Which of Obama’s Midnight Regulations Will Get Rolled Back?

Yesterday, House Majority Leader Kevin McCarthy (R-Calif.) and every House committee chairman sent a one-paragraph letter to all executive agencies cautioning them against “finalizing pending rules or regulations in the Administration’s last days.”

Acting with “undue haste” to adopt final rules will increase the likelihood agency actions will have “unintended consequences” harmful to businesses and consumers, and will deny the incoming administration and Congress “the opportunity to review and give direction concerning pending rulemakings,” the GOP House leaders argue. They conclude with a warning: “Should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions—and, if appropriate—overturns them pursuant to the Congressional Review Act.”   

Two days before the House leaders sent their letter, semi-retired but ever-vigilant energy analyst Mark Whitenton reminded me that the Congressional Review Act (CRA) is “once again poised to reverse ‘midnight rulemaking’ by an expiring Administration.” Indeed, he enthused, the incoming 115^th Congress will enjoy “the first opportunity for the CRA to make a substantial contribution since early 2001, when the Clinton Administration’s last-minute finalization of its Ergonomics Rule was famously rejected by a resolution of disapproval passed by both chambers and signed by President Bush.”

The CRA, enacted as part of the Small Business Regulatory Reform Act (SBREFA) of 1996, created an expedited procedure by which Congress can veto a final agency rule before it can take effect. To block a rule, Congress has 60 legislative days in which to pass a joint resolution of disapproval. To pass in the Senate, the resolution only needs a simple majority, not the 60 votes required for cloture. Moreover, Senate debate on a resolution of disapproval is subject to strict time constraints. As the two chief sponsors, Sen. Don Nickles (R-Okla.) and Rep. David McIntosh (R-Ind.) explained in the Congressional Record (April 18, 1996, S3683-3684):

Such a resolution is highly privileged, points or order are waived, a motion to postpone consideration is not in order, the resolution is unamendable, and debate on the joint resolution and ‘‘on all debatable motions and appeals in connection therewith’’ (including a motion to proceed) is limited to no more than 10 hours.

With the exception of the aforementioned Ergonomics Rule, the CRA has been a toothless tiger during the past 20 years. The chief reason, explains Whitenton, who staffed Sen. Nickles on the CRA legislation, is that House and Senate Republicans could not overcome a veto by a Democratic president. But when Donald Trump takes office, they will have an ally rather than an opponent: 

Since well before the CRA’s passage in 1996, the constitutional problem confronting congressional repeal of federal agency regulations has been that legislation repealing an agency's final rule must be passed by both chambers of Congress and signed by the President (who, understandably, is not very willing to reject his own agency's rules).  

However, with incoming President Trump and with both chambers under Republican majorities, it is now possible to again use the CRA aggressively. Moreover, with a narrow majority of Republicans in the Senate, it is especially valuable that the procedures provided by the CRA provide a by-pass of possible filibusters in the Senate, requiring only a simple majority vote to adopt a resolution of disapproval.

All final rules captured by the CRA review period will be considered as being received by the new Congress on January 15^th, 2017. According to Whitenton’s unofficial count, the House had no legislative days during August or October. Consequently, if the House keeps to its proposed schedule of meeting six days in November and ten days in December, the 60-day CRA review period extends back to May 26, 2016. The Senate’s lookback extends only to July 14, but “the House's legislative days will still control and allow CRA's expedited procedures for resolutions of disapproval to apply to Obama Administration's final rules issued on or after May 26, 2016.”

Which energy-related rules might be on the chopping block? As reported Tuesday in Greenwire (subscription required), Kevin Book of ClearView Energy Partners, in a note to clients, identified the following targets:

• Any tightening of the Army Corps of Engineers’ Nationwide Permit 12 (the permit process used by the Corps of Engineers to approve the Dakota Access pipeline);
• The Office of Surface Mining Reclamation and Enforcement’s coal-killing stream protection rule;
• The Bureau of Land Management’s venting and flaring rule (challenged by industry groups as unlawful and duplicative of EPA regulations);
• The administration's five-year plan for offshore oil and gas drilling (which allows no lease sales in the Atlantic and Pacific Oceans); and,
• The Bureau of Safety and Environmental Enforcement's well control rule (which industry argues would limit offshore oil production).

Two other rules that would undoubtedly go on the list if, as seems likely, the Obama administration finalizes them before January 20^th, 2017 are the Environmental Pprotection Agency’s Proposed Federal Plan for the Clean Power Plan and Proposed Clean Energy Incentive Program Design Details Rule. Both rules are components of EPA’s carbon dioxide emission standards for existing power plants, the so-called Clean Power Plan, which is currently being litigated in the D.C. Circuit Court of Appeals.