It Ain’t Over ‘til It’s Over -- The Congressional Review Act & the Search for Zombie Regulations

Posted on December 7, 2017 by Allan Gates

Enacted in 1996, the Congressional Review Act (CRA) affords Congress the opportunity to review and disapprove final rules of federal agencies.  In the first 20 years of its existence, only one regulation was disapproved using the CRA.  In the first 100 days of the Trump administration, however, Congress invoked the CRA to disapprove thirteen separate regulations.  The White House advertised the CRA disapproval resolutions as the top legislative accomplishment of the administration’s first 100 days, proudly claiming that President Trump had signed more CRA resolutions than any other President in history.

By mid-summer most observers assumed the push to roll back Obama-era regulations using the CRA was over because the statute provides a narrow window of time for introducing resolutions of disapproval (generally 60 legislative days from the date the regulation is received by Congress), and it similarly limits the time within which expedited legislative procedures – including passage by simple majority vote in the Senate – can be used.

But wait, there’s more  – 

The window of time for introducing a disapproval resolution under the CRA begins to run on the day a regulation is submitted to Congress.  And it turns out agencies have not always been careful about sending their rules to Congress.   According to a 2014 report, hundreds of final regulations published in the Federal Register each year have never been reported to Congress.  Moreover, since the rules subject to review under the CRA are not limited to those published in the Federal Register, the report suggests there may be thousands of unreported interpretive rules, guidance documents, “Dear Colleague letters,” and the like.

Conservative activists aware of the inconsistent agency filing practices have begun to argue that all older regulations that were not reported to Congress are still subject to CRA review.  One conservative group has established a separate website, RedTapeRollback.com, proclaiming that:

“Powerful new ideas to use the CRA for older rules not reported to Congress are causing great excitement. This is a regulatory game changer!”

The website includes a database of rules it claims were not reported; and the website urges its visitors to, “Help us find and report more rules that were never submitted to Congress.”

The activists promoting use of the CRA to attack older, unreported regulations offer three rollback strategies.  First, private parties who are subject to the requirements of an older, unreported regulation could argue the regulation has never taken effect. There is certainly language in the CRA to support such an argument:

“Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress [a report containing a copy of the rule.]”

Another provision of the CRA, however, has language that may preclude a private party’s ability to obtain judicial review of claims based on the CRA:

“No determination, finding, action, or omission under this chapter shall be subject to judicial review.”

The second strategy calls for the Trump administration to identify undesirable rules that were never reported to Congress, state that the rules have never taken effect because of the agency’s failure to report them, and abandon or vacate the rules.  Under this scenario, the Trump administration would roll back undesirable rules immediately without the necessity of going through notice and comment rulemaking procedures otherwise required to repeal the rules.

The third strategy suggests the Trump administration could identify undesirable rules that were never reported, report them to Congress, and encourage Congress to adopt resolutions of disapproval.  If this occurs, Section 801(b)(2) of the CRA precludes reissuance of a disapproved rule in the same or similar form unless Congress affirmatively adopts legislation authorizing the promulgation.

It may well be that the activists’ frothy enthusiasm for expanded use of the CRA will come to very little.  It is possible, perhaps even likely, that most of the unreported rules were insignificant, unobjectionable, or even exempt from reporting and review under the CRA.  Moreover, as a practical matter it is unlikely that Congress would be willing to devote significant amounts of floor time to debate the disapproval of a large number of older, unreported regulations.  Nevertheless, a cursory examination of RedTapeRollback’s database of supposedly unreported rules cannot help but give one pause.   Think the 2010 Chesapeake Bay TMDL and EPA’s 2008 Rapanos Guidance.

Interest in use of the CRA did not end with the flurry of disapproval resolutions in the first one hundred days of the Trump administration.  At a September House Subcommittee on Regulatory Reform oversight hearing focused on agency compliance with the CRA, witnesses urged Congress to attack older regulations that were never reported to Congress.  In late October, Congress passed and the President signed a disapproval resolution invalidating an arbitration regulation adopted by the Consumer Financial Protection Bureau, an independent agency whose regulations are not ordinarily subject to Executive review and approval.

The recent surge in use of the CRA has not gone without opposition.  The Center for Biological Diversity (CBD) has filed suit to vacate a CRA resolution that nullified an Interior Department regulation limiting the methods used to hunt wolves and bears in Alaska wildlife refuges.  Among other things, CBD argues that the CRA limitation on issuance of future regulations without express approval of Congress infringes on the constitutionally protected separation of powers.  The court’s decision in the CBD case is likely to provide guidance on the reach of the language quoted above that limits judicial review of claims arising under the CRA.

Against this background it is safe to say that we have not seen the last of the CRA in the Trump administration.  As Yogi Berra once said, “It ain’t over ‘til it’s over.”

You Can’t Let Nature Run Wild: Predator Control in Alaska

Posted on March 28, 2017 by Peter Van Tuyn

Seeking to explain Alaska’s aggressive predator control policies, Alaska Governor Wally Hickel famously said in the early 1990s that “you can’t let nature run wild.”  In Alaska this means that wildlife management is focused on maximizing the number of some human prey species such as deer, caribou and moose, by allowing the killing of bears and wolves that also prey on those animals.  A majority in the current United States Congress apparently agree with Alaska’s predator control approach to wildlife management, at least as it might apply in our nation’s largest national wildlife refuges within Alaska’s borders. 

Congress this week sent to the president’s desk a Congressional Review Act resolution rejecting a 2016 U.S. Fish and Wildlife Service rule that banned aggressive state sport hunting practices designed to reduce populations of predators on state land.  The rule banned just the most egregious of these practices on the roughly 77 million acres of national wildlife refuge land in Alaska. 

The Congressional Review Act is a legislative instrument which Congress can use to reject in the whole recently-passed federal rules.  This blunt “up or down” action is not subject to filibuster in the Senate, and if a rule is rejected through this process agencies are prohibited from passing “substantially similar” rules in the future.  Prior to the 115th Congress the Congressional Review Act had only successfully been used once before, to reject a Clinton Administration workplace ergonomics rule in the early days of the George W. Bush Administration.  Based on this history and the flurry of recent resolutions, it seems the primary and perhaps sole utility of the Act is during a change in administration from Democrat to Republican, when Republicans have a majority in both chambers of Congress. 

The resolution sponsors argued that the FWS rule impinged on Alaska’s sovereign ability to manage wildlife within its borders as it sees fit.  Supporters of the rule pointed out that the rule’s focus is only on the most extreme predator control practices and that to allow such practices on refuge lands is inhumane, is aimed at upsetting the natural balance of special ecosystems and in any event is not proven effective at meeting the goal of increasing game populations.  The resolution passed both chambers largely along party lines, and the president is expected to sign it. 

Alaska has long pushed aggressive predator control practices.  In some instances, Alaska’s rules allow the take of adult bears and cubs that are lured by bait, and of wolves and pups in their dens; methods that have elsewhere been rejected as unfair, inhumane and ineffective at increasing game populations.  Alaska permits such practices, even when doing so might otherwise seem to go against its interests.  For example, one of the great draws for the hundreds of thousands of annual visitors to Denali National Park is the wildlife that can be seen in its wide-open landscapes, including wolves that spend time near the road through the Park.  Alaska, however, allows the killing of those wolves on the Park’s north and east boundaries, for the benefit of one to three trappers in any given year.  According to a local group, the effect of the decline of wolf packs that den inside the park is a reduction in the likelihood of visitors seeing wolves along the road from 45% in 2010 to 5% in 2015. 

From a pure economic perspective, one would think that the value to Alaska of live wolves in Denali would far exceed that of wolves killed over the border.  But those who make the rules today, like Gov. Hickel before them, apparently don’t want to let nature run wild.


Congress Seeks to Reverse EPA’s Utility Climate NSPS

Posted on February 29, 2012 by Deborah Jennings

By Deborah Jennings and Andrew Schatz

In the wake of expected Greenhouse Gas New Source Performance Standards (NSPS) for Electric Generating Units pursuant to Section 111 of the Clean Air Act, Congress has shown some early resistance.  On November 4, 2011, EPA submitted to the Office of Management and Budget (OMB) its proposed rule for regulatory review.  The proposed rule would require new and modified electric utilities to meet potentially stringent performance standards and emissions guidelines for greenhouse gases at a level that has been “adequately demonstrated” by existing technology.  42 U.S.C. § 7411(a)(1).  Although the stringency of such standards is uncertain, they could require installation of expensive technology controls for fossil fuel combustion power plants. 

In response, a group of 221 Congressmen submitted a letter on February 23, 2012 to OMB urging the White House to bar EPA from issuing its proposed NSPS rule.  The letter cited, among other things, concerns that the rules could require installation of costly technology, such as carbon-capture and storage, which they feared would increase electricity costs.  The 221 figure is significant, because it constitutes a majority of the House of Representatives, who along with the Senate, could pass a resolution overturning the rule (with Presidential approval or Congressional override of a veto) under the Congressional Review Act (CRA), 5 U.S.C. §§ 801-808.

Yet, history suggests it is very unlikely that Congress will reverse an EPA climate change regulation using the Congressional Review Act.  For starters, the CRA allows Congress to pass a disapproval resolution seeking to reverse a recently promulgated federal regulation by a simple majority vote (no filibusters) within 60 days of receiving the final rule or its date of publication in the federal register.  Thus, Congress has a very short-time frame to pass such resolutions in both the House and the Senate.  Moreover, the President can still veto the disapproval resolution.  At that point, Congress would need a two-thirds majority to override the veto.  In fact, Congress has only successfully used the CRA once, overturning a Department of Labor rulemaking on ergonomics passed in the waning days of the Clinton Administration. 

Such a scenario could shape up this time around.  EPA originally planned on issuing the proposed utility standards in July 2011 and the final standards in May 2012.  Since EPA has yet to issue its proposed rule, a final rule may not be expected until late 2012 or early 2013, at the conclusion of President Obama’s first term.