The Return of the Congressional Review Act

Pillsbury Winthrop Shaw Pittman LLP

Little used before the Trump administration and with limited time to act, what regulations will the Biden administration target with the CRA?

TAKEAWAYS

  • Democrats can use the Congressional Review Act to overturn regulations passed in the final days of the Trump Administration, the same statute used in 2017 to overturn 16 Obama-era regulations.
  • Regulatory actions issued on or after August 21, 2020 will be subject to the Congressional Review Act.
  • While this means over 1,400 regulatory actions are eligible to be overturned, Democrats are likely to place priority on just 10 – 20 due to limited floor time.

The impending change of the Senate to Democrat majority control opens up the possibility for the 117th Congress to make use of the Congressional Review Act (CRA) to quickly overturn a number of regulations enacted by the Trump Administration. Pillsbury has previously written about the CRA in detail, but to summarize, the CRA is a 1996 law which establishes a “fast-track” procedure for Congress to overturn rules issued by federal agencies. The new Congress has 60 legislative days after a final rule is issued (commonly called the “lookback provision”) to review the rule and vote on a “joint resolution of disapproval,” which can be passed by a simple majority. This process is not subject to filibuster but provides for 10 total hours of Senate debate split equally among parties, though under 5 U.S.C. § 802 (d)(2), the Congress can propose a non-debatable motion to limit debate and further fast-track the process. If passed, once the president signs a joint resolution of disapproval, it cannot take effect and—perhaps more importantly—the agency needs express authority from Congress to issue another regulation in the future that is “substantially the same” (5 U.S.C. § 801 (b)(2)). Finally, judicial review of any “determination, finding, act, or omission” under the CRA is expressly barred (5 U.S.C. § 805).

Prior to the Trump Administration, the CRA had been successfully deployed only once, overturning an ergonomics regulation in 2001. However, the Trump Administration was successful in overturning 16 regulations using CRA procedures. While single-party control over the House, Senate and Presidency is not required to begin a joint resolution of disapproval under the CRA, it is most effectively used under these conditions.1 Further, 5 U.S.C. § 801(d) extends the lookback provision for a new Congress, meaning the 117th Congress will have an additional full period of 60 legislative days in which to review any rules enacted during the Trump Administration.

What Rules Will be Subject to the CRA?
Generally speaking, any rule published in the Federal Register in the last 60 days of legislative session of the 116th Congress will be subject to the CRA.2 Experts have generally agreed that this means any final rules published in the Federal Register on or after August 21, 2020, will be subject to a joint resolution of disapproval under the CRA. This is a later date than the May 19, 2020 date that many—including those in the Trump Administration—anticipated due to the days added to the legislative calendar in December to pass COVID relief. Because of this change, the Trump Administration’s reforms to the National Environmental Policy Act (NEPA), which were published in the Federal Register on July 16, 2020, will no longer be subject to the CRA.

In terms of other rules, the Columbian College of Arts & Sciences Regulatory Studies Center at George Washington University has identified over 1,400 rules finalized by the Trump Administration which are subject to a joint resolution of disapproval under the CRA. (The complete list is updated frequently and can be downloaded in Excel format here.) The lion’s share of those rule changes was from the Department of Transportation, Environmental Protection Agency and the Department of Commerce as outlined in the chart below.

Besides those rules listed above, there are over 20 rules still moving through the process of finalization which the CRA will also apply to if those rules are finalized. Among those are several rules seeking to decrease energy efficiency standards, a rule which would relax environmental and safety requirements for oil exploration in the Arctic, and a rule clarifying standards for designating habitats of endangered species.

Even then, there may be more regulations which can be subject to the CRA which were finalized years prior. In 2017, the Government Accountability Office (GAO) confirmed that the CRA’s definition of a “rule” is broad enough to include agency guidance documents that did not go through notice-and-comment rulemaking. This resulted in a guidance bulletin around auto lending, published by the Bureau of Consumer Financial Protection (CFPB) in 2013, being overturned under the CRA.

What Rules are Likely to be Overturned?
Even with control of Congress, President Biden will likely only be able to overturn a few of the previous administration’s rules through the CRA. The Trump Administration itself was only able to accomplish 16, so the Biden Administration will need to work with Congress to identify the highest priority rules. From an environmental perspective, those high-priority rules may include:

  • The Trump Administration’s elimination of an Obama-era methane rule, which requires oil and gas companies to detect and repair methane leaks. While the rule was finalized by the EPA on August 13, 2020, it was not published in the Federal Register until September 14, 2020.
  • The EPA’s “Secret Science” rule, which requires researchers to disclose raw data involved in their public health studies before an agency can rely on their conclusions, was just finalized on January 6, 2021. EPA Administrator Anthony Wheeler has stated this rule is not subject to the CRA because it is a “housekeeping” measure, but the final determination of its status will be made by Congress and is not likely subject to judicial review.
  • A rule finalized on December 23, 2020 which modifies the cost and benefits analysis for any new rule issued under the Clean Air Act, which may prioritize financial benefits over other secondary benefits such as illness prevention.
  • A decision by the EPA to retain its current National Ambient Air Quality Standards (NAAQS) for particulate matter (soot) and ozone (smog) finalized on December 18 and December 31, 2020, respectively.
  • A rule which would restrict pension managers from considering environmental and social impacts when choosing investments, which was finalized on November 13, 2020.

The Trump Administration has also recently finalized a number of rules focused on further restricting immigration access, placing further restrictions on asylum seekers and immigrant workers. A Democratic-majority Congress may focus on overturning immigration-related restrictions as a priority over some environmental rulemakings if they are under time pressure.

Can Legislators Overturn Multiple Rules at Once?
No. The CRA requires joint resolutions of disapproval to be voted on individually. In 2017, Republican lawmakers attempted to pass the “Midnight Rules Relief Act” which would have permitted overturning any Obama Administration regulations by omnibus and with limited debate, but the vote failed even with the Republican majority. A similar attempt would also be likely to fail in the current Congress with the slim Democratic majorities.

Can the Biden Administration Reinstate the Rules that were Overturned?
The CRA has a provision stating that rules overturned under its provisions cannot be reenacted in “substantially the same form” (5 U.S.C. § 801(b)(2)). This is applicable for the 16 rules overturned under the Trump Administration, including the controversial overturning of privacy rules for broadband internet access providers promulgated by the Federal Communications Commission under then-President Obama. Without congressional action on the issue, it is understood that the FCC is prohibited from adopting any new rules on the issue.

Conclusion
It is clear that the 117th Congress and the Biden Administration have an opportunity to utilize the CRA as a filibuster-free tool to undo several of the Trump Administration’s midnight regulations. What remains to be seen is which of the over 1,400 eligible regulations will be the focus of Democrats.

1 For example, in 2020, both the Democratic-led House and the Republican-led Senate voted in favor of a joint resolution of disapproval for a Department of Education regulation which changed the process to obtain student loan forgiveness from an education institution which had misrepresented a material fact to students. President Trump vetoed the action on May 29, 2020 and the rule remains in place. See H.J.Res. 76, 116th Cong. (2020).

2 5 U.S.C. §§ 801(a), 802. Due to differences in how the House and Senate count their chambers’ working days—legislative days and session days, respectively—the CRA stipulates that the window for rules included in the lookback period is calculated using whichever count grants the longest time for review. There are some technical exceptions to this. For example, if a rule is not required to be published in the Federal Register, the date will be when the rule was received by Congress. It also appears the Senate has established the additional requirement that the rule be published in the Federal Register (if such publication is required) before a qualifying joint resolution of disapproval may be submitted in the Senate. Thus, for practical purposes, practically considered to have been “received by Congress” on the later date of its receipt in the Office of the Speaker of the House, its referral to Senate committee, or its publication in the Federal Register. See Cong. Rsch. Serv., R43992 The Congressional Review Act (CRA): Frequently Asked Questions (2020).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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