Electric Reliability Security Act of 2003

I am pleased today to introduce the Anti-Atrocity Alien Deportation Act of 2003, a bill intended to close loopholes in our immigration laws that have allowed war criminals and human rights abusers to enter and remain in this country. Senator Hatch has joined me in offering this bill, along with Senators Lieberman and Levin. In the other body, Representatives Mark Foley and Gary Ackerman today introduce identical legislation.

Our bill would update the charter of the Justice Department's Office of Special Investigations, OSI, which for years has investigated and has sought justice in the cases of Nazi war criminals who have sought refuge on our shores. It is time to renew the OSI charter to take into account the new generations of war criminals who try to escape justice by living among us.

This bill closely mirrors legislation I had offered that was reported unanimously by the Senate Judiciary Committee last year, and which passed the Senate during the 106th Congress. I hope and expect that, with the help of Senator Hatch and others, this bill will become law during this Congress.

As we introduce this bill, our armed forces are fighting to replace an Iraqi regime that has been marked by its utter disregard for the human rights of its people. We must not fight this war on the one hand, and let human rights abusers from around the world enter our Nation with impunity on the other.

When they learn it is so, the American people are appalled to learn that our country has become a safe haven for those who exercised power in foreign countries to terrorize, rape, murder and torture innocent civilians. A report issued last year by Amnesty International claims that nearly 150 alleged human rights abusers have been identified living here and warns that this number may be as high as 1,000. Meanwhile, an article in the New York Review of Books stated that ``hundreds, if not thousands, of foreign nationals who have been plausibly accused of the most heinous human rights crimes, including torture and assassination, either have lived or still live freely in the U.S.'' [William Schulz, ``The Torturers Among Us,'' New York Review, p. 22, April 25, 2002.]

I introduced a similar version of this bill on May 10, 2001, and the Judiciary Committee reported the bill with a Leahy-Hatch managers' amendment on April 18, 2002. Unfortunately, the bill was subject to an anonymous hold on the Senate floor.

I introduced similar legislation in the 106th Congress and was pleased when the proposal garnered bipartisan support in both the House and the Senate. The legislation passed the Senate on November 5, 1999, as part of S. 1754, the Hatch-Leahy ``Denying Safe Havens to International and War Criminals Act,'' but unfortunately it was not acted on by the House before the end of the 106th Congress. Nevertheless, Representatives Foley and Ackerman have provided consistent leadership in moving this legislation in the House, by introducing the measure in the l06th Congress as H.R. 2642 and H.R. 3058, in the 107th Congress, as H.R. 1449, and again today.

The problem of human rights abusers seeking and obtaining refuge in this country is real, and requires an effective response with the legal and enforcement changes proposed in this legislation.

For example, three Ethiopian refugees proved in an American court that

Kelbessa Negewo, a former senior government official in the military dictatorship that ruled Ethiopia in the 1970s, engaged in numerous acts of torture and human rights abuses against them when they lived in that country. Negewo oversaw and participated in the torture of opposition political figures in Ethiopia, and then moved to the United States only to work at the same Atlanta hotel as one of his own victims. The court's descriptions of the abuse are chilling, and included whipping a naked woman with a wire for hours and threatening her with death in the presence of several men. The court's award of compensatory and punitive damages in the amount of $1.5 million to the plaintiffs was subsequently affirmed by an appellate court. [See Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996).] Yet during the pendency of his appeal of the civil verdict, the Immigration and Naturalization Service granted Negewo citizenship.

This situation is an affront both to the foreign victims of torture who fled here to escape their persecutors, and to the American victims of such torture and their families. As Professor William Aceves of California Western School of Law has noted, this case reveals ``a glaring and troubling limitation in current immigration law and practice. This case is not unique. Other aliens who have committed gross human rights violations have also gained entry into the United States and been granted immigration relief.'' [20 Mich. J. Int'l.L. at 657.]

Indeed, another case actually involves American victims. In 1980, four American churchwomen were raped and murdered by the Salvadoran National Guard. Two former Salvadoran government officials who allegedly covered up the murders currently reside in Florida.

Unfortunately, criminals who wielded machetes and guns against innocent civilians in countries like Haiti, Chile, Yugoslavia and Rwanda have been able to gain entry to the United States through the same doors that we have opened to deserving refugees. We need to lock that door to human rights abusers who seek a safe haven in the United States. To those human rights abusers who are already here, we should promptly show them the door out.

We have unwittingly sheltered the oppressors along with the oppressed for too long. We should not let this situation continue. We waited too long after World War II to focus prosecutorial resources and attention on Nazi war criminals who entered this country on false pretenses, or worse, with the collusion of American intelligence agencies. Thousands of declassified CIA documents were made public last year, as a result of the Nazi War Crimes Disclosure Act that I was proud to help enact in 1998. These documents made clear the extent to which the United States relied upon and helped Nazi war criminals. As Eli M. Rosenbaum, the head of the Justice Department's Office of Special Investigations, noted at the time, ``These files demonstrate that the real winners of the Cold War were Nazi criminals.'' We should not repeat that mistake for other aliens who engaged in human rights abuses before coming to the United States. We need to focus the attention of our law enforcement investigators to prosecute and deport those who have committed atrocities abroad and who now enjoy safe harbor in the United States.

When I first introduced this bill, the Rutland Daily Herald in Vermont editorialized that:

For the U.S. commitment to human rights to mean anything,

U.S. policies must be strong and consistent. It is not enough

to denounce war crimes in Bosnia and Kosovo or elsewhere and

then wink as the perpetrators of torture and mass murder slip

across the border to find a home in America. (October 31,

1999)

The Clinton Administration recognized the deficiencies in our laws. One Clinton Administration witness testified in February 2000 that:

The Department of Justice supports efforts to enhance our

ability to remove individuals who have committed acts of

torture abroad. The department also recognizes, however, that

our current immigration laws do not provide strong enough

bars for human rights abusers. . . . Right now, only three

types of human rights abuse could prevent someone from

entering or remaining in the United States. The types of

prohibited conduct include: (1) genocide; (2) particularly

severe violations of religious freedom; and (3) Nazi

persecutions. Even these types of conduct are narrowly

defined. [Hearing on H.R. 3058, ``Anti-Atrocity Alien

Deportation Act,'' before the Subcomm. on Immigration and

Claims of the House Comm. On the Judiciary, 106th Cong., 2d

Sess., Feb. 17, 2000 (Statement of James E. Costello,

Associate Deputy Attorney General).]

The Anti-Atrocity Alien Deportation Act would provide a stronger bar to human rights abusers and close loopholes in our current laws. The Immigration and Nationality Act (INA) currently provides that (i) participants in Nazi persecutions during the time period from March 23, 1933 to May 8, 1945, (ii) aliens who engaged in genocide, and (iii) aliens who committed particularly severe violations of religious freedom, are both inadmissable to the United States and removable. [See 8 U.S.C. Sec. 1182(a)(2)(G) & (3)(E) and Sec. 1227(a)(4)(D).] This bill would expand the grounds for inadmissibility and deportation to: (1) add new bars for aliens who have engaged in acts, outside the United States, of ``torture'' and ``extrajudicial killing,'' and (2) remove limitations on the current bases for ``genocide'' and ``particularly severe violations of religious freedom.''

The definitions for the new bases of ``torture'' and ``extrajudicial killing'' are derived from the Torture Victim Protection Act, which implemented the United Nations' ``Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.'' These definitions are therefore already sanctioned by the Congress. The bill incorporates the definition of ``torture'' codified in the federal criminal code, 18 U.S.C. Sec. 2340, which prohibits:

an act committed by a person acting under the color of law

specifically intended to inflict severe physical or mental

pain or suffering (other than pain or suffering incidental to

lawful sanctions) upon another person within his custody or

physical control.'' [18 U.S.C. Sec. 2340(1).]

``Severe mental pain or suffering'' is further defined to mean:

prolonged mental harm caused by or resulting from (A) the

intentional infliction or threatened infliction of severe

physical pain or suffering; (B) the administration or

application, or threatened administration or application, of

mind-altering substances or other procedures calculated to

disrupt profoundly the senses or personality; and (C) the

threat of imminent death; or (D) the threat that another

person will imminently be subjected to death, severe physical

pain or suffering, or the administration or application of

mind-altering substances or other procedures calculated to

disrupt profoundly the senses or personality. [18 U.S.C.

Sec. 2340(2).]

The Torture Victim Protection Act also included a definition for ``extrajudicial killing.'' Specifically, this law establishes civil liability for wrongful death against any person ``who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to extrajudicial killing,'' which is defined to mean ``a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. This term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.''

The bill would not only add the new grounds for inadmissibility and deportation, it would expand two of the current grounds. First, the current bar to aliens who have ``engaged in genocide'' defines that term by reference to the ``genocide'' definition in the Convention on the Prevention and Punishment of the Crime of Genocide. [8 U.S.C. 1182(a)(3)(E)(ii).] For clarity and consistency, the bill would substitute instead the definition in the federal criminal code, 18 U.S.C. Sec. 1091(a), which was adopted pursuant to the U.S. obligations under the Genocide Convention. The bill would also broaden the reach of the provision to apply not only to those who ``engaged in genocide,'' as in current law, but also to cover any alien who has ordered, incited, assisted or otherwise participated in genocide. This broader scope will ensure that the genocide provision addresses a more appropriate range of levels of complicity.

Second, the current bar to aliens who have committed ``particularly severe violations of religious freedom,'' as defined in the International Religious Freedom Act of 1998 (IRFA), limits its application to foreign government officials who engaged in such conduct within the last 24 months, and also bars from admission the individual's

spouse and children, if any. This bill would delete the reference to prohibited conduct occurring within a 24-month period since this limitation is not consistent with the strong stance of the United States to promote religious freedom throughout the world. As Professor Aceves has written:

This provision is unduly restrictive . . . The 24-month

time limitation for this prohibition is also unnecessary. A

perpetrator of human rights atrocities should not be able to

seek absolution by merely waiting two years after the

commission of these acts. [William J. Aceves, supra, 20 Mich.

J. Int'l L., at 683.]

In addition, the bill would remove the current bar to admission for the spouse or children of a violator of religious freedom. This is a serious sanction that should not apply to individuals because of familial relationships that are beyond their control. The purpose of these amendments is to make those who have participated in atrocities accountable for their actions. That purpose is not served by holding the family members of such individuals accountable for the offensive conduct over which they had no control.

Under current law, most aliens who are inadmissible may receive a waiver under section 212(d)(3) of the INA to enter the nation as a nonimmigrant, where the Secretary of State recommends it and the Attorney General approves. Participants in Nazi persecutions or genocide, however, are not eligible for such a waiver. Our bill retains that provision. It does not, however, ban waivers for those who commit acts of torture or extrajudicial killings. I would hope that such waivers are used sparingly and only under the most compelling of circumstances.

Of course, changing the law to address the problem of human rights abusers seeking entry and remaining in the United States is only part of the solution. We also need effective enforcement. As one expert noted:

[s]trong institutional mechanisms must be established to

implement this proposed legislation. At present, there does

not appear to be any agency within the Department of Justice

with the specific mandate of identifying, investigating and

prosecuting modern day perpetrators of human rights

atrocities. The importance of establishing a separate agency

for this function can be seen in the experiences of the

Office of Special Investigations. 20 Mich. J. Int'l L., at

689.

Our country has long provided the template and moral leadership for dealing with Nazi war criminals. The Justice Department's specialized unit, OSI, which was created to hunt down, prosecute and remove Nazi war criminals who had slipped into the United States among their victims under the Displaced Persons Act, is an example of effective enforcement. Since OSI was created in 1979, more than 60 Nazi persecutors have been stripped of U.S. citizenship, almost 50 such individuals have been removed from the United States, and more than 150 have been denied entry.

OSI was created almost 35 years after the end of World War II and it remains authorized only to track Nazi war criminals. Specifically, when Attorney General Civiletti, by a 1979 Attorney General order, established OSI within the Criminal Division of the Department of Justice, that office was directed to conduct all ``investigative and litigation activities involving individuals, who prior to and during World War II, under the supervision of or in association with the Nazi government of Germany, its allies, and other affiliated governments, are alleged to have ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.'' (Attorney Gen. Order No. 851-79). The OSI's mission continues to be limited by that Attorney General Order.

I believe it is time to reward the tremendous work that OSI has done by expanding its mission to ensure effective enforcement against war criminals of all stripes.

Little is being done about the new generation of international human rights abusers and war criminals living among us, and these delays are costly. As any prosecutor knows instinctively, such delays make documentary and testimonial evidence more difficult to obtain. Stale cases are the hardest to make. We should not repeat the mistake of waiting decades before tracking down war criminals and human rights abusers who have settled in this country. War criminals should find no sanctuary in loopholes in our current immigration policies and enforcement, and should never come to believe that they will find safe harbor in the United States.

The Anti-Atrocity Alien Deportation Act would amend the INA, 8 U.S.C. Sec. 1103, by directing the Attorney General to establish an Office of Special Investigations (OSI) within the Department of Justice with authorization to denaturalize any alien who has participated in Nazi persecution, torture, extrajudicial killing or genocide abroad. Not only would the bill provide statutory authorization for OSI, it would also expand its jurisdiction to deal with any alien who participated in torture, extrajudicial killing and genocide abroad not just Nazis.

The success of OSI in hunting Nazi war criminals demonstrates the effectiveness of centralized resources and expertise in these cases. The knowledge of the people, politics and pathologies of particular regimes engaged in genocide and human rights abuses is often necessary for effective prosecutions of these cases and would best be accomplished by the concentrated efforts of a single office, rather than in piecemeal litigation around the country or in offices that have more diverse missions.

These are the sound policy and practical reasons that experts in this area recommend that the United States ``establish an office in the Justice Department similar to the one that has tracked Nazi war criminals, with an exclusive mandate to carry out the task of investigation [of suspected human rights abusers].'' [William Schulz, supra, at p. 24.]

I appreciate that this part of the legislation has in the past proven controversial within the Department of Justice, but others have concurred in my judgment that the OSI is an appropriate component of the Department to address the new responsibilities proposed in this bill. Professor Aceves, who has studied these matters extensively, has concluded that the OSI's ``methodology for pursuing Nazi war criminals can be applied with equal rigor to other perpetrators of human rights violations. As the number of Nazi war criminals inevitably declines, the OSI can begin to enforce U.S. immigration laws against perpetrators of genocide and other gross violations of human rights.'' 20 Mich. J. Int'l. 657.

Unquestionably, the need to bring Nazi war criminals to justice remains a matter of great importance. Funds would not be diverted from the OSI's current mission instead, additional resources are authorized in the bill to cover the costs of the Office's expanded duties.

Significantly, the bill further directs the Attorney General, in determining what action to take against a human rights abuser seeking entry into or found within the United States, to consider whether a prosecution should be brought under U.S. law or whether the alien should be deported to a country willing to undertake such a prosecution. Despite ratifying the Convention Against Torture in 1994 and adopting a new law making torture anywhere in the world a crime, federal law enforcement has not used this authority. In fact, one recent observer noted that ``the U.S. has never prosecuted a suspected torturer; nor has it ever extradited one under the Convention Against Torture, although it has surrendered one person to the International Criminal Tribunal for Rwanda.'' [William Schulz, supra, at p. 23 - 24.]

As one human rights expert has noted:

``The justifiable outrage felt by many when it is

discovered that serious human rights abusers have found their

way into the United States may lead well-meaning people to

call for their immediate expulsion. Such individuals

certainly should not be enjoying the good life America has to

offer. But when we ask the question `where should they be?'

the answer is clear: they should be in the dock. That is the

essence of accountability, and it should be the central goal

of any scheme to penalize human rights abusers.'' [Hearing on

H.R. 5238, ``Serious Human Rights Abusers Accountability

Act,'' before the Subcomm. on Immigration and Claims of the

House Comm. On the Judiciary, 106th Cong., 2d Sess., Sept.

28, 2000 (Statement of Elisa Massimino, Director, Washington

Office, Lawyers Committee For Human Rights).]

Finally, the bill directs the Attorney General to report to the Judiciary Committees of the Senate and House on implementation of the new requirements in the bill, including procedures for referral of matters to the OSI, any

revisions made to immigration forms to reflect amendments made by the bill, and the procedures developed, with adequate due process protection, to obtain sufficient evidence and determine whether an alien is deemed inadmissible under the bill.

I urge my colleagues in the Senate again to give their approval to this bill, and for the House to help us finally make it law. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. President, today I introduce the ``Federal Power Act Amendment of 2003.'' This bill is intended to ensure for the future the two things that matter most to all electricity customers: affordable electricity and reliable electricity.

Electricity users, my constituents and your constituents, wake up in the morning, flip a switch and expect their lights to turn on. They also expect that each month when their electricity bill arrives in the mail that they'll pay a reasonable price for that service. Customers don't care where the electrons come from or what new scheme the Federal Energy Regulatory Commission has in mind for the electricity industry or really much of anything else. And frankly, as a representative of nearly four and a half million people in my home State of Louisiana, affordable and reliable electricity are my primary concerns when it comes to electricity policy, and that is the purpose for which I offer legislation today.

Electricity prices in Louisiana, and throughout the Southeast for that matter, are some of the lowest in the nation. According to the North American Electric Reliability Council's most recent reliability assessment report, the Southeast region is expected to enjoy, at least for the near term, ``adequate delivery capacity to support forecast demand and energy requirements under normal and contingency conditions.'' In other words, electricity customers in the Southeast should expect to continue to enjoy reliable electric service over the short run. My concern, however, is about the future of retail electricity service in my State.

There are several specific areas of concern that I have and that I attempt to address in the legislation being offered today.

First, the current balance between State and Federal jurisdiction, which has worked exceedingly well in my home State to provide low-cost and reliable electric service, is in jeopardy. Retail transactions, regulated by State public utility commissions, have historically comprised 90 percent of most utilities' transactions and continue to do so in a majority of States that have not restructured their electricity markets. In fact, there is not a single State in the Southeast with the exception of Virginia that has authorized retail competition. Yet, customers in our region of the country enjoy some of the lowest priced electricity service.

The Federal Energy Regulatory Commission or FERC, however, has issued a proposed rule that would strip States of much of their current jurisdiction over retail electric service, including the transmission component of bundled retail sales. In so doing, FERC would dramatically impair the ability of States to use retail ratemaking to attain local policy goals and to continue to ensure low costs for retail customers. It would also prohibit States from ensuring that retail customers are given a priority for electricity service. As a result, in the event that supplies are tight, retail customers could lose the right to priority service.

FERC's proposed plan is a one-size-fits-all scheme on the entire country based on a model that closely resembles the one in place in New Jersey, much of Pennsylvania and Maryland. This model may work well in the Northeast, but it has never been tested or proven viable in any other part of the country. In fact, in a study performed by the consulting firm, Charles River Associates, it was concluded that there is ``considerable uncertainty as to whether [the FERC's proposed plan] would provide greater benefits to the southeast than the implementation costs.'' In Louisiana, and I'm sure in many other States throughout the Southeast and across the country, customers are happy with their electric service. So I ask, what's wrong with the current jurisdictional division between the State and Federal government? If a State or region wants to adopt a new approach, they should be free to do so. But we should not allow a Federal agency to make fundamental policy decisions that are best left to State officials who are accountable to local interests. We know what happened out West when California regulators attempted to institute a sweeping, new plan for its electricity markets. I hope to avoid importing those problems into Louisiana.

To address this jurisdictional concern, Section 2 of my bill would clarify the Federal-State arrangement under the Federal Power Act by explicitly stating that States shall have jurisdiction over the retail sale of electric energy, including all component parts of a bundled retail sale. In addition, Section 7 would enable States to continue to allow utilities to reserve transmission capacity for retail customers. This is current law and the current practice in a large number of States, including States with some of the lowest average retail rates and the best history of reliability. As contemplated by Congress when the Federal Power Act was enacted, FERC will retain jurisdiction over the wholesale sales of electric energy and States will retain jurisdiction over retail.

My second concern for retail customers is the potential for increased rates caused by the costs of accommodating the ``merchant generation'' that, over the past several years, have been seeking to connect to the electric grid in the Southeast. Though new generation is important to wholesale competition, it is a strain on the transmission system. To accommodate the new generation, new transmission facilities and upgrades to existing facilities are needed. However, customers in Louisiana would be forced to pay for the facilities needed to accommodate the merchant generators, even though most of their customers are out-of-region customers. State regulatory commissioners, understandably, are reluctant to pass transmission construction and upgrade costs off to local customers who are not benefitting from the electricity. Meanwhile energy dependent regions of the country are denied cheap and reliable electricity.

A reason they choose to site in Louisiana is because we are blessed with abundant reserves of natural gas--the currently favored fuel source for electric generation. Merchant generators are siting their facilities to gain access to these resources as cheaply as possible, and then are delivering electricity to regions where they can sell electricity at a higher cost. If enough transmission is built to export just a portion of the new generation that is planned to come on-line in Louisiana--10,000 megawatts--the estimated cost would impose a retail rate increase of 5 to 11 percent.

Surely, there must be a more equitable way to allocate cost while simultaneously enhancing our transmission capacity. It is not fair to expect customers in energy generating States to keep paying for transmission expansion when this increased transmission is primarily being developed for out-of-region use. In Sections 3 and 4 of this bill, I have attempted to provide a more equitable system. Section 3 would allow for ``voluntary participant-funding'' in which a regional transmission organization may choose to establish a system in which market participants pay for expansions to the transmission network in return for the transmission rights created by the expansion investment. This approach gives proper economic incentives for new generator location and transmission expansion decisions.

Similarly, Section 4 of my bill would require the FERC to initiate a proceeding to establish rules for interconnecting new generation to transmission facilities. As in Section 3, any costs made necessary by the interconnecting generator would be funded by the generator, or cost-causer, in return for a right to use such facilities funded by the investment.

The third problem that I see is the lack of new investment in transmission facilities. FERC noted in its Electric Transmission Constraint study that transmission congestion costs retail

customers across the country millions of dollars every year. Over the past 10 years, demand for electricity has increased by 17 percent while transmission investment during the same period has continuously declined about 45 percent.

What is even more troubling is that current demand for electricity is projected to increase by 25 percent over the next 10 years with only a modest increase in transmission capacity. In the short term, this lack of transmission investment and the corresponding lack of transmission capacity, adversely affects the ability of retail customers to realize the benefits of wholesale competition. Over the long term, and if this trend continues, the reliability of the bulk power system could be compromised. In the summer of 2000, transmission constraints limited the ability to sell low-cost power from the Midwest to the South during a period of peak demand, causing higher costs for customers. In the summer of 2001 during the California electricity crisis, transmission constraints along the Path 15 transmission route were a significant cause of the blackouts experienced by customers in the northern parts of that State.

To help spur this needed investment in the transmission sector, Section 5 of the legislation would provide further guidance to FERC in establishing transmission rates in two ways. First, Section 5 would amend Section 205 of the Federal Power Act to clarify that the cost causer is responsible for paying the costs of new transmission investment and that all users of the transmission facilities are required to pay an equitable share of the costs such facilities. These provisions will help ensure that users of the transmission system have proper economic price signals and encourage investment where it is needed most. Second, Section 5 would add a new section to the Federal Power Act, Section 215, that would require the FERC to initiate a rulemaking to establish transmission pricing policies and standards to promote investment in transmission facilities. Although the Commission may have sufficient authority under current law to initiate such policies, our Nation's transmission system has been neglected too long and I believe that the FERC could benefit from more specific guidance from Congress.

Finally, customers are not realizing all of the potential benefits of wholesale electricity markets because of its balkanization. The likely result is higher electricity prices. In different parts of the country, electric utilities are in various stages of joining together to form large regional markets, or in the terms used by FERC--regional transmission organizations. In addition, public power entities, including municipal utilities, cooperatives, and federal and State power marketing associations have been willing or resisting, to varying degrees, to contribute to the efforts to establish regional markets. Exacerbating this problem is the underlying fact that FERC does not have the same jurisdiction over public power utilities as it does over electric utilities.

Properly functioning regional markets for electricity can bring about significant benefits to customers in all parts of the country. More competitive wholesale generation, for example, will allow retail sellers greater opportunities to purchase generation from independent power producers. Improperly functioning markets, or one-size-fits all proposals that do not take into consideration regional differences, can be devastating. Current law and policy at FERC has been insufficient in achieving the proper balance between the need for robust regional markets, the reality of regional differences and the legitimate efforts of utilities.

Therefore, in Section 6 of the bill, the FERC would be required to convene regional discussions with State regulatory commissions to consider the development and progress of regional transmission organizations. It would further provide for specific topics of discussion between FERC and the States including the need for regional organizations, the planning process for facilities, the protection of retail customers, and the establishment of proper price signals to ensure the efficient expansion of the transmission grid. Section 6 would also help reduce the balkanization of the electric grid by authorizing the federal utilities such as the Tennessee Valley Authority and the Bonneville Power Administration to join regional transmission organizations. Also, in an attempt to help expand wholesale markets, Section 8 would provide for FERC to require that public power entities provide a limited form of access to their transmission facilities. This provision would give wholesale generators increased access to markets and ensure that competitors pay only the fair and reasonable price to use the transmission grid owned by public power.

In conclusion, I ask my colleagues to support this legislation and consider its affect on retail electricity customers in their States. Affordable and reliable electricity should be our objective for all customers, in all parts of the country.

Mr. President, I rise today to introduce 2 pieces of electricity legislation--simple, common-sense bills that enjoy the bipartisan support of a majority of United States Senators.

First, I am pleased to introduce with my colleagues Senators Clinton, Jeffords and Feingold the Electric Reliability Act of 2004. This legislation would give the Federal Energy Regulatory Commission (FERC) authority to devise a system of mandatory and enforceable standards for the reliable operation of our nation's electricity grid.

My distinguished friends from Wisconsin and Vermont, Senators Feingold and Jeffords, and I are also

today introducing a second bill: the Electricity Needs Rules and Oversight Now (ENRON) Act, which would put in place a blanket ban on manipulative practices in our nation's electricity markets.

Enactment of these bills is long overdue. And in both cases, their provisions have passed the United States Senate within the past eight months. They represent crucial steps forward in the effort to modernize our nation's electricity grid and reform the rules by which it is operated.

Quite simply, these provisions are too important to be held captive to the majority's effort to pass H.R. 6-- the energy bill conference report. Resembling a patchwork quilt of special interest hand-outs-- rather than a policy that would help this nation achieve energy independence--H.R. 6 capsized under its own pork-laden weight on this very floor, a mere two months ago.

Rather than holding good energy policy hostage for the bad--as those who seek to resurrect that 1,700-page legislative monstrosity have said they intend--I believe this body can and must make necessary progress in upgrading our electricity grid and protecting our nation's consumers. That's what the two bills I'm introducing today are intended to do.

As surely my colleagues recall, much of the Northeast and Midwest last August suffered a massive power outage, affecting 50 million consumers from New York to Michigan. Clearly, the biggest blackout in our nation's history has underscored the need for mandatory and enforceable reliability standards--as envisioned in the Electric Reliability Act of 2004. To date, the system has operated under a set of voluntary guidelines, with no concrete penalties for those who break the rules and jeopardize the reliable energy service that is the foundation of our nation's economy.

While the August 2003 blackout was certainly a potent reminder, the call for reliability legislation dates back at least another five years. In 1997, both a Task Force established by the Clinton Administration's Department of Energy and a blue ribbon panel formed by the North American Electric Reliability Council (NERC) determined that reliability rules for our nation's electric system had to be made mandatory and enforceable.

These conclusions resulted, in part, from an August 1996 blackout in the Western Interconnection, where the short-circuit of two overloaded transmission lines near Portland, Oregon, caused a sweeping outage that knocked out power for up to 16 hours in ten states. The blackout affected 7.5 million consumers from Idaho to California, resulting in the automatic shut-down of 15 large thermal nuclear generating plants in California and the southwest--compromising the West's energy supply for several days, even after power had mostly been restored to end- users.

As outlined in Economic Impacts of Infrastructure Failures, a 1997 report submitted to the President's Commission on Critical Infrastructure Protection, the blackout was estimated to exact between $1 billion and $4 billion in direct and indirect costs to utilities, industry and consumers. The report also detailed the risks the outage posed to public health and safety, including an exponential increase in traffic accidents, hospitals forced to rely on emergency back-up power generation, and the grounding of more than 2,000 airline passengers.

While it took time to develop consensus, the Senate recognized the human and economic stakes associated with the reliable operation of the electricity grid. Stand-alone legislation very similar to what I've introduced today passed this body in June 2000, when this chamber was under Republican control. And even as the majority has twice changed hands since then, the United States Senate has twice passed the very provisions included in the Electric Reliability Act of 2004 as part of comprehensive energy legislation--most recently, this past summer.

Likewise, the Senate has previously passed the provisions contained in the ENRON Act, which Senator Feingold and I are introducing today. Offered under the agreement that last July cleared the way for Senate Leadership to replace the then-pending Republican energy bill with the 107th Congress' Daschle-Bingaman legislation, the ENRON Act was adopted as an amendment to the Senate's Fiscal Year 2004 Agriculture Appropriations bill, on a strong, bipartisan vote of 57-40.

The ENRON Act is simple in concept. In the face of overwhelming evidence that Enron and other unscrupulous energy companies brazenly manipulated western energy markets during the crisis of 2000-2001, it would amend the Federal Power Act to put in place a blanket ban on such activities.

It has been estimated that the western energy crisis cost the region's consumers and businesses $35 billion in domestic economic product--in other words, a 1.5 percent decline in productivity and a total loss of 589,000 jobs. After experiencing a devastating blow that exacerbated the already-crippling national recession, consumers in my state--who continue to pay the price for the unethical gamesmanship of these companies--know that our economy simply cannot abide another Enron.

Thus, the ENRON Act is based on language included in the Securities Exchange Act--in existence since 1934. This bill would make it illegal for any company to ``use or employ . . . any manipulative or deceptive device or contrivance'' to circumvent FERC rules and regulations on market manipulation. Further, it would specify that electricity rates resulting from manipulative practices are simply not lawful. In other words, when companies are known to have gouged consumers--in some cases, even admitting as much--those same consumers should not be stuck with the inflated energy bills that result.

As Congress and various Federal agencies have over the past few years sought to piece together the events that led to the western energy crisis--the most devastating energy market meltdown in our Nation's history--a number of agencies and officials have weighed in on the issue of market manipulation. In addition to simple common sense, their statements underscore the need for the ENRON Act. For example: FERC in March 2003 issued its Final Report on Price Manipulation in Western Markets. The voluminous FERC report found that: ``Enron's corporate culture fostered a disregard for the American energy customer; the success of the company's trading strategies, while temporary, demonstrates the need for explicit prohibitions on harmful and fraudulent market behavior and for aggressive market monitoring and enforcement.'' The General Accounting Office (GAO) in August 2003 issued a report entitled Additional Actions Would Help Ensure that FERC's Oversight and Enforcement Capability is Comprehensive and Systematic. Among GAO's observations: ``The heads of [FERC's] market monitoring units told us they recognize the difficulty of defining just and reasonable prices. They also said that they believe FERC has made some progress in doing so. However, they generally believed that FERC had not yet gone far enough.'' GAO further concluded that: ``we recommend that the Chairman of FERC more clearly define [the Commissions] role in overseeing the Nation's energy markets by . . . explicitly [describing FERC's] activities relative to carrying out the agency's statutory requirements to ensure just and reasonable prices and to preventing market manipulation.'' Republican FERC Commissioner Joe Kelliher wrote the following in a November 5 letter to me, just prior to his confirmation: ``Markets subject to manipulation cannot operate properly and there is an urgent need to proscribe manipulation of electricity markets. You have correctly noted there is no express prohibition of market manipulation in the Federal Power Act and have proposed legislation to establish an express prohibition. This is a critical point. The Federal Energy Regulatory Commission only has the tools that Congress chooses to give it, and Congress has never given the Commission express authority to prohibit market manipulation. I believe the time has come for Congress to take that step.'' In the same letter, Kelliher goes on to note that, ``This is not to say that the Commission cannot take steps to prevent market manipulation under its existing legal authority . . . Since there would likely be legal challenges to any such effort to proscribe manipulative practices, it would be helpful for Congress to give the Commissioner clear

authority to prohibit market manipulation . . . I support the goals of your amendment'' [to the Agriculture Appropriations bill, which contains the same provisions as the ENRON Act] ``and believe it would go far towards effectively prohibiting manipulation of electricity markets.''

Recent events have clearly demonstrated the need for both the Electric Reliability Act of 2004, as well as the ENRON Act. On the other hand, the case is far less compelling for many of the provisions found in the H.R. 6 conference report. It's not just unpersuasive to argue that a 21st Century energy policy must include: liability protections for manufacturers of the groundwater pollutant MTBE; the weakening of landmark environmental laws such as the Clean Air, Clean Water and Safe Drinking Water Acts; and billions of dollars worth of subsidies, most infamously, taxpayer-backed bonds for construction of an energy efficient mall including a Hooters restaurant, it's absurd.

When the Senate last July agreed to send a comprehensive energy bill to conference with the House, few anticipated that we would get back a grab-bag of corporate give-aways so bloated that editorial pages from every corner of this Nation, from Yakima to Pensacola; Texarkana to Honolulu, would call on this body to put H.R. 6 out of its misery. Nor did many of us believe that common-sense legislation such as the ENRON Act--with broad, bipartisan support in the Senate--would be so quickly jettisoned by the conference report's authors.

Make no mistake: many of us in this chamber emphatically believe that we need an energy policy that will liberate this country from its dangerous dependence on foreign sources of oil and position our businesses to compete in the emerging global market for clean energy technologies. But to paraphrase my distinguished colleague from Vermont, Senator Jeffords, who has been a great leader on these issues, this Nation needs an energy bill, but certainly not this energy bill.

So today, we are introducing the Electric Reliability Act of 2004 and the ENRON Act, because it's time for this body to put the public interest ahead of the special interests poised to profit so handsomely from the passage of the energy bill conference report. We should take up and pass these individual pieces of legislation, which would mark a substantial achievement in the effort to upgrade the reliability of our Nation's grid and insulate our economy from the disastrous impacts of latter-day Enrons.

In last night's State of the Union speech, President Bush observed that ``consumers and businesses need reliable supplies of energy to make our economy run.'' I could not agree more. He also urged Congress to ``pass legislation to modernize our electricity system, promote conservation, and make America less dependent on foreign sources of energy.'' Nowhere in his address did President Bush mention tax breaks for Hooters; I did not hear him invoke rollback of environmental laws on behalf of polluters; nor did he cite the need to put in place protections for corporate looters such as Enron--all those provisions that have become the hallmark of the energy bill conference report.

So I ask my colleagues to recognize that we can make measurable progress this year on the objectives the President has outlined. But that will happen not by holding good energy policy hostage for bad energy policy, as the authors of H.R. 6 would have it. Rather, it will happen when we agree to set aside the H.R. 6 conference report and pass common-sense, consensus-based energy policy. And both the Electric Reliability and ENRON Acts fit this description.

I ask my colleagues to support these bills.

Mr. President, today I am introducing comprehensive legislation to ensure the reliable delivery of electric power in the United States. I am pleased have the Senior Senator from Massachusetts and the Senator from Washington join me as original cosponsors of this bill.

This past August, nearly 50 million people in the Northeast and Midwest were affected by a massive power outage. Hurricane Isabel and other weather systems left millions more without power. These events emphasize the vulnerability of the U.S. electricity grid to human error, mechanical failure, and weather-related outages.

Unfortunately, the electricity provisions now being considered in the on-going energy bill conference were written well before these recent events. The pending energy bill fails to do all that is necessary to protect the grid from devastating interruptions in the future. That is why I am introducing this bill today to ensure greater reliability in our electricity delivery system.

My bill, the Electric Reliability Security Act of 2003, will help achieve reliability and security of the electricity grid in an efficient, cost-effective, and environmentally sound manner. It does so by creating mandatory, nationwide electric reliability standards.

The bill also mandates regional coordination in the siting of transmission facilities, and provides $10 billion in loan guarantees to finance ``smart grid'' technologies that improve the way the grid transmits power.

While a $10 billion investment may seem to be a large investment, it is significantly less than the transmission cost estimates that have circulated following the Northeast blackout. In response to the events this past August, industry experts estimated that it would cost consumers as much as $100 billion to upgrade transmission systems and site new lines to meet future reliability needs.

However, even this hefty price tag does not factor in the costs of additional generation, does not consider the rising cost of natural gas due to increasing electricity consumption, and does not include the environmental and other social costs of continued expansion of our presently centralized power system. Power lines are expensive and are rarely welcomed by the nearby public. The loan guarantees in the bill will help balance the need for new transmission lines by providing Federal resources to help improve existing ones.

In addition to addressing system operation and transmission needs, the bill also promotes sound system management. It establishes a Federal system benefits fund as a match for State programs.

Historically, regulated electric utility companies have provided a number of energy-related public services beyond simply supplying electricity that benefit the system as a whole. Such services have included bill payment assistance and energy conservation measures for low-income households, energy efficiency programs for residential and business customers, and pilot programs to promote renewable energy resources. More than 20 States, including my home State of Vermont, have public benefits programs. This bill will provide needed Federal matching money to States for these programs.

The Alliance to Save Energy estimates that a Federal program to match existing State public benefits programs would save 1.24 trillion kilowatt-hours of electricity over 20 years, and cut consumer energy bills by about $100 billion. My bill, which has the potential to save consumers $100 billion is far preferable to raising consumer electricity bills by the $100 billion to raise money for grid expansion.

The bill also establishes energy efficiency performance standards for utilities. The United States has experienced tremendous growth in electricity consumption over the past decade. Current estimates are that electricity consumption is increasing at roughly two percent per year.

Between 1993 and 1999, U.S. summer peak electricity use alone increased by 95,000 megawatts. This is the equivalent of adding a new, six-State New England to the Nation's electricity demand every fourteen months.

Energy experts estimate that as much as 50 percent of expected new demand over the next 20 years can be met through consumer efficiency and load management programs. Over the past two decades, utility demand-side efficiency programs have avoided the need for more than 100 300-megawatt power plants. However, with the advent of electricity deregulation, utility spending on these efficiency programs has dropped by almost half.

The Federal Government should seek to correct this trend, and this bill takes a strong first step in that direction by phasing in a requirement that utilities reduce their peak demand for power and their customers' power use between 2004 and 2013.

Finally, the bill enacts standards that enable increased on-site, or distributed, generation to reduce pressure on the grid and lessen the impact of a blackout should one occur. We have an obligation to ensure that the electricity grid is secure. We currently have a giant system consisting of almost 200,000 miles of interconnecting lines that constantly shift huge amounts of electricity throughout the country.

Such a giant and complex system, traversing miles of city and countryside, is inevitably subject to unforeseen problems. Simply making it bigger will never take away all uncertainty, nor can it eliminate the vulnerability of the grid to sabotage or terrorist attack. We should do all we can to make certain such vulnerabilities are reduced.

In summary, I am introducing this legislation because I feel that we should be cautious in our assumptions that the answer to our nation's reliability woes lies primarily in building a bigger, more expansive grid. Simply building more transmission lines is not the answer.

Investments in energy efficiency and on-site generation can significantly improve the reliability of the nation's electricity grid and in most cases will be cheaper, faster to implement and more environmentally friendly than large-scale grid expansion. We also must fill the regulatory gaps in the system, which my bill does. Congress should establish mandatory reliability standards and close other regulatory gaps left by state deregulation of the electricity sector. In addition, no national reliability program will be effective or complete without strong incentives for demand-side management programs, for efficiency and for on-site generation.

We cannot solve today's energy problems with yesterday's solutions. My bill is an innovative approach to ensuring electric reliability by maximizing energy efficiency, regulatory efficiency, and efficient investment. Given the high costs of power outages to our country, we cannot afford to do otherwise.

I invite my colleagues to join me in my efforts to advance energy security and reliability in the United States.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am introducing comprehensive legislation to ensure the reliable delivery of electric power in the United States. I am pleased have the Senior Senator from Massachusetts and the Senator from Washington join me as original cosponsors of this bill.

This past August, nearly 50 million people in the Northeast and Midwest were affected by a massive power outage. Hurricane Isabel and other weather systems left millions more without power. These events emphasize the vulnerability of the U.S. electricity grid to human error, mechanical failure, and weather-related outages.

Unfortunately, the electricity provisions now being considered in the on-going energy bill conference were written well before these recent events. The pending energy bill fails to do all that is necessary to protect the grid from devastating interruptions in the future. That is why I am introducing this bill today to ensure greater reliability in our electricity delivery system.

My bill, the Electric Reliability Security Act of 2003, will help achieve reliability and security of the electricity grid in an efficient, cost-effective, and environmentally sound manner. It does so by creating mandatory, nationwide electric reliability standards.

The bill also mandates regional coordination in the siting of transmission facilities, and provides $10 billion in loan guarantees to finance ``smart grid'' technologies that improve the way the grid transmits power.

While a $10 billion investment may seem to be a large investment, it is significantly less than the transmission cost estimates that have circulated following the Northeast blackout. In response to the events this past August, industry experts estimated that it would cost consumers as much as $100 billion to upgrade transmission systems and site new lines to meet future reliability needs.

However, even this hefty price tag does not factor in the costs of additional generation, does not consider the rising cost of natural gas due to increasing electricity consumption, and does not include the environmental and other social costs of continued expansion of our presently centralized power system. Power lines are expensive and are rarely welcomed by the nearby public. The loan guarantees in the bill will help balance the need for new transmission lines by providing Federal resources to help improve existing ones.

In addition to addressing system operation and transmission needs, the bill also promotes sound system management. It establishes a Federal system benefits fund as a match for State programs.

Historically, regulated electric utility companies have provided a number of energy-related public services beyond simply supplying electricity that benefit the system as a whole. Such services have included bill payment assistance and energy conservation measures for low-income households, energy efficiency programs for residential and business customers, and pilot programs to promote renewable energy resources. More than 20 States, including my home State of Vermont, have public benefits programs. This bill will provide needed Federal matching money to States for these programs.

The Alliance to Save Energy estimates that a Federal program to match existing State public benefits programs would save 1.24 trillion kilowatt-hours of electricity over 20 years, and cut consumer energy bills by about $100 billion. My bill, which has the potential to save consumers $100 billion is far preferable to raising consumer electricity bills by the $100 billion to raise money for grid expansion.

The bill also establishes energy efficiency performance standards for utilities. The United States has experienced tremendous growth in electricity consumption over the past decade. Current estimates are that electricity consumption is increasing at roughly two percent per year.

Between 1993 and 1999, U.S. summer peak electricity use alone increased by 95,000 megawatts. This is the equivalent of adding a new, six-State New England to the Nation's electricity demand every fourteen months.

Energy experts estimate that as much as 50 percent of expected new demand over the next 20 years can be met through consumer efficiency and load management programs. Over the past two decades, utility demand-side efficiency programs have avoided the need for more than 100 300-megawatt power plants. However, with the advent of electricity deregulation, utility spending on these efficiency programs has dropped by almost half.

The Federal Government should seek to correct this trend, and this bill takes a strong first step in that direction by phasing in a requirement that utilities reduce their peak demand for power and their customers' power use between 2004 and 2013.

Finally, the bill enacts standards that enable increased on-site, or distributed, generation to reduce pressure on the grid and lessen the impact of a blackout should one occur. We have an obligation to ensure that the electricity grid is secure. We currently have a giant system consisting of almost 200,000 miles of interconnecting lines that constantly shift huge amounts of electricity throughout the country.

Such a giant and complex system, traversing miles of city and countryside, is inevitably subject to unforeseen problems. Simply making it bigger will never take away all uncertainty, nor can it eliminate the vulnerability of the grid to sabotage or terrorist attack. We should do all we can to make certain such vulnerabilities are reduced.

In summary, I am introducing this legislation because I feel that we should be cautious in our assumptions that the answer to our nation's reliability woes lies primarily in building a bigger, more expansive grid. Simply building more transmission lines is not the answer.

Investments in energy efficiency and on-site generation can significantly improve the reliability of the nation's electricity grid and in most cases will be cheaper, faster to implement and more environmentally friendly than large-scale grid expansion. We also must fill the regulatory gaps in the system, which my bill does. Congress should establish mandatory reliability standards and close other regulatory gaps left by state deregulation of the electricity sector. In addition, no national reliability program will be effective or complete without strong incentives for demand-side management programs, for efficiency and for on-site generation.

We cannot solve today's energy problems with yesterday's solutions. My bill is an innovative approach to ensuring electric reliability by maximizing energy efficiency, regulatory efficiency, and efficient investment. Given the high costs of power outages to our country, we cannot afford to do otherwise.

I invite my colleagues to join me in my efforts to advance energy security and reliability in the United States.

I ask unanimous consent that the text of the bill be printed in the Record.