WASHINGTON, Jan. 10, 2017 -- President-elect Donald Trump has made clear he plans to make good on his campaign promises to undo major parts of President Obama’s regulatory agenda. But that could be heavy lifting for the executive branch, requiring a time-consuming notice-and-comment process that could take many months or years to complete.
So, many in the agriculture and energy sectors are looking to Congress to take steps that could block enforcement of several rules, or even kill them. The surest, and quickest, way to repeal a rule is through the use of the Congressional Review Act, a 21-year-old law that gives Congress a defined time period to vote down new regulations.
The CRA has been used successfully just once, in 2000, to kill OSHA ergonomics standards imposed by the Clinton administration. President Obama has vetoed five CRA resolutions, including measures aimed at killing the “waters of the United States” (WOTUS) rule and the EPA’s greenhouse gas limits on electric utilities. This year, there will be a GOP president in the White House who would sign a CRA resolution.
But major hurdles remain. A rule isn’t eligible for CRA review unless it was issued in the final 60 legislative days of the last Congress, which means any regulations finalized before the middle of last June won’t be affected. And while the CRA resolutions can’t be filibustered in the Senate – they only require a majority vote to be approved – getting a majority of the Senate to kill a regulation that is, say, seen as important to public health won’t be easy either.
House Majority Leader Kevin McCarthy, R-Calif., said on the House floor Jan. 4 that while leadership has not “determined what needs to be repealed first,” he expected that the initial targets would be the Office of Surface Mining Reclamation and Enforcement’s stream-protection rule, which is intended to prevent water pollution from surface coal mines, and the Bureau of Land Management’s rule to prevent methane venting, flaring and leaking from oil and gas operations.
McCarthy’s assertion that both rules “are limits to our energy production” was disputed by Rep. Raul Grijalva of Arizona, the top Democrat on the House Natural Resources Committee, who urged his colleagues in a Jan. 9 letter to oppose repeal efforts.
Other rules that are eligible for CRA include Farmer Fair Practices and SNAP retailer rules that USDA issued in December. FDA’s new Nutrition Facts Panel rule, which requires listing of added sugars, won’t be eligible for CRA action: FDA notified Congress of the rule a few days before the 60-day cutoff, June 13.
Also ineligible for CRA action: USDA’s catfish inspection program. It, too, was issued before the 60-day period. The Senate approved a CRA resolution killing the rule, but House GOP leaders refused to bring it to a vote because of opposition from Southern lawmakers.
Here’s a look at prospects for some Obama-era rules that could be targeted by Congress:
Farmer Fair Practices rule. It sets standards for proof of harm to producers by processors’ contracting practices. USDA’s Grain Inspection, Packers and Stockyards Administration (GIPSA) issued the rule in “interim” form, meaning that the agency is still considering public comment. But interim rules are still eligible for CRA actions in Congress. The National Pork Producers Council is organizing online letters urging Congress to repeal the rule. But the big question is whether there are enough votes to approve a disapproval resolution.
The rule has an important supporter in Senate Judiciary Chairman Chuck Grassley, an Iowa Republican who has long tangled with meatpackers over their market power, and other GOP senators could side with him.
Ferd Hoefner of the National Sustainable Agriculture Coalition doesn’t think the political will exists in Congress to kill the rule, despite strong opposition to it from the major livestock industry groups. “They would lose several GOP votes, and it is not clear how many (Democratic) votes they could sway to make up the difference – quite possibly none,” said Hoefner. “In the big scheme of CRA floor time (and nominations and all the rest), it would be a very unlikely candidate.”
USDA defends the rule by saying the previous interpretation of the Packers and Stockyards Act required a producer to prove that a company’s contracting practice caused harm across “the entire market.” Now, the rule is clarified to tell courts that a practice can be in violation of the PSA without the producer proving harm to industry-wide competition.
SNAP retailer rule. This rule, also finalized in December, increases the number of healthful products that convenience stores must offer if they participate in the Supplemental Nutrition Assistance Program. As first proposed, the rule came under heavy fire on Capitol Hill, but USDA scaled back the requirements, earning a positive response from House Agriculture Chairman Mike Conaway, R-Texas.
Previously, stores were required to have 12 qualifying items on shelves to be considered a SNAP retailer. USDA had proposed to bump that number to 168, but finalized a requirement of 84. Will lawmakers now want to kill a rule seen as helping to combat obesity among low-income people?
Anna Ready, director of government relations for the National Association of Convenience Stores, said her group isn’t seeking to stop the rule.
“USDA did a good job listening to and addressing concerns about the SNAP retailer rule,” said Margo Wootan, director of nutrition policy at The Center for Science in the Public Interest, a consumer advocacy group. “It is reasonable and shouldn’t be weakened further, but it could be,” she said.
Child nutrition. Many GOP conservatives would dearly love to undo the nutrition standards imposed on schools under the since-expired Healthy, Hunger-Free Kids Act (HHFKA). The Heritage Foundation has called for rolling back the standards, and the House Freedom Caucus includes them on its list of top priorities.
The last Congress was unable to pass a reauthorization bill that could have weakened the rules, and Senate Democrats can be expected to block any such legislation again this year. Moreover, USDA may have taken some of the political pressure off the standards Jan. 6 by announcing that a further reduction in sodium limits would be delayed until the 2018-2019 school year.
The chairman of the House Agriculture Appropriations Subcommittee, Robert Aderholt, R-Ala., posted a series of statements on his Twitter feed Jan. 6 that seemed to signal that he’s going to make a run at using USDA’s budget to at least delay the sodium reductions even further. “Congress made it clear in law that USDA cannot move forward with tighter sodium standards without the science to back up the changes,” Aderholt tweeted. He went on, “Let’s work with local schools to Make School Meals Great Again.”
But Aderholt acknowledged in an interview that USDA may have taken some of the political heat off the issue by delaying the sodium reduction. He said he would leave the door open to addressing the issue through an appropriations rider.
CSPI’s Wootan is concerned that Republicans could use the CRA process to kill the standards for snacks that are sold on school grounds, since a Smart Snacks rule was finalized last July, well within the timeframe for CRA eligibility. Heritage’s Daren Bakst, a specialist on food and agriculture policy, wants Congress to try to repeal the snack rule. “Congress needs to be aggressive in using the CRA, including when it comes to the federal overreach connected with the HHFKA,” he said.
But the top Democrat on the Senate Agriculture Committee, Debbie Stabenow of Michigan, told Agri-Pulse she doubts Republicans could pass a CRA resolution in the Senate. “I highly question it,” she said.
The School Nutrition Association, which represents school nutrition directors, says the rule “has forced schools to take many healthy school meal options off a la carte menus, unnecessarily limiting student choices and reducing revenue for school meal programs.”
Stream protection rule. This rule, which is due to become effective Jan. 19, the day before Trump takes office, is a prime candidate for repeal under the CRA. Under development for many years, the rule is designed to “prevent or minimize impacts to surface water and groundwater from coal mining,” according to the Office of Surface Mining Reclamation and Enforcement.
Coal-state lawmakers, however, have targeted the rule for CRA review. Republican senator Shelley Moore Capito of West Virginia, for example, said, “I am confident that we will be able to use the Congressional Review Act to stop this rule from taking effect.”
Capito and other legislators say the rule would harm both surface and underground coal mines and cause job losses in the already embattled coal industry. Rep. Morgan Griffith, R-Va., echoed Capito, saying the rule “is so unpopular that there will probably be many in Congress” who will support a CRA resolution to repeal the rule. (Grijalva is not one of them. In his letter to fellow Democrats, the Arizona congressman said the rule establishes “new protections and standards based on the latest science.”)
Chances are good they will at least get to vote on a CRA resolution, given statements from the leaders of the House and Senate. On Jan. 5, House Speaker Paul Ryan, R-Wis., said, “Without any real input from the states, the administration recently handed down regulations that could wipe out literally thousands upon thousands of jobs in coal country. We plan to put a resolution of disapproval on the new president’s desk to stop this rule.”
And Senate Majority Leader Mitch McConnell, R-Ky., also vowed to introduce a CRA resolution “to overturn this egregious regulation.”
Trump has said re-energizing the coal industry is one of his priorities.
BLM Planning 2.0. This rule, which overhauls the Bureau of Land Management’s planning process, also was released in December, and livestock groups and some Western states would like to get rid of it. Senate Energy and Natural Resources Chairwoman Lisa Murkowski, R-Alaska, told Agri-Pulse Tuesday that the rule is a good candidate for a CRA resolution.
The House Natural Resources Committee held two hearings on the proposed rule at which Republican members called on BLM “to go back to the drawing board” after hearing from stakeholders such as cattlemen and local governments.
They say the new process shifts too much authority to the federal government for developing resource management plans on BLM land, “ignoring the expertise at the ground level and the diversity of the government’s vast land portfolio across the U.S,” according to a committee spokesperson.
But BLM says it is “increasing public access at earlier stages in the process, including public input on the scope of the resource management plan,” according to the rule. Absent CRA review, a new regime at the Interior Department could propose to suspend implementation of the rule, accept public comment, and then propose a new rule.
Clean Power Plan. As with WOTUS, Congress approved a resolution to kill the CPP but Obama vetoed the measure. Both rules are now ineligible for further CRA action. The CPP could be upheld by the D.C. Circuit Court of Appeals, where judges may be trying to get a decision out before the Trump administration takes office and tries to change the government position – which is now to defend the rule.
That could be problematic, however: Career attorneys in the Justice Department and Environmental Protection Agency put forth staunch arguments in September in favor of the regulation, which is designed to reduce carbon emissions from power plants. And proponents, such as outgoing EPA Administrator Gina McCarthy, are fond of pointing out that states have already made significant progress implementing the CPP.
So, the clock is ticking, and players on both sides of the issue – including the electric utility industry, coal companies, environmental groups and the affected states – will be watching to see what the appeals court does.
No matter how the court rules – and the chances appear to be good that it will uphold the CPP – a petition to the Supreme Court appears likely. In the meantime, an EPA led by Scott Pruitt, Oklahoma’s attorney general and a big supporter of the petroleum industry, could begin the process of administratively rolling back the plan, but not without significant opposition from environmental groups.
Waters of the U.S. This is another case where an appeals court – in this case, the 6th Circuit Court of Appeals in Cincinnati – is at the center of the debate. But again, a new administration could decide that it wants to put a hold on the litigation and reconsider the matter.
That might be easier to do than with the CPP, since no argument has been held in the WOTUS case. Unlike the CPP, which was set up by EPA in cooperation with affected states and includes a totally new set of pollution reduction goals to combat climate change, the WOTUS rule is a joint EPA-Army Corps of Engineers effort (despite the Corps’ last-minute objections to the final rule) to interpret a long-debated definition in the Clean Water Act – what exactly is a “water” of the United States?
No matter what the administration decides, it will still have to decide where “waters” exist, on a case-by-case basis. Whether it is able to use the rule that is now in litigation, or agency guidance that the rule replaced, is the question. That means that controversy over the interpretation of the Clean Water Act will continue to bedevil farmers, ranchers, developers and other landowners who want to use property that might have a connection to waters of the U.S.
For more news, go to: www.Agri-Pulse.com