[Congressional Record Volume 163, Number 177 (Wednesday, November 1, 2017)]
[Senate]
[Pages S6963-S6964]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           REGULATORY REFORM

  Mr. GRASSLEY. Mr. President, last month the Environmental Protection 
Agency--EPA--Administrator, Scott Pruitt, issued a directive to all 
Agency employees that prohibits the so-called sue-and-settle process. 
This is good news for good government.
  Most of us here are familiar with the term ``sue and settle.''
  These are tactics whereby the EPA has, in the past, resolved certain 
lawsuits against it through agreements negotiated behind closed doors 
with politically favored interest groups. As we saw under the Obama 
administration, some of these agreements committed the EPA to take far-
reaching regulatory action, all without an adequate opportunity for 
those people most impacted to have a seat at the table, as would 
normally be done through the regulatory process.
  Today, I come to the floor to applaud Administrator Pruitt's 
leadership in working to end these tactics, which make a mockery of 
laws that Congress has put in place to ensure a transparent and 
accountable regulatory process. The commonsense reforms outlined in 
Administrator Pruitt's directive will, no doubt, help restore 
transparency and accountability, and these reforms should stand as a 
prime example for all Federal agencies to follow.
  Accordingly, I call upon President Trump to use his full authority 
through Executive order to ensure that similar reforms are adopted 
across the entire bureaucracy. Regulatory decisions that affect key 
parts of our economy should be made in an open, transparent, and, 
consequently, accountable manner. But as we have seen with sue and 
settle, Washington bureaucrats and their interest group pals would 
prefer to do things their own way.
  It works like this. First, an interest group sues a Federal agency, 
claiming the agency has failed to take regulatory action required by 
law. Through the lawsuit, the interest group seeks to compel the agency 
to take action by a new, often rushed, deadline. These plaintiff 
interest groups often share a common regulatory agenda with the agency 
they sue, such as when an environmental group sues the EPA or the Fish 
and Wildlife Service.
  Instead of challenging the lawsuit, the agency and the interest group 
enter into negotiations behind closed doors to produce either a 
``settlement agreement'' or a ``consent decree'' committing the agency 
to take regulatory action. There is no transparency, no accountability, 
which you would get through normal regulation writing.
  Noticeably absent from these negotiations are the very parties who 
will be most impacted, such as farmers, manufacturers, and even the 50 
States themselves, which will be charged with enforcing some of these 
regulations. In 2010, for example, an environmental interest group sued 
the Obama administration EPA to force the agency to revise certain 
wastewater regulations.
  Wouldn't it be nice to have the people who are affected by those 
regulations involved in the process in an open way--the way the 
Administrative Procedure Act is designed?
  Oddly enough, the same day the lawsuit was filed, the plaintiff 
interest group submitted a consent decree already signed by the EPA, 
which committed the agency to take prompt regulatory action. Such a 
scenario should raise serious questions about how truly adversarial 
these lawsuits and negotiations are.
  To add insult to injury, regulations that have resulted from sue-and-
settle tactics impose tremendous costs on the American economy. 
According to the American Action Forum, from 2005 to 2016, 23 sue-and-
settle regulations resulted in a cost burden of $67.9 billion, with 
$26.5 billion in actual costs. Sixteen of the rules imposed paperwork 
burdens on American job creators of more than 8 million hours. Think 
about that. Nearly $70 billion in regulatory costs were imposed on 
American business owners, manufacturers, farmers, and probably 
taxpayers, all without due regard for transparency and the normal 
rulemaking process required by the Administrative Procedure Act.
  Decades ago, Congress enacted the Administrative Procedure Act for 
the sole purpose of ensuring transparency, accountability, and, more 
importantly, public participation in Federal rulemaking. The EPA has 
been described as the citizens' ``regulatory bill of rights.'' A pillar 
of the Administrative Procedure Act is the notice-and-comment process, 
which requires agencies to notify the public of proposed regulations 
and respond to comments submitted--in other words, transparency.
  Rulemaking driven by sue-and-settle tactics frequently results in 
reprioritized agency agendas and rushed deadlines for regulatory 
action. This renders the EPA's notice-and-comment process a mere 
formality. It deprives regulated entities, it deprives the States, and 
most importantly, it deprives the American public of sufficient time to 
have any meaningful input on final rules. The resulting regulatory 
action is driven not by the public interest but by the special interest 
priorities.
  Sue-and-settle tactics also help agencies avoid accountability for 
their actions. Instead of having to answer to the public for 
controversial regulatory decisions, agency officials will simply point 
to a court order and say that their hands are tied, when really they 
welcomed that process.
  The American people deserve better, but don't just take my word for 
it. The Environmental Council of the States, a national nonprofit, 
nonpartisan association of State and territorial environmental agency 
leaders, adopted a resolution in 2013 entitled ``The Need for Reform 
and State Participation in EPA's Consent Decrees which Settle Citizen 
Suits.'' The rationale behind it

[[Page S6964]]

provides that ``state environmental agencies are not always notified of 
citizen suits that allege U.S. EPA's failure to perform its 
nondiscretionary duties, are often not parties to these citizen suits, 
and are usually not provided with an opportunity to participate in the 
negotiation of agreements to settle citizen suits.''
  The Environmental Council of the States further resolved that 
``greater transparency of citizen suit settlement agreements is needed 
for the public to understand the impact of these agreements on the 
administration of environmental programs.''
  Obviously, I agree. We need more transparency, more accountability, 
and more voices at the table. In other words, the public's business 
ought to be public, not some new regulation agreed to behind closed 
doors. I am happy to say that this administration is working to 
accomplish that, thanks to Administrator Pruitt. In his own words: 
``The days of this regulation through litigation . . . are 
terminated.''
  His directive puts a swift end to sue-and-settle tactics by this one 
agency, the EPA. It does so by adopting commonsense reforms to promote 
transparency and public participation in the regulatory process. It 
requires the publication online of notices of lawsuits filed against 
the EPA. It requires the EPA to reach out and notify any States or 
regulated entities that will be affected by the lawsuit. It requires 
the EPA to seek the agreement of any affected State or regulatory 
entities before the agency can enter into a consent decree or 
settlement agreement. Further, it prohibits the EPA from entering into 
any consent decree or settlement that converts a discretionary duty of 
the agency into a mandatory duty to issue, revise, or amend a 
regulation. Most importantly, it requires the EPA to post online for 
public comment any proposed consent decrees or settlement agreements 
before they are entered into by the court.
  These and other reforms in Administrator Pruitt's directive mark a 
very strong step toward ensuring that States, American job creators, 
and the public at large have a seat at the table when regulatory 
decisions are made, which is exactly why Congress passed the 
Administrative Procedure Act.
  Before I close, I will add one more thing. Earlier this year, I 
introduced the Sunshine for Regulatory Decrees and Settlements Act. 
This bill would make permanent the very types of reforms outlined in 
Administrator Pruitt's directive. If it becomes law, it can't be 
changed at some later date. In other words, it would ensure that future 
administrations can't simply roll back the great work Administrator 
Pruitt is doing through this directive.
  I am pleased to hear that the House of Representatives just passed 
the companion bill introduced by Congressman Doug Collins. We will 
continue our work to build bipartisan support here in the Senate for 
this commonsense decree.
  But, today, I urge President Trump to move forward with the example 
set by Administrator Pruitt because Administrator Pruitt is draining 
the swamp through this process. The President loves to sign Executive 
orders. He would probably do more good in draining the swamp by 
producing an Executive order like this than almost any other Executive 
order he could do.
  There is simply no reason these reforms should be limited to just the 
EPA. Transparency and public participation are core elements of a more 
accountable government. Simply stated, they are part of the process of 
representative government, where people make the laws and where 
administrators carry out the laws, not where something is done behind 
closed doors because some special interest wants something or because 
the agency is begging to do something--which maybe someone doesn't want 
them to do--to get it done and to do it behind closed doors, just to 
work it out the way they want it and not necessarily the way it would 
be done if people were participating.
  I applaud Administrator Pruitt's directive. I urge the President to 
promptly see to it that similar reforms are implemented across the 
administration.
  So for a third time today, President Trump, issue an Executive order 
to all departments to do what Administrator Pruitt has done at the EPA.

                          ____________________