29–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 113–230 

SUNSHINE FOR REGULATORY DECREES AND 

SETTLEMENTS ACT OF 2013 

SEPTEMBER 26, 2013.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. GOODLATTE, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 1493] 

[Including cost estimate of the Congressional Budget Office] 

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

(H.R. 1493) to impose certain limitations on consent decrees and 

settlement agreements by agencies that require the agencies to 

take regulatory action in accordance with the terms thereof, and 

for other purposes, having considered the same, report favorably 

thereon without amendment and recommend that the bill do pass. 

CONTENTS 

Page 

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

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

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

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

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

Committee Oversight Findings ............................................................................... 14 

New Budget Authority and Tax Expenditures ...................................................... 15 

Congressional Budget Office Cost Estimate .......................................................... 15 

Duplication of Federal Programs ............................................................................ 16 

Disclosure of Directed Rule Makings ..................................................................... 16 

Performance Goals and Objectives ......................................................................... 16 

Advisory on Earmarks ............................................................................................. 17 

Section-by-Section Analysis .................................................................................... 17 

Dissenting Views ..................................................................................................... 21 


emcdonald on DSK67QTVN1PROD with HEARING
2 

Purpose and Summary 

H.R. 1493, the ‘‘Sunshine for Regulatory Decrees and Settlements Act of 2013,’’ limits the ability of defendant Federal regulators and pro-regulatory plaintiffs to abuse Federal consent decrees and settlement agreements to require new regulations, reorder regulatory priorities, bind the discretion of future administrations, and limit the rights of regulated entities and State, local and 

Tribal co-regulators affected by actions taken under such decrees 

and settlements. The bill accomplishes this by improving transparency, increasing participation by affected regulated entities and 

co-regulators in the negotiation and consideration of decrees and 

settlements, strengthening public comment on and judicial review 

of proposed decrees and settlements, and assuring review by the 

Attorney General and agency heads of the types of proposed decrees and settlements that would most intrusively involve the Judiciary in the administration of agencies’ regulatory duties. 

Background and Need for the Legislation 

I. ABUSE OF REGULATORY CONSENT DECREES AND SETTLEMENT

AGREEMENTS AND THE RISE OF ‘‘SUE-AND-SETTLE’’ LITIGATION

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

agreements increasingly have been used in Federal litigation to 

bind executive discretion under judicial authority, including to bind 

executive discretion over successive administrations. This trend has 

arisen in litigation against both Federal defendants and State and 

local defendants. In litigation against Federal defendants, the problem has been concentrated in litigation against regulatory agencies 

over allegations that agency action has been unlawfully withheld 

or unreasonably delayed at the Federal level. 

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

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

art form, commonly known as ‘‘sue-and-settle’’ litigation. In 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 decrees or settlements to the courts contemporaneously with the filVerDate Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6601 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
3 

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). 

ing 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 current example of that potential was offered by the set 

of rulemakings required under the Dodd-Frank Wall Street Reform 

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

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

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

implements the priorities of pro-regulatory advocates, limits the 

discretion of succeeding administrations, and takes place under 

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

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

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

Under the Obama administration, this phenomenon has become 

particularly troubling. Not only has the Administration generally 

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

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


emcdonald on DSK67QTVN1PROD with HEARING
4 

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 has entered into more than 70 

sue-and-settle agreements which have led to the issuance of 

at least 100 regulations, including the Utility MACT rule, 

the Chesapeake Bay Clean Water Act rules, and various regional haze implementation rules. 

• 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; 


emcdonald on DSK67QTVN1PROD with HEARING
5 

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. 

III. 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 Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6601 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
6 

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/laboutecos. 

‘‘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

IV. RESOLUTION OF THE ENVIRONMENTAL COUNCIL OF THE STATES ON

SUE-AND-SETTLE PRACTICES

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

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

the Environmental Council for the States (ECOS) recently undertook a review of the concerns raised by sue-and-settle practices.5

This review culminated in ECOS Resolution 13–2, effective March 

6, 2013. The resolution emphasized that States may be adversely 

affected by consent decrees or settlement agreements in sue-andsettle 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 the U.S. EPA to devote the resources necessary to 

perform its nondiscretionary duties within the timeframes 

specified under Federal law, especially when required to take 

action on a state submission made under an independent 

right or responsibility (e.g., State Implementation Plans 

under the Clean Air Act).’’ 

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

that allege a failure of the Federal agency to perform its 

nondiscretionary duties;’’ 

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

suit settlement agreements will often be necessary to protect 

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

environmental programs in the most effective and efficient 

manner;’’ 


emcdonald on DSK67QTVN1PROD with HEARING
7 

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

V. REFORMS EMBODIED IN THE ‘‘SUNSHINE FOR REGULATORY DECREES

AND SETTLEMENTS ACT OF 2013’’ 

Consistent with the record compiled by the Committee, the measures in H.R. 1493 include provisions that: (1) require notices of intent to sue, complaints, consent decrees and settlement agreements, and attorneys’ fee agreements in lawsuits attempting to 

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

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

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

review proposed sue-and-settle consent decrees and settlement 

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

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

that present separation-of-powers concerns. 

VI. PROCEEDINGS ON THE SUNSHINE FOR REGULATORY DECREES AND

SETTLEMENTS ACT IN THE 112TH CONGRESS

During the 112th Congress, the Subcommittee on Courts, Commercial and Administrative Law held a hearing on H.R. 1493’s 

predecessor legislation, H.R. 3862. Testimony was received from 

Roger R. Martella, Jr., Sidley Austin LLP, former general counsel 

of the U.S. Environmental Protection Agency; Professor David 

Schoenbrod, New York Law School; Andrew M. Grossman, the Heritage Foundation; and John C. Cruden, president of the Environmental Law Institute and former Deputy Assistant Attorney General for the Department of Justice’s Environment and Natural ReVerDate Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
8 

sources Division, with additional material submitted by the Natural Resources Defense Council, the American Bar Association, and 

Kenny, Kenneth and Paula Cieplik. The Committee on the Judiciary reported H.R. 3862 favorably to the House, and the bill passed 

the House on July 26, 2012, as title V of H.R. 4078, the ‘‘Red Tape 

Reduction and Small Business Job Creation Act of 2012,’’ on a bipartisan vote (245–172). 

Hearings 

The Committee’s Subcommittee on Regulatory, Commercial and 

Antitrust Law held 1 day of hearings on H.R. 1493, on June 5, 

2013. Testimony was received from Commissioner Tom Easterly, 

Indiana Department of Environmental Management, on behalf of 

the State of Indiana and the Environmental Council of the States, 

William L. Kovacs, Senior Vice President for Environment, Technology & Regulatory Affairs, U.S. Chamber of Commerce, Allen 

Puckett, Columbus Brick Co., Columbus Mississippi, and John 

Walke, Director, Climate and Air Quality Program, Natural Resources Defense Council, with additional material submitted by the 

Attorney General for the State of Georgia, the Associated Builders 

and Contractors, Inc., the American Sheep Industry Association, 

the Association of National Grasslands, the National Cattlemen’s 

Beef Association, and the Public Lands Council. 

Committee Consideration 

On July 10, 2013, the Subcommittee on Regulatory Reform, Commercial and Antitrust Law met in open session and ordered the bill 

H.R. 1493 favorably reported, without amendment, by voice vote, 

a quorum being present. On July 24, 2013, the Committee met in 

open session and ordered the bill H.R. 1493 favorably reported 

without amendment, by a rollcall vote of 17 to 12, a quorum being 

present. 

Committee Votes 

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

House of Representatives, the Committee advises that the following 

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

1493. 

1. The amendment offered by Mr. Conyers exempts from requirements of H.R. 1493 consent decrees and settlement agreements 

that pertain ‘‘to the protection of the privacy of Americans.’’ The 

amendment was defeated by a rollcall vote of 12–16. 

ROLLCALL NO. 1 

Ayes Nays Present 

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

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

Mr. Coble (NC) ...........................................................................................

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

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

Mr. Bachus (AL) ......................................................................................... X 

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


emcdonald on DSK67QTVN1PROD with HEARING
9 

ROLLCALL NO. 1—Continued 

Ayes Nays Present 

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

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

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

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

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

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

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

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

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

Mr. Amodei (NV) ........................................................................................ X 

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

Ms. Farenthold (TX) ................................................................................... X 

Mr. Holding (NC) ........................................................................................

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

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

Mr. Smith (MO) .......................................................................................... X 

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

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

Mr. Scott (VA) ............................................................................................ X 

Mr. Watt (NC) ............................................................................................ X 

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

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

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

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

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

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

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

Mr. Gutie ́rrez (IL) .......................................................................................

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

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

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

Mr. Garcia (FL) ..........................................................................................

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

Total ......................................................................................... 12 16 

2. The amendment offered by Mr. Cohen exempts from requirements of H.R. 1493 consent decrees and settlement agreements 

‘‘that prevents or is intended to prevent discrimination on the basis 

of race, religion, national origin, or any other protected category.’’ 

The amendment was defeated by a rollcall vote of 13–16. 

ROLLCALL NO. 2 

Ayes Nays Present 

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

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

Mr. Coble (NC) ...........................................................................................

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

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


emcdonald on DSK67QTVN1PROD with HEARING
10 

ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. Bachus (AL) ......................................................................................... X 

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

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

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

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

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

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

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

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

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

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

Mr. Amodei (NV) ........................................................................................

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

Ms. Farenthold (TX) ................................................................................... X 

Mr. Holding (NC) ........................................................................................ X 

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

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

Mr. Smith (MO) .......................................................................................... X 

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

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

Mr. Scott (VA) ............................................................................................ X 

Mr. Watt (NC) ............................................................................................ X 

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

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

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

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

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

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

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

Mr. Gutie ́rrez (IL) .......................................................................................

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

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

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

Mr. Garcia (FL) .......................................................................................... X 

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

Total ......................................................................................... 13 16 

3. The amendment offered by Ms. Jackson Lee exempts from requirements of H.R. 1493 consent decrees and settlement agreements that pertain ‘‘to a reduction in illness or death from exposure to toxic substances or hazardous waste in communities that 

are protected by Executive Order 12898.’’ The amendment was defeated by a rollcall vote of 9–17. 

ROLLCALL NO. 3 

Ayes Nays Present 

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

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


emcdonald on DSK67QTVN1PROD with HEARING
11 

ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Mr. Coble (NC) ...........................................................................................

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

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

Mr. Bachus (AL) ......................................................................................... X 

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

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

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

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

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

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

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

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

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

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

Mr. Amodei (NV) ........................................................................................

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

Ms. Farenthold (TX) ...................................................................................

Mr. Holding (NC) ........................................................................................ X 

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

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

Mr. Smith (MO) .......................................................................................... X 

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

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

Mr. Scott (VA) ............................................................................................ X 

Mr. Watt (NC) ............................................................................................ X 

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

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

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

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

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

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

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

Mr. Gutie ́rrez (IL) .......................................................................................

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

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

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

Mr. Garcia (FL) .......................................................................................... X 

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

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

4. The amendment offered by Mr. Watt strikes from the bill provisions that establish a rebuttable presumption that a regulated 

party’s interests are not adequately represented by the parties in 

a covered civil action or a civil action in which a covered consent 

decree or settlement agreement has been proposed. The amendment was defeated by a rollcall vote of 11–17. 


emcdonald on DSK67QTVN1PROD with HEARING
12 

ROLLCALL NO. 4 

Ayes Nays Present 

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

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

Mr. Coble (NC) ...........................................................................................

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

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

Mr. Bachus (AL) ......................................................................................... X 

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

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

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

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

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

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

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

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

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

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

Mr. Amodei (NV) ........................................................................................

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

Ms. Farenthold (TX) ................................................................................... X 

Mr. Holding (NC) ........................................................................................ X 

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

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

Mr. Smith (MO) .......................................................................................... X 

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

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

Mr. Scott (VA) ............................................................................................ X 

Mr. Watt (NC) ............................................................................................ X 

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

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

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

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

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

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

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

Mr. Gutie ́rrez (IL) .......................................................................................

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

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

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

Mr. Garcia (FL) .......................................................................................... X 

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

Total ......................................................................................... 11 17 

5. The amendment offered by Mr. Johnson exempts from requirements of H.R. 1493 consent decrees and settlement agreements ‘‘that the Director of the Office of Management and Budget 

determines would result in net job creation.’’ The amendment was 

defeated by a rollcall vote of 11–17. 


emcdonald on DSK67QTVN1PROD with HEARING
13 

ROLLCALL NO. 5 

Ayes Nays Present 

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

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

Mr. Coble (NC) ...........................................................................................

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

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

Mr. Bachus (AL) ......................................................................................... X 

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

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

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

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

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

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

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

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

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

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

Mr. Amodei (NV) ........................................................................................

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

Ms. Farenthold (TX) ................................................................................... X 

Mr. Holding (NC) ........................................................................................ X 

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

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

Mr. Smith (MO) .......................................................................................... X 

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

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

Mr. Scott (VA) ............................................................................................ X 

Mr. Watt (NC) ............................................................................................ X 

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

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

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

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

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

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

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

Mr. Gutie ́rrez (IL) .......................................................................................

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

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

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

Mr. Garcia (FL) .......................................................................................... X 

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

Total ......................................................................................... 11 17 

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

ROLLCALL NO. 6 

Ayes Nays Present 

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

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


emcdonald on DSK67QTVN1PROD with HEARING
14 

ROLLCALL NO. 6—Continued 

Ayes Nays Present 

Mr. Coble (NC) ...........................................................................................

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

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

Mr. Bachus (AL) ......................................................................................... X 

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

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

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

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

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

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

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

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

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

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

Mr. Amodei (NV) ........................................................................................

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

Ms. Farenthold (TX) ................................................................................... X 

Mr. Holding (NC) ........................................................................................ X 

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

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

Mr. Smith (MO) .......................................................................................... X 

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

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

Mr. Scott (VA) ............................................................................................ X 

Mr. Watt (NC) ............................................................................................

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

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

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

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

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

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

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

Mr. Gutie ́rrez (IL) .......................................................................................

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

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

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

Mr. Garcia (FL) .......................................................................................... X 

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

Total ......................................................................................... 17 12 

Committee Oversight Findings 

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

House of Representatives, the Committee advises that the findings 

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


emcdonald on DSK67QTVN1PROD with HEARING
15 

New Budget Authority and Tax Expenditures 

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

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

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

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

the bill, H.R. 1493, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, September 20, 2013. 

Hon. BOB GOODLATTE, CHAIRMAN, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1493, the ‘‘Sunshine for 

Regulatory Decrees and Settlements Act of 2013.’’ 

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

to provide them. The CBO staff contact is Martin von Gnechten, 

who can be reached at 226–2860. 

Sincerely, 

DOUGLAS W. ELMENDORF, DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 1493—Sunshine for Regulatory Decrees and 

Settlements Act of 2013. 

As ordered reported by the House Committee on the Judiciary 

on September 20, 2013. 

H.R. 1493 would modify the process used to develop consent decrees and settlement agreements that require Federal agencies to 

take specified regulatory actions. Under the bill, complaints against 

Federal agencies, the terms of the consent decree or settlement 

agreement, and the award of attorneys’ fees would need to be published and accessible to the public in an electronic format. The legislation would require that any proposed consent decree or settlement agreement be published in the Federal Register for 60 days 

for public comment prior to filing with the court. H.R. 1493 also 

would require that settlement negotiations be conducted through 

mediation or alternative dispute resolution programs. 

Under the bill, agencies that submit certain consent decrees or 

settlement agreements to the court would be required to inform the 

court of the agency’s other outstanding mandatory duties under 

current law and explain how the proposed consent decree or settleVerDate Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
16 

ment agreement would further the public interest. The legislation 

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

certain types of settlement agreements and consent decrees. Finally, H.R. 1493 also would require courts to more closely review 

consent decrees when agencies seek to modify them. 

Based on information provided by the Department of Justice and 

assuming the appropriation of the necessary funds, CBO estimates 

that implementing H.R. 1493 would cost $7 million over the 2014– 

2018 period, primarily because litigation involving consent decrees 

and settlement agreements would probably take longer and agencies would face additional administrative requirements, including 

new requirements to report more information to the public. 

Enacting H.R. 1493 could affect direct spending; therefore, payas-you-go procedures apply. Under the Clean Air Act, the Clean 

Water Act, and other statutes, successful plaintiffs are entitled to 

repayment of attorneys’ fees through the Treasury’s Judgment 

Fund. Such payments have averaged about $2 million annually in 

recent years. By lengthening the process of developing consent decrees, H.R. 1493 could increase the amount of reimbursable attorneys’ fees, thus increasing the amount of such payments from the 

Judgment Fund. However, the increased length of the process to finalize consent decrees and settlement agreements might deter 

some future lawsuits and decrease the number of future cases. On 

net, CBO estimates that enacting the legislation would increase annual direct spending by an insignificant amount. Enacting the bill 

would not affect revenues. 

H.R. 1493 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

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

The CBO staff contact for this estimate is Martin von Gnechten. 

The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

Duplication of Federal Programs 

No provision of H.R. 1493 establishes or reauthorizes a program 

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

Government Accountability Office to Congress pursuant to section 

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

Disclosure of Directed Rule Makings 

The Committee estimates that H.R. 1493 specifically directs to be 

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

551. 

Performance Goals and Objectives 

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

of the Rules of the House of Representatives, H.R. 1493 limits the 

ability of defendant Federal regulators and pro-regulatory plaintiffs 

to abuse Federal consent decrees and settlement agreements to require new regulations, reorder regulatory priorities, bind the disVerDate Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6601 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
17 

cretion of future administrations, and limit the rights of regulated 

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

taken under such decrees and settlements. 

Advisory on Earmarks 

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

of Representatives, H.R. 1493 does not contain any congressional 

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

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

Section-by-Section Analysis 

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short Title. 

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

for Regulatory Decrees and Settlements Act of 2013.’’ 

Sec. 2. Definitions. 

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

classes of consent decrees and settlements, as follows: 

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

given those terms under 5 U.S.C. § 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 comVerDate Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00017 Fmt 6659 Sfmt 6601 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
18 

plaint, respectively, through readily accessible means, including 

electronic means by the agency against which the action is filed. 

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

in the litigation must conclude before covered consent decrees 

and settlement agreements may be proposed to the court. 

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

must adopt a rebuttable presumption that an intervenormovant’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 courtsupervised 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. 


emcdonald on DSK67QTVN1PROD with HEARING
19 

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

hold a public agency hearing on whether to enter into the proposed consent decree or settlement agreement. 

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

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

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

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

Subsec. 3(d)(4)—if a proposed consent decree or settlement agreement requires agency action by a date-certain, the defendant 

agency must inform the court of any uncompleted mandatory 

agency duties the covered consent decree or settlement agreement does not address, how the covered consent decree or settlement agreement would affect the discharge of those duties, and 

why the covered consent decree’s or settlement agreement’s effects on the order in which the agency discharges its mandatory 

duties is in the public interest. 

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

Attorney General or, in cases litigated by agencies with independent litigating authority, the defendant agency head, must 

certify to the court that he or she approves of a proposed covered 

consent decree that includes terms that: (i) convert into a nondiscretionary 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. 


emcdonald on DSK67QTVN1PROD with HEARING
20 

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

consent decree or settlement, the court must adopt a rebuttable 

presumption that favors amicus participation by those who filed 

public comments on the covered consent decree or settlement 

agreement during the agency’s notice and comment process. 

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

consent decree or settlement agreement allows sufficient time 

and procedure for the agency to comply with the Administrative 

Procedure Act and other applicable statutes that govern rulemaking, and, unless contrary to the public interest, any executive 

orders that govern rulemaking; 

Subsec. 3(g)—requires agencies to submit annual reports to Congress on the number, identity, and content of covered civil actions brought against and covered consent decrees and settlement agreements, including the statutory bases of the covered 

consent decrees and settlement agreements, and the decrees’ and 

settlements’ related complaints and attorneys’ fee awards. 

Sec. 4. Motions to Modify Consent Decrees. 

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

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

or changed facts and circumstances. 

Sec. 5. Effective Date. 

The bill becomes effective upon enactment and applies to any 

covered civil action filed or covered consent decree or settlement 

agreement proposed to a court on or after that date. 


emcdonald on DSK67QTVN1PROD with HEARING
(21) 

1 5 U.S.C. §§ 551–59, 701–06, 1305, 3105, 3344, 5372, 7521 (2013). 

Dissenting Views 

INTRODUCTION

H.R. 1493, the ‘‘Sunshine for Regulatory Decrees and Settlements Act of 2013,’’ is yet another attack on the Federal rulemaking process. Consent decrees and settlements generate many 

benefits by facilitating the enforcement of laws, ensuring judicial 

efficiency, and protecting the public fisc. Notwithstanding these 

benefits, this ill-conceived bill imposes numerous new procedural 

burdens on agencies and courts with respect to the entry of consent 

decrees and settlement agreements that seek to compel agency action that involves regulatory power and affects the rights of nonparties to such actions. Among these burdens are the requirement 

that agencies solicit public comments on such proposed consent decrees or settlement agreements and respond to each public comment before entering such agreements in court. The bill would also 

require courts to presume, subject to rebuttal, that almost any private third party be allowed to intervene in litigation between a 

public interest group and a Federal agency concerning a regulatory 

action and would require that such third party be permitted to participate in settlement negotiations between the two litigants. 

Without any evidence, proponents of this legislation allege that 

it is needed to restrain agencies and interest groups from colluding 

to ‘‘sue and settle,’’ whereby sympathetic Federal agencies enter 

into consent decrees or settlement agreements with public interest 

groups or other private citizen plaintiffs as a form of informal rulemaking that avoids compliance with the rulemaking procedures 

outlined in the Administrative Procedure Act 1 (APA) and other 

statutes. Procedures have long been in place that circumscribe the 

ability of agencies to enter consent decrees and settlement agreements so as to avoid any potential ‘‘sue and settle’’ situations. By 

undermining citizen attempts to enforce statutory rulemaking duties on agencies, H.R. 1493 ultimately threatens public health and 

safety by undermining the promulgation of new safeguards. Also, 

by discouraging the use of consent decrees and settlement agreements, encouraging costly and protracted litigation over ambiguous 

and ill-defined terms, imposing unduly burdensome procedural requirements on agencies and courts, and providing increased opportunities for dilatory tactics by those opposed to the agency action 

at issue in the underlying litigation, H.R. 1493 will exponentially 

increase costs for American taxpayers. Finally, this bill improperly 

undermines the judiciary’s traditional role in managing litigation 

and resolving disputes equitably and efficiently. 

A broad coalition of civil rights, environmental, consumer protection, and other public interest groups opposed a substantially simiVerDate Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00021 Fmt 6604 Sfmt 6604 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
22 

2Letter to Rep. John Conyers, Jr. (D-MI), Ranking Member, H. Committee on the Judiciary 

from 41 public interest groups (Mar. 19, 2012) (on file with the H. Committee on the Judiciary, 

Democratic Staff). 3 Executive Office of the President, Office of Management and Budget, Statement of Administration Policy on H.R. 4078—the Regulatory Freeze for Jobs Act of 2012 (July 23, 2012), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr4078rl 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 

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 POL- ICY, at 100 (4th ed. 1999). 

lar bill in the 112th Congress, including the Alliance for Justice, 

the American Association for Justice, the Center for Food Safety, 

the Center for Science in the Public Interest, Defenders of Wildlife, 

Earthjustice, the Natural Resources Defense Council, OMB Watch 

(now the Center for Effective Government), Public Citizen, and the 

Sierra Club.2 Additionally, the Administration threatened to veto 

H.R. 1493’s predecessor from the 112th Congress, stating that it 

would ‘‘spawn excessive regulatory litigation, and introduce redundant processes for litigation settlements.’’ 3

We likewise strongly oppose H.R. 1493 and respectfully dissent. 

DESCRIPTION AND BACKGROUND

H.R. 1493, the ‘‘Sunshine for Regulatory Decrees and Settlements Act of 2013,’’ is intended to address the perceived problem 

of collusion between public interest plaintiffs and sympathetic Federal agencies in entering into consent decrees or settlement agreements that oblige the agency to take a particular action regarding 

a regulatory action (e.g., a rulemaking), often under a certain 

timeline. Proponents of the bill call this phenomenon ‘‘sue and settle.’’ H.R. 1493 would impose various burdensome procedural requirements on Federal agencies and Federal courts when a consent 

decree or settlement agreement prescribes regulatory action affecting a private third party. These new procedures include a virtually 

unlimited right for almost any private party to intervene in ongoing litigation and settlement negotiations between a Federal agency and plaintiffs that have sued it to enforce a statutory obligation 

to undertake a regulatory action. The bill also includes a requirement that agencies accept and respond to public comments about 

a proposed consent decree or settlement agreement. It also limits 

the kinds of consent decrees and settlement agreements that executive departments and agencies may agree to. This legislation is 

freestanding and does not amend any current law or statute. 

A detailed description of the bills substantive provisions follows. 

Section 2 defines several key terms. Section 2(1) imports the definitions of ‘‘agency’’ and ‘‘agency action’’ from the APA. Thus, the 

bill’s provisions apply to Executive Branch and independent agencies alike.4

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 


emcdonald on DSK67QTVN1PROD with HEARING
23 

scope of and distinction between ‘‘agency action’’ and ‘‘regulatory 

action’’ are not entirely clear, nor is the meaning of ‘‘rights’’ or ‘‘private persons.’’ Given that these are threshold terms, their vagueness is likely to lead to litigation over whether H.R. 1493’s provisions apply to a given proposed consent decree or settlement agreement. 

Section 2(3) defines ‘‘covered consent decree’’ as a consent decree 

in a covered civil action and any other consent decree requiring 

agency action concerning a rulemaking or other regulatory action 

that affects private third parties or state, local, or tribal governments. Thus, H.R. 1493 could apply to consent decrees in cases 

that are not ‘‘covered civil actions’’ under the bill. 

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

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

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

it applies to settlement agreements rather than consent decrees. As 

with ‘‘covered consent decrees,’’ this means that H.R. 1493 could 

apply to settlement agreements in cases that are not ‘‘covered civil 

actions’’ under the bill. 

Section 3 of the bill sets forth several new procedures that agencies and parties in litigation must follow before a court can enter 

a consent decree or settlement agreement, as well as certain rebuttable presumptions that courts must make. 

Section 3(a)(1) requires a defendant agency in a covered civil action to post online a copy of the notice of intent to sue and the complaint in the covered civil action not later than 15 days after receiving service of each. Section 3(a)(2) prohibits a party to a civil action 

from moving to enter a covered consent decree or to dismiss a civil 

action pursuant to a covered settlement agreement until after compliance with the bill’s notice and comment requirements or after a 

public hearing allowed under the bill, whichever is later. 

Section 3(b)(1) applies a unique standard for third-party intervention in covered civil actions. Specifically, it requires a court, 

when considering a motion to intervene in a covered civil action or 

in a civil action in which a covered consent decree or settlement 

agreement is proposed, to presume that the interests of ‘‘a person 

who alleges that the agency action in dispute would affect the person’’ would not be adequately represented by the parties to the action. This places the burden on the non-moving parties to show 

that they can adequately represent the putative intervenor’s interests, in contrast to current law, which places the burden on the 

party seeking intervention to demonstrate that its interests are not 

adequately represented by the parties per Federal Rule of Civil 

Procedure 24. 

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

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

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

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

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


emcdonald on DSK67QTVN1PROD with HEARING
24 

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

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

alternative dispute resolution program or by a judge other than the 

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

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

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

on agencies before they can file a consent decree or settlement 

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

publish in the Federal Register and post online a proposed covered 

consent decree or settlement agreement and a description of its 

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

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

or settlement agreement is filed with a court. 

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

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

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

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

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

submit to the court a certified index of the administrative record 

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

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

appearing before the court submits. 

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

hearing. 

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

explanations before moving to enter a covered consent decree or 

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

covered consent decree or settlement agreement, when the agency 

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

any required regulatory action that the agency has not taken and 

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

how the decree or settlement would affect the discharge of such required regulatory action; and (3) why the effects of the decree or 

settlement on the discharge of required regulatory action would be 

in the public interest. 

Section 3(e) codifies long-standing guidelines that Department of 

Justice and agency attorneys follow to ensure that their use of consent decrees or settlement agreements are not used to circumvent 

the normal rulemaking process, known as the ‘‘Meese Memo’’ 

(which is itself already codified in the Code of Federal RegulaVerDate Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00024 Fmt 6604 Sfmt 6604 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
25 

5 28 C.F.R. §§ 0.160–0.163 (2013). 

tions).5 Section 3(e)(1) states the general rule that for a covered 

consent decree or settlement agreement containing certain terms 

that are proscribed by the Meese Memo, the Attorney General or 

the head of an independent agency (depending on which agency is 

the litigating party), must submit to the court a signed certification 

that he or she approves the proposed consent decree or settlement 

agreement. Section 3(e)(2) sets forth the terms that would subject 

a proposed covered decree or settlement to the certification requirement. For covered consent decrees, these terms are those that: (1) 

convert an agency’s discretionary rulemaking authority into a nondiscretionary rulemaking obligation; (2) commit an agency to expend funds for the regulatory action at issue that have not been 

appropriated and budgeted; (3) commit an agency to seek a particular appropriation or budget authorization; (4) divest an agency 

of discretion committed to it by statute or the Constitution; or (5) 

affords relief that the court otherwise would not have authority to 

grant. For covered settlement agreements, the terms triggering the 

certification requirement are those that: (1) remedy the agency’s 

failure to comply with the covered settlement agreement, other 

than a revival of the underlying civil action; and (2) interferes with 

agency rulemaking procedures under the APA, another statute, or 

executive order, commits the agency to expend non-appropriated 

and non-budgeted funds for the regulatory action at issue, or commits the agency to exercise discretion in a particular way when the 

discretion was committed to it by statute or the Constitution to respond to changing circumstances, to make policy or managerial 

choices, or to protect the rights of third parties. 

Section 3(f) imposes certain requirements on courts for judicial 

consideration of proposed covered consent decrees and settlement 

agreements. Section 3(f)(1) requires a court reviewing a proposed 

covered consent decree or settlement agreement to presumptively 

allow amicus participation by any party who filed public comments 

or participated in a public hearing regarding such proposed decree 

or settlement under the bill. Section 3(f)(2) prohibits a court from 

entering a consent decree unless it provides for sufficient time or 

procedures for the agency to comply with the APA’s rulemaking 

procedures or other statutes and executive orders that govern rulemaking. The court must also ‘‘ensure’’ that such provisions are contained in any proposed settlement agreement. 

Section 3(g) requires agencies to submit annual reports to Congress. These reports must include the number, ‘‘identity,’’ and content of covered civil actions brought against the agency as well as 

covered consent decrees or settlement agreements that the agency 

has entered into. Additionally, the report must describe the statutory basis for each covered consent decree or settlement agreement 

entered into by the agency and for any award of attorneys’ fees or 

costs in the underlying civil action. 

Section 4 of the bill specifies that when an agency moves to modify a covered consent decree or settlement agreement because it is 

no longer ‘‘fully in the public interest due to the obligations of the 

agency to fulfill other duties or due to changed facts and cirVerDate Mar 15 2010 18:38 Sep 27, 2013 Jkt 029006 PO 00000 Frm 00025 Fmt 6604 Sfmt 6604 E:\HR\OC\HR230.XXX HR230

emcdonald on DSK67QTVN1PROD with HEARING
26 

6The Federal Consent Decree Fairness Act and the Sunshine for Regulatory Decrees and Settlements Act: Hearings on H.R. 3041 and H.R. 3862 Before the Subcomm. on Courts, Commercial 

and Administrative Law of the H. Comm. on the Judiciary, 112th Cong. (2012) [hereinafter 

‘‘2012 Hearing’’] (statement of Roger R. Martella, Jr., Partner, Sidley Austin LLP). 7 2012 Hearing at 26–28. 

8 U.S. Chamber of Commerce, Sue and Settle: Regulating Behind Closed Doors, May 2013, 

available at http://www.uschamber.com/reports/sue-and-settle-regulating-behind-closed-doors. 9 2013 Hearing at 115. 

cumstances,’’ the court must review the decree or settlement de 

novo. 

Section 5 states that the bill’s provisions apply to covered civil 

actions pending on the bill’s enactment date. Section 5 further provides that the bill’s provisions apply to all covered consent decrees 

and covered settlement agreements proposed on or after the bill’s 

enactment date. 

CONCERNS WITH H.R. 1493

I. H.R. 1493 is a Solution in Search of a Problem 

No reliable evidence supports the assertion that H.R. 1493 is 

needed. Federal agencies do not collude with public interest organizations and other private-citizen plaintiffs in entering into consent 

decrees or settlements as a way of circumventing proper rulemaking procedures. Nevertheless, proponents of H.R. 1493 repeatedly contend that such collusion takes place, without citing evidence in support of that contention. For example, Roger Martella 

testified before the Judiciary Committee’s Subcommittee on Courts, 

Commercial and Administrative Law in the 112th Congress that 

‘‘certain groups increasingly are employing a ‘sue and settle’ approach to interactions with the government on regulatory issues.’’ 6

According to Mr. Martella, under such arrangements, non-governmental organizations use consent decrees and settlements with 

agencies to dictate agency priorities and set timelines for 

rulemakings without transparency, opportunity for input from the 

to-be-regulated entities, or opportunity for judicial review of such 

agreements.7 At this year’s hearing on H.R. 1493, the bill’s proponents cited a faulty U.S. Chamber of Commerce study to support 

their bald assertions of collusion.8

The facts, however, are bereft of any evidence of such collusion. 

For example, John Walke of the Natural Resources Defense Council thoroughly de-bunked the Chamber study. Mr. Walke testified 

that the Chamber’s methodology relied entirely on ‘‘Internet 

searches identifying all cases in which [the Environmental Protection Agency or EPA] and an environmental group entered into a 

consent decree or settlement agreement between 2009 and 2012.’’ 9

In doing so, he explained, the report ignored EPA settlements with 

industry parties or conservative groups and did not examine any 

EPA settlements during the Bush administration, during which the 

EPA also entered into settlements and consent decrees. Mr. Walke 

further noted: 

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 


emcdonald on DSK67QTVN1PROD with HEARING
27 

10 Id. at 116. 11 Id. 

Chamber cannot remotely back up the charge that collusion was involved in all of these settlements, or even in 

any of them, so the report does not even try.10

Mr. Walke observed that the Chamber report simply sought to 

transform evidence of the use of a ‘‘common and long-accepted form 

of resolving litigation over clear legal violations under any administration’’ into evidence of inappropriate collusion.11 It is also critical 

to note that, while much of the justification that H.R. 1493’s proponents—including the Chamber of Commerce—have centered on 

consent decrees and settlements involving the EPA, the bill itself 

is drafted in general language and would apply to consent decrees 

and settlement agreements involving all Federal agencies, not just 

the EPA. 

The testimony of John Cruden, a senior career official in the Department of Justice (DoJ) Environment and Natural Resources Division (ENRD) for more than two decades during two Republican 

and two Democratic administrations, bolsters Mr. Walke’s conclusion that there is no evidence of ‘‘sue and settle’’ collusion. Mr. 

Cruden testified on a substantially similar bill in the 112th Congress that he was unaware of any instance of this so-called collusive ‘‘sue and settle’’ activity occurring during his long tenure as a 

senior ENRD official. He also emphasized that agencies enter settlements only when they have failed to meet mandatory rulemaking obligations: 

In my long experience with the types of cases covered by 

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

a rule, based on specific legislation enacted by Congress. 

The settlement in those cases was straightforward: setting 

a date by which the agency would propose a draft rule 

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

such a settlement, a Federal court would have issued an 

injunction setting the date for EPA to take action, since 

the agency’s legal responsibility was quite clear. 

Because a proposed rule emerging from a settlement would 

provide the same notice-and-comment opportunities as any 

other rulemaking, and because the final rules still would 

be subject to challenge under the Administrative Procedure Act, this existing process obviously does not avoid 

public comment, and already allows interested parties 

their full range of substantive and procedural rights. 

. . . 

I am not aware of any instance of a settlement, and certainly none I personally approved, that could remotely be 

described as ‘‘collusive.’’ Quite the opposite: in every case 

of which I am aware, the Department of Justice vigorously 

represented the Federal agency, defending the agency’s 

legal position and obtaining in any settlement the best 


emcdonald on DSK67QTVN1PROD with HEARING
28 

12 2012 Hearing at 106–107. 13 John McCardle, House Republicans Accuse EPA, Enviros of Collusion, N.Y. TIMES, July 15, 

2011, available at http://www.nytimes.com/gwire/2011/07/15/15greenwire-house-republicans-accuse-epa-enviros-of-collus-69925.html 14 Id 15 2013 Hearing at 116–117. 16Press Release, U.S. Dep’t of Labor Bureau of Labor Statistics, National Census of Fatal Occupational Census of Fatal Occupational Injuries in 2012 (Preliminary Results), Aug. 13, 2013, 

available at http://www.bls.gov/news.release/pdf/cfoi.pdf. 

possible terms that were consistent with the controlling 

law.12

Others have also refuted the ‘‘sue and settle’’ allegation. As a Sierra Club representative observed, this theory is a ‘‘sad attempt to 

create a boogie man out of vital and broadly supported protections 

that have improved and saved millions of Americans’ lives.’’ 13 Likewise, David Goldston of the Natural Resources Defense Council testified in 2011 at a House Energy and Commerce Subcommittee 

hearing that the ‘‘whole ’sue and settle’ narrative is faulty.’’ 14

Mr. Walke also noted in his testimony that the Chamber report 

ultimately identifies as its culprit the citizen-suits that Congress 

has authorized under various environmental statutes.15 The entire 

‘‘sue and settle’’ allegation that undergirds H.R. 1493, therefore, is 

really aimed at congressionally authorized provisions that permit 

citizens to sue agencies so as to enforce statutory requirements. If 

these citizen-suit provisions are the true cause for concern, then it 

is for H.R. 1493’s proponents to push for their repeal by Congress, 

rather than seek to disrupt the use of longstanding mechanisms for 

resolving litigation. 

In the absence of genuine evidence that Federal agencies collude 

with plaintiffs to circumvent proper rulemaking procedures by use 

of consent decrees and settlement agreements, H.R. 1493 simply 

addresses a non-existent problem. 

II. By Undermining Enforcement of Mandatory Rulemaking Duties, 

H.R. 1493 Threatens Public Health and Safety 

To the extent that H.R. 1493 undermines attempts to enforce 

statutory mandates on agencies, it potentially undermines public 

health and safety. As noted, most consent decrees and settlement 

agreements arising from civil actions where a citizen lawsuit has 

been filed against an agency stem from the fact that the agency 

failed to meet a statutory rulemaking deadline or other rulemaking 

duty. Congress assigned these mandatory duties to agencies because it concluded that a particular public health or safety concern 

merited such action by the agencies. Moreover, Congress added citizen-lawsuit provisions in these statutes in order to allow private 

citizens to help enforce its statutory mandates. Therefore, when 

agencies fail to meet such mandatory duties, the harm that they 

were supposed to address remains unaddressed. By making it 

harder for citizens to compel agencies to meet their duties, H.R. 

1493 jeopardizes public health and safety. 

Health and safety concerns are not a mere abstraction. Regarding the issue of workplace safety alone, there were 4,383 fatal occupational injuries last year, according to the Bureau of Labor Statistics.16 Additionally, an analysis by the National Institute for Occupational Safety and Health, the American Cancer Society, and 


emcdonald on DSK67QTVN1PROD with HEARING
29 

17Kyle 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). 18 28 C.F.R. §§ 0.160–0.163 (2012). 19Memorandum from Edwin Meese III, Attorney General, to All Assistant Attorneys General 

and All United States Attorneys Regarding Department Policy Regarding Consent Decrees and 

Settlement Agreements (Mar. 13, 1986), available at http://www.archives.gov/news/samuel-alito/ 

accession-060-89-1/Acc060-89-1-box9-memoAyer-LSWG-1986.pdf. 20 Id. 

Emory University’s School of Public Health estimates that after 

factoring in disease and injury data ‘‘there are a total of 55,200 US 

deaths annually resulting from occupational disease or injury 

(range 32,200–78,200).’’ 17 To the degree that H.R. 1493 makes it 

harder for citizens to force agencies to address these kinds of concerns, it unnecessarily puts the American people at risk. 

III. H.R. 1493 is Unnecessary in Light of the Justice Department’s 

‘‘Meese Memo’’ and Other Existing Legal Mechanisms 

H.R. 1493’s proponents have never explained why, to the extent 

that collusive settlement agreements are an actual problem, the socalled ‘‘Meese Memo’’ is insufficient to address such a problem, nor 

have they offered evidence that the DoJ and Federal agencies are 

not complying with its requirements. Moreover, H.R. 1493’s proponents offer no rationale as to why the Meese Memo needs to be 

codified in statute, as this bill does. Finally, in addition to the 

Meese Memo, other legal mechanisms exist for addressing the proponents’ purported concerns about transparency and public input 

in consent decree and settlement negotiations. 

The Meese Memo, codified in the Code of Federal Regulations,18

specifies a process that already addresses the purported problem 

sought to be addressed by H.R. 1493’s proponents. In 1986, thenUnited States Attorney General Edwin Meese issued a set of guidelines for DoJ and other government attorneys in entering into consent decrees and settlement agreements in response to the following concerns: 

In the past . . . executive departments and agencies have, 

on occasion, misused [consent decrees] and forfeited the 

prerogatives of the Executive in order to preempt the exercise of those prerogatives by a subsequent Administration. 

These errors sometimes have resulted in an unwarranted 

expansion of the powers of [sic] judiciary—often with the 

consent of government parties—at the expense of the executive and legislative branches.19

The Meese Memo identified three types of potentially problematic 

provisions in consent decrees: (1) a department or agency agreed to 

promulgate regulations and may have relinquished its power to 

amend those regulations or promulgate new ones without court 

participation; (2) a consent decree may divest a department or 

agency of discretion committed to it by the Constitution or a statute where exercise of discretion is ultimately subject to court approval; and (3) a department or agency has agreed to use its best 

efforts to obtain funding from Congress in order to enforce the decree.20

As a result, the Meese Memo states that departments and agencies should not enter into a consent decree that: (1) ‘‘converts into 


emcdonald on DSK67QTVN1PROD with HEARING
30 

21 Id. 22 Id. 23 Id. 24 28 C.F.R. §§ 0.160–0.163 (2013). 25 2012 Hearing at 111. 26See 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.’’). 27Fed. R. Civ. P. 24(a)(2). 28 5 U.S.C. § 553 (2013). 

a mandatory duty the otherwise discretionary authority of the Secretary or agency administrator to revise, amend, or promulgate 

regulations;’’ (2) ‘‘commits the department or agency to expend 

funds that Congress has not appropriated and that have not been 

budgeted for the action in question, or commits a department or 

agency to seek a particular appropriation or budget authorization;’’ 

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

changing circumstances, to make policy or managerial choices, or 

to protect the rights of third parties.’’ 21 The policy outlines similar 

restrictions on settlement agreements.22 If special circumstances 

require departure from these guidelines, the Attorney General, the 

Deputy Attorney General, or the Associate Attorney General must 

authorize such a departure.23 The Meese Memo ultimately was incorporated into the Code of Federal Regulations.24

H.R. 1493’s proponents offer no evidence that the DoJ and agencies are not complying with the Meese Memo. As Mr. Cruden 

noted, ‘‘I am personally unaware of any examples of the Department failing to comply with the existing C.F.R. provision [codifying 

the Meese Memo]; nor did the other witnesses present any such examples at the hearing.’’ 25 Moreover, the Majority’s witnesses at 

last year’s hearing on H.R. 1493’s predecessor specifically praised 

the Meese Memo and offered no argument as to why it was insufficient to address the alleged ‘‘sue and settle’’ problem.26

In addition to the Meese Memo, there are other mechanisms 

available that already address the purported concerns of H.R. 

1493’s proponents. For example, parties whose interests may be affected by a consent decree or settlement may move to intervene in 

the case pursuant to Federal Rule of Civil Procedure 24, with the 

moving party bearing the burden of demonstrating that the parties 

to the case do not adequately represent the movant’s interest.27

Similarly, any rulemaking that is required pursuant to a consent 

decree or settlement agreement would still be subject to the APA’s 

notice and comment procedures, and affected parties who are not 

parties to the consent decree or settlement agreement would still 

have the opportunity to weigh in on any negative impacts of a proposed rule.28

In sum, to the extent that the Federal Government is, in fact, 

tempted to use consent decrees and settlement agreements to do an 

end-run around the rulemaking procedures, the Meese Memo and 

other mechanisms already address such concerns, making H.R. 

1493 unnecessary. 


emcdonald on DSK67QTVN1PROD with HEARING
31 

29 2013 Hearing at 117–118; 2012 Hearing at 106–107. 30 H.R. 1493, 113th Cong. § 3(b)(1) (2013). 31 Rule 24 of the Federal Rules of Civil Procedure states, in pertinent part: 

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

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

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

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

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

represent that interest. 

(b) Permissive Intervention. 

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

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

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

or fact. 

IV. H.R. 1493 Will Favor Industry Interests at Taxpayers’ Expense 

In addition to being unnecessary, H.R. 1493 threatens to impose 

tremendous financial costs on taxpayers. It would do so in several 

ways. First, it provides numerous new opportunities for opponents 

of regulation to engage in dilatory tactics to delay resolution of 

pending litigation, further increasing costs for agencies and courts 

and, ultimately, taxpayers. Second, many of its key terms are ambiguous, which will lead to confusion, litigation, and delay in any 

proposed consent decree or settlement negotiation. Third, it imposes numerous burdensome procedural requirements on agencies 

and courts when they are considering consent decrees and settlements concerning regulatory action, which will further add to the 

costs borne by those entities. Fourth, the bill’s cumulative effect 

would be to discourage agencies from entering into consent decrees 

and settlement agreements when they might otherwise have done 

so, leading to unnecessarily protracted and costly litigation. 

A. H.R. 1493 opens the door to dilatory tactics by industry 

and other opponents of agency action. 

Various provisions of H.R. 1493 would give opponents of regulations opportunities to effectively stifle rulemaking by allowing them 

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

by their congressionally-assigned duty to regulate. As Mr. Walke 

and Mr. Cruden noted in their testimony, agencies enter into consent decrees and settlement agreements when they have a mandatory duty to act, including the requirement to promulgate a new 

rule.29 By opening opportunities for industry to slow down this 

process, H.R. 1493 effectively makes it more expensive for agencies 

to do what Congress has mandated it to do. 

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.30 This presumption upends current law, which places the burden of proof on 

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

parties in the case.31 Effectively, this shift in the burden of proof 

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

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

to intervene in a case involving a consent decree or settlement 

agreement that seeks to compel agency action. 


emcdonald on DSK67QTVN1PROD with HEARING
32 

32 H.R. 1493, 113th Cong. § 3(c) (2013). 33 Id. 34 Id. at §§ 3(d)(1), 3(d)(2)(A). 35 Id. at § 3(d)(2)(B). 36 Id. at § 3(f)(1). 

Hypothetically, under H.R. 1493, if the regulatory action at issue 

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

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

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

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

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

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

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

under the bill. 

Section 3(c) of H.R. 1493 also tilts the playing field sharply in 

favor of industry interests by giving them an opportunity to slow 

down agency compliance with Federal law. Under this provision, 

courts must delay entry of a consent decree or settlement agreement by referring settlement discussions to the court’s mediation 

or alternative dispute resolution program, or to a district judge, 

magistrate judge, or special master.32 Such discussions must include the plaintiff, defendant agency, and any third party intervenors.33 In addition to delaying the settlement process, this provision would impose costs on plaintiffs and defendant agencies alike 

by forcing them to pay mediation and other dispute resolution costs 

beyond what they may have had to pay in the absence of this process. 

H.R. 1493 provides other opportunities for industry to engage in 

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

agency to publish any proposed consent decree or settlement agreement and to allow at least 60 days for public comments.34 The 

agency must then respond to every comment pursuant to section 

3(d)(2)(B).35 Under these provisions, any industry would be able to 

flood an agency with comments in an effort to stall resolution of 

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

As if forcing an agency to respond to potentially numerous public 

comments on a proposed consent decree or settlement agreement 

was not enough, section 3(f)(1) requires a court to presume amicus 

status for any member of the public who submits comments on a 

proposed consent decree or settlement agreement, subject to rebuttal, in any proceeding on a motion to enter such consent decree or 

settlement agreement.36 This provision would further allow industry and other regulatory opponents to delay resolution of the underlying dispute between the plaintiff and the defendant agency. 

B. H.R. 1493 uses ambiguous language in many key provisions, opening the door to confusion, litigation, and delay 

in resolving disputes. 

Many of H.R. 1493’s key provisions are written in ambiguous, 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 


emcdonald on DSK67QTVN1PROD with HEARING
33 

37 Id. at § 2(2). 38 Id. 39 Id. at § 3(d)(4). 

action seeking to compel agency action and alleging that the agency 

is ‘‘unlawfully withhodling or unreasonably delaying agency action 

relating to a regulatory action.’’ 37 It is unclear what the distinction 

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

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

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

the meaning of these threshold terms. 

Additionally, section 2(2) refers to ‘‘private persons’’ whose 

‘‘rights’’ are affected by the regulatory action, but the bill fails to 

define what ‘‘private persons’’ or ‘‘rights’’ means.38 As noted above, 

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

As with other ambiguous language in this bill, confusion and a lack 

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

Finally, H.R. 1493’s requirement that, under certain circumstances, agencies must inform the court of all mandatory rulemaking deadlines and describe how a consent decree or settlement 

agreement ‘‘would affect the discharge of those duties,’’ in addition 

to being open-ended, burdensome, time-consuming, and a drain on 

limited agency resources, is also full of ambiguity.39 The requirement, outlined in section 3(d)(4), does not define what ‘‘affect the 

discharge of those duties’’ means. 

C. H.R. 1493 imposes several burdensome procedural requirements on agencies and courts with respect to entering 

into consent decrees and settlement agreements. 

H.R. 1493 imposes several new procedural requirements on agencies and courts that are designed to slow down the resolution of 

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

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

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

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

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

intervene in settlement discussions is not adequately represented; 

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

discussions to mediation or another alternative dispute resolution 

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

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

allow amicus participation in any motion to enter a consent decree 

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

Implementing any one of these new requirements, much less all 

of them, drains agency and judicial time and resources without 

adding to the fairness of any consent decree or settlement agreement. In times such as now when Federal agencies and the court 


emcdonald on DSK67QTVN1PROD with HEARING
34 

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

44606. 41See 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.’’). 

system are facing budgetary shortfalls, we should be crafting legislation to streamline and improve efficiencies for all. Unfortunately, 

H.R. 1493 will have the opposite result. 

D. The cumulative effect of H.R. 1493’s provisions will be to 

discourage the use of consent decrees and settlement 

agreements, forcing expensive and time-consuming litigation. 

By facilitating dilatory conduct by anti-regulatory forces, using 

vague language in key provisions, and imposing numerous and burdensome procedural requirements on agencies and courts with respect to consideration of consent decrees and settlement agreements, H.R. 1493’s cumulative effect will be to discourage the use 

of consent decrees and settlement agreements and thereby delay or 

eliminate early resolution of litigation against the government. 

This legislation will ultimately increase costs for taxpayers, who 

must pay for the protracted litigation associated with fewer consent 

decrees and settlement agreements. Indeed, the Congressional 

Budget Office noted in its analysis of H.R. 1493 that the bill would 

impose millions of dollars in costs, ‘‘primarily because litigation involving consent decrees and settlement agreements would probably 

take longer under the bill and agencies would face additional administrative burdens, including new requirements to report more 

information to the public.’’ 40

Consent decrees benefit both plaintiffs and defendants. For plaintiffs, consent decrees allow for meaningful and timely relief without 

the risks and costs associated with prolonged litigation. Governmental and other defendants can also avoid the burdens and costs 

of protracted litigation and the particular risk that a costly or cumbersome solution simply will be imposed on them should they lose 

the suit. Additionally, defendants can avoid judicial determination 

of liability and obtain flexibility in terms of how they implement 

needed reforms. This is why the use of consent decrees in Federal 

court litigation is a longstanding part of the judicial and Congressional policy of encouraging alternative dispute resolution.41 H.R. 

1493 flies in the face of this policy and will ultimately cost plaintiffs and governmental defendants more in litigation costs by making consent decrees and settlements more difficult to obtain. As 

John Cruden explained: 

The judicially approved consent decree is a valuable settlement tool that promotes expeditious resolution of cases, 

saves transaction costs for all parties and for the judicial 

system, and achieves finality while protecting the parties 

to the agreement. 


emcdonald on DSK67QTVN1PROD with HEARING
35 

42 2012 Hearing at 108. 43Fed. R. Civ. P. 60(b)(5). 

* * * 

As compared to full-blown litigation, consent decrees allow 

for a faster and less expensive, but still comprehensive resolution of a dispute. Congress’ underlying statutory objectives are satisfied, while at the same time, the [defendant] 

is able to exercise its sovereignty through the negotiation 

of binding contracts and the resolution of potentially onerous pending litigation. Indeed, the finality and certainty 

afforded by the consent decree makes it far easier for a 

[defendant] to follow through on its commitments....42

By making consent decrees and settlement agreements more difficult and costly to enter into, H.R. 1493 will ultimately cost the 

taxpayer more in litigation costs and, possibly, expensive judgments. 

V. H.R. 1493 Subverts the Federal Rules of Civil Procedure and Judicial Discretion 

H.R. 1493 overrides the Federal Rules of Civil Procedure, the 

courts’ power to manage litigation in several respects, and their authority to consider equities in their decisionmaking. First, it undermines Federal Rule of Civil Procedure 24, which sets forth the 

process for determining when a third party can intervene in a 

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

its interests are not adequately represented by the plaintiff and the 

defendant. As already discussed, H.R. 1493 overrides this Rule by 

requiring courts to presume the opposite, namely that the parties 

in the litigation do not adequately represent the interests of the 

third party. 

Second, H.R. 1493 tampers with the process for modifying consent decrees under Federal Rule of Civil Procedure 60(b)(5). Under 

that provision, a court can modify a consent decree when ‘‘the judgment has been satisfied, released, or discharged; it is based on an 

earlier judgment that has been reversed or vacated; or applying it 

prospectively is no longer equitable.’’ 43 Section 4 of H.R. 1493 attempts to skew the result of such a motion to modify by specifying 

that when a defendant agency moves to modify a previously entered consent decree, the court ‘‘shall’’ review the motion and consent decree de novo whenever the motion to modify is based on the 

grounds that the decree is ‘‘no longer fully in the public interest 

due to the agency’s obligations to fulfill other duties or due to 

changed facts and circumstances.’’ This provision clearly is intended to result in modification or revocation of an existing consent 

decree when a government agency moves to do so, regardless of the 

equities involved, which Rule 60 permits a court to consider. 

Beyond the specific changes that H.R. 1493 makes to the civil 

procedure rules at issue, the bill hamstrings a judge’s discretion in 

managing matters concerning litigation pending before his or her 

court. In addition to questions about intervention or modification of 

consent decrees, H.R. 1493 repeatedly requires courts to make certain presumptions (subject to rebuttal) on other similar litigation 


emcdonald on DSK67QTVN1PROD with HEARING
36 

44Fed. R. Civ. P. 24. 45 Unofficial Tr. of Markup of H.R. 1493, the Sunshine for Regulatory Decrees and Settlements 

Act of 2013, by the H. Comm. on the Judiciary, 113th Cong. at 37 (July 24, 2013). 46 Id. at 40. 47 Id. at 46. 48See, 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). 

management issues such as when to permit amicus participation 

by third parties, when to enter a consent decree or settlement 

agreement, and when to refer matters to mediation, other alternative dispute resolution, a special master, or another judge. In 

short, H.R. 1493 seeks to dictate courtroom management issues 

that have traditionally been left to judges to decide. Such a lack 

of deference to courts is a troubling result for this Committee, in 

particular, to embrace. 

VI. 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 

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

seeking to intervene in the case to the parties themselves.44

During the markup, Members attempted to elicit from the bill’s 

supporters some clear explanation of the limits of this right to intervene. Representative Melvin L. Watt (D-NC) observed, ‘‘This bill 

has no boundaries around it, from my perspective. And if we are 

going to do this, it does seem to me that we need to put some 

boundaries around who can be parties. Otherwise, you have no limits on the litigation or no limits on the regulatory action.’’ 45

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

offered an amendment that would have excluded from the coverage 

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

prevents or is intended to prevent discrimination based on race, religion, national origin, or any other protected category.’’ Subcommittee Chairman Spencer Bachus (R-AL) recognized to a degree 

the validity of this concern and suggested that his Republican colleagues consider accepting the amendment because, as he explained, ‘‘[e]verybody in the United States is affected by every consent settlement on race.’’ 46

Urging his colleagues to reject this amendment, Chairman Bob 

Goodlatte (R-VA) contended that current standing requirements 

would continue to act as a limit on intervention.47 Standing, however, affords weak limits on the bill’s intervention right. The U.S. 

Supreme Court’s guidance on this issue appears to have evolved 

over the years and is one that it has revisited on numerous occasions.48 The Court has acknowledged that the ‘‘concept of ‘Art. III 

standing’ has not been defined with complete consistency in all of 

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


emcdonald on DSK67QTVN1PROD with HEARING
37 

49 Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982). 50 Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 151 (1970). 

probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition.’’ 49 Similarly, the Court in another case observed that ‘‘[g]eneralizations about standing to sue 

are largely worthless as such.’’ 50

Standing doctrines do not offer bright-line rules regarding when 

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

a party’s standing will result in extensive litigation. Therefore, to 

the extent that H.R. 1493 potentially further opens the door for 

any private party to claim the right to intervene, it would have the 

effect of delaying any settlement for years even if the party claiming intervenor status ultimately is unable to establish proper 

standing. 

VII. Amendments 

To highlight the foregoing concerns, several Members offered 

amendments illustrating the effect it would have on rules to protect 

public health and safety. Most of these amendments exempted from 

H.R. 1493 consent decrees and settlement agreements concerning 

certain categories of potential rules. 

For example, Representative John Conyers, Jr. (D-MI), the Committee’s Ranking Member, offered an amendment that would have 

exempted from the bill any consent decree or settlement agreement 

concerning privacy protection. Notwithstanding the numerous privacy concerns expressed by Members of Congress on both sides of 

the aisle in connection with recent revelations of government surveillance activities, the amendment was defeated by a 12 to16 vote. 

As discussed in the prior section, Representative Steve Cohen (DTN), the Subcommittee’s Ranking Member, offered an amendment 

that would have exempted from the bill any consent decree or settlement agreement concerning a potential rule protecting against 

discrimination on the basis of race, sex, national origin, or other 

protected characteristic. Although the Subcommittee’s Chairman 

made a principled argument in favor of this amendment, the 

amendment failed by a vote of 13 to 16. 

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

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

Executive Order 12898. This amendment failed by a 9 to 17 vote. 

Representative Hank Johnson (D-GA) offered an amendment 

that would have exempted from the bill any consent decree or settlement agreement concerning a potential rule that the Office of 

Management and Budget determines would result in net job creation. Belying the repeated assertion by the Majority that regulations undermine job creation, this amendment failed by a vote of 

11 to 17. 

Finally, Representative Mel Watt (D-NC) offered an amendment 

that would have stricken the bill’s open-ended intervention provision. This amendment failed by a vote of 11 to 17. 


emcdonald on DSK67QTVN1PROD with HEARING
38 

CONCLUSION

Like the myriad anti-regulatory proposals this Committee has already considered, H.R. 1493 is another solution in search of a problem. Proponents have failed to present any evidence to support the 

claim that agencies ‘‘collude’’ with plaintiffs to enter consent decrees or settlement agreements. Nonetheless, under the guise of 

transparency, this legislation will pile on new procedural requirements for agencies and courts that will hamstring, or outright discourage, the use of consent decrees and settlements. As a result, 

well-funded third party interests will have more opportunities to 

delay the resolution of litigation intended to force agencies to meet 

their legal obligations and it will become much harder to resolve 

such litigation quickly and cost-effectively. The cumulative effect 

will be to derail a time-honored tool that has helped protect the 

American public from harms including dirty air and water, unsafe 

products, and contaminated food. 

There are already procedures in place that could address any 

purported collusion or lack of transparency. Procedures originally 

implemented during the Reagan administration and carried forward to this day, along with other existing legal mechanisms, have 

been more than adequate to deal with any such problem. Other 

than unsupported allegations, however, proponents of H.R. 1493 

have failed to offer a convincing explanation as to why current law 

is insufficient in that regard. Instead, the bill employs ambiguous 

terms in key provisions that will actually generate additional litigation over their meaning, and could be used to undo critical civil 

rights protections. Finally, H.R. 1493 undermines existing civil procedure rules and undermines judicial discretion. 

For these reasons, we respectfully dissent and urge our colleagues to oppose this bill. 

JOHN CONYERS, JR. 

JERROLD NADLER. 

ROBERT C. ‘‘BOBBY’’ SCOTT. 

MELVIN L. WATT. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

STEVE COHEN. 

HENRY C. ‘‘HANK’’ JOHNSON, JR. 

LUIS V. GUTIE ́ RREZ. KAREN BASS. HAKEEM JEFFRIES. 

Æ 


emcdonald on DSK67QTVN1PROD with HEARING