[House Report 113-230]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    113-230

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



 
      SUNSHINE FOR REGULATORY DECREES AND SETTLEMENTS ACT OF 2013

                                _______
                                

 September 26, 2013.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1493]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1493) 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, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     8
Committee Consideration..........................................     8
Committee Votes..................................................     8
Committee Oversight Findings.....................................    14
New Budget Authority and Tax Expenditures........................    15
Congressional Budget Office Cost Estimate........................    15
Duplication of Federal Programs..................................    16
Disclosure of Directed Rule Makings..............................    16
Performance Goals and Objectives.................................    16
Advisory on Earmarks.............................................    17
Section-by-Section Analysis......................................    17
Dissenting Views.................................................    21

                          Purpose and Summary

    H.R. 1493, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2013,'' limits the ability of defendant 
Federal regulators and pro-regulatory plaintiffs to abuse 
Federal consent decrees and settlement agreements to require 
new regulations, reorder regulatory priorities, bind the 
discretion of future administrations, and limit the rights of 
regulated entities and State, local and Tribal co-regulators 
affected by actions taken under such decrees and settlements. 
The bill accomplishes this by improving transparency, 
increasing participation by affected regulated entities and co-
regulators in the negotiation and consideration of decrees and 
settlements, strengthening public comment on and judicial 
review of proposed decrees and settlements, and assuring review 
by the Attorney General and agency heads of the types of 
proposed decrees and settlements that would most intrusively 
involve the Judiciary in the administration of agencies' 
regulatory duties.

                Background and Need for the Legislation

 I. ABUSE OF REGULATORY CONSENT DECREES AND SETTLEMENT AGREEMENTS AND 
               THE RISE OF ``SUE-AND-SETTLE'' LITIGATION

    Since the 1960's and 1970's, consent decrees and settlement 
agreements increasingly have been used in Federal litigation to 
bind executive discretion under judicial authority, including 
to bind executive discretion over successive administrations. 
This trend has arisen in litigation against both Federal 
defendants and State and local defendants. In litigation 
against Federal defendants, the problem has been concentrated 
in litigation against regulatory agencies over allegations that 
agency action has been unlawfully withheld or unreasonably 
delayed at the Federal level.
    In such cases, the tactical use of consent decrees and 
settlement agreements has, over the decades, essentially been 
refined into an art form, commonly known as ``sue-and-settle'' 
litigation. In sue-and-settle litigation, defendant regulatory 
agencies, such as the U.S. Environmental Protection Agency, 
typically have failed to meet mandatory statutory deadlines for 
new regulations or allegedly have unreasonably delayed 
discretionary action. Plaintiffs in such matters often have 
strong cases on liability, giving them substantial leverage 
over the defending agencies. That leverage is heightened when, 
as often is the case, the agency actions at issue are 
politically sensitive, such as major, new anti-pollution 
regulations to impose high costs on regulated industry. 
Political and practical concerns in sue-and-settle cases 
frequently give rise to perverse agency incentives to cooperate 
with actual or threatened litigation and negotiate a consent 
decree or settlement agreement to resolve it. This is because, 
once a decree or agreement is in place, the defendant agency 
has a litigation-based excuse to expedite action that helps to 
diminish political costs, reorder agency funding priorities, or 
serve other pro-regulatory ends.
    As a result of these factors, it has become common in these 
cases for pro-regulatory plaintiffs to approach vulnerable 
Federal agencies with threats of lawsuits, negotiate consent 
decrees or settlement agreements in secret in advance of suit, 
and propose the decrees or settlements to the courts 
contemporaneously with the filing of the plaintiffs' 
complaints. The resulting decrees and settlement agreements 
often come as surprises to the regulated community, State, 
local and Tribal regulators who share responsibility for 
regulatory programs at issue, and the general public. Further, 
these decrees and settlements often provide short timelines for 
agency action, particularly the proposal and promulgation of 
new regulations. The lack of advance notice and judicially-
backed, minimal timeframes for proposal and promulgation allow 
defendant agencies to undercut the public participation and 
analytical requirements of the Administrative Procedure Act, 
the Regulatory Flexibility Act, the Unfunded Mandates Reform 
Act, and other regulatory process statutes. Similarly, 
accelerated timeframes for proposal and promulgation allow 
agencies to short-circuit review of new regulations by OIRA 
under executive orders applicable to the rulemaking process. 
Incentives for agencies to pursue these ends--which leave the 
agencies freer to frame new regulations to fit pre-conceived 
agency preferences, rather than public preferences, sound 
policy and the facts--is particularly strong when plaintiffs 
and defendant agencies agree on what the content of proposed 
and final agency action should be, and seek to effectuate that 
agreement without interference by other interested parties and 
OIRA.
    In many cases, agencies also may not be able to conclude 
desired but controversial rulemakings before a succeeding 
administration--with potentially different views and 
priorities--takes office. The approaching expiration of an 
administration's term in office gives agency officials a 
powerful incentive to control the incoming administration's 
regulatory agenda through consent decrees and settlement 
agreements finalized before the new administration can assume 
its duties. That is particularly true when agencies have failed 
to meet a number of mandatory rulemaking deadlines under one 
statute. A current example of that potential was offered by the 
set of rulemakings required under the Dodd-Frank Wall Street 
Reform and Consumer Protection Act. Estimates in 2012 were that 
relevant agencies had missed three-quarters of the pre-2012 
rulemaking deadlines in that legislation.\1\ Had the Obama 
administration been voted out of office in November 2012, a 
high potential for Dodd-Frank sue-and-settle decrees and 
settlements would have existed.
---------------------------------------------------------------------------
    \1\Reuters, ``Regulators Inching Forward on Dodd-Frank Rules'' 
(Jan. 3, 2012) (available at http://news.yahoo.com/regulators-inching-
forward-dodd-frank-rules-210003595.html).
---------------------------------------------------------------------------
    When pro-regulatory interest groups and regulatory agencies 
engage in sue-and-settle practices, the end result is 
rulemaking that implements the priorities of pro-regulatory 
advocates, limits the discretion of succeeding administrations, 
and takes place under schedules that render notice-and-comment 
rulemaking a formality, depriving regulated entities, the 
public and OIRA of sufficient opportunities to influence the 
content of final rules.

        II. SUE-AND-SETTLE TRENDS UNDER THE OBAMA ADMINISTRATION

    Under the Obama administration, this phenomenon has become 
particularly troubling. Not only has the Administration 
generally increased the number of major rulemakings, but it has 
engaged in a flurry of sue-and-settle cases. According to a 
recent study of Clean Air Act and Clean Water Act sue-and-
settle cases, the U.S. Chamber of Commerce found that:

         LThe sue-and-settle process is increasingly 
        being used as a technique to shape agencies' regulatory 
        agendas, without input from the public or the regulated 
        community.

         LThe Obama administration has entered into 
        more than 70 sue-and-settle agreements which have led 
        to the issuance of at least 100 regulations, including 
        the Utility MACT rule, the Chesapeake Bay Clean Water 
        Act rules, and various regional haze implementation 
        rules.

         LThe Sierra Club was responsible for 34 of the 
        71 lawsuits, with WildEarth Guardians coming in second 
        with 20 suits.

         LSix of the Obama administration's sue-and-
        settle regulations alone reportedly would impose $101 
        billion in estimated annual costs, while another four 
        would impose compliance costs of as much as $23.66 
        billion.

         LIn fiscal year 2011, Congress appropriated 
        $20.9 million to the U.S. Fish and Wildlife Service for 
        endangered species listing and critical habitat 
        designation. That year, the agency spent $15.8 million 
        in response to court orders or settlement 
        agreements.\2\
---------------------------------------------------------------------------
    \2\U.S. Chamber of Commerce, ``Sue-and-Settle--Regulating Behind 
Closed Doors'' (May 20, 2013) (available at http://www.uschamber.com/
sites/default/files/reports/SUEANDSETTLE
REPORT-Final.pdf).

    To provide further examples of sue-and-settle trends, just 
two agencies, EPA and the Department of the Interior, have been 
able to institute the following major policy changes under sue-
---------------------------------------------------------------------------
and-settle rulemakings during the Obama administration:

         Lthe Utility Maximum Achievable Control 
        Technology rule on coal-fired electric utilities;

         Lthe Cement Maximum Achievable Control 
        Technology rule on cement manufacturing;

         Lthe Stream Buffer Zone rule on coal mining;

         Lthe Cooling Water Intake Structure 
        regulations on electric utilities;

         Lrevisions to the definition of solid waste 
        under the Resource Conservation and Recovery Act;

         Lregulation of greenhouse gases under the 
        Clean Water Act;

         Lnumeric nutrient criteria for the State of 
        Florida under the Clean Water Act;

         LFederal implementation plans for regional 
        haze in North Dakota and Oklahoma under the Clean Air 
        Act;

         Lreconsideration of National Ambient Air 
        Quality Standards for ozone;

         LNew Source Performance, Maximum Achievable 
        Control Technology and residual risk standards for oil 
        and gas drilling operations;

         Lfirst-ever greenhouse gas New Source 
        Performance Standards for coal- and oil-fired electric 
        utilities;

         Lfirst-ever greenhouse gas New Source 
        Performance Standards for oil refiners; and

         La commitment to move forward with Endangered 
        Species Act protections for over 250 candidate species.

     III. HISTORY OF ADMINISTRATIVE REFORMS IN PAST ADMINISTRATIONS

    During the Reagan and George H.W. Bush administrations, 
sue-and-settle problems were alleviated under policy set by 
Attorney General Meese in 1986. Under this policy, set forth in 
a memorandum commonly known as the ``Meese Memo,'' the 
Department of Justice generally refused to enter into consent 
decrees that:

         Lconverted into a mandatory duty the otherwise 
        discretionary authority of an agency to propose, 
        promulgate, revise or amend regulations;

         Lcommitted the agency to expend funds that 
        Congress had not appropriated and that had not been 
        budgeted for the action in question, or committed an 
        agency to seek a particular appropriation or budget 
        authorization;

         Ldivested the agency of discretion committed 
        to it by Congress or the Constitution whether such 
        discretionary power was granted to respond to changing 
        circumstances, to make policy or managerial choices, or 
        to protect the rights of third parties; or

         Lotherwise afforded relief that the court 
        could not enter on its own authority upon a final 
        judgment in the litigation.

    The Meese Memo also generally prevented the Department from 
entering into settlement agreements that:

         Linterfered with the agency's authority to 
        revise, amend or promulgate regulations through the 
        procedures set forth in the Administrative Procedure 
        Act or other statutes prescribing rulemaking procedures 
        for rulemakings that were the subject of the settlement 
        agreement;

         Lcommitted the agency to expend funds that 
        Congress had not appropriated and that had not been 
        budgeted for the action in question; or

         Lprovided a remedy for the agency's failure to 
        comply with the terms of the settlement agreement other 
        than the revival of the suit resolved by the agreement, 
        if the agreement committed the agency to exercise its 
        discretion in a particular way and such discretionary 
        power was committed to the agency by Congress or the 
        Constitution to respond to changing circumstances, to 
        make policy or managerial choices, or to protect the 
        rights of third parties.\3\
---------------------------------------------------------------------------
    \3\Memorandum from Attorney General Edwin Meese III to all 
Assistant Attorneys General and United States Attorneys, Department 
Policy regarding Consent Decrees and Settlement Agreements (Mar. 13, 
1986).

    The Meese Memo was grounded in separation-of-powers 
concerns. The Clinton administration reviewed the questions 
addressed by the Memo and found that these policy concerns were 
sound. It did not, however, conclude that the Department was 
legally bound to respect the lines drawn in the Memo, and it 
substantially relaxed the Department's policy in 1999.\4\
---------------------------------------------------------------------------
    \4\Memorandum from Randolph D. Moss, Acting Assistant Attorney 
General for Office of Legal Policy, to Associate Attorney General 
Raymond C. Fisher, Authority of the United State to Enter Settlements 
Limiting the Future Exercise of Executive Branch Discretion (June 15, 
1999).
---------------------------------------------------------------------------

 IV. RESOLUTION OF THE ENVIRONMENTAL COUNCIL OF THE STATES ON SUE-AND-
                            SETTLE PRACTICES

    In light of the impacts that sue-and-settle consent decrees 
and settlement agreements often have on State agencies that co-
regulate with the Federal Government (e.g., under the Clean Air 
Act), the Environmental Council for the States (ECOS) recently 
undertook a review of the concerns raised by sue-and-settle 
practices.\5\ This review culminated in ECOS Resolution 13-2, 
effective March 6, 2013. The resolution emphasized that States 
may be adversely affected by consent decrees or settlement 
agreements in sue-and-settle cases, may have information that 
would help the Federal Government defend or settle sue-and-
settle cases, and may have interests that should be accounted 
for in the consideration of settlements in these cases. It also 
stressed that States are not always given notice of such suits, 
are often not parties to them, and are typically not afforded 
an opportunity to assist in the negotiation of relevant 
settlements. In light of these concerns, in Resolution 
13-2, ECOS stated that it:
---------------------------------------------------------------------------
    \5\As described on its website, ``[t]he Environmental Council of 
the States (ECOS) is the national non-profit, non-partisan association 
of state and territorial environmental agency leaders. ECOS was 
established in December 1993 at a meeting of approximately 20 states in 
Phoenix, Arizona and is a 501(c)(6) non-profit organization.'' See 
http://www.ecos.org/section/_aboutecos. ``The purpose of ECOS is to 
improve the capability of state environmental agencies and their 
leaders to protect and improve human health and the environment of the 
United States of America.'' Id. ECOS' membership currently includes 48 
States, plus the District of Columbia and Commonwealth of Puerto Rico.

         L``Affirms that states have stand alone rights 
        and responsibilities under Federal environmental laws, 
        and that the state environmental agencies are co-
---------------------------------------------------------------------------
        regulators, co-funders and partners with U.S. EPA;''

         L``Urges the U.S. EPA to devote the resources 
        necessary to perform its nondiscretionary duties within 
        the timeframes specified under Federal law, especially 
        when required to take action on a state submission made 
        under an independent right or responsibility (e.g., 
        State Implementation Plans under the Clean Air Act).''

         L``Specifically calls on U.S. EPA to notify 
        all affected state environmental agencies of citizen 
        suits filed against U.S. EPA that allege a failure of 
        the Federal agency to perform its nondiscretionary 
        duties;''

         L``Believes that providing an opportunity for 
        state environmental agencies to participate in the 
        negotiation of citizen suit settlement agreements will 
        often be necessary to protect the states' role in 
        implementing Federal environmental programs and for the 
        administration of authorized or delegated environmental 
        programs in the most effective and efficient manner;''

         L``Specifically calls on U.S. EPA to support 
        the intervention of state environmental agencies in 
        citizen suits and meaningful participation in the 
        negotiation of citizen suit settlement agreements when 
        the state agency has either made a submission to EPA 
        related to the citizen suit or when the state agency 
        either implements, or is likely to implement, the 
        authorized or delegated environmental program at 
        issue;''

         L``Believes that no settlement agreement 
        should extend any power to U.S. EPA that it does not 
        have in current law;''

         L``Believes 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;''

         L``Affirms the need for the Federal Government 
        to publish for public review all settlement agreements 
        and consider public comments on any proposed settlement 
        agreements;'' and,

         L``Encourages EPA to respond in writing to all 
        public comments received on proposed citizen suit 
        settlement agreements, including consent decrees.''\6\
---------------------------------------------------------------------------
    \6\The full, official text of Resolution 13-2 is available at 
http://www.ecos.org/section/policy/resolution and http://
dl.dropboxusercontent.com/u/8005220/Resolutions/Resolution%2013-2%20
Consent%20Decrees.pdf.

   V. REFORMS EMBODIED IN THE ``SUNSHINE FOR REGULATORY DECREES AND 
                       SETTLEMENTS ACT OF 2013''

    Consistent with the record compiled by the Committee, the 
measures in H.R. 1493 include provisions that: (1) require 
notices of intent to sue, complaints, consent decrees and 
settlement agreements, and attorneys' fee agreements in 
lawsuits attempting to force regulatory action be more 
transparent to the public and regulated entities; (2) give to 
regulated entities, State, local and Tribal co-regulators, and 
the public more rights to participate in the shaping or 
judicial evaluation of sue-and-settle consent decrees and 
settlement agreements, whether through notice-and-comment 
procedures or rights to participate in litigation as 
intervenors or amici curiae; (3) provide courts with more 
complete records and tools to review proposed sue-and-settle 
consent decrees and settlement agreements; and, (4) codify key 
Meese Memo's restrictions to constrain the authority of the 
Department of Justice and defendant agencies to agree to sue-
and-settle consent decrees and settlements that present 
separation-of-powers concerns.

VI. PROCEEDINGS ON THE SUNSHINE FOR REGULATORY DECREES AND SETTLEMENTS 
                       ACT IN THE 112TH CONGRESS

    During the 112th Congress, the Subcommittee on Courts, 
Commercial and Administrative Law held a hearing on H.R. 1493's 
predecessor legislation, H.R. 3862. Testimony was received from 
Roger R. Martella, Jr., Sidley Austin LLP, former general 
counsel of the U.S. Environmental Protection Agency; Professor 
David Schoenbrod, New York Law School; Andrew M. Grossman, the 
Heritage Foundation; and John C. Cruden, president of the 
Environmental Law Institute and former Deputy Assistant 
Attorney General for the Department of Justice's Environment 
and Natural Resources Division, with additional material 
submitted by the Natural Resources Defense Council, the 
American Bar Association, and Kenny, Kenneth and Paula Cieplik. 
The Committee on the Judiciary reported H.R. 3862 favorably to 
the House, and the bill passed the House on July 26, 2012, as 
title V of H.R. 4078, the ``Red Tape Reduction and Small 
Business Job Creation Act of 2012,'' on a bipartisan vote (245-
172).

                                Hearings

    The Committee's Subcommittee on Regulatory, Commercial and 
Antitrust Law held 1 day of hearings on H.R. 1493, on June 5, 
2013. Testimony was received from Commissioner Tom Easterly, 
Indiana Department of Environmental Management, on behalf of 
the State of Indiana and the Environmental Council of the 
States, William L. Kovacs, Senior Vice President for 
Environment, Technology & Regulatory Affairs, U.S. Chamber of 
Commerce, Allen Puckett, Columbus Brick Co., Columbus 
Mississippi, and John Walke, Director, Climate and Air Quality 
Program, Natural Resources Defense Council, with additional 
material submitted by the Attorney General for the State of 
Georgia, the Associated Builders and Contractors, Inc., the 
American Sheep Industry Association, the Association of 
National Grasslands, the National Cattlemen's Beef Association, 
and the Public Lands Council.

                        Committee Consideration

    On July 10, 2013, the Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law met in open session and ordered 
the bill H.R. 1493 favorably reported, without amendment, by 
voice vote, a quorum being present. On July 24, 2013, the 
Committee met in open session and ordered the bill H.R. 1493 
favorably reported without amendment, by a rollcall vote of 17 
to 12, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1493.
    1. The amendment offered by Mr. Conyers exempts from 
requirements of H.R. 1493 consent decrees and settlement 
agreements that pertain ``to the protection of the privacy of 
Americans.'' The amendment was defeated by a rollcall vote of 
12-16.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Coble (NC).................................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Amodei (NV)................................              X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Mr. Watt (NC)..................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................      X
                                                ------------------------
    Total......................................     12      16
------------------------------------------------------------------------

    2. The amendment offered by Mr. Cohen exempts from 
requirements of H.R. 1493 consent decrees and settlement 
agreements ``that prevents or is intended to prevent 
discrimination on the basis of race, religion, national origin, 
or any other protected category.'' The amendment was defeated 
by a rollcall vote of 13-16.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................      X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Mr. Scott (VA).................................      X
Mr. Watt (NC)..................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
                                                ------------------------
    Total......................................     13      16
------------------------------------------------------------------------

    3. The amendment offered by Ms. Jackson Lee exempts from 
requirements of H.R. 1493 consent decrees and settlement 
agreements that pertain ``to a reduction in illness or death 
from exposure to toxic substances or hazardous waste in 
communities that are protected by Executive Order 12898.'' The 
amendment was defeated by a rollcall vote of 9-17.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Mr. Scott (VA).................................      X
Mr. Watt (NC)..................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
                                                ------------------------
    Total......................................      9      17
------------------------------------------------------------------------

    4. The amendment offered by Mr. Watt strikes from the bill 
provisions that establish a rebuttable presumption that a 
regulated party's interests are not adequately represented by 
the parties in a covered civil action or a civil action in 
which a covered consent decree or settlement agreement has been 
proposed. The amendment was defeated by a rollcall vote of 11-
17.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Mr. Scott (VA).................................      X
Mr. Watt (NC)..................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
                                                ------------------------
    Total......................................     11      17
------------------------------------------------------------------------

    5. The amendment offered by Mr. Johnson exempts from 
requirements of H.R. 1493 consent decrees and settlement 
agreements ``that the Director of the Office of Management and 
Budget determines would result in net job creation.'' The 
amendment was defeated by a rollcall vote of 11-17.

                             ROLLCALL NO. 5
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Mr. Scott (VA).................................      X
Mr. Watt (NC)..................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
                                                ------------------------
    Total......................................     11      17
------------------------------------------------------------------------

    6. The bill was reported by a rollcall vote of 17-12.

                             ROLLCALL NO. 6
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Bachus (AL)................................      X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................      X
Ms. Farenthold (TX)............................      X
Mr. Holding (NC)...............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................      X
Mr. Smith (MO).................................      X

Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................
Mr. Scott (VA).................................              X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................              X
Mr. Deutch (FL)................................              X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Garcia (FL)................................              X
Mr. Jeffries (NY)..............................              X
                                                ------------------------
    Total......................................     17      12
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1493, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 20, 2013.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1493, the 
``Sunshine for Regulatory Decrees and Settlements Act of 
2013.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




H.R. 1493--Sunshine for Regulatory Decrees and Settlements Act of 2013.

      As ordered reported by the House Committee on the Judiciary 
                         on September 20, 2013.




    H.R. 1493 would modify the process used to develop consent 
decrees and settlement agreements that require Federal agencies 
to take specified regulatory actions. Under the bill, 
complaints against Federal agencies, the terms of the consent 
decree or settlement agreement, and the award of attorneys' 
fees would need to be published and accessible to the public in 
an electronic format. The legislation would require that any 
proposed consent decree or settlement agreement be published in 
the Federal Register for 60 days for public comment prior to 
filing with the court. H.R. 1493 also would require that 
settlement negotiations be conducted through mediation or 
alternative dispute resolution programs.
    Under the bill, agencies that submit certain consent 
decrees or settlement agreements to the court would be required 
to inform the court of the agency's other outstanding mandatory 
duties under current law and explain how the proposed consent 
decree or settlement agreement would further the public 
interest. The legislation would require the Attorney General 
(for cases litigated by the Department of Justice) or the head 
of a Federal agency that independently litigates a case to 
certify to the court his or her approval of certain types of 
settlement agreements and consent decrees. Finally, H.R. 1493 
also would require courts to more closely review consent 
decrees when agencies seek to modify them.
    Based on information provided by the Department of Justice 
and assuming the appropriation of the necessary funds, CBO 
estimates that implementing H.R. 1493 would cost $7 million 
over the 2014-2018 period, primarily because litigation 
involving consent decrees and settlement agreements would 
probably take longer and agencies would face additional 
administrative requirements, including new requirements to 
report more information to the public.
    Enacting H.R. 1493 could affect direct spending; therefore, 
pay-as-you-go procedures apply. Under the Clean Air Act, the 
Clean Water Act, and other statutes, successful plaintiffs are 
entitled to repayment of attorneys' fees through the Treasury's 
Judgment Fund. Such payments have averaged about $2 million 
annually in recent years. By lengthening the process of 
developing consent decrees, H.R. 1493 could increase the amount 
of reimbursable attorneys' fees, thus increasing the amount of 
such payments from the Judgment Fund. However, the increased 
length of the process to finalize consent decrees and 
settlement agreements might deter some future lawsuits and 
decrease the number of future cases. On net, CBO estimates that 
enacting the legislation would increase annual direct spending 
by an insignificant amount. Enacting the bill would not affect 
revenues.
    H.R. 1493 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 1493 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 1493 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1493 limits the ability of defendant Federal regulators and 
pro-regulatory plaintiffs to abuse Federal consent decrees and 
settlement agreements to require new regulations, reorder 
regulatory priorities, bind the discretion of future 
administrations, and limit the rights of regulated entities and 
State, local and Tribal co-regulators affected by actions taken 
under such decrees and settlements.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1493 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Sec. 1. Short Title.
    Section 1 sets forth the short title of the bill as the 
``Sunshine for Regulatory Decrees and Settlements Act of 
2013.''
Sec. 2. Definitions.
    Under the definitions in Section 2, the bill applies to 
specific classes of consent decrees and settlements, as 
follows:

    Subsec. 2(1): ``Agency'' and ``Agency action'' have the 
meanings given those terms under 5 U.S.C. Sec. 551.

    Subsec. 2(2): ``Covered civil action'' means a civil 
action brought under chapter 7 of title 5, United States Code, 
or any other statute authorizing suit against the United 
States, to compel agency action alleged to be unlawfully 
withheld or unreasonably delayed that pertains to a regulatory 
action that affects the rights of private parties other than 
the plaintiff or the rights of state, local or tribal 
governments.

    Subsec. 2(3): ``Covered consent decree'' means any consent 
decree entered in a covered civil action and any consent decree 
that requires agency action that pertains to a regulatory 
action that affects the rights of private parties other than 
the plaintiff or the rights of state, local or tribal 
governments.

    Subsec. 2(4): ``Covered consent decree or settlement 
agreement'' means a covered consent decree and a covered 
settlement agreement.

    Subsec. 2(5): ``Covered settlement agreement'' means any 
settlement agreement entered in a covered civil action and any 
settlement agreement that requires agency action that pertains 
to a regulatory action that affects the rights of private 
parties other than the plaintiff or the rights of state, local 
or tribal governments.

Sec. 3. Consent Decree and Settlement Reform.
    Section 3 of the bill sets forth the following requirements 
applicable to consent decrees and settlement agreements covered 
by the bill:

    Subsec. 3(a)(1)--notice of intent to sue and complaints in 
covered civil actions must be made publicly available, within 
15 days after receipt of service of the notice of intent to sue 
or the complaint, respectively, through readily accessible 
means, including electronic means by the agency against which 
the action is filed.

    Subsec. 3(a)(2)--the opportunity for affected parties to 
intervene in the litigation must conclude before covered 
consent decrees and settlement agreements may be proposed to 
the court.

    Subsec. 3(b)(1)--in considering motions to intervene, the 
court must adopt a rebuttable presumption that an intervenor-
movant's rights are not adequately represented by the plaintiff 
or defendant agency.

    Subsec. 3(b)(2)--in considering motions to intervene, the 
court must take due account of whether the movant is a state, 
local or tribal government that co-administers with the Federal 
Government the statutory provisions at issue in the litigation 
or administers state, local or tribal regulatory authority that 
would be preempted by the defendant agency's discharge of the 
regulatory duty alleged in the complaint.

    Subsec. 3(c)(1)-(2)--if the court grants intervention, it 
must include the plaintiff, defendant agency and intervenor(s) 
in court-supervised settlement talks. Settlement negotiations 
are to occur in the court's mediation or ADR program or to be 
presided over by a district judge other than the presiding 
judge, a magistrate judge, or a special master, as determined 
appropriate by the presiding judge.

    Subsec. 3(d)(1)--the defendant agency must publish in the 
Federal Register and online any proposed consent decree or 
settlement agreement for no fewer than 60 days of public 
comment before filing it with the court and must specify the 
statutory basis for the covered consent decree or settlement. 
The agency must also publish a description of the covered 
consent decree or settlement, including whether it provides for 
an award of attorney's fees.

    Subsec. 3(d)(2)(A)--during the 60 day period, the 
defendant agency must allow public comment on any issue related 
to the matters alleged in the complaint in the applicable civil 
action or addressed or affected by the covered consent decree 
or settlement agreement.

    Subsec. 3(d)(2)(B)--the defendant agency must respond to 
any public comments received.

    Subsec. 3(d)(2)(C)--the defendant agency must submit to 
the court a summary of the public comments and agency responses 
when it moves for entry of the covered consent decree or 
dismissal of the case based on the settlement agreement, inform 
the court of the statutory basis for the proposed covered 
consent decree or settlement, certify an index of the 
administrative record for the notice and comment proceeding to 
the court, and make the administrative record fully accessible 
to the court.

    Subsec. 3(d)(2)(D)--the court must include in the record 
the index of the administrative record certified by the agency 
under subparagraph (C) and any documents listed in the index 
which any party or amicus curiae appearing before the court in 
the action submits to the court.

    Subsec. 3(d)(3)(A)--the defendant agency may, at its 
discretion, hold a public agency hearing on whether to enter 
into the proposed consent decree or settlement agreement.

    Subsec. 3(d)(3)(B)--if such a hearing is held, then a 
summary of the proceedings must be filed with the court, the 
hearing record must be certified to the court and included in 
the judicial record, and full access to the hearing record must 
be given to the court.

    Subsec. 3(d)(4)--if a proposed consent decree or 
settlement agreement requires agency action by a date-certain, 
the defendant agency must inform the court of any uncompleted 
mandatory agency duties the covered consent decree or 
settlement agreement does not address, how the covered consent 
decree or settlement agreement would affect the discharge of 
those duties, and why the covered consent decree's or 
settlement agreement's effects on the order in which the agency 
discharges its mandatory duties is in the public interest.

    Subsec. 3(e)(1)-(2)--in the case of a covered consent 
decree, the Attorney General or, in cases litigated by agencies 
with independent litigating authority, the defendant agency 
head, must certify to the court that he or she approves of a 
proposed covered consent decree that includes terms that: (i) 
convert into a non-discretionary duty a discretionary authority 
of an agency to propose, promulgate, revise, or amend 
regulations; (ii) commit an agency to expend funds that have 
not been appropriated and that have not been budgeted for the 
regulatory action in question; (iii) commit an agency to seek a 
particular appropriation or budget authorization; (iv) divest 
an agency of discretion committed to the agency by statute or 
the Constitution of the United States, without regard to 
whether the discretion was granted to respond to changing 
circumstances, to make policy or managerial choices, or to 
protect the rights of third parties; or (v) otherwise affords 
relief that the court could not enter under its own authority 
upon a final judgment in the civil action.
      In the case of a covered settlement agreement, the 
Attorney General or, in cases litigated by agencies with 
independent litigating authority, the defendant agency head, 
must certify to the court that he or she approves of a proposed 
covered settlement agreement that provides a remedy for failure 
by the agency to comply with the terms of the covered 
settlement agreement other than the revival of the civil action 
resolved by the covered settlement agreement and that: (i) 
interferes with the authority of an agency to revise, amend, or 
issue rules under the procedures set forth in chapter 5 of 
title 5, United States Code, or any other statute or executive 
order prescribing rulemaking procedures for a rulemaking that 
is the subject of the covered settlement agreement; (ii) 
commits the agency to expend funds that have not been 
appropriated and that have not been budgeted for the regulatory 
action in question; or (iii) for a covered settlement agreement 
that commits the agency to exercise in a particular way 
discretion which was committed to the agency by statute or the 
Constitution of the United States to respond to changing 
circumstances, to make policy or managerial choices, or to 
protect the rights of third parties.

    Subsec. 3(f)(1)--when it considers motions to participate 
as amicus curiae in briefing over whether it should enter or 
approve a consent decree or settlement, the court must adopt a 
rebuttable presumption that favors amicus participation by 
those who filed public comments on the covered consent decree 
or settlement agreement during the agency's notice and comment 
process.

    Subsec. 3(f)(2)(A)-(B)--the court must ensure that a 
proposed consent decree or settlement agreement allows 
sufficient time and procedure for the agency to comply with the 
Administrative Procedure Act and other applicable statutes that 
govern rulemaking, and, unless contrary to the public interest, 
any executive orders that govern rulemaking;

    Subsec. 3(g)--requires agencies to submit annual reports 
to Congress on the number, identity, and content of covered 
civil actions brought against and covered consent decrees and 
settlement agreements, including the statutory bases of the 
covered consent decrees and settlement agreements, and the 
decrees' and settlements' related complaints and attorneys' fee 
awards.

Sec. 4. Motions to Modify Consent Decrees.
    The bill establishes a de novo standard of review for the 
courts' consideration of motions to modify covered consent 
decrees and settlement agreements due to agency obligations to 
fulfill other duties or changed facts and circumstances.
Sec. 5. Effective Date.
    The bill becomes effective upon enactment and applies to 
any covered civil action filed or covered consent decree or 
settlement agreement proposed to a court on or after that date.

                            Dissenting Views

                              INTRODUCTION

    H.R. 1493, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2013,'' is yet another attack on the Federal 
rulemaking process. Consent decrees and settlements generate 
many benefits by facilitating the enforcement of laws, ensuring 
judicial efficiency, and protecting the public fisc. 
Notwithstanding these benefits, this ill-conceived bill imposes 
numerous new procedural burdens on agencies and courts with 
respect to the entry of consent decrees and settlement 
agreements that seek to compel agency action that involves 
regulatory power and affects the rights of non-parties to such 
actions. Among these burdens are the requirement that agencies 
solicit public comments on such proposed consent decrees or 
settlement agreements and respond to each public comment before 
entering such agreements in court. The bill would also require 
courts to presume, subject to rebuttal, that almost any private 
third party be allowed to intervene in litigation between a 
public interest group and a Federal agency concerning a 
regulatory action and would require that such third party be 
permitted to participate in settlement negotiations between the 
two litigants.
    Without any evidence, proponents of this legislation allege 
that it is needed to restrain agencies and interest groups from 
colluding to ``sue and settle,'' whereby sympathetic Federal 
agencies enter into consent decrees or settlement agreements 
with public interest groups or other private citizen plaintiffs 
as a form of informal rulemaking that avoids compliance with 
the rulemaking procedures outlined in the Administrative 
Procedure Act\1\ (APA) and other statutes. Procedures have long 
been in place that circumscribe the ability of agencies to 
enter consent decrees and settlement agreements so as to avoid 
any potential ``sue and settle'' situations. By undermining 
citizen attempts to enforce statutory rulemaking duties on 
agencies, H.R. 1493 ultimately threatens public health and 
safety by undermining the promulgation of new safeguards. Also, 
by discouraging the use of consent decrees and settlement 
agreements, encouraging costly and protracted litigation over 
ambiguous and ill-defined terms, imposing unduly burdensome 
procedural requirements on agencies and courts, and providing 
increased opportunities for dilatory tactics by those opposed 
to the agency action at issue in the underlying litigation, 
H.R. 1493 will exponentially increase costs for American 
taxpayers. Finally, this bill improperly undermines the 
judiciary's traditional role in managing litigation and 
resolving disputes equitably and efficiently.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2013).
---------------------------------------------------------------------------
    A broad coalition of civil rights, environmental, consumer 
protection, and other public interest groups opposed a 
substantially similar bill in the 112th Congress, including the 
Alliance for Justice, the American Association for Justice, the 
Center for Food Safety, the Center for Science in the Public 
Interest, Defenders of Wildlife, Earthjustice, the Natural 
Resources Defense Council, OMB Watch (now the Center for 
Effective Government), Public Citizen, and the Sierra Club.\2\ 
Additionally, the Administration threatened to veto H.R. 1493's 
predecessor from the 112th Congress, stating that it would 
``spawn excessive regulatory litigation, and introduce 
redundant processes for litigation settlements.''\3\
---------------------------------------------------------------------------
    \2\Letter to Rep. John Conyers, Jr. (D-MI), Ranking Member, H. 
Committee on the Judiciary from 41 public interest groups (Mar. 19, 
2012) (on file with the H. Committee on the Judiciary, Democratic 
Staff).
    \3\Executive Office of the President, Office of Management and 
Budget, Statement of Administration Policy on H.R. 4078--the Regulatory 
Freeze for Jobs Act of 2012 (July 23, 2012), available at http://
www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/
saphr4078r_
20120723.pdf.
---------------------------------------------------------------------------
    We likewise strongly oppose H.R. 1493 and respectfully 
dissent.

                       DESCRIPTION AND BACKGROUND

    H.R. 1493, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2013,'' is intended to address the perceived 
problem of collusion between public interest plaintiffs and 
sympathetic Federal agencies in entering into consent decrees 
or settlement agreements that oblige the agency to take a 
particular action regarding a regulatory action (e.g., a 
rulemaking), often under a certain timeline. Proponents of the 
bill call this phenomenon ``sue and settle.'' H.R. 1493 would 
impose various burdensome procedural requirements on Federal 
agencies and Federal courts when a consent decree or settlement 
agreement prescribes regulatory action affecting a private 
third party. These new procedures include a virtually unlimited 
right for almost any private party to intervene in ongoing 
litigation and settlement negotiations between a Federal agency 
and plaintiffs that have sued it to enforce a statutory 
obligation to undertake a regulatory action. The bill also 
includes a requirement that agencies accept and respond to 
public comments about a proposed consent decree or settlement 
agreement. It also limits the kinds of consent decrees and 
settlement agreements that executive departments and agencies 
may agree to. This legislation is freestanding and does not 
amend any current law or statute.
    A detailed description of the bills substantive provisions 
follows.
    Section 2 defines several key terms. Section 2(1) imports 
the definitions of ``agency'' and ``agency action'' from the 
APA. Thus, the bill's provisions apply to Executive Branch and 
independent agencies alike.\4\
---------------------------------------------------------------------------
    \4\Independent regulatory agencies, as opposed to executive branch 
agencies, are considered ``independent''because the President has 
limited authority to remove their leaders, who can only be removed for 
cause, rather than simply serving at the President's pleasure. Such 
agencies are usually styled ``commissions'' or ``boards'' (e.g., 
National Labor Relations Board, Securities and Exchange Commission). 
Stephen G. Breyer, et al., Administrative Law and Regulatory Policy, at 
100 (4th ed. 1999).
---------------------------------------------------------------------------
    Section 2(2) defines ``covered civil action'' as meaning a 
civil action that: (1) seeks to compel agency action; (2) 
alleges that an agency is unlawfully withholding or 
unreasonably delaying ``agency action relating to a regulatory 
action'' that affects the rights of private third parties or 
state, local, or tribal governments; and (3) is brought 
pursuant to the judicial review provisions of the APA or any 
other statute authorizing judicial review of agency action. The 
scope of and distinction between ``agency action'' and 
``regulatory action'' are not entirely clear, nor is the 
meaning of ``rights'' or ``private persons.'' Given that these 
are threshold terms, their vagueness is likely to lead to 
litigation over whether H.R. 1493's provisions apply to a given 
proposed consent decree or settlement agreement.
    Section 2(3) defines ``covered consent decree'' as a 
consent decree in a covered civil action and any other consent 
decree requiring agency action concerning a rulemaking or other 
regulatory action that affects private third parties or state, 
local, or tribal governments. Thus, H.R. 1493 could apply to 
consent decrees in cases that are not ``covered civil actions'' 
under the bill.
    Section 2(4) defines ``covered consent decree or settlement 
agreement'' as a covered consent decree and a covered 
settlement agreement. This definition's purpose is unclear.
    Section 2(5) defines ``covered settlement agreement'' in a 
manner similar to the definition for ``covered consent 
decree,'' except that it applies to settlement agreements 
rather than consent decrees. As with ``covered consent 
decrees,'' this means that H.R. 1493 could apply to settlement 
agreements in cases that are not ``covered civil actions'' 
under the bill.
    Section 3 of the bill sets forth several new procedures 
that agencies and parties in litigation must follow before a 
court can enter a consent decree or settlement agreement, as 
well as certain rebuttable presumptions that courts must make.
    Section 3(a)(1) requires a defendant agency in a covered 
civil action to post online a copy of the notice of intent to 
sue and the complaint in the covered civil action not later 
than 15 days after receiving service of each. Section 3(a)(2) 
prohibits a party to a civil action from moving to enter a 
covered consent decree or to dismiss a civil action pursuant to 
a covered settlement agreement until after compliance with the 
bill's notice and comment requirements or after a public 
hearing allowed under the bill, whichever is later.
    Section 3(b)(1) applies a unique standard for third-party 
intervention in covered civil actions. Specifically, it 
requires a court, when considering a motion to intervene in a 
covered civil action or in a civil action in which a covered 
consent decree or settlement agreement is proposed, to presume 
that the interests of ``a person who alleges that the agency 
action in dispute would affect the person'' would not be 
adequately represented by the parties to the action. This 
places the burden on the non-moving parties to show that they 
can adequately represent the putative intervenor's interests, 
in contrast to current law, which places the burden on the 
party seeking intervention to demonstrate that its interests 
are not adequately represented by the parties per Federal Rule 
of Civil Procedure 24.
    With respect to motions to intervene by state, local, and 
tribal governments, section 3(b)(2) requires a court to ``take 
due account of whether the movant'' jointly administers with a 
defendant agency the statutory provisions giving rise to the 
underlying lawsuit or administers under state, local, or tribal 
law an authority that would be preempted by the regulatory 
action at issue in the underlying lawsuit.
    Section 3(c) outlines certain requirements regarding the 
negotiation to settle a covered civil action or to reach an 
agreement on a covered consent decree or settlement agreement. 
Section 3(c)(1) requires that such negotiations be conducted 
pursuant to the court's alternative dispute resolution program 
or by a judge other than the presiding judge, a magistrate, or 
a special master, as the presiding judge may determine. Such 
settlement negotiations must also include any intervening 
party.
    Section 3(d) imposes a number of notice and comment 
procedures on agencies before they can file a consent decree or 
settlement agreement with a court. Section 3(d)(1) requires 
that an agency publish in the Federal Register and post online 
a proposed covered consent decree or settlement agreement and a 
description of its terms, including whether it provides for 
attorneys' fees or costs and a basis for such award, at least 
60 days before such consent decree or settlement agreement is 
filed with a court.
    Section 3(d)(2)(A) requires that the agency accept public 
comment on any issue in the underlying civil action or 
regarding the proposed consent decree or settlement agreement 
during that minimum 60-day period provided for in section 
3(d)(1). Section 3(d)(2)(B) requires the agency to respond to 
any public comments. Section 3(d)(2)(C) requires an agency to: 
(1) inform the court of the statutory basis for the proposed 
consent decree or settlement agreement and a summary of public 
comments that it has received; (2) submit to the court a 
certified index of the administrative record of the notice and 
comment proceeding; and (3) make the administrative record 
available to the court. Finally, section 3(d)(2)(D) requires 
the court to include in the record of the underlying civil 
action the administrative record submitted by an agency, as 
well as any documents listed in the index that any party or 
amicus curiae appearing before the court submits.
    Section 3(d)(3) allows an agency to hold a public hearing 
regarding whether to enter into a proposed covered consent 
decree or settlement agreement and outlines the procedures for 
holding such a hearing.
    Section 3(d)(4) requires an agency to present to the court 
certain explanations before moving to enter a covered consent 
decree or settlement agreement, or to dismiss the civil action 
based on the covered consent decree or settlement agreement, 
when the agency is required to take an action by a date certain 
pursuant to such decree or settlement. The required 
explanations must describe: (1) any required regulatory action 
that the agency has not taken and that the decree or settlement 
does not address; (2) a description of how the decree or 
settlement would affect the discharge of such required 
regulatory action; and (3) why the effects of the decree or 
settlement on the discharge of required regulatory action would 
be in the public interest.
    Section 3(e) codifies long-standing guidelines that 
Department of Justice and agency attorneys follow to ensure 
that their use of consent decrees or settlement agreements are 
not used to circumvent the normal rulemaking process, known as 
the ``Meese Memo'' (which is itself already codified in the 
Code of Federal Regulations).\5\ Section 3(e)(1) states the 
general rule that for a covered consent decree or settlement 
agreement containing certain terms that are proscribed by the 
Meese Memo, the Attorney General or the head of an independent 
agency (depending on which agency is the litigating party), 
must submit to the court a signed certification that he or she 
approves the proposed consent decree or settlement agreement. 
Section 3(e)(2) sets forth the terms that would subject a 
proposed covered decree or settlement to the certification 
requirement. For covered consent decrees, these terms are those 
that: (1) convert an agency's discretionary rulemaking 
authority into a nondiscretionary rulemaking obligation; (2) 
commit an agency to expend funds for the regulatory action at 
issue that have not been appropriated and budgeted; (3) commit 
an agency to seek a particular appropriation or budget 
authorization; (4) divest an agency of discretion committed to 
it by statute or the Constitution; or (5) affords relief that 
the court otherwise would not have authority to grant. For 
covered settlement agreements, the terms triggering the 
certification requirement are those that: (1) remedy the 
agency's failure to comply with the covered settlement 
agreement, other than a revival of the underlying civil action; 
and (2) interferes with agency rulemaking procedures under the 
APA, another statute, or executive order, commits the agency to 
expend non-appropriated and non-budgeted funds for the 
regulatory action at issue, or commits the agency to exercise 
discretion in a particular way when the discretion was 
committed to it by statute or the Constitution to respond to 
changing circumstances, to make policy or managerial choices, 
or to protect the rights of third parties.
---------------------------------------------------------------------------
    \5\28 C.F.R. Sec. Sec. 0.160-0.163 (2013).
---------------------------------------------------------------------------
    Section 3(f) imposes certain requirements on courts for 
judicial consideration of proposed covered consent decrees and 
settlement agreements. Section 3(f)(1) requires a court 
reviewing a proposed covered consent decree or settlement 
agreement to presumptively allow amicus participation by any 
party who filed public comments or participated in a public 
hearing regarding such proposed decree or settlement under the 
bill. Section 3(f)(2) prohibits a court from entering a consent 
decree unless it provides for sufficient time or procedures for 
the agency to comply with the APA's rulemaking procedures or 
other statutes and executive orders that govern rulemaking. The 
court must also ``ensure'' that such provisions are contained 
in any proposed settlement agreement.
    Section 3(g) requires agencies to submit annual reports to 
Congress. These reports must include the number, ``identity,'' 
and content of covered civil actions brought against the agency 
as well as covered consent decrees or settlement agreements 
that the agency has entered into. Additionally, the report must 
describe the statutory basis for each covered consent decree or 
settlement agreement entered into by the agency and for any 
award of attorneys' fees or costs in the underlying civil 
action.
    Section 4 of the bill specifies that when an agency moves 
to modify a covered consent decree or settlement agreement 
because it is no longer ``fully in the public interest due to 
the obligations of the agency to fulfill other duties or due to 
changed facts and circumstances,'' the court must review the 
decree or settlement de novo.
    Section 5 states that the bill's provisions apply to 
covered civil actions pending on the bill's enactment date. 
Section 5 further provides that the bill's provisions apply to 
all covered consent decrees and covered settlement agreements 
proposed on or after the bill's enactment date.

                        CONCERNS WITH H.R. 1493

I. H.R. 1493 is a Solution in Search of a Problem
    No reliable evidence supports the assertion that H.R. 1493 
is needed. Federal agencies do not collude with public interest 
organizations and other private-citizen plaintiffs in entering 
into consent decrees or settlements as a way of circumventing 
proper rulemaking procedures. Nevertheless, proponents of H.R. 
1493 repeatedly contend that such collusion takes place, 
without citing evidence in support of that contention. For 
example, Roger Martella testified before the Judiciary 
Committee's Subcommittee on Courts, Commercial and 
Administrative Law in the 112th Congress that ``certain groups 
increasingly are employing a `sue and settle' approach to 
interactions with the government on regulatory issues.''\6\ 
According to Mr. Martella, under such arrangements, non-
governmental organizations use consent decrees and settlements 
with agencies to dictate agency priorities and set timelines 
for rulemakings without transparency, opportunity for input 
from the to-be-regulated entities, or opportunity for judicial 
review of such agreements.\7\ At this year's hearing on H.R. 
1493, the bill's proponents cited a faulty U.S. Chamber of 
Commerce study to support their bald assertions of 
collusion.\8\
---------------------------------------------------------------------------
    \6\The Federal Consent Decree Fairness Act and the Sunshine for 
Regulatory Decrees and Settlements Act: Hearings on H.R. 3041 and H.R. 
3862 Before the Subcomm. on Courts, Commercial and Administrative Law 
of the H. Comm. on the Judiciary, 112th Cong. (2012) [hereinafter 
``2012 Hearing''] (statement of Roger R. Martella, Jr., Partner, Sidley 
Austin LLP).
    \7\2012 Hearing at 26-28.
    \8\U.S. Chamber of Commerce, Sue and Settle: Regulating Behind 
Closed Doors, May 2013, available at http://www.uschamber.com/reports/
sue-and-settle-regulating-behind-closed-doors.
---------------------------------------------------------------------------
    The facts, however, are bereft of any evidence of such 
collusion. For example, John Walke of the Natural Resources 
Defense Council thoroughly de-bunked the Chamber study. Mr. 
Walke testified that the Chamber's methodology relied entirely 
on ``Internet searches identifying all cases in which [the 
Environmental Protection Agency or EPA] and an environmental 
group entered into a consent decree or settlement agreement 
between 2009 and 2012.''\9\ In doing so, he explained, the 
report ignored EPA settlements with industry parties or 
conservative groups and did not examine any EPA settlements 
during the Bush administration, during which the EPA also 
entered into settlements and consent decrees. Mr. Walke further 
noted:
---------------------------------------------------------------------------
    \9\2013 Hearing at 115.

        Most striking of all is that by merely compiling EPA 
        settlements (with just environmental groups, under just 
        [the Obama] administration), the report's methodology 
        quietly dispenses with any need for proof of collusion 
        or impropriety in consent decrees or settlement 
        agreements. The Chamber cannot remotely back up the 
        charge that collusion was involved in all of these 
        settlements, or even in any of them, so the report does 
        not even try.\10\
---------------------------------------------------------------------------
    \10\Id. at 116.

Mr. Walke observed that the Chamber report simply sought to 
transform evidence of the use of a ``common and long-accepted 
form of resolving litigation over clear legal violations under 
any administration'' into evidence of inappropriate 
collusion.\11\ It is also critical to note that, while much of 
the justification that H.R. 1493's proponents--including the 
Chamber of Commerce--have centered on consent decrees and 
settlements involving the EPA, the bill itself is drafted in 
general language and would apply to consent decrees and 
settlement agreements involving all Federal agencies, not just 
the EPA.
---------------------------------------------------------------------------
    \11\Id.
---------------------------------------------------------------------------
    The testimony of John Cruden, a senior career official in 
the Department of Justice (DoJ) Environment and Natural 
Resources Division (ENRD) for more than two decades during two 
Republican and two Democratic administrations, bolsters Mr. 
Walke's conclusion that there is no evidence of ``sue and 
settle'' collusion. Mr. Cruden testified on a substantially 
similar bill in the 112th Congress that he was unaware of any 
instance of this so-called collusive ``sue and settle'' 
activity occurring during his long tenure as a senior ENRD 
official. He also emphasized that agencies enter settlements 
only when they have failed to meet mandatory rulemaking 
obligations:

        In my long experience with the types of cases covered 
        by [this legislation], EPA only agreed to settle when 
        the agency had a mandatory duty to take an action, or 
        to prepare a rule, based on specific legislation 
        enacted by Congress. The settlement in those cases was 
        straightforward: setting a date by which the agency 
        would propose a draft rule and, quite often, a date for 
        final action. Had there not been such a settlement, a 
        Federal court would have issued an injunction setting 
        the date for EPA to take action, since the agency's 
        legal responsibility was quite clear.

        Because a proposed rule emerging from a settlement 
        would provide the same notice-and-comment opportunities 
        as any other rulemaking, and because the final rules 
        still would be subject to challenge under the 
        Administrative Procedure Act, this existing process 
        obviously does not avoid public comment, and already 
        allows interested parties their full range of 
        substantive and procedural rights.

                              .    .    .

        I am not aware of any instance of a settlement, and 
        certainly none I personally approved, that could 
        remotely be described as ``collusive.'' Quite the 
        opposite: in every case of which I am aware, the 
        Department of Justice vigorously represented the 
        Federal agency, defending the agency's legal position 
        and obtaining in any settlement the best possible terms 
        that were consistent with the controlling law.\12\
---------------------------------------------------------------------------
    \12\2012 Hearing at 106-107.

    Others have also refuted the ``sue and settle'' allegation. 
As a Sierra Club representative observed, this theory is a 
``sad attempt to create a boogie man out of vital and broadly 
supported protections that have improved and saved millions of 
Americans' lives.''\13\ Likewise, David Goldston of the Natural 
Resources Defense Council testified in 2011 at a House Energy 
and Commerce Subcommittee hearing that the ``whole 'sue and 
settle' narrative is faulty.''\14\
---------------------------------------------------------------------------
    \13\John McCardle, House Republicans Accuse EPA, Enviros of 
Collusion, N.Y. Times, July 15, 2011, available at http://
www.nytimes.com/gwire/2011/07/15/15greenwire-house-republicans-accuse-
epa-enviros-of-collus-69925.html
    \14\Id
---------------------------------------------------------------------------
    Mr. Walke also noted in his testimony that the Chamber 
report ultimately identifies as its culprit the citizen-suits 
that Congress has authorized under various environmental 
statutes.\15\ The entire ``sue and settle'' allegation that 
undergirds H.R. 1493, therefore, is really aimed at 
congressionally authorized provisions that permit citizens to 
sue agencies so as to enforce statutory requirements. If these 
citizen-suit provisions are the true cause for concern, then it 
is for H.R. 1493's proponents to push for their repeal by 
Congress, rather than seek to disrupt the use of longstanding 
mechanisms for resolving litigation.
---------------------------------------------------------------------------
    \15\2013 Hearing at 116-117.
---------------------------------------------------------------------------
    In the absence of genuine evidence that Federal agencies 
collude with plaintiffs to circumvent proper rulemaking 
procedures by use of consent decrees and settlement agreements, 
H.R. 1493 simply addresses a non-existent problem.
II. LBy Undermining Enforcement of Mandatory Rulemaking Duties, H.R. 
        1493 Threatens Public Health and Safety
    To the extent that H.R. 1493 undermines attempts to enforce 
statutory mandates on agencies, it potentially undermines 
public health and safety. As noted, most consent decrees and 
settlement agreements arising from civil actions where a 
citizen lawsuit has been filed against an agency stem from the 
fact that the agency failed to meet a statutory rulemaking 
deadline or other rulemaking duty. Congress assigned these 
mandatory duties to agencies because it concluded that a 
particular public health or safety concern merited such action 
by the agencies. Moreover, Congress added citizen-lawsuit 
provisions in these statutes in order to allow private citizens 
to help enforce its statutory mandates. Therefore, when 
agencies fail to meet such mandatory duties, the harm that they 
were supposed to address remains unaddressed. By making it 
harder for citizens to compel agencies to meet their duties, 
H.R. 1493 jeopardizes public health and safety.
    Health and safety concerns are not a mere abstraction. 
Regarding the issue of workplace safety alone, there were 4,383 
fatal occupational injuries last year, according to the Bureau 
of Labor Statistics.\16\ Additionally, an analysis by the 
National Institute for Occupational Safety and Health, the 
American Cancer Society, and Emory University's School of 
Public Health estimates that after factoring in disease and 
injury data ``there are a total of 55,200 US deaths annually 
resulting from occupational disease or injury (range 32,200-
78,200).''\17\ To the degree that H.R. 1493 makes it harder for 
citizens to force agencies to address these kinds of concerns, 
it unnecessarily puts the American people at risk.
---------------------------------------------------------------------------
    \16\Press Release, U.S. Dep't of Labor Bureau of Labor Statistics, 
National Census of Fatal Occupational Census of Fatal Occupational 
Injuries in 2012 (Preliminary Results), Aug. 13, 2013, available at 
http://www.bls.gov/news.release/pdf/cfoi.pdf.
    \17\Kyle Steenland et al., Dying for Work: The Magnitude of US 
Mortality from Selected Cases of Death Associated with Occupation, 43 
Am. J. Industrial Medicine 461 (2003).
---------------------------------------------------------------------------
III. LH.R. 1493 is Unnecessary in Light of the Justice Department's 
        ``Meese Memo'' and Other Existing Legal Mechanisms
    H.R. 1493's proponents have never explained why, to the 
extent that collusive settlement agreements are an actual 
problem, the so-called ``Meese Memo'' is insufficient to 
address such a problem, nor have they offered evidence that the 
DoJ and Federal agencies are not complying with its 
requirements. Moreover, H.R. 1493's proponents offer no 
rationale as to why the Meese Memo needs to be codified in 
statute, as this bill does. Finally, in addition to the Meese 
Memo, other legal mechanisms exist for addressing the 
proponents' purported concerns about transparency and public 
input in consent decree and settlement negotiations.
    The Meese Memo, codified in the Code of Federal 
Regulations,\18\ specifies a process that already addresses the 
purported problem sought to be addressed by H.R. 1493's 
proponents. In 1986, then-United States Attorney General Edwin 
Meese issued a set of guidelines for DoJ and other government 
attorneys in entering into consent decrees and settlement 
agreements in response to the following concerns:
---------------------------------------------------------------------------
    \18\28 C.F.R. Sec. Sec. 0.160-0.163 (2012).

        In the past . . . executive departments and agencies 
        have, on occasion, misused [consent decrees] and 
        forfeited the prerogatives of the Executive in order to 
        preempt the exercise of those prerogatives by a 
        subsequent Administration. These errors sometimes have 
        resulted in an unwarranted expansion of the powers of 
        [sic] judiciary--often with the consent of government 
        parties--at the expense of the executive and 
        legislative branches.\19\
---------------------------------------------------------------------------
    \19\Memorandum from Edwin Meese III, Attorney General, to All 
Assistant Attorneys General and All United States Attorneys Regarding 
Department Policy Regarding Consent Decrees and Settlement Agreements 
(Mar. 13, 1986), available at http://www.archives.gov/news/samuel-
alito/accession-060-89-1/Acc060-89-1-box9-memoAyer-LSWG-1986.pdf.

The Meese Memo identified three types of potentially 
problematic provisions in consent decrees: (1) a department or 
agency agreed to promulgate regulations and may have 
relinquished its power to amend those regulations or promulgate 
new ones without court participation; (2) a consent decree may 
divest a department or agency of discretion committed to it by 
the Constitution or a statute where exercise of discretion is 
ultimately subject to court approval; and (3) a department or 
agency has agreed to use its best efforts to obtain funding 
from Congress in order to enforce the decree.\20\
---------------------------------------------------------------------------
    \20\Id.
---------------------------------------------------------------------------
    As a result, the Meese Memo states that departments and 
agencies should not enter into a consent decree that: (1) 
``converts into a mandatory duty the otherwise discretionary 
authority of the Secretary or agency administrator to revise, 
amend, or promulgate regulations;'' (2) ``commits the 
department or agency to expend funds that Congress has not 
appropriated and that have not been budgeted for the action in 
question, or commits a department or agency to seek a 
particular appropriation or budget authorization;'' or (3) 
``divests the Secretary or agency administrator, or his 
successors, of discretion committed to him by Congress, or the 
Constitution where such discretionary power was granted to 
respond to changing circumstances, to make policy or managerial 
choices, or to protect the rights of third parties.''\21\ The 
policy outlines similar restrictions on settlement 
agreements.\22\ If special circumstances require departure from 
these guidelines, the Attorney General, the Deputy Attorney 
General, or the Associate Attorney General must authorize such 
a departure.\23\ The Meese Memo ultimately was incorporated 
into the Code of Federal Regulations.\24\
---------------------------------------------------------------------------
    \21\Id.
    \22\Id.
    \23\Id.
    \24\28 C.F.R. Sec. Sec. 0.160-0.163 (2013).
---------------------------------------------------------------------------
    H.R. 1493's proponents offer no evidence that the DoJ and 
agencies are not complying with the Meese Memo. As Mr. Cruden 
noted, ``I am personally unaware of any examples of the 
Department failing to comply with the existing C.F.R. provision 
[codifying the Meese Memo]; nor did the other witnesses present 
any such examples at the hearing.''\25\ Moreover, the 
Majority's witnesses at last year's hearing on H.R. 1493's 
predecessor specifically praised the Meese Memo and offered no 
argument as to why it was insufficient to address the alleged 
``sue and settle'' problem.\26\
---------------------------------------------------------------------------
    \25\2012 Hearing at 111.
    \26\See id. at 60 (statement of Andrew M. Grossman) (``The Meese 
Policy was, and remains, notable for its identification of a serious 
breach of separation of powers, with serious consequences, and its 
straightforward approach to resolving that problem. By reducing the 
issue, and its remedy, to their essentials, the Meese Policy identifies 
and protects the core principles at stake. This explains its continued 
relevance.'').
---------------------------------------------------------------------------
    In addition to the Meese Memo, there are other mechanisms 
available that already address the purported concerns of H.R. 
1493's proponents. For example, parties whose interests may be 
affected by a consent decree or settlement may move to 
intervene in the case pursuant to Federal Rule of Civil 
Procedure 24, with the moving party bearing the burden of 
demonstrating that the parties to the case do not adequately 
represent the movant's interest.\27\ Similarly, any rulemaking 
that is required pursuant to a consent decree or settlement 
agreement would still be subject to the APA's notice and 
comment procedures, and affected parties who are not parties to 
the consent decree or settlement agreement would still have the 
opportunity to weigh in on any negative impacts of a proposed 
rule.\28\
---------------------------------------------------------------------------
    \27\Fed. R. Civ. P. 24(a)(2).
    \28\5 U.S.C. Sec. 553 (2013).
---------------------------------------------------------------------------
    In sum, to the extent that the Federal Government is, in 
fact, tempted to use consent decrees and settlement agreements 
to do an end-run around the rulemaking procedures, the Meese 
Memo and other mechanisms already address such concerns, making 
H.R. 1493 unnecessary.
IV. H.R. 1493 Will Favor Industry Interests at Taxpayers' Expense
    In addition to being unnecessary, H.R. 1493 threatens to 
impose tremendous financial costs on taxpayers. It would do so 
in several ways. First, it provides numerous new opportunities 
for opponents of regulation to engage in dilatory tactics to 
delay resolution of pending litigation, further increasing 
costs for agencies and courts and, ultimately, taxpayers. 
Second, many of its key terms are ambiguous, which will lead to 
confusion, litigation, and delay in any proposed consent decree 
or settlement negotiation. Third, it imposes numerous 
burdensome procedural requirements on agencies and courts when 
they are considering consent decrees and settlements concerning 
regulatory action, which will further add to the costs borne by 
those entities. Fourth, the bill's cumulative effect would be 
to discourage agencies from entering into consent decrees and 
settlement agreements when they might otherwise have done so, 
leading to unnecessarily protracted and costly litigation.
            A. LH.R. 1493 opens the door to dilatory tactics by 
                    industry and other opponents of agency action.
    Various provisions of H.R. 1493 would give opponents of 
regulations opportunities to effectively stifle rulemaking by 
allowing them to slow down one of the processes by which 
agencies agree to abide by their congressionally-assigned duty 
to regulate. As Mr. Walke and Mr. Cruden noted in their 
testimony, agencies enter into consent decrees and settlement 
agreements when they have a mandatory duty to act, including 
the requirement to promulgate a new rule.\29\ By opening 
opportunities for industry to slow down this process, H.R. 1493 
effectively makes it more expensive for agencies to do what 
Congress has mandated it to do.
---------------------------------------------------------------------------
    \29\2013 Hearing at 117-118; 2012 Hearing at 106-107.
---------------------------------------------------------------------------
    Section 3(b)(1) of the bill, for example, contains a nearly 
open-ended intervention right by mandating that a court 
presume, subject to rebuttal, that the interests of any private 
third party affected by the agency action in dispute in the 
underlying litigation will not be represented by the parties to 
that litigation.\30\ This presumption upends current law, which 
places the burden of proof on a third party to show that its 
interests are not represented by the parties in the case.\31\ 
Effectively, this shift in the burden of proof on the question 
of the representation of third-party interests is a way to make 
it much easier for any entity not a party to the case to 
intervene in a case involving a consent decree or settlement 
agreement that seeks to compel agency action.
---------------------------------------------------------------------------
    \30\H.R. 1493, 113th Cong. Sec. 3(b)(1) (2013).
    \31\Rule 24 of the Federal Rules of Civil Procedure states, in 
pertinent part:

(a) Intervention of Right. On timely motion, the court must permit 
---------------------------------------------------------------------------
anyone to intervene who:

      (1) is given an unconditional right to intervene by a 
      Federal statute; or

      (2) claims an interest relating to the property or 
      transaction that is the subject of the action, and is so 
      situated that disposing of the action may as a practical 
      matter impair or impede the movant's ability to protect its 
      interest, unless existing parties adequately represent that 
      interest.

(b) Permissive Intervention.

      (1) In General. On timely motion, the court may permit 
      anyone to intervene who:

      (A) is given a conditional right to intervene by a Federal 
      statute; or

      (B) has a claim or defense that shares with the main action 
      a common question of law or fact.
    Hypothetically, under H.R. 1493, if the regulatory action 
at issue involved the Clean Air Act, a person who breathes air 
would have the right to intervene in a consent decree or 
settlement agreement, as would any affected industry entity, or 
anyone else in the United States, subject to a refutable 
presumption that the parties to the litigation do not 
adequately represent the third party's interest. If a court 
were to read section 3(b)(1) broadly, this provision could open 
the door to almost anyone intervening in a covered civil action 
under the bill.
    Section 3(c) of H.R. 1493 also tilts the playing field 
sharply in favor of industry interests by giving them an 
opportunity to slow down agency compliance with Federal law. 
Under this provision, courts must delay entry of a consent 
decree or settlement agreement by referring settlement 
discussions to the court's mediation or alternative dispute 
resolution program, or to a district judge, magistrate judge, 
or special master.\32\ Such discussions must include the 
plaintiff, defendant agency, and any third party 
intervenors.\33\ In addition to delaying the settlement 
process, this provision would impose costs on plaintiffs and 
defendant agencies alike by forcing them to pay mediation and 
other dispute resolution costs beyond what they may have had to 
pay in the absence of this process.
---------------------------------------------------------------------------
    \32\H.R. 1493, 113th Cong. Sec. 3(c) (2013).
    \33\Id.
---------------------------------------------------------------------------
    H.R. 1493 provides other opportunities for industry to 
engage in dilatory tactics in sections 3(d)(1) and 3(d)(2)(A), 
which require an agency to publish any proposed consent decree 
or settlement agreement and to allow at least 60 days for 
public comments.\34\ The agency must then respond to every 
comment pursuant to section 3(d)(2)(B).\35\ Under these 
provisions, any industry would be able to flood an agency with 
comments in an effort to stall resolution of the underlying 
dispute, which, as noted, usually concern enforcement of 
rulemaking deadlines.
---------------------------------------------------------------------------
    \34\Id. at Sec. Sec. 3(d)(1), 3(d)(2)(A).
    \35\Id. at Sec. 3(d)(2)(B).
---------------------------------------------------------------------------
    As if forcing an agency to respond to potentially numerous 
public comments on a proposed consent decree or settlement 
agreement was not enough, section 3(f)(1) requires a court to 
presume amicus status for any member of the public who submits 
comments on a proposed consent decree or settlement agreement, 
subject to rebuttal, in any proceeding on a motion to enter 
such consent decree or settlement agreement.\36\ This provision 
would further allow industry and other regulatory opponents to 
delay resolution of the underlying dispute between the 
plaintiff and the defendant agency.
---------------------------------------------------------------------------
    \36\Id. at Sec. 3(f)(1).
---------------------------------------------------------------------------
            B. LH.R. 1493 uses ambiguous language in many key 
                    provisions, opening the door to confusion, 
                    litigation, and delay in resolving disputes.
    Many of H.R. 1493's key provisions are written in 
ambiguous, ill-defined language, which will foster costly 
litigation over their meaning and cause delay in resolving the 
underlying lawsuit against the Federal agency. For example, 
section 2(2) states that the bill applies to consent decrees 
and settlement agreements in an action seeking to compel agency 
action and alleging that the agency is ``unlawfully withhodling 
or unreasonably delaying agency action relating to a regulatory 
action.''\37\ It is unclear what the distinction is between 
``agency action'' and ``regulatory action,'' what the scope of 
the phrase ``relating to'' is, or what ``unlawfully 
withholding'' and ``unreasonably delaying'' mean, opening the 
door to litigation over the meaning of these threshold terms.
---------------------------------------------------------------------------
    \37\Id. at Sec. 2(2).
---------------------------------------------------------------------------
    Additionally, section 2(2) refers to ``private persons'' 
whose ``rights'' are affected by the regulatory action, but the 
bill fails to define what ``private persons'' or ``rights'' 
means.\38\ As noted above, without a definition, almost any 
third party could, in theory, intervene in a consent decree or 
settlement discussion under this bill. As with other ambiguous 
language in this bill, confusion and a lack of clarity over the 
meaning of these terms will lead to litigation.
---------------------------------------------------------------------------
    \38\Id.
---------------------------------------------------------------------------
    Finally, H.R. 1493's requirement that, under certain 
circumstances, agencies must inform the court of all mandatory 
rulemaking deadlines and describe how a consent decree or 
settlement agreement ``would affect the discharge of those 
duties,'' in addition to being open-ended, burdensome, time-
consuming, and a drain on limited agency resources, is also 
full of ambiguity.\39\ The requirement, outlined in section 
3(d)(4), does not define what ``affect the discharge of those 
duties'' means.
---------------------------------------------------------------------------
    \39\Id. at Sec. 3(d)(4).
---------------------------------------------------------------------------
            C. LH.R. 1493 imposes several burdensome procedural 
                    requirements on agencies and courts with respect to 
                    entering into consent decrees and settlement 
                    agreements.
    H.R. 1493 imposes several new procedural requirements on 
agencies and courts that are designed to slow down the 
resolution of litigation over an agency's failure to meet a 
statutory deadline or other regulatory obligation. These 
include: (1) a limitation on when a party may file a motion for 
a consent decree or to dismiss the case pursuant to a 
settlement agreement; (2) a mandate requiring the court to 
presume that the interests of a third party seeking to 
intervene in settlement discussions is not adequately 
represented; (3) a requirement that the court refer consent 
decree or settlement discussions to mediation or another 
alternative dispute resolution mechanism; (4) a requirement 
that the defendant agency publish a proposed consent decree or 
settlement agreement; (5) a requirement that agencies accept 
public comments on proposed consent decrees or settlements to 
which the agency must respond; (6) a requirement that an agency 
submit to a court explanations of vaguely defined factors 
underlying a proposed consent decree or settlement agreement 
whenever such decree or agreement requires agency action by a 
date certain; and (7) a requirement that a court allow amicus 
participation in any motion to enter a consent decree or 
settlement agreement by any party that submitted public 
comments on such decree or agreement.
    Implementing any one of these new requirements, much less 
all of them, drains agency and judicial time and resources 
without adding to the fairness of any consent decree or 
settlement agreement. In times such as now when Federal 
agencies and the court system are facing budgetary shortfalls, 
we should be crafting legislation to streamline and improve 
efficiencies for all. Unfortunately, H.R. 1493 will have the 
opposite result.
            D. LThe cumulative effect of H.R. 1493's provisions will be 
                    to discourage the use of consent decrees and 
                    settlement agreements, forcing expensive and time-
                    consuming litigation.
    By facilitating dilatory conduct by anti-regulatory forces, 
using vague language in key provisions, and imposing numerous 
and burdensome procedural requirements on agencies and courts 
with respect to consideration of consent decrees and settlement 
agreements, H.R. 1493's cumulative effect will be to discourage 
the use of consent decrees and settlement agreements and 
thereby delay or eliminate early resolution of litigation 
against the government. This legislation will ultimately 
increase costs for taxpayers, who must pay for the protracted 
litigation associated with fewer consent decrees and settlement 
agreements. Indeed, the Congressional Budget Office noted in 
its analysis of H.R. 1493 that the bill would impose millions 
of dollars in costs, ``primarily because litigation involving 
consent decrees and settlement agreements would probably take 
longer under the bill and agencies would face additional 
administrative burdens, including new requirements to report 
more information to the public.''\40\
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    \40\Congressional Budget Office, Cost Estimate for H.R. 1493, the 
Sunshine for Regulatory Decrees and Settlements Act of 2013, at 1 
(Sept. 20, 2013), available at http://cbo.gov/publication/44606.
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    Consent decrees benefit both plaintiffs and defendants. For 
plaintiffs, consent decrees allow for meaningful and timely 
relief without the risks and costs associated with prolonged 
litigation. Governmental and other defendants can also avoid 
the burdens and costs of protracted litigation and the 
particular risk that a costly or cumbersome solution simply 
will be imposed on them should they lose the suit. 
Additionally, defendants can avoid judicial determination of 
liability and obtain flexibility in terms of how they implement 
needed reforms. This is why the use of consent decrees in 
Federal court litigation is a longstanding part of the judicial 
and Congressional policy of encouraging alternative dispute 
resolution.\41\ H.R. 1493 flies in the face of this policy and 
will ultimately cost plaintiffs and governmental defendants 
more in litigation costs by making consent decrees and 
settlements more difficult to obtain. As John Cruden explained:
---------------------------------------------------------------------------
    \41\See Timothy Stoltzfus Jost, Breaking the Deal: Proposed Limits 
on Federal Consent Decrees Would Let States Abandon Commitments, Legal 
Times, Apr. 25, 2005, at 59 (``Yet the Supreme Court has long 
articulated a policy encouraging settlement of cases, as has 
Congress.'').

        The judicially approved consent decree is a valuable 
        settlement tool that promotes expeditious resolution of 
        cases, saves transaction costs for all parties and for 
        the judicial system, and achieves finality while 
        protecting the parties to the agreement.

                              *    *    *

        As compared to full-blown litigation, consent decrees 
        allow for a faster and less expensive, but still 
        comprehensive resolution of a dispute. Congress' 
        underlying statutory objectives are satisfied, while at 
        the same time, the [defendant] is able to exercise its 
        sovereignty through the negotiation of binding 
        contracts and the resolution of potentially onerous 
        pending litigation. Indeed, the finality and certainty 
        afforded by the consent decree makes it far easier for 
        a [defendant] to follow through on its commitments. . . 
        .\42\
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    \42\2012 Hearing at 108.

    By making consent decrees and settlement agreements more 
difficult and costly to enter into, H.R. 1493 will ultimately 
cost the taxpayer more in litigation costs and, possibly, 
expensive judgments.
V. LH.R. 1493 Subverts the Federal Rules of Civil Procedure and 
        Judicial Discretion
    H.R. 1493 overrides the Federal Rules of Civil Procedure, 
the courts' power to manage litigation in several respects, and 
their authority to consider equities in their decisionmaking. 
First, it undermines Federal Rule of Civil Procedure 24, which 
sets forth the process for determining when a third party can 
intervene in a pending case, placing the burden on the third 
party to show that its interests are not adequately represented 
by the plaintiff and the defendant. As already discussed, H.R. 
1493 overrides this Rule by requiring courts to presume the 
opposite, namely that the parties in the litigation do not 
adequately represent the interests of the third party.
    Second, H.R. 1493 tampers with the process for modifying 
consent decrees under Federal Rule of Civil Procedure 60(b)(5). 
Under that provision, a court can modify a consent decree when 
``the judgment has been satisfied, released, or discharged; it 
is based on an earlier judgment that has been reversed or 
vacated; or applying it prospectively is no longer 
equitable.''\43\ Section 4 of H.R. 1493 attempts to skew the 
result of such a motion to modify by specifying that when a 
defendant agency moves to modify a previously entered consent 
decree, the court ``shall'' review the motion and consent 
decree de novo whenever the motion to modify is based on the 
grounds that the decree is ``no longer fully in the public 
interest due to the agency's obligations to fulfill other 
duties or due to changed facts and circumstances.'' This 
provision clearly is intended to result in modification or 
revocation of an existing consent decree when a government 
agency moves to do so, regardless of the equities involved, 
which Rule 60 permits a court to consider.
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    \43\Fed. R. Civ. P. 60(b)(5).
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    Beyond the specific changes that H.R. 1493 makes to the 
civil procedure rules at issue, the bill hamstrings a judge's 
discretion in managing matters concerning litigation pending 
before his or her court. In addition to questions about 
intervention or modification of consent decrees, H.R. 1493 
repeatedly requires courts to make certain presumptions 
(subject to rebuttal) on other similar litigation management 
issues such as when to permit amicus participation by third 
parties, when to enter a consent decree or settlement 
agreement, and when to refer matters to mediation, other 
alternative dispute resolution, a special master, or another 
judge. In short, H.R. 1493 seeks to dictate courtroom 
management issues that have traditionally been left to judges 
to decide. Such a lack of deference to courts is a troubling 
result for this Committee, in particular, to embrace.
VI. LThe Bill's Open-ended Intervention Provision Could Undo Critical 
        Civil Rights Protections
    Section 3(b)(1) of the bill would create a rebuttable 
presumption that the interests of ``a person who alleges that 
the agency action in dispute would affect the person . . . 
would not be represented adequately by the existing parties to 
the action,'' and then require that such party must be included 
in ``[e]fforts to settle a covered civil action or otherwise 
reach an agreement on a covered consent decrees or settlement 
agreement.'' In effect, this rebuttable presumption would 
reverse the burden for intervention currently in Rule 24 of the 
Federal Rules of Civil Procedure from the party seeking to 
intervene in the case to the parties themselves.\44\
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    \44\Fed. R. Civ. P. 24.
---------------------------------------------------------------------------
    During the markup, Members attempted to elicit from the 
bill's supporters some clear explanation of the limits of this 
right to intervene. Representative Melvin L. Watt (D-NC) 
observed, ``This bill has no boundaries around it, from my 
perspective. And if we are going to do this, it does seem to me 
that we need to put some boundaries around who can be parties. 
Otherwise, you have no limits on the litigation or no limits on 
the regulatory action.''\45\
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    \45\Unofficial Tr. of Markup of H.R. 1493, the Sunshine for 
Regulatory Decrees and Settlements Act of 2013, by the H. Comm. on the 
Judiciary, 113th Cong. at 37 (July 24, 2013).
---------------------------------------------------------------------------
    In response to this concern Representative Steve Cohen (D-
TN) offered an amendment that would have excluded from the 
coverage of the bill ``a covered consent decree or settlement 
agreement that prevents or is intended to prevent 
discrimination based on race, religion, national origin, or any 
other protected category.'' Subcommittee Chairman Spencer 
Bachus (R-AL) recognized to a degree the validity of this 
concern and suggested that his Republican colleagues consider 
accepting the amendment because, as he explained, ``[e]verybody 
in the United States is affected by every consent settlement on 
race.''\46\
---------------------------------------------------------------------------
    \46\Id. at 40.
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    Urging his colleagues to reject this amendment, Chairman 
Bob Goodlatte (R-VA) contended that current standing 
requirements would continue to act as a limit on 
intervention.\47\ Standing, however, affords weak limits on the 
bill's intervention right. The U.S. Supreme Court's guidance on 
this issue appears to have evolved over the years and is one 
that it has revisited on numerous occasions.\48\ The Court has 
acknowledged that the ``concept of `Art. III standing' has not 
been defined with complete consistency in all of the various 
cases decided by this Court . . . [and] this very fact is 
probably proof that the concept cannot be reduced to a one-
sentence or one-paragraph definition.''\49\ Similarly, the 
Court in another case observed that ``[g]eneralizations about 
standing to sue are largely worthless as such.''\50\
---------------------------------------------------------------------------
    \47\Id. at 46.
    \48\See, e.g., Monsanto Co. v. Geerston Seed Farms, 130 S.Ct. 2743 
(2010); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Allen v. 
Wright, 468 U.S. 737 (1984); Valley Forge Christian College v. 
Americans United, 454 U.S. 464 (1982); Ass'n of Data Processing Service 
Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 
(1970).
    \49\Valley Forge Christian College v. Americans United, 454 U.S. 
464, 475 (1982).
    \50\Association of Data Processing Service Orgs. v. Camp, 397 U.S. 
150, 151 (1970).
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    Standing doctrines do not offer bright-line rules regarding 
when a party may intervene in a pending case. Resolving 
questions about a party's standing will result in extensive 
litigation. Therefore, to the extent that H.R. 1493 potentially 
further opens the door for any private party to claim the right 
to intervene, it would have the effect of delaying any 
settlement for years even if the party claiming intervenor 
status ultimately is unable to establish proper standing.
VII. Amendments
    To highlight the foregoing concerns, several Members 
offered amendments illustrating the effect it would have on 
rules to protect public health and safety. Most of these 
amendments exempted from H.R. 1493 consent decrees and 
settlement agreements concerning certain categories of 
potential rules.
    For example, Representative John Conyers, Jr. (D-MI), the 
Committee's Ranking Member, offered an amendment that would 
have exempted from the bill any consent decree or settlement 
agreement concerning privacy protection. Notwithstanding the 
numerous privacy concerns expressed by Members of Congress on 
both sides of the aisle in connection with recent revelations 
of government surveillance activities, the amendment was 
defeated by a 12 to16 vote.
    As discussed in the prior section, Representative Steve 
Cohen (D-TN), the Subcommittee's Ranking Member, offered an 
amendment that would have exempted from the bill any consent 
decree or settlement agreement concerning a potential rule 
protecting against discrimination on the basis of race, sex, 
national origin, or other protected characteristic. Although 
the Subcommittee's Chairman made a principled argument in favor 
of this amendment, the amendment failed by a vote of 13 to 16.
    Representative Sheila Jackson Lee (D-TX) offered an 
amendment that would have exempted from the bill any consent 
decree or settlement agreement concerning a potential rule 
regarding environmental justice in low-income minority 
communities as defined by Executive Order 12898. This amendment 
failed by a 9 to 17 vote.
    Representative Hank Johnson (D-GA) offered an amendment 
that would have exempted from the bill any consent decree or 
settlement agreement concerning a potential rule that the 
Office of Management and Budget determines would result in net 
job creation. Belying the repeated assertion by the Majority 
that regulations undermine job creation, this amendment failed 
by a vote of 11 to 17.
    Finally, Representative Mel Watt (D-NC) offered an 
amendment that would have stricken the bill's open-ended 
intervention provision. This amendment failed by a vote of 11 
to 17.

                               CONCLUSION

    Like the myriad anti-regulatory proposals this Committee 
has already considered, H.R. 1493 is another solution in search 
of a problem. Proponents have failed to present any evidence to 
support the claim that agencies ``collude'' with plaintiffs to 
enter consent decrees or settlement agreements. Nonetheless, 
under the guise of transparency, this legislation will pile on 
new procedural requirements for agencies and courts that will 
hamstring, or outright discourage, the use of consent decrees 
and settlements. As a result, well-funded third party interests 
will have more opportunities to delay the resolution of 
litigation intended to force agencies to meet their legal 
obligations and it will become much harder to resolve such 
litigation quickly and cost-effectively. The cumulative effect 
will be to derail a time-honored tool that has helped protect 
the American public from harms including dirty air and water, 
unsafe products, and contaminated food.
    There are already procedures in place that could address 
any purported collusion or lack of transparency. Procedures 
originally implemented during the Reagan administration and 
carried forward to this day, along with other existing legal 
mechanisms, have been more than adequate to deal with any such 
problem. Other than unsupported allegations, however, 
proponents of H.R. 1493 have failed to offer a convincing 
explanation as to why current law is insufficient in that 
regard. Instead, the bill employs ambiguous terms in key 
provisions that will actually generate additional litigation 
over their meaning, and could be used to undo critical civil 
rights protections. Finally, H.R. 1493 undermines existing 
civil procedure rules and undermines judicial discretion.
    For these reasons, we respectfully dissent and urge our 
colleagues to oppose this bill.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Luis V. Gutierrez.
                                   Karen Bass.
                                   Hakeem Jeffries.

                                 
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