March 10, 2021 Practice Points

Democrats May Invoke Congressional Review Act to Reverse Recent EPA Rules

The EPA published over 150 rules in the Federal Register during the last 60 legislative days of the 116th Congress.

By Richard Glaze and Ashley Parr

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 In addition to the CRA, some of the rules targeted by the Biden administration may be repealed, suspended, or revised through a more traditional process, such as by judicial action or notice-and-comment rulemaking.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:

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

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.

Richard Glaze is an attorney with Barnes & Thornburg’s Atlanta, Georgia, office. Ashley Parr is an attorney with the firm’s Chicago, Illinois, office.


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