Date: 2016-09-07
Speaker: JACKSON LEE (democrat)
Chamber: H

Mr. Chairman. I want to. again. reiterate that words do matter. The naming of this bill. unfortunately. skews and distorts a legitimate right that agencies in litigation have. In particular. I want to take note of the fact. againI think it is always important to set the record straightthat the settlement donations have been 1.1 percent of $23.5 billion. that a governmentindependent entity has indicated that these settlements are lawful. The sledgehammer effect that has been taken in order to ensure that we stop victims. innocent persons from getting some relief is unbelievable. So the Jackson Lee amendment No. 3 would address the problematic concern with H.R. 5063. which would only exempt payments to third parties to provide restitution for actual harm directly and proximately caused by the party making the payment. The Jackson Lee amendment No. 3 would carve out an additional exemption to enable States to act as thirdparty actors with the ability to remedy generalized harm for mass injuries where the actual party responsible for directly or proximately causing the harm is there. For example. the Jackson Lee amendment No. 3 would allow for States. such as Texas and other Gulf Coast States. to address the environmental harms resulting in settlement agreements to impacted parties such as those harmed by a variety of manmade disasters. I urge adoption of this particular amendment because. again. it would provide an opportunity for States to remediate generalized harm of unlawful conduct beyond harms to identifiable victims. I believe. in particular. the bill here that we have would ban the following entirely legitimate. appropriate uses of SEP funds that are currently permitted by EPA: pollution prevention projects that improve plant procedures and technologies and/or operation and maintenance practices that will prevent additional pollution at its source. I ask my colleagues to support the amendment. Mr. Chair. the Jackson Lee Amendment No. 3 exempts from H.R. 5063 settlement agreements that pertain to providing restitution for a State. Mr. Chair. H.R. 5063. as currently drafted. is flawed and misguided. This bill seeks to exempt only those payments to parties other than the government to provide restitution for actual harm "directly and proximately caused by the party making the payment." Mr. Chair. I urge adoption of the Jackson Lee Amendment No. 3 which seeks to address the additional case exception for those instances where funds are directed to states to remediate the generalized harm of unlawful conduct beyond harms to identifiable victims. One clear example of where such an exemption is needed is concerning the Deepwater Horizon Settlement agreements directing payments to states as third parties for general remediation of harms. Under current law. the Environmental Protection Agency (EPA) may include Supplemental Environmental Projects (SEPs) in settlement agreements to offset the harms of unlawful conduct by requiring parties to undertake an environmentally beneficial project or activity that is not required by law. but that a defendant agrees to undertake as part of the settlement of an enforcement action. In 2012. the EPA and Justice Department resolved the civil liability of MOEX Offshore through a settlement agreement resulting from the Deepwater Horizon oil spill. that included funds to several Gulf states. including Texas. where Texas was not party to the complaint. but received $3.25 million for SEPs and other responsive actions. Professor Joel Mintz of Nova Southeastern University College of Law. a former chief attorney with the EPA. noted in his written statement on H.R. 5063. that the proposed bill would prohibit these agreements. That is. many of the important benefits now provided by EPAs SEPs program would be excluded by H.R. 5063. The bills definition. according to Professor Mintz. excludes "any payment by a party to provide restitution for or otherwise remedy the actual harm (including to the environment). directly and proximately caused by the alleged conduct of the party that is the basis for the settlement agreement." As such. this exception is too narrowly drawn to allow for numerous beneficial uses of SEP monies. Thus. for example. the bill would appear to ban the following entirely legitimate. appropriate uses of SEP funds that are currently permitted by EPA: Pollution prevention projects that improve plant procedures and technologies. and/or operation and maintenance practices. that will prevent additional pollution at its source. Environmental restoration projects including activities that protect local ecosystems from actual or potential harm resulting from the violation. Facility assessments and audits. including investigations of local environmental quality. environmental compliance audits. and investigations into opportunities to reduce the use. production and generation of toxic materials. Programs that promote environmental compliance by promoting training or technical support to other members of the regulated community. and Projects that provide technical assistance or equipment to a responsible state or local emergency response entity for purposes of emergency planning or preparedness. Each of these types of programs provide important protections of human health and the environment in communities that have been harmed by environmental violations. However. because they are unlikely to be construed as redressing "actual (environmental) harm. directly and proximately caused" by the alleged violator. the bill before this committee would prohibit every one of them. The Jackson Lee Amendment No. 3 would eliminate this harmful prohibition by implementing a common sense exception for these very types of cases. Accordingly. I urge my colleagues to support the Jackson Lee Amendment No. 3. I reserve the balance of my time.