As specific policies, legislative priorities and cabinet nominations are revealed in the coming weeks, manufacturers and energy companies are beginning to consider what a Biden Administration will mean for their business. However, until the Georgia runoff elections are completed on January 5, 2021, the balance of power in the U.S. Senate will remain unclear. As a result, industry must also continue to plan for the possibility that a Democrat-controlled Congress could employ the Congressional Review Act (CRA) to quickly reverse regulations finalized in the waning months of the Trump Administration.
During a president’s final months in office, agencies often seek to finalize as many rules as possible before the new administration begins; so called “midnight regulations.” Because of the requirements of the Administrative Procedure Act, it can take a new administration years to reverse policies adopted by its predecessors.
The CRA, however, provides Congress a streamlined mechanism — a simple majority vote in each chamber and the president’s signature — to strike down midnight regulations, even if they have already taken effect. At the start of a new congressional session, Congress may apply the CRA to any rule published during the final 60 legislative (not calendar) days of the prior session. For example, after the 2016 elections, the GOP-controlled Congress used the CRA to overturn 16 regulations finalized during the Obama Administration.
When the Biden Administration takes power, any rules finalized during the second half of 2020 could potentially be overturned if Democrats also gain a majority in the Senate. This could impact, for example, effluent rules (ELGs) finalized by U.S. Environmental Protection Agency for electric generating units in August 2020 — which we have written about on this blog. It could also affect recent amendments to the CCR Rule, which, among other things, revised the date by which some coal ash impoundments must cease receiving waste. As another example, the CRA could be used to reverse the Trump Administration’s recent rule eliminating the longstanding “once in, always in” policy for “major sources” of hazardous air pollutants under the Clean Air Act.
The fate of these and other regulations may rest on the outcome of the Senate runoff elections in Georgia on January 5. Should the Democrats reach 50 seats — with Vice President Harris acting as a tie breaker — the CRA would allow for quick reversal of key energy and environmental regulations finalized this year.