The unintended consequences of the Congressional Review Act
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There is a lot of radical policy flying through Washington these days, prepared hastily without proper reasoning or legal review. The results can have radical, sometimes unintended consequences.

One particularly rich source of fly-by-night legislating is an obscure law called the Congressional Review Act (CRA), the largely overlooked mechanism behind some the most controversial congressional votes these past few weeks.  

The list of recent actions carried out under the CRA includes the repeal of Securities and Exchange Commission rules requiring oil and mining companies to disclose otherwise secret payments made to overseas governments.

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Last week a House resolution rolled back a rule requiring private oil and gas companies operating on millions of acres of federal or tribal land overseen by the Bureau of Land Management to reduce nearly 110 billion cubic feet of taxpayer-owned natural gas they waste each year through leaks, venting or flaring. That gas is worth an estimated $330 million dollars annually — more than $1.5 billion since 2013 — and is enough to supply every home in Chicago for a year.

 

All told, there are at least 10 CRA bills moving through the House and Senate.

That’s a big deal. Until now, only one CRA resolution had ever been passed and signed into law: the Occupational Health and Safety Administration’s workplace ergonomics rules, in 2001. The act itself has never been tested in court.

The CRA, which was passed in 1996, sounds simple enough. It says that any federal agency rule can be subject to expedited congressional repeal for 60 legislative days after it’s finalized. Within that window, either chamber can introduce a joint resolution of disapproval that, if passed by both houses of Congress and signed by the president, effectively voids the rule.

But the law greases the skids for all sorts of rash decisions.

A CRA resolution enjoys fast-track privileges, allowing a bill to go straight to the floor without committee hearings. A CRA resolution of disapproval can be brought up at any time, with little or no notice. In the Senate, passage requires only a simple majority (51 votes). The measures are not subject to filibuster.

If the president signs the joint resolution, the agency rule is voided. What’s more, that agency is forever barred from issuing any rule that is “substantially the same” as the as the one voted down, no matter how serious and well founded the case for action might be, and regardless of any new information. This is exactly what happened to the OSHA rule. 

In the case of the BLM natural gas waste rule, industry lobbyists have openly suggested that a resolution of disapproval means that rule could somehow be sent back to the agency for a redo. But this is not how the CRA works. In fact, a CRA resolution is a drastic and extreme legislative move that shouldn’t be undertaken lightly by either political party.

The good news is, lawmakers in both houses appear to be increasingly aware of the issues involved with the CRA. The BLM rule that passed the House last week had a record 11 Republicans voting against, and only three Democrats voting in favor.

The bill could hit the Senate floor at any time. Before they vote, senators should step back and understand that the CRA resolution offers up an axe in place of the scalpel that many are seeking. They should weigh their decision accordingly. 

 

Carol Andress is director of legislative operations, climate & air at the Environmental Defense Fund.


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