49–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 114–184 

SUNSHINE FOR REGULATORY DECREES AND 

SETTLEMENTS ACT OF 2015 

JUNE 25, 2015.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. GOODLATTE, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 712] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 712) 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 without amendment and recommends that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 8 

Committee Consideration ........................................................................................ 8 

Committee Votes ...................................................................................................... 8 

Committee Oversight Findings ............................................................................... 12 

New Budget Authority and Tax Expenditures ...................................................... 13 

Congressional Budget Office Cost Estimate .......................................................... 13 

Duplication of Federal Programs ............................................................................ 14 

Disclosure of Directed Rule Makings ..................................................................... 14 

Performance Goals and Objectives ......................................................................... 14 

Advisory on Earmarks ............................................................................................. 15 

Section-by-Section Analysis .................................................................................... 15 

Dissenting Views ..................................................................................................... 18 


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Purpose and Summary 

H.R. 712, the ‘‘Sunshine for Regulatory Decrees and Settlements 

Act of 2015,’’ limits the ability of defendant Federal regulators and 

pro-regulatory plaintiffs to abuse Federal consent decrees and settlement agreements to require new regulations, reorder regulatory 

priorities, bind the discretion of future Administrations, and limit 

the rights of regulated entities and State, local and Tribal co-regulators affected by actions taken under such decrees and settlements. The bill accomplishes this by improving transparency, increasing participation by affected regulated entities and co-regulators in the negotiation and consideration of decrees and settlement, strengthening public comment on and judicial review of proposed decrees and settlements, and assuring review by the Attorney General and agency heads of the types of proposed decrees and 

settlements that would most intrusively involve the Judiciary in 

the administration of agencies’ regulatory duties. 

Background and Need for the Legislation 

I. GENERAL BACKGROUND

1. Abuse of Regulatory Consent Decrees and Settlement Agreements 

and the Rise of ‘‘Sue-and-Settle’’ Litigation 

Since the 1960’s and 1970’s, consent decrees and settlement 

agreements increasingly have been used in Federal litigation to 

bind executive discretion under judicial authority, including to bind 

executive discretion over successive Administrations. This trend 

has arisen in litigation against both Federal defendants and State 

and local defendants. In litigation against Federal defendants, the 

problem has been concentrated in litigation against regulatory 

agencies over allegations that agency action has been unlawfully 

withheld or unreasonably delayed at the Federal level. 

In such cases, the tactical use of consent decrees and settlement 

agreements has, over the decades, essentially been refined into an 

art form, commonly known as ‘‘sue-and-settle’’ litigation. In sueand-settle litigation, defendant regulatory agencies, such as the 

U.S. Environmental Protection Agency, typically have failed to 

meet mandatory statutory deadlines for new regulations or allegedly have unreasonably delayed discretionary action. Plaintiffs in 

such matters often have strong cases on liability, giving them substantial leverage over the defending agencies. That leverage is 

heightened when, as often is the case, the agency actions at issue 

are politically sensitive, such as major, new anti-pollution regulations to impose high costs on regulated industry. Political and practical concerns in sue-and-settle cases frequently give rise to perverse agency incentives to cooperate with actual or threatened litigation and negotiate a consent decree or settlement agreement to 

resolve it. This is because, once a decree or agreement is in place, 

the defendant agency has a litigation-based excuse to expedite action that helps to diminish political costs, reorder agency funding 

priorities, or serve other pro-regulatory ends. 

As a result of these factors, it has become common in these cases 

for pro-regulatory plaintiffs to approach vulnerable Federal agencies with threats of lawsuits, negotiate consent decrees or settlement agreements in secret in advance of suit, and propose the deVerDate Sep 11 2014 01:00 Jun 27, 2015 Jkt 049006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6601 E:\HR\OC\HR184.XXX HR184

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1 Reuters, ‘‘Regulators Inching Forward on Dodd-Frank Rules’’ (Jan. 3, 2012) (available at 

http://news.yahoo.com/regulators-inching-forward-dodd-frank-rules-210003595.html). 

crees or settlements to the courts contemporaneously with the filing of the plaintiffs’ complaints. The resulting decrees and settlement agreements often come as surprises to the regulated community, State, local and Tribal regulators who share responsibility for 

regulatory programs at issue, and the general public. Further, 

these decrees and settlements often provide short timelines for 

agency action, particularly the proposal and promulgation of new 

regulations. The lack of advance notice and judicially backed, minimal timeframes for proposal and promulgation allow defendant 

agencies to undercut the public participation and analytical requirements of the Administrative Procedure Act, the Regulatory 

Flexibility Act, the Unfunded Mandates Reform Act, and other regulatory process statutes. Similarly, accelerated timeframes for proposal and promulgation allow agencies to short-circuit review of 

new regulations by OIRA under executive orders applicable to the 

rulemaking process. Incentives for agencies to pursue these ends— 

which leave the agencies freer to frame new regulations to fit preconceived agency preferences, rather than public preferences, sound 

policy and the facts—is particularly strong when plaintiffs and defendant agencies agree on what the content of proposed and final 

agency action should be, and seek to effectuate that agreement 

without interference by other interested parties and OIRA. 

In many cases, agencies also may not be able to conclude desired 

but controversial rulemakings before a succeeding Administration—with potentially different views and priorities—takes office. 

The approaching expiration of an Administration’s term in office 

gives agency officials a powerful incentive to control the incoming 

Administration’s regulatory agenda through consent decrees and 

settlement agreements finalized before the new Administration can 

assume its duties. That is particularly true when agencies have 

failed to meet a number of mandatory rulemaking deadlines under 

one statute. A recent example of that potential was offered by the 

set of rulemakings required under the Dodd-Frank Wall Street Reform and Consumer Protection Act. Estimates in 2012 were that 

relevant agencies had missed three-quarters of the pre-2012 rulemaking deadlines in that legislation.1 Had the Obama administration been voted out of office in November 2012, a high potential for 

Dodd-Frank sue-and-settle decrees and settlements would have existed. 

When pro-regulatory interest groups and regulatory agencies engage in sue-and-settle practices, the end result is rulemaking that 

implements the priorities of pro-regulatory advocates, limits the 

discretion of succeeding Administrations, and takes place under 

schedules that render notice-and-comment rulemaking a formality, 

depriving regulated entities, the public and OIRA of sufficient opportunities to influence the content of final rules. 

2. Sue-and-Settle Trends under the Obama Administration 

Under the Obama administration, this phenomenon has become 

particularly troubling. Not only has the Administration generally 

increased the number of major rulemakings, but it has engaged in 

a flurry of sue-and-settle cases. According to a recent study of 


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2 U.S. Chamber of Commerce, ‘‘Sue-and-Settle—Regulating Behind Closed Doors’’ (May 20, 

2013) (available at http://www.uschamber.com/sites/default/files/reports/SUEANDSETTLE 

REPORT-Final.pdf). 

Clean Air Act and Clean Water Act sue-and-settle cases, the U.S. 

Chamber of Commerce found that: 

• The sue-and-settle process is increasingly being used as a 

technique to shape agencies’ regulatory agendas, without 

input from the public or the regulated community. 

• The Obama administration had already entered into more 

than 70 sue-and-settle agreements which had led to the 

issuance of at least 100 regulations, including the Utility 

MACT rule, the Chesapeake Bay Clean Water Act rules, and 

various regional haze implementation rules. 

• The Sierra Club was responsible for 34 of the 71 lawsuits, 

with WildEarth Guardians coming in second with 20 suits. 

• Six of the Obama administration’s sue-and-settle regulations 

alone reportedly would impose $101 billion in estimated annual costs, while another four would impose compliance costs 

of as much as $23.66 billion. 

• In fiscal year 2011, Congress appropriated $20.9 million to 

the U.S. Fish and Wildlife Service for endangered species 

listing and critical habitat designation. That year, the agency spent $15.8 million in response to court orders or settlement agreements.2

To provide further examples of sue-and-settle trends, just two 

agencies, EPA and the Department of the Interior, have been able 

to institute the following major policy changes under sue-and-settle 

rulemakings during the Obama administration: 

• the Utility Maximum Achievable Control Technology rule on 

coal-fired electric utilities; 

• the Cement Maximum Achievable Control Technology rule 

on cement manufacturing; 

• the Stream Buffer Zone rule on coal mining; 

• the Cooling Water Intake Structure regulations on electric 

utilities; 

• revisions to the definition of solid waste under the Resource 

Conservation and Recovery Act; 

• regulation of greenhouse gases under the Clean Water Act; 

• numeric nutrient criteria for the State of Florida under the 

Clean Water Act; 

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

• reconsideration of National Ambient Air Quality Standards 

for ozone; 

• New Source Performance, Maximum Achievable Control 

Technology and residual risk standards for oil and gas drilling operations; 


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3Memorandum from Attorney General Edwin Meese III to all Assistant Attorneys General 

and United States Attorneys, Department Policy regarding Consent Decrees and Settlement 

Agreements (Mar. 13, 1986). 

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

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

• a commitment to move forward with Endangered Species Act 

protections for over 250 candidate species. 

3. History of Administrative Reforms in Past Administrations 

During the Reagan and George H.W. Bush administrations, sueand-settle problems were alleviated under policy set by Attorney 

General Meese in 1986. Under this policy, set forth in a memorandum commonly known as the ‘‘Meese Memo,’’ the Department 

of Justice generally refused to enter into consent decrees that: 

• converted into a mandatory duty the otherwise discretionary 

authority of an agency to propose, promulgate, revise or 

amend regulations; 

• committed the agency to expend funds that Congress had not 

appropriated and that had not been budgeted for the action 

in question, or committed an agency to seek a particular appropriation or budget authorization; 

• divested the agency of discretion committed to it by Congress 

or the Constitution whether such discretionary power was 

granted to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third 

parties; or 

• otherwise afforded relief that the court could not enter on its 

own authority upon a final judgment in the litigation. 

The Meese Memo also generally prevented the Department from 

entering into settlement agreements that: 

• interfered with the agency’s authority to revise, amend or 

promulgate regulations through the procedures set forth in 

the Administrative Procedure Act or other statutes prescribing rulemaking procedures for rulemakings that were 

the subject of the settlement agreement; 

• committed the agency to expend funds that Congress had not 

appropriated and that had not been budgeted for the action 

in question; or 

• provided a remedy for the agency’s failure to comply with the 

terms of the settlement agreement other than the revival of 

the suit resolved by the agreement, if the agreement committed the agency to exercise its discretion in a particular 

way and such discretionary power was committed to the 

agency by Congress or the Constitution to respond to changing circumstances, to make policy or managerial choices, or 

to protect the rights of third parties.3

The Meese Memo was grounded in separation-of-powers concerns. The Clinton administration reviewed the questions adVerDate Sep 11 2014 01:00 Jun 27, 2015 Jkt 049006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6601 E:\HR\OC\HR184.XXX HR184

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4Memorandum from Randolph D. Moss, Acting Assistant Attorney General for Office of Legal 

Policy, to Associate Attorney General Raymond C. Fisher, Authority of the United State to Enter 

Settlements Limiting the Future Exercise of Executive Branch Discretion (June 15, 1999). 5 As described on its website, ‘‘[t]he Environmental Council of the States (ECOS) is the national non-profit, non-partisan association of state and territorial environmental agency leaders. 

ECOS was established in December 1993 at a meeting of approximately 20 states in Phoenix, 

Arizona and is a 501(c)(6) non-profit organization.’’ See http://www.ecos.org/section/_aboutecos. 

‘‘The purpose of ECOS is to improve the capability of state environmental agencies and their 

leaders to protect and improve human health and the environment of the United States of 

America.’’ Id. ECOS’ membership currently includes 48 States, plus the District of Columbia and 

Commonwealth of Puerto Rico. 

dressed by the Memo and found that these policy concerns were 

sound. It did not, however, conclude that the Department was legally bound to respect the lines drawn in the Memo, and it substantially relaxed the Department’s policy in 1999. 4

4. Resolution of the Environmental Council of the States on Sueand-Settle Practices 

In light of the impacts that sue-and-settle consent decrees and 

settlement agreements often have on State agencies that co-regulate with the Federal Government (e.g., under the Clean Air Act), 

the Environmental Council for the States (ECOS) undertook a review of the concerns raised by sue-and-settle practices.5 This review culminated in ECOS Resolution 13–2, effective March 6, 2013. 

The resolution emphasized that States may be adversely affected 

by consent decrees or settlement agreements in sue-and-settle 

cases, may have information that would help the Federal Government defend or settle sue-and-settle cases, and may have interests 

that should be accounted for in the consideration of settlements in 

these cases. It also stressed that States are not always given notice 

of such suits, are often not parties to them, and are typically not 

afforded an opportunity to assist in the negotiation of relevant settlements. In light of these concerns, in Resolution 13–2, ECOS stated that it: 

• ‘‘Affirms that states have stand alone rights and responsibilities under Federal environmental laws, and that the state 

environmental agencies are co-regulators, co-funders and 

partners with U.S. EPA;’’ 

• ‘‘Urges U.S. EPA to devote the resources necessary to perform its nondiscretionary duties within the timeframes specified under Federal law, especially when required to take action on a state submission made under an independent right 

or responsibility (e.g., State Implementation Plans under the 

Clean Air Act).’’ 

• ‘‘Specifically calls on U.S. EPA to notify all affected state environmental agencies of citizen suits filed against U.S. EPA 

that allege a failure of the Federal agency to perform its 

nondiscretionary duties;’’ 

• ‘‘Believes that providing an opportunity for state environmental agencies to participate in the negotiation of citizen 

suit settlement agreements will often be necessary to protect 

the states’ role in implementing Federal environmental programs and for the administration of authorized or delegated 

environmental programs in the most effective and efficient 

manner;’’ 


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6The full, official text of Resolution 13–2 is available at http://www.ecos.org/section/policy/resolution and http://dl.dropboxusercontent.com/u/8005220/Resolutions/Resolution%2013-2%20 

Consent%20Decrees.pdf. 

• ‘‘Specifically calls on U.S. EPA to support the intervention of 

state environmental agencies in citizen suits and meaningful 

participation in the negotiation of citizen suit settlement 

agreements when the state agency has either made a submission to EPA related to the citizen suit or when the state 

agency either implements, or is likely to implement, the authorized or delegated environmental program at issue;’’ 

• ‘‘Believes that no settlement agreement should extend any 

power to U.S. EPA that it does not have in current law;’’ 

• ‘‘Believes that greater transparency of citizen suit settlement 

agreements is needed for the public to understand the impact of these agreements on the administration of environmental programs;’’ 

• ‘‘Affirms the need for the Federal Government to publish for 

public review all settlement agreements and consider public 

comments on any proposed settlement agreements;’’ and, 

• ‘‘Encourages EPA to respond in writing to all public comments received on proposed citizen suit settlement agreements, including consent decrees.’’ 6

5. Reforms Embodied in the Sunshine for Regulatory Decrees and 

Settlements Act 

Consistent with the record compiled by the Committee, the measures in H.R. 712 include provisions that: (1) require notices of intent to sue, complaints, consent decrees and settlement agreements, and attorneys’ fee agreements in lawsuits attempting to 

force regulatory action be more transparent to the public and regulated entities; (2) give to regulated entities, State, local and Tribal 

co-regulators, and the public more rights to participate in the shaping or judicial evaluation of sue-and-settle consent decrees and settlement agreements, whether through notice-and-comment procedures or rights to participate in litigation as intervenors or amici 

curiae; (3) provide courts with more complete records and tools to 

review proposed sue-and-settle consent decrees and settlement 

agreements; and, (4) codify key Meese Memo’s restrictions to constrain the authority of the Department of Justice and defendant 

agencies to agree to sue-and-settle consent decrees and settlements 

that present separation-of-powers concerns. 

II. PRIOR LEGISLATIVE HISTORY

The Sunshine for Regulatory Decrees and Settlements Act was 

first introduced as H.R. 3862 in the 112th Congress. H.R. 3862 was 

reported favorably by the Committee and passed the House on July 

26, 2012, as title III of H.R. 4078, the ‘‘Red Tape Reduction and 

Small Business Job Creation Act of 2012,’’ on a bipartisan vote 

(245–172). The bill was reintroduced in the 113th Congress as H.R. 

1493. H.R. 1493 was likewise reported favorably by the Committee. 

It passed the House twice with bipartisan support, first, on February 27, 2014, as title IV of H.R. 2804, the ‘‘Achieving Less Excess 


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7Sunshine for Regulatory Decrees and Settlements Act of 2013: Hearing before the Subcomm. 

on Regulatory Reform, Commercial and Antitrust of the H. Comm. on the Judiciary, Serial No. 

113–28, 113th Cong. (June 5, 2013), (hereinafter ‘‘Sunshine Hearing II’’). 8Federal Consent Decree Fairness Act, and the Sunshine for Regulatory Decrees and Settlements Act of 2012: Hearing before the Subcomm. on Courts, Commercial and Administrative Law 

of the H. Comm. on the Judiciary, Serial No. 112–83, 112th Cong. (Feb. 3, 2012), (hereinafter 

‘‘Sunshine Hearing I’’). 

in Regulation and Requiring Transparency Act of 2014’’ (236–179), 

and, second, on September 18, 2014, as title IV of Subdivision B 

of Division III of H.R. 4, the ‘‘Jobs for America Act’’ (253–163). 

Hearings 

The Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing on H.R. 712 on March 2, 2015. Witnesses 

at the hearing included: William L. Kovacs, Senior Vice President 

for Environment, Technology & Regulatory Affairs, the U.S. Chamber of Commerce; Patrick A. McLaughlin, Senior Research Fellow, 

Mercatus Center, George Mason University; Sam Batkins, Director 

of Regulatory Policy, American Action Forum; and, Amit Narang, 

Regulatory Policy Advocate, Public Citizen. Additional material 

was submitted by the Hon. Samuel Olens, Georgia Attorney General. 

The Subcommittee also held a hearing on the legislation during 

the 113th Congress (H.R. 1493),7 and the Subcommittee on Courts, 

Commercial and Administrative Law held a hearing on the legislation during the 112th Congress (H.R. 3862).8

Committee Consideration 

On March 24, 2015, the Committee met in open session and ordered the bill H.R. 712 favorably reported without amendment, by 

a rollcall vote of 20 to 11, a quorum being present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

712. 

1. Amendment #1, offered by Mr. Conyers. The Amendment exempts from requirements of H.R. 712 consent decrees and settlement agreements that pertain ‘‘to the protection of the privacy of 

Americans.’’ The amendment was defeated by a rollcall vote of 8 to 

16. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) .........................................................

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ...................................................... X 

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) .....................................................

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ........................................................... X 

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) .......................................................

Mr. Cicilline (RI) .......................................................

Mr. Peters (CA) .........................................................

Total ............................................................. 8 16 

2. Amendment #2, offered by Ms. Jackson Lee. The Amendment 

exempts from requirements of H.R. 712 consent decrees and settlement agreements that pertain ‘‘to a reduction in illness or death 

from exposure to toxic substances or hazardous waste in communities that are protected by Executive Order 12898.’’ The amendment was defeated by a rollcall vote of 9 to 17. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) .........................................................


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) .........................................................

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ...................................................... X 

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) ....................................................... X 

Mr. Buck (CO) ........................................................... X 

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) .......................................................

Mr. Cicilline (RI) .......................................................

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 9 17 

3. Amendment #4, offered by Mr. Hank Johnson. The Amendment exempts from requirements of H.R. 712 consent decrees and 

settlement agreements ‘‘that the Director of the Office of Management and Budget determines would result in net job creation.’’ The 

amendment was defeated by a rollcall vote of 10 to 20. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) ............................................................. X 


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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Mr. Forbes (VA) .........................................................

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ...................................................... X 

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) ....................................................... X 

Mr. Buck (CO) ........................................................... X 

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) ......................................................... X 

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) .......................................................

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 10 20 

4. Reporting H.R. 712. The bill limits the ability of defendant 

Federal regulators and pro-regulatory plaintiffs to abuse Federal 

consent decrees and settlement agreements to require new regulations, reorder regulatory priorities, bind the discretion of future Administrations, and limit the rights of regulated entities and State, 

local and Tribal co-regulators affected by actions taken under such 

decrees and settlements. Reported by a rollcall vote of 20 to 11. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .................................... X 


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) .........................................................

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ...................................................... X 

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Mr. Walters (CA) ....................................................... X 

Mr. Buck (CO) ........................................................... X 

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) ......................................................... X 

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) .......................................................

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 20 11 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 


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New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 712, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, April 16, 2015. 

Hon. BOB GOODLATTE, CHAIRMAN, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 712, the ‘‘Sunshine for 

Regulatory Decrees and Settlements Act of 2015.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Marin Burnett, who can 

be reached at 226–2860. 

Sincerely, 

KEITH HALL, DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 712—Sunshine for Regulatory Decrees and Settlements 

Act of 2015. 

As ordered reported by the House Committee on the Judiciary 

on March 24, 2015. 

H.R. 712 would modify the process used to develop consent decrees and settlement agreements that require ederal agencies to 

take specified regulatory actions. Under the bill, a summary of all 

such complaints against Federal agencies, the terms of consent decrees or settlement agreements, and the awards of attorneys’ fees 

would need to be published and accessible to the public in an electronic format. Under, the legislation any proposed consent decree 

or settlement agreement involving a Federal agency would be published in the Federal Register for 60 days for public comment prior 

to filing with the court. H.R. 712 also would require that settlement negotiations be conducted through mediation or alternative 

dispute resolution programs. 

Under the bill, agencies that submit certain consent decrees or 

settlement agreements to a court would be required to inform the 

court of the agency’s other outstanding mandatory duties under 


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current law and explain how the proposed consent decree or settlement agreement would further the public interest. The legislation 

would require the Attorney General (for cases litigated by the Department of Justice) or the head of a Federal agency that independently litigates a case to certify to the court his or her approval of 

certain types of settlement agreements and consent decrees. Finally, H.R. 712 also would require courts to more closely review 

consent decrees when agencies seek to modify them. 

Based on information provided by the Department of Justice and 

assuming the appropriation of the necessary funds, CBO estimates 

that implementing H.R. 712 would cost $7 million over the 2016– 

2020 period. Most of those additional costs would be incurred 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. 

Enacting H.R. 712 could affect direct spending; therefore, pay-asyou-go procedures apply. Under several statutes, successful plaintiffs are entitled to repayment of attorneys’ fees through the Treasury’s Judgment Fund. Such payments have averaged about $2 million in recent years. By lengthening the process of developing consent decrees, H.R. 712 could lead to an increase in the amount of 

reimbursable attorneys’ fees, thus increasing the amount of such 

payments from the Judgment Fund. However, the increased length 

of the process to finalize consent decrees and settlement agreements might deter some future lawsuits and decrease the number 

of future cases. On net, CBO estimates that enacting the legislation 

would increase annual direct spending by an insignificant amount. 

Enacting the bill would not affect revenues. 

H.R. 712 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. 

The CBO staff contact for this estimate is Marin Burnett. The estimate was approved by Theresa Gullo, Assistant Director of Budget Analysis. 

Duplication of Federal Programs 

No provision of H.R. 712 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

Disclosure of Directed Rule Makings 

The Committee estimates that H.R. 712 specifically directs to be 

completed no specific rule makings within the meaning of 5 U.S.C. 

551. 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 712, limits the 

ability of defendant Federal regulators and pro-regulatory plaintiffs 

to abuse Federal consent decrees and settlement agreements to reVerDate Sep 11 2014 01:00 Jun 27, 2015 Jkt 049006 PO 00000 Frm 00014 Fmt 6659 Sfmt 6601 E:\HR\OC\HR184.XXX HR184

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quire new regulations, reorder regulatory priorities, bind the discretion of future Administrations, and limit the rights of regulated 

entities and State, local and Tribal co-regulators affected by actions 

taken under such decrees and settlements. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 712 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(e), 9(f), or 9(g) of Rule XXI. 

Section-by-Section Analysis 

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short title. 

Section 1 sets forth the short title of the bill as the ‘‘Sunshine 

for Regulatory Decrees and Settlements Act of 2015.’’ 

Sec. 2. Definitions. 

Under the definitions in Section 2, the bill applies to specific 

classes of consent decrees and settlements, as follows: 

Subsec. 2(1): ‘‘Agency’’ and ‘‘Agency action’’ have the meanings 

given those terms under 5 U.S.C. § 551. 

Subsec. 2(2): ‘‘Covered civil action’’ means a civil action brought 

under chapter 7 of title 5, United States Code, or any other statute 

authorizing suit against the United States, to compel agency action 

alleged to be unlawfully withheld or unreasonably delayed that 

pertains to a regulatory action that affects the rights of private 

parties other than the plaintiff or the rights of state, local or tribal 

governments. 

Subsec. 2(3): ‘‘Covered consent decree’’ means any consent decree 

entered in a covered civil action and any consent decree that requires agency action that pertains to a regulatory action that affects the rights of private parties other than the plaintiff or the 

rights of state, local or tribal governments. 

Subsec. 2(4): ‘‘Covered consent decree or settlement agreement’’ 

means a covered consent decree and a covered settlement agreement. 

Subsec. 2(5): ‘‘Covered settlement agreement’’ means any settlement agreement entered in a covered civil action and any settlement agreement that requires agency action that pertains to a regulatory action that affects the rights of private parties other than 

the plaintiff or the rights of state, local or tribal governments. 

Sec. 3. Consent Decree and Settlement Reform. 

Section 3 of the bill sets forth the following requirements applicable to consent decrees and settlement agreements covered by the 

bill: 

Subsec. 3(a)(1)—notice of intent to sue and complaints in covered 

civil actions must be made publicly available, within 15 days after 

receipt of service of the notice of intent to sue or the complaint, respectively, through readily accessible means, including electronic 

means by the agency against which the action is filed. 


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Subsec. 3(a)(2)—the opportunity for affected parties to intervene 

in the litigation must conclude before covered consent decrees and 

settlement agreements may be proposed to the court. 

Subsec. 3(b)(1)—in considering motions to intervene, the court 

must adopt a rebuttable presumption that an intervenor-movant’s 

rights are not adequately represented by the plaintiff or defendant 

agency. 

Subsec. 3(b)(2)—in considering motions to intervene, the court 

must take due account of whether the movant is a state, local or 

tribal government that co-administers with the Federal Government the statutory provisions at issue in the litigation or administers state, local or tribal regulatory authority that would be preempted by the defendant agency’s discharge of the regulatory duty 

alleged in the complaint. 

Subsec. 3(c)(1)-(2)—if the court grants intervention, it must include the plaintiff, defendant agency and intervenor(s) in court-supervised settlement talks. Settlement negotiations are to occur in 

the court’s mediation or ADR program or to be presided over by a 

district judge other than the presiding judge, a magistrate judge, 

or a special master, as determined appropriate by the presiding 

judge. 

Subsec. 3(d)(1)—the defendant agency must publish in the Federal Register and online any proposed consent decree or settlement 

agreement for no fewer than 60 days of public comment before filing it with the court and must specify the statutory basis for the 

covered consent decree or settlement. The agency must also publish 

a description of the covered consent decree or settlement, including 

whether it provides for an award of attorney’s fees. 

Subsec. 3(d)(2)(A)—during the 60 day period, the defendant agency must allow public comment on any issue related to the matters 

alleged in the complaint in the applicable civil action or addressed 

or affected by the covered consent decree or settlement agreement. 

Subsec. 3(d)(2)(B)—the defendant agency must respond to any 

public comments received. 

Subsec. 3(d)(2)(C)—the defendant agency must submit to the 

court a summary of the public comments and agency responses 

when it moves for entry of the covered consent decree or dismissal 

of the case based on the settlement agreement, inform the court of 

the statutory basis for the proposed covered consent decree or settlement, certify an index of the administrative record for the notice 

and comment proceeding to the court, and make the administrative 

record fully accessible to the court. 

Subsec. 3(d)(2)(D)—the court must include in the record the 

index of the administrative record certified by the agency under 

subparagraph (C) and any documents listed in the index which any 

party or amicus curiae appearing before the court in the action 

submits to the court. 

Subsec. 3(d)(3)(A)—the defendant agency may, at its discretion, 

hold a public agency hearing on whether to enter into the proposed 

consent decree or settlement agreement. 

Subsec. 3(d)(3)(B)- If such a hearing is held, then a summary of 

the proceedings must be filed with the court, the hearing record 

must be certified to the court and included in the judicial record, 

and full access to the hearing record must be given to the court. 


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Subsec. 3(d)(4)—if a proposed consent decree or settlement agreement requires agency action by a date-certain, the defendant agency must inform the court of any uncompleted mandatory agency 

duties the covered consent decree or settlement agreement does not 

address, how the covered consent decree or settlement agreement 

would affect the discharge of those duties, and why the covered 

consent decree’s or settlement agreement’s effects on the order in 

which the agency discharges its mandatory duties is in the public 

interest. 

Subsec. 3(e)(1)-(2)—in the case of a covered consent decree, the 

Attorney General or, in cases litigated by agencies with independent litigating authority, the defendant agency head, must certify to the court that he or she approves of a proposed covered consent decree that includes terms that: (i) convert into a non-discretionary duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations; (ii) commit an agency to expend funds that have not been appropriated and that have not 

been budgeted for the regulatory action in question; (iii) commit an 

agency to seek a particular appropriation or budget authorization; 

(iv) divest an agency of discretion committed to the agency by statute or the Constitution of the United States, without regard to 

whether the discretion was granted to respond to changing circumstances, to make policy or managerial choices, or to protect the 

rights of third parties; or (v) otherwise affords relief that the court 

could not enter under its own authority upon a final judgment in 

the civil action. 

In the case of a covered settlement agreement, the Attorney General or, in cases litigated by agencies with independent litigating 

authority, the defendant agency head, must certify to the court 

that he or she approves of a proposed covered settlement agreement that provides a remedy for failure by the agency to comply 

with the terms of the covered settlement agreement other than the 

revival of the civil action resolved by the covered settlement agreement and that: (i) interferes with the authority of an agency to revise, amend, or issue rules under the procedures set forth in chapter 5 of title 5, United States Code, or any other statute or executive order prescribing rulemaking procedures for a rulemaking that 

is the subject of the covered settlement agreement; (ii) commits the 

agency to expend funds that have not been appropriated and that 

have not been budgeted for the regulatory action in question; or 

(iii) for a covered settlement agreement that commits the agency to 

exercise in a particular way discretion which was committed to the 

agency by statute or the Constitution of the United States to respond to changing circumstances, to make policy or managerial 

choices, or to protect the rights of third parties. 

Subsec. 3(f)(1)—when it considers motions to participate as amicus curiae in briefing over whether it should enter or approve a 

consent decree or settlement, the court must adopt a rebuttable 

presumption that favors amicus participation by those who filed 

public comments on the covered consent decree or settlement 

agreement during the agency’s notice and comment process. 

Subsec. 3(f)(2)(A)-(B)—the court must ensure that a proposed 

consent decree or settlement agreement allows sufficient time and 

procedure for the agency to comply with the Administrative Procedure Act and other applicable statutes that govern rulemaking, 


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1 5 U.S.C. §§ 551–59, 701–06, 1305, 3105, 3344, 5372, 7521 (2015). 

and, unless contrary to the public interest, any executive orders 

that govern rulemaking; 

Subsec. 3(g)—requires agencies to submit annual reports to Congress on the number, identity, and content of covered civil actions 

brought against and covered consent decrees and settlement agreements, including the statutory bases of the covered consent decrees 

and settlement agreements, and the decrees’ and settlements’ related complaints and attorneys’ fee awards. 

Sec. 4. Motions to Modify Consent Decrees. 

The bill establishes a de novo standard of review for the courts’ 

consideration of motions to modify covered consent decrees and settlement agreements due to agency obligations to fulfill other duties 

or changed facts and circumstances. 

Sec. 5. Effective Date. 

The bill becomes effective upon enactment and applies to any 

covered civil action filed or covered consent decree or settlement 

agreement proposed to a court on or after that date. 

Dissenting Views 

INTRODUCTION

H.R. 712, the ‘‘Sunshine for Regulatory Decrees and Settlements 

Act of 2015,’’ is yet another attempt to undermine the ability of 

Federal regulators to protect the health and safety of Americans. 

This ill-conceived bill imposes numerous new procedural burdens 

on agencies and courts intended to dissuade them from using consent decrees and settlement agreements to resolve enforcement actions filed to address agency noncompliance with the law. Among 

these burdens are the requirements that agencies solicit public 

comments on such proposed consent decrees and settlement agreements and that they respond to each public comment before submitting them to the court. The bill would also require courts to presume, subject to rebuttal, that almost any private third party is entitled to intervene in litigation concerning a regulatory action and 

would require that such third party be permitted to participate in 

settlement negotiations between the litigants. 

Proponents of this legislation argue that agencies and interest 

groups collude to ‘‘sue and settle’’ in order to avoid compliance with 

the rulemaking procedures set forth in the Administrative Procedure Act (APA),1 as well as other statutes. These unsubstantiated 

allegations, however, ignore long-established procedures that prevent Federal agencies from entering into consent decrees and settlement agreements that circumscribe these rulemaking procedures. H.R. 712 will effectively delay and possibly derail efforts by 

agencies to implement congressionally-mandated public health and 

environmental safeguards. In addition, the bill will encourage costly and wasteful litigation, the expense of which will be borne by 

American taxpayers. Another concern presented by H.R. 712 is that 

it overrides the judiciary’s traditional role in managing litigation 

and resolving disputes equitably and efficiently. 


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2Letter to Rep. Bob Goodlatte (R-VA), Chair, & Rep. John Conyers, Jr. (D-MI), Ranking Member, H. Committee on the Judiciary from the Coalition for Sensible Safeguards (Mar. 20, 2015) 

(on file with the H. Committee on the Judiciary, Democratic Staff). Current members of the Coalition include: AFL–CIO; Alliance for Justice; American Association of University Professors; 

American Federation of State, County and Municipal Employees; American Federation of Teachers Americans for Financial Reform; American Lung Association; American Rivers; American 

Values Campaign; American Sustainable Business Council; BlueGreen Alliance; Campaign for 

Contract Agriculture Reform; Center for Effective Government; Center for Digital Democracy; 

Center for Food Safety; Center for Foodborne Illness Research & Prevention; Center for Independent Living; Center for Science in the Public Interest; Citizens for Sludge-Free Land; Clean 

Air Watch; Clean Water Network; Consortium for Citizens with Disabilities; Consumer Federation of America; Consumers Union; CounterCorp; Cumberland Countians for Peace & Justice; 

Demos; Economic Policy Institute; Edmonds Institute; Environment America; Farmworker Justice; Free Press; Friends of the Earth; Green for All; Health Care for America Now; In the Public 

Interest; International Brotherhood of Teamsters; International Center for Technology Assessment; International Union, United Automobile, Aerospace & Agricultural Implement Workers 

of America (UAW); League of Conservation Voters; Los Angeles Alliance for a New Economy; 

Main Street Alliance; National Association of Consumer Advocates; National Center for Healthy 

Housing; National Consumers League; National Council for Occupational Safety and Health; 

National Employment Law Project; National Lawyers Guild, Louisville Chapter; National Women’s Health Network; National Women’s Law Center; Natural Resources Defense Council; Network for Environmental & Economic Responsibility of United Church of Christ; New Jersey 

Work Environment Council; New York Committee for Occupational Safety and Health; Oregon 

PeaceWorks; People for the American Way; Protect All Children’s Environment; Public Citizen; 

Reproductive Health Technologies Project; Safe Tables Our Priority; Sierra Club; Service Employees International Union; Southern Illinois Committee for Occupational Safety and Health; 

The Arc of the United States; The Partnership for Working Families; Trust for America’s 

Health; U.S. Chamber Watch; U.S. PIRG; Union of Concerned Scientists; Union Plus; United 

Food and Commercial Workers Union; United Steelworkers; Waterkeeper Alliance; and 

Worksafe. COALITION FOR SENSIBLE SAFEGUARDS—OUR MEMBERS, http://sensiblesafeguards.org/ 

our-members. 3 EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF MANAGEMENT AND BUDGET, Statement of 

Administration Policy on H.R. 4078—the Regulatory Freeze for Jobs Act of 2012 (July 23, 2012), 

http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr4078r_20120723.pdf. 4 Independent regulatory agencies, as opposed to executive branch agencies, are considered 

‘‘independent’’ because the President has limited authority to remove their leaders, who can only 

Continued 

In recognition of H.R. 712’s many serious flaws, the Coalition for 

Sensible Safeguards—an alliance of more than 150 consumer, 

labor, research, faith, and other public interest groups—strongly 

opposes this legislation, stating that it ‘‘would create a gauntlet of 

duplicative, burdensome, and time-consuming procedures that 

apply to settlements and decrees, once again slowing down the 

rulemaking process and preventing Federal law from being effectively implemented.’’ 2 The Administration, in the context of its veto 

threat regarding a substantially identical version of H.R. 712 considered in the 112th Congress, stated that the measure would 

‘‘spawn excessive regulatory litigation, and introduce redundant 

processes for litigation settlements.’’ 3

Accordingly, we strongly oppose H.R. 712 and respectfully dissent 

from the Committee’s views on this legislation. 

DESCRIPTION AND BACKGROUND

H.R. 712, the ‘‘Sunshine for Regulatory Decrees and Settlements 

Act of 2015,’’ is intended to address the perceived problem of collusion between public-interest plaintiffs and sympathetic Federal 

agencies in entering into consent decrees or settlement agreements 

that oblige the agency to take a particular action regarding a regulatory action, such as a rulemaking, often under a certain timeline. 

Proponents of the bill call this phenomenon ‘‘sue and settle.’’ 

A description of the bill’s substantive provisions follows. Section 

2 defines various terms. Of significance, section 2(1) imports the 

definitions of ‘‘agency’’ and ‘‘agency action’’ from the APA. As a result, H.R. 712 would apply to executive branch as well as independent agencies.4


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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. 712’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. 712 would apply not just to consent decrees in 

covered civil actions, but to matters that are not ‘‘covered civil actions.’’ 

Section 2(4) defines ‘‘covered consent decree or settlement agreement’’ as a covered consent decree and a covered settlement agreement. This definition’s purpose is unclear. 

Section 2(5) defines ‘‘covered settlement agreement’’ in a manner 

similar to the definition for ‘‘covered consent decree,’’ except that 

it applies to settlement agreements rather than consent decrees. As 

with ‘‘covered consent decrees,’’ this means that H.R. 712 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 


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party seeking intervention to demonstrate that its interests are not 

adequately represented by the parties per Federal Rule of Civil 

Procedure 24. 

With respect to motions to intervene by state, local, and tribal 

governments, section 3(b)(2) requires a court to ‘‘take due account 

of whether the movant’’ jointly administers with a defendant agency the statutory provisions giving rise to the underlying lawsuit or 

administers under state, local, or tribal law an authority that 

would be preempted by the regulatory action at issue in the underlying lawsuit. 

Section 3(c) outlines certain requirements regarding the negotiation to settle a covered civil action or to reach an agreement on a 

covered consent decree or settlement agreement. Section 3(c)(1) requires that such negotiations be conducted pursuant to the court’s 

alternative dispute resolution program or by a judge other than the 

presiding judge, a magistrate, or a special master, as the presiding 

judge may determine. Such settlement negotiations must also include any intervening party. 

Section 3(d) imposes a number of notice and comment procedures 

on agencies before they can file a consent decree or settlement 

agreement with a court. Section 3(d)(1) requires that an agency 

publish in the Federal Register and post online a proposed covered 

consent decree or settlement agreement and a description of its 

terms, including whether it provides for attorneys’ fees or costs and 

a basis for such award, at least 60 days before such consent decree 

or settlement agreement is filed with a court. 

Section 3(d)(2)(A) requires that the agency accept public comment on any issue in the underlying civil action or regarding the 

proposed consent decree or settlement agreement during that minimum 60-day period provided for in section 3(d)(1). Section 

3(d)(2)(B) requires the agency to respond to any public comments. 

Section 3(d)(2)(C) requires an agency to: (1) inform the court of the 

statutory basis for the proposed consent decree or settlement agreement and a summary of public comments that it has received; (2) 

submit to the court a certified index of the administrative record 

of the notice and comment proceeding; and (3) make the administrative record available to the court. Finally, section 3(d)(2)(D) requires the court to include in the record of the underlying civil action the administrative record submitted by an agency, as well as 

any documents listed in the index that any party or amicus curiae 

appearing before the court submits. 

Section 3(d)(3) allows an agency to hold a public hearing regarding whether to enter into a proposed covered consent decree or settlement agreement and outlines the procedures for holding such a 

hearing. 

Section 3(d)(4) requires an agency to present to the court certain 

explanations before moving to enter a covered consent decree or 

settlement agreement, or to dismiss the civil action based on the 

covered consent decree or settlement agreement, when the agency 

is required to take an action by a date certain pursuant to such decree or settlement. The required explanations must describe: (1) 

any required regulatory action that the agency has not taken and 

that the decree or settlement does not address; (2) 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 


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5 28 C.F.R. §§ 0.160–0.163 (2015). 

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 their use of consent decrees or settlement 

agreements are not used to circumvent the normal rulemaking 

process. These guidelines are already codified in the Code of Federal Regulations.5 Section 3(e)(1) provides that if a covered consent 

decree or settlement agreement containing 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; (3) commits the agency to expend non-appropriated and 

non-budgeted funds for the regulatory action at issue; or (4) 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. 

Section 3(f) imposes certain requirements on courts with respect 

to proposed covered consent decrees and settlement agreements. 

Section 3(f)(1) requires a court reviewing a proposed covered consent decree or settlement agreement to presumptively allow amicus 

participation by any party who filed public comments or participated in a public hearing regarding such proposed decree or settlement. Section 3(f)(2) prohibits a court from entering a consent decree unless an agency has sufficient time or procedures for the 

agency to comply with the APA’s rulemaking procedures or other 

statutes and executive orders that govern rulemaking. The court 

must also ‘‘ensure’’ that such provisions are included in the proposed settlement agreement. 

Section 3(g) requires agencies to submit annual reports to Congress that include the number, ‘‘identity,’’ and content of covered 

civil actions brought against the agency as well as covered consent 

decrees or settlement agreements that the agency has entered into. 

Additionally, the report must describe the statutory basis for each 

covered consent decree or settlement agreement entered into by the 


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6 Hearing on H.R. 348, the ‘‘Responsibly And Professionally Invigorating Development Act of 

2015’’ (RAPID Act); H.R. 712, the ‘‘Sunshine for Regulatory Decrees and Settlements Act of 2015’’; 

and, H.R. 1155, the ‘‘Searching for and Cutting Regulations that are Unnecessarily Burdensome 

Act of 2015’’ (SCRUB Act) Before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. 15–16 (2015), (statement of William 

Kovacs, Senior Vice President at the U.S. Chamber of Commerce) [hereinafter 2015 Hearing]; 

Hearing on H.R. 1493, ‘‘The Sunshine for Regulatory Decrees and Settlements Act of 2013,’’ 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: Hearings on H.R. 

3041 and H.R. 3862 Before the Subcomm. on Courts, Commercial and Administrative Law of 

the H. Comm. on the Judiciary, 112th Cong. (2012) [hereinafter 2012 Hearing] (statement of 

Roger R. Martella, Jr., Partner, Sidley Austin LLP) (‘‘[C]ertain groups increasingly are employing a ‘sue and settle’ approach to interactions with the government on regulatory issues.’’). 7 U.S. CHAMBER OF COMMERCE, Sue and Settle: Regulating Behind Closed Doors (May 2013), 

http://www.uschamber.com/reports/sue-and-settle-regulating-behind-closed-doors. 8 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO–15–34, ENVIRONMENTAL LITIGATION: IMPACT OF

DEADLINE SUITS ON EPA’S RULEMAKING IS LIMITED (Dec. 2014), http://www.gao.gov/assets/670/ 

667533.pdf [hereinafter GAO Report]. 

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. Section 5 further 

provides that the bill’s provisions apply to all covered consent decrees and covered settlement agreements proposed on or after the 

bill’s enactment date. 

CONCERNS WITH H.R. 712

I. H.R. 712 IS A SOLUTION IN SEARCH OF A PROBLEM

Proponents of H.R. 712 contend that this legislation is needed because Federal agencies 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 

proof in support of their contention. For example, at the hearing on 

H.R. 712, William Kovacs, a Senior Vice President at the U.S. 

Chamber of Commerce, testified that as ‘‘a result of the sue and 

settle process, the agency intentionally transforms itself from an 

independent actor that has discretion to perform its duties in a 

manner best serving the public interest, into an actor subservient 

to the binding terms of settlement agreements, including using its 

congressionally-appropriated funds to achieve the demands of specific outside groups.’’ 6 In support of his statement, he cited a 2013 

U.S. Chamber of Commerce study.7

Nevertheless, the independent and non-partisan Government Accountability Office (GAO) issued a report in December 2014 finding 

that ‘‘the effect of settlements in deadline suits on EPA’s rulemaking priorities is limited.’’ 8 This report, which focused on lawsuits involving environmental litigation, made several findings that 

refute the claims of H.R 712’s supporters. The GAO referred to socalled ‘‘sue and settle’’ litigation as ‘‘deadline suits’’ because they 

involve an agency’s non-performance of a nondiscretionary act, 

which is required by law, by a deadline also required by law. The 


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9 Id. at 3. 10 Id. 11 2015 Hearing, supra note 6, at 5 (statement of Amit Narang, Regulatory Policy Advocate, 

Public Citizen). 12 Id. at 5–6. 13GAO Report, supra note 8, at 7. 14 2015 Hearing, supra note 6, at 16 (statement of William Kovacs, Senior Vice President, 

Chamber of Commerce (‘‘These agreements often go beyond simply enforcing statutory deadlines 

and themselves become the legal authority for expansive regulatory action with no meaningful 

participation by affected parties or the public.’’). 15GAO Report, supra note 8, at 8. 16 Id. at 8, 12. 17 2015 Hearing, supra note 6, at 6–7. 18 2013 Hearing, supra note 6, at 115. 

GAO noted that certain laws allow for any party to compel the Environmental Protection Agency (EPA) through lawsuits to ‘‘take 

statutorily required actions’’ within a designated time frame if it 

has not done so already.9 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.10 And, as 

Amit Narang, a Regulatory Policy Advocate at Public Citizen, explained during the hearing on H.R. 712, 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.’’ 11 Mr. Narang further noted that by settling these suits, which merely enforce congressionally-mandated deadlines, agencies avoid wasting ‘‘agency, 

and by extension taxpayer, resources to defend against claims that 

the [agency] didn’t perform a legal requirement by a congressionally-imposed deadline when the parties who are bringing the suit 

only have to point to the calendar in order to prove their case.’’ 12

Indeed, as the GAO found, it is ‘‘very unlikely that the government 

will win’’ these lawsuits.13

Furthermore, the GAO found little evidence that deadline suits 

determine the substantive outcome of agency action, as alleged by 

proponents of H.R. 712.14 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.’’ 15 This finding 

confirms 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.16 In fact, as Mr. Narang clarified during the 

hearing on H.R. 712, ‘‘All of the settlements scrutinized by GAO 

pursuant to the EPA’s remaking authority under the Clean Air Act 

went through the public notice and comment process allowing all 

members of the public an opportunity to comment on the rule before it is finalized.’’ 17

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.’’ 18 In doing so, Mr. 

Walke explained that the report ignored EPA settlements with inVerDate Sep 11 2014 01:00 Jun 27, 2015 Jkt 049006 PO 00000 Frm 00024 Fmt 6659 Sfmt 6601 E:\HR\OC\HR184.XXX HR184

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19 Id. at 116. 20 Id. 21 2012 Hearing, supra note 6, at 106–107. 22 Id. at 66, 106. 

dustry parties or conservative groups and did not examine any 

EPA settlements during the Bush administration, during which the 

EPA also entered into settlements and consent decrees. He noted: 

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.19

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.20 It is also critical 

to note that, while proponents of H.R. 712—including the Chamber 

of Commerce—have focused their arguments in favor of the legislation on consent decrees and settlements involving the EPA, the bill 

itself is drafted in general language and would apply to consent decrees and settlement agreements involving all Federal agencies, 

not just the EPA. 

The testimony of John Cruden, a senior career official with the 

Justice Department’s Environment and Natural Resources Division 

(ENRD) for more than 2 decades during two Republican and two 

Democratic administrations, on a substantially identical bill from 

the 112th Congress further shows that the allegations ‘‘sue and settle’’ are unfounded. Mr. Cruden testified 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. In fact, he said 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.’’ 21 He also emphasized 

that agencies enter settlements only when they have failed to meet 

mandatory rulemaking obligations: 

In my long experience with the types of cases covered by 

[this legislation], EPA only agreed to settle when the agency had a mandatory duty to take an action, or to prepare 

a rule, based on specific legislation enacted by Congress. 

The settlement in those cases was straightforward: setting 

a date by which the agency would propose a draft rule 

and, quite often, a date for final action. Had there not been 

such a settlement, a Federal court would have issued an 

injunction setting the date for EPA to take action, since 

the agency’s legal responsibility was quite clear.22

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 pubVerDate Sep 11 2014 01:00 Jun 27, 2015 Jkt 049006 PO 00000 Frm 00025 Fmt 6659 Sfmt 6601 E:\HR\OC\HR184.XXX HR184

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23 Id. 24 2013 Hearing, supra note 6, at 154. 25 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-epaenviros-of-collus-69925.html 26 Id. 27 U.S. DEP’T OF LABOR BUREAU OF LABOR STATISTICS, Employer-Reported Workplace Injury 

and Illness Summary (Dec. 4, 2014), http://www.bls.gov/news.release/osh.nr0.htm. 

lic comment, and already allows interested parties their full range 

of substantive and procedural rights.23

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.24 The entire ‘‘sue and settle’’ allegation that undergirds H.R. 

712, 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. 712’s proponents to push for their repeal by Congress, rather than seek to disrupt the use of longstanding and uncontroversial mechanisms for resolving litigation. 

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.’’ 25 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.’’ 26

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. 712 

simply addresses a non-existent problem. 

II. BY UNDERMINING ENFORCEMENT OF MANDATORY RULEMAKING

DUTIES, H.R. 712 THREATENS PUBLIC HEALTH AND SAFETY

H.R. 712, 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 assigns these mandatory duties to agencies so that 

they will be, in fact, executed. In fact, Congress authorizes citizenlawsuit provisions in these statutes to ensure agency compliance 

with these statutory mandates. Therefore, when agencies fail to 

meet such mandatory duties, the harm that they were supposed to 

respond to remains unaddressed. 

Given the fact that many of these statutory mandates concern 

public health and safety, H.R. 712, by making it harder for citizens 

to compel agencies to meet their duties, puts public health and 

safety at risk. Health and safety concerns are not a mere abstraction. Regarding the issue of workplace safety alone, the Bureau of 

Labor Statistics reported that in 2013, ‘‘Slightly more than 3.0 million nonfatal workplace injuries and illnesses were reported by private industry employers.’’ 27 Additionally, an analysis by the National Institute for Occupational Safety and Health, the American 

Cancer Society, and Emory University’s School of Public Health esVerDate Sep 11 2014 01:00 Jun 27, 2015 Jkt 049006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\HR\OC\HR184.XXX HR184

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28Kyle 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). 29Tr. of Markup of H.R. 712, ‘‘The Sunshine for Regulatory Decrees and Settlements Act of 

2015,’’ by the H. Comm. on the Judiciary, 114th Cong. 199 (Mar. 24, 2015), http:// 

judiciary.house.gov/_cache/files/26476c04-a8fb-48a1-96cc-914ea82f001c/03.24.15-markuptranscript.pdf [hereinafter Markup Tr.] 30 Id. at 207. 31 Id. at 209. 32 Id. at 220. 33 Id. at 229. 34 Id. at 251. 35 28 C.F.R. §§ 0.160–0.163 (2015). 

timates 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).’’ 28 To the degree that H.R. 

712 makes it harder for citizens to force agencies to address these 

kinds of concerns, it endangers the American people. 

In response to these concerns presented by the bill, several 

Democratic Members offered amendments exempting certain categories of rules from H.R. 712. For example, Ranking Member John 

Conyers, Jr. (D-MI) offered an amendment that would have exempted from the bill any consent decree or settlement agreement 

concerning privacy protection.29 Notwithstanding the numerous 

privacy concerns expressed by Members of Congress on both sides 

of the aisle in connection with recent revelations of government 

surveillance activities and massive data-breaches, the amendment 

was defeated by a 8 to16 vote.30

Representative Sheila Jackson Lee (D-TX) offered an amendment 

that would have exempted from the bill any consent decree or settlement agreement concerning a proposed rule regarding environmental justice in low-income minority communities as defined by 

Executive Order 12898.31 This amendment failed by a vote of 9 to 

17 vote.32

Representative Henry C. ‘‘Hank’’ Johnson, Jr. (D-GA) offered an 

amendment that would have exempted from the bill any consent 

decree or settlement agreement concerning a proposed rule that the 

Office of Management and Budget determines would result in net 

job creation.33 Belying the repeated assertion by the Majority that 

regulations undermine job creation, this amendment failed by a 

vote of 11 to 20.34

III. H.R. 712 IS UNNECESSARY IN LIGHT OF THE JUSTICE DEPARTMENT’S

‘‘MEESE MEMO’’ AND OTHER EXISTING LEGAL MECHANISMS

H.R. 712’s proponents offer no evidence substantiating the existence of the so-called sue-and-settle problem. The likely reason is 

that the Meese Memo, codified in the Code of Federal Regulations,35 has for nearly 30 years specified a detailed process intended to address the potential abuse of consent decrees and settlement agreements used by Federal agencies. In 1986, then-United 

States Attorney General Edwin Meese issued a set of guidelines for 

the Justice Department and other government attorneys in entering into consent decrees and settlement agreements in response to 

the following concerns: 

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. 


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36Memorandum 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/accession060-89-1/Acc060-89-1-box9-memoAyer-LSWG-1986.pdf. 37 Id. 38 Id. 39 Id. 40 28 C.F.R. §§ 0.160–0.163 (2015). 41 2012 Hearing, supra note 6, at 111. 42See 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.’’). 43Fed. R. Civ. P. 24(a)(2). 

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

The Meese Memo identified three types of potentially problematic 

provisions. It directed departments and agencies to not enter into 

a consent decree that: (1) ‘‘converts into a mandatory duty the otherwise discretionary authority of the Secretary or agency administrator to revise, amend, or promulgate regulations;’’ (2) ‘‘commits 

the department or agency to expend funds that Congress has not 

appropriated and that have not been budgeted for the action in 

question, or commits a department or agency to seek a particular 

appropriation or budget authorization;’’ or (3) ‘‘divests the Secretary or agency administrator, or his successors, of discretion committed to him by Congress, or the Constitution where such discretionary power was granted to respond to changing circumstances, 

to make policy or managerial choices, or to protect the rights of 

third parties.’’ 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

H.R. 712’s proponents offer no evidence 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. 712’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

In addition to the Meese Memo, there are other mechanisms that 

also address the purported concerns of H.R. 712’s proponents. For 

example, parties whose interests may be affected by a consent decree or settlement may move to intervene in the case pursuant to 

Federal Rule of Civil Procedure 24, with the moving party bearing 

the burden of demonstrating that the parties to the case do not 

adequately represent the movant’s interest.43 Similarly, any rulemaking that is required pursuant to a consent decree or settlement 

agreement would still be subject to the APA’s notice and comment 

procedures, and affected parties who are not parties to the consent 


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44 5 U.S.C. § 553 (2015). 45 2015 Hearing, supra note 11; 2013 Hearing, supra note 6, at 117–118; 2012 Hearing, supra 

note 6, at 106–107. 46 H.R. 712, 114th Cong. § 3(b)(1) (2015). 47Fed. R. Civ. P. 24. 

decree or settlement agreement would have the opportunity to 

weigh in on any negative impacts of a proposed rule.44

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. 712 unnecessary. 

IV. H.R. 712 WILL FAVOR INDUSTRY INTERESTS AT

TAXPAYERS’ EXPENSE

In addition to being unnecessary, H.R. 712 threatens to impose 

significant financial costs on taxpayers in several ways. First, it 

provides numerous new opportunities for opponents of regulation to 

engage in dilatory tactics to delay resolution of pending litigation, 

further increasing costs for agencies and courts and, ultimately, 

taxpayers. Second, as many of the bill’s key terms are ambiguous, 

this will lead to confusion, litigation, and delay in any proposed 

consent decree or settlement negotiation. Third, H.R. 712 imposes 

numerous burdensome procedural requirements on agencies and 

courts regarding the use of consent decrees and settlements concerning regulatory action, which will further add to the costs borne 

by those entities. Fourth, the bill’s cumulative effect will be to discourage agencies from entering into consent decrees and settlement 

agreements when they might otherwise have done so, leading to 

unnecessarily protracted and costly litigation. 

A. H.R. 712 Opens the Door to Dilatory Tactics by Industry and 

Other Opponents of Agency Action 

Various provisions of H.R. 712 would give opponents of regulations opportunities to effectively stifle rulemaking by allowing them 

to slow down one of the processes by which agencies agree to abide 

by their congressionally-assigned duty to regulate. As 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.45 By opening opportunities for industry to 

slow down this process, H.R. 712 effectively makes it more expensive for agencies to do what Congress has mandated it to do. 

Section 3(b)(1) of the bill, for example, contains a nearly openended 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.46 This presumption upends current law, which places the burden of proof on 

a third party to show that its interests are not represented by the 

parties in the case.47 Effectively, this shift in the burden of proof 

on the question of the representation of third-party interests is a 

way to make it much easier for any entity not a party to the case 

to intervene in a case involving a consent decree or settlement 

agreement that seeks to compel agency action. 


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48 H.R. 712, 114th Cong., § 3(c) (2015). 49 Id. 50 Id. at §§ 3(d)(1), 3(d)(2)(A). 51 Id. at § 3(d)(2)(B). 52 Id. at § 3(f)(1). 

Hypothetically, under H.R. 712, if the regulatory action at issue 

involved the Clean Air Act, a person who breathes air would have 

the right to intervene in a consent decree or settlement agreement, 

as would any affected industry entity, or anyone else in the United 

States, subject to a refutable presumption that the parties to the 

litigation do not adequately represent the third party’s interest. If 

a court were to read section 3(b)(1) broadly, this provision could 

open the door to almost anyone intervening in a covered civil action 

under the bill. 

Section 3(c) of H.R. 712 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.48 Such discussions must include the plaintiff, defendant agency, and any third party intervenors.49 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. 

H.R. 712 provides other opportunities for industry to engage in 

dilatory tactics in sections 3(d)(1) and 3(d)(2)(A), which require an 

agency to publish any proposed consent decree or settlement agreement and to allow at least 60 days for public comments.50 The 

agency must then respond to every comment pursuant to section 

3(d)(2)(B).51 Under these provisions, any industry could potentially 

overwhelm an agency with comments in an effort to stall resolution 

of the underlying dispute, which, as noted, usually concern enforcement of rulemaking deadlines. 

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.52 This provision would further allow industry and other regulatory opponents to delay resolution of the underlying dispute between the plaintiff and the defendant agency. 

B. H.R. 712 Uses Ambiguous Language in Many Key Provisions, 

Opening the Door to Confusion, Litigation, and Delay in Resolving Disputes 

Many of H.R. 712’s key provisions are written in ambiguous, illdefined 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 


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53 Id. at § 2(2). 54 Id. 55 Id. at § 3(d)(4). 

is ‘‘unlawfully withholding or unreasonably delaying agency action 

relating to a regulatory action.’’ 53 It is unclear what the distinction 

is between ‘‘agency action’’ and ‘‘regulatory action,’’ what the scope 

of the phrase ‘‘relating to’’ is, or what ‘‘unlawfully withholding’’ and 

‘‘unreasonably delaying’’ mean, opening the door to litigation over 

the meaning of these threshold terms. 

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.54 As noted above, 

without a definition, almost any third party could, in theory, intervene in a consent decree or settlement discussion under this bill. 

As with other ambiguous language in H.R. 712, confusion and a 

lack of clarity over the meaning of these terms will lead to litigation. 

Finally, H.R. 712’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.55 The requirement, outlined in section 3(d)(4), 

has no definition or clarification of what ‘‘affect the discharge of 

those duties’’ would mean. 

C. H.R. 712 Imposes Several Burdensome Procedural Requirements 

on Agencies and Courts 

H.R. 712 imposes several new procedural requirements on agencies and courts that are designed to slow down the resolution of 

litigation over an agency’s failure to meet a statutory deadline or 

other regulatory obligation. These include: (1) a limitation on when 

a party may file a motion for a consent decree or to dismiss the 

case pursuant to a settlement agreement; (2) a mandate requiring 

the court to presume that the interests of a third party seeking to 

intervene in settlement discussions is not adequately represented; 

(3) a requirement that the court refer consent decree or settlement 

discussions to mediation or another alternative dispute resolution 

mechanism; (4) a requirement that the defendant agency publish a 

proposed consent decree or settlement agreement; (5) a requirement that agencies accept public comments on proposed consent decrees or settlements to which the agency must respond; (6) a requirement that an agency submit to a court explanations of vaguely defined factors underlying a proposed consent decree or settlement agreement whenever such decree or agreement requires agency action by a date certain; and (7) a requirement that a court to 

allow amicus participation in any motion to enter a consent decree 

or settlement agreement by any party that submitted public comments on such decree or agreement. 

Implementing any one of these new requirements, much less all 

of them, drains agency and judicial time and resources without 

adding to the fairness of any consent decree or settlement agreement. In times when Federal agencies and the court system are 

facing budgetary shortfalls, we should be crafting legislation to 

streamline and improve efficiencies for all. Unfortunately, H.R. 712 

will have the opposite result. 


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56 Congressional Budget Office, Cost Estimate for H.R. 1493, the Sunshine for Regulatory Decrees and Settlements Act of 2013, at 1 (Sept. 20, 2013), available at http://cbo.gov/publication/ 

44606. 57See 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.’’). 58 2012 Hearing, supra note 6, at 108. 

D. The Cumulative Effect of H.R. 712’s Provisions Will Be to Discourage the Use of Consent Decrees and Settlement Agreements, 

Forcing Expensive and Time-Consuming Litigation 

By facilitating dilatory conduct by anti-regulatory forces, using 

vague language in key provisions, and imposing numerous and burdensome procedural requirements on agencies and courts with respect to consideration of consent decrees and settlement agreements, H.R. 712’s cumulative effect will be to discourage the use 

of consent decrees and settlement agreements and thereby delay or 

eliminate early resolution of litigation against the government. 

This legislation will ultimately increase costs for taxpayers, who 

must pay for the protracted litigation associated with fewer consent 

decrees and settlement agreements. Indeed, the Congressional 

Budget Office noted that a previous version of H.R. 712 would impose millions of dollars in costs, ‘‘[p]rimarily because litigation involving consent decrees and settlement agreements would probably 

take longer under the bill and agencies would face additional administrative, including new requirements to report more information to the public.’’ 56

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.57 H.R. 

712 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: 

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.58

By making consent decrees and settlement agreements more difficult and costly to enter into, H.R. 712 will generate increased litigation costs and expensive judgments, which will ultimately be 

passed along to the taxpayer. 


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59Fed. R. Civ. P. 60(b)(5). 

V. H.R. 712 Subverts the Federal Rules of Civil Procedure and Judicial Discretion 

H.R. 712 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 can intervene in a 

pending case, placing the burden on the third party to show that 

its interests are not adequately represented by the plaintiff and the 

defendant. H.R. 712 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. 712 tampers with the process for modifying consent 

decrees under Federal Rule of Civil Procedure 60(b)(5). Under that 

provision, a court can modify a consent decree when ‘‘the judgment 

has been satisfied, released, or discharged; it is based on an earlier 

judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.’’ 59 Section 4 of H.R. 712 attempts to 

skew the result of such a motion to modify by specifying that when 

a defendant agency moves to modify a previously entered consent 

decree, the court ‘‘shall’’ review the motion and consent decree de 

novo whenever the motion to modify is based on the grounds that 

the decree is ‘‘no longer fully in the public interest due to the agency’s obligations to fulfill other duties or due to changed facts and 

circumstances.’’ This provision clearly is intended to result in modification or revocation of an existing consent decree when a government agency moves to do so, regardless of the equities involved, 

which Rule 60 permits a court to consider. 

Beyond the specific changes that H.R. 712 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. 712 requires courts to make certain presumptions (subject to rebuttal) on other similar litigation management issues such 

as when to permit amicus participation by third parties, when to 

enter a consent decree or settlement agreement, and when to refer 

matters to mediation, other alternative dispute resolution, a special 

master, or another judge. In short, H.R. 712 seeks to dictate courtroom management issues that have traditionally been left to judges 

to decide. 

VI. The Bill’s Open-Ended Intervention Provision Could Undo Critical Civil Rights Protections 

Section 3(b)(1) of the bill would create a rebuttable presumption 

that the interests of ‘‘a person who alleges that the agency action 

in dispute would affect the person . . . would not be represented 

adequately by the existing parties to the action,’’ and then require 

that such party must be included in ‘‘[e]fforts to settle a covered 

civil action or otherwise reach an agreement on a covered consent 

decrees or settlement agreement.’’ In effect, this rebuttable presumption would reverse the burden for intervention currently in 


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60 Rule 24 of the Federal Rules of Civil Procedure states, in its pertinent part, 

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

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

(2) claims an interest relating to the property or transaction that is the subject of the 

action, and is so situated that disposing of the action may as a practical matter impair 

or impede the movant’s ability to protect its interest, unless existing parties adequately 

represent that interest. 

(b) Permissive Intervention. 

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

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

(B) has a claim or defense that shares with the main action a common question of law 

or fact. 61Markup Tr., supra note 28, at 222. 62 Id. 63 Id. at 46. 64See, e.g., Monsanto Co. v. Geerston Seed Farms, 130 S.Ct. 2743 (2010); Lujan v. Defenders 

of Wildlife, 504 U.S. 555 (1992); Allen v. Wright, 468 U.S. 737 (1984); Valley Forge Christian 

College v. Americans United, 454 U.S. 464 (1982); Ass’n of Data Processing Service Org. v. 

Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). 65 Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982). 66 Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 151 (1970). 

Rule 24 of the Federal Rules of Civil Procedure from the party 

seeking to intervene in the case to the parties themselves.60

In response to this concern, Representative Steve Cohen (D-TN) 

offered an amendment that would have excluded from the coverage 

of the bill ‘‘a covered consent decree or settlement agreement that 

prevents or is intended to prevent discrimination based on race, religion, national origin, or any other protected category.’’ 61 Speaking 

in support of his amendment, Representative Cohen noted that 

H.R. 712 would ‘‘take out consent decrees that are settlements 

meant to cover discrimination or intended to prevent discrimination based on race, religion, national origin, or any other protected 

category.’’ 62

Urging his colleagues to reject this amendment, Representative 

Doug Collins (R-GA) contended that current standing requirements 

would continue to act as a limit on intervention.63 Standing, however, affords weak limits on the bill’s intervention right. The U.S. 

Supreme Court’s guidance on this issue has evolved over the years 

and one that it has revisited on numerous occasions.64 The Court 

itself has acknowledged that the ‘‘concept of ‘Art. III standing’ has 

not been defined with complete consistency in all of the various 

cases decided by this Court . . . [and] this very fact is probably 

proof that the concept cannot be reduced to a one-sentence or oneparagraph definition.’’ 65 Similarly, the Court in another case observed that ‘‘[g]eneralizations about standing to sue are largely 

worthless as such.’’ 66

Standing doctrines do not offer bright-line rules regarding when 

a party may intervene in a pending case. Resolving questions about 

a party’s standing will result in extensive litigation. To the extent 

that H.R. 712 further opens the door for any private party to claim 

the right to intervene, it would have the effect of delaying any settlement for years even if the party claiming intervenor status ultimately is unable to establish proper standing. 

CONCLUSION

Like all the anti-regulatory proposals this Committee has considered in this Congress, H.R. 712 is yet another solution in search 

of a problem. Proponents have failed to present any evidence to 


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support their claim that agencies ‘‘collude’’ with plaintiffs to enter 

consent decrees or settlement agreements. Nevertheless, this legislation will impose burdensome procedural requirements on agencies and courts that will hamstring, or outright discourage, the use 

of consent decrees and settlements. As a result, well-funded third 

party interests will have 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. 712 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. 712 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. 712 undermines existing 

civil procedure rules and overrides judicial discretion. 

For these reasons, we respectfully dissent and urge our colleagues to oppose H.R. 712. 

MR. CONYERS, JR. 

MR. NADLER. 

MS. JACKSON LEE. 

MR. COHEN. 

MR. JOHNSON, JR. 

MS. CHU. 

MR. DEUTCH. 

MR. GUTIERREZ. 

MS. BASS. 

MR. RICHMOND. 

MS. DELBENE. 

MR. JEFFRIES. 

MR. CICILLINE. 

Æ 


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