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 $100,000,000 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.” 5 U.S.C. § 801(b)(2). Notably, no action taken pursuant to the CRA is subject to judicial review. 5 U.S.C. § 805.
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 January 20, 2021 identifies environmental regulations immediately targeted for repeal, suspension, or revision. In addition to the CRA, some of the rules targeted by the Biden administration may be repealed, suspended, or revised through a more traditional process, such as by judicial action or notice-and-comment rulemaking. For example, one of the rules identified in the executive order, “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information,” 86 Fed. Reg. 469 (Jan. 6, 2021), was recently vacated in the U.S. District Court for the District of Montana. This rule would have fallen within the CRA’s 60-day lookback period, but the Biden administration moved, successfully, to vacate the rule in in the courts rather than attempting to invoke the CRA.
The following environmental rules identified in the executive order were issued during the last 60 legislative days of the previous Congress:
- EPA: “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration,” 85 Fed. Reg. 57398 (Sept. 15, 2020)
This rule finalizes amendments to the new source performance standards for the oil and natural gas sector, which lifts regulations limiting methane and volatile organic compound (VOC) emissions from the transportation and storage sectors of the oil and gas industry and withdrew regulations limiting methane emissions across the source category. The Biden administration appears to be targeting this rule because of the rule’s impacts on the new administration’s climate-change-mitigation strategy.
- EPA: “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” 85 Fed. Reg. 84130 (Dec. 23, 2020)
According to the EPA, this procedural rule improves the rulemaking process under the Clean Air Act by establishing requirements to ensure that consistent, high-quality analyses of benefits and costs are provided to the public for significant rules.
The list below includes other environmental rules, issued during the last 60 legislative days of the previous Congress, that have generated interest and controversy:
- EPA: “Streamlining Procedures for Permit Appeals,” 85 Fed. Reg. 51650 (Aug. 21, 2020)
The EPA promulgated this procedural rule to streamline and modernize the EPA’s permit appeal process for permits issued under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and Resource Conservation and Recovery Act.
- EPA: “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review,” 85 Fed. Reg. 57018 (Sept. 14, 2020)
This rule finalizes amendments to the oil-and-natural-gas new-source performance standards promulgated in 2012 and 2016.
- EPA: “Steam Electric Reconsideration Rule,” 85 Fed. Reg. 64650 (Oct. 13, 2020)
This rule revises requirements for two specific waste streams produced by steam electric power plants: flue gas desulfurization wastewater and bottom ash transport water.
- EPA: “Environmental Protection Agency Acquisition Regulation (EPAAR); Scientific Integrity,” 85 Fed. Reg. 66266 (Oct. 19, 2020)
This final rule addresses scientific-integrity requirements by creating a contract clause for inclusion in solicitations and contracts when the contractor may be required to perform, communicate, or supervise scientific activities or use scientific information to perform advisory and assistance services.
- EPA: “Reclassification of Major Sources as Area Sources under Section 112 of the Clean Air Act,” 85 Fed. Reg. 73854 (Nov. 19, 2020)
This rule allows a “major source” of hazardous air pollutants to be reclassified as an “area source” after acting to limit emissions.
- EPA: “Review of the Ozone National Ambient Air Quality Standards,” 85 Fed. Reg. 87256 (Dec. 31, 2020)
This rule retains the current national ambient air quality standards, without revision, for photochemical oxidants including ozone.
- EPA: “Control of Air Pollution from Airplanes and Airplane Engines: GHG Emission Standards and Test Procedures,” 86 Fed. Reg. 2136 (Jan. 11, 2021)
This final rule establishes greenhouse-gas-emission standards that apply to certain new commercial airplanes.
- Army Corps of Engineers: “Reissuance and Modification of Nationwide Permits,” 86 FR 2744 (Jan. 13, 2021)
This final rule reissues 12 existing Clean Water Act nationwide permits (NWPs) and creates four new NWPs.
As of February 5, 2021, Congress has the ability to introduce resolutions for the repeal of regulations subject to the CRA for 60 legislative days. No resolutions have been introduced yet.
Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).