Madera Water Supply Enhancement Act

Mr. President, I rise today to introduce legislation to help millions of Americans overcome a deadly addiction: the addiction to tobacco. The Medicare, Medicaid and MCH Smoking Cessation Promotion Act of 2008 will help make smoking cessation therapy available to recipients of Medicare, Medicaid, and the Maternal and Child Health, MCH, Program.

More than 45 million adults in the United States smoke cigarettes. Approximately 90 percent started smoking before the age of 14. Despite the fact that we have known for decades that cigarette smoking are the leading preventable cause of death, 1,600 adults become regular smokers each day, including 4,000 kids. Depending on your race/ethnicity, socioeconomic status, even where you live, the likelihood that you are a smoker varies greatly. African-Americans are twice as likely as the general population to smoke. Communities in the South are more likely to be smoker-friendly than other communities in the U.S. While 22.5 percent of the general adult population in the U.S. are current smokers, the percentage is about 50 percent higher among Medicaid recipients. Thirty-six percent of adults covered by Medicaid smoke.

We have a moral argument and an economic argument to end the addiction to nicotine. Morally, how do we ignore the deaths of 438,000 smokers or 8.6 million Americans living with serious smoking-related illnesses? Smoking causes virtually all cases of lung cancer and contributes to primary heart disease, peripheral vascular disease, chronic obstructive pulmonary disease, COPD, and other deadly health ailments. It is too often a bleak future for smokers and their families. An American Legacy Foundation report reminds us that second- hand smoke in children of smokers leads to asthma and chronic ear infections in children but also that 43,000 children are orphaned every year because of tobacco-related deaths.

We are not only paying a heavy health toll, but an economic price as well. According to the Campaign for Tobacco Free Kids, health care expenditures caused by smoking is approaching $100 billion. Our federal government pays $17.6 billion in smoking-caused Medicaid payments and $27.4 billion in smoking-caused Medicare expenditures.

Ironically, we do not hear that much about how many smokers America-- 70 percent--want to quit. Unfortunately, they face long odds--in 2000, only about 5 percent of smokers were successful in quitting long-term. Overcoming an addiction to tobacco is arguably one of the single most important lifestyle changes that can improve and extend lives. However, most smokers who want to quit don't appreciate how hard it really is to break an addition to nicotine.

This is why it is essential that we make this decision and the courage that it takes as easy as possible. States are already stepping up to the plate when it comes to smoking cessation. Last year in my home State of Illinois, a record-breaking 36 cities and counties enacted smoke-free laws, more than any other State in the Nation. More and more Illinoisans and Americans nationwide are realizing that life without smoking is possible. And the support for cessation does not end there. In fact, in 2003, 37 States had some form of coverage under Medicaid for at least one evidence-based treatment for smoking addiction. States like New Jersey and Oregon now have some of the lowest smoking-related Medicaid costs.

Studies have shown that reducing adult smoking through tobacco use treatment pays immediate dividends, both in terms of health improvements and cost savings. Shortly after quitting smoking, blood circulation improves, carbon monoxide levels in the blood decrease, the risk of heart attack decreases, lung function and breathing are improved, and coughing decreases.

Pregnant women who quit smoking before their second trimester decrease the chances that they will give birth to a low-birth-weight baby. Over the long term, quitting will reduce a person's risk of heart disease and stroke, improve symptoms of COPD, reduce the risk of developing smoking-caused cancer, and extend life expectancy.

We are fortunate to have identified clinically proven, effective strategies to help smokers quit. Advancements in treating tobacco use and nicotine addiction using pharmacotherapy and counseling have helped millions kick the habit. An updated clinical practice guideline released in May of 2008 by the U.S. Public Health Service urges health care insurers and purchasers to include counseling and FDA-approved pharmacologic treatments as a covered benefit. The Guideline also emphasizes the role that counseling, especially in conjunction with medication, increases the odds of success in quitting. As we urge healthcare insurers and purchasers to offer this important benefit, so too should our government sponsored health programs keep pace.

I am proud to be joined by my colleagues Senators Kennedy and Lautenberg to introduce the Medicare, Medicaid and MCH Smoking Cessation Promotion Act of 2008 and require government-sponsored health programs to cover this important benefit. The Medicare, Medicaid, and MCH Smoking Cessation Promotion Act of 2008 makes it easier for people to have access to smoking cessation treatment therapies. It does three meaningful things.

First, this bill adds a smoking cessation counseling benefit and coverage of FDA-approved tobacco cessation drugs to Medicare. By 2020, 17 percent of the U.S. population will be 65 years of age or older. It is estimated that Medicare will pay $800 billion to treat tobacco related diseases over the next 20 years.

Second, this bill provides coverage for counseling, prescription and non-prescription smoking cessation drugs in the Medicaid program. The bill eliminates the provision in current federal law that allows States to exclude FDA-approved smoking cessation therapies from coverage under Medicaid. Despite the fact that the States have received payments from their successful Federal lawsuit against the tobacco industry, less than half the States provide coverage for smoking cessation in their Medicaid program. Even if Medicaid covered cessation products and services exclusively to pregnant women, we would see significant cost savings and health improvements. Children whose mothers smoke during pregnancy are almost twice as likely to develop asthma as those whose mothers did not. Over 7 years, reducing smoking prevalence by just one percentage point among pregnant women would prevent 57,200 low birth weight births and save $572 million in direct medical costs.

Third, this bill ensures that the Maternal and Child Health Program recognizes that medications used to promote smoking cessation and the inclusion of anti-tobacco messages in health promotion are considered part of quality maternal and child health services.

As Congress begins to examine more closely the impact of tobacco on our country--considering regulation by the FDA or raising taxes to pay for public health priorities--we must make sure we assist those fighting this deadly addiction. I hope my colleagues will join me in cosponsoring this legislation and taking a stand for the public health of our Nation.

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

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 9:30 a.m., in open session, with a possibility of a closed session, to receive testimony on the Department of the Navy in review of the defense authorization request for fiscal year 2009 and the Future Years Defense Program.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on February 28, 2008, at 10 a.m., in order to conduct a hearing entitled ``Semiannual Monetary Policy Report To Congress.''

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 10 a.m., in room 253 of the Russell Senate Office Building, in order to conduct a hearing. The purpose of this hearing is to review the President's proposed Department of Transportation budget for the 2009 fiscal year.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate in order to conduct a hearing on Thursday, February 28, 2008, at 9:30 a.m., in room SD366 of the Dirksen Senate Office Building. At this hearing, the Committee will hear testimony regarding the impact of increased minimum wages on the economies of American Samoa and the Commonwealth of the Northern Mariana Islands.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 10 a.m., in room 215 of the Dirksen Senate Office Building, in order to conduct a hearing entitled ``The Real Estate Market: Building a Strong Economy.''

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 9:30 a.m. in order to hold a hearing on U.S. policy options in post-election Pakistan.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate, in order to conduct an executive business meeting on Thursday, February 28, 2008 at 10 a.m. in room SD-226 of the Dirksen Senate Office Building.

Agenda

I. Bills: S. 2304, Mentally Ill Offender Treatment and Crime Reduction Reauthorization and Improvement Act of 2007, (Domenici, Kennedy, Specter, Leahy); S. 2449, Sunshine in Litigation Act of 2007, (Kohl, Leahy, Graham); S. 352, Sunshine in the Courtroom Act of 2007, (Grassley, Schumer, Leahy, Specter, Graham, Feingold, Cornyn, Durbin); S. 2136, Helping Families Save Their Homes in Bankruptcy Act of 2007, (Durbin, Schumer, Whitehouse, Biden, Feinstein); and S. 2133, Home Owners ``Mortgage and Equity Savings Act'', (Specter, Coleman).

II. Nominations: Kevin J. O'Connor to be Associate Attorney General, Department of Justice; Gregory G. Katsas to be Assistant Attorney General, Civil Division, Department of Justice.

Mr. President, I ask unanimous consent that the Joint Economic Committee be authorized to meet, during the session of the Senate, in order to conduct a hearing entitled ``War at any cost? The total economic costs of the war beyond the Federal budget'' on Thursday, February 28, 2008. The hearing will commence at 9:30 a.m. in room 106 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on February 28, 2008, at 2:30 p.m. in order to hold a closed hearing.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works, Subcommittee on Clean Air and Nuclear Safety, be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 10 a.m. in room 406 of the Dirksen Senate Office Building in order to conduct a hearing entitled, ``Nuclear Regulatory Commission Oversight: Security of Our Nation's Nuclear Plants.''

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary, Subcommittee on Terrorism, Technology and Homeland Security, be authorized to meet during the session of the Senate, in order to conduct a hearing entitled ``Weaknesses in the Visa Waiver Program: Are the Needed Safeguards in Place to Protect America?'' on Thursday, February 28, 2008, at 2:30 p.m. in room SD-226 of the Dirksen Senate Office Building.

Witness list

Paul Rosenzweig, Deputy Assistant Secretary, Office of Policy, U.S. Department of Homeland Security, Washington, DC; Tony Edson, Deputy Assistant Secretary for Visa Services, U.S. Department of State, Washington, DC; Jess Ford, Director, International Affairs and Trade, Government Accountability Office, Washington, DC; Susan Ginsburg, Director of Programs on Mobility and Security, Migration Policy Institute, Washington, DC; and Jessica Vaughan, Senior Policy Analyst, Center for Immigration Studies, Washington, DC.

Mr. President, I ask unanimous consent that the Subcommittee on Water and Power of the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate in order to conduct a hearing on Thursday, February 28, 2008, at 2 p.m., in room SD-366 of the Dirksen Senate Office Building. At this hearing, the Committee will hear testimony regarding the following legislation:

S. 177/H.R. 2085, to authorize the Secretary of the Interior to convey to the McGee Creek Authority certain facilities of the McGee Creek Project, Oklahoma, and for other purposes;

S. 1473/H.R. 1855, to authorize the Secretary of the Interior, acting through the Bureau of Reclamation, to enter into a cooperative agreement with the Madera Irrigation District for purposes of supporting the Madera Water Supply Enhancement Project;

S. 1474/H.R. 1139, to authorize the Secretary of the Interior to plan, design and construct facilities to provide water for irrigation, municipal, domestic, and other uses from the Bunker Hill Groundwater Basin, Santa Ana River, California, and for other purposes;

S. 1929, to authorize the Secretary of the Interior, acting through the Commissioner of Reclamation, to conduct a feasibility study of water augmentation alternatives in the Sierra Vista Subwatershed;

S. 2370, to clear title to certain real property in New Mexico associated with the Middle Rio Grande Project, and for other purposes;

H.R. 2381, to promote Department of the Interior efforts to provide a scientific basis for the management of sediment and nutrient loss in the Upper Mississippi River Basin, and for other purposes.

Mr. President, I rise today to introduce, on behalf of myself and Senators Sessions, Murkowski, and Landrieu, a bill that establishes the foundation for a sustainable nuclear fuel cycle for the U.S. A sustainable nuclear fuel cycle is the key to nuclear energy reaching its full potential to provide the large scale base load electrical generating capacity our country needs, while reducing greenhouse gas emissions. Today, nuclear energy provides nearly 20 percent of our electricity generation capacity and does so more reliably, and with a lower cost per kilowatt hour than coal, with essentially no greenhouse gas emissions. In the decades to come, we will need nuclear energy to play an even greater role, not only in electrical generation, but also in the transportation and industrial sectors, if we are to achieve the reductions in greenhouse gas emissions needed to address the challenge of global climate change. The Strengthening Management of Advanced Recycling Technologies Act, or SMART Act, represents the first important step in building the bridge to that future.

The SMART Act promotes the establishment of privately owned and operated used nuclear fuel storage and recycling facilities. These facilities will help resolve the current deadlock in spent nuclear fuel management while providing a means to extract additional energy from used nuclear fuel. I believe that a commercially viable used fuel recycling strategy, combined with a responsible waste disposition strategy, will enable the expansion of nuclear energy necessary to meet all our goals for the future of nuclear energy. The SMART Act advances this vision through incentives--rather than mandates--for both industry and local communities.

The SMART Act establishes a competitive 50-50 cost share program between the Department of Energy and private industry to finance engineering and design work and the development of license applications for up to 2 spent fuel recycling facilities. The SMART Act restricts facility designs to commercial scale facilities that do not separate pure plutonium. The recycling technology must also reduce the burden on geologic repositories used for ultimate disposal of waste and promote extraction of additional energy from used fuel stocks. Beyond these restrictions, the choice of recycling technology is left up to industry.

The resulting reference licenses for recycling facilities may then be used by industry to construct domestic used nuclear fuel recycling capacity. To assist industry in securing the necessary financing for these facilities, the SMART Act authorizes DOE to offer long term contracts for spent fuel recycling services. All construction and financing costs, however, would be born by industry.

Although ultimate geologic disposition of waste will always be needed, interim storage of used nuclear fuel is a

necessary component of the nuclear fuel cycle infrastructure. To encourage development of interim storage facilities the SMART Act establishes an economic incentive program for communities and states that wish to host a facility within their jurisdiction. All interim storage facilities would be privately owned and operated and licensed by the Nuclear Regulatory Commission. The SMART Act incentives are designed to encourage the development of two large scale facilities with enough capacity to accommodate our annual domestic used nuclear fuel generation.

As with the used fuel recycling facilities, the SMART act authorizes the Department of Energy to enter into long term contracts with storage facility operators. In addition, the SMART Act allows the Department of Energy to enter into agreements with utilities for the settlement of all future claims against the department for failure to take title to spent nuclear fuel by 1998.

Currently, the Nuclear Waste Fund established by the Nuclear Waste Policy Act of 1982 has a balance of approximately $20 billion and is growing by nearly $1.8 billion annually from fees paid by the utilities and interest on the fund. Unfortunately, this fund is currently ``on budget'' and amounts to little more than an IOU to the U.S. ratepayers. The SMART Act will allow access to a small portion of this fund so that it can begin working to resolve the nuclear waste issue as it was intended.

The SMART Act establishes a revolving fund from $1 billion of the current waste fund as well as the annual interest on the fund. The remaining 95 percent of the current waste fund, as well as all future fees, would be placed in a legacy fund for the purposes of constructing a geologic repository. Expenditures from the revolving fund for the provisions of the act could be made without further appropriations but would be subject to limitations in appropriations acts. In this way the revolving fund could be put to use without being subject to the uncertainty of the annual appropriations process while still retaining the authority of Congress to oversee the fund.

The resolution of the used nuclear fuel issue has been deadlocked for decades. Fortunately time has been on our side since nuclear energy produces so little waste. For example the nuclear waste generated by a family of four during their entire lives is only a couple of pounds. Some have even said that we do not need to begin recycling used nuclear fuel for 30 or 40 years. I do not believe we can wait that long before we resolve the used nuclear fuel issue, however. We must begin taking steps today that will place us on the path to a secure and sustainable nuclear energy industry in the future. We must demonstrate to industry and financial institutions the Government's commitment to resolving the used nuclear fuel issue. The SMART bill will place us on that path to the future.

Mr. President, I seek recognition today to introduce the Attorney-Client Privilege Protection Act of 2008, which is a modified version of my earlier legislation by the same name. This legislation, which adds original cosponsors, continues to address the Department of Justice's corporate prosecution guidelines. Those guidelines, last revised by former Deputy Attorney General Paul McNulty in December 2006, erode the attorney-client relationship by allowing prosecutors to request privileged information backed by the hammer of prosecution if the request is denied.

Like my previous bill, S. 186, this bill will protect the sanctity of the attorney-client relationship by prohibiting federal prosecutors and investigators from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation

of the attorney-client privilege, or agreement to a joint defense agreement.

The new version of the bill makes many subtle improvements, including defining ``organization'' to make clear that continuing criminal enterprises and terrorist organizations will not benefit from the bill's protections. The bill also clarifies language that the Department of Justice had previously criticized as ambiguous. The bill also makes clear in its findings that its prohibition on informal privilege waiver demands is far from unprecedented. The bill states: ``Congress recognized that law enforcement can effectively investigate without attorney-client privileged information when it banned Attorney General demands for privileged materials in the Racketeer Influenced and Corrupt Organizations Act. See 18 U.S.C. Sec. 1968(c)(2).''

There is no need to wait to see how the McNulty memorandum will operate in practice. There is similarly no need to wait for another internal Department of Justice reform that will likely fall short and be the fifth policy in the last 10 years. Any such internal reform will not address the privilege waiver policies of other government agencies that refer matters to the Department of Justice and allow in through the window what isn't allowed through the door.

As I said when I introduced S. 186, the right to counsel is too important to be passed over for prosecutorial convenience. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted. The 6th Amendment is a fundamental right afforded to individuals charged with a crime and guarantees proper representation by counsel throughout a prosecution. However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law. As the Supreme Court observed in Upjohn Co. v. United States, ``the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.'' When the Upjohn Court affirmed that attorney-client privilege protections apply to corporate internal legal dialogue, the Court manifested in the law the importance of the attorney-client privilege in encouraging full and frank communication between attorneys and their clients, as well as the broader public interests the privilege serves in fostering the observance of law and the administration of justice. The Upjohn Court also made clear that the value of legal advice and advocacy depends on the lawyer having been fully informed by the client.

In addition to the importance of the right to counsel, it is also fundamental that the Government has the burden of investigating and proving its own case. Privilege waiver tends to transfer this burden to the organization under investigation. As a former prosecutor, I am well aware of the enormous power and tools a prosecutor has at his or her disposal. The prosecutor has enough power without the coercive tools of the privilege waiver, whether that waiver policy is embodied in the Holder, Thompson, McCallum, McNulty--or a future Filip--memorandum.

As in S. 186, this bill amends title 18 of the United States Code by adding a new section, Sec. 3014, that would prohibit any agent or attorney of the U.S. Government in any criminal or civil case to demand or request the disclosure of any communication protected by the attorney-client privilege or attorney work product. The bill would also prohibit government lawyers and agents from basing any charge or adverse treatment on whether an organization pays attorneys' fees for its employees or signs a joint defense agreement.

This legislation is needed to ensure that basic protections of the attorney-client relationship are preserved in Federal prosecutions and investigations.

Mr. President, I would like to discuss a bill that I am introducing along with Senator Hatch today, the Carbon Reduction Technology Bridge Act of 2008.

This bill is designed to develop the technologies that will enable us to use coal in a manner that helps address the threat of climate change.

Our country depends on coal to provide half of our electricity. In North Dakota, coal accounts for over 90 percent of our power. This is the power we need for lighting and heating our homes, powering our businesses, and, in the future, charging our cars.

The U.S. has vast resources of coal, enough to last over 250 years. We need to ensure that we can continue to enjoy the affordable electricity provided by coal, while developing technologies that will lower the greenhouse gas emissions that result from coal use.

We need to advance carbon capture and storage technologies to address the reality of climate change. The scientific evidence is clear that human activity is increasing the concentration of greenhouse gases in the atmosphere, which contributes to warming temperatures. The increased occurrence of severe weather and other effects that we have seen to date are small in comparison to what scientists say are the likely consequences of continued warming.

This bill will help jumpstart investment in technologies to capture and store carbon. It provides tax credits to the first generation of highly efficient advanced coal plants that capture carbon dioxide. It helps companies make the first investments in carbon capture and storage equipment on the first existing plants. It also provides credits for each ton of carbon dioxide captured and stored underground. It provides a number of other incentives to advance coal technology.

The science on climate change is clear, but what is not proven is the technology that can provide the solution. This bill sets ambitious but achievable goals for those companies willing to be the first to address this challenge head-on and build and install these technologies. Under this bill, a typical new coal plant would be required to capture 65 percent of its carbon dioxide emissions. After the first generation of projects supported by this bill, we will have tested and refined the technologies to enable an even higher rate of capture on future plants.

This bill will provide an important step toward affordable, low- carbon power. I welcome comments from my colleagues on this proposal and hope that they will join me in sponsoring this bill.