Low-Level Radioactive Waste Act of 2003

Mr. President, how much time do I have allocated to me?

If the Chair will notify me after 40 minutes.

We are now going to go back to the Energy bill. I know many of my colleagues have already been on the floor today discussing the conference report that is before us. While I think my colleagues have done a good job of outlining some of the most egregious parts of this legislation, because it certainly is shocking legislation, the point I would like to make in the next few minutes is about how we got to this process and how America is very disappointed in what we have come up with as far as a conference report.

It should be no surprise to people here when they find out that this bill has basically been drafted in secret without a bipartisan effort, without a lot of daylight shown on the details of the legislation until just this weekend. Now many people are curiously reading through various aspects of the legislation trying to understand all the giveaways, all the subsidies, and whether it could possibly mesh into any kind of comprehensive energy policy. I think the bill is a disaster as it relates to moving us off our foreign dependence and coming up with a concrete energy

policy. It should be no surprise, when this energy policy legislation started with a task force meeting with the Vice President in which no input was given, no open session as to what was being discussed.

That a bill is brought here to the House and Senate that ultimately included a conference report drafted in secret makes it very difficult for us to have good legislation. But don't take my word for that because I do want to discuss the policy ramifications. Let's talk about what America is saying.

In the last 24 hours, we have had a variety of people around the country, particularly in the press, look at this legislation and actually make editorial comment on it. When I woke up this morning and saw the stack of editorials that are before us on each Member's desk, I was shocked to read the detail and comments from newspapers all over the country. That is good news because it means America is watching this energy policy, that those of us in the Northwest who have suffered from Enron market manipulation are not the only ones watching, that those in New York who have suffered through blackouts are not the only ones watching, that people all across America are.

In fact, the question is, Are we better off having to pass this Energy bill or are we better off without it?

I will take from what the Great Falls Tribune said:

Once again, let this energy bill die.

Why would somebody say that? Some of my colleagues are trying to say this Energy bill actually has a concrete policy. According to the Great Falls Tribune: We are as certain today as we have been for a of couple years that no Energy bill is a better option than the bills being hashed around in the marble halls of Washington, DC.

Other newspapers have said this bill should be a ``do not pass go.''

The Minneapolis Star Tribune, again an independent newspaper organization, that probably, if it took a close look at this bill, saw there were some projects that the State of Minnesota could benefit from. Yet they say the Energy bill is a fine target for filibuster. A newspaper organization in a State that actually has energy projects in this bill thinks we should filibuster this bill:

The energy bill unveiled over the weekend is wrong headed

policy prepared in a high handed way, fitted with perhaps

enough gifts to selected opponents to buy its passage. It's

an abusive approach to lawmaking, egregious enough to

deserve--indeed, to invite--a filibuster.

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

Fix the Flaws.

A bill setting out a national energy policy should

encourage conservation, investment and new technology;

increase available energy; make the distribution system more

reliable; and reduce pollution from burning fuel. The energy

bill unshrouded Monday by congressional Republicans is, at

best, half of a loaf that has been dropped repeatedly in the

dirt.

Some people say this was a process, it went through committee hearings and through all sorts of hearings, and we had discussions on the floor. I remind my colleagues that we got to this point on July 31 of this year where we could not agree on an energy bill. I personally thought we should hold the bill up at that time and send it back and basically make the point that it wasn't going to be a successful product, hoping my colleagues would go back to the drawing board and get more bipartisan legislation.

What happened was, we got so desperate, we passed last year's Senate bill and many of us said: We know what will happen. They are going to take last year's Senate bill and dump it and overreach in the conference because it will be controlled by the Republicans, not in a bipartisan policymaking fashion, but they are going to overreach. A lot of people say this has been written by the energy lobbyists.

The Philadelphia Inquirer said:

The Energy Bill: Lobbyists Gone Wild.

They say:

After all, there's something for everyone here. Everyone,

that is, with enough dough to finance a lobbyist's next pair

of Gucci [shoes].

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

The Chicago Tribune said:

Energy Legislation on the Fly.

If those problems don't sink the bill, the process by which

the Republican majority cobbled it together certainly ought

to. Democrats literally were locked out of the final

negotiations, and now Congress--and the public--have about 48

hours to digest and evaluate the contents of this mammoth

document. This is no way to craft sensible national energy

policy.

That was the Chicago Tribune.

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

Another newspaper, the Milwaukee Journal Sentinel, wrote something pretty humorous:

Indigestion Before the Holidays.

The Old Testament is only slightly longer and is a lot more

readable. . . .

We should take our time with this bill.

The St. Paul Pioneer Press is obviously pointing to what Members would refer to as pork-lined elements:

Energy Bill Lavishes Billions to Drill . . .

I don't think that is what we thought the future energy policy of America would be--lavishing billions to drill. We thought we were going to have an energy policy that was about innovation, technology, about moving forward on conservation, and about alternative fuels. Not that we didn't think we were going to continue to use some fossil fuels, but we didn't think we would lavish billions on them.

We also heard from USA Today. At a time when we have ballooning deficits, what is this bill doing to help us get on the right track? They said:

Costly Local Giveaways Overload Energy Plan.

The Nation can't afford an energy program that drives up

the Federal deficit without addressing critical problems.

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

The Wall Street Journal, which I think has followed the energy debate very closely, was shocked to find out in the last couple of days:

The fact that it's being midwifed by Republicans, who claim

to be free marketers, arguably makes it worse. By claiming

credit for passing this ``comprehensive'' energy reform,

Republicans are now taking political ownership of whatever

blackouts and energy shortages ensue. Good luck.

Why is that? That is the Wall Street Journal, and it is basically putting these issues that have happened in America already--energy blackouts and shortages--on the other side of the aisle, on their lap, and saying this policy isn't going to work.

I have to say, as a former businessperson, we have had a lot of debate about standard market design and regional transmission organizations. I want to see free markets work. But free markets work when there is transparency and when there are rules in place. This legislation does very little to provide for transparency in the market. I think that, along with many of the other items of oversubsidization and special interest initiatives in this legislation, is what drew the Wall Street Journal to say it is not a good piece of legislation.

What else do people say?

The Concord Monitor basically said this is:

Abuse of Power: The Federal Energy Bill is Ultimately Worse

Than No Bill At All.

That is what America is starting to understand--that this policy is worse

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

What about the blackouts? I know some of my colleagues would like to say this is legislation that is going to move us forward in this area. I can tell you what the Providence Journal said:

Energy Gridlock.

Unfortunately, Congress seems intent on passing a bill that

does nothing to make our energy supply cleaner, safer, or

more affordable, and certainly does nothing to prevent a

major failure. We hope that it won't take another huge

blackout for Congress to see the light.

That was written in the last week or so.

I have a lot to complain about here because my predecessor--we had a blackout in the Northwest prior to New York's, and my predecessor, former Senator Slade Gorton, actually proposed reliability standards and a process for moving forward so that the industry was accountable for energy supply and standards that would prevent us from having blackouts.

What happened? His legislation actually passed out of the Senate and got held hostage in the House because the industry wanted more deregulation before they were going to put reliability standards in place. How is that responsible?

Now we are moving forward on an energy bill that basically, at best, as it relates to FERC and its jurisdiction and responsibility, is confusing and muddling. We do nothing about the market manipulation issue of Enron in this legislation.

While I would like to believe the reliability standards will help in some ways, I don't know, given the overall aspects of the bill, that they are going to be as helpful as we need them to be. Why should we have to be told that you have to swallow the whole energy policy that is bad for America just to get reliability standards so people in New York or Ohio or Michigan can be sure their lights will turn on at night? That is a ridiculous policy. This body should have passed reliability standards as a stand-alone bill when Slade Gorton proposed it, and it should have passed it as soon as we came back after the August recess.

I am amazed again at how many newspapers across the country are writing about this bill. We talk about, obviously, some of the Clean Air Act and Clean Water Act issues, and I will get to those in a minute.

The Fresno Bee calls this legislation ``political wheezing.''

They say:

The valley representatives in Congress have put a

particular stake in this fight. The problems of air

pollution, especially diesel particulate matter, are worse

here than anywhere else, and we must do everything we can to

address this.

What about the Ventura County Star newspaper talking about the obviously bad coastal oil and gas language? Every year on the west coast there is a battle that goes on. Basically, we have had for 20- some years now a moratorium on drilling off the coast of Washington, Oregon, and California. While that is an Executive order moratorium, we always have to worry that some interest or some group is going to try to lift that moratorium. It happens every year, and every year in an appropriations bill Congress continues to say: We want a moratorium on drilling off our coast of Washington, Oregon, and California.

Why do we have to drill there? We have marine sanctuaries. We have terrific problems with tanker traffic and a variety of other issues. We have had spills off the coast of Washington that have caused incredible damage. Why do we have to worry now about legislation that makes that issue more cloudy by saying you could give the Secretary the power to expedite and approve a process on this? What did the Ventura County Star say?

They said:

Instead of trying to continually slip in language that

harms the Nation's coast lines, puts thousands of communities

at risk of an economic and environmental disaster, Congress

should be focused on the public's welfare, the environment,

and the rights of States to protect their residents.

This bill undermines those rights. It undermines States rights, it undermines the rights of individuals, and it will leave our shorelines less protected.

What did the Nashville Tennessean say? It said:

An energy bill without savings has no steam. The President

and his allies have built an energy policy on their

convenience--

On their convenience.

When they are willing to build on conservation, then

they'll have an energy policy that will work for all

Americans.

Makes sense, doesn't it? The bottom line is, this bill is what some people are saying. It is about Hooters and polluters. It is about special interests. It is not about a conservation policy that is good for America, and it does very little to get us off our dependence on foreign oil. America deserves better.

If our generation has been smart enough to put a man on the Moon, our generation can be smart enough to get off our dependence on foreign oil, but we in this body have to do our job. We have to draft an energy policy that has a vision, that has a focus, that has the right incentives and ask America to step up and help with this process.

I wish to continue with a few other charts. The Orlando Sentinel agrees with what I have just articulated and that is a concern about this Energy bill and where the focus is for tax breaks.

The Orlando Sentinel said:

Start over: The energy bill before Congress is worse than

what exists.

Why do they say that? They articulate:

Two-thirds of the tax breaks will go to the oil and natural

gas and coal industries, helping to perpetuate this country's

dependence on fossil fuels.

A lot of people hear about these tax breaks and think we are talking about new technology, either smart metering, wind energy, or something--even clean coal. But the clean coal percentages of the dollars spent on tax incentives in this bill are very minor as well. So we are spending money on subsidies, but we are spending them in the wrong direction.

What does America say when you ask them about this? What do they say when you say: Gee, here's the choice. The question to them is, Do you support giving subsidies to oil and natural gas companies and giving tax incentives. Basically, when you read a description of this, the majority of voters in this country, 55 percent of them, think Congress would be better off if we didn't pass this legislation. A majority of Americans are already saying they are not interested in this legislation.

This bill is about as bad as it gets. Obviously, I am encouraging my colleagues to vote no. As the Atlanta Journal-Constitution said:

Put backroom energy bill out of country's misery.

It goes on to urge, when Members of Congress have the chance, ``Members of Congress who remain committed to a more rational energy policy . . . shouldn't hesitate to reject it.

I have just read for my colleagues, not my thoughts, but the thoughts of newspapers around the country. Why did I do that? I am sure my colleagues can read. I know they have busy schedules today. I know they have these editorials on their desks. I spent time to do that because I want them to know that America is watching, and America expects us to stand up and do the right thing. This bill that we have had very little time to really understand, and basically on this side of the aisle have been shut out of the process as it relates to the conference report, are trying to respond in very short order to say that this bill is a mistake. I want my colleagues to know that the rest of America is watching.

Some of these issues my colleagues have gone over before, but I want to articulate a few of my objections to this legislation because I think it is important for America to understand the various aspects of this legislation.

First, there are a variety of environmental laws that are basically undermined by this legislation: the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, the Outer Continental Shelf public lands issues. I ask myself: Why is it that we have to undermine current environmental law to have a national energy policy? I have sat on the Energy Committee in various hearings about public lands, about energy companies, about getting more supply. I have not heard an industry show up and testify that they have to do something about the Clean Water Act, but this legislation does undermine the Clean Water Act. It exempts all construction activities at oil and gas drilling sites from the coverage of runoff requirements under the Clean Water Act.

Is that what America wants? Is America so desperate for new oil and gas drilling sites that they say the runoff at those sites are something from which those particular industries should get an exemption? Everybody else who is a developer in America has to deal with runoff. It is not an easy problem.

We set a priority. We said we wanted clean water in America and so we set standards. So why would we let new oil and gas construction out of that?

We, obviously, care about clean air. Why do we have to have an energy policy that basically changes clean air attainment levels that we have already set in policy just to get new energy construction? Is that what the Congress thinks the message ought to be? Obviously, this legislation is a rewrite of existing law and it postpones ozone attainment standards across the country. This is a matter that was never considered in the House and Senate bill and that has now been inserted into the conference report. That is what one gets out of a secret process. They get bad legislation as it relates to some of our strongest environmental laws.

Now, why does a national energy policy have to step on safe drinking water? Are we in such desperate straits to get energy supply that we are willing to say there can be an exemption from safe drinking water? The provisions in this act basically remove an oil and gas extraction technique from regulation of the Safe Drinking Water Act.

Hydraulic fractioning is a process by which water, sand, and toxic chemicals are injected into rock so the oil and natural gas that they contain can be extracted. So if we do that in some large body of water within my State of Washington, somehow that company that is involved in that technique does not have to meet the regulations under the Safe Drinking Water Act?

Somebody who is going to explore for that kind of oil and gas, is it so important for us to have that that somehow we are going to say they do not have to meet safe drinking water standards? I do not understand that.

I already articulated a little bit our concerns about public lands. Since when does an energy policy for America, that ought to be focused on a hydrogen fuel economy, about energy efficiency, about fuel efficiency, a whole variety of things, have to have an assault on public lands?

When drilling on those public lands, one has to pay a royalty. Oh, but under this bill now less is paid because we are forgiving some of those royalties. Why? Because we want to incentivize more oil and gas drilling on public land.

Why? If we look at the research that shows where the availability of oil and gas is, it basically shows on most public lands it is uneconomical; it is hard to reach. One cannot get that far on the access to public lands to make it even efficient. So why now further incentivize it by saying we are going to make them pay less in royalties?

The other thing is it creates this new entity--I do not know what one would want to call it. I do not know if it is the Cheney committee. I do not know what it is, but somewhere in the White House this legislation says now there will be an organization that plays a policy role on expediting oil and gas drilling and making sure that if it is about waiving access to public lands, this group will help get the job done. I do not understand why we have to go through that process of dealing with our public lands to make energy policy work in America.

I think there are many other things we should be doing. Let's talk about a few other things, because I know that I have colleagues who want to chime in on this, but I have to mention a few other things that I was shocked to find in this legislation.

As a Member who spent many hours on the electricity title, I do not understand why this bill has to have an exemption for Texas. Why does the State of Texas get out of compliance with the electricity title as it relates to electricity market rules, market transparency rules that are so important to making markets work, basically protecting the consumer? Texas gets protected from the cost shifting that happens in transmission construction, but the rest of us in the country do not get to be protected.

Now, I wanted to bring this issue up when we were debating this bill in July but we decided, because there was so much turmoil, to take this out and to basically go back to the Senate Democratic bill passed from the previous year just to try to get something going. As I said earlier, now we know what the end result was: A bill in secret in conference that has all sorts of things in it, including this exemption for Texas.

In the electricity title, after what we have seen in California with deregulation, as we have seen with various market manipulation activities, we want better rules. We want transparency. We want things to work and to have individual utilities held accountable, but we are going to exempt Texas. Some of the people have said, well, Texas is not tied to the rest of the country so for some reason Texas should be exempt from this.

Here is the facility right here. This facility does interstate and intrastate commerce and is connected, and if this electricity title is good enough for Washington, good enough for New York, and good enough for Ohio, it ought to be good enough for Texas, too. They should not have an exemption in this bill.

What about the sweetheart deals in this legislation? I could go on actually forever about the sweetheart deals in this legislation. My favorites are the $1.1 billion for a new nuclear facility in Idaho. Not that this Senator has an out and out opposition to nuclear facilities. We have some in Washington State. I spend a good deal of my time talking about Hanford cleanup and the billions of dollars taxpayers have spent on trying to clean up nuclear waste. But why are we going to spend $1.1 billion for a new nuclear facility in Idaho to see if nuclear power can produce hydrogen? There are thousands of ways to produce hydrogen. You do not have to have a new nuclear facility to do it.

My other favorite little part of the sweetheart deal is basically a process in the bill in which DOE can help pay for and finance the transmission hookups that might end up being used for a coal company in Texas.

My colleagues might say, well, geez, if someone has new power and they want to put it on the transmission grid in my State they get in line. If they have capacity and they want to be added to the grid, they come to the Bonneville Power Administration and work with them about how they are going to add capacity to the grid, but they do not have DOE coming in and basically saying they will help them get connected and get capacity to the grid.

That is just part of the aspects of this legislation, the many sweetheart deals. I am sure many of my colleagues are going to go through this and talk in more detail about some of this legislation, but this energy policy, more than anything else, is a missed opportunity. Instead of incentivizing the right programs, we are spending $23.5 billion in tax incentives where only a small percentage of them go to the renewables, conservation, and energy efficiency that America thought it was investing in when it heard about this energy policy.

The whole provision that we talked about dealing with hydrogen fuel, which was an investment in goals and basically a process for us to get to a hydrogen economy, have been thrown out of the legislation. The only thing that remains is sort of a small incentive for that.

What about creating the clean energy economy of the future in which we thought we could estimate a creation of 750,000 jobs in America over the next 10 years by focusing on these energy efficiencies? Well, if they are spending

$23.5 billion and only have 32 percent going to that, those 750,000 jobs are never going to be created in America.

I know my colleague from New York wants to speak, and I know I have other colleagues who want to speak, so I will try to wrap up, but I feel disappointed for the policy opportunity that is being missed. America wants to know what this legislation is about. They want to know where we are going with energy policy. This policy could be far more reaching in response, not just to the crises that we have had in Washington, California, and Oregon, and not just to the policies of blackouts or the fact that these institutions, the House and the Senate, have not passed a reliability standard that would give people in New York and other places in the country the kind of security they need. We are missing a big opportunity to be leaders in energy policy in the world. You might hear some people say we are going to get this national grid. It is not about a national grid. I guarantee we are not going to build a national grid and ship power from Seattle to Miami Beach, and anybody who tells you that they are going to does not understand energy policy. A national grid is not about shipping power all the way across the country. We are entering an era of distributed power. That means you produce power closer to the source and to the individuals who want to have it.

What do you do now that you have hydrogen fuel cells? You have new forms of energy that can connect to the grid. What do you do to make that a reality? First of all, you obviously provide the right transparency and stabilization of the system and give oversight to an entity that hopefully does its job. Obviously FERC, in a lot of instances, has failed to do its job. But you create these decentralized energy plans in which individuals can connect their power source and their generation to the grid and have it delivered in that region. That is the most economical delivery of energy. That is the future.

This bill does not invest in that. It does not invest in net metering, which would basically have a framework for people to understand how to get their power source onto the grid. It doesn't invest in an interconnecting standard by which everybody could start understanding how they could connect to the grid. It doesn't even set standards for some of these new technologies that everybody wants to be part of developing. There should not only be a national standard for the United States on how to build a hydrogen economy, it ought to be an international standard so the United States can be a leader in job creation in that new economy. But that is not in this bill.

As bad as this legislation is, and it is bad, my colleagues should make no mistake; this bill should not pass. But the tragedy is that America is not grabbing its future opportunity to both get off of its dependence on foreign oil and also to invest in an energy economy that will produce jobs and have America lead the way in new energy technology. Let's not embarrass America by passing this bad legislation that undermines environmental laws, that puts the tax incentives in the wrong way, runs the deficit up without giving us a return on jobs, that basically does little to address the market manipulation and blackout situations that happened in the past and, as I am sure my colleague from New York will talk about, really sticks some Americans with the deep pocket expenses of cleaning up waste.

Let's not pass this legislation. Let's listen to America. Let's listen to what those newspapers are saying because they are the first shot at this legislation and they understand. Let's go back to work, even if it means next year. Let's go back to work and let's put an Energy bill together that America can be proud of. Let's make it a goal of our generation that we are going to get off our foreign dependence, but we are going to do it the right way--the Members of this body will work together to get that legislation done.

I yield the floor to my colleague.

Mr. President, does the Senator from Illinois wish to speak? I yield to the Senator from Illinois 5 minutes.

I will probably have about 10 minutes left and we will wrap up.

Mr. President, I will not take all 10 minutes. I know we have other colleagues in the Chamber. I wish to make one final point.

I thank the Senator from Illinois for continuing his talk about this issue as it impacts his State and national policy which we are all trying to fight. But many of my colleagues know that on one provision in the Energy bill relating to Enron, we really tried to make a point. In fact, 57 Members of this body passed an amendment, albeit on the Agriculture appropriations bill because we couldn't get it on the Energy bill when we recessed in August, which basically said we think market manipulation has taken place and something needs to be done about it.

In fact, at that time I argued that in this legislation we ought to have a prohibition on the types of market manipulation that actually happened with Enron and include that in the Energy bill. My colleagues on the other side of the aisle drafted language that basically prohibited one of the Enron abuses but not all of the Enron abuses. But in a separate piece of legislation, we got 57 of my colleagues--a majority of Senators--to say, Let's say that market manipulation on contracts was wrong.

That language still exists in a conference committee on Agriculture appropriations. That language is sitting there hoping we will get it out of conference, even though the industry is lobbying against it. Yes, that is right. The remnants of Enron are lobbying against it.

What do we do? In this conference report, we basically change current Federal law and say those contracts shouldn't stand. We go one step further in the Federal Power Act and say manipulated contracts are not in the public's interest.

This legislation should be defeated alone on the fact that it continues the Enron price gouging. We as a body failed to stand up to that kind of activity. We can say all we want about the reforms we have with the SEC, all the reforms we had on auditing, but in our energy policy we have done nothing to be the policemen on the street. These energy companies, under this legislation, are still going to run free to continue to manipulate market. Not only that, we are putting in this bill that it is OK to do so.

I urge my colleagues: Please, in the next 24 hours review this legislation

carefully. It has so many issues that are the wrong direction for our country.

I urge my colleagues to stand up to the special interests that have promulgated this bill and say no to the conference report.

I yield back the remainder of my time.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I know we are still under consideration of the Energy conference report and many Members have been to the floor talking about the prescription drug conference report as well.

Before we adjourn, whatever date that is, sometime in the very near future, hopefully before the Thanksgiving holiday, it is imperative that this body take a stance and pass the unemployment benefit extension before we go home.

We are in the same position we were in virtually a year ago. What has changed? The economy might have gotten slightly better but not really much better. We have a .4 percent improvement in the unemployment rate. We in Washington State are still just above 7 percent in unemployment.

The reason we do the unemployment benefit extension program at the Federal level is to help States, which includes those that have been hardest hit by unemployment, get some extra weeks of unemployment benefits. It has been a successful program in the times of downturns of our economy. During the first Bush and Clinton administrations, when our economy was not doing so well, we basically extended Federal unemployment benefits for a total of 30 months. At that time, the benefits were at the Federal level, 20 additional weeks.

We are at this point in time now where we have extended the Federal program in this recession for about 22 months. Yet while we have seen a slight economic improvement, as I said, .4 percent, I believe it is not enough to continue the improvements we would like to see in our economy.

In an economic downturn, make no mistake about it, working Americans would rather have a paycheck than an unemployment check. But giving people an unemployment check in times of tough economic situations helps our economy overall. Every $1 spent on unemployment benefits generates $2.15 of stimulus. That is mortgage payments paid, health care bills that are met, a continuation of the economy at the most stable level we can have when we are not seeing job increases.

It is vitally important, before we adjourn--we have spent all this time debating judges and there was a good debate on both sides--we get back to some of the basic issues that need to be accomplished before we adjourn. Certainly unemployment benefits, I believe, should be that priority.

What is going to happen in December if we adjourn sometime next week--this program expires at the end of December. What is likely, if that happens, is we will see 90,000 people at the national level fall off this benefit program and as many as 2 million people in the first several months of the year could be without unemployment benefits.

Like many of my colleagues, I hope the economy improves. But I don't think we are seeing an indication it will improve that rapidly that soon. To leave these people without benefits at a time when we could be stimulating the economy is irresponsible.

For Washington State, the numbers are similar. We have about 200,000 people in Washington State who will exhaust their benefits in the first 6 months of 2004. I would rather those people be receiving some benefits and having the certainty of receiving those benefits now, even if it is a shorter extension period.

The challenge we ran into last December as we bantered back and forth--and, actually, the Senate did the right thing in the eleventh hour by passing the unemployment benefit extension; the House decided not to act on it. What happened was we left many Americans without certainty of the unemployment benefits.

Some of my colleagues believe nothing happened, that when we got back in January we reconstituted that program and people did not lose a thing. That is not true. I know constituents who made alternative plans, not knowing whether Congress had the intention of extending the unemployment benefit program. There was not the certainty. I had constituents who took money out of pension programs with 30 percent penalties, basically trading off their long-term investment for short- term return because they did not think we were going to extend benefits.

We ought to give working Americans some certainty that as this economy continues to struggle, we are going to be there with unemployment benefits.

My colleague from Nevada has cited several times that many Members of Congress voted to terminate this program. In the 1990s, after we had the 30 months of an extension of employment benefits by both the Bush and Clinton administrations, and after we had a 1.2 percent improvement in the unemployment rate, yes, we curtailed that program. However, we are doing less now, less under more severe economic conditions, than the first President Bush and President Clinton did during that time period. They went for 30 months. They had a Federal program that was 20 weeks instead of the 13 we have now, and they only curtailed the program once they saw a better return to the economy.

I encourage my colleagues to put this bill on the priority list for the next several days. Let's figure out a way to give unemployed Americans some certainty as they face the holiday season. Let's give those millions of people who are going to be impacted by not having this Federal program continued some relief and know we will be also holding up our economy. Let's not say to people that this Congress went ahead and passed tax cuts for the wealthiest of Americans, did a variety of things that may have been targeted tax credits, but failed to extend to hard-working Americans the unemployment benefit program into which they have paid.

Unanimous Consent Request

I ask unanimous consent that the Senate proceed to legislative session

and the Finance Committee be discharged from further consideration of S. 1853, a bill to extend unemployment insurance; that the Senate proceed to its immediate consideration; the bill be read the third time and passed, and the motion to reconsider be laid upon the table.

I suggest the absence of a quorum.

Mr. President, what is the order of the business before the Senate?

Mr. President, I ask unanimous consent that period of time be extended to 45 minutes, if there is no objection.

Thank you, Mr. President.

This is a bill that has been before Congress for quite some time. It is a bill that relates to America's energy needs. It certainly is one that is timely. Our energy supplies and use of energy are critical to the state of our economy and its growth.

This bill was first proposed by the Bush administration under the leadership of Vice President Cheney. Most people followed it in the news because Vice President Cheney called together a task force to write the administration's energy policy. When he was asked to identify who was in the room, the people who were involved in the task force, he refused. Despite the pleas of Members of Congress and requests for that information about the origin and creation of this energy policy, the Vice President basically said he was not going to disclose the identity of those who were part of the energy task force.

The General Accounting Office took the Vice President to court and the Vice President prevailed. He was allowed to conceal the names and identities of those who were on the energy task force. So this idea of an energy policy was conceived in secret.

Then there were lengthy debates on the floor of the Senate and House about Energy bills, both during the period when the Democrats were in control of the Senate and the period with Republicans in control. We spent many, many days going through Energy bill options and amendments, voting on them, and moving forward. The net result of it was we produced a Senate Energy bill which was sent to conference.

Conference committees, as defined under our Constitution, and by the practice and precedent of the Senate, usually involve both political parties sitting down, and the House and Senate conferees trying to work out some agreement or some compromise.

As has been the case more recently than not, this conference committee did not follow that standard. The conference committee met primarily with Republican Members only, and primarily in secret.

So ultimately the work product of this energy conversation or energy analysis that we have before us today was not only conceived in secrecy, it was produced in secrecy.

So today we have a great epiphany, a great opening, a great revelation. The bill is finally before us, and we have a chance to look at this bill, which was brought together with special interest groups and the Vice President at the outset, and which was hammered out in a conference committee with those same special interest groups.

Having considered the origin of this bill, and its maturation process, it is no surprise that this bill is heavily larded with giveaways to the energy industry. In fact, if you go through this bill you will find two things that stand out. The first relates to a question which we have to face as a nation: Is it possible for us to have a sound energy policy which allows for economic growth and sustains our standard of living without endangering our environment?

I think the answer to that is yes, and I think we have proven that it can happen. We have seen an expansion of the American economy over the past several decades while we have reduced pollution in our air and water. That is a positive. It shows we are thinking ahead, that we are not trying to enjoy the benefit of the moment with energy as an expense which our children will pay for.

But, sadly, this bill, by its contents, comes to an opposite conclusion. Because this bill finds, first and foremost, that in order to pursue the administration's energy policy, and the energy policy of a Republican majority in Congress, we have to basically sacrifice our environment. I think that is a horrible conclusion. I find it totally unacceptable, and it is the reason I stand today in opposition to this bill.

Secondly, aside from the question of whether we can have a sound energy policy and a safe environment, we are challenged with this question: Can you promote in America the energy we need for this generation and future generations without providing generous, lavish subsidies to private corporations?

Now, this morning, one of my colleagues from Oregon, on the Republican side, came to the floor and was critical of Governor Dean of Vermont for saying yesterday that we had to consider reregulation in America. This Senate critic said that is exactly what we do not need. We do not need Government regulation in America.

His argument was--and the traditional Republican argument is--let the free market work its will. Well, that, in the abstract, sounds like good medicine, but in reality it is far from the truth.

The market worked its will with Enron. The market has worked its will with the scandals involving mutual funds. The market is working its will every day when it comes to the cost of health insurance to businesses and families across America.

As we look at how the market has worked its will, it is clear the results are unacceptable. So the question before us in the Energy bill is, Can we rely on a free market, then, to develop sources of energy in America?

The answer from this bill is no. The answer from this bill is that the Government must inject itself into the energy sector of our economy and make substantial subsidies to certain elements in the economy in order for America to meet its energy needs. I will outline some of those subsidies in a moment.

So the two conclusions from this Energy bill are that America's energy supply and its growth are inconsistent with a safe environment; and, secondly, that giving the free market its rein, it will not produce the energy that we need in the future. Instead, we have to generously subsidize energy markets.

Now, that is a lot different than what you have heard from the administration. They have talked about balance and they have talked about a forward-looking energy policy. But I will tell you, when you look at the specifics in this bill, it is clear that it is not balanced.

It is sad to report that this bill, as it is written, has turned out to be a piece of legislation which I believe this Congress should reject. This energy policy that is being promoted in this bill is a gush of giveaways to corporate special interests that is masquerading as an energy policy.

There is a way out of this embarrassment for the Senate. There is a way to come up with an energy policy that works. That way, of course, is to stop this bill and to ask our friends on the important committees dealing with energy to go back to work, go back to work to deliver a bill which, frankly, will be bipartisan, a bill which will be balanced, a bill that will not sacrifice the environment for energy, and a bill which would not be the gush of giveaways this bill has turned out to be.

Let me tell you some of the specifics included in this Energy bill when it comes to the environment, specifics that tell the story about how what was conceived as an Energy bill turned out to be the worst piece of environmental legislation that I have seen in the Senate.

Among the provisions in this bill are the following: It allows more smog pollution for longer than the current Clean Air Act authorizes. Under the existing act, areas that have unhealthy air are required to reduce ozone-forming smog pollution by a strict statutory deadline. If these areas fail to meet the deadline, they are given more time to clean up, but must adopt more rigorous air pollution control measures. The bill attempts to allow more polluted areas more time to clean up without having to implement stronger air pollution controls, placing a significant burden on States and communities downwind from the urban areas.

This bill exempts all oil and gas construction activities including roads, drill pads, pipeline corridors, refineries, and compressor stations from having to obtain a permit controlling polluted storm water runoff as currently required under the Clean Water Act. So in these first two provisions, this bill violates the Clean Air Act and the Clean Water Act. It delays pollution cleanup in southwestern Michigan for 2 years while the EPA conducts a study, dramatically increases air pollution and global warming with huge new incentives, claims to promote clean coal, which I support, but inhibits its development by disqualifying federally funded clean coal projects as best available control technologies; threatens drinking water sources by exempting from the Safe Drinking Water Act regulation the underground injection of chemicals during oil and gas development.

Do you remember the squabble we had here in the Senate about arsenic in drinking water and whether or not it

was safe, and how the Bush administration finally backed off of weakening regulations that would protect us from arsenic in drinking water? This so-called Energy bill is going to increase the danger in our drinking water by exempting from coverage by that act the underground injection of chemicals during oil and gas development. There is a whole section on MTBE, which I will speak to specifically. It encourages the mixture of hazardous waste in cement and concrete products as an alternative to safe disposal in permitted hazardous waste landfills. The list goes on and on and on.

When it comes to our public lands, this bill allows the Interior Secretary, by Secretarial order, to designate utility and pipeline corridors across public lands owned by Americans without any seeking public input through a land use planning process. It authorizes the leasing of the national petroleum reserve in Alaska for oil and gas production without protection for wildlife. It allows the Secretary to waive royalties, which means payments to taxpayers for those who are drilling for oil and gas on the lands that we own as Americans. It allows the Secretary to waive royalties so these companies can drill on our public lands for free.

The list continues. The list is overwhelming. In each and every page--and there are five of them--you will find 10 or 20 examples of environmental degradation, abandonment of environmental standards, endangerment of the air that we breathe and the water we drink. For what? So that someone can make a dollar. That is what it is all about. It is about profit taking at the expense of public health. That is what this Energy bill does.

Did anyone ever announce at the outset that was our goal? Did anyone ever conceive during the debate that what we were trying to do was to provide some more energy at the expense of the environment and at the expense of public health? That is exactly what this bill does.

Before I get into the MTBE issue, which I think is possibly one of the worst I have seen in the time I have served in Congress, let me tell you what this bill fails to do. What is the No. 1 use of oil that we import into the United States today? We use it to fuel our cars and trucks, of course. Of course, a lot of us own quite a few of them. And we know as well that if these cars and trucks are not fuel efficient, they will burn more gas and require us to import more oil. So if you want to have an honest discussion about energy security in America, would you not be pursuing goals which would reduce our dependence on foreign oil? Would you not want to find ways that America can ween itself away from its dependence on Saudi Arabia and its oil sources? Shouldn't that be front and center the main topic in our energy policy? Well, everybody I have spoken to in my State agrees, of course, that is where you should start the energy discussion.

You can search this bill, 1,400 pages or more, and not find a word that gives you comfort that we as a nation will even seriously consider improving the fuel efficiency of the cars and trucks we drive. Why? Because the big three in Detroit--General Motors, Ford, and Chrysler-- have said they are not capable of producing more fuel-efficient cars to compete with those that are being imported from Japan. They have convinced the majority in the Senate--I know because I offered an amendment to improve fuel efficiency--that America is technically incapable of competing when it comes to fuel-efficient cars. That is such a sad commentary. It is one which I reject.

Let me tell you what fuel efficiency means for us. First, a little history: The year was 1975. Gas lines were long. People were concerned about the availability of energy in America. An argument was made that we had to do something about the efficiency of the cars and trucks we drive. Of course, there are two ways to achieve it: One is to raise the price of gasoline. If the price of gasoline at the pump doubled tomorrow, every American family would start asking how many miles a gallon do I get from this hog? Well, I don't want to see that happen, nor do most Americans. That imposes new financial burdens on families and small businesses and, frankly, is inflationary.

But there is another one. In 1975 Congress said: We are going to mandate doubling the fuel efficiency of cars and trucks. It is going to be a Federal mandate. It has to happen.

The automobile manufacturers in Detroit said: It can't be done. It is technically not feasible for us to double over 10 years the fuel efficiency of our cars. Secondly, those cars are going to be so small, they are going to be unsafe. Third, you are just playing into the hands of foreign automobile producers who will beat us to the punch.

Thankfully, Congress ignored them and passed a law. In a matter of 10 years, fuel efficiency went from about 14 miles a gallon fleet average to 27.5 miles a gallon. In a 10-year period of time, we virtually doubled the fuel efficiency of our cars, reducing our dependence on foreign oil.

What have we done since 1985, since we reached 27.5 miles a gallon? Nothing, except drive larger, less fuel-efficient vehicles, import more oil from overseas, and pollute our air even more in America.

What has Congress done? Absolutely nothing. This bill is silent on the issue of fuel efficiency. The Energy bill for America's energy policy is silent when it comes to fuel efficiency.

Let me correct myself. It isn't silent. It creates a new loophole that will be added to the process which will make it even more difficult in the future for us to even consider increasing fuel efficiency.

I offered an amendment which said, what if we went to 40 miles a gallon from 27.5 miles a gallon by 2015. Let's have 12 years. Look at the dramatic savings we would have in the barrels of oil that are consumed.

This is what drilling in the Arctic National Wildlife Refuge is worth, this tiny little line down here. But just by increasing the fuel efficiency of our cars and trucks, we could answer a major part of the challenge of America's energy future. This bill sadly does nothing.

In addition, this bill excludes a renewable portfolio standard. It does not in any way encourage new ways to use energy from renewable fuels in a way that could make a sizable difference. I think we ought to be embarrassed by this. What an embarrassment it was to read in the Washington Post yesterday that China, a developing nation, now has higher fuel efficiency standards and fuel economy standards than the United States. Can you believe it? Can you believe that this growing economy, just developing, has decided they see the future, and the future is in more fuel-efficient cars and less dependence on foreign oil; and the United States, this great economic engine that we run, doesn't see the same? As a consequence, we find ourselves in a position where this bill is silent when it comes to fuel efficiency.

I think that is a terrible deficiency in this legislation. I cannot imagine it can be taken seriously in a conversation about America's energy policy. We know full well that we use a lot of oil. According to this chart, the global consumption of oil per capita in 1999, in gallons per day, the United States is 3; other industrialized countries, 1\1/2\; and the rest of the world less than \1/2\. The U.S. continues to consume more oil than other countries.

The gasoline savings we realized going from 14 miles a gallon in 1970 to 28 miles a gallon in 1999 reduced, by 3.7 billion gallons, the gasoline we consumed in a given year. Less gasoline, less polluted oil, less pollution. This bill is silent on that issue, and that is unfortunate.

Let me speak for a minute to what I consider the single most outrageous part of this legislation.

Mr. President, I have been in Congress a few years. I have noticed that at the end of a session strange things happen. Some of these strange things involve massive giveaways to individual companies or interest groups. Over the years I have paraded out my personal award for this activity. I call it the moonlight mackerel award. It is given to that effort or amendment or bill in the closing days of the session which is the most outrageous. It goes back to a quote where someone said that a certain thing would shine and stink like a mackerel in the moonlight.

The one I am about to describe, I believe, may retire the trophy, the moonlight mackerel trophy, which has been

coveted by special interest groups forever. Frankly, it is now being challenged by what may be the worst provision in this Energy bill. It is a provision that led me to oppose the bill. Even though I have had people from Illinois call me who support this bill and genuinely want to see it pass, I have told them that as long as this provision is in the bill, there is no way I will support it. I think it is that bad and that embarrassing.

The provision is on methyl tertiary-butyl ether, or MTBE. MTBE was an additive to gasoline so that engines ran a little smoother, called an oxygenate. Oil companies started adding that to our fuel and selling it across America. There are alternatives. They could have used ethanol, for example; but they said, no, we will use MTBE. So they used this MTBE additive, this compound, in gasoline and then discovered something. They discovered it a long time ago. This MTBE compound is dangerous. MTBE, when it leeched out of underground storage tanks, could get into the groundwater and into the public water supply.

If you took out a boat on a lake with MTBE mixed with gasoline and it discharged into the lake, it could contaminate the lake.

The contamination went beyond the foul-smelling additive itself to raise serious public health questions. According to the GAO, it has been detected in groundwater and drinking water all across the U.S. It is classified as a potential human carcinogen, a cause of cancer. At a level of 2 parts per billion, MTBE produces a harsh chemical odor that renders tap water undrinkable. Removing MTBE is difficult and costly. Water utilities must either blend contaminated water with clean sources to dilute the MTBE to acceptable levels, install systems to remove chemicals, or abandon certain water sources altogether.

The most effective argument of those who have been harmed and seek a day in court is a defective product argument. The fact is that the oil industry knew MTBE was, in fact, dangerous and they continued to use it and sell it, despite the danger it posed to public health. That was the basis for a lawsuit filed in California near Lake Tahoe, where the oil companies eventually paid $60 million, conceding their guilt.

The producers of MTBE knew the problems they had. I believe the producers of the MTBE should be held responsible. In fact, in one powerpoint presentation, the producers cynically dubbed MTBE as ``most things biodegrade easier.'' They were making a joke of the fact that MTBE would stand for those initials, realizing that it did not biodegrade easily. It was a persistent, troublesome, and dangerous element, which stayed for a long time.

Who should pay for the cleanup for MTBE? According to this bill, not the polluters, not the producers, but the taxpayers of America. That is the conclusion in this bill. This bill provides the single most expensive immunity to litigation of any bill that I have ever seen before Congress. It says the producers of MTBE cannot be held accountable in product liability legislation for what they knew to be a dangerous product, and it doesn't stop there. It is retroactive, saying that lawsuits already being prosecuted in States across America cannot be pursued to verdict or settlement.

Think about that for a minute. This is the single biggest giveaway to a special interest group that I have ever seen in the time I have served in Congress. This jury in Tahoe, considering the contamination near the Lake Tahoe area, found that gasoline with MTBE is a defective product because of the risk of this additive, and because the oil companies failed to warn consumers of the risk to the environment and drinking water. The jury found ``clear and convincing evidence'' that the producer of MTBE acted with malice, and they are going to have a field day and a holiday with this Energy bill. They were found to have acted with malice in selling this product that endangered the lives of the people in the community.

MTBE producers know they are vulnerable to these lawsuits. If you are vulnerable for wrongdoing, if you created a product that endangers thousands of Americans, where should you turn? Come to Congress. Come to Capitol Hill. Come to mama.

That is what happened with this conference committee. They came to this conference committee and the conference committee delivered. This conference committee let the MTBE producers and oil companies off the hook. About three-fourths of the producers are located in Texas and Louisiana, and it has been the Congressmen from these States who have pushed this provision.

Let me tell you what it means to Illinois. We are hit, but not as hard as some. Only 26 to 29 communities in my State of Illinois have drinking water currently contaminated with MTBE, affecting over 200,000 people where I live.

Currently, there are four lawsuits in Illinois that this waiver in this bill would eliminate--in the communities of Crystal Lake, Island Lake, Village of Alton, and Woodstock. The lawsuits currently underway will be eliminated by the language in this bill. So where does that leave the community with the contaminated water supply? Where does it leave the families who cannot live in their homes because of this MTBE contamination? It leaves them, frankly, at the mercy of those who would turn and give them money. Should you not hold the polluters accountable? Not according to this bill. This lets the polluters off the hook.

The community of East Alton, with a population of 6,500 people, was faced with a MTBE plume that threatened its drinking water supply. A million dollars was spent to clean it up, and the community went to court to recover the cost of that million-dollar expenditure.

In the town of Island Lake, individual wells were affected.

In Kankakee County, Oakdale Acres subdivision and two other small subdivisions were forced to shut down their groundwater systems and connect to a nearby community's public water supply, after a pipeline rupture contaminated the subdivision's aquifer.

Roanoke, with a 2,000 population--like you might find in Nebraska, New Hampshire, and all across America--has had to use one of their wells as a hydraulic containment area with treatment and discharge to surface water in order to protect their well field from an MTBE plume with a concentration exceeding 1,000 parts per billion.

These communities and others deserve a fair and reasonable hearing. They deserve a judge and jury. They deserve their day in court. This Energy bill locks the courthouse door and says to these communities that they will not have their day in court.

With the defective product liability waiver which reaches back to September 5, 2003, this conference report meddles with the courts at the request of the oil companies. At least 35 States have problems such as I have just described in Illinois.

By 1986, the oil industry was adding 54,000 barrels of MTBE to gasoline every single day. By 1991, the number was up to 100,000 barrels of MTBE per day. Yet oil company studies conducted as early as 1980 showed that the oil industry knew that MTBE contaminated ground water virtually everywhere it was used. There was a $60 million settlement in Lake Tahoe.

Some have analyzed this and said the reason this provision is in here is if the oil companies were going to accept the expansion of ethanol, they had to be given something.

I have been a strong supporter of ethanol for over 20 years, and I will continue to be, but if that is what it is all about, if the only way to increase ethanol is to provide this kind of immunity from liability for the producers of MTBE, it is too high a price to pay, as far as this Senator is concerned.

Mr. President, how much time do I have remaining?

I thank the Chair.

Let me say another word about this MTBE. In these lawsuits that have been filed, it has been shown that these oil companies knew what they were getting into. You would think at some point in time they would have at the Federal level banned MTBE perhaps long ago. It took State leadership for this to happen. In California, Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Missouri, Nebraska, New York, Ohio, South Dakota, and the State of Washington, they took the initiative, when the Federal Government

didn't move quickly, to ban MTBE. They know what it is all about, and they understand the damage that has been done to their communities.

In the State of New York, in Liberty, after fighting for 11 years because they found MTBE in their local well water, they finally got the State to move forward to establish new standards for public water supplies after a lot of families there had serious health problems. That is just a story that is going to be repeated all over, not just in New York.

In New Hampshire last spring, they filed a string of lawsuits against 22 oil companies. If these lawsuits are being brought on product liability theories--the ones that are the most successful--they will be thrown out by this legislation. These lawsuits will be eliminated. The businesses, the families, the individuals who have been damaged by this deadly additive are going to lose their day in court because we are going to mandate it in this legislation.

How does this enhance the energy security of America? It certainly adds to the bottom line of profitability of the oil companies which would be held responsible for their misconduct, I will agree with that. But is it just? Is it fair? Is it something we should be doing, giving blanket immunity to companies that, by their wrongdoing, endanger the health of families and individuals across America?

In the State of New Hampshire, the State sued 22 major oil companies on October 6 because of MTBE. According to Governor Craig Benson, they claim the oil companies have added increasing amounts of MTBE to the gasoline, even though they knew years ago it would contaminate water supplies.

The General Accounting Office told Congress what this was all about. In the year 2002, John Stevenson, Director of GAO's Natural Resources and Environmental Division, testified before a House subcommittee and said that MTBE created health risks which he described as follows:

Such health risks can range from nausea to kidney or liver

damage or even cancer.

He pointed out that a school in Roselawn, IN, discovered students had been drinking water with nearly 10 times the Federal recommended level of MTBE. Officials are trying to determine if the additive came from a nearby tank and whether it is causing the students to have an inordinate number of nosebleeds. These are real health issues, real health problems.

Mr. President, ``60 Minutes'' on January 16, 2000, brought the MTBE issue to the attention of America. They noted at the time there was contamination in some 49 States--as I said earlier, about 35 that we can directly link MTBE to contamination of water supplies. They estimate that MTBE is a contaminate in 35 percent of the Nation's urban wells. A single cupful of MTBE in a 5 million gallon reservoir is sufficient to render the water in that reservoir undrinkable.

In 1995, an Italian study on the effects of MTBE showed high doses of this chemical caused three types of cancer: lymphoma, leukemia, and testicular cancer. We are saying to those hapless innocent victims of MTBE contamination of their water supply that we are closing the courthouse door for their recovery in product liability suits. How in the world can we do this in good conscience? How can we turn our back on these innocent victims across America, these communities forced to pay millions of dollars for the wrongdoing of oil companies, and give them this sort of special giveaway and special break?

I, frankly, don't understand how we can. I don't understand how what started out to be an Energy bill has become something much different. I don't know how a bill which was supposed to give us energy security could be so damaging to our environment in so many specific ways. I don't know how a bill that was supposed to be giving Americans peace of mind about their energy future instead in community after community and in State after State is going to close the courthouse doors to holding oil companies accountable for their misconduct.

This is the worst. This retires the trophy in the Moonlight Mackerel Award. I cannot recall a time when we have gone this far, and that is saying something. There is a way out of our embarrassment, and it is a way I would encourage colleagues on both sides of the aisle to take very seriously. We will have an opportunity on a cloture motion soon to decide whether this bill goes forward. If we can gather 41 Senators to oppose it from going forward, then the bill will stop and be returned to conference or perhaps back to committee for further consideration.

I think that is the way it should be, and the sooner we do that the better. If enough of my Republican colleagues will step forward with Democratic colleagues, we can make that difference.

In case you think this is a partisan issue, the Wall Street Journal, which is not known to be friendly to many Democrats, including this one, went after this bill and criticized it on Tuesday, November 18, calling this Energy bill one of the great logrolling exercises in recent congressional history. In the words of the Wall Street Journal:

The Republican leadership has greased more wheels than a

NASCAR pit crew.

They go on to say:

The bill's total price tag of new outlays is a tidy $72

billion according to Taxpayers for Common Sense. That's not

counting $23 billion in tax giveaways to nuclear, oil, gas,

and coal concerns all over the country, 3 times more than the

President said he would accept.

The Washington Post, November 18:

. . . producers of MTBE, another gasoline additive that is

believed to pollute drinking water, have not only been

exempted from product liability, they also have been

retroactively exempted, a change that cancels out lawsuits .

. .

Across America.

They go on to say:

This bill does not, for example, provide a clear direction

for the development of the electricity grid . . . it does not

encourage the U.S. car industry to manufacture vehicles that

consume less fuel . . . and it does not significantly

encourage energy conservation.

The New York Times says this bill is:

. . . hardly surprising in a bill that had its genesis partly

in Vice President Dick Cheney's secret task force.

It creates:

. . . exemptions for the Clean Water Act, protection against

lawsuits for fouling underground water and an accelerated

process for leasing and drilling in sensitive areas at the

expense of environmental reviews and public participation.

The list goes on. The Anchorage Alaska newspaper calls the Energy bill a setback.

The Atlanta Journal Constitution, quoting Keith Ashdown of Taxpayers for Common Sense, says:

[T]he legislation is ``a smorgasbord of subsidies to big

companies masquerading as energy policy.''

The Atlanta Journal Constitution concludes in its editorial:

This bill is about as bad as it gets. When it comes up for

a vote, members of Congress who remain committed to more

rational energy policy for America and still believe in the

dignity of the legislative body in which they serve shouldn't

hesitate to reject it.

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

The Patriot News in Harrisburg, PA, says:

The energy issue is an upside-down world for sure when they

look at this bill.

They say there is no more blatant example than the 100-percent tax credit available to business owners who purchase gas guzzling Hummers and more than 30 other models of large SUVs. The tax credit was enacted as part of the President's economic stimulus package and was intended to help farmers and other small business, but the tax break is so attractive it has caused a run on vehicles that average 9 to 15 miles per gallon.

We are going to have energy security and energy independence with a tax policy that encourages the purchase of these gas guzzlers?

They go on to say that hybrid cars which offer 50 to 60 miles a gallon are subject to a $2,000 tax deduction, and that is in the process of being phased out. The list goes on and on of editorial comments across America.

I hope we can return to this bill and do it in a sensible fashion. I hope we can put conservation and energy efficiency at the forefront as we discuss energy security. Though there are many good things in this bill, the good things are outweighed by the negatives.

This exemption from MTBE liability is the absolute worst. To say to these

families, these individuals, and these communities that we are going to lock the courthouse door to them no matter what damage they have sustained is a new low.

I yield the floor.

Mr. President, I thank the Senator from Washington.

I believe the Senator from Washington has time remaining and yielded 5 minutes to me.

Mr. President, I thank the Senator from Washington for yielding.

Consider this: You buy a home in a neighborhood and you start hearing about people around your neighborhood who are getting sick. It turns out it is not just a common, ordinary sickness. It is serious; it is cancer. Then you are puzzled and start wondering: Is there something in the water. Isn't that the first thing you ask? Then you find out there is something in the water. It turns out it is something called MTBE. You never heard of it before. They explain to you, it is in the gasoline in your car. Incidentally, at that service station on the corner--the one where they dug up the tank--that tank was leaking. The leaking gasoline from that tank contained MTBE, and it got down so low that it got into the water supply of the village in which you live. The water you have been drinking and giving to your kids contains MTBE.

Studies have shown that MTBE can be cancer causing. Think about that. Totally innocent and unsuspecting, you have now learned that a public health hazard that threatens your family, the value of your home, and your community is linked to something you had never seen before and never heard about.

So what do you do? You are concerned about the health of your family. But you turn around and say: Whoever is responsible for that additive that threatens my family and my home and my community needs to be held accountable.

That is what America is all about. Nobody gets off the hook. So people go to court. They say to the oil company: Did you know that MTBE in your gasoline could threaten public health? Well, it turns out they did. They knew for a long time.

They also knew that if that MTBE got in the environment, that didn't disappear, it stuck around forever. A tiny amount of it could be dangerous to thousands, if not millions, of people. They knew it. They continued to make it. They continued to sell it. They knew all along that people would get sick and some would die as a result of that product.

Should they be held accountable or should they be let off the hook?

Turn to our Energy bill and look at section 1502 which answered that question for America. The makers of MTBE are given safe harbor. It sounds great, doesn't it. Here is what it means. You cannot sue to hold that oil company or maker of MTBE accountable for that deadly additive that is poisoning people and causing cancer if it is a product liability lawsuit--can't do it. But we have decided that in order to strike a political bargain here, we are going to let the oil companies off the hook.

What does the family do? What are they supposed to do about water they can't drink, where people are sick in their neighborhood and where houses are losing value in a community that is scared to death? We tell them to read the Energy bill we are producing here. That is the best we can do for you. We can't answer your problems. We can tell you that we passed a good bill and the oil companies love it.

The Senator from New Mexico came to the floor earlier and very candidly--I salute him for this--said you had better understand the deal. If you want to help ethanol, you had better let the MTBE polluters off the hook. Otherwise, there is no deal.

We have spent 20 years producing ethanol. My State produces more than any State in the Union. I have proudly stood behind this product because I believe it is good, it is healthy for the environment, and it reduces our dependence on foreign oil. But I have said to my friends back home who support ethanol and I will say it on the floor: If the bargain I have to strike for ethanol is to turn my back on families who are dying from disease because of MTBE, the deal is off. The deal is off. That is unjust. It is immoral. It is wrong. If that is what it takes to promote ethanol in America, I will not be part of it; absolutely not. Count me out.

That is a basic injustice, to say those oil companies would not be held accountable for their wrongdoing in order to promote the ethanol industry. It is a deal with the Devil. It is a Faustian bargain, and I don't want to be a part of it, and no Member of the Senate should either.

If this is as good as it gets on the floor of the Senate, shame on all of us. This bill should be stopped in its tracks. We ought to send the people back to the committee and say start over and get the work done. America's energy future depends on thoughtful, visionary policies. It doesn't include this kind of a deal with oil companies to let them off the hook.

How in the world can you turn your back on these families who, through no fault of their own, are facing these terrible health problems? These families can't go to court now to hold the oil companies that knew better accountable. That is what this bill does.

The Senator from New Mexico has been very candid. I admire his candor. But his candor tells the story. We can do a lot better.

I thank the Senator from Washington for her leadership on electricity and protecting our public lands, and other areas.

I yield the floor.

Mr. President, this is a day of considerable activity around the Senate because we have two significant pieces of legislation that are drawing the attention of Members who come to this floor to express their opinions. It is hard to know where to start. There are significant problems and issues with both the Energy bill and the proposed Medicare bill. But because they have only recently been provided--with the Energy bill only in the last 24 to 48 hours finally being made available; with the Medicare bill still not being available in its full form--it is difficult to know what to say because, although we have the outlines of legislation, we don't have the full details, and we certainly don't have adequate time to digest and analyze these important matters.

So, I am sure that, like others, I am somewhat bewildered by the rush to deal with these two bills, to force action before the Thanksgiving holiday on such grave matters before our country.

I want to say just a few words about the Energy bill, and then I want to say a few words about the Medicare bill, because I think it is important that the country understand what is at stake with both of these significant changes.

With respect to the Energy bill, I am strongly opposed to it. I think it is bad for my State of New York and I think it is bad for our entire Nation. Yet I am very disappointed to find myself in this position where I feel compelled to oppose something called an Energy bill. There are provisions in this bill that are good, ones that I have worked on and have supported and am very pleased that they made their way into the final product.

Of course, after the August blackout, I wanted to do everything I could in my power to ensure that New Yorkers never had to go through anything like that again. I thought certainly in the face of a massive blackout that this body and our friends on the other side of Capitol Hill would rally together to take appropriate steps to increase the reliability of our electricity transmission and distribution system. What could be more obvious? The lights went out, and they went out because of failures and problems within that system.

Unfortunately, the Energy conference report did not get that job done, which to me is job one. I know the bill's proponents point to the fact that it includes mandatory enforceable reliability standards. I agree. Reliability rules are important. There should be mandatory rules with penalties, but those rules are not terribly meaningful if the entities that operate and manage the transmission system are unable to plan for and respond to crises. For that, you need a transmission system to be operated on a regional basis so responses can be coordinated on a regional basis and connected up to a national grid. At the very least, you need regional transmission organization.

What have we found out today? There has been a report issued about what happened to cause the blackout. Although details are not yet fully available, we know there were a number of causes for what happened to us on August 14. The fact is, no one appears in charge of the sprawling, heavily loaded, and troubled part of the transmission grid running around Lake Erie. A portion of the Midwestern grid centered in Ohio has long worried industry regulators.

The Energy bill that passed the House yesterday and which is now before us would create operating rules to lessen the risk of blackouts, but it does not overcome that region's fragmented line of authority where control is shared by 23 different power and transmission companies. The bill before us prevents the Federal Energy Regulatory Commission from setting up regional transmission organizations--so- called RTOs--that can effectively coordinate transmission on a regional basis.

If you are supporting this bill because you think it will prevent future blackouts, you had better take another look at the bill.

I start with this point because it is absolutely critical to my constituents and because there has been a lot of talk about how we had to move this bill because of the blackout. But how ironic it is that we move a bill which does very little to solve the problems that have now been analyzed and pinpointed as being at the root of what happened to us in August.

That is just one of many problems with the bill. I join many of my colleagues in expressing dismay about the MTBE provision in the legislation.

First, the bill provides a retroactive liability waiver for MTBE producers. This provision turns the so-called polluter-pay principle on its head. It basically says to communities from New York to California: Guess what; we may have contaminated your groundwater, we may have contaminated your wells, and we are not going to help you clean it up.

I heard some of my friends on the other side say: Wait a minute; it doesn't remove liability from people who negligently used MTBE. The fact is, there is no good use for MTBE. It is a contaminant. It pollutes water. Whether somebody poured it in fast or poured it in slow, the result is the same.

We don't know the full cost of these cleanups. I have read estimates that it could be on the order of $29 billion nationwide. In New York, we are coming to grips with that kind of extraordinary cost, especially in light of the budget problems that we face.

Paul Granger, superintendent of the Plainview, NY, Water District, has provided estimates to my office about contamination on Long Island, one part of our State. But it is a beautiful part that has an underground water aquifer from which we draw water for Long Island. Mr. Granger estimates that testing the 130 supply wells known to be contaminated by MTBE will cost between $990 million to $1.4 billion. If you divide the 3.3 million Long Island population into that cost range, the MTBE drinking water cleanup costs will range from $118 to $315 per person. The cost impact for a typical family of four trying to make ends meet would be from $472 to $1,206 per family.

With respect to the Plainview Water District, Mr. Granger informs me that in the event that MTBE wellhead treatment is required at all of its facilities, the average monthly cost for water will jump by 49 percent.

As far as I can tell, this is another one of these unfunded mandates we like to pass around here. You have problems with water contamination directly caused by a contaminant that was manufactured by large conglomerates. They have deep pockets, and they could at least participate or contribute to helping to clean up water systems on Long Island, across New York, and across our country.

Well, you are out of luck. Is that fair? I don't think it is fair. I don't think it is fair to the people of Plainview, NY. But it is fair if you consider it along those terms for the MTBE producers.

Apparently, that is all that matters to the people who put this bill together. Maybe they don't have this problem in their States, although I have looked at the numbers. It looks as if all but 8 or 10 States are affected by MTBE. The costs associated with cleanup--where is money going to come from? Is this body going to pass on the billions and billions of dollars that are going to be needed to clean up our water systems across our country?

I can't imagine under our current budget situation that is a likely possibility. Therefore, what are we going to have happen? Once again, the taxes on local people will rise--again, another unfunded mandate just like special education, just like No Child Left Behind, and so much else that we passed in this body and then let somebody else pay for it.

New York City, which obviously has a very significant water issue, had been taking action to try to get some help in paying the bills and had sued the MTBE producers. Under this bill, their lawsuits are going to be thrown out of court.

I find it hard to understand why local governments aren't going to be permitted to protect themselves and to get the resources from the people who profited from producing and selling MTBE. I thought that is the way the system worked. Somebody said it is the trial lawyers. I don't think so. Mr. Granger in Plainview, NY, and the city of New York are trying to protect their water supply. Yes, they may have to go to court to do that. Why should they be prohibited in this bill from doing so?

As bad as the MTBE liability waiver is, the bill doesn't stop there when it comes to the MTBE producers. Unbelievably, the bill provides $2 billion in grants to MTBE producers. What about grants for the water systems of our country? What about lending a helping hand to Plainview, NY, and all the other places in my State that are looking at tens of millions of dollars to clean up their water supply?

I can't understand how anybody can go home from this body and go back to wherever they represent and look into the eyes of their fellow citizens and say: Not only did we tell your mayor and your city council and your county leaders they couldn't sue, we are going to give $2 billion to the folks who polluted your water but not a penny for you.

I wasn't on that side of this argument. Nevertheless, that is what is in this bill.

There are many other problems in this bill. The numerous rollbacks of environmental and health protections deeply concern me.

I hope we will be able to revisit those and try to figure out ways to avoid

turning the clock back on making our air cleaner, on helping people avoid the ill effects of pollution and contaminants in their emissions.

But there is so much else in this bill that, unfortunately, I believe will set us back. It is a shame because there are many ways this could have turned out differently, that we could have had the good provisions without so many of the egregious ones being put into this legislation.

I will now turn to the other issue we are confronting in the Senate. I don't see how we can deal with a Medicare bill of this significance at this time when, so far as my office knows, we still do not have the final bill as I came to the floor. We will have a lot of explaining to do to our constituents.

Every Member hoped we could get a bill to provide a prescription drug benefit for our seniors. They need it and they deserve it. I wish I could support this bill. Analyzing what we are able to find out and what the likely impacts will be leads me to conclude that not only will this bill not deliver on the promise of a drug benefit for our seniors but it will mean the slow, but steady unraveling of the Medicare system.

Let's look at some of the people who will be directly affected by this 1,100-page bill. I cannot avoid mentioning this is a long bill. I am not sure anyone has read it yet--maybe some staff person in the basement has read it all--but it is 1,100 pages. I remember another long bill 10 years ago, a bill to change the whole health care system, not just tinkering with Medicare and trying to provide a benefit.

A lot of our seniors are asking: What does this mean? Who can tell me what is in it? How will it affect me? On an individual level, that is an impossible question to answer. We do not know who is a winner or loser. My office is being inundated with calls from constituents, asking: I am a senior in New York City living on a small pension; what does this do for me? Or a widow in Buffalo, with high drug benefits: What does this do for me? We do not know yet.

Here is what we do know. At first glance, there are a number of groups who definitely lose under this legislation. The numbers in the groups add up to about 25 percent of all Medicare recipients, 10 million or so. This bill causes retirees to lose benefits they currently have. At least 2.2 million retirees will lose under this deal and over half of them have incomes below $30,000. In New York, over 200,000 Medicare beneficiaries are likely to lose their retirement benefits.

As a result, my phones are ringing off the hook over this. People are saying: I have good benefits; I do not want this if it will take away the good benefits.

I have to say, honestly, based on my reading, the assessment on the numbers who will lose, I may even be a little conservative. Nevertheless, there will be a loss.

We could have done more to avoid having 2.2 million lose, but the conferees chose instead to spend $12 billion on a slush fund for private insurers and $6.8 billion on tax breaks that will undermine insurance coverage even beyond Medicare.

It is fair to say this bill threatens benefits that people already receive from their employers. There is no argument it is going to take that reality and turn it into something other than what it is. It is a bitter pill to swallow.

This bill also threatens to reduce drug coverage for the 6 million people who are eligible for both Medicare and Medicaid. I have spoken about the so-called dual eligibles before because they are the people about whom I am most concerned. They are the lowest-income, sickest Medicare beneficiaries. Many rely on Medicaid right now for drugs because Medicare does not cover drugs. This bill bars Medicaid from providing drugs not covered by the new Medicare plan. That is a departure from the practice for all other Medicare benefit gaps. This will affect nursing home residents, people with disabilities, and the truly indigent nationwide. We estimate it will affect 440,000 in New York alone.

If we look at the New Yorkers who are eligible for both Medicaid and Medicare, right now they can get access to any drug they need and they can access most any pharmacy. This bill will increase their copays, limit their choice of drugs, and restrict the pharmacy network.

HIV/AIDS patients are particularly affected since this bill only requires coverage of two drugs in any class. HIV/AIDS patients need multidrug cocktails that may require more than two such drugs and often require very specific medicines that are prescribed for their condition. Some drugs they might take or have taken for a period of time could eventually encounter resistance within their bodies. For those patients, this provision on dual eligibles does a grave injustice.

The millions who currently receive coverage through State prescription drug assistance programs, such as the one we have in New York called EPIC, are also at risk. In New York, over 400,000 seniors, nearly a quarter of our Medicare beneficiaries, rely on EPIC, which does not have a formulary and often offers better coverage than what a senior will be able to get under this bill. The compromise in the bill puts seniors in EPIC at risk of a new formulary, higher copays than they have now, and places limitations on the pharmacies they can use. It will force the New York Legislature to change the law and the design of EPIC, assuming they even want to continue it.

I have also asked that seniors who will either have to disenroll from the current EPIC plan or will have to enroll in two plans to continue to qualify for drug coverage be given a grace period so they are not penalized if, in the confusion and disruption of this transition, they do not understand what they have to do to continue to get whatever State program is available because they have to sign up for a new Medicare benefit program to continue with EPIC.

I recently heard from the people who are finalizing the bill that the new formularies, limitations on pharmacies, and higher copays will not only affect seniors in State prescription programs but also veterans who depend on the VA and members of the military in TRICARE, many of whom currently pay very low and in some cases zero copays. Again, the millions who have coverage throughout these programs will be worse off than they are now.

What about the issue of premium support? For those 6 million seniors affected by the premium support experimental demonstration, overall Medicare premiums will increase yet again; this time, as the price of privatization.

MedPAC has studied this issue and found that private plans cherry- pick. That means they pick the healthiest seniors to be in their plans. That is how they make a profit. If you are insuring the healthiest people, you do not have to pay as much money as if you insure people who are not so healthy. Therefore, they try to attract the healthiest beneficiaries. That way, they get a big payment for those healthy beneficiaries and they, frankly, do not have to pay much out when it comes to beneficiaries needs.

The GAO has said the population is so much healthier that the Medicare+Choice plans are now overpaid by 19 percent when one considers the health condition of their beneficiaries.

If fee-for-service has to compete and it is the only plan willing to continue to serve the sickest and costliest patients, anyone who wishes to keep their regular fee-for-service Medicare will see their cost rise, probably up 5 percent each year. But who knows how high that percentage will go in the future? Ultimately, the 6 million seniors across the country who are going to be put in the demonstration experiment will pay more just to maintain their Medicare benefit.

This is not just an academic exercise for me because New York is likely to be one of the States with residents chosen for this experiment. Our seniors will be used as guinea pigs, so to speak, in the rush to try to in some way prove that Medicare, which has the most cost-effective delivery system, which has provided a guaranteed benefit that is the same across the country now for nearly 40 years, is somehow inadequate and unable to really deliver the goods. So we are going to see what happens when over 500,000 New York seniors who reside in areas that could be chosen for premium support are thrown into that mix, and told that you are just going to have to pay those higher prices, and just shovel that money out the door to the HMOs and other health insurers that are going to be standing there with their hands out.

But the bill does not just create a radical scheme for Medicare; it really does take aim at our whole system of insurance by the inclusion of these so-called HSAs. They used to be called MSAs, medical savings accounts; so now I guess they are health savings accounts. The new name does not change the fundamental problems with these proposals.

By promoting these accounts, these provisions will allow wealthy and healthy seniors to get tax benefits. But it would also mean increased premiums of as much as 60 percent for those who wish to keep their current private insurance.

To arm the enemies of Medicare, there is a so-called cost containment provision which designates an arbitrary cap on Medicare. We are bound to hit that cap as the baby boomers age. Once we hit it, that guarantees that current Medicare benefits will be on the chopping block year after year. So I have to send out a big warning to everybody on Medicare, but also to those like me who are not that far away from Medicare, that we are looking at the dismantling of this program, and we are moving back toward a survival of the richest and the fittest.

Now, considering all those harmed by the bill, you would think we would be getting a generous drug benefit out of all of this. Well, in fact, we do not. Many seniors will be paying more out of pocket for drugs under the skimpy benefit in this proposal than they are now without any so-called drug benefit at all.

Every single senior in this country will pay more out of pocket than they do now for doctor services in 2005. That means that before the drug benefit even starts, seniors will be hit with increased cost- sharing. Seniors can expect a 10- increase in their Part B deductible right away, and yearly increases after that for the first time in history. Those increases are pegged to grow at a rate faster than seniors' Social Security checks.

In addition, the drug premium may be $35 a month, on average, but it increases so quickly that seniors will be left paying more and more for little additional benefit.

As we know, this bill creates a new insurance structure where seniors will continue to pay premiums for part of the year even though they are receiving zero benefit at the same time. Now, I don't know. I don't think we have ever passed an insurance plan in this country where you are told you have to pay all year but there are going to be a few months in the year that you don't get sick, don't get hurt, don't have an accident because you will be out of luck.

There is not an insurance commissioner in this country who would gladly allow such an insurance policy to be marketed in their State. Yet here we are. Seniors will pay premiums, even in the so-called gap months, when they have no benefits.

Then the $35 premium goes up to $40, and then nearly doubles, reaching $60 by 2013. I think that is a burden for seniors if the benefit they return is not guaranteed all year, every year, and if it, in and of itself, may not even meet the cost they put into the system.

I have heard from some analysts that the break-even point for seniors in this bill is $835. Now, 40 percent of seniors spend less than that on drugs each year. According to the analysis I was given, this bill will actually represent a net loss to 40 percent of our seniors if they join. That is a lot of seniors. We are talking about 16 million or so. They will end up paying more in costs in premiums than they receive in returns. So when all is said and done, this is a bill that decreases some people's benefits, eliminates other people's benefits, and costs more to many.

I think history has demonstrated the political repercussions of such experiments that go right to the heart of what people value the most; namely, their health.

But now, even though there are many losers in this bill, I want to be fair. There are also some winners. They are many industries and some individuals. But there are winners. A recent study found this bill will give drug companies a $139 billion windfall. Because there is no cost containment in the bill, the drug companies are assured of their profits.

Furthermore, the health plans--already overpaid 19 percent compared to what Medicare is paying for seniors in traditional Medicare--will receive another 7 percent on top of that in addition to the $12 billion slush fund in this bill.

Now, there may be some help in this bill for some of the 12 million or so Medicare beneficiaries without any kind of drug coverage--not through Medicaid, not through Medicare+Choice, not through the VA, not through TRICARE. They simply do not have it. Maybe some among those 12 million might be winners but only if they make it through a thicket of confusion and hit a moving target.

Because, let's face it, this is a very complicated bill. It is going to be very complicated to implement. I remember hearing a lot of complaints about that bill of 1,300 pages, the Health Security Act back in 1994, and that dealt with the entire health care system, not just with seniors.

Now, all signs show this bill is not seeking to add prescription drugs; it is seeking to change the whole health care system. I have to give them credit, they got it to 200 pages less, so that is some accomplishment.

I think we ought to look at what is going to be facing seniors as they try to make decisions about their health care.

What I have done is to take the tales of two seniors, to look at what the differences would be, and what a typical senior would face when trying to determine what they could have under this bill.

The first tale concerns a retired small business owner in New York City, an urban senior. Now, this senior has many choices in the first year, 2006. He looks at his choices. He has PPOs and HMOs and private drug plans and Medicare. He has choices. So he takes a look at his choices and decides to stay in traditional Medicare. He picks the private, stand-alone drug plan with the lowest premium of $35 a month.

He gets into that plan.

Then he discovers, too late, that his drug that he has been taking for a few years is not on the private insurer's formulary. So even though he has had bad side effects from the drug that is listed, he has to go through a lengthy appeals process. Although he eventually wins his battle with the private insurer, he has had to pay out of pocket for the drug in the interim.

So suppose what he is suffering from is, let's say, diabetes--a very common disease among our seniors. In the process of trying to get on the right drug, trying to pay for the drug he has been on, he is locked into this plan and he cannot change until the next year.

Now, let's go to year 2, 2007. So let's say the private drug insurer plan the senior was in has dropped out of Medicare, which happens all the time because its low premium, the $35 a month premium, could not sustain enough profit. But our elderly gentleman does not mind because he wanted to switch anyway. He did not want to stay in that drug plan because they did not treat him well.

So he chooses another private drug insurer and he pays a higher premium. This time he decides to go with a more expensive premium, thinking he is going to get more of what he needs. He pays $50 for drug coverage on top of his now $79 Part B premium. But he makes absolutely sure his drug for diabetes is on the plan's preferred drug list and he can continue to see his doctor.

During the year, however, the private insurer changes its formulary-- there is no rule that says it cannot--so that his drug gets assigned a higher coinsurance amount. Although the plans can change what they cover during the year--it can be the old bait and switch: Sign up with us. Your drug is on the formulary; and 6 months later, no, it is not-- the senior cannot get out of the plan until the year is up.

So year 3, our senior does the math. This is a man who has really been working on this. He has spent a lot of his waking hours trying to figure out this maze of so-called benefits.

To stay in traditional Medicare, he will pay the monthly premium of $83 in 2008, plus at least $50 for prescription drugs, in addition to relatively high copayments. The private insurer he was with has dropped out. If he joins an HMO, he can pay $75 for base Medicare coverage, plus $42 for prescription drug coverage. Now he is up to $192 a year extra to stay in regular Medicare, and he has to worry about whether or not the private drug plans are going to change on him again as they have in the past.

You could make this even worse because suppose that the HMO plan no longer recognizes his doctor, and if he joined he would be stuck again for another year. It just goes on and on. I am not looking forward to explaining this to my 84-year-old mother. We are going to have to set up a whole gigantic bureaucracy of individual case counselors to try to explain to seniors what this all adds up to. And this maze, this totally confused picture, is what is available in an urban area where at least there are choices for seniors. Let's look at what happens to a woman who lives in upstate New York.

Let's pick an 85-year-old widow who has had a stroke. She hasn't had drug coverage before. She has lived on a Social Security payment and a small pension from her late husband. She took regular trips across the border to Canada, though, because we are lucky in upstate New York. We can just go right across that border, or we used to be able to go right across that border. She could afford those drugs because they were a lot cheaper, and they were absolutely the same drugs. She takes five different drugs on a daily basis.

In the first year, 2006, no private HMOs or PPOs plan to come to her town. She is up in the north country, up near the Adirondack Park. For anybody who has been up there, it is really beautiful. It is isolated, and it is really rural. She loves living there, and she wouldn't live anywhere else.

Well, she has never had any of these private plans in her community before, and she doesn't know what is going to be available to her. So two of the new private drug-only plans are offered. One has monthly premiums of $60; the other has monthly premiums of $50. The lower premium plan has a complicated set of copayments that tends to be higher, when you add it all up--assuming somebody helps you figure out how to add it all up--than the higher premium plan. But she goes ahead and chooses the $50 plan, and she sees some relief. But she calculates that with annual drug costs below the catastrophic benefit, she is still not getting a very good deal because for her, she is still paying about 70 to 80 percent of what she had before.

Now year 2--and this happens all the time in rural areas, as we know--the private plan drops out of Medicare. That is a common experience for rural residents. So Medicare must provide a fallback plan. This plan seems quite good to our widow. She pays $5 less than what she paid in the private plan the previous year, and her prescription drug benefits are covered. But year 3 the local papers announce that the payment rates for HMOs, which are 30 percent above the local cost of traditional Medicare, have finally attracted an HMO to the area. Remember, we are pumping all this premium subsidy out there. We have billions and billions of dollars to entice folks to come to the North Country and other areas.

Well, this creates a dilemma for our senior because she now has to determine with whom she can go and who is going to take best care of her because if the HMO comes, maybe it will attract some competition. And let's say that another private drug-only insurer shows up. Medicare is providing bonuses to private plans who come to the area. So as a result, remember, even if it only lasts for just a year, even if it doesn't have your drug on the formulary, even if it no longer is affordable for you, once you have two competing private insurers, there is no fallback plan as an option. So the senior faces the so-called choice of monthly premium increases of $24 to stay in traditional Medicare or just $1 more per month to join the HMO. Given that this difference is $288 a year, it is not even a choice. That would wipe out her annual increase in Social Security benefits.

She feels forced to go into the HMO. She loses her doctor, she loses the drug that she needs, and she has to go through an appeal. I can guarantee you, there is not going to be a lot of appeals courts in isolated areas like the North Country. So it is going to take a while even to go through this. Now this 87-year-old woman is having to fight for, litigate for, argue for the drug her doctor says she needs, or her former doctor, because she can't go to him anymore because there is no affordable regular Medicare fallback. So she is stuck with one of these two private plans. Here today; gone tomorrow.

The lesson I draw from this is whether you live in a rural or an urban area, your choices are tilted toward enrolling in HMOs and PPOs. I think that is a shame.

Medicare's strength, a reliable system of coverage and predictability, will have been replaced by a complex, insured-driven, cherry-picking system. There may be some seniors who will be helped under this bill. I hope I am healthy enough when I reach that age that I am not going to be disadvantaged by whatever we have in place, but I find it hard to explain how we could end up with a bill that is so much narrower, so much more uncertain than the bill that received a majority of votes in the Senate last year, the Graham-Miller-Kennedy bill.

Among those who might gain under this bill, they are not only small in number, they don't even know who they are. I asked seniors this morning at a big meeting: Who among you knows for sure that you won't get hit by the fine print in the bill? How many of you really believe you are winners under this bill? Don't you wonder why nobody is really telling you everything you need to know to be an informed citizen, to make a decision in your own mind that you can then tell your elected officials what you think should be done?

We are on a course to passing a bill where no senior watching or listening to this debate is going to be sure that he or she will be helped. We have pushed it past the next election so the full burden of trying to figure it out won't really fall on anybody until 2006. And if you look at this chart, it is kind of hard to draw any other conclusion. If you are a retiree, you would have no idea of knowing whether your former employer will keep you or drop you. If you are poor, you be poor enough to get coverage under Medicaid. And if you are, you may no longer get all the coverage you need for your needs. If you are sick, will you be sick enough to be covered under Medicaid, and under this bill will Medicaid really cover your particular health care needs? If you are in a nursing home, are you going to be really left to fend for yourself in a nursing home in a State prohibited from providing Medicaid wraparound funding. And your health needs will compete with those of children and other needy people? If you are in a State prescription drug program, you will pretty likely be a loser as well. If you are in the premium support guinea pig category, good luck, because I think you will see that you are going to have an amazing obstacle course to try to run.

I must say many of the obstacles confronting our seniors are triggered by decisions we have had made for us in this conference that was quite small in number and exclusive in membership and came out with a product that is going to be very hard to defend. It will be particularly hard to defend if we look down the road and we see the threats to Medicare on the horizon.

I have heard colleagues say--and I respect this--that this bill is not perfect, but it is all we could get. I understand that perspective. There is good and bad in every bill. I don't think since I have been here I have voted for a perfect bill or voted against a totally bad bill. I understand that perspective. I am grateful this bill does take steps to help our rural and small community hospitals to resolve some of our teaching hospital issues and to address the absolutely compelling physician payment issues. We should be addressing those important matters, but not in the context of a bill which will further undermine the program providing the capacity for hospitals and doctors to provide decent care at an affordable cost.

This bill has too many flaws for us to go forward. The privatization scheme that is tied into this bill, in a box with a big bow saying prescription drugs, is one that will make structural changes to this program which has been the bedrock of protecting our seniors and guaranteeing them the health care they have needed.

So I hope we can still salvage this bill. I hope we can still try to keep faith with our seniors. I think we should postpone dealing with it beyond the forced deadline of right before Thanksgiving, so that everybody has a chance to read and evaluate it.

But if we are required to go forward, then I certainly cannot be a party to a bill that I think will undermine health

care for our seniors, fail to provide the benefit that is advertised, and lead to the slow and steady unraveling of Medicare, which I consider to be one of the great achievements of our country in the 20th century.

On behalf of the hundreds of thousands of seniors I represent, who are definitely losers under this bill, I have to respectfully request that we go back to the drawing board, that we try once again to do a job on a bill that will really help our seniors, and that we not take steps that will undermine the guarantee of health care under Medicare.

I yield the floor.

Mr. President, we are having a crisis in the West. Actually, we are having a crisis anywhere that there are people who raise livestock. The crisis comes about as a result of neither fair trade nor free trade--in fact, the elimination of both. This bill is designed to make a correction in that. It is a clarification. I do not think the clarification would be necessary if enforcement were done, but this bill will clearly set out that a part of the problem can be solved.

Part of the crisis that particularly the small farmers and ranchers who raise livestock have is the drought we are having in the West. We are in the fourth year of a drought right now. That is resulting in a lot of for sale and auction signs going up on ranches. This is partly because they are not getting the proper price for their product. It is a controlled market; it is not a free market.

To bring it to a level that more people would understand, imagine trying to sell a house where the U.S. tradition might have changed so that everybody worked through a realtor, or at least 80 percent of the people worked through a realtor, and the realtor did not really show the house to other people. The realtor bought the house and then put it on the market themselves. The realtor had the capability to set the market price because of the other houses they owned.

That is what is happening with captive supply. There are a lot of technicalities to it. I sincerely hope my colleagues will take a look at it and understand it a little bit. It is very difficult. It is very detailed. It is very complicated to understand, but it is very important to understand. It is important to understand on behalf of the ranchers and consumers.

Now, one would think that if the price were being driven down for the rancher, those of us buying meat at the supermarket would get it for less. But if one tracks the price the ranchers are getting and the price the consumers are paying when the price goes down for the rancher, everything stays level for the consumer. So where is the money going? It is staying in the middle somewhere. We know where it is staying, and we know why it is staying, and it is control of the market. We do not usually allow that in the United States, but in this instance we allow it.

So 80 percent of the market is controlled by four packers, and they set the price. They set it in a way that the rancher has no control over it whatsoever. So the ones suffering this drought and suffering all the risk are the ones receiving the least money from the entire process. We do not believe in that in America. My bill is designed to change that.

Packers who practice price discrimination toward some producers and provide undue preferences to other producers are clearly in violation of the current law, but this law is not being enforced. What we are left with is unenforced laws or no laws at all to protect the independent producer. Since the Packers and Stockyards Act is not being enforced, and the cost to enforcing the law on a case-by-case basis in the courts is expensive and time consuming, today I propose the Senate take action.

Most laws require enforcement. They are like speed limits on a country road. No one pays attention to the sign unless the driver is sharing the road with an agent of the law who will enforce it--like a police car. This section of the Packers and Stockyards Act is like a sign on the road of commerce that no one is paying any attention to because the police are too busy doing something else.

The bill I am introducing today is not just another sign on the road, it is a speed bump. It does not just warn cars to go slower, it makes it more difficult for them to speed. Does it solve the whole problem? No, but it is one speed bump on the way to solving the problem.

My bill does two things to create the speed bump. It requires that livestock producers have a fixed base price in their contracts. It also puts these contracts up for bid in the open market where they belong. Under this bill, forward contracts and marketing agreements must contain a fixed base price on the day the contract is signed. Now, in other businesses, that sounds like how we already operate. But it is not the way the packer operates. Producers are only given a contract that says they will get a certain dollar above the average at the time of the slaughter. And then if the person who controls the market drives the price down, the average can be well below what they ever anticipated it would be.

Under this bill, forward contracts and marketing agreements must contain a fixed base price on the day the contract is signed. This prevents packers from manipulating the base price after the point of sale. You may hear allegations that this bill ends quality-driven production, but it does not prevent adjustments to the base price after slaughter for quality grade or other factors outside packer control. It prevents packers from changing the base price based on the factors they do control.

Contracts that are based on the futures market are also exempted from the bill's requirements. In an open market, buyers and sellers would have the opportunity to bid against each other for contracts and could witness bids that are made and accepted. That would be pretty unique if they knew what the prices were on the products, particularly when it is captive supply. Whether they take the opportunity to bid or not is their choice. The key is they have the access to do so.

I have worked on a number of bills and we have had success getting them through the Senate, and then the lobbying effort in conference knocks them out. That has sincerely convinced me there is a controlled market. Every attempt we make to provide a little speed bump is taken out and it is usually in conference. It usually passes the House, passes the Senate--not in identical form--but it has trouble in the conference committee. That is because there are a lot more lobbyists for the packers than there are for the small ranchers and livestock producers.

My bill also limits the size of the contracts to the rough equivalent of a load of livestock, meaning 40 cattle or

30 swine. It does not limit the number of contracts that will be offered by any individual. This key portion prevents small- and medium- sized livestock producers like those found in Wyoming from being shut out of deals containing thousands of livestock per contract. The more animals you have in the contract, the less likely it is that people can freely participate in the bidding process. It eliminates people.

We are sticking a small number of animals in each contract, but lots of contracts will help us to arrive at a more fair price for the livestock. Requiring a firm base price and an open and transparent market ends the potential for price discrimination, price manipulation, and undue preferences, the things mentioned in that 1921 act.

These are not the only benefits in my bill. It also preserves the very useful risk management tool that contracts provide to livestock producers. Contracts help producers plan and prepare for the future. My bill makes contracts and marketing agreements an even better risk management tool because it solidifies the base price for the producer. He is not guessing what he will sell it for; he has an exact price. Once the agreement is made, a producer can have confidence on shipping day in his ability to feed his family during the next year because he will know in advance how much he can expect to receive for his livestock.

This bill also encourages electronic trading. An open and public market would function much like the stock market where insider trading is prohibited. The stock market provides a solid example of how electronic livestock trading can work to the benefit of everyone involved. For example, price discovery in an open and electronic market is automatic. We tried a number of things to get price discovery so that the producers out there would have an idea what the true market is, whether it is being bought from other producers or being bought out of the captive supply. Every attempt we have made has been thwarted. They have found ways to put little loopholes in regulations so they do not have to report prices. That is not fair. It does not provide an open market.

Captive supply is still weighing on the minds and hurting the pocketbooks of ranchers in Wyoming and across the United States. Wyoming ranchers encourage me to keep up the good fight on this issue on every trip I make to my home State. I wish I had time to share some of the heartrending stories of the way they have been taken to the cleaners on these unique contracts they are forced to sign if they want to be able to sell their product.

The economic soul of Wyoming is built on the foundation of small towns and small businesses. All livestock producers, even small and medium ones, should have a fair chance to compete in an honest game that allows them to get the best price possible for their product. We must do everything we can to keep our small producers in business and protect the consumers. If there was a fluctuation out here on the other end where the consumer is, we might not have quite the same concern, but the consumer is not getting the benefit of this fixed market. So we need to change the fixed market.

We need to change captive supply. My bill removes one of the largest obstructions preventing livestock producers from competing, and that is formula price contracts. I ask my colleagues to assist me in giving their constituents and mine the chance to perform on a level playing field. It will help the economy of the entire United States. I ask for your help on this bill. We will be circulating some letters and further explanations so that we can have cosponsors; and pass the bill unanimously, I hope. I know that is a little difficult to obtain around here, but this is a very important issue and every State has livestock producers. It is time we took care of the livestock producers in a way that did not cost us a lot through enforcement.

I would love to see improved enforcement. I know there are other priority issues on enforcement, particularly since September 11, so I have tried to bring a little speed bump to provide accurate pricing. I ask for your help on the bill.

To reiterate:

Whenever there is a crisis the media has always served to focus the Nation's attention on the problem and who has been affected by it. Then it has been up to us, in the Congress, to review the problem and determine whether or not there was anything we could do to ease the suffering and repair the damage to someone's property and their livelihood.

Most of the time, when the media spots a crisis it is of such a magnitude that the pictures we see of the suffering are devastating and powerful. The images clearly cry out to us to take action and do what we can to restore, as much as possible, the lives of these people to normalcy.

We have all seen in these past few days the pictures of the devastating tornadoes that have wreaked havoc wherever they have touched down. Story after story has appeared in print and on television showing property destroyed, places of business torn in pieces, jobs in jeopardy and lives forever changed by the fury of a few moments of severe weather. Tornadoes do not last a long time, but they leave a path of devastation in their wake that leaves those affected by it forever changed.

Our thoughts and prayers go out to all of those who have been so affected and our hopes that they will be able to put their lives back together and go on as difficult as that will be to do.

As we view the devastation of those tornadoes, there are those in my State who have seen their livelihoods drastically affected by weather and unfair market policy, but they have not been so visible to us because we have not seen their faces on the nightly news or read their stories in the national newspapers. That is because not everyone who has seen their livelihood so drastically affected can be portrayed with quite the same kind of powerful images that depict those who have been touched by the ravages of severe weather patterns. Some problems that destroy livelihoods and weaken industries are far more subtle and more difficult to track.

Instead of being destroyed by a single blow, the industry I am referring to is being slowly put to death by the cruelest of methods-- thousands of small cuts brought on by the lethal combination of several years of drought, ambiguous regulations that are too easily taken advantage of and the lax enforcement of existing law which has allowed for the manipulation of the system to one group's advantage.

Our Nation's ranching industry is in trouble, and, due to the slower pace with which it has been affected, the only stark images we will see of the intensity of the problem are the ``for sale'' or ``up for auction'' signs that acknowledge the closing of a family owned ranch and the end of a family's dream that lasted for generations as the land and the business was handed down for many, many years.

Right now, as I speak, if you are a rancher in the West, you have two major problems affecting your ability to earn a living and provide for your family. The first is the continuing drought which has made it so difficult for ranchers to tend their cattle and provide them with good, affordable grazing.

The second is a regulatory nightmare that has held livestock producers captive by the chains of unfair and manipulative contracts. It is this regulatory nightmare that must be addressed, and which brings me to the floor today as I offer legislation to break the chains and require livestock contracts to contain a fixed base price and be traded in open, public markets.

So, what is this regulation that is destroying the health of our family ranchers? It's a practice called ``captive supply,'' a business practice not well known to those outside of the industry, but a practice that has had a tremendous impact on the ranchers of the West.

If you have not heard about the problem, I must point out that our ranchers have tried to bring it to our attention, but we have not fully focused on their needs. Whenever I travel to Wyoming, or hold a town meeting, or go over the week's mail that I receive from my constituents, I hear the cries for help from our ranchers in Wyoming, and throughout the West. One by one, and without exception, they are all clamoring for attention and relief so they can continue the work that so many in their family have done for so many years.

I could bring a stack of letters that come from people all across my State

about the problems they face. But, in the interest of time, I will read a small excerpt from one that will give you an idea of how bad things are in the ranching industry as our ranchers try to deal with captive supply.

A letter I received from a rancher in Lingle said that the issue of captive supply needed to be reviewed and addressed because it was ``slowly but surely putting small farmers/feeders out of business.'' He then added:

Until the existing laws are enforced in this area of

illegal activities, all other plans or laws will be of very

little consequence.

So what is captive supply and how is it harming our Nation's ranchers to such an extent? Simply put, captive supply refers to the ownership by meat packers of cattle or the contracts they issue to purchase livestock. It is done to ensure that packers will always have a consistent supply of livestock for their slaughterlines.

The original goal of captive supply makes good business sense. All businesses want to maintain a steady supply of animals to ensure a constant stream of production and control costs.

But captive supply allows packers to go beyond good organization and business performance--to market manipulation--and this is where the problem lies.

The packing industry is highly concentrated. Four companies control more than half of all U.S. hog slaughter and more than 80 percent of U.S. fed cattle slaughter. Using captive supply and the market power of concentration, packers can purposefully drive down the prices by refusing to buy in the open market. This deflates all livestock prices and limits the market access of producers that have not aligned with specific packers.

We made an attempt to address the problem of captive supply on the Senate floor, but the amendment to ban packer ownership of livestock more than 14 days before slaughter did not survive the conference committee on the farm bill. However, the problems caused by captive supplies are alive and well, just as Wyoming producers have testified to me in the phone calls, letters, faxes and emails I receive from them. Although I supported the packer ban and still do, I do not think that banning packer ownership of livestock will solve the entire captive supply problem. Packers are using numerous methods beyond direct ownership to control cattle and other livestock.

Currently, packers maintain captive supply through various means including direct ownership, forward contracts, and marketing agreements. The difference between the three is subtle, so let me take a moment to describe how they differ. Direct ownership refers to livestock owned by the packer. In forward contracts, producers agree to the delivery of cattle one week or more before slaughter with the price determined before slaughter. Forward contracts are typically fixed, meaning the base price is set.

As with forward contracts, marketing agreements also call for the delivery of livestock more than one week before slaughter, but the price is determined at or after slaughter. A formula pricing method is commonly used for cattle sold under marketing agreements. In formula pricing, instead of a fixed base price, an external reference price, such as the average price paid for cattle at a certain packing plant during one week, is used to determine the base price of the cattle. I find this very disturbing because the packer has the ability to manipulate the weekly average at a packing plant by refusing to buy in the open market. Unfortunately, marketing agreements and formula pricing are much more common than forward contracts.

In fact, the data published by USDA's Agricultural Marketing Service indicates that in the first week of May 2003, 39,149 of the cattle slaughtered were sold through a forward contract. By comparison, 207,955 of the cattle slaughtered were marketed through formula pricing marketing agreements. Packers were using five times as many formula pricing marketing agreements as forward contracts to purchase their slaughter cattle. As we can see, packers use more marketing agreements because of the advantages those ambiguous contracts give them over producers.

In the same week, 36,899 of the cattle slaughtered were directly owned by packers. These numbers demonstrate that the problem of captive supply is far more extensive than just packer ownership. In the first week of May, packer owned cattle only comprised 13 percent of captive cattle slaughtered. This is why we must act to solve the entire captive supply problem.

I realize it may be difficult to grasp the seriousness of the situation if you are not familiar with the cattle market. Most of us have not signed a contract to sell a load of livestock, but many of us have sold a house. To illustrate the seriousness of the problem, let's explore how you would sell a house using a formula-priced contract in a market structured like the current livestock market.

It is May, and you know you will be selling your home in September. As a wise seller, you want to find a buyer for your home before that time. It turns out that other people do not really buy homes from each other anymore. In fact, four main companies have taken over 80 percent of all real estate transactions. You really have no choice but to deal with one of these companies.

One of them offers you a contract, stating you will receive $10,000 over the average price of what other, similar homes are selling for in your area in September. To manage your risk and ensure a buyer, you have just been practically forced to sign a contract that doesn't specify how much you will receive for your house.

That tingle of fear in the pit of your stomach becomes full-fledged panic when you close the deal in September. You see, the four real estate companies have been planning ahead. They decide to pull away from the market. All the homes selling in September that are not contracted to the companies flood the market and the price for homes in your area drops $12,000. By trying to manage your risk, you sold your home for $2,000 below average.

As a homeowner, you would be outraged, wouldn't you? You would want to know why anyone had the ability to legally take advantage of you. Livestock producers have the same questions when they lose to the market pressures applied by captive supply. Captive supply gives packers the ability to discriminate against some producers. And those producers pay for it with their bottom line. At the same time, packers use contracts and marketing agreements to give privileged access and premiums to other producers regardless of the quality of their product. These uses of captive supply should be illegal. In fact, they are.

Section 202 of the Packers and Stockyards Act states in (3) (a) and (b):

It shall be unlawful for any packer with respect to

livestock . . . to:

(a) Engage in or use any unfair, unjustly discriminatory,

or deceptive practice or device; or

(b) Make or give any undue or unreasonable preference or

advantage to any particular person or locality in any

respect, or subject any particular person or locality to any

undue or unreasonable prejudice or disadvantage in any

respect.

Packers who practice price discrimination toward some producers and provide undue preferences to other producers are clearly in violation of the law. But this law is not being enforced. So what we are left with are unenforced laws or no laws at all to protect the independent producer. Since the Packers and Stockyards Act is not being enforced and the cost of enforcing the law on a case-by-case basis in the courts is expensive and time-consuming, today I propose that the Senate take action.

Most laws require enforcement. They are like speed limits on a country road. No one pays the sign any attention unless the driver is sharing the road with an agent of the law who will enforce it--like a police car. This section of the Packers and Stockyards Act is like a sign on the road of commerce that no one is paying attention to because the police are busy doing something else. The bill I am introducing today is not just another sign on the road. It is a speed bump. It does not just warn cars to go slower, it makes it much more difficult for them to speed.

My bill does two things to create the speed bump. It requires that livestock producers have a fixed base price in their contracts. It also puts these contracts up for bid in the open market where they belong.

Under this bill, forward contracts and marketing agreements must contain a fixed, base price on the day the contract is signed. This prevents packers from manipulating the base price

after the point of sale. You may hear allegations that this bill ends quality-driven production, but it does not prevent adjustments to the base price after slaughter for quality, grade or other factors outside packer control. It prevents packers from changing the base price based on factors that they do control. Contracts that are based on the futures market are also exempted from the bill's requirements.

In an open market, buyers and sellers would have the opportunity to bid against each other for contracts and could witness bids that are made and accepted. Whether they take the opportunity to bid or not is their choice, the key here is that they have access to do so.

My bill also limits the size of contracts to the rough equivalent of a load of livestock, meaning 40 cattle or 30 swine. It does not limit the number of contracts that can be offered by an individual. This key portion prevents small and medium-sized livestock producers, like those found in Wyoming, from being shut out of deals that contain thousands of livestock per contract.

Requiring a firm base price and an open and transparent market ends the potential for price discrimination, price manipulation and undue preferences. These are not the only benefits of my bill. It also preserves the very useful risk management tool that contracts provide to livestock producers. Contracts help producers plan and prepare for the future. My bill makes contracts and marketing agreements an even better risk management tool because it solidifies the base price for the producer. Once the agreement is made, a producer can have confidence on shipping day in his ability to feed his family during the next year because he will know in advance how much he can expect to receive for his livestock.

This bill also encourages electronic trading. An open and public market would function much like the stock market, where insider trading is prohibited. The stock market provides a solid example of how electronic livestock trading can work to the benefit of everyone involved. For example, price discovery in an open and electronic market is automatic.

Captive supply is still weighing on the minds and hurting the pocketbooks of ranchers in Wyoming and across the United States. Wyoming ranchers encourage me to keep up the good fight on this issue on every trip I make to my home State. The economic soul of Wyoming is built on the foundation of small towns and small businesses. All livestock producers, even small and medium-sized ones, should have a fair chance to compete in an honest game that allows them to get the best price possible for their product. We must do everything we can to keep our small producers in business.

My bill removes one of the largest obstructions preventing livestock producers from competing--formula-priced contracts. I ask my colleagues to assist me in giving their constituents and mine the chance to perform on a level playing field.

I yield the floor.

Mr. President, I am very glad I was present today to hear the speech of the distinguished Senator from Illinois so that immediately after it I might speak a few words.

First, for everybody in this Chamber who wants ethanol--now, I am making the point very clear that I am not talking about whether ethanol is the greatest, whether ethanol is the least, or whether ethanol is the best thing in the world. I am just addressing the millions of people in this country, most of them farmers, many thousands in the State of the occupant of the chair, who would like to see ethanol, since it would do great things for them and at the same time diminish our demands on gasoline from crude oil. Now I am speaking to them.

Whatever has been said by the good Senator from Illinois, all the farmers in his State who produce corn and the other products should know there is no way to get an ethanol bill of any consequence without addressing the issue of MTBE. The way the issue has been addressed by the Senator from Illinois on MTBE is wrong, but nonetheless let us just talk about the reality of it. Do my colleagues want a major ethanol program for America? The answer is overwhelmingly yes. Then go to conference with the House like we did and say to them: We want an ethanol bill like the one that passed the Senate.

They will say: Not on your life, unless you decide to treat those who produce MTBE, a forerunner to ethanol, fairly.

We said: What does that mean?

They said: For those who have used MTBE properly, they shall not be liable for any damages that result from MTBE.

I am reminded in my home State, there was a product liability case against a company that delivers more coffee and hamburgers than any other company in the world, McDonald's. The suit was against McDonald's for delivering coffee to the front window of a car and then spilling the coffee on the lap of the purchaser. The purchaser sued McDonald's because the coffee was too hot.

They did not sue Folgers Coffee for making the coffee. They sued McDonald's for delivering the coffee that was too hot. I think that most people would say that is about right. If the coffee was too hot, then let a jury decide whether they ought to be delivering coffee that is so hot. But what if they would have gone off and sued Folgers Coffee because they made the coffee that somebody used wrongly, to wit, made it too hot and burned the legs of a purchaser of hot coffee? That is exactly what is going on with MTBE.

I am not a proponent of it. I did not know anything about it until I got intimately involved in this legislation and then I found that MTBE is a product that has been authorized and prescribed by the Federal Government. It is something that is supposed to be used because the Government says you can use it and it is all right.

In response to the U.S. House insistence, all we have done is say if someone uses MTBE, as prescribed by the Federal Government, they are not liable in damages. We are very narrow. As a matter of fact, we have unquestionably said if one uses it wrong, if they negligently use it, if they spill it, if they throw it around, if they do not handle it properly and damages result, they can be sued.

I do not think that is exactly what my friend from Illinois said, but I believe that is what this legislation says. I believe that is what we did, and I believe there is no other way to do it.

Then we said in the meantime, it is going to be phased out. That is in the legislation, too, that in a certain number of years it cannot be used anymore. Even if it is used right, it is not going to be used anymore. There is something that takes its place.

Across this land, people file lawsuits in product liability cases and otherwise about many things, and we all know about it. Sometimes we look at a lawsuit and we are abhorred to think they could take such a case to court. Sometimes we think, right on, somebody really messed up and they ought to pay for it. But when the House said to us, if you want an ethanol bill, you have to look at litigation that is ensuing out there in America where MTBE producers are getting sued for a valid, appropriate product, okayed by the Federal Government, used properly, and they are getting sued for damages.

They said: We want to limit that. If it is used improperly and causes damages, the suits can go on. Then we argued and said let's get rid of it in due course, and we have language that says what date it will expire in terms of being a product that can be used.

I want to say again, so that everybody understands, the last speaker has suggested that this bill should be killed by cloture, and that is the right of the Senate on any bill. But I suggest to them if they kill this bill by cloture, which I urge that they not do, they have killed ethanol, and I do not know when it ever comes back.

As a matter of fact, if they think it is coming back without some restraint on MTBE legislation that is going rampant in this country, of the type I have described, suing Folgers Coffee because somebody spilled hot coffee on them, that kind of analogy, for those who think that is going to continue on, then they have given up and abandoned forever ethanol. If that is what they would like, then follow the directions and the wishes of the Senator from Illinois who has plenty of farmers who are waiting and wondering what is going to happen to this bill because of what they think is going to be fair treatment, creating a new market over the next decade and the next decade after that for a product that has been on a roller coaster for farmers who have been on a roller coaster.

Having said that, I want to talk to another group of people. Throughout the deliberation on this bill, I have not heard more from any group of Americans and any group of Senators than the group concerned about the issues of wind energy, solar energy, biomass, and related energies. Everybody came to us, day by day, as we put this bill together and said: Senator, you know wind energy is working. You are not going to kill it in this bill, are you? Senator, bioenergy is right on the edge, ready to go. All these different energies are ready to go. In the case of wind energy, it is not only ready to go, it is going. It is beginning to show up because it is working so well.

Let me say to my friend, it is gone; wind energy is finished when you kill this bill. It is gone.

You might say: How can that be? It is moving along right now. In fact, over in Massachusetts they wanted to build some out there and some people didn't want them building them out there in the ocean. I don't know which people around but some. How come? It was being built.

Yes, but existing today is a great big credit, tax credit for solar and for wind. Guess what. It expires very shortly. It is gone, out the window. The people who are building wind in America are up here in the halls, knocking on our doors, and saying: Do you really want to kill wind energy in America?

The answer is: Oh, no, I just don't like the MTBE portion of this bill. But I don't want to kill wind. I want to carve it out and save it.

But you know what, people who want wind, you can't do it that way. Do you think we are going to start over next month writing another bill of this nature because this one was dead on a side issue of the type I have been describing, and we don't have any credit for wind, we don't have any credit for solar? Not on your life. In fact, I don't know when we would get around to it.

We can look back to the day after tomorrow or the day after that and say: There it went. There she blew, like they say out in the ocean. There she blew, right out the window with those who decided they wanted to talk this bill to death.

Then you look around and there are people saying, another group around here, a lot of eastern Senators walking up and saying: What is going to happen to coal? We have a lot of coal and nobody uses it. Can't you do something about that in the Energy bill?

We say we have. We have given as good a credit for research and production of clean coal technology in America as has ever existed. It is in this bill.

In fact, I had one Senator yesterday from the East, somebody trying to

make this an East versus West bill. I don't know how they did that, either. This Senator said: I was wondering what was in this bill for my State--being an Eastern State, a big coal State. He said: I found out that it has the finest set of credits for companies to try to use this great asset called coal that could ever be put in a bill. All of that within this total cost of $2.6 billion a year, on average, over 10 years.

That Senator said: I am voting for it. We have to give coal a shot in my State, said that Senator.

We can go on and on and talk about this. But it is much easier to pick a piece of the bill such as MTBE and state the facts wrong and tell everybody they should not vote for this because of MTBE. But I follow by saying the MTBE situation is not what has been said, and before you decide to kill the bill on MTBE, you ought to remember you don't kill this bill in pieces.

So everybody out there will know who has an interest: You don't kill this bill in pieces. You adopt it all or none.

For those who think MTBE is of that importance as I have explained it here today--and we will be glad to meet privately with any experts around who want to look at it--but if anybody thinks MTBE is of such a proportionate disadvantage to America that we ought to kill the future of windmills and solar energy and we ought to decide we are not going to do any of these other technologies that will develop America's energy base, they are all going out the window.

This Senator thinks in the end the Senators who are looking at the pluses and minuses of this bill may sit back in their chair and say, you know, I might have done it differently. No, Senator Bingaman said, maybe he could have done better if he had more time. Yes, maybe they should have given the Democrats more time in the committee. But that same Senator may say: Didn't we do that last year? Didn't we give them all the time in the world and what did they do? Nothing. So we produced something this year.

I will take full credit and full blame that I couldn't figure out how to do this with a regular, day-by-day markup of a bill of this magnitude with input from all sides, and I thought we should have input in a different way. We have established input from the minority party in a different way, there is no question. They got e-mails and portions of this bill as it was produced. They had meetings when they offered amendments. Some were adopted. The last 30 percent of the bill was delivered to them at the end, for them to look at, and they got the message for almost all the amendments were on those things that had to do with electricity and the like. They just didn't win any of them, which usually happens in a conference.

Conferences are usually dominated by the majority party. That is history. That is tradition or whatever you want to call it around here. Many of the early provisions of this bill are provisions that were adopted last year as part of the bill when Senator Bingaman was chairman. But we didn't get a bill.

I decided we were going to get a bill. We worked, and worked as hard as people can work, to put one together, and, frankly, you can go through it and find provisions taken all by themselves and say it doesn't have much to do with energy. But I tell you, you can't go through the whole bill and say it doesn't have a lot to do with America's energy future. In fact, I believe we will see the biggest change in agricultural America in modern history with this bill.

Some will say that is not what the bill is for. The bill is for that if, in fact, in doing that we are producing gasoline for automobiles. It is not bad to get the two for one.

Second, this bill is going to produce alternate activities to get natural gas in abundance, and it is also going to produce just about every stitch of natural gas we can produce as a nation without doing damage to our environment, and that will be used by America for American purposes.

I wish we could do more. I wish we could have done more with Alaskan resources. But you know what, everybody knows, you get one thing and you lose something. You move ahead on one and somebody thinks it is the wrong thing and you take two steps backwards.

To get this bill, well over 1,200 pages, on all the subjects we have done, and get it together and get it here this far and get it through the House yesterday by a majority vote of more than 60, a 60-vote plurality or thereabouts, is pretty good.

I am very sorry it is hung up here in the Senate. I will repeat, I have heard quietly--not openly--that some say this is a bill that is for regions of the country. I can't find it. If they would stand up here and say this bill favors the East or the West and show me how, I would be more than glad to go out and look, listen, and try to explain why it isn't. If MTBE, as I have explained, is an East versus the West issue, then I would assume there is no litigation or potential litigation on product liability in nature from the West. I don't think that is the case. If it has to do with resources, we have tried to produce the basic resource that is good for America's future, wherever it lies--whether it is the coal of Pennsylvania or the coal of Wyoming. We have tried to build under it incentives that will make it used more rather than less. We have done that.

In the next few days, we will hear a lot more. Most of it will be about the issues of which I am speaking.

I want to repeat, for those who want ethanol and want it bad and have been waiting 6 or 7 years for it and want a real bill for it, we have exactly what is necessary. That took 4 weeks of debate and frustration galore, but we got what the Senate said we should get. Yes, you can throw it all away because we had to take MTBE, as I have explained, with it. Those lawyers who like MTBE like to tell it one way. I tell it my way because I think my way is right. The lawyers' way probably would be if you were using Folgers Coffee at MacDonald's and coffee was spilled on someone's lap, you ought to be able to sue Folgers Coffee. But if you put in legislation you can't sue Folgers, then I don't think they can come to the Senate floor and argue the way they are arguing about MTBE because Folgers didn't make it hot and spill it. Neither did MTBE get spilled around where it shouldn't be, or used unpropitiously or contrary to the Federal Government standards.

Everywhere you look, there is a smattering of Senators for whom I have great respect who would like to see a nuclear powerplant built one of these days. You can throw them away if you kill this bill. They won't be built. If you pass the bill, there will be a chance there will be one following every law and every rule in the books. We might get one or two. I think that is pretty good.

I am prepared, as are a number of Senators who worked with me, to return to answer as other Senators bring this issue up.

I thank the group that helped work on this bill. They were a mighty group of seven who worked as Senators on our side of the aisle. I thank each and every one of them. They had to learn an awful lot, make a whole bunch of hard votes, and make some very close decisions. Now we are here. I hope we go beyond it and get the bill passed.

I yield the floor.

Mr. President, reserving the right to object--I will not--I ask how you might work this in your schedule. We have been told for some time that Senator McCain would like to speak.

He may be around at 2:30 or 2:45. That might work it out perfectly.

Mr. President, I have been waiting to speak. I didn't understand what happened.

After that, are we finished?

Mr. President, Senator McCain is on the list we made as the next speaker.

I ask if I could speak for about 2 minutes before Senator McCain. He has indicated yes.

Mr. President, fellow Senators, my good friend from the State of Washington went through a series of newspapers and read what newspapers had to say. I will not do that. But I suggest that she and other Senators, instead of reading what the newspapers have to say, read what their constituents have to say.

I want to cite some constituents of hers and of everyone else in the Senate and what they have had to say. The Solar Industry of America applauds this. They are the largest group of American businessmen involved in development of solar energy. They sent a letter in full support, along with the National Hydropower, American Coalition for Ethanol, Renewable Fuels, National Biodiesel Board, American Soybean Board, North American Electric Reliability Council. While we are on that one, let me suggest that the board that looked at the blackout we had in the Northeast and just issued a report. I will talk about it later.

Most interestingly, the biggest thing they found that caused that blackout was the violation of reliability standards. Those standards are in this legislation. That will not happen again. The study group says we have taken care of them in this legislation. Do not forget, if we do not pass this, they are out the window. Who knows when we will get back to them.

The National Rural Electric Coops of America, a letter of full support; the Large Public Power Council; the APPA, the American Public Power Association; Coalition for Renewable Fuel Standards--totally in support. I have a multi-industry letter in support of this bill from Interstate Natural Gas, National Association of Manufacturers, Ocean Industries, National Corn Growers, North American Manufacturers Association, Edison Electric Institute, and Domestic Petroleum Council.

Some day before the debate is over I will finish reading the names of groups supporting the bill. The point I make, it is one thing for the editors of our newspapers to write about a bill, it is another for the thousands and thousands of businessmen, large and small, who are going to benefit from this, to be writing what they think about the bill. Remember, most of the things they are talking about are not in the law now. Throw away this bill and we have thrown away the things they say are necessary for their continued operation in the United States.

The biggest and most important is the wind industry in America, large and small, that produces wind energy for the United States. It is a growing new industry. Listen clearly: It is growing because it has a subsidy. For those who do not like subsidies, we can cut it off and there will be no more wind energy produced for who knows how long, maybe 10 years. Maybe that is what some would like. Without this bill, the current production credit for wind energy is gone. This bill starts it and continues it. It will be gone. It will not be there.

We can talk a lot about special interests, about where the money is going, where the $2.6 billion a year is going over the next 10 years. We have an American energy use of $450 billion a year. We are trying to move it around the edges. It does not seem to this Senator to be an exorbitant amount of money or an exorbitant effort to produce a variety of energies, diversity of source, and diversity of base so we are not totally dependent again on a source such as natural gas, soon dependent on it from overseas.

Overall, there are problems with the bill, yes; problems we had to concede, yes. But overall, it is a bill that will work.

I will answer MTBE concerns at least once a day, but I don't think two or three times a day. I have done it once. I will ask other Senators who are familiar with the subject, including the Senator in the chair, to answer these concerns. Suffice it to say, some of the descriptions about MTBE in this bill are wrong.

I have given my best shot at it, but I will close with a very simple example. If you use Folgers Coffee and produce hot water that is too hot, you sell it and burn somebody with the coffee, I doubt very much if you will sue Folgers Coffee. That is the issue of MTBE. It is a legitimate, valid product, certified by the United States of America to be used. For those who use it right, we have said they will not be liable. For those who use it wrong, and there are many who have, they will remain liable. In 15 years there will no longer be any more of that.

I say to the corn growers, we have the same issue looming over us on alcohol and ethanol. We have said there, too, the product is not liable; using it improperly does create liability.

I yield the floor.

No, I think I will wait.

That is what I thought I said.

Ten minutes.

Could we substitute Senator Inhofe for me and my 10 minutes and I will come later?

Will the Senator yield before he yields the floor?

Mr. President, I have on my right a diagram. I wish it were bigger, but I think the Senator from North Dakota can see it.

The Senator spoke about midway through his speech about our growing dependence, and one of the dependencies he spoke of was natural gas. It is almost incredible--we should show the American people this diagram for them to see what has been happening to their country--the red or pink is the annual use of natural gas in our generating capacity for electricity. If we look back to 1990, the pink is hardly a little sliver, and go out to 2003 and we see that almost the entire generating capacity of the country is natural gas.

As the Senator from North Dakota has so eloquently stated this afternoon, it is clear we can't continue down that path. We have to do something about it.

First, I will take whatever criticism he has lodged today with reference to how the bill evolved. I guess it is pretty fair to say that very few people get the luxury, privilege--or whatever it is--of having to write one from beginning to end and get it to the floor. I was given that privilege this year. It could have been done a different way, some of which the Senator from North Dakota has suggested. For that I thank him, and I hope we will do better if we have a chance again.

I also think that his genuine interest in hydrogen as a fuel is not going to go unnoticed. He is right out there ahead of everybody, and he is right.

Some people stand up and tell us: Why don't you change the CAFE standards and reduce dramatically the fuel use of each car that Americans drive? I don't know how the Senator from North Dakota feels about it, but I have been at it long enough to know that the Senate will not do it and the House will not do it. The question is to find another way to do it.

I think Senator Dorgan's notion of having to use another fuel is the appropriate one to be putting our resources, our energy, and our enthusiasm behind with our major researchers and our major companies. If what we got in here is not sufficient, I will join Senator Dorgan as soon as we can and try to put in more.

I would like to see what they do with some of the agreements that are advocated for the use of this money and how we use our technology to heat up that hydrogen so it is usable. I am sure Senator Dorgan would like to see that happen soon, too.

I thank the Senator from North Dakota for his words. Whether they be words that agree with me or words that disagree, I think his conclusion is the one that a vast majority of Senators should make, that we should not throw this package away. We should do it. I know one of his interests is ethanol, and I don't say this just because it happens to be a big interest of his, but there is no question that part of the bill that was hardest to get, and it took the longest and it made most of us frustrated was how do we get that maximum ethanol issue quantity that he described today. It was nigh unto impossible to get the numbers out of the House and out of their writing committees, but we did. We do not get any of these provisions, I regret to say, unilaterally, unscathed, with no commitments of any kind extracted. I am just hopeful that the good outweighs the bad in terms of the compromises we made to get us there.

In my State and Senator Dorgan's State and adjoining States, there are thousands of people who see this bill a little differently than some of those who don't care about ethanol. I heard a Senator say that wouldn't be part of a bill because he didn't think we even should do it, but I don't think that is the Senator's people. I don't think it is the thousands of people represented by these letters of support.

Second, the Senator from North Dakota is absolutely right on renewable resources. We are beginning to make a big show as Americans-- solar, wind is beginning to kick up its heels. We have a very powerful tax incentive in this bill. If this bill doesn't pass, it doesn't exist. If it doesn't exist, I don't know what happens to the fast start and the moving along of these technologies. I am not sure.

I have been told by the biggest manufacturers and those who sell this energy that it will stop. Windmills will stop turning within 3 or 4 months because the tax credit will disappear. I don't want that to happen, especially since we are making some very big headway.

I thank the Senator. I yield the floor.