Under a seldom used law, the next Congress could quickly overturn more than 100 major regulations recently finalized by the Obama administration, including rules that aim to reduce greenhouse gas emissions, protect sensitive environments from energy development, improve nutrition labels on food products, and regulate electronic cigarettes.
And once Congress has acted to reject a regulation, federal agencies are barred from reissuing “substantially similar” rules unless lawmakers allow it. That draconian possibility – allowed under the 1996 Congressional Review Act (CRA) – has set off alarm bells among numerous interest groups, including environmental, labor and public health organizations.
The CRA was crafted by former Representative Newt Gingrich (R-GA) – now a major supporter of President-elect Donald Trump – and his anti-regulation Republican allies in the 1990s. It aims to prevent outgoing administrations from pushing through so-called “midnight regulations” – rules finalized in the last months of a presidency -- by giving Congress 60 days to review new rules (days only count while Congress is in session). If a simple majority of lawmakers in both the Senate and House of Representatives votes to reject a rule, and the president signs the resolution, the rule is vacated. And the agency isn’t allowed to try again to write a similar rule unless lawmakers approve.
Since the CRA was created, however, lawmakers have been able to use it just once to erase a rule (a 2000 regulation related to workplace ergonomics). That’s because sitting Presidents are unlikely to go along with efforts to undo regulations produced by their own administrations. President Barack Obama, for example, has vetoed five CRA resolutions to overturn rules produced by his administration.
“The CRA isn’t used unless the stars align perfectly,” says Amit Narang, a regulatory policy expert at Public Citizen, a public interest group in Washington, D.C. But now the election of Donald Trump and a Republican-controlled Congress has opened a rare window for potentially expansive use of the CRA. That’s because President Trump is likely to sign any regulation-cutting resolutions sent to him by his Congressional allies.
“You can see why [the CRA] is so powerful,” Narang says. “You are not just rolling the regulation back, but almost putting a permanent injunction on it.”
“[M]ore than 150 significant rules published since mid-May could be subject to CRA disapproval next year,” Susan Dudley, director of the Regulatory Studies Center at George Washington University in Washington, D.C., wrote in Forbes. (Generally, “significant” rules are those deemed by agencies to carry high costs or have broad impacts.)
The list includes regulations on wastewater from fracking operations, drilling for oil in the Arctic, school nutrition standards, and reducing emissions of methane, a potent greenhouse gas. The CRA does not apply to rules finalized before late May, such as the controversial Clean Power Plan. But it may apply to a much debated rule on who should be paid for working overtime, which applied to postdoctoral students working at universities; it was issued on 23 May, which may be just outside the CRA envelope.
One conservative analyst, Clyde Wayne Crews Jr. of the Competitive Enterprise Institute in Washington, D.C., has identified a long list of recent significant rules that he says Congress should consider repealing. But he says that many more rules that agencies haven’t deemed significant should also get a skeptical look from lawmakers. Overall, some 1,400 regulations appear to fall into the CRA window, although many deal with relatively non-controversial topics, such as importing avocados from Mexico.
The CRA will also apply to any rules that the Obama administration may issue later this year, including a plan to revise rules for protecting human research subjects that has drawn opposition from some scientists. In some cases, the administration might decide against issuing a final rule, in order to prevent the next Congress from closing the door to similar regulations in a future administration. Even that strategy could fail, however, if a Trump administration decides to finalize a leftover rule – and then invite the Republican Congress to reject it.