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The Congressional Review Act Could Be Put to Positive Short-Term Use, but It Should Still Be Repealed

The Congressional Review Act (CRA) is a bad law and should be repealed. Yet, it has taken on outsized importance given that it provides one of the few vehicles for moving substantive legislation through a hyper-polarized Congress. The upcoming elections are thrusting it back in the spotlight, so let’s talk about the CRA and how opponents of the Trump administration’s assault on public safeguards might put it to its highest and best use.

First things first, though: The CRA only becomes viable if the Democrats sweep the presidential election and secure majorities in both chambers of Congress. Some polling suggests that the stars appear to be aligning in this fashion, just as they did at the beginning of the Trump administration when the full aggressive force of the CRA was first deployed. If this happens, that means any rules issued “late enough” in the Trump administration would be fair game for repeal thanks to the CRA’s “carryover provisions.” Because the cutoff date for whichever rules ends up being “late enough” has to do with congressional session days, it will be impossible to predict until the final calendar for Congress has been set – an unknowable unknown even in the best of times, let alone now in the midst of the COVID-19 pandemic when everything has been thrown into disarray. The best guess is that the cutoff date will fall sometime between late April and mid-May. Any rules issued by the Trump administration after that date would be eligible for repeal through the CRA in the next Congress.

Not all of the Trump administration’s anti-safeguard policies that would be eligible for repeal would make good candidates for repeal through the CRA. Given the fundamentally anti-safeguards orientation of the CRA, its use carries some potential pitfalls that lawmakers should be wary of. Moreover, even given the CRA’s expedited legislative procedures in the Senate, practical time constraints likely mean that it could only be used around a dozen or two dozen times before those expedited procedures expire (which would likely occur sometime in mid-May 2021, depending on the congressional calendar).

The following framework outlines some factors that could be used for determining which of the Trump administration’s rules might be good candidates for repeal through the CRA:

I tend not to put much stock in this concern, since it seems pretty obvious that a stronger replacement would not be substantially the same as a repealed Trump rollback. Of greater significance, the CRA also seems to prohibit courts from weighing in on the question of whether a replacement rule is substantially the same. That would leave Congress to resolve this question and ultimately to enforce its decision. An agency could issue a replacement and wait to see whether and how Congress reacts. Developing a rule is a very resource-intensive process and carries great opportunity costs. So, agencies might understandably be leery of taking this risk. But, if Democrats control at least one chamber of Congress at the time the replacement is issued, then it seems likely that the replacement will be permitted to stand.

Significantly, though, this “salt the earth” provision can also work in the favor of progressive policy goals. The Trump administration has issued several dangerous policies that progressives very well might want to prevent a future administration from issuing a replacement for. In the environmental realm, this might include the EPA’s “censored science” and “benefits-busting” rules. In other policy milieus, the Trump administration’s regulatory attacks on immigrants and the LGBTQ+ community might seem to be particularly attractive candidates for CRA repeals given the “salt the earth” provision.

The above framework suggests that the CRA offers some utility to supporters of regulatory safeguards in the next Congress. And while I don’t endorse the use of the CRA in this manner, I can certainly understand why supporters of safeguards might reject unilateral disarmament and fail to take full advantage of the powers that the law offers.

On balance, though, I think supporters of regulatory safeguards would do better to focus their energies on repealing the CRA. While it can offer a few “wins” in the short term, the CRA is inherently stacked against protective safeguards and will produce a lot more losses over the long run. For progressives, the CRA is a fool’s game they cannot win.

But the question of repealing the CRA itself raises an interesting dilemma. It seems unlikely that legislation to repeal the CRA could ever pass as long as the Senate filibuster is in place. So, if Democrats make good on their growing threat to abolish the Senate filibuster, would repealing the CRA itself even still make sense? After all, one of the main procedural advantages the CRA offers is to briefly insulate legislation to repeal rules from the Senate filibuster. The answer is yes.

Even in a world without the Senate filibuster, progressives should remain committed to repealing the CRA. That’s because the CRA contains other procedural shortcuts, including measures to bypass committee consideration, limit Senate floor debate, and avoid conference committees. All these shortcuts would still exist, and they would be available to benefit legislation that is uniquely designed to attack regulatory safeguards. Indeed, these additional legislative procedures – most notably committee consideration and conference committees – would become all the more valuable in the absence of the Senate filibuster because they would provide the strongest barriers against reckless efforts to repeal existing agency safeguards. Whether or not the Senate filibuster remains, privileged procedures for legislation that has the sole purpose of putting narrow corporate interests ahead of public protections should not exist.

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James Goodwin | August 20, 2020

The Congressional Review Act Could Be Put to Positive Short-Term Use, but It Should Still Be Repealed

The Congressional Review Act (CRA) is a bad law and should be repealed. Yet, it has taken on outsized importance given that it provides one of the few vehicles for moving substantive legislation through a hyper-polarized Congress. The upcoming elections are thrusting it back in the spotlight, so let’s talk about the CRA and how opponents of the Trump administration’s assault on public safeguards might put it to its highest and best use.

William Buzbee | August 13, 2020

New Science Magazine Article Lays Bare Failings of Trump Navigable Waters Rule

A new article in Science magazine that I co-authored with a number of distinguished environmental science professors from around the country dissects the remarkable disregard for science that the Trump administration displayed in its recent dismantling of the 2015 Clean Water Rule, which protected millions of miles of rivers and acres of wetlands from polluters.

Amanda Cohen Leiter | August 13, 2020

My Growing Understanding of Environmental Justice

Environmental justice problems require a willingness to acknowledge privilege and adopt a more inclusive approach. I hope this post might prompt you to reflect, read, and start an uncomfortable conversation or two. We face existential environmental threats almost everywhere around the world, and we won’t succeed in combating them unless we’re all fighting together, for a healthy environment that everyone can enjoy.

Sidney A. Shapiro | August 12, 2020

Administrative Procedures and Racism

Regulatory agencies do not appear to be permeated by overt racism, but structural or institutional racism exists if bias is built into existing institutions. We tend to think of administrative procedures as being neutral between competing points of view, but as the environmental justice movement (EJ) keeps reminding us, this is not necessarily so. It is no secret, for example, that the rulemaking process is dominated by corporate interests, and the same is true of the lobbying that occurs at agencies. Environmental and other public interest groups are hard pressed to match this advocacy. Less noticed is that the fact that there is little or no participation by marginalized communities in rulemaking, although as the pandemic has taught us, our most disadvantaged citizens are the ones that bear the brunt of inadequate government protections. Efforts to reach out and speak to such communities are simply not a regular part of rulemaking practice. True, there is no legal barrier to such participation, but there are considerable structural and economic barriers, which we simply overlook. The administrative process can be more inclusive, and it is time, past time really, to have a discussion how to make it so.

Kim Sudderth, Samuel Boden | August 11, 2020

Toxic Floodwaters and Pipelines in Hampton Roads

On October 20, 1994, rising floodwaters from the San Jacinto River in Houston, Texas, caused a pipeline to break open, allowing gasoline to gush out and the river to catch fire. Such flooding is increasingly likely as the effects of climate change take hold, and yet, in the quarter century since that disaster, the federal government has implemented no new regulations to ensure that oil and gas operators are adequately preparing for the risks from more frequent and intense floods caused by the climate crisis.

Darya Minovi, Katlyn Schmitt | August 5, 2020

Industry-Sponsored Air Monitoring ‘Study’ Provides No Assurances for Marylanders Living Near CAFOs

In July, the Maryland Department of Environment (MDE) released the findings of a new ambient air quality monitoring project focused on the state’s Lower Eastern Shore. This effort was announced more than a year ago as a partnership between the Delmarva Poultry Industry (DPI), a trade group for just what it sounds like, and MDE to monitor ammonia and particulate matter emissions from industrial poultry operations.

James Goodwin | August 4, 2020

CPR Comments Deliver Scathing Critique of EPA ‘Benefits-Busting’ Rule

Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.

Matt Shudtz | August 3, 2020

CPR’s Commitment to Justice, Equity, Diversity, and Inclusion

The nation is finally beginning to grapple with the widespread disparities in public health, economic opportunity, and community well-being across race and class that stem from longstanding systems of oppression and injustice. As systems thinkers, CPR's Board, staff, and Member Scholars have devoted considerable time to researching and understanding the roots of these inequities, considering the disproportionate impacts on frontline communities, and advocating for just policy reform.

Brian Gumm, Matt Shudtz | August 3, 2020

Will Isaias Unleash Toxic Floodwaters along the East Coast?

Based on its current projected path, Tropical Storm Isaias could bring heavy rains up and down the East Coast, from the Carolinas and Virginia to the Delmarva Peninsula, Pennsylvania, and New Jersey. Along the way, the storm could swamp industrial facilities, coal ash ponds, concentrated animal feeding operations (CAFOs), and more. From Hurricane Florence to Hurricane Harvey and beyond, in the past 15 years, we've seen numerous tropical storms flood unprepared facilities. This has caused significant infrastructure damage and unleashed toxic floodwaters into nearby communities and waterways, threatening public health and making residents sick.