House passes bill to curb sue-and-settle regulation

House passes bill to curb sue-and-settle regulation
© Greg Nash

The House passed legislation Wednesday to create new public notice and comment requirements before agencies can immediately settle lawsuits brought by pro-regulatory groups.

The Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2017, introduced by Rep. Doug CollinsDouglas (Doug) Allen CollinsHouse Republicans confident there won't be a government shutdown Lawmakers move to award posthumous Congressional Gold Medal to Aretha Franklin Connect Beltway to America to get federal criminal justice reform done MORE (R-Ga.), requires agencies to publicly publish any negotiated sue-and-settle consent decrees and legal settlement agreements — which compel an agency to undertake a new rulemaking — at least 60 days before they're filed in court.

The legislation gives interested parties the opportunity to intervene in the litigation and join in on the negotiations.

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The bill, tucked into a package of three bills titled the Congressional Article I Powers Strengthening Act, passed 234-187 despite Democratic opposition.

Rep. John ConyersJohn James ConyersSexual assault is not a game — stop using women to score political points Congressional Ethics committees are the wrong place to settle harassment and discrimination claims Conservative activist disrupts campaign event for Muslim candidates MORE Jr. (D-Mich.) said the legislation threatens critical public health and safety protections by opening the door for industry opponents to stifle agency rulemakings.

He said an agency would be forced to go through two public comment periods — one for the consent decree and one for the actual rulemaking — doubling the agency’s efforts.

But Rep. Bob GoodlatteRobert (Bob) William GoodlatteHouse Judiciary chair threatens subpoena if DOJ doesn’t supply McCabe memos by Tuesday Rosenstein report gives GOP new ammo against DOJ House Judiciary chair: Nellie Ohr is cooperating, will testify MORE (R-Va.) claimed the bill is about restoring Congress’s Article I powers.

“Over the past several decades, consent decrees and settlement agreements increasingly have been used in federal litigation to allow the executive branch to write new law in ways that give short shrift to the requirements of the Administrative Procedure Act, Regulatory Flexibility Act and other laws by which Congress has prescribed how agencies must conduct rulemaking,” he said.

“While the executive does have some regulatory authority, these settlements and consent decrees have been used to aggrandize that authority and shift regulatory priorities under the cloak of judicial authority.”

A 2015 Government Accountability Office report, however, found the effect of settlements in deadline suits on the Environmental Protection Agency’s rulemaking priorities was limited.

“The real conspiracy here is the Republican plot to destroy the regulatory state,” Rep. Jerrold Nadler (D-N.Y.) said.

“With one hand we defund the agencies and with the other hand we build all sorts of hurdles in the regulatory process so the agencies have no ability to complete their work. It is a shameful effort that may save big businesses some money in regulatory compliance, but will cost our citizens their health, their safety and possibly their lives.”

Another proposal in the bill package requires the Treasury Department to disclose the details of payments made from the Judgment Fund, including the amount paid and name of the claimant.

The second bill gives Congress time to review and intervene in any civil action in which the Attorney General has determined the Justice Department will not defend the constitutionality of any provision of federal law.