Hydraulic Fracturing Safety Act of 2005

Mr. President, I rise today to congratulate my colleagues on our efforts to pass an energy bill through the Senate that does not include exemptions for the oil and gas industry from drinking water and clean water protections. Section 327 of H.R. 6 as reported contains an exemption to the Safe Drinking Water Act for the practice of hydraulic fracturing. Section 328 of H.R. 6 contains an exemption for the oil and gas industry from obtaining stormwater discharge permits under the Clean Water Act, rolling back fifteen years of environmental

protection. These efforts to weaken the protections applied to our Nation's waters should be stricken from the bill as the conferees on H.R. 6 work to resolve the differences between the two bills.

Over half of our Nation's fresh drinking water comes from underground sources. Hydraulic fracturing occurs when fluids are injected at high rates of speed into rock beds to fracture them and allow easier harvesting of natural oils and gases. It is these injection fluids, and their potential to contaminate underground sources of drinking water, that are of high concern. In a recent report, the EPA acknowledged that these fluids, many of them toxic and harmful to people, are pumped directly into or near underground sources of drinking water. This same report cited earlier studies that indicated that only 61 percent of these fluids are recovered after the process is complete. This leaves 39 percent of these fluids in the ground, risking contamination of our drinking water.

In June of 2004, an EPA study on hydraulic fracturing identified diesel as a ``constituent of potential concern.'' Prior to this, EPA had entered into a Memorandum of Agreement with three of the major hydraulic fracturing corporations, whom all voluntarily agreed to ban the use of diesel, and if necessary select replacements that will not cause hydraulic fracturing fluids to endanger underground sources of drinking water. However, all parties acknowledged that only technically feasible and cost-effective actions to provide alternatives would be sought.

Litigation over the last several years has resulted in findings that hydraulic fracturing should be regulated as part of the underground injection control program in the Safe Drinking Water Act. Yet, EPA indicated in a letter in December of 2004 that they have no intention of publishing regulations to that effect or ensuring that state programs adequately regulate hydraulic fracturing.

I will include our letter to EPA dated October 14, 2004, and their response dated December 7, 2004, in the Record.

We need to be moving in the right direction--taking steps to ensure that hydraulic fracturing is appropriately regulated under the Safe Drinking Water Act. I have introduced S. 1080, the Hydraulic Fracturing Safety Act of 2005 to ensure that the practice of hydraulic fracturing is regulated under the Safe Drinking Water Act through the Underground Injection Control, UIC, Program. I would like to thank Senators Lautenberg, Boxer, and Lieberman for co-sponsoring that bill. The House energy bill takes steps in the wrong direction--exempting hydraulic fracturing from the Safe Drinking Water Act.

I urge the conferees of this energy bill to strike section 327 of the House-passed energy bill. By striking this language, the conferees will help to ensure that the drinking water enjoyed by all Americans is not damaged through the process of hydraulic fracturing.

This exemption for hydraulic fracturing is not the only step backwards that the House energy bill takes. Section 328 of the bill exempts the oil and gas industry from stormwater protections in the Clean Water Act.

Stormwater runoff is a leading cause of impairment to the nearly 40 percent of surveyed U.S. water bodies that do not meet water quality standards.

Currently, the oil and gas industry is regulated under Phase I of EPA's stormwater regulations which requires National Pollution Discharge Elimination System, NPDES, permits for medium and large municipal storm sewer systems and eleven, 11, categories of industrial activity, including construction sites disturbing more than 5 acres of land. In 1999, EPA adopted the Phase II permitting requirements, effective March 10, 2003, covering small municipal separate stormwater systems and construction sites affecting one to five acres of land. However, EPA extended the Phase II permitting deadline to June 12, 2006 for only the oil and gas industry.

Now, section 328 of the House energy bill completely exempts the oil and gas industry from compliance with both Phase I and Phase II of the NPDES stormwater program.

This action will adversely impact water quality. Oil and gas construction activities require companies to undertake a number of earth disturbing activities, including: clearing, grading, and excavating. Oil and gas site development may also include road construction to transport equipment and other materials, as well as pipeline construction. The stormwater pollution created from these activities can be devastating to the environment.

According to the EPA, over a short period of time, stormwater runoff from construction site activity can contribute more harmful pollutants, including sediment, into rivers, lakes, and streams than had been deposited over several decades. Sediment clouds water, decreases photosynthetic activity, reduces the viability of aquatic plants and animals; and ultimately destroys animals and their habitat. Sediment rates from cleared and graded construction sites are typically 10 to 20 times greater than those from agricultural lands and one-thousand to two-thousand times greater than those from forest lands. Other harmful pollutants in stormwater runoff from construction sites include phosphorous and nitrogen, pesticides, petroleum derivatives, construction chemicals, and solid wastes that may be mobilized when land surfaces are disturbed.

More than 5,000 cities, towns, and counties and eleven, 11, industrial sectors are required to obtain NPDES stormwater permits. Large oil and gas construction sites covered under the Phase I stormwater program have been taking action to reduce the impact of sediments and pollutants on water quality since 1990. In 2005, GAO reported that over a one-year period, 4,330 oil and gas construction sites obtained Phase I stormwater permits in three of the six largest oil and gas producing states. In 20 the Warren County Conservation District submitted information to EPA indicating that 70 percent of the oil and gas projects they inspected between 1997 and 2002 were in violation of Phase I permit conditions. If this amendment is adopted, these actions will no longer be required. In FY 2002/2003, the Alaska Department of Environmental Conservation estimated that they would review 400 engineering plans as part of the stormwater permitting process. The House provision would exempt these sites from 15-year-old requirements to reduce the pollution they send into surrounding waters through stormwater discharges.

The environmental impact from this amendment is even more severe when you factor in the approximately 30,000 oil and gas ``starts'' per year that EPA anticipates could be covered by the Phase II stormwater regulation. EPA is currently reviewing the impact of the regulation on these sites. Adopting this amendment would circumvent this review process and exempt thousands of sites from taking action to protect water quality.

Section 402(l) of the Clean Water Act contains a limited exemption for specific types of uncontaminated discharges from specific types of oil and gas sites from stormwater permit requirements. The language of the Act and the legislative history of this section indicate that when adopted, section 402(l) was intended to give a narrow exemption for specific circumstances in the oil and gas industry that did not include construction activities at every oil and gas--related site.

I urge the conference committee on H.R. 6 to reject the Clean Water and Safe Drinking Water Act exemptions included in the House energy bill. These provisions represent a major step backward in efforts to protect water quality and could pose a direct threat to the safety of drinking water supplies. Should these exemptions be included in the final conference report, we will see our Nation's water quality standards go down the drain.

I ask unanimous consent to print the above-referenced letters in the Record.

Mr. President. I thank Senator Grassley, Senator Baucus and the other members of the Senate Finance Committee for agreeing to my recycling amendment, which I call the Recycling Investment Saves Energy, RISE, provisions. These provisions were added to the tax title of the energy bill last week and have now been incorporated into the Energy bill as section 1545 of H.R. 6.

The current Senate Energy bill contains important provisions to promote the use of energy savings in vehicles, appliances, new homes, and commercial buildings. As we move forward with fostering energy efficiency, we must not neglect recycling. Recycling should be an integral component of our nation's energy efficiency strategy.

The RISE provisions will create jobs, increase productivity, and conserve energy by establishing a tax credit to preserve and expand America's recycling infrastructure. Specifically, the provisions establish a 15 percent tax credit for the purchase of qualified recycling equipment used to sort or process packaging and printed materials, such as beverage containers, cardboard boxes, glass jars, steel cans and newspapers.

The tax credit could be claimed by material recovery facilities, manufacturers or other persons that purchase recycling equipment that sorts or processes residential or commercial recyclable materials, even if such equipment also is used to handle material from industrial facilities.

This national investment in our recycling infrastructure is necessary to reverse the declining recycling rate of many consumer commodities, including aluminum, glass and plastic, which are near historic lows. For example, 55 billion aluminum cans were wasted by not being recycled in 2004, which represents approximately $1 billion of aluminum lost to industry. The recycling rate of paper is estimated to be roughly 50 percent, glass containers 35 percent, and PET plastic bottles less than 20 percent.

The energy savings from greater recycling are significant. Increasing the recycling of containers, packaging and paper could save the equivalent energy output of 15 medium-sized power plants on an annual basis. Recycling aluminum cans, for example, saves 95 percent of the energy required to make the same amount of aluminum for its virgin source. Increasing the U.S. recycling rate to 35 percent would result in annual energy savings of 903 trillion BTUs, enough to meet the annual energy needs of 8.9 million homes.

Due to the diminishing quantity and quality of available recyclable materials, many companies are not able to obtain the volume of quality recycled feedstock needed to meet demand. This

new economic challenge makes it even harder for recycled products to compete in the marketplace. For example, two Michigan plastic recycling facilities recently closed, affecting 100 jobs, as a result of inconsistent supply of recycled plastic. Similarly 17 percent of the recycling capacity at U.S. paper mills has been shut down, in part due to insufficient quality recyclable materials. One leading glass manufacturer also reports that they are able to obtain only a small fraction of the volume of recycled glass that their facilities can use.

In some cases, recyclers have been forced to shut down their operations in the United States and relocate to other countries due in part to insufficient or poor quality recycled feedstocks. This is particularly unfortunate as, on a per-ton basis, sorting and processing recyclables are estimated to sustain 10 times more jobs than landfilling or incineration.

The RISE provisions aim to reverse the declining recycling rate and resulting energy loss by incentivizing greater collection of quality recyclable materials. The bill would expand collection efforts by making innovative technology more affordable, such as reversible vending machines that collect and process empty containers. It could also be used to finance equipment at recycling collection centers.

This targeted tax credit would address quality concerns by reducing the barriers hindering investment in optical sorting and other state of the art equipment needed at material recovery facilities. By reducing material loss and improving quality, RISE will increase both the quantity and quality of recycled feedstock available to manufacturers.

Reducing the barriers to recycling also serves a number of environmental goals, including lessening the need for new landfills, preventing emissions of many air and water pollutants, reducing greenhouse gas emissions, and stimulating the development of green technology. But most importantly, recycling helps preserve resources of our children's future. For these reasons, I urge my colleagues to support these provisions.

Mr. President, last night the Senate narrowly defeated the Kerry amendment No. 844, sense-of- the-Senate resolution on climate change. I was unable to be present for the vote, but I strongly supported this sense of the Senate. The United States has consistently failed to constructively engage in international discussions in a manner consistent with our obligations under the United Nations Framework Convention on Climate Change or even under a basic good neighbor policy. The Bush administration policy on global warming is ineffective, unproductive, and irresponsible.

The administration's voluntary approach and efforts to address global warming have been underfunded and will not produce real emissions reductions in the timeframe necessary. Fortunately, many of the States have taken up the mantle of leadership, since there is a tremendous vacuum in the White House. By reversing his pledge to control carbon dioxide from powerplants, walking away from the Kyoto Protocol, and now snubbing British Prime Minister Tony Blair's request for assistance from the United States on this critical climate change problem, the President is reneging on this Nation's responsibility and opportunity to be a world leader.

Carbon dioxide levels have never been higher and the United States disproportionately contributes to the global warming problem. We need to reengage with the world in producing a binding global plan that reduces greenhouse gases below levels that would cause dangerous interference with the Earth's climate.

The administration and the world should pay close attention to the passage of the Bingaman-Specter resolution that committed the Senate to adopting legislation containing mandatory controls on carbon dioxide. This is an important resolution and it should serve as a wakeup call to the administration and those among the carbon-intensive industries. We must shoulder our moral responsibility to reduce the risks of global warming.

Mr. President, I thank the bill managers, Senator Domenici and Senator Bingaman, for agreeing to accept my amendment in the managers' package that was agreed to last night by unanimous consent. My amendment directs the Architect of the Capitol to study the feasibility of installing energy and water conservation measures on the rooftop of the Dirksen building, specifically the roof area above the cafeteria in the center of the building.

Today, all that exists is open space in the center of the building. My amendment will assist the Architect in obtaining information that will allow this space to be used in a more efficient manner and save taxpayer dollars.

During debate on the energy bill, the Senate has heard numerous arguments on the importance of conserving energy. In August of 2003, nearly 50 million people in the Northeast and Midwest were affected by a massive power outage. This event emphasized the vulnerability of the U.S. electricity grid to human error, mechanical failure, and weather- related outages. Failure to maintain a reliable grid had a huge impact on our Nation's economy, businesses, and individuals' everyday lives.

It is vital, then, that we here in the Senate do our part and put measures in place to make the Nation's Capitol a more secure and sustainable user of electricity. The Capitol Complex is largely dependent upon the electrical grid for power. Our daily operations should not be compromised by grid failure.

My amendment moves us forward in the right direction. Technology already exists to ensure that our operating systems can continue to operate despite loss of a main power supply. By creating onsite generating capacity through the installation of cogeneration equipment at the power plant and using solar powered equipment, like photovoltaic panels, we could produce energy to operate essential systems during a blackout or significant loss of power. We can start slowly by powering emergency lighting and notification systems in hallways so the occupants know how to exit the building safely or upgrade the electrical generating capacity of the complex. Technology is only getting better. My amendment asks the Architect of the Capitol to explore the use of this new technology to ensure that the Nation's Capitol always has reliable power.

In addition, this new technology also has the potential to provide significant savings in the Capitol's operating budget. We are all looking for ways to save the taxpayers money and reduce the Nation's deficit. We have the opportunity today to set an example and practice what we preach. As Members of Congress, we can educate ourselves and our staff on the benefits of energy efficiency, and see first hand the savings it can generate. The Nation's Capitol can join those already utilizing this technology and help encourage others to adopt it as well.

My amendment requires a feasibility study be conducted to look at the Dirksen building rooftop, including the open space in the center of the building directly above the cafeteria. The study will focus on more efficient use of the space while providing energy and water savings to the Capitol Complex.

I envision a wonderful park and garden area that Members and staff can actually use. These gardens would not only provide a beautiful environment by utilizing native plants, but they would also reduce energy use, and provide insulation for the building to reduce heat and energy loss.

These gardens would also provide a collection system for rainwater to limit the amount of stormwater runoff in the area. This collected water could be utilized for basic plumbing, watering the vegetation, or even the fire sprinkler systems; thereby reducing the use of water in the Capitol Complex.

Installation of technology, like photovoltaic panels, could collect the rays of the sun and provide energy to the building. These can be installed on the rooftops of our buildings in many different areas. These panels are now made to blend into any environment

There is even technology that exists to funnel natural daylight into the cafeteria in the basement. Imagine enjoying natural daylight as you consume your lunch or hold that quick meeting. Preliminary studies show that exposure to daylight improves worker productivity and results in less absenteeism due to illness.

The Architect of the Capitol is currently updating the master plan for the

Capitol Complex. This small project fits into that plan. The Architect is making great strides to update our operating systems with newer and efficient technology with sustainable features. I appreciate his efforts and encourage him to continue doing so.

Before I conclude, I would like to thank a former staffer who helped me develop this great idea, Mary Katherine Ishee. Mary Katherine was creative enough to look beyond the barren view from the committee offices on the fourth floor of the Dirksen building and realize the opportunity it presented.

It is about time we bring our home, the Capitol Complex, up to date with the rest of the world. This language is a step in that direction. We have the potential to use the latest technology to save energy, address security concerns, conserve our resources, and make more efficient use of this space.

We will all benefit from a wonderful, efficient, and useful park in the middle of the Dirksen building, and the taxpayers will benefit from our reduced energy and water use in the form of lower utility bills. I am very pleased that this measure has been added and I hope it will be retained by the conferees.

Mr. President, I want to thank Senators Domenici and Bingaman for adopting my amendment No. 774, as part of the Senate Energy bill. The amendment authorizes up to $20 million a year for 7 years for the establishment of a new Department of Energy grant program to aid local governments, municipal utilities, rural electric cooperatives, and not- for-profit agencies. The cost of repairing transmission lines is proving particularly difficult for small communities in Vermont and across America.

I became interested in creating such a program due to the challenges that communities in my State are facing with respect to the upgrading and siting of transmission and distribution lines. For example, residents in Lamoille County, VT, have been struggling to find ways to expand the transmission system to accommodate the demands of a growing tourism industry without overly burdening local residents with the cost of such an upgrade. Currently, the transmission system that delivers electricity to this area of my State is at peak capacity, leaving the local community in jeopardy should a single event like a fallen power line or damage to a key piece of equipment occur.

Not only must communities afford the costs of the infrastructure itself, but also the costs of integrating these new technologies into the rural landscape in a way that does not destroy their scenic quality and protects their lifestyle.

These grants will help rural communities meet these needs. They can be used for increasing energy efficiency, siting or upgrading transmission lines, or providing modernizing electric generating facilities to serve rural areas. Under the generation grants portion of the program, preference will be given to renewable facilities such as wind, ocean waves, biomass, landfill gas, incremental hydropower, livestock methane, or geothermal energy.

By adopting my legislation as part of this Energy bill, small electric cooperatives and local governments in Lamoille County, VT, will be eligible to apply for Federal grants to construct new facilities and transmission upgrades. This is a good amendment and it should be retained by the conferees.

Mr. President, last night the Senate defeated amendment No. 961 that would have banned the siting of windmills in many areas in the lower 48 States and made them ineligible to receive Federal tax subsidies. Had I been present to vote, I would have opposed this amendment. In my 30 years in Congress, I have been a strong proponent of renewable energy sources including wind power. I am very optimistic about the role wind energy can play in satisfying a growing proportion of this Nation's energy needs.

If the objective of this amendment was to protect scenic qualities of America's lands and shorelines, it did not achieve that goal. The amendment only targeted the siting of windmills within 20 miles of Federal public lands, but did not address the siting of coal-fired powerplants and other energy sources that have far greater impacts to our public lands. Just look at the impacts that air pollution blowing in from coal-fired Midwest powerplants is currently having on the Great Smoky Mountain National Park, Shenandoah National Park, and the protected areas in the beautiful green mountains of Vermont.

This amendment also failed to treat all public lands and wildlife refuges equally. As ranking member of the Environment and Public Works Committee, the committee with jurisdiction over our Nation's wildlife refuges, I was concerned that, had this amendment been approved, no wind turbine situated anywhere near Federal lands in the lower 48 States would have been eligible to receive Federal tax subsidies, thereby severely limiting the expansion of wind power in the United States. Oddly, this amendment specifically exempted some other federally protected areas such as coastal wildlife refuges in Louisiana and Alaska. By defeating this amendment by a wide margin, the Senate sends a strong message that wind power has a role to play in satisfying this Nation's energy needs.

Mr. President, I rise today to introduce the Preserving Patient Access to Physicians Act of 2005. This bill updates Medicare physician reimbursement for 2006 and 2007 according to the recommendations of the Medicare Payment Advisory Committee (MedPAC). There would be a 2.7 percent increase to the physician payment schedule for 2006 and using the Medicare Economic Index update for the price of inputs, a 2.6 percent increase in 2007.

If the schedule is left alone, the consequences for physicians will be a negative. Instead of the 1.5 percent payment increase for 2004 and 2005 which I helped author in the Medicare Modernization Act, there would be a 4.3 percent decrease.

The sustainable growth rate (SGR) formula used to calculate physician payment depends on a number of factors: the number of Medicare fee-for- service beneficiaries, the volume and type of services provided, the price of services rendered, changes in regulations and laws. The formula also incorporates other factors such as prescription-drug prices and the gross domestic product. The SGR was intended to control expenditures by basing a given year's physician payment rate on the previous year's performance. Instead, it creates an arbitrary deficiency that continues to force Congress to intervene.

There is a debate going on, her CMS has the authority to alter the SGR formula by removing drugs. Setting that aside, though, the fact of the matter is that without Congress stepping in to provide for a physician payment update, it probably will not occur. My Senate colleagues and I have talked for many years about ensuring adequate physician payment because current and past administrations have failed to modify the formula. This formula is not doing what it was intended to do. Therefore, I believe we need to scrap it and start again. My bill is a starting point and proposes amounts for an update, but I would really like to see us go all the way back to the drawing board and answer the fundamental question of how to pay physicians appropriately for their services.

I want doctors to be able to continue to assist our nation's seniors, but it is unfair to expect them to practice and to have their reimbursement decrease. Practice expenses, the costs of medical technology, wages for administrative and clinical staff, and medical liability premiums are all increasing while physicians are on track to receive a payment decrease. They cannot afford to continue practicing medicine while receiving reimbursements that do not allow them to even break even. Many are retiring early or threatening to limit the number of Medicare patients they treat.

The service of physicians all across the country is vital to our seniors. Almost half a million doctors provide treatment to the 42 million people under the Medicare program. Physicians are often the gateway for access to other medical services and treatments. Not being able to consult a physician results in delayed referrals, delayed treatment and delayed care. In sum, the quality of health care continues to erode and our system does not operate efficiently.

Should the scheduled physician reimbursement cuts take effect, the result will be a $710 million decrease in payments to doctors in Arizona over 2006 through 2010. I have heard from virtually every physician with whom I have spoken about the constraints that inadequate payments are placing on their practice of medicine. While many work for hospitals and health systems, in the rural areas, a large number are solo practitioners or in small practices. For these physicians, poor payment hits their practice especially hard.

If Medicare rates for doctors are inadequate, many other health care payors will also lack for adequate reimbursement. Other payors such as Medicaid and private insurers often base their payments on Medicare rates. While this bill only addresses Medicare physician payment, the problem of access to services will be compounded if physicians receive reimbursement from other payors that is below the appropriate levels.

The cost of addressing the physician payment update is not cheap. Estimates on the cost of this bill are between $25 billion to $35 billion over five years. I await an official score from the Congressional Budget Office. But I point out, that doing nothing to solve this problem may cost us more: more money, more health and access problems, and more physicians leaving the profession. Although this legislation provides for a two year update, we must develop a long range mechanism to pay physicians appropriately.

I am grateful for the support of this legislation by my colleague, Senator

Stabenow of Michigan, and encourage my other colleagues to support the Preserving Patient Access to Physicians Act of 2005.

I ask unanimous consent that a letter of support be printed in the Record.

Mr. President, I rise today to introduce the Streamlined Procedures Act. This legislation will reduce delays in federal courts' review of habeas corpus petitions filed by State prisoners.

Currently, many Federal habeas corpus cases require 10, 15, or even 20 years to complete. These delays burden the courts and deny justice to defendants with meritorious claims. They also are deeply unfair to victims of serious, violent crimes. A parent whose child has been murdered, or someone who has been the victim of a violent assault, cannot be expected to ``move on'' without knowing how the case against the attacker has been resolved. Endless litigation, and the uncertainty that it brings, is unnecessarily cruel to these victims and their families. As President Clinton noted of the 1996 habeas-corpus reforms, ``it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.'' For the sake of all parties, we should minimize these delays.

The 1996 habeas corpus reforms were supposed to prevent delays in Federal collateral review. Unfortunately, as the Justice Department noted in testimony before the House Crime Subcommittee in March 2003, there still are ``significant gaps [in the habeas corpus statutes] . . . which can result in highly protracted litigation, and some of the reforms that Congress did adopt in 1996 have been substantially undermined in judicial application.''

The Streamlined Procedures Act is designed to fill some of these gaps. First, the SPA imposes reasonable but firm time limits on court of appeals' review of Federal habeas petitions. It requires a court of appeals to decide a habeas appeal within 300 days of the completion of briefing, to rule on a petition for rehearing within 90 days, and to decide a case on rehearing within 120 days before the same panel, or 180 days before an en banc court.

As generous as these time limits are, they would make a real difference in some cases. In Morales v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth Circuit took 3 years to decide the case after briefing was completed. And after issuing its decision, the court took another 16 months to reject a petition for rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the case--and then waited another 27 months to reject a petition for rehearing, for a total delay of almost 4\1/2\ years after appellate briefing had been completed. This is too long for either defendants or victims to have to wait.

The SPA also bars courts of appeals from rehearing successive- petition applications on their own motion--current law bars petitions for rehearing or certiorari for such applications, but some courts have interpreted this restriction to not preclude rehearing by the court of appeals sua sponte. The SPA also bars Federal courts from tolling the current 1-year deadline on filing habeas claims for reasons other than those authorized by the statute, and clarifies when a State appeal is pending for purposes of tolling the deadline.

In addition, the SPA creates uniform, clear procedures for review of procedurally improper claims. Current judicial caselaw creates a series of different standards for addressing claims in a Federal petition that were not exhausted in state court, that were presented in a late amendment, or that were procedurally defaulted. The SPA sets a uniform standard, allowing procedurally improper claims to go forward only if they present meaningful evidence that the defendant did not commit the crime, with all other improper claims barred.

The SPA also expands and improves the special expedited habeas procedures authorized in chapter 154 of the United States Code. These procedures are available to States that establish a system for providing high-quality legal representation to capital defendants. Chapter 154 sets strict time limits on Federal court action and places limits on claims. Currently, however, the court that decides whether a State is eligible for chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these courts

have proven resistant to chapter 154. The SPA would place the eligibility decision in the hands of a neutral party--the U.S. Attorney General, with review of his decision in the DC Circuit, which does not hear habeas appeals. The SPA also makes chapter 154's deadlines more practical by limiting the claims that can be raised under its provisions to those presenting meaningful evidence that the defendant did not commit the crime, and by extending the time for a district court to review and rule on a chapter 154 petition from 6 months to 15 months.

The SPA also eliminates duplicative Federal review of minor sentencing errors that already have been judged by State courts to be harmless or not prejudicial. It limits Federal courts to asking only whether the type of sentencing error at issue is one that could not have been harmless.

The SPA also applies the deferential review standard enacted in the 1996 reforms to all pending cases. Remarkably, some current habeas petitions still are not governed by the 1996 reforms. The SPA corrects this oversight, ending the need to apply the pre-1996 legal regime to any cases that still are being litigated today.

And finally, the SPA limits judicial review of State clemency and pardon decisions, guaranteeing that a State won't be sued for formalizing and regularizing its pardon procedures; it limits defendants' ability to ask Federal courts for investigatory funds without allowing prosecutors to be present and rebut defense allegations; and it guarantees a crime victim's right to be notified of, to be present at, and to speak at a criminal defendant's Federal habeas hearing.

To many people, the issues addressed by the SPA--petitions for rehearing, State remedies exhaustion, procedural default, chapter 154, AEDPA deference--may seem abstract and remote. For surviving crime victims, however, these matters can be very concrete.

A case recently in the news illustrates the importance of these concerns: that of the man who murdered three member of the Ryen family and Christopher Hughes in Chino Hills, California in June 1983. The killer in that case was an escaped convict from a nearby prison. He has since admitted that he spent 2 days hiding in a vacant house next to the home of the Ryen family. After several unsuccessful telephone calls to friends asking them to give him a ride, the killer took a hatchet and buck knife from the vacant house and set out to find a vehicle. The California Supreme Court describes the rest of what occurred, 53 Cal.3d 771, 794-95:

On Saturday, June 4, 1983, the Ryens and Chris Hughes

attended a barbecue in Los Serranos, a few miles from the

Ryen home in Chino. Chris had received permission to spend

the night with the Ryens. Between 9 and 9:30 p.m., they left

to drive to the Ryen home. Except for Josh [the Ryen's 8-

year-old son], they were never seen alive again.

The next morning, June 5, Chris's mother, Mary Hughes,

became concerned when he did not come home. A number of

telephone calls to the Ryen residence received only busy

signals. [Mary's husband] William went to the Ryen home to

investigate.

William observed the Ryen truck at the home, but not the

family station wagon. Although the Ryens normally did not

lock the house when they were home, it was locked on this

occasion. William walked around the house trying to look

inside. When he reached the sliding glass doors leading to

the master bedroom, he could see inside. William saw the

bodies of his son and Doug and Peggy Ryen on the bedroom

floor. Josh was lying between Peggy and Chris. Only Josh

appeared alive.

William frantically tried to open the sliding door; in his

emotional state, he pushed against the fixed portion of the

doors, not the sliding door. He rushed to the kitchen door,

kicked it in, and entered. As he approached the master

bedroom, he found Jessica on the floor, also apparently dead.

In the bedroom, William touched the body of his son. It was

cold and stiff. William asked Josh who had done it. Josh

appeared stunned; he tried to talk but could only make

unintelligible sounds.

William tried to use a telephone in the house but it did

not work. He drove to a neighbor's house seeking help. The

police arrived shortly. Doug, Peggy, Chris, and Jessica were

dead, the first three in the master bedroom, Jessica in the

hallway leading to that bedroom. Josh was alive but in shock,

suffering from an obvious neck wound. He was flown by

helicopter to Loma Linda University Hospital.

The victims died from numerous chopping and stabbing

injuries. Doug Ryen had at least 37 separate wounds, Peggy

32, Jessica 46, and Chris 25. The chopping wounds were

inflicted by a sharp, heavy object such as a hatchet or axe,

the stabbing wounds by a weapon such as a knife.

The escaped prisoner who committed this crime was caught 2 months later. Again, he admitted that he stayed in the house next door, but denied any involvement in the murders. According to the California Supreme Court, however, the evidence of defendant's guilt was ``overwhelming.'' Not only had the defendant stayed at the vacant house right next door at the time of the murders; the hatchet used in the murders was taken from the vacant house; shoe prints in the Ryen house matched those in the vacant house and were from a type of shoe issued to prisoners; bloody items, including a prison-issue button, were found in the vacant house; prison-issue tobacco was found in the Ryen station wagon, which was recovered in Long Beach; and defendant's blood type and hair matched that found in the Ryen house. Defendant was convicted of the murders and sentenced to death in 1985, and the California Supreme Court upheld the defendant's conviction and sentence in 1991.

The defendant's Federal habeas proceedings began shortly thereafter, and they continue to this day--22 years after the murders. In 2000, the defendant asked the courts for DNA testing of a blood spot in the Ryen house, a t-shirt near the crime scene, and the tobacco found in the car. Despite the overwhelming evidence of his guilt, the courts allowed more testing. All three tests found that the blood and saliva matched defendant, to a degree of certainty of one in 320 billion. Blood on the t-shirt matched both the defendant and one of the victims.

One might have thought that this would end the case. Not so. In February 2004, the en banc Ninth Circuit sua sponte authorized defendant to file a second habeas petition to pursue theories that police had planted this DNA evidence. Since the evidence had been in court custody since 1983, the Ninth Circuit's theory not only required police to plan and execute a vast conspiracy to plant the evidence--it also required them to foresee the future invention of the DNA technology that would make that evidence useful in future habeas proceedings.

The Streamlined Procedures Act would have made a difference in this case. For example, it would have eliminated the need to return to state court to exhaust new claims, reducing the delay in the Federal proceedings by nearly 3 years. It would have applied the 1996 reforms to this case, allowing deferential review of state factual findings and legal analysis. It would have placed time limits on Federal appeals court decisionmaking and grants of rehearing. And it would have prevented the court of appeals from ordering rehearing of the defendant's successive-petition application on its own motion, thereby barring the current round of O.J. Simpson-style conspiracy-theory litigation. The SPA could have brought this case to closure a long time ago.

And this case deserves to be brought to closure. One cannot underestimate the grievous impact that crimes like these have on the families of the victims. Mary Hughes, the mother of 11-year-old Christopher Hughes, who was sleeping over at the Ryen house on the night of the murders, has spoken movingly of the loss of her son:

Christopher Hughes loved his bicycle, swimming and showing

off for his mom and dad.

The 11-year-old's bedroom was filled with swimming trophies

and Star Wars collectibles. He was a handsome kid who was

chased by a lot of fifth-grade girls on the playground during

recess at Our Lady of the Assumption in Claremont.

He wasn't short on friends, either.

Christopher really liked Joshua Ryen, an 8-year-old boy who

lived up the street from him. They would trick-or-treat

together on Halloween, play together, and their parents were

good friends.

On the night of June 4 1983, Christopher asked his parents

if he could spend the night at the Ryen house.

It was a decision that would change the Hughes family

forever.

[Mary Hughes'] son Christopher would have been 32 today.

She sometimes wonders who he would have been, what he

would've looked like, and even during her most solemn

moments, she wonders what life would've been like if Cooper

had never gone to the Ryens' house.

``It never really ever gets better,'' she said. ``Kevin

Cooper robbed him of the chance to be a child, to attend his

first dance, to have a girlfriend, and to one day get married

and

have kids of his own. He robbed me of my child.''

Mary Ann Hughes does have one special memory of her son she

holds close to her heart. A week before his death, she took

him to see the movie ``Return of the Jedi.''

``He was so happy. It was such a great day,'' she said.

``It seems like such a small thing, but it's the best memory

I have of both of us.'' (Sara Carter, ``He Was at the

Beginning of His Life When He Died,'' Inland Valley Daily

Bulletin, February 9, 2004.)

In light of how much the surviving family already has suffered, one might expect that all participants in the criminal proceedings would take great concern and care for the feelings of the family. Unfortunately, that has not been the case. The Ninth Circuit has proved willing to turn the appeals into a three-ring circus, allowing continual pursuit of the most frivolous conspiracy theories. The impact of these now 22 years of trial and appeals on the victims' families has been predictable: they feel that they and the victims have become irrelevant to the entire process. Shortly after the Ninth Circuit authorized an additional round of appeals in this case, a local newspaper described what the families have experienced:

For nearly 20 years, since convicted murderer Kevin Cooper

was sentenced to death for the 1983 slayings of a Chino Hills

family and their young houseguest, families of the victims

have waited silently for the day the hand of justice would

grant them peace.

For those families, the last two decades have seemed like

an eternity.

``I lived through a nightmare,'' said Herbert Ryen, whose

brother Douglas Ryen was among those killed, along with

Douglas' wife Peggy, their 11-year-old daughter Jessica, and

her 10-year-old friend Christopher Hughes.

[O]n the morning of Feb. 9, [2004,] the day of Cooper's

scheduled death by lethal injection, word came down that the

9th U.S. Circuit Court of Appeals had decided to block the

execution.

[T]o the Ryen and Hughes families, the stay just hours

before Cooper's scheduled execution at San Quentin State

Prison was nearly incomprehensible. The indefinite delay has

left them in a sort of emotional limbo, questioning whether

the legal system had abandoned them.

``The bottom line is that this whole issue is not about

Kevin Cooper . . . it is about the death penalty,'' said Mary

Ann Hughes, the mother of Christoper Hughes. ``We're so mad--

mad because we feel as though the courts turned their back on

my son.''

``They (Court of Appeals) are holding us hostage,'' Hughes

said.

For Herbert Ryen and his wife Sue, waiting for justice has

taken an equally destructive toll on their lives. The torment

their family experienced following the murders, and the

subsequent years lost to depression, could never be replaced,

he said from his home in Arizona.

Mary Ann Hughes said the pain her family suffers is only

amplified by the seemingly continuous bombardment of

celebrities campaigning against Cooper's execution. She

wonders who will cry out in anger for the victims.

One former television star and anti-death penalty activist,

Mike Farrell of the popular series MASH, spoke of the case on

a recent news program.

``He claimed that we must feel relieved since the stay of

execution was granted,'' Hughes said. ``How can (Farrell)

have the audacity to say he knows what we are feeling?''

Farrell could not be reached for comment.

Since Christopher's death, the Hughes family has chosen to

remain out of the media spotlight. And until recently, their

efforts were successful, due largely to the support of their

surviving children, family members and a strong network of

close friends, Hughes said.

The court's decision Feb. 9 has re-opened the case, forcing

the families to re-live the nightmare they have fought so

hard to leave behind, they say.

Mary Ann Hughes is left wondering about other families who

have had loved ones taken from them, about the legal battles

they have had to endure in their own quests for justice.

She thinks of the parents of Samantha Runion, the 5-year-

old Orange County girl who was murdered in 2003, and of what

her family could face in the next 20 years.

For Bill Hughes, the anguish is intensified--he will

forever know the pain of walking into the Ryens' home the

morning after the murders, and finding his son, dead and

covered in blood near the Ryens' bedroom door. He was also

the first to discover Joshua Ryen, also drenched in blood,

clinging to life.

``It is a memory he will always have to live with,'' Mary

Ann Hughes said.

Indeed, time has been no friend to the victims' families,

as California's recent appellate court ruling has further

denied them closure, she added.

``What this decision has done to our legal system in

California is unthinkable,'' she said. ``Somewhere along the

line, the courts have got to uphold the law, and we will wait

it out until they do.'' (Sara Carter, ``Families of Murder

Victims Wait for Justice in Cooper Case,'' Inland Valley

Daily Bulletin, February 24, 2004.)

Mary Hughes' story demonstrates why the use of Federal judicial power must be measured and fair it illustrates the heavy cost imposed by judicial excess.

No statement, however, better explains the gross cruelty caused by allowing endless litigation and appeals in a case like this than that given by one of the surviving victims of the 1983 attack. Josh Ryen was 8 years old when he was stabbed in his parents' bedroom and his parents and sister were murdered. He is now 30 years old. On April 22, 2005, he gave a statement pursuant to the recently enacted Crime Victims' Rights Act in the federal habeas corpus hearing for his parents and sister's killer. I will close my remarks by asking unanimous consent that Josh Ryen's statement be printed in the Record.

Mr. President, Section 261 of the underlying bill contains provisions designed to reform the hydroelectric relicensing process. These provisions are the result of a hard-won compromise, and I thank the chairman and ranking member, along with Senators Craig, Smith and Feinstein for their leadership on this issue. In particular, these provisions significantly differ from previous House- and Senate- passed versions, as they will allow States, tribes and the public to propose alternative licensing conditions, and will further allow these entities to trigger the trial-type hearing process outlined in this section. I believe these public participation provisions are key improvements in this legislation. I would also like to more fully explore the process by which alternative conditions proposed by these stakeholders should be considered.

Before an alternative condition or prescription to a license may be approved, the Secretary must concur with the judgment of the license applicant that it will either cost significantly less to implement, or result in improved operation of the hydro project for electricity production--at the same time it provides for adequate protection of the resource--or in the case of fishway prescriptions, will be no less protective than the fishway initially proposed by the Secretary. This provision does not provide the license applicant a so-called veto power over proposed alternatives, because this judgment requires the Secretary's concurrence. In addition, it is the Senate's intent that these judgments be supported by substantial evidence as required by Section 313 of the Federal Power Act. I would like to ask the senior Senator from New Mexico the following question: If the Secretary determines that a license applicant's judgment has been based on inaccurate data and thus fails to meet the test of being supported by substantial evidence, can the Secretary withhold his or her concurrence?

Mr. Domenici. The Senator from Washington is correct in expressing our intent that the license applicant's judgment be supported by substantial evidence. It is not our intent to provide an incentive for applicants to provide poor data in order to prompt the rejection of a condition by other stakeholders. If the Secretary of a resource agency determines that the evidence provided by the license applicant is of insufficient quality and therefore does not meet the substantial evidence test, the Secretary should not concur with the license applicant's judgment in the matter.

Mr. President, I wish to clarify for my colleagues the intent of section 1270 of the underlying Energy bill, which is a provision of extreme importance to my Washington State constituents. Ratepayers in my State were harmed by the Western energy crisis and the manipulation and fraudulent practices of Enron in wholesale electricity markets. A number of proceedings remain underway at the Federal Energy Regulatory Commission, which will determine the relief granted to consumers harmed by Enron's unlawful trading practices. An important issue that remains is whether utilities--such as Washington State's Snohomish County Public Utility District--should be forced to make termination payments to Enron, for power Enron never delivered in the midst of its scandalous collapse into bankruptcy.

The intent of section 1270 of the underlying bill and the technical correction we have adopted today is simply to affirm that the Federal Energy Regulatory Commission has exclusive jurisdiction under sections 205 and 206 of the Federal Power Act to determine whether these termination payments should be required. This provision expresses Congress's belief that the issues surrounding the potential requirement to make termination payments associated with wholesale power contracts are inseparable and inextricably linked to the commission's jurisdictional responsibilities.

This provision in no way prejudices or predetermines FERC's decisions in those matters. During the Senate Energy Committee's work on this legislation, the supporters of this amendment and I initially considered offering an amendment that would have gone further to require a certain outcome, had the commission made certain findings. We chose not to pursue that amendment in response to concerns that were raised by colleagues. Section 1270 of this legislation is completely neutral regarding how the commission uses its authority under sections 205 and 206 of the Federal Power Act. As such, the provision does not in any way implicate what is known as the Mobile-Sierra doctrine, related to which standard FERC should apply to its review of jurisdictional wholesale power contracts.

The clarifications to section 1270 effectuated by the amendment accepted today are consistent with the committee's intent in adopting section 1270. In addition, they are completely consistent with Supreme Court precedent.

The committee sought assurances that section 1270 would not disturb underlying legal doctrines such as the Mobile-Sierra doctrine or the separation of powers principles. The amendment provides further clarity that section 1270 is not intended to otherwise disturb or modify the Mobile-Sierra doctrine by adding the phrase ``or contrary to the public interest.'' This phrase, when coupled with the standard recital of FERC's exclusive authority to determine whether a charge is just and reasonable, makes it clear that Congress is making no pronouncements regarding the manner in which FERC exercises its authority, but rather only that it is the appropriate forum to resolve these issues. Congress is giving no guidance to FERC on Mobile-Sierra one way or another through this provision.

The committee's overarching intent with respect to section 1270 was to ensure that the Federal Energy Regulatory Commission, and not the bankruptcy court involved in the Enron matter, decides all of the issues surrounding whether termination payments are lawful. The addition of the phrase ``rate schedules and contracts entered thereunder'' ensures that result.

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

``looking beyond form to the substance of what Congress has

done'', we are persuaded that the congressional authorization

of limited CFTC jurisdiction over a narrow class of common

law claims as an incident to the CFTC's primary, and

unchallenged, adjudicative function does not create a

substantial threat to the separation of powers. Thomas v.

Union Carbide Agricultural Products Co., 473 U.S. 568, 589

(1985).

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

Mr. President, I rise to speak to a particular section of the comprehensive energy bill (S. 10) that we have been discussing for the past 2 weeks. My comments focus specifically on section 1270 of this legislation.

Section 1270 was an amendment I offered in the Energy & Natural Resources Committee mark-up of this legislation. It was accepted after considerable debate and discussion, on a bipartisan voice vote. Since then, I have continued to work with my colleagues on the Energy Committee, to further clarify and perfect this language. In fact, I was pleased to work with my colleague from Idaho, Senator Craig, on a technical amendment to this language, amendment No. 895, to refine it even further.

This provision, entitled ``Relief for Extraordinary Violations,'' is extremely important to the consumers of Washington State and ratepayers in other parts of the West, who bore tremendous costs as a result of Enron's schemes to manipulate our wholesale electricity markets. The principle at the heart of this provision is simple. The consumers of Washington State must not be forced to become the deep-pockets for Enron's bankruptcy. The same ratepayers who have paid so dearly for the Western energy crisis and Enron's schemes to manipulate markets should not be forced to pay even more--four years later--for power that Enron never even delivered.

I must thank my colleagues on the Energy Committee for their thoughtful consideration of this issue, particularly my colleagues from the Pacific Northwest and West as a whole who have seen first-hand the toll the crisis has taken on our economy and our constituents. I must also express my gratitude to the rest of the members of the committee, and to the chairman and ranking member for indulging what was a very thoughtful debate on this issue.

At the conclusion of the committee debate, this Senator was extremely satisfied; first, because of the very nature of the debate itself, in which--for almost an entire hour--a bipartisan group of Senators focused their valuable time and attention on a situation that is highly complicated, and likely unprecedented in the history and application of our Nation's energy laws. And second, because, at the end of the day, the committee struck a blow for justice and for Western consumers. It was an important statement. This is not the kind of country where we should reward Enron for its criminal conspiracy to commit fraud; a fraud of historic proportions perpetrated against the consumers of the West.

As my colleagues appreciate by now, my State was particularly ravaged by the western energy crisis of 2000-2001. One of my State's public utility districts, Public Utility District No. 1 of Snohomish County, had a long-term contract with Enron, to purchase power. The contract was terminated once Enron began its scandalous collapse into bankruptcy. Nonetheless, Enron has asserted before the bankruptcy court the right to collect all of the profits it would have made under the contract through so-called ``termination payments.'' Enron has made this claim even though Enron never delivered the power under the contract, even though Enron had obtained its authority to sell power fraudulently, and even though Enron was in gross violation of its legal authority to sell power at the very time the contract was entered into. This has been demonstrated by the criminal guilty pleas of the senior managers of Enron's Western power trading operation, in which it has been admitted that Enron was engaged in a massive criminal conspiracy to rig electric markets and rip off electric ratepayers. But it has been further illustrated by the now-infamous Enron tapes, in which Enron employees discuss many unsavory topics, including specifically how they were ``weaving lies together'' in their negotiations related to the contract with Snohomish.

I will tell my colleagues that there is no way under the sun that I believe my constituents owe Enron another penny. Not one single penny more. What this amendment does is ensure that, when the Federal Energy Regulatory Commission FERC comes to a conclusion

later this year about how to cleanup the Enron mess, that the bankruptcy court cannot overturn FERC's decision about whether these ``termination payments'' are just, reasonable or in the public interest. It says to FERC, ``do your job to protect consumers, and when you make a decision, that decision will stand.'' Interpreting our nation's energy consumer protection laws is not the job of a bankruptcy judge.

Now, this Senator has a very strong opinion on this matter in general. I believe there is no way no stretch of the imagination, or interpretation of law in which these termination payments could be deemed just, reasonable or in the public interest, knowing everything we know today about what Enron did to the consumers of my state. In fact, during committee debate on the underlying provision in this bill, some of my colleagues suggested that we should just out-right abrogate these contracts; simply declare them null and void on their face. But what we recognized, relying on the legal expertise of the committee staff, is that an act like that--as tempting as it may seem--would pose certain constitutional issues. We recognized that this provision section 1270--is the best way for Congress to express its will in this matter.

I have, as my colleagues know, had substantial differences with FERC over the course of the past few years. But I am glad to say today, after 4 long years, it appears that the commission may be on the right track on this issue. This March, FERC issued a ruling in which the commission definitely found that the termination payments at issue here ``are based on profits Enron projected to receive under its long-term wholesale power contracts executed during the period when Enron was in violation of conditions of its market-based rate authority.'' For the first time, FERC found that Enron was in violation of its market-based rate authority at the time victimized utilities such as Washington's Snohomish PUD inked power sales contract with the now-bankrupt energy giant. That FERC process is on-track to wrap-up this year; but so long as that process is ongoing, utilities like Snohomish have been operating under the threat that the bankruptcy court would swoop in and demand payments for Enron, regardless of the pattern of market manipulation and fraud. In a series of rulings, the bankruptcy court has expressed its will to do just that. What this provision does is ensure the bankruptcy court cannot force these utilities and their consumers to make termination payments that are unjust, unreasonable or contrary to the public interest.

Section 1270 states that notwithstanding any other provision of law, and specifically the bankruptcy code, FERC ``shall have exclusive jurisdiction'' to make these determinations. Many of my colleagues might naturally assume that this provision merely sets forth what is already the case. But as I stated earlier, that is not necessarily the case. This provision is necessary and critical because the Federal bankruptcy court has already concluded that it will not defer to FERC with respect to whether our constituents will be required to make termination payments. Not only has the bankruptcy court not deferred to FERC, it compounded the seriousness of the issue by enjoining FERC from proceeding with its own specific inquiry into whether Enron is owed the termination payments. It forced FERC to stop on a matter that FERC had said required its special expertise.

Imagine making it through the arduous and frustrating, years-long process of proving the case against Enron and proving it to FERC, only to find out at the end of the day that the bankruptcy court would intervene and force these termination payments anyway. It is this situation--a collision between FERC and the bankruputcy court that this legislation addresses. And what the Congress is saying with this amendment, as counsel for the Energy Committee stated during our extended discussion, is that ``the Commission, not the bankruptcy [court], is the proper forum in which these question be resolved.'' That is certainly my view, and the view of many of us who represent ratepayers harmed by Enron.

I do not assume this position in denigration of the responsibility of the bankruptcy court. The bankruptcy court has an important role to play in our law and our economic community. However, I do think it is fair to say that it is a forum in which it naturally looks first to maximizing the assets of the estate. In contrast, the Federal Energy Regulatory Commission's first obligation is to protect our nation's ratepayers. In this very unique context, in which a seller of electricity that has fraudulently and criminally manipulated the market in violation of the tariffs on file with the commission--and where the seller is now seeking to reap the profits from that activity in the form of termination payments for power never delivered--what we are saying here, unequivocally, is that FERC is the forum in which this should be resolved. FERC is the entity that is supposed to look after our nation's ratepayers, and should have make the decision about whether termination payments are permissible under the Federal Power Act..

Given the nuanced, legal nature of this provision, I can assure my colleagues that this ``rifle shot,'' as the ranking minority member of the committee called it, is narrowly drawn in order to minimize any unanticipated impacts. It is only applicable to contracts entered into during the electricity crisis with sellers of electricity that manipulated the market to such an extent that they brought about unjust and unreasonable rates. There is only one such seller, and that is Enron, and there are only a handful of terminated contracts with Enron that haven't been resolved as of this date.

As a result, the amendment does not tamper with or otherwise disturb long-standing legal precedents. It does not tamper with the Mobile- Sierra doctrine, nor does it disturb other recent federal court decisions regarding the relationship of the bankruptcy courts and FERC in the context of the rejection in bankruptcy of FERC approved power sales contracts. It is, as the ranking minority member of the committee observed, a ``clean shot'' that ``affirms that FERC is the entity with the authority to review whether termination payments associated with cancelled Enron power contracts are lawful under the Federal Power Act.''

The ultimate disposition of this issue is of paramount concern to my constituents. It will decide whether they will be on the hook for more than $120 million, an amount that means more than $400 in the pocket of each ratepayer in Snohomish County, WA. It is critical that this issue be decided by the forum with the specialized expertise in matters relating to the sale of electricity with a stated mission of protecting ratepayers, and that is the Federal Energy Regulatory Commission.

Let me conclude by saying that I am very pleased that this provision has broad bipartisan support as well as the support of the Edison Electric Institute, the National Rural Electric Co-operative Association and the American Public Power Association. I believe my colleague from Oregon, Senator Smith, said it exactly right when this amendment was debated in committee, and I am extremely grateful for his support. He essentially said that no Senator Republican or Democrat should feel any limitation in ``lending their shoulder to this wheel,'' to get this situation fixed. Senator Smith, Senator Allen, and Senator Craig all played important roles during the mark-up in allowing this measure to move forward.

And I would be remiss if I did not mention the invaluable assistance from the Senators from Nevada on this issue the minority leader, Senator Reid, but also Senator Ensign. While Senator Ensign does not serve on the Energy Committee, he played a crucial role in ensuring that colleagues on both sides of the aisle understood the importance and reasonableness of this measure, and the importance of this provision to him and to the people of Nevada.

I thank my colleagues, look forward to the passage of this provision out of the Senate and to working together to ensure this critical measure is included in legislation that emerges from the Energy bill conference with the House of Representatives.

Mr. President, I rise to thank my colleagues for including a provision in this bill which give the people of Nevada a fair chance to keep their hard earned money away from the clutches of Enron.

Enron is still seeking to extract an additional $326 million in profits from my State's utilities for power that was never delivered. Enron, after all of its market manipulation and financial fraud, is still trying to profit from its wrong-doing at the expense of each and every Nevadan.

Section 1270 of the Energy Policy Act ensures that the proper government agency will determine whether Enron is entitled to more money from Nevada. That agency is the Federal Energy Regulatory Commission. When FERC was established by Congress, its fundamental mission was, and remains, to protect ratepayers. FERC has specialized expertise required to resolve the issues surrounding some of the contracts that Enron entered into and eventually terminated.

Many of my colleagues know that Enron has filed for bankruptcy protection. There is an issue in the bankruptcy case as to whether Enron can enforce contracts that it terminated. The enforceability of these contracts should not be decided by a bankruptcy court. A bankruptcy judge does not have the specialized expertise required for this job. A bankruptcy court is responsible for considering different equities than an oversight agency, like FERC, would. The bankruptcy court is responsible for enhancing the bankruptcy estate for the benefit of creditors. FERC, on the other hand, sees a more complete picture which includes protecting the interests of the general public.

This is why section 1270 is so important. It is a provision that is limited in scope. It does not seek to resolve the issue in the favor of one party. Though many Senators from affected States may have been tempted to legislate the outcome, we have refrained from doing so. Let me set the stage for why this provision is so critical. It is a complicated story. It is one that should be told in order to understand why I so strongly support this provision and why I believe the provision should be enacted into law.

There are two major utilities that serve Nevada: Nevada Power and Sierra Pacific Power. Both need to buy power in the wholesale power market to meet the growing energy needs of Nevada. Las Vegas is the fastest growing city in the country. It takes a lot of power to keep the lights on in Las Vegas, Reno, and other parts of our growing State. At the height of the western electricity crisis, when spot market prices for electricity were going not just through the roof but through the stratosphere, FERC urged utilities like the Nevada utilities to reduce their purchases of spot supplies and enter into long-term contracts for electricity.

That is precisely what the Nevada utilities did. Enron was one of the biggest suppliers of wholesale electricity at the time. Starting in December 2000, the Nevada utilities entered into long-term contracts with Enron to meet a significant portion of their long-term needs. At the time, no one was aware of Enron's on-going criminal conspiracy to manipulate the market. No one knew that Enron had engaged in fraud to hide its true financial picture.

The prices that the Nevada utilities agreed to pay Enron for long- term power were truly outrageous. The prices fully reflected Enron's success in manipulating the market. Prices were three times as high as the threshold that FERC had established as a ceiling price that would trigger close scrutiny under the just and reasonable standard. As a result, in November 2001, the Nevada utilities asked FERC to review the rates to determine whether those contract prices were just and reasonable.

Two days after the Nevada companies filed their complaints against Enron, Enron filed for bankruptcy. Its financial house of cards had finally collapsed. As one definitive study of Enron concluded, Enron had been insolvent at the time the company entered into each and every contract with the Nevada utilities.

The contracts between Enron and the Nevada utilities incorporated the Western Systems Power Pool Agreement, a master agreement on file and approved by FERC. This master agreement governs transactions of more than 200 parties throughout the west.

Under the terms of that agreement, if one of the parties files for bankruptcy, the other party may rescind the agreement. So in this case, Enron's bankruptcy would have given the Nevada utilities cause to terminate the contracts. Under the unique terms of this agreement, however, the commercial party that is ``in the money'' will still be able to benefit if the contract is rescinded. So while the Nevada companies could terminate the contract, they still would have had to pay Enron the difference between the contract price and the market price at the time of terminating, to say nothing of the need to buy replacement power.

When Enron entered bankruptcy, the price for electricity had fallen to the level power had sold for prior to Enron's market manipulation. This demonstrates that there was a huge difference between the artificially and unlawfully manipulated price that Enron commanded at the time of the contract and the market price at the time Enron filed for bankruptcy. Given the huge financial hit that the Nevada companies would have had to pay to terminate the Enron contracts, the Nevada companies continued to honor their commitment to purchase power under these contracts.

In March 2002, the Public Utilities Commission of Nevada refused to allow the Nevada utilities to pass more than $400 million in purchased power costs on to ratepayers. As a result, the credit ratings of the Nevada utilities fell below investment grade. Under the terms of the WSPPA, this downgrade gave Enron the right to request assurances regarding the Nevada companies'

intentions with respect to their contracts. In meetings and in telephone calls, the Nevada Companies assured Enron that they would be able to pay Enron everything that would be owed under the contracts.

The WSPPA required Enron to use ``reasonable'' discretion with respect to the contracts. Despite this requirement, Enron terminated the contracts with the Nevada companies and demanded that the Nevada companies pay Enron termination payments totaling approximately $326 million. These termination payments represent pure profit to Enron on power than Enron never delivered. By pure profit, I mean just that. The termination payments are calculated, as I previously noted, by the difference between the cost of power today and the outrageous, manipulation-based prices Enron was able to extract during the energy crisis that Enron had unlawfully created.

The Nevada companies refused to make payment. At this time, it was known that Enron had manipulated the entire western market. As part of Enron's bankruptcy, an ``adversary proceeding'' was initiated to determine the enforceability of these contracts and whether Enron would be allowed to continue to profit under fraudulent contracts at the expense of Nevada's ratepayers.

At this point, the legal proceedings become very complex but the proceedings should be summarized so my colleagues will understand exactly what has happened.

On June 24, 2003, FERC determined that the ``just and reasonable'' standard of review is not available to the Nevada companies with respect to their long-term contracts with Enron. This decision was made because FERC argued that it had previously ``pre-determined'' that the contracts would be just and reasonable when they granted Enron its authority to sell electricity at market-based rates years earlier.

On the very next day, FERC withdrew Enron's authority to sell electricity at market-based rates because of its ``market manipulation schemes that had profound adverse impacts on market outcomes'' which violated its ``market-based rate authorizations.''

The bankruptcy court judge, on August 23, 2003, ruled on a summary judgment motion that the Nevada utilities were required to pay Enron $326 million in termination payments. The court held that, because FERC had not found that Enron's contracts should be modified by virtue of its market manipulation, the filed-rate doctrine applied. It further ruled that it did not need to defer to FERC on whether Enron had complied with the tariff since it could interpret the tariff as well as

Mr. President, I am pleased join with the distinguished majority leader in support of H.R. 6.

I am particularly pleased with the bill's support for integrated coal gasification, IGCC, technology development and deployment into commercial use. Our Nation needs a comprehensive energy policy which promotes new, cleaner, and more advanced generation technologies.

I have been increasingly concerned with the challenges associated with developing IGCC technology for burning Western coal. Western coal is a valuable resource and crucial to our economy; however, both cost and technological difficulties have prevented development of IGCC in the West. That is why I support a provision for a Western IGCC Demonstration Project, Section 407. This project would allow for development of an IGCC technology designed to use Western coal and in a cost-effective manner.

I have also been increasingly concerned with the need to address climate change. The promise of IGCC technology's ability to reduce carbon dioxide emissions should be realized as soon as possible. That is why the Western IGCC demonstration project shall include a carbon technology component.

I wish to also take this opportunity to clarify an important point. There have been media reports expressing concern that the Western IGCC demonstration project is special legislation designed to benefit a single company building a new project in Wyoming. I can assure you that neither this provision, nor any other provision I have sponsored, is designed to benefit any specific project or any specific company. My sincere objective is simply to provide for the development of an IGCC

demonstration project in the West, using Western coal, regardless of who owns or develops it.

This provision is designed to provide incentives to an IGCC project using Western coal at high altitudes. I have heard from many stakeholders, the utility industry, environmental groups and energy consumers, regarding the potential environmental and energy benefits of this new technoloy. However, I have also heard that IGCC has been applied primarily in the East. It is not yet demonstrated to be viable and cost-effective in the high altitude West using the low-rank coals mined in Western States. This provision would allow the region to prove the viability of this important technology, assess carbon capture and sequestration opportunities, and, I hope, lead to its successful deployment in my region of the country.

The purpose of the Western coal demonstration project will be to show that coal gasification works for the different kinds of coals mined in the West. This includes the lower energy coals like those mined in Wyoming's Powder River Basin, and it includes higher energy coals like those found in Colorado. These coals vary by energy content, and in other ways such as moisture and sulfur content. My colleague from Wyoming and I want to ensure that the demonstration project will show the feasibility of gasification for the entire range of Western coals. In that way, hurdles to gasification can be removed and our Nation can move forward into a cleaner energy future, and one that recognizes the importance of our abundance of coal resources.

I want to close with a special tribute to Senator Thomas for his diligence in this effort. We are both Western Senators and we share a concern that the Western United States should benefit from IGCC technology as much as the Eastern United States. I want to thank him for his initiative and support for this provision.

Mr. President, as I have said time and again during this debate over the last several weeks, America is being held hostage to its over-dependence on foreign oil. This Energy bill is our first step in setting America free.

From the National Renewable Energy Laboratory in Golden to the balanced development of oil and gas, Colorado is already playing a big part in setting America free.

With a huge, untapped resource called oil shale, Colorado can play an even bigger role in this effort. If properly developed, oil shale that exists in my great State of Colorado has the potential to be part of a strategy to address America's dependence on foreign oil.

Colorado is home to tremendous deposits of oil shale, a type of hydrocarbon bearing rock that is abundant in Western Colorado, as well as Utah and Wyoming. Estimates place the potential recoverable amount of this type of oil as high as 1 trillion barrels. Let me say that again--1 trillion barrels.

Let me put that in perspective:

Saudi Arabia's proven conventional reserves are said to be around 261 billion barrels.

Several of our colleagues argued earlier this spring that ANWR is a resource so remarkable that we must open that pristine land to drilling. According to the U.S. Geological Survey--USGS--the mean estimate of technically recoverable oil is 7.7 billion barrels--billion bbl--but there is a small chance that, taken together, the fields on this Federal land could hold 10.5 billion bbl of economically recoverable oil. That's one percent of the potential oil shale.

Assuming we use 15 million barrels of oil a day just for transportation, oil

shale could keep our transportation going for another 200 years.

Colorado has some experience in trying to access this potential asset. We have had two boom and bust periods, one in the 1800s and the other in the 1980s.

The most recent story is about the ``Boom & Bust'' Colorado experienced during the last oil shale development cycle that began in the 1970's and ended in May of 1982 on ``Black Sunday.''

I will never forget the powerful lessons of Black Sunday.

Colorado invested millions in new towns, only to see thousands of residents flee when oil prices fell, leaving behind them a devastated real estate market.

Communities that invested heavily in schools and roads and housing could no longer meet the burden of paying for this critical infrastructure.

Buildings on the Western Slope--and even in Denver--were built and left empty, if the construction was completed at all.

Towns that thought they were seeing a bright future, struggled to deal with crippling unemployment.

The technical challenges of oil shale and the searing memories of Black Sunday have taught all of Colorado some important lessons.

We now recognize that oil shale's potential can only be realized if it is approached in the right way.

Oil shale development must be considered a marathon and not a sprint.

I believe, as many in Colorado do, that oil shale research and development must be conducted in an open, cautious and thoughtful manner that includes our local communities.

As Congress instructs Federal agencies to consider oil shale research and development leasing and commercial leasing, it must give careful consideration to environmental and socioeconomic impacts and mitigations as well as the sustainability of an oil shale industry.

Colorado is a team player. The people of my State are ready to share the abundant natural resources with which we have been blessed. In exchange, Colorado expects to have a seat at the table.

That is why I introduced the Oil Shale Development Act of 2005. I am very pleased that it has been incorporated into the Energy bill we are now considering.

I believe the oil shale provision in this Energy bill is a thoughtful approach to future oil shale development. It is full of commonsense provisions that build on the lessons we learned in that painful experience 30 years ago.

It directs leasing for research and development;

It requires a programmatic Environmental Impact Study to ensure that we take a comprehensive environmental look at potential commercial leasing;

It directs the Secretary of Interior to work with the States, local communities, and industry to identify and report on issues of primary concern to local communities and populations with commercial leasing and development;

and it insists that States--not the Federal Government--retain authority over water rights.

I know we are going to hear more and more about oil shale development in the Rocky Mountain west. That is as it should be, and we will embark on a thoughtful, balanced approach to oil shale development with this bill.