This commentary was originally published by The Regulatory Review. Reprinted with permission.
The Congressional Review Act (CRA) provides the U.S. Congress with an expedited procedure to review and potentially overturn rules issued by federal agencies. Despite being touted as a critical avenue for congressional oversight, the CRA is more often deployed as a partisan tool that replaces agency expertise and democratic consideration with political maneuvers and slim voting majorities. In a recent analysis, the Center for Progressive Reform took stock of how Congress used the CRA and showed how easy it is to misuse “resolutions of disapproval”—the specialized form of legislation it creates—both in numbers and the scope of its application.
It is tempting to think that the threat of the current Congress abusing the CRA is over, now that the deadline to revisit rules implemented during the previous Congress’s session—provided by the CRA’s unique “lookback provision”—has formally passed. But that would be a mistake, as conservative lawmakers have found novel ways to target agency actions from previous administrations.
Through the CRA, Congress requires federal agencies to submit all rules to Congress and the Government Accountability Office (GAO). Doing so opens the door for Congress to use expedited procedures to review and potentially take action on the rule. Starting in 2025, Republican lawmakers began implementing a new mechanism to apply CRA procedures beyond their historical use by reviewing actions federal agencies had not submitted to Congress when they were finalized. If an agency does not submit a final action that Congress thinks should be subject to CRA review, congressional practice is to request an opinion from the GAO. If the GAO finds the action is subject to the CRA, the GAO opinion serves as submission of a rule, beginning the 60-legislative-day clock.
This maneuver allowed Republican lawmakers to seek out older guidance documents that had not been submitted for consideration under the CRA in the past. One such application, which is almost guaranteed to cause great harm to ecosystems and communities alike, is the use of CRA to rescind the U.S. Department of the Interior’s resource management plans (RMP) and similar guidance documents. RMPs are comprehensive land-use blueprints that guide the allocation, use, and protection of public lands. These plans balance development, recreation, and conservation of natural and cultural resources such as water, wildlife, and mineral extraction.
RMPs, along with other plans that provide guidance on land management issues, are incredibly complex to develop, often requiring years of careful research and thoughtful consideration of sometimes-contradictory policy goals. This approach to ensuring that multiple policy goals are achieved contrasts sharply with the approach of the CRA, which disregards this nuanced consideration.
So far, Republicans in Congress have rescinded five of the Bureau of Land Management’s land management plans, affecting millions of acres of public lands in Alaska, Montana, North Dakota, and Wyoming. My colleagues at the Center for Progressive Reform and I found in our analysis of rescinded RMPs and other land management dockets that the rescinded plans were developed through years of nuanced research and public engagement. While developing these five plans, agencies held over 100 public meetings and received tens of thousands of public comments.
These gargantuan public engagement efforts have been replaced by simple majority votes in Congress along partisan lines and without the opportunity for public engagement. The CRA’s truncated procedures afford few meaningful opportunities for debating the policy merits of the resolutions. They also bar lawmakers from considering more surgical revisions to a rule in lieu of striking the whole thing down, lock, stock, and barrel.
Our analysis also shows that the use of the CRA to overturn RMPs also represents an affront to agency coordination and collaboration. During the policymaking process of these five plans alone, the Bureau of Land Management engaged with at least 15 Indian tribes, six other federal agencies, 12 state agencies, and more than 35 counties and conservation districts.
From this perspective, these resolutions are best seen as an act of pure destruction, rather than an exercise of the policymaking that Article I of the U.S. Constitution assigns to Congress. Far from disciplining a regulatory system that has supposedly fallen out of balance within our constitutional framework, these resolutions seem more indicative of individual lawmakers’ pet peeves or virtue-signaling.
Moreover, Republicans have already introduced joint resolutions to rescind additional RMPs and a management strategy plan developed by the U.S. Fish and Wildlife Service, as well as another resolution to rescind the Public Land Order 7917, which withdrew approximately 225,504 acres of National Forest System lands in Cook, Lake, and Saint Louis Counties, Minnesota, from mineral and geothermal leasing for 20 years. This last resolution, which has already cleared the U.S. House of Representatives, would affect one of the most pristine freshwater ecosystems in the country.
Supporters of the CRA often claim that the CRA has an important role to play in overseeing the performance of regulatory agencies. The Center for Progressive Reform’s analysis, however, makes clear that the CRA is at best irrelevant to this goal and at worst counterproductive.
By now, there is enough evidence to justify abandoning the CRA experiment. Lawmakers should start developing better tools for supervising and checking agencies that do not put the public, the environment, and our democratic values at risk.
