Sunshine for Regulatory Decrees and Settlements Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1247 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 SENATE OF THE UNITED STATES APRIL 20, 2021 Mr. GRASSLEY (for himself, Mr. CORNYN, Mr. CRUZ, Mr. RUBIO, Mrs. BLACKBURN, Mr. HAWLEY, 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 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- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Sunshine for Regu- 4 latory Decrees and Settlements Act of 2021’’. 5 SEC. 2. DEFINITIONS. 6 In this Act— 7 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1247 IS (1) the terms ‘‘agency’’ and ‘‘agency action’’ 1 have the meanings given those terms under section 2 551 of title 5, United States Code; 3 (2) the term ‘‘covered civil action’’ means a civil 4 action— 5 (A) seeking to compel agency action; 6 (B) alleging that the agency is unlawfully 7 withholding or unreasonably delaying an agency 8 action relating to a regulatory action that would 9 affect the rights of— 10 (i) private persons other than the per- 11 son bringing the action; or 12 (ii) a State, local, or Tribal govern- 13 ment; and 14 (C) brought under— 15 (i) chapter 7 of title 5, United States 16 Code; or 17 (ii) any other statute authorizing such 18 an action; 19 (3) the term ‘‘covered consent decree’’ means— 20 (A) a consent decree entered into in a cov- 21 ered civil action; and 22 (B) any other consent decree that requires 23 agency action relating to a regulatory action 24 that affects the rights of— 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1247 IS (i) private persons other than the per- 1 son bringing the action; or 2 (ii) a State, local, or Tribal govern- 3 ment; 4 (4) the term ‘‘covered consent decree or settle- 5 ment agreement’’ means a covered consent decree 6 and a covered settlement agreement; and 7 (5) the term ‘‘covered settlement agreement’’ 8 means— 9 (A) a settlement agreement entered into in 10 a covered civil action; and 11 (B) any other settlement agreement that 12 requires agency action relating to a regulatory 13 action that affects the rights of— 14 (i) private persons other than the per- 15 son bringing the action; or 16 (ii) a State, local, or Tribal govern- 17 ment. 18 SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM. 19 (a) PLEADINGS AND PRELIMINARY MATTERS.— 20 (1) IN GENERAL.—In any covered civil action, 21 the agency against which the covered civil action is 22 brought shall publish the notice of intent to sue and 23 the complaint in a readily accessible manner, includ- 24 ing by making the notice of intent to sue and the 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1247 IS complaint available online not later than 15 days 1 after receiving service of the notice of intent to sue 2 or complaint, respectively. 3 (2) ENTRY OF A COVERED CONSENT DECREE 4 OR SETTLEMENT AGREEMENT.—A party may not 5 make a motion for entry of a covered consent decree 6 or to dismiss a civil action pursuant to a covered set- 7 tlement agreement until after the end of proceedings 8 in accordance with paragraph (1) and subpara- 9 graphs (A) and (B) of paragraph (2) of subsection 10 (d) or subsection (d)(3)(A), whichever is later. 11 (b) INTERVENTION.— 12 (1) REBUTTABLE PRESUMPTION.—In consid- 13 ering a motion to intervene in a covered civil action 14 or a civil action in which a covered consent decree 15 or settlement agreement has been proposed that is 16 filed by a person who alleges that the agency action 17 in dispute would affect the person, the court shall 18 presume, subject to rebuttal, that the interests of 19 the person would not be represented adequately by 20 the existing parties to the action. 21 (2) STATE, LOCAL, AND TRIBAL GOVERN- 22 MENTS.—In considering a motion to intervene in a 23 covered civil action or a civil action in which a cov- 24 ered consent decree or settlement agreement has 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1247 IS been proposed that is filed by a State, local, or Trib- 1 al government, the court shall take due account of 2 whether the movant— 3 (A) administers jointly with an agency that 4 is a defendant in the action the statutory provi- 5 sions that give rise to the regulatory action to 6 which the action relates; or 7 (B) administers an authority under State, 8 local, or Tribal law that would be preempted by 9 the regulatory action to which the action re- 10 lates. 11 (c) SETTLEMENT NEGOTIATIONS.—Efforts to settle 12 a covered civil action or otherwise reach an agreement on 13 a covered consent decree or settlement agreement shall— 14 (1) be conducted pursuant to the mediation or 15 alternative dispute resolution program of the court 16 or by a district judge other than the presiding judge, 17 magistrate judge, or special master, as determined 18 appropriate by the presiding judge; and 19 (2) include any party that intervenes in the ac- 20 tion. 21 (d) PUBLICATION OF AND COMMENT ON COVERED 22 CONSENT DECREES OR SETTLEMENT AGREEMENTS.— 23 (1) IN GENERAL.—Not later than 60 days be- 24 fore the date on which a covered consent decree or 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1247 IS settlement agreement is filed with a court, the agen- 1 cy seeking to enter the covered consent decree or 2 settlement agreement shall publish in the Federal 3 Register and online— 4 (A) the proposed covered consent decree or 5 settlement agreement; and 6 (B) a statement providing— 7 (i) the statutory basis for the covered 8 consent decree or settlement agreement; 9 and 10 (ii) a description of the terms of the 11 covered consent decree or settlement agree- 12 ment, including whether it provides for the 13 award of attorney fees or costs and, if so, 14 the basis for including the award. 15 (2) PUBLIC COMMENT.— 16 (A) IN GENERAL.—An agency seeking to 17 enter a covered consent decree or settlement 18 agreement shall accept public comment during 19 the period described in paragraph (1) on any 20 issue relating to the matters alleged in the com- 21 plaint in the applicable civil action or addressed 22 or affected by the proposed covered consent de- 23 cree or settlement agreement. 24 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1247 IS (B) RESPONSE TO COMMENTS.—An agency 1 shall respond to any comment received under 2 subparagraph (A). 3 (C) SUBMISSIONS TO COURT.—When mov- 4 ing that the court enter a proposed covered con- 5 sent decree or settlement agreement or for dis- 6 missal pursuant to a proposed covered consent 7 decree or settlement agreement, an agency 8 shall— 9 (i) inform the court of the statutory 10 basis for the proposed covered consent de- 11 cree or settlement agreement and its 12 terms; 13 (ii) submit to the court a summary of 14 the comments received under subparagraph 15 (A) and the response of the agency to the 16 comments; 17 (iii) submit to the court a certified 18 index of the administrative record of the 19 notice and comment proceeding; and 20 (iv) make the administrative record 21 described in clause (iii) fully accessible to 22 the court. 23 (D) INCLUSION IN RECORD.—The court 24 shall include in the court record for a civil ac- 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1247 IS tion the certified index of the administrative 1 record submitted by an agency under subpara- 2 graph (C)(iii) and any documents listed in the 3 index which any party or amicus curiae appear- 4 ing before the court in the action submits to the 5 court. 6 (3) PUBLIC HEARINGS PERMITTED.— 7 (A) IN GENERAL.—After providing notice 8 in the Federal Register and online, an agency 9 may hold a public hearing regarding whether to 10 enter into a proposed covered consent decree or 11 settlement agreement. 12 (B) RECORD.—If an agency holds a public 13 hearing under subparagraph (A)— 14 (i) the agency shall— 15 (I) submit to the court a sum- 16 mary of the proceedings; 17 (II) submit to the court a cer- 18 tified index of the hearing record; and 19 (III) provide access to the hear- 20 ing record to the court; and 21 (ii) the full hearing record shall be in- 22 cluded in the court record. 23 (4) MANDATORY DEADLINES.—If a proposed 24 covered consent decree or settlement agreement re- 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1247 IS quires an agency action by a date certain, the agen- 1 cy shall, when moving for entry of the covered con- 2 sent decree or settlement agreement or dismissal 3 based on the covered consent decree or settlement 4 agreement, inform the court of— 5 (A) any required regulatory action the 6 agency has not taken that the covered consent 7 decree or settlement agreement does not ad- 8 dress; 9 (B) how the covered consent decree or set- 10 tlement agreement, if approved, would affect 11 the discharge of the duties described in sub- 12 paragraph (A); and 13 (C) why the effects of the covered consent 14 decree or settlement agreement on the manner 15 in which the agency discharges its duties is in 16 the public interest. 17 (e) SUBMISSION BY THE GOVERNMENT.— 18 (1) IN GENERAL.—For any proposed covered 19 consent decree or settlement agreement that con- 20 tains a term described in paragraph (2), the Attor- 21 ney General or, if the matter is being litigated inde- 22 pendently by an agency, the head of the agency shall 23 submit to the court a certification that the Attorney 24 General or head of the agency approves the proposed 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1247 IS covered consent decree or settlement agreement. The 1 Attorney General or head of the agency shall person- 2 ally sign any certification submitted under this para- 3 graph. 4 (2) TERMS.—A term described in this para- 5 graph is— 6 (A) in the case of a covered consent decree, 7 a term that— 8 (i) converts into a nondiscretionary 9 duty a discretionary authority of an agency 10 to propose, promulgate, revise, or amend 11 regulations; 12 (ii) commits an agency to expend 13 funds that have not been appropriated and 14 that have not been budgeted for the regu- 15 latory action in question; 16 (iii) commits an agency to seek a par- 17 ticular appropriation or budget authoriza- 18 tion; 19 (iv) divests an agency of discretion 20 committed to the agency by statute or the 21 Constitution of the United States, without 22 regard to whether the discretion was 23 granted to respond to changing cir- 24 cumstances, to make policy or managerial 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1247 IS choices, or to protect the rights of third 1 parties; or 2 (v) otherwise affords relief that the 3 court could not enter under its own au- 4 thority upon a final judgment in the civil 5 action; or 6 (B) in the case of a covered settlement 7 agreement, a term— 8 (i) that provides a remedy for a fail- 9 ure by the agency to comply with the 10 terms of the covered settlement agreement 11 other than the revival of the civil action re- 12 solved by the covered settlement agree- 13 ment; and 14 (ii) that— 15 (I) interferes with the authority 16 of an agency to revise, amend, or 17 issue rules under the procedures set 18 forth in chapter 5 of title 5, United 19 States Code, or any other statute or 20 Executive order prescribing rule- 21 making procedures for a rulemaking 22 that is the subject of the covered set- 23 tlement agreement; 24 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1247 IS (II) commits the agency to ex- 1 pend funds that have not been appro- 2 priated and that have not been budg- 3 eted for the regulatory action in ques- 4 tion; or 5 (III) for such a covered settle- 6 ment agreement that commits the 7 agency to exercise in a particular way 8 discretion which was committed to the 9 agency by statute or the Constitution 10 of the United States to respond to 11 changing circumstances, to make pol- 12 icy or managerial choices, or to pro- 13 tect the rights of third parties. 14 (f) REVIEW BY COURT.— 15 (1) AMICUS.—A court considering a proposed 16 covered consent decree or settlement agreement shall 17 presume, subject to rebuttal, that it is proper to 18 allow amicus participation relating to the covered 19 consent decree or settlement agreement by any per- 20 son who filed public comments or participated in a 21 public hearing on the covered consent decree or set- 22 tlement agreement under paragraph (2) or (3) of 23 subsection (d). 24 (2) REVIEW OF DEADLINES.— 25 VerDate Sep 11 2014 04:24 May 14, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1247.IS S1247 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1247 IS (A) PROPOSED COVERED CONSENT DE- 1 CREES.—For a proposed covered consent de- 2 cree, a court shall not approve the covered con- 3 sent decree unless the proposed covered consent 4 decree allows sufficient time and incorporates 5 adequate procedures for the agency to comply 6 with chapter 5 of title 5, United States Code, 7 and other applicable statutes that govern rule- 8 making and, unless contrary to the public inter- 9 est, the provisions of any Executive order that 10 governs rulemaking. 11 (B) PROPOSED COVERED SETTLEMENT 12 AGREEMENTS.—For a proposed covered settle- 13 ment agreement, a court sha [Text truncated for display. 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