Testimony Opposing Harmful, Anti-Enforcement Legislation

I testified this morning at a legislative hearing before a subcommittee of the House Judiciary Committee, where I opposed harmful legislation that would obstruct law enforcement of important health, environmental, food and medical safety and investor protections.

My written testimony criticizing the Republican bill, H.R. 1493 [pdf], the so-called "Sunshine for Regulatory Decrees and Settlements Act of 2013," is available here [pdf]. I excerpt my oral statement below.

Thank you, Chairman Bachus, Ranking Member Cohen and members of the Subcommittee for the opportunity to testify today. My name is John Walke, and I am clean air director and senior attorney for the Natural Resources Defense Council. NRDC is a nonprofit organization of scientists, lawyers, and environmental specialists dedicated to protecting public health and the environment.

My testimony today will focus on three main points. First, allegations that federal agencies collude with NGOs in the filing and settling of lawsuits are entirely unsubstantiated. Second, H.R. 1493’s “solutions” to this unsubstantiated problem would prevent the enforcement of laws that establish critical health safeguards. Third, this bill ignores the existing administrative and judicial safeguards that prevent litigation abuses.

First, the witnesses at today’s hearing, like their counterparts at last year’s hearing, have provided no evidence of government attorneys seeking to limit agency discretion by colluding with plaintiffs to settle cases.

The U.S. Chamber of Commerce recently issued an entire report on this subject and was unable to identify any evidence of collusion, conspiracy or agencies manipulating settlements or laws to carry out improper exercises of authority.

Instead, critics such as the Chamber have resorted to re-defining what the term “sue-and-settle” means. The Chamber chose a methodology that focused on all EPA settlements with environmental groups, but only during this administration. Why? First, because this allowed the Chamber to quietly dispense with any need to prove collusion or impropriety. Next, because a fuller picture that included EPA settlements with industry and Bush Administration settlements with environmental groups would have destroyed the Chamber’s mythical story.

What the Chamber and this bill truly target are the legal rights of citizens to hold government accountable by enforcing laws designed to protect health, safety, and the environment. Settlements led to EPA having to fulfill clear statutory obligations that the Chamber would prefer to remain unenforced.

Second, under H.R. 1493 third party “intervenors” would be given the unprecedented ability to obstruct settlement talks. The result would waste taxpayer money as agencies would be forced to take more time settling or even litigating cases in which they know they have broken the law.  H.R. 1493 would give intervenors opportunities to disrupt and obstruct the settlement of lawsuits in ways that courts have rejected. In fact, the bill would overturn a Supreme Court precedent that made clear that intervenors cannot prevent parties from resolving their disputes and settling a case.

The legal obligations in settlements overwhelmingly entail requiring agencies to comply with nondiscretionary duties that are clearly mandated by law, such as statutory deadlines. These laws protect Americans’ health, safety, environment, food supply, investor confidence and other values. For example, just two overdue clean air standards that followed consent decrees attacked by the Chamber are projected to save over ten thousand lives annually. If Congress doesn’t like the deadlines or safeguards, it is free to amend them; it should not be creating end-runs around the law.

Third, H.R. 1493 ignores the legal mechanisms already in place to ensure transparency, public participation, and an agency’s maintenance of its discretionary powers and legal responsibilities. Notably, no witness at last year’s hearing or in written testimony today has identified a single rule that followed a settlement that did not go through public notice and comment. The settlements cited did not mandate a result but merely a timetable for rulemakings meeting all administrative laws.

Some of today’s testimony conflates and confuses the terms of settlements – which do not establish regulatory deadlines or mandates – with subsequent rulemakings that do establish regulatory deadlines and mandates, but only pursuant to notice-and-comment rulemakings. Again, no regulatory outcomes were fixed by any settlements discussed in the witnesses’ testimony. And any criticisms of the regulatory deadlines and measures could have been and in many cases were raised during public comment opportunities during rulemakings.

Settlements include specific language barring modifications of agency authority, and deadlines in settlements can be extended by agreement of the parties or unilaterally by the agency with court approval. But agency critics ignore these safeguards.

Instead, the critics have offered H.R. 1493, which would hinder all plaintiffs seeking to uphold the law, including states, corporations, and individuals. It is hard to understand why even conservatives would back legislation that hinders enforcement of the law, requires agencies to waste money in court on cases they believe they cannot win, and would stymie industry and state settlements along with all others. I urge the subcommittee to reject this harmful legislation.

Thank you.

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