The longer the new rules are delayed, the greater the number that can be completely wiped out if Republicans take over the executive branch and hold both the House and Senate in 2024. Under the Congressional Review Act, a new administration of the GOP could spend the first months of 2025 disapproving rules issued at the end of the Biden administration. That Clinton-era law allows Congress to nullify rules issued in the last 60 days of session with a simple majority vote in each chamber and the signature of the president. This period can last several months, depending on the congress calendar. If Republicans end up controlling the White House and both chambers, the CRA’s disapproval process offers a significant advantage over simply canceling changes to agencies or through an executive order: if successful, prohibit agencies from issuing statutes. ” substantially similar “in the future. Congress had used that authority only once before 2017, when the Trump administration and a Republican-controlled Congress overturned 14 Obama-era statutes using the Congressional Review Act.
If Democrats want to protect the potentially controversial new climate rules from this fate, they should put them on the federal register by June 2024, said Peter M. Shane, who teaches US administrative and constitutional law at New York University. While many of these regulatory processes are already underway, any new ones hoping to meet that timeline need to be announced soon. “If I were the EPA General Council or any other agency with an ambitious regulatory agenda, I’d try to get my initial notice of the regulatory proposal out there this winter, as close as possible to the start of the calendar year, Shane has added.
Even without the White House, a Republican-controlled Congress would likely make generous use of the CRA, says Banks. First on the board would be any new rules proposed by the SEC on climate risk disclosure. “You can bet it’s number one,” Banks said. The next step would be an upcoming EPA methane rule and a long-delayed statute on power plant emissions. “It can almost be said with certainty that any environmental regulation that comes out of the EPA that focuses on reducing greenhouse gases will be subject to CRA,” he added. Even without the ability to overturn a regulation, Banks says, the CRA will be a pillar of the Republican strategy. “You would do it to put the Democrats in place because they have to take the vote,” says Banks. If the Republicans also take the Senate, then “the president must decide what the political costs and benefits of the veto are. It would complicate the decision-making process, especially if we are talking about [regulations] which can be linked to energy costs “.