[House Report 115-347]
[From the U.S. Government Publishing Office]


115th Congress }                                          { REPORT
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                          { 115-347

======================================================================
 
SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND SETTLEMENTS ACT OF 
                                  2017

                                _______
                                

October 16, 2017.--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. 469]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 469) 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..........................................     9
Committee Votes..................................................     9
Committee Oversight Findings.....................................    13
New Budget Authority and Tax Expenditures........................    13
Congressional Budget Office Cost Estimate........................    13
Duplication of Federal Programs..................................    15
Disclosure of Directed Rule Makings..............................    15
Performance Goals and Objectives.................................    15
Advisory on Earmarks.............................................    16
Section-by-Section Analysis......................................    16
Dissenting Views.................................................    19

                          Purpose and Summary

    H.R. 469, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2017,'' 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. GENERAL BACKGROUND

 A. Abuse of Regulatory Consent Decrees and Settlement Agreements and 
               the Rise of ``Sue-and-Settle'' Litigation

    Since the 1960s and 1970s, 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 a 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 Office 
of Information and Regulatory Affairs (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 relatively recent 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.

        B. Sue-and-Settle Trends Under the Obama Administration

    Under the Obama Administration, this phenomenon became 
particularly troubling. Not only did that administration 
generally increase the number of major rulemakings, but it also 
engaged in a flurry of sue-and-settle cases. According to a 
2013 study of Clean Air Act (CAA) and Clean Water Act (CWA) 
sue-and-settle cases, the U.S. Chamber of Commerce found that:
            The sue-and-settle process was increasingly 
        being used as a technique to shape agencies' regulatory 
        agendas, without input from the public or the regulated 
        community.
            The Obama administration had already 
        entered into more than 70 sue-and-settle agreements, 
        which had 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.
            The Sierra Club was responsible for 34 of 
        the 71 lawsuits, with WildEarth Guardians coming in 
        second with 20 suits.
            Six 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.
            In 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/SUEANDSETTLEREPORT-Final.pdf).
---------------------------------------------------------------------------
    To provide further examples of sue-and-settle trends, two 
agencies alone, EPA and the Department of the Interior, were 
able to institute the following major policy changes under sue-
and-settle rulemakings during the Obama Administration:
            the Utility Maximum Achievable Control 
        Technology rule on coal-fired electric utilities;
            the Cement Maximum Achievable Control 
        Technology rule on cement manufacturing;
            the Stream Buffer Zone rule on coal mining;
            the Cooling Water Intake Structure 
        regulations on electric utilities;
            revisions to the definition of solid waste 
        under the Resource Conservation and Recovery Act;
            regulation of greenhouse gases under the 
        Clean Air Act;
            numeric nutrient criteria for the State of 
        Florida under the Clean Water Act;
            federal implementation plans for regional 
        haze in North Dakota and Oklahoma under the Clean Air 
        Act;
            reconsideration of National Ambient Air 
        Quality Standards for ozone;
            New Source Performance, Maximum Achievable 
        Control Technology, and residual risk standards for oil 
        and gas drilling operations;
            first-ever greenhouse gas New Source 
        Performance Standards for coal- and oil-fired electric 
        utilities;
            first-ever greenhouse gas New Source 
        Performance Standards for oil refiners; and
            a commitment to move forward with 
        Endangered Species Act protections for over 250 
        candidate species.
    Notably, between January 2013 and January 2017, EPA entered 
into an additional 77 consent decrees under the Clean Air Act 
alone, compared with the 60 CAA agreements the agency made 
between 2009 and 2012.\3\ Collectively, during its eight years 
in charge of EPA, the Obama Administration welcomed far more 
Clean Air Act settlements (139) than previous administrations 
did over a 12-year period (93).\4\ Further, the later years of 
the Obama Administration saw an increase in the use of sue-and-
settle agreements to harness the federal government to assert 
federal control over state and local decision making, 
including, for example, through the agency's Chesapeake Bay 
Program and a surge in the imposition of Clean Air Act Federal 
Implementation Plans via sue-and-settle agreements.\5\
---------------------------------------------------------------------------
    \3\See U.S. Chamber of Commerce, ``Sue and Settle Updated: Damage 
Done 2013-2016'' at 3 (May 17, 2016) (available at https://
www.uschamber.com/sites/default/files/
u.s._chamber_sue_and_settle_2017_updated_report.pdf).
    \4\Id.
    \5\Testimony of William L. Kovacs, ``Hearing on Examining `Sue and 
Settle' Agreements: Part I,'' Committee on Oversight and Government 
Reform, U.S. House of Representatives at 4-9 (May 24, 2017) (available 
at https://oversight.house.gov/wp-content/uploads/2017/05/
Kovacs_Testimony_Sue-and-Settle_05242017.pdf).
---------------------------------------------------------------------------
    In short, the problem of sue-and-settle decrees, 
settlements and rulemakings, while not a problem that began 
during the Obama Administration, is clearly a problem that 
reached new highs during the Obama years. The costs of sue-and-
settle regulations under the Obama Administration, moreover, 
were extraordinarily high, as displayed by the following 
table:\6\
---------------------------------------------------------------------------
    \6\See id.
    
    
      C. 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:
           converted into a mandatory duty the 
        otherwise discretionary authority of an agency to 
        propose, promulgate, revise or amend regulations;
           committed 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;
           divested 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
           otherwise 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:
           interfered 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;
           committed the agency to expend funds that 
        Congress had not appropriated and that had not been 
        budgeted for the action in question; or
           provided 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.\7\
---------------------------------------------------------------------------
    \7\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.\8\
---------------------------------------------------------------------------
    \8\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).
---------------------------------------------------------------------------

  D. 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) undertook 
a review of the concerns raised by sue-and-settle practices.\9\ 
That 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:
---------------------------------------------------------------------------
    \9\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 all 
50 States, plus the District of Columbia and Commonwealth of Puerto 
Rico.
---------------------------------------------------------------------------
           ``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;''
           ``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).''
           ``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;''
           ``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;''
           ``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;''
           ``Believes that no settlement agreement 
        should extend any power to U.S. EPA that it does not 
        have in current law;''
           ``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;''
           ``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,
           ``Encourages EPA to respond in writing to 
        all public comments received on proposed citizen suit 
        settlement agreements, including consent decrees.''\10\
---------------------------------------------------------------------------
    \10\The full, official text of Resolution 13-2 is available at 
http://www.ecos.org/section/policy/resolution.
---------------------------------------------------------------------------

    E. Reforms Embodied in the Sunshine for Regulatory Decrees and 
                            Settlements Act

    Consistent with the record compiled by the Committee, the 
measures in H.R. 469 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 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.

                     II. PRIOR LEGISLATIVE HISTORY

    The Sunshine for Regulatory Decrees and Settlements Act was 
first introduced as H.R. 3862 in the 112th Congress. H.R. 3862 
was reported favorably by the Committee and passed the House on 
July 26, 2012, as title III of H.R. 4078, the ``Red Tape 
Reduction and Small Business Job Creation Act of 2012,'' with a 
bipartisan vote (245-172). The bill was reintroduced in the 
113th Congress as H.R. 1493 by Rep. Collins, who has sponsored 
the legislation in each succeeding Congress. H.R. 1493 was 
reported favorably by the Committee and passed the House twice 
with bipartisan support, first, on February 27, 2014, as title 
IV of H.R. 2804, the ``Achieving Less Excess in Regulation and 
Requiring Transparency Act of 2014'' (236-179), and, second, on 
September 18, 2014, as title IV of Subdivision B of Division 
III of H.R. 4 on September 18, 2014 (253-163). During the 114th 
Congress, the bill was reintroduced as H.R. 712, which the 
Committee similarly reported favorably and the House similarly 
passed on a bipartisan basis, on January 7, 2016 (244-173).

                                Hearings

    The Committee's Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law held one day of hearings on the 
Sunshine for Regulatory Decrees and Settlements Act in its 
embodiment as H.R. 712 on March 2, 2015. Witnesses at the 
hearing included: William L. Kovacs, Senior Vice President for 
Environment, Technology & Regulatory Affairs, the U.S. Chamber 
of Commerce; Patrick A. McLaughlin, Senior Research Fellow, 
Mercatus Center, George Mason University; Sam Batkins, Director 
of Regulatory Policy, American Action Forum; and, Amit Narang, 
Regulatory Policy Advocate, Public Citizen. The Subcommittee 
also held one day of hearings on the legislation during the 
113th Congress (H.R. 1493), and the Committee's Subcommittee on 
Courts, Commercial and Administrative Law held one day of 
hearings on the legislation during the 112th Congress (H.R. 
3862).\11\
---------------------------------------------------------------------------
    \11\See Sunshine for Regulatory Decrees and Settlements Act of 
2013: Hearing before the Subcomm. on Regulatory Reform, Commercial and 
Antitrust of the H. Comm. on the Judiciary, Serial No. 113-28, 113th 
Cong. (June 5, 2013) (``Sunshine Hearing II''); Federal Consent Decree 
Fairness Act, and the Sunshine for Regulatory Decrees and Settlements 
Act of 2012: Hearing before the Subcomm. on Courts, Commercial and 
Administrative Law of the H. Comm. on the Judiciary, Serial No. 112-83, 
112th Cong. (Feb. 3, 2012) (``Sunshine Hearing I'').
---------------------------------------------------------------------------
    During this term of Congress, the Committee held no 
hearings on H.R. 469. The Committee urges Members to consider 
the records of the aforementioned prior hearings and also to 
consider the record of the Committee on Oversight and 
Government Reform's related May 24 and July 25, 2017, hearings 
entitled ``Hearing on Examining `Sue and Settle' Agreements: 
Part I'' and ``Hearing on Examining `Sue and Settle' 
Agreements: Part II.''

                        Committee Consideration

    On July 12, 2017, the Committee met in open session and 
ordered the bill, H.R. 469, favorably reported, without 
amendment, by a roll call vote of 15 to 8, 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 roll call votes occurred during the Committee's 
consideration of H.R. 469.
    1. An Amendment, offered by Mr. Conyers to exempt from the 
requirements of H.R. 469 any consent decree or settlement 
agreement that ``prevents or is intended to prevent 
discrimination based on race, religion, national origin, or any 
other protected category.'' The amendment was defeated by a 
rollcall vote of 6 to 14.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................
Mr. Rutherford (FL)............................              X
Ms. Handel (GA)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................      6      14
------------------------------------------------------------------------


    2. An Amendment offered by Ms. Jackson Lee to exempt from 
the requirements of H.R. 469 any consent decree or settlement 
agreement that ``pertains 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 7 to 15.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................
Mr. Rutherford (FL)............................              X
Ms. Handel (GA)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................      7      15
------------------------------------------------------------------------


    3. An Amendment, offered by Mr. Cicilline to exempt from 
the requirements of H.R. 469 any consent decree or settlement 
agreement ``pertaining to a deadline established by Congress 
through the enactment of a Federal statute to address the 
misuse of prescription painkillers, including the Comprehensive 
Addition and Recovery Act of 2016.'' The amendment was defeated 
by a rollcall vote of 8 to 15.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................
Mr. Rutherford (FL)............................              X
Ms. Handel (GA)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................      8      15
------------------------------------------------------------------------


    4. Motion to report H.R. 469 Favorably to the House. 
Approved by a rollcall vote of 15 to 8.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................
Mr. Johnson (LA)...............................      X
Mr. Biggs (AZ).................................
Mr. Rutherford (FL)............................      X
Ms. Handel (GA)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................              X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................              X
Ms. Jayapal (WA)...............................              X
Mr. Schneider (IL).............................              X
                                                ------------------------
    Total......................................     15       8
------------------------------------------------------------------------

                      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 H.R. 469, 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 19, 2017.
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. 469, the Sunshine 
for Regulations and Regulatory Decrees and Settlements Act of 
2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran who can be reached at 226-2860.
            Sincerely,
                                                        Keith Hall.
Enclosure.
        cc: Honorable John Conyers, Jr.
            Ranking Member




     H.R. 469--Sunshine for Regulations and Regulatory Decrees and 
                        Settlements Act of 2017.


As ordered reported by the House Committee on the Judiciary on July 12, 
                                 2017.




    H.R. 469 would modify the process used to develop consent 
decrees and settlement agreements that require federal agencies 
to take specified regulatory actions. When citizens or 
organizations file a lawsuit against a government agency, both 
parties can negotiate a consent decree or settlement agreement 
as an alternative to a trial. In certain cases, the terms of 
the consent decree or settlement agreement may require an 
agency to undertake a regulatory action before a specified 
deadline. H.R. 469 would apply to such cases.
    Under the bill, federal agencies would be required to 
publish proposed consent decrees and settlement agreements in 
the Federal Register for public comment 60 days prior to filing 
with the court and to respond to all public comments. The bill 
also would prohibit a court from approving a consent decree or 
settlement agreement unless any such agreement incorporates 
adequate time and procedures for agencies to comply with 
statutes that govern rulemaking. The legislation would require 
the Attorney General (for cases litigated by the Department of 
Justice) or the head of the relevant federal agency to certify 
approval of certain types of settlement agreements and consent 
decrees to the court. Finally, H.R. 469 would require courts to 
more closely review consent decrees and settlement agreements 
when agencies seek to modify them.
    Based on an analysis of preliminary information provided by 
the Department of Justice, the Administrative Office of the 
U.S. Courts, and other agencies that are frequently involved in 
consent decrees--the Environmental Protection Agency, the 
Forest Service, and the Department of the Interior--CBO 
estimates that implementing H.R. 469 would cost $9 million over 
the 2018-2022 period; any such spending would be subject to the 
availability of appropriated funds. Most of those additional 
costs would be incurred to hire additional staff because 
litigation involving consent decrees and settlement agreements 
would probably take longer under the bill. Federal agencies and 
courts would face additional administrative requirements, 
including the requirement to make more information available to 
the public.
    Enacting H.R. 469 would affect direct spending; therefore, 
pay-as-you-go procedures apply. Under several statutes, 
plaintiffs who successfully challenge the federal government 
are entitled to repayment of attorneys' fees through the 
Department of the Treasury's Judgment Fund (a permanent 
appropriation available to pay claims against the government). 
The annual total of all such payments has averaged about $2 
million in recent years. By lengthening the process of 
developing consent decrees and settlement agreements, H.R. 469 
would lead to an increase in the amount of reimbursable 
attorneys' fees, thus increasing the amount of such payments 
from the Judgment Fund. Based on average hourly attorney fees 
and the number of covered civil actions in recent years, CBO 
estimates that the small additional workload would increase 
reimbursable attorney's costs and direct spending by about $1 
million over the 2018-2027 period. Enacting the bill would not 
affect revenues.
    CBO estimates that enacting H.R. 469 would not 
significantly increase net direct spending or on-budget 
deficits in any of the four consecutive 10-year periods 
beginning in 2028.
    H.R. 469 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 Janani 
Shankaran. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 469 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 finds that H.R. 469 contains no directed rule 
makings within the meaning of 5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, the Committee states that H.R. 469 
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, or 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. 469 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 
2017.''

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 that 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

    H.R. 469, the ``Sunshine for Regulations and Regulatory 
Decrees and Settlements Act of 2017,'' threatens to undermine 
the ability of federal regulators to protect the health and 
safety of Americans. This ill-conceived bill imposes numerous 
new procedural burdens on agencies and courts intended to 
dissuade them from using consent decrees and settlement 
agreements to resolve enforcement actions filed to address 
agency noncompliance with the law. Among these burdens are the 
requirements that agencies solicit public comments on such 
proposed consent decrees and settlement agreements and that 
they respond to each public comment before submitting them to 
the court. The bill would also require courts to presume, 
subject to rebuttal, that almost any private third party is 
entitled to intervene in litigation concerning a regulatory 
action and would require that such third party be permitted to 
participate in settlement negotiations between the litigants.
    Although proponents of this legislation argue that agencies 
and interest groups collude to ``sue and settle'' in order to 
avoid compliance with the rulemaking procedures set forth in 
the Administrative Procedure Act (APA),\1\ as well as other 
statutes, these unsubstantiated allegations ignore long-
established procedures that regulate agencies' use of consent 
decrees and settlement agreements. H.R. 469 will effectively 
delay and possibly derail efforts by agencies to implement 
congressionally-mandated public health and environmental 
safeguards. In addition, the bill will encourage costly and 
wasteful litigation, the expense of which will be borne by 
American taxpayers.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2017).
---------------------------------------------------------------------------
    In recognition of H.R. 469's many serious flaws, the 
Coalition for Sensible Safeguards--an alliance of more than 150 
consumer, labor, research, faith, and other public-interest 
groups--strongly opposes this legislation, stating that it 
``would create a gauntlet of duplicative, burdensome, and time-
consuming procedures that apply to settlements and decrees, 
once again slowing down the rulemaking process and preventing 
federal law from being effectively implemented.''\2\ A 
coalition of twenty-nine environmental groups--including the 
Center for Biological Diversity, Earthjustice, Environmental 
Defense Fund, and Sierra Club--similarly oppose the bill 
because it would ``undermine the enforcement of federal laws 
and impede the resolution of various consumer protection, anti-
discrimination, environmental, and public health cases before 
our federal courts.\3\ Last Congress, the Obama Administration 
issued a veto threat to substantively identical legislation, 
stating that it ``would impose additional, unnecessary 
procedural requirements that would seriously undermine the 
ability of agencies to execute their statutory mandates,'' 
while addressing a ``nonexistent problem that is already 
prohibited by Federal regulations: collusion between agencies, 
interest groups, and the courts to avoid compliance with the 
rulemaking procedures.''\4\
---------------------------------------------------------------------------
    \2\Letter to Rep. Bob Goodlatte (R-VA), Chair, and Rep. John 
Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary, from 
the Coalition for Sensible Safeguards (July 11, 2017) (on file with the 
H. Comm. on the Judiciary, Democratic Staff); Coalition for Sensible 
Safeguards, Members, http://sensiblesafeguards.org/about-us/members/ 
(last visited on Oct. 6, 2017).
    \3\Letter to Rep. Bob Goodlatte (R-VA), Chair, & Rep. John Conyers, 
Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary, from 29 public-
interest organizations (July 11, 2017) (on file with the H. Committee 
on the Judiciary, Democratic Staff).
    \4\Executive Office of the President, Office of Management and 
Budget, Statement of Administration Policy on H.R. 712, the ``Sunshine 
for Regulatory Decrees and Settlements Act of 2015'' (2016), http://
www.presidency.ucsb.edu/ws/?pid=111576. 
---------------------------------------------------------------------------
    For these reasons and others discussed below, we strongly 
oppose H.R. 469 and respectfully dissent.

                       DESCRIPTION AND BACKGROUND

    H.R. 469, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2017,'' 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, such as a 
rulemaking, often under a certain timeline. Proponents of the 
bill call this alleged phenomenon ``sue and settle.''
    A description of the bill's substantive provisions follows. 
Section 2 defines various terms. Of significance, section 2(1) 
imports the definitions of ``agency'' and ``agency action'' 
from the APA. As a result, H.R. 469 would apply to executive 
branch as well as independent agencies.\5\
---------------------------------------------------------------------------
    \5\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 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. 469'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. 469 would apply not 
just to consent decrees in covered civil actions, but to 
matters that are not ``covered civil actions.''
    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. 469 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 may 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 negotiation 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 series 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 an 
agency to 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 the agency to 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 
on 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, known as 
the Meese Memo, which Justice Department and other agency 
attorneys follow to ensure that consent decrees or settlement 
agreements are not used by them to circumvent the normal 
rulemaking process. These guidelines are already codified in 
the Code of Federal Regulations.\6\ Section 3(e)(1) provides 
that if a covered consent decree or settlement agreement 
contains certain terms as set forth in section 3(e)(2), 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) interfere with agency 
rulemaking procedures under the APA, another statute, or 
executive order; commit the agency to expend non-appropriated 
and non-budgeted funds for the regulatory action at issue; or 
commit 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.
---------------------------------------------------------------------------
    \6\28 C.F.R. Sec. Sec. 0.160-0.163 (2017).
---------------------------------------------------------------------------
    Section 3(f) imposes certain requirements on courts with 
respect to 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. Section 3(f)(2) prohibits a 
court from entering a consent decree unless an agency has 
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 included in the proposed settlement 
agreement.
    Section 3(g) requires agencies to submit annual reports to 
Congress that 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 filed on or after the bill's enactment 
date. It 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. 469

I. H.R. 469 Is a Solution in Search of a Problem

    Proponents of H.R. 469 contend this legislation is 
necessary to address alleged collusion among federal agencies, 
public-interest organizations, and other private-citizen 
plaintiffs that enter into consent decrees or settlements as a 
way of circumventing rulemaking procedures. Tellingly, however, 
these proponents offer debunked evidence to support their 
contention. For example, at the hearing on substantively 
similar legislation last Congress, William Kovacs, a Senior 
Vice President at the U.S. Chamber of Commerce, testified that 
as ``a result of the sue and settle process, the agency 
intentionally transforms itself from an independent actor that 
has discretion to perform its duties in a manner best serving 
the public interest, into an actor subservient to the binding 
terms of settlement agreements, including using its 
congressionally-appropriated funds to achieve the demands of 
specific outside groups.''\7\ In support of his statement, he 
cited a 2013 U.S. Chamber of Commerce study.\8\
---------------------------------------------------------------------------
    \7\The Responsibly And Professionally Invigorating Development Act 
of 2015 (RAPID Act), the Sunshine for Regulatory Decrees and 
Settlements Act of 2015, and the Searching for and Cutting Regulations 
that are Unnecessarily Burdensome Act of 2015 (SCRUB Act): Hearing on 
H.R. 348, H.R. 712 & H.R. 1155 Before the Subcomm. on Regulatory 
Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 
114th Cong. 15-16 (2015), (statement of William Kovacs, Senior Vice 
President at the U.S. Chamber of Commerce) [hereinafter 2015 Hearing]; 
The Sunshine for Regulatory Decrees and Settlements Act of 2013: 
Hearing on H.R. 1493 Before the Subcomm. on Regulatory Reform, 
Commercial and Antitrust Law of the H. Comm. on the Judiciary, 113th 
Cong. 86 (2013) [hereinafter 2013 Hearing]; The Federal Consent Decree 
Fairness Act and the Sunshine for Regulatory Decrees and Settlements 
Act: Hearing 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) (``[C]ertain groups 
increasingly are employing a `sue and settle' approach to interactions 
with the government on regulatory issues.'').
    \8\U.S. Chamber of Commerce, Sue and Settle: Regulating Behind 
Closed Doors (May 2013), https://www.uschamber.com/sites/default/files/
documents/files/SUEANDSETTLEREPORT-Final.pdf.
---------------------------------------------------------------------------
    But the independent and non-partisan Government 
Accountability Office (GAO) has subsequently issued a report in 
December 2014 that made several findings that refute the claims 
of H.R. 469's supporters. The report, which focused on lawsuits 
involving environmental litigation, found that ``the effect of 
settlements in deadline suits on EPA's rulemaking priorities is 
limited.''\9\ The GAO referred to so-called ``sue and settle'' 
litigation as ``deadline suits'' because they involve an 
agency's non-performance of a nondiscretionary act, which is 
required by law, by a deadline also imposed by law. The GAO 
noted that certain laws allow for any party to compel the 
Environmental Protection Agency (EPA) through lawsuits to 
``take statutorily required actions'' within a designated time 
frame if it has not done so already.\10\ As the GAO also 
observed, deadline suits typically involve a person suing the 
EPA because it ``missed a recurring deadline to review and 
revise'' an existing rule.\11\ And, as Robert Weissman, the 
President of Public Citizen, explained during a hearing in June 
2017, these lawsuits are some of the ``simplest to understand'' 
because they only allege that agencies ``broke the law by 
failing to commit a congressionally mandated action by a date 
established in statute.''\12\ Mr. Weissman further noted that 
enforcing these laws through deadline litigation is important 
to ``holding federal agencies accountable when they ignore 
Congress.''\13\ Furthermore, as the GAO found, it is ``very 
unlikely that the government will win'' these lawsuits.\14\
---------------------------------------------------------------------------
    \9\U.S. Gov't Accountability Office, GAO-15-34, Environmental 
Litigation: Impact of Deadline Suits on EPA's Rulemaking is Limited 
(2014), http://www.gao.gov/assets/670/667533.pdf.
    \10\Id. at 3.
    \11\Id.
    \12\A Time to Reform: Oversight of the Activities of the Justice 
Department's Civil, Tax and Environment and Natural Resources Divisions 
and the U.S.: Hearing Before the Subcomm. on Regulatory Reform, 
Commercial and Antitrust Law of the H. Comm. on the Judiciary, 115th 
Cong. 17 (2017), http://docs.house.gov/meetings/JU/JU05/20170608/
106076/HHRG-115-JU05-Wstate-WeissmanR-20170608.pdf.
    \13\Id.
    \14\U.S. Gov't Accountability Office, GAO-15-34, Environmental 
Litigation: Impact of Deadline Suits on EPA's Rulemaking is Limited 7 
(2014), http://www.gao.gov/assets/670/667533.pdf.
---------------------------------------------------------------------------
    The GAO has also determined that there is little evidence 
that deadline suits determine the substantive outcome of agency 
action, as alleged by proponents of H.R. 469.\15\ According to 
the GAO, ``EPA officials stated that they have not, and would 
not agree to, settlements in a deadline suit that finalize the 
substantive outcome of the rulemaking or declare the substance 
of the final rule.''\16\ The GAO found little evidence that 
deadline suits determine the substantive outcome of agency 
action, as alleged by proponents of H.R. 469.\17\ A subsequent 
GAO report issued in February 2017 bolsters this conclusion. In 
a study of 141 lawsuits against the U.S. Fish and Wildlife 
Service (FWS) and National Marine Fisheries Service (NMFS), GAO 
found no evidence that either agency circumvented the 
rulemaking system through deadline litigation:

        The majority of deadline suits filed during fiscal 
        years 2005 through 2015 were resolved through 
        negotiated settlement agreements that established 
        schedules for the agencies to complete the actions 
        involved in the suits. Agency officials said that most 
        deadline suits are resolved through settlement because 
        it is undisputed that a statutory deadline was missed. 
        Other than setting schedules for completing Section 4 
        actions, the settlement agreements did not affect the 
        substantive basis or procedural rule-making 
        requirements the Services were to follow in completing 
        the actions, such as providing opportunities for public 
        notice and comment on proposed listing rules he U.S. 
        Fish and Wildlife Service (FWS) and National Marine 
        Fisheries Service (NMFS).\18\
---------------------------------------------------------------------------
    \15\2015 Hearing, supra note 7, at 16 (statement of William Kovacs, 
Senior Vice President, Chamber of Commerce) (``These agreements often 
go beyond simply enforcing statutory deadlines and themselves become 
the legal authority for expansive regulatory action with no meaningful 
participation by affected parties or the public.'').
    \16\U.S. Gov't Accountability Office, GAO-15-34, Environmental 
Litigation: Impact of Deadline Suits on EPA's Rulemaking is limited 8 
(2014), http://www.gao.gov/assets/670/667533.pdf.
    \17\2015 Hearing, supra note 7, at 16.
    \18\U.S. Gov't Accountability Office, GAO-17-304, Environmental 
Litigation: Information on Endangered Species Act Deadline Suits 
(2017), https://www.gao.gov/assets/690/683058.pdf.

    These findings confirm that there is little support for the 
proposition that federal agencies engage in ``back-room deals'' 
with pro-regulatory groups to circumvent federal laws or 
substantively bind the agency in a subsequent rulemaking.\19\ 
In fact, as Policy Advocate for Public Citizen Amit Narang 
clarified during the hearing on substantively identical 
legislation last Congress, ``All of the settlements scrutinized 
by GAO pursuant to the EPA's remaking authority under the Clean 
Air Act went through the public notice and comment process 
allowing all members of the public an opportunity to comment on 
the rule before it is finalized.''\20\
---------------------------------------------------------------------------
    \19\Id. at 8, 12.
    \20\2015 Hearing, supra note 7, at 6-7.
---------------------------------------------------------------------------
    John Walke, Clean Air Director and Senior Counsel with the 
Natural Resources Defense Council, likewise identified serious 
flaws with the Chamber's study. During a hearing before the 
Judiciary Committee's Subcommittee on Courts, Commercial and 
Administrative Law in the 113th Congress on substantively 
similar legislation, Mr. Walke testified that the Chamber's 
methodology relied on ``Internet searches identifying all cases 
in which the EPA and an environmental group entered into a 
consent decree or settlement agreement between 2009 and 
2012.''\21\ In doing so, Mr. Walke explained that the report 
ignored EPA settlements with industry parties or conservative 
groups and did not examine any EPA settlements under the Bush 
administration, during which the EPA also entered into 
settlements and consent decrees, noting:
---------------------------------------------------------------------------
    \21\2013 Hearing, supra note 7, 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.\22\
---------------------------------------------------------------------------
    \22\Id. at 116.

Mr. Walke also 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.\23\ It is also critical to note that, 
while proponents of H.R. 469--including the Chamber of 
Commerce--have focused their arguments in favor of the 
legislation on consent decrees and settlements involving the 
EPA, the bill would apply to consent decrees and settlement 
agreements involving all federal agencies, not just the EPA.
---------------------------------------------------------------------------
    \23\Id.
---------------------------------------------------------------------------
    Likewise, John Cruden, a former senior career official with 
the Justice Department's Environment and Natural Resources 
Division (ENRD) for more than two decades during two Republican 
and two Democratic Administrations, testified that the ``sue 
and settle'' allegations were unfounded. In fact, he stated 
that he was ``not aware of any instance of a settlement'' that 
could remotely be described as ``collusive'' that occurred 
during his long tenure as a senior ENRD official and that the 
Justice Department ``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.''\24\ He also emphasized that agencies 
enter settlements only when they have failed to meet mandatory 
rulemaking obligations:
---------------------------------------------------------------------------
    \24\2012 Hearing, supra note 7, at 106-107.

          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.\25\
---------------------------------------------------------------------------
    \25\Id. at 66, 106.

In addition, he explained that a proposed rule emerging from a 
settlement would provide the same notice-and-comment 
opportunities as any other rulemaking, and the final rule still 
would be subject to challenge under the APA. Thus, this process 
does not avoid public comment, and already allows interested 
parties their full range of substantive and procedural 
rights.\26\
---------------------------------------------------------------------------
    \26\Id.
---------------------------------------------------------------------------
    Mr. Walke also noted in his Subcommittee testimony that the 
Chamber report ultimately identifies as its culprit the 
citizen-suits that Congress has authorized under various 
environmental statutes.\27\ The entire ``sue and settle'' 
allegation that undergirds H.R. 469, therefore, is really aimed 
at congressionally-authorized provisions that permit citizens 
to sue agencies to enforce statutory requirements. If these 
citizen-suit provisions are the true cause for concern, then it 
is for H.R. 469's proponents to push for their repeal by 
Congress, rather than seek to disrupt the use of longstanding 
and uncontroversial mechanisms for resolving litigation.
---------------------------------------------------------------------------
    \27\2013 Hearing, supra note 7, at 154.
---------------------------------------------------------------------------
    Other observers 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.''\28\ 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.''\29\
---------------------------------------------------------------------------
    \28\John McCardle, House Republicans Accuse EPA, Enviros of 
Collusion, N.Y. Times (July 15, 2011), http://www.nytimes.com/gwire/
2011/07/15/15greenwire-house-republicans-accuse-epa-enviros-of-collus-
69925.html.
    \29\Id.
---------------------------------------------------------------------------
    In the absence of any credible evidence that federal 
agencies collude with plaintiffs to circumvent proper 
rulemaking procedures by use of consent decrees and settlement 
agreements, H.R. 469 simply addresses a non-existent problem.

II. By Undermining Enforcement of Mandatory Rulemaking Duties, H.R. 469 
        Threatens Public Health and Safety

    H.R. 469, by undermining the ability of agencies to enforce 
statutory mandates, jeopardizes public health and safety. As 
noted, most consent decrees and settlement agreements arise 
from civil actions where a citizen lawsuit has been filed 
against an agency for its failure to meet a statutory 
rulemaking deadline or other rulemaking duty. Congress imposes 
these mandatory duties on agencies--many of which concern 
public health and safety--so that they will be executed. In 
fact, Congress authorizes citizen-lawsuit provisions in these 
statutes to ensure agency compliance with these statutory 
mandates. Therefore, when agencies fail to meet such mandatory 
duties, the harm that they were supposed to respond to remains 
unaddressed.
    Given the fact that many of these statutory mandates 
concern public health and safety, H.R. 469, by making it harder 
for citizens to compel agencies to meet their duties, puts 
public health and safety at risk. Health and safety concerns 
are not a mere abstraction. Regarding the issue of workplace 
safety alone, the Bureau of Labor Statistics reported that in 
2013, ``Slightly more than 3.0 million nonfatal workplace 
injuries and illnesses were reported by private industry 
employers.''\30\ 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).''\31\ To 
the degree that H.R. 469 makes it harder for citizens to force 
agencies to address these kinds of concerns, it unnecessarily 
endangers the American people.
---------------------------------------------------------------------------
    \30\U.S. Dep't of Labor Bureau of Labor Statistics, Employer-
Reported Workplace Injury and Illness Summary (Dec. 4, 2014), http://
www.bls.gov/news.release/osh.nr0.htm.
    \31\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).
---------------------------------------------------------------------------
    In response to these concerns presented by the bill, 
several Democratic Members offered amendments exempting certain 
categories of rules from H.R. 469. For example, 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.\32\ This amendment failed by a vote of 7 
to 15.
---------------------------------------------------------------------------
    \32\Tr. of Markup of H.R. 469, ``The Sunshine for Regulations and 
Regulatory Decrees and Settlements Act of 2017,'' by the H. Comm. on 
the Judiciary, 115th Cong. 73 (July 12, 2017) [hereinafter H.R. 469 
Markup Tr.].
---------------------------------------------------------------------------
    Subcommittee Ranking Member David N. Cicilline (D-RI) 
offered an amendment that would have exempted from the bill any 
consent decree or settlement agreement concerning a deadline 
established by the Comprehensive Addiction and Recovery Act of 
2016 (CARA)\33\ to address the misuse of prescription pain 
killers.\34\ Recognizing that many laws passed by Congress 
include deadlines for agency action, Representative Cicilline 
stated in support of his amendment that CARA requires certain 
regulatory actions within 18 months of the bill's enactment, 
including forming best practices for the research and treatment 
of opioid use disorder. Should the Department of Health and 
Human Services not perform this mandatory duty by the statute's 
deadline, any party with standing could enforce the 
requirement. Nevertheless, as Representative Cicilline noted, 
H.R. 469 ``would paralyze this process by requiring notice and 
comment prior to the settlement of deadline suits and allowing 
practically unlimited intervention in these cases.''\35\ This 
amendment failed by a vote of 8 to 15.
---------------------------------------------------------------------------
    \33\Pub. L. No. 114-198 (2016).
    \34\H.R. 469 Markup Tr., supra note 32, at 93.
    \35\Id. at 94.
---------------------------------------------------------------------------

   III. H.R. 469 Is Unnecessary in Light of the Justice Department's 
           ``Meese Memo'' and Other Existing Legal Mechanisms

    H.R. 469's proponents offer no evidence substantiating the 
existence of the so-called sue-and-settle problem. The likely 
reason is that the Meese Memo, codified in the Code of Federal 
Regulations,\36\ has for more than 30 years specified a 
detailed process intended to address the potential abuse of 
consent decrees and settlement agreements used by federal 
agencies. In 1986, then-United States Attorney General Edwin 
Meese issued a set of guidelines for the Justice Department and 
other government attorneys in entering into consent decrees and 
settlement agreements in response to the following concerns:
---------------------------------------------------------------------------
    \36\28 C.F.R. Sec. Sec. 0.160-0.163 (2017).

          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.\37\
---------------------------------------------------------------------------
    \37\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), 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. It directed departments and agencies to 
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.''\38\ The policy 
outlines similar restrictions on settlement agreements.\39\ 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.\40\ 
The Meese Memo ultimately was codified into the Code of Federal 
Regulations.\41\
---------------------------------------------------------------------------
    \38\Id.
    \39\Id.
    \40\Id.
    \41\28 C.F.R. Sec. Sec. 0.160-0.163 (2017).
---------------------------------------------------------------------------
    H.R. 469's proponents also fail to provide any proof that 
the Justice Department 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.''\42\ Moreover, the Majority's witnesses at a hearing 
on H.R. 469's predecessor in the 112th Congress specifically 
praised the Meese Memo and offered no argument as to why it was 
insufficient to address the alleged ``sue and settle'' 
problem.\43\
---------------------------------------------------------------------------
    \42\2012 Hearing, supra note 7, at 111.
    \43\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.'').
---------------------------------------------------------------------------
    A recent report by the GAO confirms that agencies continue 
to follow the Meese Memo.\44\ In February 2017, GAO determined 
that Department officials are guided by the Meese Memo when 
negotiating settlement terms and may only commit agencies to 
perform actions that are mandated by statute:
---------------------------------------------------------------------------
    \44\U.S. Gov't Accountability Office, GAO-17304, Environmental 
Litigation: Information on Endangered Species Act Deadline Suits 
(2017), https://www.gao.gov/assets/690/683058.pdf.

          According to officials from DOJ and the Services, the 
        agencies coordinate in deciding how to respond to a 
        deadline suit, including whether or not to negotiate a 
        settlement with the plaintiff or proceed with 
        litigation. In reaching its decision, DOJ considers 
        several factors, including whether there may be a legal 
        defense to the suit--such as providing information 
        establishing that the agency took action on the finding 
        at issue or that the plaintiff lacked standing--and the 
        likelihood that the government could obtain a favorable 
        outcome. The officials said that most deadline suits 
        are resolved through a negotiated settlement agreement 
        because in the majority of them, it is undisputed that 
        a statutory deadline was missed. . . . DOJ officials 
        said they are guided by a 1986 DOJ memorandum--referred 
        to as the Meese Memorandum--in negotiating settlement 
        terms. Accordingly, officials from DOJ and the Services 
        stated that any agreement to settle a deadline suit 
        would only include a commitment to perform a mandatory 
        Section 4 action by an agreed-upon schedule and would 
        not otherwise predetermine or prescribe a specific 
        substantive outcome for the actions to be completed by 
        the Services. Similarly, for those suits resolved by a 
        court order, DOJ officials said they present what they 
        believe is a reasonable timeframe for the court to 
        consider in establishing a schedule for the Services to 
        complete the action.\45\
---------------------------------------------------------------------------
    \45\Id. at 20-21.

    In addition to the Meese Memo, there are other mechanisms 
that address the purported concerns of H.R. 469's proponents. 
For example, parties whose interests may be affected by a 
consent decree or settlement agreement may move to intervene in 
the case pursuant to Federal Rule of Civil Procedure 24, under 
which the moving party bears the burden of demonstrating that 
the parties to the case do not adequately represent the 
movant's interest.\46\ Similarly, any rulemaking that is 
required as a result of a consent decree or settlement 
agreement would still be subject to the APA's notice-and-
comment procedures, whereby affected parties who are not 
parties to the consent decree or settlement agreement have the 
opportunity to weigh in on any negative impacts of a proposed 
rule.\47\
---------------------------------------------------------------------------
    \46\Fed. R. Civ. P. 24(a)(2).
    \47\5 U.S.C. Sec. 553 (2017).
---------------------------------------------------------------------------
    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 of the APA 
and other statutes, the Meese Memo effectively prevents the 
government from doing so thereby making H.R. 469 unnecessary.

IV. H.R. 469 Opens the Door to Dilatory Tactics by Well-Financed 
        Opponents of Agency Action

    In addition to being unnecessary, H.R. 469 threatens to 
impose significant financial costs on taxpayers. Various 
provisions of H.R. 469 would give opponents of regulations 
opportunities to effectively stifle rulemaking by allowing them 
to slowdown one of the processes by which agencies agree to 
abide by their congressionally-assigned duty to regulate. As 
Minority witnesses Messrs. Narang, Walke, and Cruden testified, 
agencies enter into consent decrees and settlement agreements 
when they have a mandatory duty to act, including the 
requirement to promulgate a new rule.\48\ By opening 
opportunities for industry to slow down this process, H.R. 469 
effectively makes it more expensive for agencies to do what 
Congress has mandated it to do.
---------------------------------------------------------------------------
    \48\2015 Hearing, supra note 15; 2013 Hearing, supra note 7, at 
117-118; 2012 Hearing, supra note 7, 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.\49\ 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.\50\ 
Effectively, this shift in the burden of proof on the issue of 
the representation of third-party interests will 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.
---------------------------------------------------------------------------
    \49\H.R. 469, 115th Cong. Sec. 3(b)(1) (2017).
    \50\Fed. R. Civ. P. 24.
---------------------------------------------------------------------------
    Hypothetically, under H.R. 469, 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, 
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 construe section 3(b)(1) broadly, 
this provision could allow virtually anyone to intervene in a 
covered civil action.
    Section 3(c) of H.R. 469 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.\51\ Such discussions must include the 
plaintiff, defendant agency, and any third party 
intervenors.\52\ 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.
---------------------------------------------------------------------------
    \51\H.R. 469, 115th Cong., Sec. 3(c) (2017).
    \52\Id.
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    H.R. 469 provides other opportunities for industry to 
engage in dilatory tactics by virtue of 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.\53\ The agency must then respond to 
every comment pursuant to section 3(d)(2)(B).\54\ Under these 
provisions, industry interests could potentially overwhelm an 
agency by flooding it with comments in an effort to stall 
resolution of the underlying dispute, which, as noted, usually 
concern enforcement of rulemaking deadlines.
---------------------------------------------------------------------------
    \53\Id. at Sec. 3(d)(1), 3(d)(2)(A) (2017).
    \54\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 that 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.\55\ This provision 
would further allow industry and other regulatory opponents to 
delay resolution of the underlying dispute between the 
plaintiff and the defendant agency.
---------------------------------------------------------------------------
    \55\Id. at Sec. 3(f)(1).
---------------------------------------------------------------------------

V. H.R. 469 Uses Ambiguous Language in Many Key Provisions That Will 
        Create Confusion, Litigation, and Delay in Resolving Disputes

    Many of H.R. 469'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 withholding or 
unreasonably delaying agency action relating to a regulatory 
action.''\56\ 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.
---------------------------------------------------------------------------
    \56\Id. at Sec. 2(2).
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    Additionally, section 2(2) refers to ``private persons'' 
whose ``rights'' are affected by the regulatory action, but the 
bill fails to define what ``private parties'' or ``rights'' 
means.\57\ 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 
text in H.R. 469, confusion and a lack of clarity over the 
meaning of these terms will lead to litigation. H.R. 469'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,'' is thoroughly 
ambiguous.\58\ The requirement, outlined in section 3(d)(4), 
has no definition or clarification of what ``affect the 
discharge of those duties'' would mean.
---------------------------------------------------------------------------
    \57\Id.
    \58\Id. at Sec. 3(d)(4).
---------------------------------------------------------------------------
    H.R. 469 also imposes several new procedural requirements 
on agencies and courts that are designed to slowdown 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 to 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 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. 469 will have the opposite result.

VI. The Cumulative Effect of H.R. 469'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. 469'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 (CBO) noted 
that a previous version of H.R. 469 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, including new requirements to report more 
information to the public.''\59\
---------------------------------------------------------------------------
    \59\Congressional Budget Office, Cost Estimate for H.R. 712, The 
Sunshine for Regulatory Decrees and Settlements Act of 2015 (2015), 
https://www.cbo.gov/sites/default/files/hr7120.pdf.
---------------------------------------------------------------------------
    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 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.\60\ H.R. 469 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:
---------------------------------------------------------------------------
    \60\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.'').

          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.\61\
---------------------------------------------------------------------------
    \61\2012 Hearing, supra note 7, at 108.

    By making consent decrees and settlement agreements more 
difficult and costly to enter into, H.R. 469 will generate 
increased litigation costs and expensive judgments, which will 
ultimately be passed along to the taxpayer.

VII. H.R. 469 Subverts the Federal Rules of Civil Procedure and 
        Judicial Discretion

    H.R. 469 overrides the Federal Rules of Civil Procedure, 
the courts' power to manage litigation in several respects, and 
their authority to consider equities in their decision making. 
First, it undermines Federal Rule of Civil Procedure 24, which 
sets forth the process for determining when a third party may 
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. H.R. 469 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. 469 tampers with the process for modifying 
consent decrees under Federal Rule of Civil Procedure 60(b)(5). 
Under that Rule, a court may 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.''\62\ 
Section 4 of H.R. 469 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.
---------------------------------------------------------------------------
    \62\Fed. R. Civ. P. 60(b)(5).
---------------------------------------------------------------------------
    Beyond the specific changes that H.R. 469 makes to the 
civil procedure rules at issue, the bill hamstrings judicial 
discretion in matters concerning the management of litigation 
before a court. In addition to questions about intervention or 
modification of consent decrees, H.R. 469 repeatedly requires 
courts to make certain presumptions (subject to rebuttal) on 
other 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. 469 seeks to dictate 
courtroom management issues that have traditionally been left 
to judges to decide.

VIII. The 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 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 Federal Rule 
of Civil Procedure 24 from the party seeking to intervene in 
the case to the parties themselves.\63\
---------------------------------------------------------------------------
    \63\Fed. R. Civ. P. 24. 64H.R. 469 Markup Tr., supra note 32, at 
50.
---------------------------------------------------------------------------
    In response to this concern, Ranking Member John Conyers, 
Jr. (D-MI) 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.\64\ The amendment failed along a 
party-line vote of 6-14.
---------------------------------------------------------------------------
    \64\H.R. 469 Markup Tr., supra note 32, at 50.
---------------------------------------------------------------------------

                               CONCLUSION

    As with all the anti-regulatory proposals this Committee 
has considered in this Congress, H.R. 469 is a solution in 
search of a problem. Notwithstanding a lack of credible 
evidence that agencies ``collude'' with plaintiffs to enter 
consent decrees or settlement agreements, this legislation will 
impose new burdensome procedural requirements on agencies and 
courts. As a result, well-funded third-party interests will 
have further opportunities to delay the resolution of 
litigation intended to force agencies to meet their legal 
obligations. And, the bill will make it harder to resolve such 
litigation quickly and cost-effectively. The cumulative effect 
of H.R. 469 will be to derail a time-honored tool that has 
helped protect the health and safety of Americans from a vast 
array of life-threatening harms, including polluted air and 
water, unsafe products, contaminated food, and adulterated 
medicines.
    There are already procedures in place that address any 
purported collusion or lack of transparency. These procedures, 
originally implemented during the Reagan Administration, 
effectively deal with any such problem. Other than unsupported 
allegations, however, proponents of H.R. 469 offer no 
explanation as to why current law is insufficient. Instead, the 
bill employs ambiguous terms in key provisions that will 
actually generate additional litigation over their meaning. 
Finally, H.R. 469 undermines existing civil procedure rules and 
undermines judicial discretion.
    For these reasons, we respectfully dissent and urge our 
colleagues to oppose H.R. 469.
                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.
                                   Mr. Swalwell.
                                   Mr. Lieu.
                                   Ms. Jayapal.
                                   Mr. Raskin.

                                  [all]