The U.S. House of Representatives recently passed HR 469, the Sunshine for Regulatory Decrees and Settlements Act, by a vote of 234 to 187.
The bill, sponsored by Rep. Doug Collins (R-GA), ends the practice of regulation-through-litigation legal tactics and restores public accountability and judicial review protections.
As the first group to challenge the U.S. Fish and Wildlife Service’s (FWS) massive 2011 ESA settlements with anti-hunting groups legally, SCI supports more transparency and accountability in settlements that affect many stakeholders.
The bill’s key section, Title I, will force federal agencies to make the settlement of cases involving agency action a more transparent process. Title I will allow those affected by the settlements to participate in negotiations and will mandate public comment on the proposed settlements before the parties can submit a proposed settlement to the court. While the bill does not impact current final settlements, the changes will apply to new agreements in currently ongoing cases.
Other titles in the bill (1) place greater disclosure requirements on the Treasury Department’s use of its judgement fund (to pay out claims against the government), (2) enhance Congress’s power to intervene in court cases that affect its Constitutional priorities, (3) establish reporting guidelines for the Justice Department, and (4) give the House of Representatives the same rights as the U.S. Senate to intervene in ongoing cases.
The House bill closely resembles the contents of a directive issued Oct. 16 by Environmental Protection Agency Administrator Scott Pruitt to end the sue and settle tactic. Pruitt’s goal is to provide greater public participation and transparency of the agency’s consent decrees and settlement agreements.
HR 469 is also similar to a bill, S. 375, the Endangered Species Act Settlement Reform Act, introduced in the U.S. Senate by Sen. John Cornyn of Texas.
A 2013 report by the U.S Chamber of Commerce details how sue and settle tactics are deployed against several industries and involve many activities, including hunting and wildlife species.
Anti-hunting groups use settlements very effectively with regard to regulation under the Endangered Species Act.
The Western Energy Alliance (link) documented that two groups in particular, Center for Biological Diversity and WildEarth Guardians, overwhelmed the FWS with listing petitions and lawsuits, leading to the 2011 consent decrees covering more than 800 species and tying the FWS’s hands for years to come.
Despite these settlements, these groups and others, have continued to petition and sue the FWS, making it impossible for the FWS to focus its resources fully on protecting the species that need protection.
If adopted into law, the bills to end “sue and settle” tactics would require disclosure and public participation before the government and private parties enter into private settlements involving agency decisions that affect the general public.
SCI supports this much-needed ray of sunshine on tactics that have clouded the regulatory process too long.