Jeff Merkley

Mr. MERKLEY

Mr. MERKLEY. Mr. President, yesterday I had the chance to come to the floor and talk about the changes I have seen in the streams and rivers in my home State of Oregon as we worked to clean them up, restore them for wildlife, restore them for swimming, restore them for boating, and restore them for drinking water, and how terrific it was to see this occur. We are now considering a parallel provision--a provision designed really to protect the streams near intense mining zones. I had a chance yesterday to go through the details of the regulation and how it made, for example, the coal slurry ponds more secure so they wouldn't rupture. As I pointed out, one ruptured and killed over 100 people and injured more than 1,000 people, not to mention the damage it did to the ecosystem for an extended length downstream. I talked about the toxic chemicals that are leaching out of improperly developed piles, as they are called. Today I want to share a few more of the stories of folks who live in the area and how important it is for them. Sam Needham, who lives near Appalachia, VA, talks about the changes he has seen in rivers near his home since he moved there in 1978. Sam said that when they first moved there, ``Callahan Creek that runs near our house . . . was full of different kinds of fish. Now I don't see any fish in the water. I wish it could be like it was in the 70's and 80's, but with all the runoff from sediment ponds and mines, I don't think it will ever be like that again.'' Sam supports the stream protection rule. He said: ``I would like to see regulations to protect our waters and maybe one day be able to fish in Callahan Creek again.'' He is not asking for a tremendous amount. Chad Cordell of Charleston, WV, said that he has ``been concerned about the impacts of mountaintop removal since learning the beautiful valleys and streams of my home state were being buried under hundreds of feet of rubble.'' He said he wants ``strong, science-based protections for the creeks, streams, and rivers that are the lifeblood of our state,'' and he noted that ``attacking the Stream Protection Rule isn't the way to build strong, healthy, resilient communities or a strong, stable economy.'' John Kinney of Birmingham, AL, said: I have lived most of my life in Jefferson County, Alabama, enjoying the outdoors, particularly canoeing and fishing on the Black Warrior and Cahaba River. While it seems that many folks in regulatory agencies don't consider Alabama to be part of Appalachia, and don't understand the extent of coal mining in our state, I have seen the devastating impact of coal mining in our state . . . first hand. He goes on: I have seen lakes turned gray downstream of mines. I have seen streams turned bright orange downstream of coal preparation plants. I have seen sloughs that once formed deep channels (perfect spots for largemouth bass) filled in with sediment. John wants to see Federal protections ``that help protect water quality for all uses downstream of coal mines and associated industries'' and wants to see the stream protection rule stay where it is. Here is a final story. It is from Chuck Nelson, a fourth-generation coal miner from West Virginia who dug coal underground for 30 years. He became an advocate for environmental rules like the stream protection rule after a coal processing plant was built near his home. Thick, black coal dust was always coating his home inside and out. His wife developed very bad asthma problems, and his kids couldn't use the swimming pool because of a thick black skin always on the top of the water. He decided to make his voice heard, and he came to DC from West Virginia 25 times to talk to lawmakers and regulators. He was a regular citizen. He saw a problem impacting his wife, and he wanted us to work to fix it. He finally succeeded when the stream protection rule was finalized in December. It amounts to this: The way that one conducts mountaintop coal mining has a huge impact, just as it does with other industries. Having basic rules about how that work is done ensures sustainability of the nearby streams. This was done with a tremendous amount of involvement of stakeholders, tremendous number of meetings, 6 years of coordination, trying to find a way that doesn't paralyze coal mining but does protect the streams. That is the balance which was being searched for, discovered, and implemented with this rule, and we should leave it in place. We shouldn't destroy these years of work to protect our beautiful streams with just a few hours of debate, with no public notice or awareness of what is going on. If we want to review this thoughtfully and seriously, let's have it done in committee, where the public can participate and Senators can take a deliberate stand and not destroy this work to protect these thousands of miles of streams in a blink of an eye.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I appreciate my colleague from Hawaii, both on the substance of the issue and on the Congressional Review Act and how it is an unsuitable tool in a situation like this because of how it bars the door for a simple way to replace or modify a regulation. I am coming to the floor tonight to share my concerns about a basic challenge we have in the world. This basic challenge is that when you get a ruler of a country who is corrupt, they forge contractual relationships, particularly if they are rich in minerals or oil, and they pocket the money and they spread the corruption. It makes it virtually impossible for the interests of the people of that country to be represented by their government because whatever governing body they have keeps making decisions based on those corrupt payments. Now, we are a nation that values government by the people--of, by, and for the people. That is the vision of our Nation, but that vision would not be fulfilled if the Members of this body were being paid by foreign companies to serve the interests of the foreign companies instead of the interests of the people. We can understand from our own perspective our own desire to have a government that serves our citizens and that other nations want to have a government that serves their citizens. That is what this particular bill and the regulation that flows from it were all about. It was section 504 of Dodd-Frank, the resource extraction rule, that was passed now 7 years ago. It took quite a while to get the regulation into place. The first version came out in 2012, after a tremendous amount of consultation was struck down in court because it was challenged by one of the companies that did not want to have transparency in international payments. Then folks went to work again and produced a rule that went into effect this last year. Unfortunately, we are about to strike that down. I was thinking about how one of the champions for this was Senator Dick Lugar of Indiana. I was so impressed by his thoughtfulness when I came to the Senate. He had been here quite a while, and he worked to really understand issues, and he worked to solve problems. He didn't work to obstruct an administration because it was of a different party. He didn't work to sabotage the work of this body because one party or the other was in the majority. He worked to solve problems. He had really a deep understanding of the challenges in the world. He could see this from his considerable experience. He was on foreign relations for a very long time, and he served as its chair. He knew from his own work in that committee, from his own studies, from his own travels, and his own conversations--overseas conversations with foreign governments and conversations with our State Department and our Defense Department--that we had a significant issue in which contracts with large companies are used to defeat government of, by, and for the people in nations around the world. He wanted to do something about it. He had partnerships, and Members of our own body who are still serving here today were deeply involved in this. It was a tremendous provision, but the American Petroleum Institute wasn't happy about it because it has worked really well for oil companies to not disclose and to make deals with ruling dictators and ruling families or ruling governing groups, whether they be in a so- called elected form or unelected form. Well, finally, last year the rule was completed in June. They crafted a rule that, for the most part, made various stakeholders happy and it won broad international support. Dozens of other countries--including Canada, Norway, and countries of the European Union--followed American leadership. They adopted similar laws. So our particular law made it clear that if a company was listed on our stock exchange--on any of our exchanges--and it made a significant payment--$100,000 or more--it had to disclose that payment. That wasn't just U.S. companies. It wouldn't just have been U.S. companies. It was any company listed on our exchange, no matter where it was based. Other companies followed suit. So companies based in other countries were affected. So, basically, it was a vision that in short order took over the entire world, with developed countries coming together and saying that we are going to stop this process that destroys governments for the people in so much of the world. It isn't just kind of a theoretical question of some liberal vision of how governments work. We are talking about the difference between the decisions of dictators to stash billions of dollars overseas or build health care clinics. We are talking about the difference between dictators buying hundreds of the world's most expensive sports cars or developing an education system in their countries. We are talking about the fundamental quality of life for millions and millions of people around the world. This provision, this resource extraction rule, went in an enormous direction in terms of making the world a better place. Shouldn't that be what we are about? This challenge of foreign contracts with money diverted into the pockets of the dictators and the ruling class--the money that should go to the development of the country--is particularly a problem in resource rich countries with weak institutions. They have weak courts. They have weak investigative branches to find corruption. They have courts that essentially exorcise the ability to try people for which there is evidence, who should be charged and should be convicted. So the same corruption that affects the decisions that are made protects those who make those decisions. This means that if you have someone who grows up in this country and says: We have hundreds of billions of dollars of resources and nothing to show for it; so let's change that system; let's change that system and enable the people of this country to benefit from schools and health care and transportation; let's develop our nation, they are stymied by this complex web of undisclosed corruption. So that is what this bill is all about, and that is what this rule stemming from the section of the bill is all about. Let's take, for example, a poster child for this resource curse. In many countries, it is known as the oil curse. Oil is a particularly prominent case. But the Democratic Republic of the Congo has not just some oil but a lot of minerals. It is a significant producer of the world's cobalt, diamonds, tin, gold, and other minerals. This problem of a corrupt dictator goes way back to decades ago. His name was well known around the world: Mobutu Sese Seko. He ruled from 1965 to 1997, so 32 years, three decades. It is estimated that he diverted from the country $4 billion to $15 billion. That is a lot of roads being built in a poor country. That is a lot of food for people who are near starvation. That is a lot of public school education. That is a lot of health care clinics. So one very rich man was stashing money in Swiss bank accounts rather than that money going to the government to do fundamental responsibilities for the people. The country has an estimated $24 trillion in mineral deposits. When we think about that, the $4 billion to $15 billion doesn't sound like very much. Often, the way it works is these corrupt payments enable companies to get contracts far below cost, which is not a good thing, obviously, for these impoverished nations, to be essentially giving away their money because they are being bribed to do so. So that is extremely disturbing to me, this particular issue being done here late in the evening, with very few of my colleagues here-- mostly colleagues who are trying to fight this rule. Those who are supporting the multilateral corporations, the multinational corporations that don't like to have disclosure, they are not here to talk about how this is damaging the lives of millions of people in the poorest countries around the world. Maybe we need to have a rule in the Senate that if you are going to damage the lives of millions of people, you have to actually be here to hear the debate. This debate is limited to just 10 hours, 5 hours on either side. If one side gives back their time, it is just 5 hours. There are not a whole lot of conversations. Maybe we could limit the conversation to 20 minutes a person or 10 minutes a person so we get a lot of voices in. Before we go about the process of destroying the lives of millions of people all around the world, maybe, instead of just listening to the lobbyists for a multinational bank in your office, you should be here on the floor to have a conversation about the damage you are contemplating doing. Maybe then we would have an actual debate here in the U.S. Senate--a place that used to be a place where people did come and listen to each other debate issues. Perhaps there are good arguments to the contrary that I haven't heard because my colleagues aren't here presenting them. And maybe out of that mutual exchange, we would find a path to do something other than using this crude and destructive tool to strike down this very important provision. There are three groups who benefit from this disclosure rule. The first group who benefits is the investors in a company who want to invest in companies that have responsible practices. The disclosure gives them the ability to have that information. The second group who benefits is consumers who want to buy products from companies that engage in responsible practices, and disclosure enables them to do that. The third group, though, really is the most important group, and that is a group of citizens in the country who are being corrupted by these payments because when they hear that a company has a contract and has paid X amount of billion dollars for that contract, then the newspapers of that country and the citizens of that country can try to get additional information: Did you take the percentage of that that was supposed to go to the regional government and actually get it disbursed to the regional government? Did you take the percentage of that that was supposed to go to the local city or province and did it get there? They can start to see that there is this lump of money that is supposed to be serving the citizens, and they can ask questions about how it serves the citizens. What bank account did it go into--so they can follow the money and track the money. But they have no ability to do that if these payments are hidden. That is what this is about. So it is about investors who want to do the right thing, consumers who want to use their marketing and purchasing power to do the right thing, but it is really about the citizens of that country not having their resources diverted when they desperately need the fundamental things, such as transportation and education and health care. Well, Senator Lugar said recently that if we allow this rule to be repealed, it would be ``a real tragedy for democracy and human rights.'' I agreed with Senator Lugar when he said, ``It is hard to believe that this would be such a high priority right now.'' We have a lot of issues in the world that we are challenged by, including security issues. We have a lot of nominations to address and debate. Why is it such a high priority at this moment to tear down a provision that improves the quality of life for millions of people in some of the poorest countries in the world? Why is it so important at this moment to tear down a law that reduces corruption in governments around the world? Why is it so important right now to destroy this provision that helps create an opportunity for ``we the people,'' a government that we profess to believe in? It is well known that the CEO of ExxonMobil traveled to Washington to personally lobby Senator Lugar on this section. He wanted this provision scrapped, and that individual is now our Secretary of State. That certainly disturbs me, that the day after he became Secretary of State, the provision he lobbied for as an oil executive is being accomplished here on the floor. Because of his testimony in committee, there was some hope that he would stand up and fight for the fundamental visions of our country, the fundamental values and principles of our country, and if so, he would be sending out information right now saying: Stop what you are doing because I know how this works around the world and how it destroys ``we the people'' governments, and we shouldn't be doing it; that is, we should keep the provision we have right now. Nigeria is another nation that has had a resource curse or oil curse. Last year, a deal was struck between ExxonMobil and the Nigerian Government--or it came under investigation last year by that country's anti-corruption and law enforcement agency, the Economic and Financial Crimes Commission. The investigation surrounds a 2009 agreement where an Exxon subsidiary and the Nigerian Government agreed to renew a 40- percent share in three new oil licenses. Exxon reached a deal to pay $600 million for those licenses, and it built a powerplant at a cost of $900 million, so it made a $1.5 billion investment. So a $1.5 billion investment--that sounds like a pretty high sum for a contract. However, an outside group who was investigating corruption found that the Nigerian Government had valued those contracts at $2.15 billion--in other words, $1 billion more than what Exxon was paying. Furthermore, they found that wasn't just in theory because another bidder offered $3.75 billion, and that is more than twice what Exxon paid. But the Exxon deal was chosen. Isn't there some sense that something is wrong when a government rejects a payment that is $2.25 billion more than the offer that was accepted? That is what happens with corrupt payments between powerful companies and dictators. That is what destroys government of, by, and for the people around the world. It is estimated that over time--that is, since 1960, so after the last 57 years--$400 billion of Nigerian oil revenues have disappeared due to corruption--$400 billion disappeared. What would $400 billion do to improve the lives of Nigerians? That is why transparency in these payments is so important. It affects impoverished people all over the world. We can have all of our aid programs, we can have our Food for Peace Program, we can have our Millennium Corporation, but this type of deal does so much more damage than all the good we do through our programs that we budget for and put money into. If we enable, if we promote corruption around the world, we do enormous damage. That is why a bipartisan group of Senators, including Dick Lugar leading it, took this on. How about Equatorial Guinea. It is one of Sub-Saharan Africa's largest oil producers, and it, like many other oil countries, has the oil curse. President Obiang has been in power since he ousted his uncle in a military coup in 1979 and declared himself President for life. Let's just say what he is: He is a dictator. His government has been known to detain arbitrarily and torture critics, to disregard elections. It has been prosecuted for using oil profits for financial gain of the President's family. The result is, although this country is one of the wealthiest African nations per capita, the majority of the Nation's citizens survive on less than $2 a day. Let me clarify that. It is one of the richest African nations per capita, but a large percent of the citizens survive on less than $2 a day because President Obiang and his extended network--his extended corrupt network--are stealing the resources of the country, and they are doing it often through contracts with oil companies like Exxon, which happens to be a major partner in exploiting the resources of Equatorial Guinea. Less than half of Equatorial Guinea has access to clean drinking water, a fundamental need and a fundamental factor in health. Twenty percent--that is one out of every five children--die before reaching the age of 5. This is because of the corruption that is facilitated by undisclosed sums, reinforcing a dictator--a dictator whose family owns fleets of fancy sports cars, luxury yachts, private jets, massive properties in Europe, massive properties in Brazil, and properties right here in the United States. But one-fifth of the children die before age 5. That is why this is so important. Let me conclude by saying that what we are doing here tonight in putting this forward with no real debate because my colleagues are not here--a few colleagues are here to give speeches like I am giving to say ``Stop, this is wrong,'' but our colleagues are not here to hear us. What is happening tonight is an enormous travesty. It is an enormous blight on the United States, which led the world in taking on this problem and now is abandoning not just that leadership but is abandoning the principle. The world is worse off for it. I hope that my colleagues will somehow come to an inspiration or a revelation, that those who are not here listening to this will come to an understanding that something is wrong with this and will oppose this effort to repeal this very important provision. But I know that the heavy hand of corporate lobbying is behind the fact that this is on the floor tonight, and I am not optimistic. That saddens me a great deal. Let us strive to have a process that honors the importance of the issues before us. This short debate, with virtually no one present, does not honor it and does enormous damage, and it is just wrong.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I appreciate the comments just delivered by my colleague from Washington State. Our two States are roughly the same size. They have similar amounts of coastline. We have citizens who share a lot of perspective on the country and that may be apparent in the comments I am about to make. Mr. President, from our earliest days, long before the Founding Fathers gathered in Philadelphia to declare that 13 disparate colonies were united and ``absolved from all allegiance to the British Crown'' and long before they sought to ``form a more perfect Union,'' our streams, our rivers, and our lakes have been the economic lifeblood of our Nation. They have supported commerce and trade, fishing and agriculture. They have facilitated the ability to travel the vastness of this continent. They have sustained our growing communities and served as critical resources for public health. It is no wonder, then, that generations of Americans have worked incredibly hard to protect these natural resources to keep them clean and safe. That is why here, in the Senate and in the House, in 1972, we passed the Clean Water Act that formed the foundation for our Nation's water regulations. It is why, 2 years later, the House and Senate developed and passed the Safe Drinking Water Act, to make sure that public drinking water supplies are safe throughout the Nation. I recall the impact of these acts in my home State of Oregon. The Klamath River was considered extraordinarily polluted. You could boat down it and see pipes dumping into it at regular intervals. Then, over time, as the State worked hard to identify those pipes, remove those pipes, and make sure that all pollution went through water treatment, the river got better. It got healthier. Now, it is not without its problems. Its problems still exist. There is still nonpoint pollution that affects life in the stream. But it is a far more beautiful and far healthier river than it was before we passed the Clean Water Act. We have proceeded to be fairly fierce about our enforcement. We have prosecuted polluters who have bypassed the law and dumped the results of their processes directly into our streams and our waterways. We have worked to protect wetlands, and we have worked to protect estuaries, understanding more and more about the role these various bodies of water play in our economy and play in our natural system and making sure they can continue to play that role so that we have a sustainable environment, one that is not at war with our economy. We have made the two work very well together, and we have accomplished all this through the debate and dialogue that we have had in the Senate and in the House and that the experts have brought to bear in our committee hearing rooms. We have accomplished it through the testimony of concerned citizens across the Nation who have identified one particular problem or another problem and have brought those challenges to us here in this body, and we have worked to address them. If you have ever visited a nation that didn't have this kind of process and seen the intense, incredible pollution of its waterways, then you know what a difference it makes to have this public process. I invite you to visit China and see what happens when there is no public process for taking into account and rectifying the challenges when industrial waste is simply dumped into our waterways. We take a lot of pride in protecting our streams, our rivers, and our lakes. That process has continued over these past years at the Department of the Interior, where the Office of Surface Mining Reclamation and Enforcement was working on the stream protection rule. I am going to show a picture to give some scale to the type of mining that the Department of the Interior, Office of Surface Mining Reclamation and Enforcement was trying to address. We see here the little tiny tractor. This is actually a massive tractor dwarfed by the scale of this massive mine. Indeed, in many cases, the entire top of the mountain is blown off to get at the coal seams underneath. In the process, a tremendous amount of rock debris is created and a tremendous amount of fracturing that can lead to water that moves through the water table eventually finds its way into streams. The goal has been to find a way that this type of mining can be done in respectful balance with the streams that are further down the mountainside. That is the challenge, and it wasn't easy to address. That is why this rule has been under development for 7 years, from 2009 right up through December of 2016--virtually the entire length of the Obama administration. During this period of consideration, there have been multiple reiterations of what the rule could look like and what actually works in the real world, with stakeholder after stakeholder after stakeholder saying: This is what you have to do to make it work. The goal was that this type of mining would be done, but not in a fashion which would destroy the streams. That is why it took so much hard work to do this. There were hundreds of hours of meetings, responses to over 114,000 comments on the rule. But here we are in the evening, with little attention being paid by the vast bulk of Senators spending just a couple hours and planning to undo this work. Under the Senate rules under the Congressional Review Act, we have just 10 hours of debate. Some of that can be yielded back by one side or the other, so maybe it will only be a few hours of debate. In those few hours, we hold in our hands the fate of the streams downstream from this mining. This is the premise: Will they conduct this mining in a fashion and followup with restoration to protect the streams that will otherwise be devastatingly impacted? I am going to say yes. Let's take to heart the 100,000-plus hours of work or the 114,000 comments and the multitude of meetings over 6 years, the work of professionals who talked to every stakeholder. Let's take to heart their work and not undo it in just an hour or two here on the floor. The Senate works in a way now that, even with something that has such a profound impact, Senators aren't here listening to each other; thus, we are not sharing our thoughts back and forth the way the old Senate used to debate. It is almost in silence that we are undoing or potentially undoing all of this work. Shouldn't we be celebrating that so many folks came together to craft a strategy that would not cause this type of mining to destroy the down-mountain streams? Let me show an example of what a down-mountain stream looks like. This is a stream that probably ran blue not too long ago. It now runs orange. It is full of toxic metals and who knows what. I rather doubt that any Member of the Senate would volunteer to go and take a cup of water from this stream and drink it. We can just look at it and know it is deadly. So we are trying to keep in place a rule carefully crafted so this stream--which not so long ago ran blue or ran turquoise or deep green because it was a natural stream without this devastating pollution-- will stay in that natural state. That is the goal. That is the point of this rule. I want to be very clear that the stream protection rule is designed to enable mining and stream sustainability to go hand-in-hand. Coal mining is changing in America. It has adopted a number of practices that have made it safer. Machinery has also gotten bigger in ways that mean far fewer people are employed in it. It is also changing because the economies of the energy market are changing. We see that natural gas prices have dropped so low that many utilities are shutting down their coal plants and they are opening up natural gas plants or they are investing in wind or solar renewables. But we need to recognize that for 150 years coal mining families have worked incredibly hard, at great personal risk to their health, to put meals on their tables and to provide power to our Nation. So let's have this conversation about protecting our streams with a full respect for the mining economy and the families that have put their lives at stake and worked to put food on the table. There is no reason we can't do what we have done in so many other parts of our economy to make the industrial process or the manufacturing process or the mining process be one that works in harmony with our environment, instead of at odds with the environment. That is the goal of the stream protection rule. It updates our 30-year- old coal mining regulations to better reflect the industry as it is today, in 2017. The fact is, we know a great deal more about the impacts of various coal mining processes on both the people and communities and environment--much more now than we did when most of the regulations were put together decades ago. We know that when we use explosives to blast the summit of a mountain as is done in mountaintop removal, everything gets blasted up into the air and pushed down into the valleys where it ends up in rivers and streams. What is the result of that? If that newly blasted rock doesn't block the flow of the river and streams entirely, it is still in constant contact with them, leaching out pollutants into the water, and those pollutants include things like heavy metals and other toxics that pose enormous threats to the region's fish and to the plants and to the animals and, yes, even to the people who live downstream. There are pollutants like selenium, a metalloid that is toxic to fish even at a very low level, causing deformities, causing reproductive failures, causing death. One way to tell the health of a stream is that it has life in it, but I doubt anyone would come out and say: Last year, I fished here when this was a blue-green stream, but this year I am not because with one glance at this stream, you know all the fish are dead. There are other pollutants like cadmium, a pollutant that is not safe at any level and has been tied to cancer in humans. So as cadmium goes down into water, flows into the streams and cities and small towns further down, it adds to the health risks of the folks living in the areas. Waste dumps called valley fills are left in place even when the mining is completed and the company moves on. We know that the rubble from mountaintop mining is impacting our streams and waterways because we have measured it. According to the Environmental Protection Agency's statistics, valley fills from mountaintop removal are responsible for burying 2,000 miles of vital Appalachian headwater streams. Now, 2,000 miles is a lot of streams. Picture 2,000 miles of a blue-green stream reduced not just to a toxic red stream but to no stream at all because it has been completely covered and eliminated. That is a lot of fishing holes that are gone forever. In addition to that, we know the fish populations downstream have been reduced by two-thirds from the places where mountaintop removal is occurring. We know that communities nearby are contending with contaminated drinking water and that babies are being born with higher rates of birth defects. I think about the birth of my two children. Like every parent, we pray and hope that the child is going to be born free of birth defects. So this rule is about something very close to our hearts. For some, it is the beauty of natural streams. For some, it is the opportunity to fish and see wonderful natural places. But for others, it comes straight to the question of whether their children are going to be born with birth defects. At the other end of life, we see downstream elevated levels of lung cancer, elevated levels of heart disease, elevated levels of kidney disease, elevated levels of hypertension. So I ask: Is it right that here, in the dark of night, with just a few hours of discussion and virtually no one here in the Senate Chamber, we are going to undo 7 years of work designed to reduce birth defects, reduce lung cancer, reduce heart disease, reduce kidney disease, reduce hypertension, reduce contaminated drinking water? In just a few short hours, we will be making a decision that will result in an impact on thousands of people, as well as thousands of miles of streams. The stream protection rule is pretty straightforward in its design. I will give a few details about what it is intended to do. One is that it improves construction standards for waste piles. What is a waste pile? Well, it is pretty much what it sounds like. It is a pile built from accumulated rock waste that is removed when you do mountaintop mining. Why do we need to improve their construction? Because these piles grow to enormous size. They can involve millions and millions of tons of rock and debris. Over time, erosion in the soil around them can create dangerous, unstable slopes that can eventually produce landslides. So how you design it matters. These coal piles can have high levels of coal dust or hydrocarbons. And then there is the acid rock drainage. As water comes down in rain and it percolates down through these, it ends up seeping out into the groundwater or into the stream and poisoning the groundwater or poisoning the stream. That is why it matters how you have a construction standard for a waste pile. Isn't it smart to have such a standard in place and one that has been developed over hundreds of meetings over 6 years so that mining is much more compatible with clean streams and healthy people? Another thing this rule does is it enhances restoration by strengthening bonding requirements. It is not unknown, unfortunately, that coal miners would just abandon the mine once their operations were finished, leaving all sorts of undone business that adds to the enormous contamination that even a small amount of mining can do. In 1977, Congress passed a law saying that miners needed to restore the land after their mining operation was completed and that they needed to provide a bond up front to pay for the cleanup cost just in case the company decided it didn't want to follow through on the cleanup after it completed extracting the coal. Strengthening that and making sure the bonding process actually works right, that the bond is actually there to do the cleanup, makes a lot of sense. Years ago, I was immersed in first developing housing with Habitat for Humanity and then building affordable multiplexes for a nonprofit, Human Solutions. Companies that were being paid to do their work had a construction bond. The bond made sure that if the company somehow disappeared in the middle of the night, the work was going to get done. That bond was very important to the nonprofit, that what they were investing in--the payments they made were actually going to result in what was contracted to be delivered. That is the same thing here. A company that comes in and says: We got permission to mine--it is saying to the public, with a good bonding system, yes, you can be confident that the cleanup work will be done. That needed to be strengthened because often it is not done. That is another piece of this puzzle. Then there is another piece that is related to coal slurry and reducing the odds of coal slurry causing a lot of damage. Coal slurry is liquid waste generated when mined coal is washed off. You have a lot of water that is thickened with debris from washing the coal, and it can be held in a basin, but if the walls of that basin fail and that coal slurry gets into the streams, it does massive damage. That transpired in Martin County, KY, 16 years ago. An estimated 306 million gallons of slurry spilled into two tributaries of the Tug Fork River. How much is 306 million gallons? It is a lot of swimming pools, almost more than you can imagine. Another way to look at it is it is 30 times larger than the Exxon Valdez oilspill, one of the worst environmental disasters ever. There it is. It was a big, massive pond that spilled into the forests and into the rivers in that situation in Martin County. Overnight, one of the tributaries, the Coldwater Fork, a 10-foot-wide stream, became 100 yards of slurry. In some places, the spill was over 5 feet deep. It spread out and covered people's yards on the banks. Hundreds of miles of the Big Sandy River were polluted as a result as the stuff washed down the stream. The Ohio River was polluted. The water supply for 27,000 people was contaminated. It is not that it has just happened once; it has happened other times. It happened in Buffalo Creek Hollow, WV, in 1972. In that case, it was 132 million gallons of slurry. That is about a third of the size of the other spills, so I guess you could say that instead of being 30 times Exxon Valdez, it was only 10 times Exxon Valdez. But it did a lot of damage. It created a wave going downstream that was 30 feet high. Can you imagine how much material is required to create a wave of--a flash flood of coal slurry 30 feet high? This didn't happen away from human civilization; this wave of coal slurry killed 125 people. This wave of toxic coal slurry hit and injured over 1,000 more people--1,121 more people. It left 4,000 people homeless, wiped out their homes and their towns. That is the type of damage that can occur, so why not have a rule that has looked at how these ponds are created and said, here is a standard so that the pond is not overloaded or overtopped or the wall does not collapse and cause a tidal wave that will kill more than 100 people or injure more than 1,000 or leave 4,000 people homeless. Having a standard is the logical thing to do. It helps the companies because then they know exactly what they need to do to make that pond safe. Those are some examples of what is in this rule. I think it is important to understand another factor. This rule requires careful mapping before the mining is done so that the restoration process can be held accountable to restore the contours that existed previously, or as close as you can get. Without an understanding of what the land looked like beforehand, it is hard to say what it should look like when it is restored. Those are commonsense measures. That is it. Common sense. Common standards for safety, for protection of the streams and the wildlife and the people. Isn't that what we should be all about? Shouldn't we not be undoing that, as we will be in a couple of hours, in a deserted Senate Chamber in the middle of the night? That is wrong. If you want to change these standards--and I say this to my colleagues, and I know many do care a great deal about the environment--then have the courage to do it in daylight. Have the courage to do it in a committee. Have the courage to invite the public in to testify. But here we are tonight, hiding from the population across America, undoing this important work for the safety of our people. That is wrong. Mr. President, I yield the floor.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I ask unanimous consent that my science fellow, Christy Veeder, be allowed the privileges of the floor.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I appreciate my colleague's contributions and his insights, representing Virginia and representing the United States. I must say that all of us were quite frustrated by the hearing we held with Rex Tillerson. We know that America needs a strong and capable Secretary of State. We have many great power issues to wrestle with--certainly with Russia, certainly with China. We know we have many emerging powers around the globe that will raise issues relevant to the security of the United States and the economy of the United States. We know the Secretary of State plays a key role in shaping our policy toward impoverished nations and how we might facilitate their growth and enhance our Nation's relationship with them. Nuclear strategy is always an extremely important role. This position is perhaps the most important position in the administration, second to the Presidency, and it is for that reason that we are weighing with such intense attention. Already we have challenges that have been raised by the conduct of our President over the last 12 days. We have, in 12 days, seen actions by President Trump that have diminished our Nation's standing in the world, that have offended many of our international neighbors and allies, that have weakened the security of our country. So we need a capable Secretary of State. We need that person soon. Certainly one piece of the pattern we have seen is a new low in the relationship with the leadership of Mexico on our southern border, but we also have seen actions that have offended over a billion people in the world through the Friday night Executive order banning immigration from seven Muslim-majority nations along with an order affecting refugees fleeing the ravages and devastation of war in many places, but Syria is specifically singled out for a longer period of time. The President said, well, this is not, in fact, a Muslim ban and that it is about the security of the United States of America, but he is certainly wrong on both counts. All the nations singled out are Muslim- majority countries. Not a single immigrant from any of those countries has killed an American in a terrorist attack, and the President made a very specific point, saying there would be exceptions for Christians, meaning there would not be exceptions for Muslims. One of his advisers, Rudy Giuliani, even said explicitly that the President had wanted to do a Muslim ban and asked him how to do it legally. So the intent is crystal clear that this is a ban founded in religious discrimination, and a policy based on religious discrimination has no place in our Nation. It is completely incompatible with our traditions and our principles of religious liberty. We are a nation built by immigrants, founded by men and women seeking safety from religious persecution, adding to the sense that this position is wrong and abhorrent. It goes against the fundamental building blocks of our Nation and everything we stand for. If our history and our fundamental values aren't enough, then we need to consider the danger this ban represents for our national security. Much of our efforts in the Middle East involve close partnership, close teamwork with the leaders of Muslim nations. Taking on ISIS involves close coordination and close teamwork with the leadership of Muslim nations. In fact, we should be very aware that ISIS uses as its recruiting tool that the United States is conducting a war on Islam, and the President's actions feed directly in and serve the ISIS recruiting strategy. The world has reacted with furor. Over the weekend, more than 4,000 Oregonians attended a pair of my townhall meetings. The first meeting was in a room about this size, and I was astounded to see 600 people just jammed in, just crowding it. It was the largest townhall I had ever had. I do 36 townhalls a year, open forum. People can come and ask anything they want. Then I went to my second townhall, and it wasn't 600 folks. It was 3,700 people who turned out just because they heard that a Senator was holding a townhall, and they wanted to make their voices heard about how wrong they thought it was, the direction that President Trump is headed. A key piece of that was certainly his ban on Muslims entering our Nation. Protests erupted at airports all across our country. I went out on Sunday to the Portland Airport. It had been informally organized, the protest at 2 o'clock, and I got out there about 2:15. People were pouring in. There may have been somewhere around 1,000 people by the time I could get out onto the upper level deck of the two levels of the airport--the level at which people are arriving for their flights--to be able to speak to people. The condemnation and opposition didn't just come from the grassroots across America. It didn't just come from the spontaneous voices of American citizens who value religious liberty, value our traditions, value their understanding of our Constitution and wanting to send a message to President Trump that he was violating each and every one of those things, that opposition came loud and clear from international leaders as well. Our Canadian neighbors made sure the world knew they welcomed the immigrants and refugees that America had slammed the door on. German Chancellor Angela Merkel called the President to remind him of our Nation's responsibilities, as signatories to the Geneva Convention, to take in refugees. It is quite embarrassing that a European leader has to call an American President to educate him about the Geneva Convention. France's President Francois Hollande has called for a firm European response to this ban; the United Kingdom, whose Prime Minister Theresa May just met with President Trump last week, came out against the order; and more than a million Britons signed a petition to have the British Government rescind its invitation to President Trump to travel to London for a state visit. Iraq, Iran, Brussels, Scotland, Norway, nation after nation have come out to protest this terrible, dangerous policy. It is going to be up to our next Secretary of State to repair and rebuild these relationships and the reputation of the United States of America. So much damage has been done in just 12 days. My colleagues Senator McCain and Senator Graham said in a statement this weekend: ``This Executive order sends a signal, intended or not, that America does not want Muslims coming into our country,'' and indeed it does. So is Rex Tillerson the right individual to set our Nation back on a firm and steady course? Is he the right person to guide us through this volatile international landscape, where we need to rebuild alliances and restore leadership? In short, the answer is that Rex Tillerson is not the right man to do it. Forty years in the oil and gas market, 40 years in an oil company are good preparations for leading an oil company but not good preparation for leading the United States of America in international relations, not good preparation for serving as our top diplomat, putting out fires, calming fears, communicating our policies to the world in this volatile moment in history. During the hearing, there were a series of questions really related to one's moral compass in leading the foreign policy of the United States of America. One of the questions I asked about was Exxon's effort to set up a subsidiary to evade American sanctions on Iran and what did he feel about that as a leader of Exxon. He responded by saying: I don't have any memory of this. Really? The top management of Exxon decides to set up a subsidiary to circumvent American sanctions on Iran with a great deal of national security at stake, and he has no memory? Well, that was certainly a disappointing comment and an unbelievable statement. How about when we asked him about Exxon lobbying against U.S. sanctions on Russia because of its annexation of Crimea and the holding of territory in the eastern part of Ukraine? He said: Oh, Exxon didn't lobby on this. Yet the lobbying reports were right there. We have transparency on this. Millions of dollars were spent lobbying on this issue, and they certainly weren't lobbying for U.S. sanctions. This was a second extraordinary statement by the nominee. I then asked the nominee about Exxon's pattern of working with dictators to take the royalties for oil and funnel them to the dictator's family rather than to the treasury. This is particularly true in Equatorial Guinea where President Obiang has declared himself President for life. His response was simply: But Senator, we weren't successfully prosecuted for violating the law. That is not a statement related to moral compass and understanding. Certainly, when a company takes a nation's treasure and diverts it into the pockets of a dictator, you are affecting the lives of hundreds of thousands of people. Certainly, the people of Equatorial Guinea are a poor people who could use those resources for health care, for transportation systems. The President of Equatorial Guinea is famous for filling a plane with fancy sports cars from Europe and flying them to Equatorial Guinea. And how does he do that? Because Exxon steered the royalties for that nation's oil into the pockets of the dictator, but we didn't get any sense that there was any concern about the impact that it had on the people of that nation. Members of the committee asked him about the extrajudicial killings by police officers in the Philippines--the extrajudicial killings ordered by President Duterte. Young men were shot down in the street. I think at last count an estimated 4,000 to 6,000 young men were assassinated in the street, and he simply said: I need to get more information. This is not something that has been hidden on the back pages of the newspaper; this is something fundamentally contrary to the principles of due process and justice that our Nation stands for. Couldn't the nominee have expressed that this is completely in violation of our core principles? But he had no ability to do so. We come then to global warming, an impact that is occurring right now on the ground in my State. The burning of coal, oil, and natural gas, causing an accumulation of carbon dioxide and an accumulation of methane, is resulting in the acidification of the ocean. That is causing oysters to have difficulty reproducing because it affects the formation of their shells at the beginning of their life. The higher acidity makes it harder to form shells. We see global warming in Oregon in terms of a longer fire season with more intense fires. It is burning more forest there than ever before. We see it in terms of a lower average snowpack on the Cascades that is causing significant drought and smaller and warmer trout streams. This isn't some strange phenomenon that we imagine might happen in the future; it is happening at this moment. We have high tides that are now covering the sidewalks of cities on sunny days. We have moose dying of ticks because it is not cold enough to kill the ticks in the winter. We have lobsters off Maine traveling further into Canada while they start to get fish from the Carolinas. It is everywhere we look. It impacts the economy of our country, particularly our rural economy of fishing, forestry, and farming. His response was simply: We need to keep talking to people about it. He says it is an issue, not particularly urgent, not necessitating American leadership, but just something we should be at the table for--not at the table to urge others, just be at the table. That certainly misses the size of this challenge to our planet. Here we are, 12 days into the Presidency with major international problems occurring, and we have a nominee who, on issue after issue after issue, lacked a moral compass or insight about the complexity of issues, about the principles of our Nation. So for these reasons, I am voting against the nominee. I may well be back to extend my remarks at another moment, but I am delighted to yield to my colleague from New Mexico who is standing by to make his remarks.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, citizens across the country are very concerned. In fact, they are more than concerned; they are terrified that our President is degrading the fundamental values on which our Nation was founded: religious tolerance, freedom of religion, the ability to worship as you please, and a fundamental principle that we would be welcoming to refugees, that we would be a nation that embraces immigrants. Tonight Lady Liberty is crying. She said, ``Give me your tired, your poor, your huddled masses yearning to breathe free,'' but our President has slammed the door on the tired and the poor and the huddled masses. It is an action the citizens in my home State have come out to protest. They have gone to the airport in Portland en masse 2 days in a row to say that we are welcoming to the world, that we are not going to slam the door shut on refugees, that we are not going to single out Muslim nations and say: We do not want you here. Indeed, I held two townhalls over the weekend. The first was in a gymnasium about this size. There were 600 people jammed into it. They are very upset and angry that our fundamental values are being disregarded by the President of the United States. Then I went to my second townhall. I thought 600 was a lot; there were 3,700 Oregonians who came out to my second townhall. Every one of them is wanting to send a message to President Trump: You are taking us on the wrong road--a road that hurts people around the world, a road that hurts our fundamental values, and a road that decreases our security. This Executive order, this Executive action from the President has had an immediate and painful impact--hundreds of people en route to our country detained at airports although they were legally traveling here. Many of them have been vetted on extended periods, some of them going through several years of vetting, and finally they have in their hand that visa that says, yes, I am going to have a country, and it is going to be the United States of America. And the President crushed that hope. Chaos and confusion abounded. Lawyers and protesters and advocates descended on airports everywhere across this country to tell the administration that there is no mandate, no public will for this path that is so destructive to our values. They came out to say: Mr. President, when you tear down women in America, we stand with the women of America. Mr. President, when you tear down the disabled, we stand with the disabled of America. Mr. President, when you tear down African Americans and Hispanics, we stand with African Americans and Hispanics. And, Mr. President, when you tear down Muslims, we stand with our Muslim brothers and sisters because this is the United States of America, where we value religious freedom, where we value religious tolerance. This is a nation of immigrants. If you are not 100 percent Native American, then you are either an immigrant yourself or you are the child or the grandchild or the great-grandchild of an immigrant. Most of us can track members of our family who came from the ravages of war or the ravages of drought or the ravages of oppression to come here to this soil, this land of freedom. James Madison remarked: ``America was indebted to immigration for her settlement and for her prosperity.'' This remains just as true today as it was in Madison's day. Here we stand, but the President of the United States has denied access to our Nation to a group of people based on nothing more than religious beliefs, betraying our values of religious tolerance and shutting the doors on refugees. The President has said this is not a ban on those of the Muslim faith, but of course it is a ban on those of Muslim faith because it is a ban on seven nations that are Muslim nations, with an exception made for individuals who are Christians so it is nothing more than a ban on Muslims. The President says this is about protecting our citizens, but let us be very clear about that. Numerous refugees have come to our land, numerous immigrants, and there have been zero fatal terror attacks carried out by the immigrants from the seven countries listed in the order. Zero. We have been attacked by individuals from other countries which are not listed in the order, from Saudi Arabia, United Arab Emirates, Egypt, and Lebanon. Those nations aren't listed on this order. What we do know is that this ban does not make our Nation safer. National security experts recognize that it does exactly the opposite. By signing this Executive order, the President has betrayed our most fundamental values and principles, antagonizing 1.6 billion citizens of the world, and given our enemies ammunition for their false narrative that America is at war with Islam because that is exactly what they have used to recruit. That is exactly what they have used to increase and pour fuel on the fire to persuade people to attack Americans. The President has basically handed them this argument--this false narrative--and put our Nation at risk. Former CIA Director Gen. Michael Hayden said to National Public Radio this morning, ``In fact, what we're doing now has probably made us less safe today than we were Friday morning before this happened, because we are now living the worst jihadist narrative possible, that there is undying enmity between Islam and the West.'' I share the value of Daniel Benjamin, the former Coordinator for Counterterrorism at the State Department, who said this: ``It sends an unmistakable message to the American Muslim community that they are facing discrimination and isolation,'' and that message, he said, will ``feed the jihadist narrative that the United States is at war with Islam, potentially encouraging a few more Muslims to plot violence.'' This is the wrong move in every possible way. It is ill-considered, it is hasty, it is dangerous, it is wrongheaded, it puts American citizens at risk, and it helps our enemies. Benjamin Franklin once said: ``Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.'' In this case, President Trump's Executive order has degraded both our liberty and our security--both our liberty and our safety. We have turned our backs on friends and allies who are helping us in the war against ISIS. The President has made it clear that he wants to take on ISIS as we had been, but he wants to amplify it, and he has sabotaged that effort with this Executive order. There are individuals like Hameed Khalid Darweesh, who worked for more than a decade for the United States as an interpreter in Iraq. Our interpreters place their lives at risk to assist our soldiers. They place the lives of their families at risk to assist the United States of America. This man risked his life for more than 10 years for us, and how is he greeted when he arrives here in our country? He is greeted with handcuffs. Muslim Iraqi interpreters like Mr. Darweesh have earned the right to come to America. They risked their lives and their family's lives. They assisted us in multitudinous ways. What about this ban on refugees? Refugees are the most thoroughly vetted of all those who come to the United States. If a terrorist wants to come to the United States, a terrorist wouldn't attempt to come as a refugee. It would be 1 to 2 years of waiting in miserable conditions in a refugee camp, with all kinds of vetting, and they might never get permission to come. If you want intense vetting, then look to how we vet refugees. Blocking women and children and interpreters from coming to our country who have been the most thoroughly vetted of all potential immigrants is simply wrong. In fact, the model for vetting refugees is intense. Women and orphans are just searching for a safe haven, but we have turned our back and we have slammed the door. America is better than this. For centuries we have been a beacon of hope to the world. We have been a beacon of justice, a beacon of compassion, and we must restore our Nation as a beacon of hope, justice, liberty, and compassion. Millions of Americans are coming out in the snow and the rain and in some places in good weather. They are coming out in any possible conditions to speak out and say: This is not America. This is not us. Change paths. Tear down this ban. Tear down this ban that has slammed the door on refugees. Tear down this ban which has placed our Nation at risk. Let us together put our Nation back on track. Let us together fight for the values that made America great for the last two centuries. Let us together fight for the richness of our culture and our community, the strength of our society that comes from being a nation of immigrants. We need to act and act urgently. Mr. President, I yield the floor. I suggest the absence of a quorum.

Mr. MERKLEY

Mr. MERKLEY. I object.

Mr. MERKLEY. I reserve the right to object. Mr. President, I was very gracious in agreeing to a unanimous consent request that would grant me 10 minutes. That was cut short by the filibuster of my colleague, who repeatedly brought me into the conversation and refused to yield for my question. So I ask unanimous to have 2 minutes to close.

Mr. MERKLEY. I reserve the right to object.

Mr. MERKLEY. Mr. President, I believe I have the floor.

Mr. MERKLEY. Less than 10 minutes.

Mr. MERKLEY. Mr. President, we have a longstanding tradition in our country of civilian control of government and civilian control of the military. This was first symbolized by George Washington through his act of resigning as Commander in Chief for all of the Continental Army on December 23, 1783. It is a tradition, or a moment in time, that is preserved on the walls of the Rotunda where a mural depicts Washington's noble and selfless act. Our early days were full of the warnings of a standing Army and of ongoing military control at high levels, and those ideas came from Thomas Jefferson and from Alexander Hamilton and from Samuel Adams. When we came to the point in our history where we realized that a continuing military force was necessary, we preserved the importance of civilian control. We did so for a host of important reasons, which others have pointed out on this floor but I think are worth restating. It is important to have a Secretary of Defense who brings a broad world view that includes a civilian perspective to the position. Second, it is important not to politicize our officer ranks and have them essentially competing to position themselves to hold this position of Secretary of Defense. Third, we do not want the services competing against each other in order to hold this position. This is why the Joint Chiefs of Staff position is rotated on a specific schedule. And if we have a Secretary of Defense come from one military service, then another branch of service is going to say: Next time it should be our turn. The Marine Corps today, the Air Force tomorrow, the Army after that, and then the Navy. That is not the position we want to end up in. We also know that across the world, countries wrestle with preserving civilian control; that is, preserving democratic republics in the face of the power of military machinery in their country, military organizations, and we see military coups and we see massive military influence. It has been the desire of our country to model a republic that is of the people, by the people, and for the people, not a nation that becomes controlled by a massive concentration of power in the military. Now my colleagues--many of whom are very learned in the history of our country--have arisen to say that there is a set of special circumstances, a unique set of circumstances, that merit an exception, and they note that there was an exception once before in our history. That exception was the appointment of George C. Marshall to become Secretary of Defense in the time following World War II. But think about how many circumstances we face in the world that can be put forward to be an exceptional time. It was exceptional when terrorists used planes to attack the Twin Towers in New York City and our Pentagon, and had not one plane gone down, the additional target may have been the Capitol or the White House. That was an exceptional moment. It is an exceptional moment when we are fighting Al Qaeda. It is an exceptional moment when we are fighting ISIS. It is an exceptional moment when Russia invades Ukraine and takes over Crimea. There is an exceptional moment almost continuously in the face of a complex and changing world. So I stand on the side of maintaining the principle of civilian control. Each time we violate this principle, it is easier next time to say: It has been done before. But the conversation will not be ``We did it once half a century ago, and so we should do it again,'' it will be ``We did it twice, once quite recently when we weren't facing a world crisis. Nobody had invaded the United States. We had not just lost a couple hundred thousand folks fighting for our country in a world war.'' So the conversation will get easier and more fragile, and that is not the direction we should go. It was Eisenhower who warned about the overreach of a military enterprise--the ``military industrial complex,'' as he referred to it. But one piece of our structure of government that has held back is to maintain that principle of civilian control. Can anyone in this room rise up and say that out of the thousands of experienced individuals who have both national security experience and civilian experience, there isn't one who currently meets either the 10- or 7-year standard of separation? I am sure there are hundreds who could meet that standard. So here we are. If we could send a message to the President-elect: We reject your effort to eviscerate civilian control. Send us someone who is qualified. And if we feel that person is so far out of the reach of reason--which is what I have been hearing from my colleagues in private conversation, terrified that this President-elect will nominate somebody who basically is unhinged, that we have to seize on this moment to take this individual because this body won't have the courage to turn down and reject an unhinged individual nominated by this President-elect. That is a sad commentary on the leadership of this body. It is a sad commentary on what has become of the U.S. Senate that we wouldn't have the courage under our advice and consent power to turn down someone we saw as unfit. That is, in fact, how we are charged under this Constitution, under the advice and consent clause. It was Hamilton who laid out that it is our responsibility to determine whether an individual is of fit character or unfit character, and we would retain that power for any nomination that, in the collective judgment of this body, did not meet that standard. So let's sustain the principle of civilian control and reject this change.

Mr. MERKLEY. I ask my colleague from Arizona if he will yield for a question.

Mr. MERKLEY. Mr. President, reserving the right to object.

Mr. MERKLEY. Mr. President, I agreed---- Mr. McCAIN addressed the Chair.

Mr. MERKLEY. I object.

Mr. MERKLEY

Mr. MERKLEY. Madam Clerk, how am I recorded?

Mr. MERKLEY.--I vote no.

Mr. MERKLEY. Because repeal and run will hurt hundreds of thousands of Oregonians--

Mr. MERKLEY

Mr. MERKLEY. Mr. President, the Hippocratic Oath that guides health care practitioners begins with these powerful words: ``First, do no harm.'' This is certainly good guidance for our doctors and other health care practitioners, but isn't it good guidance also for those who are in the realm of health care policy, for those who are health care policy practitioners, as well as the doctors themselves? ``First, do no harm.'' Those powerful first words of the Hippocratic Oath, very relevant to this discussion, are being ignored by my colleagues across the aisle, by the Republicans who have come to power and said: We are going to dismantle health care across this Nation for millions of Americans, and we don't know what we are going to do next. We are going to repeal this plan, and we are going to run away, and in a few years we might figure out how to replace these health care provisions. This is an irresponsible perspective. We hold in our hands the health care challenges of America, and to repeal and run will do a tremendous amount of harm. The irresponsibility of it is terrifying families across America. They are scared of what the future holds, of the uncertainty that awaits them under this strategy of making America sick again. Folks are afraid that if they have ever been sick or injured they will soon be denied coverage because they have a preexisting condition. They are afraid that they may be one of the more than 20 million Americans who will lose insurance, having gained insurance and access to affordable quality health care through the ACA. They are scared that premium hikes will make health care unaffordable to lower and middle-income Americans. They are afraid of an unforeseen emergency wiping them out financially, driving them into bankruptcy. Our seniors are afraid as well. They remember the situation that existed before they reached 65 or if they had health care needs and didn't have insurance, they had to wrestle between paying for their prescriptions or paying their heating bills. They don't want to be in that position again. They know how much progress we have made by filling the doughnut hole that paid for prescriptions throughout the continuum, and they don't want us to go backward. From so many different directions, Americans are terrified of the Republican repeal-and-run strategy threatening to do harm to their lives. How do I know this? I know this because they are writing to me and to my colleagues, and we are sharing those stories tonight. The letter I have from a young woman in Portland starts out: I must implore you to protect the ACA. Its existence saves the lives of millions, including mine. I was born in full renal failure. I currently maintain Stage 3 renal function with the help of prescription medication. If I am unable to afford my medication, I will enter end-stage renal function, i.e., kidney failure. I will die. She ended her message by saying: I am so scared. . . . I am only 26, I have so much more to do. Cameron of Beaver Creek writes: My wife and daughter both have chronic health conditions, and the ACA has allowed us to have them covered by health insurance despite having preexisting conditions. If the ACA is repealed, we will lose this protection and I don't know how we could afford to pay for their medical costs directly. Lisa in Wilsonville wrote to me about the impact that repealing the ACA will have on her special needs daughter. Lisa says: ``If the ACA is repealed, we lose funding that directly impacts her programs, her respite care, her Medicaid, and I will no longer get support to take care of my daughter.'' Just before Christmas I got a message from Nick in Portland. Nick wrote to share his story of a recent medical emergency that threatened his life. He said: Without notice this past March, my heart suffered a debilitating viral infection which resulted in congestive heart failure. As things stand, I require a new heart, and await that occurrence with patience and resolve. Thanks to the ACA, I was able to purchase health insurance the month prior to that diagnosis. Without it, I don't know how I could have paid for my initial three-week hospitalization. . . . Without it, my ability to obtain a replacement organ would be uncertain. And without it, I envision a bankruptcy filing as the only viable financial option. Those individuals are writing about their challenges as patients, but doctors are also writing to share their observations as folks who see hundreds of patients in the course of a year. Meg writes: I have practiced both before and after the Affordable Care Act, and witness the sense of hope and relief the expansion of Medicaid in Oregon brought to my patients who are facing serious illnesses. We have been able to participate in community and state level innovations to help transform health care delivery, lowering costs, improving outcomes, and making people's lives better. Isn't that what we should be about? Not a strategy of doing harm to millions of Americans but a strategy to make these people's lives better. A physician from Roseburg, a hand surgeon, wrote about the challenges that he and his wife face, the serious medical challenges, and says: Prior to the Affordable Care Act, we were uninsurable due to these preexisting conditions. It seems clear that the ACA will be repealed, and we, among millions of other Americans, will again be uninsurable. This will not simply be a matter of insurance being expensive; it will be a matter of the insurance not being available at any cost. And he continues: So I am pleading to you to enact legislation prohibiting insurers from denying the ability to sell policies to individuals with prior medical conditions. The health of millions of Americans rests on your shoulders. And I might add that the health of millions of Americans rests on the debate and the discussion and the decision of the U.S. Senate. Angela, another doctor in Portland, wrote about her work with the LGBTQ community, saying: The loss of the affordable care act will be devastating to my community. We have only just won the right for patients to access medical care, hormones and surgery in the last year. I have seen a great improvement in my patients' well-being and mental health over the last year with these new privileges. With the loss of the affordable care act many of my patients will be devastated. There is a 50 percent suicide rate in the transgender community already. Please help me prevent any further suicides by protecting the affordable care act. There is message after message after message saying ``first, do no harm.'' That means we as a body need to come together and move away from this reckless repeal-and-run strategy being proposed by the Republicans. People are writing to express their fears and frustrations and they are calling on us to do the right thing--folks like Meg and Nick and Cameron and Lisa and Douglas. Their lives are better because we enacted the Affordable Care Act. These folks are writing because they are among the millions of people who are affected by the changes in this law--the millions who gained insurance coverage because of the law or they are among those who gained coverage because of the extension of Medicaid or they gained coverage because tax credits made health care affordable to lower and middle-income families or they are among the 27 million Americans who live with preexisting conditions who couldn't get insurance on the private market or they are among those who lost coverage because of annual or lifetime limits before the ACA. These stories are powerful because these individuals are on the frontline, and health care is essential to their quality of life, not just in America but in any location on this globe. There is enormous stress connected with a faulty health care system, and what we have achieved with the Affordable Care Act is peace of mind for millions of Americans--peace of mind that there will be the care in place when they need it, that they will be able to afford it and they won't be bankrupt, that their loved ones will be able to have their health care challenges addressed. Folks used to come to my townhalls and say: Senator, I am just trying to stay alive till I reach 65 because I have a preexisting condition and I can't get medical care. Can you imagine the stress involved with that? Folks would say: I would love to get insurance and address the health care issues I have, but I can't because I can't afford it. And now they can afford it because of the subsidies provided through the ACA. There was a woman who came up to me at a multiple sclerosis fundraising march and she said: Senator, things are so different this year. I said: What do you mean? What has changed? She said: A year ago, in the MS community, if you got a diagnosis and you didn't have insurance, you wouldn't be able to get insurance because you had a preexisting condition. She said: If you did have insurance, it is a mysterious and expensive disease, and because of annual limits or lifetime limits, you would probably run out of health care. Now we have the peace of mind to know our loved ones will get the care they need. That is what we are fighting for--to first do no harm and, second, make life better for millions of Americans. Let's come together and defend these massive advances that we have achieved over the last few years and not destroy it with this reckless, irresponsible repeal-and- run strategy. Thank you, Mr. President.

Mr. MERKLEY

Mr. MERKLEY. This is clearly a provision that goes completely against the normal framework of a biological opinion, and, indeed, that is not the whole part of 4003. It goes on to say that this section shall not affect the biological opinion unless the Secretary of Commerce finds such applicable requirements may be adjusted. It basically says the Secretary of Commerce can violate the biological opinion. How clear can that get? Then it continues even further, and it says: Water transfers exclusively through the State water project are not required to be consistent with section (a)(1)(H) of the Central Valley Project Improvement Act. Well, of course you are wondering what that part of the act is, and that part of the act is one that says you can't violate the fish and wildlife obligations in the process of pumping water. OK. That is wiped out by this. Clearly, case after case after case, this bill is a raid on the water of Northern California to basically pump it through in violation of biological opinions and in violation of the Endangered Species Act, and it is an assault on 20,000 fishermen and fisherwomen. That is what is wrong with this airdropped provision that never went through the committee in the Senate, and it didn't get to the floor of the Senate. We didn't have it offered as an amendment on the floor and have a vote and debate on this floor. It didn't go through the House. It wasn't debated there. It was airdropped in on a conference committee. Water is a precious resource, and this pits the salmon industry against the Central Valley farmers and says we are ruling for one over the other by violating the biological opinions necessary for the salmon and the smelt to survive. That is just wrong. It says something else. It says the power of this body to authorize dams is being wiped out because no authorization is needed anymore by this body. Now, a colleague came to the floor and said, well, not really because the Senate would still have to provide some funds in an appropriations bill, but we all know how appropriation bills work. They are massive. They come out of conference at the last second. There are little things tucked in there. Taking away the process of an authorization debate on the merits of a dam nullifies the role of this body in implementing smart decisions about whether dams make sense or don't make sense under a particular set of conditions. Some make sense, some don't, and that is why we come through and we have an authorizing discussion. This guts that. This is a terrible precedent for legislation that will come in the future, and it is terrible at this moment for the damage to the water in these upper rivers that actually flow backward and is authorized by this bill. It is a terrible provision for the salmon that 20,000 fishermen and fisherwomen depend on, and it is a terrible precedent for every other ecological discussion. That is why every major newspaper in California has written an editorial saying: Don't do this. Don't do this, says the Mercury News editorial board. They proceed to say it ``would gut environmental protections and have devastating long-term effects on the Sacramento-San Joaquin Delta's ecosystem.'' It says this last-minute, closed-door provision ``allows maximum pumping of water from the Delta to the Central Valley and eliminates important congressional oversight over building dams . . . dramatically roll back the Endangered Species Act . . . perhaps paving the way for its repeal . . . or gutting.'' It says: ``We're not sure whether the Republican sweep in November means Americans no longer care about clean air and water, but we're about to find out. In the interim, the Senate and if necessary president need to protect the Delta. . . . `' That is what the Mercury said. The Los Angeles Times editorial says: ``A water deal that's bad for California's environment,'' and it goes on. It says: ``The regrettable conclusion must be that the so-called drought provisions are unacceptable.'' It notes that ``the proposed drought-year legislation would appear to be directly at odds with current, laudable efforts by the State Water Resources Control Board to ensure the presence of enough water in the lower San Joaquin River--close to the delta pumps-- to sustain migrating salmon, which are not merely another fish but integral to California's ecology, culture, and history'' and certainly to Oregon's ecology, culture, and history. We have the San Francisco Chronicle, which is simply entitled: ``Stop . . . water-bill rider.'' It proceeds to conclude, after a couple of extensive analyses, it says: Drought and warming temperatures . . . are tipping off mass extinction of the species in the San Francisco Bay and its estuary. We have to work to share water among people, farms and the environment of California--not try to benefit one interest with a midnight rider. Here we are 15 minutes from midnight. Multiple provisions raid the water, changing the status quo that has been carefully worked out with biological opinions. Multiple newspapers say it is just wrong so let's take a moment and say let's cut this provision out of this bill. Let's put this bill on hold until it is gotten rid of because it is wrong to have an airdropped provision on a challenge of maintaining a viable salmon industry debated on a midnight rider.

Mr. MERKLEY. Madam President, what is at issue here? The core issue is whether we raid the waters of Northern California to provide additional water to the farmers of the Central Valley and in so doing whether we wipe out the salmon which provides jobs for 20,000 fishermen. It is a powerful piece of our economy, a piece of our history, and a piece of our soul. That is what is at issue here-- whether we drain these rivers. It has been said there is nothing in this bill that changes how the biological opinions will be applied or the Endangered Species Act will be applied, and that simply is not the case. I will walk you through the three core provisions that are in this bill. The first is section 4001. What it does is set up a pilot project, and that pilot project allows circumvention to biological opinions to open up the delta cross-channel gates. What does that mean? It means when the salmon are returning from the ocean to spawn, these gates are kept closed so the salmon do spawn and continue the cycle of life and productivity, but instead this says no and this pilot project will open the gates and then the salmon get diverted from going up the river. They don't spawn, it doesn't continue, and then it says, we will go ahead and study the impact on the salmon. That is measure No. 1 that bypasses the Endangered Species Act. The second provision, 4002, says the Bill Jones and Harvey Banks Southern Delta Pumping Plants must operate at the very highest level of the spectrum of the biological opinion. The way these biological opinions work is they say we need to operate somewhere between here and here, and then as the scientists observe what is going on, the amount is adjusted. What this section says is, no, we are not going to operate the normal way, we are going to insist in this bill that you must operate at the highest level, disregarding the scientific information on the impact on the salmon and on the smelt. That is provision No. 2. Then they get to the one that is really the biggest shocker, 4003. This says the Secretary of Interior and the Secretary of Commerce, through an operations plan, may operate at levels--get this--that result in the Old and Middle River flows more negative than the most negative reverse flow prescribed by biological opinion. Have you ever heard of negative river flow? What does that mean? It means water doesn't flow downstream. It means so much water is drained that the remaining water in the river kind of flows upstream at the point it is being diverted. This says that in the range that is allowed by the biological opinion, the Secretary of Commerce or Interior can take even more, way outside the ban authorized by biological opinion.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, reserving the right to object, I have been on the floor here waiting for 2\1/2\ hours to deliver my speech on WRDA, and I don't think my colleagues across the aisle have been here for that amount of time. Maybe we should stick to the list that has been worked out on both sides.

Mr. MERKLEY. Mr. President, reserving the right to object, there has been a list that has been worked out for both sides. Many of us have been waiting many hours to deliver our speeches, and I believe what the Senator is proposing modifies that considerably.

Mr. MERKLEY. Mr. President, reserving the right to object, I believe my colleague makes a persuasive argument. Many did come to the floor to share in that important dialogue regarding extending health care for our miners, and given that, I take the Senator's point, and I look forward to speaking later.