Jon Kyl

Mr. KYL

Mr. KYL. Madam President, Senator Feinstein, and I have been working on issues relating to terrorism from the time I first came to the Senate. We have been either chairman or ranking member, respectively, of the committee ever since that time. I can think of few issues that have galvanized our attention and effort--I can't think of any that have accomplished that--as much as this legislation. Of course, the reason is it is in response to what we found in the aftermath of September 11--specifically, how the 19 terrorists who came into the country and performed their evil deeds actually got here. What we found, through testimony before the committee, was that they had all gotten here legally with visas. When we talked to the people who granted those visas and worked in the system, many of them expressed great sorrow and disappointment that they had granted the visas. But one in particular testified that, of course, she had no choice because she had no information that would have told her she should deny the visa. That one little story is a metaphor for what is in this legislation. If we had provided information to the people who grant visas, that would have raised a red flag, at least with respect to some of these terrorists, that would have caused the consular offices to say, wait a minute, maybe we should not grant this visa. I remember the testimony of one official saying, it is like the driver of the car who is going through the school zone at 15 miles per hour and a child runs out from between parked cars. You hit the child and injure that child. You feel horrible about it, but you say: There is nothing I could do about it; I was driving 15 miles an hour through the school zone, doing what I was supposed to do, and the child ran out in front of me. I could sense the degree of angst when she testified saying: Yes, we granted this visa to Mohamed Atta, but we didn't know. They could not know because we didn't have the system in place to tell them that some of these people should have been denied visas. We also had people coming in on student visas and then they stopped going to class. This legislation that Senator Feinstein has talked about closes loopholes in the existing law that permit people who mean to do us harm to come into this country and stay here without being detected. There is no question that, even if we passed this legislation, it would still be possible for a terrorist to sneak into this country and do something wrong. But if we pass this law and get it effective immediately, we can reduce substantially the probability that terrorists, such as those who came here prior to September 11, will ever be able to do that again. That is the essence of the bill. I am not going to take the time this afternoon to go through the bill piece by piece. I will just mention a couple of features of it in very general terms to make my point. Due to Senator Feinstein's work, we found that prior to September 11, schools in the United States actively recruited foreign students because they paid a pretty high tuition to come to the schools, and the schools need money. We know that all of our schools, from the prestigious universities down to trade schools, can use extra money. So they advertise for foreign students, who come here by the hundreds of thousands. We welcome them with open arms. But Senator Feinstein at one point said: Do you think we should be a little more careful about who actually gets visas? The school said: Oh, no, we need the money. That may not be exactly what they said, but that was the reason for being skeptical of any limitations that might be placed on their recruitment of these students. So what Senator Feinstein said--and I joined her in this effort--was let's craft a series of procedures that accompany the application for the student visa, the accounting for that visa to the INS and Customs and the State Department, and the confirmation back to the school that the individual should be arriving because the student visa has been granted, and a confirmation back to the U.S. Government that the student is in fact enrolled in school, and so on--a series of procedures that make it much more likely that the students these schools recruit actually will come to the school, attend classes, and won't be involved in terrorism. The multiple forms they used to have that INS used--the so-called I- 20 form--will no longer be filled out by lots of different schools that each accept the student for attendance. All of those forms, in the past, have been either sold or shopped around in one way or another for people to come into the United States ostensibly with a proper I-20 form from a school by which they have been accepted. But, of course, it was a fraud because the student only went to 1 of the 10 schools by which he was accepted. He shopped around the other forms to friends who used them to come into the United States. That is one of the many ways we have tightened up the law. We found that people were coming into the country from nations that are on our terrorist list, such as Syria, a state sponsor of terrorism. Even after September 11, it was into the teens--I think something like 19 students wanted to come and learn how to fly big airplanes in the United States from a country that is a state sponsor of terrorism, so designated by the State Department. Our legislation makes it much more difficult for that to happen. In fact, it puts the burden on the students to prove they are not going to be engaged in terrorism. They can still come, but they have a burden of proof there. One of the most important things we do is coordinate information that we gather on people abroad who want to come here, whether it is the CIA, FBI, INS, State Department, or even international agencies such as Interpol, or anyone else who may have information that would cast doubt on whether an individual should be granted a visa. All of that information will be available. It will not be put together in one database, but it is going to be accessible to the people who make the decision whether to grant a visa. The consular officer will be able to scroll down the list, and when he finds the name of the person involved, he will see whether or not there is a red flag there. It may say don't grant a visa because he is wanted for a felony. That is fairly easy. It may say there is information pertaining to this individual that can only be shared with a very limited number of people, but it has a bearing on potential terrorism, and therefore you need to back this up to your supervisor who can have access to the classified information. One way or the other, though, any information that should be available to the people who make the decisions will be made available. That is probably the central feature of this legislation. It is going to cost money. Senator Byrd spoke before the Immigration Subcommittee this morning, and he said: I sure hope that if we pass this bill, you will all support the appropriations necessary to fund it. We all made the commitment that we indeed would do that--that, clearly, we are going to have to have the support of the INS and the appropriators in Congress and the rest of us to ensure that once we authorize this closing of loopholes, the programs we put into place to do that will be funded properly and will be administered by the INS. Senator Byrd raised the question about whether or not we should reform INS first. I don't think there is one of us here who doesn't think they need to reform INS. But, clearly, we cannot wait. We cannot allow terrorists to come into this country while we are trying to figure out how to reform INS. We have to ask the people at INS who work hard and try hard to begin to put into place the protections that are embodied in this legislation. While we are also going about figuring out how to reform the INS, we cannot afford to not proceed with this bill, which would begin to close those loopholes. So I hope our colleagues will come to the floor and debate. One of the questions was: Should we do this by unanimous consent or should we have debate on the floor? We agreed to have debate. So anybody who wants that opportunity for debate now has it. I think that after today, and perhaps Monday, if they have not come to the floor, we can conclude that in fact there is no more debate necessary on the bill and we can move to its adoption. I hope we can do that very quickly. I encourage my colleagues who want to speak to come here and do so. If they have amendments, fine, we will consider those. We think it is pretty good without amendments. We are taking up the House-passed bill, and it would be much easier to be able to pass that bill. If there are amendments, let's see what they are. I hope we can quickly get this bill to the President. He said he wants to be able to sign it. I have personally spoken with Governor Tom Ridge, who is anxious to move forward as quickly as possible to get this done. I think we can at least say we have done what we can do. We cannot do everything to prevent terrorism, but we know we can do some things in the Senate. I have felt pretty bad for the last several months that we have not put this into place. I have asked, have I done everything I can do to get this bill on the floor and get it started on closing the loopholes. The Senate can do something to fight this war on terrorism, and that needs to be done now. I will feel a whole lot better when we have passed this bill and sent it on to the President and he has signed it into law. I will at least know I have done everything I can do, at least with respect to these issues, to make sure we are not again struck by people we should not have allowed into this country. Tribute to Tom Alexander

Mr. KYL

Mr. KYL. I ask unanimous consent Senator Helms be listed as a cosponsor.

Mr. KYL. Mr. President, the only way a Governor could waive the provisions with respect to his State would be if he found that the renewable portfolio standard would adversely affect consumers in his State. So he would have to find it is adversely affecting the retail electric consumers in his State for him to be able to waive the mandated provisions of the Bingaman proposal.

Mr. KYL. I will take a couple of minutes to explain this amendment. It is very straightforward. Since we have been through the debate, we do not have to have a great deal more. We have tried twice, once myself and once Senator Murkowski, to give the States more authority to deal with the problem of renewable energy. Both of our amendments have been rejected. We accept that. This amendment is one last attempt to preserve some semblance of ability by the States to protect their electric consumers in the event the costs of this Federal mandate program should be too great and allows, therefore, the Governor to opt out or waive the provisions of the program in that one eventuality. From the Energy Information Administration of the Department of Energy, we have an account of every single utility in the country in every single State, by State, showing exactly what this Federal mandate in the Bingaman provision is expected to cost retail consumers. It averages around a 4-, 5-, 6-percent per year increase, but it varies from region to region and utility to utility. The point is, when customers begin to feel the pinch of the Federal mandate in the Bingaman amendment, they will ask you or your Governors is there anything they can do. My amendment says, yes, the Governor would have the ability in that event to waive the provisions of the Federal mandate, if he finds those provisions are adversely affecting the retail customers of the State. These figures may not be accurate. If that is the case, fine. But if these figures are accurate, I suspect your constituents, your voters, your retail electric customers, are going to want some relief. This is the last liferaft, folks. We have been defeated on everything else. This is at least a liferaft that provides some ability of the program to be waived so it would not adversely affect them. I ask my colleagues to consider not the utilities in your State; what we are saying is, if it should transpire that the Bingaman amendment adversely affects people, shouldn't we have some kind of escape valve, some ability for the Governor to say: We are going to opt out until the situation transpires in a better way for the people of our State, for our electric customers. That is what this amendment does. I hope my colleagues will support it.

Mr. KYL. I ask unanimous consent reading of the amendment be dispensed with.

Mr. KYL. Mr. President, I have an amendment at the desk numbered 3057.

Mr. KYL

Mr. KYL. I thank the Senator. Mr. President, I support the amendment of the Senator from Alaska. Clearly, those States that have moved forward with the program for renewable resources to generate electricity have made a determination over a period of time about what they can best do in their particular States and what is in the best interest of their consumers. It seems to me, since they have taken the trouble to do that, and they have done a lot of work on it, that it would be wrong for us--at least premature for us--to come in as the Federal Government and say: No. No. We know what is best for you. Even though we have not had any hearings, we have not had any markup in the committee, we are doing this all on the floor of the Senate, we instinctively know what is best for your State. That is really a supreme arrogance, even for the U.S. Senate. So what the Senator from Alaska is saying is, look, for those States that have already chosen to do this, let them run their programs the way they want to, and even for those States that chose to do so in the future. This really satisfies the argument that those on the other side have made that we need to do something--they use the words--``to encourage'' States to use renewables. A mandate is a lot more than an encouragement, but be that as it may, for those that have already chosen to do it, they have been encouraged. Let's recognize that and acknowledge their programs and accept them as they are. And, perhaps, for the rest of the States, our mandatory program will encourage them as well. They, then, should be allowed to move forward with the programs as they see fit. So given the fact the Kyl amendment was defeated before--and I accept that--it seems to me this is a very good compromise, in effect, that recognizes what the other side wants: to make the States have some kind of a program, but it also provides them flexibility in recognition of the unique circumstances of their individual States. I think it is a good compromise. I think the Senator from Alaska should be complimented for it. I certainly support his amendment and hope others will as well.

Mr. KYL. I would like to take 1 minute.

Mr. KYL. Mr. President, might I inquire, does the Senator have about 1 minute I could take?

Mr. KYL

Mr. KYL. Mr. President, I thank the distinguished ranking member of the Judiciary Committee for yielding some time to me. I think the points he makes are well taken. I would like to get back to the basic resolution that is before us. It is a very simple resolution that says that we should at least have hearings in the Judiciary Committee on the nominees for the circuit courts that have been pending the longest, since May 9 of last year, that we should at least have a hearing on those nominees before the 1- year anniversary of their nomination. That is eminently reasonable. I suspect that all 100 of us will vote for that sense-of-the-Senate resolution. That is going to, then, require us to do some things to ensure that those hearings, in fact, can be held. I can think of no reason why anyone would oppose the scheduling of hearings on these eight distinguished nominees a year after their nomination. But I think the comments, primarily of the Senator from New York, have really put into perspective what this debate is all about. He has made three basic points, all of which are departures from past precedent. The reason this is important is because it provides the reasons why many Members on the other side of the aisle have supported the chairman of the Judiciary Committee in not holding hearings, in not voting on nominees, and in not allowing the full Senate, as a result, to vote on nominees to the circuit courts of appeals. One cannot argue about the qualifications of these nominees. So there have been three reasons posited by the Senator from New York as to why it is fair not to hold hearings and not to have votes on these nominees of the President for the circuit courts. The first reason is, as Senator Hatch pointed out, totally unprecedented. It is the notion that somehow or other the President has to consult with all of the Senators from the circuit before nominating someone to that circuit court of appeals. It has been traditional for the President to consult with the Senators from the State from which the nominee comes but not all of the other States. There are 13 States in the Ninth Circuit Court of Appeals where Arizona is. I was never consulted by President Clinton on any of the nominees from California or Oregon or Washington or Nevada. And I would not have felt the right to be consulted. The only one I asked to be consulted on was the nominee from Arizona. President Clinton did consult with me on that individual, and we reached an agreement on a nominee he nominated. I supported that person, a Democrat, appointed by President Clinton, whom I think is one of the finest members of the Ninth Circuit Court of Appeals. But I would have been shocked if he called me and said: Jon, what do you think about this candidate from Washington State? That has never been the case. So for one of the Senators from New York to stand here and say that we are not going to move forward on these nominees until the President begins consulting with all of the Senators from the circuit is wrong. It is an abuse of power. It is not the way it has been done in the past, and it should not provide an excuse for us to withhold action on these nominees. Second, the Senator from New York has suggested that this is really about politics, that the President's nominees are too ideologically conservative. The Senator from New York said President Clinton nominated all moderates. Well, that will be news to some of my conservative friends who did not view all of President Clinton's nominees as all that moderate. Some were; some were not. I supported some; I did not support others. I guess I will not read the names here, but I look at the Ninth Circuit nominees and all of the ones who were confirmed since I have been in the Senate--1, 2, 3, 4, 5, 6, 7,8, 9, 10, 11, 12, 13--13 circuit court judges confirmed. Some of those were liberals. And I supported some of those liberals, others I did not. That is all right. President Clinton got elected President; I did not. Well, President Bush got elected President. And I don't think the definition of ``mainstream'' by the Senator from New York is a better definition than the definition of the President of the United States, George Bush, in terms of the qualifications of judges to represent this country. I know my view of the political spectrum and that of the Senator from New York are very different. What he would call moderate I would probably call something else, and vice versa. So we are on a slippery slope if Senators begin to define the terms of a President's nominees with respect to their politics on an ideological spectrum and maintain that they have the right to withhold action on those nominees if they do not fall within what a particular Senator characterizes as ``mainstream.'' The Senator from New York said many of President Bush's nominees ``suggest extreme ideological agendas.'' All right, here is my challenge to that Senator or any other Senator: What is it about John G. Roberts of Maryland, who was nominated on May 9, 2001, by President Bush, to the DC Circuit Court of Appeals, that suggests an extreme ideological agenda? What is it about Miguel A. Estrada of Virginia, who was nominated on May 9, 2001, by President Bush, to serve on the DC Circuit Court of Appeals, that suggests an extreme ideological agenda? What is it about Michael W. McConnell of Utah, who was nominated to the Tenth Circuit on May 9, 2001, by President Bush that suggests an extreme ideological agenda? What is it about Jeffrey S. Sutton of Ohio, who was nominated to the Sixth Circuit on May 9, 2001, by President Bush that suggests an extreme ideological agenda? What is it about Deborah Cook of Ohio, nominated to the Sixth Circuit on May 9, 2001, by President Bush that suggests an extreme ideological agenda? Or what is it about Priscilla Richman Owen of Texas, nominated to the Fifth Circuit on May 9, 2001, or Dennis Shedd of South Carolina or Terrence Boyle of North Carolina--both nominated to the Fourth Circuit Court of Appeals on May 9, 2001--that suggests an extreme ideological agenda such that they are so disqualified that we should not even hold a hearing on their nominations? There is an element of comity that this body owes to the President of the United States when he nominates people to the circuit courts of appeals to represent the people of this country. Comity at least requires that we have a hearing on these nominees within a decent period of time. Certainly, no one can argue that letting them sit for over a year is not plenty long enough to analyze everything there is to analyze about them, and then to begin the process for their confirmation. So I suggest that when the Senator from New York or my other colleagues on the other side say that a nominee has to pass an ideological test in their eyes or they are not even going to give them a hearing, it is time for the people of this country, and it is time for the news media of this country to rise up and say: That is wrong, and you cannot fulfill your responsibilities of providing advice and consent under the Constitution to the President if you are not willing to even consider the nominees of the President by holding a hearing a year after they have been nominated. I think when those on the other side say this isn't about retribution, and then immediately begin citing all of the statistics about how they believe some of President Clinton's nominees were treated unfairly, it is about retribution. In effect, they have made it about retribution and politics. You have to either be a moderate in their eyes or they have to finally feel good about getting even to such an extent that somehow or other the scales are balanced now, they have gotten their pound of flesh, they have withheld action on a sufficient number of nominees that now they are willing to move forward. I can't ascribe that motive to any of my colleagues on the other side of the aisle. It would be so outrageous to contemplate. But that appears to at least have crept into the rhetoric of some when their primary point about not holding hearings on President Bush's nominees is that they think some of Clinton's nominees were treated unfairly. Just how many circuit court nominees of President Clinton were treated unfairly in this manner? How many do we have to withhold from President Bush before the scales are balanced? And in any event, are any of them willing to stand up and say that is a justification for not even holding a hearing on President Bush's nominees? If so, I would like for them to come forward and do that. Let me conclude by making this point as clearly as I can: We will have before us this afternoon a resolution that simply says we should hold a hearing in the Judiciary Committee on the eight circuit court nominees of President Bush by May 9, 2002, before the 1-year anniversary of their nomination. In other words, wait a year and then at least have a hearing on these eight nominees. Is that too much to ask? I hope my colleagues will recognize that some of them have gone too far in attacking the President's nominees on ideological grounds and attacking his nominees on the basis that President Clinton was treated unfairly and, as a result, there is a justification for treating President Bush's nominees unfairly as well. I hope that is not the basis for inaction, and I hope the circuit court nominees will be treated just as fairly as the district court nominees have been treated and that we can get a hearing on them and then eventually bring them to the floor for a vote. The American people deserve no less. President Bush deserves no less. And frankly, justice in the United States requires that much.

Mr. KYL. Mr. President, I ask for the yeas and nays.

Mr. KYL. Mr. President, have the yeas and nays been ordered on this amendment?

Mr. KYL. Mr. President, I ask unanimous consent that two letters be printed in the Record.

Mr. KYL. Mr. President, let me give you the 10 reasons we should support the Kyl amendment. No. 1, the Bingaman amendment is the command-economy amendment, a 10- percent mandate, and the Kyl amendment is for State choice. No. 2, the Bingaman amendment is very costly, at $88 billion over 15 years and then $12 billion each year after that--paid for by the electricity consumers. If you would like to know how much your electricity consumers are going to be paying under the Bingaman amendment, I have all the information right here. You had better consult this before you vote against the Kyl amendment. No. 3, the Bingaman amendment is discriminatory. The Bingaman amendment provides that some areas subsidize people in other parts of country. No. 4, hydro is not included. Yet, of all the renewables, hydro is about 7 percent of the electricity production. The other renewables are only about 2 percent. No. 5, it will benefit just a few companies. According to the Energy Information Administration, wind is the only economical way to produce this power, and it is concentrated in just a few areas. Do you know who these few special interests are? You should find out before you vote against the Kyl amendment. No. 6, renewables are not reliable. If the Sun doesn't shine, if the wind does not blow, and if water doesn't flow, you don't get energy. But you do out of coal, gas, and nuclear. No. 7, we are already subsidizing the renewable fuels to the tune of $1 billion a year. There is a big difference between encouraging, which we are doing, and compelling. No. 8, the administration supports the Kyl amendment and opposes the Bingaman amendment. No. 9, biomass from Federal land does not count. No. 10, there is no principal reason to discriminate against public and private power; yet private power is included in the Bingaman amendment and public power is excluded. I will throw in a bonus reason. The No. 11 reason to vote for the Kyl amendment and against Bingaman is this is the opposite of deregulation, which was supposed to be the whole point of the electricity section of the pending legislation. The 10-percent mandate is regulation and not deregulation. I urge you to support the Kyl amendment.

Mr. KYL

Mr. KYL. Yes, 7 minutes.

Mr. KYL. I am happy to yield.

Mr. KYL. Mr. President, I will take a few minutes to respond to the Senator from Louisiana, and then the Senator from Alaska would like to speak, unless there is an intervention on the other side. The Senator from Louisiana had four basic reasons that she supports the Bingaman approach and opposes mine. I will go through each of those. Her first reason was we have become too dependent upon foreign oil and that if we have renewables to generate electric power, that will somehow solve the problem. Well, the Senator from Louisiana could not be more wrong. I wish she would put the chart back up which showed the dispersal of the various energy sources. We saw at the very bottom of that chart there was a red line. That is the oil that is used to generate electricity in this country--hardly anything. We do not generate electricity with oil in the United States, as the chart showed. Transportation flows on oil--that is how we drive our cars--but we do not generate electricity with it. So if the argument is we have to reduce our dependence upon foreign oil in the generation of electricity and therefore go to these renewable resources, nothing could be further from the truth. The Senator's chart was accurate that we produce electricity in this country with nuclear generation, with gas, and with coal. That is where we get our energy production. So the argument that somehow this will help us reduce dependency on foreign oil is absolutely untrue. I also will comment on the fact that the Senator from Louisiana said we will run out of oil and gas someday. Well, someday we will, but, again, we do not produce electricity with oil and we have a lot of coal, virtually an inexhaustible supply of coal. We could generate all of the electricity that this country could use for centuries on the coal we have in this country. We have been spending a lot on clean coal technology, so we can now do it in a very clean way. Nuclear power is essentially inexhaustible. So if one is talking about oil and gas running out as a reason we have to go to renewables, again, it is absolutely false. Finally, with regard to this first argument, the Senator from Louisiana said: After all, wind is free. She then went on to correct herself and say: Of course, there is some cost to producing it. Indeed, we subsidize the cost of wind power at 40 percent of what it costs, and it still cannot compete, which is why the proponents of wind power want to have the U.S. Government force people to buy their product, because it cannot compete on the open market. These renewables are, in fact, not free. The final point of the first argument was that the Union of Concerned Scientists, a reputable group, indeed, says that even a 20-percent mandate would be very affordable. Let's examine that for a minute, because the second reason was we needed to diversify our fuel for electrical generation in order to keep prices lower. The assumption was this would keep prices lower. Again, she is wrong. We have today the figures from the Department of Energy agency that puts these figures together, the Energy Information Administration. I can read the figures for every single utility in every single State as to what the increases will be. This is a pretty conservative estimate because they only take the power that is being purchased today--not 15 or 20 years from now--and they have not indexed for inflation. I suspect we all agree inflation will go up. All they took was the 3 cents per kilowatt hour, which is the basic cost that you would buy it from the Department of Energy, and projected that 3 cents per kilowatt hour--not 3 cents per kilowatt hour adjusted for inflation. What would the costs be? I will take Louisiana, the State of the Senator who just spoke. I will leave out for part of this discussion the municipals, but I will bring them in to show it is the same for the municipals. I begin with private utilities in Louisiana. For the CLECO Power Company, the cost of this is $25.5 million, an increase in retail of 4\1/2\ percent. Entergy, Gulf States Louisiana and New Orleans is $60 million, $89 million, and $17 million, respectively, with an increase in prices to the retail customer of over 5 percent, 4\1/2\ percent, and 3.86 percent.

Mr. KYL. No, it is not right. In fact, many of the people or companies that sell to power retail do not produce with renewable sources today. They have to buy credits. The assumption is based upon the value of the credits as set forth in the amendment of the Senator from New Mexico. Yes, some will build renewable energy electrical generation. The cost of that could well exceed that 3 cents per kilowatt hour. This could be a conservative estimate, especially since it is not indexed for inflation. We are talking about a number today that in 20 years is obviously going to be substantially higher. I am trying to indicate a relative fact; namely, that the cost to consumers is going to escalate dramatically. That is what this information demonstrates. Now to the next point. The Senator from Louisiana said we have to diversify to keep prices lower. I have indicated the Department of Energy knows the prices are not going to be lower. These are all of the estimates from the Department of Energy itself. But there is another point about diversifying; that is, if you are going to diversify, you need a reliable source. Certainly if the wind does not blow, you did not generate power on a windmill. If the Sun does not shine, you don't generate power from a solar power. If the water does not flow through a dam, you do not have hydropower. That is why the baseloads of the utilities is coal, nuclear, and gas. Those are available, they are reliable, and that is why for these renewables you always have to have backup, a storage battery, or a backup when it gets dark and the Sun does not shine or you have a drought and the water does not flow or the wind does not blow. The third point is renewables would create jobs. I know my colleagues would agree exploring in ANWR would create more jobs than windmills. That is evident. The fourth argument is renewables are better dispersed and are clean. Nuclear is clean, too. Hydro is clean. But I don't see a big rush for hydro or nuclear power. With respect to dispersal, it is interesting that the chart the Senator from North Dakota exhibited yesterday showed the renewable fuels dispersed all over the country, but each one is conglomerated in a particular area. For example, solar is obviously going to be produced best in the Southwest. Hydro is best produced in the Northwest. Wind power, interestingly, is produced best in North Dakota, South Dakota, and Oklahoma, as I recall. The geothermal was in certain other areas. If you are not in one of those areas, and since wind is the only economical source of producing the power, you are out of luck; you will have to import credits; you will have to buy credits from the place it is produced and your customers get nothing for that. They do not get electricity; they just get credits. The electricity company gets credits so the owners do not go to jail or pay a big fine. The bottom line with respect to the arguments made, and they have been made by others as well, the renewables have some very limited potential, if they are highly subsidized, which is what we are doing, and we have extended the subsidy for them, and we are all for doing that, but you cannot count on renewables in any significant percent unless you are willing to pay a very high price, and unless you are willing to discriminate against some regions of the country, that is to say, unless you are willing to force the electric consumers in one part of the country to pay a lot more than the electric consumers in another part of the country. That does not make sense to me as a national energy policy. Unless there is someone on the other side wishing to speak, I yield 7 minutes to the Senator from Alaska.

Mr. KYL. They had to have a number representing cost and the cost number that it used was the one in your bill, in your amendment, the amendment of the Senator from New Mexico, which is that you can buy this from the Department of Energy at 3 cents per kilowatt hour.

Mr. KYL. At the end of the time they are required.

Mr. KYL. I am happy to yield.

Mr. KYL. I am happy to answer the question of my colleague. It will not cost energy companies a penny but cost energy's customers. That is the whole point. We are the ones who will pay, not the power company. The reason this particular power company supports it--I understand they will have to answer for themselves--they have invested in wind power. As I pointed out yesterday, according to the Energy Information Administration of the Department of Energy, the only renewable that will provide any significant increase in power is wind power. Naturally, those companies that invested in wind power love it. They cannot sell it today, even with a 40-percent subsidy, but if the Federal Government makes people buy the product, then they will be able to sell it. That is why they like it. Their customers will pay for it; they won't be paying for it. Let me turn to my State. I will pick some other States at random. In my State of Arizona, the private utility Arizona Public Service is the biggest at $67 million, a 3.72-percent increase. The Salt River Project, which would be temporarily exempted, is $66 million, up 4.63 percent. Another private utility, Tucson Electric, is $24.5 million, up 3.69 percent. The percentage increases are from 3 percent up to under 30 percent. How would you like to be getting power from the Welton Mohawk Irrigation District, with a 29\1/2\-percent increase? Fortunately, it is one of the political subdivisions that is currently excluded from the bill. Certainly they hope to remain excluded. In California, Pacific Gas and Electric is $260 million, over a 3- percent increase. San Diego Gas and Electric is $45 million. Southern California Edison is $221 million. The total in that State--again, under the conservative assumptions--is three-quarters of a billion dollars.

Mr. KYL. Mr. President, to the extent that the time is available, we can do that.

Mr. KYL. Mr. President, we are under a time agreement and we are going to be running out of time if things other than the pending amendment are allowed to intercede into this debate. Our vote is set to be cast first thing in the morning, as I understand it. So whatever debate we have, we have to do tonight. We have at least an hour of speakers on our side, starting with the Senator from Texas and myself, and the Senator from Oklahoma, I guess, is done, and then we have the Senator from Idaho and the Senator from Wyoming, at least. As a result of that, I think we ought to proceed with debate on the pending business so that we can fit within our timeframe and be ready to vote tomorrow morning.

Mr. KYL

Mr. KYL. Mr. President, what those two letters say is that the Kyl amendment should be adopted and the Bingaman amendment should lose. They are echoing the sentiments of a lot of other groups both in the private and public sectors. I have put in the Record some other letters from the public sector and associations that strongly support the Kyl amendment. I wish to respond to some of the comments from colleagues that have been made in response to my presentation. My colleague from North Dakota made the point that we should have a national energy policy just like the Clean Air Act and that is why we need a national energy bill. There is a difference between a national policy and a Federal policy. We do have national problems, but not all national problems are best solved by a Federal solution. In this case, we have a combination because we have clearly decided that the Federal Government does need to be directly involved in the national energy policy debate, but we do not say --none of us says--the Federal Government should take it all over; it is a Federal problem; therefore, we have a Federal solution. Most of what we do as a nation we do as private sector operatives, as State and local governments, and then, of course, the U.S. Government does a fair amount of directing and financing of programs, but clearly we cannot run everything from Washington, DC. The Bingaman amendment does deviate from this otherwise pretty commonsense approach to American life by saying: This is not just a national problem; we do not need just a national solution, we need a Federal solution to the point that we are going to mandate, compel, require, under penalty of law, that you will produce 10 percent of your power through renewable sources or else. I actually misstated that a little bit. It is not produce, it is sell. We are requiring that the retailer account for 100 percent of the power sold so that you can prove to the Department of Energy that 10 percent of that power sold came from renewable sources. You do not have to produce it yourself. You either have to buy it from somebody who produced it or you have to buy credits from somebody who produced it or you have to buy credits from the Department of Energy that does not produce anything. But if you are willing to assess your retail customers for that, then you can get away without producing it yourself. Either way, the energy is going to cost you something; it is going to cost them something. In one case, you actually have to buy it from somebody, and, in the other case, you have to buy it from somebody or the Department of Energy. There is a big difference between having a national policy and having a Federal mandate. There are a lot of items in this bill that are OK, and they have national scope to them. There are a lot of items in the President's plan that are national in their scope, but they do not all provide for Federal mandates, and that is a distinction we need to make. As a matter of fact, the Senator from Washington just talked about the need for Federal encouragement. In fact, her exact statement was: We need a policy to encourage the use of renewable energy as part of a 21st century national plan. I agree we need to encourage, but there is a big difference between encourage and require. The encourage part we already have in the law. As a matter of fact, under this bill we are actually extending and expanding the tax credit that we currently provide for renewable energy sources to encourage greater production of that renewable energy. In fact, it would not make any economic sense to produce this without the Federal Government subsidy of 1.7 cents per kilowatt hour, for example, for wind generation. One could not compete in wind generation without this Federal tax credit which provides roughly 40 percent of the cost of the production of the power. We do encourage, in a big way. We are already doing the encouraging part. The question is whether we should have both a carrot and a stick. I am all for the carrot approach, but I do not think the Federal Government should be taking a stick to people who buy electricity and say you have to buy 10 percent renewable power or we are going to make you pay for it. That is exactly what the Bingaman amendment does. What the Kyl-Miller amendment says is, let the States decide. If we are going to have a national policy for this national problem, then let's let all the States within the country decide what is best for them. I am intrigued by the chart that is on the easel behind the distinguished chairman of the Energy Committee. The Senator from North Dakota used that chart to illustrate that we have potential renewable resources throughout the country. He demonstrated that by pointing to four different kinds of renewable energy power source. Biomass and solar, I guess that is the one that is very bright red down in my part of the country. Then geothermal in the lower left, and wind power in the lower right, and certainly in the State of North Dakota there is a bright red color, the Saudi Arabia of wind power in North Dakota, and in South Dakota, it seems. What one can see from those four charts is the renewable opportunities are very divergent around the country. They are distributed not fairly in one sense but in a very disparate way. The distinguished Presiding Officer does not have much of a shot, it seems, for wind power or geothermal power or solar power, but there might be some good biomass opportunities. I certainly hope so, because it is going to have to be produced or credits are going to have to be bought from somebody else who can produce it. The real story behind these four charts is not the disparity and the fact there are winners and losers and there will have to be trading among the States, but according to the EIA report dated February 2002-- that is the Energy Information Agency of the Department of Energy--on page 16, and I am quoting, only wind capacity is projected to make significant change between the renewable portfolio standard and the baseline, or the status quo. In other words, of all of these renewables--solar, geothermal, biomass, and wind--that have been examined by the Department of Energy, the only one projected to make a significant change is wind power. There are a couple of reasons for that. The amount of the subsidy that has been used to develop the wind power industry and the general efficiencies with respect to wind power make it the only one economically viable, even close to being economically viable, as a producer of mass amounts of energy of the four basic renewables. As much as we would like to produce it from solar power in the Southwest, the economics are not there, even with the substantial Federal subsidies. The same is true with respect to geothermal and biomass. I would like to burn more biomass in the State of Arizona. It is not an efficient way to produce power. The Btu content is not there. So of these four basic energy sources, only wind power, the Department of Energy says, can really make a significant difference. That is a fact. What is the importance of that fact? Well, first of all, the Senator from South Dakota and the Senator from North Dakota are sitting pretty good when it comes to production of electricity from wind power, it would seem, and maybe a couple of other States which I cannot quite see on that chart. Maybe northern Idaho, it looks like, and it looks like a little piece of Oklahoma. I hear the wind blows pretty well there, and I think there is a red dot where Oklahoma is, but that is about it. The rest of us do not appear to have a great deal of capacity to generate by wind power. What does that mean? That means a transfer of wealth from all of the other parts of the country into those regions. I am not suggesting the proponents of the legislation all are from those particular States. That is not true. But it is true that those who would utilize that resource in those areas would stand to gain the most. That is why I ask my colleagues to consider the discrimination that exists in this legislation. If we left it to the States to decide what percentage to set and how to define the renewable so as to take advantage of what is available in their locales, and how to set the timeframe so they could achieve some reasonable level, that would be one thing. That is what we have done. Fourteen of the States, including my State of Arizona, do have a renewable requirement. If we mandate at the Federal level, we are saying in Washington we know best for the entire country and this is a one-size-fits-all proposition now, we are going to define what counts as renewable and, by the way, hydropower does not. That is the first big difference. We know full well going into this that only one of these sources, wind power, has a chance to really make a significant difference anytime in the foreseeable future. So the reality is we are not talking about renewables, we are talking about wind. As I said before, I would kind of like to know who the winners and losers are if we are going to pass this bill. I do not want to buy a pig in a poke. There was a lot of talk about Enron investing in certain kinds of energy and then trying to get the Federal Government to make everybody else trade in that particular energy or to make it easier to trade in that energy, and there were a lot of us in the Senate and elsewhere who criticized a Federal policy that would have favored a particular entity or group of entities within our economy. That should not be what the use of Federal power is all about. If we are going to talk about deregulation as the goal in this legislation, why would we be imposing a brandnew kind of regulation over the market that mandates that fully 10 percent of the energy has to come from a particular source--in this case, the reality, wind? That is what the Department of Energy says is the only renewable that can make a significant difference as part of a renewable portfolio. It only exists in a few parts of the country in abundance, apparently. So who are the winners and losers? What are the people in other parts of the country going to have to pay to the producers in this limited area of the United States for the privilege of continuing to generate power from oil or gas or coal or nuclear or hydro? What are we going to have to pay to those areas that have the benefit of a lot of wind in their State? Nobody knows for sure. The Department of Energy calculates the gross cost at about $88 billion for the first 15 years; $12 billion each year thereafter. Of what is that cost comprised? It is the equivalent of credits or penalties. In other words, one is either going to have to produce it or they are going to have to buy a credit--and they estimate what that credit will cost--or they will pay a penalty because they did not do one of those two things. They calculate the cost of that at $88 billion, plus $12 billion a year thereafter after the first 15 years, after the year 2020. That is a huge cost passed on to the retail consumer. There is also some evidence that if that much of the market replaces other energy sources, and there is a big footnote here, the question is: Will it replace or will it be providing additional energy because the energy needs of the country will grow over time? Let us assume we remain static, stagnant, and therefore the universe is exactly what we can envision today; we actually replace some natural gas or coal. The idea is the cost of that fuel will then go down because there is not as much demand for it, and so the people who get generation from those sources will be paying less because there will be lower fuel. As a theoretical proposition, that cannot be argued. I suggest we have done no cost-benefit analysis. The committee has not looked at this. We really do not know what might happen 25 years out into the future in terms of the market price of these various kinds of fuels, but we do have pretty good numbers as to what the penalties and the credits are going to cost because they are fixed in the statute. As a matter of fact, one could buy the credits from the Department of Energy at a very specific 200 percent of market or certain kilowatts per hour. So the costs are going to be significant to the retail purchasers of power. There is going to be discrimination from one part of our country to the next because the only real renewable that can be utilized under this legislation, according to the Department of Energy, is wind power, and the opportunities for that are somewhat limited. As a result, to those who say we need a national policy, I say, yes, we need a national policy, not a Federal policy, one that takes into account all of these differences. So let us stick with the State option that currently exists. Tomorrow our colleague from Texas, Senator Gramm, is going to address the allegation that this bill is, after all, patterned after the Texas legislation, so what could possibly be wrong with it? Well, somebody from Texas can explain what the Texas legislation does, and I will let Senator Gramm do that, but I would note the first point, which is that Texas did something on its own for the State of Texas does not mean therefore that the Senate should say everybody else has to do the same thing. I daresay, as much as I like Texas and Texans--I did not say how much; I said ``as much as I do''--I am not willing to say whatever Texas does is what everybody else in the country should be mandated to do. So bully for Texas. Arizona has a standard as well. I am not really keen on mandating that the rest of the country do exactly what Arizona did. So I am not much impressed by the fact that part of this is patterned after what Texas did. The Senator from Texas will point out why it really is not that much like the Texas plan. Leaving that aside, it is irrelevant. The fact that one State did it a certain way suggests to me that the State found a way to make it work for itself and other States ought to look at it, too. But the State of Maine did not copy Texas. Maine has a 30-percent requirement. Should we pick Maine instead of Texas as the great example to follow and require everybody to have 30 percent? If 10 percent is good, why not 30 percent? I ask my friends, if the object is to diversify, if 10 percent is good, why not 30 percent? One of my colleagues said the United States is too dependent on coal and natural gas. I have an answer. We can drill for oil at ANWR and produce more nuclear power. That is a great way to diversify. There is a problem. One of my colleagues from Washington State said: We need to diversify because in the Northwest, where we rely so much on hydro, we are getting killed by the drought. And it shows there won't be as much hydro available, so we need to diversify. Let's examine that. We get some hydropower in the State of Arizona, but we have diversified by relying a lot more on nuclear, oil, and coal. We know there can be a drought and therefore that renewable is not as much of a sure thing as our coal supply, our natural gas supply, or our nuclear energy supply. How about wind? Can you get wind power when the wind does not blow? No. How about solar? Can you get solar power when the Sun does not shine? No. That is why with all of the so-called renewables, because they are not as sure a thing as the other sources--which is why we use the other sources--we have to combine them with some other source. We have to combine them with a storage capacity or some other source so when the Sun is not shining, where the wind is not blowing, or the water is not flowing, you have stored the energy or you have an alternative source to provide that energy. That is one of the reasons these are not part of the baseline energy production in the country. Think about it. It is why you would not want to have too much dependence on these unreliable resources. We call them renewable because we know there will always be wind, sun, and water, but you do not know exactly when or where. We have an almost inexhaustible supply of coal in this country and we have spent millions to generate clean coal technology. We are producing a very large percentage of power in this country on clean coal. We added scrubbers. We demand all kinds of things that take the pollution out of the air. We now produce very clean power with coal. Natural gas is even cleaner. It is available where we are able to provide the exploration. Today we have an abundant supply of natural gas. And, of course, nuclear is virtually inexhaustible. We can produce nuclear power energy for centuries to come. It is the cleanest burning fuel, in effect. It produces no pollution whatever. Its supply is virtually inexhaustible. To those who say we should diversify in order not to be dependent upon a particular source of energy, and use the example of hydropower, I say you are absolutely right; that is why we do not rely upon these renewables. They are not dependable, as are the other major sources of electrical generation in the country today. Why should the Federal Government be mandating unreliable sources for generation if we want to become more energy dependent and diversify our capacity and have greater ability to be assured of power production in the future? This is folly. This is like going back to the 18th century. Windmills are great. If you are in the middle of ranch country, you have to have a windmill to pump the water. It is a great way to do it. But it is not a great way to generate thousands of megawatts of power to serve our great cities in the United States in the 21st century. At best, it is a supplemental source of power and we encourage it. We provide tax credits for it. The Kyl amendment will permit customers to say this is what we want, and if they want it, the States let them buy it at cost. I don't think we should be mandating all sellers of electricity have to provide more and more and more of their power from less and less and less reliable sources--all in the name of diversification and a new energy policy that is going to make us ``safer'' and less reliant upon others? It does not make any sense. There was a suggestion that the Federal mandate is not a preemption of the State plans. I beg to differ with my colleague. It certainly preempts the States that have decided to have no renewable portfolio and preempts those that want a different kind of standard than the Federal standard. There may be some things in common with some of the States that provide a requirement but only to the extent is it not preemption. To a far greater extent it is preemption. To say it does not transfer wealth from one part of the country to another clearly is erroneous. It will result in that disparity and differential treatment. I also pointed out other discriminatory features: this does not apply to governmental entities such as Bonneville and TVA or other governmental producers but investor-owned utilities. Why? What is the policy rationale for that? I happen to know, so I will explain. If it had applied to the governmental entities, that part of the bill would have been subject to a point of order because it constitutes an unfunded mandate, imposing huge costs on those governmental subdivisions which under our law, now at least, we cannot do without subjecting that proposal to a point of order by the Members of the body. To avoid that point of order, the sponsor of the amendment wisely removed those utilities from the requirement of renewables. That creates a great imbalance. The investor utilities have to comply. The public sector utilities do not have to comply. That is not fair. I guarantee we will see the customers of one screaming because they have higher utility bills. I take my hat off to the municipal power producers that have written letters saying, notwithstanding the fact we are temporarily out of this bill, we still think it is a bad idea. It is not fair for our competitors that we have an advantage over them. And besides that, we are not too sure you will not try to come back and do it to us at a later time. I appreciate their willingness to help out their competitors. There is probably some self-interest in it, but it does not matter. They are right. There is also discrimination with respect to States such as Maine that have a huge hydro generation right now. They call that a renewable. But the Bingaman amendment does not. Maine says hydro is good; This is a renewable source and we count it toward our 30-percent requirement. The Bingaman amendment says, no, we do not let you count that for this Federal standard. The only thing you can count is if you somehow rewind the generators there and get a little more capacity out of this hydrodam in the future. We will let you count that incremental savings, that economy that you effected or the additional production, as going toward the renewable. Why do we discriminate in that way? Why do we count solar twice as much as geothermal? Why do you get twice as much credit on an Indian reservation? It looks as if there was a lot of looking at special interests and politics and issues such as dealing with the point of order issue rather than sound policy. They talk about national energy policy. This looks to me as if it is a lot more than a national energy policy. There are a lot more different considerations than would go into a real national energy policy. I hope my colleagues who have already said to some folks--and I acknowledge this--I need a green vote, I need to show I am pro- environment, that being for renewable energy will demonstrate that, I hope they ask themselves the following questions: What are all of my constituents who buy power going to think about that? I suggest that is almost everybody who is eligible to vote. You might want to please an energy company here or there or some environmental group here or there. But you are going to have to be accountable to all of the people who use electricity in your State. For those who are going to have to buy credits from elsewhere, it is going to cost and they are going to wonder why their power bills have gone up. If that is the way you are inclined to vote, you are going to have to be prepared to explain that to them. I daresay there are probably going to be some political opponents or people in the media who are going to remind the folks about how this happened. So that is the first thing I think you are going to have to answer; you are going to have to answer to the people who buy the power at greater cost because you needed to have an environmental vote. Second, there is the matter of discrimination. How are you going to be able to explain that it is going to cost you, but it doesn't cost somebody else in the country, just because of where you happen to live and where the wind happens to blow? You are going to have to explain that. Frankly, to the extent solar power could be produced in my State, I could say I am really for this and I might benefit. The problem is, we don't have that much wind potential, as a result of which we are still going to be losers, so it wouldn't matter anyway. I don't want to make somebody else suffer to buy a product I produce except at the marketplace. If people need to buy what I can make available because they need it and the market is open to their purchase of it, then that is great and I am willing for Arizona companies to make some money on that. But I don't want to use the Federal Government as my hammer, as my agent, to say I have something I want to sell and I can't figure out a way to make people buy it. I know, I will get the Federal Government to pass a law to say people have to buy it. That is the way I will take care of my investment. That is wrong and that is what a few people are urging us to do. I am not talking about people in the body here, of course. I am talking about some folks on the outside. They have the good fortune of having a resource they would like to be able to sell. They would like to make some money on it and they haven't been able to do it that well yet because it is not that economical. The way they get it done is to have Congress pass a law to say you have to buy it. I don't think that is what the Federal Government should be all about. We are going to be taking up campaign finance reform tomorrow and my colleague, Senator McCain, has made a point that I totally agree with him on, that the real problem here ultimately is that the Federal Government has become so powerful now that everybody comes running to the Federal Government to seek special benefits because the Government can grant those benefits. It becomes very valuable after a while, so people decide they want to spend money influencing governmental policy. In the abstract that is fine. We understand that is the way it is in a democracy, and there is nothing wrong with spending money to influence Government policy. But when you have a lot of money and you can influence the Federal Government to make people buy something that you have to sell that you could not sell to them otherwise, that is wrong. It is an abuse of power. Frankly, it is something that we as Senators should not countenance. We should say to those people: Look, go develop a product that can sell. We have already given you a big tax break. If you can't sell it based upon that and you can't convince the State utility commissions or Governors or legislators to mandate a particular level of renewable energy resource in your own State, don't come to the Federal Government and ask us to do your work for you by forcing everybody to buy your product. That is wrong. That is what creates the problem with the campaign finance issue--we make the Government so powerful that it can make or break businesses and therefore they all come rushing to us to get us to change Federal policy and to use it as a hammer rather than as an inducement. I hope my colleagues will be able to answer these questions when they vote and that they will conclude we are really better off at this point in our history saying: We are not ready for an absolute Federal mandate. It is better to let the States decide this. With the encouragement that we provide through the tax incentives, we will see what kind of progress we can make toward the goal that we want. Then we will reevaluate it to see if we really want to impose something on the American purchaser of electricity. As I said before, we have to be very careful about mandating the use of unreliable energy sources. The renewables, with all due respect to those who think they are the great wave of the future, renewables provide some capacity for diversification, some ability to produce power in the future, but they should not be considered a good idea for baseload or for any significant portion of power requirements as a mandate because they are simply not that reliable. I hope colleagues will consider supporting the Kyl amendment, and, as a result of that, it will eliminate the underlying Bingaman amendment.