Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, delivered the following opening remarks during the Committee markup of H.R. 4423, the “North Texas Water Supply Security Act of 2017.”
“Mr. Chairman, I strongly oppose H.R. 4423, which takes aim at legal challenges to a single construction project—namely, the Lower Bois d’Arc (“bwah-dark”) Creek Reservoir Project, built by the North Texas Municipal Water District, in Fannin County, Texas. Rather than allowing for the fair consideration in court of the merits of any environmental challenges to this Project, this legislation seeks to stack the process so that its supporters can ensure their desired outcome—facts notwithstanding.
“This bill includes several damaging provisions intended to restrict judicial review and to limit public participation for claims challenging the Bois d’Arc Project. First, it would drastically reduce the statute of limitations governing petitions for judicial review. Under the Administrative Procedure Act, this period is currently six years. The bill, however, would reduce this period to just 60 days following the approval of the Project by the U.S. Army Corps of Engineers, which—by the way—occurred on February 2, 2018. Since 60 days have already elapsed, the substitute amendment that we will consider shortly would set the review period at 105 days from the date of the Project’s approval, but this is just window dressing, and it will not improve the bill at all.
“This legislation would also unduly restrict who may seek judicial review of this Project by limiting it to only those entities that filed comments during the applicable public comment periods. Further, H.R. 4423 establishes new standards—for this Project only—that a court must consider in determining whether to grant injunctive relief. Among the most novel and telling of these new factors is the requirement that the court consider such relief’s “potential for significant negative economic effects.” While regulators routinely engage in such cost-benefit analysis, this requirement is far outside the expertise of the courts, and is designed to lead to a negative conclusion.
“Finally, the bill imposes a variety of additional requirements related to the general obligation of parties seeking injunctive relief to secure a bond in case of a wrongful injunction. The cumulative effect of these additional requirements is to deter parties from seeking injunctive relief altogether by making it more expensive, and possibly cost-prohibitive, particularly for economically disadvantaged plaintiffs.
“For example, nine landowners who filed a lawsuit challenging the Project last month claim that this undertaking will cause them to “suffer significant adverse consequences” because each of them will lose his or her property as a result of the Project’s construction. Given that the estimated cost of this Project is well in excess of $1 billion, the potential bonding requirements under this bill would be debilitating for such landowners should they seek injunctive relief.
“The plaintiffs allege that the Project, which is expected to cover more than 16,000 acres, presents serious environmental concerns and violates the Clean Water Act, among other laws. But rather than allowing for a full and fair review of these claims, and the claims of other injured parties, this bill stacks the deck against them.
“Aside from the obvious substantive concerns with this bill, there is a larger question that must be asked: why is this bill even in front of the Judiciary Committee at all? What expertise do we have over environmental laws? And what do we know about a specific project in North Texas?
“There is already a perfectly good law in place—the National Environmental Protection Act, or NEPA—which sets forth guidelines and procedures for approval of such projects. 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 sources of any delay in the federal permitting approval process are not generally attributable to that Act. These 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 jurisdiction over NEPA consider any necessary amendments to that Act, the supporters of this legislation instead seek to invoke our Committee’s jurisdiction, under the guise of amending the Administrative Procedure Act, a law that applies generally to administrative law. And it does so with respect to one project only, which is a waste—and an abuse—of this Committee’s resources.
“Although the bill pertains solely to one construction project, I am concerned that it may set a dangerous precedent for legislative copycat bills targeting other specific projects. On the other hand, the limited applicability of the bill does provide some comfort—at least its damaging effects will be restricted to just one construction project.
“Accordingly, I oppose the bill and I yield back the balance of my time.”
