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S. 119: Sunshine for Regulatory Decrees and Settlements Act of 2017

The Obama Administration skyrocketed a previously little-used method of implementing regulations by agencies like the EPA. A bill that just passed the House, the Sunshine for Regulations and Regulatory Decrees and Settlements Act, would end the practice.

Context

Executive branch agencies such as the EPA had, during the Obama Administration, increasingly used a tactic derisively nicknamed by opponents as “sue and settle.”

Under this approach, a (usually pre-arranged) supportive individual or organization, such as a progressive activist group, will sue an agency like the EPA, rather than the agency being sued by an opponent as usually occurs. Then the agency will settle out-of-court by agreeing to implement a new regulation or order, which is what the agency and the suing party both wanted all along.

As Andrew Grossman of the conservative Heritage Foundation wrote, “Regulators are only too happy to face collusive lawsuits by friendly ‘foes’ that are aimed at compelling government action that would otherwise be difficult or impossible to achieve.”

Under the Obama Administration, more than 100 regulations were implemented under this method, at an estimated annual cost of at least tens of billions of dollars, and possibly more than $100 billion.

What the bill does

The Sunshine for Regulations and Regulatory Decrees and Settlements Act, labelled H.R. 469 and S. 119 respectively, would end this practice. The legislation would:

  • Require agencies publicly post information on such “sue-and-settle” cases and settlements reached.
  • Ban the initial lawsuits and the settlements from being issued the same day. All settlements will now have to face a 60-day waiting period.
  • Make it easier for subsequent presidential administrations to potentially reverse a previous administration’s agency decision or regulation they disagree with

That last element would be achieved by allowing an administration to ask a court for a so-called de novo judicial review of a regulation, a legal move in which all issues are reviewed as if for the first time. In other words, if a previous court upheld a regulation — as many Democratic-appointed courts often did for Obama-era regulations — that precedent would be given no weight.

What supporters say

Supporters argue the bill will return a to a pre-existing normalcy and prevent end-runs by executive branch agencies attempting to establish regulations.

The bill will “draw back the curtain on federal agencies that have colluded with special interest groups at the expense of American workers and families,” House lead sponsor Rep. Doug Collins (R-GA9) said in a press release.

“The back-room litigation that the EPA, Fish and Wildlife Service and other agencies favored throughout the last administration must come to an end,” Collins continued. “A government by and for the people has no business allowing unelected bureaucrats to redraft laws behind closed doors.”

What opponents say

Opponents say that supporters mischaracterize the “sue-and-settle” method, and that the new policy, if such a law were to pass, would give increased heft to businesses and their concerns.

A group of 57 former attorneys for the EPA recently sent a letter to EPA Administrator Scott Pruitt after he attempted to rein in the agency’s use of “sue-and-settle.” They contend that it’s actually illegal to use such a lawsuit to achieve a particular end result in mind, despite what conservatives contend. They also say there’s many cases where settlements are appropriate, and that such a decision would limit that often-necessary option.

Votes

The House passed the bill by 234–187 on October 25, after it had first attracted 21 Republican cosponsors

No Republicans opposed, and two Democrats supported: Reps. Henry Cuellar (D-TX28) and Collin Peterson (D-MN7).

The legislation now goes to the Senate, where it has attracted 10 Republican cosponsors. It awaits a vote, although previous versions introduced in the Senate in 20152013, and 2012 never received a vote.

Last updated Dec 4, 2017. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 12, 2017.


Sunshine for Regulatory Decrees and Settlements Act of 2017

This bill establishes public notice and comment procedures and motion to intervene standards for civil actions seeking to compel agency action and alleging that an agency is unlawfully withholding or unreasonably delaying an agency action, and for consent decrees or settlement agreements that require agency action, relating to a regulatory action that would affect the rights of: (1) private persons other than the person bringing the action; or (2) a state, local, or tribal government.

The bill sets forth requirements for:

agencies against which such an action is brought to publish online, within 15 days after receipt, the notice of intent to sue and the complaint; courts to consider motions to intervene and allow amicus participation; and any settlement proceedings to include intervening parties and to be conducted pursuant to the mediation or alternative dispute resolution program of the court or by a district judge. Agencies seeking to enter such a consent decree or settlement agreement must:

publish, and accept and respond to public comment on, the proposed agreement or decree for 60 days before filing it with the court; and make available to the court the administrative record and a summary of public comments and any public hearings. The Department of Justice, or an agency litigating a matter independently, must certify to the court its approval of such proposed: (1) consent decrees that include terms that convert into a nondiscretionary duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations, commit an agency to expend funds that have not been appropriated and budgeted or to seek a particular appropriation or budget authorization, divest an agency of discretion committed to it by statute or the Constitution, or otherwise afford any relief that the court could not enter under its own authority; or (2) settlement agreements that include terms that provide a remedy for a failure by the agency to comply with the terms of the agreement other than the revival of the civil action resolved by the agreement, interfere with the authority of an agency to revise, amend, or issue rules, or commit the agency to expend funds that have not been appropriated and budgeted or to exercise in a particular way discretion which was committed to the agency by statute or the Constitution.

Courts: (1) shall not approve such consent decrees or settlement agreements unless they allow sufficient time and procedures to comply with the Administrative Procedure Act, rulemaking statutes, and executive orders; and (2) shall grant de novo review if an agency files a motion to modify such a decree or agreement on the basis that its terms are no longer fully in the public interest due to changed facts and circumstances or the agency's obligations to fulfill other duties.