Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the leader. It, indeed, is good news that this bill is coming over. It is my understanding that we have had successful negotiations. I am very hopeful there will be a bill before us shortly. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I have come to the floor as a Californian to say there is very little in this Energy bill for California. There is very little to prevent future blackouts. There is nothing to protect consumers from manipulation and gaming of the system that we experienced a few years ago. There is nothing to improve our Nation's energy security by increasing fuel economy standards. In short, from a California perspective, I see this bill as one giant giveaway to special interests, particularly the ethanol, the MTBE, the oil, the gas, and the nuclear power industries of this country. I had hoped that this Congress, and in particular the Energy Committee on which I serve, following the Western energy crisis and last summer's blackout in the Northeast, would pass a sensible bill that would improve our Nation's energy supply while protecting consumers, the environment, and the economy. But as I read this bill, that is not the case. This Energy bill was drafted behind closed doors, without any input from Democratic conferees or from those of us on my side of the aisle on the Energy Committee. Simply put, it is one of the worst pieces of legislation I have seen in my time in the Senate. It is interesting that today on every Member's desk is a summary of editorials. There are over 100 editorials from newspapers, large and small, all across this great country saying ``oppose this bill.'' In fact, 100 newspapers around the country have come out opposed to the bill and editorialized against it. I will quote from one of them. Let me begin with the newspaper whose editorial policy is generally very conservative, and that is the Wall Street Journal. Let me read what the Wall Street Journal says about this legislation: We realize that making legislation is never pretty, but this exercise is uglier than most. The fact that it's being midwifed by Republicans, who claim to be free marketers, arguably makes it worse. By claiming credit for passing this comprehensive energy reform, Republicans are now taking political ownership of whatever blackouts and energy shortages ensue. Good luck. Now I will go to yesterday's Denver Post. The editorial is entitled ``Energy Bill Full of Pork.'' The bill does include funds for energy conservation, including some incentives for ``green'' construction, but some sound suspicious. Some $180 million will pay for a development in Shreveport, LA. That project will use federal tax money to subsidize the city's first-ever Hooters restaurant. What a new Hooters has to do with America's energy situation may be best known to U.S. Rep. Bill Tauzin, a Louisiana Congressman and key player in the secret conference committee talks. The bill provides no real vision, represents no real improvement in policies and laws. It is vexing that Congress did not seize an opportunity to improve the national energy picture. Congress should start over next year. Let me now go to the Northeast, a large newspaper, the New York Times: The oil and gas companies were particularly well rewarded-- hardly surprising in a bill that had its genesis partly in Vice President Dick Cheney's secret task force. Though they did not win permission to drill in the Arctic National Wildlife Refuge, they got a lot of other things, not only tax breaks but also exemptions from the Clean Water Act, protection against lawsuits for fouling underground water and an accelerated process for leasing and drilling in sensitive areas at the expense of environmental reviews and public participation. Meanwhile, the bill imposes new reliability standards on major electricity producers, but it is not clear whether it would encourage new and badly needed investment in the power grid. Now let me go to the Midwest to the Chicago area, the Chicago Tribune. Despite all the years of partisan haggling that preceded it, the approximately 1,400-page energy bill that Republicans unveiled over the weekend, and which Congress is expected to vote on this week, is no masterpiece of compromise or even effective legislation. It is more like a jigsaw puzzle with hundreds of unrelated pieces crammed together. A few initiatives are worthwhile, most look more like a laundry list of special-interest subsidies. Together, they don't add up to a policy that will promote energy self-sufficiency or stable prices. Then let's go to one of the Chair's own newspapers, the Anchorage Daily News, which states: What's left is a grab bag of lesser measures and pet projects patched together in hopes of gaining enough votes to pass in the House and Senate. The result is an energy bill that likely will pass--but not a coherent energy policy for a nation critically dependent on imported energy supplies. Then let's go to the Houston Chronicle, and I will not read it all: The most pressing problem facing the Nation is its increasing reliance on imported oil and gas. Yet the bill ignores several obvious avenues for progress. The Republican draft of the bill set no standard for renewable sources of power, such as solar and wind. The latter will provide 2 percent of Texas' electricity supply and one day could spell the difference between air conditioning and brownout. There is no reason for Congress to ignore these pollution-free, alternative energy sources, and the conference committee should adopt a Senate amendment requiring expanded production of renewable energy. Now, let me take a moment here to elaborate on this point. On Monday, during the Energy Conference, I was pleased an amendment requiring utilities to generate 10 percent of their energy from renewable sources was included in the bill. Unfortunately, this provision was stripped out of the conference report by the House just hours later. Although the bill does have requirements for renewable energy in government buildings, that is not enough. We need to encourage the use of this clean technology at a national level. Finally, I would like to move to the west coast, to the largest newspaper, the Los Angeles Times. Their editorial is entitled ``An Energy Throwback.'' They say: It's clear why Republican leaders in Congress kept their national energy policy bill locked up in a conference committee room for the last month, safe from review by the public. Taxpayers, had they been given time to digest the not-so-fine print in the pork-laden legislation, would have revolted. Let me begin my impression of the bill with its costs. The editorials from around the country show that this bill increases energy production at the expense of both the taxpayers and the environment. A group called the Taxpayers for Common Sense has estimated that this bill will cost $72 billion in authorized spending, and $23 billion in tax giveaways. That is $95 billion in spending over the next 10 years. I ask unanimous consent to have that report printed in the Record following my remarks.

Mrs. FEINSTEIN. Taxpayers for Common Sense points out that there is nearly $13 billion for the oil and gas industry, $5.4 billion for coal, $1.4 billion for the nuclear power industry, $4.16 billion for ethanol, $4.9 billion in energy efficiency, $1.7 billion for auto efficiency and fuels--that includes ethanol--$11 billion for LIHEAP and weatherization, $21 billion for science research and development, $2.15 billion for freedom car and hydrogen research, and $764 million for miscellaneous provisions. Now, I am in favor of some of these programs, but the cost of this is enormous. The Senate should think twice about these massive spending increases, especially given our rising Federal deficit. I do not want to leave my children and my grandchildren saddled with these debts. Let's also consider the fact that this bill does not deal with global warming, does not deal with fuel efficiency standards, does not deal with consumer protections, and does not deal with energy security. From a western perspective, and particularly a California perspective, we have to look at the western energy crisis and ask the question: Will this bill help in the future? My analysis of the bill leaves me with the conclusion that the answer is no. I have often pointed out in this Chamber that the cost of energy directly before the crisis was $7 billion. That was in 1999. It rose to $27 billion in 2000, and $26.7 billion in 2001. In 1 year, the cost went up 400 percent in California. There are Members of this body who said: Oh, California, it is your fault, you have a broken system, you don't have adequate supply to meet demand. A 400 percent increase is not the product of supply and demand, it is the product of gaming and manipulation. Now, 3 years later and after $45 billion in costs, we have learned how the energy markets were gamed and abused. In March of 2003, the Federal Energy Regulatory Commission issued its final report on price manipulation in the western markets, and what did it find? It confirmed that there was widespread and pervasive fraud and manipulation during the western energy crisis. The abuse in our energy markets was in fact pervasive and unlawful. So you would think an Energy bill coming out a few years after this crisis would take a look and say we ought to prevent this from ever happening again, we ought to put policies and those procedures in this bill to prevent it, we ought to strengthen the Federal Energy Regulatory Commission's ability to produce just and reasonable rates and ensure that rates remain just and reasonable across this Nation. But this bill does not do this. Rather, this bill actually impedes the ability of Federal and State agencies to investigate and prosecute fraud and price manipulation in energy markets. These provisions would make it easier to manipulate energy markets, not harder to manipulate energy markets. This bill sends this country in the wrong direction. Rather than preventing Enron-type schemes, such as Fat Boy, Ricochet, Death Star, and Get Shorty, this bill weakens the oversight over energy markets. It guts the Federal Energy Regulatory Commission's ability to enforce just and reasonable rates. Between now and 2007, the FERC will be in court, litigating the meaning of this electricity title rather than enforcing the State administration of just and reasonable rates to electricity customers. FERC will be powerless to respond to market crises like the one that occurred in the West between 2000 and 2001. I am also particularly concerned about the provision in the bill which directly affects the so-called sanctity of contract provision. California was overcharged by as much as $9 billion for the cost of energy as a result of long-term electricity contracts that were entered into under desperate circumstances at the height of a gamed energy crisis. These contracts were not based on just and reasonable rates, they were based on rates that were inflated as a result of gaming and manipulation. California has filed at FERC for refunds. This sanctity of contract provision, however, would mean FERC would never provide any further refund in the California case. So it shuts out California from any further recourse. No one from California should vote for this Energy bill. The provision places the importance of the physical contract above the importance of enforcing just and reasonable rates. In other words, it says even if you signed a contract in a situation that has been gamed and manipulated by fraud, you are still bound to that fraud-inspired contract. That is what we are doing in this bill. In my view, this is simply absurd. We need to be strengthening FERC's ability to enforce just and reasonable rates, particularly in a deregulated market, not weakening it. And the irony is that FERC recently announced a settlement in which El Paso Corporation and its subsidiaries would pay $1.6 billion to resolve a complaint that the company withheld supplies of natural gas into California, driving up prices for gas and electricity during the State's energy crises in 2000 and 2001. This was precisely the incident about which I tried to see the President--he wouldn't see me at that time--because we knew that the price from San Juan, NM, to southern California, which should have been $1 per dekatherm, was $60 per dekatherm, which was a manipulated price based on the withholding of space in the El Paso pipeline. We now know that that was correct because El Paso has paid $1.6 billion: Fact. This bill does nothing to prevent gaming and manipulation in the natural gas market. The bill does increase penalties for electricity gaming and fraud, but does nothing to increase the low penalties for manipulation of the natural gas market. It is estimated that El Paso's price manipulation cost consumers and businesses $3.7 billion, yet this bill fails to give the FERC the power it needs to ensure that this kind of price manipulation does not happen again. Now I would like to speak about what should be for the east coast and the west coast one of the most egregious provisions in the bill, and that is this ethanol mandate. This mandate is essentially a hidden gas tax. It will increase automobile emissions in the most polluted areas of the country and will not reduce our dependence on oil. Not only is this mandate unnecessary but it may have serious unintended environmental consequences because the environmental studies on ethanol have not been done. Yet this bill forces consumption of ethanol beyond that which is needed. So this bill is pushing an untested product that States such as mine don't need to meet clean air standards. There are several reasons I am adamantly opposed to mandating the increase in ethanol consumption from 3.1 billion gallons a year to 5 billion gallons over the next 7 years. Not only do I believe the mandate is unnecessary but I am concerned about unintended environmental consequences. Let me tell you why. This is not just off the top of my head. This summer, for the first time, 70 percent of southern California's gasoline was blended with ethanol. Partially as a result, southern California endured its worst smog season since 1998. Why? Ethanol produces smog. For the first time in 5 years, southern California experienced a stage 1 smog alert. As of September, the greater Los Angeles metropolitan area had experienced 63 days of unhealthy air quality, when ozone levels exceeded Federal standards. That number far exceeds the 49 days of unhealthy air quality during 2002 and the 36 days in 2001. That is with 70 percent of its gasoline blended with ethanol. So the air got worse; it didn't get better. The number of unhealthy days this year was almost more than twice that of two other of the smoggiest areas of the country, the San Joaquin Valley and Houston, TX, which exceeded the Federal health standards for 32 days and 25 days, respectively. What ethanol has done for southern California is make it more smoggy, not less smoggy. It is a culprit. It is worsening smog. I think we are mandating it in this bill willy-nilly because of greed. The Secretary of the California EPA concluded, and this is his direct quote: Our best estimate is that the increase in the use of ethanol-blended gasoline has likely resulted in a 1-percent increase in emissions of volatile organic gases in the South Coast Air Quality Management District in the summer of 2003. Given the very poor air quality in the region, and the great difficulty of reaching the current Federal ozone standard by the required attainment date of 2010, an increase of this magnitude is of great concern. Clearly, these emission increases have resulted in higher ozone levels this year than what would have otherwise occurred and are responsible for at least some of the rise of ozone levels that have been observed. Not only does this bill do harm to California, it increases the use of ethanol-blended gasoline, and that will threaten my State's long- term trend toward cleaner air. It will make it more difficult, and it may well make it impossible. Without major emission reduction in the next several years, air quality officials warn that the region may miss a 2010 clean air deadline to virtually eliminate smoggy days. If the deadline isn't met, the Los Angeles region could face Federal sanctions amounting to billions of dollars. That is why I oppose this ethanol mandate. That is why I say to those who are supporting it that you are doing us grievous injury. Furthermore, the bill as written threatens the highway trust fund, the funding stream that allows States to construct and maintain our roads. Let me tell you how. Gasoline taxes generate about $20 billion per year for the highway trust fund, and they comprise about 90 percent of the overall money for the fund. Because this bill subsidizes ethanol with transportation dollars, any increase in the use of ethanol will mean a decrease in the amount of money going into the highway trust fund. In fact, California will lose approximately $900 million over the next 7 years just because of this provision. The loss of highway funds for the entire country will amount to $10 billion over the next 7 years because of this ethanol mandate. It is egregious public policy. I am also concerned about the price impact this mandate will have on the cost of gasoline at the pump. Proponents of the ethanol mandate argue that gas price increases will be minimum, but the projections don't take into consideration the real world infrastructure constraints and concentration in the marketplace that can lead to high price hikes. We all know that when one entity controls most of the marketplace, that entity can move price as it sees fit. And that is the situation we have here. Everyone outside of the Midwest will have to grapple with how to bring ethanol to their States in amounts prescribed and mandated since the Midwest controls most of the ethanol production. California has done more analysis than any other State on what it will take to get ethanol to our State. The bottom line is that it can't happen without raising gas prices. Our analysis shows that we can't bring ethanol to our State without increasing gas prices. As I said, California has done more analysis on what it will take to bring the required amount of ethanol to our State than any other State, and has found that it will have cost consequences at the pump. Proponents of the ethanol mandate argue that gas price increases will be minimal. But the projections don't take into consideration the infrastructure and strength and the concentration in the marketplace that exists. Everyone outside of the Midwest will have to grapple with how to bring ethanol to their States since the Midwest controls most of the production. I am also concerned about the limited number of ethanol suppliers in the market today. This high market concentration will leave consumers vulnerable to price hikes as it did when electricity and natural gas prices soared in the West because of a few out-of-State generating firms dominating the market. As I have watched all of this, every time you have out-of-State companies dealing with an unregulated energy-related marketplace you have problems. I don't know why. But I suspect there really isn't the connection with the consumer. Many of the companies driving the energy crisis in California weren't in California. I wonder if they would do the same thing to their State that they did to our State. I am not a fan of the way the marketplace is structured today. And into this lack of structure and lack of price responsibility, we bring a whole new component. That component is that one company is the dominant producer in the highly concentrated ethanol market. ADM today controls 46 percent of the ethanol market. That is only what is produced today. The company has an even greater control over how ethanol is distributed and marketed. ADM does not have a sterling record. It is an admitted price fixer and three of its executives have served prison time for colluding with competitors. I cannot look at ADM and say we have a pristine corporate citizen who controls this marketplace, its production, its distribution and will have any compassion for price responsibility. I do not believe giving firms such as this, this kind of control, is good public policy. One could ask, Do I have any more grievous complaints? The answer is yes. The list goes on and on. Let me take up MTBE. In this bill, there is a liability waiver so nobody can sue for the fact that MTBE has been found to be defective by a court of law. Not only that, it is a retroactive liability protection for MTBE producers. This provision offers them immunity from claims that the additive is defective in design or manufacture. It makes this liability protection retroactive to September 5 of this year thereby wiping out hundreds of lawsuits brought by local jurisdictions all across America. This retroactive immunity is a perverse incentive to those who pollute because it says to them, OK, you have done all of this damage; nonetheless, it does not really matter. You do not really have any liability. All these suits will be wiped out. This bill does not ban MTBE nationwide despite what has happened in huge numbers of States, including my own. It gives MTBE producers $2 billion in what is called ``transition assistance'' to transition out of a product they are allowed to continue to produce and export. So they can accept $2 billion and continue to produce a flawed product that we know contaminates ground water, that we know leaches out of ground water wells, creates plumes of benzene, could possibly be carcinogenic, and pollutes drinking water so it is undrinkable and what do they get for doing this? $2 billion in this bill. Now I ask, is that good public policy? Remember, the courts have already found it to be a defective product. This is not me speaking; it is the courts. I first learned about MTBE when the mayor of Santa Monica came to see me and told me that one-half of their entire water supply was contaminated with MTBE and could not be used. As I delved into it and investigated the claims further, I came to learn there were at least 10,000 sites contaminated in California. Since then, about a year ago, it is now 15,000 sites in California. California is not alone. Last year the EPA estimated there are 15,051 sites in California. Nationally there are 153,000 contaminated ground water sites. The States with the most pollution include California and Florida. Florida has 20,273 contaminated ground water sites--more than California. Florida is heavily impacted with MTBE pollution. Illinois has 9,546 contaminated sites. Michigan has 9,087 sites. Texas has 5,678 sites. Wisconsin has 5,567 sites. New York has 3,290 polluted sites. Pennsylvania has 4,723. It is State after State after State. They total 153,000 polluted drinking water sites. This bill does not make MTBE illegal; this bill gives MTBE $2 billion, and they cut out the ability of local jurisdictions to sue to be able to clean up these sites with the money. If that is not perverse public policy, if that does not create an incentive to do bad things, I don't know what does. As I said, the courts ruled that MTBE is a defective product. Actually, this relates to a case in my State so I think it is relevant to mention this case. It is a case brought by the South Lake Tahoe Public Utility District. The court held Shell, Texaco, Tosco, Lyondell Chemical, which is ARCO Chemical, and Equilon Enterprises liable for selling a defective product, gasoline with MTBE, while failing to warn of its pollution hazard. The court forced these MTBE producers to pay the water district of South Lake Tahoe $60 million to clean up the mess. The industry, in fact, knew of the problems with MTBE yet decided to include it in gasoline. They deny all of this, but a court has found it to be the case. In fact, let me read a comment from Exxon employee Barbara Mickelson from 1984: Based on higher mobility and at the same time/odor characteristics of MTBE, Exxon's experience with contaminations in Maryland, and our knowledge of Shell's experience with MTBE contamination incidents, the number of well contamination incidents is estimated to increase three times following the widespread introduction of MTBE into Exxon gasoline. This is 1984. The company went ahead and included it in their gasoline. Now, no one can sue them for a defective product in this bill. Let me also give you an excerpt from a 1987 memorandum circulated within the Environmental Protection Agency: Concern about MTBE in drinking water surfaced after the Interagency Testing Committee report was published. Known cases of drinking water contamination have been reported in 4 states. These cases affect individual families as well as towns of up to 20,000 people. It is possible that this program could rapidly mushroom due to leaking underground storage tanks at service stations. The tendency for MTBE to separate from the gasoline mixture into ground water could lead to widespread drinking water contamination. That is what indeed happened as illustrated by the fact that today we have 153,000 drinking water sites contaminated with MTBE across this Nation. This bill does not make its use illegal. It gives the companies $2 billion, and it prevents water districts from suing because the product was knowingly defective. There is no way you can look at a provision like this and not say this is a bad bill. What adds insult to injury is this bill says they can continue to produce MTBE and export it to other countries so the drinking water of other countries can be polluted. How perverse can public policy be? I am also disappointed that the conference report does nothing to increase fuel economy standards of our Nation's fleet of automobiles. We have an Energy bill. The largest contributor to global warming is carbon dioxide. The largest producer of carbon dioxide is the automobile. This bill does nothing to make automobiles more fuel efficient. What kind of an energy policy is that? In fact, the bill, again, perversely, makes it more difficult for the Department of Transportation to encourage fuel efficiency standards in the future by including a new list of criteria the Department must consider when revising standards. I believe increasing the fuel economy of SUVs and light trucks is the single easiest step the Nation can take to reduce the emission of carbon dioxide into the atmosphere. It is the biggest single shot at reducing global warming. Yet we refuse to do it. Earlier this year, Senator Snowe and I introduced bipartisan legislation to close what is called the SUV loophole. We were unable to offer this legislation as an amendment to the Senate version of the Energy bill when it was on the floor. But our bill had been evaluated by the National Academy of Sciences, that has released a study on this issue, and said it was technologically feasible to do this, and that over the next 10 years it would save the United States a million barrels of oil a day and reduce our dependence on foreign oil by 10 percent. It said it would prevent 240 million tons of carbon dioxide, the top greenhouse gas, as I have said, from entering the atmosphere each year, and it would save SUV and light-duty truck owners hundreds of dollars, ranging anywhere from $300 a year to $600 a year at the pump in the cost of gasoline. CAFE standards were first established in 1975. They were fought by Detroit, just as seatbelts were fought by Detroit. At that time light trucks made up only a small percentage of the vehicles on the road. They were used mostly for agriculture and commerce. Today they are used mostly as passenger cars. Our roads look much different. SUVs and light-duty trucks comprise more than half of new car sales in the United States. As a result, the overall fuel economy of our Nation's fleet is the lowest it has been in two decades, largely because fuel economy standards for SUVs and light trucks are so much lower than they are for other passenger vehicles. They are 22 miles per gallon. We could have them equal to sedans and have all the savings I have just cited. Additionally, what is interesting is that others are moving rapidly to retrofit automobiles with new fuel savings technology that is available today for use by car manufacturers. Toyota recently announced improvements in its hybrid vehicle, the Prius, making it more powerful and more fuel efficient. Toyota has announced a hybrid version of its Lexus RX 330 SUV, which is scheduled to be released in early next year. Meanwhile, instead of moving forward, some U.S. automakers are moving backward. I was very disappointed by the announcement made by the Ford Motor Company stating Ford would not be meeting its self-imposed goal of raising the fuel economy in its SUVs by 25 percent by 2005. Additionally, Ford announced it is delaying the sale of its hybrid SUV, the Escape, another year until 2004. Yet China has announced it is going to move quickly on imposing fuel efficiency standards on its automobiles. Of course, any American companies that produce for Chinese consumption will have to conform. I am so disappointed to see this Energy bill does not address global climate change. We are 5 percent of the world's population. We use 25 percent of its energy. We produce the world's most greenhouse gas emissions. We are the most significant culprit driving global warming. Despite the fact that climate change threatens our environment and our economy, this bill does nothing to address it. I think that is a major mistake. Energy and climate are inextricably linked. A truly comprehensive energy policy cannot ignore that issue. As a nation, we ignore it at our peril. The scientific evidence of global warming is real. The problem is getting worse. People are seeing mosquitos in areas of the Arctic for the first time. Glaciers are melting around the world, from Glacier National Park to the slopes of Mount Kilimanjaro. The largest ice shelf in the Arctic is disintegrating. This ice shelf covers 150 square miles. It is 100 feet thick. The hole in the ozone layer, which decreased in size last year, grew to its largest level earlier this year. Climate change is also affecting some of our most treasured places. Over a century ago, 150 magnificent glaciers could be seen on the high cliffs and jagged peaks of the surrounding mountains of Glacier National Park. Today, there are only 35. The 35 glaciers that remain today are disintegrating so quickly that scientists estimate the park will have no glaciers in 30 years. Glaciers in the Sierra Nevada, in my State, are disappearing. Many of these have been there for the last thousand years. We are seeing similar melting around the world, from Mount Kilimanjaro in Tanzania to the ice fields beneath Mount Everest in the Himalayas. Dwindling glaciers offer a clear and visible sign of climate change in America and the rest of the world. We are seeing these changes. Scientists tell us to expect more. Yet this bill is silent. We have reports from the National Academy of Sciences, the Intergovernmental Panel on Climate Change, and the Congressional Budget Office. Let me quote the CBO report in May: Scientists generally agree that continued population growth and economic development . . . will result in substantially more greenhouse gas emissions and further warming unless actions are taken to control those emissions. The place to take those actions is in an Energy bill, and yet this conference report is silent. Let me tell you what the actual effect is in my State. Sea level has risen 6 inches in San Francisco since 1850, with the greatest change happening since 1925. As sea level rises, the salt water permeates into the delta, contaminating drinking water and ground water further upstream. Even without climate change, it would be a struggle to supply enough water for all of the people that live in California. But report, after report, after report indicates that climate change will further threaten a water supply that is already tight. Models from NASA, the Lawrence Livermore National Laboratories, and the Union of Concerned Scientists all indicate that climate change is likely to increase winter rain and decrease snowfall in my State. More winter rain means winter flooding. Less snow means less water for the rest of the year. California's water supply depends on gradual snow runoff. We have spent billions of dollars on water infrastructure that depends on this runoff, and yet we still have to struggle to provide enough water for our farms, our cities, our fish, and our wildlife. This bill does nothing to help California's situation. In 1910, half of the Sacramento River's annual runoff took place between April and July. Today that number is 35 percent, and it is continuing to decline. We can't count on this runoff. It is clearly in our best interest to address climate change. Our environment is clearly at risk. Our relations with our allies are at risk because of our reluctance to address it. The Foreign Relations Committee has recognized the need for the United States to act. We should do so in this bill. Yet we do not. How can I, representing the largest State in the Union, support a bill that does nothing for my State--nothing? Let me now deal with the sensitive issue of coastal protection. On the positive side, the bill no longer includes another inventory of oil and gas resources on the Outer Continental Shelf. However, this conference report takes away the States' input into an important set of energy development projects, including liquefied natural gas facilities and other oil- and gas-related projects. These States need input into these decisions. For coastal States, this is a significant weakness in this bill, particularly States such as Florida and California and for your own State of Oregon, Mr. President. Time after time, we have said we do not want offshore energy development. This bill opens that door, and it reduces the States' input into decisions which directly affect our coastal zone waters. The Energy bill also fails to include the renewable portfolio provision which was included in the Senate-passed bill. I heartened when the ranking member, the Senator from New Mexico, announced earlier this week that it was in. Apparently, it is now out. Solar, wind, geothermal, and biomass are generating electricity for homes and businesses nationwide. It is working in California. We need an energy policy that not only provides tax incentives for their continued development but also requires their use. I believe it is in the public interest for our Nation to require a greater development of renewable resources. The tax provision of this bill implies that nuclear power is a form of renewable power, and it places this form of power on an equal footing in the Tax Code with traditional renewables. This production tax credit for nuclear power is the largest energy tax credit in the bill and would be the largest one in the code, equaling $6 billion. As a nation, we still can't properly dispose of nuclear waste. This waste has a half-life of an eternity, yet we are going to produce more of it. I strongly believe this is a mistake. This bill also weakens the Clean Air Act. Upon reviewing the bill, I was most disappointed to learn that the legislation that has really cleaned up our air, the Clean Air Act, is weakened. The 1990 amendments to the Clean Air Act, signed by the first President Bush, implemented timelines for cities to clean their air. This bill undermines the intent of those amendments by no longer requiring communities to clean up their air if they can claim that part of its pollution is a result of transported air pollution. Most of California--all the inland areas--is a product of transported, to some degree, air pollution. Seventy percent of our State does not meet national air quality standards. So California is probably more adversely impacted by this than any other State because of strong prevailing westerly winds which drive the pollution from the big coastal areas into the valley areas. This will result in a major weakening of the Clean Air Act. Huge areas of the State, such as the Central Valley and the Inland Empire, will have reduced cleanup requirements. Our Nation needs an energy policy that will protect consumers, reduce our dependence on foreign oil, and produce new energy development while protecting our environment. This bill does not do that. This bill deserves to be defeated. This bill is a bad bill. I strongly urge my colleagues to vote against this poorly crafted legislation. Exhibit 1

Mrs. FEINSTEIN

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

Mrs. FEINSTEIN. I did not send it to the desk.

Mrs. FEINSTEIN. Mr. President, I will make my remarks as if in morning business, but my remarks pertain to the HUD-VA bill, and in particular to the small engine provision of that bill. If Members will remember, the Senator from Missouri, in the Appropriations Committee, placed an environmental rider into the HUD-VA bill which would prevent California from moving forward with its regulation to regulate off-road engines under 175 horsepower. The State has developed a regulatory scheme to do so because these engines were a substantial part--17 percent--of the mobile source pollution in the State, and it was believed by the California Air Resources Board that regulation of these engines could be achieved and, in fact, could reduce pollutants considerably. On the floor of the Senate, the Senator from Missouri offered an amendment to his amendment from committee. The new language which changed the amendment, in my view, making it better, by only affecting engines under 50 horsepower. I spoke against his amendment in the Appropriations Committee. I did not press for a vote on the small engine amendment which he offered on the floor largely because I thought we would lose it and that we had a better chance of trying to remove the language from the bill in conference. The bill has been preconferenced. Sadly, we have not been able to remove that language from the bill. I am told today that if I were to submit the amendment we had prepared which would eliminate the Bond amendment in its entirety, I would not be allowed a vote on that amendment. I believe the rationale is because I agreed to go to conference. I had only because I didn't want to lose on the floor and I thought I didn't have the votes. Since that time, a number of States have realized that their regulatory schemes would also be impacted by this provision. Other States would be affected because the 1990 amendments to the Clean Air Act essentially said that California has the ability to regulate these engines, and other States may then take various components of that regulation and enact them as their own State law if they so choose. Since last week, a number of States have weighed in indicating they have regulatory regimes underway that would be affected and that they are opposed to the Bond amendment. Nonetheless, we are where we are. I have come to the floor today simply to speak about why I think this is so egregious--and I do think it is egregious. I believe it is the first major setback from the clean air amendments of 1990, and specifically from the amendments allowing States to regulate air quality for the protection of their own people. By eliminating this, we are taking important rights away from the States certain rights and diminishing the States' ability to take care of their own people. As the fire chiefs have said to me in a letter, if they waited for the Federal Government to regulate bedding and upholstery, they would be still be waiting for that regulation. Instead, the States have taken it on their own to make those regulations. The people of California are much safer because of it. Let there be no doubt. I believe very strongly that this small engine provision should be removed from the bill and that we should restore the States' rights to protect public health under the Clean Air Act. On the surface, the amendment that was adopted on Wednesday looked like a substantial improvement. At the time I thought it was an improvement simply because it dropped from 175 horsepower to 50 horsepower. However, the amendment still blocks all States from regulating some of the dirtiest engines out there. The States will lose the ability to reduce pollution from all spark- ignition engines smaller than 50 horsepower. This includes lawn and garden equipment, some forklifts, recreational boats, off-road motorcycles, and all-terrain vehicles. The original small engine provision would not have affected boats or off-road motorcycles. But the amendment adopted on Wednesday is broad enough to affect a whole new group of engines. This provision will take four California regulations off the books. My State will lose regulations on lawn and garden equipment, recreational boats, and off-road motorcycles. I don't know whether the effects on additional engines were intentional or not. We told the Senator from Missouri about them and the language did not change. But I want to point out another important fact about the amendment adopted on Wednesday. The language requires the U.S. Environmental Protection Agency to propose a new national regulation by December 1, 2004. It does not require the EPA to finalize that regulation, ever. They could propose a regulation and never finalize it. The one promising part of this amendment guarantees nothing. The States need to reduce these emissions now. I want to remind my colleagues just how dirty these engines are. You will see here that mowing the lawn produces as much pollution as driving a car for 13 hours. I didn't know that before. I didn't know that if you mow your lawn for 1 hour it is like driving the automobile for 13 hours. This chart shows how long you would have to drive a car to produce as much pollution as when you operate various types of equipment for one hour. In other words, using a weed trimmer for 1 hour produces as much pollution as driving a car for 8 hours, mowing a lawn for 1 hour produces as much pollution as driving a car for 13 hours, and operating a forklift for 1 hour produces as much pollution as driving a car for a full 17 hours. Clearly, this is a problem. In 8 hours a person can drive from Washington to Charleston, SC. Or he can mow the lawn for an hour and produce just as much pollution. The States need to be able to clean up these engines. The small engine provision is bad for the States and for public health. The compromise from last week did not change the substantive issues. The small engine provision is still using an appropriations bill to make fundamental changes to the Clean Air Act. It is an environmental rider on the HUD-VA bill. It has had no authorization. It has had no hearing. It does not belong in this bill. The amendment from Wednesday still takes a longstanding right away from the States. States with serious air pollution need to be able to reduce emissions from these engines. The 1990 amendments to the Clean Air Act guarantee the States the right to do so. This provision overturns that right without even going through the proper channels. Under the compromise, my State alone will lose the right to regulate over 4 million cars' worth of pollution. That is what is being taken away--access to 4 million cars' worth of pollution. That means the State is most likely going to have to tighten regulations on stationary sources, which is going to mean more expense to major industries in the State of California. That means job loss in other industries. I cannot see how building cleaner engines should cost jobs to individuals at one company when every other company has said they will be able to build the engines without job loss. Because Briggs & Stratton does not like one California regulation, every State in the Union is going to permanently lose the right to reduce pollution from these engines. States with serious pollution problems need to be able to reduce these emissions or risk harming public health and losing transportation funds. This provision affects every single State, not just California. For example, I understand that New York has already adopted the California regulation affecting recreational boat motors. New York will lose that regulation because of this provision. Eight southeastern States--Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee--have all written a letter opposing this provision. The letter clearly states that any compromise that does not fully restore the State's rights is unacceptable to those States. Mr. President, I ask unanimous consent that the November 10 letter from the Southeastern States Air Resources Managers be printed in the Record following my remarks.

Mrs. FEINSTEIN. Thirdly, States still need flexibility to improve air quality. One size-fits-all solutions just do not work. We should not force every State to rely on national regulations. National regulations move too slowly and are often just not strong enough for States with a lot of pollution. We have heard a lot about unfunded mandates lately in the Senate. We have given the States a duty to protect public health. The small engine provision does not change the States' responsibility but it takes away a mechanism by which they might comply with this mandate. This provision, in a sense, creates another unfunded mandate. The amended provision still creates a very bad precedent. I don't think one company should be allowed to overturn States' rights under the Clean Air Act, especially when that company said on their annual report to the Securities and Exchange Commission on September 11, 2003, that the disputed regulation would not ``have a material effect on their financial condition or results of operations, given that California represents a relatively small percentage of Briggs & Stratton's engine sales and increased costs will be passed on to California consumers.'' This is their 10-K, their report to the Securities and Exchange Commission, from just 2 months ago. Where does the truth really lie? If California is just a small part of the company's market and the company will just pass on the costs, why does Briggs and Stratton object to the California regulation and insist on changing the Clean Air Act? It makes no sense. I believe people will pay the necessary costs for cleaner engines. I believe that people will pay for cleaner lawnmowers when they learn that you have to drive your car for 13 hours to produce as much pollution as your lawn mower does in 1 hour. Every company and every industry needs to do their part to protect public health. Briggs & Stratton should be no different. We should not allow them to pass the buck to other industries. Once again I will quote from a letter from Allen Lloyd, the Chairman of the California Air Resources Board, about this provision. According to Mr. Lloyd, . . . the aggregate impact of the 50 hp [horsepower] preemption will be 70 tons per day of smog by 2010, the date by which California's various offroad regulations would have been fully effective. This tonnage impact is over and above Federal regulations for the same emission sources and reflects California's more health-protective rules. For context, 70 tons per day is equivalent to adding 2.4 million cars to California roadways . . . So when the conference committee includes this provision in their conference report, they are effectively adding 70 tons of pollutants to California's air each day. The California Air Resources Board has also said that this provision could well result in the death of more than 300 people per year in California alone. California already has seven nonattainment areas, more than any other State. My State has the worst air quality in the country, and now this provision is taking away the State's right to regulate some of the dirtiest engines available. It is a strike at the core of States' rights under the Clean Air Act. The small engine provision also threatens our economy. California has to reduce emissions from these engines to comply with air quality requirements under the Clean Air Act. Taking away the State's right to reduce emissions threatens our State Implementation Plan, with serious economic consequences. Violating the State's plan will jeopardize $1 billion in transportation funds per year in Southern California alone. The South Coast could lose those funds next summer. The South Coast has the worst air quality in the nation and cannot afford to lose $1 billion per year in transportation funds. Statewide, this provision threatens $2.4 billion in transportation funds. And this is just in California. So this has huge ramifications for my State and every other State facing serious pollution. They will all be in a serious situation in the future when the time comes and they find their hands are tied because one company did not want to build cleaner engines. It has become clear that the supporters of the small engine provision have confused two very different ideas. Just because a group is concerned about the California regulation on lawn and garden equipment does not mean they support the small engine provision. The California Association of Fire Chiefs has expressed important safety concerns about a specific regulation. But the chiefs have also clearly said they oppose the small engine provision because of its affect on States' rights. The Fire Chiefs understand the importance of state leadership on these issues. To quote the chiefs' November 11 letter in reference to the small engine provision: We were never asked to comment on this matter, but for the record, we do not support legislation that would interfere with a state's ability to protect its own citizens. Mr. President, I ask unanimous consent that the Fire Chiefs' letter from November 11 be printed in the Record following my remarks.

Mrs. FEINSTEIN. Mr. President, I do not quite know what to do. I would very much like to have a vote on this matter. I have tried to importune the conferees. I am told the Governor of California, Mr. Schwarzenegger, now inducted as Governor, has indicated his support for the removal of this amendment. It is my understanding that a whole panoply of States oppose this provision. It is clear to me this is a bad thing. It is clear to me this is going to set back the cause of clean air. It is clear to me this is going to impact youngsters and the elderly with asthma and other lung diseases. It is clear to me that it is going to impact our transportation dollars. It is clear to me that by 2010, because of one company, California is going to have deal with 70 additional tons of smog per day. None of this needs to happen. I regret that I cannot send an amendment to the desk. I regret I am not being allowed a vote on the amendment. But this is the wrong thing to do. I yield the floor, Mr. President. Exhibit 1 Southeastern States Air Resource Managers, Inc., November 10, 2003. Hon. Zell Miller, Dirksen Senate Office Bldg., Washington, DC. Dear Sen. Miller: Southeastern States Air Resource Managers, Inc. (SESARM), representing the directors of the southeastern state air pollution control agencies in Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee, is writing this letter to encourage your support of the removal of a position introduced by Senator Bond in S. 1584, the Fiscal Year 2004 VA, HUD and Independent Agencies Appropriations Bill. The provision would amend Section 209(e)(1)(A) of the Clean Air Act to curtail a state's authority to reduce emissions from diesel and gasoline off-road equipment and engines. While Senator Bond's proposed provision regarding the off- road engines apparently was intended to address rules adopted only in California, it will limit the ability of all states to solve serious public health-related air quality problems. Senator Bond's proposal revises a very important provision of the Clean Air Act which allows states to adopt engine emission standards more stringent than the federal standards as long as appropriate federal review processes are followed. Congress wisely put this provision into the Act to give states the ability to deal with serious air quality problems across the country. SESARM opposes the impact of the Bond proposal on this important provision. Please note that other compromise amendments which fall short of fully restoring Section 209(e)(1)(A) are, in our opinion, unacceptable and will constrain states as discussed above. SESARM and your state air pollution control agency would appreciate your support of removal of the Bond Amendment from S. 1584. Sincerely, John E. Hornback, Executive Director.

Mrs. FEINSTEIN. Mr. President, I thank the Democratic whip for his concern and his words. I want to correct a couple of things. The Senator from Missouri pointed out that catalytic converters are fire hazards. That may be true with some. But virtually every automobile, every pickup truck, every sport utility vehicle driving on the roads and highways of California today is equipped with a catalytic converter. It has been that way for a substantial period of time. Catalytic converters are nothing new. Secondly, I want you to know that Honda has said that they would increase their U.S. production of these engines even with the California regulation. So, in other words, there are other companies manufacturing these engines in the United States that have said they would adhere to these new regulations and produce cleaner engines. Thirdly, I want you to know that Briggs & Stratton has already moved some of its operations to China. I very much doubt that this California regulation has much to do with it. I am told they have been manufacturing in China since 1986, and in April of this year they increased their ownership share of two factories in China from 52 percent to a controlling 90 percent. I am also told that California regulators have incorporated Briggs & Stratton's own recommendations into its final rule issued in September. The Air Resources Board relaxed the regulation's exhaust emissions standard, relying instead on controlling evaporative emissions, as recommended by Briggs & Stratton. So I don't know why this is being done. But I will tell you one thing: everybody who votes to sustain this will be also voting to put 70 more tons of smog into California's skies in 2010. That is how important this issue is to our State. I yield the floor.

Mrs. FEINSTEIN

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

Mrs. FEINSTEIN. Mr. President, is the Senate in morning business?

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Will the Senator yield?

Mrs. FEINSTEIN. The bulk of our problem, I am told by the Air Resources Board, otherwise I would not know, is under 50 horsepower. So it takes that right away. Additionally, Senator, I guess what got my dander up, was the SEC filing of a company when they say this is not a financial problem. Actually, the finances drive everything in the country. We know that very well. This is not a financial problem. They will pass on added cost. California is a small part of the market. If the company is saying that is a 10(k) I would tend to believe the 10(k). Wouldn't you?

Mrs. FEINSTEIN. Not at all.

Mrs. FEINSTEIN. Madam President, I rise to respond to the comments made by the Senator from Missouri, the chairman of the committee, in placing legislation, a rider, if you will, into the appropriations bill. If ever there was a special interest provision in an appropriations bill, this is the mother and father of such a rider. I rise in opposition to what is called the small engine provision in the 2004 VA- HUD appropriations bill. I note that the Senator from Missouri did not send to the desk an amendment he plans to introduce to change the underlying amendment that was introduced in the Appropriations Committee markup. So I am going to try to address both pieces of legislation and indicate my opposition to both. Although the amendment that he says he is going to introduce is better than the language in the underlying bill, it is still unacceptable because it would effectively block any State regulation of small road engines anywhere in America. This provision was inserted into the chairman's mark at the request of a single engine manufacturing company, Briggs & Stratton from Missouri. As originally written, the underlying bill would effectively preempt any State regulation of pollution from off-road engines smaller than 175 horsepower. I understand the Senator from Missouri now wants to narrow his provision to block any regulation of spark engines under 50 horsepower and not include diesel engines. This new provision is better but, as I said, still unacceptable. Since the beginning, section 209 of the Clean Air Act has recognized that States, with extraordinary or extreme pollution, need flexibility to reduce pollution and protect public health. A California law actually served as the model for the original Clean Air Act. I think that is interesting. As a result, the Clean Air Act has always allowed California to set its own standards for some sources of pollution. Later changes in the law allowed other States to adopt the California standards, if they so chose. The 1990 Clean Air Act amendments gave California the right to regulate emissions from off-road engines smaller than 175 horsepower, except for agricultural and construction equipment. So other States are currently free to adopt the California standards or not. The right of States to regulate small engines would quickly be taken away if the Bond provision is allowed to remain in this bill. Mr. President, individual States should have the right to regulate these small engines as they choose. That is what States rights is all about. Many States have benefitted from the process established in section 209, and California's regulations often serve as models for the rest of the Nation. The small engine provision would amend section 209 and remove important rights from States. I oppose using the appropriations process to take away States rights under the Clean Air Act. This kind of change to a major law like the Clean Air Act deserves a full debate, hearing, and review in the Environment and Public Works Committee. It has had none of the above. It is important for all of my colleagues to understand that one company is behind this so-called small engine provision. We are having this debate simply because Briggs & Stratton disagrees with a recently adopted California regulation which, incidentally, does not go into effect for another 5 years. I will explain why that becomes relevant later. On September 25 of this year, California adopted a regulation reducing emissions from off-road engines smaller than 25 horsepower, mainly lawn and garden equipment. This is the interesting thing: This regulation is the equivalent of removing 1.8 million automobiles from California's roads by 2020. That is how big an item this is in my State. Once again, let me make it clear that we are talking about the equivalent of 1.8 million automobiles. But the issue here is not whether we should support any particular regulation from the California Air Resources Board. The issue is whether we should permanently take away States rights to regulate these engines, period. Briggs & Stratton is using opposition to a single California regulation to block every State's efforts to regulate these engines anywhere in the future. I do not believe we should take such important changes to the Clean Air Act lightly, especially when such changes have been included in an appropriations bill without having adequately looked at the crucial stakes involved. Briggs & Stratton has made a series of arguments in opposition to the California regulation. We heard the Senator from Missouri say the regulation would force the company to close plants, threaten thousands of American jobs, and for jobs to be moved to China. I don't know how the Senator from Missouri knows that they would move jobs to China unless Briggs & Stratton have told him that is what they plan to do. At the very same time that Briggs & Stratton is lobbying this Senate to preempt California regulations, the company was telling the Securities and Exchange Commission an entirely different thing. On September 11 of this year, while lobbying the Senate in support of the small engine provision, Briggs & Stratton filed their annual 10-K report with the Securities and Exchange Commission. Here is what they say in their report: While Briggs & Stratton believes the cost of the proposed regulation on a per engine basis is significant, Briggs & Stratton does not believe that the [California Air Resources Board] staff proposal will have a material effect on its financial condition or results of operations, given that California represents a relatively small percentage of Briggs & Stratton's engine sales and that increased costs will be passed on to California consumers. So point 1, California is just a small part of the Briggs & Stratton market. Point 2, it will not affect the financial viability of that market. And point 3, they would only pass on the costs of retrofitting these engines to whomever would buy it, something that is fairly typical. Now why all this talk about moving 22,000 jobs to China if, in fact, what they said on their SEC statement is correct? The SEC statement is the be-all-and-end-all for a company's integrity and credibility. If you lie on your SEC statement, you get into a lot of trouble with the Securities and Exchange Commission. Section 209 of the Clean Air Act gives California the right to regulate these engines. The company is free to pass along these costs to Californians. My State will accept those costs because we need cleaner air. As far as I am concerned, this is the way regulations should work. Since we brought the annual report to the attention of the public, Briggs & Stratton has argued that the annual report was simply discussing the company's bottom line and that sending jobs overseas would not affect the bottom line. But that is not what the company's annual report says. The report says, again, California is but a small share of the Briggs & Stratton market. Increased costs will simply be passed along to California consumers. It does not say that any increased costs will force jobs overseas. So Briggs & Stratton is telling the Securities and Exchange Commission that everything is fine and at the same time telling the media, the public, and this body that the sky is falling. Senator Boxer and I have asked the Securities and Exchange Commission to investigate whether Briggs & Stratton has broken any securities laws by telling such drastically different stories. We are still waiting for a response. In terms of jobs, my colleagues should also know that Briggs & Stratton's SEC report is referring to the original regulation proposed by the Air Resources Board. Since the SEC report was filed, the California Air Resources Board has continued to work with the industry to modify the regulation to correct fire safety concerns and to reduce costs, and I believe they will get there. They have 5 years to do so. Madam President, what I am going to be doing in this portion of my remarks is essentially showing that Briggs & Stratton really is an isolated company asking for this. By so asking for it, they are going to cause additional costs to other industries. So I hope to make that argument now. Last month, the Outdoor Power Equipment Institute, the small engine industry's leading trade group of which Briggs & Stratton is a member issued a press release which said that the industry's input into the adopted regulation made the regulation acceptable. This press release details the concessions made by the State and said that the Air Resources Board largely adopted the industry's counterproposal. In other words, the industry trade council, of which Briggs & Stratton is a member, had their counterproposal adopted by the State Air Resources Board and yet Briggs & Stratton is still opposing the action. I quote the release: For the past 2 years, the Outdoor Power Equipment Institute has been working proactively with the staff of the California Air Resources Board to improve proposed catalyst base exhaust standards for real problems. The press release goes on to say: In direct response to the Outdoor Power Equipment Institute's advocacy, the California Air Resources Board unanimously adopted on September 25 a modified framework which, one, relaxes the stringency of the California Air Resources Board's staff's proposed tier 3 exhaust standards and, secondly, substantially improves the overall general framework for the still-to-be-defined evaporative regulations. I ask unanimous consent that the text of the Outdoor Power Equipment Institute's press release be printed in the Record at the conclusion of my remarks.

Mrs. FEINSTEIN. Additionally, I have a September 26, 2003, letter from Alan Lloyd, the chairman of the California Air Resources Board, to the Senator from Missouri, detailing revisions that were made to the regulation. Referring to the modified regulation, Mr. Lloyd states as follows: I believe the action taken by the Air Resources Board is a win/win situation. We achieved our emission reduction goal. The adopted regulation, based on an industry proposal, will reduce costs, simplify compliance and avoid job losses. So the Air Resources Board took the industry's proposal, the industry association of which Briggs & Stratton is a member. That is why this thing is so unfair. I ask unanimous consent that the text of this letter from Mr. Lloyd to the Senator from Missouri be printed in the Record following my statement.

Mrs. FEINSTEIN. Briggs & Stratton also raised concerns about fire safety. The Senator from Missouri has placed a November 6 letter from the California Association of Fire Chiefs in the Record. That letter expressed concerns about the proposed California regulation. I take these concerns very seriously. The last thing I want to do is increase the risk of fire. So we need to make sure these engines are safe, and the regulation has 5 years to make adjustments before it goes into effect, ample time to make such changes as replacing heat shields and doing whatever else is necessary to ensure these engines are fire safe. There is apparently some miscommunication between the fire chiefs and the Air Resources Board. I have just received a letter dated November 11. I want to read from this letter: The fire safety issues we raised [and that would be the November 6 letter that Senator Bond printed in the Record] need more attention and require independent assessment before engineering and production decisions are made [which they have not been up to this time]. In our most recent discussions with [the Air Resources Board], they support the idea of an independent study, and have proposed moving forward with a study, much the same as what is now underway with catalytic converters being used in marine applications. We enthusiastically support this idea, and will be working closely with [the California Air Resources Board], the State Fire Marshal, and the U.S. Environmental Protection Agency to ensure that all fire safety concerns are addressed. We wish to make clear that we regard fire safety and environmental quality as being equally important, and wish to make it clear that we support without reservation the air quality goals of the proposed requirements. We support the regulation moving forward as we have received assurances from CARB [the California Air Resources Board] that our safety concerns will be addressed through this independent study. So I think the concerns of the Senator from Missouri are a bit overstated in view of the fact that the fire chiefs, the fire marshal, and anyone else will work closely with CARB in the ensuing 5 years to correct any safety problems that might exist. The letter goes on, and this is important: Finally, we understand that, as a separate matter, the Senate is debating the question of whether States are free to develop safety and environmental standards. We were never asked to comment on this matter but, for the record, we do not support legislation that would interfere with a State's ability to protect its own citizens. To the contrary, we have had to count on the State of California to develop fire safety standards for upholstered furniture, mattresses and bedding, because the Federal Government has failed to do so. The issues of air quality, as they relate to outdoor power equipment, can be addressed, and I believe that working closely with the Air Resources Board, we will find a solution that will provide a high degree of fire safety while maintaining the Board's goals for air quality. I would like to work with the Senator from Missouri, the Air Resources Board, fire safety officials, and the small engine industry to make sure the California regulation is fire safe. We have 5 years do so. It is possible to do so. But what we cannot do is take away the State's rights to be concerned about its citizens, and that is exactly what Senator Bond is trying to do. He gives jurisdiction, for the regulation of small engines, to the EPA. What the fire chiefs have just said is the EPA has refused to move on areas such as bedding and other areas which cause fires, so the State has had to do it for themselves. States rights are a major part of this issue and I thought these rights were part of everything we believed in--letting a State, where it can, regulate for itself. Again, I think it is unfortunate that Briggs and Stratton is using safety concerns about a single regulation to block all future efforts to reduce pollution from these engines in any State. Let me tell you why this is so big for California. We have the worst air quality in the Nation. We have seven ozone nonattainment areas. That is more than any other State. Los Angeles is the Nation's only extreme ozone nonattainment area. The San Joaquin Valley is not far behind. This year has been the worst year for smog in southern California since 1997, and the San Joaquin Valley is in a similar situation. This pollution has severe consequences for public health and for our economy in California. Let me tell you what the Air Resources Board says will be the result of the efforts of the Senator from Missouri. They say Senator Bond's provision could lead to 340 premature deaths per year in California due to deteriorating air quality. I believe States with serious pollution problems need to be able to reduce emissions wherever possible. This small engine provision would place a very important source of pollution off limits to State regulation. I understand a modifying amendment is going to be introduced on behalf of Senator Bond that will change the current bill language, which currently blocks the regulation of off-road engines smaller than 175 horsepower. All told, these engines alone emit as much pollution as 18 million automobiles. Can you believe that? Small off-road engines are emit as much pollution as 18 million automobiles. That is a big number for California and any reduction in this pollution would benefit California greatly. The narrower version of this provision, which has yet to be introduced but I trust will be, would still block State regulation of spark engines smaller than 50 horsepower, which represents the majority of small engines that exist and operate in my home State. According to the California Air Resources Board, engines under 50 horsepower emit as much pollution as 4 million cars, just in California. This is more than 100 tons of smog-forming pollutants per day in my State alone. The modifying amendment that we understand will be sent to the desk will essentially mandate 1,500 more tons of smog-producing pollutants a day in California--all to benefit one company that is not telling the truth on its SEC statement. These off-road engines are also among the least regulated and dirtiest engines around. According to the California Air Resources Board again, operating the average gas-powered lawnmower for just 1 hour produces as much pollution as driving a car for 13 hours. I would hazard a guess that no one in this Senate knew that operating a lawnmower for 1 hour produces as much smog as operating a car for 13 hours. Keep in mind that the lawnmower is only about 5 horsepower and the car engine is far larger. Even running a small string trimmer for an hour produces as much pollution as driving a car for 8 hours. Again, I hazard a guess that no one in this Senate knows that operating a small string trimmer for an hour produces as much pollution as 8 hours of driving a car. The bottom line: These are very dirty engines. California is already struggling to comply with national air quality standards. We need every industry to do their fair share. According to the Air Resources Board, the State has to reduce emissions from these engines in order to achieve compliance with national air quality standards. In other words, if California is not allowed to proceed with the regulations they put forward on September 25, we will be violating clean air standards. What happens if we do it? What happens is that California loses $2.4 billion in highway transportation moneys. That is how important this issue is for the State of California and that is how dastardly this amendment--an authorization on an appropriations bill-- really is. California cannot afford to remain out of compliance with national standards. We also can't afford to take tools away from States that are in this situation. If we can't reduce emissions from off-road engines, then we will have to cut pollution from other sources. What does that mean? Other sources are already facing heavier regulation, so cutting their pollution will be more expensive and place more burden on other industries. On this point I would like to quote a September 25 letter from the Environmental Council of the States. That is an organization that represents environmental agencies in all 50 States. Let me read what they say: Removal of this ability to regulate a substantial part of a State's inventory, means that States will have to obtain reductions from the stationary source area [key, from the stationary source area], an area that is already heavily regulated at substantially higher cost. Businesses facing global competition will opt to either shift work to off-shore facilities or to simply close, with concomitant negative consequences on the local and national economy. It is critical that this language be eliminated from the HUD-VA appropriations bill. This is the environmental council to which every State belongs. What does this mean? This means that every oil refinery will have to have tough requirements and that every utility will have to have tough requirements. The cost of gas will rise, and the cost of energy will rise. Every stationary source, if we can't tackle this area because it is so big, will have to have their standards tightened. This is all for one company. Every other company that makes small engines has said they can comply, except one company in Missouri that says in their SEC report, no problem, and comes here and says, we are going to move our jobs to China. A whole series of companies will be disadvantaged, but one Missouri company will suffer no financial consequences. I ask unanimous consent that the full text of this September 25 letter from the Environmental Council of States be printed in the Record following my remarks.

Mrs. FEINSTEIN. Mr. President, the debate over the small engine provisions is focused on California for this point. But it is also clear that the effects go far beyond California. Remember that under the Clean Air Act, once California passes the regulation, other States can then replicate that to any degree they so choose. This is where it begins to affect a number of other States. The small engine provision in the VA/HUD appropriations bill is a problem for every State and for every Senator who believes individual States should be able to adopt their own rules and regulations on issues such as these. States with serious pollution problems include Texas, Tennessee, Pennsylvania, Illinois, North Carolina, New York, New Jersey, Maryland, and many others know they need to be able to reduce pollution from every possible source. Some States have already moved forward with regulations affecting off-road engines. This legislation--the underlying bill, as well as the amendment that we understand will be sent to the desk shortly--will cut this off, remove the right from a State and give it to the EPA that historically has been a slow mover in this area. According to the associations representing State and local pollution control officials, the original version of the small engine provision would have blocked the current program in seven States--Alaska, Connecticut, Massachusetts, Nevada, Texas, and Wisconsin. The 175-horsepower engine would also block programs in at least eight States that are considering future regulations: Alabama, Illinois, Nebraska, New Jersey, Pennsylvania, South Carolina, Tennessee, and Virginia, in addition to the District of Columbia. The States recognize this threat to their rights. I have already quoted a letter from Environmental Council of the States. We have also received letters in opposition to the Bond provision from the National Conference of State Legislatures, the Southeastern State Air Resources Managers representing State air pollution control agencies in Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee, and the associations representing State and local air pollution control officials from all 50 States. I ask unanimous consent that the letters from these organizations be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the Chair. Mr. President, I have served as a member of the Judiciary Committee since I came to the Senate. I take the job very seriously. I try to do my homework in looking at these judges. I very deeply believe that this election provided no mandate to skew the courts to the right. I deeply believe that judges should be in the mainstream of American legal thinking, that they should have the temperament and the wisdom and the intellect to represent us well on the highest courts of our land. What I wanted to use my time for--and the 2\1/2\ minutes will not be enough to do it--is to indicate that during the time I have been on the Judiciary Committee how I have seen the rules and the procedures of the committee change. Those changes have not been good. They have served to divide the committee more. They begin with changing the American Bar Association's 50-year tradition of rating the qualifications of potential nominees before the President nominates them, to after the President nominates them. I would like to say why I think that is important. There have been changes made in the so-called blue slip policy so that concerns Senators from a nominee's home State are no longer given any consideration whatsoever. There has been a reinterpretation of a longstanding committee rule, rule 4, prohibiting the majority from prematurely cutting off debate over a nominee in committee. There has been the elimination of the tradition of holding a hearing on only one controversial nominee for appellate vacancies at one time. There have been changes to committee practice----

Mrs. FEINSTEIN. I hope in the next hour perhaps I might have more time. I yield the floor.

Mrs. FEINSTEIN. Mr. President, what I was trying to do was essentially trace changes in committee procedure with the difficulties the Judiciary Committee seems to be countenancing in present days. A good deal of it has to do with blue slip policy because it was the second tradition to fall by the wayside when President Bush took office. Under the Clinton administration, nominees were often blocked not only by home State Senators but by any single Republican Senator. At the very least throughout the years preceding the Bush administration, a home State Senator's objection to a nominee would effectively stop that nominee from moving forward. Let me show a copy of a blue slip used during the Clinton administration, starting in January of 1999, and sent to each home State Senator. The document itself specifically states that no proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee's home State Senators. That policy was followed without fail and without question. Even before 1999, during the Clinton Presidency, the blue slip said ``unless a reply is received from you within a week from this date, it will be assumed that you have no objection to this nomination.'' But still, if there was an objection from a home State Senator, that nominee simply did not move, did not get a hearing, did not get a vote, did not get confirmed. It was, in fact, a filibuster of one. Today, there is a new blue slip policy, one in which the objections of one or even both of the home State Senators is no longer dispositive. That is part of the problem. This keeps changing, dependent on who is President. This latest policy puts Democrats on the committee and in the Senate in a difficult position. In the past, if a home State Senator objected to a nominee, that nominee did not proceed; there would be no committee vote and no filibuster on the floor. Fifty-five Clinton nominees did not receive a hearing. This well could have been a filibuster of one. The blue slip is secret; nobody knows. Let me name some of the Clinton nominees who were filibustered by one or two members of the Judiciary Committee. Elena Kagen, nominated to the District of Columbia Circuit, nominated by Clinton, June 17, 1999. The nomination was returned December 15, 2000. She waited 547 days without getting a hearing or a vote in the Judiciary Committee. She is currently the dean of Harvard Law School. Lynette Norton, nominated for the District Court for the Western District of Pennsylvania. Nominated by President Clinton on April 28, 1998, in the 105th Congress. Her nomination, which was submitted to the 105th and 106th Congresses, was returned both times without a hearing. She waited 961 days without a hearing or a vote in the Judiciary Committee. Again, a successful filibuster by one or two Senators, in secret. Barry Goode, nominated for the Ninth Circuit. Goode was nominated by President Clinton on June 24, 1998. After 3 years of inaction, President Bush withdrew his nomination, on March 19, 2001. Mr. Goode waited 998 days without ever getting either a hearing or a vote in the Judiciary Committee. A filibuster of one or two, in secret--no hearing, no opportunity to read a transcript, no opportunity to go back and read writings, speeches, or look into a nominee's background. Just because of one or two Senators, a hearing is denied; the filibuster is complete. H. Alston Johnson, nominated for the Fifth Circuit, a Louisiana slot. President Clinton nominated Johnson on April 22, 1999. His nomination was returned December 15, 2000. He waited almost 697 days without getting a hearing or a vote in the Judiciary Committee. This goes on and on and on. Now, the nominees before us today had hearings. There was debate. There was a markup. There was a debate. There was a vote. We did read their background. And based on knowledge, the minority of this body made a decision that we do not wish to proceed to affirm them. We have over 40 votes to do so. This is not the vote of one person in secret preventing a hearing from taking place. Now that is as much a filibuster as this is. You are looking at me strangely, Mr. President?

Mrs. FEINSTEIN. And I don't want to use the time because I know Senator Durbin--how much time do we have remaining?

Mrs. FEINSTEIN. Thank you. So my point is that much of what has been happening in the Judiciary Committee has been to make it more confrontational. The blue slips are an excellent case in point. Changing when the American Bar Association ratings are known is a good point. I remember during the Clinton administration when the ratings were done earlier and I had to call a nominee and tell them that because they had been out of the practice of law for a period of time, they were deemed unqualified by the American Bar Association and the President was not going to move their nomination. So without embarrassment to the individual, that nomination was withdrawn. Today, you do not get the American Bar Association's qualified or partially qualified or unqualified rating until after the nominee is on the Hill. Now there are those who do not think the American Bar Association's evaluation is worth anything. There are those on the committee who believe it is. So there is a difference in point of view. But at least have the qualification or nonqualification done early enough so that it can save the individual humiliation and also play a major role. Let me talk for a minute about rule IV because I think rule IV again divided our committee in a way that it did not have to be. Rule IV has been a Senate tradition. It is a rule. It is a hard and fast rule. It prevents closing off debate on a nominee unless at least one member of the minority agrees to do so. Twice this rule has been reinterpreted, really violated, and votes have been forced on nominees well before debate has ended. The committee's rule in question contains the following language: The chairman shall entertain a nondebatable motion to bring a matter before the committee to a vote. If there is objection to bringing the matter to a vote without further debate, a rollcall of the committee shall be taken and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with 10 votes in the affirmative, 1 of which must be cast by the minority. That enables the minority to delay a matter. It is in the rules of the committee to give it more time. This rule is not being followed. This is one of the only protections the minority party has in the Judiciary Committee. Without it, there might never be debate at all. A chairman could convene a markup, demand a vote, and the entire process would take 2 minutes. This is not how a deliberative body should function. More importantly, it is contrary to our rules. That is one of the reasons we are where we are today. This rule was first instituted in 1979 when Senator Kennedy was chairman of the Judiciary Committee. It has been followed to the letter until very recently. This is a nation of laws. We expect these laws to be obeyed even if they are just Judiciary Committee rules. Let me give another situation, and that is ignoring traditional State vacancies. There is also a willingness by this administration to simply change the playing field if they do not like a result. Fourth Circuit nominee Claude Allen is one such instance. He is from Virginia. He has been nominated for a position that has traditionally been filled from Maryland. Why? Because President Bush became frustrated that Maryland's two Democratic Senators would not sign off on the nominees he wanted for that position. So he decided to simply go where he could find more friendly company--Virginia's two Republican Senators. This stark determination to simply fill the bench with conservative jurists at all costs is what gives the minority in the Senate pause when considering whether to simply approve every Bush judge who comes our way or make a stand on some. We have chosen to make a stand on some. There are other attempts to ignore the minority. There are little things as well, things that add up over time to give the clear impression that the majority does not care about the needs or the will of the minority. That simply serves to create, increasingly, a bunker mentality among Democrats in today's Senate. For instance, earlier this session, the Judiciary Committee scheduled a hearing with three very controversial circuit court nominees on a single panel for an appellate court.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, I thank the chairman of the committee with whom I have had the pleasure of working now for a number of years. I want to say this: She has done a fine job. There was a very difficult conference situation. The House and the Senate bills were very different. In the first place, we received $1 billion less in allotment to work from; that is, 14 percent less. In the second place, the House bill went in one direction and our bill went in another. It is really thanks to the chairman for her very shrewd bargaining with the House that we have a bill and that we have a bill as good as this bill is. This is a difficult time. We try to do the most we can with barracks and schools and centers for our troops both in this country and abroad. I want to say to those Members who had adds and had to have those adds cut that I am very sorry. We had to reconcile the two bills, and that was very difficult. But Senator Hutchison did a super job. I thank her very much. At a time when American troops are continuing to fight the enemy in Iraq and Afghanistan, it is imperative that Congress do its part and provide the funds necessary to support the infrastructure requirements of our service members and their families. I wish we could do more. The 2004 military construction conference report provides $9.3 billion for a myriad of mission-critical and quality-of-life construction projects in the United States and overseas, including barracks, schools, hospitals, and family housing units. That is the good news. The bad news is that this conference report is more than $1 billion below the amount Congress appropriated for military construction last year. And yet, as old infrastructure continues to deteriorate and new missions require new facilities, the military's infrastructure requirements are growing, not declining. In the process of completing this bill, the Senate conferees had to balance a number of meritorious projects against available funds and military priorities, and we had to make some tough cuts. Because of the scarcity of resources made available by the administration for military construction, and the differing philosophies between the House and Senate military construction subcommittees, this has been an especially difficult year. However, the House and Senate conferees were able to bridge most of their differences and provide the best package possible under the circumstances, and I commend Senator Hutchison for her perseverance in achieving that goal. There are many good items in this legislation. The conference report provides more than $5 billion for military construction, including $730 million for the Guard and Reserve components, nearly double what the President had requested. The bill includes $1.2 billion for barracks, $176 million for hospitals and medical facilities, and $3.8 billion for family housing construction and maintenance. The legislation also establishes an Overseas Basing Commission to assess the adequacy of U.S. military installations overseas and to review the Defense Department's planned restructuring of the deployment of U.S. forces overseas. This could not be a more timely initiative, given the Defense Department's plans to make sweeping changes in the U.S. military footprint in Europe and Korea. Overseas basing issues were among the most difficult that the conference had to deal with this year. In the middle of the budget cycle, the Defense Department announced a sweeping restructuring of U.S. installations in Europe and Korea. I support the Defense Department's review of our overseas installation requirements--it is probably long overdue--but there are many, many elements to a restructuring of the magnitude envisioned by the Secretary of Defense, and it is not something that should be rushed. Senator Hutchison and I have discussed this issue at length, and I believe we both have strong reservations about committing billions of U.S. taxpayer dollars to a new overseas basing structure that is a radical departure from the existing footprint without first seeing a comprehensive plan for the redeployment of U.S. troops, and the impact it will have on installations here at home. Given the current precarious state of America's diplomatic relations with a number of our traditional allies, I also think the administration should redouble its efforts to work with governments in Europe and Korea to gain their support--both political and financial-- for such a massive reshuffling of U.S. bases before embarking on this effort. Even with those reservations, this conference report includes $354 million for projects at enduring installations in Europe, $169 million for the NATO Security Investment Program, which provides the U.S. share of funding for NATO construction projects, and $89 million for U.S. military projects in Korea. As I said before, I wish we had more resources to devote to infrastructure requirements for our military. The need is real, and I hope that the administration will request more money for military construction next year, so that we do not have to continue to juggle priorities and postpone funding urgently needed facilities. Again, I thank Senator Hutchison for her leadership on this subcommittee, and I also thank the subcommittee staff, including Christina Evans and B.G. Wright of the minority staff, Dennis Ward and Sean Knowles of the majority staff, and Chris Thompson of my staff. I urge my colleagues to support this measure, and I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, I ask unanimous consent that privilege of the floor be granted to Craig Harper, a fellow in my office, during consideration of the VA-HUD legislation.