The Nickel Report

For federal agencies seeking to complete rulemaking before the end of the Biden Administration, the clock is ticking, and a number of important deadlines are fast approaching. One of the most important deadlines could be the Congressional Review Act’s (CRA’s) so-called “look-back” provision.

The CRA mandates agencies provide Congress an opportunity to review and possibly overturn rules. To overturn a rule, both houses of Congress must pass a joint resolution of disapproval, and it must be signed by the President. If a CRA resolution is enacted, it invalidates the rule in question and bars the agency from issuing another rule in “substantially the same form” as the disapproved rule. 5 U.S.C. § 801(b)(2). If a rule has already taken effect by the time it is set aside via the CRA, it will no longer be in effect and “shall be treated as though such rule had never taken effect.” 5 U.S.C. § 801(f).

Because a CRA resolution requires only a simple majority in Congress and cannot be filibustered, it can provide an incoming Administration a mechanism to work with Congress to legislatively remove unwanted regulations in lieu of the lengthier, more onerous process to repeal a rulemaking through notice and comment proceedings. 

There is a period at the beginning of each new Administration during which rules issued near the end of the previous Administration are eligible for consideration under the CRA (i.e., the “look-back” period). See 5 U.S.C. § 801(d) and the graphic below.

Based on the current schedule issued by the House Majority Leader, May 22, 2024 is the next CRA deadline, meaning that any rules published in the Federal Register after that date would likely be eligible for CRA review at the beginning of the next Congress.[1] 

Executive Order (EO) 12866 requires federal agencies to send “significant regulatory actions” to the White House Office and Management and Budget (OMB) for review and provides OMB a maximum of 90 days to review such actions, unless a 30-day extension is requested by the federal agency and approved by OMB’s director. See EO No. 12866, 58 Fed. Reg. 51735 (Oct. 4, 1993). Therefore, if a federal agency wants to provide OMB the full amount of time to review a final rule and publish the rule in the Federal Register before the CRA deadline, the agency would likely need to send any final rules to OMB by the beginning of February. 

These deadlines could affect the timing of many big ticket environmental regulations across multiple issue areas, such as the Council on Environmental Quality’s revisions to National Environmental Policy Act regulations, the US Environmental Protection Agency’s revisions to effluent and emissions guidelines for steam electric power plants, the Bureau of Ocean Energy Management’s renewable energy regulations facilitating offshore renewable energy development, the US Army Corps of Engineers’ reissuance and modification of Nationwide Permit 12, the US Fish and Wildlife Service and National Marine Fisheries Service’s revisions to regulations governing Endangered Species Act Section 7 consultations as well as listing and critical habitat designation criteria, and many others.  

If, following the 2024 election, Republicans take control of the US Senate, maintain control of the US House of Representatives, and win back the presidency (no small endeavor but plausible nonetheless), then a Republican president inaugurated in 2025 could potentially work with the Republican-run Congress pursuant to the CRA to legislatively set aside some of the regulations that will be issued in the final months of the Biden Administration. 

This has been done before. During the initial months of the Trump Administration, Congress used the CRA to nullify 15 rules promulgated by the Obama Administration, P.J. Larkin, Jr., The Trump Administration and the Congressional Review Act, 16 Geo. J.L. & Pub. Pol’y 505, 512 (2018), so members of an incoming Republican Administration would likely look to a similar playbook and see the CRA as a viable tool to accomplish their goals, assuming they have a cooperative Congress.

But there is no guarantee Congress would cooperate. Both houses would need to approve a resolution of disapproval, and the resolution would first have to be brought up for a vote, which typically, but not always, depends on having the majority. And, while the election schedule and composition of the Senate suggests it may flip from a Democratic to a Republican majority after this year’s election, the House is more of a toss up. Furthermore, if Republicans have only a slim majority in one or both houses, then it may be difficult to collect the votes necessary to pass a resolution invalidating a Biden rule.

Regardless of the outcome of the election, the possibility of Republicans sweeping Congress and the presidency puts additional pressure on federal agencies to complete the rulemaking process for high-profile regulations. To ensure complete protection from CRA disapproval, agencies must act prior to the CRA deadline in May, which means sending final rules for interagency review to OMB very soon.

[1] Based on the current Senate schedule, June 7, 2024 would be the deadline; however, the earlier deadline for either house becomes the deadline for both houses. See CRS, The 118th Congress and the Congressional Review Act “Lookback” Mechanism (Dec. 1, 2022) (“Rules submitted on or after the 60^th day before sine die adjournment in at least one chamber will be subject to the renewed periods for congressional review.”). So, if a rule is published on May 23, 2024, prior to the Senate deadline but after the House deadline, the Senate could still bring up a resolution of disapproval within the first 60 days of next year’s session.