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Class-action reform, 9th Circuit bill arise as possible omnibus riders

A key Senate cosponsor to legislation that would reform the legal process for class-action lawsuits is eyeing the fiscal year 2005 omnibus appropriations bill as a possible vehicle for his stalled measure's final passage, reigniting an issue strongly opposed by environmental groups.
Class-action reform, 9th Circuit bill arise as possible omnibus riders


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E&E Daily
11/17/2004



Darren Samuelsohn, E&E Daily senior reporter


A key Senate cosponsor to legislation that would reform the legal process for class-action lawsuits is eyeing the fiscal year 2005 omnibus appropriations bill as a possible vehicle for his stalled measure's final passage, reigniting an issue strongly opposed by environmental groups.


And Sen. Dianne Feinstein (D-Calif.) has threatened to delay consideration of the nearly $383 billion appropriations bill during this week's lame-duck session should it include a rider that would split up the 9th U.S. Circuit Court of Appeals into as many as three distinct judiciaries.


In a brief interview yesterday, Sen. Tom Carper (D-Del.) confirmed a strong interest in tacking the class-action reform bill, S. 2062, onto the omnibus spending measure. The class-action legislation, which Carper says is backed by a bipartisan coalition of more than 60 supporters, would move some citizen group lawsuits to federal courts in an effort to block lawyers from obtaining massive damage awards from state courts.


Environmental groups sent a letter in July voicing their opposition to Carper's class-action legislation, warning it would limit the public's ability to fight violators of the Clean Air Act, Clean Water Act and Safe Drinking Water Act.


The U.S. Chamber of Commerce in recent days has launched a lobbying campaign on behalf of the class-action bill, which appeared dead this summer when its sponsors could not overcome a filibuster. Debate on the class-action bill halted in July after Senate Majority Leader Bill Frist (R-Tenn.) blocked lawmakers from offering unrelated amendments. Frist's procedural move thwarted a bid by Sens. John McCain (R-Ariz.) and Joe Lieberman (D-Conn.) to receive a floor vote on a climate change amendment that would reduce greenhouse gas emissions from major U.S. industrial sectors (E&E Daily, July 9).

9th Circuit breakup in omnibus?


Also surfacing as a prospect for inclusion in the omnibus is an effort by Western House Republicans to split up the 9th Circuit. Last month, the House adopted an amendment from Rep. Mike Simpson (R-Idaho) to an unrelated judiciary bill that would remove Arizona, Idaho, Montana and Nevada from the 9th Circuit and place them in a new 12th Circuit Court of Appeals. Similarly, a new 13th Circuit would hear cases from Alaska, Oregon and Washington. Under Simpson's amendment, only California, Hawaii, Guam and the Northern Marianas Islands would remain in the 9th Circuit (E&E Daily, Oct. 6).


Decisions out of the 9th Circuit, the largest federal circuit encompassing 11 Western states and territories, have long been criticized for perceived liberal bias on environmental and social issues. Because of its location and size, the 9th Circuit regularly hears cases involving environmental regulations and resources. The court also has handled controversial cases outside the environmental and energy sphere, including its 2002 ruling declaring illegal a portion of the Pledge of Allegiance.


In a letter to Senate Appropriations Committee Chairman Ted Stevens (R-Alaska), Feinstein warned of large start-up and operational costs associated with a splitting of the judicial circuits, as well as the lack of attention the issue would receive if considered during a lame-duck session. "I emphasize that this is such an enormous change that I must use all parliamentary procedures at my disposal in order to oppose it," she said.


Stevens spokeswoman Melanie Alvord declined comment when asked for Stevens' thoughts on the possible riders. "There's tons of extraneous bills that people are talking about putting on the omnibus, not just class-action," she said. "I'm not going to go there."


Incoming Senate Minority Leader Harry Reid (D-Nev.) said Democrats are open to passing the omnibus this week, though he did add a caveat. "We will see what the Republicans do with the omnibus," he said. "If they can do a bill that doesn't do a lot of damage, we will not raise too much Cain. But the Republicans have to be very careful not to be unreasonable."


The FY '05 Foreign Operations appropriations bill is considered the most likely vehicle for moving the omnibus, which also will include the FY '05 Agriculture, Commerce-Justice-State (including NOAA), Interior, Transportation and VA-HUD (including EPA) spending bills. One House Democratic source said earlier this week that any problems moving a particular bill might mean it gets left behind -- with its agencies funded under a continuing resolution -- if considerable momentum pushes the larger omnibus toward passage.


Sen. Barbara Mikulski (D-Md.), ranking member of the Senate VA-HUD Appropriations Subcommittee, said yesterday that the VA-HUD portion of the omnibus is "ready to go." Mikulski would not provide specific details about the bill's funding levels for EPA, though she did note that all agencies within the bill are squeezed by tight budget allocations.


Frist spokeswoman Amy Call said GOP leaders are eyeing final passage of the omnibus by Friday, though votes could slip into the weekend. Alvord said it is possible a House-Senate public conference meeting to adopt the FY '05 omnibus report could be held today.


On the funding side, a primary sticking point in advancing the bill to this point has been some $8 billion in discretionary spending that Senate Appropriations Committee Chairman Ted Stevens (R-Alaska) added primarily to the FY '05 Labor, Health, Human Services and Education and VA-HUD spending bills through a variety of accounting maneuvers. A pair of House sources said earlier this week that it appears appropriators will include about $4 billion in spending increases from the Senate plan, with an across-the-board cut for a range of domestic agencies in order to maintain discretionary spending under the $821.9 billion budget cap. The reduction to non-defense government spending is likely to be under 1 percent, the House aides said.


Asked what final discretionary spending figure may emerge from the omnibus conference, Senate Appropriations Committee ranking member Robert Byrd (D-W.Va.) said simply, "I wouldn't want to guess."








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