August 1, 2021

Volume XI, Number 213

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July 29, 2021

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Democrats May Invoke Congressional Review Act to Reverse Recent EPA Rules

President Biden has pledged to review and reverse many Trump-era environmental policies, including numerous environmental rules. With Democratic majorities in the House and Senate, Congress and the President have the ability to invoke the Congressional Review Act (CRA) to reverse certain of these Trump-era rules. 

The CRA is a 1996 statute that establishes a process by which Congress can overturn “major” rules issued by federal agencies. The CRA defines major rules as those that have an annual $100 million or greater effect on the economy. Under the CRA, the newly convened 117th Congress will have a “lookback” period of 60 legislative days from the date a rule was published in the Federal Register to review the rule and vote on a joint resolution of disapproval. A simple majority in both houses of Congress is required for the measure to pass and be sent to the President. If the President then signs the joint resolution of disapproval, the rule cannot take effect, and the issuing agency would need express authority from Congress to promulgate any future rule that is “substantially the same.” Notably, no action taken pursuant to the CRA is subject to judicial review

Some progressives and environmental non-governmental organizations (NGOs) have been critical of the CRA in the past and are reluctant to invoke the CRA to overturn rules promulgated during the Trump administration. Criticisms of the CRA include its procedural shortcuts and an expedited process, which leave little opportunity for congressional deliberation. 

According to the George Washington University Regulatory Studies Center, the Environmental Protection Agency (EPA) published over 150 rules in the Federal Register during the last 60 legislative days of the 116th Congress. An executive order released on Jan. 20, 2021, identifies environmental regulations immediately targeted for repeal, suspension, or revision. The following environmental rules identified in the executive order were issued during the last 60 legislative days of the previous Congress: 

The list below includes other environmental rules, issued during the last 60 legislative days of the previous Congress, which have generated interest and controversy:

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 48
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About this Author

Ashley Parr Environmental Attorney Barnes Thornburg Law Firm Chicago
Associate

Ashley E. Parr is an associate in Barnes & Thornburg’s Chicago office, where she is a member of the Environmental Department and Renewable Energy Practice Group.

Prior to joining Barnes & Thornburg, Ms. Parr served as an assistant general counsel for the Illinois Department of Human Services. She advised all programs in the department’s Family and Community Services Division on federal and state regulatory and compliance matters, government contracting, and administrative litigation. She also served as an extern for the U.S. Environmental Protection Agency’s Office of...

312-214-4842
Fredric Andes Environmental Attorney
Partner

Fredric P. Andes is a partner in the Chicago and Washington, D.C., offices of Barnes & Thornburg and the leader of the firm's water team. Fred is involved in counseling and litigation on issues arising under various federal and state environmental laws, with a special emphasis on Clean Water Act matters.

Fred is involved in clean water issues on the national and state levels. He was selected by the EPA to serve on the Federal Advisory Committee on the Total Maximum Daily Load (TMDL) Program. He is serving as coordinator for the Federal Water Quality Coalition, which is a group...

312-214-8310
Richard Glaze Environmental Attorney Barnes Thornburg
Partner

Rich stands shoulder-to-shoulder with his clients – primarily corporations, municipalities, utilities and individuals – who need guidance regarding environmental permitting and compliance, transactional review and policy issues, and international investigations and audits.

Environmental

Rich’s practice is focused on enforcement matters brought by federal and state agencies and the Department of Justice, including defense of environmental claims involving the major federal environmental statutes and their state counterparts.

He represents companies, municipalities and...

404-264-4012
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