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Statement of Ranking Member Nadler for the Markup of H.R. 5468, the Permitting Litigation Efficiency Act of 2018

Sep 6, 2018

Washington, D.C. – Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, delivered the following opening remarks during a Judiciary Committee markup of H.R. 5468, the Permitting Litigation Efficiency Act of 2018:

“Mr. Chairman, today we are considering yet another de-regulatory bill destined to go nowhere. We should at least consider the implications of the so-called ‘Community Safety and Security Act’—a far reaching and complicated measure scheduled for the floor this week for which we never held a hearing, let alone a markup.  I would hope the Committee would redirect its priorities to consider these matters in the time we have left in this Congress.

“Instead, today we are considering H.R. 5468, the so-called ‘Permitting Litigation Efficiency Act,’ a blatant effort to undermine the federal environmental review process in the guise of administrative efficiency.  This bill would put a thumb on the scale in favor of approving construction projects and real estate developments that may have a negative impact on the environment.  It does so by restricting judicial review and by limiting public participation with respect to the federal permitting process for such projects.

“This legislation is yet one more attempt by the Republican Majority to favor powerful developers over those who wish to see proper environmental protections in place before major construction projects begin.

“The bill includes several draconian provisions.  First, it amends the Administrative Procedure Act to mandate a federal court to presume unreasonable delay if a federal agency has not taken final action on a required permit within specified narrow time frames.  Second, it drastically reduces the general 6-year statute of limitations for actions against the government to just 180 days or less, with certain exceptions, and it seeks to skew the court’s analysis of agency permitting decisions in favor of the project sponsor.

“With respect to the imposition of temporary restraining orders and preliminary injunctions against a permitting decision, the bill requires the court to consider, among other things, such relief’s impact on undefined terms like ‘economic interests’ and ‘the employment of United States workers,’ whatever those mean.  Given the bill’s failure to define these terms, H.R. 5468 will spawn needless litigation and will force the courts to use their own interpretations of their meaning, neither of which will clarify nor expedite the judicial review process.

“Another most egregious provision would authorize a court to condition the issuance of a temporary injunction on the payment of a bond up to $5 million.  This provision is obviously intended to discourage challenges to agency permitting determinations, particularly by individuals with limited means, underprivileged communities, and nonprofit entities, who are unlikely to be able to afford such an exorbitant payment.

“It is clear that the cumulative goal of these requirements is to curtail public engagement and judicial review in favor of expediting approval of proposed construction projects that may have detrimental environmental impacts.

“In addition, this bill is a thinly veiled attempt to amend the National Environmental Protection Act—a law, I should point out, that is not within this Committee’s jurisdiction.

“NEPA, which was signed into law by President Richard Nixon in 1970, requires federal agencies to consider the environmental impact of certain projects and to ensure the involvement of the public and other appropriate agencies. 

“For the most part, NEPA has worked well and the principal sources of delays in the federal permitting approval process are not generally attributable to that Act.  Such delays result from such disparate sources as insufficient project funding, concerns raised by state, local or tribal communities, project complexity, and other factors unrelated to judicial review of the project’s environmental impacts.

“But, rather than having the committee with subject matter jurisdiction of NEPA and the expertise to consider any necessary amendments to that Act, the proponents of H.R. 5468 want to do an end-run, and they seek to invoke our Committee’s jurisdiction under the guise of amending the Administrative Procedure Act, a law that applies to administrative law in general. 

“This bill seeks to stack the administrative process in favor of finding unreasonable delays whenever agencies engage in otherwise proper environmental review.  The end result will be to force approval of construction projects before the necessary reviews are complete.  And instead of relying on the flexible standard for injunctive relief contained in the APA, the bill would carve out a judicial review exception solely for construction projects, and other real-property developments, in order to achieve its sponsors’ ideological goals.

“As if the Administration were not already doing enough to undermine a vast array of environmental and safety regulatory protections, the Majority now seeks to enshrine its anti-environmental agenda into law.

“Not surprisingly, this bill is strongly opposed by a broad spectrum of environmental and public interest groups, by administrative law experts, and others.

“I, too, strongly oppose this bill and I encourage my colleagues to oppose it as well. I yield back the balance of my time.”

115th Congress