[House Report 118-443]
[From the U.S. Government Publishing Office]


118th Congress }                                             { Report
                        HOUSE OF REPRESENTATIVES
 2d Session    }                                             { 118-443

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



 
                  SUNSHINE FOR REGULATORY DECREES AND  
                        SETTLEMENTS ACT OF 2023

                                _______
                                

 April 5, 2024.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

            Mr. Jordan, from the Committee on the Judiciary,  
                        submitted the following 
                        
                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3446]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3446) 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, 
reports favorably thereon with an amendment and recommends that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     5
Background and Need for the Legislation..........................     5
Hearings.........................................................     6
Committee Consideration..........................................     7
Committee Votes..................................................     7
Committee Oversight Findings.....................................    12
New Budget Authority and Tax Expenditures........................    12
Congressional Budget Office Cost Estimate........................    12
Committee Estimate of Budgetary Effects..........................    13
Duplication of Federal Programs..................................    13
Performance Goals and Objectives.................................    13
Advisory on Earmarks.............................................    14
Federal Mandates Statement.......................................    14
Advisory Committee Statement.....................................    14
Applicability to Legislative Branch..............................    14
Section-by-Section Analysis......................................    14
Dissenting Views.................................................    16

    The amendment is as follows:
  Strike all that follows after the enacting clause, and insert 
the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2023''.

SEC. 2. DEFINITIONS.

  In this Act--
          (1) the terms ``agency'' and ``agency action'' have the 
        meanings given those terms under section 551 of title 5, United 
        States Code;
          (2) the term ``covered civil action'' means a civil action--
                  (A) seeking to compel agency action;
                  (B) alleging that an agency is unlawfully withholding 
                or unreasonably delaying an agency action relating to a 
                regulatory action that would affect the rights of--
                          (i) private persons other than the person 
                        bringing the action; or
                          (ii) a State, local, or tribal government; 
                        and
                  (C) brought under--
                          (i) chapter 7 of title 5, United States Code; 
                        or
                          (ii) any other statute authorizing such an 
                        action;
          (3) the term ``covered consent decree'' means--
                  (A) a consent decree entered into in a covered civil 
                action; and
                  (B) any other consent decree that requires agency 
                action relating to a regulatory action that affects the 
                rights of--
                          (i) private persons other than the person 
                        bringing the action; or
                          (ii) a State, local, or tribal government;
          (4) the term ``covered consent decree or settlement 
        agreement'' means a covered consent decree and a covered 
        settlement agreement; and
          (5) the term ``covered settlement agreement'' means--
                  (A) a settlement agreement entered into in a covered 
                civil action; and
                  (B) any other settlement agreement that requires 
                agency action relating to a regulatory action that 
                affects the rights of--
                          (i) private persons other than the person 
                        bringing the action; or
                          (ii) a State, local, or tribal government.

SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM.

  (a) Pleadings and Preliminary Matters.--
          (1) In general.--In any covered civil action, the agency 
        against which the covered civil action is brought shall publish 
        the notice of intent to sue and the complaint in a readily 
        accessible manner, including by making the notice of intent to 
        sue and the complaint available online not later than 15 days 
        after receiving service of the notice of intent to sue or 
        complaint, respectively.
          (2) Entry of a covered consent decree or settlement 
        agreement.--A party may not make a motion for entry of a 
        covered consent decree or to dismiss a civil action pursuant to 
        a covered settlement agreement until after the end of 
        proceedings in accordance with paragraph (1) and subparagraphs 
        (A) and (B) of paragraph (2) of subsection (d) or subsection 
        (d)(3)(A), whichever is later.
  (b) Intervention.--
          (1) Rebuttable presumption.--In considering a motion to 
        intervene in a covered civil action or a civil action in which 
        a covered consent decree or settlement agreement has been 
        proposed that is filed by a person who alleges that the agency 
        action in dispute would affect the person, the court shall 
        presume, subject to rebuttal, that the interests of the person 
        would not be represented adequately by the existing parties to 
        the action.
          (2) State, local, and tribal governments.--In considering a 
        motion to intervene in a covered civil action or a civil action 
        in which a covered consent decree or settlement agreement has 
        been proposed that is filed by a State, local, or tribal 
        government, the court shall take due account of whether the 
        movant--
                  (A) administers jointly with an agency that is a 
                defendant in the action the statutory provisions that 
                give rise to the regulatory action to which the action 
                relates; or
                  (B) administers an authority under State, local, or 
                tribal law that would be preempted by the regulatory 
                action to which the action relates.
  (c) Settlement Negotiations.--Efforts to settle a covered civil 
action or otherwise reach an agreement on a covered consent decree or 
settlement agreement shall--
          (1) be conducted pursuant to the mediation or alternative 
        dispute resolution program of the court or by a district judge 
        other than the presiding judge, magistrate judge, or special 
        master, as determined appropriate by the presiding judge; and
          (2) include any party that intervenes in the action.
  (d) Publication of and Comment on Covered Consent Decrees or 
Settlement Agreements.--
          (1) In general.--Not later than 60 days before the date on 
        which a covered consent decree or settlement agreement is filed 
        with a court, the agency seeking to enter the covered consent 
        decree or settlement agreement shall publish in the Federal 
        Register and online--
                  (A) the proposed covered consent decree or settlement 
                agreement; and
                  (B) a statement providing--
                          (i) the statutory basis for the covered 
                        consent decree or settlement agreement; and
                          (ii) a description of the terms of the 
                        covered consent decree or settlement agreement, 
                        including whether it provides for the award of 
                        attorneys' fees or costs and, if so, the basis 
                        for including the award.
          (2) Public comment.--
                  (A) In general.--An agency seeking to enter a covered 
                consent decree or settlement agreement shall accept 
                public comment during the period described in paragraph 
                (1) on any issue relating to the matters alleged in the 
                complaint in the applicable civil action or addressed 
                or affected by the proposed covered consent decree or 
                settlement agreement.
                  (B) Response to comments.--An agency shall respond to 
                any comment received under subparagraph (A).
                  (C) Submissions to court.--When moving that the court 
                enter a proposed covered consent decree or settlement 
                agreement or for dismissal pursuant to a proposed 
                covered consent decree or settlement agreement, an 
                agency shall--
                          (i) inform the court of the statutory basis 
                        for the proposed covered consent decree or 
                        settlement agreement and its terms;
                          (ii) submit to the court a summary of the 
                        comments received under subparagraph (A) and 
                        the response of the agency to the comments;
                          (iii) submit to the court a certified index 
                        of the administrative record of the notice and 
                        comment proceeding; and
                          (iv) make the administrative record described 
                        in clause (iii) fully accessible to the court.
                  (D) Inclusion in record.--The court shall include in 
                the court record for a civil action the certified index 
                of the administrative record submitted by an agency 
                under subparagraph (C)(iii) and any documents listed in 
                the index which any party or amicus curiae appearing 
                before the court in the action submits to the court.
          (3) Public hearings permitted.--
                  (A) In general.--After providing notice in the 
                Federal Register and online, an agency may hold a 
                public hearing regarding whether to enter into a 
                proposed covered consent decree or settlement 
                agreement.
                  (B) Record.--If an agency holds a public hearing 
                under subparagraph (A)--
                          (i) the agency shall--
                                  (I) submit to the court a summary of 
                                the proceedings;
                                  (II) submit to the court a certified 
                                index of the hearing record; and
                                  (III) provide access to the hearing 
                                record to the court; and
                          (ii) the full hearing record shall be 
                        included in the court record.
          (4) Mandatory deadlines.--If a proposed covered consent 
        decree or settlement agreement requires an agency action by a 
        date certain, the agency shall, when moving for entry of the 
        covered consent decree or settlement agreement or dismissal 
        based on the covered consent decree or settlement agreement, 
        inform the court of--
                  (A) any required regulatory action the agency has not 
                taken that the covered consent decree or settlement 
                agreement does not address;
                  (B) how the covered consent decree or settlement 
                agreement, if approved, would affect the discharge of 
                the duties described in subparagraph (A); and
                  (C) why the effects of the covered consent decree or 
                settlement agreement on the manner in which the agency 
                discharges its duties is in the public interest.
  (e) Submission by the Government.--
          (1) In general.--For any proposed covered consent decree or 
        settlement agreement that contains a term described in 
        paragraph (2), the Attorney General or, if the matter is being 
        litigated independently by an agency, the head of the agency 
        shall submit to the court a certification that the Attorney 
        General or head of the agency approves the proposed covered 
        consent decree or settlement agreement. The Attorney General or 
        head of the agency shall personally sign any certification 
        submitted under this paragraph.
          (2) Terms.--A term described in this paragraph is--
                  (A) in the case of a covered consent decree, a term 
                that--
                          (i) converts into a nondiscretionary duty a 
                        discretionary authority of an agency to 
                        propose, promulgate, revise, or amend 
                        regulations;
                          (ii) commits an agency to expend funds that 
                        have not been appropriated and that have not 
                        been budgeted for the regulatory action in 
                        question;
                          (iii) commits an agency to seek a particular 
                        appropriation or budget authorization;
                          (iv) divests 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; or
                  (B) in the case of a covered settlement agreement, a 
                term--
                          (i) that provides a remedy for a 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
                          (ii) 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 such 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.
  (f) Review by Court.--
          (1) Amicus.--A court considering a proposed covered consent 
        decree or settlement agreement shall presume, subject to 
        rebuttal, that it is proper to allow amicus participation 
        relating to the covered consent decree or settlement agreement 
        by any person who filed public comments or participated in a 
        public hearing on the covered consent decree or settlement 
        agreement under paragraph (2) or (3) of subsection (d).
          (2) Review of deadlines.--
                  (A) Proposed covered consent decrees.--For a proposed 
                covered consent decree, a court shall not approve the 
                covered consent decree unless the proposed covered 
                consent decree allows sufficient time and incorporates 
                adequate procedures for the agency to comply with 
                chapter 5 of title 5, United States Code, and other 
                applicable statutes that govern rulemaking and, unless 
                contrary to the public interest, the provisions of any 
                Executive order that governs rulemaking.
                  (B) Proposed covered settlement agreements.--For a 
                proposed covered settlement agreement, a court shall 
                ensure that the covered settlement agreement allows 
                sufficient time and incorporates adequate procedures 
                for the agency to comply with chapter 5 of title 5, 
                United States Code, and other applicable statutes that 
                govern rulemaking and, unless contrary to the public 
                interest, the provisions of any Executive order that 
                governs rulemaking.
  (g) Annual Reports.--Each agency shall submit to Congress an annual 
report that, for the year covered by the report, includes--
          (1) the number, identity, and content of covered civil 
        actions brought against and covered consent decrees or 
        settlement agreements entered against or into by the agency; 
        and
          (2) a description of the statutory basis for--
                  (A) each covered consent decree or settlement 
                agreement entered against or into by the agency; and
                  (B) any award of attorneys fees or costs in a civil 
                action resolved by a covered consent decree or 
                settlement agreement entered against or into by the 
                agency.

SEC. 4. MOTIONS TO MODIFY CONSENT DECREES.

  If an agency moves a court to modify a covered consent decree or 
settlement agreement and the basis of the motion is that the terms of 
the covered consent decree or settlement agreement are 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 shall 
review the motion and the covered consent decree or settlement 
agreement de novo.

SEC. 5. EFFECTIVE DATE.

  This Act shall apply to--
          (1) any covered civil action filed on or after the date of 
        enactment of this Act; and
          (2) any covered consent decree or settlement agreement 
        proposed to a court on or after the date of enactment of this 
        Act.

                          Purpose and Summary

    H.R. 3446, the Sunshine for Regulatory Decrees and 
Settlements Act of 2023, introduced by Rep. Victoria Spartz (R-
IN), will check problematic sue and settle arrangements and 
related settlement-driven rulemaking by ensuring that federal 
agencies are transparent in such rulemaking and by imposing 
other requirements.

                Background and Need for the Legislation

    Pro-regulatory private parties, such as activist 
environmental groups, often use sue and settle tactics to 
obtain favorable agency actions.\1\ For example, these 
organizations sue agencies for failure to timely promulgate 
rules necessitated by statute. The agency then settles with the 
private party. However, the terms of the settlement can bind 
the agency's discretion, including discretion in rulemaking, 
and can limit the need to account for public feedback, which 
achieves the private party's preferred policy outcomes with 
less transparency.\2\
---------------------------------------------------------------------------
    \1\Government Litigation and the Need for Reform: Hearing Before 
the Subcomm. On the Const. and Limited Gov't of the H. Comm. on the 
Judiciary, 118th Cong. (2023) (testimony of Andrew Grossman, Partner, 
Baker Hostetler, at 1) [hereinafter Grossman Testimony].
    \2\Id.
---------------------------------------------------------------------------
    By statute, Congress often requires agencies to meet 
certain deadlines for promulgating rules.\3\ The same statutes 
that establish an agency's rulemaking deadlines can include a 
clause authorizing citizen suits by qualifying parties if the 
agency fails to meet those deadlines.\4\ While the goal of the 
deadline is to spur prompt agency action, the threat of a 
lawsuit does not always have its intended effect. In some 
cases, the agency may not have a sufficient incentive to act 
quickly due to agency priorities, resource constraints, or 
other factors. These competing interests result in agencies 
acting on a different schedule than Congress required,\5\ 
making the agency vulnerable to lawsuits for inaction.
---------------------------------------------------------------------------
    \3\Jacob Gersen & Anne Joseph O'Connell, Deadlines in 
Administrative Law, 156 U. Pa. L. Rev. 923, 925 (2008).
    \4\David B. Rivkin Jr. & Adam Doverspike, Do Sue and Settle 
Practices Undermine Congressional Intent for Cooperative Federalism on 
Environmental Matters?, 15 Federalist Soc'y Rev. 2, 39 (2014) (citing 
42 U.S.C. Sec.  7604(a)(2); 33 U.S.C. Sec.  1365(a)(2)).
    \5\See Grossman Testimony, at 1-2.
---------------------------------------------------------------------------
    Certain pro-regulatory private parties have become experts 
at leveraging citizen suits--not just to force the agency to 
meet its deadlines, but also to achieve the plaintiffs' desired 
policy objectives.\6\ To settle these citizen suits, agencies 
may agree to issue new regulations (effectively written in 
conjunction with the plaintiffs) in ways that are inconsistent 
with the notice-and-comment process that Congress established 
for rulemaking.\7\ Rather than risk the strictures of a court 
order mandating an outcome the agency may dislike, the agency 
and the plaintiff settle on a mutually agreed upon policy 
approach that binds the agency in ways the plaintiff favors.\8\ 
Such settlements can have a significant effect on rulemaking, 
but without the same public scrutiny other agency rulemaking 
receives--leading to policy outcomes not intended by Congress 
but which agency bureaucrats favor.\9\ These types of 
settlements can reward private interests and hinder an agency's 
fulfillment of its broader mandate.\10\
---------------------------------------------------------------------------
    \6\See generally id. at 1-2.
    \7\See Rivken & Doverspike, supra note 4, at 39, 41.
    \8\See Jim Rossi, Bargaining in the Shadow of Administrative 
Procedure: The Public Interest in Rulemaking Settlement, 51 Duke L. J. 
1015, 1016 (2001).
    \9\See id. at 1016-17.
    \10\See Grossman Testimony, at 3.
---------------------------------------------------------------------------
    One example of how sue and settle cases lead to abuse 
occurred when WildEarth Guardians and the Center for Biological 
Diversity advocated that the U.S. Fish and Wildlife Service 
(FWS) implement the Endangered Species Act to include hundreds 
of additional species.\11\ When FWS did not issue its 
rulemaking timely under the authorizing legislation, the two 
groups sued the agency and negotiated an agreement that allowed 
the two entities to dictate the agency's priorities--which also 
diverted much of FWS's funds to the entities' projects.\12\
---------------------------------------------------------------------------
    \11\See generally Examining `Sue and Settle' Agreements: Part I: 
Joint Hearing Before the Subcomm. on the Interior, Energy and Env't. 
and the Subcomm. on Intergovernmental Aff. of the H. Comm. on Oversight 
and Gov't. Reform, 115th Cong. (2017).
    \12\Id.
---------------------------------------------------------------------------
    On June 6, 2023, Mr. Andrew Grossman, a partner at Baker 
Hostetler, testified on the issue of sue and settle at a 
hearing of the Subcommittee on the Constitution and Limited 
Government of the Committee on the Judiciary. Mr. Grossman 
testified that sue and settle ``raises serious concerns about 
the conduct and resolution of litigation that seeks to compel 
agency action, set agency priorities, and (in some instances) 
influence the content of regulations or other agencies 
actions.''\13\ He supported the policy of the H.R. 3446 in his 
testimony.\14\
---------------------------------------------------------------------------
    \13\Grossman Testimony, at 1.
    \14\Id. at 11.
---------------------------------------------------------------------------

                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, a 
hearing titled ``Government Litigation and the Need for 
Reform,'' was held on June 6, 2023, before the Subcommittee on 
the Constitution and Limited Government of the Committee on the 
Judiciary. The Subcommittee heard testimony from the following 
witnesses:
           Kirby West, Attorney, Institute for Justice
           Andrew Grossman, Partner, Baker Hostetler
           John Shu, Attorney and Legal Commentator
           Todd Phillips, Principal, Phillips Policy 
        Consulting, LLC
The hearing addressed how different aspects of government 
litigation, including sue and settle tactics, require reform.

                        Committee Consideration

    On June 14, 2023, the Committee met in open session and 
order the bill, H.R. 3446, favorably reported with an amendment 
in the nature of a substitute, by a roll call vote of 14 to 10, 
a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, the 
following roll call votes occurred during the Committee's 
consideration of H.R. 3446:
    1. Vote on Amendment #1 to H.R. 3446 ANS offered by Mr. 
Johnson of Georgia--failed 10 ayes to 14 nays.
    2. Vote on Amendment #2 to H.R. 3446 ANS offered by Mr. 
Ivey--failed 11 ayes to 13 nays.
    3. Vote on Amendment #3 to H.R. 3446 ANS offered by Mr. 
Neguse--failed 9 ayes to 15 nays.
    4. Vote on favorably reporting H.R. 3446, as amended--
passed 14 ayes to 10 nays. 

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, 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 does not apply where a cost estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974 has been timely submitted prior to filing of the report 
and is included in the report. Such a cost estimate is included 
in this report.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the enclosed cost estimate for H.R. 3446 from the 
Director of the Congressional Budget Office:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 3446 would modify the process used to develop consent 
decrees and settlement agreements that compel federal agencies 
to take specified regulatory actions. Under the bill, a summary 
of all such complaints against federal agencies, the terms of 
covered agreements, and awards of attorneys' fees would need to 
be published in an electronic format and would be subject to 
public comment prior to filing with federal courts. The bill 
also would require that negotiations over covered actions be 
conducted through mediation or alternative dispute resolution 
programs and would require federal agencies to submit reports 
to the Congress describing the statutory basis and details of 
the agreements into which they enter. Finally, agencies would 
need to certify to courts their approval of those agreements, 
and if agencies seek modifications of an agreement courts would 
be required to perform a complete review as if the modified 
agreement were a new one.
    Using information from the Department of Justice (DOJ) 
about the number of covered agreements litigated in recent 
years and the average workload for those cases, CBO expects 
that the bill would affect roughly 10 to 20 actions annually. 
On average, CBO estimates that the cost to perform the 
additional work under the bill would average about $80,000 per 
case. Most of those additional costs would arise because 
litigation would probably take longer under the bill and 
agencies would face additional administrative requirements, 
including the requirements for undergoing mediation, taking 
public comment, and reporting to the Congress. CBO expects that 
most of the additional workload incurred under the bill would 
be performed by attorneys and other staff at DOJ. In total, CBO 
estimates that implementing H.R. 3446 would cost $6 million 
over the 2024-2028 period; that spending would be subject to 
the availability of appropriated funds.
    Enacting H.R. 3446 could affect direct spending. Under 
several statutes, successful plaintiffs are entitled to 
repayment of attorneys' fees through the Treasury's Judgment 
Fund. Because the bill would lengthen the process of developing 
agreements for some cases, the amount of reimbursable 
attorneys' fees could increase. However, the increased length 
of the process to finalize those actions might deter some 
future lawsuits and decrease the number of future cases. On 
net, CBO expects that the number of affected cases would be 
small and that enacting the bill would increase direct spending 
by less than $500,000 in every year and over the 2024-2033 
period.
    Finally, the bill could change the number of negotiated 
settlements that occur. CBO does not have a basis for 
projecting costs or savings for the federal government arising 
from any change in the number of such settlements under the 
bill.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was reviewed by H. Samuel Papenfuss, Deputy Director 
of Budget Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

                Committee Estimate of Budgetary Effects

    With respect to the requirements of clause 3(d)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 3446 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 3446 would check problematic sue and 
settle arrangements and related settlement-driven rulemaking by 
ensuring that federal agencies are transparent in such 
rulemaking and by imposing other requirements.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 3446 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clauses 
9(d), 9(e), or 9(f) of House Rule XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).

                      Section-by-Section Analysis

    Section 1. Short Title. This section sets forth the short 
title of the bill as the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2023.''
    Section 2. Definitions. This section establishes 
definitions for the terms ``agency,'' ``agency action,'' 
``covered civil action,'' ``covered consent decree,'' ``covered 
consent decree or settlement agreement,'' and ``covered 
settlement agreement.''
    Section 3. Consent Decree And Settlement Reform. This 
section includes a number of reforms to agency consent decrees 
and settlements:
            Subsection (a), Pleadings and preliminary matters
          Requires an agency being sued to publish a 
        notice of intent to sue and a copy of the complaint in 
        a readily accessible manner within 15 days of receiving 
        service.
          Prohibits a party from moving to enter a 
        covered consent decree or to dismiss a civil action 
        pursuant to a covered settlement agreement until after 
        certain requirements are met.
            Subsection (b), Intervention
          Establishes a rebuttable presumption that 
        persons filing a motion to intervene and alleging an 
        interest in the proceeding would not have their 
        interests represented by the present parties.
          Requires a court to consider whether a state, 
        local, or tribal government seeking intervention 
        administers relevant statutory provisions jointly with 
        the agency defendant, or administers an authority the 
        relevant regulatory action would preempt.
            Subsection (c), Settlement negotiations
          Requires settlement negotiations to be 
        conducted under the alternative dispute resolution 
        program of the court, or by a district judge who is not 
        adjudicating the civil action.
          Requires settlement negotiations to include 
        any party that intervenes in the action.
            Subsection (d), Publication of and comment on covered 
                    consent decrees or settlement agreements
          Requires, no later than 60 days before a 
        settlement's filing with the court, that the agency 
        publish in the Federal Register and online the consent 
        decree or settlement agreement and a statement 
        providing the relevant statutory basis and description 
        of terms.
          Requires that any agency seeking to enter a 
        consent decree or settlement accept public comment on 
        such and respond to all comments.
          Requires that, when the agency moves that the 
        court enter the consent decree or settlement agreement, 
        that the agency: (i) inform the court of the relevant 
        statutory basis and terms; (ii) submit to the court a 
        summary of comments received and agency response; and 
        (iii) submit and make the administrative record 
        accessible.
          Requires the court to include in the court's 
        record the agency's submitted index of the 
        administrative record.
          Allows the agency to hold a public hearing 
        about the proposed consent decree or settlement 
        agreement and sets forth requirements related to the 
        hearing record.
          If the consent decree or settlement agreement 
        requires agency action by a date certain, the agency 
        must inform the court of any required regulatory action 
        the agency has failed to take and must provide related 
        analysis.
            Subsection (e), Submission by the government
          Requires that the Attorney General or agency 
        head certify approval for covered consent decrees or 
        settlement agreements that contain certain terms.
            Subsection (f), Review by court
          Establishes a rebuttable presumption that it 
        is proper to allow amicus participation of a person who 
        filed public comments or participated in a public 
        hearing relating to a covered consent decree or 
        settlement agreement.
          Requires the court to ensure that the consent 
        decree or settlement agreement allows enough time for 
        the agency to comply with statutory rulemaking 
        requirements.
            Subsection (g), Annual reports
          Requires each agency to submit an annual 
        report describing civil actions brought against the 
        agency and consent decrees or settlement agreements 
        entered into by the agency, and the statutory basis for 
        each consent decree or settlement agreement and any 
        attorney's fees or costs awarded.
    Section 4. Motions To Modify Consent Decrees. This section 
requires courts to review consent decrees and settlement 
agreements de novo when an agency moves for modification for 
specific reasons.
    Section 5. Effective Date. Makes the Act applicable to any 
civil action filed on or after the date of enactment, and to 
any consent decree or settlement agreement proposed to a court 
on or after the date of enactment.

                            Dissenting Views


                              Introduction

    For the fifth time in 11 years, the Majority has chosen 
once again to advance the so-called ``Sunshine for Regulatory 
Decrees and Settlements Act,'' a proposal that, if enacted, 
would put the American people at grave risk of harm from a vast 
array of threats. This bill, which is H.R. 3446 this Congress, 
is the latest effort in the Republicans' longstanding canon of 
proposals to protect corporate interests by undermining 
environmental, health, safety, and consumer protections enacted 
through the agency rulemaking process.
    Regulations protect Americans from a wide array of risks 
that confront them in their daily lives--ranging from toxic air 
and water to defective cars, unsafe workplaces, tainted baby 
formula, dangerous medications, and financial fraud. Because 
Republicans lack the popular support to undo these protections 
outright, they have designed a series of bills--including H.R. 
3446--to gum up the regulatory process by which agencies can 
issue these lifesaving regulations.
    H.R. 3446 follows this blueprint by imposing numerous and 
unnecessary new procedural burdens on agencies and courts to 
dissuade them from using consent decrees and settlement 
agreements to resolve civil actions filed to compel agency 
compliance with the law--civil actions that Congress authorized 
to facilitate enforcement of its mandates.
    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 proposed consent decrees and 
settlement agreements 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 H.R. 3446's proponents allege 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, no credible evidence supports this allegation. 
Moreover, the allegation ignores long-established procedures 
that circumscribe the ability of agencies to enter consent 
decrees and settlement agreements. In addition to being 
unnecessary, H.R. 3446 would effectively delay and possibly 
derail agencies' efforts to implement congressionally mandated 
public health and environmental safeguards. In addition, the 
bill will encourage costly and wasteful litigation, leaving 
American taxpayers to bear the expense. H.R. 3446 also 
overrides the judiciary's traditional role in managing 
litigation and resolving disputes equitably and efficiently.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521.
---------------------------------------------------------------------------
    In recognition of H.R. 3446'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 opposed substantively identical legislation in 
past Congresses, most recently in the 115th Congress, stating 
that this bill ``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\ Similarly, a coalition of 29 environmental 
groups--including the Center for Biological Diversity, 
Earthjustice, Environmental Defense Fund, and Sierra Club--
opposed 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\ In 2015, the Obama 
Administration issued a veto threat against a substantively 
identical proposal, stating that such proposal ``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, & 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, I strongly 
oppose H.R. 3446 and I respectfully dissent from the 
Committee's views on this legislation.

                       Description and Background

    H.R. 3446, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2023,'' is intended to address the alleged 
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. The bill's 
proponents call this alleged phenomenon ``sue and settle.''
    A description of the bill's substantive provisions, as 
ordered reported, 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. 3446 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. 3446'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. 3446 would apply not 
just to consent decrees in covered civil actions, but also in 
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. 3446 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 federal 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. 
Notably, section 3(c)(2) requires that such settlement 
negotiations also include any intervening party.
    Section 3(d) imposes a series of notice and comment 
procedures on agencies before they can file a covered 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, 
when moving to enter a proposed consent decree or settlement 
agreement, 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 its 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 agency 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, that Justice Department and other agency 
attorneys follow to ensure that they do not enter into consent 
decrees or settlement agreements 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) interferes with agency 
rulemaking procedures under the APA, another statute, or 
executive order; commits the agency to expend non-appropriated 
and non- budgeted funds for the regulatory action at issue; or 
commits the agency to exercise discretion in a particular way 
when the discretion was committed to it by statute or the 
Constitution to respond to changing circumstances, to make 
policy or managerial choices, or to protect the rights of third 
parties.
---------------------------------------------------------------------------
    \6\28 C.F.R. Sec. Sec. 0.160-0.163.
---------------------------------------------------------------------------
    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 covered consent decree or settlement 
agreement unless it provides an agency sufficient time or 
procedures for the agency to comply with the APA's rulemaking 
procedures or other statutes and executive orders that govern 
rulemaking.
    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. 3446


           I. H.R. 3446 IS A SOLUTION IN SEARCH OF A PROBLEM

    H.R. 3446's proponents contend that this legislation is 
needed because federal agencies allegedly intentionally collude 
with public-interest organizations and other private-citizen 
plaintiffs in entering into consent decrees or settlements as a 
way of circumventing proper rulemaking procedures. Tellingly, 
however, these proponents offer no credible proof in support of 
their contention. For example, at the hearing on substantively 
similar legislation in the 114th Congress, William Kovacs, then 
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, 
rather than citing objective evidence, he cited the Chamber's 
own 2013 study.\8\ Indeed, at the most recent hearing on this 
legislation held in June 2023, Majority witness Andrew 
Grossman, Adjunct Scholar at the Cato Institute and a Partner 
at Baker & Hostetler LLP, likewise cited the same now-decade-
old report in support of the ``sue and settle'' allegation that 
undergirds H.R. 3446.\9\
---------------------------------------------------------------------------
    \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) [hereinafter ``2015 Hearing''] (statement of 
William Kovacs, Senior Vice President at the U.S. Chamber of Commerce); 
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\See 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.
    \9\Government Litigation and the Need for Reform: Hearing Before 
the Subcomm. on the Constitution & Limited Gov't of the H. Comm. on the 
Judiciary, 118th Cong. (2023) [hereinafter ``2023 Hearing''] (statement 
of Andrew M. Grossman, Partner, Baker & Hostetler LLP).
---------------------------------------------------------------------------
    In contrast to this obviously self-interested ``evidence,'' 
the independent and non-partisan Government Accountability 
Office (GAO) concluded in a December 2014 report that ``the 
effect of settlements in deadline suits on [the Environmental 
Protection Agency's] rulemaking priorities is limited.''\10\ 
This report, which focused on lawsuits involving environmental 
litigation, made several findings that refute the claims of 
H.R. 3446's supporters. The GAO referred to so-called ``sue and 
settle'' litigation as ``deadline suits'' because they concern 
an agency's failure to perform a congressionally mandated 
nondiscretionary act by a deadline that Congress imposed. The 
GAO noted that certain statutes allowed 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.\11\ 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.\12\ 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.''\13\ Mr. Weissman further noted that 
enforcing these laws through deadline litigation is important 
to ``holding federal agencies accountable when they ignore 
Congress.''\14\ Furthermore, as the GAO found, it is ``very 
unlikely that the government will win'' these lawsuits.\15\
---------------------------------------------------------------------------
    \10\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.
    \11\Id. at 3.
    \12\Id.
    \13\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.
    \14\Id.
    \15\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 H.R. 3446's proponents allege. 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\ 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 and 
National Marine Fisheries Service, GAO found no evidence that 
either agency circumvented the rulemaking process through 
deadline-related litigation:
---------------------------------------------------------------------------
    \16\Id. at 8.
---------------------------------------------------------------------------
    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.\17\

    \17\U.S. Gov't Accountability Office, GAO-17-304, Environmental 
Litigation: Information on Endangered Species Act Deadline Suits at 
unnumbered second page (2017), https://www.gao.gov/assets/690/
683058.pdf (emphasis added).
---------------------------------------------------------------------------
Perhaps tellingly, the Majority witnesses at the June 2023 
hearing on this legislation failed to even mention, much less 
refute, the GAO's findings in these two reports despite the 
fact that both reports have been publicly available for some 
time. Instead, they simply repeated the misleading narrative 
that the bill's proponents have been making for more than a 
decade.
    The GAO's 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.\18\ In fact, as then-Policy Advocate for Public 
Citizen Amit Narang clarified during the hearing on 
substantively identical legislation in the 114th Congress, 
``All of the settlements scrutinized by GAO pursuant to the 
EPA's rulemaking 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.''\19\
---------------------------------------------------------------------------
    \18\Id. at 8, 12.
    \19\2015 Hearing 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.''\20\ 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:
---------------------------------------------------------------------------
    \20\2013 Hearing at 115.

          Most striking of all is that by merely compiling EPA 
        settlements (with just environmental groups, under just 
        [the Obama] administration), the report's methodology 
        quietly dispenses with any need for proof of collusion 
        or impropriety in consent decrees or settlement 
        agreements. The Chamber cannot remotely back up the 
        charge that collusion was involved in all of these 
        settlements, or even in any of them, so the report does 
        not even try.\21\
---------------------------------------------------------------------------
    \21\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.\22\ It is also critical to note that, 
while proponents of H.R. 3446--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\
---------------------------------------------------------------------------
    \22\Id.
    \23\For example, Minority witness Todd Phillips testified that one 
example of delayed rulemaking was the 12-year (and counting) delay in 
agencies issuing rules to implement Section 956 of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act, which was intended to 
prohibit financial institutions from incentivizing inappropriate risks 
that could result in harm to the nation's financial system. 2023 
Hearing (statement of Todd Phillips, Principal, Phillips Policy 
Consulting, at 2).
---------------------------------------------------------------------------
    Likewise, John Cruden, who was a 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 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. 3446, therefore, is really 
aimed at congressionally authorized provisions that permit 
citizens to sue agencies so as to enforce statutory 
requirements. If these citizen-suit provisions are the true 
cause for concern, then it is for H.R. 3446'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 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. 3446 simply addresses a non-existent problem.

 II. BY UNDERMINING ENFORCEMENT OF MANDATORY AGENCY RULEMAKING  
         DUTIES, H.R. 3446 THREATENS PUBLIC HEALTH AND SAFETY

    H.R. 3446, 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 precisely to ensure agency 
compliance with these statutory mandates. Therefore, when 
agencies fail to meet such mandatory duties, the harm that they 
were supposed to remedy remains unaddressed.
    Given the fact that many of these statutory mandates 
concern public health and safety, H.R. 3446, 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 2021, there were 2,607,900 nonfatal workplace injuries 
and illnesses reported by private 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. 3446 makes it 
harder for citizens to force agencies to address these kinds of 
concerns, it unnecessarily endangers the American people. 
Indeed, as Todd Phillips of Phillips Policy Consulting, the 
Minority witness at the June 2023 hearing on this bill, 
testified, ``ironically, because of the additional hurdles, 
this bill would make the reason deadline litigation is brought 
in the first place--delayed agency action--even worse.''\32\
---------------------------------------------------------------------------
    \30\U.S. Dep't of Labor Bureau of Labor Statistics, Injuries, 
Illnesses, and Fatalities (last visited, Aug. 22, 2023), https://
www.bls.gov/iif/.
    \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).
    \32\2023 Hearing (statement of Todd Phillips, Principal, Phillips 
Policy Consulting, at 3).
---------------------------------------------------------------------------
    Recognizing the harm to society that delays in implementing 
rules would cause if H.R. 3446 were enacted, two Democratic 
members offered amendments exempting certain categories of 
rules form H.R. 3446. Rep. Hank Johnson (D-GA) offered an 
amendment at markup that would have excluded from the bill any 
covered consent decree or settlement agreement that prevents or 
is intended to prevent discrimination on the basis of race, 
religion, national origin, or any other protected 
characteristic. As I noted in remarks in support of Rep. 
Johnson's amendment, ``consent decrees in particular have been 
instrumental in enforcing civil rights statutes in a wide 
variety of cases''\33\ and that they ``are the heart of civil 
rights enforcement.''\34\ Unfortunately, the Committee rejected 
the amendment by a 10 to 14 party-line vote.
---------------------------------------------------------------------------
    \33\H.R. 3446 Unofficial Markup Tr. at 44.
    \34\Id.
---------------------------------------------------------------------------
    Similarly, in light of the potential unnecessary delays 
that H.R. 3446 would cause to the implementation of rules that 
help veterans, Rep. Joe Neguse (D-CO) offered an amendment that 
would have exempted from the bill any covered consent decree or 
settlement agreement that prevents or is intended to prevent 
discrimination against veterans. The Committee rejected this 
amendment by a 9 to 14 party-line vote.

  III. H.R. 3446 IS UNNECESSARY IN LIGHT OF THE JUSTICE DEPARTMENT'S 
           ``MEESE MEMO'' AND OTHER EXISTING LEGAL MECHANISMS

    H.R. 3446's proponents offer no credible 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,\35\ has for more 
than 35 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:
---------------------------------------------------------------------------
    \35\28 C.F.R. Sec. Sec.  0.160-0.163.

          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.\36\
---------------------------------------------------------------------------
    \36\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 
not to 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.''\37\ The policy 
outlines similar restrictions on settlement agreements.\38\ 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.\39\ 
The Meese Memo ultimately was codified into the Code of Federal 
Regulations.\40\
---------------------------------------------------------------------------
    \37\Id.
    \38\Id.
    \39\Id.
    \40\28 C.F.R. Sec. Sec.  0.160-0.163.
---------------------------------------------------------------------------
    H.R. 3446'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.''\41\ Moreover, the Majority's witnesses at a hearing 
on H.R. 3446'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.\42\
---------------------------------------------------------------------------
    \41\2012 Hearing at 111.
    \42\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.'').
---------------------------------------------------------------------------
    The GAO's 2017 report, referenced earlier, confirms that 
agencies continue to follow the Meese Memo.\43\ GAO determined 
that Justice Department officials were guided by the Meese Memo 
when negotiating settlement terms and may only commit agencies 
to perform actions that are mandated by statute:
---------------------------------------------------------------------------
    \43\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.

          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.\44\
---------------------------------------------------------------------------
    \44\Id. at 20-21.

    In addition to the Meese Memo, there are other mechanisms 
that also address the purported concerns of H.R. 3446'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.\45\ 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.\46\
---------------------------------------------------------------------------
    \45\Fed. R. Civ. P. 24(a)(2).
    \46\5 U.S.C. Sec.  553.
---------------------------------------------------------------------------
    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. 3446 
unnecessary.\47\
---------------------------------------------------------------------------
    \47\At the most recent hearing on this legislation, in June 2023, 
the Majority witnesses did not allege that the Justice Department under 
the Biden Administration had revoked the Meese Memo or repealed its 
codification in the Code of Federal Regulations. Somewhat misleadingly, 
Majority witness Andrew Grossman stated in his written testimony that 
the Department should ``readopt'' the Meese Memo, without expressly 
stating or offering any evidence that either the Memo or its 
codification were no longer in place. 2023 Hearing (statement of Andrew 
M. Grossman, Partner, Baker & Hostetler LLP, at 7).
---------------------------------------------------------------------------

   IV. H.R. 3446 OPENS THE DOOR TO DILATORY TACTICS BY WELL-FINANCED 
                       OPPONENTS OF AGENCY ACTION

    In addition to being unnecessary, H.R. 3446 threatens to 
impose significant financial costs on taxpayers in several 
ways. Various provisions of H.R. 3446 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 by a date 
certain.\48\ By opening opportunities for industry to slow down 
this process, H.R. 3446 effectively makes it more expensive for 
agencies to do what Congress has mandated them to do.
---------------------------------------------------------------------------
    \48\2015 Hearing at 63-64; 2013 Hearing at 117-118; 2012 Hearing at 
106-107.
---------------------------------------------------------------------------
    Section 3(b)(1) of the bill, for example, contains a nearly 
open-ended intervention right by mandating that a court 
presume, subject to rebuttal, that the interests of any private 
third party affected by the agency action in dispute in the 
underlying litigation will not be represented by the parties to 
that litigation.\49\ This rebuttable presumption reverses the 
burden for intervention in Federal Rule of Civil Procedure 24, 
which places the burden of proof on a third party to show that 
its interests are not adequately 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 covered consent decree or 
settlement agreement.
---------------------------------------------------------------------------
    \49\H.R. 3446, 118th Cong. Sec.  3(b)(1) (2023).
    \50\Fed. R. Civ. P. 24.
---------------------------------------------------------------------------
    Hypothetically, under H.R. 3446, 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 rebuttable presumption that the parties to the 
litigation do not adequately represent the third party's 
interest.\51\ If a court were to construe section 3(b)(1) 
broadly, this provision could allow virtually anyone to 
intervene in a covered civil action. Indeed, as Minority 
witness Todd Phillips noted, ``This provision is written 
unbelievably broad with little limitation. It is much broader 
than what is currently required under the Constitution for 
constitutional standing requirements, which requires parties to 
show that they were or will definitely be injured by the 
agency's action, the agency's delay will cause injury and that 
the harm will be redressed by favorable outcome.''\52\
---------------------------------------------------------------------------
    \51\Indeed, the number of absurd scenarios arising from this 
provision is potentially limitless. For instance, the Ku Klux Klan 
could argue that it has a right to intervene in consent decree or 
settlement negotiations concerning the implementation of a civil rights 
regulation because the agency action at issue would ``affect'' the 
Klan.
    \52\2023 Hearing, Unofficial tr. at 31.
---------------------------------------------------------------------------
    In light of the troublingly broad and potentially 
unconstitutional nature of the bill's intervention language, 
Rep. Glenn Ivey (D-MD) offered an amendment at markup to strike 
this ill-conceived provision. As I noted at markup in support 
of this amendment, if ``a court were to read section 3(b)(1) 
broadly, this provision could open a door to almost anyone 
intervening in a covered civil action under the bill.''\53\ 
Unfortunately, the Committee rejected this amendment by an 11 
to 13 party-line vote.
---------------------------------------------------------------------------
    \53\H.R. 3446 Unofficial Markup Tr. at 57.
---------------------------------------------------------------------------
    Section 3(c) of H.R. 3446 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.\54\ Such discussions must include the 
plaintiff, defendant agency, and any third party 
intervenors.\55\ 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.
---------------------------------------------------------------------------
    \54\H.R. 3446, 118th Cong., Sec.  3(c) (2023).
    \55\Id.
---------------------------------------------------------------------------
    H.R. 3446 provides other opportunities for well-heeled 
opponents of strong health and safety protections 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.\56\ The agency must then respond to every 
comment pursuant to section 3(d)(2)(B).\57\ 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.
---------------------------------------------------------------------------
    \56\Id. at Sec. Sec.  3(d)(1), 3(d)(2)(A).
    \57\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.\58\ This provision 
would further allow industry and other regulatory opponents to 
delay resolution of the underlying dispute between the 
plaintiff and the defendant agency.
---------------------------------------------------------------------------
    \58\Id. at Sec.  3(f)(1).
---------------------------------------------------------------------------

 V. H.R. 3446 USES AMBIGUOUS LANGUAGE IN MANY KEY PROVISIONS THAT WILL 
     CREATE CONFUSION, LITIGATION, AND DELAY IN RESOLVING DISPUTES

    Many of H.R. 3446'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.''\59\ It is unclear what the distinction is between 
``agency action'' and ``regulatory action,'' or what the scope 
of the phrase ``relating to'' is, opening the door to 
litigation over the meaning of these threshold terms.
---------------------------------------------------------------------------
    \59\Id. at Sec.  2(2).
---------------------------------------------------------------------------
    Additionally, section 2(2) refers to ``private persons'' 
whose ``rights'' are affected by the regulatory action, but the 
bill fails to define what ``private parties'' or ``rights'' 
means.\60\ As noted above, without a definition, almost any 
third party could, in theory, intervene in a consent decree or 
settlement negotiation under this bill. As with other ambiguous 
text in H.R. 3446, confusion and a lack of clarity over the 
meaning of these terms will lead to litigation. And H.R. 3446'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.\61\ The requirement, outlined in section 3(d)(4), 
has no definition or clarification of what ``affect the 
discharge of those duties'' would mean.
---------------------------------------------------------------------------
    \60\Id.
    \61\Id. at Sec.  3(d)(4).
---------------------------------------------------------------------------
    In sum, H.R. 3446 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, 
thereby favoring anti-regulatory interests. 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, Congress should 
be crafting legislation to streamline and improve efficiencies 
for all. H.R. 3446 would have the opposite effect.

    VI. THE CUMULATIVE EFFECT OF H.R. 3446'S PROVISIONS WILL BE TO 
   DISCOURAGE THE USE OF CONSENT DECREES AND SETTLEMENT AGREEMENTS, 
FORCING EXPENSIVE AND TIME-CONSUMING LITIGATION AND EXACERBATING AGENCY 
                                 DELAY

    By facilitating dilatory conduct by anti-regulatory forces, 
using vague language in key provisions, and imposing 
unnecessary, numerous, and burdensome procedural requirements 
on agencies and courts with respect to consideration of consent 
decrees and settlement agreements, H.R. 3446'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 in an April 2015 cost 
estimate that a bill substantially the same as H.R. 3446 would 
impose millions of dollars in additional costs ``because 
litigation involving consent decrees and settlement agreements 
would probably take longer under the bill and agencies would 
face additional administrative requirements, including the 
requirement to make more information available to the 
public.''\62\ Indeed, given the more than eight years since 
this CBO estimate, the cost estimate likely would be even 
higher now in light of inflation.
---------------------------------------------------------------------------
    \62\Congressional Budget Office, Cost Estimate for H.R. 712, the 
Sunshine for Regulatory Decrees and Settlements Act of 2015, at 1 (Apr. 
16, 2015), available at http://cbo.gov/publication/50108.
---------------------------------------------------------------------------
    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.\63\ H.R. 3446 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:
---------------------------------------------------------------------------
    \63\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.\64\
---------------------------------------------------------------------------
    \64\2012 Hearing at 108.

By making consent decrees and settlement agreements more 
difficult and costly to enter into, H.R. 3446 will generate 
increased litigation costs and expensive judgments, which will 
ultimately be passed along to the taxpayer.

   VII. H.R. 3446 SUBVERTS THE FEDERAL RULES OF CIVIL PROCEDURE AND 
                          JUDICIAL DISCRETION

    H.R. 3446 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. 3446 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. 3446 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.''\65\ 
Section 4 of H.R. 3446 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--equities that Rule 60 would otherwise permit 
a court to consider.
---------------------------------------------------------------------------
    \65\Fed. R. Civ. P. 60(b)(5).
---------------------------------------------------------------------------
    Beyond the specific changes that H.R. 3446 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. 3446 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. 3446 seeks to dictate 
courtroom management issues that have traditionally been left 
to judges to decide.

                               Conclusion

    As with all the anti-regulatory proposals this Committee 
has considered in this Congress, H.R. 3446 is yet another 
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. 3446 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. 3446 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. 3446 undermines existing civil procedure rules 
and undermines judicial discretion.
    For all the foregoing reasons, I respectfully dissent and 
urge my colleagues to oppose H.R. 3446.
                                   Jerrold Nadler,
                                           Ranking Member.

                                  [all]