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Collins and Grassley Introduce Sunshine Act to Curb Backdoor Rulemaking

Jan 12, 2017
Press Release

WASHINGTON—Today Congressman Doug Collins (GA-09) introduced H.R. 469, the Sunshine for Regulatory Decrees and Settlements Act while Senator Chuck Grassley of Iowa introduced a companion bill, S. 119, in the Senate. The Sunshine Act inhibits the ability of federal agencies to participate in back-door sue-and-settle arrangements with special interest groups, which circumvent established regulatory processes.

Federal agencies like the Environmental Protection Agency (EPA) have increasingly turned to consent decrees as a means of realigning regulatory priorities and establishing new rules that affect American workers and families. Agencies can carry out sue-and-settle litigation without public notice or comment, and over 100 such regulations have been handed down during the current administration, at an estimated annual cost of more than $100 billion.

The MACT Utility Rule, for example, costs American industry over $9 billion each year as the result of a consent decree with the EPA that enacted emissions regulations outside of the purview of the Clean Air Act, which was the foundation of the initial lawsuit. Maneuvers like the MACT case indicate that unelected bureaucrats at federal agencies have become more sympathetic to environmental activist groups than to the Americans they are meant to serve.

“The Sunshine Act represents a commitment I made to regulatory reform in my first term in office. Consent decrees weren’t designed as tools for back-room deals without the input of the people they impact most.

“I’m proud to have worked with Senator Grassley to curb this mischief by bringing transparency and accountability to the federal rulemaking process. This legislation lessens the power of bureaucrats to burden hardworking Americans with rules that bog down our economy and erode Americans’ right to know about and respond to federal rulemaking,” said Collins.

“Sue-and-settle tactics are used solely to hide an agency’s regulatory ambitions from the American people until it is too late. This practice hurts families, businesses and even entire states through burdensome red tape, and it makes a mockery of the public accountability and transparency protections established by the Administrative Procedure Act. This bill restores the American people’s seat at the table when agencies debate imposing new federal regulations,” Grassley said.

Specifically, the Sunshine Act checks federal runs around the regulatory process by:

  • Providing for greater transparency by requiring agencies to publicly post and report to Congress information on sue-and-settle complaints, consent decrees and settlement agreements;
  • Prohibiting the same-day filing of complaints and pre-negotiated consent decrees and settlement agreements in cases seeking to compel agency action;
  • Requiring that consent decrees and settlement agreements be filed only after interested parties have had the opportunity to intervene in the litigation and join settlement negotiations, and only after any proposed consent decree or settlement has been published for at least 60 days to provide for notice and comment;
  • Requiring courts considering approval of consent decrees and settlement agreements to account for public comments and compliance with regulatory process statutes and executive orders;
  • Making it easier for succeeding administrations to petition a court for modification of a prior administration’s consent decrees by providing for de novo review of motions to modify, if the circumstances have changed; and
  • Requiring the Attorney General or, where appropriate, the defendant agency’s head, to certify to the court that he or she has approved any proposed consent decree that includes terms  that:

·         Convert into a duty an otherwise discretionary authority of an agency to take regulatory action;

·         Commit an agency to expend funds that have not been appropriated and budgeted for the action in question;

·         Commit an agency to seek a particular appropriation or budget authorization;

·         Divest an agency of discretion committed to the agency by statute or the Constitution; or

·         Otherwise affords relief that the court could not enter under its own authority.

H.R. 469 is cosponsored by Bob Goodlatte (VA-06), Buddy Carter (GA-01), Rick Crawford (AR-01), Scott Tipton (CO-03), Paul Gosar (AZ-04), Tom Marino (PA-10), Lamar Smith (TX-21), Robert E. Latta (OH-05), Stevan Pearce (NM-02), Blake Farenthold (TX-27), Brian Babin (TX-36), Andy Barr (KY-06), Ted Yoho (FL-03), Louis Gohmert (TX-01), and Kevin Cramer (ND-At Large).