, we heard the Senator from Hawaii talk 
about how this is really going to create jobs. Well, I found an article 
from the Wall Street Journal on December 20, 2016, and I am going to 
quote from it.

       Interior's projections about the economic impact are 
     laughable. OSM reckons the rule would cost a mere 124 coal 
     mining jobs a year--

  Whereas, other estimates are almost as much as one-third of the 
jobs--

     but instead of visiting operating mines, the wizards at OSM 
     built their estimates on computer models. They even reported 
     a net gain in jobs--

  And I think this is what the Senator from Hawaii was talking about--

     as miners are replaced by workers implementing the rule.

  Less mining but more workers--genius.
  This reminds me a little bit of when we were talking about all of the 
regulatory burdens of Dodd-Frank, which I am sure we will be getting 
into in another CRA. I was on the Financial Services Committee over in 
the House for a long time, and we learned, when Dodd-Frank went into 
effect, within a year and a half, the largest growing profession was 
bank auditors. So the government has created jobs for bank auditors to 
put forward their rules. It sounds a lot like that is what OSM has done 
with this rule.

[[Page 1582]]

  I would just like to close with this. We are going to move forward 
with this because it is important to our region. It is important to a 
lot of working people. It will not and does not in any form or fashion 
allow fowling of the water, fowling of our streams. There are 
protections that are carried forth through our State regulators who 
came to the table for this rule, who felt they were not being listened 
to and, over the course of 5 years, all drifted out. I don't think they 
were invited back. I am confident this will have an effect of saying: 
America, you voted to unleash the American economy, to let our 
regulators regulate, to let our clean water statutes move forward in 
conjunction with State and Federal regulators, to let Americans know 
that the Federal Government is not going to be reaching into every 
aspect of your life and it is going to result in losing your job, 
creating hopelessness, 72 teachers being laid off in my county last 
month because we have lost people, real estate values going down, and 
the loss of a valuable resource that leads to the strength and to the 
viability and to the security because energy security is security for 
our country, for our whole country.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, I rise in opposition to this effort under 
the Congressional Review Act to block implementation of the stream 
protection rule.
  CRA offers Congress an important tool, as we know, to consider 
potentially egregious rules that are promulgated usually at the end of 
Presidential terms. The stream protection rule, which we are 
considering this evening, is not one of those.
  I live in a State--Delaware--whose citizens can be adversely affected 
by the upstream actions of others and border States whose citizens 
could be compromised by the things we do.
  I take it as a matter of faith that we should treat other people the 
way we want to be treated. We call that the Golden Rule, and I know 
that not everyone shares my passion for the Golden Rule, even though it 
appears not just in my faith, those who happen to be Catholic or 
Protestant, Jewish, Muslim, Hindu, Buddhist--it appears in all faiths, 
the idea that we ought to treat other people the way we want to be 
treated.
  I also believe the Federal Government should act to protect citizens 
from the harm of the actions that other citizens would do to them. This 
stream protection rule is, I believe, one of those actions.
  I am a native West Virginian. I was born in Beckley, WV, a coal 
mining town in South Central West Virginia. I understand well the role 
coal mining has played in supporting families in my native State and 
communities there for longer than any of us can personally remember.
  I also know that mining operations have had a devastating impact on 
the lives of those who have endured compromised drinking water and 
destroyed natural habitat, with a loss of the fish and wildlife that 
define the fabric of my native State and all other States.
  This rule has been a long time coming, as we have heard this evening. 
Indeed, we are living with rules governing mining conduct that go back, 
I believe, as far as 30 years. It is time for an upgrade, and I think 
the rule before us is a sound, responsible, and carefully developed 
answer to that need.
  In what is becoming an art form in this country, there are myths--
some call them alternative facts--that are swirling around this rule. 
As ranking member and the senior Democrat on the Environment and Public 
Works Committee, I want to address a couple of them.
  Some would attack this rule's provisions as redundant and 
inconsistent with State obligations under the Clean Water Act. I am 
also a former Governor and am keenly aware of the problems of 
inefficient governance and avoided at all costs conflicts between State 
agencies. It wasn't always easy, but we didn't need Federal actions to 
compound those frictions. I am happy to say that the drafters of this 
rule heard those concerns, and this rule promotes collaboration and 
coordination between mining and environmental agencies and clarifies 
their roles, preserving their authorities under the surface mining and 
clean water laws.
  Both the EPA and the Army Corps of Engineers concurred with the final 
rules, and in doing so, EPA said: ``We have concluded that nothing in 
the Stream Protection Rule is inconsistent with the provisions of the 
Clean Water Act and that the final rule does not inhibit the EPA's 
Clean Water Act authority to require that surface mining activities 
comply with all applicable provisions of the Clean Water Act, 
particularly those provisions related to water quality.''
  The EPA goes on to say: ``The final Stream Protection Rule 
incorporates measures to limit duplication and avoid inconsistency in 
the implementation of Surface Mining and Reclamation Act and Clean 
Water Act programs, while supporting complementary, comprehensive, and 
effective environmental reviews of proposed surface coal mining 
operations.''
  Some would say that the stream protection rule allows the U.S. Fish 
and Wildlife Service to veto Surface Mining Control and Reclamation Act 
permits. That is not true. It is true that section 7 of the Endangered 
Species Act does require the Office of Surface Mining Reclamation and 
Enforcement of the Department of the Interior to consult with the U.S. 
Fish and Wildlife Service if any action ``may affect'' listed 
terrestrial and freshwater species.
  The stream protection rule allows permit applicants and regulatory 
authorities to achieve ESA compliance in a variety of ways but does not 
provide the Fish and Wildlife Service any veto authority over permits. 
Indeed, this past year, the Office of Surface Mining Reclamation and 
Enforcement and the Fish and Wildlife Service completed consultation 
under the Endangered Species Act, resulting in what is known as the 
2016 Biological Opinion. This new Biological Opinion smooths the way 
for more efficient Endangered Species Act compliance, while providing 
important protections to industry and State regulators regarding 
possible impacts of mining operations on protected species.
  I think it is important to note that if we kill this rule, that 
protection for industry and State regulators will go away. Let me 
repeat that. I think it is important to note that if we kill this rule, 
that protection for industry and State regulators will go away, and 
those players will have to resort to a more cumbersome case-by-case 
review under the Endangered Species Act for all activities that might 
affect protected species. That would be a shame for a struggling 
industry.
  For those and a host of other reasons my colleagues will offer today, 
I urge a ``no'' vote on this resolution.
  I thank the Presiding Officer, and I yield back my time.
  The PRESIDING OFFICER (Mr. Gardner). The Senator from Georgia.


                       Nomination of Neil Gorsuch

  Mr. PERDUE. Mr. President, during the Presidential campaign last 
year, President Donald J. Trump promised the American people he would 
nominate an unwavering supporter of the U.S. Constitution to the 
Supreme Court. He has now kept that promise.
  I personally applaud the President for nominating Judge Neil Gorsuch 
to serve on the U.S. Supreme Court. He is an outstanding choice. 
Throughout his career, Judge Gorsuch has been a stalwart, standing 
strong in support of the U.S. Constitution. He has repeatedly shown his 
commitment to our country's founding principles of economic 
opportunity, fiscal responsibility, limited government, and individual 
liberty. These principles have served to make our Nation exceptional 
throughout our history. Each branch of government has the shared charge 
of preserving and protecting those rights for all Americans. Judge 
Gorsuch has had a remarkable career in both the public and private 
sectors and has demonstrated a keen understanding and appreciation of 
the law.
  He has an outstanding academic record. He is an outsider to the 
political nonsense here in this town. He has an impeccable judicial 
record, and he is actually called a ``judge's judge'' in the Scalia 
mold. He is a mainstream judge.

[[Page 1583]]

  Actually, when he was confirmed in his current position, he was 
confirmed by 11 Democrats who are still in this body today, including 
Senators Lee, Feinstein, Schumer, and Durbin. Clearly, Judge Gorsuch 
will honor the formidable and impressive legacy of defending the 
Constitution left by Justice Scalia.
  Throughout last year, I and other Members in the Senate held our 
ground in saying that no nominee to the Supreme Court should be 
confirmed until after the Presidential election. We believed the 
American people deserved a voice in the process. We also knew that the 
hyper-partisanship and politics of a Presidential election cycle should 
never have any place in the nomination and confirmation of a Supreme 
Court Justice, which we all know is a lifetime appointment. The 
integrity of the advice and consent process, clearly spelled out in 
Article II, Section 2 of the Constitution, was at stake. In protecting 
the integrity of the sacred constitutional process, we did our job.
  Our position was exactly the same, ironically, as held by former Vice 
President Biden, former Minority Leader Harry Reid, and others in 
earlier times and earlier debates.
  Now that President Trump has announced his nomination, it is time to 
continue doing our job. I hope the minority leader and Members of the 
minority party will walk away from the hypocrisy they are already 
demonstrating this year.
  Last June, the current minority leader tweeted: ``In order for 
justice to remain a pillar of this nation, we must have a functioning 
judicial branch. The [Supreme Court of the United States] must have 
nine [sitting Justices].'' Later that same month, the minority leader 
said before the U.S. Senate: ``Every day that goes by without a ninth 
Justice is another day the American people's business is not getting 
done.'' So why would the current minority leader and some of the 
Democrats in this body now say they will filibuster any nominee to the 
Supreme Court before even knowing who would be nominated?
  The minority leader railed on the Senate floor. Yet last month he 
went on CNN and said: ``We absolutely would keep the seat open . . . we 
will fight it tooth and nail, as long as we have to.''
  Again, this was before a nominee was even announced.
  The political theater of 2016 has no place in the confirmation 
process this year. Now is the time to govern, not to engage in the far-
off political theater of 2018 and 2020. As we move forward in this 
process, I hope the minority leader and my colleagues across the aisle 
will remember that. I hope they will put the integrity of the 
Constitution before the scope of their political ambition and their 
bitterness about last year's election outcome.
  I would remind my colleagues across the aisle that Republicans put 
aside political theater to confirm two Justices to the Supreme Court 
under both President Obama and President Clinton. Now President Trump 
has nominated Neil Gorsuch, who is a principled judge who will put the 
Constitution of the United States and the rights of all Americans at 
the forefront of any decision he takes. Judge Gorsuch's record of 
service and his commitment to the Constitution is quite clear. I am 
looking forward to voting to confirm his nomination and to ensure that 
we have a fully functioning High Court.
  I strongly urge my colleagues across the aisle to put aside their 
partisan self-interest and do what is right for our country. Our 
children and our children's children deserve nothing less.


                               Travel Ban

  Mr. President, I also would like to speak momentarily to the 
President's recent Executive order to strengthen our refugee screening 
process that he thinks will protect America, and I agree with him.
  The minority leader's tear-jerking performance over the past weekend 
belongs at the Screen Actors Guild awards, not in a serious discussion 
of what it takes to keep America safe. Folks back home are fed up with 
Members of this body stirring up global hysteria to score political 
points.
  Let's be clear. This temporary action is not a so-called Muslim ban, 
and no Muslim ban has been put into place. As a matter of fact, the 
five countries most heavily populated with Muslims around the world 
were not included in this temporary pause on movement. In fact, almost 
90 percent of the world's Muslim population is not even remotely 
affected by this temporary pause.
  The seven countries that were included in President Trump's Executive 
order--Iraq, Iran, Syria, Libya, Somalia, Sudan, and Yemen--were 
included for specific reasons. Each of these nations was previously 
identified by President Obama as posing national security threats to 
the United States.
  This is not a target at any religion; it is simply a temporary pause 
in the movement of individuals from nations of concern in order to 
assess whether our current screening system is in the best possible 
shape to protect Americans. I am apoplectic that Members of the 
minority party and the former President of the United States would 
actually say or imply otherwise. Their comments encouraging civil 
unrest and disobedience are both deplorable and unacceptable.
  The failed foreign policy of President Obama in Syria and the broader 
Middle East has made the world more dangerous than at any time in my 
lifetime and has helped to create the current refugee crisis around the 
world. We are at war with ISIS, and we know they have identified and 
targeted our refugee system as a point of weakness. They have already 
exploited the refugee systems of nations in Europe, carrying out 
terrorist attacks and killing innocent people.
  It would be malfeasance for our President not to take action and 
immediately review our current screening process to ensure we are 
helping those in need and keeping terrorists out. This temporary pause 
will allow us to assess our current screening process and strengthen it 
as needed. Moving forward, the implementation of this temporary pause 
must be efficient and effective.
  During this screening review period, we should avoid overreacting to 
the responsible steps that have been taken to prioritize the protection 
of all Americans. It is totally irresponsible and ridiculous for the 
minority leader, Members of this body, the former President, President 
Obama, and others to suggest that it is anything other than a rational, 
responsible step to keep America safe and deal with the ISIS threat 
once and for all.
  I yield my time.
  The PRESIDING OFFICER. The Senator from Washington.
  Ms. CANTWELL. Mr. President, I know my colleague from Oregon is 
around somewhere and wanted to speak on this rule, and when he shows up 
on the floor, we will certainly give him the time to do so. I want to 
make a couple of points while we are waiting for him.
  First, in this discussion here with my colleagues, there is some 
discussion and I guess the start of what will be a continuing theme 
that somehow, if you get rid of regulations, we are going to restore 
competitiveness to the U.S. economy. Nothing could be further from the 
truth.
  If you ask businesses what we need to do to be competitive as a 
country, they will say: Make sure we have a great education system. 
Make sure we invest in R&D. Let's develop new technology.
  If we look at where businesses are locating, they want to locate in 
beautiful, pristine places because they know that is where their 
employees will want to locate. So, first of all, that somehow the 
government is going to restore the economy by deregulating and letting 
polluters pollute is just not correct. It is not what America wants. 
What people want is to have safe drinking water, and they want an 
outdoor economy that is supported by having a great environment.
  So I want to say a couple of other things. Obviously, this rule that 
we are talking about and that has been developed over a long period of 
time is an improvement over the 1983 rule because it gives us a better 
idea on the pollution that is happening. Now, if people don't want to 
know that information, I guess that is OK. The court, counter to

[[Page 1584]]

what my colleague from West Virginia said, did not say that it was 
suspending the rule. It said that it was still in effect, that the 
pollution had to be cleaned up. It said: Come back and look at the 
economic impact. But somehow, some are saying that the Supreme Court 
decision on the MATS rule gave EPA and others a get-out-of-jail-free 
card; you don't have to look at pollutants. They have to look at 
pollutants.
  So what is this issue about? It is about clean water.
  Mr. President, I wish to enter into the Record a couple of articles 
that I have seen from constituents. My colleague from West Virginia 
mentioned a few people. These are the real people in America who want 
this.
  One of them is a gentleman named Ben Kurtz, who happens to be from 
Grand Junction, CO. This is what he says:

       It's often said that drag is a fly fisherman's greatest 
     enemy. The truth, however, is that a wet fly or heavy drag is 
     irrelevant if you don't have clean water to fish. Our lakes, 
     rivers, streams and the fish that inhabit them are all 
     extremely sensitive to pollution. And right now, many of 
     these streams all across our country are being threatened by 
     dirty groundwater stemming from coal mines.
       Despite this, it's been nearly a decade since the 
     Department of Interior has updated its Stream Protection 
     Rule--an inadequate, Reagan-era regulation governing impacts 
     to waterways from coal mining which was weakened even further 
     under the Bush administration.
       For the last six years, DOI has been engaged in the process 
     of updating and gathering input on the rule, with the 
     ultimate goal of revising it to make it more effective, in 
     line with the challenges our waters face today as well as the 
     law Congress passed in the 1970s to create it. While it has 
     been a long time coming, that process now appears to be 
     coming to a close.
       Once finalized, the revised rule would establish common-
     sense new protections that would safeguard the health of our 
     waterways, and by extension, the communities that are 
     impacted by them. For example, the rule would strengthen 
     baseline requirements for water quality testing to ensure 
     that coal mining operations are not polluting streams in a 
     manner similar to that of the old hardrock mines throughout 
     the West.
       In addition, the revised standards would require coal mines 
     to develop a plan for how to protect fish and wildlife while 
     also putting in place measures that will reduce impacts on 
     habitats and improve reclamation of mines that have 
     shuttered.

  I mentioned earlier as a side note to this letter that we have 250 
such mines in our State.

       These proposed changes are just common sense: The rule is 
     low-cost (independent analysts have calculated that the 
     safeguards would cost between 1 and 60 cents per ton of coal 
     that's mined) and while the revisions are expected to result 
     in cleaner waters and improved public health, its impact on 
     jobs will be slim to none.
       Still, the issuing of a strong final Stream Protection Rule 
     is not a foregone conclusion, as the coal industry is intent 
     on maintaining the status quo. Were that to transpire it 
     would mean streams that are at greater risk of being polluted 
     with coal mine waste and runoff.
       Taking all of this into account, it's clear that whether 
     you're a fly fisherman or not, the revised rule is something 
     we should all support. Cleaner waters not only mean better 
     fishing but cleaner and healthier communities too.
       Speaking on behalf of my fellow fly fishermen, I applaud 
     the Department of the Interior for its ongoing efforts to 
     enact sensible safeguards that protect the federal lands we 
     all support and enjoy. It's time for DOI to push the Stream 
     Protection Rule update across the finish line so we 
     fishermen--

  Obviously, this letter was written before that--

     can go back to worrying about the little things--like what 
     color fly to cast--rather than fretting over groundwater 
     pollution that threatens our vibrant ecosystems and 
     jeopardizes our health.

  Well, I think Mr. Kurtz said it the best.
  Mr. President, I ask unanimous consent that this article be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Protection for Our Rivers and Streams Is Long Overdue

                             (By Ben Kurtz)

       It's often said that drag is a fly fisherman's greatest 
     enemy. The truth, however, is that a wet fly or heavy drag is 
     irrelevant if you don't have clean water to fish. Our lakes, 
     rivers, streams and the fish that inhabit them are all 
     extremely sensitive to pollution. And right now, many of 
     these streams all across the country are being threatened by 
     dirty groundwater stemming from coal mines.
       Despite this, it's been nearly a decade since the 
     Department of Interior has updated its Stream Protection 
     Rule--an inadequate, Reagan-era regulation governing impacts 
     to waterways from coal mining which was weakened even further 
     under the Bush administration.
       For the last six years, DOT has been engaged in the process 
     of updating and gathering input on the rule, with the 
     ultimate goal of revising it to make it more effective, in 
     line with the challenges our waters face today as well as the 
     law Congress passed in the 1970s to create it. While it has 
     been a long time coming, that process now appears to be 
     coming to a close.
       Once finalized, the revised rule would establish common-
     sense new protections that would safeguard the health of our 
     waterways, and by extension, the communities that are 
     impacted by them. For example, the rule would strengthen 
     baseline requirements for water quality testing to ensure 
     that coal mining operations are not polluting streams in a 
     manner similar to that of the old hardrock mines throughout 
     the West.
       In addition, the revised standards would require coal mines 
     to develop a plan for how to protect fish and wildlife while 
     also putting in place measures that will reduce impacts on 
     habitats and improve reclamation of mines that have 
     shuttered.
       These proposed changes are just common sense: The rule is 
     low-cost (independent analysts have calculated that the 
     safeguards would cost between 1 and 60 cents per ton of coal 
     that's mined) and while the revisions are expected to result 
     in cleaner waters and improved public health, its impact on 
     jobs will be slim to none.
       Still, the issuing of a strong final Stream Protection Rule 
     is not a foregone conclusion, as the coal industry is intent 
     on maintaining the status quo. Were that to transpire it 
     would mean streams that are at greater risk of being polluted 
     with coal mine waste and runoff.
       Taking all of this into account, it's clear that whether 
     you're a fly fisherman or not, the revised rule is something 
     we should all support. Cleaner waters not only mean better 
     fishing but cleaner and healthier communities too.
       Speaking on behalf of my fellow fly fishermen, I applaud 
     the Department of Interior for its ongoing efforts to enact 
     sensible safeguards that protect the federal lands we all 
     support and enjoy. It's time for DOT to push the Stream 
     Protection Rule update across the finish line so we fisherman 
     can go back to worrying about the little things--like what 
     color fly to cast--rather than fretting over groundwater 
     pollution that threatens our vibrant ecosystems and 
     jeopardizes our health.

  Ms. CANTWELL. Mr. President, I can read others, but these are the 
people who are concerned about this rule. These are the individuals who 
want to know whether we are going to do our job and to say that 
polluters must pay. I believe that if we have the technology and the 
rules to do that, why would miners object? Why would the mining 
industry object to having the correct information?
  I will read another letter from a Montana rancher this time.

       As a long-time rancher of north of Billings, water supply 
     has been a 70-year-old struggle for my ranch. The coal 
     industry has posted a threat to my water supply since the 
     1970s, and more recently increased mining, spurred by fast-
     growing markets and the export to Asia, which has sparked 
     water damage across the West. The limited water we are 
     talking about in the West makes it doubly valuable and in 
     need of protection. As the saying goes: ``Whiskey is for 
     drinking and water is for fighting.'' So it is absolutely 
     essential that we protect the water we have, and sometimes 
     that means a stronger rule from the Federal Government.
       Most cattle ranchers in the Bull Mountains where I live 
     rely on a combination of wells and natural springs to water 
     our livestock. And like other nearby operations, my ranch is 
     currently being literally undermined by coal mines using 
     massive and destructive long wall machines that make it 
     difficult for efficient mining because of surface 
     disruptions, impairing coal aquifers, subsiding recharge 
     areas, and they pull surface streams underground. I can think 
     of no industry that degrades water in such a reckless and 
     cavalier way as the coal industry. From acid mine drainage 
     and thousands of mines' buried headwaters across Appalachia, 
     to eating streams on the prairie that are destroying wells 
     and springs in Montana's Bull Mountain.
       While Montana surface mining laws require reclamation of 
     the area over long mines, reclamation is a slow and uncertain 
     process, and water in the existing mines in Montana has not 
     been reclaimed, according to the bond-released statistics. 
     These proposals for mining are to be included along these 
     rivers and even moving along tributaries, to get it out of 
     the way of coal mining. In Wyoming, Angelo Creek is slowly

[[Page 1585]]

     being eaten by a coal mine. With all of it as a backdrop, I 
     am happy to see the proposal by the Department of the 
     Interior to update this regulation put in place over 30 years 
     ago.
       So the proposed Stream Protection Rule would safeguard 
     communities from destructive coal mining practices and keep 
     pace with our current science and modern mining practices. 
     These new rules would minimize impacts to surface and 
     groundwater such as springs on my property by requiring 
     companies to avoid mining practices that permanently pollute 
     and diminish streams, requiring coal companies to test and 
     monitor the conditions of streams that their mining might 
     impact before and during and after operations.
       The proposed rule would also require companies to restore 
     streams and other waters that they were using and that were 
     capable of supporting, like in the ranching area, prior to 
     the mining activities. The Department of the Interior could 
     also improve parts of the stream protection rule by providing 
     technical assistance.
       It is very well to have good standards and test these out 
     in rules, but if they are poorly implemented on the ground 
     and over time, the results will be like no rule. So the 
     Interior Department's work to update and modernize these 
     decade-old rules and regulations is absolutely essential if 
     we are going to keep a bad situation from getting worse. 
     Clean water in the West is too precious to let coal companies 
     pollute it or diminish it.

  This happens to be from a woman named Ellen Pfister who has a cattle 
ranch in the Bull Mountains area of Shepherd, MT.
  So these are just two examples of people who really want to see us do 
something. Why? Because clean water is so important to them. It is so 
important to the outdoor economy, and it is important to this 
particular rancher who wants to make sure that clean water is an aspect 
of their farming.
  There are a couple of other points I wanted to make about the rule 
and this notion that somehow overregulation has destroyed the pension 
program. It is so amazing that here in the Senate, somebody thinks that 
overregulation could blow that big of a hole into the pension program. 
The pension program had a more than 23-percent drop in the implosion of 
the economy in 2008 and 2009. So that kind of hole was there before 
this process. It is sad that now miners who are going to reach a 
retirement age won't have a pension to retire on. I think it is 
appalling that we bailed out Wall Street and we don't want to help with 
a pension program that basically took a major hit during the downturn. 
What are we saying to people? We don't care about those pensions, but 
we will turn over the keys to the Treasury to someone else?
  So the notion that, somehow, standing up for clean water is equated 
with the pension program is just not true. We support those workers. We 
will do anything to help them from all aspects of that picture, 
including giving them a pension and making sure they have health care 
and retirement. We have had that discussion, and many of my colleagues 
had that discussion here late into the night just at the end of last 
year. I am sure that we are waiting for a response from Leader 
McConnell as to when he is going to put that kind of legislation on the 
Senate floor. But, unfortunately, what we have instead is a rule trying 
to hold back making sure that we have safe drinking water, safe fishing 
water, and an outdoor economy that can count on these things.
  I thank my colleague from Hawaii for being here earlier and talking 
about this issue, as well as my colleague who is the ranking member 
from the EPW committee, Senator Carper from Delaware, making an 
eloquent statement and talking about the West Virginia economy, as he 
is a native of West Virginia, and now my colleague from Oregon, who is 
also addressing this issue. I appreciate their coming to the floor 
tonight and being part of this discussion.
  This is so important to all of us and really to all of our country. I 
think making sure that people understand how important clean water is 
to various aspects is so important. So I thank my colleague from 
Oregon.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I appreciate the comments just delivered 
by my colleague from Washington State. Our two States are roughly the 
same size. They have similar amounts of coastline. We have citizens who 
share a lot of perspective on the country and that may be apparent in 
the comments I am about to make.
  Mr. President, from our earliest days, long before the Founding 
Fathers gathered in Philadelphia to declare that 13 disparate colonies 
were united and ``absolved from all allegiance to the British Crown'' 
and long before they sought to ``form a more perfect Union,'' our 
streams, our rivers, and our lakes have been the economic lifeblood of 
our Nation. They have supported commerce and trade, fishing and 
agriculture. They have facilitated the ability to travel the vastness 
of this continent. They have sustained our growing communities and 
served as critical resources for public health.
  It is no wonder, then, that generations of Americans have worked 
incredibly hard to protect these natural resources to keep them clean 
and safe. That is why here, in the Senate and in the House, in 1972, we 
passed the Clean Water Act that formed the foundation for our Nation's 
water regulations. It is why, 2 years later, the House and Senate 
developed and passed the Safe Drinking Water Act, to make sure that 
public drinking water supplies are safe throughout the Nation.
  I recall the impact of these acts in my home State of Oregon. The 
Klamath River was considered extraordinarily polluted. You could boat 
down it and see pipes dumping into it at regular intervals. Then, over 
time, as the State worked hard to identify those pipes, remove those 
pipes, and make sure that all pollution went through water treatment, 
the river got better. It got healthier.
  Now, it is not without its problems. Its problems still exist. There 
is still nonpoint pollution that affects life in the stream. But it is 
a far more beautiful and far healthier river than it was before we 
passed the Clean Water Act.
  We have proceeded to be fairly fierce about our enforcement. We have 
prosecuted polluters who have bypassed the law and dumped the results 
of their processes directly into our streams and our waterways. We have 
worked to protect wetlands, and we have worked to protect estuaries, 
understanding more and more about the role these various bodies of 
water play in our economy and play in our natural system and making 
sure they can continue to play that role so that we have a sustainable 
environment, one that is not at war with our economy.
  We have made the two work very well together, and we have 
accomplished all this through the debate and dialogue that we have had 
in the Senate and in the House and that the experts have brought to 
bear in our committee hearing rooms. We have accomplished it through 
the testimony of concerned citizens across the Nation who have 
identified one particular problem or another problem and have brought 
those challenges to us here in this body, and we have worked to address 
them. If you have ever visited a nation that didn't have this kind of 
process and seen the intense, incredible pollution of its waterways, 
then you know what a difference it makes to have this public process. I 
invite you to visit China and see what happens when there is no public 
process for taking into account and rectifying the challenges when 
industrial waste is simply dumped into our waterways.
  We take a lot of pride in protecting our streams, our rivers, and our 
lakes. That process has continued over these past years at the 
Department of the Interior, where the Office of Surface Mining 
Reclamation and Enforcement was working on the stream protection rule.
  I am going to show a picture to give some scale to the type of mining 
that the Department of the Interior, Office of Surface Mining 
Reclamation and Enforcement was trying to address. We see here the 
little tiny tractor. This is actually a massive tractor dwarfed by the 
scale of this massive mine. Indeed, in many cases, the entire top of 
the mountain is blown off to get at the coal seams underneath. In the 
process, a tremendous amount of rock debris is created and a tremendous 
amount of fracturing that can lead to water that moves through the 
water table eventually finds its way into streams.

[[Page 1586]]

  The goal has been to find a way that this type of mining can be done 
in respectful balance with the streams that are further down the 
mountainside. That is the challenge, and it wasn't easy to address. 
That is why this rule has been under development for 7 years, from 2009 
right up through December of 2016--virtually the entire length of the 
Obama administration. During this period of consideration, there have 
been multiple reiterations of what the rule could look like and what 
actually works in the real world, with stakeholder after stakeholder 
after stakeholder saying: This is what you have to do to make it work. 
The goal was that this type of mining would be done, but not in a 
fashion which would destroy the streams. That is why it took so much 
hard work to do this.
  There were hundreds of hours of meetings, responses to over 114,000 
comments on the rule. But here we are in the evening, with little 
attention being paid by the vast bulk of Senators spending just a 
couple hours and planning to undo this work.
  Under the Senate rules under the Congressional Review Act, we have 
just 10 hours of debate. Some of that can be yielded back by one side 
or the other, so maybe it will only be a few hours of debate. In those 
few hours, we hold in our hands the fate of the streams downstream from 
this mining. This is the premise: Will they conduct this mining in a 
fashion and followup with restoration to protect the streams that will 
otherwise be devastatingly impacted?
  I am going to say yes. Let's take to heart the 100,000-plus hours of 
work or the 114,000 comments and the multitude of meetings over 6 
years, the work of professionals who talked to every stakeholder. Let's 
take to heart their work and not undo it in just an hour or two here on 
the floor.
  The Senate works in a way now that, even with something that has such 
a profound impact, Senators aren't here listening to each other; thus, 
we are not sharing our thoughts back and forth the way the old Senate 
used to debate. It is almost in silence that we are undoing or 
potentially undoing all of this work. Shouldn't we be celebrating that 
so many folks came together to craft a strategy that would not cause 
this type of mining to destroy the down-mountain streams?
  Let me show an example of what a down-mountain stream looks like. 
This is a stream that probably ran blue not too long ago. It now runs 
orange. It is full of toxic metals and who knows what. I rather doubt 
that any Member of the Senate would volunteer to go and take a cup of 
water from this stream and drink it. We can just look at it and know it 
is deadly.
  So we are trying to keep in place a rule carefully crafted so this 
stream--which not so long ago ran blue or ran turquoise or deep green 
because it was a natural stream without this devastating pollution--
will stay in that natural state. That is the goal. That is the point of 
this rule.
  I want to be very clear that the stream protection rule is designed 
to enable mining and stream sustainability to go hand-in-hand. Coal 
mining is changing in America. It has adopted a number of practices 
that have made it safer. Machinery has also gotten bigger in ways that 
mean far fewer people are employed in it. It is also changing because 
the economies of the energy market are changing. We see that natural 
gas prices have dropped so low that many utilities are shutting down 
their coal plants and they are opening up natural gas plants or they 
are investing in wind or solar renewables. But we need to recognize 
that for 150 years coal mining families have worked incredibly hard, at 
great personal risk to their health, to put meals on their tables and 
to provide power to our Nation. So let's have this conversation about 
protecting our streams with a full respect for the mining economy and 
the families that have put their lives at stake and worked to put food 
on the table.
  There is no reason we can't do what we have done in so many other 
parts of our economy to make the industrial process or the 
manufacturing process or the mining process be one that works in 
harmony with our environment, instead of at odds with the environment. 
That is the goal of the stream protection rule. It updates our 30-year-
old coal mining regulations to better reflect the industry as it is 
today, in 2017.
  The fact is, we know a great deal more about the impacts of various 
coal mining processes on both the people and communities and 
environment--much more now than we did when most of the regulations 
were put together decades ago. We know that when we use explosives to 
blast the summit of a mountain as is done in mountaintop removal, 
everything gets blasted up into the air and pushed down into the 
valleys where it ends up in rivers and streams. What is the result of 
that? If that newly blasted rock doesn't block the flow of the river 
and streams entirely, it is still in constant contact with them, 
leaching out pollutants into the water, and those pollutants include 
things like heavy metals and other toxics that pose enormous threats to 
the region's fish and to the plants and to the animals and, yes, even 
to the people who live downstream. There are pollutants like selenium, 
a metalloid that is toxic to fish even at a very low level, causing 
deformities, causing reproductive failures, causing death.
  One way to tell the health of a stream is that it has life in it, but 
I doubt anyone would come out and say: Last year, I fished here when 
this was a blue-green stream, but this year I am not because with one 
glance at this stream, you know all the fish are dead.
  There are other pollutants like cadmium, a pollutant that is not safe 
at any level and has been tied to cancer in humans. So as cadmium goes 
down into water, flows into the streams and cities and small towns 
further down, it adds to the health risks of the folks living in the 
areas.
  Waste dumps called valley fills are left in place even when the 
mining is completed and the company moves on. We know that the rubble 
from mountaintop mining is impacting our streams and waterways because 
we have measured it. According to the Environmental Protection Agency's 
statistics, valley fills from mountaintop removal are responsible for 
burying 2,000 miles of vital Appalachian headwater streams. Now, 2,000 
miles is a lot of streams. Picture 2,000 miles of a blue-green stream 
reduced not just to a toxic red stream but to no stream at all because 
it has been completely covered and eliminated. That is a lot of fishing 
holes that are gone forever.
  In addition to that, we know the fish populations downstream have 
been reduced by two-thirds from the places where mountaintop removal is 
occurring.
  We know that communities nearby are contending with contaminated 
drinking water and that babies are being born with higher rates of 
birth defects. I think about the birth of my two children. Like every 
parent, we pray and hope that the child is going to be born free of 
birth defects.
  So this rule is about something very close to our hearts. For some, 
it is the beauty of natural streams. For some, it is the opportunity to 
fish and see wonderful natural places. But for others, it comes 
straight to the question of whether their children are going to be born 
with birth defects. At the other end of life, we see downstream 
elevated levels of lung cancer, elevated levels of heart disease, 
elevated levels of kidney disease, elevated levels of hypertension.
  So I ask: Is it right that here, in the dark of night, with just a 
few hours of discussion and virtually no one here in the Senate 
Chamber, we are going to undo 7 years of work designed to reduce birth 
defects, reduce lung cancer, reduce heart disease, reduce kidney 
disease, reduce hypertension, reduce contaminated drinking water?
  In just a few short hours, we will be making a decision that will 
result in an impact on thousands of people, as well as thousands of 
miles of streams. The stream protection rule is pretty straightforward 
in its design. I will give a few details about what it is intended to 
do.
  One is that it improves construction standards for waste piles. What 
is a

[[Page 1587]]

waste pile? Well, it is pretty much what it sounds like. It is a pile 
built from accumulated rock waste that is removed when you do 
mountaintop mining. Why do we need to improve their construction? 
Because these piles grow to enormous size. They can involve millions 
and millions of tons of rock and debris. Over time, erosion in the soil 
around them can create dangerous, unstable slopes that can eventually 
produce landslides. So how you design it matters. These coal piles can 
have high levels of coal dust or hydrocarbons. And then there is the 
acid rock drainage. As water comes down in rain and it percolates down 
through these, it ends up seeping out into the groundwater or into the 
stream and poisoning the groundwater or poisoning the stream.
  That is why it matters how you have a construction standard for a 
waste pile. Isn't it smart to have such a standard in place and one 
that has been developed over hundreds of meetings over 6 years so that 
mining is much more compatible with clean streams and healthy people?
  Another thing this rule does is it enhances restoration by 
strengthening bonding requirements. It is not unknown, unfortunately, 
that coal miners would just abandon the mine once their operations were 
finished, leaving all sorts of undone business that adds to the 
enormous contamination that even a small amount of mining can do.
  In 1977, Congress passed a law saying that miners needed to restore 
the land after their mining operation was completed and that they 
needed to provide a bond up front to pay for the cleanup cost just in 
case the company decided it didn't want to follow through on the 
cleanup after it completed extracting the coal. Strengthening that and 
making sure the bonding process actually works right, that the bond is 
actually there to do the cleanup, makes a lot of sense.
  Years ago, I was immersed in first developing housing with Habitat 
for Humanity and then building affordable multiplexes for a nonprofit, 
Human Solutions. Companies that were being paid to do their work had a 
construction bond. The bond made sure that if the company somehow 
disappeared in the middle of the night, the work was going to get done. 
That bond was very important to the nonprofit, that what they were 
investing in--the payments they made were actually going to result in 
what was contracted to be delivered. That is the same thing here. A 
company that comes in and says: We got permission to mine--it is saying 
to the public, with a good bonding system, yes, you can be confident 
that the cleanup work will be done. That needed to be strengthened 
because often it is not done. That is another piece of this puzzle.
  Then there is another piece that is related to coal slurry and 
reducing the odds of coal slurry causing a lot of damage. Coal slurry 
is liquid waste generated when mined coal is washed off. You have a lot 
of water that is thickened with debris from washing the coal, and it 
can be held in a basin, but if the walls of that basin fail and that 
coal slurry gets into the streams, it does massive damage.
  That transpired in Martin County, KY, 16 years ago. An estimated 306 
million gallons of slurry spilled into two tributaries of the Tug Fork 
River. How much is 306 million gallons? It is a lot of swimming pools, 
almost more than you can imagine. Another way to look at it is it is 30 
times larger than the Exxon Valdez oilspill, one of the worst 
environmental disasters ever.
  There it is. It was a big, massive pond that spilled into the forests 
and into the rivers in that situation in Martin County. Overnight, one 
of the tributaries, the Coldwater Fork, a 10-foot-wide stream, became 
100 yards of slurry. In some places, the spill was over 5 feet deep. It 
spread out and covered people's yards on the banks. Hundreds of miles 
of the Big Sandy River were polluted as a result as the stuff washed 
down the stream. The Ohio River was polluted. The water supply for 
27,000 people was contaminated.
  It is not that it has just happened once; it has happened other 
times. It happened in Buffalo Creek Hollow, WV, in 1972. In that case, 
it was 132 million gallons of slurry. That is about a third of the size 
of the other spills, so I guess you could say that instead of being 30 
times Exxon Valdez, it was only 10 times Exxon Valdez. But it did a lot 
of damage. It created a wave going downstream that was 30 feet high. 
Can you imagine how much material is required to create a wave of--a 
flash flood of coal slurry 30 feet high? This didn't happen away from 
human civilization; this wave of coal slurry killed 125 people. This 
wave of toxic coal slurry hit and injured over 1,000 more people--1,121 
more people. It left 4,000 people homeless, wiped out their homes and 
their towns.
  That is the type of damage that can occur, so why not have a rule 
that has looked at how these ponds are created and said, here is a 
standard so that the pond is not overloaded or overtopped or the wall 
does not collapse and cause a tidal wave that will kill more than 100 
people or injure more than 1,000 or leave 4,000 people homeless. Having 
a standard is the logical thing to do. It helps the companies because 
then they know exactly what they need to do to make that pond safe.
  Those are some examples of what is in this rule.
  I think it is important to understand another factor. This rule 
requires careful mapping before the mining is done so that the 
restoration process can be held accountable to restore the contours 
that existed previously, or as close as you can get. Without an 
understanding of what the land looked like beforehand, it is hard to 
say what it should look like when it is restored.
  Those are commonsense measures. That is it. Common sense. Common 
standards for safety, for protection of the streams and the wildlife 
and the people. Isn't that what we should be all about? Shouldn't we 
not be undoing that, as we will be in a couple of hours, in a deserted 
Senate Chamber in the middle of the night? That is wrong.
  If you want to change these standards--and I say this to my 
colleagues, and I know many do care a great deal about the 
environment--then have the courage to do it in daylight. Have the 
courage to do it in a committee. Have the courage to invite the public 
in to testify. But here we are tonight, hiding from the population 
across America, undoing this important work for the safety of our 
people. That is wrong.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Scott). The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, it is my understanding that the 
Senator will take us through the closing script, and as a part of that, 
I will be recognized in the order to make my remarks.
  With that understanding, I yield the floor.
  What if I suggest that I begin my remarks, that you give me the high 
sign whenever the closing script is prepared--it is. Never mind.
  I yield the floor.
  The PRESIDING OFFICER. This is the high sign.
  Mr. WHITEHOUSE. The high sign has been received.
  The PRESIDING OFFICER. The Senator from Colorado.

                          ____________________