In the News

In a surprise move yesterday, the EPA posted a final rule that does nothing to change Obama-era carbon regulations on new power plants. Instead it doubles down on an issue that was raised only in a footnote in the December 2018 proposal: whether EPA should create a new metric for which industrial sectors contribute to climate change enough to trigger regulation. Environmental lawyers predicted that the Biden EPA would have little difficulty dispensing with it. "I think there's very little practical effect," said Jack Lienke, regulatory policy director at the Institute for Policy Integrity at New York University School of Law. "It's a banana peel, and the Biden administration is very unlikely to slip on it, I trust."

EPA Administrator Andrew Wheeler has said flatly that the science transparnecy rule is a minor “housekeeping” matter, not eligible for the CRA, but legal experts disagree. “The idea that you could take one of the most important regulations ever done in environmental law, one that could conceivably lead to tens of thousands of additional premature deaths every year, and call it a ‘housekeeping’ measure—it’s preposterous,” said Richard Revesz. 

Under the 1996 Congressional Review Act, Congress can quickly overturn a rule through a fast-track vote of disapproval and a simple majority in the House and the Senate. “It’s the quickest way for rules to get off the books,” said Richard Revesz, a law professor at New York University and a regulatory expert. “They can use it to clear the underbrush.”

Outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process. This Trojan Horse rule appears innocuous at first glance, but further examination reveals a deeper mischief. Understanding that mischief requires context, well-provided in a 2019 article by Professor Revesz and Kimberly Castle published in the Minnesota Law Review.

"This is an internal housekeeping regulation...and so the Congressional Review Act is not applicable," said EPA Administration Wheeler on Jan. 5. But that view was disputed by Richard Revesz, director of the New York University Law School's Institute for Policy Integrity. "The decision-maker on what is subject to the CRA is a majority of the House and a majority of the Senate, not Administrator Wheeler," said Revesz.

The Trump administration lost a mountain of critical cases and failed to get most of its top priorities across the legal finish line. “The biggest rules are still being litigated, and that doesn’t help solidify a legacy for this administration,” said Bethany Davis Noll, litigation director for New York University’s Institute for Policy Integrity.

The Congressional Review Act requires a simple majority of the House and Senate and the president’s approval. Rules that were published after Aug. 10 could be axed by Congress. “It’s the quickest way to get rid of policies that will cause significan harms to the health of Americans and to the quality of our environment,” said Richard Revesz.

“The Congressional Review Act is a very attractive tool,” says Richard Revesz of the New York University School of Law. “It would make sense to be able to just clear the underbrush of some of this really, really bad regulatory policy, quickly. But there may be some tradeoff between Senate time devoted to the CRA and Senate time devoted to confirming executive branch officials.”

The more rules that Trump’s agencies destroy in his last few days in office, the bigger the challenge facing the Biden administration to pick up the pieces. Trump’s real intention is “to clog up the works and slow the Biden administration down,” said Richard Revesz, an environmental regulatory expert at New York University’s Institute for Policy Integrity. “Repealing and replacing them will take time, and will tie up agency resources."

The impending power shift in the Senate means Congress will once again turn to the Congressional Review Act to scrap a bevy of regulations. Hill Republicans and President Trump used the CRA to kill 16 Obama-era rules in 2017. Democrats, in contrast, have never deployed the CRA. "It's the quickest way to get rid of policies that will cause significant harms to the health of Americans and to the quality of our environment," said Ricky Revesz, a New York University professor whose name has been mentioned as a possible Biden regulatory chief.