[Congressional Record Volume 163, Number 26 (Tuesday, February 14, 2017)]
[Senate]
[Page S1162]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN (for himself, Mr. Cruz, Mr. Boozman, Mr. Crapo, Mr. 
        Flake, Mr. Roberts, and Mr. Wicker):
  S. 375. A bill to amend the Endangered Species Act of 1973 to 
establish a procedure for approval of certain settlements; to the 
Committee on Environment and Public Works.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 375

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

     SECTION 1. DEFINITIONS.

       Section 3 of the Endangered Species Act of 1973 (16 U.S.C. 
     1532) is amended--
       (1) by redesignating--
       (A) paragraphs (1) through (4) as paragraphs (2) through 
     (5), respectively;
       (B) paragraphs (5) through (10) as paragraphs (7) through 
     (12), respectively; and
       (C) paragraphs (12) through (21) as paragraphs (13) through 
     (22), respectively;
       (2) by adding before paragraph (2) (as so redesignated) the 
     following:
       ``(1) Affected parties.--The term `affected party' means 
     any person, including a business entity, or any State, tribal 
     government, or local subdivision the rights of which may be 
     affected by a determination made under section 4(a) in a suit 
     brought under section 11(g)(1)(C).''; and
       (3) by adding after paragraph (5) (as so redesignated) the 
     following:
       ``(6) Covered settlement.--The term `covered settlement' 
     means a consent decree or a settlement agreement in an action 
     brought under section 11(g)(1)(C).''.

     SEC. 2. INTERVENTION; APPROVAL OF COVERED SETTLEMENT.

       Section 11(g) of the Endangered Species Act of 1973 (16 
     U.S.C. 1540) is amended--
       (1) in paragraph (3), by adding at the end the following:
       ``(C) Publishing complaint; intervention.--
       ``(i) Publishing complaint.--

       ``(I) In general.--Not later than 30 days after the date on 
     which the plaintiff serves the defendant with the complaint 
     in an action brought under paragraph (1)(C) in accordance 
     with Rule 4 of the Federal Rules of Civil Procedure, the 
     Secretary of the Interior shall publish the complaint in a 
     readily accessible manner, including electronically.
       ``(II) Failure to meet deadline.--The failure of the 
     Secretary to meet the 30-day deadline described in subclause 
     (I) shall not be the basis for an action under paragraph 
     (1)(C).

       ``(ii) Intervention.--

       ``(I) In general.--After the end of the 30-day period 
     described in clause (i), each affected party shall be given a 
     reasonable opportunity to move to intervene in the action 
     described in clause (i), until the end of which a party may 
     not file a motion for a consent decree or to dismiss the case 
     pursuant to a settlement agreement.
       ``(II) Rebuttable presumption.--In considering a motion to 
     intervene by any affected party, the court shall presume, 
     subject to rebuttal, that the interests of that party would 
     not be represented adequately by the parties to the action 
     described in clause (i).
       ``(III) Referral to alternative dispute resolution.--

       ``(aa) In general.--If the court grants a motion to 
     intervene in the action, the court shall refer the action to 
     facilitate settlement discussions to--
       ``(AA) the mediation program of the court; or
       ``(BB) a magistrate judge.
       ``(bb) Parties included in settlement discussions.--The 
     settlement discussions described in item (aa) shall include 
     each--
       ``(AA) plaintiff;
       ``(BB) defendant agency; and
       ``(CC) intervenor.'';
       (2) by striking paragraph (4) and inserting the following:
       ``(4) Litigation costs.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     the court, in issuing any final order in any suit brought 
     under paragraph (1), may award costs of litigation (including 
     reasonable attorney and expert witness fees) to any party, 
     whenever the court determines such award is appropriate.
       ``(B) Covered settlement.--
       ``(i) Consent decrees.--The court shall not award costs of 
     litigation in any proposed covered settlement that is a 
     consent decree.
       ``(ii) Other covered settlements.--

       ``(I) In general.--For a proposed covered settlement other 
     than a consent decree, the court shall ensure that the 
     covered settlement does not include payment to any plaintiff 
     for the costs of litigation.
       ``(II) Motions.--The court shall not grant any motion, 
     including a motion to dismiss, based on the proposed covered 
     settlement described in subclause (I) if the covered 
     settlement includes payment to any plaintiff for the costs of 
     litigation.''; and

       (3) by adding at the end the following:
       ``(6) Approval of covered settlement.--
       ``(A) Definition of species.--In this paragraph, the term 
     `species' means a species that is the subject of an action 
     brought under paragraph (1)(C).
       ``(B) In general.--
       ``(i) Consent decrees.--The court shall not approve a 
     proposed covered settlement that is a consent decree unless 
     each State and county in which the Secretary of the Interior 
     believes a species occurs approves the covered settlement.
       ``(ii) Other covered settlements.--

       ``(I) In general.--For a proposed covered settlement other 
     than a consent decree, the court shall ensure that the 
     covered settlement is approved by each State and county in 
     which the Secretary of the Interior believes a species 
     occurs.
       ``(II) Motions.--The court shall not grant any motion, 
     including a motion to dismiss, based on the proposed covered 
     settlement described in subclause (I) unless the covered 
     settlement is approved by each State and county in which the 
     Secretary of the Interior believes a species occurs.

       ``(C) Notice.--
       ``(i) In general.--The Secretary of the Interior shall 
     provide each State and county in which the Secretary of the 
     Interior believes a species occurs notice of a proposed 
     covered settlement.
       ``(ii) Determination of relevant states and counties.--The 
     defendant in a covered settlement shall consult with each 
     State described in clause (i) to determine each county in 
     which the Secretary of the Interior believes a species 
     occurs.
       ``(D) Failure to respond.--The court may approve a covered 
     settlement or grant a motion described in subparagraph 
     (B)(ii)(II) if, not later than 45 days after the date on 
     which a State or county is notified under subparagraph (C)--
       ``(i)(I) a State or county fails to respond; and
       ``(II) of the States or counties that respond, each State 
     or county approves the covered settlement; or
       ``(ii) all of the States and counties fail to respond.
       ``(E) Proof of approval.--The defendant in a covered 
     settlement shall prove any State or county approval described 
     in this paragraph in a form--
       ``(i) acceptable to the State or county, as applicable; and
       ``(ii) signed by the State or county official authorized to 
     approve the covered settlement.''.
                                 ______