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By Dean Scott
Republicans long supportive of rolling back regulations are making good on their threat to quash Obama era rules after the GOP scored a trifecta by winning the White House and holding control of Congress.
The Republican-controlled House is moving at a rapid clip, voting over the last two weeks to nullify a half-dozen rules issued in the waning months of President Barack Obama’s presidency—three of them energy or environment related—under a rarely used 1996 law, the Congressional Review Act.
The Senate also is proving surprisingly agile given its traditionally lumbering pace, voting to nullify two of the regulations the House voted down. Both chambers have passed a resolution that would nullify the Interior Department’s stream buffer rule, the coal mining industry’s top regulatory target. And any resolutions nullifying regulations that pass Congress will almost certainly be signed into law by President Donald Trump.
“There’s plenty of material out there, believe me,” Sen. John Thune (R-S.D.) told Bloomberg BNA. “And I think we could keep very busy just processing CRAs.”
And they are not done yet: on the horizon are resolutions introduced to roll back Environmental Protection Agency rules limiting air pollutants that cross state lines; EPA requirements for risk management plants to prevent chemical releases; and Interior Department rules curbing drilling in the Arctic. Those and other rules being targeted were completed in Obama’s last six months, which makes them vulnerable to challenge under the review act’s look-back procedures.
It’s an extraordinary pace given the Clinton-era law has been used only once, when a Republican-led Congress joined forces with a newly inaugurated Republican president, George W. Bush, to repeal a job safety ergonomics rule in 2001.
The congressional move against regulations, along with executive orders and other deregulatory actions readied by the Trump White House, suggest a roll back of environmental and other regulatory requirements not seen since the Reagan era.
Republicans in both chambers have set their sights higher, introducing dozens more disapproval resolutions over the last few weeks. Some however quietly concede their early plans for taking down hundreds of rules completed in Obama’s waning months now seem a bit ambitious in light of the CRA’s 60-day window for using its expedited procedures for quick up and down votes on rules.
Thus far, the Senate has slotted in CRA votes on regulations, including as much as 10 hours of debate, in spots between confirmation votes, essentially running those votes in “parallel tracks,” Sen. John Barrasso (R-Wyo.) told reporters recently. But “each of these regulations individually has to take time off” the clock in the Senate, he said.
But the Wyoming Republican maintains Congress can move more than 100 resolutions to repeal major rules under the CRA—essentially those costing the economy $100 million or more annually—even accounting for Democrats who he expects to “throw wrenches in the mix.”
“I would expect that folks that are opposing those [regulatory repeal] efforts, the minority party, may try to throw wrenches in the mix” before the CRA’s 60-day deadline for using its fast-track procedures to kill rules, he said.
House and Senate tallies of session or legislative days differ but essentially the chambers have until late May or into June to target regulations using the law’s expedited procedures.
“I’m an orthopedic surgeon,” Barrasso said. “I’m used to working nights and weekends. I’m happy to be here all night and all weekend to use” the CRA to repeal rules, he said.
But predictions of college-era all-nighters—like those from Sen. Roger Wicker (R-Miss.), who suggested to Bloomberg BNA in January the Senate might need to work “24/7” and “bring cots in” given the number of rules needing repeal haven’t panned out, at least not yet.
Actually, the senators pulling all-nighters of late have been instead Democrats, who have sought to delay many of Trump’s top Cabinet picks.
Outgunned Democrats and their allies within environmental and public health groups can only watch in dismay at the dismantling of environmental and other regulations that in some cases were developed over eight years of Obama’s presidency.
Some environmental groups vow however that they will ultimately challenge the congressional repeal of rules in court, though the law itself includes specific language that was intended to bar judicial review.
Even in the Senate, where Republicans have a slim 52-48 majority, Democrats have few weapons to defend regulations given the CRA allows rules to be voted down with just a 51-vote majority. The Senate’s Feb. 2 vote to kill Interior’s rule restricting the dumping of mining waste in streams, the chamber’s first on a CRA resolutions this year, also saw four Democrats crossing party lines to vote down the rule: Sens. Joe Donnelly (Ind.), Claire McCaskill (Mo.), Heidi Heitkamp (N.D.) and Joe Manchin (W. Va.). A lone Republican, Maine Sen. Susan Collins, voted no on the resolution.
Democrats enter those midterm elections at a huge disadvantage because they will be defending 25 seats; Republicans must defend just eight. Senate Republicans are relishing the prospect of forcing Democrats up for reelection two years from now to vote again and again on regulations their Democratic president moved through the pipeline. All four Democrats voting with Republican to kill the stream protection rule face 2018 reelection contests in states Trump handily won on Election Day.
“The ones that are the most vulnerable, everybody knows who they are,” Republican Sen. Jim Inhofe (Okla.) told Bloomberg BNA last week. “And if you don’t know who they are, you can tell—by the way they vote.”
Michigan Sen. Debbie Stabenow, also up for election in two years, is among those vulnerable Democrats in 2018, the bulk of whom still voted no on repealing the stream protection rule. “Our interest is in making sure that public health, the ability to drink the water and breathe the air and enjoy workplace safety” are preserved, she told Bloomberg BNA. “We want to make sure those things are, in fact, protected if at all possible.”
House Democrats have even fewer weapons other than alerting public health and environmental groups of the next round of resolutions or defending the regulations in floor debated.
“We alert all of our environmental friends that this is serious business [and that] they need to keep an ear to the ground” Rep. Grace Napolitano (Calif.), the top Democrat on the House Transportation and Infrastructure Subcommittee on Water Resources and the Environment, told Bloomberg BNA.
But what can Democrats do in the end to repel such attacks, she was asked. “We can keep our fingers crossed and pray.”
But House leaders can see the obvious: a bottleneck looming in the Senate. Largely consumed with Trump Cabinet confirmations that have been slowed by Democrats, Senate Majority Leader Mitch McConnell (R-Ky.) has only been able to pass just two resolutions.
Although it’s early, at that pace, the Senate is essentially repealing one rule for every three the House has voted to nullify.House Natural Resources Committee Chairman Rob Bishop (R-Utah) told Bloomberg BNA his committee alone could ready between 50 and 60 resolutions targeting regulations. But even that number may be on the high side, he said, because Republican leaders in the House at some point will grow wary of taking up floor time on resolutions that pile up and may not get a vote over in the Senate.
“The question is not necessarily how many [rules] we’d want to roll back. It’s how much time the Senate has to pick ‘em up,” said Bishop, who has had a hand in getting the House to roll back several rules already including Interior’s stream buffer, methane flaring and land use planning rules.
“It’s simply the concept that if the Senate can’t handle anymore, we’re not going to waste our time passing them over here ,” Bishop said.
Mike Long, a spokesman for House Majority Leader Kevin McCarthy, said the Republican leadership is aware of the bottleneck concern. But House Republicans still intend to resume CRA efforts to repeal rules when members return the week of Feb. 13, Long told Bloomberg BNA.
“We’re going to [take up] some when we come back, but I don’t know that we’ve finalized the list,” he said, adding House Republicans are “going to do as many as we can” in the months ahead.
On deck are two resolutions: H.J. Res. 69, to repeal Interior Department restrictions on certain hunting practices in National Wildlife Refuges in Alaska, introduced by Rep. Don Young (R-Alaska) and H.J. Res. 43, targeting Health and Human Services requirements related to Title X requirements. Both are slated to be taken up Feb. 14 by the House Rules Committee, essentially the last stop before floor consideration.
Two other resolutions targeting Labor Department regulations (H.J. Res. 66 and H.J. Res 67) are going before the House Rules panel Feb. 13.
Other CRA resolutions to nullify regulations waiting the wings include:
“Look, they are going to have to fill floor time with something while working out health care” issues that are complicating GOP efforts to repeal and replace Obamacare, said one Democratic aide with the House Natural Resources Committee. “And it’s certainly good for their base.”
But House and Senate leaders ultimately will have to balance further demands for regulatory repeal over the next three months or so against other issues competing for floor time, including a mid-March expiration of the debt ceiling limit, always a rancorous issue. There also may be diminishing returns in targeting lesser-known regulations; several of the coal mining industry’s top targets for example have already been voted on in either the House or Senate.
Republicans have a ready response: the CRA isn’t the only game in town when it comes to rolling back regulations. “We’re very much looking at what we can tackle in terms of using the CRA—but just keep in mind there are other tools in our box to address regulatory matters,” AshLee Strong, press secretary for House Speaker Paul Ryan (R-Wis.), told Bloomberg BNA.
“Just to be clear, a president can do relief from regulations through executive action,” she said, noting that White House action on regulatory matters swings both ways.
Much of what Obama put in place, either through executive orders or regulatory actions taken by the EPA and other agencies, will be under close scrutiny by the new administration, Strong said. “Anything put into place from executive action can most likely be undone via executive action.”
Wyoming’s Barrasso said the administration will likely have to take the lead in weakening environmental rules ranging from carbon pollution limits for power plants to a Clean Water Act rule expanding federal jurisdiction over certain waterways. “We’ll have new cabinet members who may take another look at those regulations and may want to do a different interpretation,” the senator said.
Whether the campaign to nullify rules using the CRA runs out of steam or not, Republicans and industry groups note that they are almost certain to make history in this sense: The CRA has been deployed successfully only once since its passage more than 20 years ago. The House and Senate together are likely to add scores of rules to that pile in the months ahead.
They couldn’t do so without a president who will sign such resolutions, however. Obama’s White House repeatedly threatened to veto CRA resolutions advanced by Republicans during his eight-year tenure. Congressional Republicans moved five resolutions, of which three targeted major environmental rules, including EPA limits on power plant carbon pollution. But all ran into a firewall of Obama veto threats.
By contrast, Trump’s White House, in its first statement of administration policy on CRA resolutions moving through Congress, put out the welcome mat for the first round of deregulatory measures as they moved through the House. The White House said it “strongly supports” House efforts “to begin to nullify unnecessary regulations imposed” on industries, particularly those viewed as a threat to the coal industry, which Trump vowed to revive during the campaign.
The White House, in its statement of administration policy, stressed that the new administration “is committed to reviving America’s coal mining communities, which have been hurting for too long.”
In a sign of things to come, Trump has already issued one executive order calling for the elimination of two existing regulations for every new one brought forth by agencies in his administration. But public interest, environmental and labor groups have already challenged the Jan. 30 order in court, arguing that it is in conflict with and threatens public health and safety protections provided under other laws.
Environmental and public health groups say it may sound like a long shot, but insist there may be a chink in the armor of the congressional rollback strategy now underway: the CRA has been so seldom used, there’s no consensus on what the 1996 law meant in declaring that rules once nullified by Congress can’t be issued again in “substantially the same form.”
Yogin Kothari, Washington representative with the Union of Concerned Scientists’ Center for Science and Democracy, asks which law the EPA should follow in a situation where Congress sets aside an air pollution regulation: the resolution nullifying the rule, or the Clean Air Act, which specifically directs the agency to address pollutants?
Environmental groups from the Sierra Club to the Environmental Defense Fund to the Natural Resources Defense Council all have been researching the CRA, in some cases for years, poking for vulnerabilities should they have to fight rollbacks in court.
Industry groups argue to the contrary that Congress in drafting the CRA could not have more clear in expressly prohibiting judicial review of congressional actions to nullify regulations. Section 805 of the CRA states that no “determination, finding, action, or omission” [under this chapter] shall be subject to judicial review.”
“Two federal appeals courts and several federal district courts have examined this section and determined that it unambiguously prohibits judicial review of any question arising under the CRA,” according to a Nov. 17, 2016, Congressional Research Service report, “ The Congressional Review Act: Frequently Asked Questions.”
Environmental and public interest groups say the campaign to nullify various regulations relies on industry arguments that often inflate compliance costs and economic impacts for regulations and are tallied by the U.S. Chamber of Commerce and conservative think tanks such as the Heritage Foundation and the Competitive Enterprise Institute.
McCarthy, the majority leader, often cites a CEI figure that puts the total cost of rules at about $1.89 trillion—or 10 percent of total gross domestic product—which he notes comes out to a cost of $15,000 for every American household. But those figures don’t typically account for benefits provided by rules, or take into account new technologies and industries that emerge as a result of regulations, such as pollution control technologies.
Lisa Heinzerling, professor at Georgetown University Law Center who advised former EPA Administrator Lisa Jackson on climate policy, says unfortunately the debate over regulatory burdens “is often not framed in a reasonable or even honest way. All too often, in fact, the debate recklessly ignores the many benefits of regulation and inaccurately reports its costs,” she said at a Feb. 1 regulatory hearing before the Senate Commerce, Science and Transportation Committee.
“The specific numbers change from time to time, but the game remains the same” for regulatory opponents, Heinzerling said, which is to make regulations “look outlandish by claiming costs and consequences,” she said, “that are not real.”
—With assistance from Rachel Leven in Washington, D.C.
To contact the reporter on this story: Dean Scott in Washington D.C., at DScott@bna.com
To contact the editor responsible for this story: Larry Pearl at email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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