What Biden Rules Could Congress Unplug With Review Act?

EJ TransitionWatch: What Biden Rules Could Congress Unplug With Review Act?

By Joseph A. Davis

Cleaner cars? Forget about it. Green power? Don’t bet the ranch. Infrastructure billions? Give them here. As GOPers come to power in Congress and the White House, they will try to undo much (not all) of what the Biden administration has done.

But can they? In the past, a law called the Congressional Review Act allowed Congress to block last-minute executive branch regulations. This year the confrontations will likely look different.

The CRA only works when one party has a trifecta (House, Senate, White House) and the other party is giving up the White House.

Congress can block regs from the previous administration’s final months with a simple majority vote on a privileged resolution in both chambers — no filibusters allowed. The president must sign the CRA resolution, so it’s otherwise an easy veto when she or he is of the opposition party (not the case this time). Both parties know the rules.

 

Counting the ‘days’

The Biden agencies had been rushing to make the deadline. But one problem is that nobody is absolutely certain when those deadlines are.

Congress can vote to block only those rules finalized in the last 60 days of a session. Because Congress’ rules are weird and the law has us counting legislative days and session days, the deadline is hard to compute. The Congressional Research Service puts it around Aug. 1.

 

The act was designed to

work only on regulations.

So it wouldn’t work for,

say, executive orders.

 

Another complication: The CRA was designed to work only on regulations as understood under the Administrative Procedures Act, according to the CRS. So it wouldn’t work for, say, executive orders. This is another issue likely to come up during the transition.

A further potential handicap for Republicans will be their whisper-thin margins in both chambers. Deviations from the party line could arise from state and regional fuel politics. CRA resolutions still need to get more than half the votes. That may be hard, especially in the House.

 

Environmental regs in the crosshairs

When (not if) Congress delves into CRA rollbacks, one of the earliest is likely to be the strengthened emissions standards for cars and light trucks, as well as heavy-duty pickup trucks and vans. It was published in final form June 24.

One of the earliest rollbacks expected is of the Biden administration’s strengthened motor vehicle emissions standards. Photo: Ivan Radic via Flickr Creative Commons (CC BY 2.0).

Also in the crosshairs will be a suite of four standards that restrict carbon emissions and other pollution from fossil fuel-fired electric power plants. If repealed, they would undo a big component of Biden’s climate program. Repeal would also delight Trump’s billionaire oil and gas industry donors.

This package came out April 25 — before the Aug. 1 deadline (unless you can hire an expensive lawyer).

There are plenty of other Biden environment and energy rules that could face CRA rollback efforts.

For instance, the Biden EPA issued a final rule mandating the replacement of lead service lines from municipal drinking water utilities. It will help reduce lead poisoning — and Biden’s infrastructure legislation gave $15 billion in federal aid to help utilities do the job.

The problem is that the rule came out Oct. 8. Who would oppose such a rule? The water utilities.

There are many other CRA-vulnerable rules. For example: energy efficiency standards. Biden got a large number done before any possible CRA deadline. But a few shaved it close, and may be at risk.

 

Speed bumps for deregulatory euphoria

To those GOPers who get euphoric over deregulation, the CRA is like cocaine. During the early months of the Trump 1.0 presidency, Congress used the CRA to roll back some 16 Obama regulations.

During the just-adjourned 118th Congress, the GOP House passed a bill (subscription required) on Dec. 18, 2024 that would have allowed them to lump together CRA resolutions, making passage easier. But the bill had no chance in the Senate.

The battleground we can expect as Congress warms up in 2025 will probably involve the scope of the CRA’s applicability.

 

Trump immediately declared

that he would reverse a Biden

offshore drilling ban “on day one.”

 

Just for example: Biden on Jan. 6 banned drilling off the shores of much of the United States, and Trump immediately declared that he would reverse the ban “on day one.” Except that legal precedent and the federal drilling law say he can’t. At least not without an act of Congress.

Would Republicans try to use the CRA to do the same? Even if they had the votes, the matter would end up in court.

There’s another CRA deadline to keep track of. Congress has only 60 days after a new Congress begins to act on rules from the previous administration — and the counting rules for this are also quite complex.

But the new Congress could be mired in chaos for some while (we are just speculating here). Would tussles over the big reconciliation bill Trump envisions get in the way?

[Editor’s Note: For more on the Congressional Review Act, see our TipSheet at the start of the first Trump administration and another TipSheet looking at the process heading into the Biden administration.]

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

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* From the weekly news magazine SEJournal Online, Vol. 10, No. 2. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.