As a new Congress convenes this week, regulatory reform is the rage, and the upshot seems to be that at least a few of President Obama’s environmental regulations could be dismantled quickly by the Republican Congress, with President-elect Donald Trump’s approval.
The Midnight Rules Relief Act would allow multiple rules to be considered for repeal under a single resolution. And the REINS Act — which stands for Regulations from the Executive in Need of Scrutiny Act — would require any new rules to be approved by a joint resolution in Congress before they could take effect at all. Both bills have previously passed in the House, but it’s unclear whether resistance from Democrats in the Senate would allow either to make it to the president’s desk — and, given that both bills represent an attempt to rein in executive authority, it’s also unclear whether Trump would sign them if they got there.
But these aren’t actually the likeliest way for regulatory reform — long a goal of industry — to happen. Rather, the most surefire approach at the moment involves a rarely invoked law that could spell a quick demise for any of 150 or so late-breaking regulations effected in the past six months. And that means several major environmental rules finalized this year could be at risk of being rolled back in the coming weeks or months.
The Congressional Review Act, enacted in 1996, allows Congress 60 legislative days, starting from the date the rule is submitted to Congress and published in the Federal Register, to overturn new federal regulations by submitting something called a “joint resolution of disapproval.” Sometimes, a congressional session adjourns before these 60 days are up, in which case the countdown starts all over again in the new session. If the resolution is signed by the president, the Congressional Review Act holds that the rule in question cannot take effect — and furthermore, it may not be issued in “substantially the same form” again unless Congress authorizes it with a new law.
“A big part of what the Congressional Review Act does is actually to serve as a deterrent,” said Oren Cass, a senior fellow and expert on energy and environment policy at the Manhattan Institute, a right-leaning think tank based in New York. “Typically you’d expect a huge rush of midnight rulemaking from an outgoing administration. The existence of the CRA makes that very unattractive for the Obama administration to try in its last month.”
This is because if a late-breaking rule were to be repealed under the Congressional Review Act, it might never be rewritten. Even so, the Obama administration has issued a number of highly publicized rules in November and December, including controversial regulations for oil and gas operations and the coal industry.
One reason may be that the process required under the Congressional Review Act isn’t easy. In fact, it has only been completed successfully one time, in 2001, when Congress used it to repeal an ergonomics rule enacted under the Clinton administration.
The usual stumbling block is that the president has the power to veto the resolution, and most presidents are unlikely to overturn regulations that their own administrations have passed. But when a presidential transition occurs, and both the White House and Congress end up controlled by the same party, the law suddenly becomes a potent threat. In fact, this is what happened in 2001 — a Republican Congress submitted the resolution, and President George W. Bush signed it shortly after taking office.
That means we’ve barely seen this tool used before — but now, with similar circumstances coming into play again, it may become a much more widely used mechanism, at least for a period in early 2017.
With both the White House and Congress controlled by the Republican Party following the presidential inauguration Jan. 20, and thanks to the way the legislative calendar is set up, dozens of rules enacted under the Obama administration in 2016 will still be subject to the Congressional Review Act after Trump takes office.
While the law only allows Congress 60 “legislative days” to issue a joint resolution of disapproval, starting from the date the rule is submitted, legislative working days tend to be spread out all over the calendar for both the House and Senate (here’s a draft of last year’s House calendar, as an example). And if Congress adjourns before the 60 days are up, the countdown starts all over again on the 15th day of the new session. This is what would be happening in the current case, as the new Congress begins its work.
This means the real-time deadline for Congress to issue a resolution under the Congressional Review Act can actually stretch out for months. While the legislative calendar for 2017 is still subject to change, experts generally estimate that any rules issued by federal agencies — not just environmental ones — from June 2016 on could be targeted. This comes out to about 150 or so rules at risk, according to Susan Dudley, director of the George Washington University Regulatory Studies Center.
That said, she told The Washington Post by email that she “would not expect [the Congressional Review Act] to overturn more than a half-dozen rules.” This is because the law stipulates that only one rule can be targeted at a time — multiple rules can’t be bundled into one resolution — and because the process does take time in Congress. Even so, experts generally agree that at least a handful of resolutions could scrape through.
“I think you’d probably pretty quickly get to a list of maybe five to 10,” said Cass of the Manhattan Institute. “Maybe two or three on the environmental side that may be targeted.”
That’s if the current system remains the same. If the Midnight Rules Relief Act were somehow to become law, for example, then it would allow more regulations to be dismantled quickly by pooling them together.
For now, though, the Congressional Review Act in its current form is the biggest threat to recent Obama-era regulations. Exactly which rules are likely to be the biggest priorities for the new Congress is still largely speculative. Rep. Mark Meadows (R-N.C.), head of the House Freedom Caucus, has compiled a comprehensive list of rules, regulations and executive orders for the new Congress to consider for repeal in its first 100 days, which may be used to inform these deliberations. However, the complete list isn’t limited to rules eligible for targeting under the Congressional Review Act. And it surely lists far more rules than could actually be taken apart, given congressional timelines.
But experts say that a few rules may be especially high priorities. According to Sam Batkins, director of regulatory policy at the right-leaning American Action Forum, one likely target is a recent rule issued by the Interior Department that would prohibit coal-mining companies from engaging in activities that could permanently pollute streams and other drinking water sources. Several weeks ago, Senate Majority Leader Mitch McConnell (R-Ky.) blasted the rule as a “last-minute attempt to cement [an] effort against American energy and American jobs” and vowed to attempt to overturn it using the Congressional Review Act.
According to Cass, another likely priority may be a rule issued by the Interior Department in November, which would curb methane emissions from the oil and gas sector. A separate rule finalized in early June by the Environmental Protection Agency, which set new greenhouse-gas emissions standards for the oil and gas sector, is close to the cutoff point for rules that may be targeted under the Congressional Review Act, but may also be a prime target if eligible, Cass said.
He noted that, although the new Congress will have other responsibilities on its plate in the coming weeks, the Congressional Review Act is still a tool to be taken seriously this time around — and even five or 10 regulation at risk of being overturned in this way is a substantial number, given the amount of time it can take Congress to repeal a rule through other channels.
“Everyone is in agreement that a good number of these can be moved through within the relevant time period,” Cass said. “And that they are not likely to really interfere with the other things Congress wants to get done.”