Administrative Law

Democrats Learn to Love the Congressional Review Act

Senate Democrats vote to repeal a Trump Administration regulation easing restrictions on methane emissions.

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Earlier today the Senate voted 52-42 to repeal a Trump Administration regulation governing methane emissions under the Congressional Review Act. The House is expected to follow suit next week, sending the CRA resolution to President Biden's desk for his signature. Once signed, the resolution will repeal the Trump rule and, as a consequence, restore the Obama Administration rule the Trump regulation replaced.

Today's almost-party-line vote marked the first time a Democratic-majority Senate has invoked the CRA to override a regulation adopted by a Republican Administration. As I noted previously, the Trump Administration adopted many last-minute regulatory measures that would be vulnerable to quick repeal through the CRA. Yet Democrats were slow to embrace the CRA. Many Democrats and progressive interest groups viewed the CRA as an inherently anti-regulatory measure, and some were concerned that passage of a CRA resolution might obstruct efforts to adopt more stringent regulations.

The regulation at issue was the Environmental Protection Agency's rule setting emission standards for new, reconstructed and modified sources of methane emissions in the oil and gas industry. This rule, adopted last fall, loosened the restrictions the Obama Administration had imposed on methane emissions from oil and gas development. Because methane is a particularly potent greenhouse gas, the Biden Administration made undoing the Trump rule and restoring the Obama Administration restrictions a high priority.

The CRA represents a useful tool for an administration that wants to quickly undo late-adopted measures of its predecessors. The CRA provides for an expedited process in the Senate and is both a more rapid and a more resilient way to change regulatory policy than waiting for a regulatory agency to navigate the regulatory process. Now that Democrats have been willing to use the CRA once, we'll see whether they are willing to use it for this purpose again.