Week ending October 27, 2017
H.R.469 – Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2017
“This bill establishes public notice and comment procedures and motion to intervene standards for civil actions seeking to compel agency action and alleging that an agency is unlawfully withholding or unreasonably delaying an agency action, and for consent decrees or settlement agreements that require agency action, relating to a regulatory action that would affect the rights of: (1) private persons other than the person bringing the action; or (2) a state, local, or tribal government.” – crs
‘Since the 1960s and 1970s, consent decrees and settlement agreements increasingly have been used in federal litigation to bind executive discretion under judicial authority, including to bind executive discretion over successive administrations.
‘This trend has arisen in litigation against both federal defendants and State and local defendants. In litigation against federal defendants, the problem has been concentrated in litigation against regulatory agencies over allegations that agency action has been unlawfully withheld or unreasonably delayed at the federal level.’
Unser the bill Agencies seeking to enter such a consent decree or settlement agreement must publish, and accept and respond to public comment on, the proposed agreement or decree for 60 days before filing it with the court; and make available to the court the administrative record and a summary of public comments and any public hearings.
‘Courts: (1) shall not approve such consent decrees or settlement agreements unless they allow sufficient time and procedures to comply with the Administrative Procedure Act, rulemaking statutes, and executive orders; and (2) shall grant de novo review if an agency files a motion to modify such a decree or agreement on the basis that its terms are no longer fully in the public interest due to changed facts and circumstances or the agency’s obligations to fulfill other duties.’
(Full text of H.R. 469 congress.gov)
Sponsor: Rep. Collins, Doug [R-GA-9] (Introduced 01/12/2017)
Status: Passed House /
VOTES and FLOOR ACTION
On Passage: On passage Passed by recorded vote: 234 – 187 (Roll no. 588)
An amendment, offered by Mr. Collins (GA), numbered 1 printed in Part A of House Report 115-363 to clarify the application of 5 USC 552a (The Privacy Act) to the bill. On agreeing to the Collins (GA) amendment; Agreed to by voice vote.
An amendment, offered by Mr. Conyers, numbered 2 printed in Part A of House Report 115-363 to call for exception for consent decrees or settlement agreements relating to the enforcement of civil rights laws. On agreeing to the Conyers amendment; Failed by voice vote.
An amendment, offered by Mr. Johnson (GA), numbered 3 printed in Part A of House Report 115-363 to exempt any consent decree or covered settlement agreement pertaining to a deadline established by Congress to significantly improve access to high-speed broadband in under-served markets, such as low-income and rural communities; and to facilitate economic development in locations without sufficient access to such service. On agreeing to the Johnson (GA) amendment; Failed by recorded vote: 185 – 231 (Roll no. 585).
An amendment, offered by Mr. McEachin, numbered 4 printed in Part A of House Report 115-363 to exempt any consent decree or settlement agreement pertaining to the improvement or maintenance of air or water quality. On agreeing to the McEachin amendment; Failed by recorded vote: 187 – 226 (Roll no. 586).
An amendment, offered by Mr. Cartwright, numbered 6 printed in Part A of House Report 115-363 to create additional exception for consent decrees or settlement agreements entered into pursuant to Meese Policy (28 C.F.R. Sec. 0.160-0.163 (2017)). On agreeing to the Cartwright amendment; Failed by recorded vote: 186 – 232 (Roll no. 587).
Motion to recommit:
Text of the motion:
COST AND IMPACT
Cost to the taxpayers: CBO estimates that implementing H.R. 469 would cost $9 million over the 2018-2022 period; any such spending would be subject to the availability of appropriated funds. Most of those additional costs would be incurred to hire additional staff because litigation involving consent decrees and settlement agreements would probably take longer under the bill. Federal agencies and courts would face additional administrative requirements, including the requirement to make more information available to the public.
Pay-as-you-go requirements: Enacting H.R. 469 would affect direct spending; therefore, pay-as-you-go procedures apply. Under several statutes, plaintiffs who successfully challenge the federal government are entitled to repayment of attorneys’ fees through the Department of the Treasury’s Judgment Fund (a permanent appropriation available to pay claims against the government). The annual total of all such payments has averaged about $2 million in recent years. By lengthening the process of developing consent decrees and settlement agreements, H.R. 469 would lead to an increase in the amount of reimbursable attorneys’ fees, thus increasing the amount of such payments from the Judgment Fund. Based on average hourly attorney fees and the number of covered civil actions in recent years, CBO estimates that the small additional workload would increase reimbursable attorney’s costs and direct spending by about $1 million over the 2018-2027 period. Enacting the bill would not affect revenues.
Regulatory and Other Impact: H.R. 469 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would impose no costs on state, local, or tribal governments.
Dynamic Scoring: CBO estimates that enacting H.R. 469 would not significantly increase net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2028.
Tax Complexity: Not applicable to this bill.
Earmark Certification: Data not available
Duplication of programs: Data not available
Direct Rule-Making: Data not available
Advisory Committee Statement: Data not available
Budget Authority: Data not available
Constitutional Authority: Assumed.
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. The cumulative effect of H.R. 469 will be to derail a time-honored tool that has helped protect the health and safety of Americans from a vast array of life-threatening harms, including polluted air and water, unsafe products, contaminated food, and adulterated medicines.
There are already procedures in place that address any purported collusion or lack of transparency. These procedures, originally implemented during the Reagan Administration, effectively deal with any such problem. Other than unsupported allegations, however, proponents of H.R. 469 offer no explanation as to why current law is insufficient. Instead, the bill employs ambiguous terms in key provisions that will actually generate additional litigation over their meaning.
Finally, H.R. 469 undermines existing civil procedure rules and undermines judicial discretion. For these reasons, we respectfully dissent and urge our colleagues to oppose H.R. 469.
Mr. Conyers, Jr.
Ms. Jackson Lee.
Mr. Johnson, Jr.
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