Legislation Would Delay Important Safeguards and Limit Citizens' Access to Courts

by Katie Weatherford, 4/23/2013

Earlier this month, Sen. Chuck Grassley (R-IA) and Rep. Doug Collins (R-GA) introduced companion legislation in the House and Senate, entitled the Sunshine for Regulatory Decrees and Settlements Act (S. 714 and H.R. 1493). Disguised as an effort to increase transparency, this legislation aims to bog down the regulatory process with time-consuming and costly procedural hurdles that would limit the lawsuits brought to challenge unreasonable delays by regulatory agencies.

The Center for Effective Government joined with 40 public interest organizations to oppose earlier versions of this legislation introduced in 2012 by Reps. Ben Quayle (R-AZ) and Dennis Ross (R-FL). That letter explained that the legislation would "allow [...] individuals who want the federal government to continue breaking the law for their own benefit to obstruct and delay requirements to follow federal law." Rather than foster improvements, S. 714 and H.R. 1493 would delay important rules, including those that keep our nation secure, our financial markets stable, and our citizens safe and healthy.

Grassley and Collins Level Unfounded Accusations Against EPA

Collins, Grassley, and their industry supporters argue that this legislation would stop public interest groups from working with federal agencies like the U.S. Environmental Protection Agency (EPA) to enter into settlement agreements that force agencies to issue new regulations, a practice the lawmakers refer to as "sue and settle regulation." They claim that public interest groups frequently file lawsuits against federal agencies to compel agency action, settle the case with a mandate that EPA publish new regulations by a certain date, and thereby circumvent the regulatory process and review by the Office of Information and Regulatory Affairs (OIRA).

This assertion is untrue. Under existing law, once a settlement agreement is finalized, the agency issues a proposed rule using the same notice-and-comment procedures that it uses in other rulemakings. The settlement agreement does not impose additional procedural obligations on the agency; the agreement only compels the agency to do what Congress had already required it to do by law.

Settlement agreements do not forbid OIRA review. By requiring an agency to publish rules by a certain date, a settlement agreement may prevent indefinite delay by OIRA, but indefinite delay is not permitted in any case (even though it frequently occurs in violation of Executive Order 12866).

Key Provisions and Key Challenges

Instead of improving the regulatory system, the legislation would create new problems where none previously existed. The key concerns with this legislation are that it:

Limits the Ability of Citizens to Ensure Federal Laws are Implemented and Increases the Ability of Industry to Influence Rulemaking: These bills are aimed at suits that are filed to force agencies to meet deadlines set by Congress. By the time a suit is filed, the statutory deadline for publishing a standard has passed. This legislation would delay publication of already overdue rules by requiring that an agency seek notice and comment for 60 days on its decision before agreeing to settle a case. Although some statutes, like the Clean Air Act, already require EPA to publish proposed consent decrees or settlement agreements in the Federal Register for 30 days, this legislation would double the waiting period and would extend this requirement to all federal agencies.

In other words, when an agency is alleged to have unreasonably delayed publishing protective standards, it cannot agree to remedy this delay without waiting another 60 days.

Adds Unnecessary Procedural Requirements to Resolving Legal Disputes: Any proposed settlement agreement filed with a court must be accompanied by a certification from either the Attorney General or the agency head overseeing the litigation acknowledging his or her approval of the proposal at the time it is submitted (which would make the additional procedural requirements in the Grassley-Collins legislation unnecessary).

Transfers Agency Discretion to the Courts: Before a court could approve the proposed settlement, an agency would be required to inform the court of the agencies' competing mandatory duties. Currently, courts rarely second-guess an agency's priorities, but under the proposed legislation, a court would weigh these competing obligations in deciding whether the deadline agreed upon would give the agency sufficient time to act. In effect, this would give the court veto power over an agency's discretion to negotiate the terms of a settlement.

Grants Future Administrations a Right to Modify Settlement Agreements: Another significant concern with this legislation is that it would allow each new administration to modify a settlement agreement entered into by an agency during any previous administration "in light of changed facts and circumstances or competing duties." This vague language would open up a can of worms by allowing agencies to go back on their commitments to abide by federal law and complete development of protective standards and safeguards.

Conclusion

The unprecedented requirements in the Grassley-Collins legislation would further delay standards and safeguards that have already been unreasonably delayed and would take away a crucial tool that public interest groups use to ensure that agencies are, in fact, implementing the laws Congress passes in a timely fashion. It would also have judges second-guess an agency's priorities in settling cases related to regulatory delay. Too much process concerning whether a rule was delayed, how long it should be delayed, and whether the delay should end wastes agency resources that could better be spent protecting the public.

Congress should reject this convoluted legislation that would do nothing except allow federal agencies to continue to delay implementing the laws established by Congress.