[Congressional Record Volume 141, Number 66 (Monday, April 24, 1995)]
[Senate]
[Pages S5603-S5605]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BROWN:
  S. 720. A bill to amend rule 11 of the Federal Rules of Civil 
Procedure, relating to representations in court and sanctions for 
violating such rule, and for other purposes; to the Committee on the 
Judiciary.


               legislation to deter frivolous litigation

 Mr. BROWN. Mr. President, the United States has become the 
most litigious society in history. The filing of frivolous or baseless 
claims has begun to jeopardize our system of redress for legitimate 
claims. Neither the parties nor the courts can or should shoulder the 
costs of the frivolous, baseless, or harassing suits.
  Last Congress, changes were proposed to rule 11. By law, unless 
Congress acted to prevent or modify those changes, they would 
automatically become law. This body refused to consider the changes to 
rule 11. Protection against frivolous lawsuits included under rule 11 
were repealed by Congress's refusal to act. As a consequence, rule 11 
no longer provides clear deterrance to frivolous lawsuits. The changes 
of last year in effect protect the abuser, not the abused.
  If this Congress wishes to address civil justice reform, the first 
place to start is with rule 11 and frivolous litigation.
  I have introduced a bill that would breath life back into rule 11 and 
once again deter those who abuse the court system.
  Last Congress, rule 11 was changed in significant ways. Under the 
new, ineffective rule 11, if a court finds the rule was violated, 
sanctions are no longer 
[[Page S5604]] mandatory--they are now permissive. In other words, if a 
court finds a party was using the court system to harass another party 
or was filing papers or charges which were untrue, the court does not 
have to sanction the guilty party.
  Under the new, ineffective rule 11, a party is given a 21-day safe 
harbor in which the party can file harassing motions and then withdraw 
them after they are exposed without fear of sanction.
  Under the new, ineffective rule 11, a party may allege facts which 
the party does not know to be true.
  The new rule 11 says: Sue first and ask questions later. The bill we 
are introducing today puts teeth back in rule 11 so that lawyers and 
parties will be deterred from filing baseless or harassing lawsuits.
  Why the rule was changed to begin with is not clear. According to a 
Federal Judiciary Center study, 80 percent of district judges believe 
rule 11 has an overall positive effect and should have been retained in 
the then-present form, 95 percent believed that the rule had not 
impeded development of the law, and 75 percent said that benefits 
justify the expenditure of judicial time.
  Rule 11 can be the most effective tool Congress has to control 
litigation abuses and frivolous lawsuits. At a time when the Federal 
courts are over-burdened with filings, we should not accommodate 
baseless claims.
  The bill makes four important, restorative changes to rule 11. First, 
it requires that if rule 11 is violated, sanctions are mandatory. 
Second, it requires that there be some factual or evidentiary support 
for factual contentions. Third, it returns the preference for awarding 
attorneys' fees to the innocent party. Fourth, it clarifies that 
attorneys' fees can be awarded against attorneys.
  We have limited resources for the Federal courts. These four 
restorative changes aim to make sure the resources are properly 
allocated to resolve legitimate disputes. Swift action against 
frivolous lawsuits saves time and money, and promotes public respect 
for the integrity of the courts.
                                 ______

      By Ms. SNOWE (for herself and Mr. Cohen):
  S. 721. A bill to impose a moratorium on sanctions under the Clean 
Air Act with respect to marginal and moderate ozone nonattainment 
areas, and for other purposes; to the Committee on Environment and 
Public Works.


    legislation imposing a 1-year moratorium under the clean air act

  Ms. SNOWE. Mr. President, today I am introducing legislation that 
will impose a 1-year moratorium on sanctions under the Clean Air Act 
for States that have marginal or moderate nonattainment areas within 
their borders.
  All across the country, from Maine to Texas, citizens are voicing 
their dissatisfaction with some of the requirements of the Clean Air 
Act Amendments of 1990. In particular, they are objecting to the 
imposition of enhanced vehicle inspection and maintenance programs. 
Many governors, frustrated over the difficulty of implementing this and 
other measures mandated by the act, have joined in this chorus of 
dissatisfaction and discontent, and have petitioned the Environmental 
Protection Agency for flexibility and assistance in meeting the act's 
requirement. Neither the people nor the Governors question the act's 
goals--clean and healthy air for everyone. But they do question the 
equity and reasonableness of the way that the act has been implemented 
to date.
  In response to the widespread criticisms, the Administrator of EPA, 
Carol Browner, announced late last year that the Agency would provide 
the States with the greatest possible flexibility in implementing the 
act. She singled the enhanced inspection and maintenance program out 
for special mention, stating that EPA would review alternatives to a 
centralized enhanced I&M program, which had been required initially.
  Although the EPA deserves credit for making a commitment to greater 
flexibility, much uncertainty and trepidation regarding the act's 
requirements remains. Maine provides a stark example of the serious 
problems that still exist and that must be addressed.
  My home State led the Nation in implementing the enhanced inspection 
and maintenance program. Maine began its program 6 months ahead of 
time, on July 1, 1994, to avoid situations in which motorists might 
face long lines or technical problems at testing facilities in the 
middle of winter. The program was beset with problems almost before it 
began, with motorists complaining about long lines, inconsistent test 
results, and ill-informed attendants. In combination with serious 
concerns about potential repair costs, and legitimate questions about 
the need for such extensive tests in a small, sparsely populated State, 
these problems created a swell of popular opposition to the program.
  By September, the State legislature and the Governor decided to 
suspend implementation of the program until March 1, 1995. People in 
other States facing the enhanced I&M requirements, hearing about the 
problems with Maine's program, and realizing what the enhanced program 
would require of them, began to express concerns as well. Their elected 
officials at the State and Federal levels relayed there concerns to the 
EPA. In response to the many criticisms coming from States across the 
country, EPA made its December announcement on alternatives and 
flexibility.
  Unfortunately, since that time, little has been settled. There is 
great confusion in Maine, and probably other States, about exactly what 
will be required of them, especially with regard to ozone 
nonattainment. Not only is it unclear what kind of emissions testing 
program will be acceptable, but questions persist about whether states 
subject to significant transported polluted air will be able to account 
for this transported air in their plans to attain the federal ozone 
standard.
  Maine sits at the tail and of the Northeast ozone transport region, 
which includes the 11 Northeastern States and the District of Columbia. 
No area in the State is classified higher than moderate nonattainment. 
But under the Clean Air Act, Maine is required to reduce volatile 
organic compounds by 15 percent in all of these areas. Given the 
uncertainty and confusion surrounding emissions inspection and the 
act's requirements for ozone in general, the State has not yet adopted 
its 15 percent reduction plan, and it faces a statutory deadline of 
July 26, 1995. After that date, EPA is required by law to impose stiff 
sanctions, either withholding highway construction funds, or imposing a 
strict 2-to-1 offset requirement for new sources of emissions.
  With the threat of painful sanctions weighing heavily over their 
heads, the Governor and the Maine Legislature are scrambling to devise 
a VOC reduction plan and an alternative I&M program. But people in 
Maine are understandably reluctant to move forward with expensive and 
complicated emissions reductions measures if a significant amount of 
the air that accounts for the nonattainment classification is 
transported in from outside state boundaries. Yet, the data that could 
determine the amount of transported pollution is unavailable at the 
present time. Maine is caught between a rock and a hard place. If it 
moves forward, it could impose burdensome requirements on its citizens 
without knowing the full extent to which they contribute to the 
pollution in Maine. If they do not proceed by July 26, the EPA will be 
forced to levy serious penalties. And they do not know, in precise 
terms, what is acceptable to EPA now, and what will be acceptable 6 
months from now.
  Maine faces similar uncertainty with regard to enhanced emissions 
inspection and maintenance programs. Because Maine is included in the 
Northeast ozone transport region, the act mandates that, at a minimum, 
the cities of Portland and Kittery implement the enhanced emissions 
testing program that has generated intense controversy in Maine and 
other States across the country. My legislation protects States from 
sanctions related to this requirement as well, provided the area 
subject to the enhanced I&M requirement has been designated as marginal 
or moderate nonattainment.
  Mr. President, I do not believe that States like Maine should be 
required to develop these sensitive programs under the duress of 
Federal Sanctions. They should have sufficient time to sort out the new 
developments on the issue, to collect data on transported air, and to 
[[Page S5605]] negotiate with the EPA on a range of acceptable 
compliance measures. In the absence of a more deliberative process that 
allows States to carefully analyze all of their options, we could 
provoke a repeat of last year, when States like Maine tried to 
implement programs but met stiff public opposition. That kind of 
scenario will not bring us any closer to cleaner air.
  States need a temporary break from the sanctions threat, and my bill 
will provide that break. It establishes a 1-year moratorium on 
sanctions and penalties related to marginal and moderate ozone 
nonattainment areas. It applies only to States, and it simply gives the 
States with these areas a reprieve from the Clean Air Act's heavy-
handed sanctions so that they are not forced to act too hastily in what 
appears to be an evolving regulatory landscape.
  Mr. President, my bill offers a reasonable approach to a major 
controversy affecting many States. I think it will advance the cause of 
clean air by allowing States to develop emissions reductions plans that 
have some credibility in the eyes of the public. I invite my colleagues 
from other States facing similar problems to join me in cosponsoring 
this legislation, and to work with me for prompt passage of it.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
                                 S. 721

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. OZONE NONATTAINMENT AREAS.

       (a) In General.--During the 1-year period beginning on the 
     date of enactment of this Act, the Administrator of the 
     Environmental Protection Agency shall not initiate or 
     continue in effect an enforcement action against a State with 
     respect to an area that, before, on, or after that date, is 
     designated nonattainment for ozone and classified as a 
     Marginal Area or Moderate Area under section 181 of the Clean 
     Air Act (42 U.S.C. 7511), including such an area that is 
     located in the ozone transport region established by section 
     184(a) of that Act (42 U.S.C. 7511c(a)).
       (b) Definition.--In this section, the term ``enforcement 
     action'' includes--
       (1) the withholding of a grant under section 105 of the 
     Clean Air Act (42 U.S.C. 7405);
       (2) the promulgation of a Federal implementation plan under 
     section 110(c) of the Clean Air Act (42 U.S.C. 7410);
       (3) the imposition of a sanction under section 110(m) or 
     179 of the Clean Air Act (42 U.S.C. 7410(m), 7509); and
       (4) any other action intended to obtain compliance (unless 
     the action is agreed to by the State) or punish noncompliance 
     with a requirement applicable to an area described in 
     subsection (a) under the Clean Air Act (42 U.S.C. 7401 et 
     seq.).
     

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