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Federal Lands Jobs and Energy Security Act

Floor Speech

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Date:
Location: Washington, DC

BREAK IN TRANSCRIPT

Ms. JACKSON LEE. Let me thank Mr. Holt and Mr. Hastings and the Rules Committee for admitting this amendment.

Mr. Chairman, we could all engage in discussions about our commitment to a national energy policy. I would venture to say that we would not find one Member of this body that was not committed to the idea of individuals being able to have low costs at the pump and to be able to have heat in the severe winters and air conditioning for those of us in the heat of summer in places like Texas and elsewhere. We are committed to doing so.

I said this earlier this morning on the rule. Let me thank the Rules Committee for this amendment that has been admitted on my behalf, but let me also say that we will do better if we come across the aisle and talk about the issues--again, sustainable environment, sustainable energy policy, the creation of jobs, and addressing the needs of low-income families. That is the American way. The American way is also the ability to petition your government in the system of laws that we have.

My amendment is simple. It indicates that the underlying bill should not be construed to abridge the right of the people to petition for the redress of grievances in violation of the first article of the amendment to the Constitution in the Bill of Rights.

It is important to note that there is a $5,000 fee for anyone who wants to protest the particular structure in this bill, upon aggrieved parties, to challenge the award by the agency of a lease, of a right-of-way, of a permit to drill on public lands. This $5,000 fee is supposed to give comfort because, on the larger entities--the businesses--it is a $6,500 fee. For many parties, that may adversely affect the individuals, who would be homeowners, small businesses, nonprofits, and community organizations. A filing or a documentation fee of this amount, in many cases, is prohibitive and will discourage many injured parties from taking the actions necessary to vindicate their rights.

My amendment seeks to avoid this undesirable result by making it plain that it is not the intent of Congress to discourage parties from seeking relief where necessary or to deny access to justice to any party with a legitimate claim. I ask my colleagues to support this amendment.

I reserve the balance of my time.

Mr. Chairman, my amendment is simple and straightforward. The Jackson Lee Amendment provides that nothing in section 1121 of the bill:

``[S]hall not be construed to abridge the right of the people to petition for the redress of grievances, in violation of the first article of amendment to the Constitution of the United States.''

Section 1121 amends the Mineral Leasing Act (30 U.S.C. 226(p)) to impose a $5,000 ``documentation fee'' upon aggrieved parties to challenge the award by the agency of a lease, right of way, permit to drill on public lands.

For many parties that may be adversely affected by these types of agency actions--individuals, home owners, small businesses, non-profits and community organizations--a filing or documentation fee of this amount in many cases is prohibitive and will discourage many injured parties from taking the action necessary to vindicate their rights.

My amendment seeks to avoid this undesirable result by making plain that it is not the intent of Congress to discourage parties from seeking relief where necessary or to deny access to justice to any party with a legitimate claim.

The Jackson Lee Amendment is intended to provide flexibility to the agency and the courts in considering a request to waive all or a portion of the ``documentation fee.''

It does not direct or require the agency to grant such waivers. The amendment is intended only to permit and encourage such waivers in appropriate cases.

Mr. Chairman, we should never take for granted the precious and unique right--even for democracies--of citizens to hold their government accountable and answerable to the judiciary for redress for legally cognizable injuries.

As the Member of Congress from Houston, the energy capital of the nation, I have always been mindful of the importance and have strongly advocated for national energy policies that will make our nation more energy independent, preserve and create jobs, and keep our nation's economy strong.

I am pro-energy independence, ``pro-jobs,'' ``pro-growing economy'' and pro-sustainable environment. As a senior member of the Judiciary Committee, I am also ``pro-fairness.''

The Jackson Lee Amendment seeks to establish fairness and restore balance in the application and implementation of this law.

I urge my colleagues to support this amendment.

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Ms. JACKSON LEE. Mr. Chairman, I take issue with my good friend from Washington State.

This bill has a $5,000 documentation fee on the stage of protest and petition. Obviously, our good friends on the industry side don't even pay anything to nominate land, but it is a $5,000 barrier.

My friend refers to the administrative process. I am a lawyer. It is under the APA code. That is different from being able to go to a higher level and to be able to comment under the Federal Register and write that ``I don't like this,'' and then you are ruled against anyhow. Then your next level of protest is to be able to protest at the level that requires you to pay $5,000, not even $1,000. We are scoring this, and we are doing it on the backs of citizens.

My amendment does make sense because what it says is that we are committed as a Congress not to block people from being able to have an equal opportunity to protest. They may not prevail, Mr. Chairman, but they should have an equal opportunity.

I believe it would be senseless for Republicans and Democrats not to go on record to say that we support the opportunity for protest and petition. I am pro-energy independence, pro-jobs, pro-growing the economy, pro-fairness, pro-sustainable environment, and I believe that there are opportunities for us to come together. We haven't listened to each other. The gentleman from New Jersey (Mr. Holt) just made some very important statements. I am making a statement about the idea.

I believe it is egregious to have a $5,000 fee on individuals--nonprofits, farmers, ranchers, neighbors, et cetera. I will say to you, if you want to understand what it means, in my town, there is a group going to court to fight against a high-rise. That high-rise, Mr. Chairman, went through every process--the planning commission, the city council--and they were rejected, but they are going into a lawsuit. They happen to be a little bit more prosperous. Farmers, ranchers, and others who are having to pay $5,000 and neighbors who are having to pay $5,000, I simply think that is excessive.

My colleagues, since the amendment that I had was to eliminate the $5,000, I welcome a compromise of $1,000; but I offer this simple statement that what we do today shall not be construed to abridge the right of the people to petition for the redress of grievances in violation of the first article of the amendment, and it protects the Fifth Amendment as well, which is due process--the right to protect your property.

Frankly, I believe that it is extremely important because there are entities that are near Federal lands.

So, with a generosity of spirit, I would ask my colleagues to support the Jackson Lee amendment.

I yield back the balance of my time.

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Ms. JACKSON LEE. Mr. Chairman, I yield myself 3 minutes.

I again thank the managers, Mr. Holt and Mr. Hastings.

Mr. Chairman, I again make the same comment about what I have heard on this floor from Members on both sides of the aisle: that they are pro-energy policy, pro-environment, pro-jobs, pro-sustainable environment. They simply want an opportunity to work on legislation to activate or to ensure that that occurs.

There is a prohibition contained in section 1147 of this legislation with respect to the recovery of attorney fees and costs by a prevailing party pursuant to the Equal Access to Justice Act. My amendment removes the prohibition, a prohibition that has been established law for a very long time.

This amendment is needed to level the playing field and conform the bill to current law and practice. I think that if we listen to each other, it will be a simple answer of ``yes'' if we ask any citizen should they have a right to sue, and if they prevail under the Equal Access to Justice Act, that they are able to get attorney fees.

I think the answer, when clear heads would respond, is not whether it is an energy bill or not, or who the defendant is; they would say, Why shouldn't this bill be subjected to the law that exists?

The Equal Access to Justice Act allows individuals, small businesses, and nonprofits to recover attorney fees from the Federal Government. This act is used to vindicate a variety of Federal rights, including access to Veterans Affairs and Social Security disability benefits, as well as to secure statutory environmental protections.

Therefore, to eliminate that is again to cut into--to cut into--the very Bill of Rights of your right to petition, to the right to counsel, all of that, because it indicates that you have a right to prevail in attorney fees.

It is a simple process that does not undermine, if you will, the question of the energy policy in the United States.

If we look at the first poster, we will acknowledge the fact that, interestingly enough, the average amount of money under these cases was $1.8 million annually over the last 8 years. The EPA only paid out $280,000 annually over the last 5 years. I venture to say with the average payment of $100,000 this is not busting the bank. This is allowing citizens who prevail to be able to have attorney fees. I clearly believe that the legislation that we have warrants a fix, a fair fix, to be able to ensure that anyone that has a disagreement post the administrative process and goes into court can, in fact, utilize.

This is one that shows that, in fact, local environmental groups and national environmental groups are no more than others. The largest amount goes to various State governments, individuals, various unions and workers that got a minimal amount or may not have even prevailed.

So I think it is important to recognize that this is not one that is going to destroy this bill, it is going to enhance the bill.

With that, I reserve the balance of my time.

Mr. Chairman, my amendment removes the prohibition contained in Section 1147 with respect to the recovery of attorney fees and costs by a prevailing party pursuant to the Equal Access to Justice Act (5 U.S.C. §504 and 28 U.S.C. §2412).

This amendment is needed to level the playing field and conform the bill to current law and practice.

For more than three decades, since its enactment in 1980, the Equal Access to Justice Act (EAJA) has enhanced parties' ability to hold government agencies accountable for their actions and inaction.

EAJA allows individuals, small businesses and nonprofits to recover attorney fees from the federal government.

The EAJA is used to vindicate a variety of federal rights, including access to Veterans Affairs and Social Security disability benefits, as well as to secure statutory environmental protections.

The EAJA promotes public involvement in laws have a significant impact on the public health and safety such as the National Environmental Policy Act, Clean Air Act and Clean Water Act.

EAJA also helps deter government inaction or erroneous conduct and encourages all parties, not just those with resources to hire legal counsel, to assert their rights.

Mr. Chairman, fee awards under the EAJA are NOT available in any and every case. Rather, attorneys' fees are only recoverable in cases where plaintiffs prevail and the government cannot demonstrate that its legal position was ``substantially justified.''

The amount of attorney fees awarded cannot exceed $125 per hour, a figure is far below the amount currently charged by big city law firms.

No law firm or public interest group is getting rich off a practice relying upon EAJA awards for its attorney fees.

A new report, Shifting the Debate: In Defense of the Equal Access to Justice Act, concludes that EAJA has been cost-effective, applies only to meritorious litigation and that existing legal safeguards and the independent discretion of federal judges will continue to ensure its prudent application.

Moreover, the claim that large environmental groups are getting rich on attorney fees simply is not supported by available evidence.

A recent GAO study (requested by House Republicans) of cases brought against EPA found: most environment lawsuits (48%) were brought by trade associations and private companies; attorney fees were awarded only about eight percent of the time; among environmental plaintiffs, the majority of cases were brought by local groups rather than national groups; and the average award under the EAJA was only about $100,000.

In reality, EAJA ``reforms'' would have the effect of watering down the implementation and enforcement of law enacted to protect the public health and safety.

Much has been made about environmental groups obtaining fees in suits that are ``merely'' procedural.

Both public-interest and industry litigants agree that ``procedural'' litigation under the Administrative Procedure Act is essential to checking executive power on a range of issues.

Additionally, it should be pointed out that procedural requirements and deadlines contained in environmental laws are paramount to ensuring the protections that Congress has enacted.

Indeed, in the case of the National Environmental Policy Act, the nation's foundational environmental statute, following sound procedure is the entire point of the law.

NEPA requires agencies to take a ``hard look'' at the consequences of their actions and to carefully consider alternatives, but compels no particular outcomes.

Mr. Chairman, the provision in the bill that prohibits recovery of attorney fees under the EAJA is not ``reform''; it is a step backwards.

Instead of providing an important tool by which the public can hold the federal government accountable for its actions, Section 1147 wold deny the benefit of this proven accountability tool to unwelcome legal challenges and to prejudice a subset of disfavored plaintiffs.

I urge my colleagues to support the Jackson Lee Amendment.

JACKSON LEE AMENDMENT #4

1. EAJA attorney fees awards do not cost a lot of money

According to GAO, the EAJA attorney fees paid to successful plaintiffs on average: by the Treasury Department: $1.8 million annually over the last 8 years; by EPA: $280,000 annually over the last 5 years; average Payment: $100,000.

2. EAJA attorney fees awards are infrequently awarded

Attorney fees were awarded only about eight percent (8%) of the time according to a July 2013 report by the Environmental Law Institute, ``The Environmental Relevance of the Equal Access to Justice Act.''

3. Most environmental cases are brought by industry trade associations and private companies

In August 2011 GAO conducted study of cases brought against EPA and found: most suits were brought by trade associations and private companies; and, among environmental plaintiffs, the majority of cases were brought by local groups rather than national groups.

4. Largest EAJA attorney fees have been awarded in actions brought by industry trade group plaintiffs, private companies, and state or local government agencies

$500,000: National Cotton Council;

$150,000: Honeywell International, Inc.;

$95,000: National Pork Producers Council & American Farm Bureau;

$92,000. American Trucking Association;

$22,000: American Corn Growers Association.

$400,000: State of New Jersey;

$100,000: State of North Carolina;

$127,500: Commonwealth of Massachusetts;

$198,000: State of New York;

$240,000: South Coast Air Quality Management District (Calif.).

In August 2011 GAO conducted a study of cases brought against EPA and found:

1. most suits were brought by trade associations and private companies; and

2. among environmental plaintiffs, the majority of cases were brought by local groups rather than national groups.

On average, EAJA attorney fees paid to successful plaintiffs:

Treasury: $1.8 million annually over the last 8 years;

EPA: $280,000 annually over the last 5 years; average payment: $100,000.

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Ms. JACKSON LEE. Mr. Chairman, let me be very clear that the awards under the EAJA are not available for any and every case. Only when the plaintiff prevails. Is that not fair?

When an individual, a nonprofit, who has sought to even the playing field, who wants to make sure that we have a strong energy policy but they are praying that you listen to them as to how it is destroying their property, their house, their quality of life, they have a right to petition.

So I want to correct the gentleman's interpretation. I heard on the floor of the House that he mentioned the word ``frivolous.'' As a lawyer, and one who adheres to the Constitution, I would like to not think that if you are concerned about an issue, that you cannot get into the court of justice and that you cannot make your case. You may not win, but I want to surprise him with the fact that the large number of cases that went under this act and sued the EPA were trade associations--622; private companies--556. There are a variety of others, not collectively together. State territories and municipalities--297. Should they not recover if they prevail? Should environmental groups not recover if they prevail--only at 388? Should individuals at 185 cases not prevail if they win? Should workers groups and universities and tribes not prevail if they should win?

I think that we are wrongheaded if we simply do not adhere to the existing law; not use the terminology ``frivolous'' but applaud Americans who are willing to stand up for their rights.

My example was correct. It was an analogy. These homeowners are fighting Big Business, but what they decided to do is, after they were ruled against by every administrative local body, they have gone into the courthouse. They happen to be more prosperous than someone else, but why would you fault an individual who is using their meager pennies with an attorney to try and prevail on something that they believe will harm them?

My amendment is very simple. It just indicates, if you prevail, you should not be denied the attorney fees that anyone else would get and, if you will, debunks and rebuts the proposition that only those groups that we might not enjoy their position--trade associations, private big companies--I ask my colleagues to support the Jackson Lee amendment for fairness and justice in America.

I yield back the balance of my time.

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