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House Passes Two Bills to Reform EPA Settlement Abuse

By a 238-183 bipartisan vote on October 24, the House of Representatives passed the Stop Settlement Slush Funds Act of 2017 (H.R. 732). The bill would put an end to an end-run around Congress that was perfected during the Obama administration. In recent years, the Department of Justice and other executive agencies have been using their enforcement powers to fund private pet projects, even including projects that Congress had specifically rejected.

The most high-profile example was the Volkswagen “defeat device” settlement, which included $1.2 billion in green energy industrial policy. Consistent with proper separation of powers, H.R. 522 returns those purse strings to the people's duly appointed representatives by outlawing these sorts of slush fund settlements.

On October 25, the House passed the Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2017 (H.R. 469) by a bipartisan 234-187 vote. The bill targets “sue and settle,” the process by which environmental special interests leverage litigation to dictate priorities to the EPA. Under existing rules, federal courts are hamstrung in their latitude to approve modifications of judicial settlements and, as a result, the agency frequently is robbed of its discretion to set its own priorities in the face of thousands of statutory responsibilities.

H.R. 469 would allow courts to better consider an agency’s need to manage its limited resources when the government requests a modification to an existing consent decree. Last week, EPA Administrator Scott Pruitt instituted administrative reforms to check sue and settle, as reported last week by the Cooler Heads Digest. While Pruitt’s reforms are most welcome, they do not prevent a future progressive president from picking up sue and settle where Obama left off. H.R. 469, by contrast, would institute permanent reform.