The first target is a rule published in early June by the Environmental Protection Agency imposing stricter greenhouse gas emissions standards on oil and gas operations. The second is a rule just issued by the Interior Department last month prohibiting coal-mining companies from conducting any activities that could permanently pollute streams and other sources of drinking water. Both rules were met with immediate opposition from Republicans, and before the new Congress even convened, experts were speculating that they would be high priorities for repeal under the incoming Trump administration.
What happens to the rules now will depend on whether the resolutions make it through Congress — and whether President-elect Donald Trump signs them once in office.
The proposed resolutions take advantage of an obscure law known as the Congressional Review Act, or CRA, which allows Congress a period of 60 legislative days from the time a rule is published to overturn new federal regulations via a “joint resolution of disapproval” (if Congress adjourns before the 60 days are up, the countdown starts over again on the 15th day of the next session). If the resolution is signed by the president, the targeted rule is immediately repealed — and, even more importantly, may not be issued again in “substantially the same form” unless explicitly authorized by a new congressional law.
But while it packs a hefty punch, the CRA is a notoriously difficult procedure to pull off — in fact, it’s only been used effectively once since it was enacted in 1996. That’s because the president holds veto power over any joint resolution of disapproval submitted, and presidents are rarely inclined to overturn rules their own administrations have written.
But this year, experts say special political circumstances have given the law a rare potency. A presidential transition is occurring, bringing the White House and Congress under the control of the same party — and, notably, not the party that has been issuing rules for the past eight years. This means a Republican Congress could issue joint resolutions of disapproval on late-breaking rules enacted under the Obama administration, which Trump may be likely to sign.
Because legislative days tend to be spread out, and because Congress often adjourns before the allotted time period is up, the total period open for action under the CRA can often drag out for months in real time. In this case, the Congressional Research Service has pegged June 13 as the cutoff date for rules issued by the Obama administration that may be subject to repeal under the CRA.
That means it’s likely the resolution targeting the EPA emissions rule, published on June 3, 10 days before the cutoff date, will not be permitted to proceed. The resolution was introduced by Rep. Scott Perry (R-Pa.) on Jan. 6, right at the start of the new Congress — at the time, there may still have been some confusion about the CRA cutoff date, said Sam Batkins, director of regulatory policy at the right-leaning think tank American Action Forum. Even now, he says, the Office of the Parliamentarian, which provides the House with guidance on rules and procedures, will give the final word on the cutoff — although now that Congress is in session and the calendar has started over, the June 13 date appears fairly set in stone.
This means there’s a good chance the EPA rule will be safe after all, and House Republicans will probably soon abandon that resolution in favor of something else. “If they realize that the rule is not eligible, they’re not going to waste their time going to the floor with a resolution that won’t be ruled,” Batkins said.
The Interior Department’s stream protection act, on the other hand, was published well within the time limit for a rule to be addressed via the CRA. It’s actually been targeted by two resolutions already — one introduced on Jan. 3 by Rep. Evan Jenkins (R-W.Va.) and the other introduced Jan. 4 by Rep. Doug Lamborn (R-Colo.). Both have been referred to the House Committee on Natural Resources.
The CRA dictates that up to 10 hours of debate may be allotted for joint resolutions of disapproval in the House, Batkins noted, although less time may be spent on any one. If the resolution passes a vote in the House, it generally gets an easier time in the Senate, where the law dictates that it may not be subject to filibuster. In the only previous instance the CRA was successfully used to repeal a regulation — an ergonomics rule passed by the Clinton administration and nullified in 2001 under President George W. Bush — the resolution was introduced on March 1, passed in the House on March 6 and in the Senate on March 7, Batkins said.
He suggested that if Congress were to devote an entire week to nothing but CRA action, it could potentially move as many as three or four resolutions a day. However, experts have generally suggested that between five and 10 rules in total is the most reasonable number of regulations likely to be addressed in this way.
While the stream protection act is an early target — and one that has been subject to talk of repeal among Republican lawmakers since it was published — Batkins added that there’s probably still some coordination to be done among Republican members of Congress and the incoming Trump administration before a set list of CRA targets is finalized.
“They need to work out a timing between the House and the Senate and the list of rules with the administration,” he said. “They don’t want the House and the Senate to pass a resolution of disapproval and it be vetoed by the president.”
However, there are still a few environmental rules experts say they believe are probably on the shortlist for repeal. One of these is a regulation issued in November by the Interior Department that would curb excess methane emissions from oil and gas operations on public lands. It’s the other major emissions regulation for the oil and gas sector finalized in the past year besides the already targeted EPA rule.
The possible repeal of either the emissions rules or the stream protection act has sparked concern among environmentalists, especially with the prospect that no substantially similar rules could be issued in their place once nullified under the CRA.
“We’re not surprised that this is where members of Congress have decided to put a lot of their energy,” said Josh Mantell, energy campaign manager for the Wilderness Society. “But it would be a shame to really prioritize the fossil fuel industry — oil and gas and coal — ahead of the needs of the American taxpayer and the health of the American people.”