Now that the 119th Congress has been sworn in, attention turns to how the Republican-controlled House, Senate, and White House will use the Congressional Review Act (CRA). The CRA creates a review period in which Congress can overturn a new federal agency rule by passing a joint resolution of disapproval and having the president sign the resolution. If a rule is overturned through the CRA, the agency is also barred from issuing a similar rule in the future.
Prior to 2017, the CRA had been used sparingly. After he took office in January 2017, however, President Trump signed 16 disapproval resolutions.[1] It is widely expected that we will see heightened activity under the CRA as the new administration takes office.
What Agency Actions Are Subject to the CRA?
Congress can generally deploy the CRA within 60 legislative days of a rule becoming final. In presidential election years, however, that 60-day period is deemed to reset, providing a new Congress an extension of time to act on the final rules within that window.
With the adjournment of the 118th Congress on January 3, it now appears that the CRA will apply to all final agency rules sent to Congress since August 16, 2024. And with the initiation of the 119th Congress on the same day, under the provisions of the CRA senators may begin introducing resolutions later this month (on or about the 23rd), and House members may do so beginning in early February (on or about the 3rd). That means action on CRA resolutions could easily extend into March, depending on the pace of congressional work.
Under the CRA, a "rule" is defined broadly as an agency statement that is generally applicable, has a future effect, and is "designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency."[2] Many agency actions fit this definition: major rules, non-major rules, interim final rules, and even guidance documents and policy memoranda.[3] The three exceptions are (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights and obligations of non-agency parties.[4]
How Is the CRA Implemented?
The CRA requires that disapproval be introduced as a joint resolution. Each joint resolution can be used to invalidate only one final rule in its entirety.[5] Rules come before Congress for CRA action in one of two ways. First, the CRA requires agencies to submit final rules to Congress and the Government Accountability Office (GAO) before the rule can take effect. Members of Congress can also request that the GAO determine whether an unsubmitted agency action constitutes a rule. Once a rule is then submitted to Congress, within 60 days any member of Congress can introduce a joint resolution to disapprove the rule. A simple majority in both chambers is all that is required before the disapproval measure is sent to the president for signature.
What Are the Likely Targets for CRA Action?
While dozens of environmental and natural resources rules may be subject to the CRA, a handful are especially likely to be on the chopping block, based on public statements from sitting representatives or senators. Vulnerable EPA rules include reclassifying air toxics sources under the Clean Air Act, addressing lead service lines, reconsidering lead dust hazard standards and abatement, setting a methane emissions fee, and updating chemical regulations under the Toxic Substances Control Act. Other rules at risk are several Inflation Reduction Act tax credits (including Treasury's recently announced 45V hydrogen rules), the EPA's recent secondary NAAQS rule, the Clean Water Act's Section 404 rule that revises the process for states and tribes assuming delegated authority for dredge-and-fill permits, and ESG-related regulations. Several fairly recent threatened species and critical habitat designations under the Endangered Species Act may also be subject to CRA action.
We have found two publicly available trackers to be particularly helpful: one from George Washington University's Regulatory Studies Center (https://regulatorystudies.columbian.gwu.edu/congressional-review-act-window-exploratory-dashboard) and one from Public Citizen (https://www.citizen.org/article/cra119/).
Venable's Environmental Practice Group and Legislative and Government Affairs Group will be monitoring CRA developments as the new Congress convenes and likely considers disapproval resolutions to be voted on and sent to the White House after the Trump inauguration.
[1] Ballotpedia, Federal agency rules repealed under the Congressional Review Act (https://ballotpedia.org/Federal_agency_rules_repealed_under_the_Congressional_Review_Act).
[2] U.S. Department of Transportation, CRA Memorandum Final 8, https://www.transportation.gov/sites/dot.gov/files/2024-08/CRA%20Memorandum%20Final_7.18.24.pdf (citing 1 5 U.S.C. §§ 551(4), 804(3); Valerie C. Brannon & Maeve P. Carey, The Congressional Review Act: Determining Which "Rules" Must be Submitted to Congress, CONG. RSCH. SERV., 5 (March 6, 2019); e.g., GAO, B–335488, U.S. Department of Transportation—Applicability of the Congressional Review Act to Notice of Funding Opportunity for the Department of Transportation's FY 2023–2024 Multimodal Project Discretionary Grant Opportunity, 4–5 (Oct. 18, 2023)).
[3] While the CRA applies to a broad category of rules, the statute only delays the effective date of major rules, not non-major rules. Id. at 4.
[4] Maeve Carey and Christopher Davis, The Congressional Review Act (CRA): A Brief Overview (CRS Report No. IF10023) (Aug. 29, 2024), https://crsreports.congress.gov/product/pdf/IF/IF10023.
[5] Maeve Carey and Christopher Davis, The Congressional Review Act (CRA): Frequently Asked Questions 15(CRS Report No. R43992) (Nov. 12, 2021), https://crsreports.congress.gov/product/pdf/R/R43992.