Wednesday seemed to offer a somewhat dispiriting conclusion to what had been a hopeful period for regulatory-reform advocates. Senate Republicans were unable to muster the 51 votes needed to repeal Obama-era rules governing methane emissions that stem from oil or natural-gas drilling. Vice President Mike Pence, on Capitol Hill to break any ties, ultimately wasn’t needed, as three Republicans crossed the aisle to vote down the repeal effort 51-49.
To ax the rule, the Senate tried using the Congressional Review Act, an oft-overlooked 1996 law that allows Congress to disapprove any agency regulations enacted within the previous 60 legislative days. Crucially, the CRA uses an expedited-review process, allowing repeal votes to avoid a Senate filibuster. Wednesday’s vote marked the first failure of congressional Republicans since Donald Trump’s inauguration to garner the necessary votes to send a CRA repeal to the president’s desk.
More disappointing than the failure of a particular vote is that Republicans now appear willing to let the CRA die a quiet death for the rest of the current Congress. Senate leadership recently announced that the 60-day window for targeting Obama-era rules under the CRA’s expedited process is set to close this week. While Republicans have made unprecedented use of the CRA—it’s been used 14 times this Congress to cut an estimated $3.7 billion in total regulatory costs—they are potentially handicapping the law’s ability to become a “regulatory game changer.”
That’s because GOP leaders appear to not be taking the CRA literally. As has been pointed out by Todd Gaziano of the Pacific Legal Foundation, the law’s window of 60 legislative days for repealing prior regulations does not start running until the latter of two events: either the regulation is published or the agency submits a report about the rule to Congress.
PLF’s website RedTapeRollBack.com has found hundreds of examples of agencies failing to submit the required rule reports to Congress. Therefore, for those rules, the CRA’s 60-day clock was never triggered. Regulations from as far back as 1996—the year the law was passed—could be targeted if a proper rule report was never submitted.
Legal scholars also recently have argued that the CRA applies even to agency guidance documents, memoranda and policy statements—what are referred to collectively as “regulatory dark matter“—in addition to the more formal rules issued by agencies. Combining the expanded timeframe of the CRA with its ability to target agency dark matter would allow Congress to repeal actions like the infamous 2016 Environmental Protection Agency guidance that served as the basis for the agency’s contentious Waters of the United States rule. The deregulatory implications of using the CRA more aggressively to target agency actions in this way are vast.
Despite the fact that the CRA text clearly supports such interpretations, congressional leaders so far have refused to pick this low-hanging deregulatory fruit. In February, Senate Majority Leader Mitch McConnell indicated his reluctance to adopt this interpretation of the CRA, but declined to fully explain his reasoning. The Senate Policy Committee’s website continues to adhere to the more limited interpretation of the CRA and fails even to mention that many agencies have neglected to submit reports required under the law. Perhaps Republican leadership will embrace a broader interpretation of the law as more floor time becomes available in the House and Senate, but as of yet, they have not publicly indicated a willingness to change course.
The Trump administration and congressional Republicans have talked a big game when it comes to deregulation. The president has issued several strong executive orders aimed at rolling back the administrative state. But such a “pen and phone” strategy is subject to unwinding by a future president. For its part, Congress has thus far failed to pass any form of comprehensive regulatory-reform legislation, despite having a menu of options from which to choose.
This week’s failed CRA vote on the methane rule underscores a frustrating trend in the current deregulatory push. Republicans have achieved some noteworthy reforms, but they are failing to take full advantage of the tools at their disposal. Given GOP control of both the White House and Congress, the party’s leaders should be careful not to waste this rare opportunity.
Image by John Kershner