Key Contacts
Republican-Controlled Congress Expected to Invoke Congressional Review Act to Invalidate Numerous Recent Environmental Regulations
With Trump’s first official day in the White House fast approaching, many people are wondering about the fate of the numerous environmental regulations that were promulgated during the Biden Administration. At the start of Trump’s first Presidency in 2017, the Republican-controlled Congress relied heavily on a provision of the Congressional Review Act (CRA) referred to as the “lookback mechanism” to swiftly invalidate a number of regulations that were issued during the waning days of President Obama’s second term. We expect the current Congress to consider invoking the CRA’s lookback mechanism as the new session gets underway in earnest.
In all cases, Congress has 60 session days to consider a final agency regulation, and if it so chooses, to introduce a joint resolution of disapproval. If both chambers of Congress approve the joint resolution and the President signs it (or if the President vetoes the resolution, but Congress has enough votes to override the veto), then the regulation is voided in its entirety and treated as if it had never taken effect. After an agency rule has been struck down under the CRA, that rule cannot be “reissued in substantially the same form” unless specifically authorized by Congress (note that it isn’t clear what it means for one rule to be in “substantially the same form” as an earlier one). The CRA applies to final agency regulations but not other presidential or administrative actions, such as executive orders, proposed rules, or guidance documents.
In the special case where agency rules are finalized with fewer than 60 days remaining in the Congressional session, the CRA’s lookback provision automatically restarts the review clock on such rules when Congress reconvenes. The re-review period begins on the fifteenth working day of each chamber of Congress and lasts the full 60 days specified by the CRA. Although it is undeniably a powerful tool, it goes relatively unused except in one circumstance: when a change in the presidential administration coincides with a new Congress controlled by the new President’s party, thereby creating the possibility that both Congress and the President would want to reject agency rules issued by the prior administration. That was the case in early 2017, when the Congress that came in with the first Trump administration used the CRA to invalidate 13 rules within the first four months the new session. A number of those rules had been issued by EPA. Incidentally, we also saw Congress use the CRA when it reconvened in early 2021 and Biden became President, but to a lesser extent than in 2017. We expect to see similar use of the CRA in 2025.
And in December, the House passed the “Midnight Rules Relief Act,” which would allow Congress to void whole groups of regulations using a single CRA resolution, rather than having to introduce a separate resolution for each regulation. As of the date this publication, the Senate has not voted on this legislation.
Considering a lookback cutoff date around mid-2024, several environmental regulations will be up for Congressional re-review and vulnerable to disapproval. Of course, EPA rules promulgated before the lookback cutoff date are not immune to recission attempts, but they can only be withdrawn through formal rulemaking including public notice and comment.
