By Rachel Leven
House Republicans for the first time this congressional session employed the Congressional Review Act to target an Environmental Protection Agency rule. The rule is aimed at reducing methane emissions from new, modified and reconstructed oil and gas wells.
If passed by Congress and signed after Donald Trump becomes president, the joint resolution of disapproval ( H.J. Res. 22) introduced by Rep. Scott Perry (R-Pa.) on Jan. 6 would negate the EPA rule and bar the agency from creating a rule that is substantially similar to it in the future.
However, it isn’t clear if the EPA sent the rule to Congress or published it in the Federal Register in the timespan spelled out in the CRA. This begins to pull at the thread of several unknowns about the practical aspects of the review act.
“There’s no experience—no case law—that interprets this act,” William Yeatman, a senior fellow for the Competitive Enterprise Institute, told Bloomberg BNA.
The methane rule is one of several rules environmentalists expected to come under fire in the new Republican-dominated Washington. Congressional Republicans have vowed to use the review act, which only has been successfully used once on a workplace ergonomics rule, as part of its toolbox to roll back what many of them call regulatory overreach by agencies such as the EPA.
Environmentalists also have prepared for battle to protect rules developed to address global warming and health issues, potentially in court.
Methane emissions, the emissions focused on by the EPA rule ( 81 Fed. Reg. 35,824), are more than 25 times more potent than carbon dioxide emissions and nearly one-third of those emissions come from the oil and gas sector. Entities such as the American Petroleum Institute already are challenging the EPA over the rule—published in the Federal Register on June 3—in the U.S. Court of Appeals for the District of Columbia Circuit.
The rule that H.J. Res. 22 would eliminate requires owners and operators of these wells to put together leak monitoring plans and an initial leak survey within a year or within 60 days of startup, as well as twice annually after that. The resolution was referred to the House Energy and Commerce Committee.
Yeatman declined to speak on whether the enterprise institute, a free- market group, will lobby on this resolution. But he said that, broadly speaking, the group supports rolling back Obama administration EPA rules.
Reid Porter, a spokesman for the American Petroleum Institute, told Bloomberg BNA in an e-mail the industry’s methane emissions have dropped significantly in recent years: “We need sound public policies that don’t discourage innovation and investment for meeting our future energy demands.”
Environmentalists previously expressed concern about and vowed to fight rollbacks under the review act due to its permanent nature—lawmakers not only are rescinding the rules themselves, but blocking “substantially similar” rules from being proposed in their place. This means these steps identified and deemed appropriate by a given administration to protect the public and the environment would be blocked forever, and those public health issues could remain unaddressed.
Some environmentalists such as Yogin Kothari, Washington representative for the Center for Science and Democracy, also are specifically concerned about rollbacks under the Clean Air Act because of the possible ramifications. “We don’t want to get in a position where the EPA doesn’t use the Clean Air Act to regulate,” Kothari told Bloomberg BNA. “That’s huge. That could set us back a lot.”
But is this rule within the Congressional Review Act’s reviewable deadline? The review law allows the new Congress to address rules that were sent to the old Congress or published in the Federal Register within 60 working days of the end of old session.
Senate Majority Leader Mitch McConnell’s (R-Ky.) office told Bloomberg BNA in an e-mail that the cutoff date for whether a rule can or cannot be considered under the review act is on or around June 13. The Congressional Research Service gave a similar date of June 13 in its most recent report on what rules were vulnerable under the review act.
The office of House Speaker Paul Ryan (R-Wis.) and the House’s Office of the Parliamentarian didn’t respond to Bloomberg BNA’s e-mails requesting comment on the date.
However, Yeatman said that whether this rule is in the appropriate time frame—like many other parts of the review act—is “an open question.”
The law has only been successfully used once on a Labor Department ergonomics rule in 2001, and that rule has never been reintroduced. That’s left a lot of questions, including what constitutes a “working day” in Congress. Depending on how the law is interpreted, he said the rule could be inside or outside of the deadline. Are pro-forma days, where the chambers hold brief meetings that can be just a few minutes, considered working days under the review act?
“We don’t know,” he said.
Yeatman said the first interpreter of this portion of the review act will likely be the Office of the Parliamentarian in the respective House or Senate. But that may not be the final word. If it’s judicially reviewable, the courts could also take a stab at it, he said.
But whether review act actions are judicially reviewable is also unclear, he said.
(Dean Scott contributed to this report) .
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