The 1996 Congressional Review Act, which allows Congress to repeal regulations it doesn’t like, was once a little-known, rarely used legislative tool.
That’s no longer the case.
At the beginning of the Trump Administration, a Republican Congress and the newly inaugurated President Donald Trump overturned 16 major rules promulgated by the Obama Administration, including a Bureau of Land Management land-use planning rule and a rule designed to protect waterways near surface coal mining operations.
Before that, only one rule had been overturned.
This election cycle, with Donald Trump’s poll numbers falling and a full handful of Senate Republican seats is in play, Democrats have an opportunity to hit the trifecta and end up controlling the White House, Senate and House. In control of both legislative branches and the executive branch, Democrats could reverse some major Trump administration rules, including a sweeping rewrite of National Environmental Policy Act regs and an Environmental Protection Agency rule on the use of science in decision-making that has been criticized by environmental groups and Democratic lawmakers.
The NEPA rule was published July 16; the science rule has been proposed but not finalized.
Other future rules that could be on the Democratic chopping block include regulations limiting Supplemental Nutrition Assistance Program eligibility, which have been under review at the Office of Management and Budget since February, and a rule on school meal nutrition standards that has been proposed but not yet sent to OMB.
Ferd Hoefner, senior strategic adviser at the National Sustainable Agriculture Coalition, also says it's possible, but unlikely, a USDA rule on payment limitations and eligibility for farm programs — at OMB since March — could receive congressional attention.
Asked about vulnerable rules, Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation, said, "I don’t think there will be any regulations that compare to either the Navigable Waters Protection Rule and NEPA."
The NWPR appears to be safe for now, according to Dan Goldbeck, a senior regulatory policy analyst at the American Action Forum, a “center-right group” that focuses on economic, domestic, and fiscal policy issues. In an online post last month, Goldbeck said the April 21 NWPR, which had looked to be vulnerable in May, moved into safe territory when the House convened for seven days in June, though some observers are still concerned it could be a CRA candidate, depending on how many days Congress convenes the rest of the way.
In February, EPA Administrator Andrew Wheeler said of the CRA, "We certainly want to be mindful of that, but I have every intention to be here for the next, at least three years, four years maybe. We're trying to get our regulations done as quickly as we can."
The CRA is “definitely an area to watch depending on what happens in November,” says Bridget Dooling, a research professor at George Washington University’s Regulatory Studies Center.
Goldbeck says he’s seen “a lot of pressure” to use the CRA.
“There are more on-the-record reports from Democratic leadership that this is a live option,” Goldbeck said, pointing to a July 17 New York Times piece in which a spokesman for House Speaker Nancy Pelosi said, “We are keenly aware of this statutory tool and are closely monitoring the harmful actions taken by the current administration.” Senate Minority Leader Chuck Schumer said much the same thing, and Biden pledged in a speech “to reverse Trump’s rollbacks of 100 public health and environmental rules.”
Which Trump rules are subject to the CRA, however, depends on when they were transmitted to Congress or published in the Federal Register. A “look-back provision” in the law “essentially dictates that any rule published within 60 session days of a Congress adjourning … then gets rolled over to the following Congress,” Goldbeck said in his post last month.
That means that by his calculations, any rule published after May 13 — such as the NEPA rule and anything published before the end of the current administration — is vulnerable to being overturned.
The COVID-19 pandemic is playing a role in the calculation of the 60-day period by limiting the number of congressional working days. The fewer days Congress is in session — including the “lame duck” period after the election — could have the effect of pushing the May 13 date earlier, which would make more rules eligible for CRA reversal.
It also could explain the Trump Administration’s desire to get as many rules as possible out the door, to limit use of the CRA.
Just because a rule is distasteful to certain groups or lawmakers, however, doesn’t mean it’s automatically vulnerable. “Some of the [rules] they get out might be attractive” to Democrats, says Paul Larkin, a senior research legal fellow at the Heritage Foundation, making votes on repeal difficult.
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And the CRA doesn’t allow for nuance. “CRA’s a really blunt instrument,” Dooling says, in that it targets whole rules. In other words, if they are given the opportunity, Democrats cannot pick and choose which parts of a rule they wish to keep and which to scrap.
That could mean some “very uncomfortable” votes for some representatives and senators, says James Goodwin, senior policy analyst at the Center for Progressive Reform.
Once a rule is repealed, the CRA prevents the agency that issued it from coming out with a “substantially similar” rule. That term is not defined in the law, and courts have failed to provide much guidance.
The result is that Democrats would have to winnow down the list of rules they want to go after. “Some rules are more problematic than others,” Dooling says.
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