Recent news that the Democrats flipped both U.S. Senate seats in Georgia’s run-off election means that the Democrats have enough votes to add the Congressional Review Act (CRA)[1] to the tools that could be used to advance President-elect Joe Biden’s regulatory agenda through the repeal of recent Trump administrative actions. The CRA is a desirable tool because it can reverse actions of the prior administration without the time and resources necessary to do so through traditional rulemaking.
But what considerations might Congress and the Biden administration face in deciding whether to employ this tool? And what environment and natural resources actions might be targets for the CRA as a result? This blog post breaks everything down.
How the CRA Works
The CRA provides Congress with a period in which it can act quickly to invalidate “rules.” This term is broadly defined—with some exceptions—such that the CRA may be used to disapprove not only regulations produced through notice-and-comment rulemaking but potentially also other agency policies or guidance.[2] In simplest terms, the statute requires federal agencies to present rules to Congress, and Congress then has 60 working days to introduce and pass a joint resolution disapproving the rule.[3] Under the CRA, passing a joint resolution of disapproval requires a mere simple majority vote in each chamber. If both chambers pass a resolution, the president may sign it into law.[4] It is this simple majority that provides Democrats, with their 50-seats plus the vote of Vice President Harris, the opportunity to employ the CRA as a tool in dismantling Trump-era regulations.
The key effects of a resolution of disapproval are two-fold. First, a disapproval resolution prevents a new rule from taking effect. Or, if the rule has already taken effect, the disapproval resolution nullifies the rule: the rule “shall be treated as though such rule had never taken effect.”[5] Second, a successful disapproval resolution prohibits the administration from issuing a rule in “substantially the same form” and from issuing a “new rule that that is substantially the same” as the disapproved rule.[6]
Key Dates Impacting the Applicability of the CRA
There are two different categories of rules that this Congress can seek to disapprove with a joint disapproval resolution. Congress can invalidate so-called “midnight rules” released at the tail end of the Trump administration in 2021 for a period of 60 days from the receipt of each rule. Additionally, for those rules that were submitted to Congress within the 60 working days of when the 116th Congress adjourned, the period in which this Congress can submit and act on a disapproval resolution restarts on the 15th day of the 117th Congress. This is known as the “lookback” period, which we estimate to begin on or around August 21, 2020.[7]
Some Considerations That Might Weigh For or Against Disapproving a Rule Through the CRA
The single biggest advantage to using the CRA to revoke some of the prior administration’s rules is that it nullifies a rule without having to go through the time- and resource-intensive process of traditional notice-and-comment rulemaking. Following the Administrative Procedure Act (APA) requires significant agency resources and could take a year or more to repeal a rule (and even longer to promulgate a replacement rule if one is desirable). In contrast, if Democrats can sustain a simple majority in both chambers, they could reverse some late Trump administration acts within a matter of weeks and allow the Biden administration to focus their resources elsewhere in advancing the regulatory agenda.
However, there are several key factors the new administration will need to consider:
- Whether the agency action at issue meets the CRA’s definition of a “rule,” which contains three important exceptions, two of which are relevant here: (1) “any rule relating to agency management or personnel” and (2) “any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.”[8]
- As our previous post explains, the meaning of “substantially similar” is an open question, and it is not clear whether an agency’s determination that its new rule is not “substantially similar” is subject to judicial review. Consequently, these uncertainties, and the potential to limit the agency’s discretion to act in the future, will be a key factor as Democrats consider when to use the CRA, in particular on environmental issues where the Biden administration intends to take further substantive regulatory action.
- The CRA has been used sparingly in the past. Of the 16 times congressional republicans and the Trump administration successfully used the CRA in 2017, only three—each issued by the Department of Interior—addressed environment or natural resources issues.[9] This suggests that only rules related to the very highest priorities of congressional Democrats and the Biden administration are likely be considered.
- The disapproval process is only available during a limited time, and Congress must pass a joint resolution of disapproval for each rule it wishes to overturn—rules cannot be combined. Thus, the administration may need to carefully consider how the use of the CRA might take congressional resources from other priorities, including confirming key Biden administration appointees and the need to address expiring COVID relief initiatives in early 2021.
- The CRA can only be used to repeal a rule in its entirety. If the administrative agency is likely to reform only certain aspects of a rule, it will need to do so through APA rulemaking.
What Trump Administrative Actions Might Be the Target of a CRA Joint Resolution of Disapproval?
We anticipate congressional Democrats and the Biden administration to give serious consideration to using the CRA to repeal one or more of the following actions. These actions were either issued in 2021 or fall within our estimated “lookback” period (beginning August 21, 2020).
- EPA’s Significant Contribution Finding for Greenhouse Gas Emissions (GHGs) from New, Modified, and Reconstructed Stationary Sources
This rule was a bit of a surprise to most stakeholders, who were waiting for EPA to finalize its rule amending the Obama administration’s 2015 power sector GHG New Source Performance Standards (NSPS). Instead, EPA issued a rule establishing a threshold for purposes of regulating GHGs from stationary sources under Clean Air Act 111(b).[10] EPA set the threshold at 3%, meaning that only source categories that exceed 3% of U.S. GHG emissions can be regulated going forward. Applying this standard, EPA concluded that electric generating units exceed the threshold, but source categories—such as oil and gas production and processing; refineries; and industrial, commercial, and institutional boilers—currently do not.
Because of its implications for regulating GHG emissions, this is likely to be a prime target for Congress and/or the Biden administration to roll back. The risk also seems to be low that future action(s) by the Biden EPA might be considered “substantially similar” in that there are range of options available to EPA if it is inclined to take issue future regulations. These may include issuing a rule setting an entirely different significance threshold or multiple rules setting different thresholds on an industry-by-industry basis.
Date Received by House: TBD | Date Received by Senate: TBD |Date Published in Federal Register: January 13, 2021| Effective Date: March 15, 2021
- EPA’s Regulatory Science Transparency Rule
This rule requires EPA, when promulgating significant regulations across the agency that are driven by the quantitative relationship between the amount of dose or exposure to a pollutant or contaminant, to give greater weight to scientific studies for which the underlying data is publicly available. And, it requires EPA to identify and make publicly available the science that serves as the basis for informing any significant regulation going forward.
Although EPA has stated that this rule is not subject to the CRA because it falls under the exception for rules of “agency organization, procedure or practice” that do not “substantially affect the rights or obligations of non-agency parties,”[11] and it has been suggested that this rule cannot be subject to the CRA because it is not economically significant, these arguments may not deter Congress from acting. The CRA prohibits judicial review of any “determination, finding, action, or omission under” the statute,[12] which the majority of courts have interpreted to bar judicial review of congressional actions under the CRA.[13] In other words, it may be Congress that gets the last word on whether an agency action meets the definition of “rule” or falls under one of the exceptions in...
