Fracturing Federal Rights for Energy Security

Rep. Bill Flores (R., TX) has introduced H.R. 2728, Protecting States' Rights to Promote American Energy Security Act. According to the official summary, the bill: 

Amends the Mineral Leasing Act to prohibit the Department of the Interior from enforcing any federal regulation, guidance, or permit requirement regarding hydraulic fracturing (including any component of that process), relating to oil, gas, or geothermal production activities on or under any land in any state that has regulations, guidance, or permit requirements for that activity. 

Requires the Department to recognize and defer to state regulations, permitting, and guidance, for all activities related to hydraulic fracturing relating to oil, gas, or geothermal production activities on federal land regardless of whether those rules are duplicative, more or less restrictive, have different requirements, or do not meet federal guidelines.

The White House has come out against the measure, however, noting that it does not give due consideration to federal lands, including Indian lands, and does not take into consideration the comprehensive (or lack thereof) of state regulations regarding hydraulic fracturing. Their official statement notes that: 

The bill, as reported, would undermine these efforts and instead require BLM [Bureau of Land Management] to defer to existing State regulations on hydraulic fracturing on Federal lands, regardless of the quality or comprehensiveness of the State regulations – thereby preventing consistent environmental protections.

Immigration Startup 3.0

The Hill noted that the first big fight in the immigration debate revolved around the name of the bill. Shortly thereafter, the name was revealed: Border Security, Economic Opportunity, and Immigration Modernization Act. While it had a lot of attractive features, it wasn't all that catchy, and wasn't an effective slogan. Some people thought that was a good thing. 

Momentum may indeed be building for such a name. The Startup Act 3.0 was released earlier this year by Rep. Michael Grimm (R., NY), and Senators Moran (R., KS), Warner (D., VA), Coons (D., DE) and Blunt (R., MO). At the time, it was said that the legislation could create 500,000 to 1.6 new jobs. Senator Chris Coons was recently on Morning Joe to discuss the legislation. 

Among other things, the Startup Act 3.0: "Amends the Immigration and Nationality Act to authorize the Secretary of Homeland Security (DHS) to adjust to conditional permanent resident status up to 50,000 aliens who have earned a master's or doctorate degree in a science, technology, engineering, or mathematics field (STEM field) and permit such an alien to remain in the United States: (1) for up to one year after the expiration of the alien's student visa, if the alien is searching for STEM field employment; and (2) indefinitely if the alien remains actively engaged in a STEM field."

FACT or Fiction?

Rep. Blake Farenthold (R., TX) has introduced H.R.982, the Furthering Asbestos Claim Transparency (FACT) Act of 2013. The measure amends federal bankruptcy law in order to provide more transparency regarding payment to trusts in asbestos claims. The White House, however, believes that the bill threatens victims' privacy, and that such sensitive personal information should not be made public. The Administration statement on the bill details the following: 

The Administration opposes House passage of H.R. 982, which would require trusts set up through a Chapter 11 bankruptcy reorganization caused by asbestos liabilities to: (1) file a publicly available quarterly report with the bankruptcy court that would include personal information about individuals who have filed claims asserting asbestos-related injuries, including their names, exposure history, and basis for any payment made to them; and (2) provide any information related to payment from and demands for payment from such trust to any party to any action in law or equity concerning liability for asbestos exposure. The legislation is based on the false assertion that there is endemic fraud in the asbestos trust system.

The bill’s mandatory reporting and disclosure requirements would threaten asbestos victims’ privacy when they seek payment for injuries from an asbestos bankruptcy trust. Claimants’ sensitive personal information – including their names and exposure histories – would be irretrievably released into the public domain and thus available to parties unrelated to the claims (including insurance companies, prospective employers, lenders, and data collectors). These parties could then use this personal information for purposes entirely unrelated to compensation for asbestos exposure, potentially to the detriment of asbestos victims. The information on this public registry could be used to deny employment, credit, and insurance. Victims would be more vulnerable to identity thieves and other types of predators. These requirements could be particularly harmful to veterans of the Armed Forces of the United States, who have been disproportionately affected by asbestos.

Potential Litigation Increase or Decrease?

Rep. Lamar Smith (R., TX) has introduced the H.R. 2655, the Lawsuit Abuse Reduction Act, which "[a]mends the sanctions provisions in Rule 11 of the Federal Rules of Civil Procedure to require the court to impose an appropriate sanction on any attorney, law firm, or party that has violated, or is responsible for the violation of, the rule with regard to representations to the court."

The Obama Administration believes that the law will limit the discretion of courts and not reduce litigation, but increase it, and declares that the President would veto the legislation should he be presented with it. The statement goes on to detail their reasons for opposition: 

While H.R. 2655 is intended to curb a perceived increase in frivolous litigation, the bill would actually increase litigation. By creating an automatic financial incentive, and by removing the safe-harbor period, the proposed changes to Rule 11 could dramatically increase the number of sanctions motions, including those filed against Federal government attorneys, and correspondingly increase the risk of financial exposure for any conduct that might be considered a Rule 11 violation. In short, H.R. 2655 would raise the amount and cost of civil litigation and provide more opportunity for unnecessary delay and harassment.

The Administration is particularly concerned that the new requirements could be used to target consumer and civil rights plaintiffs. Consumer abuse and civil rights cases rely heavily on the discovery process to prove the merits of their claims. In addition, civil rights cases often seek to challenge the law or to extend existing precedents. The threat of mandatory sanctions for failure to withstand a Rule 11 challenge could chill meritorious claims by deterring worthy plaintiffs from challenging existing laws or seeking novel interpretations of them.

The Opposite of the USA PATRIOT Act: the USA FREEDOM Act

Sen. Patrick Leahy (D., VT) and Rep. James Sensenbrenner (R., WI) have introduced the USA FREEDOM (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and On-line Monitoring) Act, which according to their press release, appears to be a direct response to how the USA PATRIOT Act was interpreted by the courts. The release notes that

Following 9/11, the USA PATRIOT Act passed the judiciary committees with overwhelming bipartisan support. The bill has helped keep Americans safe by ensuring information is shared among those responsible for defending our country and by enhancing the tools the intelligence community needs to identify and track terrorists,” Sensenbrenner said. “But somewhere along the way, the balance between security and privacy was lost. It’s now time for the judiciary committees to again come together in a bipartisan fashion to ensure the law is properly interpreted, past abuses are not repeated and American liberties are protected. Washington must regain Americans’ trust in their government. The USA FREEDOM Act is an essential first step. I would like to thank Congressmen Conyers and Amash, Congresswoman Lofgren, Chairman Issa and others for working with us to draft this important legislation and encourage all my colleagues to support it.” 

The USA FREEDOM Act would end the dragnet collection of Americans’ phone records under Section 215 of the USA PATRIOT Act and ensure that other authorities cannot be used to justify similar dragnet collection. The bill also provides more safeguards for warrantless surveillance under the FISA Amendments Act.

The bill includes other significant privacy and oversight provisions, provides for the creation of a Special Advocate to focus on the protection of privacy rights and civil liberties before the FISA Court, and requires more detailed public reporting about the numbers and types of FISA orders that are issued.

The bill currently has 16 co-sponsors in the Senate, and over 70 co-sponsors in the House, both of which consist of Republicans and Democrats. The authors penned an op-ed in Politico, and a further outline of the legislation can be found here. 

The American RIP Act

In 2000, the Westminster Parliament passed the Regulation of Investigatory Powers (RIP) Act (also known as RIPA). Now, with Halloween looming, Congress is putting their own version of the RIP Act forward, the Retail Investor Protection Act, sponsored by Rep. Ann Wagner (R, MO). The major difficulty, however, is that the White House opposes the measure, noting that the measure would "derail important rulemakings underway at the Securities Exchange Commission (SEC) and the Department of Labor that are critical to protecting Americans’ hard-earned savings and preserving their retirement security." 

The complete release is located below. 
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EXECUTIVE OFFICE OF THE PRESIDENT

OFFICE OF MANAGEMENT AND BUDGET

WASHINGTON, D.C. 20503

                                                                                      October 28, 2013

                                                                                      (House Rules)

STATEMENT OF ADMINISTRATION POLICY

H.R. 2374 – Retail Investor Protection Act

(Rep. Wagner, R-MO, and Rep. Murphy, D-FL)

The Administration strongly opposes passage of H.R. 2374 because it would derail important rulemakings underway at the Securities Exchange Commission (SEC) and the Department of Labor that are critical to protecting Americans’ hard-earned savings and preserving their retirement security.  

H.R. 2374 prohibits Labor from issuing a rule to protect investors until the SEC engages in and completes further study of the effect of a rulemaking on retail investors.  The bill ignores the fact that significant work has already been conducted in both agencies and that the agencies have included and continue to include the public, industry, and numerous stakeholders in their rulemaking processes.  Moreover, the two agencies are already working closely to avoid conflicting requirements for the regulated community, and this legislation would hamper effective coordination between the two agencies.  The bill would hinder efforts to protect consumers from conflicts of interest among brokers, dealers, financial advisors, and others whose incentives may be misaligned with investors, potentially leading to deceptive and abusive practices.  

The Administration is committed to ensuring that American workers and retirees are able to receive advice about how to invest their money in safe, secure, and transparent financial products that is free from harmful conflicts of interest.  These ongoing rulemakings are designed to protect trillions of dollars in retirement savings of millions of workers and retirees by ensuring that paid advisors and other entities do not place their own financial interests over those of their customers.  This legislation would place an unnecessary obstacle in the way of these efforts to prevent such harmful conflicts of interest, which hurt businesses, consumers, and retirees and their families.

If the President were presented with H.R. 2374, his senior advisors would recommend that he veto the bill.

DREG(s) of a Working Group

Today the Obama Administration came out against two House measures, the Deficit Reduction and Economic Growth (DREG) Working Group Act of 2013 (H.R. 3273) and the Federal Worker Pay Fairness Act (H.J.Res. 89). The official statement notes that: 

The Administration strongly opposes House joint passage of H.J. Res. 89 and H.R. 3273, which does nothing to solve the immediate, pressing obligations the Congress has to open the Government and pay its bills. The House should allow a straight up or down vote on Senate-passed H.J. Res. 59 to reopen the Government, bring all the Nation's dedicated civil servants back to work, and provide the services middle class Americans deserve. In addition, the House should pass a clean debt ceiling bill without drama or delay so that the United States can continue to pay its bills and fulfill the Nation's obligations. The President has been clear that he is open to discussing a broad range of measures to support the Nation's economy, create jobs and further reduce the deficit, once the Congress meets its responsibility to open the Government and pay its bills.

More Shutdown Proposals

H.J. Res. 75: Nutrition Assistance for Low-Income Women and Children Act

H.J. Res. 76: Nuclear Weapon Security & Non-Proliferation Act

H.J. Res. 77: Food and Drug Safety Act

H.J. Res. 78: Preserving Our Intelligence Capabilities Act

H.J. Res. 79: Border Safety & Security Act

H.J. Res 80: American Indian and Alaska Native, Health, Education, and Safety Act

H.J. Res. 82: National Weather Monitoring Act

H.J. Res. 83: Impact Aid for Local Schools Act

H.J. Res. 84: Head Start for Low-Income Children Act

H.J. Res 85: National Emergency and Disaster Recovery Act

H.R. 3223: Federal Employee Retroactive Pay Fairness Act

Shutdown Funding Measures

A number of small-scale funding measures have been introduced in the House since the government shutdown went into effect last night. Here's a few that the Committee on Rules considered today (including some quite provocative titles): 

H.J. Res. 70 - Open Our National Parks and Museums Act

H.J. Res. 71 - Provide Local Funding for the District of Columbia Act 

H.J. Res. 72 - Honoring Our Promise to America's Veterans Act

H.J. Res. 73 - Research for Lifesaving Cures Act 

H.R. 3230 - Pay Our Guard and Reserve Act

Still Gettin' Paid

In the face of a government shutdown on Monday President Barack Obama signed H.R. 3210, the Pay Our Military Act, which guarantees that military members will remain paid throughout the government shutdown. According to the White House press release, the law:

"provides continuing appropriations for pay and allowances during any period for which interim or full-year appropriations for FY 2014 are not in effect as follows: for members of the Armed Forces, including Reserve Component personnel who perform active service during such period, and for civilian personnel and contractors of the Departments of Defense and Homeland Security (in the case of the Coast Guard) whom the respective Secretaries determine are providing support to members of the Armed Forces."

Increasing Hunger in America Act

We've previously posted on how bill names can garner opposition pseudonyms, and how recently these have been coming from Democratic Whip Steny Hoyer (D., MD). Thus, it came as no surprise when Rep. Frank Lucas' (R., OK) Nutrition Reform and Work Opportunity Act of 2013 came up for a vote in the House and was unofficially renamed the "Increasing Hunger in America Act" by Rep. Hoyer.

This remains an interesting phenomenon that we'll keep our eyes on.