A GOP Senate would mean that a Biden administration would lose the opportunity to cancel President Trump’s regulatory rollbacks using the same procedural tool that Republicans used effectively to wipe out Obama regulations.
The upshot for Republicans would be that it could take Democrats months or years and tortuous legal battles to roll back Trump administration actions that weakened climate and environmental mandates. It would be a setback for a Biden administration that would want to move at light speed on climate change.
At issue is a legislative tool known as the Congressional Review Act, or the CRA. The law allows both chambers of Congress to pass a joint resolution to end recently implemented regulations.
Critically, CRA resolutions require only a simple majority vote from the Senate. They can bypass the filibuster and come quickly to the floor.
If Mitch McConnell retains control of the Senate, though, the CRA wouldn’t be available to a President Biden. Instead, Biden would have to work through the normal agency rule-making process, which is time-consuming and gives opponents opportunities to stall or stop the regulation.
“They will have to do the hard work of notice-and-comment rule-making,” said Jeff Holmstead, a partner with Bracewell LLP who led the Environmental Protection Agency’s air office during the George W. Bush administration. “Even where Trump regulations are being challenged in court, they can ask for voluntary remands, but they still have to go through a rule-making to revise or revoke them.”
The CRA has been around for decades, since 1996, but it was little used until 2017, when the Trump administration and Republican-controlled Congress used it to eliminate more than a dozen regulations implemented by the Obama administration.
The eliminated Obama rules included a water pollution mandate for coal mining and a rule allowing more public input in federal land management decisions.
There are several Trump administration rules that could be subject to a CRA attack, such as the elimination of direct regulation of the potent greenhouse gas methane from oil and gas facilities and revisions to environmental permitting requirements.
Any rules the Trump administration would finish in the next few months would also be vulnerable. The Environmental Protection Agency, for example, has signaled it hopes to finish major priorities by the end of the year, including a rule that changes the way it calculates costs and benefits to justify pollution limits and a rule to restrict what types of science the agency can consider in decision-making.
Both of those regulations rank at the top of environmentalists’ hit list.
Even so, environmental advocates say the CRA would never have been a silver bullet for a Biden administration.
“I would say it hurts, but not that much,” said Nathan Richardson, associate law professor at the University of South Carolina and a university fellow at Resources for the Future, of an inability to use the CRA. “The main way it hurts is … they have a lot on their plate, and they would need to move quickly.”
But he added the CRA “wasn’t a magic solution to all of their problems.”
Part of the reason is the CRA prohibits federal agencies from crafting rules “substantially similar” to those that have been nullified under the legislative tool. Thus, attacking some Trump-era rules with the CRA could cause “significant complications” if it risks blocking a Biden administration from issuing its own priorities, said Clint Woods, a regulations policy fellow at Americans for Prosperity and former Trump EPA air official.
And even if a Biden administration was working with a Democratic-controlled Senate, it doesn’t guarantee CRA success, especially since the margin in the chamber is likely to be thin no matter the final results, Richardson said.
Even the Trump administration had trouble advancing its CRA agenda in 2017. An attempt to eliminate Obama-era controls on methane from oil and gas operations on federal lands failed when former Republican Sen. John McCain sunk the resolution.
Without the CRA, a Biden administration would still have tools at its disposal to fight Trump administration actions more quickly.
“Even in the absence of the CRA, we would anticipate a Biden [Office of Management and Budget] to push the pause button with a moratorium on outgoing regulations still in the pipeline subject to a systematic review,” said Scott Segal, a partner at Bracewell. That’s par for the course when administrations of a different party take power, he added.
A Biden administration could also change its position in litigation challenging Trump-era actions and choose not to defend them. That strategy “can be just as effective as the CRA” if it leads to decisive court rulings repudiating Trump administration efforts to weaken climate mandates, Richardson said.
In many cases, too, a Biden administration would want to rewrite Trump-era rules that relaxed Obama-era climate controls in a way that sets a much more aggressive emissions mandate. The CRA wouldn’t have helped the administration do that, Richardson said, noting a Biden agency would have to go through a rule-making process for any replacements.
Backers of the Trump administration’s deregulatory agenda, however, are hopeful a Biden administration could find some common ground with its predecessor.
“There are probably some elements of the Trump regulatory reform agenda that maybe shouldn’t be thrown out with the bathwater,” Woods said, listing Trump actions to bring more transparency to agency guidance and to slim down the number of regulations the federal government issues.
Those efforts to cut red tape “have demonstrated that maybe not every burdensome regulation needs to be on the books for decades,” Woods added.
