It’s one of those acronyms even many-a-veteran environmental policy geek may not recognize.
Amidst the scores and scores of acronyms in the field – CERCLA, IPCC, SARA, LUST, NPDES, NDCs, FIFRA, NEPA and scores more – CRA remains, contentedly or otherwise, under the radar screen.
Maybe because it’s an acronym with a scope not limited to “just” environmental or climate issues.
But perhaps more likely because it is – or at least it’s become – such a seldom used means to an end, albeit one that those obsessed with perceived excesses by the “administrative state” might just love. (Are you listening, Steve Bannon?)
CRA, aka the Congressional Review Act, became law in 1996 to provide a mechanism through which the U.S. Congress could repeal recently adopted Executive Branch rules and regulations, with simple majority votes in both the House and the Senate. The approach was passed as part of then-House Majority Leader Newt Gingrich’s “Contract with America.”
The process begins once a single member of the House and a single member of the Senate introduce a joint resolution. Once a CRA disapproval of a recent rulemaking passes both chambers, generally considered a likelihood only if both are controlled by the same party, and once signed into law by a president of that same party, a CRA disapproval is not subject to a challenge in the courts.
Under Trump and GOP congressional majorities …
Prior to the Trump administration’s taking office in 2017, the CRA had been used only once – on an Occupational Safety and Health Administration (OSHA) rule covering ergonomic injuries. When Donald Trump took office in January 2017 – importantly, with supportive Republican majorities in the House and the Senate in the 115th Congress – things changed. Sixteen rules – including a major stream protection regulation, a resource management planning rule, and a wildlife protection rule under the Department of the Interior – were repealed.
Environmental and climate change advocates were beside themselves. Many have all along expressed concerns that the underlying law itself amounted to bad governance: rejecting the presumed technical expertise in the government’s agencies and its civil service employees, and substituting in its place the political muscle of strongly partisan interests on Capitol Hill.
While deploring how, in their view, the CRA had been poorly used and abused under the Trump administration, some of those same voices hoped it could be called into action so the Biden administration could “reverse the reversals” made by the Trump administration.
Little did they know or anticipate.
One big climate CRA step – restoring Obama rule on methane emissions, leaks
In April 2021, the extremely narrow Democratic majorities in the U.S. House and in the Senate, using the CRA, restored an Obama-era methane regulation involving pollution from oil and gas rigs and pipeline leaks. “We can undo that damage” caused by Trump’s reversal of the Obama rule, “and undo it quickly,” Senate Majority Leader Schumer (D-New York) said at that time. And he was right.
That CRA reversal has turned out to be the only time the current Congress, the 117th, used the CRA to undo a Trump era environmental rulemaking. (The current Congress has, however, undone two other Trump Executive branch actions – one concerning labor and consumer regulations, but nothing else in the environmental field.)
Why? Why so little action involving a relatively straightforward and judicially unchallengeable tool the Biden administration could have used to reverse rules it often had dismissed as environmentally unjustifiable?
Statutory provisions discouraging use of CRA
The answer(s) may lie in the legislative tenets of the CRA as officially enacted:
- The CRA disapproval power is time limited. The clock starts when an Executive branch agency submits a final promulgated rule to Congress.
- Time runs out for a CRA effort after 60 days of continuous congressional session come to an end. (A “lookback” provision does provide a bit of extra time to a newly seated Congress – rules submitted fewer than 60 days before the end of the previous Congress are treated as having been submitted on the 15th day of the new Congress, at which point the 60-day clock starts anew.)
- Once reversed, the “offending” agency that adopted the rule can no longer enforce it, nor can it reintroduce a “substantially similar” rule unless specifically authorized by Congress to do so. In practice, a CRA reversal, once signed by a supportive president and not overridden by the usual two-thirds majority in both houses (each generally controlled by the same party that then controls the White House), allows one session of a two-year Congress in effect to curtail that agency’s policy limitations long after the congressional session has ended. For instance, since the OSHA rule reversal mentioned earlier was first reversed under the CRA, OSHA has not again moved to regulate ergonomic injuries.
In reality, Presidents are highly unlikely to sign a disapproval resolution involving a rulemaking by one of that president’s own Executive branch agencies. And Congress is equally highly unlikely to pass a CRA reversal on to the President for signature unless one party controls both chambers and also the White House. So, the CRA is likely to be used only on rulemakings made toward the end of one party’s term in office, and then only when a new incoming President enjoys majorities in both the Senate and the House.
That indeed is precisely the situation President Joseph Biden had in hand when the 117th Congress took office in early 2021, providing Biden’s Democratic Party narrow majority control of the Senate and the House of Representatives, and control also of the White House.
That threesome appeared to offer President Biden, Speaker of the House Nancy Pelosi of California, and Senate Majority Leader Chuck Schumer of New York a veritable free pass to reverse Trump administration environmental regulatory rollbacks, many of which had been adopted late in Trump’s term.
These potential reversal opportunities were comprehensively documented by the Sabin Center for Climate Change Law at Columbia University Law School, and many fell within the CRA window of opportunity/vulnerability, according to the Regulatory Studies Center at George Washington University. Many commentators expressed hope that Trump regulatory initiatives would be targeted in a tsunami wave of CRA reversal actions with Biden’s affirming signatures.
It hasn’t happened, and surely isn’t likely to at this point.
Only three CRA resolutions have passed in the current Congress and under the Biden administration: one dealing with defining national banks and federal savings associations as lenders; one addressing procedural requirements involving a Securities and Exchange Commission rule; and, importantly from a climate change perspective, a reversal of the Trump administration’s voiding of Obama-era methane emission rules.
Reasons for the relative inaction in the current Congress are widespread:
- The new Biden administration and the new Democratic majorities in the House and Senate clearly had their hands full with myriad “other” issues upon taking office … and since;
- There was little appetite in the newly convened and time-starved Congress for the statutorily dictated minimum 10 hours of floor debate in the Senate before a vote could be taken;
- The Biden administration itself came to town with its own daunting legislative agenda, including dealing with the COVID-19 pandemic and its aftermath and the shepherding through of a massive infrastructure bill (not to mention the failed time-consuming efforts to pass the “Build Back Better” and voting reform legislation).
“The scarcest commodity in the federal government is attention,” legal scholar Nicholas Bagley has put it. “They can’t do everything at once, even with a dedicated bureaucracy.” He points out that one party’s partisan support for a bill does not preclude the other party’s later using it to advance its own objectives: “Just because a tool happened to be fashioned by the other side doesn’t mean you don’t take advantage of it when you take power.”
Concerns about normalizing, legitimizing CRA
In addition to those limiting factors, some Democrats appear to have been wary about normalizing the widespread use of the CRA strategy that many inherently disliked in the first place. It’s fundamentally a deregulatory tool, and not a finely sharpened one at that.
“If it officially becomes a bipartisan tool, then it’s legitimized and becomes further normalized,” according to James Goodwin with of the Center for Progressive Reform. “And I don’t know if Democrats want to crash that threshold. If the toothpaste is out, it’s not going back in.”
Professor Richard Revesz of New York University School of Law has a different take on things. “It would be wrong … to say that this result [meaning the limited use of the CRA] confirms Democratic antipathy to the CRA,” Revesz has written. “Quite to the contrary, for the first time in its history, the CRA was invoked to disapprove regulations promulgated by a prior Republican administration. And the Biden administration found ways to rid itself of the five offending regulations [that Revesz had previously highlighted as particularly egregious] without needing to avail itself of either the CRA or of lengthy notice-and-comment rulemaking.”
As Revesz suggests, a final explanation is that Democrats may have simply been relying on other tools to achieve ends possible through approaches other than use of the CRA. And Goodwin has pointed out that many of the Trump administration’s regulatory rollbacks had already been stopped by successful legal challenges. Given its concern with many of the remaining Trump policies, Biden administration agencies have set out to replace Trump-era rollbacks with new rules, and have done so in many instances.
In short, while the CRA offered one of the fastest ways to undo regulatory rollbacks, President Biden and the 117th Congress appear to have decided it was largely not worth the time, attention, and legitimation of the CRA process that its use would entail, especially when they could find other avenues for policy change.
If the GOP gains majority control in this fall’s congressional elections, as many pundits think quite possible, the use of the CRA after the 2024 elections will depend largely on whether either political party carries majorities into the House and Senate and also controls the White House.
Lexi Smith is a third-year student at Yale Law School. She studied environmental science and public policy as an undergraduate at Harvard, and she worked as an advisor to the Mayor of Boston on climate policy before enrolling in law school.