October 21, 2020

Volume X, Number 295

October 21, 2020

Subscribe to Latest Legal News and Analysis

October 20, 2020

Subscribe to Latest Legal News and Analysis

October 19, 2020

Subscribe to Latest Legal News and Analysis

Recent and Forthcoming Environmental Rules and Guidance Could Be Reversed Under Congressional Review Act: Three Steps for Stakeholders to Consider

If Joe Biden is elected President, and the Democrats win control of both the House and Senate, the new Administration could potentially use the Congressional Review Act (“CRA” or “Act”) to reverse recent and still-to-come Trump Administration rules.

Key Takeaways: What Rules May be Subject to CRA Reversal and What Should Stakeholders Do Now?

Dozens of Trump Administration rules and guidance, from any Executive agency, promulgated on or after Monday, June 1, 2020, are potentially vulnerable to summary reversal under the little-known procedures of the Congressional Review Act. A rule that is reversed cannot be reissued in “substantially the same form” without Congressional statutory authorization. That means that significant environmental rules could be rescinded and could only be re-issued with congressional authorization unless the rule were significantly revised—a lengthy and unlikely process. Furthermore, CRA resolutions require only simple majorities to pass each house of Congress, and are not subject to a filibuster in the Senate.

Until recently, the CRA look-back procedures had been used rarely since their enactment in 1996. Prior to 2017, Congress used the CRA’s regulatory recall procedures only once (to overturn the Clinton Administration’s workplace ergonomics rule in 2001). In the first months of 2017, however, a Republican-led Congress and Trump Administration used the CRA to nullify sixteen “midnight rules” issued at the end of the Obama Administration. These included several key environmental rules including the Interior Department’s Stream Protection Rule (which concerned mountaintop removal coal mining operations), the Bureau of Land Management’s Planning 2.0 rule for managing hundreds of millions of acres of federal lands, and a Fish and Wildlife Service rule regarding non-subsistence takes of wildlife on National Wildlife Refuges in Alaska.

Taking a page from the Trump Administration playbook, a Biden Administration and Democratic Congress could potentially use the CRA to rescind scores of Trump Administration rules. And the CRA could have significant reach—a “rule” can include qualifying guidance, interim final rules, and certain interpretive rules.

Stakeholders may wish to take the following actions now:

  1. Know the Rules. Catalogue which recently issued rules may be subject to the CRA and which ones are likely to receive congressional scrutiny in the event of unified Democratic control of the White House and Congress.

  2. Know the Impact. Understand which rules have the most impact on your facility operations and business objectives. Analyze what might happen if these rules are suspended. Develop contingency plans.

  3. Know your Options. Determine whether to advocate for preservation or repeal of the rule. Rules take considerable time and energy to develop, but so does congressional authorization. There may be opportunities to avoid CRA reversal and retain favorable provisions of rules by working with agencies.

Background

The CRA (5 U.S.C. §§ 801–808) authorizes Congress to overturn final federal rules, with special “fast-track” procedures available in the Senate to preclude use of a filibuster. The Act requires all federal agencies to submit copies of final rules before their effective date to both houses of Congress and the Government Accountability Office (GAO). For sixty calendar days following submittal, excluding those during which either chamber is adjourned for more than three days, Members of Congress may introduce a “joint resolution of disapproval” of the rule.  If Congress approves that resolution by simple majority in each chamber and either (1) that resolution is then signed by the President, or (2) Congress successfully overrides a presidential veto, the rule is abrogated.

However, for a rule submitted to Congress when there are fewer than sixty “session days” remaining in the Senate, or fewer than sixty “legislative days” remaining in the House, before Congress adjourns for the calendar year, members of the new Congress will have another sixty days (with the same exclusions as before) to introduce a joint resolution of disapproval of that rule, beginning on the fifteenth legislative/session day of the new Congress. A new Biden Administration and Democratic Congress would therefore have several months to reconsider and rescind Trump Administration rules submitted during the 2020 “lookback period.”

Once disapproved, the rule may not be reissued in “substantially the same form” without subsequent statutory authorization. The statute does not define “substantially the same form,” and federal courts have not yet ruled on its meaning.

Scope

Congressional disapproval is far-reaching. First, the entire rule is rescinded. The CRA does not allow congressional line-item vetoes of rules, i.e., it may not modify individual provisions of a rule to prevent such provisions from being reissued. Rather, Congress may use the CRA only to disapprove of a rule in its entirety.

Second, because guidance documents can fall within the definition of “rule,” the CRA gives Congress a range of potential targets and opportunities to roll back key interpretive guidance. With certain limited exceptions, the CRA adopts the broad definition of a “rule” under APA section 551. 5 U.S.C. § 804(3). Accordingly, for the purposes of the CRA, a rule is “the whole or a part of an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy.” Guidance may therefore be a “rule” for CRA purposes if it fits within this definition. Although a new administration may withdraw a guidance document at will, congressional use of the CRA would prevent the agency from ever issuing new guidance in “substantially the same form,” making the withdrawal more permanent.

This is particularly important because, notwithstanding the Trump Administration’s initial effort to discourage agency reliance on guidance documents, Exec. Order No. 13,891, 84 Fed. Reg. 55235 (Oct. 15, 2019); Exec. Order No. 13,892, 84 Fed. Reg. 55239 (Oct. 15, 2019), many agencies, including those with jurisdiction over environmental, health and safety issues (EPA, Interior, OSHA, etc.) have issued extensive guidance, including guidance to reverse previous policy or guidance. A Democratic-led Congress could reverse Trump Administration guidance and could use the CRA disapproval process to prevent substantially similar guidance from being reissued in the future.

To date, Congress has used the CRA to rescind only one guidance document. In 2018, Congress issued a joint resolution of disapproval to overturn the Consumer Financial Protection Bureau’s March 2013 bulletin addressing indirect auto lending and compliance with the Equal Credit Opportunity Act. Similarly, the Government Accountability Office has also issued opinions that other guidance—including the 2013 Interagency Guidance on Leveraged Lending and the 2000 Trinity River Record of Decision—were “rules” subject to the CRA because they constituted “general statements of policy.”

Which Trump Administration Rules and Guidance May Be Vulnerable to CRA Disapproval in 2021?

The exact start date for the lookback period cannot be conclusively determined until the House has adjourned for the calendar year. That may be as late as December 31, 2020. Based on the number of days the House has been in session so far this year and the House Majority Leader’s current session schedule for the remainder of the year, the 60 legislative day “lookback period” likely began on Monday, June 1, 2020. This date is subject to change as the House adds or cancels legislative days, particularly due to COVID-19.

Using this current estimate, any final rules and interim final rules and certain interpretive rules, policy statements, or other guidance documents issued by federal agencies on or after June 1 may be vulnerable to a joint resolution of dismissal under the CRA in 2021.

CRA May Apply to Rules Promulgated Earlier

A Biden Administration and Democratic Congress could potentially use the CRA to rescind Trump Administration rules (including qualifying guidance) promulgated prior to June 1, 2020, if those rules were not submitted to Congress. Despite the CRA’s submission requirement, federal agencies do not consistently submit guidance documents to Congress, which arguably frustrates Congress’s ability to review such “rules” under the Act. Because the CRA contains a provision barring judicial review, courts have generally declined to review claims challenging an agency’s failure to submit a rule. See, e.g.Wash. Alliance of Tech. Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332, 346 (D.C. Cir. 2018); Kan. Nat. Res. Coal. v. U.S. Dep’t of Interior, 382 F. Supp. 3d 1179, 1182–83 (D. Kan. 2019); but see Tugaw Ranches, LLC v. U.S. Dep’t of Interior, 362 F. Supp. 3d 879, 884–86 (D. Idaho 2019).

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 241

TRENDING LEGAL ANALYSIS


About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

202-789-6009
Madeleine Boyer Environmental Attorney Beveridge Diamond
Principal

Maddie brings 25 years of experience providing strategic and solutions-oriented counseling and representation on a broad range of US and Latin American environmental, health and safety standards.

Her portfolio includes environmental regulatory counseling; audit oversight and support; supply chain and product stewardship advocacy and compliance; and high-stakes enforcement matters. Her domestic caseload currently includes air and waste matters before the US Department of Justice, the Office of the Attorney General of the State of Texas, the US Environmental Protection Agency (EPA), and the Texas Commission on Environmental Quality (TCEQ). Her Latin American work involves compliance support and legal project management on a range of regional sustainability issues, including emerging chemicals, circular economy initiatives and climate change.

Maddie began as an Associate in the firm’s Washington D.C. office in 1999. After returning to Texas, in 2005 she co-founded the Texas office and served as its first Managing Principal. She is current Chair of the firm’s International Environmental Practice Group and Co-Chair of the Air Practice Group. Maddie is also a member of the firm’s Pro Bono Committee and maintains a pro bono political asylum and international human rights practice.

512-391-8010
John Cruden Environmental Attorney Beveridge Diamond
Principal

John offers clients the benefit of decades of experience as a top environmental lawyer, a leader of major bar and environmental organizations, and a distinguished military career.

John provides strategic counsel on high-stakes environmental and natural resources litigation, civil and criminal enforcement, and compliance. Working with clients makes the practice of law worthy and valuable to him as they advance strategic needs while protecting human health and the environment.

For more than two decades, John served as a senior leader on environment and natural resource matters...

202-789-6018
David M. Friedland Air Pollution Attorney Beveridge & Diamond Washington, DC
Principal

David’s practice touches every aspect of the regulation of air pollution under the Clean Air Act and state and local air pollution statutes and regulations.

On the regulatory side, he has helped companies and trade associations prepare comments on scores of proposed rules including revisions to the ozone and particulate matter NAAQS, several rounds of PSD/NSR regulations (e.g., the WEPCO rule in 1992, the NSR Reform rule in 2002, the equipment replacement rule in 2003, and the Duke hourly rate rule in 2006), numerous MACT standards (e.g., the boiler, commercial and industrial solid...

202-789-6047
Allyn L. Stern Environmental Attorney Beveridge & Diamond Seattle, WA
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup...

206-620-3027