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Red Tape Reduction and Small Business Job Creation Act

Floor Speech

Location: Washington, DC


Mr. NADLER. I strongly oppose the Posey amendment because it makes even worse an already deeply problematic provision.

Under title I of this bill, a court is required to award attorney's fees and costs to a ``substantially prevailing small business'' in any civil action to challenge an agency's compliance with the moratorium. That provision further states that a small business can be substantially prevailing in the meaning of the bill even in the absence of a final judgment in its favor ``if the agency that took the significant regulatory action changes its position after the civil action is filed.''

There are two problems with this. First, it doesn't matter if the agency's change in position had absolutely nothing to do with the civil action. A court would still have to award attorney's fees to a small business that challenges an agency's compliance with the moratorium in court, even if the change in policy had nothing to do with the lawsuit.

Bad as this provision already is, the Posey amendment makes it worse by requiring that any award of attorney's fees and costs be taken out of the defendant agency's budget. Agencies are already straining under diminishing financial and staff resources, thanks in no small part to the budget priorities of this House during this Congress. Further debilitating agencies by taking fee awards out of their budgets--even under circumstances when their change in position had nothing to do with the underlying lawsuit--further damages agencies' ability to do what Congress tasked them with doing, namely, protecting public health and safety.

What this amendment says is, if an agency has a regulation which, in its judgment, it must issue to protect the public health and safety and a small business sues to stop that, and even if the small business doesn't prevail, if there is any change in the agency's position, and even if that change in position has nothing to do with the subject of the lawsuit by the small business, it must pay attorney's fees. And, under this amendment, it must pay attorney's fees out of its own budget. That is dangerous because it will debilitate the agencies that we task with protecting the public health and safety.

Second of all, it is self-defeating. If you are the agency and you know if you are going to change your position in any way you're going to have the pay the attorney's fees out of your own budget, better don't change. Fight the lawsuit. Don't give in. Fight the small business because you may win; while, if you change your position in any way, if you compromise, if you say, you know, they don't have that great of a case but we can accommodate them by making a small change--no, then you have to pay attorney's fees out of our own budget. So don't accommodate them. Don't comprise with them. Don't make the change. Fight them to the bitter end. That doesn't help the small business, and it certainly doesn't help the American people who need these agencies to police the marketplace and to protect the public health and safety. So it defeats its own purpose. It is just wrong on so many levels.

I reserve the balance of my time.


Mr. NADLER. Madam Chair, I yield myself such time as I may consume.

Again, we oppose the bill to start with because we shouldn't have a moratorium on rules that are intended to protect the public health and safety that may be necessary.

But second of all, this amendment is self-defeating because if a small business sues the agency, two things. Number one, let's assume that the agency thinks that the small business' suit has some merit, not enough to win the case, but some merit. Under this amendment, the agency cannot compromise, cannot say, You're right; we'll make this change, because the moment it makes a change, even a minor change, then it is no longer the prevailing party. The small business, under the definition of the bill, is the prevailing party and will get attorney's fees, and the attorney's fees come out of the budget--maybe the small budget--of the agency. So rather than yielding in any way, rather than compromising with the small business, fight them. Fight them tooth and nail. That's what this amendment says to the agency. It is, on its own terms, silly and self-defeating, and I urge its defeat.

I yield back the balance of my time.


Mr. NADLER. Madam Chair, I yield myself 4 1/2 minutes.

Madam Chair, I rise in support of my amendment, which would exempt rules to protect nuclear power plant safety from titles I, III, and V of the bill.

It is rare that the premise of an entire week of legislative work on the House floor is wrong, but, here we are here. We are told this is ``regulatory week,'' during which House Republicans are supposedly working to see that the yoke of oppressive government regulation is thrown off and the American entrepreneur is freed to grow his or her business and increase jobs. In thinking about this view, I am reminded of a famous line in Shakespeare's MacBeth, ``It is a tale told by an idiot, full of sound and fury, signifying nothing.''

We have heard, and will continue to hear, a lot of sound and fury this week on the House floor, but just like all the other regulatory bills the House has passed this year, what we pass this week will die in the Senate as well. So all of that talk will signify nothing. Like health care repeal, on which we have taken 33 votes, this, too, is a tremendous waste of time.

More importantly, there is no evidence to support the position that overregulation is the major cause of our slow economic growth and high unemployment rate. According to the Economic Policy Institute, ``economy-wide studies do not find a significant decline in employment from regulatory policies.''

The real culprit of our slow growth and high unemployment is reduced aggregate demand. Do not just take my word for it--this is what economists and business are saying. The Wall Street Journal surveyed dozens of economists last July, and it found that the ``main reason U.S. companies are reluctant to step up hiring is scant demand.''

The National Federation of Independent Business found that when business owners with declining sales were asked the cause, 45 percent said declining sales. Only 10 percent said higher taxes and regulations.

If all of this is true, why are we here making it harder for the government to enact protective rules and regulations to protect the public health and safety?

Bruce Bartlett, a senior policy analyst in the Reagan and George H.W. Bush administrations, suggests an answer. He has said:

Regulatory uncertainty is a canard invented by Republicans that allows them to use current economic problems to pursue an agenda supported by the business community year in and year out. In other words, it is a simple case of political opportunism, not a serious effort to deal with high unemployment.

Let us look at what the bill that this canard has brought us would do. To me, it seems like Frankenstein. It's put together from various different pieces that do not fit together, and it is very frightening. For example, the underlying bill would block all and any major efforts to protect public health, safety, the environment and so on until the unemployment rate falls below the arbitrary figure of 6 percent; and the bill would impose needless costs on the government and make protecting health and welfare that much more difficult by putting impediments to agreeing to consent decrees and settlements. What all this means is that the most potentially dangerous industries, like nuclear power, the safety of the American public would be put at serious risk by this bill.

My amendment would attempt to make this Frankenstein bill slightly less of a horror show by exempting the issue of nuclear power plant safety from three sections of the bill.

The dangers of nuclear power are well known. One accident can doom millions of people. Because of the almost unimaginable disaster that could happen at a nuclear power plant, regulations to prevent accidents or meltdowns in advance are critically important. The underlying bill would make it harder for the Nuclear Regulatory Commission to adopt such rules or policies, thereby putting millions of lives at risk.

Hampering the ability of the NRC to require safety measures like those necessary to prevent a meltdown in the event of an earthquake or an act of terrorism could be devastating. My amendment would free the NRC from the burdens of this bill and allow it to promulgate those rules and regulations necessary to protect us from the disaster of a nuclear catastrophe such as those that occurred at Chernobyl in Russia or at Fukushima in Japan.

I urge everyone to approve the amendment, and I reserve the balance of my time.


Mr. NADLER. Madam Chair, first of all, we're dealing with nuclear regulatory authority, with nuclear power plants, and we're not dealing with small businesses. We are dealing with very large businesses. Secondly, we're dealing with permits for construction or modification of a nuclear power plant.

Because of the disaster at Fukushima, hopefully, we learned from experience, it may very well be that the Nuclear Regulatory Commission will want to put out new regulations or modify old ones in light of what we have learned from what the Japanese didn't do right, and this would say that they could not promulgate any such regulation as long as unemployment is above 6 percent. As long as unemployment is above 6 percent, we must continue to risk all of our lives. That makes no sense.

Second of all, yes, we want to do environmental streamlining. Well, what this bill says--and this would apply to this, too--is that if an environmental impact statement takes longer than a certain number of days, forget about it. But it's the sponsor, not the Nuclear Regulatory Agency, the sponsor that controls the timing of the EIS.

So if you've got a terrible project which you know is an environmental disaster, all you have to do, under this bill, is to slow-walk the EIS because you control it, and then you don't have to worry about any environmental consequences. That's backwards, it's upside down, and it risks the public safety.

I urge the adoption of this amendment, and I yield back the balance of my time.


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