Sen. Chuck Grassley (R-Iowa), ranking member of the SenateJudiciary Committee, reintroduced legislation to end the practice of creatingnew federal red tape outside of the public rulemaking process. The tactic,known as sue-and-settle litigation, is used by federal agencies and like-mindedspecial interest groups to impose new and burdensome regulations on businessesand communities without sufficient public notice or participation. The Sunshinefor Regulatory Decrees and Settlements Act of 2021 shines a light onsue-and-settle litigation and restores the transparency, public scrutiny andjudicial review protections of the rulemaking process. An identical bill wasintroduced in the House of Representatives by Congresswoman Victoria Spartz(R-Ind.). The bill’s introduction follows the lawmakers’recent letter calling on President Joe Biden to end the obscure practice.
“Sue-and-settletactics are used solely to hide an agency’s regulatory ambitions from theAmerican people until it is too late. This practice hurts families, businessesand even entire states through burdensome red tape, and it makes a mockery ofthe public accountability and transparency protections established by theAdministrative Procedure Act. This bill restores the American people’sseat at the table when agencies debate imposing new federal regulations,” Grassley said.
“Iintroduced the Sunshine for Regulatory Decrees and Settlements Act to ensuretransparency and accountability in our federal government and restore thepublic’s trust in how it makes decisions. We simply cannot allow the activistagencies and special interest groups to circumvent the rulemaking process andimplement burdensome regulations on small businesses and individuals withoutproper due process,” Spartz said.
Sue-and-settlelitigation involves closed-door negotiations between pro-regulatory specialinterest groups and complicit federal agencies, resulting in consent decrees orsettlement agreements that bind executive discretion. Unlike the normalrulemaking process, potentially-affected parties – such as businesses and stategovernments – are often kept completely in the dark about the negotiations. Theresulting regulations can come as a complete surprise to those who it directlyimpacts. Even once theprivately-negotiated consent decrees or settlement agreements are disclosed,their terms often require federal agencies to fulfill new regulatory mandatesunder accelerated timeframes, preventing any meaningful scrutiny orreview. Consent decrees can bind federalagencies in succeeding administrations, limiting future executive discretionsuch as de-regulatory efforts.
To pushback against the growing use of sue-and-settle litigation, the Sunshinefor Regulatory Decrees and Settlements Act reinforces the transparencyand accountability protections built into the normal rulemaking process byfederal laws and executive orders. Specifically, the bill:
- Providesfor greater transparency by requiring agencies to publicly post and report toCongress information on sue-and-settle complaints, consent decrees andsettlement agreements;
- Prohibitsthe same-day filing of complaints and pre-negotiated consent decrees andsettlement agreements in cases seeking to compel agency action;
- Requiresthat consent decrees and settlement agreements be filed only after interestedparties have had the opportunity to intervene in the litigation and joinsettlement negotiations, and only after any proposed consent decree orsettlement has been published for at least 60 days to provide for notice andcomment;
- Requirescourts considering approval of consent decrees and settlement agreements toaccount for public comments and compliance with regulatory process statutes andexecutive orders;
- Requiresthe Attorney General or, where appropriate, the defendant agency’s head, tocertify to the court that he or she has approved any proposed consent decreethat includes terms that:
- Convert into a duty anotherwise discretionary authority of an agency to take regulatory action;
- Commit an agency to expendfunds that have not been appropriated and budgeted for the action in question;
- Commit an agency to seek aparticular appropriation or budget authorization;
- Divest an agency ofdiscretion committed to the agency by statute or the Constitution; or
- Otherwise affords relief thatthe court could not enter under its own authority; and
- Makes iteasier for succeeding administrations to petition a court for modification of aprior administration’s consent decrees by providing for de novo reviewof motions to modify, if the circumstances have changed.
The Senate bill is cosponsored by John Cornyn (R-Texas), Ted Cruz (R-Texas), MarcoRubio (R-Fla.), Marsha Blackburn (R-Tenn.), Josh Hawley (R-Mo.) and Thom Tillis(R-N.C.).
Text ofthe Sunshine for Regulatory Decrees and SettlementsAct of 2021 is available HERE.
Original source can be found here.
