By Amy Westervelt
In the past two months, the Trump administration has been advancing new environmental rules, as well as changes to existing environmental regulations, at a suspiciously rapid pace. When we asked around about why that might be, multiple sources offered the same two answers: The coronavirus pandemic provides good cover for some of these proposals (thus ourClimate & COVID-19 Policy Tracker), and the mandates of the Congressional Review Act.
The what, now?
Try to find an article about the Congressional Review Act that doesn’t include the word “arcane” or “obscure,” and you will fail. Enacted in1996, the law gives Congress the power to rescind rules and regulations issued by a federal agency, as long as they do so within 60 legislative days of the rule being finalized and submitted to Congress for review.
There’s a lot to unpack in that sentence. First, the House, Senate, and White House all have to agree on disapproving a rule in order to rescind it, and this is unlikely unless the president belongs to the same party that dominates Congress. That probably explains why, until 2017, Congress had only used the CRA once to rescind a rule, and timed it to when a new president took office.
Then there’s the “60 legislative days” part. To explain that, three different law and policy experts told Drilled News we should speak to Nada Culver, a veteran environmental attorney and a current senior policy counsel for the National National Audubon Society.
“The ‘60 legislative days’ means days Congress is in session and able to issue what they call a ‘resolution of disapproval,’” Culver told us. Importantly, she said, the law also mandates that “once they disapprove it, the federal agency can't adopt another rule that is ‘substantially the same.’”
That effectively means that Congress and a new president can invalidate rules made by federal agencies during the previous administration, if the rules were finalized less than 60 legislative days before the White House switched hands — and in the process make it very difficult for a future administration to revive the rule.
In the first 60 days of the Trump administration, the Republican-led Congress wielded the CRA like a weapon, using the law to scrap 16 rules and guidances finalized during the last months of the Obama administration. Several of these rules had been aimed at the fossil fuel industry, including a freeze on new coal leases on public lands, and a requirement for reporting methane emissions from oil and gas operations.
“So now, because they did that, the expectation is if you get a Democratic President and Congress, they’ll do the same,” Culver said.
In 2018, Republican lawmakers also discovered a novel application of the act: Since federal agencies did not have to submit rules to Congress for review prior to President Bill Clinton signing the CRA into law in 1996, rules that pre-date the act are technically not in effect under the act’s provisions. So a current White House could submit scores of older regulations to Congress for review, and start the 60-day disapproval clock ticking. .
The COVID-19 pandemic may have thrown a wrench into the Trump administration’s deregulatory agenda, by diminishing the number of legislative days. Is it possible that Senate Majority Leader Mitch McConnell’s recent push to get Congress back into session is tied to this?
“Oh sure, Congress could really decide to ramp up and show up every day, which, you know, we are in a crisis so that wouldn’t be unheard of,” Culver said. “Now, of course, he can't control Nancy Pelosi and the House. But again, if there's important work to do…that’s the wild card here because sure, you can play politics, but you also have your job as a member of Congress.”
There are also usually more recess days in an election year, Culver said, to enable members of Congress to return home to campaign. The urgency of COVID-19-related legislation may counteract that this year. And there’s another pandemic-specific question here, too. “No one has addressed yet whether these legislative days count if they're remotely in session,” Culver said. “I would assume since they’re voting that they’re in session, but there’s nothing in the CRA about remote days.”
All of which has led to wild speculation about when the Trump administration will enter the 60-day danger zone. Two anonymous sources told Drilled News that the White House has set an internal deadline of sometime in July. But according to Culver, the environment and climate advocacy community believes it was some time around early May. “Some people think it already passed in March,” Culver said. “But it’s honestly impossible to calculate. You need an abacus and a crystal ball.”
Some big proposals, from the EPA “secret science” rule, which would sharply limit how the agency uses good science to inform pollution regulations, to rollbacks of the National Environmental Policy Act are still making their way through the rulemaking process. So that would seem to make them fair game for CRA review in 2021, if the election swings big for Democrats. But there are no guarantees.
“We've seen with this administration quite a bit of drafting the next version of the document while the comment period is open,” Culver said. “So if they really want to do it, they could turn it around in two days, after the comment period closes. Of course that opens them up to legal challenges because it’s basically saying ‘we don’t need to read all the comments to know that we want to do this,’ but it’s possible.”
We’ll continue tracking rollbacks and proposals regardless. You can find that list here.