Do not go gentle into that good night,
… burn and rage at close of day;
Rage, rage against the dying of the light.
Anyone who thinks the climate community will not have Donald J. Trump to kick around anymore after the votes are tallied in November is sure to be disappointed. His works and what he’s wrought will linger long after the man has left the building.
Transitions can be hard for out-going members of a defeated administration. The power of the presidency is a heady business. For those close to it, going back to “civilian life” can be a real downer. No more limousines, no more being given the best table at restaurants, no more “yes sir, yes ma’am” what a great idea, just because you’re seated close to power.
Under these circumstances, a certain amount of pranking and pilfering is to be expected. The out-going Clinton administration was reported to have left its mark as the George W. Bush administration moved in. For example, the letter “W” on computer keyboards was said to have been vandalized. In some cases, the letter went missing, while in other instances, it was glued down.
There were other reports of lewd and scatological voice-mail messages that someone’s granny heard and randomly putting “savory” pictures inserted into stacks of blank printer papers that would come up in the strangest places. Who said the Clinton administration didn’t have class?
Sensing that Trump and the Republicans in Congress will be taking heavy losses in November, the administration is laser-focused on finishing its deregulation agenda, particularly environmental rules. The administration is not going into that good night without leaving its mark. I’m not speaking here of juvenile pranks like pilfering towels and cellophaning toilet seats.
Although finishing up as much of its deregulation as possible, the administration is mindful of the Congressional Review Act (CRA or Act). Under the CRA, before a rule can take effect, an agency must submit a report to each house of Congress and the comptroller general.
From the moment a “major” rule is submitted, Congress has 60 legislative day[i]s to pass a joint resolution of disapproval. Once approved, the resolution is submitted to the President for his signature or veto. The rule has not been utilized very often for practical reasons.
Unless the President and Congress are of the same party, the joint resolution wouldn’t be acted on favorably by one or the other chamber or signed by the President. According to the Congressional Research Service, only 17 out of the nearly 91,000 rules published in the Federal Register have been repealed using the CRA.
Twelve of the 17 rules were in the first two years of the Trump administration when the Republicans last had control of Congress. Of the 17 rules, two were climate-related. They were the Stream Protection Rule and the Resource Management Planning regulation—both issued by the US Department of the Interior.
Having benefitted from the CRA, the administration is mindful that the 60-day window will still be open when the 117th Congress is first gaveled into session. Should the Democrats make a clean sweep of it, the first order of business will be to disapprove as many of the Trump rules as possible.
It’s hard to know with certainty when the 60-day clock will start ticking. However, it would not be unreasonable to think that any major rule submitted to Congress between August and the end of the year would have a good chance of being subject to the CRA.
Some of the rules subject to CRA scrutiny have yet to be written. For example, the administration is likely to open the Tongass National Forest in southeastern Alaska to commercial logging and other development by granting it an exemption to the Roadless Rule issued by the Clinton administration in 2001.
The likely exemption by the Department of Agriculture (USDA) follows the completion of a final Environmental Impact Statement. The Tongass, covering some 16.7 million acres, is a huge carbon sink. The USDA exemption would cover 9.2 million of those acres.
The proposed exemption is supported by all three of Alaska’s Republican Congressional delegation, including Senator Murkowski. It is opposed, however, by environmental and indigenous groups, including nine tribal governments.
Rules being challenged in court could also be counted as CRA-bait. Litigation that ends in favor of the administration and leads to a rule being made final could still be the subject of a joint resolution of disapproval.
The CRA is particularly useful procedurally because a disapproval resolution requires only a simple majority to pass—making it virtually immune to a filibuster that would require a 60-vote super-majority. There is a realistic possibility that the Senate will fall into Democratic hands. However, it is likely they would do so by the barest majority.
The Act, according to the Congressional Research Service (CRS), does not appear to apply to proposed rules. However, the CRA does not expressly state a rule must be final before Congress may review it.
A similar yes and no situation occurs in determining to which rules the Act actually applies. Although the Act seems directed only to major rules, CRS has indicated it can…overturn any final rule regardless of whether the rule is major.
A major rule is defined as having or causing:
- an annual effect on the economy of $100,000,000 or more;
- a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
- significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
Some guidance documents, policy statements, and other agency actions not subject to the Administrative Procedures Act’s (APA) notice-and-comment rulemaking procedures may also be the subject of a joint disapproval resolution. Should a Democratic Congress and a Biden administration choose to do so, it could follow the Trump administration’s guidance[ii] making the action of independent regulatory agencies, e.g., Federal Election and Consumer Product Safety Commissions, subject to the CRA.
Given the Trump administration’s secretiveness, it could attempt hiding a rule by failing to submit it to Congress. To paraphrase Senator Warren (D-MA), there’s a rule for that. Members of Congress can submit an action it believes subject to the CRA to the Government Accountability Office (GAO) for a determination.
The passage of a joint disapproval resolution could make it more difficult for an administration to issue a replacement regulation more to its liking. The CRA provides that an agency may not reissue the rule in” substantially the same form or substantially the same as the disapproved rule. However, a rule may be reissued if it is specifically authorized by a law passed after the joint resolution.
Interestingly, the Act fails to define the phrase substantially the same. Ordinarily, that kind of loose legislative language would be tailor-made for a lawsuit. With the reconstituted Supreme Court of six textualists, it would be difficult for an administration to defend its issuance of a similar rule.
However, the Act prohibits judicial review of any determination, finding, action, or omission under the CRA. It is language specific enough to trump any claims of impropriety.
In defense of the environment, a Biden administration may wish to follow a Trump administration legal tactic to prevent or delay any regulations still pending a judicial decision—of which there are many. The tactic is known as abeyance.
Quite simply, an administration may ask the court to hold-off a decision because it no longer supports the contended regulation. The Trump administration used the strategy to advantage to keep Obama’s Clean Power Plan (CPP) bottled up until it could issue its Affordable Clean Energy (ACE) rule.
The strategy would work well for an incoming Biden administration. Shoddy work practices and the mistaken belief that a president is free to do what he pleases—when he pleases—has been the Trump administration’s Achilles heel when it comes to deregulating the environment Astoundingly, Trump’s lawyers have lost nearly 90 percent of their rule-related cases.
As Forbes neatly put it–
The very tools Trump has used to undo Obama-era protections could come back to haunt him, leaving his own deregulatory accomplishments equally, if not more vulnerable to annulment by a future administration.
Who said there was no justice in this world?
[i] A legislative day are those when the Congress is in session and doing business. In real-time, the period may cover two or more months.
[ii] In April 2019, however, the Trump Administration issued guidance clarifying that agencies, including independent regulatory agencies, should submit their rules to Office of Information and Regulatory Affairs (OIRA) for this determination.