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Using the Congressional Review Act to Undo Trump-Era Rules

Aug. 30, 2021, 8:00 AM

Now that the Biden administration is past its six-month mark, it is a good time to take stock of its approach to undoing some of the most pernicious Trump administration regulations. Its strategy could reverberate into future administrations.

In the first week of the Biden administration, I urged that five particularly harmful regulations promulgated close to the end of the Trump administration should be disapproved through the use of the Congressional Review Act (CRA). I termed each of these rules “meta-deregulatory” because they sought to hinder the promulgation of a broad set of regulations in one fell swoop, thereby doing great harm to public well-being.

Disapproval under the CRA, which could be accomplished in months, is far quicker than its most prominent alternative, notice-and-comment rulemaking, which typically takes up to two years from start to finish and is then generally followed by at least a year of litigation. And, during this time, large swaths of the Biden regulatory agenda might have been in limbo.

In the end, none of the five regulations I highlighted were disapproved under the CRA. It would be wrong, though, to say that this result confirms Democratic antipathy to the CRA. Quite to the contrary, for the first time in its history, the CRA was invoked to disapprove regulations promulgated by a prior Republican administration. And the Biden administration found ways to rid itself of the five offending regulations without needing to avail itself of either the CRA or of lengthy notice-and-comment rulemaking.

Disapproving Regulations Under the CRA

In the early months of the Biden administration, three Trump-era regulations were disapproved under the CRA:

  • an Environmental Protection Agency rule repealing the regulation of methane emissions from oil and gas installations;
  • an Equal Employment Opportunity Commission rule requiring employers to disclose when an employee filed a discrimination charge and list the known facts concerning the dispute; and
  • an Office of the Controller of the Currency rule enabling lenders to evade local and state laws intended to protect consumers.

On June 30, President Biden signed the three disapprovals into law.

That a Democratic president, Senate, and House came together, for the first time, to disapprove rules, puts an end to the claim of Democratic reticence concerning this tool. That they did not disapprove more regulations is understandable given the peculiar circumstances surrounding the early months of the Biden administration.

Such disapprovals require up to 10 hours of Senate debate time, which is in short supply during the 60 legislative days when the CRA must be invoked, particularly for an administration that prioritizes the confirmation of its top officials so that they can get to work on ambitious plans. But this year, Senate time also needed to be spent advancing the American Rescue Plan, which addressed the Covid-19 pandemic and corresponding economic crisis, and conducting the Senate trial of former President Trump.

Senate time was therefore in particularly short supply. Taking the plunge and, for the first time, availing themselves of CRA disapprovals, even when Senate time was in particularly short supply, suggests that Democrats will use this tool more aggressively in the future.

... And Other Means of Undoing

Even though the Biden administration did not seek to disapprove the five “meta-deregulatory” rules through the CRA, it found other ways to get rid of them without needing to conduct time-consuming notice-and-comment rulemaking. The most prominent of these rules, the EPA’s “censored science” rule, hampered the agency’s ability to rely on epidemiological studies that reveal the adverse consequences of contaminants on human populations.

A federal judge held on Jan. 27 that the Trump administration had improperly promulgated the rule. Then, at the request of the Biden administration, the judge vacated the rule on Feb. 1. Because no parties had intervened on the side of the Trump administration—a lucky situation for the Biden administration—the litigation came to an end with this action and the rule met its demise.

And the Biden administration pursued other avenues with respect to the other four “meta-deregulatory” rules. To repeal a rule that—contrary to economic consensus—called into question the use of indirect benefits, or co-benefits, in justifying air pollution rules, the EPA relied on a U.S. Supreme Court decision from June 2020, pursuant to which, on May 13 it issued an interim final rule, bypassing the need for prior notice and comment.

And, the Biden administration successfully asked the U.S. Court of Appeals for the D.C. Circuit to vacate a rule that made it impossible for the EPA to regulate the greenhouse gas emissions of any industrial class other than power plants and oil and gas installations, by conceding that the rule had been improperly promulgated without providing the opportunity for comments.

With respect to a Department of Energy rule blocking stringent energy efficiency standards for furnaces, water heaters, and boilers, the Biden administration moved with unusual speed in proposing a repeal on March 29, just two months after taking office. And, on the basis of pending litigation, on March 23 it postponed by a year a Department of Health and Human Services rule triggering the automatic revocation in five years of all of HHS rules that are 10 or more years old, unless the department performs a cumbersome retrospective review of the rules’ consequences—a task the department did not have the resources to do.

In summary, the Biden administration figured out ways of ridding itself of these pernicious meta-deregulatory rules without needing to use scarce Senate debate time. And, at the same time, any questions about whether Democratic administrations would invoke the CRA were laid to rest. Future administrations might follow a similar playbook.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Richard L. Revesz is the AnBryce Professor of Law and Dean Emeritus at New York University School of Law, where he directs the Institute for Policy Integrity.

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