Enforcing the Congressional Review Act

Rulemakers must follow the rules

In 1876, kudzu was introduced into the United States as an attractive and seemingly harmless vine. However, the invasive species has strangled vast territories. A similar invasive species has sprawled throughout the United States federal government: the mass of federal regulatory agencies, which issue thousands of new rules each year.

Congress says that agency rulemaking should have more democratic accountability. The Congressional Review Act (CRA), passed in 1996 and signed by President Bill Clinton, requires federal agencies to send all new rules to Congress before they may take effect, giving Congress its rightful opportunity to oversee agency actions and consider disapproving some rules. However, agencies often fail to submit rules as required.

Pacific Legal Foundation is the nation’s leader in promoting the CRA’s use to limit regulatory abuses . In the courts, PLF launched a campaign to stop agency rulemakers from breaking their own rules, including two federal lawsuits, filed in 2018, asking judges to enforce the CRA.

 

What’s at Stake

The Congressional Review Act (CRA) was passed in March, 1996, and signed by President Bill Clinton as part of a larger regulatory reform measure. Pub. L. 104–121, Title II, Subtitle E, codified at 5 U.S.C. §§801-08 (2012). The CRA requires regulatory agencies to send every rule with a short report to both Houses of Congress and the Government Accountability Office (GAO) before the rule can go into effect. Congress can then schedule simple-majority, up-or-down votes on rules it wants to disapprove using fast-track procedures.

The CRA defines a “rule” very broadly to include both formal notice-and-comment regulations and informal agency statements regarding governing laws. Although it does not apply to presidential executive orders or proclamations, it applies to almost any regulatory agency document that impacts the general public, whether economically significant or not, including “Dear Colleague” letters and enforcement guidance documents, even if they were never published in the Federal Register. However, “major” rules, as determined by the Office of Management and Budget, receive additional attention including reports by the GAO, and their effective date is usually extended during the congressional review period.

During the first 60 legislative or session days after a rule is received, the CRA allows Congress to promptly overturn these rules without a Senate filibuster, with limited debate, and other expedited procedures. A joint resolution of disapproval must be presented to the President for his signature or veto. Enactment of such a resolution into law kills the rule and prohibits an agency from adopting any “substantially similar” rule again without a new law authorizing it.

Kim Strassel of The Wall Street Journal calls the CRA a “regulatory game-changer,” for its ability to allow democratically elected representatives in Congress to roll back the regulatory state. In 2017, the Congress and President Trump overturned 15 costly and counterproductive regulations: 14 were sent to Congress at the end of the Obama administration, and one was sent by the Consumer Financial Protection Bureau in mid-2017.

However, much more remains to be done. Thousands of rules have not been submitted to Congress, including many with significant economic impact. The period for congressional review does not start until the rule is formally submitted to Congress, regardless of when it was first published by the agency. And agencies should stop enforcing any rule that was not sent to Congress until it complies with the CRA.

PLF is now asking the courts to enforce the CRA in two federal lawsuits, filed in April, 2018.

  • Tugaw Ranches, LLC. v. Department of Interior challenges the heavy-handed sage-grouse regulations, imposed by the Departments of Interior and Agriculture in 2015, which impose severe restrictions on federal land use in the West. The rules undermine widely supported state-led conservation efforts at the expense of those who rely on federal lands for their livelihoods.
  • Kansas Natural Resource Coalition v. Department of Interior asks the U.S. Fish and Wildlife Service to lawfully submit the very helpful PECE rule to Congress, which encourages states, local governments, property owners, and environmentalists to collaborate on innovative conservation programs. The resulting management plans have helped people and species alike. KNRC and conservationists should be able to rely on the PECE rule that enjoys bipartisan support, but no one can lawfully rely on it until it is sent to Congress.

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Property Rights

Kansas Natural Resource Coalition v. Department of Interior

Bad rulemaking threatens good conservation

A buffalo rancher by trade, Ken Klemm also uses his 4,000-acre ranch in Kansas for conservation efforts. In fact, Klemm works with the Kansas Natural Resource Coalition (KNRC) to implement a conservation plan for the lesser prairie chicken. The U.S. Fish and Wildlife Service considers such local collaboration for determining endangered listings under its 2003 rule called the Policy for Evaluating Conservation Efforts When Making Listing Decisions (PECE Rule). Unfortunately, the rule is not lawfully in effect because the Service never submitted the PECE Rule to Congress as required by the Congressional Review Act (CRA). On behalf of KNRC, PLF has filed a lawsuit demanding that the Service submit its rule to Congress so it can legally take effect and allow good conservation work to continue.

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Property Rights

Tugaw Ranches, LLC. v. U.S. Department of Interior

Illegal rulemaking threatens livelihoods

Like many western U.S. ranching families, the Picketts have worked on the same land in Idaho for many generations and have a thriving business selling naturally raised beef. And like many ranchers, their business depends on grazing permissions on federal land. But their livelihoods are threatened by rules that set aside over 65-million acres of federal land as a habitat for the sage-grouse — an animal that’s neither threatened nor endangered. In fact, sage-grouse management rules eliminate more than 31,000 jobs.

On behalf of the Picketts, Pacific Legal Foundation is challenging illegal rulemaking by government bureaucrats. Agencies implemented the sage-grouse plans without first submitting them to Congress as required under the Congressional Review Act (CRA). PLF argues the rule is unenforceable until the agencies comply with the CRA, and that it should be properly sent to Congress for consideration and, hopefully, eventual disapproval.

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Center for Biological Diversity v. Zinke

Victory! Federal Court dismisses challenge to Congressional Review Act

PLF scored another victory against bureaucratic overreach on May 9, when the federal court in Alaska dismissed a lawsuit challenging the constitutionality of the Congressional Review Act (CRA). At issue in this lawsuit was a regulation known as the Refuges Rule, which greatly restricted access to and use of land within Alaskan Wildlife Refuges. Congress used the CRA to invalidate the rule—a move promptly challenged in court by the Center for Biological Diversity (CBD). Representing coalition of individual Alaskans and related organizations, PLF successfully intervened to support the CRA’s constitutionality.

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