Markup of H.R. 1493, the “Sunshine in Regulatory Decrees and Settlements Act of 2013"
Statement of the Honorable John Conyers, Jr. for the
Markup of H.R. 1493, the “Sunshine in Regulatory Decrees and Settlements Act of 2013,"
by the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the Committee on the Judiciary
Wednesday, July 10, 2013, at 10:00 a.m.
2141 Rayburn House Office Building
H.R. 1493, the “Sunshine in Regulatory Decrees and Settlements Act of 2013,” has a simple goal: to discourage the use of settlement agreements and consent decrees.
Why is this problematic? Here are just a few reasons.
To begin with, this bill, by delaying regulatory protections, jeopardizes public health and safety, which explains why the National Resources Defense Council, the American Civil Liberties Union, the NAACP, the Sierra Club, and EarthJustice among other groups, strenuously opposed a very similar version of this bill in the last Congress.
This bill’s provisions, in effect, could be used to prevent federal regulatory actions from being implemented.
For example, the bill gives opponents of regulation multiple opportunities to stifle rulemaking by allowing essentially any third party who is affected by the regulatory action at issue in a covered civil action to:
- Intervene in that civil action, subject to rebuttal;
- participate in settlement negotiations; and
- submit public comments about a proposed consent decree or settlement agreement that agencies would be required to respond to.
Often a federal agency defendant is sued because of its failure to take regulatory action or because it 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. 1493, however, would needlessly slow down this process by imposing an extensive series of burdensome requirements on agencies that seek to enter into consent decrees or settlement agreements.
For instance, 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 a 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 nearly all of the anti-regulatory bills we have considered to date since the last Congress, H.R. 1493 piles on procedural requirements for agencies and courts.
Also, like these other bills, this measure encourages dilatory litigation by interests that are hostile towards regulatory protections.
Another concern is that this bill threatens to undermine a critical tool that Americans use to guarantee their Congressionally-mandated protections, including civil rights laws and environmental protections.
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 state and local governments as to how they will carry out their federal obligations.
Take, for example, a consent decree resolving a dispute under the Clean Air Act.
In light of the fact that the bill would allow any private party whose rights are affected by such decree a right to intervene, that could potentially include anyone who breathes air as well as any industry or special interest group.
So H.R. 1493 could have a chilling effect on the use of consent decrees and settlement agreements, and the inevitable result will be more litigation that will result in millions of dollars of additional transaction costs.
And, guess who is going to bear the expense of these litigation costs? Of course it will be the American taxpayer.
It is not surprising that the Congressional Budget Office in its analysis of a similar bill considered in the last Congress stated that the measure would impose millions of dollars in costs “primarily because litigation involving consent decrees and settlement agreements would probably take longer under the bill as agencies would face new requirements to report more information to the public and other additional administrative costs.”
Finally, this bill addresses a non-existent problem. There simply is no evidence of collusion between agencies and private entities with respect to consent decrees and settlements.
Other than unsupported allegations, H.R. 1493's proponents have failed to offer any convincing explanation as to why current law is insufficient.
For instance, the bill codifies certain Justice Department guidelines, first issued by Attorney General Edwin Meese nearly 30 years ago, that have since been codified in the Code of Federal Regulations.
These regulations set forth detailed criteria that Justice Department attorneys must follow when determining whether or not to enter into consent decrees and settlement agreements.
So I must ask: why do we need to codify them? Is there any evidence that these guidelines are not already being followed?
There simply is no need for this legislation.
Accordingly, I oppose H.R. 1493.