[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 119 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 119
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
January 12, 2017
Mr. Grassley (for himself, Mr. Blunt, Mr. Inhofe, Mr. Cornyn, Mr. Cruz,
Mrs. Fischer, Mr. Rubio, Mr. Flake, Mr. Hatch, and Mr. Tillis)
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 2017''.
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
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 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 attorneys 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.
<all>