Congress introduces record number of bills to prevent people from taking industry to court

Industry-friendly lawmakers are waging a coordinated campaign with the Trump administration to strip Americans of their legal rights to use the courts to hold polluting companies and the government itself accountable for violations of bedrock environmental laws and other important public protections.

Members of Congress have introduced more than 50 bills over the past year that would make it extremely difficult or impossible for people to seek justice in a court of law, according to an in-depth analysis by Earthjustice, a nonprofit environmental law organization. The proposed bills are targeting laws related to environmental protection, public health, consumer rights, and civil liberties.

The number of bills introduced in the current 115th Congress that would strip individuals of their legal rights to seek justice in a court of law have doubled from the previous Congress and quadrupled since the 112th Congress that ended in 2013. Similar to how credit card companies and other retailers block consumers from the use of a court of law to resolve disputes, these bills would have a similar effect by preventing aggrieved members of the public from filing lawsuits to ensure laws are enforced.

“The corporate interests that stand to benefit from these types of provisions see this window of time as an opportunity,” Patrice Simms, vice president of litigation at Earthjustice, said in an interview with ThinkProgress. “They have a president that they know will sign anything that benefits them and they have majorities in the House and Senate that they believe are willing to move the bills forward.”

Earthjustice has created an interactive tool that tracks each of these pieces of legislation. If passed into law, these bills would erect permanent obstacles that will prevent people and communities from going to court to defend their rights.

During the current Congress, 12 bills with a combination of threatening provisions have passed the House of Representatives. The president has signed one into law: H.J.Res. 111 repealed the Consumer Financial Protection Bureau’s rule prohibiting banks, lenders, and other corporations from forcing consumers with grievances into arbitration. This law also prevents individuals from joining together in class action lawsuits in federal courts against banks, predatory lenders, and other bad actors.

Members of the George W. Bush administration, including some appointed by President Donald Trump to high-level positions in his administration, wanted to see similar restrictions placed on the rights of individuals to have their day in court. “Usually, it’s been a pretty extremist view,” said Jessica Culpepper, an attorney with Public Justice, a nonprofit law firm that focuses on environmental protection, consumer rights, and civil liberties.

For many years, a contingent in Congress has tried to limit the ability of citizens to use “bedrock environmental laws” like the Clean Water Act to protect themselves. “What is frightening is that at least with the Bush administration, some things were sacred. You still couldn’t get a lot of support for stripping citizens’ abilities to protect themselves,” Culpepper said. “And now those things are on the table.”

Congressional Republicans have been trying for years to get these types of bills passed. They’ve been introduced before, but typically only to make certain industry constituents happy, with little chance of passage, according to Culpepper. The bills “have not been as big of a threat” as they are under the current Congress, Culpepper told ThinkProgress.

According to Earthjustice, the list of bills from the current Congress attacking individuals’ access to justice include:

  • 6 bills with provisions to eliminate judicial review, eroding the role of courts as a check and balance on other branches of government.
  • 14 bills that could effectively strip people of their right to sue by either forcing them into arbitration or blocking their ability to join together in class action lawsuits.
  • 17 bills that would make it too expensive to sue, forcing members of the public to bear the burden of costly litigation against the government.
  • 10 bills that meddle with timely resolution through settlements, forcing government agencies to draw out challenges through costly litigation fights.

One bill, dubbed the “Farm Regulatory Certainty Act” by its industry backers, was introduced in the previous Congress and didn’t move at all. But in the current Congress, the bill is gaining momentum, with more than 60 co-sponsors. Culpepper delivered testimony to a congressional hearing in November in which she described the bill as an effort to shield “an entire industry from liability.” The bill “would essentially “strip rural Americans from their right to protect their drinking water,” she told lawmakers

Congress recognizes it cannot simply repeal the laws it doesn’t like. Its members can’t say, “We’re going to get rid of the Clean Water Act.” But what they do see they can do is engage in “this furtive attempt to undo the protections that those laws actually provide,” explained Simms.

By furtive attempts, Simms is referring to how certain lawmakers now realize that if an environmental law, for example, cannot be undone by direct repeal, they can try to pass bills that make the laws impossible to enforce. For example, the House of Representatives last October passed a bill that would prevent the Environmental Protection Agency (EPA) and other federal agencies from settling lawsuits, even when the government has acted unlawfully.

House Republicans have dubbed the bill, H.R. 469, the “Sunshine for Regulations and Regulatory Decrees and Settlements Act.” Earthjustice prefers to call the bill by describing its real intent: “Delaying Public Health Protections.” The bill still has not passed the Senate.

Simms said this particular bill is a prime example of how congressional Republicans are working closely with the Trump administration on these types of bills. “There’s a degree of coordination between Congress and the administration that I have not seen in the past,” he said. “They’re coming back over the course of the last year with an intensity that we have not seen before and a coordination that I have not seen in the past. This is really something frightening.”

H.R. 469 reflects almost exactly the policy adopted by the Trump administration. In mid-October, EPA Administrator Scott Pruitt announced his agency would no longer engage in settlement discussions with public interest lawyers, what anti-environment lawmakers refer to as “sue and settlement” practices. “What did we see several weeks later? A bill gets passed in the House that would essentially codify that and apply it not to just EPA but all agencies,” Simms said.

The bill would inhibit the EPA and other federal agencies from settling lawsuits, even when the government has acted unlawfully. This drags out legal action, raising costs for plaintiffs, and allows the administration to avoid enforcing environmental regulations, leading to more pollution and industrial harm to communities, according to Earthjustice.

In her 10 years as an environmental and public interest attorney, Culpepper said she’s never seen so many bills introduced at once — bills that would roll back individuals’ ability to use the courts to seek justice — that have a good chance of moving through Congress. “I spent more time fighting these things in 2017 than I have in my an entire career,” she said.

This article was originally published at ThinkProgress on February 12, 2018. Reprinted with permission.

About the Author: Mark Hand is a climate and environment reporter at ThinkProgress.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.