With Democrats taking control of the Senate and the House, the Congressional Review Act (CRA) has emerged as an important weapon that the Biden administration and Democratic allies on Capitol Hill could use to quickly undo rules recently issued by the Environmental Protection Agency and other agencies. Its use, however, is no panacea and may, in fact, complicate the Biden administration’s efforts to pursue its own ambitious regulatory and legislative agendas.
The CRA allows a new Congress to utilize expedited procedures to review and disapprove rules issued during the final 60 legislative or session days of the previous Congress. These procedures are especially useful in avoiding the Senate filibuster.
Under the CRA, any member may introduce a resolution to disapprove a final rule, and the resolution can be discharged and called up for immediate consideration upon a motion signed by 30 members, with 10 hours of debate split evenly between the two parties.
As a result, other matters before Congress are put on hold while it considers the resolution of disapproval. Early and widespread use of the CRA could divert attention away from the ability of the 117th Congress to consider new legislation, or confirm Biden administration nominees, frustrating its promises to act quickly on Covid-19 relief, infrastructure, and climate change.
The CRA can be used against only those rules published in the Federal Register and submitted to Congress for review after the 60-day cut-off date, which is estimated to be Aug. 21, 2020, based on congressional calendars.
Congress could overturn rules issued before that deadline—such the Navigable Water Protection Rule and the updated National Environmental Policy Act regulations only through the regular legislative process. Likewise, the Biden administration would have to undertake notice-and-comment rulemaking to change such rules.
Hundreds of Actions Subject to Review and Disapproval
Hundreds of actions were published in the Federal Register and submitted to Congress under the Trump administration that could be subject to retrospective review and disapproval under the CRA. However, another CRA provision prohibits the issuance of a rule that is substantially the same as a disapproved rule without new legislative authority, potentially further limiting widespread use of the CRA.
It is interesting to note that the Trump administration issued replacements for two of the 16 Obama administration actions that were disapproved under the CRA in the 115th Congress.
A number of substantive rules issued by the EPA, the Department of the Interior, and other agencies in recent months would be subject to the CRA look-back provision, but the likelihood of them being disapproved under the CRA will depend on whether the Biden administration wants to issue more stringent rules in their place.
For example, EPA’s rule requiring public transparency surrounding certain studies on which regulatory actions are based may be susceptible to a CRA challenge because it is unlikely that the Biden administration would want to issue another rule in its place. Likewise, EPA’s rule for considering costs and benefits for Clean Air Act regulations is more likely to be undone using the CRA, because the Biden administration will want it off the books as soon as possible so it cannot interfere with other regulatory priorities.
For more substantive rules that EPA will want to revise and strengthen, such as the suite of rules regulating emissions from new oil and gas operations or for rules which EPA is required by statute to undertake periodic reviews, such as the national ambient air quality standards for ozone, the Biden administration and congressional Democrats may eschew the CRA in favor of notice-and-comment rulemaking.
CRA Prohibits Judicial Review
In reissuing a Department of Labor drug testing rule, the Trump administration argued its statutory mandate required a rule on the topic but that the new rule was not substantially the same as the rule that had been disapproved. (84 FR 53037). Similarly, the Securities and Exchange Commission has reissued a rule concerning the disclosure of financial payments by the extractive industries on the basis that it was required to issue a rule on the topic and that the new rule was not the same as what had been disapproved. (86 FR 4662).
Whether a subsequent rule is substantially the same as the rule that had been disapproved under the CRA is the sort of question that ordinarily would be settled in the courts. However, the CRA includes a broad prohibition against judicial review.
Although the U.S. Court of Appeals for the D.C. Circuit and other courts have rejected cases based on the CRA’s judicial review ban, other courts have entertained challenges based on the CRA. Uncertainty over whether a replacement rule would survive judicial review may give the Biden administration further pause about using the CRA to sweep away the Trump administration’s regulatory legacy.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Byron Brown is a senior counsel in Crowell & Moring LLP’s government affairs and environment and natural resources practice groups. He served as deputy chief of staff for policy at the Environmental Protection Agency in 2017-2018, senior counsel for the Senate Committee on Environment and Public Works, the House Committee on Natural Resources, and as an attorney with the EPA Office of General Counsel.