Congressional Review Act Now Has Some Teeth

With Republicans controlling the House of Representatives, the Senate, and the Presidency, the Congressional Review Act (“CRA”) may provide the basis for killing significant regulations.  The CRA is over 20 years old, but has only been effectively used once, in 2001.  Republican congressional leaders have indicated that they intend to use the CRA to kill many environmental regulations issued late in President Obama’s term.

CRA Allows Congress to Kill Regulations

The CRA became law in 1996.  It calls for Congress to review significant regulations.  Within a specified time, Congress can invalidate a regulation with a disapproval resolution that passes the House and the Senate and is either signed by the President or is passed by a two thirds majority of both houses to override a veto.  The time for disapproval is 60 legislative days, a provision that has created some uncertainty as to which regulations remain candidates for disapproval.  Still, certain key EPA regulations are clear candidates for CRA disapproval.

Once disapproved under the CRA, the regulations are not in effect.  Even if a regulation became effective prior to CRA disapproval, the effect of the disapproval is to treat the regulation as never having been done.  Warning: If the CRA kills a regulation that amends a prior regulatory provision, that prior provision goes back into effect.

Environmental Regulations Will Get CRA Consideration

One or both houses of Congress have already passed resolutions disapproving of these regulations: a Department of Interior rule relating to coal mining; a Securities and Exchange Commission rule that requires companies in the extraction industries to disclose additional financial information; and a Bureau of Land Management Rule relating to methane capture from oil and gas wells.  President Trump is expected to sign and make effective any disapproval passed by this Congress.

Other regulations reported to be under CRA consideration include:

  • Process Safety Management (PSM) Rule;
  • Greenhouse Gas (GHG) Reporting Rule (Petroleum and Natural Gas Systems);
  • GHG Aircraft Finding;
  • GHG Standards for Medium and Heavy Duty Engines and Vehicles; and
  • Hazardous Waste Export-Import Revisions.

CRA Not Subject to Cloture

One key reason to expect more CRA activity at this time is that the Senate’s “cloture” rule does not apply to CRA resolutions.  For most legislation and for Supreme Court confirmations, the Senate’s “cloture” rule requires 60 votes to end debate, effectively requiring 60 votes to pass legislation or to confirm.

For CRA resolutions, cloture does not apply and the Senate can vote to kill regulations with a simple majority.  With the Republicans having 52 seats in the Senate, they will need some Democratic support in order to pass most legislation, but they will be able to kill regulations just with Republican votes.

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