[Congressional Record Volume 168, Number 194 (Wednesday, December 14, 2022)]
[Senate]
[Pages S7179-S7180]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
National Defense Authorization Act
Mr. KAINE. Madam President, we are currently in consideration of the
National Defense Authorization Act, and the leadership is working out a
timing agreement for a vote possibly on one or more amendments and then
a vote on the NDAA.
The Defense bill is the most important thing I work on every year as
a member of the Armed Services Committee, and I think the Defense bill
that our Armed Services Committee did with strong bipartisan support is
a very strong one. The timing isn't to my liking, that it took so long
to reach an agreement with the House. But it is what it is. The Defense
bill is strong.
We are likely to have a vote on an amendment tomorrow offered by my
friend and colleague Joe Manchin dealing with permitting reform, and I
wanted to stand on the floor to express my objection not to the topic
and even not to much of the substance but to one particular provision
that I think is horrible policy and I think will cause me to oppose the
amendment.
Do we need to do permitting reform to accelerate infrastructure in
this country? We do. We do. Many of the permitting reform rules--FERC,
for example--are decades old, and they haven't kept up with new
technologies or new needs of our population. I am strongly of the
belief that we should do permitting reform, and I have introduced my
own bills going back years to make at least that permitting process
work better.
The amendment that we are going to be voting on tomorrow, at least as
I have been told--I haven't seen the language, but I have been told it
is very similar to an amendment that was offered in September. It is an
88-page permitting reform bill. Eighty-five pages are permitting
reform; the last three pages are the opposite of permitting reform.
What do I mean by that? Eighty-five pages of the bill go deeply into
permitting for infrastructure, especially energy infrastructure, and
propose a whole series of reforms, many of which I strongly support.
Although I had no hand in the drafting of that bill and I think I
could improve it if I was involved, I would give that bill a good solid
B or B-plus, and I would have no trouble voting for it as an amendment
to the Defense bill or a stand-alone bill.
However, the last three pages of the bill take a particular single
project--100 miles of which is in Virginia--called the Mountain Valley
Pipeline and exempts it from permitting reform. It, essentially, says
this 85-page reform that sets up how a project should be considered and
approved by administrative agencies and then reviewed by the judiciary
if there are complaints about it--that is what the 85 pages does, but
then the last three pages says the Mountain Valley Pipeline should be
exempt from all of that, should get an administrative green light. And,
in a provision that I find to be both unprecedented and really
troubling, it suggests that if individuals want to seek judicial review
of Mountain Valley Pipeline, the current jurisdiction in the Federal
code which would suggest that that suit would be heard in the Fourth
Judicial Circuit, which includes Virginia, the case about one project,
the Mountain Valley Pipeline, will be stripped away from the court
where it is currently being litigated and all future litigation must
happen in the DC circuit.
Now, never in the history of this body has Congress gone into the
middle of a case and, because a corporation was not happy with the
rulings of the court, stripped the case away from that court and given
it to another court. And I have verified that through my own staff in
research since this provision came up in September: stripping a case
away from a court.
Now, this is my hometown court. It is headquartered in Richmond. The
[[Page S7180]]
chief judge is somebody that I used to try cases against when I was a
civil rights lawyer before I got into politics. He is an esteemed
jurist.
Yes, the Fourth Circuit has rendered some rulings in this case that
the pipeline operator doesn't like. I used to lose cases in the Fourth
Circuit. I wasn't always happy with them. But the people that I
represented--if you lose a case, you appeal; you don't rewrite the
Federal jurisdictional code to say this court can no longer hear the
case, in the middle of the case.
If we go down this path on this project, I can see it opening a door
we will not want to open, a door that could even lead to corruption: I
am a wealthy, powerful corporation; I don't like the way the Second
Circuit is ruling on derivative shareholder suits. Maybe I can strip
jurisdiction away from them. I don't like the way the Ninth Circuit is
ruling on employment discrimination cases. Maybe I could strip
jurisdiction away from them.
I get it that a big company is not happy because they have lost a
case. Fifty percent of our litigants are unhappy. Someone wins and
somebody loses, but the solution is not to take jurisdiction away from
the court that is hearing the case and give it to another court. That
is not the solution. The solution is to improve the permitting process.
There are two elements of the first 85 pages of the bill that
actually help Mountain Valley Pipeline. One element would be, in the
first 85 pages, that President Biden--the President, in the bill, is
allowed to designate 15 projects of national significance and then
expedite them. That is in the first 85 pages. And if President Biden
decided the Mountain Valley Pipeline was so important to make that top
15 list, that permitting reform could help the Mountain Valley
Pipeline.
And, second, there is a provision in the first 85 pages that would
require that on matters that come up again and again and again, the
panels on circuit courts have to rotate and randomly assign and not
keep the same panel. That would solve one of Mountain Valley Pipeline's
professed concerns.
So because I haven't seen the language yet, it may not still be
final, and I would urge those pushing it: Do permitting reform, but
don't exempt a project in my State from the permits, don't exempt it
from judicial review, don't strip jurisdiction away from my hometown
court and give it to another court.
I was never consulted about this. My constituents feel very, very
passionately. Their land is being taken for this. The only way you
build pipelines is to take people's land, and this is 100 miles in
Virginia of people's land being taken, and this body should not green-
light a project and exempt it from permitting rules in a bill that we
are saying is designed to improve permitting.
I yield the floor.