II 

115TH CONGRESS 

1ST SESSION S. 119 

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. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 12, 2017 

Mr. GRASSLEY (for himself, Mr. BLUNT, Mr. INHOFE, Mr. CORNYN, Mr. 

CRUZ, Mrs. FISCHER, Mr. RUBIO, Mr. FLAKE, Mr. HATCH, and Mr. 

TILLIS) introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Sunshine for Regu5 latory Decrees and Settlements Act of 2017’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 


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1 (1) the terms ‘‘agency’’ and ‘‘agency action’’ 

2 have the meanings given those terms under section 

3 551 of title 5, United States Code; 

4 (2) the term ‘‘covered civil action’’ means a civil 

5 action— 

6 (A) seeking to compel agency action; 

7 (B) alleging that the agency is unlawfully 

8 withholding or unreasonably delaying an agency 

9 action relating to a regulatory action that would 

10 affect the rights of— 

11 (i) private persons other than the per12 son bringing the action; or 

13 (ii) a State, local, or tribal govern14 ment; and 

15 (C) brought under— 

16 (i) chapter 7 of title 5, United States 

17 Code; or 

18 (ii) any other statute authorizing such 

19 an action; 

20 (3) the term ‘‘covered consent decree’’ means— 

21 (A) a consent decree entered into in a cov22 ered civil action; and 

23 (B) any other consent decree that requires 

24 agency action relating to a regulatory action 

25 that affects the rights of— 


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1 (i) private persons other than the per2 son bringing the action; or 

3 (ii) a State, local, or tribal govern4 ment; 

5 (4) the term ‘‘covered consent decree or settle6 ment agreement’’ means a covered consent decree 

7 and a covered settlement agreement; and 

8 (5) the term ‘‘covered settlement agreement’’ 

9 means— 

10 (A) a settlement agreement entered into in 

11 a covered civil action; and 

12 (B) any other settlement agreement that 

13 requires agency action relating to a regulatory 

14 action that affects the rights of— 

15 (i) private persons other than the per16 son bringing the action; or 

17 (ii) a State, local, or tribal govern18 ment. 

19 SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM. 

20 (a) PLEADINGS AND PRELIMINARY MATTERS.— 

21 (1) IN GENERAL.—In any covered civil action, 

22 the agency against which the covered civil action is 

23 brought shall publish the notice of intent to sue and 

24 the complaint in a readily accessible manner, includ25 ing by making the notice of intent to sue and the 


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1 complaint available online not later than 15 days 

2 after receiving service of the notice of intent to sue 

3 or complaint, respectively. 

4 (2) ENTRY OF A COVERED CONSENT DECREE

5 OR SETTLEMENT AGREEMENT.—A party may not 

6 make a motion for entry of a covered consent decree 

7 or to dismiss a civil action pursuant to a covered set8 tlement agreement until after the end of proceedings 

9 in accordance with paragraph (1) and subpara10 graphs (A) and (B) of paragraph (2) of subsection 

11 (d) or subsection (d)(3)(A), whichever is later. 

12 (b) INTERVENTION.— 

13 (1) REBUTTABLE PRESUMPTION.—In consid14 ering a motion to intervene in a covered civil action 

15 or a civil action in which a covered consent decree 

16 or settlement agreement has been proposed that is 

17 filed by a person who alleges that the agency action 

18 in dispute would affect the person, the court shall 

19 presume, subject to rebuttal, that the interests of 

20 the person would not be represented adequately by 

21 the existing parties to the action. 

22 (2) STATE, LOCAL, AND TRIBAL GOVERN23 MENTS.—In considering a motion to intervene in a 

24 covered civil action or a civil action in which a cov25 ered consent decree or settlement agreement has 


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1 been proposed that is filed by a State, local, or tribal 

2 government, the court shall take due account of 

3 whether the movant— 

4 (A) administers jointly with an agency that 

5 is a defendant in the action the statutory provi6 sions that give rise to the regulatory action to 

7 which the action relates; or 

8 (B) administers an authority under State, 

9 local, or tribal law that would be preempted by 

10 the regulatory action to which the action re11 lates. 

12 (c) SETTLEMENT NEGOTIATIONS.—Efforts to settle 

13 a covered civil action or otherwise reach an agreement on 

14 a covered consent decree or settlement agreement shall— 

15 (1) be conducted pursuant to the mediation or 

16 alternative dispute resolution program of the court 

17 or by a district judge other than the presiding judge, 

18 magistrate judge, or special master, as determined 

19 appropriate by the presiding judge; and 

20 (2) include any party that intervenes in the ac21 tion. 

22 (d) PUBLICATION OF AND COMMENT ON COVERED

23 CONSENT DECREES OR SETTLEMENT AGREEMENTS.— 

24 (1) IN GENERAL.—Not later than 60 days be25 fore the date on which a covered consent decree or 


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1 settlement agreement is filed with a court, the agen2 cy seeking to enter the covered consent decree or 

3 settlement agreement shall publish in the Federal 

4 Register and online— 

5 (A) the proposed covered consent decree or 

6 settlement agreement; and 

7 (B) a statement providing— 

8 (i) the statutory basis for the covered 

9 consent decree or settlement agreement; 

10 and 

11 (ii) a description of the terms of the 

12 covered consent decree or settlement agree13 ment, including whether it provides for the 

14 award of attorneys’ fees or costs and, if so, 

15 the basis for including the award. 

16 (2) PUBLIC COMMENT.— 

17 (A) IN GENERAL.—An agency seeking to 

18 enter a covered consent decree or settlement 

19 agreement shall accept public comment during 

20 the period described in paragraph (1) on any 

21 issue relating to the matters alleged in the com22 plaint in the applicable civil action or addressed 

23 or affected by the proposed covered consent de24 cree or settlement agreement. 


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1 (B) RESPONSE TO COMMENTS.—An agency 

2 shall respond to any comment received under 

3 subparagraph (A). 

4 (C) SUBMISSIONS TO COURT.—When mov5 ing that the court enter a proposed covered con6 sent decree or settlement agreement or for dis7 missal pursuant to a proposed covered consent 

8 decree or settlement agreement, an agency 

9 shall— 

10 (i) inform the court of the statutory 

11 basis for the proposed covered consent de12 cree or settlement agreement and its 

13 terms; 

14 (ii) submit to the court a summary of 

15 the comments received under subparagraph 

16 (A) and the response of the agency to the 

17 comments; 

18 (iii) submit to the court a certified 

19 index of the administrative record of the 

20 notice and comment proceeding; and 

21 (iv) make the administrative record 

22 described in clause (iii) fully accessible to 

23 the court. 

24 (D) INCLUSION IN RECORD.—The court 

25 shall include in the court record for a civil acVerDate Sep 11 2014 21:45 Jan 25, 2017 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S119.IS S119

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1 tion the certified index of the administrative 

2 record submitted by an agency under subpara3 graph (C)(iii) and any documents listed in the 

4 index which any party or amicus curiae appear5 ing before the court in the action submits to the 

6 court. 

7 (3) PUBLIC HEARINGS PERMITTED.— 

8 (A) IN GENERAL.—After providing notice 

9 in the Federal Register and online, an agency 

10 may hold a public hearing regarding whether to 

11 enter into a proposed covered consent decree or 

12 settlement agreement. 

13 (B) RECORD.—If an agency holds a public 

14 hearing under subparagraph (A)— 

15 (i) the agency shall— 

16 (I) submit to the court a sum17 mary of the proceedings; 

18 (II) submit to the court a cer19 tified index of the hearing record; and 

20 (III) provide access to the hear21 ing record to the court; and 

22 (ii) the full hearing record shall be in23 cluded in the court record. 

24 (4) MANDATORY DEADLINES.—If a proposed 

25 covered consent decree or settlement agreement reVerDate Sep 11 2014 21:45 Jan 25, 2017 Jkt 069200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S119.IS S119

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1 quires an agency action by a date certain, the agen2 cy shall, when moving for entry of the covered con3 sent decree or settlement agreement or dismissal 

4 based on the covered consent decree or settlement 

5 agreement, inform the court of— 

6 (A) any required regulatory action the 

7 agency has not taken that the covered consent 

8 decree or settlement agreement does not ad9 dress; 

10 (B) how the covered consent decree or set11 tlement agreement, if approved, would affect 

12 the discharge of the duties described in sub13 paragraph (A); and 

14 (C) why the effects of the covered consent 

15 decree or settlement agreement on the manner 

16 in which the agency discharges its duties is in 

17 the public interest. 

18 (e) SUBMISSION BY THE GOVERNMENT.— 

19 (1) IN GENERAL.—For any proposed covered 

20 consent decree or settlement agreement that con21 tains a term described in paragraph (2), the Attor22 ney General or, if the matter is being litigated inde23 pendently by an agency, the head of the agency shall 

24 submit to the court a certification that the Attorney 

25 General or head of the agency approves the proposed 


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1 covered consent decree or settlement agreement. The 

2 Attorney General or head of the agency shall person3 ally sign any certification submitted under this para4 graph. 

5 (2) TERMS.—A term described in this para6 graph is— 

7 (A) in the case of a covered consent decree, 

8 a term that— 

9 (i) converts into a nondiscretionary 

10 duty a discretionary authority of an agency 

11 to propose, promulgate, revise, or amend 

12 regulations; 

13 (ii) commits an agency to expend 

14 funds that have not been appropriated and 

15 that have not been budgeted for the regu16 latory action in question; 

17 (iii) commits an agency to seek a par18 ticular appropriation or budget authoriza19 tion; 

20 (iv) divests an agency of discretion 

21 committed to the agency by statute or the 

22 Constitution of the United States, without 

23 regard to whether the discretion was 

24 granted to respond to changing cir25 cumstances, to make policy or managerial 


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1 choices, or to protect the rights of third 

2 parties; or 

3 (v) otherwise affords relief that the 

4 court could not enter under its own au5 thority upon a final judgment in the civil 

6 action; or 

7 (B) in the case of a covered settlement 

8 agreement, a term— 

9 (i) that provides a remedy for a fail10 ure by the agency to comply with the 

11 terms of the covered settlement agreement 

12 other than the revival of the civil action re13 solved by the covered settlement agree14 ment; and 

15 (ii) that— 

16 (I) interferes with the authority 

17 of an agency to revise, amend, or 

18 issue rules under the procedures set 

19 forth in chapter 5 of title 5, United 

20 States Code, or any other statute or 

21 Executive order prescribing rule22 making procedures for a rulemaking 

23 that is the subject of the covered set24 tlement agreement; 


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1 (II) commits the agency to ex2 pend funds that have not been appro3 priated and that have not been budg4 eted for the regulatory action in ques5 tion; or 

6 (III) for such a covered settle7 ment agreement that commits the 

8 agency to exercise in a particular way 

9 discretion which was committed to the 

10 agency by statute or the Constitution 

11 of the United States to respond to 

12 changing circumstances, to make pol13 icy or managerial choices, or to pro14 tect the rights of third parties. 

15 (f) REVIEW BY COURT.— 

16 (1) AMICUS.—A court considering a proposed 

17 covered consent decree or settlement agreement shall 

18 presume, subject to rebuttal, that it is proper to 

19 allow amicus participation relating to the covered 

20 consent decree or settlement agreement by any per21 son who filed public comments or participated in a 

22 public hearing on the covered consent decree or set23 tlement agreement under paragraph (2) or (3) of 

24 subsection (d). 

25 (2) REVIEW OF DEADLINES.— 


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1 (A) PROPOSED COVERED CONSENT DE2 CREES.—For a proposed covered consent de3 cree, a court shall not approve the covered con4 sent decree unless the proposed covered consent 

5 decree allows sufficient time and incorporates 

6 adequate procedures for the agency to comply 

7 with chapter 5 of title 5, United States Code, 

8 and other applicable statutes that govern rule9 making and, unless contrary to the public inter10 est, the provisions of any Executive order that 

11 governs rulemaking. 

12 (B) PROPOSED COVERED SETTLEMENT

13 AGREEMENTS.—For a proposed covered settle14 ment agreement, a court shall ensure that the 

15 covered settlement agreement allows sufficient 

16 time and incorporates adequate procedures for 

17 the agency to comply with chapter 5 of title 5, 

18 United States Code, and other applicable stat19 utes that govern rulemaking and, unless con20 trary to the public interest, the provisions of 

21 any Executive order that governs rulemaking. 

22 (g) ANNUAL REPORTS.—Each agency shall submit to 

23 Congress an annual report that, for the year covered by 

24 the report, includes— 


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1 (1) the number, identity, and content of covered 

2 civil actions brought against and covered consent de3 crees or settlement agreements entered against or 

4 into by the agency; and 

5 (2) a description of the statutory basis for— 

6 (A) each covered consent decree or settle7 ment agreement entered against or into by the 

8 agency; and 

9 (B) any award of attorneys fees or costs in 

10 a civil action resolved by a covered consent de11 cree or settlement agreement entered against or 

12 into by the agency. 

13 SEC. 4. MOTIONS TO MODIFY CONSENT DECREES. 

14 If an agency moves a court to modify a covered con15 sent decree or settlement agreement and the basis of the 

16 motion is that the terms of the covered consent decree or 

17 settlement agreement are no longer fully in the public in18 terest due to the obligations of the agency to fulfill other 

19 duties or due to changed facts and circumstances, the 

20 court shall review the motion and the covered consent de21 cree or settlement agreement de novo. 

22 SEC. 5. EFFECTIVE DATE. 

23 This Act shall apply to— 

24 (1) any covered civil action filed on or after the 

25 date of enactment of this Act; and 


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1 (2) any covered consent decree or settlement 

2 agreement proposed to a court on or after the date 

3 of enactment of this Act. 

Æ 


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