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FEDERAL CONSENT DECREE FAIRNESS ACT, AND 

THE SUNSHINE FOR REGULATORY DECREES 

AND SETTLEMENTS ACT OF 2012 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, COMMERCIAL 

AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

ON

H.R. 3041 and H.R. 3862 

FEBRUARY 3, 2012 

Serial No. 112–83 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

HOWARD COBLE, North Carolina, Chairman 

TREY GOWDY, South Carolina, Vice-Chairman 

ELTON GALLEGLY, California 

TRENT FRANKS, Arizona 

DENNIS ROSS, Florida 

BEN QUAYLE, Arizona 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

JARED POLIS, Colorado 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 3, 2012 

Page 

THE BILLS 

H.R. 3041, the ‘‘Federal Consent Decree Fairness Act’’ ....................................... 2 

H.R. 3862, the ‘‘Sunshine for Regulatory Decrees and Settlements Act of 

2012’’ ..................................................................................................................... 11 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Commercial 

and Administrative Law ...................................................................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 19 

WITNESSES 

Roger R. Martella, Jr., Sidley Austin LLP 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 24 

David Schoenbrod, Trustee Professor of Law, New York Law School, Visiting 

Scholar, American Enterprise Institute 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 34 

Andrew M. Grossman, Visiting Legal Fellow, The Heritage Foundation 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 46 

John C. Cruden, President, Environmental Law Institute 

Oral Testimony ..................................................................................................... 65 

Prepared Statement ............................................................................................. 67 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on Courts, Commercial and Administrative Law .............................................. 99 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 100 

Response to Post-Hearings Questions from Roger R. Martella, Jr., Sidley 

Austin LLP ........................................................................................................... 102 

Response to Post-Hearings Questions from John C. Cruden, President, Environmental Law Institute ..................................................................................... 106 

Letter in opposition to H.R. 3041, from Kenny Cieplik, Kenneth Cieplik, 

and Paula Cieplik ................................................................................................. 112 

Letter from the American Bar Association (ABA) ................................................ 114 

Letter from the Natural Resources Defense Council (NRDC) ............................. 118 

(1) 

FEDERAL CONSENT DECREE FAIRNESS ACT, 

AND THE SUNSHINE FOR REGULATORY DECREES AND SETTLEMENTS ACT OF 2012 

FRIDAY, FEBRUARY 3, 2012 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, 

COMMERCIAL AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:32 a.m., in room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Gowdy, Ross, Quayle, Cohen, 

Conyers, Johnson, and Watt. 

Staff Present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; Johnny Mautz, Counsel; Rachel Dresen, Professional Staff 

Member; Omar Raschid, Professional Staff Member; Ashley Lewis, 

Clerk; and (Minority) James Park, Subcommittee Chief Counsel. 

Mr. COBLE. The Subcommittee will come to order. 

Today’s hearing will highlight two important pieces of legislation 

dealing with consent decrees. Oftentimes when the Federal Government is sued by special interests for failure to fulfill its regulatory 

obligations, the Government will enter a consent decree in lieu of 

litigating. In these cases, the plaintiffs are reimbursed for their attorneys’ fees, and the agencies are bound to the terms of the judicially approved decree. 

Unfortunately, consent decree cases have become so commonplace that they are referred to as ‘‘sue and settle’’ litigation, and 

they have created a new path of regulatory influence whereby special interests use lawsuits and the courts to force the Federal Government to implement its priorities in the form of regulations. 

Although consent decrees are efficient, they are not a wise method for issuing regulations. There is no public comment, and there 

is minimal disclosure, and they carry the force of law, which is difficult to overcome or challenge. 

The first of the two bills being considered today is H.R. 3041, the 

‘‘Federal Consent Decree Fairness Act.’’ This legislation is intended 

to enhance the ability of State and local governments to show that 

consent decrees should be changed or even terminated, including 

when voters elect a new State or local administration. 

[The bill, H.R. 3041, follows:] 

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Mr. COBLE. The other bill scheduled for our review today is H.R. 

3862, the ‘‘Sunshine for Regulatory Decrees and Settlements Act of 

2012.’’ This legislation would infuse much-needed transparency and 

disclosure into sue and settle litigation by adding several requirements that will provide notice to stakeholders and will ensure that 

these decrees are adequately approved. 

[The bill, H.R. 3862, follows:] 

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Mr. COBLE. Under the Administrative Procedure Act, stakeholders are protected by a set of rules that enable public notice of 

comment for proposed regulations. Another measure created by 

consent decrees is that there is typically no notice or public comment before a decree is approved, which is particularly disconcerting when the terms of the decree are pre-negotiated between 

the special interest groups and the Government. 

When this occurs, the special interest is the only stakeholder 

with an opportunity to comment on the decree or know what is 

being negotiated. In addition, the special interest is also being reimbursed for its attorneys’ fees by the Federal Government. I am 

not opposed to consent decrees, per se, but they should not replace 

or supplant our regulatory process. 

These decrees cannot account for social changes or technological 

innovation, and their covert nature undermines the fundamental 

principles of our notice and comment rulemaking system. 

I look forward to hearing from our witnesses today on these important and timely bills and reserve the balance of my time. 

On the panel is the distinguished gentleman from South Carolina, Mr. Gowdy; the distinguished gentleman from Arizona, Mr. 

Quayle; and to my left, the distinguished gentleman from Michigan, Mr. Conyers. Did you want to be heard on opening statement? 

Mr. CONYERS. Yes, Mr. Chairman—— 

Mr. COBLE. And John, if you would suspend for a minute? 

I am told there is going to be votes on or about 10:30 a.m. So 

we will try to move it along as quickly as we can rather than hold 

you all up as well. 

The gentleman from Michigan? 

Mr. CONYERS. Thank you, Chairman Coble. 

And I am pleased to be here this morning. To notice that we are 

taking up not one bill, but two bills, and I assume there is some 

relationship between the two that I would like to hear about as the 

hearing goes on. Because the second bill was only introduced on 

Wednesday of this week in the evening, which I think would hardly 

give the Members or the witnesses an opportunity to make some 

evaluation of it. 

So I am trying to understand what makes legislating on Federal 

consent decrees an important measure, and then we add to it a bill 

called the Sunshine for Regulatory Decrees and Settlements Act. 

These bills, I think, may undermine a key tool in guaranteeing the 

rights and protections that we have enacted for a long while, and 

in some ways, they may be very harmful to civil rights considerations and environmental law considerations because the consent 

decree, of course, is a voluntary settlement between the plaintiffs 

and defendants entered by a court and enforceable by judicial orders of the court. 

They are used frequently, and I haven’t heard any particular objection to them or abuse that requires our examination of Federal 

legislation modifying the rules that surround them right now. 

So I would like to point out that the major bill, 3041, could have 

the effect of virtually eliminating consent decrees against State and 

local governments by imposing unworkable time limits on them. 

This could present a very—this would worsen the utilization of consent decrees, not improve it. 

20 

And so, it seems to me that there may be a motive to prevent 

Federal regulatory actions from being implemented in 3862. It 

would needlessly slow down the process by which consent decrees 

are entered. 

So I think Rule 60 requires a court to revisit its decrees when 

changed circumstances merit modifying or even terminating such a 

decree. The Supreme Court has spoken on this in Frew v. Hawkins, 

that Federal courts must be deferential to State and local government prerogatives when considering whether a consent decree 

should be modified. 

And so, I think Attorney General Edwin Meese some three decades ago, and I haven’t praised his services recently, but I think 

he did set forth the guidelines to determine whether or not to enter 

in consent decrees and settlements. 

So I thank you for the opportunity to view these ideas and hope 

that any members of the panel that would like to comment to them 

as we proceed would please do so. 

Thank you, Chairman Coble. 

Mr. COBLE. I thank the gentleman. 

And I will say, Mr. Conyers, that drafts of the bill were made 

available I think on Sunday to the minority and also I think to the 

witnesses as well. Is that right, Daniel? 

We have been joined by Mr. Johnson. He is the distinguished 

gentleman from Georgia. 

And we will proceed as planned. I will introduce our panel of outstanding witnesses initially. Mr. Roger Martella is a partner of the 

environmental practice group of Sidley Austin LLP. He recently rejoined Sidley Austin LLP after serving as the general counsel of the 

United States Environmental Protection Agency, concluding 10 

years of litigating and handling complex environmental and natural resources matters at the Department of Justice and EPA. 

Mr. Martella’s practice focuses on three primary areas. First, he 

advises companies on developing strategic approaches to achieve 

their goals in light of rapidly developing demands to address climate change, promote sustainability, and utilize clean energy. Second, Mr. Martella handles a broad range of environmental and natural resources litigation and mediation. And finally, Mr. Martella 

advises multinational companies on compliance with environmental 

laws in the United States, China, the European Union, and other 

nations. 

Mr. Martella is a graduate of the Cornell University and the 

Vanderbilt University School of Law. 

Mr. Schoenbrod teaches environmental law at New York Law 

School and is the visiting scholar at the American Enterprise Institute. He has served as a senior staff attorney for the Natural Resources Defense Council, where he was instrumental in efforts to 

remove lead from gasoline. He is a pioneer in the field of environmental law and is currently examining how Congress could restructure environmental statutes so that their objectives can be 

achieved more effectively and efficiently. 

Professor Schoenbrod studies all major environmental areas. He 

also studies litigation in which court decrees dictate the management of governmental institutions such as prisons, schools, and foster care agencies. After receiving a bachelor’s degree from Yale, 

21 

Professor Schoenbrod was a Marshall Scholar at the Oxford University and later received an LLB also from Yale. 

Mr. Andrew Grossman is a visiting legal fellow in the Heritage 

Foundation’s Center for Legal and Judicial Studies, where he researches and writes about law and finance, bankruptcy, national 

security law, and the constitutional issues of separation of powers. 

Outside Heritage, Mr. Grossman is a litigator in the Washington 

office of the global law firm Baker and Hostetler. He also represents States in challenges to the constitutionality of Federal statutes and the legality of Federal environmental regulations. 

He also is active in commercial litigation and received a bachelor’s degree in economics and anthropology from Dartmouth College, a master’s degree in government from the University of Pennsylvania, and a J.D. from the George Mason University School of 

Law. 

Finally, Mr. John Cruden is the fourth president of the Environmental law Institute (ELI). Mr. Cruden joined ELI after serving at 

the U.S. Department of Justice, where he served as Deputy Assistant Attorney General, Environmental and Natural Resources Division, a position he has held since 1995. 

At the Department of Justice, Mr. Cruden supervised Federal 

civil environmental litigation involving agencies of the United 

States and oversaw the Environment Section and Environmental 

Defense Section. He has personally litigated and led in settlement 

negotiations in numerous environmental cases, many with reported 

decisions. He also has led the Department of Justice delegations to 

international environmental conferences. 

Mr. Cruden is a graduate of the United States Military Academy, 

University of Santa Clara, and the University of Virginia. 

We are blessed with an outstanding panel, and good to have you 

all with us. Gentlemen, we try to comply with the 5-minute rule. 

There is a timer on your panel there that will go from green to yellow to red. When the yellow—amber light appears, that is your 

warning that you have a minute to go, and the ice on which you 

are skating is becoming thinner and thinner. 

But you won’t be punished if you violate it, but if you could wrap 

up within 5 minutes, we will be appreciative to you. 

Mr. Martella, why don’t you start us off? 

If you will suspend, Mr. Martella, we have also been joined by 

the distinguished gentleman from North Carolina, my colleague 

Mr. Mel Watt, and Mr. Ross from Florida has joined us as well. 

Mr. Martella, you are recognized for 5 minutes. 

Mr. Martella, pull that mic a little closer or else it may not be 

activated. I don’t think your mike is activated. 

TESTIMONY OF ROGER R. MARTELLA, JR., SIDLEY AUSTIN LLP 

Mr. MARTELLA. Oh, is it working now? Thank you. Can you hear 

me? 

Again, good morning, Chairman Coble and Members of the Subcommittee. Thank you for providing me the opportunity and the 

honor to appear before you today. 

The subject of today’s hearing is critically important because it 

raises issues about fairness, transparency, and public participation 

in administrative rulemakings while providing a mechanism for the 

22 

executive branch to ensure sound and principled decision-making 

in this very litigious environment that we all inhabit. 

The focus of my testimony today is going to be on the Sunshine 

Act. 

By way of background, I am a lifelong environmentalist and a career environmental lawyer. I am very proud to have spent the majority of my career in public service, including at the Justice Department and as the general counsel of the EPA. I have also served 

and continue to serve with several environmental nongovernmental 

organizations. 

I would like to start with the uncontroversial proposition that 

rulemaking activity is built upon three bedrock principles of transparency, public participation, and judicial review. The Administrative Procedure Act guarantees these principles and protections for 

all citizens when the Government engages in rulemaking. 

However, the APA is confronting new challenges that in some 

cases are bypassing these important protections. Today, I want to 

share with you my concern about recent efforts to circumvent these 

protections in an emerging phenomenon I call ‘‘off ramp settlements’’ because they provide an off ramp to transparency, public 

participation, and judicial review. 

The concern arises out of a growing trend where certain groups 

increasingly are employing a sue and settle approach to the Government on regulatory issues. Such an approach effectively provides an off ramp that ignores these bedrock principles, including 

a lack of transparency. 

In off ramp settlements, discussions and agreements typically 

are reached with a subset of interested parties without full stakeholder input and frequently take place outside the boundaries of 

the public process. 

A lack of public participation. In most off ramp settlements, public participation is foreclosed twice. 

First, the agreement on how to regulate is reached without full 

input of stakeholders that are affected. Second, the negotiated 

deadlines for final rules are frequently so quick that the public’s 

comments might receive little weight in the actual subsequent rulemaking. 

A lack of judicial review. In off ramp settlements, parties frequently reach an agreement before a lawsuit is even filed, thus depriving interested parties from intervening in the litigation to defend their interests. Even where settlement occurs after intervention, such parties have little to no opportunity to participate in the 

settlement discussions. 

And finally, a conflation of governmental and nongovernmental 

roles. In these settlements, the plaintiffs effectively set the priorities and the timelines for how the Government enacts certain 

rulemakings over other competing resources and concerns. These 

concerns regarding off ramp settlements are not theoretical or abstract, but have been rising with increasing frequency in the last 

several years and are referred to by some of the plaintiffs themselves as ‘‘mega settlements.’’ 

Two recent examples include endangered species consultations 

where last year the Fish and Wildlife Service and certain groups 

filed joint settlement agreements committing the services to take 

23 

action regarding 600 species during fiscal years 2011 and 2012. 

And also greenhouse gas new source performance standards, where 

in December of 2010 EPA announced a consent decree with several 

groups committing the agency to propose and finalize the first-ever 

new source performance standards for greenhouse gases without 

any prior input from the affected stakeholders. 

EPA specifically proposed to have the first proposals in July of 

2011, 6 months after the consent decree, which was an unprecedented quick schedule the agency already has missed. 

Thus, the off ramp settlement approach risks the transparency, 

public participation, and judicial review protections Congress has 

established for all stakeholders in rulemakings. However, elements 

of the sunshine bill before the Subcommittee today could help ensure that these public protections remain in effect, while preserving 

the Government’s broad discretion to enter into settlement agreements in the first place. 

Specifically, provisions of the sunshine bill proposal would require transparency by providing a process for affected parties to be 

notified of proposed agreements so that such parties can assess 

whether to intervene. In environmental decision-making, transparency is a good thing not to be feared or avoided. 

The sunshine bill would provide public participation by allowing 

comment on any issue related to the matters alleged in the complaint or addressed in the proposed agreement. Government agencies would be required to respond to comments, and the court 

would assess whether the subsequent rulemakings allow adequate 

time for real public comment once the rulemakings commence. 

The sunshine bill would enable judicial review by providing for 

intervention prior to the finalization of an agreement. In addition, 

the proposal provides the opportunity to bring interveners to the 

settlement table to contribute ideas through a mediation process, 

and the sunshine bill would affirm the priority-setting discretion of 

agencies by requiring certifications on the creation of new mandatory duties. 

In conclusion, these key principles, promoted in the proposed 

Sunshine Act, will hopefully bring little controversy. The measure 

would preserve the ability of the Government to seek efficient settlement agreements with its full discretion while assuring along 

the way that information is shared, the public has an ability to 

participate and be heard, and that the views of the parties that 

could be adversely affected are considered by the agency and the 

court. 

Thank you again for the opportunity to share my views on these 

important proposals. I would be happy to answer any questions. 

[The prepared statement of Mr. Martella follows:] 

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Mr. COBLE. Thank you, Mr. Martella. 

Mr. Schoenbrod, you are recognized. 

TESTIMONY OF DAVID SCHOENBROD, TRUSTEE PROFESSOR 

OF LAW, NEW YORK LAW SCHOOL, VISITING SCHOLAR, 

AMERICAN ENTERPRISE INSTITUTE 

Mr. SCHOENBROD. Chairman Coble, Members of the Committee— 

I thought I pressed the button. Do you hear it now? Okay. 


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Thank you for the opportunity to be here today and testify. 

I am going to focus my comments on the Federal Consent Decree 

Fairness Act. The objective should be for Federal courts to enforce 

rights effectively, but in a way that intrudes as little as possible 

on the power of elected officials to make policy. 

But that is not what we have today. We have thousands of decrees against State and local government in Federal courts. Many 

of these decrees last for a very long time, and it is very hard for 

State and local officials to get the decrees changed, even though 

many of the well-intentioned ideas built into these highly detailed 

decrees prove to have unintended consequences. 

And I know that as a former plaintiff’s lawyer myself. They often 

fit badly with changing circumstances, and they are often contrary 

to the priorities that constituents expressed in new elections. 

State officials need to be able to modify the decree, but in a way 

that still protects rights. And that is not possible under current 

court rules, even though there is language from the Supreme Court 

that says that should be the case. 

We need Congress to step in to create a new rule, and the Federal Consent Decree Fairness Act is the right new rule. It is right 

in three particular ways. The timing for a motion to change the decree is right, the standard for changing the decree is right, and the 

burden allocation is right. 

As to the timing, the defendants are allowed to make a motion 

to change the decree in sync with the election cycle. That is the 

right timing in a democracy. 

Second, the standard for changing the decree is whether the 

rights would still be protected, and that is the right standard in a 

constitutional democracy where we care about protecting rights. 

The burden. The burden is placed on the plaintiffs to show the 

decree is still needed to protect the rights. That is the right allocation of burden. Otherwise, defendants have to prove a negative, 

and courts customarily place the burden on plaintiffs who want 

courts to stop elected officials from making policy. 

It is true that in these consent decrees some defendant Mayor or 

Governor once consented to the entry of the decree, but it is wrong 

to presume that the decree is still the right policy choice for the 

current Mayor or Governor elected in a subsequent election, especially, especially when the rights being enforced as popular rights. 

And we know they are popular rights because almost all these decrees are enforcing statutes enacted by Congress because constituents think they are a good idea. 

The burden should be on the plaintiff to show the decree is still 

needed. And if the plaintiffs can show that, then the decree should 

remain in force. 

Now it has been asserted that this Federal Consent Decree Fairness Act would prevent the continued use of consent decrees. I 

think that is just wrong. 

First of all, there are major, major incentives for litigants to 

adopt consent decrees. Current court rules say that if there is not 

a consent decree, the judge is strictly limited in what could be put 

into a decree. The judge has to hew very closely to rights. With a 

consent decree, the decree could go much more broad than that, 

cover other material. 

33 

Beyond that, the consent decree provides a way of rapidly getting 

a change rather than waiting for years of litigation. It reduces the 

uncertainty that comes from litigation and appeals. It means the 

plaintiffs’ attorneys get their attorney fees more rapidly. And beyond that, there is the right under the statute for the plaintiffs to 

show the decree is still needed. 

So the idea that this statute, this bill would prevent the use of 

consent decrees I think is simply wrong. 

A final point I would like to make is it seems to me that there 

is a special need for Congress to act in this matter now. Most of 

these decrees are to enforce statutes that Congress has enacted in 

areas like foster care and health and other matters. Most of these 

statutes give the States very wide discretion in how they implement them. 

However, the decrees take that discretion away. That discretion 

is needed because elected officials of the State and local government need the ability to adapt what they are doing to changing circumstances, to what has been learned. And that need for flexibility 

is especially important today when so many States and localities 

are in fiscal difficulty, and they need to find creative ways of doing 

what voters need better, faster, cheaper. 

And these old, ancient decrees, the thousands of them, many 

hundreds of pages long—and I myself, as a plaintiff lawyer, have 

drafted those decrees—put glue in the mechanism of government to 

adapt to change. 

[The prepared statement of Mr. Schoenbrod follows:] 

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Mr. COBLE. Thank you, Mr. Schoenbrod. 

I failed to mention earlier the two bills on this matter have been 

introduced by two of our colleagues. H.R. 3041 by the gentleman 

from Arizona, Mr. Quayle, and Mr. Cooper from Tennessee has introduced 3041. 


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Pardon? I stand corrected. Mr. Quayle is 3862. Mr. Cooper is 

3041. 

Mr. Grossman, you are recognized for 5 minutes. 

TESTIMONY OF ANDREW M. GROSSMAN, VISITING LEGAL 

FELLOW, THE HERITAGE FOUNDATION 

Mr. GROSSMAN. Mr. Chairman and Members of the Subcommittee, thank you for holding this hearing today and for inviting me to testify. 

My statement today, like my written testimony, will focus on 

consent decrees that restrict the future discretion of the Federal 

Government. In particular, I will discuss how these types of decrees threaten the constitutional separation of powers and democratic self-rule and what Congress can do about it. 

I will begin with the constitutional issues. It is important here 

to define terms. What we are concerned about are provisions of 

consent decrees and in some cases settlement agreements that purport to constrain the future discretion of executive branch officials 

or the legislative branch. 

Entry of a consent decree gives the court the power to enforce its 

terms on par with any normal judgment. The Federal Government, 

and the executive branch in particular, is not an ordinary litigant 

who may be subject to the judiciary’s powers in every single instance. It is a coequal branch of the Government with its own powers that it may not trade or share with the other branches. 

Particularly, those powers directly assigned by the Constitution 

to the President are inalienable. He may not, for example, agree to 

be bound in his exercise of the veto power or in his power to recommend legislation to Congress. Most broadly, he may not and 

should not bargain away the executive power, such as by cabining 

future exercises of discretion. Nor may he trade away powers that 

belong to Congress, such as the power of the purse. 

These prohibitions are not just legal niceties. Breaching the separation of powers has real consequences. In general, public policy 

should be made in public through the normal mechanisms of legislating and administrative law and subject to the give-and-take of 

politics. 

When, for reasons of convenience or advantage, public officials 

attempt to make policy in private, it is the public interest that suffers in a number of ways. First is the setting of priorities. Consent 

decrees can undermine presidential control of the executive branch, 

empowering activists and subordinated officials to set Federal priorities. 

Regulatory actions are subject to the usual give-and-take of the 

political process, with the Congress, outside groups, and the public 

all influencing an Administration’s or an agency’s agenda through 

formal and informal meetings. Not so in court. 

Second is transparency. Consent decrees are often faulted as secret regulation because they occur without public notice and participation. To be clear, consent decrees can effectively constitute 

regulation by requiring agencies to make specific policy choices in 

subsequent rulemakings, thereby taking certain issues off the 

table. 

45 

This runs counter to the wisdom embodied in the Constitution 

and in administration law. The public scrutiny and participation in 

law making leads to better substantive results. 

Third is the elimination of flexibility. As the Reagan administration learned the hard way, consent decrees limit the Government’s 

ability to alter its plans and to select the best response to address 

any given problem. In this way, they may freeze the regulatory 

processes of representative democracy. 

Fourth is that consent decrees undermine accountability by shifting responsibility from public officials to judges and private litigants. It is very convenient that tough issues can be foisted on the 

courts, but it is also damaging to our politic. 

None of these problems are intractable. There are solutions, and 

here is the easiest, most straightforward one. In an ideal world, the 

executive branch would take full responsibility for the exercise of 

its powers and would refuse to cede its authority to the courts and 

to private party litigants despite the promise of some short-term 

gain from doing so. 

But now let us consider the world that we are in. Congress can 

and should adopt certain common sense policies that provide for 

transparency and accountability in decrees that compel future Government action. 

First is transparency. All proposed decrees should be subject to 

notice and comment. DOJ should also be required to report to Congress in the Government’s use of consent decrees. 

Second is more robust public participation. An agency should be 

required to respond to comments, and parties that would have 

standing to challenge an action taken pursuant to a consent decree 

should have the right to intervene in a lawsuit where one may be 

lodged. 

Third, where a consent decree compels an agency to take regulatory action, it should have to demonstrate that its proposed 

schedule affords sufficient time to comply with all requirements 

and furthers the public interest. 

Fourth, let us give the public interest a seat at the table by requiring supporters of a consent decree to demonstrate by clear and 

convincing evidence with respect to the agency’s regulatory agency 

and mandatory duties that a proposed decree is actually in the 

public interest. This would reduce the risk of collusion between regulators and special interests. 

Fifth is to restore accountability. Before the Government enters 

into a consent decree, the Attorney General or agency head for 

agencies with independent litigating authority should be required 

to approve it personally. 

Sixth, and finally, is flexibility. If the Government moves to terminate or modify a consent decree on the grounds that it is no 

longer in the public interest, the court should review that motion 

de novo under the same standard that I previously described. 

I should note that these recommendations are largely reflected in 

the Sunshine for Regulatory Decrees and Settlements Act. This bill 

is the most significant step forward in this area since Attorney 

General Meese’s 1986 memorandum on the topic. 

Again, I thank the Committee for the opportunity to offer these 

remarks, and I look forward to your questions. 

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Mr. COBLE. Thank you, Mr. Grossman. 

Mr. Cruden, you are recognized for 5 minutes. 

TESTIMONY OF JOHN C. CRUDEN, PRESIDENT, 

ENVIRONMENTAL LAW INSTITUTE 

Mr. CRUDEN. Thank you. Thank you, Mr. Chairman and Members of the Subcommittee, for inviting me to testify. 

I have prepared testimony, which I asked to be placed in the 

record. Attached to that testimony is a dozen examples of very recent consent decrees involving municipalities, some of them which 

were amended, which I thought were truly important for your consideration—— 

Mr. COBLE. Mr. Cruden, is your mic activated? You appear to be 

a little muffled. 

Mr. CRUDEN. I am on now. 

Mr. COBLE. That is better. 

Mr. CRUDEN. Thank you. 

I am the president of the Environmental Law Institute. We do 

not lobby or litigate. We are an educational and research institution, dedicated to the rule of law. 

But before ELI, for 20 years, I led the Department of Justice’s 

effort in environmental enforcement and environmental defense. 

And so, I have dealt with consent decrees every day of my life 

while I was there, and I want to speak from that perspective. 

And so, let me say at the outset, as an environmental person, 

two important things. Consent decrees are extremely important. 

They are important for the rule of law. They are important to get 

environmental guarantees, and you will see those in the dozen examples that I gave to you, and you should not add any obstacles 

to those consent decrees. 

And second, there are already mechanisms to get amendments to 

consent decrees: Rule 60 of the Federal Rules of Civil Procedure, 

which has been the law a long time, given the ways. The Supreme 

Court has spoken in numerous instances about how you apply Rule 

60, making it clear that you give some deference to municipal authorities, but also making it clear that the burden is on those people trying to get out of a consent decree, as it should be. 

I have both legal and then just practical concerns based on my 

experience with consent decrees. Here are my legal concerns. 

First of all, there is already a mechanism in the law to change 

the Federal rules. If you look at 28 U.S.C. 2073, the Judicial Conference has the responsibility of looking at Federal rules. They 

have already amended Federal Rule 60 four times. That is the 

right way of going about changing a process like this. 

Second, any time you are starting to restrict the ability of Federal judges to act, particularly on things like their injunctive authority with regard to orders, you are really coming up to separation of powers issues, which I believe Congress should look very 

carefully at before acting. 

And then, finally, I actually think that H.R. 3041 restricts the 

authority of Mayors. I think you are telling Mayors—‘‘your decisions are time limited.’’ They are sovereign authorities as well, and 

they deserve our respect. 

66 

But let me provide some practical considerations. I gave you a 

number in my prepared testimony. I only want to single out a few. 

First of all, in my experience, consent decrees are actually hard 

to obtain. What you get for a consent decree you all know; finality 

and certainty. That is what you get. If you don’t get finality and 

certainty, and if I was still at the Department of Justice, I would 

advise then don’t do the consent decree. Just litigate to conclusion. 

Then you don’t have to worry about somebody getting out of the 

consent decree 4 years later. But that is not good public policy. 

If you go down that route; if, in fact, you have what I predict, 

and that would be that consent decrees would not be used, then 

you have way more transaction costs. You will have way more attorney fees. Everything will also take a lot longer to do. 

There are other disadvantages. Native American groups are 

bringing some of these enforcement actions, it disadvantages municipalities, which I will get to in a second, and it disadvantages 

citizen groups that are also bringing these actions because they 

simply can’t wait and see whether or not the municipality is really 

going to comply with the decree 4 years later. 

Now let me say something quickly about municipalities. Many of 

the consent decrees that I gave you as my examples were consent 

decrees that took a long period of time because they were expensive. Mayors actually have to get funding. Any uncertainty makes 

it very difficult for them to get that funding. 

And on top of that, I don’t think you want to tell Mayors in the 

United States: ‘‘We don’t trust you.’’ We trust you, in fact, to have 

multiyear, multimillion dollar contracts, but we actually don’t trust 

you to enter into consent decrees. 

Let me say something quickly about H.R. 3862. I actually think 

it also creates obstacles to resolution of litigation against the Federal Government, even when an agency is absolutely out of compliance with a congressional mandate. 

I strongly believe that adding more obstacles means you will 

have fewer consent decrees. We have found that judges actually 

give shorter timeframes, not longer timeframes for these type of actions. So an unintended consequence would be more litigation, and 

shorter timeframes. 

Let me sum up. Federally approved consent decrees are a valuable settlement tool that promote expeditious resolution of cases, 

save transaction cost, and achieve finality. Any necessary changes 

should be done through the process already established. I believe 

these two bills would effectively eliminate the use of consent decrees, undermine enforcement, and make resolution of litigation 

significantly more expensive and time-consuming. 

I look forward to any questions that you might have. 

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Mr. COBLE. Thank you, gentlemen, very much for your contributions to today’s hearing. 

Now we try to comply with the 5-minute rule as well. So if you 

all will keep your responses terse, we would be appreciative to you 

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Mr. Martella, would H.R. 3862 procedures be effective in limiting 

abuses of consent decrees and settlement agreements to advance 

special interests’ regulatory agendas, and why? 

Mr. MARTELLA. Thank you, Mr. Chairman. 

I believe that H.R. 3862 would be a significant step in the right 

direction of addressing the concerns we have been talking about, 

that basically groups are working with the Government to reach 

settlement agreements kind of outside of the transparent public 

participation realm and effectively reallocating Government resources and priorities, working in something of a quasi-governmental function. 

The proposed bill would address all of those concerns by introducing a guarantee of public participation and notification of such 

agreements. By allowing the public to be part of that, and one of 

the ideas of the bill that I think should really be commended, the 

notion that if someone intervenes in one of the cases, they would 

have an opportunity to be at the settlement table with the mediator. And in my view, that will actually result in a better government because all the considerations will be accounted for in that 

settlement agreement. 

So, for a number of reasons, I think the bill would be a strong 

step in the direction of addressing those concerns. 

Mr. COBLE. I concur with that. 

Would you say, Mr. Martella, that a significant number of important Federal regulations are promulgated under the sue and settle 

consent decrees and settlement agreements? 

Mr. MARTELLA. I think every year it is a higher and higher percentage. The trend is definitely that the regulatory agendas of several agencies, the EPA in particular, seems to be driven as much 

by the influence of outside groups as it is by Congress and the 

agency’s own priorities. This is becoming an increasing trend every 

single year. 

Mr. COBLE. Thank you, sir. 

Mr. Schoenbrod, does H.R. 3041 go beyond the Supreme Court’s 

decision in Horne, or does it simply clarify the rule that the court 

tried to articulate in that case? 

Mr. SCHOENBROD. It clarifies the rule that the Supreme Court 

laid down in Horne. It clarifies the basic idea. The problem with 

Horne, the reason why Rule 60(b)(5) is not a workable mechanism 

for changing decrees is that Horne is so confusing in terms of how 

you actually implement the principle that protect rights, but yet 

give flexibility. 

In Horne itself, which was remanded to the District Court in 

2009, there is yet to be a decision. And remember, the motion to 

modify the decree was started several years earlier. So you are 

talking 5, 6 years to get a change in public policy when life changes 

every day. 

There are literally thousands of these decrees and, in fact, only 

something less than 30 reported cases using Horne. We have a broken system, and there is nothing wrong with Congress fixing it directly. 

Congress, without the Judicial Conference, enacted the Prison 

Litigation Reform Act. It was upheld in French v. Miller. Congress 

could do that. 

87 

Now, Mr. Cruden raises the issue of Department of Justice decrees in cases against State and localities. I think there is a different question when you have Department of Justice actions 

against States and localities. 

In cases like pollution control versus the kind of institutional reform cases that is the focus of the idea of the Prison Litigation Reform Act—excuse me, the Federal Consent Decree Fairness Act. 

And indeed, in a previous version of the bill, there was a carve-out 

for Department of Justice enforcement actions. That may be sensible to deal with the kind of concerns that Mr. Cruden raises. But 

otherwise, we need this bill. 

Mr. COBLE. Thank you, sir. 

I am going to move along, trying to beat the House floor vote, 

which is imminent. 

I am going to recognize the distinguished gentleman from Tennessee, the Ranking Member, Mr. Cohen. 

Mr. COHEN. Thank you. Thank you very much. 

I think the genesis of a lot of this legislation came from Tennessee, and it was introduced by Senator Alexander. And it was a 

result of the TennCare case, which is our Medicaid, where there 

was a very bright, committed, and determined plaintiff’s lawyer arguing on behalf of the poor, who had very little in the way of 

healthcare from a State that depends on the sales tax as its foundation for its budget, which makes it regressive, inadequate to 

have the monies to take care of the poor and yet drawn in such 

a way as to affect them in a most disadvantaged manner because 

it is regressive. 

And a Governor at the time who was a brilliant man, who is a 

healthcare expert, and thinks that nobody is better than him. And 

so, it set for a very difficult situation. And there was the immovable object and the irresistible force with Mr. Bonnyman and Governor Bredesen. 

The fact is, as I looked at it, and I understood the problems with 

the consent decree, there was really nobody speaking for the poor 

and the sick but Mr. Bonnyman. And there was a need for that 

consent decree, and that—the Governor didn’t want to have it. He 

thought he knew how to do everything. He certainly didn’t. 

As I look at this and I listen to Mr. Cruden, who has got all this 

experience, I just think that if you had a Governor like that or any 

Governor who didn’t want to get into a consent decree and their 

term was going to come up, you would have attorneys on the defense side who would just engage in dilatory tactics to try to spread 

the thing out to get close as they could to the end of that Governor’s term before they got to anything, and therefore, there would 

be nothing. 

And there really would be no incentive for the plaintiffs, who 

want to help the people that need healthcare to enter into a consent decree because it could be turned around at the end of the 

term or in 4 years, whichever comes first. So the loser in the case 

would always be speedy justice and the aggrieved party. 

I don’t understand it. Mr. Cruden, maybe you could explain. 

These bills all, both of them, say that the plaintiff would have to 

come in and justify their actions. Why should it be that the folks 

who are citizens, who are aggrieved, who are being denied rights 

88 

guaranteed them by their Constitution or their government and 

have been denied them, have to come back just because there has 

been a change in the leader? 

The factors that led to the deprivation of rights, doesn’t it seem 

like the State, in its new incarnation with the election, should have 

to at least show why it is now some superior position and doesn’t 

need to be chastised and reprimanded and forced to do what they 

should have done because of their wonderful spirit and souls? 

Why shouldn’t it be the other way around, that the defendants 

have to come in and show the court why you don’t need the consent 

decree? Doesn’t it say that the plaintiffs have to come and prove 

that it has to be continued? 

Mr. CRUDEN. If you think about it, Congressman, in some ways 

consent decrees are like a contract. Everybody is coming together 

and having a contract that everybody did in good faith. Everybody 

made promises. Everybody said, ‘‘I will live by this.’’ 

But the person that wants to get out of that contract ought to 

bear the burden of trying to show why that is appropriate. Why 

isn’t that true now? If there are different circumstances, if there 

are different facts, if the world has changed, okay. But it ought to 

be the burden—just like every Supreme Court decision that has 

been mentioned says that. The burden is on the person trying to 

get out of the deal that at some stage somebody promised that they 

were going to do. 

Mr. COHEN. So why isn’t that a better idea, Professor? You 

want—I see you are putting your finger to the mike. I appreciate 

your interest. Why isn’t that a better idea than having the plaintiffs have to come forth, normally who have less resources and have 

to come in and show why justice should continue? 

Mr. SCHOENBROD. Justice Brennan wrote that ‘‘nothing would so 

jeopardize the legitimacy of our system of government that relies 

upon the ebbs and flows of politics to clean out the rascals’’—that 

is in quotes—‘‘than the possibility that those same rascals might 

perpetuate their policies simply by locking them into binding contracts.’’ 

Now, once the consent decree is entered, the judge has full power 

to use contempt to make the people that entered into the decree 

obey it. Now when it is the end of the term and you have got a 

new Governor coming or a new Mayor coming in, then the plaintiffs’ lawyers have the ability to show the decree as still needed. 

And until the decree is modified, it is still enforceable. 

Most of these decrees have built into them provisions that require the defendants to give the plaintiffs all kinds of information, 

basically an ongoing discovery. Plus, there is discovery. So the 

plaintiffs and often the plaintiffs’ lawyers have better—and I could 

tell you, I was in this position myself as a plaintiff lawyer—have 

better information than does the Mayor as to what is going on. 

So if there is a problem, the plaintiffs’ lawyers ought to be able 

to show it. And when they can show it, the decree should stay in 

force, and it should be punishable through the power of contempt. 

Mr. COHEN. Well, my red light has gone off, but I am going to 

take this opportunity just to ask you. You are an NRDC alum, 

aren’t you? 

Mr. SCHOENBROD. Yes, I am, sir. 

89 

Mr. COHEN. Are you a Keystone XL opponent? 

Mr. SCHOENBROD. I think Keystone is a bad idea. 

Mr. COHEN. Good. 

Mr. SCHOENBROD. I am against the pipeline. 

Mr. COHEN. Thank you, sir. Just checking. 

Mr. COBLE. You worked that one in very cleverly, Mr. Tennessee. 

[Laughter.] 

I would be remiss if I didn’t recognize Ray Smietanka, who used 

to be a longtime staffer. Ray, good to see you again. 

The distinguished gentleman from South Carolina, Mr. Gowdy, is 

recognized for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

I want to thank you for your leadership on this Subcommittee, 

and I want to, given the hard work of my friend and colleague, the 

gentleman from Arizona, Mr. Quayle, I wanted to allow him to ask 

his questions first in light of the pending votes and because of his 

expertise in this area. 

So I would give my time to my friend from Arizona. 

Mr. COBLE. The gentleman from Arizona is recognized. 

Mr. QUAYLE. Oh, I thank the gentleman from South Carolina, 

and thank you, Mr. Chairman, for holding this hearing, and for the 

witnesses for being here. 

During your testimony, Mr. Cruden, it was interesting that you 

brought up the fact that some of these bills might have a negative 

effect on Native Americans. And it is precisely the negative effect 

that some of these consent decrees have on the Native American 

community in Arizona, which is one of the interests that I have 

been in trying to solve some of these issues. 

More specifically, it was late last year that the EPA entered into 

a consent decree with the National Parks Conservation Association 

and eight other environmental organizations, and this consent decree would require the Navajo generating station to invest over 

$1.1 billion in emission control equipment or just shut down. This 

could cost hundreds of jobs for tribal members up in the northwest 

part of Arizona. 

And if it does go through, this is going to actually end up costing 

all Arizonans about a 20 percent increase in energy. So that 

there—you were mentioning some of the negative consequences for 

Native Americans, but there is also negative consequences for these 

consent decrees that they are adamantly opposed to because they 

haven’t been able to get the right to actually comment on it in the 

public sphere. 

And so, if you could just address that really quickly? 

Mr. CRUDEN. I will. Of course, Native Americans in some instances are bringing the cases, and in some cases, the case is being 

brought against them. 

One misnomer about consent decrees, they don’t go into court by 

themselves. They go in with a complaint. So there will be a complaint signed, in this case by a United States attorney probably, 

that lists all of the violations of law that exist. Then the complaint—then the consent decree resolves those violations by Department—— 

Mr. QUAYLE. But a lot of the consent decrees—— 

90 

Mr. CRUDEN. Just one sentence. By Department of Justice policy—— 

Mr. QUAYLE. I have very limited time, sorry. But a lot of these 

times where they are—actually, the complaint is filed at the same 

time that the settlement is filed as well. So you don’t even get that 

day in court. It is actually just, hey, we have put the complaint in, 

and we have the settlement. So whoop-de-doo, these are all done 

behind closed doors. 

Mr. CRUDEN. In those cases, two things. In those cases, sometimes they are, and there might have been a year of negotiations. 

But in the instance that you are talking about, which would have 

been an enforcement action, by Department of Justice policy, the 

consent decree is public. There will also be public comment taken 

on it. The judge is only given the consent decree but not asked to 

make it final until after there is public comment on that enforcement action. That is being done right now at DOJ—— 

Mr. QUAYLE. Right. Except the problem is that it is very limited 

in the public comment. It is much more limited than the normal 

regulatory process, as Mr. Martella talked about with the off ramp. 

But I want to get to Mr. Martella, especially since we both went 

to Vanderbilt Law School. So I really value your testimony here. 

But one of the things that—I want to get your take on this. One 

of the concerns that I have in some of these sue and settle agreements is that you have a certain private interest group that comes 

to Congress, lobbies for some statutory language to be put in. It is 

politically viable, but it sets a timeframe that is unrealistic in 

terms of being able to implement this. 

And that is where the sue and settlement comes into fruition because they are able to get it through because they have lapsed in 

the timeline, and they can go in and get a more stricter rule applied via that process. Do you think that this abuse is happening 

right now, and does the Sunshine Act actually help address some 

of those issues? 

Mr. MARTELLA. I think it is happening a lot. I actually think, as 

someone who has been in a number of Federal agencies, that the 

pressure of having the deadlines that Congress sets, with limited 

resources, then the added pressure of having to rejiggle those priorities and those resources based on these settlements adds an entire 

new level of complexity because you only have limited resources. 

And if you have this deadline and all of a sudden, you have entered an agreement that says now the party has that deadline, first 

of all, the new deadline is probably unrealistic, as shown in a couple examples, but how are you going to meet the first deadline at 

the same time? So it really creates a total conundrum for these 

agencies with very limited resources and creates these outside influences on what the priorities really are. 

Mr. QUAYLE. Thank you. 

Mr. Grossman, I just wanted, along those same lines. You have— 

the Dodd-Frank bill was passed not too long ago. However, it is estimated that three-fourths of the rulemaking deadlines in DoddFrank have lapsed. 

Do you have concerns that there will be a spike in the current 

Administration entering into these agreements this year because of 

91 

all the lapses within Dodd-Frank, and how will that have an effect 

on our financial system? 

Mr. GROSSMAN. I am gravely concerned that we are going to see 

repeats of what we saw at the end of the Carter administration 

where the Administration entered into numerous consent decrees 

that for the next 8 years wound up tying the hands of the Reagan 

administration, which had a very different view and was, to some 

extent, unable to carry out its electoral mandate, was hobbled in 

that because of these consent decrees. 

In this sense, they undermine representative democracy, and 

that is very serious. 

Mr. QUAYLE. Thank you very much. 

Thank you, Mr. Chairman and the gentleman from South Carolina. 

I yield back. 

Mr. COBLE. Thank you, Mr. Quayle. 

The distinguished gentleman from Georgia, Mr. Johnson, is recognized for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Indeed, for the Koch brothers, things go better with the Keystone 

pipeline. And—it is on. Things go better with the Keystone pipeline. And so, Professor Schoenbrod, I am amazed that you would 

come in and say that you were opposed to the Keystone pipeline, 

especially when the Koch brothers are so intimately associated 

with the organization that you work for, the American Enterprise 

Institute. 

Mr. SCHOENBROD. Well, to answer your question—— 

Mr. JOHNSON. But let me move to Mr. Martella. Mr. Martella, 

you described yourself as an environmental lawyer, but in fact, it 

would be better to say that you are a corporate environmental lawyer. Is that true? 

Mr. MARTELLA. My existing clients are corporations—— 

Mr. JOHNSON. Well, I mean, yes, you started out at the law firm 

where you are situated now representing corporate clients, and 

then you went into Government with the Bush administration, correct? 

Mr. MARTELLA. Actually, if I could correct that? I wasn’t. I was 

a career civil servant for, I think, 111⁄2 of my 13 years of public 

service as general counsel and—— 

Mr. JOHNSON. With the Bush administration, right? 

Mr. MARTELLA. At the end of my career, yes. I was hired by the 

Clinton administration, promoted by the Clinton administration—— 

Mr. JOHNSON. And of course, the Bush administration was not 

interested in any regulations whatsoever, and you were, when you 

say that you were an environmental lawyer, you were actually an 

anti-environmental lawyer, and you are still an anti-environmental 

lawyer, looking at your clients. And you represent a lot of corporate 

clients, both in litigation and strategy, advice, consultation, on how 

to get around the environmental regulations that Congress or that 

the EPA may enact through its rulemaking authority, pursuant to 

congressional legislation. 

And so, we appreciate you being here, but who is your client 

today? 

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Mr. MARTELLA. Well, I think—— 

Mr. JOHNSON. Is it a business that you are representing, or is it 

a philosophy? 

Mr. MARTELLA. I am here in my personal capacity. And I think 

I am really here—— 

Mr. JOHNSON. So you are not getting—you mean to tell us that you are here and you are not on the clock, making $600, $700 an 

hour? 

Mr. MARTELLA. I am not on any clock. I am actually very much 

thinking of my three children, who are 12, 8, and 5, and who, in 

my role as an environmental lawyer, is to make sure that when 

they grow up, they have a stronger environment than we have 

today. 

Mr. JOHNSON. Well, I know that they will have—they may even 

end up in the 15 percent tax bracket with the kind of moves that 

their daddy is making in the business world. And I appreciate that. 

I am a lawyer myself and represent various interests. So I am not 

speaking of you personally. I am just speaking of the interests that 

you represent. 

But, Mr. Grossman, you—— 

Mr. MARTELLA. And I think your stereotype is unfortunate. 

Mr. JOHNSON. Mr. Grossman, you are a graduate of George 

Mason University, correct? 

Mr. GROSSMAN. Yes. 

Mr. JOHNSON. The law school. George Mason University Law 

School, a public university in Virginia that has received more than 

$30 million from the Koch brothers. And you are also familiar with 

the Mercatus Center, which is—— 

Mr. GROSSMAN. I believe it is Mercatus. 

Mr. JOHNSON. Mercatus? Yes, you are familiar with it. And its 

goal is to deal with how institutions affect the freedom to prosper. 

That is—— 

Mr. COBLE. Mr. Johnson, would you suspend just for a moment? 

Mr. JOHNSON. I will, without waiving any time. 

Mr. COBLE. Well, you seem to be going far afield here. If you 

could confine it to the issue at hand. 

Mr. JOHNSON. Well, you know, it goes to the credibility of these 

three witnesses, all of whom have connections to the Koch brothers, 

and we have got—I mean, this is not the first hearing where this 

has happened, where we have had a full monty, if you will, of Koch 

brothers-influenced lobbyists. And I think you are a lobbyist, too, 

aren’t you, Mr. Grossman? 

Mr. GROSSMAN. No, I am not. And let me add—— 

Mr. JOHNSON. You are not a registered lobbyist? 

Mr. GROSSMAN. No, I am not. I have not engaged in any lobbying 

activity ever, so far as I am aware. 

Mr. JOHNSON. But the Mercatus Institute, you are a product of 

that? 

Mr. GROSSMAN. I have never even set foot in the Mercatus Institute. You are alleging that my connection with the Koch brothers 

is that I attended a law school—— 

Mr. JOHNSON. Don’t the Koch brothers donate money to George 

Mason University? 

Mr. GROSSMAN. Pardon? 

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Mr. JOHNSON. Koch brothers donate money to George Mason 

University? 

Mr. GROSSMAN. Who donated money to your university? Beats 

me. 

Mr. JOHNSON. Do they maintain editorial control over what 

comes out of that university’s think tanks? 

Mr. GROSSMAN. I don’t even know what that would mean in a 

university setting, and I was a student at the university, rather 

than an employee or a lobbyist or of its think tanks. 

Mr. JOHNSON. Well, you grew up in that environment, and you 

are a reflection of that environment in your professional role here 

today. And that is the point that I want to make. 

Thank you. 

I will yield back. 

Mr. COBLE. Mr. Martella, I may be wrong. I may be inaccurate 

in this, but you worked with the Clinton and the Bush administration, did you not? 

Mr. MARTELLA. Thank you, Mr. Chairman. 

Yes, I was hired by the Clinton administration. I was actually 

promoted by the Clinton administration. And as I mentioned, I was 

very proud to be a career civil servant for virtually the entirety of 

my career, and I was unanimously confirmed by the United States 

Senate, with the support of Barbara Boxer and Senator Obama at 

the time. 

Mr. COBLE. Well, thank you, sir. 

Mr. CRUDEN. Congressman, I would ask a point of personal privilege. 

Mr. COBLE. Yes, sir. 

Mr. CRUDEN. Mr. Martella and I may not agree on the impact 

of H.R. 3862, but I have known this gentleman for 15 years. He 

is a man of great integrity and is a great environmental person. 

Mr. COBLE. Well, and I stand by my opening statement when I 

said we were blessed with an outstanding panel, and I included all 

four of you. 

Now let me shift my weight to my right. Mr. Quayle, I think procedurally, you are up next even though the gentleman from South 

Carolina yielded to you earlier. Mr. Ross, is that—— 

Mr. QUAYLE. Since the gentleman from South Carolina yielded to 

me, I will yield to the gentleman from South Carolina. 

Mr. COBLE. And if the gentleman will suspend? Folks, it looks 

like we may be paying the preacher in this case because I think 

we are going to beat that floor vote. So if you all will proceed, Trey, 

you are recognized for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

I thank the gentleman from Arizona. 

I am actually not going to ask the questions that I had drafted 

to ask. I will submit those in writing. 

Instead, I am going to do something which often isn’t done in 

congressional Subcommittees, which is ask a question and then not 

interrupt the person while they are trying to answer it. So, Mr. 

Martella, take a minute and say whatever you would like to say, 

given the fact that your credibility was unsuccessfully impeached. 

94 

And then, after that, Mr. Grossman, you take a minute and you 

say whatever you want, given the fact that your credibility was unsuccessfully impeached. 

Mr. MARTELLA. Well, thank you, Congressman. And I appreciate 

the opportunity. 

I think the one reaction I would have is I think stereotypes are 

always unfortunate, and it seems like there was a suggestion of a 

stereotype that because I work for a law firm today and because 

I represent corporations that, therefore, necessarily I don’t care 

about the environment. 

And I think nothing could be farther from the truth. I have always seen myself as an environmentalist. Of my 15-year career, 12 

were spent as Government civil servant doing that. And today in 

my job what I am very proud of, despite the stereotypes, is I don’t 

just represent corporations in a way to skirt the law. What I do is 

I work with corporations to find ways to comply with the laws and 

help ensure that we have solutions that incorporate a wide range 

of stakeholders, including environmental groups, including the 

Government. 

I would estimate in half of the cases I have in court, I am actually defending the EPA on behalf of corporations. It is the environmental groups who might be challenging something at the EPA, 

and we are actually defending the Obama administration EPA. 

And I am proud of the fact that in half of the cases, we are on that 

side. 

I mentioned as the father of three children, my overriding concern in my day-to-day job is that we have a better environment for 

them than we do for ourselves today. And I think anyone who is 

a father or mother here would agree with that. 

So, again, if I could help perhaps address those stereotypes today 

or at some other point in the future, I would be happy to do so, 

but thank you for giving me that opportunity. 

Mr. GOWDY. Thank you, and thank you for being here. 

All the witnesses, whether I agree with them or not, are doing 

us a courtesy and a favor by loaning us their expertise. 

And Mr. Grossman, Professor, in fairness to you, you wanted to 

answer a question. Given the fact you don’t support Keystone, I am 

going to give the remainder of my time to a guy I know that does, 

Mr. Quayle. [Laughter.] 

So after you go, Mr. Grossman, I am going to give the time back 

to my friend from Arizona. 

Mr. GROSSMAN. Thank you. 

Mr. COBLE. Mr. Grossman, if you would suspend just a minute? 

I want to commend the gentleman from South Carolina and the 

gentleman from Tennessee for very cleverly having inserted this 

issue into the dialogue. 

And Mr. Cruden, thank you for your comment as well earlier. 

Mr. Grossman? 

Mr. GROSSMAN. I don’t feel the need to respond directly to baseless ad hominem attacks. I think my work speaks for itself, but 

thank you. 

Mr. GOWDY. Very well. I would give the remainder of my time 

to the gentleman from Arizona, Mr. Quayle. 

Mr. QUAYLE. Thank you very much. 

95 

And I want to echo what the gentleman from South Carolina 

said, that we have an excellent panel. We might not agree on everything, especially the Keystone pipeline, but they do provide 

their expertise and their knowledge to all of us so that we can 

make more informed decisions on the type of legislation that we 

need to move forward. 

So now that we have gotten past one of the favorite bogeymen 

of the Koch brothers and we can get back to the issue of these two 

pieces of legislation, it would be great to talk about, Mr. Grossman, 

you mentioned the Meese memo. 

And there was a lot of talk in the written testimony about the 

Meese memo. Do you have any concerns with the Meese memo, or 

do you think that anything within the Meese memo that was not 

put in or the ideas that in H.R. 3862 could be incorporated to make 

it a stronger and better bill? 

Mr. GROSSMAN. Thank you. 

I think the Meese memorandum was really a path-breaking way 

of looking at this problem. It identified a problem that certainly the 

legal academy and a lot of practitioners did not realize before, and 

it really is the definitive statement in this area. 

I think the bill appropriately incorporates the provisions of the 

Meese memorandum in that it would be inappropriate from potentially a constitutional point of view, but probably from a policy 

point of view for Congress to limit in the way the Meese memorandum does the executive branch’s settlement authority. 

But I think that the legislation takes a much more thoughtful 

approach by using the Meese memorandum as a basis to judge 

which types of settlement agreements and consent decrees raise 

special concerns that require high-level authority and high-level 

discretion to execute. I think that is exactly the right approach, 

and I commend the authors of the bill for taking it. It is the right 

way to do it. 

Mr. QUAYLE. Okay. Thank you. 

And Mr. Martella, I am a new father as well, and I want the environment to be better than it is now. And I think that you might 

agree that environmental stewardship and economic growth are not 

mutually exclusive. 

And one thing I want to know about the sue and settlement 

agreements, have they been happening more or less on major rulings rather than minor ones? I just want to get your sense as 

where they actually are occurring. 

Mr. MARTELLA. I think it is across the board. I think they are 

more publicized when it is on major rulemakings, and the impacts 

are more significant. But I think we are seeing in a wide range of 

settlements. 

And again, my point here today is not to suggest the Government 

shouldn’t settle these cases. I strongly advocate settlement over 

litigation in virtually every instance. 

To me, what is important is getting all the stakeholders around 

the table. It is transparency, public participation, judicial review. 

These are the bedrock principles of our democratic system, and I 

am only here to say that we should be enforcing these principles 

and guaranteeing protection for them. 

Mr. QUAYLE. Great. Thank you very much. 

96 

I yield back. 

Mr. COBLE. Thank you, Mr. Quayle. 

And finally, the distinguished gentleman from Florida, Mr. Ross, 

is recognized. 

Mr. ROSS. Thank you, Mr. Chairman. 

Mr. COBLE. You have been very patient, Mr. Ross. 

Mr. ROSS. Oh, I have been enjoying this. Unfortunately, it hasn’t 

been a very nice process to my State, the great State of Florida. 

You know, and it is what these consent decrees, what I call ‘‘regulation by litigation.’’ It seems to me that it would be almost easier 

to have regulatory agencies encourage the sue and settle so that 

they could circumvent the regulatory hearing process to enter into 

consent decrees with third parties that don’t involve the actual affected parties. 

And Mr. Cruden, I appreciate your analysis and, in fact, believe 

that, empirically speaking, consent decrees work the way you have 

testified. However, from a personal perspective and from a practical perspective, dealing in my State specifically with numeric nutrient water criteria, that has not been the case. 

In fact, you may be familiar with this particular issue because, 

pursuant to the 2003 Clean Water Act, my Department of Environmental Protection in the State of Florida began doing their own numeric—well, quantitative water analysis. We are surrounded by 

water on all three sides. We have got a lot of inland water, and we 

know that clean water is important not only to our health and livelihoods, but also to our business and to the commerce of our State. 

So DEP is going about trying to provide their own water standards, and all of a sudden, Earthjustice comes along, files suit 

against the EPA, and says, ‘‘Look, they are not going fast enough. 

We want this taken care of.’’ 

And then what happens? Well, absent the State of Florida being 

involved in a consent decree negotiation, absent the interveners 

being involved in the consent decree negotiation, suddenly, a consent decree is issued that impacts my State economically that will 

cost over 14,000 jobs, that its capital costs on municipal wastewater plants will exceed $21 billion. 

Estimated costs of anywhere between $3.1 billion to $8.4 billion 

over the next 30 years to comply. And what we have seen, Mr. 

Cruden, is not that we are telling Mayors that we don’t trust them, 

but what we are telling my State Department of Environmental 

Protection is that we don’t trust them. 

And it seems to me that we have circumvented, as Mr. Grossman 

indicated, the public notice and comment process. What would be 

wrong, what would be wrong for requiring not only transparency, 

but also that all parties come to the table and be engaged in the 

consent decree process? 

Mr. CRUDEN. One of the things, and I think, by the way, I am 

not involved in that case. But I certainly was involved in the Florida Everglades consent decree—— 

Mr. ROSS. Yes, sir. 

Mr. CRUDEN. And that has another history of going through 

modifications, attempted modifications. But we probably would not 

be where we are today with that great natural resource, which I 

97 

am sure you would agree, without what was done by the State in 

that decree. 

But I think one of the things we are losing sight of is that these 

consent decrees, whether or not they are for rulemaking, for anything else, are because there is somewhere a mandatory duty and 

a violation of the law. I have seen countless cases, countless cases, 

where I was on the receiving end, where some group—by the way, 

could be a corporation—saying an agency was supposed to have a 

rule and they haven’t done so for 10 years. 

Mr. ROSS. But we were in the process. We were in the process. 

Mr. CRUDEN. But my point is they are already violating the law, 

and so the consent decree in those cases sometimes is only—— 

Mr. ROSS. Violating according to who? I mean, the unique perspective of the State of Florida is that we are the only peninsular 

State, that we have natural water resources that are more abundant and more precious than most other States, with all due respect. 

But our livelihood depends on it. Who would know better than 

us, whose livelihoods depend on these natural resources, than how 

to maintain them and keep them clean? And here we are, being expedited in a process by a third party without the transparency. 

Mr. CRUDEN. I can’t speak at all because I just simply don’t know 

the individual case that you are mentioning. I don’t doubt that it 

is important. Most of these consent decrees, however, that go to 

rulemaking, which is what we are talking about with this legislation, the rulemaking itself has notice and comment, has an opportunity to be heard. And if people are not happy with the end result, 

there is an opportunity to fully challenge it in court. 

Mr. ROSS. Well, if they challenge—— 

Mr. CRUDEN. That exists also under the Administrative Procedure Act. 

Mr. ROSS. And you also indicate that you can modify it, but you 

have to show a significant change in circumstances that warrants 

the revision. Absent having all the parties at the table at the time 

the consent decree is issued, seems to me that meeting the burden 

of a significant change in circumstances is going to be much harder 

and not equitable. 

But let me move on real quickly. I want to go to an issue of 

standing. One of the issues that I think is very important is if we 

are going to have third parties enter into these settle and sue procedures, should we not address the issue of standing? Should they 

not have some sense of standing that they are affected by the actual regulatory rule that is being promulgated? 

And Mr. Martella, I will start with you. I know I am out of time, 

though. 

Mr. MARTELLA. Well, I think standing is a critical issue on both 

sides, and I think one of the concerns—if I could perhaps even rephrase the concern from my perspective, is the lack of a level playing field. Even if the environmental groups do have standing, there 

are other affected parties who have standing, too. If it is a rulemaking, there may be trade associations or other groups that are 

affected by it, but they don’t have the same standing at the table 

with the Government when it comes to these negotiations. 

98 

I would argue that if you are going to look at the standing of one 

party, because they are impacted by something, you have to look 

at the standing of all the parties who are impacted, bring them to 

the table. And frankly, that is exactly what the Sunshine Act does. 

Mr. ROSS. Thank you. 

I see I am out of time. Mr. Chairman, thank you. 

Mr. COBLE. Thank you, Mr. Ross. 

Gentlemen, this is the first step of subsequent steps to follow, an 

important hearing, and I thank the Members of the Subcommittee 

for their attendance. 

I thank each of the four witnesses for your contribution through 

your testimony today. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as they can so that their answers may be made a part of the 

record. 

Without objection, all Members will have 5 legislative days to 

submit additional material for inclusion in the record. 

With that, again thank the witnesses, and this hearing stands 

adjourned. 

[Whereupon, at 10:43 a.m., the Subcommittee was adjourned.] 

(99) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Ranking Member, Subcommittee on Courts, Commercial and Administrative Law 

The debates that this Subcommittee has engaged in during this Congress often 

veer into abstractions. 

But what can get lost in the back-and-forth about the proper scope of Federal 

power, states rights, separation of powers, checks and balances, judicial activism, 

and political accountability is the fact that how we come out on these important 

questions can have a tremendous impact on ordinary people’s lives, for good or ill. 

I hope that we keep this reality the central focus as we consider H.R. 3041, the 

‘‘Federal Consent Decree Fairness Act,’’ and H.R. 3862, the ‘‘Sunshine in Regulatory 

Decrees and Settlements Act of 2012.’’ 

Consent decrees are an important means by which plaintiffs can seek to remedy 

violations of Federal rights by state and local governments. They can also be used 

to ensure that Federal agencies are meeting the mandates set for them by Congress. 

Consent decrees, therefore, are commonly used to resolve a wide variety of cases 

involving civil rights, voting rights, disability rights, and environmental protection, 

among other things. 

Consent decrees can benefit both plaintiffs and defendants by allowing for timely 

resolution of disputes without the risks and costs associated with prolonged litigation. 

Defendants can also avoid determinations of liability and the risk that a costly 

or cumbersome solution simply will be imposed on them should they lose the suit. 

Moreover, the use of consent decrees in Federal court litigation is in keeping with 

the broader judicial and Congressional policy of encouraging settlement. 

I have no doubt that, as with anything else, not all consent decrees are perfect. 

If I think long enough about it, I might even think of a few that would give me 

pause as to their continued usefulness or necessity. 

I also have no doubt that the proponents of these bills, including Rep. Jim Cooper, 

my esteemed fellow Tennessee Democrat and sponsor of H.R. 3041, are sincere in 

their belief that these bills will achieve a better balance in the way consent decrees 

are used. 

Still, I have concerns about both bills that I would like the proponents of these 

bills to address. 

To begin with, H.R. 3041 would seem to have the effect of discouraging consent 

decrees against state and local governments and officials. 

The bill would allow state and local government defendants to seek modification 

or termination of a consent decree after four years from the entry of the decree or 

the term of office of the highest official who is a party to the decree ends, whichever 

is earliest. 

Additionally, the bill places the burden of proof on plaintiffs to prove the continuing need for the consent decree. 

In light of these provisions, I cannot think of why a plaintiff would ever agree 

to settle a case. It would seem to me that, rather than facing the prospect of having 

to re-argue in favor of a consent decree every few years, a plaintiff would simply 

press on with litigation. 

Also, to the extent that a consent decree is overly burdensome or has outlasted 

changed circumstances, it is not clear to me why modification of the decree pursuant 

to Federal Rule of Civil Procedure 60 is not a sufficient remedy. 

Moreover, the Supreme Court in Frew v. Hawkins set out what appears to be a 

fairly liberal standard for granting modification or termination requests by state 

and local government defendants. Also, the Court seemed to go to great lengths to 

100 

emphasize that Federal courts must respect state and local prerogatives and principles of federalism when considering whether to modify or terminate a decree. 

H.R. 3862, meanwhile, seems like it is designed to impede Federal rulemaking 

and other regulatory action, much like the regulatory legislation we considered last 

year. 

This bill would apply to consent decrees and settlement agreements that require 

Federal agency action that affects the rights of private third parties. 

For such consent decrees and settlement agreements, the bill imposes a number 

of procedural requirements on both agencies and courts. These include requiring 

agencies to solicit and respond to public comments on such proposed decrees and 

agreements and providing opportunities for third parties to intervene in the underlying action and the consent decree process. 

These provisions and others in the bill would seem to needlessly slow down agency action and open the door wide open to almost anyone who wants to impede agency action, including the promulgation of important public health and safety rules. 

I would also like to know from John Cruden, one of our witnesses today, whether, 

based on his 20 years of experience negotiating consent decrees as a career Justice 

Department official representing the government as both plaintiff and defendant, he 

believes that H.R. 3862 addresses a real problem. 

I thank the witnesses for their participation in today’s hearing and look forward 

to their testimony. 

f 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

The two bills before us today—H.R. 3041, the ‘‘Federal Consent Decree Fairness 

Act,’’ and H.R. 3862, the ‘‘Sunshine in Regulatory Decrees and Settlements Act of 

2012’’—appear intended to make it easier to modify or terminate consent decrees, 

to make it more difficult to enter into them, and to generally discourage their use. 

These bills threaten to undermine a key tool in guaranteeing the rights and protections that Congress has enacted over the last two generations. 

These include Federal civil rights and environmental laws that are designed to 

protect ordinary people who are victims of racial discrimination, voter intimidation, 

police brutality, or toxic pollution. 

A consent decree is a voluntary settlement agreement between plaintiffs and defendants that is entered by a court and is enforceable as a court order. Consent decrees are often used to settle public law and institutional reform litigation. 

By reducing costly and time-consuming litigation, consent decrees and settlement 

agreements benefit both plaintiffs and defendants. 

They help to ensure that Federal protections are enforced while leaving flexibility 

for governmental defendants as to how they will carry out their Federal obligations. 

Given these benefits, I am troubled by the effect that these bills may have on consent decrees and settlement agreements. 

First, H.R. 3041 will virtually eliminate all consent decrees against state and 

local governments by imposing an effectively unworkable time limit on their duration. 

Under this bill, a defendant may file a motion with a court to modify or terminate 

a consent decree at the earliest of either 4 years after the decree is entered or when 

the term of office of the highest ranking official who is a party to the decree ends, 

which could be less than 4 years. 

Moreover, the bill places the burden on the plaintiff to prove that there is a continuing need to have the consent decree in force without modification or termination. 

Taken together, these provisions would force a plaintiff to re-litigate its case 

against a state or local defendant every few years. 

Given that prospect, no plaintiff would ever agree to enter into a consent decree 

with a state or local government defendant. Rather, plaintiffs would simply continue 

to press on with litigation, adding great expense to American taxpayers and uncertainty for all parties involved. 

Also, many consent decrees are designed to reform institutions like prisons, police 

departments, child welfare agencies, and education systems. Revisiting consent decrees well before they have a chance to fully be implemented would simply shortcircuit institutional reform efforts. 

And, it could encourage state and local governments to drag their feet in complying with such decrees in order to effectively ‘‘run out the clock.’’ 

101 

Second, H.R. 3862 is yet another attempt to prevent Federal regulatory actions 

from being implemented. 

When a Federal agency defendant is sued because of a failure to take regulatory 

action, it is often because the agency has missed statutory deadlines for taking such 

action, often by years. 

Consent decrees and settlement agreements can help assure that the agency takes 

such action by a date certain. 

H.R. 3862, however, would needlessly slow down the process by which such consent decrees are entered. 

This bill imposes an extensive series of burdensome requirements on agencies 

that seek to enter into consent decrees or settlement agreements. 

For example, it mandates that agencies provide for public comment on a proposed 

consent decree and requires agencies to respond to all such comments before the 

consent decree can be entered in court. 

In the case of consent decrees concerning rulemaking, an agency would be forced 

to go through two public comment periods, one for the consent decree and one for 

the rulemaking that results from the consent decree, doubling the agency’s effort. 

Moreover, the bill would allow an unlimited number of third parties to intervene 

in the consent decree process, further delaying the entry of a consent decree. 

Like the anti-regulatory bills we considered last year, this bill piles on procedural 

requirements for agencies and courts. 

Also, like last year’s anti-regulatory bills, this bill threatens to open the door to 

dilatory litigation tactics by interests that are hostile towards regulatory protections. 

Third, neither bill is necessary. They clearly are solutions in search of a problem. 

For instance, Federal Rule of Civil Procedure 60 already allows state and local 

government defendants to seek court authorization to modify or terminate a consent 

decree. 

Rule 60 requires a court to revisit its decrees when changed circumstances would 

merit modifying or terminating the decree. 

Moreover, as the Supreme Court made clear in Frew v. Hawkins, Federal courts 

must be deferential to state and local government prerogatives when considering 

whether a consent decree should be modified. 

Viewed together, it is clear that the standard for modifying or terminating consent 

decrees against state and local governments is a fairly liberal one. 

Accordingly, the burden on state and local governments seeking modification or 

termination does not warrant a legislative response. 

With respect to H.R. 3862, it is not clear what, exactly, is the problem that it is 

trying to address. My understanding is that most lawsuits and consent decrees 

against Federal agencies that seek some sort of regulatory action simply seek to ensure that the agency meets its existing statutory obligations. How that raises transparency concerns is beyond me. 

H.R. 3862 also codifies certain guidelines, first issued by Attorney General Edwin 

Meese nearly 30 years ago, for government attorneys to follow when determining 

whether or not to enter into consent decrees and settlement agreements. 

For example, government attorneys may not enter into consent decrees that would 

make mandatory an agency’s discretionary authority to promulgate or amend a rule, 

nor may they agree to an obligation to seek funding from Congress to implement 

a consent decree. 

These guidelines have been incorporated into the Code of Federal Regulations 

since Attorney General Meese issued them. 

So I must ask: why do we need to codify them? Is there any evidence that these 

guidelines are not already being followed? 

Consent decrees are a vital instrument for enforcing Federal rights and protections. I fear that the bills before us today will discourage their use and, therefore, 

undermine the effective protection of Federal rights. 

f 

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Response to Post-Hearings Questions from Roger R. Martella, Jr., 

Sidley Austin LLP 


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Response to Post-Hearings Questions from John C. Cruden, President, 

Environmental Law Institute 


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