With Limited Time Left, Congress Begins Use of the Congressional Review Act

Pillsbury Winthrop Shaw Pittman LLP

TAKEAWAYS

  • Facing an April 4 deadline to introduce joint resolutions under the Congressional Review Act, legislators have started to act.
  • The Congressional Review Act process is not subject to filibuster, and joint resolutions can be passed with a 51-vote majority.
  • Congress has introduced three joint resolutions seeking to overturn Trump Administration rules under the Congressional Review Act.

With time running short to introduce joint resolutions under the Congressional Review Act, Congress has begun to act. Legislators have now introduced three joint resolutions seeking fast-track procedures to overturn Trump-era regulations under the Congressional Review Act before the time limit expires on April 4, 2021. One of those joint resolutions seeks to overturn a methane rule issued by the Environmental Protection Agency (EPA), which Pillsbury identified as a likely target in January of this year. The second joint resolution targets a rule approved by the Equal Employment Opportunity Commission (EEOC) which sets out the process for settling claims, sometimes called the “conciliation” rule. The third targets the “true lender” rule finalized by the Office of the Comptroller of Currency in October 2020.

The Congressional Review Act does not permit filibuster and only requires 51 votes to pass a joint resolution repealing an agency rule. One detractor is that each joint resolution may require up to 10 hours of Senate floor time for debate. A second issue is that, once a rule is overturned using the Congressional Review Act an 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)). This “substantially the same” language has not yet been tested in court. A brief description of each of the joint resolutions is included below.

Senators Heinrich (D-New Mexico) and King (I-Maine) stated to press they intend to file a joint resolution of disapproval overturning the Trump Administration’s methane rule, which itself overturned an Obama-era methane rule requiring oil and gas companies to detect and repair methane leaks. While the methane rule was finalized by the EPA on August 13, 2020, it was not published in the Federal Register until September 14, 2020, placing it within the Congressional Review Act lookback period, which includes all regulatory actions issued on or after August 21, 2020. The Trump Administration had tried to repeal the Obama-era methane rule by using the Congressional Review Act in March 2017, but the vote failed to pass. The vote margin for this joint resolution is also expected to be tight.

Additionally, Senator Patty Murray (D-Washington) and Representative Bobby Scott (D-Virginia) introduced a resolution under the Congressional Review Act which would overturn a Trump Administration EEOC rule that sets out the process for settling claims the EEOC has already established have merit (the “conciliation” rule), which was approved by the Commission on a 3-2 vote. The legislators claim the rule makes it more difficult for employees to enforce their workplace rights. The joint resolution to overturn the rule is available here.

Finally, Senator Chris Van Hollen (D-Maryland) has indicated he will introduce a joint resolution seeking to overturn an Office of the Comptroller of Currency rule clarifying when a national bank or federal savings association makes a loan and is the “true lender,” including in the context of a partnership between a bank and a third party. The Office of the Comptroller of Currency stated the lack of clarity may restrict access to credit, but states have argued the rule allows lenders to bypass state laws that cap high interest rates by originating loans in less-strict states and moving them elsewhere. The original rule, finalized in October, is available here.

Democrats have been very cautious up to now in introducing joint resolutions under the Congressional Review Act. At this same period in the Trump Administration, Congress had already introduced 14 joint resolutions under the Act, compared with just three in the current Congress. Congress has until April 4, 2021 to submit joint resolutions to disapprove Trump Administration rules, so there may be more introduced in the coming days.

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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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