I 
117TH CONGRESS 
1ST SESSION H. R. 2708 
To impose certain limitations on consent decrees and settlement agreements 
by agencies that require the agencies to take regulatory action in accord-
ance with the terms thereof, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
APRIL 20, 2021 
Mrs. SPARTZ (for herself, Mr. CRAWFORD, Mr. PERRY, Mr. STEWART, Mr. 
BUDD, Mr. BUCK, Mr. MOOLENAAR, Mrs. LESKO, and Mr. CLOUD) intro-
duced the following bill; which was referred to the Committee on the Ju-
diciary 
A BILL 
To impose certain limitations on consent decrees and settle-
ment 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 Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Sunshine for Regu-
latory Decrees and Settlements Act of 2021’’. 
SEC. 2. DEFINITIONS. 
In this Act— 
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(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 per-
son bringing the action; or 
(ii) a State, local, or tribal govern-
ment; 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 cov-
ered civil action; and 
(B) any other consent decree that requires 
agency action relating to a regulatory action 
that affects the rights of— 
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(i) private persons other than the per-
son bringing the action; or 
(ii) a State, local, or tribal govern-
ment; 
(4) the term ‘‘covered consent decree or settle-
ment 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 per-
son bringing the action; or 
(ii) a State, local, or tribal govern-
ment. 
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, includ-
ing by making the notice of intent to sue and the 
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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 set-
tlement agreement until after the end of proceedings 
in accordance with paragraph (1) and subpara-
graphs (A) and (B) of paragraph (2) of subsection 
(d) or subsection (d)(3)(A), whichever is later. 
(b) INTERVENTION.— 
(1) REBUTTABLE
PRESUMPTION.—In consid-
ering 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
GOVERN-
MENTS.—In considering a motion to intervene in a 
covered civil action or a civil action in which a cov-
ered consent decree or settlement agreement has 
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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 provi-
sions 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 re-
lates. 
(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 ac-
tion. 
(d) PUBLICATION OF AND COMMENT ON COVERED 
CONSENT DECREES OR SETTLEMENT AGREEMENTS.— 
(1) IN GENERAL.—Not later than 60 days be-
fore the date on which a covered consent decree or 
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settlement agreement is filed with a court, the agen-
cy 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 agree-
ment, including whether it provides for the 
award of attorneys’ 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 com-
plaint in the applicable civil action or addressed 
or affected by the proposed covered consent de-
cree or settlement agreement. 
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(B) RESPONSE TO COMMENTS.—An agency 
shall respond to any comment received under 
subparagraph (A). 
(C) SUBMISSIONS TO COURT.—When mov-
ing that the court enter a proposed covered con-
sent decree or settlement agreement or for dis-
missal 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 de-
cree 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 ac-
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tion the certified index of the administrative 
record submitted by an agency under subpara-
graph (C)(iii) and any documents listed in the 
index which any party or amicus curiae appear-
ing 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 sum-
mary of the proceedings; 
(II) submit to the court a cer-
tified index of the hearing record; and 
(III) provide access to the hear-
ing record to the court; and 
(ii) the full hearing record shall be in-
cluded in the court record. 
(4) MANDATORY
DEADLINES.—If a proposed 
covered consent decree or settlement agreement re-
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quires an agency action by a date certain, the agen-
cy shall, when moving for entry of the covered con-
sent 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 ad-
dress; 
(B) how the covered consent decree or set-
tlement agreement, if approved, would affect 
the discharge of the duties described in sub-
paragraph (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 con-
tains a term described in paragraph (2), the Attor-
ney General or, if the matter is being litigated inde-
pendently 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 
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covered consent decree or settlement agreement. The 
Attorney General or head of the agency shall person-
ally sign any certification submitted under this para-
graph. 
(2) TERMS.—A term described in this para-
graph 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 regu-
latory action in question; 
(iii) commits an agency to seek a par-
ticular appropriation or budget authoriza-
tion; 
(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 cir-
cumstances, to make policy or managerial 
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choices, or to protect the rights of third 
parties; or 
(v) otherwise affords relief that the 
court could not enter under its own au-
thority 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 fail-
ure by the agency to comply with the 
terms of the covered settlement agreement 
other than the revival of the civil action re-
solved by the covered settlement agree-
ment; 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 
rule-
making procedures for a rulemaking 
that is the subject of the covered set-
tlement agreement; 
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(II) commits the agency to ex-
pend funds that have not been appro-
priated and that have not been budg-
eted for the regulatory action in ques-
tion; or 
(III) for such a covered settle-
ment 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 pol-
icy or managerial choices, or to pro-
tect 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 per-
son who filed public comments or participated in a 
public hearing on the covered consent decree or set-
tlement agreement under paragraph (2) or (3) of 
subsection (d). 
(2) REVIEW OF DEADLINES.— 
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(A) PROPOSED
COVERED
CONSENT
DE-
CREES.—For a proposed covered consent de-
cree, a court shall not approve the covered con-
sent 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 rule-
making and, unless contrary to the public inter-
est, the provisions of any Executive order that 
governs rulemaking. 
(B) PROPOSED
COVERED
SETTLEMENT 
AGREEMENTS.—For a proposed covered settle-
ment 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 stat-
utes that govern rulemaking and, unless con-
trary 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— 
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