Energy Policy Act Of 2005
ENERGY POLICY ACT OF 2005 -- (Senate - June 23, 2005)
Mr. SCHUMER. Mr. President, I thank my colleague from Vermont, our leader on the Judiciary Committee, for, as usual, being right on point with eloquence and with no malice.
As many know, there is a real possibility that a vacancy on the Supreme Court will be announced shortly. The Supreme Court should finish its term either Monday or Thursday, depending on the caseload.
There is one question American people are asking about the Supreme Court; that is, how, if and when a vacancy occurs--and we all pray, of course, for Chief Justice Rehnquist's health, but if and when a vacancy occurs--how do we avoid the divisiveness that has plagued this body, this town, and this country about Court nominees over the last several years?
The answer is simple. It can be described in one word: consultation. The ball is in the President's court. If the President chooses to do what he has done on court of appeals nominees--not consult, just choose someone, oftentimes way out of the mainstream, and say take it or leave it--the odds are very high there will be a battle royal over that nomination. If, on the other hand, the President follows the path of what so many other Presidents before him have done--consults with the Senate, with the Congress, both Republicans and Democrats, and takes their advice to heart--we can have a smooth, amiable, easy Supreme Court nomination.
Again, the ball is in the President's court. Consultation is part of the constitutional process, advise and consent. The Founding Fathers did not use words lightly. The relatively short document of our Constitution is amazing for its brilliance and its brevity. When they decide to put a word in like ``advise,'' lots of thought has gone in before it. ``Advise'' means seek the advice of the Senate. It does not say in the Constitution, seek the advice of your party or seek the advice of people who agree with you. The intention, it is quite clear, is to seek a breadth of advice.
That is why, today, a letter signed by 44 of the 45 members of the Democrat caucus, asking the President to consult with us, will be sent. The 45th member, Senator Byrd, agrees with the thrust and the concept of our letter but felt so strongly about the issue he is sending his own letter, which I am sure will be in his own wonderful style and make the point well.
The need for advice, the need for consultation, was made clear when the group of 14--seven Democrats and seven Republicans--got together. In their agreement, they wrote:
We believe that, under Article II, Section 2, of the United States Constitution, the word ``advice,'' speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
This is a moderate, bipartisan group. They tend to be some of the more conservative Democrats and some of the more liberal Republicans. It is certainly mainstream. Will the President heed their advice and seek the advice of the Senate? If he seeks advice, will it be real? To simply call someone in for a meeting and say, what do you think, and then go about things as if the meeting did not happen is not advice. Real advice means talking about specific nominees in private, saying: What do you think of this name or that name, this person or that person? That is, indeed, what President Clinton did as he consulted Senator Hatch, hardly his ideological soul mate, and many others. Senator Hatch told President Clinton some proposed nominees might be out of the mainstream and garner opposition, at least from the other side of the aisle. But some, even though Senator Hatch clearly did not agree with their politics, were in the mainstream and would get through the Senate with relatively little acrimony. President Clinton took Senator Hatch's advice and the nominations were smooth.
That is not the only time advice has been sought. In 1869, President Grant appointed Edward Stanton to the Supreme Court in response to a petition from a majority of the Senate and the House. In 1932, President Hoover presented Senator William Borah, the influential chairman of the Foreign Relations Committee, with a list of candidates he was considering to replace Justice Oliver Wendell Holmes.
Borah persuaded Hoover to move the name of the eventual nominee, Benjamin Cardozo, from the bottom of the list to the top, and Cordozo was speedily and unanimously confirmed.
There are many instances of Presidents seeking the advice in terms of the advice and consent of the Senate. When the President has done it on judicial nominees here, it has worked. Frankly, the President and the White House have consulted with me about nominations to the district courts in New York and the Second Circuit Court of Appeals. They have actually bounced names off of me and said: What do you think of this one? What do you think of that? As a result, every vacancy is filled quickly with little acrimony and with broad consensus.
Most of the nominees I have supported in my area do not agree with me philosophically. But they are part of the mainstream, and I was willing, able and, in many cases, happy to support them. So it can be done and should be done.
There is all too much divisiveness in Washington. On the issue of the courts, it is our sincere belief on this side of the aisle that the President's refusal to consult and willingness to nominate some who are so far out of the mainstream that they cannot be regarded as interpreters of law rather than makers of law. That is the main reason we stand at this point of great acrimony in terms of judicial nominations. All of that can be undone by some sincere consultation.
President Bush, when he ran for office and got into office, said he wanted to change the tone and climate in Washington; he wanted to bring people together. That was a noble sentiment, a wonderful sentiment. He can, despite the acrimony that has occurred on judicial nominations and so much else over the last few years, almost like with a magic wand, undo much of it by seeking real consultation should there be a vacancy on the Supreme Court.
On behalf--I believe I can say this without any hesitation--of all 44 of my colleagues on this side of the aisle, we plead, we pray, with the President to engage in real consultation, to heed the advise and consent of the Constitution, and to come up with a Supreme Court Justice, should a vacancy occur shortly, that we all--from the most conservative to the most liberal Member of this body--can be proud to support.
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Mr. SCHUMER. Mr. President, I am sorry I was at the DPC lunch, but I heard that a number of my colleagues had a little debate about consultation, a letter that 44 of the 45 Democrats sent to the President today, and the 45th, Senator Byrd, agreed in theory with the letter, agreed in the sentiments of the letter but wanted to write his own. He felt so strongly about it, he told me, that he wanted to put it in his own words.
All of a sudden we are hearing two things from the other side about consultation. First--and I could not believe this statement--my good friend from Texas, Senator Cornyn, said the Democrats are being political. If 1984 has not arrived, when asking to consult and bring people together is political and asking to be divided and not consult is nonpolitical, I don't know what is. This is 1984. We are asking the President to bring people together. We are asking the President to follow the Constitution. There is the word ``advise.'' And all of a sudden that is called being political? Please, give me a break.
The American people have asked us--every one of us; we can be from any one of the 50 States, we can be of any political philosophy, and I am sure we are asked when we get home: How do we break this partisanship on judges? The wisdom of the Founding Fathers, as always, is usually best. They recommended advise as well as consent, meaning consult. And here we, in a way--all the Democrats--in a desire to avoid confrontation, asked for consultation, and we are called political?
It seems to my good friend from Texas the only thing that is not political is we just say yes to whatever the President asks. That is not what we will do, and that is not what America is all about.
Our letter, I say to the American people, was heartfelt.
Our letter said: Let us avoid the confrontation on judges. The only way to do it is by consultation, plain and simple. President Clinton consulted. He called Senator Hatch at a time when Senator Hatch was not in the majority. According to Senator Leahy, he told me this morning that Senator Hatch at that time--it must have been 1993 or 1994--was the ranking minority member, and as I understand it President Clinton bounced names off Senator Hatch: How about this one, how about that one?
Senator Hatch was wise enough to know that he was not going to get a conservative. The President would not nominate a conservative, just as we know and do not expect the President to nominate a Democrat or a liberal. We know that. But there are always shades of gray which only the ideologues of the hard right and the hard left never see. There are people who are mainstream conservatives who would be acceptable to most of us because we believe--my test, and I think it is the test of most of us is not on any one issue but, rather, would be people who would interpret the law, not make it.
I do not like judges who are ideologues. I do not like judges at the extremes. Obviously, the President has nominated some judges at the extremes, but my judicial committee, under my instructions in New York, where I get a say in nominations, knocks out anybody on the far left. That is because ideologues want to make law. They are so sure they are right that they can ignore everybody else.
Consultation is what it is all about. In my judgment, consultation is the only way to avoid the kinds of confrontations which I am sure none of us likes when it comes to judges. To call it political, that does not pass the laugh test.
Then I heard--and again, I was not here--that my friend from Texas and I believe my friend from Kentucky were having a debate on what should be allowed to be in the record in terms of if and when a Supreme Court Justice is nominated. I was told, Well, what they considered and argued while in court should not be considered because they were representing a client, or it should not be this or it should not be that.
The nomination and the confirmation of a U.S. Supreme Court Justice and a U.S. Chief Justice is one of the most important things we shall do as Senators. Let me put my colleagues on notice: Everything should be on the record--everything. Some will have less importance, some will have more importance, but to already, before someone is even nominated, start saying, Oh, this should not be part of the record, that should not be part of the record, sounds a little defensive.
I suppose we should not know anything about the nominee; just take the President's recommendation. Well, again, read the Constitution, I would advise my colleagues, with respect. It does not say the President determines who are Supreme Court nominees. In fact, for two-thirds of the period when the Founding Fathers wrote the Constitution, they had the Senate choose the Supreme Court. The only reason they changed it to have the President nominate is--I think they called it unity of purpose. They thought having--then it was probably 30--26 people try to choose 1 nominee was far more difficult than 1 choosing a nominee. But make no mistake about it, they wanted the Senate to be very active. In fact, as we know from our history and we have repeated on this floor, although it does not seem to make much of a dent, the early Senate rejected one of George Washington's nominees, and I believe in that Senate there were eight Founding Fathers.
They ought to know better than any of us. Here we are saying this should not be part of the record, that should not be part of the record. Maybe my colleagues are being a little defensive. Maybe they do not want--I do not know who the nominees will be. I have no idea. But maybe they are worried that if all the facts came out, the American people might not want the nominee. I am of the other view. Justice Brandeis stated that sunlight is the greatest disinfectant. The more we see and the more we learn, the better we will be prepared.
I see my good friend, our great leader from Hawaii, has come to the floor of the Senate, and I do not want to delay him.
In conclusion, one, we plead with the President to consult with the minority, as President Clinton did, as President Hoover did, as President Grant did, and as so many others. That will make the process go more easily. When the American people ask us what can avoid the kind of confrontation we have seen with judges, there is a one word answer: consultation. Advise, as in advise and consent.
The ball is in the President's court. He can determine whether we have the kind of process the American people want--careful, thorough but harmonious, without acrimony, by consulting--or he can be like Zeus from Mount Olympus and throw down judicial thunderbolts and say: This is the nominee. Then maybe some of his minions will say: You cannot admit this fact about the nominee or that fact about the nominee or that fact about the nominee. That is not legitimate. That will not create a harmonious process in this body.
We are on the edge of perhaps a nomination for the U.S. Supreme Court--again, one of the most important things we Senators do. Let us hope, with consultation, it will occur in a harmonious and bipartisan way.
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AMENDMENT NO. 810
Mr. SCHUMER. Mr. President, I rise today to offer an amendment with my colleague from Arizona to strike language from this Energy bill that would undermine years of progress toward combating nuclear terrorism in an effort to solve a problem that does not exist.
I want to repeat myself for the benefit of my colleagues. By weakening existing law, section 621 of this Energy bill would drastically undercut efforts to encourage reductions in the circulation of weapons-grade uranium and to defend against the specter of nuclear terrorism.
I have often said that the prospect of a nuclear attack on America's soil is our nightmare. That is why I, like many of my colleagues, have been so aggressive in pushing the administration to install nuclear detection devices in our ports, and to take other measures to make sure that nuclear materials cannot be obtained by terrorists and used against us. The human, environmental, and economic impact of such an attack on the United States--any part of our dear country--would be almost unfathomable.
So I urge my colleagues to contemplate that when they are examining what exactly the provision in the Energy bill would do. For years, we have prohibited what this provision of the Energy bill would allow.
The supporters of the language claim that it is necessary to avert an impending crisis in the supply of medical isotopes used in radiopharmaceuticals. A look at the current isotope industry raises some serious questions as to whether that is what is really going on here. Isotope producers currently make isotopes for use in radiopharmaceuticals and other products by taking a mass of fissionable material, known as the fuel, and using it to shoot neutrons through another mass of fissionable material; that is, the target. Reactors have traditionally used highly enriched uranium, HEU, which can be used to make a nuclear bomb, for fuel and targets.
The Law that we enacted over 10 years ago, in the Energy Policy Act of 1992, has encouraged reactors to shift to low-enriched uranium. And the difference is very simple. It does the same medically, but it cannot be used to create a nuclear weapon. What we do in present law is require that any foreign reactor receiving exports of United States HEU, highly enriched uranium, work with our Government in actively transitioning to LEU, low-enriched uranium, the kind that cannot be used in bombs. It makes common sense, complete common sense. Why the heck would we want to encourage companies to have HEU?
Now, the language in the Energy bill undoes that. After 12 years of it working, after 12 years of everyone getting the medical isotopes they need, and after 12 years of moving countries away from HEU--highly enriched uranium, which bombs can be made from--to LEU, the language in the Energy bill needlessly and dangerously undercuts this requirement. What does it do? It exempts research reactors that produce medical isotopes from current U.S. law.
As our Nation continues to fight the war on terror, now is clearly the wrong time to relax export restrictions on bomb-grade uranium and potentially increase the demand for that material.
By increasing the amount of HEU in circulation around the world, the language in the Energy bill would create an unacceptable risk by heightening the possibility that weapons-grade uranium could be lost or stolen and fall into the hands, God forbid, of terrorists with known nuclear ambitions.
What makes this language even more astonishing is that it creates so much risk for no reward by claiming to fix a problem that does not exist. Supporters of the language argue we are in danger of running out of medical isotopes if the current law is not changed. All of the isotopes that can be produced with HEU can also be produced with LEU, which has no danger to us. And under current law, no producer has ever been denied a shipment of the material necessary to produce isotopes. Let me repeat that. No producer has ever been denied a shipment of the material necessary to produce isotopes.
In fact, the Department of Energy's Argonne National Laboratory has declared that the proposition that our supply of medical isotopes is in danger because LEU targets have not been developed is incorrect, and the U.S.-developed LEU target ``has been successfully irradiated, dissembled, and processed in Indonesia, Argentina, and Australia,'' a move from HEU to LEU because of our law.
Mr. President, I would like to be clear about one thing. I do not intend to trivialize in any way the plight of those suffering from illnesses overseas that require isotopes to treat. My colleagues and I who support this amendment take this point seriously and are unequivocally supportive of making sure that patients can get the medicine they need. In fact, if current law hindered the ability to get isotopes and treat the sick, maybe this debate would be different. But that is not the case.
Under existing law, medical isotope production capacity has grown to 250 percent of demand. Let me repeat that. Under present law, which the Energy bill seeks to change, medical isotope production capacity has grown to 250 percent of demand.
In addition, I repeat, no medical isotope producer has ever been denied a shipment of HEU as a result of the successful incentivization of efforts to convert to LEU.
Existing law guarantees continued use of HEU to produce medical isotopes until LEU substitutes are available, so long as the foreign producers cooperate on efforts to eventually convert to LEU.
For example, exports to Nordion, a Canadian producer, have never been affected by current law, and the company which is at issue here has several years' worth of material stockpiled at soon-to-be-operating reactors. Quite frankly, maybe we have given them too much access and made them complacent. Despite the efforts of the United States to operate in good faith and keep supplying Nordion, this company has decided to resist and slow-walk the conversion process to LEU.
Why? Because it may inconvenience them or cost them a few more dollars in the short run. So for one company, not an American company, we are going to increase the chances of nuclear terrorism by whatever amount with no benefit other than to that company because everyone is getting the isotopes. Maybe they can save a few dollars. If they think that the Senate is willing to risk a catastrophe for their convenience, they have another thing coming.
Existing law does not jeopardize an adequate supply of medical isotopes. Instead, it has been successful in enticing foreign operators to begin converting to LEU, thereby reducing the risk of proliferation.
The record shows that the program works. As a result of existing law, reactors in several nations have successfully instituted measures to convert to LEU. The Petten reactor in the Netherlands, where the major isotope maker Mallinckrodt produces most of its isotopes, will convert its fuel to LEU by 2006 because of incentives in the current law.
The Department of Energy has recognized the importance of this goal and the effectiveness of the program. Secretary Bodman has said we should set the goal of ending commercial use of weapons-grade uranium, and that the LEU allows great progress toward that end. The Department of Energy's Reduced Enrichment for Research and Test Reactors Program Web site states:
This law has been very helpful in persuading a number of research reactors to convert to LEU.
So what we have here is an effort to undermine an existing program that has not had a negative impact on health care and has played a role in our fight against nuclear terrorism.
If the provision in the Energy bill does become law, make no mistake, it will create a proliferation risk. By increasing the amount of weapons-grade uranium in circulation, this bill would increase the likelihood that lost or stolen material would find its way into the wrong hands.
I know the list in this bill looks innocent enough with countries such as Canada, Germany, Belgium, the Netherlands, and France. However, four of these countries are members of the EU and subject to the U.S.-EURATOM Agreement on Nuclear Cooperation.
Under the agreement, these nations will not be required to inform the United States of retransfers of U.S.-supplied materials from one EURATOM country to another, report on alterations to U.S.-supplied materials, or inform the United States of retransfers of these materials from one facility in one country to another facility in that same country.
As a result, HEU could end up being directly sent to any of the 25 countries in the European Union, including those in which the Department of Energy is spending a considerable amount of money to remove existing HEU stockpiles.
So to my colleagues I say, if you support the language in the Energy bill, do not do it because of assurances that the countries the material is heading to are safe. In reality--in reality--we do not know this and cannot control where the material may end up. That is a terrifying thought.
In conclusion, the reality of this situation is that terrorists do not care if the weapons-grade uranium they can try to get their hands on was meant for a military or medical purpose. All we know they care about is how they can use it to attack our Nation and harm our way of life.
If we learned anything from the attacks on September 11, it should be that we can never again afford to underestimate the ingenuity or determination of those who would cause us harm. Likewise, we must take every step to ensure that they can never lay their hands on the materials they would need to launch an attack of mass destruction against the United States.
Mr. President, a needless risk is a reckless risk, and that is exactly the type of risk the language in the Energy bill lays before us. I urge my colleagues to support the existing law that has effectively combated nuclear proliferation without degrading the quality of health care in the United States by voting for my amendment, along with the friendly second-degree amendment that my colleague from Arizona, I believe, will offer.
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AMENDMENT NO. 810
Mr. SCHUMER. Mr. President, I call up my amendment No. 810.
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Mr. SCHUMER. Mr. President, again, the argument is simple: Do we want nuclear proliferation? If we do, we allow highly enriched uranium to be floating around the world with very few checks.
There is no issue of health. Let me repeat: Everyone, every single person in this country and in other countries who needs isotopes has gotten them. Let me quote from Physicians for Social Responsibility, a group that has been involved: Contrary to its stated intent, section 621, the new section added to this bill, would do nothing to ensure the supply of medical isotopes to the United States because that supply is not currently endangered by restrictions on exports of HEU.
So the bottom line is simple: We want sick people to get these isotopes. They are all getting them. But why do we have to trade away the ability to prevent highly enriched uranium from proliferating around the world? God forbid the consequences to our country if a terrorist steals such uranium or it gets lost.
No U.S. firm has any interest in this. It is one Canadian firm that does not want to pay the extra price that other firms have been paying to require foreign countries to convert from HEU, highly enriched uranium, which can be used for weapons, to low-grade uranium, LEU, which cannot.
So the argument is simple. There are a large number of organizations that support our amendment, many of them concerned with nuclear proliferation and, of course, organizations concerned with health such as Physicians for Social Responsibility.
The argument is clear-cut. This amendment never should have been put in the Energy bill. The policy that our country has had for the last 12 years has been working very well, and we have had our cake and eaten it, too. Everyone gets isotopes, and various reactors and foreign countries are required to convert from HEU to LEU. Right now, we are worried about Iran. We are worried about North Korea. We are worried about terrorists stealing weapons-grade uranium, and we are now doing something here, mainly at the behest of one Canadian company, to allow more of that uranium out on the market.
If my friends on the other side could point to a single person who is denied the isotope they need for health purposes, they might have an argument, but they do not. The argument is simple: the cost to one Canadian company versus our ability to prevent weapons-grade uranium, highly enriched uranium, from proliferating around the world.
I hope we will go back to present law, stay with present law, stick to the law that has been supported by both administrations, Republican and Democrat, and prevent the danger of nuclear terrorism from getting any greater than it is.
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