House set to repeal 5 rules using draconian procedural maneuver

Image: The Washington Post, House Majority Leader Paul Ryan (R-Wisconsin) and Senate Majority Leader Mitch McConnell (R-Kentucky)

Washington, D.C. — While the Administration dominates headlines, from the U.S. turning an unbelievably misguided cold shoulder to refugees to the (likely illegal) immigration and travel ban targeting Muslim-majority countries (but only ones where Trump doesn’t have business interests), Congress is seizing the moment to fly under the radar, and sell out.

Late this past week, Congressional GOP leadership announced their intention to take advantage of a little-known, little-used law called the Congressional Review Act (CRA) to repeal 5 regulations (to start) passed in the final weeks of the Obama Administration.

Repealing 3 of the 5 rules under fire explicitly benefits oil, gas, and mining operations while leaving the rest of the country more vulnerable:

— An Interior Department stream protection rule to “prevent or minimize impacts to surface water and groundwater from coal mining,” by more broadly defining the responsibilities of mining companies to ensure their operations are minimizing their lasting impact on the surrounding environment:

“Guided by the best-available science and utilizing modern technologies, the final rule would require companies to avoid mining practices that permanently pollute streams, destroy drinking water sources, increase flood risk, and threaten forests.”

This rule is vital because, as many coal mining operations have moved to comply with more stringent air pollution standards, they have begun diverting their pollution into our streams, rivers, and nearby groundwater.

— An Interior Department rule to limit venting, flaring, and leaking from oil and gas operations on public and Tribal lands, aiming to minimize leaks and substantially reduce methane emissions, as U.S. methane emissions have substantially contributed to a global spike and are projected to rise even further in the coming decade.

— An SEC rule to enforce greater financial transparency for oil, gas, and mining companies, specifically regarding payments made to governments (U.S. or foreign) directly related to resource extraction:

Under the final rules, resource extraction issuers must disclose payments that are: made to further the commercial development of oil, natural gas, or minerals…The final rules define commercial development of oil, natural gas, or minerals as exploration, extraction, processing, and export, or the acquisition of a license for any such activity.

Two additional rules under fire are President Obama’s executive order on fair pay and safe workplaces, and a Social Security Administration rule requiring federal agencies to provide records for the National Instant Criminal Background Check system.

SO, to recap: the Department of the Interior wants to hold oil, gas, and mining operations responsible for the basic environmental impacts of their operations.

The SEC wants to ensure the oil, gas, and mining industries are as financially transparent as possible in their direct dealings with governments.

Rep. Rob Bishop (R-Utah) called the rules “abusive, last minute regulations.”

And so the maneuvering begins.

Image: AP, Rep. Rob Bishop (R-Utah)

But what is the CRA, anyway? And how much damage can it really do?

Passed in 1996 under then-Speaker Newt Gingrich, the CRA empowers Congress to review and overrule any regulations issued by government agencies by way of an “expedited” legislative process. Under the CRA, once a regulation is issued Congress has a brief 60-day window to review the rule and choose to act.

Under normal circumstances, the CRA is a relatively toothless law. A full repeal using the CRA requires a Presidential signature or full two-thirds Congressional override should the President refuse to sign. The only time it’s been used successfully was in 2001, when Bush’s victory allowed the new Republican Congressional majority to take aim at a regulation passed in the final days of the Clinton Administration.

Congress is now, of course, facing those same unusual circumstances, and so the CRA becomes a lethal procedural tool. Once Congress decides to review a rule issued by an executive branch agency using the CRA, debate on the floor is limited to 10 hours and no amendments to the resolution or motions to proceed to other business are allowed. In other words, once the ball is rolling, there is little stopping it. Filibusters are not an option, and Congress cannot move on before choosing to repeal the rule or not.

Here’s the real rub, though: once a rule is repealed using the CRA, the executive agency that issued the regulation is prevented from suggesting any “substantially similar” regulation.

The exact consequences of this provision aren’t clear, since it hasn’t yet been tested by any agency. But next week’s proposed CRA crackdown could, in theory, throw up roadblocks to future attempts by the Department of the Interior and the SEC to regulate the oil, gas, and mining industries on these specific issues.

At the very least, it would send the agencies back to the drawing board — and once new, “sufficiently” different rules are suggested, there is still the painstakingly long process of reviewing and revising proposed regulations before any new rules can be issued.

So what can you do?

All members of Congress are on deck for this one.

On Monday, contact your Representatives, Senators, and Congressional leadership — including Rep. Rob Bishop, House Natural Resources Chairman, for good measure — and let them know what you think.

With Congressional leadership apparently embracing the Trump team’s media strategy to overwhelm and conquer, it will become increasingly difficult — but just as necessary — to keep track of back door political maneuvers like this one.

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