Jeff Bingaman

Mr. BINGAMAN

Mr. BINGAMAN. I reserve the remainder of my time and yield the floor.

Mr. BINGAMAN. Madam President, this is an amendment I am offering on behalf of myself and Senator Inouye. It is an amendment that will make several changes in section 303 of the Indian energy title in this legislation that is pending before the Senate. First, a little background on these issues so my colleagues understand what is at stake. Title III of S. 14 contains a very strong Indian energy title. It would provide tribes with the financial and technical assistance they need to help them develop and utilize energy resources on Indian land. This title III represents a combination of sections from two separate bills. One was introduced by Senator Campbell; the other was introduced by Senator Inouye and myself. I very much appreciate the willingness of the majority to work with us and include in the bill now before the Senate a number of sections from the Bingaman-Inouye bill. Most of these measures were included as part of last year's Senate-passed Energy bill and were generally agreed to in the House-Senate conference without controversy. Unfortunately, as we all know, those sections did not become law. Notwithstanding the general support that exists for the Indian energy title in this bill, there is one section that is fairly controversial. That is the subject of our amendment. It is section 2604. It would authorize tribes to enter into leases and business agreements and issue rights-of-way for energy development projects on tribal lands without the separate approval of the Secretary of the Interior. These leases and business agreements and rights-of-way would involve a broad range of energy projects, including oil and gas extraction, powerplants development and construction, and even some mining activity would be covered under the language in the bill. This activity could take place on any tribal trust lands, not just those on reservation but also lands that have been designated as tribal trust lands off reservation. There are many of those, as we know. There is no disagreement on whether we should allow tribes to exercise more control over development on tribal lands. There is, however, a disagreement on how we go about that. The present language in section 2604 raises two significant issues. The first is that by eliminating the Secretarial approval of leases and agreements and rights-of-way, section 2604 eliminates the ``major Federal action'' determination that triggers the application of the National Environmental Policy Act, NEPA. This effectively waives the analysis and the public participation requirements that are in that law. It thereby reduces the ability to protect the interests of both those residing on reservations and those residing in adjacent communities. While a substantial environmental review process is included in section 2604, it is limited in the range of impacts that require review. It does not require the implementation of mitigation measures. It does not require any changes in response to the concerns of affected tribal members or the concerns of local communities. Obviously, eliminating NEPA is a concern to many national and local environmental groups and also to some Native American organizations that have weighed in with strong letters on the issue. It is also of concern to the counties around the country. In a letter dated May 14 of this year, the National Association of Counties is calling for section 2604 to be modified so that a NEPA analysis is completed for each new energy project that goes forward on Indian lands. There is a bipartisan group of attorneys general representing the States of Arizona, New Mexico, Nevada, North Dakota, Utah, Wyoming, and Connecticut that have also expressed strong concerns about the diminishment of environmental review for tribal energy resource development projects. They have expressed their views in a letter dated June 9 of this year. In that letter they wrote: While we understand that this provision is intended to promote the worthy goals of tribal self-determination and sovereignty, we are concerned that it goes too far in facilitating significant development activity without ensuring that adequate protections exist for affected communities and adjacent lands. Section 2604 represents a significant change in the law that could have serious implications for the States that we represent. We therefore urge the provision be amended to ensure that significant energy development activity on tribal lands continues to be subject to meaningful environmental review, including an ability for State and local governments to participate in the process. The concern expressed by those attorneys general and the counties underscores the fact that without some applicable Federal law related to the significant development activity contemplated under this section 2604, it is unclear what standard is to apply. Some have argued that tribal lands should be treated just as private lands are and tribes should be free, as private landowners are, to go forward with development projects. In my view, that is not a good analogy because private lands are subject to State and local laws; tribal lands are not. We are all aware that a private landowner has requirements by virtue of State and local law that do not apply on tribal lands. Tribal law can and should apply to energy development on tribal lands, but at the same time Congress has a responsibility to ensure that certain Federal parameters are in place. The second issue that is raised by this section 2604 is that the language in the section undermines the Secretary's trust responsibility to Indian tribes. A number of tribes have expressed strong concerns about the language which appears to change the traditional trust relationships between the Federal Government and Indian tribes. Tribal concern is driven by a decision 3 months ago by the U.S. Supreme Court in the case of United States v. Navajo Nation. The Supreme Court specifically addressed the Federal trust responsibility and the standard for ensuring that statutes affecting Native Americans contain fiduciary duties by which the Federal Government as trustee can be held accountable for its actions that may have serious and negative impacts on tribal interests. Section 2604, the subject of our amendment here, as currently drafted does not meet the standards established by the Supreme Court. In fact, it goes in the opposite direction. It diminishes the Federal Government's trust responsibility and accountability to tribes. This is inconsistent with the current Federal policy of tribal self- determination and self-governance. These policies, in effect since the landmark Indian Self-Determination Act of 1975, clearly preserved the Federal trust responsibility and accountability to tribes while facilitating tribal control over Federal Indian programs. The amendment Senator Inouye and I are offering addresses both the environmental review question I talked about and the trust responsibility issues, as well as other miscellaneous matters, in the hope that we can improve the final Indian energy title from a tribal perspective, from an environmental perspective, from a State perspective, and from a local perspective. With respect to the environmental issue, the amendment does the following four things: No. 1, it ensures sufficient time for the Secretary to review the proposed tribal energy resource agreements without a waiver of Federal environmental laws. No. 2, it improves the environmental review process so that it is comparable to the standards required under NEPA, while maintaining tribal control over that review. No. 3, it removes language limiting who can petition for a review of the implementation of tribal energy resource agreements. No. 4, it requires Congress to review and reauthorize this section of the program 7 years from now, without it just continuing indefinitely. With respect to trust responsibility, the amendment deletes language that would prevent the tribes from asserting claims against the Secretary of the Interior related to the Secretary's approval of tribal energy resource agreements. It also eliminates a broad waiver that limits the liability of the United States for any losses associated with the leases or with agreements or with rights-of-way. The language being eliminated is unacceptable to a large number of Indian tribes. Because of the language, the Navajo Nation, the largest tribe in our country and the one involved in this recent Supreme Court decision that I described, stated in a letter they sent to us dated June 4 that the ``tribal energy proposal must be defeated.'' The letter goes on to say that the language, if successfully included in the bill: . . . would be a virtual endorsement by the Indian tribes' trustee itself [of course, that is the Federal Government], of the fraud, dishonesty, and unethical treatment that was the subject of the Navajo Nation's claim against the United States, and would open the door for future similar conduct by federal officials. The Jicarilla Apache Tribe, in a letter dated April 28, stated that the provisions currently in the bill ``are inconsistent with the United States' trust relationship with Indian tribes . . .'' This is a quotation from their letter. They go on to say they would ``actually turn the current legal and political relationship between Indian tribes and the United States Government on its head.'' In addition to deleting most of the offending language, our amendment also established Secretarial duties to the tribes in implementing section 2604. In light of the United States v. Navajo Nation decision, we view this language as necessary to maintain a trust relationship in which the Federal Government has some accountability to the tribes electing to enter into agreements under section 2604. The language we are proposing to add is taken directly from the existing self- determination law and therefore relies on longstanding precedent. Finally, our amendment includes a number of minor changes that are technical. I believe it is a good, constructive improvement to the bill, and I urge my colleagues to support it. Madam President, let me ask, how much time remains on our side?

Mr. BINGAMAN. Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. BINGAMAN. I send an amendment to the desk and ask for its immediate consideration.

Mr. BINGAMAN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BINGAMAN. Madam President, that is correct. We support the amendment and urge its passage.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, let me speak briefly also in support of the amendment by Senator Wyden and Senator Sununu. This is an amendment I offered in the committee markup with Senator Wyden. We were not successful at that time, obviously. I congratulate both sponsors of the amendment for offering it again here. Clearly, I am not opposed to the building of new nuclear powerplants. I believe nuclear power makes a very major contribution to our energy needs. It supplies about 20 percent of our Nation's electricity today. It does so safely. It does so reliably. It does not generate greenhouse gases. And it does so at prices that are competitive with coal and natural gas. I hope in the future we will see additional nuclear power production in this country and worldwide. I think it is a technology that provides many benefits to us. There are provisions in the bill that are strongly in support of the nuclear power industry and its future: The renewal of the Price- Anderson Act, for example, that protects the nuclear industry against liability from accidents. There are provisions in there to carry out research and development to help with the training of a workforce. There are many provisions in this bill that are very strongly in support of the nuclear power industry. The provision this amendment goes to would authorize the Secretary of Energy to guarantee up to half the cost of 8,400 megawatts of nuclear capacity. That translates into at least six large nuclear powerplants. We do not know with any precision how much these loan guarantees would wind up costing taxpayers. That depends on many variables, such as how many plants are actually built under the program, how much they cost, whether in fact there is a default, what the interest rates might be on the defaulted loans, whether the plants would still be able to operate if there were default. There is a lot of uncertainty in the provision that is the subject of this debate. The Congressional Budget Office has made a number of assumptions that are favorable to the industry in coming up with its estimate. It assumes, for example, that the Government would only guarantee one, not six, plants during the next 10 years. It also assumes that it would cost about half as much as Seabrook and Shoreham did two decades ago and that it would still be able to operate after a default. Under these assumptions, CBO has concluded that the loan guarantees would cost in the range of $275 million for the one plant. The Nuclear Energy Institute takes strong exception to these Congressional Budget Office conclusions. NEI doubts the industry will default on its loans. It believes CBO's estimate is based on noncredible, illogical assumptions and that the CBO estimate is unrealistically high. So we have experts on all sides of this issue. The debate is important, but I do think it glosses over some of the fundamental questions: Does this nuclear power industry need these loan guarantees at this point? Is guaranteeing the nuclear power industry's loans sound public policy? On both of those issues, I believe the preponderance of the argument is on the side of the Wyden-Sununu amendment. I do not believe loan guarantees are necessary in this magnitude at this time. This is a mature industry. We have been building nuclear powerplants in this country for nearly half a century. We have over 100 nuclear powerplants now operating. The nuclear industry did not need loan guarantees to get off the ground 50 years ago, and I do not believe those guarantees are required at this point. Moreover, the companies that are most likely to build these new nuclear powerplants are the ones that have built them before and the ones that are operating them now. These are not small businesses. As a result of the recent wave of mergers and acquisitions, there are a dozen utilities that now own 75 percent of the Nation's nuclear capacity and two-thirds of its nuclear reactors. Each of these utilities generates billions of dollars in revenues each year. Many generate tens of billions of dollars in revenue each year. Collectively, these 12 utilities had nearly $12 billion in revenues in 2001. There is no evidence of which I am aware in the record before us that the nuclear industry needs loan guarantees of this magnitude to build new nuclear powerplants. The Energy and Natural Resources Committee held hearings on the state of the nuclear industry in the past Congress. We heard from both the utility industry and the financial community, and neither one suggested that loan guarantees were appropriate or required. The utility representative said that the state of the nuclear industry is ``very sound'' and that new plants would be ``economically competitive'' and acceptable to investors. The Wall Street representative at our committee hearing testified that a large successful utility could finance the construction of a new nuclear powerplant, and nobody mentioned the need for a Federal loan program of this type or a loan guarantee program of this type. Second, I do not believe that shifting the financial risk of constructing these plants from industry to the Federal Government or to the taxpayers is sound public policy. For most of the last century, utilities built powerplants in this country, whether nuclear or non-nuclear plants, under what is called the regulatory compact. Utilities were State-regulated monopolies. They accepted an obligation to serve everyone in their service territories at State-set rates. In return, they were shielded from competition. They were guaranteed recovery of their prudently incurred costs plus a reasonable profit. The regulatory compact has largely been abandoned in this country during the last couple of decades. It has been replaced by deregulated, competitive, wholesale electricity markets. So instead of wholesale electricity prices being set based on the utility's cost of production, they are now being set more by the market, and title XI of the bill before us is intended to further these developments. Giving Government loan guarantees of this magnitude to one segment of the utility industry--indeed one of the better financed segments of the industry--I think unduly interferes with the free market. It runs counter to efforts to establish competitive electricity markets in this country. In a competitive market, utilities are supposed to decide whether to build new powerplants by weighing the economic risk involved against the economic reward they might receive. Loan guarantees skew the market by shifting the risk to the taxpayers while keeping the rewards for the utility shareholders. We have had this debate before, 50 years ago, at the dawn of the nuclear era. The House and Senate debated whether nuclear powerplants should be built and operated by the private sector or by the Government. The decision was made to leave the construction and operation of nuclear powerplants to the utilities, to the private sector. The Federal Government encouraged support of the utilities through nuclear research programs, through fuel subsidies, and through indemnification against accidents. It did not use loans or grants or loan guarantees. The Federal Government's faith in the utilities 50 years ago was justified as the more than 100 nuclear powerplants operating today attest, and we should continue to have faith in the free market today and not subsidize the next generation of nuclear powerplants to this extent by shifting economic risks from utility shareholders to the taxpayers. I urge colleagues to support the amendment. I yield the floor.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I rise today because there is a crisis in our country that begs our attention. This crisis is the overwhelming lack of adequate mental health services available to the children and adolescents in our Nation and it is time that we address it. As I speak, over 13,700,000 young people are suffering from diagnosable psychiatric disorders. Sadly, fewer than one-third of these have access to mental healthcare. Today I am introducing the ``Child Healthcare Crisis Relief Act'' along with Senators Collins, Jeffords, and Dodd in an effort to reduce the disparity between the need for mental health services and resources available to meet that need. The landmark report ``Mental Health: A Report of the Surgeon General'' illuminated the crisis in 1999. 13,700,000 young people have diagnosable mental disorders including 6-9,000,000 children and adolescents who meet the definition for having a serious emotional disturbance and 5-9 percent of youth who meet the definition for having severe functional impairment. Unfortunately, few of these young people have access to adequate mental health services. The resulting lack of treatment leads to a lifetime cycle of difficulties from unresolved mental health issues. These difficulties are often as severe as school failure, substance abuse, job and relationship instability, and even criminal behavior or suicide. In many cases, young people who do not receive the mental health treatment that they need end up in foster care or even in the juvenile justice system. In my state of New Mexico, a 2002 report concluded that 1 in 7 incarcerated youth is currently in a detention center solely because there is no appropriate treatment option available. These youth are actually cleared to leave as soon as they have adequate treatment in place. In fact, from January 2001 to December of 2001 an estimated 718 New Mexico youth were collectively incarcerated for 31.3 years waiting for a treatment opening. Most other States are facing similar situations. In fact, studies have found that nationally more than 1 in 3 youth in detention centers have a mental health disorder. Clearly, this is an issue that demands our immediate attention. One of the key barriers to treatment is the shortage of available specialists trained in the identification, diagnosis, and treatment of children and adolescents with emotional and behavioral disorders. The 1999 Surgeon General's Report stated, ``there is a dearth of child psychiatrists, appropriately trained clinical child psychologists, and social workers.'' There are particularly acute shortages in the number of mental health service professionals serving children and adolescents with serious emotional disorders as well as those serving rural areas. Nationwide, 4,358 urban, suburban, and rural localities have been designated mental health Professional Shortage Areas by the Federal Government. The President's New Freedom Commission has recognized the shortage and has made a recommendation to develop a strategic plan to address it. The Council on Graduate Medical Education and the State Mental Health Commissioners have also recognized this shortage of mental health professionals. The Child Healthcare Crisis Relief Act will help remove one of the key barriers to treatment for children and adolescents with mental illnesses: the lack of available specialists trained in this field. This bill creates incentives to help recruit and retain child mental health professionals providing direct clinical care and to improve, expand, or help create programs to train child mental health professionals through several mechanisms. The bill provides loan repayment and scholarships for child mental health and school-based service professionals to help pay back educational loans. It provides grants to graduate schools to provide for internships and field placements in child mental health services. It provides grants to help with the preservice and inservice training of paraprofessionals who work in the children's mental health clinical settings. It also provides grants to graduate schools to help develop and expand child and adolescent mental health programs. Finally, the bill allows for an increase in the number of child and adolescent psychiatrists permitted under the Medicare Graduate Medical Education Program, extends the Board Eligibility period for residents and fellows from 4 years to 6 years, and instructs the secretary to prepare a report on the distribution and need for child mental health and school-based professionals. I ask my colleagues in the Senate to join me along with Senators Collins, Jeffords, and Dodd in supporting this essential legislation. Over 13 million children in our country are counting on us. As Walt Disney once said, ``Our Nation's greatest national resource is the minds of our children.'' Let us not fail these 13 million people. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I rise today because there is a crisis in our country that begs our attention. This crisis is the overwhelming lack of adequate mental health services available to the children and adolescents in our Nation and it is time that we address it. As I speak, over 13,700,000 young people are suffering from diagnosable psychiatric disorders. Sadly, fewer than one-third of these have access to mental healthcare. Today I am introducing the ``Child Healthcare Crisis Relief Act'' along with Senators Collins, Jeffords, and Dodd in an effort to reduce the disparity between the need for mental health services and resources available to meet that need. The landmark report ``Mental Health: A Report of the Surgeon General'' illuminated the crisis in 1999. 13,700,000 young people have diagnosable mental disorders including 6-9,000,000 children and adolescents who meet the definition for having a serious emotional disturbance and 5-9 percent of youth who meet the definition for having severe functional impairment. Unfortunately, few of these young people have access to adequate mental health services. The resulting lack of treatment leads to a lifetime cycle of difficulties from unresolved mental health issues. These difficulties are often as severe as school failure, substance abuse, job and relationship instability, and even criminal behavior or suicide. In many cases, young people who do not receive the mental health treatment that they need end up in foster care or even in the juvenile justice system. In my state of New Mexico, a 2002 report concluded that 1 in 7 incarcerated youth is currently in a detention center solely because there is no appropriate treatment option available. These youth are actually cleared to leave as soon as they have adequate treatment in place. In fact, from January 2001 to December of 2001 an estimated 718 New Mexico youth were collectively incarcerated for 31.3 years waiting for a treatment opening. Most other States are facing similar situations. In fact, studies have found that nationally more than 1 in 3 youth in detention centers have a mental health disorder. Clearly, this is an issue that demands our immediate attention. One of the key barriers to treatment is the shortage of available specialists trained in the identification, diagnosis, and treatment of children and adolescents with emotional and behavioral disorders. The 1999 Surgeon General's Report stated, ``there is a dearth of child psychiatrists, appropriately trained clinical child psychologists, and social workers.'' There are particularly acute shortages in the number of mental health service professionals serving children and adolescents with serious emotional disorders as well as those serving rural areas. Nationwide, 4,358 urban, suburban, and rural localities have been designated mental health Professional Shortage Areas by the Federal Government. The President's New Freedom Commission has recognized the shortage and has made a recommendation to develop a strategic plan to address it. The Council on Graduate Medical Education and the State Mental Health Commissioners have also recognized this shortage of mental health professionals. The Child Healthcare Crisis Relief Act will help remove one of the key barriers to treatment for children and adolescents with mental illnesses: the lack of available specialists trained in this field. This bill creates incentives to help recruit and retain child mental health professionals providing direct clinical care and to improve, expand, or help create programs to train child mental health professionals through several mechanisms. The bill provides loan repayment and scholarships for child mental health and school-based service professionals to help pay back educational loans. It provides grants to graduate schools to provide for internships and field placements in child mental health services. It provides grants to help with the preservice and inservice training of paraprofessionals who work in the children's mental health clinical settings. It also provides grants to graduate schools to help develop and expand child and adolescent mental health programs. Finally, the bill allows for an increase in the number of child and adolescent psychiatrists permitted under the Medicare Graduate Medical Education Program, extends the Board Eligibility period for residents and fellows from 4 years to 6 years, and instructs the secretary to prepare a report on the distribution and need for child mental health and school-based professionals. I ask my colleagues in the Senate to join me along with Senators Collins, Jeffords, and Dodd in supporting this essential legislation. Over 13 million children in our country are counting on us. As Walt Disney once said, ``Our Nation's greatest national resource is the minds of our children.'' Let us not fail these 13 million people. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. BINGAMAN. Mr. President, I send an amendment to the desk.

Mr. BINGAMAN. Mr. President, I rise to speak briefly in favor of the amendment by the Senator from North Dakota and give the reasons I believe this is a meritorious amendment that would strengthen the bill. First, I think everyone needs to understand the amendment is an amendment that just sets targets. It really says that the plan--this is the plan the administration is going to come up with to spend this $1.3 billion, I believe it is-- shall describe the activities of the Department of Energy, including a research, development, demonstration, and commercial application program for developing technologies to support-- and then it goes on to set these targets to support: the production and deployment of . . . 100,000 hydrogen- fueled fuel cell vehicles by 2010; and . . . 2.5 million hydrogen-fueled fuel cell vehicles by 2020 . . . As I say, this is an amendment that sets some targets. They are not mandates; they are targets. I think they add greatly to the bill. Unfortunately, the Senator from Tennessee, as chair of the Energy Subcommittee in the Energy and Natural Resources Committee, does have the primary responsibility for the oversight of a lot of this activity. I would see this amendment, frankly, by the Senator from North Dakota as a way to give him more ability to perform that oversight. Frankly, the only oversight target in the bill right now is you could call in the various officials from the Department of Energy and ask them whether in fact they are spending the money we have authorized to be spent. That is not a very effective kind of oversight. I am sure they would tell us they are spending the money. The real question is, Are they achieving something with the expenditure of those funds? I believe this amendment tries to put in place some targets for what we would like to see them achieve. Clearly those are not hard-and-fast targets and they will change over time, but they do give us some benchmarks against which we can measure progress. I think that is very useful. The Senator from Tennessee made the point that, in his view, his preference would be to leave it to the market as to how quickly these technologies develop. Clearly the private sector is going to determine to a very great extent how quickly these technologies become commercialized and how well they develop. But this legislation is authorizing the expenditure of Federal funds. It is entirely appropriate that we specify what we want to see as results coming out of the expenditure of those funds. To me it is not incumbent upon us to leave that kind of decision to the market. The market will have a major role, major voice, major determination as to what actually comes to market and what actually is commercialized and how quickly. But in the expenditure of taxpayer dollars it is our job to set out there what we would like to see achieved. If we determine after a few years that those targets are not realistic, we can always change them. Congress is in session every year. But this gives us something to shoot at. I think it is a major step in the right direction. The Department, under the legislation we are considering, would invest $171 million in the current fiscal year, $272 million next fiscal year, $1.7 billion over the next 5 years--I said earlier $1.3 billion. I gather it is $1.7 billion. In my view, it is entirely appropriate that we look at trying to achieve some particular targets so we can then go back to our constituents and say this is what this money is going for and this is how we are making progress. I do want to say, just before I yield the floor here, that this has been a very good, bipartisan effort. The Senator from North Dakota has been a long-time leader in trying to get more attention to the use of hydrogen in meeting our future energy needs. The Senator from Tennessee is certainly a strong proponent of this and has demonstrated that in our debates this year. I know there are others on our committee who have taken a very major role: Senator Akaka, as well, of course, and others before him. So I think this is a very good part of the bill. I think this amendment by Senator Dorgan will strengthen it even more. I hope very much we can see it adopted. I yield the floor.

Mr. BINGAMAN. Yes, I have.

Mr. BINGAMAN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that the pending amendment be temporarily set aside.

Mr. BINGAMAN. Mr. President, this amendment addresses the fact that most hydrogen today is manufactured from natural gas. As far as we can tell, this is likely to remain the case as we make any transition to a hydrogen-based economy. This dependence on natural gas may prove to be a real Achilles' heel for the future development of these promising technologies we have been discussing on the Senate floor today related to hydrogen. The lead story in today's Financial Times has a headline entitled ``U.S. Faces Natural Gas Shortage.'' I believe Chairman Greenspan has also been testifying about this very important issue today in the House of Representatives. This is not a new story. There are a number of us who have been sounding the alarm for a long time on this issue and the need for effective action to address it. It is a serious situation. It has been in the making for several years, and it will not be easy for us to reverse this situation. As an example of this concern, on May 27 there were 29 other Senators who joined me in a letter to Secretary Abraham. In that letter we expressed concern about the current and continued high natural gas prices and their effects on consumers and industries that rely on natural gas. We strongly urged the Secretary of Energy to look to conservation, energy efficiency, and fuel switching as important near- term steps that can be taken to alleviate what is shaping up as a critical problem, perhaps this coming winter. This past Friday, Secretary Abraham wrote back, agreeing with the analysis of the problem and agreeing that--this is a quote from his letter--``the natural gas industry has been strongly supportive of this conservation message. . . .'' Mr. President, I ask unanimous consent that the letter sent by 30 Senators to the Secretary of Energy and the Secretary of Energy's response be printed in the Record following my remarks.

Mr. BINGAMAN. Mr. President, it would be ironic if, in the name of increasing the diffusion of hydrogen-based energy technologies into the U.S. economy, we wound up exacerbating the long-term problem we have with the natural gas supply. To make sure we maintain the awareness of this linkage, and the potential downside that could arise because of it, this amendment I have sent to the desk would make two changes in the underlying hydrogen title of the bill. First, the amendment would require a triennial report from the Secretary of Energy with an assessment of how the various programs in the bill to increase the number of hydrogen vehicles and the use of hydrogen as a fuel were affecting our long-term demands for natural gas. If other sources for the manufacture of hydrogen were coming to the fore, such as renewable sources of electricity, and the increased dependence on natural gas was not looming as a big problem, then fine. But we would be looking at this natural gas issue on a periodic basis at least each 3 years as hydrogen technologies move forward. The second change the amendment would make would be to add a similar analysis to a report from Federal agencies that is already required in the bill on their own future use of hydrogen. It would require Federal agencies to assess how their own increased use of hydrogen would affect natural gas demand. Obviously, all of us want hydrogen to be better developed as a technological option. We all, I believe, also want to make sure we do not have unwanted consequences or unwanted impacts on our strained natural gas picture going forward. This amendment will help ensure that we keep our eyes open and we keep focused on this important potential problem as we move toward a hydrogen-based economy. Mr. President, I think this amendment would strengthen the bill, and I hope it is acceptable and can be agreed to. I yield the floor. Exhibit 1 United States Senate, Washington, DC, May 27, 2003. Hon. Spencer Abraham, Secretary, Department of Energy, Washington, DC. Dear Secretary Abraham: We are writing to express our concern about continued high natural gas prices, the impact on industries that rely on natural gas for manufacturing, and the possibility of severe price spikes recurring later this year. In your recent address to the National Petroleum Council, you correctly pointed out that the amount of natural gas in storage is unusually low and that injection rates must increase dramatically in order to fill storage to levels sufficient to meet anticipated demand this year. With natural gas prices twice as high as they were last year and the increased demand for electricity expected this summer, market fundamentals are not encouraging for robust storage refill rates. We commend you for focusing on the near term challenges we face with respect to natural gas and for calling an emergency meeting of the National Petroleum Council next month to identify actions that can be taken immediately to ease short- term supply constraints. The expertise of the NPC's members in the production, transmission and distribution of natural gas should be very helpful. Increased natural gas supplies are needed of course and, in fact, drilling is up thirty percent this year. But significant new gas supplies are not likely to come on line in the near term. Energy efficiency and conservation, as well as fuel switching, are more likely to make a difference in natural gas markets this summer and next winter. Analysis of the successful efforts of California to reduce electricity consumption in 2001 demonstrated that efficiency and conservation were the fastest and least costly solutions available. We urge you to cast a wider net for recommendations on natural gas including meeting with Governors, state and federal regulators, industrial and commercial gas consumers, electric utilities and independent generators, and experts in efficiency and conservation. We look forward to working with you to address this critical issue. Sincerely, Tom Daschle, Tim Johnson, Jay Rockefeller, Russell D. Feingold, Harry Reid, Joseph Lieberman, Jeff Bingaman, Tom Carper, Frank R. Lautenberg, Ron Wyden, Debbie Stabenow, Maria Cantwell, Mary L. Landrieu, Jon S. Corzine, Jack Reed, Charles Schumer, Evan Bayh, Daniel K. Inouye, Dianne Feinstein, Barbara Boxer, Dick Durbin, Hillary Rodham Clinton, Patrick Leahy, John F. Kerry, Paul Sarbanes, Barbara A. Mikulski, Ted Kennedy, Carl Levin, Daniel K. Akaka, Patty Murray.

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

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I thank my colleague from California for offering the amendment. I do support the amendment. The general rule which has served us well in this country is that if you design or manufacture a product that proves to be defective and that product then injures someone, you can be held liable. That has allowed us to protect the health and safety of the American people. It is a substantial protection for all of us. This safe harbor provision that the Senator from California wants to strike says: No renewable fuel shall be deemed to be defective in design or in manufacture or no motor vehicle fuel that contains renewable fuel shall be deemed to be defective in design and manufacture. To my mind, it is unwise public policy for us to be writing into law this kind of exception to the general tort laws that we operate under in the country. We do not know enough, frankly. We do not know what the scientific and health experts are going to find when they fully investigate the impact of tripling the use of ethanol on the air that we breathe and the water we drink. I certainly hope they will find there is no harmful health effect from it, but to say we are going to prohibit anyone from recovering if they are damaged from the design or manufacture of any of these renewable fuels I think is a big mistake. I compliment the Senator from California. I support her amendment. I yield the floor.

Mr. BINGAMAN. Mr. President, in response, let me indicate my best information is they are still insisting that we not deal with LIHEAP in this legislation, which is of course not my position. I think we should deal with it. Accordingly, I would not agree to just a sense of the Senate on that subject, which is their preference, as I understand it. I hope we can persuade them otherwise. If not, then we will have to have a vote.

Mr. BINGAMAN. Mr. President, I congratulate the Senator from California on this amendment. It substantially improves this portion of the bill and does provide additional opportunity for developing ethanol from these other sources. It is good environmental policy. It is good energy policy. I very much support the amendment. As I understand it, most of those people who looked at this agreed to it. I agree with my colleague from New Mexico that this is an amendment we should agree to unanimously in the Senate and we should maintain it in conference, insisting on it in our discussions with the House. I yield the floor.

Mr. BINGAMAN. Let me respond, to the extent I am persuasive in the conference, I will commit to keeping this provision in the law.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, as I indicated, this is an amendment I am offering on behalf of Senator Sununu and myself. It is to improve the waiver provisions in the renewable fuels standard in the Daschle- Frist amendment. The amendment we are offering seeks to give the President the authority to suspend the ethanal mandate--he could suspend it with regard to a particular geographic area in the country--in the event there is a severe supply or price disruption to U.S. gasoline markets. We have a way of determining when that threshold is reached. It provides a path for immediate action to be taken to deal with that price circumstance. This is not a requirement that the President act. This is merely authority for him to act if he chooses to do so. I think we need to make that point so all Members understand we are not requiring any action by this amendment; we are expanding the waiver authority so that additional authority exists if the President chooses to use it. Ultimately, someone needs to have the authority to take immediate action if there happens to be a crisis, if a crisis comes upon us. The Daschle-Frist amendment waiver provisions--and this is on page 12 of the underlying Daschle-Frist amendment--those waiver provisions give each State the right to petition the Administrator for a waiver in the event of severe harm to the economy or the environment. The process that is outlined can take up to 90 days. It is not necessarily going to take 90 days. It could take longer, as there is no enforcement really built in, but it is supposed to take no more than 90 days. The State files the petition. The Administrator has the 90 days, maximum, to make a determination of whether the petition should be granted. In making that determination, the Secretary is required to give public notice and an opportunity for comment. That is a 3-month period--or up to a 3-month period--for a determination to be made and for the mandate to be suspended. In a crisis situation, a significant amount of economic or environmental damage could be done during that period while all of this notice and opportunity for comment is occurring. In my view, we cannot afford that. Ninety days is too long a period. The amendment we are offering does not seek to disturb or to weaken the underlying Daschle-Frist amendment. It simply gives the President the authority to take immediate action to deal with urgent issues that may arise in particular regions. If a State or region experiences a supply disruption which they might experience with regard to ethanol or a price spike resulting from the mandate, and a suspension of the mandate is necessary, then we are giving the President authority to suspend the mandate for a 30-day period. He could renew that for an additional 30 days if he chose to. But that is the essence of our amendment. If the gasoline prices rise more than 10 cents as a result of the mandate, that is when this authority would come into place. Now, this is not the price of ethanol rising 10 cents; this is the price of gasoline at the pump rising 10 cents because of the mandate to use ethanol as required in the Daschle-Frist amendment. If the price of gas at the pump rises over 10 cents, and the Secretary makes the determination that immediate action is necessary, then the mandate could be suspended for the 30 days in this affected PADD, this Petroleum Administration for Defense District, or in the effected State or region. What does that 10-cent rise in the price of gasoline per gallon mean? Let me refer to this chart I have in the Chamber. You can see that ethanol is going to be blended with other petroleum fuel in gasoline, and 10 percent of it is going to be ethanol. So, in fact, if you saw a 50-cent increase in the price of ethanol per gallon, that would mean a 5-cent-per-gallon rise in the price of gasoline. If you saw a $1 increase in the price of ethanol per gallon, that would mean a 10-cent-per-gallon increase in the price of gasoline. I think this chart makes clear that what we are proposing gives the President the ability to act expeditiously. If there is this kind of $1 increase in the price of ethanol itself, that could translate approximately to a 10-cent increase in gasoline. This is a high threshold. Frankly, I know there are Members of this Senate who would say that should not be 10 cents; we ought to have the President have the authority to act if you have a 3-cent increase or a 2-cent increase or a 5-cent increase, and I might agree with some of that logic. But the truth is, we have tried to write this in a way that makes it clear that this is not authority we would expect to be invoked or to be available to the President under most circumstances. This is authority which would only be available under extraordinary circumstances. Today prices are at about $1.15 per gallon. Adjusted for inflation, this is roughly where they were back in 1998. There has been some fluctuation. This second chart that I have in the Chamber shows what has happened to the price of gasoline from 1998 through the current period. You can see that there has been fluctuation in the price of ethanol, but we have not seen enough fluctuation in the price of ethanol from the average price to trigger this authority to ever take place, so that during this entire period this authority would not have come into place. It is clear we are not setting up some kind of a hair-trigger procedure here which will give the President or the Secretary of Energy the ability to step in at will and act. The amendment we are proposing is simply a safety valve. As I have said several times, it is not automatic. If there is no disruption in supply, if prices do not spike substantially outside the range shown on this chart, then nothing would happen. However, in the event we do have a problem, we would have in place, with this amendment, a procedure for dealing with it. The reason I think this amendment is important is because fuel transitions are inherently problematic. We have a lot of history on which to base that judgment. All previous changes to the reformulated gasoline formula have resulted in severe price volatility in gasoline markets. We don't have to go back very far to see that this is the case. In 1996 and in the year 2000, we saw gasoline prices rise substantially, and both times this resulted in gasoline price spikes of more than 30 cents a gallon in California. There are previous EIA studies that have been done, but they have not addressed short-term issues. That is what we are talking about, short- term supply disruptions. They either look at the long-term outcomes or act to analyze supply disruptions only after they have occurred. The mandate we are proposing to put into law with the Frist-Daschle amendment does create substantial uncertainty. That has been discussed in some of the debate that has already occurred. The mandate says we will use 5 billion gallons of ethanol in the Nation's fuel supply by 2012. It bans the use of MTBE beginning in the year 2007. While some would prefer to call it a renewable fuels standard, it is in fact a mandate. All of us understand that. By the nature of a mandate, it creates a substantial amount of uncertainty. While my colleagues may argue that they have crafted a plan that allows plenty of time for the transition from MTBE to ethanol, I have doubts about whether that is the case. Under the mandate in the Frist- Daschle amendment, it is possible that our motor fuels market will see disruptions in supply and price spikes that, if left unattended, could harm consumers and the economy. Our amendment tries to deal directly with that. We have to keep in mind the MTBE ban affects supply immediately. Once the bill passes, MTBE will be quickly phased out and banned in 16 States; most importantly, in California and Washington and Arizona on the West Coast and in New York and Connecticut on the East Coast. These States in the Northeast in particular are heavily dependent on gasoline product imports from Europe and South America. Venezuela supplies 8 percent of the gasoline volume on the East Coast. The Venezuelan National Oil Company says a renewable fuels mandate could make it difficult if not impossible to import finished gasoline into the United States as they have been doing. Most of the East Coast imports come into the New York area and need to be suitable for the reformulated gas markets. As I have said in several ways, there is a lot of uncertainty that we just do not know the answers to. Let me list some of that again. Then I will defer to my colleague from New Hampshire who is here and wishes to speak on behalf of the amendment as well. Some of the questions that still exist in my mind as regards this mandate are, No. 1, what if we have a supply shortage when refineries are already producing at capacity? What does that do to the price to the consumer? Second, what if our import capacity declines and prices spike even further? Third, what if there is a drought in the Midwest that affects corn production and therefore affects ethanol production? That could significantly affect the price. And it could get the price outside of this area that is reflected on the chart behind me. Perhaps we could experience problems in transporting the ethanol or an important element in the refinery infrastructure could be damaged at a key hub. There is any number of scenarios that could lead us to supply disruptions, to price spikes. Under those circumstances, we need to have authority vested with the President to take action. We should not be requiring that he take that action, but we should be giving him the authority. We need to be proactive. We need to look forward and analyze potential problems the U.S. motor fuels market could face in the short term, and we need to do this before the disruption occurs. I urge our colleagues to carefully consider the amendment. It is good policy to build in such a provision to protect consumers in the event of a crisis. It is a good safety valve to add to the bill. It substantially strengthens the bill. I hope my colleagues will agree and that we can add this as an amendment. I yield the floor. I see my colleague, my cosponsor from New Hampshire, is in the Chamber waiting to speak.

Mr. BINGAMAN. Mr. President, I suggest the absence of a quorum.

Mr. BINGAMAN. Madam President, in response, I have no problem with proceeding to a vote on my amendment on ethanol at this point.