President-elect Joe Biden has already pledged to undo the repeal of nearly 100 public health and environmental laws, noting that he will consider every tool available to do so. With Democratic control of Congress and the presidency, Congress is likely to exercise its authority under the Congressional Review Act (“CRA”), a 1996 law that permits Congress to legislatively repeal recently enacted executive agency rules. This alert briefly discusses CRA requirements and provides a list of rules potentially subject to CRA review affecting clients in the natural resources industries.
What is it?
Under the CRA, before a federal agency rule can take effect, the agency must submit a report to the Senate and House that includes a copy of the rule, a concise statement of the rule and the proposed effective date. Each house of Congress must then provide copies of the report to the chairman and ranking member of each standing committee with jurisdiction. If Congress disapproves of a rule, they must pass a joint resolution expressing disapproval that must be signed by the president. The rule is then repealed in its entirety.
Why use it?
The CRA is best utilized when a majority party in a new Congress strongly disagrees with the rule and often the enabling statute. A Republican-controlled Congress helped kick off the Trump administration’s regulatory reform efforts by using the CRA. Sixteen Obama-era regulations were subsequently repealed using the CRA. For example, the Republican majority quickly dispatched a rule by the Securities and Exchange Commission to require certain companies to disclose payments made to foreign governments for the purpose of commercial development of oil, natural gas or minerals.
Timing
Congress has 60 days (including weekends and holidays) from the date Congress receives the report, excluding days either house of Congress is adjourned for more than three days during a session of Congress, to pass a joint resolution disapproving the rule. Significantly, the CRA provides that when a joint resolution meets certain criteria, it cannot be filibustered in the Senate. Although the cutoff date is not entirely clear, most commenters agree that any rule published in the Federal Register on or after Aug. 21, 2020, is currently subject to repeal pursuant to the CRA.
Not so fast: CRA may not be the best option
Despite speedy repeal procedures, Democrats may think twice before using the CRA to overturn Trump administration legislation for two reasons.
First, the CRA only allows Congress to repeal rules in their entirety, not only the parts it disagrees with. After the joint resolution is signed by the president, the rule will not take effect and will be treated as though such rule had never taken effect. While the normal legislative process does not have the benefits of the CRA, using longer processes can preserve the status quo for pieces of the rule, particularly in cases where the rule is already effective. This can be beneficial not only for targets of the rule, who may have already sunk compliance costs, but also intended beneficiaries of the rule who would otherwise have to wait for a whole new rulemaking, including a public notice and comment period.
Second—and perhaps most importantly— any invalidated rule may not be reissued in “substantially the same form” unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule. The CRA does not define the phrase “substantially the same form” and no court has ever construed the term in the context of a rule erased by the CRA process. The lack of clarity about the meaning of “substantially the same form” may be a significant factor in whether Congress and the new administration advocate for the repeal of certain rules—most notably the NSPS policy rule.
Finally, the CRA precludes judicial review of any congressional CRA action. For example, a court may not review whether Congress complied with the congressional review procedures of the CRA in overturning a rule. Therefore, a new rule replacing one repealed by the CRA would likely face not only a traditional challenge on the administrative record, but potentially also a challenge to compliance with the “substantially the same form” limitation. It is also not yet settled law whether such a challenge would be allowed to proceed in court in the first instance, but litigation may further delay implementation of any new rule.
Below is a list of some of the more notable environmental and natural resource rules that Congress could repeal pursuant to the CRA.
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Agency
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Rule
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Federal Register Citation
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Date of Publication
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EPA
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Streamlining Procedures for Permit Appeals
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85 Fed. Reg. 51650
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8/21/2020
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EPA
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Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review
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85 Fed. Reg. 57018
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9/14/2020
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EPA
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Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration
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85 Fed. Reg. 57398
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9/15/2020
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Dept. of Interior (Office of Natural Resources Revenue)
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Consolidated Federal Oil and Gas and Federal and Indian Coal Valuation Reform
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85 Fed. Reg. 62016
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10/1/2020
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EPA
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Steam Electric Reconsideration Rule
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85 Fed. Reg. 64650
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10/13/2020
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EPA
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Environmental Protection Agency Acquisition Regulation (EPAAR); Scientific Integrity
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85 Fed. Reg. 66266
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10/19/2020
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Dept. of Interior (Bureau of Land Management)
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Non-Energy Solid Leasable Minerals Royalty Rate Reduction Process
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85 Fed. Reg. 67671
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10/26/2020
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EPA
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Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act
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85 Fed. Reg. 73854
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11/19/2020
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Dept. of Agriculture (Forest Service)
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National Environmental Policy Act (NEPA) Compliance
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85 Fed. Reg. 73620
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11/19/2020
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DOE
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National Environmental Policy Act Implementing Procedures
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85 Fed. Reg. 78197
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12/4/2020
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EPA
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Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process
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85 Fed. Reg. 84130
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12/23/2020
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EPA
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Review of the Ozone National Ambient Air Quality Standards
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85 Fed. Reg. 87256
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12/31/2020
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EPA
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Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information
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86 Fed. Reg. 469
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1/6/2021
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EPA
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Control of Air Pollution From Airplanes and Airplane Engines: GHG Emission Standards and Test Procedures
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86 Fed. Reg. 2136
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1/11/2021
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Dept. of Interior (Office of Natural Resources Revenue)
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ONRR 2020 Valuation Reform and Civil Penalty Rule
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86 Fed. Reg. 4612
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1/15/2021
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