Tracking Congress’ Attacks on Access to Justice
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5/9/2018 at 1:20 PM PT -- Last Updated Date
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COLOR KEY:
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Introduced
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Passed Committee
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Passed House
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Passed Senate
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Signed into Law
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STATUSTHREATSECTOR
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Bill NumberChief Sponsor: NameChief Sponsor: AffliationSummaryIntroducedCommitteeHouse VoteSenate VoteTo President's DeskNo Judicial ReviewStripping an Individual’s Right to SueToo Risky / Expensive to SueLimiting Judicial DiscretionMeddling with SettlementsEnvironmentCivil RightsHealthConsumer
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H.Amdt.367 to H.R. 3354
Rep. Jason SmithR-MO-08
Rider language tucked into this fiscal year 2018 Appropriations bill would prevent court settlements under the Clean Air Act, the Clean Water Act and the Endangered Species Act from awarding attorney’s fees. Aims to deter people and organizations from bringing environmental lawsuits by making them cost prohibitive. The result is more polluted air and water and loss of precious plants and animals.
Offered (Sept. 8)-Approval Sept. 8 (voice vote)XX
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H.J. Res. 111Rep. Keith J. RothfusR-PA-12
Unraveled a Consumer Financial Protection Bureau rule that would have prohibited 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.
(Jul. 20, 2017)-Approval Jul. 25, 2017 (231-190)Approval Oct. 24 (51-50)(Nov. 1)XXX
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H.Amdt.549 to H.R. 4Rep. Jeff DenhamR-CA-10
Amendment to FAA bill would limit time for filing legal challenge to a final state action on a highway project, including for environmental review, from two years down to 150 days
Offered (Apr. 26, 2018)
Approval Apr. 26, 2018 (voice vote)
XXX
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H.R. 5Rep. Bob GoodlatteR-VA-06
§103 eliminates judicial review of agency action to withdraw a proposed rule based on a petition to the agency by a third party; §106-107 and §202 interfere with courts’ standard of review for agency actions; §402 interferes with courts FRCP 65 powers and requires a stay of final agency action during pendency of litigation which will cause public harms due to unwarranted delays of public protections
(Jan. 3, 2017)Passed Committees
Approval Jan. 11, 2017 (238-183)
XXXXXX
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H.R. 10Rep. Jeb HensarlingR-TX-05
One section of this proposed financial legislation prohibits settlement payments to third parties. This would prevent settlement money from going to groups that work on fixing the problems caused by polluters and corporations that break the law. Includes language from H.R. 732, Preventing Polluter Restitution to Harmed Communities.
(Apr. 26, 2017)Passed Committees
Approval Jun. 8, 2017 (233-186)
XXXXX
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H.R. 1179Rep. Tom RiceR-SC-07
Would force the losing party in a Clean Water Act case to foot all legal costs—not just for their side, but for their opponents, which could include wealthy corporations and the government. The general rule in American courts is that all parties bear their own costs. This “loser pays” provision would have a chilling effect on people and communities’ abilities to take a Clean Water Act case to court. Low-income communities are more likely than their wealthier counterparts to be exposed to water pollution. A “loser pays” provision makes them less able to risk losing and having to pay the other side’s legal fees.
(Feb. 16, 2017)XX
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H.R. 1215Rep. Steve KingR-IA-04
Restricts people from seeking relief for harms suffered from medical malpractice, dangerous drugs or medical devices, and even intentional harms, while overriding some state laws. This bill caps jury awards for pain and suffering including loss of limb or sight, and severe or permanent disfigurement, which benefits no one except the insurance industry.
(Feb. 24, 2017)Passed Committee
Approval Jun. 28, 2017 (218-210)
XXX
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H.R. 1525Rep. Jason Smith R-MO
Would prevent agencies from paying attorney fees to prevailing parties in court settlements under the Clean Air Act, the Clean Water Act, and the Endangered Species Act. This would have a chilling effect on the ability of everyday citizens seeking to vindicate the public’s right to clean water and clean air in their communities. (Note: language of the bill included as a rider to FY18 Interior Approps H.R. 3354 which passed the House.)
(Mar. 13, 2017)XXX
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H.R. 1682Rep. Robert LattaR-OH-5
Amends the Energy Policy and Conservation Act to revise the Energy Star program. Specifically, the bill prohibits “right to sue” via breach of warranty claims or private claims or rights of action against manufacturers of products that are disqualified from the program, if: (1) the product has been certified by a certification body recognized by the program, (2) the Environmental Protection Agency has approved corrective measures, and (3) the responsible party has fully complied with all such measures.
(Mar. 22, 2017)XXXX
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H.R. 1704Rep. Richard HudsonR-NC-08
Reduces injured people’s ability to bring claims for medical malpractice including limits on noneconomic damages, time limits for bringing lawsuits, preempting state law, shielding providers from liability in certain circumstances, constrains use of expert witnesses, and overrides judicial branch rules of evidence. Similar to H.R. 1215: Denying Full Justice to Victims of Negligent and Criminal Health Care Providers.
(Mar. 23, 2017)XXX
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H.R. 1917Rep. Bill Johnson R-OH-06
Overrides and eliminates the courts’ injunctive relief power in favor of a Congressional stay of a Clean Air Act rule meant to reduce toxic air pollution from brick manufacturers which disproportionately impacts poor and rural communities. Delays effectiveness of the rule until all court challenges are resolved –- a judicial remedy normally reserved to the courts under Rule 65 of the Federal Rules of Civil Procedure.
(Jan. 10. 2018)
Passed Committee Jan. 10, 2018
Approval Mar. 7, 2018 (234-180)XXX
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H.R. 210Rep. Don YoungR-AK-At Large
§5 does the following: restricts judicial review through limits to filing deadlines and venue for ‘energy-related’ causes of action on Indian lands; eliminates the possibility of fee recovery under both EAJA and the Judgment Fund; applies “loser pays” fee shifting on all “energy related actions” on which the plaintiff does not prevail.
(Jan. 3, 2017)XXXX
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H.R. 2134Rep. Blaine LuetkemeyerR-MO-03
§4(j)(3) bars from both federal and state judicial review any actions of states to regulate intrastate endangered and threatened species.
(Apr. 25, 2017)XX
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H.R. 2233Rep. Mo BrooksR-AL-05
§101 amends the Immigration and Nationality Act to allow the Dept. of Labor—with first providing notice to employers—to “initiate an investigation of any … employer that employs nonimmigrants (under the H-1B visa program) if the Secretary of Labor has reasonable cause to believe that the petitioner employer is not in compliance with this subsection,” but then allows the Agency to waive that notice at its own determination which is then non-reviewable in court.
(Apr. 28, 2017)XX
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H.R. 232Rep. Don YoungR-AK-At Large
§6: transfer of federal lands to states not subject to judicial review.
(Jan. 3, 2017)XX
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H.R. 2359Rep. Barry LoudermilkR-GA-11
Caps monetary recovery in class action lawsuits to $500K and restricts court’s discretion on minimum damages for each member of the class.
(May 4, 2017)XX
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H.R. 2437Rep. Ted PoeR-TX-02
§4 eliminates, for certain criminal proceedings, court discretion to grant equitable relief from a final judgment when justified; §5 limits injunctive relief, limits non-economic damages against an arresting officer or department, and limits/prohibits recovery of attorney fees in successful actions against arresting officer/department.
(May 16, 2017)XXX
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H.R. 26Rep. Doug CollinsR-GA-09
Parts of this bill unconstitutionally prevent an agency major rule from taking effect unless Congress approves it. If Congress does approve such a rule, the bill prohibits judicial review of that decision, blocking the courts from keeping check on the legislative branch.
(Jan. 3, 2017)-
Approval Jan. 5, 2017 (237–187)
XXXXX
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H.R. 2613Rep. Cathy McMorris RodgersR-WA-05
§107: review of forest management actions must use binding arbitration instead of judicial review.
(May 23, 2017)XXX
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H.R. 2693Rep. Duncan HunterR-CA-50
Amends Clean Water Act to limit attorney fees in citizen suits—§1 limits fee recovery of prevailing plaintiff party to proportion of successful legal claims, cannot exceed monetary penalty imposed against polluter; §1 encourages court to require bond before issuing restraining order/preliminary injunction; §1 encourages “loser pays” fee shifting by court; §3 waives liability to polluter for multiple reasons, including if polluter “exercised due care.”
(May 25, 2017)XX
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H.R. 2936Rep. Bruce WestermanR-AR-04
Would eliminate people’s access to independent courts by sending any challenges to forest management actions into binding arbitration. This bill also eliminates fee recovery when an individual or group successfully brings the government to court, making it cost prohibitive to challenge decisions related to federal forests. It further restricts the courts’ ability to use preliminary injunctions to stop irreparable harm during pending legal action. This could lead to the forest being clear-cut before a decision is made on the claims. (Section §321, §311, §203 & §312)
(Jun. 20, 2017)
Passed House Natural Resources Committee (Jun. 27, 2017)
Approval Nov. 1 (232–188)XXXXX
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H.R. 3131Rep. Bill HuizengaR-MI-02
Would restrict the awarding of attorney’s fees under the Endangered Species Act, making it cost prohibitive to bring cases that protect imperiled plants and animals. It also would shift payer of fees from the U.S. Treasury to federal agencies. This would make the underfunded agencies charged with protecting species, such as the U.S. Fish and Wildlife Department, more cash-strapped in that work.
(Jun. 29, 2017)
Passed House Natural Resources Committee (Oct. 4)
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H.R. 3141Rep. Billy LongR-MO-07
§2 creates a requirement that federal agencies identify communications about federal programs deemed “advertising” and identify funding sources, but §4 provides no judicial review or other public enforcement mechanism.
(Jun. 29, 2017)XXXXX
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H.R. 3219Rep. Kay GrangerR-TX-12
Rider language tucked into this fiscal year 2018 Appropriations bill would defund a specific 2006 court settlement to restore fish species under the Endangered Species Act in the San Joaquin River in California.
(Jul. 13, 2017)
House Committee on Appropriations (Jul. 13, 2017)
Approval, Jul. 27, 2017 (235-192)
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H.R. 3257Rep. Todd Rokita R- IN-04
§2 limits court remedies, “including damages, costs, or attorney fees” for federal employees alleging discrimination including violations under the Civil Rights Act, Whistleblower Protection Enhancement Act, Congressional Accountability Act (for congressional employees), Fair Labor Standards Act, and “any law protecting the employment rights of veterans.” The bill also would allow a federal employee to be terminated for seeking a court remedy in excess of the limits in the bill.
(Jul. 14, 2017)XXX
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H.R. 3267Rep. John Abney CulbersonR-TX-07
Rider language tucked into this fiscal year 2018 Appropriations bill would prevent polluter restitution to harmed communities. (Note: Text also included in H.R. 10 above at §393.)
(Jul. 17, 2017)
Passed House Natural Appropriations Committee (Jul. 13, 2017)
XXXXX
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H.R. 3608Rep. Tom McClintockR-CA-04
§4 requires annual report to Congress disclosing expenditures for ESA cases including award of attorney fees; §5 restricts the award of attorney fees under the ESA citizen suit provision to EAJA capped rates, rather than judgment fund rates for other citizen suit statutes as determined by court. Also, could shift payer of fees from Treasury to agencies, making protecting species harder.
(Jul. 28, 2017)XX
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H.R. 3668Rep. Jeff DuncanR-SC-03
Directs the federal Fish and Wildlife Service to strip protections from the critically endangered Mexican gray wolf on no scientific basis and prohibits any challenge of the decision in court.
(Sept. 1, 2017)
Passed House Natural Resources Committee (Sept. 13)
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H.R. 424Rep. Collin PetersonD-MN-07
Allows agency to delist Mexican gray wolf without being subject to judicial review.
(Jan. 10, 2017)XX
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H.R. 5468Rep. Tom MarinoR-PA-10
Narrows overall judicial review and amends Administrative Procedure Act as follows: reduces time to file legal claim from six years to 180 days; limits scope of record court can review; interferes with court discretion on preliminary injunction balancing test by rewriting FRCP 65 as applied to federal permits; suggests FRCP 65(c) bonding fees of up to $5 million -– all of which is designed to chill public engagement, while at the same time, expanding judicial rights for industry
(Apr. 11, 2018)XXXX
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H.R. 4423Rep. Sam JohnsonR-TX-03
Overall, would limit access to court and limit the checks and balances provided by the judiciary on one specific reservoir infrastructure project in Texas as follows: narrows overall judicial review; reduces time to file legal claim from six years to 60 days; congressionally limits standing to FEIS commenters; limits venue to E.D. TX; interferes with court discretion on preliminary injunction balancing test under FRCP 65; makes FRCP 65(c) bonding fees mandatory; provides catch-all prohibition to creating right to judicial review.
(Nov. 16, 2017)XXXXX
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H.R. 469Rep. Doug CollinsR-GA-09
Inhibits the U.S. Environmental Protection Agency and other federal agencies from settling lawsuits, even when the government has acted unlawfully. This drags out legal action, raising costs for plaintiffs and allowing the administration to avoid enforcing environmental regulations. It will lead to more pollution and industrial harm to communities.
(Jan. 12, 2017)Passed CommitteeApproval Oct. 25 (234-187)XXXXXX
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H.R. 4760Rep. Bob GoodlatteR-VA 6
§2106 allows agricultural employers to force “foreign guestworker” employees into “mandatory binding arbitration” as a condition of employment, while also forcing the employee to pay for half of the arbitration costs; §3105(a)(3) eliminates all judicial review of agency decisions to “refuse or revoke a visa.”
(Jan. 10, 2018)XXXX
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H.R. 527Rep. Rob BishopR-UT-01
Prohibits any effort to list the sage-grouse under the Endangered Species Act for at least 10 years. Also prohibits the Fish and Wildlife Service from modifying its 2015 actions on the species, and prohibits Interior from making any changes to resource management plans inconsistent from state plans. Bill also waives National Environmental Policy Act review. All of the above prohibitions are barred from any judicial review or oversight.
(Jan. 13, 2017)XX
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H.R. 620Rep. Ted PoeR-TX-02
Amends the historic Americans with Disabilities Act to prohibit the “right to sue” for violations of the public accommodations provision of the law without first jumping through multiple onerous additional legal requirements that shifts burden of compliance to those with disabilities whose civil rights are being violated and could delay justice for months or years; also interferes with courts by requiring the Judicial Conference of the United States to amend Rule 16 of the Federal Rules of Civil Procedure to develop an alternative dispute resolution process to steer cases on public accommodation violations out of court.
(Jan. 24, 2017)Passed CommitteeApproval Feb. 15, 2018 (225-192)XX
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H.R. 641Rep. Rick W. AllenR-GA-12
§2(j) prohibits Legal Service Corp. from providing legal assistance to any undocumented non-citizen farm worker, for nonimmigrant farm workers under an arbitration agreement with employer LSC barred from assisting farm worker and access to worker severely restricted.
(Jan. 24, 2017)XXX
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H.R. 720Rep. Lamar SmithR-TX-21
Attorneys who bring frivolous lawsuits are already subject to fines by courts. This proposed policy would take the decision-making out of the hands of nonpartisan judges and let Congress mandate a "one-size-fits-all" penalty regardless of the circumstances. Mandating specific penalties has a chilling effect on legitimate cases related to civil rights violations, employment discrimination claims, privacy suits, equal protection violations, and voting rights claims.
(Jan. 30, 2017)Passed Committee
Approval Mar. 10, 2017 (230-188)
XXXXX
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H.R. 725Rep. Ken BuckR-CO-04
Allows corporate defendants to find more favorable forums for litigation, which would include pushing cases from state to federal courts, raising the costs for groups seeking to hold powerful corporations accountable for wrongdoing.
(Jan. 30, 2017)Passed Committee
Approval Mar. 9, 2017 (224-194)
XXXXXX
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H.R. 732Rep. Bob GoodlatteR-VA-06
Prohibits settlement payments to organizations that help damaged communities recover. For example, this bill could prevent the Justice Department from requiring an oil company to fund necessary health services or help small businesses in the wake of an oil spill, such as the Deepwater Horizon or Exxon Valdez disasters. Related to a directive by Attorney General Jeff Sessions to forbid third-party settlements. Text also included in H.R. 10, Blocking Aid to Remedy Polluter and Industry Wrongs, at §393.
(Jan. 30, 2017)Passed CommitteeApproval Oct. 24 (238-183)XXXXX
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H.R. 906Rep. Blake FarentholdR-TX-27
Makes it more difficult for victims of asbestos diseases to receive compensation and compromises privacy of victims and their families. The victims’ personal information would be stored in a public database, making them vulnerable to identify theft and other scammers. (Note: Language of H.R. 906 included in H.R. 985, which passed the House on Mar. 9, 2017.)
(Feb. 7, 2017)
Passed Judiciary Committee Feb. 15, 2017
XXXX
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H.R. 985Rep. Bob GoodlatteR-VA-06
Obliterates class action lawsuits through severe restrictions to class requirements—thereby blocking Americans from joining together to challenge wealthy corporate wrongdoing in consumer, employment and civil rights cases. The proposed legislation also includes text that makes it more difficult for victims of asbestos diseases to receive compensation and compromises their privacy by putting their personal data in a public database, exposing them to online scammers. Bill amended by committee to also include text of HR 906, Attacking Asbestos Sufferers.
(Feb. 9, 2017)Passed Committee
Approval Mar. 9, 2017 (220-201)
XXXXX
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S. 1134Sen. John CornynR-TX
§4 eliminates, for certain criminal proceedings, court discretion to grant equitable relief from a final judgment when justified; §5 limits injunctive relief, limits non-economic damages against an arresting officer or department, and limits/prohibits recovery of attorney fees in successful actions against arresting officer/department.
(May 16, 2017)XXX
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S. 119Sen. Chuck GrassleyR-IA
Creates multiple new hurdles to settlements/consent decrees, including changing judicial standing requirements—end result is delayed public protections through delayed agency action on non-discretionary actions required by Congress. (Note: Similar to H.R. 469.)
(Jan. 12, 2017)XXXXXX
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S. 1514Sen. John BarrassoR-WY
§7 and §8: final rule for gray wolves in Great Lakes and Wyoming not subject to judicial review.
(Jun. 29, 2017)XX
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S. 164Sen. Ron JohnsonR-WI
Allows agency to delist Mexican gray wolf without being subject to judicial review.
(Jan. 17, 2017)XX
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S. 1731Sen. John ThuneR-SD
§7 eliminates access to independent courts at sole discretion of agency by sending certain case/disputes of forest management actions to binding arbitration; §7 also overrides and restricts EAJA process for awarding fees and rate of fees through new definitions determined by the Secretary.
(Aug. 2, 2017)XXXX
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S. 1756Sen. Dan SullivanR-AK
Would block environmental review of energy development proposals on public land and limit judicial challenges to permits to within a tight timeframe. This plays in favor of oil and gas and other extractive industries. The legislation also requires cases to be filed in the D.C. Circuit court and requires that court to “resolve” the case within 180 days. These arbitrary place and time limits are designed as a “get out of jail free” card—when the judicial review doesn't meet the arbitrary restrictions, rules are deemed "unreviewable," and access to the courts is denied. This bill also blocks recovery of attorney fees for successful challengers to these permits and forces the loser to pay the other side’s attorney fees, deterring individuals, communities and small organizations from taking wealthy corporations to court.
(Aug. 3, 2017)XXXXX
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S. 1757Sen. John CornynR-TX
§564 eliminates class actions pertaining to enforcement of immigration laws, limits prospective relief courts can order, time-limits preliminary injunctions to 90 days, orders independent federal courts to “promptly rule on” motions of the executive branch, limits scope of settlements and consent decrees.
(Aug. 3, 2017)XXXX
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S. 2068Sen. John BarrassoR-WY
Eliminates judicial review and access to independent courts at sole discretion of agency by sending case/disputes of forest management actions to binding arbitration; privatizes agency actions by allowing privately written plans to become agency final action while also evading public notice and comment, and due process protections.
(Nov. 2, 2017)XXX
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S. 2160Sen. Steve DainesR-MT
Would eliminate judicial review and access to independent courts at sole discretion of agency by sending case/disputes of forest management actions to binding arbitration. Would also privatize agency actions by allowing privately written plans to become agency final action, while also evading public notice and comment, and due process protections; and allow agency to recover attorney fees, while banning same for other prevailing parties.
(Nov. 16, 2017)XXXX
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S. 237Sen. Chuck GrassleyR-IA
Reinstates mandatory Rule 11 sanctions discredited and discarded by federal judiciary 25 years ago. (Note: Similar to H.R. 720.)
(Jan. 30, 2017)XXXXX
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S. 2461Sen. Roger WickerR-MS
Overrides and eliminates the courts’ injunctive relief power in favor of a Congressional stay of a Clean Air Act rule meant to reduce toxic air pollution from brick manufacturers which disproportionately impacts low-income and rural communities. This is an updated version of S. 839 and delays effectiveness of the rule until two years after all court challenges are resolved, or until the end of 2020. (Note: House companion bill, H.R. 1917 passed House 3/7/18.)
(Feb. 26, 2018)XXX
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S. 273Sen. James RischR-ID
Prohibits any effort to list the sage-grouse under the Endangered Species Act for at least 10 years. Also prohibits the Fish and Wildlife Service from modifying its 2015 actions on the species, and prohibits Interior from making any changes to resource management plans inconsistent from state plans. All of the above prohibitions are barred from any judicial review or oversight.
(Feb. 1, 2017)XX
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S. 333Sen. James LankfordR-OK
Prohibits settlement agreement with payments to third parties which would be a statutory ban to AG Sessions memo—would prevent polluter restitution to harmed communities. (Note: Text included in H.R. 10 at §393. Similar to H.R. 732.)
(Feb. 1, 2017)XXXXX
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S. 368Sen. Jeff FlakeR-AZ
Allows agency to delist Mexican gray wolf without being subject to judicial review.
(Feb. 14, 2017)XX
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S. 375Sen. John CornynR-TX
§2 changes judicial intervention rules for ESA related cases and forces a court allowing interveners to refer the case to a mediation program or a magistrate judge, encourages court to apply “loser pays,” prohibits award of legal expenses to plaintiffs under settlement/consent decree, prohibits settlement/consent decree unless no political entity (state, county, town, etc) which the agency “believes a species occurs” objects.
(Feb. 14, 2017)XXXX
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S. 839Sen. Roger WickerR-MS
Overrides and eliminates the courts’ injunctive relief power in favor of a Congressional stay of a Clean Air Act rule meant to reduce toxic air pollution from brick manufacturers which disproportionately impacts poor and rural communities. Delays effectiveness of the rule until all court challenges are resolved -- a judicial remedy normally reserved to the courts under Rule 65 of the Federal Rules of Civil Procedure. (Note: Senate companion to H.R. 1917, which has passed House E&C Committee.)
(Apr. 5, 2017)XXX
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S. 879Sen. John BarrassoR-WY
§106 eliminates access to independent courts at sole discretion of agency by sending case/disputes of forest management actions to binding arbitration; §107 requires, for all other legal challenges, bonding requirements which must be met before case can proceed, in effect forcing losing plaintiff party to pay agency legal expenses.
(Apr. 6, 2017)XXXXX
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S. 935Sen. Rand PaulR-KY
§4(j)(3) bars from both Federal and state judicial review any state actions to regulate intrastate endangered and threatened species.
(Apr. 25, 2017)XX
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S. 951Sen. Rob PortmanR-OH
Would halt most agency efforts to implement critical public health and environmental laws. This provision would allow the presidential administration to tank a rule that it and its polluter benefactors didn’t like, while shielding that decision from oversight by independent federal judges.
(Apr. 26, 2017)
Passed Homeland Security and Governmental Affairs Committee (May. 17, 2017)
XXXXX
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S.J.Res. 47Sen. Mike CrapoR-ID
Would undo 2017 Consumer Financial Protection Bureau’ rule which prohibits banks and lenders from shielding themselves from class action accountability in federal courts through use of binding arbitration agreements which effectively strip judicial review. (Note: Companion bill, H.J. Res. 111, signed into law.)
(Jul. 20, 2017)XXX
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