Sunshine for Regulatory Decrees and Settlements Act of 2012

(1) the terms agency and agency action have the meanings given those terms under section 551 of title 5, United States Code;

(2) the term covered civil action means a civil action—

(A) seeking to compel agency action;

(B) alleging that the agency is unlawfully withholding or unreasonably delaying an agency action relating to a regulatory action that would affect the rights of—

(i) private persons other than the person bringing the action; or

(ii) a State, local, or tribal government; and

(C) brought under—

(i) chapter 7 of title 5, United States Code; or

(ii) any other statute authorizing such an action; and

(3) the term covered settlement agreement means—

(A) a consent decree or settlement agreement entered into in a covered civil action; and

(B) any other consent decree or settlement agreement that requires agency action relating to a regulatory action that affects the rights of—

(i) private persons other than the person bringing the action; or

(ii) a State, local, or tribal government.

In any covered civil action—

(1) the agency against which the covered civil action is brought shall publish the complaint in a readily accessible manner, including by making the complaint available online; and

(2) a party may not make a motion for entry of a consent decree or to dismiss the covered civil action pursuant to a settlement agreement until after the end of the period during which a person may intervene.

In considering a motion to intervene in a covered civil action by a person who alleges that the agency action in dispute would affect the person, the court shall presume, subject to rebuttal, that the interests of the person would not be represented adequately by the existing parties to the covered civil action.

In considering a motion to intervene in a covered civil action by a State, local, or tribal government, the court shall take due account of whether the movant—

(A) administers jointly with an agency that is a defendant in the covered civil action the statutory provisions that give rise to the regulatory action to which the covered civil action relates; or

(B) administers an authority under State, local, or tribal law that would be preempted by the regulatory action to which the covered civil action relates.

Efforts to settle a covered civil action shall—

(1) be conducted pursuant to the mediation or alternative dispute resolution program of the court or by a district judge other than the presiding judge, magistrate judge, or special master, as determined appropriate by the presiding judge; and

(2) include any party that intervenes in the covered civil action.

Not later than 60 days before the date on which a covered settlement agreement is filed with a court, the agency seeking to enter the covered settlement agreement shall publish in the Federal Register and online—

(A) the proposed covered settlement agreement; and

(B) a statement providing—

(i) the statutory basis for the covered settlement agreement; and

(ii) a description of the terms of the covered settlement agreement, including whether it provides for the award of attorneys’ fees or costs and, if so, the basis for including the award.

An agency seeking to enter a covered settlement agreement shall accept public comment during the period described in paragraph (1) on any issue relating to the matters alleged in the complaint in the covered civil action or addressed or affected by the proposed covered settlement agreement.

An agency shall respond to any comment received under subparagraph (A).

When moving that the court enter a proposed covered settlement agreement or for dismissal pursuant to a proposed covered settlement agreement, an agency shall—

(i) inform the court of the statutory basis for the proposed covered settlement agreement and its terms;

(ii) submit to the court a summary of the comments received under subparagraph (A) and the response of the agency to the comments;

(iii) submit to the court a certified index of the administrative record of the notice and comment proceeding; and

(iv) make the administrative record described in clause (iii) fully accessible to the court.

The court shall include in the court record for a civil action the certified index of the administrative record submitted by an agency under subparagraph (C)(iii).

After providing notice in the Federal Register and online, an agency may hold a public hearing regarding whether to enter into a proposed covered settlement agreement.

If an agency holds a public hearing under subparagraph (A)—

(i) the agency shall—

(I) submit to the court a summary of the proceedings;

(II) submit to the court a certified index of the hearing record; and

(III) provide access to the hearing record to the court; and

(ii) the full hearing record shall be included in the court record.

If a proposed covered settlement agreement requires an agency action by a date certain, the agency shall, when moving for entry of the covered settlement agreement or dismissal based on the covered settlement agreement, inform the court of—

(A) any required regulatory action the agency has not taken that the covered settlement agreement does not address;

(B) how the covered settlement agreement, if approved, would affect the discharge of the duties described in subparagraph (A); and

(C) why the effects of the covered settlement agreement on the manner in which the agency discharges its duties is in the public interest.

For any proposed covered settlement agreement that contains a term described in paragraph (2), the Attorney General or, if the matter is being litigated independently by an agency, the head of the agency shall submit to the court a certification that the Attorney General or head of the agency approves the proposed covered settlement agreement. The Attorney General or head of the agency shall personally sign any certification submitted under this paragraph.

A term described in this paragraph is—

(A) in the case of a consent decree, a term that—

(i) converts into a duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations;

(ii) commits an agency to expend funds that have not been appropriated and that have not been budgeted for the civil action in question;

(iii) commits an agency to seek a particular appropriation or budget authorization;

(iv) divests an agency of discretion committed to the agency by statute or the Constitution of the United States, without regard to whether the discretion was granted to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties; or

(v) otherwise affords relief that the court could not enter under its own authority upon a final judgment in the civil action; or

(B) in the case of a covered settlement agreement other than a consent decree, a term that—

(i) interferes with the authority of an agency to revise, amend, or issue rules under the procedures under chapter 5 of title 5, United States Code, or any other statute or Executive order prescribing rulemaking procedures for a rulemaking that is the subject of the covered settlement agreement;

(ii) commits the agency to expend funds that have not been appropriated and that have not been budgeted for the civil action in question; or

(iii) for a covered settlement agreement that commits the agency to exercise in a particular way discretion which was committed to the agency by statute or the Constitution of the United States to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties, provides a remedy for a failure by the agency to comply with the terms of the covered settlement agreement other than the revival of the civil action resolved by the covered settlement agreement.

A court considering a proposed covered settlement agreement shall presume, subject to rebuttal, that it is proper to allow amicus participation relating to the covered settlement agreement by any person who filed public comments on the covered settlement agreement under subsection (d)(2).

For a proposed covered settlement agreement that is a consent decree, a court shall not approve the covered settlement agreement unless the proposed covered settlement agreement allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.

For a proposed covered settlement agreement other than a consent decree, a court shall ensure that the covered settlement agreement allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.

Each agency shall submit to Congress an annual report that, for the year covered by the report, includes—

(1) the number, identity, and content of covered civil actions brought against and covered settlement agreements entered by the agency; and

(2) a description of the statutory basis for—

(A) each covered settlement agreement entered by the agency; and

(B) any award of attorneys fees or costs in a civil action resolved by a covered settlement agreement entered by the agency.

(1) any covered civil action filed on or after the date of enactment of this Act; and

(2) any covered settlement agreement proposed to a court on or after the date of enactment of this Act.