A unified Congress has the opportunity to reverse “midnight rules”– those regulations finalized in the waning days of the Trump administration - through use of its review powers under the 1996 Congressional Review Act, 5 U.S.C. § 801 (CRA).  The CRA provides Congress with a 60-day period to pass a Joint Notice of Resolution of Disapproval to reverse regulations that went into effect during a designated look-back period (here, any regulation issued after August 21, 2020).  One of the primary benefits of the CRA is that passage is on a simple majority vote – no filibuster.  In addition, judicial review of a CRA determination is expressly barred under the CRA.  However, there are risks to using the CRA to invalidate a regulation.  First, a notice of disapproval not only invalidates the regulation but also prevents the issuing agency from issuing a regulation that is “substantially the same” as the reversed regulation unless Congress authorizes the agency to do so in a later law.  Congress would need to tread carefully to ensure it is not cutting off its nose to spite its face – i.e., once a regulation is disapproved, it is dead forever and retroactively negated.  Second, a failure to pass allows the rule to go into effect immediately.  Further, the CRA requires 10 hours of Senate floor time for debate split jointly between the parties with voting on individual resolutions (resolutions cannot be combined), taking up significant amounts of time that may be better spent on higher priorities of the administration. President Biden, based on his years of experience, is unlikely to be rash in his approach to reversing regulations.  He will likely decide to conduct the necessary evaluation of required changes rather than a knee-jerk reaction to reverse the regulation.

At this time, it is unlikely that the CRA will be utilized to undo regulations as Congress will be focused instead on immediate demands such as the COVID-19 relief bill, immigration, and continuing efforts to put Biden’s cabinet in place rather than commit its limited time to eliminating Trump regulations.  Further, eligible environmental regulations are but a sliver of the total amount of regulations eligible for CRA action (estimated to be over 1000).  There are approximately 20 environmental regulations that could be subject to the CRA.

 The most likely candidates for CRA review are two rules that put limitations on how EPA evaluates regulations.  The Transparency in Science Rule and the Clean Air Act (CAA) Cost/Benefits Rule were issued as “procedural” rules and thus were allowed to go into effect immediately in the final days of the Trump administration.  The Transparency in Science Rule (sometimes referred to as the “Secret Science Rule”), which was published and went into effect on January 6, 2021, limits the extent that a rule may be supported by confidential research.  The CAA Cost/Benefits Rule was published and went into effect on December 23, 2020.  Among other things, this rule limits EPA to considering only the direct cost and benefits of a rule and not indirect benefits, thus excluding climate change from being considered.  However, a Montana district court recently ruled that the Transparency in Science Rule was substantive and thus could not be immediately effective.  As a result, and on EPA’s motion, the district court vacated the rule and remanded it back to EPA.  See Environmental Defense Fund v. EPA, No. 4:21-cv-00003-BMM (February 1, 2021).  The CAA Cost/Benefits Rule is likely to suffer the same result.  As a result, the Biden administration has other routes to repeal these regulations.

In conclusion, it is unlikely that the CRA will be a major tool to reverse environmental regulations of the Trump administration.  Rather, the Biden administration will attempt to reverse regulations through freezing not-yet-published regulations, delaying litigation and reversing course when possible, and, in any event, through standard notice and comment rulemaking.  Kilpatrick Townsend will continue to track efforts to reverse regulations.  Frozen! Delayed! Biden Administration to Review Environmental Regulations