No Regulation Through Litigation Act of 2025
No Regulation Through Litigation Act of 2025 is a proposed bill introduced in the House on January 31, 2025. It would curb how federal agencies use settlement agreements and consent decrees in litigation. Specifically, it would prevent a federal agency head from signing a consent decree that goes beyond the court’s authority, and it would bar settlements that would result in a regulation or guidance document from including payment of attorneys’ fees or other litigation costs. The bill also provides definitions to distinguish “guidance documents” (non-binding statements of general applicability) from “regulations” (binding rules with the force of law) and lists types of materials that could be considered guidance documents. A severability clause ensures that if part of the bill is struck down, the rest remains in effect. The sponsors, affiliated with several House members, aim to reduce what supporters call “regulation through litigation” by ensuring settlements do not effectively impose new rules and by limiting the use of fee payments in such settlements. If enacted, the bill could push agencies toward formal rulemaking (with public notice and comment) rather than resolving enforcement actions through settlements that create binding regulatory requirements.
Key Points
- 1Limitation on consent decrees: The head of a federal agency may not enter into a consent decree that exceeds the authority of the court that issues the related order.
- 2Prohibition on fees in certain settlements: A settlement or consent decree that results in a regulation or guidance document cannot include payment of attorneys’ fees or litigation costs.
- 3Definitions to separate guidance from regulation:
- 4- Guidance document: A non-binding, generally applicable agency statement (in many forms) that explains policy, interpretation, or decisions on statutory/regulatory issues.
- 5- Regulation: A binding, generally applicable rule intended to have the force of law, created through various rulemaking processes, with specific exclusions.
- 6Rulemaking distinction and exemptions: Regulations include those made through informal or formal rulemaking, and the bill excludes certain categories (e.g., some military or foreign affairs regulations, organization/management/personnel matters, and other exemptions the OAIRA Administrator may specify).
- 7Severability: If any provision is invalid, the remaining provisions stay in effect.