Floor Statements

Mr. President, I rise today, National Adoption Day, to join my colleagues in introducing this bill to give children everyhwere around the world a greater chance to find a loving, permanent home.

This bill, the Intercountry Adoption Reform Act (ICARE), will automatically make a child who is adopted from another country a citizen the minute the adoption is finalized.

This legislation has a personal impact for me. My granddaughter was adopted from Ethiopia a few years ago. Even though she is a vital part of our family, she was not a citizen when she arrived. We now have to do work to make the law recognize her in the same light we do--as a legal member of our family and a lawful citizen of this country-- entitled to the same rights and privileges as all my other biological grandchildren.

ICARE will ensure that foreign-born children, such as my granddaughter, will be treated the same as biological children born abroad to the same parent who is an American citizen. It will help streamline international adoptions and implement best practices for all adoptions.

Situations such as one that happened in my State of Oklahoma would not have happened under this legislation. Anna Lynn Fincher was born in the Philippines and adopted by a U.S. military couple in the Philippines. Even though they adopted Anna Lynn in the Philippines, they never brought her to the United States. Sadly, both of Anna Lynn's American parents died while in the Philippines--before Anna Lynn was able to set foot on American soil and become a U.S. citizen. As a result, she had to be granted Humanitarian Parole, which is granted to people in extreme circumstances, so that she could come to the United States and be adopted by her adoptive sister.

Under ICARE, Anna Lynn would have become a citizen as soon as her adoption was finalized--eliminating the need for Humanitarian Parole and another adoption.

Providing children, such as my granddaughter and Anna Lynn, with a permanent, stable family is the most precious gift we can give a child. I am proud to lend my support to this important legislation that will help give these young people a home.

Mr. President, I rise today, National Adoption Day, to join my colleagues in introducing this bill to give children everyhwere around the world a greater chance to find a loving, permanent home.

This bill, the Intercountry Adoption Reform Act (ICARE), will automatically make a child who is adopted from another country a citizen the minute the adoption is finalized.

This legislation has a personal impact for me. My granddaughter was adopted from Ethiopia a few years ago. Even though she is a vital part of our family, she was not a citizen when she arrived. We now have to do work to make the law recognize her in the same light we do--as a legal member of our family and a lawful citizen of this country-- entitled to the same rights and privileges as all my other biological grandchildren.

ICARE will ensure that foreign-born children, such as my granddaughter, will be treated the same as biological children born abroad to the same parent who is an American citizen. It will help streamline international adoptions and implement best practices for all adoptions.

Situations such as one that happened in my State of Oklahoma would not have happened under this legislation. Anna Lynn Fincher was born in the Philippines and adopted by a U.S. military couple in the Philippines. Even though they adopted Anna Lynn in the Philippines, they never brought her to the United States. Sadly, both of Anna Lynn's American parents died while in the Philippines--before Anna Lynn was able to set foot on American soil and become a U.S. citizen. As a result, she had to be granted Humanitarian Parole, which is granted to people in extreme circumstances, so that she could come to the United States and be adopted by her adoptive sister.

Under ICARE, Anna Lynn would have become a citizen as soon as her adoption was finalized--eliminating the need for Humanitarian Parole and another adoption.

Providing children, such as my granddaughter and Anna Lynn, with a permanent, stable family is the most precious gift we can give a child. I am proud to lend my support to this important legislation that will help give these young people a home.

Mr. President, I rise today to join my colleagues in introducing this bill to repeal the provisions of the Economic Growth and Tax Relief Act of 2001 that sunset the adoption tax credit and adoption assistance programs.

Under the current legislation, families with adopted children are given a tax credit of up to $10,000 to cover their adoption expenses and families who adopt children with special needs are credited the full $10,000. Providing this type of assistance is important in easing the costs of the adoption process and helping families cover expenses incurred by adopting children with special needs.

Currently, there are around 550,000 children in foster care. Of this number, 126,000 are up for adoption. In order to facilitate and expedite the adoption process, I have worked as a member of the Congressional Coalition on Adoption to encourage and support families who are willing to provide a loving, stable, and permanent home for these children. The Coalition has been active in promoting adoption around the country through a number of programs, including the National Adoption Day, a day set aside to draw attention to expediting and finalizing adoptions. In fact, Oklahoma held 20 adoptions this week in celebration of the day.

I strongly believe that it is critical to repeal the sunset provision of the Economic Growth and Tax Relief Act and continue to support those families who are making it possible for children to grow up in a loving and caring environment. As the grandfather of an adopted granddaughter, I can say through personal experience that providing a home where a child can be nurtured and given opportunities to become a contributing member of society is one of the greatest and most rewarding gifts we can ever give.

Mr. President, I rise today to join my colleagues in introducing this bill to repeal the provisions of the Economic Growth and Tax Relief Act of 2001 that sunset the adoption tax credit and adoption assistance programs.

Under the current legislation, families with adopted children are given a tax credit of up to $10,000 to cover their adoption expenses and families who adopt children with special needs are credited the full $10,000. Providing this type of assistance is important in easing the costs of the adoption process and helping families cover expenses incurred by adopting children with special needs.

Currently, there are around 550,000 children in foster care. Of this number, 126,000 are up for adoption. In order to facilitate and expedite the adoption process, I have worked as a member of the Congressional Coalition on Adoption to encourage and support families who are willing to provide a loving, stable, and permanent home for these children. The Coalition has been active in promoting adoption around the country through a number of programs, including the National Adoption Day, a day set aside to draw attention to expediting and finalizing adoptions. In fact, Oklahoma held 20 adoptions this week in celebration of the day.

I strongly believe that it is critical to repeal the sunset provision of the Economic Growth and Tax Relief Act and continue to support those families who are making it possible for children to grow up in a loving and caring environment. As the grandfather of an adopted granddaughter, I can say through personal experience that providing a home where a child can be nurtured and given opportunities to become a contributing member of society is one of the greatest and most rewarding gifts we can ever give.

Mr. President, I rise to pay homage to Sergeant Ross Pennanen, who, in the words of his father, ``gave the ultimate sacrifice for his country--his life.'' Sergeant Pennanen, or ``Penn'', as his friends called him, was a dedicated defender of America who learned the value of serving his country from his father's example in the United States Air Force. For his service and his sacrifice, I am proud to honor him on the Senate floor today.

Sergeant Pennanen was assigned to C Battery, 2nd Battalion, 5th Field Artillery Regiment, III Corps Artillery at Fort Sill, OK. A native Oklahoman whose mother and father live in Ada and Midwest City, respectively, Sergeant Pennanen grew up in McLoud and joined the Army 2 years ago at the age of 34 in hopes of improving himself and emulating his father. He was himself a good father who spent a lot of time with his 7-year-old son, Gage.

Sergeant Pennanen died tragically on November 2 when a CH-47 Chinook helicopter in which he was riding crashed in Fallujah, Iraq. He was a good soldier: he received the Army Commendation Medal two days before his death. Despite questions about his age, Sergeant Pennanen proved a ``gung-ho'' example for his fellow soldiers. According to his stepmother, ``He didn't keep up with them. He set the pace out in front of them.''

On behalf of the U.S. Senate, I ask that we pay tribute to Sergeant Pennanen and the men and women like him, who know the true meaning of service and sacrifice. These men and women have tasted freedom, and wish to ensure that freedom for those who have never experienced it. I honor the memory of our sons and daughters who have died for this noble cause.

We could not have asked for a better soldier or diplomat of humanity than Sergeant Ross Pennanen. I am proud of him, and proud of the commitment he showed to winning the freedom of those he did not know. My prayers are with his family for the loss of such a special man.

Mr. President, I rise today to honor the memory of a courageous young Oklahoman who died

while defending his Nation. Private Jason M. Ward grew up in the great State of Oklahoma, and was a 1997 graduate of Broken Arrow High School.

Private Ward joined the military in April 2002, although he had been seriously considering military service for years. He married his high school sweetheart after graduating, and when Jason and Jordan welcomed their first son shortly thereafter, the duties of fatherhood took priority. After having another son 4 years later, Jason and Jordan began discussing Jason's longtime military aspirations and decided that it would be a good time for him to pursue a lifelong career in the military.

Private Ward was a member of the 1st Armored Division, stationed at Fort Riley, KS. His unit was sent to the Middle East in March to protect the freedom of this fellow Americans, and he was highly involved in the outstanding and courageous work of that unit. Unfortunately, Private Ward fell ill, and was scheduled to return to the U.S. for treatment when he unexpectedly passed away. His sudden death has left his young family with questions that none of us can answer, but we can tell them with confidence that Private Ward was serving his Nation with honor until this tragedy took his life.

Private Ward was only 25 years old when he died. I hope his friends and family know that he died a true hero, worthy of the respect and gratitude of every American because of his contribution to defending his country. His loved ones will miss him dearly, and our thoughts and prayers are with them today. And though we are all grieved by the loss of this man, we will never cease to be proud of him--Oklahoma's son and America's hero--Private Jason M. Ward.

spec dustin k. mcgaugh

Mr. President, I stand today to honor the memory of a brave young American who gave his life defending the Nation. He felt a call to serve his country, to be part of something bigger than himself, and ultimately, paid the highest price.

SPEC Dustin K. McGaugh, of Derby, KS, was a firing specialist assigned to the Army's 17th Field Artillery Brigade stationed in Fort Sill, OK. His mother, Marina Hayes, lives in Tulsa, OK, where he graduated from high school in 2001.

On September 30 in Balad, Iraq, he died tragically from a non-hostile gunshot wound. He gave his life for the freedom of millions of Americans, and also for the peace and prosperity of the Iraqi people crippled by a totalitarian regime.

Specialist McGaugh had a heart for the less fortunate. According to his fellow soldiers, he would leave the safety of his Jeep and give candy to the Iraqi children. Imagine an American soldier who truly cared for the least among us, and performed simple acts of kindness to his fellow humans. Imagine an American soldier who represented America with a noble heart, and reminded us all of the freedoms we take for granted. Specialist McGaugh was that soldier.

His compassion is a microcosm of the American spirit, the spirit that drives us to fight oppression around the world. The Iraqi people are an oppressed people, and Specialist McGaugh showed us how our inherent humanity can overcome even the broadest of differences. He refused to sit idly and watch the tyranny in Iraq take place any longer. It is for the sake of these broken, defeated people that Specialist McGaugh risked his life on a daily basis. It is for these people that he gave his life in the end. He was a true American hero.

His twin sister Windy said that her ``kid brother'' became her hero. Specialist McGaugh should not only be his sister's hero, but the Nation's hero as well. He set a high example of what it means to be an American and what it means to be human. It is for men like Specialist McGaugh that I am proud to be a part of this great country. He was a special soldier, but more importantly, a special man.

Mr. President, I stand today to pay tribute to a great American and a great Oklahoman. Gene Boyt was a member of our Nation's ``Greatest Generation'' and served his country during World War II in the United States Army. He died at the age of eighty-six in Chickasha, OK.

After being assigned to the Philippines as a lieutenant in the Engineering Corps, he was taken captive by the Japanese on April 9, 1942. As a prisoner, he was forced to march 90 miles in 6 days in what has become known as the Bataan Death March. The prisoners marched without food or water, and many were executed or died along the way from exhaustion and dehydration. After surviving the grueling journey, Lieutenant Boyt spent 3\1/2\ years in Japanese prisons.

Gene Boyt knew what persecution meant. He knew what it meant to stand up for the cause of freedom, for the honor and integrity of the United States. Gene Boyt knew what it meant to defend this country from enemies determined to destroy it. He knew

what it meant to suffer for what he believed.

I stand today proud to be an American because men like Gene Boyt lived and died protecting that right. He was awarded the Purple Heart, the Bronze Star, three Presidential Citations, the Philippines's Presidential Citation Medal, and the Oklahoma Medal of Valor. He deserves to be honored once again today on the Senate floor.

Today I stand in tribute to one of Oklahoma's favorite sons, a great American hero and devoted family man. Gene Boyt sacrificed everything for his country, and I am sure that his family is proud of this great man, and the legacy he left behind. The thoughts and prayers of a grateful Nation are with them during this difficult time.

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

Madam President, I have listened very carefully to the distinguished Senator from West Virginia and his characterization of this legislation. I have to come to a different conclusion because I believe this legislation before us today is a first giant step. We have been talking about this now for not months but years. I can tell you right now that the problem we are having with energy in America is a very serious problem.

I am from a State that is a production State. We have produced shallow and marginal wells for a long period of time. Sometimes people don't realize how significant this source of energy is. Statistically this is true: If we had all of the marginal wells that have been plugged in the last year flowing today, it would equal more than we are currently importing from Saudi Arabia. That is a huge amount.

I started out, before most of the people in this Chamber were born, in the industry, in the oil business. I was a tool dresser on a cable tool rig. That is the way we used to go after oil, particularly shallow oil, where you would have to take a bit out. You would stand with it, white hot, and sledgehammers on both sides, sharpen it, and then go back and pound. We pulled a lot of oil out of the ground at that time.

If you think about the economy that resulted from all that production, there were good jobs. In the Osage area of my State of Oklahoma, northeastern Oklahoma, we had a lot of shallow wells. I can remember going in to Pawhuska, OK, at noontime to eat lunch. You would have to wait in line 15 minutes to pay your bill. It was because this industry was so viable. Today it is almost a ghost town.

With the passage of this bill, there are incentives in here. Nobody talks about them. There are some things I wish were in this bill. No one is more familiar with the necessity to get into some of the drilling at ANWR, and certainly we need to be doing that. But just look at some of the opportunities that are in the bill.

This bill has an incentive to get back into marginal well production, and that could open up a huge domestic supply of oil and lessen our reliance upon foreign countries. That reminds me of something I often say: Our reliance upon foreign countries for our oil supply is not an energy issue. It is a national security issue.

I remember back many years ago, during the Reagan administration, when Don Hodel was Secretary of Energy and later Secretary of the Interior. He and I had a little dog and pony show. We would go around the country and talk to them about how the outcome of every conflict, every war back to and including the First World War was dependent on who was in control of the energy supply. We talked about the Malay Peninsula. We talked about the submarines coming into the Caribbean to knock down the ships so we could not get to our refineries.

This is something I thought surely people would understand. They didn't understand it. By the way, the fact that we are looking at an energy policy today, this should not really be a partisan issue. I kind of laugh when I hear some of my colleagues on the other side of the aisle saying we don't need an energy policy. I tried to get Ronald Reagan to have an energy policy. He didn't do it. I tried with the first President Bush. I said: Let's get an energy policy. Let's have, as a cornerstone of that policy, a maximum amount that we are willing to depend on foreign countries for our ability to fight a war. He didn't do it. We didn't do it during the Clinton administration. But this President is.

I talked to this President when he was running for office. I said: Will you commit to an energy policy so we can lessen our dependence on foreign countries for our ability to fight a war? Back when Don Hodel and I were going around, we were 38-percent dependent upon foreign countries. Now it is approaching 60 percent. So it is very serious.

Why is it people wouldn't realize that after the Persian Gulf War in 1991, why wouldn't it be indelibly imprinted upon the hearts of every American that we could no longer be dependent upon the Middle East for our ability to fight a war? Yet it didn't seem to help. We picked up a few extra votes but not enough to get a real policy.

I chair the Environment and Public Works Committee. There are a lot of issues that are within the jurisdiction of my committee that are very significant and that are in this bill. One is, it allows hydraulic fracturing to be used by not just Oklahoma but by all States. This is a way of extracting oil out of tight formations. It is something we need to be addressing. It is addressed in this bill.

This clarifies the exemption for oil and gas production from storm water discharge permits. Congress provided this exemption years ago, and a misinterpretation of the exemption had threatened to stop a lot of the small, local production. This clarifies that and will get us back into producing.

This provides a 5 billion gallon ethanol requirement for motor fuel. If anyone ever says there is is not enough renewable energy in this bill, they have not really read this title of the bill. I started working on this issue over 5 years ago, and I am glad to see that a compromise was developed to increase the amount of renewables while ensuring that our Nation's refineries are not adversely affected.

In my committee, we had the renewal of the Price-Anderson bill. We passed it. It is now a part of this bill. So a lot of the things that would otherwise have been on individual bills or have been on a comprehensive bill from my committee are in this bill.

It is necessary to have reauthorization of Price-Anderson in order to provide the protections so we can go after the other sources of oil such as nuclear sources. This establishes a nuclear security program. I think we all, after 9/11, recognize that.

In the committee I chair, we had all the security bills. We had a wastewater security bill. We had a nuclear security bill. We had a chemical security bill. They are all there for the purpose of protecting those vital elements of our economy from a potential terrorist attack. We went ahead and put the nuclear security bill in this. If we don't pass this, it is going to certainly heighten the risk that is out there on something happening to a nuclear plant. So after a lot of effort, we finally have that in here.

This bill provides $300 million for the EPA's clean schoolbus program, another one that came out of my committee.

I am saying there is a lot more to this bill. It doesn't go far enough. I can't look at the lovely acting President in the chair without thinking about ANWR and about going up there. I just wish people who are so concerned about disrupting the environment or something up there in those slopes would go up and look at it. It is not a pristine wilderness. It is a mud flat. All the local people want it.

Here we are down here--we are a lot smarter here in Washington-- saying no, in spite of the fact it would alleviate some of our reliance upon foreign countries for our ability to fight a war. We are smarter than they are up in Alaska. We know what is good for them in spite of what they want.

I am very proud of both Senators from the State of Alaska for understanding this, for explaining it. I feel sorry for them that we have such arrogance in this body that we feel we know more about their business than they do.

Our Nation is at the point where access is prohibited to almost every major reserve of oil and gas on our Nation's shores. Furthermore, extremist

environmentalists have declared war on oil and gas wells in the interior of our Nation.

I have had occasion, as I am sure the manager of this bill, Senator Domenici, has had numerous occasions to debate people on the other side. We know we have a crisis in energy in this country. Yet there are those on the other side who say: We don't want nuclear energy. We don't want fossil fuels. We don't want oil. We don't want coal. Now they don't even want windmills because they will disturb some migratory bird path.

We have to have it. Look at the flight of industry and business that is going overseas. Right now we have chemical companies that fear they are going to end up not being able to use coal as a source of energy, one that we are depending upon for more than 50 percent of our energy in America today. They have gone over into other countries such as western Europe where they have nuclear energy, where some of the countries, 80 percent of their energy comes from nuclear sources.

This bill is a modest start. But if we don't do this, after being rejected since 1980 and before having an energy policy in America, this crisis we are facing right now is going to be even more serious. It is a modest beginning and one on which certainly, at the very least--I say this to the Republicans--we should at least have a chance procedurally to have an up-or-down vote.

Let's remember what we went through last week for some 39 hours. The big debate there was, let's just get to the point where we can have an up-or-down vote. That is all we want on this, an up-or-down vote. I would hope that some of those individuals who may not be in support of this legislation will at least vote to allow us to have that up-or-down vote.

I suggest the absence of a quorum.

Let's say 15. It probably will be 10.

Let me make a request of the assistant minority leader. Since Senator Akaka is going to take 30 minutes, would it be possible, after the conclusion of the remarks by Senator Dorgan and Senator Collins, to have me go so we would have two at this point and then go to Senator Akaka for 30 minutes?

Mr. President, I have been listening to the debate. I have come to some conclusions. First of all, one of the things the Senator from Maine said that I agree with is this bill does little to reduce our reliance upon foreign countries for our ability to run this great machine called America. I would like to have had more provisions in there. I would have liked to have had some more generous nuclear generation provisions, maybe ANWR, and a few things that would more directly address this. I am hoping we will be able to do this in the future.

The Senator from North Dakota, when he was talking about the bill, said there were several things in here that he didn't like, and many things in here that he would have liked to have had in here. I feel the same way. That is almost by definition the sign of a good bill because neither one of us is real happy with it. However, we both are going to support this bill.

I think we could have gone further. I have been concerned for many years about our dependency, going all the way back to the Reagan administration when Don Hodel, who was the Energy Secretary at that time, and I used to go around the country to explain to people in consumption States that our reliance upon foreign countries for our ability to fight a war is not an energy issue but a national security issue.

Finally, this is the first approach. I have to say President Reagan didn't really address this, the first President Bush didn't address it, President Clinton didn't address it. This President is addressing it. This may not be perfect, certainly it is far from perfect, but it is the first major step since 1980 to correct a problem we all agree is there.

In deference to the time that we have here I am going to concentrate on one thing. There are a lot of things I would like to talk about because I chair the Environment and Public Works Committee. There are a number of issues that are within my jurisdiction. I thank the manager of this bill, Senator Domenici, for his willingness to let me have input even though I am not on the conference over some of these issues that would have been in my committee.

My concern right now, and what I want to address, is the whole idea of the ethanol and MTBE safe harbor provisions. It has been treated as a red herring. I would like to go over what it really is and what it is not. What we have heard on the floor is good rhetoric from the trial lawyers, but it is not factual.

The premise of the ethanol and MTBE safe harbor is simple: If the Federal Government approves and mandates a product, such as it did with ethanol and MTBE, that product should not be considered ``a defective product by virtue of the fact that it is, or contains, such a renewable fuel or MTBE.'' So let's walk through this and see what the safe harbor provision does.

The ethanol and MTBE safe harbor states:

Notwithstanding any other provision of Federal or State

law, no renewable fuel, as defined by section 211(o)(1) of

the Clean Air Act . . . used or intended to be used as a

motor vehicle fuel containing such renewable fuel or MTBE,

shall be deemed a defective product by virtue of the fact

that it is, or contains, such renewable fuel or MTBE.

That stands to reason. That is perfectly legal. Yet that is the provision to which most of these people are objecting. How can it be reasonable if we mandate something by law and then turn around and say it is defective by definition? It is just not reasonable.

We know that Congress is mandating renewable fuels in this conference report. The energy bill states:

Not later than one year after the enactment of this

subsection, the Administrator [of the EPA] shall promulgate

regulations ensuring that motor vehicle fuel sold or

dispensed in the United States . . . contains the applicable

volume of renewable fuel. . . .

That is in essence the language of the legislation that we are considering today.

MTBE was also similarly mandated. The Clean Air Act Amendments of 1990 signed into law by the first President Bush clearly states:

[t]he oxygen content of gasoline shall equal or exceed 2.0

percent by weight. . . .

At that time, Congress knew the only two additives that could be used were MTBE and ethanol. And the Record shows that.

For example, on March 29, 1990, Senator Tom Daschle, the author of the floor amendment that established this 2-percent standard, stated during debate:

The ethers, especially MTBE and ETBE, are expected to be

major components of meeting a clean octane program.

Under certain forms of an oxygenate mandate, Senator Daschle went as far as to note that:

EPA predicts that the amendment will be met almost

exclusively by MTBE, a methanol derivative.

Senator Daschle recognized what we all know: There are substantial benefits to using MTBE as far as environmental protection is concerned. In the floor debate on the 2-percent standard, Senator Daschle cited evidence that:

NOX, hydrocarbons, and carbon monoxide are

dramatically reduced by adding the oxygenate MTBE to

gasoline.

So it is clear that Congress mandated ethanol and MTBE in 1990, and, in this conference report, is increasing the mandate on ethanol.

Let me go on reading the ethanol and MTBE safe harbor. The safe harbor applies only:

If it [ethanol or MTBE] does not violate a control or

prohibition imposed by the Administrator of the Environmental

Protection Agency under section 211 of such Act, and the

manufacturer is in compliance with all requests for

information under subsection (b) of such section 211 of such

Act.

So the safe harbor in this conference report applies only if you are in compliance with all the tough fuel requirements of the Clean Air Act.

So to review so far, if ethanol or MTBE is used as required by the Federal Government and is in full compliance of the Clean Air Act, it should not be found defective. Alternatively, if a party does not meet the requirements of the Clean Air Act, the safe harbor does not apply, stating that:

the existence of a claim of defective product shall be

determined under otherwise applicable law.

It can still be exercised if they don't comply.

Most importantly, the safe harbor does not impact numerous legal mechanisms available for cleanup and damages. Specifically, the safe harbor states that:

Nothing in this subsection shall be construed to affect the

liability of any person for environmental remediation costs,

drinking water contamination, negligence for spills or other

reasonably foreseeable events, public or private nuisance,

trespass, breach of warranty, breach of contract, or any

other liability other than liability based upon a claim of

defective product.

In all those other cases, it remains unchanged. The safe harbor does not apply to anything except liability based upon a claim of defective product, assuming they have complied with the Clean Air Act. It is as simple as that.

As the energy conference report clearly states, the safe harbor does not affect liability under other tort theories. Tort law provides a remedy when there is a breach of a duty resulting in harm to a person, property, or intangible personal interests. The following types of actions have been used in environmental cases. These are actions where recovery took place:

Trespass--interference with the plaintiff's possessory interest in his land. Is that affected by safe harbor? No.

Nuisance--intereference with the plaintiff's use and enjoyment of his property--that is not affected by safe harbor.

Negligence--may be a basis for product liability actions, as well as actions involving the release of allegedly toxic materials. negligence could be based on the design of manufacture of the product, or failure to give warnings necessary to make the product safe. Is this affected by safe harbor? No. It is not affected.

Breach of implied warranty--similar to strict products-liability--is not affected by safe harbor.

Under breach of express warranty--if a manufacturer, distributor, or retailer makes express promises regarding a product, the party is liable if the product fails to perform as promised and that failure leads to injury. It is not affected by safe harbor.

The only thing that is affected is in the areas we have been discussing.

Moreover, this safe harbor in no way shape or form impacts any environmental law. The safe harbor provision would not affect liability, and therefore response, remediation and clean-up, under Federal and State laws. The facts of a given situation would dictate which of the following statutes would be most appropriate for an action. Here are examples of environmental laws that could apply. The following are not impacted: The Resource Conservation and Recovery Act, RCRA; Clean Water Act; Oil Pollution Act--OPA; Comprehensive Environmental, Response, Compensation, and Liability Act--CERCLA or Superfund; not to mention natural resource damages available under OPA, CERCLA, and the Clean Water Act. They are not impacted.

Furthermore, the leaking underground storage tanks provision in this energy conference report greatly enhances the amount of resources available to states and localities through the underground storage funds.

If the language and the impact are so clear, why is the debate so muddy? The answer is because trial lawyers stand to lose billions.

What is the positive affect of this safe harbor?

Liability protection is consistent with environmental protection. Without some stability in liability risk, powerful disincentives will be created to continued manufacturing of clean-fuel additives. Why should we manufacture clean fuel additives if there is no protection? Clean fuel programs have saved thousands of lives across the country. Opposition to commonsense legislation may endanger those most susceptible to air pollution impacts by reducing the ready supply of clean fuel additives.

Failure to limit liability endangers future energy security and clean air. Simply put, additive manufacturers will be extremely reluctant to invest in MTBE replacement additives without some sense of certainty that the Federal Government will not allow those investments to become the basis of undue liability. In other words, as additive manufacturers seek access to capital, demonstrating a responsible Federal role in liability limitation may be crucial to justify future investments in clean additive manufacturing. It is simply a supply and demand argument.

In conclusion, I ask my colleagues to look at the facts. The fact is that the safe harbor is a fair and important provision in an important piece of legislation, which is critical to our national and economic security.

The safe harbor only applies to defective products claims.

I believe very strongly we need to have that clarification.

I repeat one more time what is actually written into the law. It says if the Federal Government approves and mandates a product such as ethanol or MTBE, that product should not be considered a defective product by virtue of the fact that it is or contains such renewable fuel or MTBE which is mandated by law. I appreciate the opportunity to clarify that.

I yield the floor.

I ask unanimous consent Matthew Griles be granted the privilege of the floor during the pendency of this debate.

Madam President, I apologize to our distinguished chairman for not having been down here during this discussion. As he well knows, I chair the Environment and Public Works Committee. I am proud to say we were able to get a bill out, the reauthorization bill. I feel very good about that. It will be coming to the floor. It is a good compromise but it required my attendance.

I want to be on record to say that our chairman and the ranking member have done a very good job. We have worked closely together during the development of the authorization bill. We are making great headway. We are turning in the right direction. I particularly applaud those who participated in the ultimate compromise that we agreed on having to do with the lease program, the 767s. We all understand we have a crisis in our tanker fleet. Our KC-135s are getting old and there is controversy over how much longer they can be used. Nonetheless, our pilots who are performing this significant mission of refueling need to have the very best. We are addressing that problem.

In the area of TRICARE, we have made some advancements that are long overdue. I know in my State of Oklahoma, we probably have one of the highest populations of retired military, many of them in Lawton and scattered throughout the State. I know there are very serious concerns we have gone a long way to meet.

Environmental issues bother me a great deal, and maybe I am more concerned about what has happened to our ability to train our troops, because I happen to also chair the Environment and Public Works Committee. So we deal with the environmental issues.

But it is very disheartening when you go down to your part of the country and see what has happened in some of the endangered species programs and how we are addressing those.

In Fort Bragg, in Camp Lejeune, for example, we are spending such an inordinate amount of money protecting the suspected habitat of the red- cockaded woodpecker that it is having a very deteriorating effect on our ability to train. This is something that does concern me greatly, and we are starting to address that, I know, in relation to the issue of endangered species. We have clarified the law that is going to perhaps, hopefully, stop some of the injunctions that have been taking place. I think we are making some progress there.

I am glad we are addressing end strength--not as much as I would like to or our chairman would like to because this is a compromise situation, but we have to recognize that we allowed our end strength to deteriorate, in terms of numbers, to the point that we are OPTEMPO of our regular services, we are OPTEMPO for our Guard and the Reserves. It is at an unacceptably high rate.

I do not think there is one Member of this Senate who does not go home and talk to his Guard and Reserve units, only to find out that critical MOS, military occupation specialties, are being lost because they are just overworked. You cannot expect someone who is in a citizens militia to have to be full time. Essentially, that is what is happening right now.

So we are starting to address that, and I think we need to go much further in the future. When I see that we did have a problem all during the 1990s, that I articulated on this Senate floor,

when we had a lowering in the amount of attention that was given to our military in terms of end strength, in terms of modernization, in terms of national missile defense, these things were very disturbing to me. I know we are now recognizing it.

I hate to say it in this way, but I really think those who subscribe to the idea--or did subscribe to the idea prior to 9/11--that the cold war is over and we need not have the size military we once did are just dead wrong. I look wistfully back at those days when we knew what our enemies had. We had one major superforce out there, and that superforce was predictable.

Now we have the proliferation of both weapons of mass destruction throughout the world and the delivery system. We know what countries have a delivery system that could reach us here in Washington, DC. We need to make up for what was lost during that period of time.

Lastly, I would agree with Secretary Rumsfeld who at one of our earlier meetings suggested that throughout the entire 20th century, the percentage of our GDP that went to defense was about 5.7 percent, and that dropped down in the 1990s to about 2.7 percent. We are up to 3.4 percent approximately.

I think we need to stop and rethink that as an overall picture of a plan for the future, perhaps it should be somewhere around 4, 4.5, or 5 percent because the nature of the threat that is out there is more expensive. I think we need to address it. So I think this bill goes a long way in that direction.

I am very pleased with the product we have. We have a long way to go, and I hope we can join hands and do that in the future.

Again, I applaud our chairman and the ranking member for the efforts they have put forth in making this legislation a reality.

I thank the Senator.

Will the Senator yield for a question? I know his time is running out.

I have been observing this all night long and all of these legal scholars. I admire you so much, although I have to admit I have often said that perhaps one of my best qualifications for being a Senator is that I am not a lawyer. When I read the Constitution, I know what it says. It is very clear what it says. It says advise and consent. It is a very important process.

The reason I wanted the Senator to yield is you have been justly talking about the qualities of Miguel Estrada. I have met him, too. He is such a humble man. When you hear the horrible things said about him, it makes you cry inside. There was one thing that all of these nominees the President nominated have in common, and that is they are also eminently qualified. You have talked about his qualifications. Besides that, he worked in both the Bush and Clinton administrations.

Also, look at the rest of the nominees. William Pryor is the youngest attorney general at the time he was appointed and was nominated by the President. He has the highest ranking of the American Bar Association. Priscilla Owen has the highest ranking of the ABA. In 2000, she won 84 percent of the vote. She was supported by three former Democrat judges from the

Texas Supreme Court. Judge Pickering--99.5 percent of his cases were affirmed and not appealed.

I think we are talking about people who the President has done such a great job of singling out and finding, the most highly qualified people. I wanted to ask you that question. Isn't it true that everything you have said about Miguel Estrada and his qualifications is true about all these nominees?

I thank the Senator from Colorado for yielding to me.

Mr. President, I want to share an experience I had at 5:30 this morning. One has lots of experiences at 5:30 in the morning on the Senate floor and in observing what went on during the night. There was something that occurred to me that I want to share, and I hope I can do it in this period of time.

There are two reasons this has been taking place, that they do not want to confirm these judges. One is ideology, philosophy. I hate to say it but unless one is pro-abortion and unless they are anti-gun, they do not want that person on the bench. But there is another reason we have not talked about, and that reason is just a reason of obstruction. We have been watching obstruction in all forms, but I want to share something and I hope people understand that this directly relates to the nominees for the judicial vacancies. I want to get the point across that it is happening to other nominees as well.

I chair the Environment and Public Works Committee. We had a person who was a nominee of this President, Gov. Michael Leavitt from Utah, one of the most highly regarded individuals in this country and certainly one of the most highly qualified ever to be nominated to a position of Administrator of the EPA.

We sat there and recognized how everybody loved this guy and yet they dragged it on and obstructed for days and weeks, just to drag it on out. So it is happening with many of the nominees.

Now, Governor Leavitt is a very kind and decent person and I really believe the most qualified nominee to be Administrator of the EPA we have ever been able to act upon. The way he was treated was just absolutely shameful. It took 56 days to finally get the nomination, five times longer than those who preceded him as Administrator, even though he had overwhelming bipartisan support.

I do not think anyone has questioned that the motivation of the delay was partisan Presidential politics. They set a new standard, new precedent, for an EPA Administrator. They really were not talking so much about him as they were trying to talk about the environmental policies of this President.

If my colleagues will look at some of the people who supported him, we had many people, including my ranking member, Senator Jeffords. He said it has nothing to do with qualifications of the Governor. At this time, I would say that qualifications really do not seem to be an issue on judicial nominations. It has been said over and over again, and later if I have time within my timeframe I am going to get into that, but this goes on and talks about various Democrats praising Governor Leavitt for this nomination and yet they would not confirm him.

Senator Nelson, who is a former Governor of Nebraska, served with him as Governor. He said: I believe nearly everyone, if not everyone, with whom Governor Leavitt worked in the NGA--that is the National Governors Association--would state that they had a favorable impression of him. I wholeheartedly support Mike Leavitt to serve as EPA Administrator.

We heard the same thing from our old friend Bill Richardson with whom many of us served in the House of Representatives. He is currently Governor of New Mexico. He praises his virtues. He has worked effectively with other Governors regardless of party, and he went on to say he is probably the best nominee who has ever been put forth to be Administrator of the EPA.

So he is highly qualified and nobody would deny that, and yet they turn this thing into trying to attack the President on his environmental record.

I have to quote from one person, Gregg Easterbrook. I have not quoted him on this floor before. He is a liberal Democrat. He is a senior editor of the liberal New Republic. He says in an op-ed piece in the Los Angeles Times: The Democrats are not as interested in Bush's environmental record as they are attacking President Bush personally. He says: Most of the charges made against the White House are baloney-- these are his words--and made for the purposes of partisan political bashing and fundraising. He also contends that environmental lobbyists raise money better in an atmosphere of panic. He goes on to explain the real reason this issue was going on. This man was subjected to a lot of things, including 100 prehearing questions, and later 400 questions prior to the hearing. This has never been done before.

Then we had an experience that has never happened in the history of this Senate. We went back as far as Jennings Randolph in the middle sixties. It never happened in the history of this committee. The Democrats boycotted the committee. They did not show up. We have 10 Republicans and Democrats. We have to have a majority there and two members of each party, at a minimum. So they boycotted and did not show up.

Time went on and we started looking at how long it took from the time of

the nomination, to the hearing, to the confirmation. In the case of William Riley, it was 13 days; the case of Carol Browner, 10 days; in the case of Governor Whitman, it was 13 days. Yet it took 56 days for this person to be confirmed. Finally, they did confirm and the vote was 88 to 8.

I suggest today if we had the vote on Priscilla Owen, she would be sitting in the Fifth Circuit right now; and Miguel Estrada, the DC Court; William Pryor, the Eleventh Circuit; and Charles Pickering, the Fifth Circuit.

For a minute I will dwell, if the manager will give me a couple extra minutes, on Miguel Estrada. I saw something happening that I thought was significant. I will refer to something that happened to me February 26, 2003, a year ago, when we were talking about the confirmation process.

We had a group in Oklahoma at that time that was there from San Luis Potosi, a sister city in Mexico. We have a sizable Hispanic community in Oklahoma. I was mayor of Tulsa, and I recall how excited the people were each year when they saw people striving to achieve, Hispanics in this country.

I was standing before the crowd and said:

Como acalde de la cuidad de Tulsa, yo quiero decir, ``Bien

venidos, bien venidos a la cuidad. Creemos que la cuidad de

San Luis Potosi es la cuidad mas hermosa de todas las

cuidades del mundo.''

(Translation)

As the mayor of the city of Tulsa, I want to say,

``Welcome, welcome to the city. We believe the city of San

Luis Potosi is the most beautiful city of all the cities in

the world.''

I saw the looks on their faces, realizing we were participating in their culture. They are looking at Miguel Estrada saying, Why won't they give him a chance to reach the top? Why is it that he does not get a chance for high office, he or any other Hispanic?

I tried to answer. I believed there might be a way of garnering support to make this reality. I said:

Muchos Hispanos estan escuchando ahora . . . y yo quiero

decir.

Por descracia, hay personas en el senado que no quieren

escuchar a ni una palabra de la verdad.

Yo invito a la communidad hispana para llama a sus

senadores para insistir en los derechos de Miguel Estrada y

en la confirmacion de jueces de los Estados Unidos.

(Translation)

Many Hispanic Americans are listening right now . . . and I

want to say:

Disgracefully, there are people in the Senate that don't

want to listen to even one word of the truth.

I invite the Hispanic community to call their senators to

insist on the rights of Miguel Estrada and on the

confirmation of the judges of the United States.

People were calling in but it did not get the message across to the people on that side of the aisle that there must be some other reason that they do not want Miguel Estrada to be confirmed.

Congress is a powerful institution and it is necessary to have the ability to collect and challenge much of what the President does, but when it comes to the courts and to interpreting laws and regulations, politics needs to get out of the way. Justice delayed is justice denied. I believe we are in a position to do some things and turn this around and get some of these people confirmed.

My guess is residents of California, who had their constitution gutted by a three-judge panel in the Ninth Circuit, only to have a larger panel of the same circuit reinstate their constitutionally authorized gubernatorial recall election, think it is pretty important who sits on the Ninth Circuit.

I had an experience this morning debating one of our fine Senators, Mr. Lautenberg. I said at that time this is about ideology. I don't think anyone--after listening to all the debate that has gone on overnight--does not realize if you are not pro-abortion, if you are not anti-gun, you will be in opposition, and we will not get confirmation. It is wrong. All we want is an up-or-down vote on these fine nominees.

Mr. President, I would like to congratulate one of Oklahoma's finest soldiers, LTC Michael E. Hogan, who is retiring after a distinguished career of over 20 years of exceptionally meritorious conduct in the United States Army. Lieutenant Colonel Hogan was commissioned as a Second Lieutenant, Field Artillery, after graduating from the United States Military Academy. His first assignment was as a Fire Support Team Chief, HHB, 2d Battalion, 6th Infantry Division, Fort Ord, CA. Demonstrating keen expertise and artillery skills, he moved through various positions in the unit, including Firing Battery Fire Direction Officer, Executive Officer, and Battalion Fire Direction Officer. After developing and mastering the required skills as an Artilleryman through an assignment in Camp Casey, Korea, Lieutenant Colonel Hogan was moved to Fort Sill, OK, where he assumed a role on the faculty of the Field Artillery School.

In 1989, Lieutenant Colonel Hogan served as the Battery Commander for Bravo Battery, 2d Battalion, with 105mm Howitzers, for almost 2 years. Because of his expertise in artillery systems, he was moved to a position as a test officer with the U.S. Army Operational Test and Evaluation Center. After further refining his skills in artillery systems while performing as a test team chief, Lieutenant Colonel Hogan was moved to a position as an executive officer with the 6th FA Battalion, Fort Sill, OK. In 1997, while in the position on the Corps Artillery Staff, Lieutenant Colonel Hogan was deployed to Haiti where he served 6 months as the Joint Task Force Chief of Staff. Upon his return to Fort Sill, he was installed as the executive officer for the 212th Field Artillery Brigade. After serving in this position for approximately 1 year, Lieutenant Colonel Hogan was sent to the Pentagon as a representative of the regimental staff of the Field Artillery Center, with duty in the Office of the Chief of Legislative Liaison.

Lieutenant Colonel Hogan directly applied special talents and expertise as a Hardware Congressional Liaison Officer in the Office of the Secretary of the Army, Legislative Liaison Programs Division from March 2000 through February 2004. Lieutenant Colonel Hogan maintained a constant liaison with professional staff members of the Senate and House Armed Services Committees on critical issues relating to army procurement programs such as the Crusader Field Artillery System, Stryker, and the Army's top priority, the Future Combat System.

Throughout these assignments, Lieutenant Colonel Hogan has provided outstanding leadership, advice, and sound professional judgment on significant issues that affected both the Army and Congress. His actions and counsel were invaluable to Army leaders and Members of Congress as they considered the impact of important issues. Lieutenant Colonel Hogan's dedication to accomplishing the Army's legislative liaison mission has been extraordinary. He is truly an outstanding officer who displays superb professional leadership skills and is totally dedicated to mission accomplishment in the highest traditions of military service. I am proud to call him a constituent, and wish him well in his future endeavors.

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 text of the bill be printed in the Record.

That is correct. Our staffs have been working for the past few months on this issue. The compromise we have reached would continue the FEMA program in the islands for the next 5 years, as recommended by the Energy Committee. In addition, the Secretary of State would be directed to immediately undertake negotiations, in consultation with FEMA, with the governments of the FSM and RMI regarding disaster assistance. Finally, if an agreement is not concluded and legislation is not enacted which reflects the new agreement within 5 years, then the administration's revised disaster assistance proposal would go into effect.

I agree with this approach.