II 

112TH CONGRESS 

2D SESSION S. 3382 

To impose certain limitations on consent decrees and settlement agreements 

by agencies that require the agencies to take regulatory action in accordance with the terms thereof, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 12, 2012 

Mr. GRASSLEY (for himself, Mr. KYL, Mr. CORNYN, Mr. LEE, Mr. PAUL, and 

Mr. COBURN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies 

to take regulatory action in accordance with the terms 

thereof, and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Sunshine for Regu5 latory Decrees and Settlements Act of 2012’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 


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

2 have the meanings given those terms under section 

3 551 of title 5, United States Code; 

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

5 action— 

6 (A) seeking to compel agency action; 

7 (B) alleging that the agency is unlawfully 

8 withholding or unreasonably delaying an agency 

9 action relating to a regulatory action that would 

10 affect the rights of— 

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

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

15 (C) brought under— 

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

17 Code; or 

18 (ii) any other statute authorizing such 

19 an action; and 

20 (3) the term ‘‘covered settlement agreement’’ 

21 means— 

22 (A) a consent decree or settlement agree23 ment entered into in a covered civil action; and 

24 (B) any other consent decree or settlement 

25 agreement that requires agency action relating 


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1 to a regulatory action that affects the rights 

2 of— 

3 (i) private persons other than the per4 son bringing the action; or 

5 (ii) a State, local, or tribal govern6 ment. 

7 SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM. 

8 (a) PLEADINGS AND PRELIMINARY MATTERS.—In 

9 any covered civil action— 

10 (1) the agency against which the covered civil 

11 action is brought shall publish the complaint in a 

12 readily accessible manner, including by making the 

13 complaint available online; and 

14 (2) a party may not make a motion for entry 

15 of a consent decree or to dismiss the covered civil ac16 tion pursuant to a settlement agreement until after 

17 the end of the period during which a person may in18 tervene. 

19 (b) INTERVENTION.— 

20 (1) REBUTTABLE PRESUMPTION.—In consid21 ering a motion to intervene in a covered civil action 

22 by a person who alleges that the agency action in 

23 dispute would affect the person, the court shall pre24 sume, subject to rebuttal, that the interests of the 


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1 person would not be represented adequately by the 

2 existing parties to the covered civil action. 

3 (2) STATE, LOCAL, AND TRIBAL GOVERN4 MENTS.—In considering a motion to intervene in a 

5 covered civil action by a State, local, or tribal gov6 ernment, the court shall take due account of whether 

7 the movant— 

8 (A) administers jointly with an agency that 

9 is a defendant in the covered civil action the 

10 statutory provisions that give rise to the regu11 latory action to which the covered civil action 

12 relates; or 

13 (B) administers an authority under State, 

14 local, or tribal law that would be preempted by 

15 the regulatory action to which the covered civil 

16 action relates. 

17 (c) SETTLEMENT NEGOTIATIONS.—Efforts to settle 

18 a covered civil action shall— 

19 (1) be conducted pursuant to the mediation or 

20 alternative dispute resolution program of the court 

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

22 magistrate judge, or special master, as determined 

23 appropriate by the presiding judge; and 

24 (2) include any party that intervenes in the cov25 ered civil action. 


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1 (d) PUBLICATION OF AND COMMENT ON COVERED

2 SETTLEMENT AGREEMENTS.— 

3 (1) IN GENERAL.—Not later than 60 days be4 fore the date on which a covered settlement agree5 ment is filed with a court, the agency seeking to 

6 enter the covered settlement agreement shall publish 

7 in the Federal Register and online— 

8 (A) the proposed covered settlement agree9 ment; and 

10 (B) a statement providing— 

11 (i) the statutory basis for the covered 

12 settlement agreement; and 

13 (ii) a description of the terms of the 

14 covered settlement agreement, including 

15 whether it provides for the award of attor16 neys’ fees or costs and, if so, the basis for 

17 including the award. 

18 (2) PUBLIC COMMENT.— 

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

20 enter a covered settlement agreement shall ac21 cept public comment during the period de22 scribed in paragraph (1) on any issue relating 

23 to the matters alleged in the complaint in the 

24 covered civil action or addressed or affected by 

25 the proposed covered settlement agreement. 


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1 (B) RESPONSE TO COMMENTS.—An agency 

2 shall respond to any comment received under 

3 subparagraph (A). 

4 (C) SUBMISSIONS TO COURT.—When mov5 ing that the court enter a proposed covered set6 tlement agreement or for dismissal pursuant to 

7 a proposed covered settlement agreement, an 

8 agency shall— 

9 (i) inform the court of the statutory 

10 basis for the proposed covered settlement 

11 agreement and its terms; 

12 (ii) submit to the court a summary of 

13 the comments received under subparagraph 

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

15 comments; 

16 (iii) submit to the court a certified 

17 index of the administrative record of the 

18 notice and comment proceeding; and 

19 (iv) make the administrative record 

20 described in clause (iii) fully accessible to 

21 the court. 

22 (D) INCLUSION IN RECORD.—The court 

23 shall include in the court record for a civil ac24 tion the certified index of the administrative 


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1 record submitted by an agency under subpara2 graph (C)(iii). 

3 (3) PUBLIC HEARINGS PERMITTED.— 

4 (A) IN GENERAL.—After providing notice 

5 in the Federal Register and online, an agency 

6 may hold a public hearing regarding whether to 

7 enter into a proposed covered settlement agree8 ment. 

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

10 hearing under subparagraph (A)— 

11 (i) the agency shall— 

12 (I) submit to the court a sum13 mary of the proceedings; 

14 (II) submit to the court a cer15 tified index of the hearing record; and 

16 (III) provide access to the hear17 ing record to the court; and 

18 (ii) the full hearing record shall be in19 cluded in the court record. 

20 (4) MANDATORY DEADLINES.—If a proposed 

21 covered settlement agreement requires an agency ac22 tion by a date certain, the agency shall, when mov23 ing for entry of the covered settlement agreement or 

24 dismissal based on the covered settlement agree25 ment, inform the court of— 


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1 (A) any required regulatory action the 

2 agency has not taken that the covered settle3 ment agreement does not address; 

4 (B) how the covered settlement agreement, 

5 if approved, would affect the discharge of the 

6 duties described in subparagraph (A); and 

7 (C) why the effects of the covered settle8 ment agreement on the manner in which the 

9 agency discharges its duties is in the public in10 terest. 

11 (e) SUBMISSION BY THE GOVERNMENT.— 

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

13 settlement agreement that contains a term described 

14 in paragraph (2), the Attorney General or, if the 

15 matter is being litigated independently by an agency, 

16 the head of the agency shall submit to the court a 

17 certification that the Attorney General or head of 

18 the agency approves the proposed covered settlement 

19 agreement. The Attorney General or head of the 

20 agency shall personally sign any certification sub21 mitted under this paragraph. 

22 (2) TERMS.—A term described in this para23 graph is— 

24 (A) in the case of a consent decree, a term 

25 that— 


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1 (i) converts into a duty a discre2 tionary authority of an agency to propose, 

3 promulgate, revise, or amend regulations; 

4 (ii) commits an agency to expend 

5 funds that have not been appropriated and 

6 that have not been budgeted for the civil 

7 action in question; 

8 (iii) commits an agency to seek a par9 ticular appropriation or budget authoriza10 tion; 

11 (iv) divests an agency of discretion 

12 committed to the agency by statute or the 

13 Constitution of the United States, without 

14 regard to whether the discretion was 

15 granted to respond to changing cir16 cumstances, to make policy or managerial 

17 choices, or to protect the rights of third 

18 parties; or 

19 (v) otherwise affords relief that the 

20 court could not enter under its own au21 thority upon a final judgment in the civil 

22 action; or 

23 (B) in the case of a covered settlement 

24 agreement other than a consent decree, a term 

25 that— 


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1 (i) interferes with the authority of an 

2 agency to revise, amend, or issue rules 

3 under the procedures under chapter 5 of 

4 title 5, United States Code, or any other 

5 statute or Executive order prescribing rule6 making procedures for a rulemaking that 

7 is the subject of the covered settlement 

8 agreement; 

9 (ii) commits the agency to expend 

10 funds that have not been appropriated and 

11 that have not been budgeted for the civil 

12 action in question; or 

13 (iii) for a covered settlement agree14 ment that commits the agency to exercise 

15 in a particular way discretion which was 

16 committed to the agency by statute or the 

17 Constitution of the United States to re18 spond to changing circumstances, to make 

19 policy or managerial choices, or to protect 

20 the rights of third parties, provides a rem21 edy for a failure by the agency to comply 

22 with the terms of the covered settlement 

23 agreement other than the revival of the 

24 civil action resolved by the covered settle25 ment agreement. 


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1 (f) REVIEW BY COURT.— 

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

3 covered settlement agreement shall presume, subject 

4 to rebuttal, that it is proper to allow amicus partici5 pation relating to the covered settlement agreement 

6 by any person who filed public comments on the cov7 ered settlement agreement under subsection (d)(2). 

8 (2) REVIEW OF DEADLINES.— 

9 (A) PROPOSED CONSENT DECREES.—For 

10 a proposed covered settlement agreement that is 

11 a consent decree, a court shall not approve the 

12 covered settlement agreement unless the pro13 posed covered settlement agreement allows suf14 ficient time and incorporates adequate proce15 dures for the agency to comply with chapter 5 

16 of title 5, United States Code, and other appli17 cable statutes that govern rulemaking and, un18 less contrary to the public interest, the provi19 sions of any Executive order that governs rule20 making. 

21 (B) OTHER SETTLEMENT AGREEMENTS.— 

22 For a proposed covered settlement agreement 

23 other than a consent decree, a court shall en24 sure that the covered settlement agreement al25 lows sufficient time and incorporates adequate 


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1 procedures for the agency to comply with chap2 ter 5 of title 5, United States Code, and other 

3 applicable statutes that govern rulemaking and, 

4 unless contrary to the public interest, the provi5 sions of any Executive order that governs rule6 making. 

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

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

9 the report, includes— 

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

11 civil actions brought against and covered settlement 

12 agreements entered by the agency; and 

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

14 (A) each covered settlement agreement en15 tered by the agency; and 

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

17 a civil action resolved by a covered settlement 

18 agreement entered by the agency. 

19 SEC. 4. MOTIONS TO MODIFY CONSENT DECREES. 

20 If an agency moves a court to modify a covered settle21 ment agreement and the basis of the motion is that the 

22 terms of the covered settlement agreement are no longer 

23 fully in the public interest due to the obligations of the 

24 agency to fulfill other duties or due to changed facts and 


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1 circumstances, the court shall review the motion and the 

2 covered settlement agreement de novo. 

3 SEC. 5. EFFECTIVE DATE. 

4 This Act shall apply to— 

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

6 date of enactment of this Act; and 

7 (2) any covered settlement agreement proposed 

8 to a court on or after the date of enactment of this 

9 Act. 

Æ 


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