CPR Member Scholars Send Letter to Senate Criticizing “Attempted Misuse” of the Congressional Review Act

Yesterday, 13 Member Scholars of the Center for Progressive Reform (CPR) sent a letter to the U.S. Senate expressing their concern about S.J. Res. 30, a Congressional Review Act (CRA) “resolution of disapproval” introduced by Senate Minority Leader Mitch McConnell (R-KY) that seeks to block the Environmental Protection Agency’s (EPA) proposed Clean Air Act New Source Performance Standard (NSPS) to limit greenhouse gas emissions from future fossil-fueled power plants. Drawing on their many years experience in administrative law, the Member Scholars make the case that McConnell’s proposal is at odds with the CRA, because it seeks disapproval not of a final regulation, but of a regulation that has merely been proposed.  “By attempting to subject a proposed rule—as opposed to a final rule—to this process,” they write, “S.J. Res. 30 is contrary to the statutory language and could raise questions as to the legitimacy of any resolution of disapproval.” 

Some history is in order.  Senator McConnell introduced S.J. Res. 30 in January, and in a slap in the face to, well, everyone, he fired off a letter to the Government Accountability Office (GAO) raising the very issue that the CPR Member Scholars are now flagging: He asks them to “review” Congress’s ability to use the CRA to force an up-or-down vote to stop the EPA’s proposed NSPS. As explained below, what McConnell hopes to use the CRA for is to prevent any kind of rule that resembles the proposal to go forward.  The GAO has not yet responded to Senator McConnell’s inquiry, but he seems determined to move ahead with the resolution anyway. Incidentally, the GAO FAQs page on the CRA seems to suggest that the GAO presumes that the CRA does not apply to proposed rules. One question asks: “Should agencies submit proposed rules to GAO? i.e., to initiate the CRA process.” The answer provided states: “No. Agencies should only submit major, nonmajor, and interim final rules to GAO.”

According to the Member Scholars, S.J. Res. 30 threatens to “short-circuit the general rulemaking process established under the Administrative Procedure Act (APA) and the more specific procedural requirements of the Clean Air Act. As they explain, this result would “defeat the ability of the public and regulated entities to meaningfully participate in the development of this regulatory policy and contribute to the exact kind of ‘regulatory uncertainty’ that many of supporters of S.J. Res. 30 have criticized in the past.”

They also criticize the supporters of S.J. Res. 30 for targeting the EPA’s NSPS to limit greenhouse gases from future power plants. If successful, they explain, S.J. Res. 30 would needlessly delay critical action to limit greenhouse gas emissions from the largest sources, even though we are quickly running out of time to avoid the worst consequences of climate disruption. The letter points out that a resolution of disapproval under the CRA wouldn’t just block a particular rulemaking; it would also prevent the agency from issuing any future rules that are substantially the same without explicit legislative authorization from Congress. S.J. Res. 30 would therefore potentially “chill the development of all future proposals aimed at limiting greenhouse gas emissions from future power plants."

That would certainly please Senator McConnell. Still, he must know that S.J. Res. 30 will never be adopted—even if it were to pass the Senate (no easy lift) and the House (no heavy lifting required), President Obama would veto it in a heartbeat. After all, the President has made addressing climate disruption a top priority for the second term. (Of course, Congress could always attempt to override the veto, but if getting 51 votes in the Senate is a heavy lift, getting 67 is unimaginable.)

In the unlikely event that S.J. Res. 30 was actually successful, the consequences for the public would be nothing short of disastrous. As noted, S.J. Res. 30 would effectively prevent the EPA from taking meaningful action against greenhouse gas emissions from future power plants for the foreseeable future.  Senator McConnell undoubtedly saw this feature of the law as an added bonus when he decided to throw the CRA-equivalent of a “Hail Mary” with S.J. Res. 30. The upshot, though, is that the United States would have few options left to avert the worst consequences of climate disruption.

It’s hard not to look at S.J. Res. 30 as anything other than a political stunt.  Senator McConnell faces a tough primary challenge this election cycle from the right, a Tea Party-backed candidate who is attempting to portray McConnell as weak on protecting Kentucky’s coal industry. S.J. Res. 30 is Senator McConnell’s way to show his pro-coal bona fides, no matter its inconsistency with existing law, and no matter how bad it would be as a matter of policy. While Senator McConnell may see S.J. Res. 30 as a boost for his reelection prospects, if enacted it would likely have serious negative consequences for public health and, down the road, for our economy and national security. The public deserves—and should expect—more from its elected leaders.