Republicans in Congress are preparing to decimate Joe Biden’s legacy on everything from environmental policy to public health measures — and this time, they could test the boundaries of the little-used law that lets them do it.
Under the Congressional Review Act, Congress can undo most regulations with a simple majority vote as long as the rules were enacted within a certain time frame. The Republican majority will have until about the end of April to vote to kill any regulations published after Aug. 16, 2024.
Plenty of Biden’s policies are fair game, including erasing medical debt from credit reports, requiring fossil fuel companies to pay a fee for methane emissions, limiting bank overdraft fees to $5, mandating all lead pipes be removed and replaced in the next ten years and prohibiting tobacco product sales to anyone under 21.
But two regulations Trump has been the most publicly angry about may be more legally complicated to quickly unravel.
Trump has promised to undo Biden orders banning offshore drilling across huge portions of the U.S. and a decision to give California the right to completely phase out the sale of gas cars, both of which were announced in recent weeks.
Both of these decisions were not standard regulatory actions by the Biden administration, but instead made possible by specific powers granted to the president from Congress. The CRA has not been used to undo those kinds of actions before, and experts told NOTUS that the actual boundaries of this congressional power are still not clear.
“While we have seen greater use of the CRA in recent years, there’s still a lot of very open questions about its parameters,” said Dan Goldbeck, the director of regulatory policy at the conservative think tank American Action Forum. “There are just a number of aspects of the CRA that remain kind of remain unexplored legally.”
At the beginning of Trump’s first term, Republicans killed 16 Obama-era regulations through the CRA. Before then, the law had only ever been used one time since its creation.
Experts don’t know how broadly the CRA can be implemented — its powers have never been tested by Congress or in the courts. Goldbeck believes it’s likely that Congress is going to try to push the law’s limits this time, whether that means asking the Senate parliamentarian for a decision or just voting and then waiting to see if a lawsuit materializes.
Undoing Biden’s rules around offshore drilling and cars would be consequential for the future of energy in the United States.
Frank Maisano, an energy expert at the legal and lobbying firm Bracewell, said he’s confident Congress will find a way to limit or undo those two Biden decisions and that some kind of maneuvering using the CRA is likely.
Rep. Bruce Westerman, the chair of House Energy and Commerce committees, told reporters that congressional leaders are also looking at whether they can limit Biden’s drilling ban through some kind of action in budget reconciliation.
He said that he is also investigating whether other rules surrounding federal lands and waters, energy, and fisheries should be repealed through the CRA.
As of Trump’s inauguration, NOTUS identified 148 significant rules across all regulatory agencies published between Aug. 16 and Jan. 30 on the Federal Register. Many of those rules may be technically eligible for repeal under the CRA, but Republicans will likely prioritize a much smaller number since each rule must go through a vote by itself. Some of these regulations may be intended as challenges for Republicans and Trump, because the Biden administration knows that each one could be easily repealed by Congress.
That number does not include some of the most controversial decisions the Biden administration has made (like the Republican-termed “EV mandate”) because the White House strove to publish most of its biggest rules well before the CRA deadline.
“There is just not enough floor time. Congress is going to have to prioritize,” said Cissy Jackson, an attorney at ArentFox Schiff and a former Senate counsel, about the remaining eligible rules. Jackson emphasized that lobbyists in particular industries may become very vocal about specific issues, like the oil and gas industry and the methane emissions fee or the appliance industry and energy efficiency standards.
“The folks who make a lot of noise about these will probably get heard and may get their particular pet peeve rule or regulation undone,” she said.
The lead pipe replacement rule may be one obvious target because it comes with such a high cost, Jackson said. Most estimates put the total cost for the country, which would be paid mostly by utility companies but offset by government funds, somewhere between $30 and $50 billion.
That rule has become a particular focus for Lindsay McCormick at the Environmental Defense Fund, who, like Jackson, believes Congress may target it for repeal. She called it a “paradigm shift” from the previous standard under the Trump administration, which relied on testing water for lead instead of requiring that all lead pipes be replaced.
“There’s a lot of very concrete evidence showing that lead is extremely toxic, and we have a rule in place now that targets replacing all of our 9 million lead service lines,” she said.
Just like with any other regulation killed through the CRA, it is likely that no future administration could propose something “substantially” similar once it is repealed, Goldbeck said. While that might be a win for industry advocates who do not want the government to require all lead water lines to be replaced, it could be a problem for another regulation that interests the Trump administration, just in a different form.
For example, repealing any Biden-era regulation that restricts immigration in some way because it does not go far enough for Republicans could make it difficult to create a new regulation with similar restrictions.
“We’re going to see some interesting procedural and legal debates pop up in the coming weeks,” Goldbeck said.
—
Anna Kramer is a reporter at NOTUS.