Sunshine for Regulatory Decrees and Settlements Act of 2023

Subjects: Government Operations and Politics


<html><body><pre>[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1645 Introduced in Senate (IS)]

&lt;DOC&gt;






118th CONGRESS
  1st Session
                                S. 1645

    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

                              May 17, 2023

 Mr. Grassley (for himself, Mrs. Blackburn, Mr. Tillis, Mr. Rubio, Mr. 
Cornyn, Mr. Hawley, and Mr. Cruz) 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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2023''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the terms ``agency'' and ``agency action'' have the 
        meanings given those terms under section 551 of title 5, United 
        States Code;
            (2) the term ``covered civil action'' means a civil 
        action--
                    (A) seeking to compel agency action;
                    (B) alleging that the agency is unlawfully 
                withholding or unreasonably delaying an agency action 
                relating to a regulatory action that would affect the 
                rights of--
                            (i) private persons other than the person 
                        bringing the action; or
                            (ii) a State, local, or Tribal government; 
                        and
                    (C) brought under--
                            (i) chapter 7 of title 5, United States 
                        Code; or
                            (ii) any other statute authorizing such an 
                        action;
            (3) the term ``covered consent decree'' means--
                    (A) a consent decree entered into in a covered 
                civil action; and
                    (B) any other consent decree that requires agency 
                action relating to a regulatory action that affects the 
                rights of--
                            (i) private persons other than the person 
                        bringing the action; or
                            (ii) a State, local, or Tribal government;
            (4) the term ``covered consent decree or settlement 
        agreement'' means a covered consent decree and a covered 
        settlement agreement; and
            (5) the term ``covered settlement agreement'' means--
                    (A) a settlement agreement entered into in a 
                covered civil action; and
                    (B) any other settlement agreement that requires 
                agency action relating to a regulatory action that 
                affects the rights of--
                            (i) private persons other than the person 
                        bringing the action; or
                            (ii) a State, local, or Tribal government.

SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM.

    (a) Pleadings and Preliminary Matters.--
            (1) In general.--In any covered civil action, the agency 
        against which the covered civil action is brought shall publish 
        the notice of intent to sue and the complaint in a readily 
        accessible manner, including by making the notice of intent to 
        sue and the complaint available online not later than 15 days 
        after receiving service of the notice of intent to sue or 
        complaint, respectively.
            (2) Entry of a covered consent decree or settlement 
        agreement.--A party may not make a motion for entry of a 
        covered consent decree or to dismiss a civil action pursuant to 
        a covered settlement agreement until after the end of 
        proceedings in accordance with paragraph (1) and subparagraphs 
        (A) and (B) of paragraph (2) of subsection (d) or subsection 
        (d)(3)(A), whichever is later.
    (b) Intervention.--
            (1) Rebuttable presumption.--In considering a motion to 
        intervene in a covered civil action or a civil action in which 
        a covered consent decree or settlement agreement has been 
        proposed that is filed by a person who alleges that the agency 
        action in dispute would affect the person, the court shall 
        presume, subject to rebuttal, that the interests of the person 
        would not be represented adequately by the existing parties to 
        the action.
            (2) State, local, and tribal governments.--In considering a 
        motion to intervene in a covered civil action or a civil action 
        in which a covered consent decree or settlement agreement has 
        been proposed that is filed by a State, local, or Tribal 
        government, the court shall take due account of whether the 
        movant--
                    (A) administers jointly with an agency that is a 
                defendant in the action the statutory provisions that 
                give rise to the regulatory action to which the action 
                relates; or
                    (B) administers an authority under State, local, or 
                Tribal law that would be preempted by the regulatory 
                action to which the action relates.
    (c) Settlement Negotiations.--Efforts to settle a covered civil 
action or otherwise reach an agreement on a covered consent decree or 
settlement agreement shall--
            (1) be conducted pursuant to the mediation or alternative 
        dispute resolution program of the court or by a district judge 
        other than the presiding judge, magistrate judge, or special 
        master, as determined appropriate by the presiding judge; and
            (2) include any party that intervenes in the action.
    (d) Publication of and Comment on Covered Consent Decrees or 
Settlement Agreements.--
            (1) In general.--Not later than 60 days before the date on 
        which a covered consent decree or settlement agreement is filed 
        with a court, the agency seeking to enter the covered consent 
        decree or settlement agreement shall publish in the Federal 
        Register and online--
                    (A) the proposed covered consent decree or 
                settlement agreement; and
                    (B) a statement providing--
                            (i) the statutory basis for the covered 
                        consent decree or settlement agreement; and
                            (ii) a description of the terms of the 
                        covered consent decree or settlement agreement, 
                        including whether it provides for the award of 
                        attorney fees or costs and, if so, the basis 
                        for including the award.
            (2) Public comment.--
                    (A) In general.--An agency seeking to enter a 
                covered consent decree or settlement agreement shall 
                accept public comment during the period described in 
                paragraph (1) on any issue relating to the matters 
                alleged in the complaint in the applicable civil action 
                or addressed or affected by the proposed covered 
                consent decree or settlement agreement.
                    (B) Response to comments.--An agency shall respond 
                to any comment received under subparagraph (A).
                    (C) Submissions to court.--When moving that the 
                court enter a proposed covered consent decree or 
                settlement agreement or for dismissal pursuant to a 
                proposed covered consent decree or settlement 
                agreement, an agency shall--
                            (i) inform the court of the statutory basis 
                        for the proposed covered consent decree or 
                        settlement agreement and its terms;
                            (ii) submit to the court a summary of the 
                        comments received under subparagraph (A) and 
                        the response of the agency to the comments;
                            (iii) submit to the court a certified index 
                        of the administrative record of the notice and 
                        comment proceeding; and
                            (iv) make the administrative record 
                        described in clause (iii) fully accessible to 
                        the court.
                    (D) Inclusion in record.--The court shall include 
                in the court record for a civil action the certified 
                index of the administrative record submitted by an 
                agency under subparagraph (C)(iii) and any documents 
                listed in the index which any party or amicus curiae 
                appearing before the court in the action submits to the 
                court.
            (3) Public hearings permitted.--
                    (A) In general.--After providing notice in the 
                Federal Register and online, an agency may hold a 
                public hearing regarding whether to enter into a 
                proposed covered consent decree or settlement 
                agreement.
                    (B) Record.--If an agency holds a public hearing 
                under subparagraph (A)--
                            (i) the agency shall--
                                    (I) submit to the court a summary 
                                of the proceedings;
                                    (II) submit to the court a 
                                certified index of the hearing record; 
                                and
                                    (III) provide access to the hearing 
                                record to the court; and
                            (ii) the full hearing record shall be 
                        included in the court record.
            (4) Mandatory deadlines.--If a proposed covered consent 
        decree or settlement agreement requires an agency action by a 
        date certain, the agency shall, when moving for entry of the 
        covered consent decree or settlement agreement or dismissal 
        based on the covered consent decree or settlement agreement, 
        inform the court of--
                    (A) any required regulatory action the agency has 
                not taken that the covered consent decree or settlement 
                agreement does not address;
                    (B) how the covered consent decree or settlement 
                agreement, if approved, would affect the discharge of 
                the duties described in subparagraph (A); and
                    (C) why the effects of the covered consent decree 
                or settlement agreement on the manner in which the 
                agency discharges its duties is in the public interest.
    (e) Submission by the Government.--
            (1) In general.--For any proposed covered consent decree or 
        settlement agreement that contains a term described in 
        paragraph (2), the Attorney General or, if the matter is being 
        litigated independently by an agency, the head of the agency 
        shall submit to the court a certification that the Attorney 
        General or head of the agency approves the proposed covered 
        consent decree or settlement agreement. The Attorney General or 
        head of the agency shall personally sign any certification 
        submitted under this paragraph.
            (2) Terms.--A term described in this paragraph is--
                    (A) in the case of a covered consent decree, a term 
                that--
                            (i) converts into a nondiscretionary duty a 
                        discretionary authority of an agency to 
                        propose, promulgate, revise, or amend 
                        regulations;
                            (ii) commits an agency to expend funds that 
                        have not been appropriated and that have not 
                        been budgeted for the regulatory action in 
                        question;
                            (iii) commits an agency to seek a 
                        particular appropriation or budget 
                        authorization;
                            (iv) divests an agency of discretion 
                        committed to the agency by statute or the 
                        Constitution of the United States, without 
                        regard to whether the discretion was granted to 
                        respond to changing circumstances, to make 
                        policy or managerial choices, or to protect the 
                        rights of third parties; or
                            (v) otherwise affords relief that the court 
                        could not enter under its own authority upon a 
                        final judgment in the civil action; or
                    (B) in the case of a covered settlement agreement, 
                a term--
                            (i) that provides a remedy for a failure by 
                        the agency to comply with the terms of the 
                        covered settlement agreement other than the 
                        revival of the civil action resolved by the 
                        covered settlement agreement; and
                            (ii) that--
                                    (I) interferes with the authority 
                                of an agency to revise, amend, or issue 
                                rules under the procedures set forth in 
                                chapter 5 of title 5, United States 
                                Code, or any other statute or Executive 
                                order prescribing rulemaking procedures 
                                for a rulemaking that is the subject of 
                                the covered settlement agreement;
                                    (II) commits the agency to expend 
                                funds that have not been appropriated 
                                and that have not been budgeted for the 
                                regulatory action in question; or
                                    (III) for such a covered settlement 
                                agreement that commits the agency to 
                                exercise in a particular way discretion 
                                which was committed to the agency by 
                                statute or the Constitution of the 
                                United States to respond to changing 
                                circumstances, to make policy or 
                                managerial choices, or to protect the 
                                rights of third parties.
    (f) Review by Court.--
            (1) Amicus.--A court considering a proposed covered consent 
        decree or settlement agreement shall presume, subject to 
        rebuttal, that it is proper to allow amicus participation 
        relating to the covered consent decree or settlement agreement 
        by any person who filed public comments or participated in a 
        public hearing on the covered consent decree or settlement 
        agreement under paragraph (2) or (3) of subsection (d).
            (2) Review of deadlines.--
                    (A) Proposed covered consent decrees.--For a 
                proposed covered consent decree, a court shall not 
                approve the covered consent decree unless the proposed 
                covered consent decree allows sufficient time and 
                incorporates adequate procedures for the agency to 
                comply with chapter 5 of title 5, United States Code, 
                and other applicable statutes that govern rulemaking 
                and, unless contrary to the public interest, the 
                provisions of any Executive order that governs 
                rulemaking.
                    (B) Proposed covered settlement agreements.--For a 
                proposed covered settlement agreement, a court shall 
                ensure that the covered settlement agreement allows 
                sufficient time and incorporates adequate procedures 
                for the agency to comply with chapter 5 of title 5, 
                United States Code, and other applicable statutes that 
                govern rulemaking and, unless contrary to the public 
                interest, the provisions of any Executive order that 
                governs rulemaking.
    (g) Annual Reports.--Each agency shall submit to Congress an annual 
report that, for the year covered by the report, includes--
            (1) the number, identity, and content of covered civil 
        actions brought against and covered consent decrees or 
        settlement agreements entered against or into by the agency; 
        and
            (2) a description of the statutory basis for--
                    (A) each covered consent decree or settlement 
                agreement entered against or into by the agency; and
                    (B) any award of attorney fees or costs in a civil 
                action resolved by a covered consent decree or 
                settlement agreement entered against or into by the 
                agency.

SEC. 4. MOTIONS TO MODIFY CONSENT DECREES.

    If an agency moves a court to modify a covered consent decree or 
settlement agreement and the basis of the motion is that the terms of 
the covered consent decree or settlement agreement are no longer fully 
in the public interest due to the obligations of the agency to fulfill 
other duties or due to changed facts and circumstances, the court shall 
review the motion and the covered consent decree or settlement 
agreement de novo.

SEC. 5. EFFECTIVE DATE.

    This Act shall apply to--
            (1) any covered civil action filed on or after the date of 
        enactment of this Act; and
            (2) any covered consent decree or settlement agreement 
        proposed to a court on or after the date of enactment of this 
        Act.
                                 &lt;all&gt;
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