The obstacles the Trump administration has placed on environmental rulemaking and, by extension, on stemming climate change have been well-documented by organizations from mainstream media outlets to multiple academic institutions.
Those obstacles are numerous, well more than 100 plus a cascade of end-of-term parting shots, many designed to complicate life for the incoming Biden administration, which is expected to reverse as many as it can, as quickly as it can.
As a result of Democratic victories in the January 5 Senate runoffs in Georgia – giving Biden’s Democratic party a razor-thin Senate majority – there is an extra tool in the toolbox: the Congressional Review Act (CRA).
It’s a tool to undo unwanted regulations. It’s been around only since 1996 and is loaded with caveats on how to use it, and its impacts can be blunt. But if Congress and the President just want to get rid of something, it can work … under very specific conditions. Like now.
“You have to have the stars align,” says Cary Coglianese, a law and political science professor and director of the University of Pennsylvania Program on Regulation.
And the stars may be aligning. With control as of January 20 of the White House and with razor-thin margins over the next two years in the Senate and House of Representatives, Democrats are expected to turn to the CRA, which requires only a majority vote in each chamber. Newly inaugurated Vice President Kamala Harris would be able to break any ties, leaving just the President’s signature.
All the same, there are a lot of rules.
Lots of procedural steps … and the clock is running
A big one is time. There’s a lookback window governing which regulations qualify – 60 legislative days in the House or 60 session days in the Senate counting back from the start of the new session (this year that’s January 3) – whichever is longer. The date isn’t officially designated yet, but it looks to be August 21, 2020. The rule must have been finalized, published in the Federal Register, and sent to Congress to set the clock running.
Then, after 15 session days from when the new Congress convenes, there’s another 60-day window, again with an arcane counting system.
“That’s trickier,” says Daniel Pérez, senior policy analyst at George Washington University’s Regulatory Studies Center. “There’s a lot of caveats and a lot of conditions. There are subsets of rules that don’t count even though the definition of what constitutes a rule is the broadest definition under the Administrative Procedures Act.”
A major concern among those hoping to use the CRA is that for any rule thrown-out by a congressional resolution of disapproval, an agency may issue no new one in “substantially the same form.” The problem is – no one really knows exactly what that language means: It’s never been tested in the courts. In fact the CRA has been used only 17 times, 16 of them by the Trump administration soon after it took office.
An exception to that, however, arises if the rule was for something required by law or there’s some kind of deadline – and then a whole new set of caveats kick in.
Bottom line: “If you don’t want a rule at all ever, disapproving it under the CRA is a good way of deterring future rulemaking on that subject,” Coglianese says.
There are more than 1,350 rules overall that fall into the CRA window – about 200 of them environmental, according to the GW database. The one known by its shorthand – “secret science” – is up there in terms of being a good CRA candidate.
The Trump administration’s Environmental Protection Agency “secret science” rule (not the name the agency used for it of course) in certain important cases restricts use of scientific studies without their underlying data. That’s most often health studies that protected participants’ identities and confidential medical records. Critics say eliminating such data will hamstring EPA’s developing policies to protect public health.
The outgoing Trump EPA under Administrator Andrew Wheeler claimed it’s a “procedural” change and so put it into effect as soon as it was finalized, without the usual public-comments waiting period. The rule is being fought in court on that and other issues, but the CRA might be another avenue for undoing it.
“If you think agencies should have full discretion to consider science on a case-by-case basis as they think best,” Conglianese says, “then clearing the decks and ensuring that there will be nothing substantially similar ever adopted again. That’s what a CRA disapproval will do.”
Democratic senators have sights set on climate change rules
Senator Sheldon Whitehouse, D-RI, a member of the Environment and Public Works Committee and an outspoken proponent for climate change action, says he is confident the Biden team will swiftly swap out critical rules – though many such as auto emissions standards and mileage rollbacks fall outside CRA parameters. And some, perhaps many, will require new rule-making, which is a slow process, frequently lengthened by drawn-out court challenges and reviews.
“Where the CRA will be important is [in] striking down destructive rules that ought to come off the books altogether – like Administrator Wheeler’s cynical science ‘transparency’ rule,” Whitehouse says. “But we can’t view the CRA as much of a weapon against climate catastrophe. We’re going to need to pass big, comprehensive legislation to keep us in the 1.5 degree-C safe zone” agreed on as part of the Paris Climate Agreement.
The senior Democrat on the committee and likely new chairman, Tom Carper of Delaware, said late last year when secret science was finalized: “I am confident that this irresponsible rollback – finalized in the last few days of the Trump administration – will not impede the incoming administration’s efforts to restore the use of science in rulemaking.”
Another 11th hour Trump Administration move took on an Obama rule requiring new coal plants to have carbon capture and sequestration systems. Instead of getting rid of it, Trump’s team added a provision setting limits on which greenhouse gas emitting operations need to be regulated at all. The move effectively ends emission regulations on any kind of industrial facility – leaving only the largest fossil fuel power plants regulated.
A CRA disapproval would get rid of the Trump administration’s rules limiting greenhouse gas regulation. And since no one’s building new coal plants anyway, it likely wouldn’t matter what happened with the original part.
Dan Farber, faculty director for the Center for Law, Energy and the Environment at UC Berkeley Law School, says he thinks secret science is a good CRA candidate, though he thinks there also may be ways it could be revised administratively.
He points out that Trump’s CRA targets weren’t always big. “It’s a tremendous public statement that we are getting rid of that stuff,” he says of what Trump did. “I think the Democrats might want to make a similar statement – Trump’s rollbacks are toast.”
But GW’s Pérez says there are many factors to consider – most importantly time. Rules can’t be bundled, they have to be considered individually and each can have up to 10 hours of debate. Time is always precious, he and others say, but it’s even more precious as Biden takes over.
Senate back to work, and busy, busy, busy
In addition to having loads of confirmations pending before Congress, as most new administrations would, there are the unprecedented and immediate needs to address the pandemic – especially ramping-up vaccine availability and actual “in arm” inoculations – and legislation that will more robustly address economic recovery. An impeachment trial in the Senate could also eat up a large amount of time.
“I think there’s always a tradeoff on how much an administration wants to look backwards and undo things it found problematic from the previous administration,” Pérez says. “And how much it actually wants to get moving with its own agenda.”
There are other options for rolling back Trump’s environmental rollbacks. The toughest is generally new rulemaking, but it’s sometimes the only option. There are often a host of short-term fixes to staunch the bleeding before a full fix is fashioned: Tell agencies to stop sending rules to the Federal Register; pull back things that were sent but have not been published; executive orders to stop rules from going into effect; use appropriations to cut off money to implement or enforce rules; if something is just a memo, reissue it. And of course Trump executive orders are a pen-stroke from removal.
In the end, it’s legislation, not rules – no matter whose they are – that have the most staying power. “It’s the best way ideally,” says Coglianese at the Penn Program on Regulation. “This is what President-elect Biden did most of his life. He certainly knows how to think like a legislator. You don’t make lasting change as easily through a regulatory agenda as you can with legislation.”
For those wanting to take a further “deep dive” into the Congressional Review Act, here are some sources:
– Congressional Research Service report on CRSA
– Last minute rules tracked by State Energy and Environmental Impact Center at NYU School of Law
– GW University Regulatory Studies Center CRA data
– Berkeley Law – Reversing Environmental Rollbacks
– NYT Rollback tracker
– Columbia Sabin Center rollback tracker
– Harvard Environmental and Energy Law Program rollback tracker