[Congressional Record Volume 163, Number 8 (Thursday, January 12, 2017)]
[Senate]
[Pages S315-S316]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself, Mr. Blunt, Mr. Inhofe, Mr. Cornyn, 
        Mr. Cruz, Mrs. Fischer, Mr. Rubio, Mr. Flake, Mr. Hatch, and 
        Mr. Tillis):
  S. 119. A bill to impose certain limitations on consent decrees and 
settlement agreements by agencies that require the agencies to take 
regulatory action in accordance with the terms thereof, and for other 
purposes; to the Committee on the Judiciary.
  Mr. GRASSLEY. Mr. President, for too long, American families, 
farmers, and job creators have suffered under President Obama's 
regulatory onslaught. His administration threw caution to wind, pumping 
out regulation after regulation and further entangling the government 
into Americans' daily lives.
  In November, the American people issued a strong rebuke to President 
Obama's overreach and his administration's way of doing business.
  They want a new direction. They want more accountability. They want 
more transparency. They want the government off their backs so that 
they can get back to making this country great again.
  President-elect Trump has committed to working with Congress to roll 
back the regulatory overreach of the Obama administration, and to 
making the government more answerable to the people.
  So, I rise today to introduce an important piece of legislation that 
will help achieve these goals and ensure a more accountable and 
transparent government going forward.
  By some estimates, Federal Government regulations impose over $2 
trillion in compliance costs--on the American economy. The cost of 
complying with all these regulations falls particularly heavy on small 
businesses.
  It is no wonder why many American businesses have shut down or moved 
overseas. How many innovators dreamed of starting a small business but 
decided against it when faced with the burden and uncertainty of our 
regulatory state?
  We have to do better.
  The Federal Government should do everything possible to promote job 
creation. To accomplish that, common sense would tell us that the 
government needs to remove bureaucratic barriers rather than put up new 
ones.
  But as we all know, the Obama administration showed time and again 
that it would rather push forward with its regulatory agenda than ease 
the burden on our economy and job creators.
  Adding insult to injury, the Obama administration often kept folks in 
the dark about new regulatory initiatives.
  Through secretive litigation tactics, the administration took end-
runs around our nation's transparency and accountability laws. It is a 
strategy known as sue-and-settle, and regulators have been using it to 
speed up rulemaking and keep the public away from the table when key 
policy decisions are made.
  Sue-and-settle typically follows a similar pattern.
  First, an interest group files a lawsuit against a federal agency, 
claiming that the agency has failed to take a certain regulatory action 
by a statutory deadline. The interest group seeks to compel the agency 
to take action by a new, often-rushed deadline. All too often, the 
plaintiff-interest group will be one that shares a common regulatory 
agenda with the agency that it sues, such as when an environmental 
group sues the Environmental Protection Agency, EPA.
  Next, the agency and interest group enter into negotiations behind 
closed doors to produce either a settlement agreement or consent decree 
that commits the agency to satisfy the interest group's demands. The 
agreement is then approved by a court, binding executive discretion.
  Noticeably absent from these negotiations, however, are the very 
parties who will be most impacted by the resulting regulations.
  Sue-and-settle tactics undermine transparency, public accountability, 
and the quality of public policy. They can have sweeping consequences. 
For example, the Obama administration's so-called Clean Power Plan, 
which is the most expensive regulation ever to be imposed on the energy 
industry, arose out of a sue-and-settle arrangement.
  These tactics also undermine congressional intent.
  The Administrative Procedure Act, APA, which has been called the 
citizens' ``regulatory bill of rights,'' was

[[Page S316]]

enacted to ensure transparency and accountability in the regulatory 
process. A key protection is the notice-and-comment process, which 
requires agencies to provide notice of proposed regulations and to 
respond to comments submitted by the public.
  Rulemaking through sue-and-settle, however, frequently results in re-
aligned agency agendas and short deadlines for regulatory action. This 
makes the notice-and-comment process a mere formality. It deprives 
regulated entities, the States and the general public of sufficient 
time to have any meaningful input.
  The resulting regulatory action is driven not by the public interest, 
but by special interest priorities, and can come as a complete surprise 
to those most affected by it.
  Sue-and-settle litigation also helps agencies avoid accountability. 
Instead of having to answer to the public for controversial regulations 
and policy decisions, agency officials can just point to a court order 
entering the agreement and say that they were required to take action 
under its terms.
  We should also keep in mind that these agreements can have lasting 
impacts on the ability of future administrations to take a different 
policy approach--such as to remove regulatory burdens on farmers. Not 
only does this raise serious concerns about bad public policy, it also 
puts into question the constitutional impact of one administration's 
actions binding the hands of its successors.
  Sue-and-settle, and the consequences that come from such tactics, is 
not a new phenomenon. Evidence of sue-and-settle tactics and closed-
door rulemaking can be found in nearly every administration over the 
previous few decades.
  But without a doubt, there was an alarming increase under the Obama 
administration. The U.S. Chamber of Commerce found that just during 
President Obama's first term, 60 Clean Air Act lawsuits against the EPA 
were resolved through consent decrees or settlement agreements.
  And since 2009, sue-and-settle cases against the EPA have imposed at 
least $13 billion in annual regulatory costs.
  But we now have an opportunity to curb these abuses, and an incoming 
administration that has committed to reining in the regulators.
  That is why today I am introducing the Sunshine for Regulatory 
Decrees and Settlements Act. Senators Blunt, Inhofe, Cornyn, Cruz, 
Fischer, Rubio, Flake, Hatch, and Tillis are cosponsors of this 
important bill. And I'm pleased that Representative Doug Collins 
introduced a companion bill today in the House.
  The Sunshine bill increases transparency by shedding light on sue-
and-settle tactics. It requires agencies to publish sue-and-settle 
complaints in a readily accessible manner.
  It requires agencies to publish proposed consent decrees and 
settlement agreements at least 60 days before they can be filed with a 
court. This provides a valuable opportunity for the public to weigh-in, 
which will increase accountability in the rulemaking process.
  The bill makes it easier for affected parties, such as States and 
businesses, to intervene in these lawsuits and settlement negotiations 
to ensure that their interests are properly represented. It requires 
the Attorney General to certify to a court that he or she has 
personally approved of the terms of certain proposed consent decrees or 
settlement agreements. And it requires courts to consider whether the 
terms of a proposed agreement are contrary to the public interest.
  The bill also makes it easier for succeeding administrations to 
modify a prior administration's consent decrees. That way, one 
administration won't be forced to continue the regulatory excesses of 
another.
  The Sunshine for Regulatory Decrees and Settlements Act will shine 
light on the problem of sue-and-settle. It will help rein in backroom 
rulemaking, encourage the appropriate use of consent decrees and 
settlements, and reinforce the procedures that Congress laid out 
decades ago to ensure a transparent and accountable regulatory process.
  I thank my colleagues for their support of this bill.
                                 ______