Sunshine Act: Making it Harder For Agencies to Adopt Regulations Through “Sue-and-Settle” Arrangements (H.R. 469)

What is H.R. 469?

(Updated October 6, 2019)

This bill — known as the Sunshine Act — would restrict the ability of federal agencies to participate in so-called “sue and settle arrangements” by changing the process for developing consent decrees and settlement agreements that require agencies to take specific regulatory actions. Consent decrees allow agencies to take regulatory action without public notice or comment periods. They’re reached after an advocacy group files suit against a company or municipality for violating a law or an agency for missing a rulemaking deadline, causing regulators to pursue a settlement that dismisses the suit in exchange for regulatory action.

The bill would require that proposed consent decrees and settlement arrangements be published in the Federal Register for public comment 60 days before a court filing is made, and the federal agency would have to respond to all public comments. The head of a federal agency or the Attorney General (if the Dept. of Justice is involved) would be required to certify approval of certain types of settlement agreements and consent decrees. The same-day filing of complaints and pre-negotiated consent decrees and settlement agreements in cases looking to compel agency action would be prohibited.

A court would be prohibited from approving a consent decree or settlement agreement unless it incorporates adequate time and procedures for agencies to comply with statutes governing rulemaking. Courts would be required to closely scrutinize consent decrees and settlement agreements when agencies try to modify them, but modifications would be allowed if circumstances have changed.

The bill’s full title is the Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2017.

Argument in favor

This bill would put a stop to “sue and settle” tactics that allow federal bureaucrats to implement regulations while sidestepping the transparency afforded in the normal rulemaking process through public comment periods.

Argument opposed

This bill is a solution in search of a problem that imposes burdensome requirements on agencies and courts that delays litigation aimed at requiring federal agencies to fulfill their regulatory obligations.

Impact

Groups that would engage in sue and settle tactics; federal agencies; and the courts.

Cost of H.R. 469

The CBO estimates that enacting this bill would cost $9 million over the 2018-2022 period.

Additional Info

In-Depth: Sponsoring Rep. Doug Collins (R-GA) introduced this bill to inhibit the ability of federal agencies to circumvent established regulatory processes by entering into so-called “sue and settle arrangements” using consent decrees:

“The Sunshine Act represents a commitment I made to regulatory reform in my first term in office. Consent decrees weren’t designed as tools for back-room deals without the input of the people they impact most. I’m proud to have worked with Senator Grassley to curb this mischief by bringing transparency and accountability to the federal rulemaking process. This legislation lessens the power of bureaucrats to burden hardworking Americans with rules that bog down our economy and erode Americans’ right to know about and respond to federal rulemaking.”

House Democrats expressed opposition to this bill, writing in its committee report:

“As with all the anti-regulatory proposals this Committee has considered in this Congress, H.R. 469 is a solution in search of a problem. Notwithstanding a lack of credible evidence that agencies ‘‘collude’’ with plaintiffs to enter consent decrees or settlement agreements, this legislation will impose new burdensome procedural requirements on agencies and courts. As a result, well-funded third-party interests will have further opportunities to delay the resolution of litigation intended to force agencies to meet their legal obligations. And, the bill will make it harder to resolve such litigation quickly and cost-effectively.”

This legislation passed the House Judiciary Committee on a party-line 15-8 vote and has the support of 21 cosponsors in the House, all of whom are Republicans.

Of Note: Congressman Collins’ press release notes that over 100 regulations were adopted through consent decrees and settlement agreements during the Obama administration, with a total estimated annual cost of more than $100 billion. Collins offered as an example the MACT Utility Rule, which has an annual cost of $9 billion and enacted emissions regulations outside the purview of the Clean Air Act through a consent decree responding to a lawsuit which cited the Clean Air Act.

Media:

• Sponsoring Rep. Doug Collins (R-GA) Press Release
  
• CBO Cost Estimate
  
• Bloomberg BNA
  
• Gainesville Times
  
• The Hill
  
• The Regulatory Review
  
• Washington Examiner
  
• U.S. Chamber of Commerce (In Favor)