The Congressional Review Act’s Threat to Recent Climate Action – Climate Law Blog

As climate advocates prepare for a second Trump administration, the potential threat of the Congressional Review Act (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 the 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’s 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’s use, which will depend, in part, on the future role of courts in reviewing CRA-related activity.

The Congressional Review Act

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. §§ 801, 804. Congress then has 60 session days to consider the rule and, if it chooses, take action. 5 U.S.C. § 801. Under the special procedures prescribed by the CRA, Congress can introduce a “joint resolution of disapproval” 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’s rule will not take effect or will be treated as if it had never taken effect. 5 U.S.C. §§ 801, 802. Further, once an agency rule has been struck down under the CRA, that rule cannot be “reissued in substantially the same form” unless specifically authorized by Congress. 5 U.S.C. § 801(b)(2).

Although the CRA was passed 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 that, despite the CRA’s passage, Congress continued to rely primarily on appropriations riders as its approach to agency oversight. Others argue that the structure of the CRA makes it a difficult tool to use—a President is unlikely to sign a law that voids their own administration’s agency rules, so the joint resolution would need enough support to override a presidential veto.

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’s 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 “lookback” mechanism. 5 U.S.C. § 801(d). 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.

CRA Risks During the Second Trump Administration

After the CRA’s 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’s first term, invalidated thirteen rules 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’s term. Here, too, the CRA was used in the environmental context to invalidate Trump-era deregulatory actions.

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’s 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 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.

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’s and some Republican Congress members’ expressed interest in rolling back Inflation Reduction Act (IRA) tax credits indicate a potential threat to two recently finalized rules to implement the IRA: Treasury’s final rule (October 28, 2024) on the advanced manufacturing production tax credits and Treasury’s final rule (December 12, 2024) on clean energy investment tax credits.

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:

• The Department of Energy’s final rule (May 20, 2024) on energy conservation standards for circulator pumps. A resolution was introduced in the House on July 11, 2024.
• The Department of Energy’s final rule (May 20, 2024) on energy conservation standards for air-cooled commercial package air conditioners and heat pumps. A resolution was introduced in the House on July 18, 2024.
• The Department of Transportation’s final rule (June 24, 2024) on fuel economy standards for passenger cars and light trucks and for heavy-duty pickup trucks and vans. An initial resolution and, subsequently, a second resolution were introduced in the House on July 25, 2024 and August 2, 2024 respectively.
• The Environmental Protection Agency’s final rule (September 10, 2024) on the reclassification of major sources as area sources under section 112 of the Clean Air Act. A resolution was introduced in the House on September 17, 2024.
• The Environmental Protection Agency’s final rule (November 18, 2024) on a waste emissions charge for the oil and gas sector. A resolution was introduced in the House on November 19, 2024.

A number of other rules have evaded CRA scrutiny so far but may be at risk in the new Republican-controlled Congress. Some organizations, such as George Washington University and Public Citizen, are tracking all regulations that could fall within the lookback period. The following is a list of those rules that pertain to climate and energy regulation:

• The Department of Energy’s final rule (August 12, 2024) on energy conservation standards for consumer conventional cooking products.
• The Department of Energy’s final rule (September 30, 2024) with energy conservation standards for air-cooled commercial package air conditioners and heat pumps.
• The Department of Energy’s final rule (September 30, 2024) with energy conservation standards for refrigeration products.
• The Department of Energy’s final rule (October 8, 2024) with energy conservation standards for consumer clothes dryers.
• The Department of Energy’s final rule (October 17, 2024) with energy conservation standards for dishwashers.
• The Department of Energy’s final rule (October 21, 2024) with energy conservation standards for residential clothes washers.
• The Department of Energy’s final rule (October 21, 2024) with energy conservation standards for consumer conventional cooking products.
• The Environmental Protection Agency’s final rule (August 30, 2024) with emission standards reciprocating internal combustion engines and new source performance standards for internal combustion engines.
• The Environmental Protection Agency’s final rule (October 10, 2024) regulating ozone-depleting substances.
• The Environmental Protection Agency’s interim final rule (November 6, 2024) on the federal “Good Neighbor Plan” for the 2015 Ozone National Ambient Air Quality Standards.
• The Nuclear Regulatory Commission’s final rule (August 6, 2024) on spent fuel storage regulations.
• The Nuclear Regulatory Commission’s final rule (August 6, 2024) updating findings on the environmental effects of renewing nuclear power plant operating licenses.
• The Nuclear Regulatory Commission’s final rule (August 22, 2024) on administrative changes to agency rules of practice and procedure.

Judicial Review and the Future of Agency Action on Climate

Congressional action invalidating some or all of the above rules could have long-lasting consequences for climate action in the United States because the CRA provides that a rule that has been invalidated cannot be “reissued in substantially the same form” unless specifically authorized by Congress. 5 U.S.C. § 801(b)(2). This prohibition is not time limited.

The CRA does not define the scope of “substantially the same.” The legislative history provides some guidance on how the phrase should be understood. For example, it indicates that the section 802(b)(2) prohibition would apply differently to different contexts depending on the underlying law authorizing the agency to issue the rule in question, taking into account the amount of discretion vested in the agency regarding whether and how to adopt a rule. It also suggests that Congress “intend[ed] the debate on any resolution of disapproval to . . . make the congressional intent clear regarding the agency’s options or lack thereof after enactment of a joint resolution of disapproval.” In other words, congressional debates over individual resolutions of disapproval should shed light on what particular part of a disapproved rule was the problem and must be substantially different in a reissued rule.

Despite this additional background, because the plain text of the law is somewhat ambiguous, it would ordinarily fall to the courts to determine what the phrase means in the context of a challenge to a reissued rule. However, the CRA also contains a judicial review provision which states, “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.” 5 U.S.C. § 805. Courts are split on whether this provision prevents them from considering whether reissued rules violate the “substantially the same” prohibition in the CRA. The majority view seems to be that it does.

Federal Courts of Appeals have interpreted section 805 of the CRA to cover all “duties the CRA imposes on various actors,” including agencies and their actions. Kan. Nat. Res. Coalition v. U.S. Dep’t of Interior, 971 F.3d 1222, 1235 (10th Cir. 2020). Under this broad view, courts will not review any statutory questions arising under the CRA, which includes whether an agency has violated the CRA by reissuing a rule that is substantially similar to the one that was previously disallowed. However, some federal trial courts have taken a narrower view of section 805, concluding that it only prevents judicial review of congressional actions under the CRA and not agency actions. See, e.g., Tugaw Ranches, LLC v. U.S. Dep’t of Interior, 362 F. Supp. 3d 879, 883 (D. Idaho 2019). Under this view, a court could consider an agency’s compliance with the CRA with respect to a reissued rule. This question will likely continue to be litigated.

Because of the uncertainty around judicial review and the infrequency of reissuing rules—according to a Congressional Research Service report, only two rules disapproved under the CRA have ever been reissued—the scope of “substantially the same” is still very much an open question. Under courts which adopt the broad view of section 805 and decline to hear challenges to reissued rules, it will be left to agencies themselves to determine whether a new regulation is sufficiently different from an earlier one that was previously disallowed. If, on the other hand, the minority view of courts catches on, courts would begin to weigh in on the meaning of the “substantially the same” prohibition as they hear challenges to reissued rules. This may well become the case, especially considering the Supreme Court’s increasing interest in reining in agency authority and placing courts in a more active role in reviewing regulations. See, e.g., Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).

There is not a clear answer to which of the alternatives—agency interpretation or court interpretation of “substantially the same”—is better for climate policy. That will depend on how courts understand the phrase, and which presidential administration is seeking to reissue rules. It is a given, though, that how the law around “substantially the same” continues to develop will bear on the long-term implications of the CRA’s use during the next Trump administration. If the incoming Congress seeks to use the CRA as expected and roll back some of the progress made by the Biden administration, it will be critical to understand the ability of agencies in future presidential administrations to regulate climate issues in compliance with the CRA.

Olivia Guarna is the Climate Justice Fellow at the Sabin Center for Climate Change Law at Columbia Law School.