March 5, 2021

Volume XI, Number 64

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Will the New Congress Reverse Any “Midnight Rules?”

With the outcome of last week’s Georgia Senate runoff elections producing a 50-50 Senate ratio and giving Senate Democrats majority status, there is renewed interest in the Congressional Review Act (CRA) (5 U.S.C. 801 et seq.).  Under the CRA, a new Congress can act within its first 75 days of legislative session to reverse “major rules” promulgated by federal agencies during the last 60 legislative days of the previous Congress.

In 2017, Congress used the CRA to pass “resolutions of disapproval” and nullify sixteen different federal regulations promulgated in the last months of the Obama Administration.  Under the statute, CRA resolutions are considered under expedited procedures and not subject to Senate filibuster rules.  This means a simple majority – including all 50 Democratic (and left-leaning independent) Senators plus incoming Vice President Kamala Harris breaking a tie if necessary – could pass such a resolution of disapproval in the new Senate.

The calculation of the 60-day lookback period has been a matter of speculation in recent months.  Some (including us) thought that with the cancellation of so many Congressional days in session due to the pandemic, the count of 60 days of session would stretch back to May.  However, both the House and Senate scheduled semiweekly “pro forma” sessions throughout the year to keep President Trump from making recess appointments.  (By contrast, in 2016 there was no House session at all for 42 straight days during the August break and again for 46 straight days before and after the election.)  Pro forma days count, making the lookback period much shorter.

Now that the 2020 session of Congress has concluded, it appears that the lookback period will extend to major rules issued on or after August 21, 2020.  Therefore, the 117th Congress theoretically may consider overturning hundreds of federal agency actions.  Practically, however, Congress will need to focus on a relatively small number of consequential and controversial agency actions.  Here are fifteen regulations that Congress might consider reversing:

  • Comptroller of the Currency Fair Access to Financial Services Rule: Limits ability of banks to cut off lending services to fossil fuel companies, signed January 14, 2021 (to be published in the Federal Register on February 1, 2021)

  • Department of Energy Efficiency Standards (2): Energy Conservation Program: Establishment of a New Product Class for Residential Dishwashers, 85 Fed. Reg. 68723 (October 30, 2020); Energy Conservation Program: Definition of Showerheads, 85 Fed. Reg. 61653 (September 30, 2020)

  • Environmental Protection Agency Methane Rule: Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review, 85 Fed. Reg. 57018 (September 14, 2020)

  • Environmental Protection Agency Scientific Transparency Rule: Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (January 6, 2021)

  • Environmental Protection Agency Cost-Benefit Analysis: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 85 Fed. Reg. 84130 (December 23, 2020)

  • Environmental Protection Agency Ozone Standards: Review of the Ozone National Ambient Air Quality Standards, 85 Fed. Reg. 87256 (December 31, 2020)

  • Environmental Protection Agency Particulate Matter (Soot) Standards: Review of the National Ambient Air Quality Standards for Particulate Matter, 85 Fed. Reg. 82684 (December 18, 2020)

  • Department of Health and Human Services Sunset Rule: Sunsets HHS regulations subject to the Regulatory Flexibility Act automatically after ten years unless specifically extended; Securing Updated and Necessary Statutory Evaluations Timely, Docket No. HHS-OS-2020-0012 (January 8, 2021).

  • Department of Homeland Security H1-B Lottery Replacement: Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, 86 Fed. Reg. 1676 (January 8, 2021)

  • Department of Justice Asylum Eligibility Rules: Procedures for Asylum and Withholding of Removal, 85 Fed. Reg. 81698 (December 16, 2020)

  • Department of Interior Endangered Species: Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat, 85 Fed. Reg. 82376 (Dec. 18, 2020)

  • Department of Interior Migratory Birds Rule: Regulations Governing Take of Migratory Birds, 86 Fed. Reg. 1134 (January 7, 2021)

  • Department of Labor Independent Contractor Definition: Independent Contractor Status under the Fair Labor Standards Act, 86 Fed. Reg. 1168 (January 7, 2021)

  • Department of Transportation Gas Pipeline Safety Standards: Withdrawal of Enforcement Discretion, 86 Fed. Reg. 2210 (January 11, 2021).

 

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©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 15
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About this Author

Robert Mangas, Greenberg Traurig Law Firm, Washington DC, Government Policy, Energy and Environmental Law Attorney
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Rob Mangas is Co-Managing Shareholder of the Washington, D.C. office and focuses his practice on advocacy before the U.S. Congress and federal agencies. He represents clients in a variety of different industry sectors, and is experienced in navigating U.S. House and Senate Rules and in legislative drafting.

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Steven Barringer Environment & Govt Law Attorney
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Steven Barringer is a member of GT’s Environmental and Government Law and Policy practice groups. Steve has a unique practice that combines substantive environmental law knowledge with deep government law and policy experience. He began his career as an attorney-adviser and Special Assistant to the Solicitor at the Department of Interior. In private practice, Steve has represented industry clients in numerous EPA rulemakings, and defended clients in enforcement actions brought by EPA and states. He has advised companies regarding compliance with federal and state environmental laws. Steve...

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