Prominent Democratic lawmakers stand ready to use their control of the House and Senate to try erasing last-minute Trump administration environmental rules.
Fresh off double wins in Georgia that give them slim control of the Senate, Democrats are contemplating using the Congressional Review Act. The law gives the House and Senate time after a rule is finalized to scrap it with an expedited simple majority vote instead of the 60 votes needed for most Senate legislation—giving the incoming Biden administration the fastest path to revoking some of the most controversial environmental rules of the Trump era.
Democrats have started beating the drum to take down regulations like the Environmental Protection Agency’s Strengthening Transparency in Regulatory Science rule, which critics say will hamstring the agency’s ability to issue ambitious pollution-cutting regulations.
“Where the CRA will be important is striking down destructive rules that ought to come off the books altogether, like Administrator Wheeler’s cynical science ‘transparency’ rule,” said Rich Davidson, a spokesman for Sen. Sheldon Whitehouse (D-R.I.). Two other Democrats—Sens. Chris Van Hollen (D-Md.) and incoming Senate Environment and Public Works Committee Chairman Tom Carper (D-Del.)—also say they are mulling use of the CRA’s fast-track authority to quickly nullify rules.
But using the rule also requires congressional leaders to set aside valuable floor time for votes. That could put the effort in competition with President-elect Joe Biden’s own agenda. Some outside observers also say Democrats could hamper future rulemaking by normalizing the use of the CRA, which has been a rarely used weapon in its 25-year history until the Trump administration came into office in 2017.
“The fact of the matter is, once Democrats use it, there’s no putting that toothpaste back in the tube,” said James Goodwin, senior policy analyst at the Center for Progressive Reform, an advocacy group.
The Congressional Review Act, a 1996 law signed by President Bill Clinton, gave Congress fast-track procedures for holding an up-or-down vote on significant regulations and policy guidance. But it had only been used once—in 2001—before Republicans launched a campaign in the first months of the Trump administration targeting more than a dozen Obama regulations.
Wheeler argued the CRA can’t be used to scrap the science transparency rule because it was an “internal housekeeping statute” and wasn’t economically significant. But outside scholars and lawmakers disputed that analysis.
Richard Revesz, an administrative law professor at New York University, said Congress would decide which rules qualified for disapproval. And Susan Dudley, former head of the White House Office of Information and Regulatory Affairs under President George W. Bush, said it would be hard for anyone to find standing to overturn a vote of Congress.
Other potential environmental targets for a CRA vote include:
- An EPA rule that didn’t tighten current ozone air pollution limits;
- Another rule that doesn’t change federal air quality standards for airborne particle pollution; and
- A U.S. Forest Service rule published in late October that strips protections from Alaska’s Tongass National Forest—America’s largest—which is now open to new logging and mining.
Other big-ticket rules from the Trump administration, such as its effort to roll back Obama-era power plant limits on carbon pollution, were finalized too long ago to be vulnerable to CRA rescission.
Democrats on Board
Whitehouse and other Democrats who later this month will take the reins of the Senate Environment and Public Works Committee are now among those mulling the use of the CRA to shoot down environmental and other regulations.
Van Hollen (D-Md.) said he’s “eager to get to work with both the Biden-Harris administration and my colleagues in the Senate to conduct a thorough review of Trump’s destructive policies.”
“In those instances where the CRA is the most effective tool for reversing the damage, we should use it,” he said.
Carper, the environment panel’s top Democrat, is considering “several options” to undo Trump policies, according to an aide, “including in some cases the Congressional Review Act.”
“We are are confident that the worst policies of the Trump Administration—most of which are deeply legally flawed—can expeditiously and effectively come undone” either by the courts, the Biden administration, or Congress, the Carper aide said.
Use Under Trump
But no moderate Republicans—including several who have expressed concern over Trump’s regulatory overreach such as Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), and Mitt Romney (Utah)—responded to a request for comment on the prospect of using the CRA to target Trump rules.
Pockets of Republican lawmakers could be interested in supporting CRA votes to nix a smaller set of rules issued toward the end of the Trump administration, said Daniel Perez, senior policy analyst at the George Washington University Regulatory Studies Center.
In the first months of the Trump administration, the Senate used the CRA to repeal 16 regulatory actions, mostly issued in the waning days of the Obama administration—and often on narrow one- or two-vote majorities.
Those included the Interior Department’s stream protection rule, meant to protect waterways during mountaintop mining of coal.
Democrats will have to pick their spots carefully if they want to use the CRA, because their to-do list already includes priorities such as passing another coronavirus relief package and confirming Biden’s Cabinet picks.
“They’ll want to be selective,” said Dudley, now director of the George Washington University Regulatory Studies Center. “They’ve got a lot to do, so there will be tradeoffs. Spending the energy on those in the first 100 days may not be what you want to do.”
Another nuance Democrats will have to consider is a clause in the Congressional Review Act that bars agencies from issuing future regulations in “substantially the same form.” What that language precisely means has never been litigated. But some worry that killing a rule could prevent an agency from ever regulating the same issue or threat.
In some cases, the “substantially similar” provision could scare off Democrats from triggering the CRA because it could foreclose the possibility of tighter regulation in the future, said Goodwin, from the Center for Progressive Reform.
But in other cases, that clause could actually be attractive to Democrats. For example, a successful CRA veto on the science transparency rule would presumably freeze in place the way science has historically fed into EPA rules, an outcome most Democrats would welcome.
“If you think that those judgments about science and rulemaking should be made on a case-by-case basis, then you might really welcome the chance to really drive a nail in the coffin of the EPA science rule,” said Cary Coglianese, a regulatory law professor at the University of Pennsylvania Law School.
‘Puff of Smoke’
Yet regulatory scholars say a new administration shouldn’t rely exclusively on the CRA to wipe out unpopular rules.
Adam Finkel, a clinical professor at the University of Michigan School of Public Health, said regulators’ job is to write good rules that provide benefits in excess of their costs.
Finkel served as the chief regulator at the Occupational Safety and Health Administration the first time the CRA was used in 2001, to nullify a Clinton-era rule on workplace ergonomics.
“The CRA is a way of tearing up years of work and complicated scientific economic analysis with essentially a one-sentence, ‘We don’t like this,’ and it goes down like a puff of smoke,” he said.
—With assistance from Jennifer A. Dlouhy (Bloomberg News) and Bobby Magill.