[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]


               EXAMINING ``SUE AND SETTLE'' AGREEMENTS: 
                                PART II

=======================================================================

                              JOINT HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                       INTERGOVERNMENTAL AFFAIRS

                                AND THE

                            SUBCOMMITTEE ON
                 THE INTERIOR, ENERGY, AND ENVIRONMENT

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 25, 2017

                               __________

                           Serial No. 115-36

                               __________

Printed for the use of the Committee on Oversight and Government Reform


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              Committee on Oversight and Government Reform

                  Trey Gowdy, South Carolina, Chairman
John J. Duncan, Jr., Tennessee       Elijah E. Cummings, Maryland, 
Darrell E. Issa, California              Ranking Minority Member
Jim Jordan, Ohio                     Carolyn B. Maloney, New York
Mark Sanford, South Carolina         Eleanor Holmes Norton, District of 
Justin Amash, Michigan                   Columbia
Paul A. Gosar, Arizona               Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee          Stephen F. Lynch, Massachusetts
Trey Gowdy, South Carolina           Jim Cooper, Tennessee
Blake Farenthold, Texas              Gerald E. Connolly, Virginia
Virginia Foxx, North Carolina        Robin L. Kelly, Illinois
Thomas Massie, Kentucky              Brenda L. Lawrence, Michigan
Mark Meadows, North Carolina         Bonnie Watson Coleman, New Jersey
Ron DeSantis, Florida                Stacey E. Plaskett, Virgin Islands
Dennis A. Ross, Florida              Val Butler Demings, Florida
Mark Walker, North Carolina          Raja Krishnamoorthi, Illinois
Rod Blum, Iowa                       Jamie Raskin, Maryland
Jody B. Hice, Georgia                Peter Welch, Vermont
Steve Russell, Oklahoma              Matt Cartwright, Pennsylvania
Glenn Grothman, Wisconsin            Mark DeSaulnier, California
Will Hurd, Texas                     Jimmy Gomez, California
Gary J. Palmer, Alabama
James Comer, Kentucky
Paul Mitchell, Michigan
Greg Gianforte, Montana

                     Sheria Clarke, Staff Director
                  Robert Borden, Deputy Staff Director
                    William McKenna General Counsel
                 Kelsey Wall, Professional Staff Member
                         Kiley Bidelman, Clerk
                 David Rapallo, Minority Staff Director
               Subcommittee on Intergovernmental Affairs

                     Gary Palmer, Alabama, Chairman
Glenn Grothman, Wisconsin, Vice      Val Butler Demings, Florida, 
    Chair                                Ranking Minority Member
John J. Duncan, Jr., Tennessee       Mark DeSaulnier, California
Trey Gowdy, South Carolina           Matt Cartwright, Pennsylvania
Virginia Foxx, North Carolina        Wm. Lacy Clay, Missouri
Thomas Massie, Kentucky              (Vacancy)
Mark Walker, North Carolina
Mark Sanford, South Carolina

                                 ------                                

         Subcommittee on the Interior, Energy, and Environment

                   Blake Farenthold, Texas, Chairman
Paul A. Gosar, Arizona, Vice Chair   Stacey E. Plaskett, Virgin Islands
Dennis Ross, Florida                 Jamie Raskin, Maryland
Gary J. Palmer, Alabama              Jimmy Gomez, California
James Comer, Kentucky                (Vacancy)
Greg Gianforte, Montana
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 25, 2017....................................     1

                               WITNESSES

The Hon. John Engler, Former Governor, State of Michigan
    Oral Statement...............................................     5
    Written Statement............................................     8
David Sanders, Ph.D., Executive Vice-President of Systems 
  Improvement, Casey Family Programs, Seattle, Washington
    Oral Statement...............................................    13
    Written Statement............................................    15
Mr. Robert Weissman, President, Public Citizen, Washington, D.C.
    Oral Statement...............................................    20
    Written Statement............................................    22
Mr. Carl E. Geffken, City Administrator, Fort Smith, Arkansas
    Oral Statement...............................................    51
    Written Statement............................................    53

                                APPENDIX

Opening Statement of Chairman Gary Palmer........................    76
 Alabama Policy Institute article titled, ``Consent Decrees in 
  Institutional Reform Litigation: Strategies for State 
  Legislatures'' submitted for the record by Chairman Palmer.....    79

 
            EXAMINING ``SUE AND SETTLE'' AGREEMENTS: PART II

                              ----------                              


                         Tuesday, July 25, 2017

                  House of Representatives,
  Subcommittee on Intergovernmental Affairs, joint 
with the Subcommittee on the Interior, Energy, and 
                                       Environment,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittees met, pursuant to call, at 10:05 a.m., in 
Room 2154, Rayburn House Office Building, Hon. Gary J. Palmer 
[chairman of the Subcommittee on Intergovernmental Affairs] 
presiding.
    Present from Subcommittee on Intergovernmental Affairs: 
Representatives Palmer, Grothman, Duncan, Foxx, Walker, 
Demings, DeSaulnier and Clay.
    Present from Subcommittee on the Interior, Energy, and 
Environment: Representatives Farenthold, Gosar, Ross, Palmer, 
Gianforte, Plaskett, and Raskin.
    Also Present: Representative Womack.
    Mr. Palmer. The chair notes the presence of our colleague, 
Congressman Womack of Arkansas. We appreciate your interest in 
this topic and welcome your participation today.
    I ask unanimous consent that Congressman Womack be allowed 
to fully participate in today's hearing. Without objection, so 
ordered.
    This hearing is the second part of a set of hearings to 
examine the impact of certain Federal settlements referred to 
as ``sue and settle.'' The sue-and-settle phenomenon refers to 
a process where an outside group will sue a Federal agency, 
State, or local government for an alleged violation of Federal 
law or constitutional right. The parties will often choose to 
settle by entering into a consent decree agreement rather than 
face a long and costly trial. These legally binding consent 
decree agreements are then approved by a judge and enforceable 
by contempt and can only be modified by court order.
    Consent decrees can last for decades and end up costing 
more than if the parties had gone to trial because the parties 
can use consent decrees to set provisions that extend beyond 
the scope of the original violation of law, they have become an 
effective tool to circumvent policymaking by elected 
representatives in order to push a political agenda across 
governmental institutions. These actions place an enormous 
burden on States, local governments, industry stakeholders, and 
taxpayers, who may be shut out of the negotiations but are left 
to foot the bill.
    Under the threat of enforcement by contempt charge, State 
budgets are being reorganized. Local governments across the 
country are spending multiple decades and billions of dollars 
to comply with impossible mandates through never-ending Federal 
oversight. Penalties for the inevitable violation of decrees 
redirect funds from these communities to Washington. Worse, 
some feel afraid to speak to Congress about what they are 
experiencing. Multiple State and local leaders cited fear of 
political retaliation from Federal court monitors if they were 
to appear to testify before the committee on this issue. This 
is unacceptable and a threat to the principles of Federalism.
    Unfortunately, I have witnessed this firsthand in my home 
State of Alabama. I watched as a consent decree between 
Jefferson County and the Environmental Protection Agency 
ballooned from a $1.5 billion estimate to cost over $3 billion 
to address the storm sewer issue in Jefferson County. Sewer 
rates quadrupled over four years in order to pay for the 
project, and Jefferson County became the Nation's largest 
municipal bankruptcy in history until Detroit filed in 2013.
    Because of incomplete data and the lack of proper 
categorization, we are unable to fully evaluate the total 
amount taxpayers spend as a result of collusive settlement 
agreements. For example, in my previous experience leading an 
Alabama think tank, I was unable to obtain a complete list of 
all Federal consent decrees that apply to the State from the 
Department of Justice because of inadequate recordkeeping.
    This lack of transparency limits our constitutional duty to 
conduct oversight of the management of taxpayer resources. It 
is time for the Federal Government to move away from 
emphasizing its role as prosecutor or political monitor and 
return to serving as the American people's partner in setting 
priorities that best represent their interest.
    Recently, Congressman Doug Collins introduced the Sunshine 
for Regulations and Regulatory Decrees and Settlements Act of 
2017 to increase transparency and public engagement by ensuring 
opportunity for public notice and comment on consent decrees 
and other settlement agreements. I thank Congressman Collins 
for his leadership on this issue, and I look forward to 
exploring additional solutions with our panel today.
    Mr. Palmer. I now recognize Mrs. Demings, ranking member of 
the Subcommittee on Intergovernmental Affairs, for her opening 
statement.
    Mrs. Demings. Thank you so much, Mr. Chairman, and thank 
you for our witnesses for being here. Thank you for holding 
this hearing today.
    Today, we have the opportunity to discuss the Federal 
Government's responsibility to ensure that Americans can buy 
safe food, have clean air and water and access to the ballot 
box. Our great democracy has many ways to do this, but perhaps 
the most fundamentally ``little D'' democratic tool is 
concerned citizens working together to hold Federal agencies, 
the watchers, accountable under the law.
    Unfortunately, some of my colleagues view these citizen 
actions as irrelevant annoyances that slow down progress. The 
result is legislation that seeks to make harder and more 
expensive for Americans to use the courts to compel government 
agencies to uphold and comply with the law.
    These are not small stakes. One of the most frequent 
reasons for suits is missed deadlines that leave the public 
unprotected. A 2012 study of public health and safety 
rulemaking with congressionally mandated deadlines showed, and 
I quote, ``most rules are issued long after their deadlines, 
which ultimately are putting American lives at risk,'' unquote.
    I would like to take this opportunity to highlight just one 
rule criticized as, quote, ``too expensive,'' which was long 
delayed until, ultimately, a lawsuit pushed the final rule over 
the finish line. In 2008, the House and Senate unanimously 
passed a bill to help prevent back-over accidents, which 
tragically kill more than 200 Americans and injure more than 
15,000 every year. Most often the person injured or killed is a 
young child, too small to be seen in a rearview or sideview 
mirror. Despite a statutory deadline in 2011, a final rule 
would not come until 2014, and then only because of public 
outrage, and yes, litigation.
    When will new passenger vehicles be required to have 
cameras? In 2018, 10 years after the bill became law and 
several years after auto manufacturers voluntarily installed 
cameras on virtually every new car.
    Mr. Weissman, I look forward to hearing more about Public 
Citizen's work to finalize this long-delayed rule.
    When it comes down to it, some in Congress and the 
administration would be fine with indefinitely slowing the 
rulemaking process, leaving Americans, the people that we swore 
to represent, particularly the most vulnerable at risk of 
injury from unsafe products and unscrupulous corporations. 
Please be assured that won't happen without a fight.
    I thank our witnesses for sharing their testimony today, 
and I look forward to this very important discussion.
    Thank you very much, Mr. Chairman, and I yield back.
    Mr. Palmer. Thank you. I will hold the record open for five 
legislative days for any members who would like to submit a 
written statement.
    We will now recognize our panel of witnesses. I am pleased 
to welcome the Honorable John Engler, former Governor of the 
State of Michigan; Dr. David Sanders, executive vice president 
of systems improvement for the Casey Family Programs, Seattle 
Washington; and Mr. Robert Weissman, president of Public 
Citizen, Washington, D.C.
    I now recognize Congressman Womack to introduce our last 
witness.
    Mr. Womack. Thank you, Mr. Chairman, and my thanks to the 
chairman and to the ranking members for allowing for this 
testimony here today. At the outset, I would just like to 
associate myself with the remarks of the chairman in his 
opening comment.
    It is not my job here today to pass judgment on the subject 
matter of the activities that are under consideration here 
today. Moreover, it is my intent to introduce a friend and 
somebody that I have an enormous amount of respect for because 
he happens to be the city administrator of the largest city in 
the 3rd District of Arkansas, that being the city of Fort 
Smith.
    His name is Carl Geffken, and he is no stranger to the 
subject matter today because he was hired by the city of 
Reading, Pennsylvania, as a director of finance, and in 2011, 
just for the benefit of the audience here this morning, Reading 
was deemed the poorest city in the United States of America. In 
slightly less than two years' time and after entering the 
Pennsylvania Fiscally Distressed Municipalities Program, the 
city of Reading had a $12 million general fund reserve and a 
revitalized plan to manage its consent decree. The cost of the 
consent decree was reduced from $475 million to $200 million.
    Now, Carl, in his quest to get back into municipality 
government after some time in Berks, Pennsylvania, as a chief 
operating officer, accepted the job as city administrator in 
the city of Fort Smith, Arkansas, and inherited a pretty 
egregious consent decree that has strapped the people and the 
administration of the city of Fort Smith.
    It's nearly a half-a-billion dollars in improvements to its 
wastewater treatment facilities over a 12-year period of time, 
and already the citizens of Fort Smith have endured three, 
three rate increases. Median household income is going down, 
the price to pay for its sewer facilities going up.
    So, we are delighted that Carl is here to speak on this 
subject. He speaks with great authority, and we are proud to 
know that he is running the show in the city of Fort Smith, 
Arkansas.
    And with that, Mr. Chairman, I yield back my time.
    Mr. Palmer. I thank the gentleman.
    I would like to recognize the gentlewoman from the Virgin 
Islands, Ms. Plaskett, who is the ranking member on the 
Subcommittee for Interior, Energy, and Environment for her 
opening statement.
    Ms. Plaskett. Thank you, Mr. Chairman, and thank you for 
calling today's hearing.
    The practice we are discussing today is really very 
unremarkable: enforcement actions by government agencies. 
Congress passes the Nation's Federal laws, and Federal agencies 
must implement them by issuing regulations and enforcing them. 
When those agencies fail to do that, they are in jeopardy of a 
court order requiring them to do so.
    Congress has passed laws allowing citizens to sue Federal 
agencies when they fail to enforce the laws that Congress has 
passed. Because of citizen suits, Americans have had recourse 
when their right to vote has been threatened. Because of 
citizen suits, Americans have had recourse when housing 
discrimination threatened their chance at attaining their piece 
of the American dream. Because of citizen suits, doors have 
literally been open to Americans with disabilities to create a 
more inclusive and accommodating society.
    My colleagues would like to diminish citizens' access to 
court to enforce Federal statutes. Today, the Republican 
justification is that Federal regulations and citizen suits to 
enforce them impose a burden on State Governments. Instead, 
they would leave States alone to comply with Federal law to the 
extent that it is convenient for those States. I say ask the 
people of Flint, Michigan, if that makes sense to them because 
if we have learned nothing else from the tragedy of water 
poisoning in Flint, Michigan, it is that State Governments 
should not be left to their own devices to enforce health and 
safety regulations.
    The Governor's own Health Department director, a member of 
his inner circle and cabinet, has been charged with felonies 
that contributed to the poisoning, so has the Governor's 
appointee who ran the city of Flint under an emergency 
management law. And the Governor has accepted responsibility 
for that tragedy.
    Voting rights, housing laws, education, discrimination, in 
terms of disabilities, all of these things, because of the 
right of citizens to sue to enforce Federal regulations.
    Some States do need help to comply with Federal rules, and 
the Federal Government should provide that support and help. An 
infrastructure bill and funding that addresses the funding 
problems of State and local governments would be a step in the 
right direction. But curbing Federal health and safety 
regulations is not.
    Contrary to what my Republican colleagues might say, 
Federal regulations have a positive impact on the economy. A 
2016 study conducted by OMB looked at a range of regulations 
across the economy and found that their benefits far outweighed 
their costs. OMB said, quote, ``found that a decade's worth of 
major Federal regulations had produced annual benefits to the 
U.S. economy of between $269 billion and $872 billion, while 
imposing aggregate costs between $74 billion to $110 billion.''
    In spite of these facts, congressional Republicans aim to 
diminish the use of citizen suits. That is why I believe we are 
called here to today's hearing, but what we should learn from 
the hearing is the incredible value to the public's health, 
welfare, and environment that Federal regulations and citizen 
suits have had. I really look forward to the lively discussion 
that I know we are going to be having, and thank you again, Mr. 
Chairman, for calling us all to this hearing.
    Mr. Palmer. I thank the gentlewoman and now would like to 
welcome our witnesses.
    Pursuant to committee rules, all witnesses will be sworn in 
before they testify. Please rise and raise your right hands.
    [Witnesses sworn.]
    Mr. Palmer. Thank you. Please be seated. Let the record 
reflect that the witnesses answered in the affirmative.
    In order to allow time for discussion, we would appreciate 
it if you would please limit your testimony to five minutes. 
Your entire written statement will be made part of the record.
    I would like to recognize now Governor John Engler for his 
testimony.

                       WITNESS STATEMENTS

                    STATEMENT OF JOHN ENGLER

    Mr. Engler. Thank you very much, Mr. Chairman. Chairman 
Palmer, Chairman Farenthold, ranking members, subcommittee 
members of the committee--two committees on Oversight and 
Government Reform, thank you for the invitation to appear this 
morning as you continue your examining of sue-and-settle 
agreements. And I appreciate the work of the two subcommittees 
on this important topic, and I'm certainly appreciative of the 
excellent staff who's helped to make the logistics of my 
appearance here this morning so easy.
    I want to begin this morning by quoting from a foreword to 
a publication, Mr. Chairman, you're very familiar with because 
it was prepared by the Alabama--or for the Alabama Policy 
Institute located in Birmingham, Alabama. And I brought a copy 
of it that I--it's entitled ``Consent Decrees in Institutional 
Reform Litigation: Strategies for State Legislatures.'' And I 
think, given that I'm--my background is 20 years as a State 
lawmaker and then 12 years as Governor, I have a distinctly 
State perspective and a strong bias toward a robust Federalist 
system and the role that States and local government play in 
that. And I would like to leave one for the staff so that it 
might be added to the record. I think that it is an important 
document.
    Mr. Engler. And the foreword that I want to quote was 
written in 2008 by then-Senator, now Attorney General Jeff 
Sessions, and maybe it's good to show him some love today. It 
seems maybe in short supply. But Sessions in 2008 wrote this, 
and this is quoting extensively from him: ``One of the most 
dangerous and rarely discussed exercises of raw power is the 
issuance of expansive court decrees. Consent decrees have a 
profound effect on our legal system as they constitute an end 
run around the democratic process. Such decrees are 
particularly offensive when certain governmental agencies 
secretly delight in being sued because they hope a settlement 
will be reached, resulting in the agency receiving more money 
than what the legislative branch or other funding sources would 
otherwise have deemed justified. Thus, the taxpayers ultimately 
fund the settlement enacted through this undemocratic process.
    ``A consent decree is the equivalent of a legislative 
enactment created at the hands of the courts, often less 
subject to modification. By entering into the decrees, current 
State executives such as Governors or Attorneys General can 
bind the hands of future State executives and legislatures. A 
predecessor's consent decree is difficult to alter or end, and, 
in practice, a decree can last for many years, longer than the 
remedy that was needed.''
    Sessions actually went on to describe a remarkable in my 
view and somewhat unimaginable example that he personally dealt 
with when he became Attorney General in Alabama. His 
predecessor had somehow agreed to a consent decree that 
mandated an increase in the number of justices on the State 
Supreme Court in that State. I thought that went pretty far, 
and Sessions viewed that as essentially amending the Alabama 
Constitution. Now, he was, as a new Attorney General, 
successful in taking an appeal and eventually having the 
Eleventh Circuit Court of Appeals reject that consent decree.
    While the Alabama example, pretty creative example, it is 
the tip of the iceberg, representing merely hundreds of consent 
decrees that cover an array of subjects. And for the most part 
they remain in force today. And the cost of compliance and the 
usurping of State and local decision-making I think will be 
truly stunning when the true scope of the abuse is made known 
by the work that your committees are doing, and that's why I 
was pleased to be able to join you today to put a spotlight on 
the end run around accountability that this litigation often 
represents.
    And I certainly look forward to discussing some of the 
judicial battles that we were engaged in when I was elected 
Governor of Michigan as we sought to end costly consent decrees 
and restore public policymaking to those who were elected to 
the legislative and executive branches.
    Now, winning reform is not going to be easy. Activists, 
they always insist institutional reform litigation, merely 
their effort to impose broad, long-term reform of government 
programs and laws on backward or recalcitrant States or local 
governments, but often the reality is quite a bit different. 
These same activists have made their case, given their 
arguments, and then lost either in elections or in legislative 
forums, and so their last shot at achieving their policy 
objectives is litigation. And then these lawsuits are designed 
to convince State and local governments now to settle through a 
consent decree and you can avoid the long, expensive trial. But 
as I point out in my testimony, there are some real weaknesses 
in that approach.
    Congress has grappled with this in the past. I cite a 
proposal from some years back, but I will not--I'll save that 
for the questions. But I want to just say the bottom line I 
think for Federal policymakers, the State and local governments 
you represent are asking for help, the restoration of their 
right to exercise the powers reserved for them under the 
Constitution. They'd like to be held accountable for their own 
decisions and have those decisions made by men and women who 
actually are elected, and they want policy choices according to 
the wishes of their constituents and set the spending 
priorities based on those choices and be freed from having 
unelected judges, you know, controlling and reporting for years 
to court-appointed monitors who have no accountability.
    Thank you, Mr. Chairman.
    [Prepared statement of Mr. Engler follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Palmer. I thank the gentleman for his testimony.
    Dr. Sanders?

                   STATEMENT OF DAVID SANDERS

    Mr. Sanders. Good morning. I'm David Sanders, executive 
vice president of Systems Improvement at Casey Family Programs. 
Casey Family Programs is the Nation's largest operating 
foundation focused on foster care and child protection. We work 
directly with child welfare systems in all 50 States, the 
District of Columbia, two U.S. territories, and 16 tribal 
nations.
    Before coming to Casey, I led the child protection systems 
in both Los Angeles and Minneapolis, and I recently served as 
chair of the Federal Commission to Eliminate Child Abuse and 
Neglect Fatalities.
    Today, I'd like to provide a national perspective on the 
topic of child protection consent decrees and offer 
observations about system reform, oversight, and support, and 
successful opportunities for improvement.
    Casey Family Programs convened three meetings in 2011, 
2014, and 2016 to discuss this issue. These meetings, 
including--included leaders and staff from child protection 
agencies who had been sued who were under consent decrees, in-
house counsel, Attorney General offices, and others. Before I 
share what we learned during these meetings, I'd like to 
provide some context.
    Over a period of 40 years, class-action lawsuits have 
governed some aspect of child welfare or child protection 
practice in nearly 30 States. Numerous jurisdictions have had 
multiple lawsuits filed against them. The consent decrees have 
an average lifespan of 16.8 years, but some have been in place 
for decades.
    Currently, about 15 States are operating under a consent 
decree. Only two have exited successfully--Alabama and Utah--
and most recently, Tennessee just announced its exit from 
Federal oversight after 17 years. However, the terms of 
Tennessee's exit agreement include oversight of the agency by 
an independent commission for 18 months.
    Here are some important insights from States. First, 
consent decrees can place large demands on State in terms of 
both cost and time. We estimate that the legal monitoring and 
consulting fees can reach or surpass $15 million on average.
    Second, States often felt the consent decrees were cookie-
cutter agreements that didn't adequately address the unique 
challenges facing their communities and systems.
    Third, the measures that systems are obliged to monitor are 
often inconsistent with current best practices defined under 
the Child and Family Service Reviews developed by the U.S. 
Department of Health and Human Services. In many cases, it's 
because the measures predate these critical Federal benchmarks. 
At the same time, the measures are significantly more difficult 
to achieve than the Federal measures.
    In working with States, it's become clear that, by their 
very nature, consent decrees are based on process measures 
instead of outcomes measures, in other words, how things are 
done versus what the outcomes actually are for children. And 
more importantly, because the decrees essentially lock child 
welfare services in place, the eight States are unable to use 
system flexibility and adopt new and improved practices.
    The bottom line is this: Consent decrees have not led to 
improved outcomes for children. We believe a better-balanced 
approach that recognizes the right of States and plaintiffs and 
uses alternative oversight mechanisms will be important.
    Overall, we should create a more productive path for child 
welfare agencies to address the needs of their system in a 
problem-solving approach that involve Governors, legislators, 
the judiciary, other agencies, the community, and advocates. 
The use of evidence-based practice, knowledge of brain science 
and trauma, the special attention needed for certain 
populations like very young children, the need for cross-agency 
coordination, the importance of partnerships with the 
community, and the ever-evolving use of technology and data, 
including to help us identify who's at greater risk--at greater 
risk for maltreatment in the future are fundamentally changing 
the path to success for child welfare systems. Reform efforts 
should have processes in place to adapt to these new 
opportunities.
    Which brings me to my final point. Child welfare cannot 
serve the needs of all children and families who are or may 
become at risk. Many of the children and families who are 
involved with child welfare agencies are already known to other 
agencies beyond the child protection system itself. But consent 
decrees place responsibility for performance and improvement 
solely on the child welfare agency. Child safety is a community 
responsibility, and any discussion of the merit or challenges 
of consent decrees ought to consider how to best support 
collaboration and shared responsibility as a means of achieving 
successful reform without the necessity of a lawsuit.
    Thank you.
    [Prepared statement of Mr. Sanders follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Palmer. I thank the gentleman.
    The chair recognizes Mr. Weissman for his testimony.

                  STATEMENT OF ROBERT WEISSMAN

    Mr. Weissman. Thank you, Mr. Chairman.
    In 2002, Dr. Greg Gulbransen was backing his SUV into his 
driveway. As he did every evening, he paused, looked in his 
rearview mirror, looked over his shoulder, saw nothing behind 
him, and backed into the driveway. What he didn't see was that 
his two-year-old son Cameron had run into the driveway behind 
him, and he backed over his son and killed him. It's 
unimaginable.
    Dr. Gulbransen I would say is a hero of mine. I don't think 
I could have survived that, but he did and chose to turn his 
tragedy into a crusade to make sure that other parents didn't 
suffer the same horror that he did. He lobbied this Congress 
and in 2008 succeeded in getting passed the Cameron Gulbransen 
Act, which required automakers to adopt technologies to prevent 
that from every happening again. That technology existed then 
and it exists now. We're familiar with it. It's effectively 
rearview cameras in cars.
    The legislation that this Congress adopted required the 
Department of Transportation to adopt a rule by 2011 to force 
automakers to install this technology and to prevent this 
horror from happening in the future.
    The Department of Transportation did not act by 2011. 
Instead, it gave itself four extensions, although it was unable 
to show, as the statute requires, that there was some reason 
for those extensions.
    In 2013, my organization Public Citizen sued the Department 
of Transportation to force it to comply with the rule and the 
deadline established by this Congress.
    In 2014, although we did not settle the case, it was 
dismissed because the agency finally committed to do what the 
Congress had required it to do, years later.
    The consequence of that delay is that we have a lot more 
Cameron Gulbransens. We have hundreds of children. We may not 
know their names, as we do Cameron, but they were run over in 
preventable accidents. That's what it means when regulations 
aren't issued on time, as required by this Congress. Now, this 
is actually a small example, but it's a heart-wrenching one.
    As I explain in my written testimony, regulations adopted 
pursuant to congressional action save this country enormous 
amounts of money, they make our economy stronger, they protect 
the lives of Americans, prevent corporate rip-offs, and achieve 
a variety of social aims.
    Unfortunately, agencies are growing slower in issuing new 
regulations. My written testimony discusses research we've done 
on this. For substantial regulations, it is very difficult for 
an agency to get a rule done in the course of a single 
presidential term.
    Delays aren't just growing; they are the norm when it comes 
to statutory deadlines. Those are deadlines required by this 
Congress. The agencies routinely fail to meet those deadlines. 
When they do fail to meet the deadlines established by this 
Congress, organizations like mine are proud to step in and 
enforce the standards, the deadlines that you have established. 
We did that in the Cameron Gulbransen case. We do it in others.
    Those deadline suits or enforcement suits hold agencies 
accountable to the Congress and help achieve the important 
objectives that Congress has sought to do. They do not lock the 
agencies into any substantive outcome. They only force the 
agencies to comply with schedules already determined by this 
Congress. They don't actually comply; they just comply less 
slowly than they otherwise would. These are lawsuits that the 
Congress should both embrace and appreciate as enforcement 
mechanisms for the laws that you have passed.
    I want to say just a final quick word on the issue 
generally of settlements apart from enforcement or deadline 
suits. As I discuss in my testimony, I think there are some 
serious issues at the Department of Justice regarding where is 
an enforcement agency and entering into settlements or not 
prosecuting corporations for wrongdoing. I think there is 
bipartisan--there's been expressed bipartisan concern about 
that issue, whether it's civil settlements or deferred or non-
prosecution agreements regarding big banks and other large 
corporations, and I think that would be an area of very 
fruitful investigation by this committee.
    Thank you very much.
    [Prepared statement of Mr. Weissman follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Palmer. I thank the gentleman.
    I now recognize Mr. Geffken for his testimony.

                  STATEMENT OF CARL E. GEFFKEN

    Mr. Geffken. Thank you, Chairman.
    Chairmen Palmer and Farenthold, I am pleased to join you 
and your fellow subcommittee members for today's important 
hearing on public policy considerations behind Federal 
litigation settlements. On behalf of the city of Fort Smith, 
Arkansas, I want to thank the committee for allowing me to 
share with you our experiences regarding the Fort Smith consent 
decree with the EPA and the State of Arkansas. I can assure you 
the city has taken this consent decree seriously. In fact, not 
only has the city raised its sewer rates 167 percent in three 
years, but it also has complied with all the provisions 
contained in the consent decree to date.
    We seek successful implementation of all sewer utility 
improvements within the consent decree. However, the city has 
major concerns about future compliance because aspects of it 
are unattainable for the city.
    Fort Smith has a population of 87,351, but it is also a 
regional metropolitan center in northwestern Arkansas of about 
300,000 and the largest manufacturing hub in the State. 
Unfortunately, it has experienced some manufacturing setbacks 
due to business relocation and foreclosure. Twenty-nine percent 
of Fort Smith's population live below the Federal poverty line, 
while the national average is 14.7 percent. One of more 
troubling statistics is the fact that the median household 
income for the city is decreasing.
    When the consent decree was finalized in 2015, the MHI was 
$37,600, 32 percent lower than the national average. Today, 
Fort Smith's MHI is now projected to be $33,500, 11 percent 
lower than two years ago. While our resident's incomes dropped 
11 percent, the sewer utility bills have increased 167 percent 
to pay for the initial work on the consent decree.
    Leading up to the consent decree, the city was under an 
administrative order with the EPA, one of the oldest active 
administrative orders in the country. However, the city was 
actively attempting to improve the compliance issues raised by 
the EPA by investing $200 million in its sewer infrastructure. 
Unfortunately, having one of the oldest administrative orders 
may have made us a target for enforcement.
    Despite our willingness to comply, the Department of 
Justice and the Arkansas State Attorney General browbeat and 
coerced Fort Smith into accepting a consent decree. The city 
was presented with two options: spending millions in legal fees 
required to contest the consent decree or accept it.
    The consent decree has many features and requirements in it 
that are typical of many other decrees. However, there are six 
items in the consent decree the city believes are not realistic 
and need modifying. The six items are, first, the city has only 
12 years to complete the consent decree; however, there are at 
least 12 cities who were granted 20 to 25 years to comply.
    Second, the consent decree contains a detailed and 
prescribed list of tasks that must be performed over the 12 
years. It does not allow for adequate flexibility or an 
iterative approach to maximize public benefits with limited 
dollars available.
    Third, the cost of the consent decree exceeds the Federal 
guideline of 2 percent of median household income. The sewer 
portion alone of the city's utility bill is already at 2.2 
percent of MHI, and rates will need to increase further in 
order to complete the consent decree. Funds over and above the 
amount needed for the consent decree will be needed for non-
consent decree projects.
    Fourth, stipulated penalties in consent decrees are 
counterintuitive. Assessing penalties is a tool to change 
behavior. However, Fort Smith worked on sewer issues prior to 
the consent decree. When a city is complying with its consent 
decree, assessing penalties only reduces the funds available to 
comply in the future.
    Fifth, Fort Smith's consent decree is flawed in that there 
is a set, fixed time to complete it, but the ultimate scope of 
the projects and the actual cost of these projects was unknown 
when the consent decree was finalized.
    And sixth, the consent decree requires Fort Smith to repair 
structural problems instead of focusing on spending those 
dollars where it will have the greatest impact.
    The city shares its experiences and concerns with both 
subcommittees to show that Fort Smith has made every effort to 
comply with the Federal Clean Water Act. The city is spending a 
great deal of time, money, and effort on the consent decree. 
However, the current consent decree has a price tag of over 
$450 million. That makes it the single largest project in the 
city's history, and it is more than two years of Fort Smith's 
total budget for all government functions. In addition, the 
cost of this agreement has resulted in utility rate fatigue 
amongst our residents.
    As the Fort Smith sewer utility rates rise, our city 
becomes less competitive for private economic investment. What 
company would choose a city in which sewer utility rates are 
three to four times higher than non-consent decree cities? This 
results in cities becoming poorer and exacerbates decreasing 
investments in cities. It is an unrealistic attempt to coerce 
compliance. Cities in consent decrees become less able to 
comply financially.
    The modification that we will eventually propose to the EPA 
will be aggressive in compliance, affordable to the community, 
and provide the greatest public benefits for the dollars 
invested.
    Thank you for the opportunity to share the Fort Smith 
perspective on Federal consent decrees, and I will be pleased 
to answer any questions you may have.
    [Prepared statement of Mr. Geffken follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Palmer. I thank the witnesses for the testimony.
    The chair now recognizes the gentleman from Tennessee, Mr. 
Duncan, for five minutes.
    Mr. Duncan has left the hearing.
    The chair recognizes the gentleman from Arizona, Mr. Gosar, 
for questions for five minutes.
    Mr. Gosar. Thank you, Mr. Chairman.
    As we talk about sue-and-settle and their associated cost, 
I want to focus a little bit on the EPA. In the last few years, 
we have seen the EPA run rampant, imposing extraordinary costs 
on States. We know that the EPA and other Federal agencies 
collect fines and enforce penalties when consent decrees have 
been violated. Mr. Geffken, do you know where these fines go 
once they are collected?
    Mr. Geffken. Representative, I believe they go into the 
Federal coffers. I know when Fort Smith entered its consent 
decree, it had to pay $300,000, and the main goal of our--of 
the consent decree relates to sewer sanitary system overflows, 
and we were hit with stipulated penalties that were thankfully 
waived after much pushing back, but that was to go into the 
Federal coffers back to the EPA.
    Mr. Gosar. Into the EPA ----
    Mr. Geffken. Yes, sir.
    Mr. Gosar.--specifically?
    Mr. Geffken. Yes, sir.
    Mr. Gosar. Okay. Now, do you ever receive assistance 
through Federal grants to assist in being compliant?
    Mr. Geffken. No, sir, neither in the city of Reading, nor 
in the city of Fort Smith. The only benefits we can get are 
usually from the States if they have available funds.
    Mr. Gosar. Are you aware of any other municipality getting 
any type of grant to assist them?
    Mr. Geffken. No, sir.
    Mr. Gosar. Okay. So other than being fined for 
noncompliance and then being stuck with the bill to fix the 
problem, how else can consent decrees be duplicative?
    Mr. Geffken. One more time, sir?
    Mr. Gosar. So being fined for noncompliance and then being 
stuck with a bill to fix the problem, how else are consent 
decrees duplicative?
    Mr. Geffken. They--well, that's--your first example is the 
most telling, that we're having to spend $450 million and then, 
while we're in the consent decree, if there is a violation, 
which we could be charged a stipulated penalty.
    But in terms of other duplicative actions, you know, there 
are areas that we already have NPDES permit levels, and that is 
one area that we have the consent decree that requires certain 
actions, and yet there are certain--there are other compliance 
avenues that we have that duplicate the need to update and 
maintain our system.
    Mr. Gosar. Now, we have obviously seen a number of changes 
with the new administration, so how have things differed 
between the last administration and this one?
    Mr. Geffken. At this point I can honestly say that we have 
seen a greater benefit to having discussions and a willingness 
to take our requests under consideration.
    Mr. Gosar. So more flexibility?
    Mr. Geffken. Yes, more flexibility.
    Mr. Gosar. Isn't it true that the EPA, under the direction 
of Administrator Scott Pruitt, recently waived all penalties 
owned by the city of Fort Smith?
    Mr. Geffken. That is correct.
    Mr. Gosar. Now, can you explain the impact these fines make 
both in terms of the additional fees associated with them and 
in terms of being waived?
    Mr. Geffken. Well, we had the--we were going to be assessed 
approximately $400,000 for violating the corrective actions 
that are in the consent decree, and that was reduced to 
$120,900. And we spoke with the EPA and the Department of 
Justice, and they were able to waive that after much 
discussion. We were very grateful for that flexibility, but it 
is still--that is money that's taken away from doing other 
work. We offered to spend that money to clean sewer lines in 
order to go on green projects, and it was denied until such 
time as there was a change in the direction and greater 
flexibility.
    Mr. Gosar. Now, many times specialists are called in to 
investigate as well. Do you know how many of these cases are 
settled at a rate inconsistent with the manner set forward with 
Congress?
    Mr. Geffken. I'm sorry, I didn't hear that one.
    Mr. Gosar. Yes. Do you know how many of these cases are 
settled at a rate consistent with the manner set forward from 
Congress?
    Mr. Geffken. Well, many of them actually do result in 
consent decrees.
    Mr. Gosar. Right.
    Mr. Geffken. Instead of moving forward and looking to go 
through the legislative path, we wind up having cities that are 
poorer like Reading and starting to look like Fort Smith that 
are having to take their scarce resources and put them in one 
project instead of being able to spend it on many different 
areas that the city needs.
    Mr. Gosar. Yes. What I am alluding to is in many cases in a 
sue-and-settle application and particularly highlighting maybe 
an endangered species, what ends up happening, we don't see a 
rate that is being utilized that is consistent with Congress. 
What we see is specialists actually being jacked up because 
there are only so many people that have so many--have the 
expertise in certain areas. And it is very inconsistent with 
what Congress.
    Last but not least, in our first question in talking about 
fees, I don't think Congress dictates how the agency actually 
spends those. They are up to the agencies' flexibility to 
whatever they would like to do, and so that is problematic in 
that regards to perpetuating certain agenda items that may not 
be consistent with what Congress. Giving you an example of that 
is the Waters of the U.S. Here, you had parts of five Supreme 
Court rulings defying the EPA even going to that aspect, and 
yet they still did. And so once again, it took an action by the 
States to reel them back in to actually stop the promulgation 
of a false type of narrative.
    So I want to thank you very, very much for your testimony 
today, and with that, I yield back.
    Mr. Palmer. The chair recognizes the gentlewoman from 
Florida and ranking member, Mrs. Demings, for her questions.
    Mrs. Demings. Thank you so much, Mr. Chairman.
    Mr. Weissman, I want to take just a few minutes to discuss 
the benefits of rulemaking as it pertains to public health. 
According to the Center for Disease Control, foodborne 
illnesses contribute to about 48 million illnesses, 128,000 
hospitalizations, and 3,000 deaths per year. The Food Safety 
Modernization Act is one of the most pivotal pieces of 
legislation that transformed our food safety industry. 
President Obama signed it, as I am sure you know, in 2011.
    Mr. Weissman, how will the Food Safety Modernization Act 
help to prevent foodborne illnesses and prevent the loss of 
economic activity attributable to sicknesses and deaths caused 
by those illnesses?
    Mr. Weissman. Well, thank you, Ranking Member.
    The act was passed after an amazing series of outbreaks of 
disease, salmonella, listeria, and other outbreaks. Because 
neither the--no agency, including USDA or FDA, had proper 
authority to ensure cleanliness in the fields and in processing 
factories. The Food Safety Modernization Act gave new 
authorities to the agencies, required them to issue some rules, 
which, as an aside, they were slow in issuing but is projected 
to save really thousands of lives by cleaning up our food 
supply.
    And I think in this case, as in many others--and your 
question alludes to this--the benefit is not just to the people 
who will avoid being sick, which is reason enough. There are 
massive economic benefits as well. When the cantaloupe industry 
is suddenly hit with an outbreak and no one buys cantaloupes, 
it affects the farmers, it affects the workers in the fields, 
it affects the stores that are selling the food, it affects the 
restaurants that wanted to serve dishes made with cantaloupe. 
It really goes all the way up, as it were, the food chain. It 
has broad economic impact.
    Mrs. Demings. You led, Mr. Weissman, with the story of 
Cameron Gulbransen, and you are right; it is a small example. 
He was two years old. But certainly, his death will have major 
lasting impact. Once the Kids Transportation Safety Act was 
passed, the transportation industry delayed implementing it. 
So, Mr. Weissman, what does history teach us? Why can't we just 
rely on the industry to prevent health and safety problems 
without Federal laws and regulations?
    Mr. Weissman. Well, on this, the history is overwhelming. 
Self-regulation will not work. The--although industry is 
incredibly innovative and sometimes on its own introduces 
lifesaving innovations, by and large, it also has a history of 
covering up defects in a wide array of products, failing to 
adopt new technologies that could save lives or protecting the 
environment, and responds primarily to new government mandates. 
When it does so, the retrospective analysis shows the costs are 
dramatically less than the industry insisted they would be, 
almost without exception, but the benefits are really enormous. 
There are endless examples of this, including many in the auto 
industry.
    In addition to this issue that we talk about with rearview 
cameras, we just think about the many abuses in the auto 
industry in recent years, including the GM ignition switch 
disaster where they covered up for at least six years and 
potentially longer what they knew about a flaw in their car 
leading to, as they've acknowledged, 174 preventable deaths, 
potentially many more.
    Now, people who were involved in accidents relating to that 
defect were prosecuted personally for manslaughter or for 
unsafe driving or sometimes driving under the influence. The 
problem wasn't the driver; the problem was the manufacturer. 
The manufacturer was not criminally prosecuted. They got off 
with a deferred prosecution and a payment of $900 million, a 
lot to you and me but not to them and, again, evidence both of 
their recklessness and their readiness to cover up safety 
problems unless forced by government to do the right thing.
    Mrs. Demings. Thank you so very much. Mr. Chairman, thank 
you, and I yield back.
    Mr. Palmer. The chair now recognizes the gentlewoman from 
North Carolina, Ms. Foxx, for her questions.
    Ms. Foxx. Thank you, Mr. Chairman. And I want to thank our 
witnesses for being here today and shedding light on this very 
important issue to all of us.
    Governor Engler and City Administrator Geffken, I would 
like to ask you a question. States are responsible for the 
administration of many Federal programs, including medical 
insurance, environment projects, housing, and food stamps. In 
fact, the Chamber of Commerce found that States administer 96.5 
percent of all Federal delegated environment programs, yet 
Federal categorical grants to States fund no more than 28 
percent of the amounts needed to run the programs. Can you 
explain how consent decrees compound the problem of Federal 
unfunded mandates? Governor Engler and then Administrator?
    Mr. Engler. Thank you, Madam Chair. I think this is--you 
put your finger right on one of the real important abuses that 
exist. There are Federal mandates. Special education was one 
where there was a promise initially that, as you're familiar, 
half that was going to be funded by the Federal Government. I 
don't know that funding has ever exceeded, you know, 20 percent 
of the total cost. It's--but there are efforts then to use the 
litigation at the State level--and I'm--I know we're talking a 
lot about Federal laws and Federal agency rulemaking, but at 
the State level, it's a different issue. And your question goes 
to the heart of it.
    The litigation is designed to push the State into setting 
different spending priorities on the basis of which activist 
group happens to be pursing the litigation. It could be an 
education, it could be over in the environmental area, it could 
be a prisoners' rights group, but this is a process that we 
call the appropriations process at the State level where 
committees of the House and Senate fight these things out with 
the Governor's budget.
    The consent decree is an effort to come in on top of that, 
and one of the things that I--was in my testimony I will just 
stress, you have to look at who these parties are. Sometimes, 
in the legislature there's a difference between the two parties 
and we may have a different priority than the Governor but we--
we've seen examples, and I can recall one where the corrections 
agency couldn't get what they wanted in the legislature, 
actually encouraged the litigation against the Department. The 
Department then says, oh, we've been sued; we better settle. 
They reach an agreement, which is to do exactly what they 
couldn't do politically in the legislature. Then they show up 
back at the legislature saying, hey, we've got a court order; 
we've--you have no choice. And at that point you don't.
    In my case, I happened to later on get elected Governor and 
went back to court to say we need to be freed from these 
consent decrees. And these were consent decrees--in Michigan's 
case, I got elected in 1990. One of these started in 1977; the 
others started in 1984.
    So to get to your question, whether it's education or any 
of these other areas, this is all a fight about spending 
priorities and who gets to decide, and I always come down on 
the side of let those who get elected fight these fights out. 
They're political questions. They're not legal questions unless 
there's an assertion there's been a deprivation of some 
federally constitutionally protected right, and in many of 
these cases, I think that's a very dubious proposition.
    Ms. Foxx. Mr. Geffken?
    Mr. Geffken. Thank you, Representative Foxx.
    In the case of the consent decree dealing with wastewater 
and stormwater issues, we believe that the EPA has pressured 
the States to step aside from their primary enforcement role 
and relinquish that back to EPA. And then the problem that we 
have with consent decrees is that both the Department of 
Justice and EPA, they do want comprehensive relief and not have 
the continued time--they don't want to spend continued time or 
money on overseeing these massive programs. And so frequently, 
rather than allowing communities to develop an integrated or 
innovative program, let's say, in five-year increments, they 
want 20 or 25, unfortunately, only 12 in the case of the city 
of Fort Smith.
    And so you wind up getting caught up and your hands are 
tied that in the case of Fort Smith, we see where we now need--
where we need to spend our money on improving the goal of the 
consent decree because we do believe in making sure that there 
is clean water. However, we are required to replace pipes that 
are ranked on a specific and agreed-upon scale that if it's a 
problem of four or five, the pipe needs to be replaced. It may 
not be causing an issue yet, but it must be replaced due to the 
consent decree instead of allowing us to focus where we can 
have the greatest bang for the buck.
    The problem we're looking at is that we agree with the 
Clean Water Act. We want to make sure our residents have clean 
water and that everything is handled and treated properly, but 
the cure in some instances is killing the patient.
    Ms. Foxx. Thank you, Mr. Chairman. I yield back.
    Mr. Palmer. The chair now recognizes the gentlewoman from 
the Virgin Islands, Ms. Plaskett, for her questions.
    Ms. Plaskett. Thank you very much, Mr. Chairman.
    Mr. Geffken, although you are from Arkansas and my first 
husband is from Arkansas so I have a bias against it, Arkansas 
has been good to me. One of my sons is a graduate of University 
of Arkansas Pine Bluff in applied mathematics, so--but one of 
the things that you said is very intriguing to me and I would 
love to find a colleague across the aisle who might be 
interested in working on this issue is when you talk about the 
fines in the consent decrees and that they are going 
specifically to the Federal Government.
    While I understand the punitive impetus in creating those 
fines, I think that for areas like your own and I know in the 
Virgin Islands that those fines mean that there is less money 
to actually do the work that needs to be done. And so if there 
is a way that we can, through legislation, work on some of 
these areas being able to be fined necessarily but that money 
somehow be funneled back into working on the issues that the 
consent decree is for, I would be happy to work with someone on 
something like that. I think that is really important.
    EPA has created fines for the Virgin Islands that are very, 
very restrictive to us growing our economy, and so that is 
something that I hear you on and would be willing to support 
you, despite being from Arkansas.
    [Laughter.]
    Ms. Plaskett. But, Mr. Weissman, I wanted to thank you for 
your testimony as well and wanted to talk with you about the 
economic importance and the economic rather detriment or 
contribution that consent decrees have had. That is something 
that is very, very important to me, and I think that, as 
lawmakers, in creating these laws, that is something that we 
require to be done on the front end.
    It has been your testimony and studies that we have been 
looking at in the Office of Management and Budget has found 
that major Federal regulations have produced annual benefits to 
the U.S. economy of between $269 billion and $872 billion. Mr. 
Weissman, does this surprise you that the net impact, the net 
impact of Federal regulations is positive, meaning there is an 
overall economic benefit to those regulations?
    Mr. Weissman. It's--you're correct, and it's not surprising 
to me both because I'm aware well of that data, which, as you 
say, shows, depending on the range, benefits exceed costs of--
by 2-1/2 to 1 or maybe as much as 12 to 1 over the decade 
period that you're referring to, so 12 to 1 is quite 
substantial.
    Ms. Plaskett. So can I ask, when we talk about--I mean, 
there are costs, and we have heard testimony today about the 
costs, which are real. How does that economic benefit actually 
take place, and where is that benefit being felt? Where does it 
play itself out in our economy?
    Mr. Weissman. Well, there are a lot of areas. The benefits 
are generally diffused. They're not focused on individual 
persons or individual corporations. They may be the benefits of 
averted illness, averted asthma, averted death in the case of 
the Cameron Gulbransen Act that we were talking about. They may 
be in consumer savings by the introduction of generic drugs, 
for example. They may be in the area of averted harm to the 
economy in the area of many of the Dodd-Frank rules. They may 
be savings to consumers by preventing rip-offs, and on and on.
    It's worth pointing out that the regulatory processes that 
currently exist requirements what some might say--and this is 
prior to the Trump Administration--an excessive focus on costs. 
It is almost never the case that an agency proceeds with a 
rulemaking where the costs, as defined in a corporate-friendly 
way, exceed the benefits.
    There are about two examples that I'm aware of over the 
last decade, and in those cases, Congress required the agencies 
to act. It's also--I'll pause there.
    Ms. Plaskett. So, you know, you are talking then about the 
requirements. I know that Congress itself requirements the cost 
of prospective regulations be considered before a final rule is 
ordered, and additionally--excuse me--OMB's annual report to 
Congress on agency compliance requires that each agency conduct 
a cost-benefit analysis and select the least-costly, most cost-
effective or least-burdensome alternative before promulgating 
any proposed or final rule that may result in expenditures of 
more than $100 million in at least one year by State, local, 
tribal governments or by private sectors.
    So the Federal agencies are already required to do 
extensive economic analysis prior to issuing those regulations?
    Mr. Weissman. Yes. It varies by agency, by statute, and how 
the OIRA rules apply, but the general statement that agencies 
are required to look hard at costs before proceeding is 
correct.
    Ms. Plaskett. Thank you. And it appears I have run out of 
time. I yield back. Thank you.
    Mr. Palmer. The gentlewoman yields back.
    The chair recognizes the gentleman from Montana, Mr. 
Gianforte, for his questions.
    Mr. Gianforte. Yes, Thank you, Mr. Chairman and Ranking 
Member.
    My questions are for Mr. Geffken. Were you aware that the 
Justice Department's Environment and Natural Resources Division 
identified the city of Fort Smith as, quote, ``the most 
important case'' in all the settlements they negotiated by the 
division in 2015?
    Mr. Geffken. Thank you, Representative Gianforte. I did not 
know that. That is troubling to a city administrator because 
the board of directors approved the consent decree 
begrudgingly. When you have the world's largest law firm coming 
down and saying that, well, if you don't accept this, I have 
the complaint ready to be filed immediately. From my 
experience, I would have called them on that. I did not know 
that that is what it was.
    Mr. Gianforte. Yes. And in the fiscal year 2015 
Accomplishments Report the Department of Justice wrote, quote, 
``The city of Fort Smith agreed to spend what it estimates to 
be more than $480 million,'' end quote, on upgrades to its 
sewer system and $700,000 in civil penalties and costs. Do you 
believe that the EPA and the Department of Justice targeted 
Fort Smith with the intent to pressure the city into a consent 
decree?
    Mr. Geffken. I would have to answer in the affirmative on 
that. I mean, we did have the oldest administrative order 
outstanding. However, we did have--we did spend over $200 
million to come into compliance. And we had replied to the EPA 
on several occasions, but as is wont of happening, you do not 
get much reply back. We've asked many times who else has a 
consent decree that is only 12 years? Who else has a consent 
decree where the bill, the cost is already over 2 percent of 
median household income? We have yet to receive any of that 
information ourselves.
    So, to say that Fort Smith was targeted, I mean, I would 
believe so. The--in many instances it's good to make an example 
of someone, but unfortunately, the Federal consent decree will 
cost each and every household in Fort Smith over $15,000.
    Mr. Gianforte. Yes. And also in your comments you said, 
quote, that the Justice Department ``browbeat and coerced Fort 
Smith into accepting this consent decree.'' What are some of 
the ways that they did that?
    Mr. Geffken. Well, as I mentioned before, one of the 
largest ways that--during the negotiations that if there was a 
contentious point, the city and its attorney were told that if 
you don't accept it, the complaint is already written and we'll 
just go ahead and file it. And this being my second consent 
decree, I wasn't there, but I have done a lot of my research 
with the city's attorneys and the staff that were there, and 
when you have the Department of Justice and the--at the time 
the former State Attorney General saying you need to take this, 
you need to accept this, it's very hard for a city that's on 
its own, you know, 87,000 people to try to say no to the United 
States Government, or the United States, as they're referred 
to.
    Mr. Gianforte. Yes. And you also mentioned--you told the 
committee that, prior to entering into the consent decree, the 
EPA had sent you a letter acknowledging and thanking the city 
for the work it had performed prior to that point.
    Mr. Geffken. Yes, sir.
    Mr. Gianforte. When did the EPA and the Department of 
Justice's approach to Fort Smith shift from a collaborative 
relationship to one that was more antagonistic?
    Mr. Geffken. I believe that was the 2013 time period is 
when that shift came. There was also a change in the staff 
assigned to the Fort Smith case at the Department of Justice. 
And so it did go from a more collaborative ``let's work 
together.'' And just as Representative Plaskett may know, that 
in Arkansas, the majority of funding is raised through sales 
tax, not through property tax as in Pennsylvania, New Jersey, 
New York where I'm from. So, the citizens approved a 1 cent 
sales tax to pay off debt, which is a large commitment by such 
a small city to raise $200 million.
    Mr. Gianforte. And just to put a point on it, if you could 
just summarize very quickly, what are some of the ways that 
consent decree has harmed the community of Fort Smith, 
particularly the lower-income families?
    Mr. Geffken. Well, you know, we have people--we have 
residents that worry when their rent for their, you know, 
husband, wife--and it is literally two children will go from 
$350 to $450 per month ----
    Mr. Gianforte. Okay. Thank ----
    Mr. Geffken.--and then ----
    Mr. Gianforte. Thank you, Mr. Geffken.
    Mr. Geffken. Thank you.
    Mr. Gianforte. Yes. I yield back.
    Mr. Palmer. The gentleman yields.
    The chair now recognizes the gentleman from Missouri, Mr. 
Clay, for questions.
    Mr. Clay. Thank you, Mr. Chairman.
    The underlying issue of this hearing is the value of civic 
participation. Citizen suits are an avenue for Americans to 
right wrongs and compel the government to do better. When 
Americans bring attention to agency noncompliance, they act as 
an extension of their government, a lever to enforce the laws. 
Republicans would like to discourage that. If they get their 
way, they will foreclose a channel that has literally saved 
lives, not to mention money.
    Mr. Weissman, what are some chief benefits from successful 
citizen suits?
    Mr. Weissman. Thank you very much, Mr. Clay. The example I 
highlighted is one. I highlight in my testimony another 20-year 
effort on the part of my organization to have a rule issued 
requiring new truck drivers to be adequately trained. In the 
environmental area, citizen suits are quite common to enforce, 
again, congressionally made law and congressionally established 
deadlines, particularly in the clean air area with many lives 
saved and asthma attacks averted.
    The list is really very, very long, and it's--
unfortunately, it's so long because there should be no need for 
these suits. These are suits, again, just to enforce what 
Congress has directed the agencies to do.
    Mr. Clay. And thank you for that response. You know, some 
of the legislation congressional Republicans support would 
delay the rulemaking process, make agency action more expensive 
or impractical. The main goal is to do away with consent 
decrees, yet continuing litigation can often be far costlier 
than settling. I know a little bit about consent decrees 
because I represent Ferguson, Missouri. And we entered into a 
consent decree last year with the Justice Department that made 
significant changes to the way the criminal justice system was 
conducted in that community, and it has reaped benefits for 
that community.
    So, Mr. Weissman, can you elaborate on the cost-
effectiveness of consent decrees?
    Mr. Weissman. Thank you, sir. Well, you know, in regard to 
the consent decrees involving local and State Governments, I'm 
sure there are many examples and some cited here where things 
have gone awry, but the predicate for all of those lawsuits is 
the failure by a State or local government to comply with 
federally established rights. That's for sure what was 
happening in Ferguson, as well as in many police departments 
around the country. I think there is overwhelming agreement 
that those consent decrees, not unimportant, have meaningfully 
improved police performance in cities across the country.
    Mr. Clay. They certainly have. And, Dr. Sanders, thank you 
for your work in the foster care space at the Casey Foundation 
that impacts so many lives in such a meaningful way. You have 
seen firsthand how States have devoted more resources to foster 
care programs in response to consent decrees, correct?
    Mr. Sanders. That's correct.
    Mr. Clay. And it sounds like in this context foster youth 
are positively impacted when States in crisis are forced to act 
via consent decrees? Do you agree?
    Mr. Sanders. I would agree in some cases. In other cases, 
it doesn't appear that there have actually been improvements 
for children, their--improvements in their outcomes.
    Mr. Clay. Well, and I would think that that would be 
debatable because we know of--we all know of some atrocities 
that occur in the system, so anything that improves that, that 
protects the lives of those young people has to be beneficial. 
You know, Congress should not continue down a path that weakens 
civil participation and citizens' abilities to stand up for 
their rights. And I would hope that if we get anything out of 
this hearing, Mr. Chairman, is that citizens still need to 
participate in our process in an open process.
    And with that, I yield back.
    Mr. Palmer. I thank the gentleman for that last point.
    The chair now recognizes the gentleman from Wisconsin, Mr. 
Grothman, for his questions.
    Mr. Grothman. Well, Dr. Sanders, I will keep you going 
here. You cite in your testimony that child welfare consent 
decrees work against the people that are trying to help. Can 
you give us examples or elaborate on that a little bit?
    Mr. Sanders. Over the last 15 years, there have been 
numerous developments in brain science, in research around 
predictive analytics, other efforts that have resulted in 
improvements in the ability of government agencies to protect 
children. The consent decrees often lock States into agreements 
that were made at a point in time and don't allow the kind of 
flexibility that can be implemented to increase the likelihood 
that children will be protected.
    So, examples would include some of the States like 
Tennessee that were sued more than 15 years ago and aren't able 
to implement some of the research changes that have occurred 
more recently to improve lives of children.
    Mr. Grothman. Let's take an example of a kid. We will call 
him Joshua, you know, a fictional kid maybe, but Joshua, a 
child who--how would we deal with him without the consent 
decree and because of the consent decree, how are we dealing 
with him, hurting him?
    Mr. Sanders. I may take the liberty and suggest that part 
of the solution would be if there were an ability to modify the 
consent decrees more regularly based on changes in Federal 
regulation, changes in State performance, et cetera. That 
doesn't happen as much as we think it should.
    So, in Joshua's case, it's quite possible that Joshua, as a 
result of the consent decree, would be seen more frequently by 
a social worker. What might not happen is that Joshua's social 
worker would be better trained in trauma-informed practice, 
which is emerging as a way to keep children safe. And so the 
visits might occur, but the actual improvements in Joshua's 
performance and by the social worker may not occur.
    Mr. Grothman. Can you give me an example of, say, in 
Joshua's case this is what happens to him under the consent 
decree and this is what we would be able to do differently?
    Mr. Sanders. So under the consent decree we can assure that 
the State will send a social worker out to see Joshua. Under a 
consent decree, that would occur. What would not occur is that 
that social worker may be trained in new techniques that would 
result in Joshua actually being safer.
    Mr. Grothman. Okay. In New Jersey in 2004 because of a 
consent decree, the State invested billions of dollars in its 
child welfare program, but they still haven't been able to exit 
their consent decree. In March of this year the Federal judge 
overseeing the case called New Jersey's program a national 
model. If the program is really so successful according to the 
Federal judge, why hasn't the State been able to exit from the 
consent decree?
    Mr. Sanders. I'm not entirely sure. What I speculate based 
on knowing something about New Jersey is that there are 
measures that have not yet been achieved that were part of the 
initial settlement agreement, and there is a continuing need to 
improve on specific measures that were agreed to at the time 
and that there is not 100 percent compliance.
    Mr. Grothman. Okay. Governor Engler, I think the whole 
problem here with consent decrees is it kind of gets at our 
whole form of government, okay? Like it or not, every November 
and spring elections, people show up and vote for people who 
they want to have vote on our laws. The idea behind consent 
decrees is that this system of elections doesn't work very 
well, and we'd be better off determining our laws when some 
bureaucrats and judges and lawyers get together and decide what 
they will be, right? So it is kind of--the whole idea is 
opposed to kind of our whole form of government. But can you 
give us some examples of consent decrees that you think were 
damaging to Michigan in your term as Governor?
    Mr. Engler. Sure. We had a Federal judge--this started in 
1977, but Judge Feikens, the late Judge John Feikens was in 
charge of the women's prisons in Michigan, and he referred to 
those as his women and he was very solicitous about what needed 
to be done in those prisons and he had lots of opinions. And we 
had a monitor that he had appointed, and basically, he was in 
charge of the prisons. He was setting policy and instructing us 
to, you know, follow that.
    We had another judge who was dealing with prisoners who 
were dealing with mental illness, and in that case, when I 
became Governor, we were being fined I think $25,000 a day was 
the suggested fine for the State because of the previous 
administration failing to comply with the consent decree.
    In both of those cases, what I found from our corrections 
experts, the people running the department, is that they 
thought having to take the temperature of the oatmeal being 
served or to be monitoring the temperature of the showers or a 
number of other reporting requirements were imposed had gone 
far beyond the pale. And they were arguing that you had 
differences in opinion respecting different philosophies I 
suppose that--of how we ought to run this system. And we even 
had at a point a requirement that we could only put one person 
in a cell, which we had--we thought that was pretty limiting in 
terms of our prison capacity.
    The latest one, which I made the decision as Governor not 
to enter into consent decrees. I said, look, we'll litigate 
these. My legal services actually are free. I've got the 
Attorney General to do that, so we'll fight these. And so we 
did not do that, but after I left, my successor entered into a 
consent decree which now has run, you know, for several years. 
It's going to be $50 million a year is what they're saying. 
This one is Dwayne B. v. Granholm against the Human Services, 
and it was brought by a New York group called Children's 
Rights, Inc., a perfect example, activist showing up and saying 
this is how you ought to run it. We'd already paid I think $6 
million in attorney's fees for them. They're involved with the 
monitoring and they're involved with the sort of day-to-day 
departmental operation. The State has been trying to modify 
that under Governor Snyder. They had a renegotiation of the 
consent decree. They end up with 211 goals that were part of 
the modified settlement agreement. And so they're not running 
these agencies when you're in that kind of situation.
    And your premise of the question is very important again 
and is something that Congresswoman Foxx mentioned. Who 
decides? And I think it ought to be the men and women who get 
elected. And if there's a deprivation of a constitutional 
right, that's not been a finding in this. This is just a 
difference, a fight over how you ought to run this system.
    And I thought Dr. Sanders' testimony--one of the things he 
pointed out, sometimes you're mandated to spend a lot of money 
even on technology because that's what the masters in 
Washington or the agencies want. That comes maybe at the 
expense of training the caseworker that's dealing one-on-one 
with the client.
    Mr. Grothman. Thank you. I wish I had more time.
    Mr. Palmer. The gentleman's time is expired.
    The chair now recognizes the gentleman from Florida, Mr. 
Ross, for his questions.
    Mr. Ross. Thank you, Mr. Chairman. And I thank the 
panelists for being here as well.
    As a litigator for a little over 25 years, one of the 
things my client and I would discuss is the cost of defense 
because we understand, of course, that the economics of being 
sued, regardless of the principles, weigh just as heavily. And 
so therefore, you see a similar situation here under the APA 
under the sue-and-settle procedure, and the way we have 
addressed it in civil litigation of course has been with regard 
to presumptions, burdens of proof, recovery of attorney's fees, 
limitation of attorney's fees, and that has had somewhat of an 
impact in trying to keep just frivolous cases from being filed 
in an effort to try to force a settlement, again, irrespective 
of the principles but basically just on the economics of 
continuing to defend the litigation.
    So my question to the panel is what would be the most 
impactful way of reforming the process, the APA, in order to 
reduce these consent decrees? And, Governor, I'll start off 
with you.
    Mr. Engler. I had mentioned the Federal Consent Decree 
Fairness Act. That was a few years ago, but they wanted--there 
was sort of three goals in that act, and I think those are 
worthy of discussion in terms of--at least as it relates to 
State and local government.
    Mr. Ross. Right.
    Mr. Engler. One, permit the State and local defendants to 
apply for a modification or a vacation of the consent decree --
--
    Mr. Ross. Based on a significant change in circumstances or 
just ----
    Mr. Engler. Well, the way they ----
    Mr. Ross.--within the discretion of the ----
    Mr. Engler. The way they set it up if there was a change in 
government, for example, as a new Governor coming in, I maybe 
wasn't in that fight, maybe I've got a different approach. I 
mean, I literally went down to a Federal judge's office and sat 
there and we talked through why he was unhappy and what had 
been done. I said, look, I haven't been here, but here's how 
we're going to approach this.
    Mr. Ross. Got you.
    Mr. Engler. Eight, nine years later, we got out of the 
consent decree. I mean--but--so that was a piece of it. The 
other element was to just to say that there ought to be on a 
periodic basis a review of these consent decrees just because, 
again, Dr. Sanders' ----
    Mr. Ross. Right.
    Mr. Engler.--situation changes. The other that I think is 
important is that there ought to be--is there any finding of a 
constitutional issue here? Because sometimes--I mean, you 
literally have a political fight being sort of fought out in 
this, and your observation about the cost of defense, that sort 
of is a seductive argument.
    Mr. Ross. Politically, from an economic--yes, you--I mean, 
you are almost forced into entering into a consent decree 
because you have to justify the expense of defending it.
    Mr. Engler. Yes, but I would say to the Governors and the 
Attorneys General--I actually think the problem is a little bit 
the other way. I think that sometimes somebody is--there might 
be an alignment of political interests trying to do an end run 
around the political system that hasn't previously agreed with 
that point of view.
    Mr. Ross. Got you.
    Mr. Engler. And that ----
    Mr. Ross. Thank you, Governor.
    Mr. Engler.--is also a reason for review.
    Mr. Ross. Thank you. Anybody else?
    Yes, sir, Mr. Geffken.
    Mr. Geffken. Thank you, Mr. Ross.
    You know, when it comes to EPA consent decrees and dealing 
with water, wastewater, when it--the consent decrees are 
comprehensive in nature, so instead of just focusing on the 
issue at hand--and this is a 147-page document that's $475 
million, and its primary goal was to take care of 22 sanitary 
system overflow points. And the problem becomes--it becomes 
much more than that. It becomes looking into fats, oils, and 
greases. It comes into examining each and every pipe and being 
very prescriptive and not iterative. And it also--and the 
biggest way to move forward with this is to allow an integrated 
planning prospect for consent decrees, so not only having a 
five-year window and then reexamining where we're going and 
moving forward but also making sure that we're not 
shortchanging the other aspects.
    You know, the city of Fort Smith spent millions to expand 
Lake Fort Smith, its primary reservoir. It spent millions 
creating a new reservoir, Lee Creek. Now, it's spending 
hundreds of millions of dollars on wastewater, and we still 
need to build a brand-new 48-inch transmission line to come 
into the city.
    Mr. Ross. I understand.
    Mr. Geffken. As it stands, we have to now raise water 
rates, and this is probably ----
    Mr. Ross. Right.
    Mr. Geffken.--the first that residents are going to be 
hearing that, but also then we've raised our sewer rates 167 
percent in such a very short period of time, so an integrated 
iterative plan that takes affordability into account but while 
not taking our eyes off the ultimate goal.
    Mr. Ross. Thank you. One second. Yes, sir, Governor?
    Mr. Engler. Yes. One thing that Mr. Weissman and I--we see 
the problem. We may have analyzed it differently, but it goes 
to what also can be done. We talked about--he testified about 
the openness of the process at the Federal level. One of the 
concerns I've got at the Federal level is the size of these 
fines, and I just totaled up in his testimony, J.P. Morgan, $13 
billion; Citigroup, seven. Anyway, the list of just the banks 
was over $56 billion. That just works out to about two years' 
funding for the Justice Department. Nobody knows where the $56 
billion went, and that would be a good question for the 
committee ----
    Mr. Ross. Okay.
    Mr. Engler.--to determine. Where does the money go? And 
there ought to be a lot of openness because part of the problem 
with this is that these settlements get made, and the 
disposition of the funds is handled administratively, and I 
think the Attorney General is trying to end that practice, but 
that ought to be--those ought to be appropriated dollars if the 
injury was to the public. That's two years' funding for the 
Department.
    Mr. Ross. Thank you. I yield back.
    Mr. Palmer. The gentleman yields.
    I now recognize myself for questions.
    And first of all, Governor, you had asked that ``Consent 
Decrees in Institutional Reform Litigation: Strategies for 
State Legislatures'' be entered into the record, without 
objection, but for transparency's sake, I must confess that I 
am a coauthor of that report.
    One of the points I want to make here is that we are not 
arguing that all consent decrees are bad. In fact, consent 
decrees are a legitimate and useful tool in the legal system. 
They have proven so in both public and private cases. The point 
and focus of this hearing is the abuse of consent decrees, and 
I think we got a little off-track on that, particularly when 
they are used to circumvent the legislative process, which 
denies citizens their right to governance through their elected 
representatives. It is particularly egregious in the direct 
manner in which they bind State and local governments in 
administering their programs and allocating their resources. 
Illinois is a prime example of this. They are currently under 
80 consent decrees, some dating back to the 1970s.
    And just from your perspective as a former Governor, having 
served in elected office--and I also for transparency's sake, I 
have known the Governor for 20 years--you want that 
transparency and that accountability to the voters, which is 
denied them when they are under a consent decree and 
particularly when the consent decree is being administered by 
an unelected judge, an unelected control group, unelected 
bureaucrats, and unelected special master. Is that not 
problematic for representative government?
    Mr. Engler. That's exactly right, and there simply is no 
accountability there, at least no accountability back to 
voters. And we haven't talked about the role of monitors either 
today, but the Federal judge is appointing somebody to kind of 
be the master to oversee. And in the case of the ongoing 
litigation in Michigan, there's somebody that's reporting every 
six months back to the Federal judge.
    Now, the criteria for picking the monitors is sort of in 
the province of the Federal judge. That's often, you know, I 
suppose a qualified university professor or there's a little 
cottage industry of monitors that are out there. But the 
reality is that when there's 211 sort of factors that are being 
monitored, there's not much discretion left for the agency head 
or the legislature to set priorities or adjust priorities as 
new information becomes available, new technology emerges.
    One of the boondoggles that's been out there in the child 
welfare world has been the whole SACWIS implementation. Dr. 
Sanders is very familiar with this, but, I mean, States have 
spent literally tens of millions of dollars trying to meet a 
Federal mandate there. This is on data collection. And the way 
this has been done I would advise nobody would ever do a data 
project that way. But we--I faced that situation, and we were--
by the time I was elected, we were several tens of millions of 
dollars into the project. It would cost many more millions to 
start over, and it was going to cost many more millions to 
finish. We simply slogged on to try to get that done and still 
wasn't adequate, and yet that's the kind of micromanagement 
you're getting.
    Another area where--and a lot of this area--and again, Dr. 
Sanders' testimony is important, especially when it comes to 
children and children's welfare, the cross-agency cooperation 
and collaboration that's necessary today often is precluded by 
the very Federal laws that are passed here. They don't allow 
the flexibility to bring the mental health services, the public 
health services, the education services all together, and in 
fact each of the programs often has their own administrator 
when we'd be better off--I've said you have to be very smart 
sometimes to be trapped in poverty because you've got so many 
different agencies with so many different programs who want to 
look out for you, and we ought to be able to literally appoint 
an individual who could draw all the services together.
    Mr. Palmer. Well, in Dr. Sanders' testimony he mentioned a 
couple of cases, Alabama being one of them, R.C. v. Hornsby, in 
which we were able to work through a consent decree to a 
reasonable solution. But there was another consent decree in 
Alabama involving the State highway department in which we 
literally spent enough money just on legal fees to repave every 
mile of interstate highway in Alabama twice. And for those who 
don't think we have paved roads, we have got lots of paved 
roads.
    That is the problem is the ability to work your way through 
these. And Dr. Sanders' testimony particularly I think is 
relevant in the area of children that as science changes, as 
techniques change, those aren't taken into account.
    Dr. Sanders, I would like to know, have you seen 
circumstances where full compliance with a consent decree is 
impossible? And I am thinking of New Jersey, which has been 
held up as a model, but they are still under a consent decree.
    Mr. Sanders. Thank you for the question. We actually in one 
of our convenings had a data expert from Emory University take 
a look at the--some of the agreements and found that it was 
impossible to achieve all of the measures that were required at 
the same time. And in part that happened because the 
negotiations for the consent agreement weren't made with data 
experts; they were made with attorneys, and they weren't 
familiar with some of the measures. And so it was--it would not 
be possible for some States to exit, given the current 
measures.
    Mr. Palmer. Thank you, Dr. Sanders.
    Mr. Geffken, who filed the suit against Fort Smith?
    Mr. Geffken. I believe that actually came from the State 
and EPA ----
    Mr. Palmer. Okay. So was ----
    Mr. Geffken.--against the city in order to make--to make 
the city of Fort Smith compliant regarding sanitary system 
overflows.
    Mr. Palmer. And you believe they were trying to make an 
example of Fort Smith?
    Mr. Geffken. I do based on the information I've just heard 
from Representative Gianforte. Yes, that was unknown to me when 
I went there. I knew we had a large problem, and I knew it was 
being addressed by spending several hundred million dollars. 
Again, it--the whole process of a consent decree ties one's 
hands, and you're not able to apply the latest technology or 
focus on actually what yields ----
    Mr. Palmer. How much ----
    Mr. Geffken.--the best benefit.
    Mr. Palmer. How much did you say this is costing the 
residents of Fort Smith, say, an average household? What is it?
    Mr. Geffken. Fifteen thousand dollars.
    Mr. Palmer. Fifteen thousand dollars, and the median 
household income is ----
    Mr. Geffken. Thirty-three thousand five hundred.
    Mr. Palmer. Thirty-three thousand five hundred. This is one 
of the examples, again, where overregulation and the abuse of 
consent decrees does great harm to low-income people. I grew up 
pretty much dirt poor. My dad had an eighth-grade education. It 
would have been staggering to us to have had the type of 
increases in sewer payments that you guys have had in Fort 
Smith or that we have had in Jefferson County in Alabama and 
Shelby County. We are going through the same thing, and it has 
had a negative impact on the ability to grow the economy.
    And just to give you an idea of how overregulation harms 
the economy, Gallup put out a report, pointed out that prior to 
2008 there were 100,000 more businesses starting up than were 
closing. By 2014 in the United States now 70,000 more 
businesses are closing than starting up, and the primary 
problem is regulation.
    One of the problems that we point out in that paper that 
Governor Engler cited is the inability to track these consent 
decrees. We went to the Justice Department, we went to the 
judiciary to try to see if they categorize these in such a way 
that we could look at Arkansas or look at Michigan or the State 
of Washington and determine, you know, what consent decrees 
apply to those States, the State or local government. They 
don't track it that way.
    So, I would ask, Dr. Sanders and Mr. Weissman, should 
Congress consider legislation requiring Federal agencies, 
particularly the Justice Department and the judiciary to track 
and categorize and publish a list of these consent decrees? Dr. 
Sanders?
    Mr. Sanders. We found with the child welfare consent 
decrees that there actually wasn't any single place where it 
was--the information was captured, and so we've started to do 
that just based on the convenings and discussions with States. 
If--that presents a number of issues, and it seems that it 
would be a good direction for Congress to take a look at, at a 
minimum tracking the consent decrees, as well as the cost and 
the results.
    Mr. Palmer. Mr. Weissman, would you have a problem with the 
Federal Government tracking these and publishing a list so that 
they could be easily identified?
    Mr. Weissman. Absolutely not. I think that that would be 
highly desirable. I think, you know, there's some difference 
between this consent decrees where the Federal Government 
initiated the case versus where the--you know, a decentralized 
thing by a citizen group. But in--so the second would be harder 
to compile but would be desirable in any case.
    Mr. Palmer. Well, it really wouldn't because if the Federal 
Government entered into a consent decree, it doesn't matter who 
initiated the suit. It is a matter of tracking these so that 
there is a concise list.
    Governor Engler?
    Mr. Engler. I think the courts also ought to have an 
obligation here. There ought to be something in the judicial 
system where each of the--I don't know if it's the circuit 
court who oversees the district courts in their region, you 
know, whether the circuits would have it or somehow the court 
administrator--the Federal judges ought to know how many 
consent decrees they're actually enforcing in their 
jurisdictions, and that may be an easier way to get it than 
trying to go to the agencies and--because who knows? But 
they're all--there's a limited number of Federal judges and 
Federal, you know, circuit courts, and maybe that's--that--they 
should know their caseload, and that's part of it.
    Mr. Palmer. I would like to thank our witnesses for taking 
the time to appear before us today, and I would particularly 
like to thank the ranking member, Mrs. Demings, for her 
indulging me going a little bit longer.
    If there is no further business, without objection, the 
subcommittees stand adjourned.
    [Whereupon, at 11:40 a.m., the subcommittees were 
adjourned.]


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