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.