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[House Report 114-184]
[From the U.S. Government Publishing Office]


114th Congress       {                                 }      Report                        
 1st Session         {     HOUSE OF REPRESENTATIVES    }       114-184
======================================================================
 
      SUNSHINE FOR REGULATORY DECREES AND SETTLEMENTS ACT OF 2015

                                _______
                                

 June 25, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 712]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 712) to impose certain limitations on consent 
decrees and settlement agreements by agencies that require the 
agencies to take regulatory action in accordance with the terms 
thereof, and for other purposes, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     8
Committee Consideration..........................................     8
Committee Votes..................................................     8
Committee Oversight Findings.....................................    12
New Budget Authority and Tax Expenditures........................    13
Congressional Budget Office Cost Estimate........................    13
Duplication of Federal Programs..................................    14
Disclosure of Directed Rule Makings..............................    14
Performance Goals and Objectives.................................    14
Advisory on Earmarks.............................................    15
Section-by-Section Analysis......................................    15
Dissenting Views.................................................    18

                          Purpose and Summary

    H.R. 712, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2015,'' limits the ability of defendant 
Federal regulators and pro-regulatory plaintiffs to abuse 
Federal consent decrees and settlement agreements to require 
new regulations, reorder regulatory priorities, bind the 
discretion of future Administrations, and limit the rights of 
regulated entities and State, local and Tribal co-regulators 
affected by actions taken under such decrees and settlements. 
The bill accomplishes this by improving transparency, 
increasing participation by affected regulated entities and co-
regulators in the negotiation and consideration of decrees and 
settlement, strengthening public comment on and judicial review 
of proposed decrees and settlements, and assuring review by the 
Attorney General and agency heads of the types of proposed 
decrees and settlements that would most intrusively involve the 
Judiciary in the administration of agencies' regulatory duties.

                Background and Need for the Legislation

                         I. GENERAL BACKGROUND

1. LAbuse of Regulatory Consent Decrees and Settlement Agreements and 
        the Rise of ``Sue-and-Settle'' Litigation
    Since the 1960's and 1970's, 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.
    In such cases, the tactical use of consent decrees and 
settlement agreements has, over the decades, essentially been 
refined into an art form, commonly known as ``sue-and-settle'' 
litigation. In sue-and-settle litigation, defendant regulatory 
agencies, such as the U.S. Environmental Protection Agency, 
typically have failed to meet mandatory statutory deadlines for 
new regulations or allegedly have unreasonably delayed 
discretionary action. Plaintiffs in such matters often have 
strong cases on liability, giving them substantial leverage 
over the defending agencies. That leverage is heightened when, 
as often is the case, the agency actions at issue are 
politically sensitive, such as major, new anti-pollution 
regulations to impose high costs on regulated industry. 
Political and practical concerns in sue-and-settle cases 
frequently give rise to perverse agency incentives to cooperate 
with actual or threatened litigation and negotiate a consent 
decree or settlement agreement to resolve it. This is because, 
once a decree or agreement is in place, the defendant agency 
has a litigation-based excuse to expedite action that helps to 
diminish political costs, reorder agency funding priorities, or 
serve other pro-regulatory ends.
    As a result of these factors, it has become common in these 
cases for pro-regulatory plaintiffs to approach vulnerable 
Federal agencies with threats of lawsuits, negotiate consent 
decrees or settlement agreements in secret in advance of suit, 
and propose the decrees or settlements to the courts 
contemporaneously with the filing of the plaintiffs' 
complaints. The resulting decrees and settlement agreements 
often come as surprises to the regulated community, State, 
local and Tribal regulators who share responsibility for 
regulatory programs at issue, and the general public. Further, 
these decrees and settlements often provide short timelines for 
agency action, particularly the proposal and promulgation of 
new regulations. The lack of advance notice and judicially 
backed, minimal timeframes for proposal and promulgation allow 
defendant agencies to undercut the public participation and 
analytical requirements of the Administrative Procedure Act, 
the Regulatory Flexibility Act, the Unfunded Mandates Reform 
Act, and other regulatory process statutes. Similarly, 
accelerated timeframes for proposal and promulgation allow 
agencies to short-circuit review of new regulations by OIRA 
under executive orders applicable to the rulemaking process. 
Incentives for agencies to pursue these ends--which leave the 
agencies freer to frame new regulations to fit pre-conceived 
agency preferences, rather than public preferences, sound 
policy and the facts--is particularly strong when plaintiffs 
and defendant agencies agree on what the content of proposed 
and final agency action should be, and seek to effectuate that 
agreement without interference by other interested parties and 
OIRA.
    In many cases, agencies also may not be able to conclude 
desired but controversial rulemakings before a succeeding 
Administration--with potentially different views and 
priorities--takes office. The approaching expiration of an 
Administration's term in office gives agency officials a 
powerful incentive to control the incoming Administration's 
regulatory agenda through consent decrees and settlement 
agreements finalized before the new Administration can assume 
its duties. That is particularly true when agencies have failed 
to meet a number of mandatory rulemaking deadlines under one 
statute. A recent example of that potential was offered by the 
set of rulemakings required under the Dodd-Frank Wall Street 
Reform and Consumer Protection Act. Estimates in 2012 were that 
relevant agencies had missed three-quarters of the pre-2012 
rulemaking deadlines in that legislation.\1\ Had the Obama 
administration been voted out of office in November 2012, a 
high potential for Dodd-Frank sue-and-settle decrees and 
settlements would have existed.
---------------------------------------------------------------------------
    \1\Reuters, ``Regulators Inching Forward on Dodd-Frank Rules'' 
(Jan. 3, 2012) (available at http://news.yahoo.com/regulators-inching-
forward-dodd-frank-rules-210003595.html).
---------------------------------------------------------------------------
    When pro-regulatory interest groups and regulatory agencies 
engage in sue-and-settle practices, the end result is 
rulemaking that implements the priorities of pro-regulatory 
advocates, limits the discretion of succeeding Administrations, 
and takes place under schedules that render notice-and-comment 
rulemaking a formality, depriving regulated entities, the 
public and OIRA of sufficient opportunities to influence the 
content of final rules.
2. LSue-and-Settle Trends under the Obama Administration
    Under the Obama administration, this phenomenon has become 
particularly troubling. Not only has the Administration 
generally increased the number of major rulemakings, but it has 
engaged in a flurry of sue-and-settle cases. According to a 
recent study of Clean Air Act and Clean Water Act sue-and-
settle cases, the U.S. Chamber of Commerce found that:

         LThe sue-and-settle process is increasingly 
        being used as a technique to shape agencies' regulatory 
        agendas, without input from the public or the regulated 
        community.

         LThe Obama administration had already entered 
        into more than 70 sue-and-settle agreements which had 
        led to the issuance of at least 100 regulations, 
        including the Utility MACT rule, the Chesapeake Bay 
        Clean Water Act rules, and various regional haze 
        implementation rules.

         LThe Sierra Club was responsible for 34 of the 
        71 lawsuits, with WildEarth Guardians coming in second 
        with 20 suits.

         LSix of the Obama administration's sue-and-
        settle regulations alone reportedly would impose $101 
        billion in estimated annual costs, while another four 
        would impose compliance costs of as much as $23.66 
        billion.

         LIn fiscal year 2011, Congress appropriated 
        $20.9 million to the U.S. Fish and Wildlife Service for 
        endangered species listing and critical habitat 
        designation. That year, the agency spent $15.8 million 
        in response to court orders or settlement 
        agreements.\2\
---------------------------------------------------------------------------
    \2\U.S. Chamber of Commerce, ``Sue-and-Settle--Regulating Behind 
Closed Doors'' (May 20, 2013) (available at http://www.uschamber.com/
sites/default/files/reports/SUEANDSETTLE
REPORT-Final.pdf).

    To provide further examples of sue-and-settle trends, just 
two agencies, EPA and the Department of the Interior, have been 
able to institute the following major policy changes under sue-
---------------------------------------------------------------------------
and-settle rulemakings during the Obama administration:

         Lthe Utility Maximum Achievable Control 
        Technology rule on coal-fired electric utilities;

         Lthe Cement Maximum Achievable Control 
        Technology rule on cement manufacturing;

         Lthe Stream Buffer Zone rule on coal mining;

         Lthe Cooling Water Intake Structure 
        regulations on electric utilities;

         Lrevisions to the definition of solid waste 
        under the Resource Conservation and Recovery Act;

         Lregulation of greenhouse gases under the 
        Clean Water Act;

         Lnumeric nutrient criteria for the State of 
        Florida under the Clean Water Act;

         LFederal implementation plans for regional 
        haze in North Dakota and Oklahoma under the Clean Air 
        Act;

         Lreconsideration of National Ambient Air 
        Quality Standards for ozone;

         LNew Source Performance, Maximum Achievable 
        Control Technology and residual risk standards for oil 
        and gas drilling operations;

         Lfirst-ever greenhouse gas New Source 
        Performance Standards for coal- and oil-fired electric 
        utilities;

         Lfirst-ever greenhouse gas New Source 
        Performance Standards for oil refiners; and

         La commitment to move forward with Endangered 
        Species Act protections for over 250 candidate species.

3. LHistory of Administrative Reforms in Past Administrations
    During the Reagan and George H.W. Bush administrations, 
sue-and-settle problems were alleviated under policy set by 
Attorney General Meese in 1986. Under this policy, set forth in 
a memorandum commonly known as the ``Meese Memo,'' the 
Department of Justice generally refused to enter into consent 
decrees that:

         Lconverted into a mandatory duty the otherwise 
        discretionary authority of an agency to propose, 
        promulgate, revise or amend regulations;

         Lcommitted the agency to expend funds that 
        Congress had not appropriated and that had not been 
        budgeted for the action in question, or committed an 
        agency to seek a particular appropriation or budget 
        authorization;

         Ldivested the agency of discretion committed 
        to it by Congress or the Constitution whether such 
        discretionary power was granted to respond to changing 
        circumstances, to make policy or managerial choices, or 
        to protect the rights of third parties; or

         Lotherwise afforded relief that the court 
        could not enter on its own authority upon a final 
        judgment in the litigation.

    The Meese Memo also generally prevented the Department from 
entering into settlement agreements that:

         Linterfered with the agency's authority to 
        revise, amend or promulgate regulations through the 
        procedures set forth in the Administrative Procedure 
        Act or other statutes prescribing rulemaking procedures 
        for rulemakings that were the subject of the settlement 
        agreement;

         Lcommitted the agency to expend funds that 
        Congress had not appropriated and that had not been 
        budgeted for the action in question; or

         Lprovided a remedy for the agency's failure to 
        comply with the terms of the settlement agreement other 
        than the revival of the suit resolved by the agreement, 
        if the agreement committed the agency to exercise its 
        discretion in a particular way and such discretionary 
        power was committed to the agency by Congress or the 
        Constitution to respond to changing circumstances, to 
        make policy or managerial choices, or to protect the 
        rights of third parties.\3\
---------------------------------------------------------------------------
    \3\Memorandum from Attorney General Edwin Meese III to all 
Assistant Attorneys General and United States Attorneys, Department 
Policy regarding Consent Decrees and Settlement Agreements (Mar. 13, 
1986).

    The Meese Memo was grounded in separation-of-powers 
concerns. The Clinton administration reviewed the questions 
addressed by the Memo and found that these policy concerns were 
sound. It did not, however, conclude that the Department was 
legally bound to respect the lines drawn in the Memo, and it 
substantially relaxed the Department's policy in 1999. \4\
---------------------------------------------------------------------------
    \4\Memorandum from Randolph D. Moss, Acting Assistant Attorney 
General for Office of Legal Policy, to Associate Attorney General 
Raymond C. Fisher, Authority of the United State to Enter Settlements 
Limiting the Future Exercise of Executive Branch Discretion (June 15, 
1999).
---------------------------------------------------------------------------
4. LResolution of the Environmental Council of the States on Sue-and-
        Settle Practices
    In light of the impacts that sue-and-settle consent decrees 
and settlement agreements often have on State agencies that co-
regulate with the Federal Government (e.g., under the Clean Air 
Act), the Environmental Council for the States (ECOS) undertook 
a review of the concerns raised by sue-and-settle practices.\5\ 
This review culminated in ECOS Resolution 13-2, effective March 
6, 2013. The resolution emphasized that States may be adversely 
affected by consent decrees or settlement agreements in sue-
and-settle cases, may have information that would help the 
Federal Government defend or settle sue-and-settle cases, and 
may have interests that should be accounted for in the 
consideration of settlements in these cases. It also stressed 
that States are not always given notice of such suits, are 
often not parties to them, and are typically not afforded an 
opportunity to assist in the negotiation of relevant 
settlements. In light of these concerns, in Resolution 13-2, 
ECOS stated that it:
---------------------------------------------------------------------------
    \5\As described on its website, ``[t]he Environmental Council of 
the States (ECOS) is the national non-profit, non-partisan association 
of state and territorial environmental agency leaders. ECOS was 
established in December 1993 at a meeting of approximately 20 states in 
Phoenix, Arizona and is a 501(c)(6) non-profit organization.'' See 
http://www.ecos.org/section/_aboutecos. ``The purpose of ECOS is to 
improve the capability of state environmental agencies and their 
leaders to protect and improve human health and the environment of the 
United States of America.'' Id. ECOS' membership currently includes 48 
States, plus the District of Columbia and Commonwealth of Puerto Rico.

         L``Affirms that states have stand alone rights 
        and responsibilities under Federal environmental laws, 
        and that the state environmental agencies are co-
---------------------------------------------------------------------------
        regulators, co-funders and partners with U.S. EPA;''

         L``Urges U.S. EPA to devote the resources 
        necessary to perform its nondiscretionary duties within 
        the timeframes specified under Federal law, especially 
        when required to take action on a state submission made 
        under an independent right or responsibility (e.g., 
        State Implementation Plans under the Clean Air Act).''

         L``Specifically calls on U.S. EPA to notify 
        all affected state environmental agencies of citizen 
        suits filed against U.S. EPA that allege a failure of 
        the Federal agency to perform its nondiscretionary 
        duties;''

         L``Believes that providing an opportunity for 
        state environmental agencies to participate in the 
        negotiation of citizen suit settlement agreements will 
        often be necessary to protect the states' role in 
        implementing Federal environmental programs and for the 
        administration of authorized or delegated environmental 
        programs in the most effective and efficient manner;''

         L``Specifically calls on U.S. EPA to support 
        the intervention of state environmental agencies in 
        citizen suits and meaningful participation in the 
        negotiation of citizen suit settlement agreements when 
        the state agency has either made a submission to EPA 
        related to the citizen suit or when the state agency 
        either implements, or is likely to implement, the 
        authorized or delegated environmental program at 
        issue;''

         L``Believes that no settlement agreement 
        should extend any power to U.S. EPA that it does not 
        have in current law;''

         L``Believes that greater transparency of 
        citizen suit settlement agreements is needed for the 
        public to understand the impact of these agreements on 
        the administration of environmental programs;''

         L``Affirms the need for the Federal Government 
        to publish for public review all settlement agreements 
        and consider public comments on any proposed settlement 
        agreements;'' and,

         L``Encourages EPA to respond in writing to all 
        public comments received on proposed citizen suit 
        settlement agreements, including consent decrees.''\6\
---------------------------------------------------------------------------
    \6\The full, official text of Resolution 13-2 is available at 
http://www.ecos.org/section/policy/resolution and http://
dl.dropboxusercontent.com/u/8005220/Resolutions/Resolution%2013-2%20
Consent%20Decrees.pdf.

5. LReforms Embodied in the Sunshine for Regulatory Decrees and 
        Settlements Act
    Consistent with the record compiled by the Committee, the 
measures in H.R. 712 include provisions that: (1) require 
notices of intent to sue, complaints, consent decrees and 
settlement agreements, and attorneys' fee agreements in 
lawsuits attempting to force regulatory action be more 
transparent to the public and regulated entities; (2) give to 
regulated entities, State, local and Tribal co-regulators, and 
the public more rights to participate in the shaping or 
judicial evaluation of sue-and-settle consent decrees and 
settlement agreements, whether through notice-and-comment 
procedures or rights to participate in litigation as 
intervenors or amici curiae; (3) provide courts with more 
complete records and tools to review proposed sue-and-settle 
consent decrees and settlement agreements; and, (4) codify key 
Meese Memo's restrictions to constrain the authority of the 
Department of Justice and defendant agencies to agree to sue-
and-settle consent decrees and settlements that present 
separation-of-powers concerns.

                     II. PRIOR LEGISLATIVE HISTORY

    The Sunshine for Regulatory Decrees and Settlements Act was 
first introduced as H.R. 3862 in the 112th Congress. H.R. 3862 
was reported favorably by the Committee and passed the House on 
July 26, 2012, as title III of H.R. 4078, the ``Red Tape 
Reduction and Small Business Job Creation Act of 2012,'' on a 
bipartisan vote (245-172). The bill was reintroduced in the 
113th Congress as H.R. 1493. H.R. 1493 was likewise reported 
favorably by the Committee. It passed the House twice with 
bipartisan support, first, on February 27, 2014, as title IV of 
H.R. 2804, the ``Achieving Less Excess in Regulation and 
Requiring Transparency Act of 2014'' (236-179), and, second, on 
September 18, 2014, as title IV of Subdivision B of Division 
III of H.R. 4, the ``Jobs for America Act'' (253-163).

                                Hearings

    The Subcommittee on Regulatory Reform, Commercial and 
Antitrust Law held a hearing on H.R. 712 on March 2, 2015. 
Witnesses at the hearing included: William L. Kovacs, Senior 
Vice President for Environment, Technology & Regulatory 
Affairs, the U.S. Chamber of Commerce; Patrick A. McLaughlin, 
Senior Research Fellow, Mercatus Center, George Mason 
University; Sam Batkins, Director of Regulatory Policy, 
American Action Forum; and, Amit Narang, Regulatory Policy 
Advocate, Public Citizen. Additional material was submitted by 
the Hon. Samuel Olens, Georgia Attorney General.
    The Subcommittee also held a hearing on the legislation 
during the 113th Congress (H.R. 1493),\7\ and the Subcommittee 
on Courts, Commercial and Administrative Law held a hearing on 
the legislation during the 112th Congress (H.R. 3862).\8\
---------------------------------------------------------------------------
    \7\Sunshine for Regulatory Decrees and Settlements Act of 2013: 
Hearing before the Subcomm. on Regulatory Reform, Commercial and 
Antitrust of the H. Comm. on the Judiciary, Serial No. 113-28, 113th 
Cong. (June 5, 2013), (hereinafter ``Sunshine Hearing II'').
    \8\Federal Consent Decree Fairness Act, and the Sunshine for 
Regulatory Decrees and Settlements Act of 2012: Hearing before the 
Subcomm. on Courts, Commercial and Administrative Law of the H. Comm. 
on the Judiciary, Serial No. 112-83, 112th Cong. (Feb. 3, 2012), 
(hereinafter ``Sunshine Hearing I'').
---------------------------------------------------------------------------

                        Committee Consideration

    On March 24, 2015, the Committee met in open session and 
ordered the bill H.R. 712 favorably reported without amendment, 
by a rollcall vote of 20 to 11, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 712.
    1. Amendment #1, offered by Mr. Conyers. The Amendment 
exempts from requirements of H.R. 712 consent decrees and 
settlement agreements that pertain ``to the protection of the 
privacy of Americans.'' The amendment was defeated by a 
rollcall vote of 8 to 16.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................      8      16
------------------------------------------------------------------------

    2. Amendment #2, offered by Ms. Jackson Lee. The Amendment 
exempts from requirements of H.R. 712 consent decrees and 
settlement agreements that pertain ``to a reduction in illness 
or death from exposure to toxic substances or hazardous waste 
in communities that are protected by Executive Order 12898.'' 
The amendment was defeated by a rollcall vote of 9 to 17.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................      9      17
------------------------------------------------------------------------

    3. Amendment #4, offered by Mr. Hank Johnson. The Amendment 
exempts from requirements of H.R. 712 consent decrees and 
settlement agreements ``that the Director of the Office of 
Management and Budget determines would result in net job 
creation.'' The amendment was defeated by a rollcall vote of 10 
to 20.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     10      20
------------------------------------------------------------------------

    4. Reporting H.R. 712. The bill limits the ability of 
defendant Federal regulators and pro-regulatory plaintiffs to 
abuse Federal consent decrees and settlement agreements to 
require new regulations, reorder regulatory priorities, bind 
the discretion of future Administrations, and limit the rights 
of regulated entities and State, local and Tribal co-regulators 
affected by actions taken under such decrees and settlements. 
Reported by a rollcall vote of 20 to 11.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................      X
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................      X
Mr. Walters (CA)...............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................      X
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................              X
Mr. Deutch (FL)................................              X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................
Mr. Peters (CA)................................              X
                                                ------------------------
    Total......................................     20      11
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 712, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 16, 2015.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 712, the 
``Sunshine for Regulatory Decrees and Settlements Act of 
2015.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Marin 
Burnett, who can be reached at 226-2860.
            Sincerely,
                                                Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




 H.R. 712--Sunshine for Regulatory Decrees and Settlements Act of 2015.

      As ordered reported by the House Committee on the Judiciary 
                           on March 24, 2015.




    H.R. 712 would modify the process used to develop consent 
decrees and settlement agreements that require ederal agencies 
to take specified regulatory actions. Under the bill, a summary 
of all such complaints against Federal agencies, the terms of 
consent decrees or settlement agreements, and the awards of 
attorneys' fees would need to be published and accessible to 
the public in an electronic format. Under, the legislation any 
proposed consent decree or settlement agreement involving a 
Federal agency would be published in the Federal Register for 
60 days for public comment prior to filing with the court. H.R. 
712 also would require that settlement negotiations be 
conducted through mediation or alternative dispute resolution 
programs.
    Under the bill, agencies that submit certain consent 
decrees or settlement agreements to a court would be required 
to inform the court of the agency's other outstanding mandatory 
duties under current law and explain how the proposed consent 
decree or settlement agreement would further the public 
interest. The legislation would require the Attorney General 
(for cases litigated by the Department of Justice) or the head 
of a Federal agency that independently litigates a case to 
certify to the court his or her approval of certain types of 
settlement agreements and consent decrees. Finally, H.R. 712 
also would require courts to more closely review consent 
decrees when agencies seek to modify them.
    Based on information provided by the Department of Justice 
and assuming the appropriation of the necessary funds, CBO 
estimates that implementing H.R. 712 would cost $7 million over 
the 2016-2020 period. Most of those additional costs would be 
incurred because litigation involving consent decrees and 
settlement agreements would probably take longer under the bill 
and agencies would face additional administrative requirements, 
including the requirement to make more information available to 
the public.
    Enacting H.R. 712 could affect direct spending; therefore, 
pay-as-you-go procedures apply. Under several statutes, 
successful plaintiffs are entitled to repayment of attorneys' 
fees through the Treasury's Judgment Fund. Such payments have 
averaged about $2 million in recent years. By lengthening the 
process of developing consent decrees, H.R. 712 could lead to 
an increase in the amount of reimbursable attorneys' fees, thus 
increasing the amount of such payments from the Judgment Fund. 
However, the increased length of the process to finalize 
consent decrees and settlement agreements might deter some 
future lawsuits and decrease the number of future cases. On 
net, CBO estimates that enacting the legislation would increase 
annual direct spending by an insignificant amount. Enacting the 
bill would not affect revenues.
    H.R. 712 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.
    The CBO staff contact for this estimate is Marin Burnett. 
The estimate was approved by Theresa Gullo, Assistant Director 
of Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 712 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 712 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
712, limits the ability of defendant Federal regulators and 
pro-regulatory plaintiffs to abuse Federal consent decrees and 
settlement agreements to require new regulations, reorder 
regulatory priorities, bind the discretion of future 
Administrations, and limit the rights of regulated entities and 
State, local and Tribal co-regulators affected by actions taken 
under such decrees and settlements.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 712 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Sec. 1. Short title.
    Section 1 sets forth the short title of the bill as the 
``Sunshine for Regulatory Decrees and Settlements Act of 
2015.''
Sec. 2. Definitions.
    Under the definitions in Section 2, the bill applies to 
specific classes of consent decrees and settlements, as 
follows:
    Subsec. 2(1): ``Agency'' and ``Agency action'' have the 
meanings given those terms under 5 U.S.C. Sec. 551.
    Subsec. 2(2): ``Covered civil action'' means a civil action 
brought under chapter 7 of title 5, United States Code, or any 
other statute authorizing suit against the United States, to 
compel agency action alleged to be unlawfully withheld or 
unreasonably delayed that pertains to a regulatory action that 
affects the rights of private parties other than the plaintiff 
or the rights of state, local or tribal governments.
    Subsec. 2(3): ``Covered consent decree'' means any consent 
decree entered in a covered civil action and any consent decree 
that requires agency action that pertains to a regulatory 
action that affects the rights of private parties other than 
the plaintiff or the rights of state, local or tribal 
governments.
    Subsec. 2(4): ``Covered consent decree or settlement 
agreement'' means a covered consent decree and a covered 
settlement agreement.
    Subsec. 2(5): ``Covered settlement agreement'' means any 
settlement agreement entered in a covered civil action and any 
settlement agreement that requires agency action that pertains 
to a regulatory action that affects the rights of private 
parties other than the plaintiff or the rights of state, local 
or tribal governments.
Sec. 3. Consent Decree and Settlement Reform.
    Section 3 of the bill sets forth the following requirements 
applicable to consent decrees and settlement agreements covered 
by the bill:
    Subsec. 3(a)(1)--notice of intent to sue and complaints in 
covered civil actions must be made publicly available, within 
15 days after receipt of service of the notice of intent to sue 
or the complaint, respectively, through readily accessible 
means, including electronic means by the agency against which 
the action is filed.
    Subsec. 3(a)(2)--the opportunity for affected parties to 
intervene in the litigation must conclude before covered 
consent decrees and settlement agreements may be proposed to 
the court.
    Subsec. 3(b)(1)--in considering motions to intervene, the 
court must adopt a rebuttable presumption that an intervenor-
movant's rights are not adequately represented by the plaintiff 
or defendant agency.
    Subsec. 3(b)(2)--in considering motions to intervene, the 
court must take due account of whether the movant is a state, 
local or tribal government that co-administers with the Federal 
Government the statutory provisions at issue in the litigation 
or administers state, local or tribal regulatory authority that 
would be preempted by the defendant agency's discharge of the 
regulatory duty alleged in the complaint.
    Subsec. 3(c)(1)-(2)--if the court grants intervention, it 
must include the plaintiff, defendant agency and intervenor(s) 
in court-supervised settlement talks. Settlement negotiations 
are to occur in the court's mediation or ADR program or to be 
presided over by a district judge other than the presiding 
judge, a magistrate judge, or a special master, as determined 
appropriate by the presiding judge.
    Subsec. 3(d)(1)--the defendant agency must publish in the 
Federal Register and online any proposed consent decree or 
settlement agreement for no fewer than 60 days of public 
comment before filing it with the court and must specify the 
statutory basis for the covered consent decree or settlement. 
The agency must also publish a description of the covered 
consent decree or settlement, including whether it provides for 
an award of attorney's fees.
    Subsec. 3(d)(2)(A)--during the 60 day period, the defendant 
agency must allow public comment on any issue related to the 
matters alleged in the complaint in the applicable civil action 
or addressed or affected by the covered consent decree or 
settlement agreement.
    Subsec. 3(d)(2)(B)--the defendant agency must respond to 
any public comments received.
    Subsec. 3(d)(2)(C)--the defendant agency must submit to the 
court a summary of the public comments and agency responses 
when it moves for entry of the covered consent decree or 
dismissal of the case based on the settlement agreement, inform 
the court of the statutory basis for the proposed covered 
consent decree or settlement, certify an index of the 
administrative record for the notice and comment proceeding to 
the court, and make the administrative record fully accessible 
to the court.
    Subsec. 3(d)(2)(D)--the court must include in the record 
the index of the administrative record certified by the agency 
under subparagraph (C) and any documents listed in the index 
which any party or amicus curiae appearing before the court in 
the action submits to the court.
    Subsec. 3(d)(3)(A)--the defendant agency may, at its 
discretion, hold a public agency hearing on whether to enter 
into the proposed consent decree or settlement agreement.
    Subsec. 3(d)(3)(B)- If such a hearing is held, then a 
summary of the proceedings must be filed with the court, the 
hearing record must be certified to the court and included in 
the judicial record, and full access to the hearing record must 
be given to the court.
    Subsec. 3(d)(4)--if a proposed consent decree or settlement 
agreement requires agency action by a date-certain, the 
defendant agency must inform the court of any uncompleted 
mandatory agency duties the covered consent decree or 
settlement agreement does not address, how the covered consent 
decree or settlement agreement would affect the discharge of 
those duties, and why the covered consent decree's or 
settlement agreement's effects on the order in which the agency 
discharges its mandatory duties is in the public interest.
    Subsec. 3(e)(1)-(2)--in the case of a covered consent 
decree, the Attorney General or, in cases litigated by agencies 
with independent litigating authority, the defendant agency 
head, must certify to the court that he or she approves of a 
proposed covered consent decree that includes terms that: (i) 
convert into a non-discretionary duty a discretionary authority 
of an agency to propose, promulgate, revise, or amend 
regulations; (ii) commit an agency to expend funds that have 
not been appropriated and that have not been budgeted for the 
regulatory action in question; (iii) commit an agency to seek a 
particular appropriation or budget authorization; (iv) divest 
an agency of discretion committed to the agency by statute or 
the Constitution of the United States, without regard to 
whether the discretion was granted to respond to changing 
circumstances, to make policy or managerial choices, or to 
protect the rights of third parties; or (v) otherwise affords 
relief that the court could not enter under its own authority 
upon a final judgment in the civil action.
    In the case of a covered settlement agreement, the Attorney 
General or, in cases litigated by agencies with independent 
litigating authority, the defendant agency head, must certify 
to the court that he or she approves of a proposed covered 
settlement agreement that provides a remedy for failure by the 
agency to comply with the terms of the covered settlement 
agreement other than the revival of the civil action resolved 
by the covered settlement agreement and that: (i) interferes 
with the authority of an agency to revise, amend, or issue 
rules under the procedures set forth in chapter 5 of title 5, 
United States Code, or any other statute or executive order 
prescribing rulemaking procedures for a rulemaking that is the 
subject of the covered settlement agreement; (ii) commits the 
agency to expend funds that have not been appropriated and that 
have not been budgeted for the regulatory action in question; 
or (iii) for a covered settlement agreement that commits the 
agency to exercise in a particular way discretion which was 
committed to the agency by statute or the Constitution of the 
United States to respond to changing circumstances, to make 
policy or managerial choices, or to protect the rights of third 
parties.
    Subsec. 3(f)(1)--when it considers motions to participate 
as amicus curiae in briefing over whether it should enter or 
approve a consent decree or settlement, the court must adopt a 
rebuttable presumption that favors amicus participation by 
those who filed public comments on the covered consent decree 
or settlement agreement during the agency's notice and comment 
process.
    Subsec. 3(f)(2)(A)-(B)--the court must ensure that a 
proposed consent decree or settlement agreement allows 
sufficient time and procedure for the agency to comply with the 
Administrative Procedure Act and other applicable statutes that 
govern rulemaking, and, unless contrary to the public interest, 
any executive orders that govern rulemaking;
    Subsec. 3(g)--requires agencies to submit annual reports to 
Congress on the number, identity, and content of covered civil 
actions brought against and covered consent decrees and 
settlement agreements, including the statutory bases of the 
covered consent decrees and settlement agreements, and the 
decrees' and settlements' related complaints and attorneys' fee 
awards.
Sec. 4. Motions to Modify Consent Decrees.
    The bill establishes a de novo standard of review for the 
courts' consideration of motions to modify covered consent 
decrees and settlement agreements due to agency obligations to 
fulfill other duties or changed facts and circumstances.
Sec. 5. Effective Date.
    The bill becomes effective upon enactment and applies to 
any covered civil action filed or covered consent decree or 
settlement agreement proposed to a court on or after that date.

                            Dissenting Views

                              INTRODUCTION

    H.R. 712, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2015,'' is yet another attempt to undermine 
the ability of Federal regulators to protect the health and 
safety of Americans. This ill-conceived bill imposes numerous 
new procedural burdens on agencies and courts intended to 
dissuade them from using consent decrees and settlement 
agreements to resolve enforcement actions filed to address 
agency noncompliance with the law. Among these burdens are the 
requirements that agencies solicit public comments on such 
proposed consent decrees and settlement agreements and that 
they respond to each public comment before submitting them to 
the court. The bill would also require courts to presume, 
subject to rebuttal, that almost any private third party is 
entitled to intervene in litigation concerning a regulatory 
action and would require that such third party be permitted to 
participate in settlement negotiations between the litigants.
    Proponents of this legislation argue that agencies and 
interest groups collude to ``sue and settle'' in order to avoid 
compliance with the rulemaking procedures set forth in the 
Administrative Procedure Act (APA),\1\ as well as other 
statutes. These unsubstantiated allegations, however, ignore 
long-established procedures that prevent Federal agencies from 
entering into consent decrees and settlement agreements that 
circumscribe these rulemaking procedures. H.R. 712 will 
effectively delay and possibly derail efforts by agencies to 
implement congressionally-mandated public health and 
environmental safeguards. In addition, the bill will encourage 
costly and wasteful litigation, the expense of which will be 
borne by American taxpayers. Another concern presented by H.R. 
712 is that it overrides the judiciary's traditional role in 
managing litigation and resolving disputes equitably and 
efficiently.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2015).
---------------------------------------------------------------------------
    In recognition of H.R. 712's many serious flaws, the 
Coalition for Sensible Safeguards--an alliance of more than 150 
consumer, labor, research, faith, and other public interest 
groups--strongly opposes this legislation, stating that it 
``would create a gauntlet of duplicative, burdensome, and time-
consuming procedures that apply to settlements and decrees, 
once again slowing down the rulemaking process and preventing 
Federal law from being effectively implemented.''\2\ The 
Administration, in the context of its veto threat regarding a 
substantially identical version of H.R. 712 considered in the 
112th Congress, stated that the measure would ``spawn excessive 
regulatory litigation, and introduce redundant processes for 
litigation settlements.''\3\
---------------------------------------------------------------------------
    \2\Letter to Rep. Bob Goodlatte (R-VA), Chair, & Rep. John Conyers, 
Jr. (D-MI), Ranking Member, H. Committee on the Judiciary from the 
Coalition for Sensible Safeguards (Mar. 20, 2015) (on file with the H. 
Committee on the Judiciary, Democratic Staff). Current members of the 
Coalition include: AFL-CIO; Alliance for Justice; American Association 
of University Professors; American Federation of State, County and 
Municipal Employees; American Federation of Teachers Americans for 
Financial Reform; American Lung Association; American Rivers; American 
Values Campaign; American Sustainable Business Council; BlueGreen 
Alliance; Campaign for Contract Agriculture Reform; Center for 
Effective Government; Center for Digital Democracy; Center for Food 
Safety; Center for Foodborne Illness Research & Prevention; Center for 
Independent Living; Center for Science in the Public Interest; Citizens 
for Sludge-Free Land; Clean Air Watch; Clean Water Network; Consortium 
for Citizens with Disabilities; Consumer Federation of America; 
Consumers Union; CounterCorp; Cumberland Countians for Peace & Justice; 
Demos; Economic Policy Institute; Edmonds Institute; Environment 
America; Farmworker Justice; Free Press; Friends of the Earth; Green 
for All; Health Care for America Now; In the Public Interest; 
International Brotherhood of Teamsters; International Center for 
Technology Assessment; International Union, United Automobile, 
Aerospace & Agricultural Implement Workers of America (UAW); League of 
Conservation Voters; Los Angeles Alliance for a New Economy; Main 
Street Alliance; National Association of Consumer Advocates; National 
Center for Healthy Housing; National Consumers League; National Council 
for Occupational Safety and Health; National Employment Law Project; 
National Lawyers Guild, Louisville Chapter; National Women's Health 
Network; National Women's Law Center; Natural Resources Defense 
Council; Network for Environmental & Economic Responsibility of United 
Church of Christ; New Jersey Work Environment Council; New York 
Committee for Occupational Safety and Health; Oregon PeaceWorks; People 
for the American Way; Protect All Children's Environment; Public 
Citizen; Reproductive Health Technologies Project; Safe Tables Our 
Priority; Sierra Club; Service Employees International Union; Southern 
Illinois Committee for Occupational Safety and Health; The Arc of the 
United States; The Partnership for Working Families; Trust for 
America's Health; U.S. Chamber Watch; U.S. PIRG; Union of Concerned 
Scientists; Union Plus; United Food and Commercial Workers Union; 
United Steelworkers; Waterkeeper Alliance; and Worksafe. Coalition for 
Sensible Safeguards--Our Members, http://sensiblesafeguards.org/our-
members.
    \3\Executive Office of the President, Office of Management and 
Budget, Statement of Administration Policy on H.R. 4078--the Regulatory 
Freeze for Jobs Act of 2012 (July 23, 2012), http://www.whitehouse.gov/
sites/default/files/omb/legislative/sap/112/saphr4078r_20120723.pdf.
---------------------------------------------------------------------------
    Accordingly, we strongly oppose H.R. 712 and respectfully 
dissent from the Committee's views on this legislation.

                       DESCRIPTION AND BACKGROUND

    H.R. 712, the ``Sunshine for Regulatory Decrees and 
Settlements Act of 2015,'' is intended to address the perceived 
problem of collusion between public-interest plaintiffs and 
sympathetic Federal agencies in entering into consent decrees 
or settlement agreements that oblige the agency to take a 
particular action regarding a regulatory action, such as a 
rulemaking, often under a certain timeline. Proponents of the 
bill call this phenomenon ``sue and settle.''
    A description of the bill's substantive provisions follows. 
Section 2 defines various terms. Of significance, section 2(1) 
imports the definitions of ``agency'' and ``agency action'' 
from the APA. As a result, H.R. 712 would apply to executive 
branch as well as independent agencies.\4\
---------------------------------------------------------------------------
    \4\Independent regulatory agencies, as opposed to executive branch 
agencies, are considered ``independent'' because the President has 
limited authority to remove their leaders, who can only be removed for 
cause, rather than simply serving at the President's pleasure. Such 
agencies are usually styled ``commissions'' or ``boards'' (e.g., 
National Labor Relations Board, Securities and Exchange Commission). 
Stephen G. Breyer et al., Administrative Law and Regulatory Policy 100 
(4th ed. 1999).
---------------------------------------------------------------------------
    Section 2(2) defines ``covered civil action'' as meaning a 
civil action that: (1) seeks to compel agency action; (2) 
alleges that an agency is unlawfully withholding or 
unreasonably delaying ``agency action relating to a regulatory 
action'' that affects the rights of private third parties or 
state, local, or tribal governments; and (3) is brought 
pursuant to the judicial review provisions of the APA or any 
other statute authorizing judicial review of agency action. The 
scope of and distinction between ``agency action'' and 
``regulatory action'' are not entirely clear, nor is the 
meaning of ``rights'' or ``private persons.'' Given that these 
are threshold terms, their vagueness is likely to lead to 
litigation over whether H.R. 712's provisions apply to a given 
proposed consent decree or settlement agreement.
    Section 2(3) defines ``covered consent decree'' as a 
consent decree in a covered civil action and any other consent 
decree requiring agency action concerning a rulemaking or other 
regulatory action that affects private third parties or state, 
local, or tribal governments. Thus, H.R. 712 would apply not 
just to consent decrees in covered civil actions, but to 
matters that are not ``covered civil actions.''
    Section 2(4) defines ``covered consent decree or settlement 
agreement'' as a covered consent decree and a covered 
settlement agreement. This definition's purpose is unclear.
    Section 2(5) defines ``covered settlement agreement'' in a 
manner similar to the definition for ``covered consent 
decree,'' except that it applies to settlement agreements 
rather than consent decrees. As with ``covered consent 
decrees,'' this means that H.R. 712 could apply to settlement 
agreements in cases that are not ``covered civil actions'' 
under the bill.
    Section 3 of the bill sets forth several new procedures 
that agencies and parties in litigation must follow before a 
court may enter a consent decree or settlement agreement, as 
well as certain rebuttable presumptions that courts must make.
    Section 3(a)(1) requires a defendant agency in a covered 
civil action to post online a copy of the notice of intent to 
sue and the complaint in the covered civil action not later 
than 15 days after receiving service of each. Section 3(a)(2) 
prohibits a party to a civil action from moving to enter a 
covered consent decree or to dismiss a civil action pursuant to 
a covered settlement agreement until after compliance with the 
bill's notice and comment requirements or after a public 
hearing allowed under the bill, whichever is later.
    Section 3(b)(1) applies a unique standard for third-party 
intervention in covered civil actions. Specifically, it 
requires a court, when considering a motion to intervene in a 
covered civil action or in a civil action in which a covered 
consent decree or settlement agreement is proposed, to presume 
that the interests of ``a person who alleges that the agency 
action in dispute would affect the person'' would not be 
adequately represented by the parties to the action. This 
places the burden on the non-moving parties to show that they 
can adequately represent the putative intervenor's interests, 
in contrast to current law, which places the burden on the 
party seeking intervention to demonstrate that its interests 
are not adequately represented by the parties per Federal Rule 
of Civil Procedure 24.
    With respect to motions to intervene by state, local, and 
tribal governments, section 3(b)(2) requires a court to ``take 
due account of whether the movant'' jointly administers with a 
defendant agency the statutory provisions giving rise to the 
underlying lawsuit or administers under state, local, or tribal 
law an authority that would be preempted by the regulatory 
action at issue in the underlying lawsuit.
    Section 3(c) outlines certain requirements regarding the 
negotiation to settle a covered civil action or to reach an 
agreement on a covered consent decree or settlement agreement. 
Section 3(c)(1) requires that such negotiations be conducted 
pursuant to the court's alternative dispute resolution program 
or by a judge other than the presiding judge, a magistrate, or 
a special master, as the presiding judge may determine. Such 
settlement negotiations must also include any intervening 
party.
    Section 3(d) imposes a number of notice and comment 
procedures on agencies before they can file a consent decree or 
settlement agreement with a court. Section 3(d)(1) requires 
that an agency publish in the Federal Register and post online 
a proposed covered consent decree or settlement agreement and a 
description of its terms, including whether it provides for 
attorneys' fees or costs and a basis for such award, at least 
60 days before such consent decree or settlement agreement is 
filed with a court.
    Section 3(d)(2)(A) requires that the agency accept public 
comment on any issue in the underlying civil action or 
regarding the proposed consent decree or settlement agreement 
during that minimum 60-day period provided for in section 
3(d)(1). Section 3(d)(2)(B) requires the agency to respond to 
any public comments. Section 3(d)(2)(C) requires an agency to: 
(1) inform the court of the statutory basis for the proposed 
consent decree or settlement agreement and a summary of public 
comments that it has received; (2) submit to the court a 
certified index of the administrative record of the notice and 
comment proceeding; and (3) make the administrative record 
available to the court. Finally, section 3(d)(2)(D) requires 
the court to include in the record of the underlying civil 
action the administrative record submitted by an agency, as 
well as any documents listed in the index that any party or 
amicus curiae appearing before the court submits.
    Section 3(d)(3) allows an agency to hold a public hearing 
regarding whether to enter into a proposed covered consent 
decree or settlement agreement and outlines the procedures for 
holding such a hearing.
    Section 3(d)(4) requires an agency to present to the court 
certain explanations before moving to enter a covered consent 
decree or settlement agreement, or to dismiss the civil action 
based on the covered consent decree or settlement agreement, 
when the agency is required to take an action by a date certain 
pursuant to such decree or settlement. The required 
explanations must describe: (1) any required regulatory action 
that the agency has not taken and that the decree or settlement 
does not address; (2) how the decree or settlement would affect 
the discharge of such required regulatory action; and (3) why 
the effects of the decree or settlement on the discharge of 
required regulatory action would be in the public interest.
    Section 3(e) codifies long-standing guidelines, known as 
the Meese Memo, that Justice Department and other agency 
attorneys follow to ensure that their use of consent decrees or 
settlement agreements are not used to circumvent the normal 
rulemaking process. These guidelines are already codified in 
the Code of Federal Regulations.\5\ Section 3(e)(1) provides 
that if a covered consent decree or settlement agreement 
containing certain terms as set forth in section 3(e)(2), the 
Attorney General or the head of an independent agency 
(depending on which agency is the litigating party) must submit 
to the court a signed certification that he or she approves the 
proposed consent decree or settlement agreement. Section 
3(e)(2) sets forth the terms that would subject a proposed 
covered decree or settlement to the certification requirement. 
For covered consent decrees, these terms are those that: (1) 
convert an agency's discretionary rulemaking authority into a 
nondiscretionary rulemaking obligation; (2) commit an agency to 
expend funds for the regulatory action at issue that have not 
been appropriated and budgeted; (3) commit an agency to seek a 
particular appropriation or budget authorization; (4) divest an 
agency of discretion committed to it by statute or the 
Constitution; or (5) affords relief that the court otherwise 
would not have authority to grant. For covered settlement 
agreements, the terms triggering the certification requirement 
are those that: (1) remedy the agency's failure to comply with 
the covered settlement agreement, other than a revival of the 
underlying civil action; and (2) interferes with agency 
rulemaking procedures under the APA, another statute, or 
executive order; (3) commits the agency to expend non-
appropriated and non-budgeted funds for the regulatory action 
at issue; or (4) commits the agency to exercise discretion in a 
particular way when the discretion was committed to it by 
statute or the Constitution to respond to changing 
circumstances, to make policy or managerial choices, or to 
protect the rights of third parties.
---------------------------------------------------------------------------
    \5\28 C.F.R. Sec. Sec. 0.160-0.163 (2015).
---------------------------------------------------------------------------
    Section 3(f) imposes certain requirements on courts with 
respect to proposed covered consent decrees and settlement 
agreements. Section 3(f)(1) requires a court reviewing a 
proposed covered consent decree or settlement agreement to 
presumptively allow amicus participation by any party who filed 
public comments or participated in a public hearing regarding 
such proposed decree or settlement. Section 3(f)(2) prohibits a 
court from entering a consent decree unless an agency has 
sufficient time or procedures for the agency to comply with the 
APA's rulemaking procedures or other statutes and executive 
orders that govern rulemaking. The court must also ``ensure'' 
that such provisions are included in the proposed settlement 
agreement.
    Section 3(g) requires agencies to submit annual reports to 
Congress that include the number, ``identity,'' and content of 
covered civil actions brought against the agency as well as 
covered consent decrees or settlement agreements that the 
agency has entered into. Additionally, the report must describe 
the statutory basis for each covered consent decree or 
settlement agreement entered into by the agency and for any 
award of attorneys' fees or costs in the underlying civil 
action.
    Section 4 of the bill specifies that when an agency moves 
to modify a covered consent decree or settlement agreement 
because it is no longer ``fully in the public interest due to 
the obligations of the agency to fulfill other duties or due to 
changed facts and circumstances,'' the court must review the 
decree or settlement de novo.
    Section 5 states that the bill's provisions apply to 
covered civil actions filed on or after the bill's enactment 
date. Section 5 further provides that the bill's provisions 
apply to all covered consent decrees and covered settlement 
agreements proposed on or after the bill's enactment date.

                         CONCERNS WITH H.R. 712

            I. H.R. 712 IS A SOLUTION IN SEARCH OF A PROBLEM

    Proponents of H.R. 712 contend that this legislation is 
needed because Federal agencies intentionally collude with 
public interest organizations and other private-citizen 
plaintiffs in entering into consent decrees or settlements as a 
way of circumventing proper rulemaking procedures. Tellingly, 
however, these proponents offer no proof in support of their 
contention. For example, at the hearing on H.R. 712, William 
Kovacs, a Senior Vice President at the U.S. Chamber of 
Commerce, testified that as ``a result of the sue and settle 
process, the agency intentionally transforms itself from an 
independent actor that has discretion to perform its duties in 
a manner best serving the public interest, into an actor 
subservient to the binding terms of settlement agreements, 
including using its congressionally-appropriated funds to 
achieve the demands of specific outside groups.''\6\ In support 
of his statement, he cited a 2013 U.S. Chamber of Commerce 
study.\7\
---------------------------------------------------------------------------
    \6\Hearing on H.R. 348, the ``Responsibly And Professionally 
Invigorating Development Act of 2015'' (RAPID Act); H.R. 712, the 
``Sunshine for Regulatory Decrees and Settlements Act of 2015''; and, 
H.R. 1155, the ``Searching for and Cutting Regulations that are 
Unnecessarily Burdensome Act of 2015'' (SCRUB Act) Before the Subcomm. 
on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on 
the Judiciary, 114th Cong. 15-16 (2015), (statement of William Kovacs, 
Senior Vice President at the U.S. Chamber of Commerce) [hereinafter 
2015 Hearing]; Hearing on H.R. 1493, ``The Sunshine for Regulatory 
Decrees and Settlements Act of 2013,'' Before the Subcomm. on 
Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the 
Judiciary, 113th Cong. 86 (2013) [hereinafter 2013 Hearing]; The 
Federal Consent Decree Fairness Act and the Sunshine for Regulatory 
Decrees and Settlements Act: Hearings on H.R. 3041 and H.R. 3862 Before 
the Subcomm. on Courts, Commercial and Administrative Law of the H. 
Comm. on the Judiciary, 112th Cong. (2012) [hereinafter 2012 Hearing] 
(statement of Roger R. Martella, Jr., Partner, Sidley Austin LLP) 
(``[C]ertain groups increasingly are employing a `sue and settle' 
approach to interactions with the government on regulatory issues.'').
    \7\U.S. Chamber of Commerce, Sue and Settle: Regulating Behind 
Closed Doors (May 2013), http://www.uschamber.com/reports/sue-and-
settle-regulating-behind-closed-doors.
---------------------------------------------------------------------------
    Nevertheless, the independent and non-partisan Government 
Accountability Office (GAO) issued a report in December 2014 
finding that ``the effect of settlements in deadline suits on 
EPA's rulemaking priorities is limited.''\8\ This report, which 
focused on lawsuits involving environmental litigation, made 
several findings that refute the claims of H.R 712's 
supporters. The GAO referred to so-called ``sue and settle'' 
litigation as ``deadline suits'' because they involve an 
agency's non-performance of a nondiscretionary act, which is 
required by law, by a deadline also required by law. The GAO 
noted that certain laws allow for any party to compel the 
Environmental Protection Agency (EPA) through lawsuits to 
``take statutorily required actions'' within a designated time 
frame if it has not done so already.\9\ As the GAO also 
observed, deadline suits typically involve a person suing the 
EPA because it ``missed a recurring deadline to review and 
revise'' an existing rule.\10\ And, as Amit Narang, a 
Regulatory Policy Advocate at Public Citizen, explained during 
the hearing on H.R. 712, these lawsuits are some of the 
``simplest to understand'' because they only allege that 
agencies ``broke the law by failing to commit a 
congressionally-mandated action by a date established in 
statute.''\11\ Mr. Narang further noted that by settling these 
suits, which merely enforce congressionally-mandated deadlines, 
agencies avoid wasting ``agency, and by extension taxpayer, 
resources to defend against claims that the [agency] didn't 
perform a legal requirement by a congressionally-imposed 
deadline when the parties who are bringing the suit only have 
to point to the calendar in order to prove their case.''\12\ 
Indeed, as the GAO found, it is ``very unlikely that the 
government will win'' these lawsuits.\13\
---------------------------------------------------------------------------
    \8\U.S. Gov't Accountability Office, GAO-15-34, Environmental 
Litigation: Impact of Deadline Suits on EPA's Rulemaking is Limited 
(Dec. 2014), http://www.gao.gov/assets/670/667533.pdf [hereinafter GAO 
Report].
    \9\Id. at 3.
    \10\Id.
    \11\2015 Hearing, supra note 6, at 5 (statement of Amit Narang, 
Regulatory Policy Advocate, Public Citizen).
    \12\Id. at 5-6.
    \13\GAO Report, supra note 8, at 7.
---------------------------------------------------------------------------
    Furthermore, the GAO found little evidence that deadline 
suits determine the substantive outcome of agency action, as 
alleged by proponents of H.R. 712.\14\ According to the GAO, 
``EPA officials stated that they have not, and would not agree 
to, settlements in a deadline suit that finalize the 
substantive outcome of the rulemaking or declare the substance 
of the final rule.''\15\ This finding confirms that there is 
little support for the proposition that Federal agencies engage 
in ``back-room deals'' with pro-regulatory groups to circumvent 
Federal laws or substantively bind the agency in a subsequent 
rulemaking.\16\ In fact, as Mr. Narang clarified during the 
hearing on H.R. 712, ``All of the settlements scrutinized by 
GAO pursuant to the EPA's remaking authority under the Clean 
Air Act went through the public notice and comment process 
allowing all members of the public an opportunity to comment on 
the rule before it is finalized.''\17\
---------------------------------------------------------------------------
    \14\2015 Hearing, supra note 6, at 16 (statement of William Kovacs, 
Senior Vice President, Chamber of Commerce (``These agreements often go 
beyond simply enforcing statutory deadlines and themselves become the 
legal authority for expansive regulatory action with no meaningful 
participation by affected parties or the public.'').
    \15\GAO Report, supra note 8, at 8.
    \16\Id. at 8, 12.
    \17\2015 Hearing, supra note 6, at 6-7.
---------------------------------------------------------------------------
    John Walke, Clean Air Director and Senior Counsel with the 
Natural Resources Defense Council, likewise identified serious 
flaws with the Chamber's study. During a hearing before the 
Judiciary Committee's Subcommittee on Courts, Commercial and 
Administrative Law in the 113th Congress on substantively 
similar legislation, Mr. Walke testified that the Chamber's 
methodology relied on ``Internet searches identifying all cases 
in which the EPA and an environmental group entered into a 
consent decree or settlement agreement between 2009 and 
2012.''\18\ In doing so, Mr. Walke explained that the report 
ignored EPA settlements with industry parties or conservative 
groups and did not examine any EPA settlements during the Bush 
administration, during which the EPA also entered into 
settlements and consent decrees. He noted:
---------------------------------------------------------------------------
    \18\2013 Hearing, supra note 6, at 115.

        Most striking of all is that by merely compiling EPA 
        settlements (with just environmental groups, under just 
        [the Obama] administration), the report's methodology 
        quietly dispenses with any need for proof of collusion 
        or impropriety in consent decrees or settlement 
        agreements. The Chamber cannot remotely back up the 
        charge that collusion was involved in all of these 
        settlements, or even in any of them, so the report does 
        not even try.\19\
---------------------------------------------------------------------------
    \19\Id. at 116.

Mr. Walke also observed that the Chamber report simply sought 
to transform evidence of the use of a ``common and long-
accepted form of resolving litigation over clear legal 
violations under any administration'' into evidence of 
inappropriate collusion.\20\ It is also critical to note that, 
while proponents of H.R. 712--including the Chamber of 
Commerce--have focused their arguments in favor of the 
legislation on consent decrees and settlements involving the 
EPA, the bill itself is drafted in general language and would 
apply to consent decrees and settlement agreements involving 
all Federal agencies, not just the EPA.
---------------------------------------------------------------------------
    \20\Id.
---------------------------------------------------------------------------
    The testimony of John Cruden, a senior career official with 
the Justice Department's Environment and Natural Resources 
Division (ENRD) for more than 2 decades during two Republican 
and two Democratic administrations, on a substantially 
identical bill from the 112th Congress further shows that the 
allegations ``sue and settle'' are unfounded. Mr. Cruden 
testified that he was not aware of any instance of a settlement 
that could remotely be described as ``collusive'' that occurred 
during his long tenure as a senior ENRD official. In fact, he 
said that the Justice Department ``vigorously represented the 
Federal agency, defending the agency's legal position and 
obtaining in any settlement the best possible terms that were 
consistent with the controlling law.''\21\ He also emphasized 
that agencies enter settlements only when they have failed to 
meet mandatory rulemaking obligations:
---------------------------------------------------------------------------
    \21\2012 Hearing, supra note 6, at 106-107.

        In my long experience with the types of cases covered 
        by [this legislation], EPA only agreed to settle when 
        the agency had a mandatory duty to take an action, or 
        to prepare a rule, based on specific legislation 
        enacted by Congress. The settlement in those cases was 
        straightforward: setting a date by which the agency 
        would propose a draft rule and, quite often, a date for 
        final action. Had there not been such a settlement, a 
        Federal court would have issued an injunction setting 
        the date for EPA to take action, since the agency's 
        legal responsibility was quite clear.\22\
---------------------------------------------------------------------------
    \22\Id. at 66, 106.

In addition, he explained that a proposed rule emerging from a 
settlement would provide the same notice-and-comment 
opportunities as any other rulemaking, and the final rule still 
would be subject to challenge under the APA. Thus, this process 
does not avoid public comment, and already allows interested 
parties their full range of substantive and procedural 
rights.\23\
---------------------------------------------------------------------------
    \23\Id.
---------------------------------------------------------------------------
    Mr. Walke also noted in his Subcommittee testimony that the 
Chamber report ultimately identifies as its culprit the 
citizen-suits that Congress has authorized under various 
environmental statutes.\24\ The entire ``sue and settle'' 
allegation that undergirds H.R. 712, therefore, is really aimed 
at congressionally-authorized provisions that permit citizens 
to sue agencies so as to enforce statutory requirements. If 
these citizen-suit provisions are the true cause for concern, 
then it is for H.R. 712's proponents to push for their repeal 
by Congress, rather than seek to disrupt the use of 
longstanding and uncontroversial mechanisms for resolving 
litigation.
---------------------------------------------------------------------------
    \24\2013 Hearing, supra note 6, at 154.
---------------------------------------------------------------------------
    Other observers have also refuted the ``sue and settle'' 
allegation. As a Sierra Club representative observed, this 
theory is a ``sad attempt to create a boogie man out of vital 
and broadly supported protections that have improved and saved 
millions of Americans' lives.''\25\ Likewise, David Goldston of 
the Natural Resources Defense Council testified in 2011 at a 
House Energy and Commerce subcommittee hearing that the ``whole 
`sue and settle' narrative is faulty.''\26\
---------------------------------------------------------------------------
    \25\John McCardle, House Republicans Accuse EPA, Enviros of 
Collusion, N.Y. Times (July 
15, 2011), http://www.nytimes.com/gwire/2011/07/15/15greenwire-house-
republicans-accuse-epa-enviros-of-collus-69925.html
    \26\Id.
---------------------------------------------------------------------------
    In the absence of any credible evidence that Federal 
agencies collude with plaintiffs to circumvent proper 
rulemaking procedures by use of consent decrees and settlement 
agreements, H.R. 712 simply addresses a non-existent problem.

II. BY UNDERMINING ENFORCEMENT OF MANDATORY RULEMAKING DUTIES, H.R. 712 
                   THREATENS PUBLIC HEALTH AND SAFETY

    H.R. 712, by undermining the ability of agencies to enforce 
statutory mandates, jeopardizes public health and safety. As 
noted, most consent decrees and settlement agreements arise 
from civil actions where a citizen lawsuit has been filed 
against an agency for its failure to meet a statutory 
rulemaking deadline or other rulemaking duty. Congress assigns 
these mandatory duties to agencies so that they will be, in 
fact, executed. In fact, Congress authorizes citizen-lawsuit 
provisions in these statutes to ensure agency compliance with 
these statutory mandates. Therefore, when agencies fail to meet 
such mandatory duties, the harm that they were supposed to 
respond to remains unaddressed.
    Given the fact that many of these statutory mandates 
concern public health and safety, H.R. 712, by making it harder 
for citizens to compel agencies to meet their duties, puts 
public health and safety at risk. Health and safety concerns 
are not a mere abstraction. Regarding the issue of workplace 
safety alone, the Bureau of Labor Statistics reported that in 
2013, ``Slightly more than 3.0 million nonfatal workplace 
injuries and illnesses were reported by private industry 
employers.''\27\ Additionally, an analysis by the National 
Institute for Occupational Safety and Health, the American 
Cancer Society, and Emory University's School of Public Health 
estimates that after factoring in disease and injury data 
``there are a total of 55,200 US deaths annually resulting from 
occupational disease or injury (range 32,200-78,200).''\28\ To 
the degree that H.R. 712 makes it harder for citizens to force 
agencies to address these kinds of concerns, it endangers the 
American people.
---------------------------------------------------------------------------
    \27\U.S. Dep't of Labor Bureau of Labor Statistics, Employer-
Reported Workplace Injury and Illness Summary (Dec. 4, 2014), http://
www.bls.gov/news.release/osh.nr0.htm.
    \28\Kyle Steenland et al., Dying for Work: The Magnitude of US 
Mortality from Selected Cases of Death Associated with Occupation, 43 
Am. J. Industrial Medicine 461 (2003).
---------------------------------------------------------------------------
    In response to these concerns presented by the bill, 
several Democratic Members offered amendments exempting certain 
categories of rules from H.R. 712. For example, Ranking Member 
John Conyers, Jr. (D-MI) offered an amendment that would have 
exempted from the bill any consent decree or settlement 
agreement concerning privacy protection.\29\ Notwithstanding 
the numerous privacy concerns expressed by Members of Congress 
on both sides of the aisle in connection with recent 
revelations of government surveillance activities and massive 
data-breaches, the amendment was defeated by a 8 to16 vote.\30\
---------------------------------------------------------------------------
    \29\Tr. of Markup of H.R. 712, ``The Sunshine for Regulatory 
Decrees and Settlements Act of 
2015,'' by the H. Comm. on the Judiciary, 114th Cong. 199 (Mar. 24, 
2015), http://
judiciary.house.gov/_cache/files/26476c04-a8fb-48a1-96cc-914ea82f001c/
03.24.15-markup-
transcript.pdf [hereinafter Markup Tr.]
    \30\Id. at 207.
---------------------------------------------------------------------------
    Representative Sheila Jackson Lee (D-TX) offered an 
amendment that would have exempted from the bill any consent 
decree or settlement agreement concerning a proposed rule 
regarding environmental justice in low-income minority 
communities as defined by Executive Order 12898.\31\ This 
amendment failed by a vote of 9 to 17 vote.\32\
---------------------------------------------------------------------------
    \31\Id. at 209.
    \32\Id. at 220.
---------------------------------------------------------------------------
    Representative Henry C. ``Hank'' Johnson, Jr. (D-GA) 
offered an amendment that would have exempted from the bill any 
consent decree or settlement agreement concerning a proposed 
rule that the Office of Management and Budget determines would 
result in net job creation.\33\ Belying the repeated assertion 
by the Majority that regulations undermine job creation, this 
amendment failed by a vote of 11 to 20.\34\
---------------------------------------------------------------------------
    \33\Id. at 229.
    \34\Id. at 251.
---------------------------------------------------------------------------

   III. H.R. 712 IS UNNECESSARY IN LIGHT OF THE JUSTICE DEPARTMENT'S 
           ``MEESE MEMO'' AND OTHER EXISTING LEGAL MECHANISMS

    H.R. 712's proponents offer no evidence substantiating the 
existence of the so-called sue-and-settle problem. The likely 
reason is that the Meese Memo, codified in the Code of Federal 
Regulations,\35\ has for nearly 30 years specified a detailed 
process intended to address the potential abuse of consent 
decrees and settlement agreements used by Federal agencies. In 
1986, then-United States Attorney General Edwin Meese issued a 
set of guidelines for the Justice Department and other 
government attorneys in entering into consent decrees and 
settlement agreements in response to the following concerns:
---------------------------------------------------------------------------
    \35\28 C.F.R. Sec. Sec. 0.160-0.163 (2015).

        In the past . . . executive departments and agencies 
        have, on occasion, misused [consent decrees] and 
        forfeited the prerogatives of the Executive in order to 
        preempt the exercise of those prerogatives by a 
        subsequent Administration. These errors sometimes have 
        resulted in an unwarranted expansion of the powers of 
        [sic] judiciary--often with the consent of government 
        parties--at the expense of the executive and 
        legislative branches.\36\
---------------------------------------------------------------------------
    \36\Memorandum from Edwin Meese III, Attorney General, to All 
Assistant Attorneys General and All United States Attorneys Regarding 
Department Policy Regarding Consent Decrees and Settlement Agreements 
(Mar. 13, 1986), http://www.archives.gov/news/samuel-alito/accession-
060-89-1/Acc060-89-1-box9-memoAyer-LSWG-1986.pdf.

The Meese Memo identified three types of potentially 
problematic provisions. It directed departments and agencies to 
not enter into a consent decree that: (1) ``converts into a 
mandatory duty the otherwise discretionary authority of the 
Secretary or agency administrator to revise, amend, or 
promulgate regulations;'' (2) ``commits the department or 
agency to expend funds that Congress has not appropriated and 
that have not been budgeted for the action in question, or 
commits a department or agency to seek a particular 
appropriation or budget authorization;'' or (3) ``divests the 
Secretary or agency administrator, or his successors, of 
discretion committed to him by Congress, or the Constitution 
where such discretionary power was granted to respond to 
changing circumstances, to make policy or managerial choices, 
or to protect the rights of third parties.''\37\ The policy 
outlines similar restrictions on settlement agreements.\38\ If 
special circumstances require departure from these guidelines, 
the Attorney General, the Deputy Attorney General, or the 
Associate Attorney General must authorize such a departure.\39\ 
The Meese Memo ultimately was codified into the Code of Federal 
Regulations.\40\
---------------------------------------------------------------------------
    \37\Id.
    \38\Id.
    \39\Id.
    \40\28 C.F.R. Sec. Sec. 0.160-0.163 (2015).
---------------------------------------------------------------------------
    H.R. 712's proponents offer no evidence that the Justice 
Department and agencies are not complying with the Meese Memo. 
As Mr. Cruden noted, ``I am personally unaware of any examples 
of the Department failing to comply with the existing C.F.R. 
provision [codifying the Meese Memo];'' nor did the other 
witnesses present any such examples at the hearing.\41\ 
Moreover, the Majority's witnesses at a hearing on H.R. 712's 
predecessor in the 112th Congress specifically praised the 
Meese Memo and offered no argument as to why it was 
insufficient to address the alleged ``sue and settle'' 
problem.\42\
---------------------------------------------------------------------------
    \41\2012 Hearing, supra note 6, at 111.
    \42\See id. at 60 (statement of Andrew M. Grossman) (``The Meese 
Policy was, and remains, notable for its identification of a serious 
breach of separation of powers, with serious consequences, and its 
straightforward approach to resolving that problem. By reducing the 
issue, and its remedy, to their essentials, the Meese Policy identifies 
and protects the core principles at stake. This explains its continued 
relevance.'').
---------------------------------------------------------------------------
    In addition to the Meese Memo, there are other mechanisms 
that also address the purported concerns of H.R. 712's 
proponents. For example, parties whose interests may be 
affected by a consent decree or settlement may move to 
intervene in the case pursuant to Federal Rule of Civil 
Procedure 24, with the moving party bearing the burden of 
demonstrating that the parties to the case do not adequately 
represent the movant's interest.\43\ Similarly, any rulemaking 
that is required pursuant to a consent decree or settlement 
agreement would still be subject to the APA's notice and 
comment procedures, and affected parties who are not parties to 
the consent decree or settlement agreement would have the 
opportunity to weigh in on any negative impacts of a proposed 
rule.\44\
---------------------------------------------------------------------------
    \43\Fed. R. Civ. P. 24(a)(2).
    \44\5 U.S.C. Sec. 553 (2015).
---------------------------------------------------------------------------
    In sum, to the extent that the Federal Government is, in 
fact, tempted to use consent decrees and settlement agreements 
to do an end-run around the rulemaking procedures of the APA 
and other statutes, the Meese Memo effectively prevents the 
government from doing so thereby making H.R. 712 unnecessary.

             IV. H.R. 712 WILL FAVOR INDUSTRY INTERESTS AT 
                           TAXPAYERS' EXPENSE

    In addition to being unnecessary, H.R. 712 threatens to 
impose significant financial costs on taxpayers in several 
ways. First, it provides numerous new opportunities for 
opponents of regulation to engage in dilatory tactics to delay 
resolution of pending litigation, further increasing costs for 
agencies and courts and, ultimately, taxpayers. Second, as many 
of the bill's key terms are ambiguous, this will lead to 
confusion, litigation, and delay in any proposed consent decree 
or settlement negotiation. Third, H.R. 712 imposes numerous 
burdensome procedural requirements on agencies and courts 
regarding the use of consent decrees and settlements concerning 
regulatory action, which will further add to the costs borne by 
those entities. Fourth, the bill's cumulative effect will be to 
discourage agencies from entering into consent decrees and 
settlement agreements when they might otherwise have done so, 
leading to unnecessarily protracted and costly litigation.
A. LH.R. 712 Opens the Door to Dilatory Tactics by Industry and Other 
        Opponents of Agency Action
    Various provisions of H.R. 712 would give opponents of 
regulations opportunities to effectively stifle rulemaking by 
allowing them to slow down one of the processes by which 
agencies agree to abide by their congressionally-assigned duty 
to regulate. As Minority witnesses Messrs. Narang, Walke, and 
Cruden testified, agencies enter into consent decrees and 
settlement agreements when they have a mandatory duty to act, 
including the requirement to promulgate a new rule.\45\ By 
opening opportunities for industry to slow down this process, 
H.R. 712 effectively makes it more expensive for agencies to do 
what Congress has mandated it to do.
---------------------------------------------------------------------------
    \45\2015 Hearing, supra note 11; 2013 Hearing, supra note 6, at 
117-118; 2012 Hearing, supra note 6, at 106-107.
---------------------------------------------------------------------------
    Section 3(b)(1) of the bill, for example, contains a nearly 
open-ended intervention right by mandating that a court 
presume, subject to rebuttal, that the interests of any private 
third party affected by the agency action in dispute in the 
underlying litigation will not be represented by the parties to 
that litigation.\46\ This presumption upends current law, which 
places the burden of proof on a third party to show that its 
interests are not represented by the parties in the case.\47\ 
Effectively, this shift in the burden of proof on the question 
of the representation of third-party interests is a way to make 
it much easier for any entity not a party to the case to 
intervene in a case involving a consent decree or settlement 
agreement that seeks to compel agency action.
---------------------------------------------------------------------------
    \46\H.R. 712, 114th Cong. Sec. 3(b)(1) (2015).
    \47\Fed. R. Civ. P. 24.
---------------------------------------------------------------------------
    Hypothetically, under H.R. 712, if the regulatory action at 
issue involved the Clean Air Act, a person who breathes air 
would have the right to intervene in a consent decree or 
settlement agreement, as would any affected industry entity, or 
anyone else in the United States, subject to a refutable 
presumption that the parties to the litigation do not 
adequately represent the third party's interest. If a court 
were to read section 3(b)(1) broadly, this provision could open 
the door to almost anyone intervening in a covered civil action 
under the bill.
    Section 3(c) of H.R. 712 also tilts the playing field 
sharply in favor of industry interests by giving them an 
opportunity to slow down agency compliance with Federal law. 
Under this provision, courts must delay entry of a consent 
decree or settlement agreement by referring settlement 
discussions to the court's mediation or alternative dispute 
resolution program, or to a district judge, magistrate judge, 
or special master.\48\ Such discussions must include the 
plaintiff, defendant agency, and any third party 
intervenors.\49\ In addition to delaying the settlement 
process, this provision would impose costs on plaintiffs and 
defendant agencies alike by forcing them to pay mediation and 
other dispute resolution costs beyond what they may have had to 
pay in the absence of this process.
---------------------------------------------------------------------------
    \48\H.R. 712, 114th Cong., Sec. 3(c) (2015).
    \49\Id.
---------------------------------------------------------------------------
    H.R. 712 provides other opportunities for industry to 
engage in dilatory tactics in sections 3(d)(1) and 3(d)(2)(A), 
which require an agency to publish any proposed consent decree 
or settlement agreement and to allow at least 60 days for 
public comments.\50\ The agency must then respond to every 
comment pursuant to section 3(d)(2)(B).\51\ Under these 
provisions, any industry could potentially overwhelm an agency 
with comments in an effort to stall resolution of the 
underlying dispute, which, as noted, usually concern 
enforcement of rulemaking deadlines.
---------------------------------------------------------------------------
    \50\Id. at Sec. Sec. 3(d)(1), 3(d)(2)(A).
    \51\Id. at Sec. 3(d)(2)(B).
---------------------------------------------------------------------------
    As if forcing an agency to respond to potentially numerous 
public comments on a proposed consent decree or settlement 
agreement was not enough, section 3(f)(1) requires a court to 
presume amicus status for any member of the public that submits 
comments on a proposed consent decree or settlement agreement, 
subject to rebuttal, in any proceeding on a motion to enter 
such consent decree or settlement agreement.\52\ This provision 
would further allow industry and other regulatory opponents to 
delay resolution of the underlying dispute between the 
plaintiff and the defendant agency.
---------------------------------------------------------------------------
    \52\Id. at Sec. 3(f)(1).
---------------------------------------------------------------------------
B. LH.R. 712 Uses Ambiguous Language in Many Key Provisions, Opening 
        the Door to Confusion, Litigation, and Delay in Resolving 
        Disputes
    Many of H.R. 712's key provisions are written in ambiguous, 
ill-defined language, which will foster costly litigation over 
their meaning and cause delay in resolving the underlying 
lawsuit against the Federal agency. For example, section 2(2) 
states that the bill applies to consent decrees and settlement 
agreements in an action seeking to compel agency action and 
alleging that the agency is ``unlawfully withholding or 
unreasonably delaying agency action relating to a regulatory 
action.''\53\ It is unclear what the distinction is between 
``agency action'' and ``regulatory action,'' what the scope of 
the phrase ``relating to'' is, or what ``unlawfully 
withholding'' and ``unreasonably delaying'' mean, opening the 
door to litigation over the meaning of these threshold terms.
---------------------------------------------------------------------------
    \53\Id. at Sec. 2(2).
---------------------------------------------------------------------------
    Additionally, section 2(2) refers to ``private persons'' 
whose ``rights'' are affected by the regulatory action, but the 
bill fails to define what ``private parties'' or ``rights'' 
means.\54\ As noted above, without a definition, almost any 
third party could, in theory, intervene in a consent decree or 
settlement discussion under this bill. As with other ambiguous 
language in H.R. 712, confusion and a lack of clarity over the 
meaning of these terms will lead to litigation.
---------------------------------------------------------------------------
    \54\Id.
---------------------------------------------------------------------------
    Finally, H.R. 712's requirement that, under certain 
circumstances, agencies must inform the court of all mandatory 
rulemaking deadlines and describe how a consent decree or 
settlement agreement ``would affect the discharge of those 
duties,'' is thoroughly ambiguous.\55\ The requirement, 
outlined in section 3(d)(4), has no definition or clarification 
of what ``affect the discharge of those duties'' would mean.
---------------------------------------------------------------------------
    \55\Id. at Sec. 3(d)(4).
---------------------------------------------------------------------------
C. LH.R. 712 Imposes Several Burdensome Procedural Requirements on 
        Agencies and Courts
    H.R. 712 imposes several new procedural requirements on 
agencies and courts that are designed to slow down the 
resolution of litigation over an agency's failure to meet a 
statutory deadline or other regulatory obligation. These 
include: (1) a limitation on when a party may file a motion for 
a consent decree or to dismiss the case pursuant to a 
settlement agreement; (2) a mandate requiring the court to 
presume that the interests of a third party seeking to 
intervene in settlement discussions is not adequately 
represented; (3) a requirement that the court refer consent 
decree or settlement discussions to mediation or another 
alternative dispute resolution mechanism; (4) a requirement 
that the defendant agency publish a proposed consent decree or 
settlement agreement; (5) a requirement that agencies accept 
public comments on proposed consent decrees or settlements to 
which the agency must respond; (6) a requirement that an agency 
submit to a court explanations of vaguely defined factors 
underlying a proposed consent decree or settlement agreement 
whenever such decree or agreement requires agency action by a 
date certain; and (7) a requirement that a court to allow 
amicus participation in any motion to enter a consent decree or 
settlement agreement by any party that submitted public 
comments on such decree or agreement.
    Implementing any one of these new requirements, much less 
all of them, drains agency and judicial time and resources 
without adding to the fairness of any consent decree or 
settlement agreement. In times when Federal agencies and the 
court system are facing budgetary shortfalls, we should be 
crafting legislation to streamline and improve efficiencies for 
all. Unfortunately, H.R. 712 will have the opposite result.
D. LThe Cumulative Effect of H.R. 712's Provisions Will Be to 
        Discourage the Use of Consent Decrees and Settlement 
        Agreements, Forcing Expensive and Time-Consuming Litigation
    By facilitating dilatory conduct by anti-regulatory forces, 
using vague language in key provisions, and imposing numerous 
and burdensome procedural requirements on agencies and courts 
with respect to consideration of consent decrees and settlement 
agreements, H.R. 712's cumulative effect will be to discourage 
the use of consent decrees and settlement agreements and 
thereby delay or eliminate early resolution of litigation 
against the government. This legislation will ultimately 
increase costs for taxpayers, who must pay for the protracted 
litigation associated with fewer consent decrees and settlement 
agreements. Indeed, the Congressional Budget Office noted that 
a previous version of H.R. 712 would impose millions of dollars 
in costs, ``[p]rimarily because litigation involving consent 
decrees and settlement agreements would probably take longer 
under the bill and agencies would face additional 
administrative, including new requirements to report more 
information to the public.''\56\
---------------------------------------------------------------------------
    \56\Congressional Budget Office, Cost Estimate for H.R. 1493, the 
Sunshine for Regulatory Decrees and Settlements Act of 2013, at 1 
(Sept. 20, 2013), available at http://cbo.gov/publication/44606.
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    Consent decrees benefit both plaintiffs and defendants. For 
plaintiffs, consent decrees allow for meaningful and timely 
relief without the risks and costs associated with prolonged 
litigation. Governmental defendants can also avoid the burdens 
and costs of protracted litigation and the particular risk that 
a costly or cumbersome solution simply will be imposed on them 
should they lose the suit. Additionally, defendants can avoid 
judicial determination of liability and obtain flexibility in 
terms of how they implement needed reforms. This is why the use 
of consent decrees in Federal court litigation is a 
longstanding part of the judicial and congressional policy of 
encouraging alternative dispute resolution.\57\ H.R. 712 flies 
in the face of this policy and will ultimately cost plaintiffs 
and governmental defendants more in litigation costs by making 
consent decrees and settlements more difficult to obtain. As 
John Cruden explained:
---------------------------------------------------------------------------
    \57\See Timothy Stoltzfus Jost, Breaking the Deal: Proposed Limits 
on Federal Consent Decrees Would Let States Abandon Commitments, Legal 
Times, Apr. 25, 2005, at 59 (``Yet the Supreme Court has long 
articulated a policy encouraging settlement of cases, as has 
Congress.'').

        As compared to full-blown litigation, consent decrees 
        allow for a faster and less expensive, but still 
        comprehensive resolution of a dispute. Congress' 
        underlying statutory objectives are satisfied, while at 
        the same time, the [defendant] is able to exercise its 
        sovereignty through the negotiation of binding 
        contracts and the resolution of potentially onerous 
        pending litigation. Indeed, the finality and certainty 
        afforded by the consent decree makes it far easier for 
        a [defendant] to follow through on its commitments.\58\
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    \58\2012 Hearing, supra note 6, at 108.

By making consent decrees and settlement agreements more 
difficult and costly to enter into, H.R. 712 will generate 
increased litigation costs and expensive judgments, which will 
ultimately be passed along to the taxpayer.
V. LH.R. 712 Subverts the Federal Rules of Civil Procedure and Judicial 
        Discretion
    H.R. 712 overrides the Federal Rules of Civil Procedure, 
the courts' power to manage litigation in several respects, and 
their authority to consider equities in their decision making. 
First, it undermines Federal Rule of Civil Procedure 24, which 
sets forth the process for determining when a third party can 
intervene in a pending case, placing the burden on the third 
party to show that its interests are not adequately represented 
by the plaintiff and the defendant. H.R. 712 overrides this 
Rule by requiring courts to presume the opposite, namely that 
the parties in the litigation do not adequately represent the 
interests of the third party.
    Second, H.R. 712 tampers with the process for modifying 
consent decrees under Federal Rule of Civil Procedure 60(b)(5). 
Under that provision, a court can modify a consent decree when 
``the judgment has been satisfied, released, or discharged; it 
is based on an earlier judgment that has been reversed or 
vacated; or applying it prospectively is no longer 
equitable.''\59\ Section 4 of H.R. 712 attempts to skew the 
result of such a motion to modify by specifying that when a 
defendant agency moves to modify a previously entered consent 
decree, the court ``shall'' review the motion and consent 
decree de novo whenever the motion to modify is based on the 
grounds that the decree is ``no longer fully in the public 
interest due to the agency's obligations to fulfill other 
duties or due to changed facts and circumstances.'' This 
provision clearly is intended to result in modification or 
revocation of an existing consent decree when a government 
agency moves to do so, regardless of the equities involved, 
which Rule 60 permits a court to consider.
---------------------------------------------------------------------------
    \59\Fed. R. Civ. P. 60(b)(5).
---------------------------------------------------------------------------
    Beyond the specific changes that H.R. 712 makes to the 
civil procedure rules at issue, the bill hamstrings judicial 
discretion in matters concerning the management of litigation 
before a court. In addition to questions about intervention or 
modification of consent decrees, H.R. 712 requires courts to 
make certain presumptions (subject to rebuttal) on other 
similar litigation management issues such as when to permit 
amicus participation by third parties, when to enter a consent 
decree or settlement agreement, and when to refer matters to 
mediation, other alternative dispute resolution, a special 
master, or another judge. In short, H.R. 712 seeks to dictate 
courtroom management issues that have traditionally been left 
to judges to decide.
VI. LThe Bill's Open-Ended Intervention Provision Could Undo Critical 
        Civil Rights Protections
    Section 3(b)(1) of the bill would create a rebuttable 
presumption that the interests of ``a person who alleges that 
the agency action in dispute would affect the person . . . 
would not be represented adequately by the existing parties to 
the action,'' and then require that such party must be included 
in ``[e]fforts to settle a covered civil action or otherwise 
reach an agreement on a covered consent decrees or settlement 
agreement.'' In effect, this rebuttable presumption would 
reverse the burden for intervention currently in Rule 24 of the 
Federal Rules of Civil Procedure from the party seeking to 
intervene in the case to the parties themselves.\60\
---------------------------------------------------------------------------
    \60\Rule 24 of the Federal Rules of Civil Procedure states, in its 
pertinent part,

(a) Intervention of Right. On timely motion, the court must permit 
---------------------------------------------------------------------------
anyone to intervene who:

      (1) is given an unconditional right to intervene by a 
      Federal statute; or

      G(2) claims an interest relating to the property or 
      transaction that is the subject of the action, and is so 
      situated that disposing of the action may as a practical 
      matter impair or impede the movant's ability to protect its 
      interest, unless existing parties adequately represent that 
      interest.

(b) Permissive Intervention.

      G(1) In General. On timely motion, the court may permit 
      anyone to intervene who:

      G(A) is given a conditional right to intervene by a Federal 
      statute; or

      G(B) has a claim or defense that shares with the main 
      action a common question of law or fact.
    In response to this concern, Representative Steve Cohen (D-
TN) offered an amendment that would have excluded from the 
coverage of the bill ``a covered consent decree or settlement 
agreement that prevents or is intended to prevent 
discrimination based on race, religion, national origin, or any 
other protected category.''\61\ Speaking in support of his 
amendment, Representative Cohen noted that H.R. 712 would 
``take out consent decrees that are settlements meant to cover 
discrimination or intended to prevent discrimination based on 
race, religion, national origin, or any other protected 
category.''\62\
---------------------------------------------------------------------------
    \61\Markup Tr., supra note 28, at 222.
    \62\Id.
---------------------------------------------------------------------------
    Urging his colleagues to reject this amendment, 
Representative Doug Collins (R-GA) contended that current 
standing requirements would continue to act as a limit on 
intervention.\63\ Standing, however, affords weak limits on the 
bill's intervention right. The U.S. Supreme Court's guidance on 
this issue has evolved over the years and one that it has 
revisited on numerous occasions.\64\ The Court itself has 
acknowledged that the ``concept of `Art. III standing' has not 
been defined with complete consistency in all of the various 
cases decided by this Court . . . [and] this very fact is 
probably proof that the concept cannot be reduced to a one-
sentence or one-paragraph definition.''\65\ Similarly, the 
Court in another case observed that ``[g]eneralizations about 
standing to sue are largely worthless as such.''\66\
---------------------------------------------------------------------------
    \63\Id. at 46.
    \64\See, e.g., Monsanto Co. v. Geerston Seed Farms, 130 S.Ct. 2743 
(2010); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Allen v. 
Wright, 468 U.S. 737 (1984); Valley Forge Christian College v. 
Americans United, 454 U.S. 464 (1982); Ass'n of Data Processing Service 
Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 
(1970).
    \65\Valley Forge Christian College v. Americans United, 454 U.S. 
464, 475 (1982).
    \66\Association of Data Processing Service Orgs. v. Camp, 397 U.S. 
150, 151 (1970).
---------------------------------------------------------------------------
    Standing doctrines do not offer bright-line rules regarding 
when a party may intervene in a pending case. Resolving 
questions about a party's standing will result in extensive 
litigation. To the extent that H.R. 712 further opens the door 
for any private party to claim the right to intervene, it would 
have the effect of delaying any settlement for years even if 
the party claiming intervenor status ultimately is unable to 
establish proper standing.

                               CONCLUSION

    Like all the anti-regulatory proposals this Committee has 
considered in this Congress, H.R. 712 is yet another solution 
in search of a problem. Proponents have failed to present any 
evidence to support their claim that agencies ``collude'' with 
plaintiffs to enter consent decrees or settlement agreements. 
Nevertheless, this legislation will impose burdensome 
procedural requirements on agencies and courts that will 
hamstring, or outright discourage, the use of consent decrees 
and settlements. 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. 712 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. 712 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. 712 undermines existing civil procedure rules and 
overrides judicial discretion.
    For these reasons, we respectfully dissent and urge our 
colleagues to oppose H.R. 712.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Ms. Chu.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Ms. DelBene.
                                   Mr. Jeffries.
                                   Mr. Cicilline.