Numerous 11th Hour Trump Administration Rules May be Undone by Congressional Review Act

Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--When the two newly elected U.S. senators from Georgia are sworn into office in the coming days and majority control over that body passes from Republican to Democratic hands, there's a long list of business to be tackled. Some of the most pressing business stems from the January 6 riot at the Capitol, including the second impeachment of outgoing President Donald Trump.

Somewhat lower on the list of priorities includes using the Congressional Review Act (CRA) to potentially overturn rules enacted in the 11th hour of the Trump administration. The CRA was enacted in the 1990s by House Republicans under the leadership of Newt Gingrich, who were bent on reversing some last-minute Clinton administration measures.

The CRA provides a new Congress with the opportunity to overturn regulations finalized by the executive branch in the last 60 days of the previous year's legislative calendar. A simple majority in both the House and Senate is sufficient to overturn regulations finalized by the Trump administration after late-August 2020, according to Daniel Pérez, an analyst at George Washington University Regulatory Studies Center.

In an interview with The Wall Street Journal, he estimated 1,313 rules that were published in the Federal Register since late August 2020 could be vulnerable to being overturned by the CRA.

As the Trump administration worked to finalize rules, Industrial Info's articles noted the potential for CRA reversal. For examples, see December 30, 2020, article - Final Rule on Clean Air Act Cost-Benefit Calculation May Make It Harder for Future Presidents to Toughen Regulation, August 17, 2020, article - Trump Administration Scales Back Methane-Capture Rules from Obama Administration, July 17, 2020, article - Trump Administration Finalizes Changes to Major Environmental Law and June 16, 2020, article - Clean Water Act Changes Aim to Speed Energy Projects, but May Delay Them Instead.

There are several energy and environmental rules that could be vulnerable to CRA challenges, including:

• The Strengthening Transparency in Regulatory Science rule, under development since 2018 by the Environmental Protection Agency (EPA) (Washington, D.C.) and published in the Federal Register on January 6, 2021. That innocuous-sounding rule prohibits the EPA from relying on any scientific study where the personal information of participants was not released publicly. In performing large-scale studies, researchers typically provide confidentiality to participants.
• The decision not to tighten ground-level ozone standards under the Clean Air Act amendments.
• The Clean Air Act's Benefits and Costs Rulemaking, which ruled out including "co-benefits" in the calculation of benefits under that law.
• Creating new classes of equipment for showerheads, clothes washers and dryers, which would exempt certain types of those appliances from existing efficiency standards. A separate rulemaking relaxed efficiency standards for dishwashers.
• The Coal Ash Disposal Rule, which provided a mechanism where unlined coal ash ponds would be allowed to continue operating under certain conditions.
• The Effluent Limitations Guidelines rulemaking, which sought to lower technology costs associated with treatment and transportation of flue-gas desulfurization (FGD) wastewater and for bottom-ash (BA) transport water. The rule met those goals, in part, by creating new subcategories of affected plants and new compliance timeframes.
• Easing requirements to regulate methane emissions from midstream assets and from wells drilled on federal lands.
• Changes to the National Environmental Policy Act (NEPA) that exempted certain types of projects from federal review, shortened the timeline for environmental reviews and prohibited officials from considering a project's potential to contribute to global climate change.

These measures may not make it to the top of the priority list for the new Congress. Democrats might want to tackle other, more controversial, Trump administration rules first, mainly relating to immigration. Nearly all of the Trump administration energy and environmental rules that could be targeted by the CRA represented efforts to undo measures enacted by the Obama administration.

Industrial Info Resources (IIR), with global headquarters in Sugar Land, Texas, six offices in North America and 12 international offices, is the leading provider of global market intelligence specializing in the industrial process, heavy manufacturing and energy markets. Industrial Info's quality-assurance philosophy, the Living Forward Reporting Principle, provides up-to-the-minute intelligence on what's happening now, while constantly keeping track of future opportunities. Follow IIR on: Facebook - Twitter - LinkedIn. For more information on our coverage, send inquiries to info@industrialinfo.com or visit us online at http://www.industrialinfo.com.