The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Democrats Learn to Love the Congressional Review Act (At Least a Little Bit)
Last week, the CRA was used for the first time to repeal regulations adopted by a Republican President.
It took awhile, but Democrats and Congress finally used the Congressional Review Act (CRA) to repeal late-issued Trump Administration regulations they did not like. Last week, the House of Representatives passed three CRA resolutions of disapproval to reject Trump rules, sending those resolutions to President Biden's desk. (All three resolutions had previously passed the Senate.)
The first rule rejected was a Treasury Department rule enabled high-interest lenders (e.g. "payday lenders") to circumvent interest rate caps by affiliating with banks. The second was a rule from the Equal Employment Opportunity Commission intended to make it easier for accused firms to pursue conciliation to resolve discrimination complaints.
Third, and perhaps most significantly, the House voted to disapprove of the Environmental Protection Agency's loosened federal regulations governing methane emissions from oil and gas production. The rejected rule, adopted late in the Trump Administration, dramatically relaxed requirements for oil and gas operators to monitor and control methane emissions. Repealing the Trump EPA rule has the effect of reinstating the more stringent Obama Administration rule that it had replaced.
One question some have is "why did this take so long?" The Biden Administration has made climate change a major policy priority and clearing the deck of easily removed Trump rules would seem to be a no-brainer. Apparently one reason for the delay was concern about a CRA provision that bars agencies from readopting rejected rules. Specifically, the CRA bars agencies from issuing a new rule that is "substantially the same" as one that Congress rejected under the CRA. As this provision has never been challenged or litigated, there was some concern about how broadly this could sweep. To address this concern, House Democrats wanted to take their time studying the question, including holding a hearing on the matter.
My own view (which I previoulsly outline here) is that the CRA language is relatively narrow. It reads as an anti-circumvention provision, as it tells agencies they cannot reissue a rejected rule or something that is tantamount to the rejected rule. Thus, the phrase "substantially the same" would cover a new rule that is of similar design, scope and stringency as the prior rule, but would be unlikely to cover a new rule that differs significantly or otherwise represents a meaningful policy change from the rejected rule. So, for instance, using the CRA to reject a Trump EPA rule that relaxed regulatory requirements on the oil and gas industry should not preclude the EPA from adopting a new, more stringent methane emissions rule at a future date, as such a rule would not be "substantially the same" as the one that was rejected. This is my read of the language, at least. Because the CRA has been used so rarely to date, we do not yet have any court opinions interpreting this provision.
All three of last week's CRA votes were largely along party lines, although a dozen Republicans in the House supported repeal of the methane rule, citing concerns about climate change. The folks at the GWU Regulatory Studies Center tracked these and other (less successful) resolutions on their Congressional Review Act tracker. They have more on on the CRA here.