Mr. President, for too long, American families, farmers, and job creators have suffered under President Obama's regulatory onslaught. His administration threw caution to wind, pumping out regulation…
Mr. President, for too long, American families, farmers, and job creators have suffered under President Obama's regulatory onslaught. His administration threw caution to wind, pumping out regulation after regulation and further entangling the government into Americans' daily lives.
In November, the American people issued a strong rebuke to President Obama's overreach and his administration's way of doing business.
They want a new direction. They want more accountability. They want more transparency. They want the government off their backs so that they can get back to making this country great again.
President-elect Trump has committed to working with Congress to roll back the regulatory overreach of the Obama administration, and to making the government more answerable to the people.
So, I rise today to introduce an important piece of legislation that will help achieve these goals and ensure a more accountable and transparent government going forward.
By some estimates, Federal Government regulations impose over $2 trillion in compliance costs--on the American economy. The cost of complying with all these regulations falls particularly heavy on small businesses.
It is no wonder why many American businesses have shut down or moved overseas. How many innovators dreamed of starting a small business but decided against it when faced with the burden and uncertainty of our regulatory state?
We have to do better.
The Federal Government should do everything possible to promote job creation. To accomplish that, common sense would tell us that the government needs to remove bureaucratic barriers rather than put up new ones.
But as we all know, the Obama administration showed time and again that it would rather push forward with its regulatory agenda than ease the burden on our economy and job creators.
Adding insult to injury, the Obama administration often kept folks in the dark about new regulatory initiatives.
Through secretive litigation tactics, the administration took end- runs around our nation's transparency and accountability laws. It is a strategy known as sue-and-settle, and regulators have been using it to speed up rulemaking and keep the public away from the table when key policy decisions are made.
Sue-and-settle typically follows a similar pattern.
First, an interest group files a lawsuit against a federal agency, claiming that the agency has failed to take a certain regulatory action by a statutory deadline. The interest group seeks to compel the agency to take action by a new, often-rushed deadline. All too often, the plaintiff-interest group will be one that shares a common regulatory agenda with the agency that it sues, such as when an environmental group sues the Environmental Protection Agency, EPA.
Next, the agency and interest group enter into negotiations behind closed doors to produce either a settlement agreement or consent decree that commits the agency to satisfy the interest group's demands. The agreement is then approved by a court, binding executive discretion.
Noticeably absent from these negotiations, however, are the very parties who will be most impacted by the resulting regulations.
Sue-and-settle tactics undermine transparency, public accountability, and the quality of public policy. They can have sweeping consequences. For example, the Obama administration's so-called Clean Power Plan, which is the most expensive regulation ever to be imposed on the energy industry, arose out of a sue-and-settle arrangement.
These tactics also undermine congressional intent.
The Administrative Procedure Act, APA, which has been called the citizens' ``regulatory bill of rights,'' was
enacted to ensure transparency and accountability in the regulatory process. A key protection is the notice-and-comment process, which requires agencies to provide notice of proposed regulations and to respond to comments submitted by the public.
Rulemaking through sue-and-settle, however, frequently results in re- aligned agency agendas and short deadlines for regulatory action. This makes the notice-and-comment process a mere formality. It deprives regulated entities, the States and the general public of sufficient time to have any meaningful input.
The resulting regulatory action is driven not by the public interest, but by special interest priorities, and can come as a complete surprise to those most affected by it.
Sue-and-settle litigation also helps agencies avoid accountability. Instead of having to answer to the public for controversial regulations and policy decisions, agency officials can just point to a court order entering the agreement and say that they were required to take action under its terms.
We should also keep in mind that these agreements can have lasting impacts on the ability of future administrations to take a different policy approach--such as to remove regulatory burdens on farmers. Not only does this raise serious concerns about bad public policy, it also puts into question the constitutional impact of one administration's actions binding the hands of its successors.
Sue-and-settle, and the consequences that come from such tactics, is not a new phenomenon. Evidence of sue-and-settle tactics and closed- door rulemaking can be found in nearly every administration over the previous few decades.
But without a doubt, there was an alarming increase under the Obama administration. The U.S. Chamber of Commerce found that just during President Obama's first term, 60 Clean Air Act lawsuits against the EPA were resolved through consent decrees or settlement agreements.
And since 2009, sue-and-settle cases against the EPA have imposed at least $13 billion in annual regulatory costs.
But we now have an opportunity to curb these abuses, and an incoming administration that has committed to reining in the regulators.
That is why today I am introducing the Sunshine for Regulatory Decrees and Settlements Act. Senators Blunt, Inhofe, Cornyn, Cruz, Fischer, Rubio, Flake, Hatch, and Tillis are cosponsors of this important bill. And I'm pleased that Representative Doug Collins introduced a companion bill today in the House.
The Sunshine bill increases transparency by shedding light on sue- and-settle tactics. It requires agencies to publish sue-and-settle complaints in a readily accessible manner.
It requires agencies to publish proposed consent decrees and settlement agreements at least 60 days before they can be filed with a court. This provides a valuable opportunity for the public to weigh-in, which will increase accountability in the rulemaking process.
The bill makes it easier for affected parties, such as States and businesses, to intervene in these lawsuits and settlement negotiations to ensure that their interests are properly represented. It requires the Attorney General to certify to a court that he or she has personally approved of the terms of certain proposed consent decrees or settlement agreements. And it requires courts to consider whether the terms of a proposed agreement are contrary to the public interest.
The bill also makes it easier for succeeding administrations to modify a prior administration's consent decrees. That way, one administration won't be forced to continue the regulatory excesses of another.
The Sunshine for Regulatory Decrees and Settlements Act will shine light on the problem of sue-and-settle. It will help rein in backroom rulemaking, encourage the appropriate use of consent decrees and settlements, and reinforce the procedures that Congress laid out decades ago to ensure a transparent and accountable regulatory process.
I thank my colleagues for their support of this bill.
