By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On March 25, 2021, Democrats in the Senate and House of Representatives introduced joint resolutions pursuant to the Congressional Review Act (CRA) that if approved by Congress and signed by President Biden would rescind the Trump-era rollback of Obama-era regulations that (1) imposed methane-specific emission limits on “production and processing” segments of the oil and gas industry and (2) required that transmission lines and storage equipment be inspected for methane leaks and repaired in a timely manner in accordance with the New Source Performance Standards for the Oil and Natural Gas Industry. The CRA resolution, if approved by Congress and signed by President Biden, would reinstate these Obama-era regulations for the oil and gas industry.
The CRA, which was enacted in 1996, is a tool that allows Congress to disapprove a range of regulatory rules issued by federal agencies by first approving a joint resolution of disapproval that then goes to the President for signature. If signed by the President, the disapproved rule either does not take effect or does not continue. In addition, once a joint resolution of disapproval is enacted, the CRA provides that a new rule may not be issued in “substantially the same form” as the disapproved rule. Congress has a limited window to act—the CRA requires that a joint resolution of disapproval must be introduced within 60 legislative working days of the date that the rule was submitted to Congress.
The CRA had not been widely used prior to the Trump administration and the Democrats had widely criticized President Trump's prior use of the CRA to rescind Obama-era regulations. As such, there had been some uncertainty as to whether the Democrats would embrace this tool in light of their prior opposition and hostility to the use of the CRA by many environmental groups. However, with this joint resolution and another March 23rd CRA resolution to disapprove of the Equal Employment Opportunity Commission’s conciliation rule, the CRA floodgates may have opened. The resulting deluge will likely be of short duration, however, as the window for CRA disapprovals for Trump-era actions is expected to close on April 4th.