{"id":23925,"date":"2024-12-18T10:20:21","date_gmt":"2024-12-18T15:20:21","guid":{"rendered":"https:\/\/blogs.law.columbia.edu\/climatechange\/?p=23925"},"modified":"2025-02-12T16:04:05","modified_gmt":"2025-02-12T21:04:05","slug":"the-congressional-review-acts-threat-to-recent-climate-action","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2024\/12\/18\/the-congressional-review-acts-threat-to-recent-climate-action\/","title":{"rendered":"UPDATED: The Congressional Review Act\u2019s Threat to Recent Climate Action"},"content":{"rendered":"
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As climate advocates prepare for a second Trump administration, the potential threat of the Congressional Review Act<\/a> (CRA) looms large. The CRA, which allows Congress to void certain rules issued recently by executive agencies, saw unprecedented activity during the first Trump administration and is expected to be similarly invoked in the incoming Republican-controlled Congress. Although the reach of\u00a0the CRA cannot be determined until Congress adjourns for the year, estimates predict that a number of important rules related to climate and energy could be in the new Congress\u2019s crosshairs. This blog post provides an overview of the CRA and explains the mechanisms in the law that could allow it to be used effectively by the new Congress; analyzes the risks that the CRA poses to recent climate policy; and explores the long-term implications of the law\u2019s use, which will depend, in part, on the future role of courts in reviewing CRA-related activity.<\/p>\n

The Congressional Review Act<\/h3>\n

The CRA allows Congress to review, and block implementation of, certain rules issued by executive agencies. The law applies to final agency rules but not other presidential or administrative actions, such as executive orders, proposed rules, or guidance documents. When an agency issues a final rule, it must submit that rule to Congress. 5 U.S.C. \u00a7\u00a7 801<\/a>, 804<\/a>. Congress then has 60 session days to consider the rule and, if it chooses, take action. 5 U.S.C. \u00a7 801<\/a>. Under the special procedures prescribed by the CRA, Congress can introduce a \u201cjoint resolution of disapproval\u201d to invalidate the rule in its entirety. If the joint resolution passes both chambers of Congress and is signed by the President (or, if vetoed by the President, has enough votes to override the veto), the agency\u2019s rule will not take effect or will be treated as if it had never taken effect. 5 U.S.C. \u00a7\u00a7 801<\/a>, 802<\/a>. Further, once an agency rule has been struck down under the CRA, that rule cannot be \u201creissued in substantially the same form\u201d unless specifically authorized by Congress. 5 U.S.C. \u00a7 801(b)(2)<\/a>.<\/p>\n

Although the CRA was passed<\/a> in 1996, it went largely unused for the first twenty years of its existence. There are various explanations for why this may be. Some legal scholars suggest<\/a> that, despite the CRA\u2019s passage, Congress continued to rely primarily on appropriations riders as its approach to agency oversight. Others argue<\/a> that the structure of the CRA makes it a difficult tool to use\u2014a President is unlikely to sign a law that voids their own administration\u2019s agency rules, so the joint resolution would need enough support to override a presidential veto.<\/p>\n

However, there is one circumstance in which the CRA can be used particularly effectively: when a change in the presidential administration coincides with an incoming Congress controlled by the new President\u2019s party. In this case, both branches may be motivated to reject agency rules issued by the previous administration. This is facilitated by a provision of the CRA that establishes what is referred to as the \u201clookback\u201d mechanism. 5 U.S.C. \u00a7 801(d)<\/a>. The lookback provision allows Congress to restart the clock on review of rules for which the 60-day review period had not expired when the previous Congress adjourned. In other words, rules issued close to the end of a session may be subject to re-review when Congress reconvenes. The re-review period for all rules within the lookback window begins on the fifteenth working day of each chamber of Congress and, rather than picking up where the last review period left off, lasts for the full 60 days contemplated by the CRA.<\/p>\n

CRA Risks During the Second Trump Administration<\/h3>\n

After the CRA\u2019s twenty years of near-dormancy, 2017 saw unprecedented use of the law to reject agency rules issued by the Obama administration. The Republican-controlled 115th Congress, sworn in at the start of President Trump\u2019s first term, invalidated thirteen rules<\/a> within its first four months. Several of those rules related to environmental topics. The CRA was again used, albeit to a lesser extent, in 2021 under the Democrat-controlled 117th Congress, sworn in at the start of President Biden\u2019s term. Here, too, the CRA was used in the environmental context to invalidate Trump-era deregulatory actions.<\/p>\n

It is likely that President Trump and the incoming Congress will seek to make similar use of the CRA in 2025. Because of the lookback mechanism, the new Congress will be able to reconsider all final rules that were issued by the Biden administration with fewer than 60 days left in the current Congress\u2019s session. The exact lookback cut-off date will depend on when this Congress adjourns at the end of the year and how many days each chamber met during the session. The Sabin Center estimates<\/a> that the cut-off date will be in mid-May, meaning that all rules issued since then will be up for review and vulnerable to disapproval.<\/p>\n

Time will tell which rules the new administration and Congress take up as CRA priorities, but early indications suggest that a number of climate-related rules could be at risk. For example, Trump\u2019s and some Republican Congress members\u2019 expressed interest<\/a> in rolling back Inflation Reduction Act (IRA) tax credits indicate a potential threat to two recently finalized rules to implement the IRA: Treasury\u2019s final rule<\/a> (October 28, 2024) on the advanced manufacturing production tax credits and Treasury\u2019s final rule<\/a> (December 12, 2024) on clean energy investment tax credits.<\/p>\n

Current congressional activity under the CRA is another strong indication of what rules might be at risk in the new year. Some members of Congress, mostly in the House of Representatives, have already introduced resolutions of disapproval for a handful of rules that will likely fall within the lookback period. Although these resolutions have stalled in the current Congress, they might have more success in the next one. The following is a list of climate-related rules within the estimated lookback period for which a resolution of disapproval has already been introduced<\/a>:<\/p>\n