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By Paul R. Elliot, Scott Janoe and Cory Sweers
Baker Botts partners Paul R. Elliott and Scott Janoe, and associate Cory Sweers, are based in the firm’s Houston office. Mr. Elliott is firmwide tax litigation practice chair, and may be reached at 713.229.1226 or email@example.com. Mr. Janoe is environmental deputy department chair for the firm’s Houston office, and may be reached at 713.229.1553 or firstname.lastname@example.org. Mr. Sweers can be reached at 713.229.1663 or email@example.com.
Enacted in 1996, the Congressional Review Act (the “CRA”) is a law that allows Congress to roll back rules and regulations promulgated by federal agencies in certain circumstances, and prevents agencies from reissuing “substantially the same” rules in the future. Though little used prior to 2017, after President Donald Trump’s election, the CRA received increased attention as a means to roll back “midnight rules” promulgated in the final days of President Barack Obama’s administration.
This year, congressional Republicans have already used the CRA 13 times to repeal rules published in the final months of the Obama administration. These actions rolled back significant environmental rules and regulations impacting the oil and gas and mining industries. But the window to repeal “midnight rules” is closing. For rules that were finalized between June 13, 2016, and January 3, 2017, the deadline for a CRA resolution to be introduced in Congress passed on March 30, 2017, and the deadline for pending resolutions to be voted on is May 9, 2017.
However, what has received less attention is the fact that CRA does not only apply to “midnight rules.” Instead, the CRA also allows Congress to roll back a broader category of rules promulgated at any time since the CRA’s 1996 enactment but not submitted to Congress as required by the CRA. And as a result of how broadly the CRA defines a “rule,” thousands of agency pronouncements that were never submitted to Congress potentially fall within this category and remain subject to repeal under the CRA.
This article reviews the relevant provisions of the CRA, explains the types of federal agency actions that fall within the CRA’s scope, and offers examples of significant agency rules and pronouncements that are currently and potentially subject to repeal under the CRA. While the actions taken by Congress under the CRA have not been tested yet in the courts, the CRA appears to be a powerful (if controversial) tool for repealing significant environmental and other agency rules.
The Congressional Review Act of 1996 provides a special procedural mechanism by which Congress can overturn rules promulgated by federal agencies. Under the CRA, a “rule” is not limited to final agency rules but instead is defined with reference to the Administrative Procedure Act as an agency statement of general applicability and future effect “designed to implement, interpret, or prescribe law or policy.”
This broad definition can include a variety of agency statements, such as guidance documents, interpretive rules, policy manuals or anything similar, and it does not matter for purposes of the CRA whether the “rule” was published in the Federal Register.
The CRA provides that, “Before a rule can take effect, the federal agency promulgating such rule shall submit the rule to each House of Congress and the Comptroller General a report containing—(i) a copy of the rule; (ii) a concise general statement relating to the rule, including whether it is a major rule; and (iii) the proposed effective date of the rule.”
Once a rule is submitted to Congress, Congress then has 60 legislative days for the House of Representatives, and 60 session days in the Senate, to pass a joint resolution of disapproval using certain expedited procedures. This 60-legislative day period begins to run from the later of the date the rule was published in the Federal Register or was submitted to Congress. However, if a rule is submitted to Congress within 60 legislative or session days of the adjournment of a session of Congress, the succeeding session of Congress gets an additional 60-legislative/session day period to review the rule. This new period begins on the 15th legislative/session day of the new session.
Notably, these procedures exempt joint resolutions of disapproval from a Senate filibuster, and instead provide for a maximum of 10 hours of debate. Once a joint resolution of disapproval is passed by both houses of Congress and signed by the president, the rule is void. In addition, such a rule may not be reissued “in substantially the same form,” nor may a new rule be issued that is “substantially the same,” unless specifically authorized by a law enacted after the joint resolution of disapproval. This feature of the CRA provides a check on future agency actions that a mere executive repeal of the same action would not because it essentially requires a new act of Congress (signed by the president) to bring back the disapproved rule.
However, the definition of what qualifies as a “substantially similar” rule has not yet been considered by the courts and thus it is unclear how this provision of the CRA would be applied.
In the past, attempts to use the CRA to repeal rules have been limited to rules enacted in the last months of a departing president’s term. However, the CRA potentially could be applied to an additional category of rules—those that were never submitted to Congress. This is because the CRA provides that the 60-legislative/session day clock begins to run from the later of the date the rule was submitted to Congress or the date the rule was published in the Federal Register. Thus if a “rule” as defined under the CRA was never submitted to Congress, the clock has not yet started for Congress to consider the rule under the CRA’s expedited procedures.
As a result, agency actions taken since the CRA became effective on March 29, 1996, that were not submitted to Congress and meet the CRA’s broad definition of a “rule” potentially remain subject to repeal by the CRA’s expedited procedure.
In the CRA’s 20-year history, it had been used only once to overturn a final rule—a 2000 Occupational Safety and Health Administration (OSHA) rule setting workplace ergonomic standards. However, this year the CRA has been used at least 13 times to overturn rules passed in the last few months of Obama’s term. For example, the CRA procedure was used to repeal the “Stream Protection Rule” promulgated by the Department of the Interior in December 2016, as well as a Securities and Exchange Commission rule requiring disclosures of payments to foreign government by for the purpose of developing oil, gas or other minerals.
Based on the ways legislative/session days are counted, the current 115th Congress has the opportunity to use the CRA’s expedited procedures to repeal rules that were submitted to Congress in the latter half of 2016. Of the resolutions of disapproval currently pending, all of them appear to target rules promulgated within this “look-back window.” Examples of rules within this window that are subject to repeal by means of the CRA’s expedited procedures include the following:
However as discussed above, other rules outside of the 60-legislative day look-back window may remain subject to repeal under the CRA if they were not submitted to Congress.
Indeed, a 2014 study by Curtis Copeland estimated that approximately 1,200 final rules covered by the CRA were probably not submitted to Congress in 2012-2013 as required by the CRA. And a Brookings Institution report by Philip Wallach and Nicholas Zeppos published in April 2017 estimated that as many as 348 significant rules (i.e. rules with costs or benefits greater than $100 million) were not submitted in compliance with the CRA. But unlike rules within the look-back window, identifying rules or agency pronouncements that potentially fall under this aspect of the CRA is more challenging because there is not a published comprehensive list of rules that were not submitted to Congress.
One method is to search the GAO’s CRA database which contains all rules that were submitted to the GAO by federal agencies. Since the CRA provides that agencies must submit rules both to Congress and the GAO as part of its procedures, one can check the GAO’s database as a proxy to determine whether a particular rule was likely submitted to Congress as required by the CRA. Examples of agency pronouncements that probably meet the definition of a “rule” under the CRA that were not found in the GAO’s database include the following:
If Trump wished to overturn these types of rules, the President could either simply direct the agency to withdraw the action, or direct the agency to submit the rule to Congress for consideration. Once submitted to Congress, according to the plain language of the CRA, Congress would have the option of using the CRA’s expedited procedures to repeal these types of rules. Taking the CRA route would have the advantage of preventing the agency from enacting the same or a “substantially similar” rule again without a subsequent authorizing act of Congress, instead of merely withdrawing the rule by executive action, which could be more easily reversed by a subsequent administration.
With the Republican Party in control of the White House and both houses of Congress, the CRA has already been employed several times to repeal rules promulgated at the end of the Obama administration. However beyond “midnight rules” such as these, the CRA could potentially be used to repeal agency actions since 1996 that meet the CRA’s broad definition of a rule but were not submitted to Congress.
While President Trump and Congress have not yet sought to repeal any rules not submitted to Congress under the CRA, given the Trump administration’s expressed skepticism about the number and scope of federal regulations, it is quite possible that the CRA could be used in this manner to repeal a wider range of agency actions. While such controversial actions will no doubt lead to court challenges, it is not yet clear what arguments will be offered to overturn legislative action approved by Congress and signed by the president.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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