As the 115th Congress kicks off this week, Republicans plan to immediately flex their muscles by deploying a host of legislative tools aimed at attacking an array of Obama-era regulations — from the Clean Power Plan and the Clean Water Rule to elements of bedrock environmental laws like the Endangered Species Act. Two regulatory rollback measures are already on the agenda.
"It will be some of the most sweeping regulatory reform in decades, and it can be done in a matter of a couple of months," said Sen. Thom Tillis (R-N.C.), an early supporter of President-elect Donald Trump.
Conservatives argue that there has been an excessive amount of unchecked executive regulations in recent years that are costly, stymie industry initiatives and ultimately provide little benefit to the American people.
"It is our job now to determine the right balance between regulation and free market principles and make sure that our federal government no longer stands between Americans and financial success," Sen. Cory Gardner (R-Colo.) wrote in a recent letter.
Democrats and environmental advocates, who are gearing up to fight such attempts, argue that regulations are necessary to protect the environment and human health, saying it’s not the number of regulations that matters, but the benefit they accrue.
"People assume that when they go into their supermarket, the food won’t kill them, that the toys aren’t poisoned, that their cars aren’t going to explode, or their cell phones," said Scott Slesinger, legislative director of the Natural Resources Defense Council. "Without regulations, that’s not the case."
Republicans plan to use the Congressional Review Act, budget reconciliation and a host of regulatory reform bills to get the ball rolling.
Passage of the "Regulations From the Executive in Need of Scrutiny (REINS) Act" will be an early congressional GOP priority. The bill is set to hit the House floor by the end of this week. The Rules Committee is giving members until this morning to submit proposed amendments even though the new Congress has yet to convene.
The House is also slated to vote this week on the "Midnight Rules Relief Act of 2017," which would allow Congress to overturn regulations finalized in the last days of the Obama administration with a single vote.
The bill, to be sponsored by Rep. Darrell Issa (R-Calif.), would bundle final rules under one Congressional Review Act joint resolution of disapproval.
Trump has also vowed to make an overhaul of federal regulation a top priority. Last month, he tapped billionaire businessman Carl Icahn, who is heavily invested in the oil and gas industry, to serve as his regulatory adviser (Greenwire, Dec. 21, 2016).
Trump has said that on his first day in office, he will push a measure that would eliminate two federal rules for every new one.
The controversial "one in, two out" proposal ranks third on his day one to-do list, behind a constitutional amendment to impose congressional term limits and a hiring freeze on all federal employees (Greenwire, Nov. 11, 2016).
Emboldened by the prospects of a Republican president and GOP Congress, conservative groups have been pushing an anti-regulatory agenda for months.
The free-market Freedom Partners recently released a how-to guide for rolling back Obama administration regulations, saying the president’s 600 major rules have cost the economy over $700 billion in last eight years.
Andy Koenig, the group’s vice president of policy, said Congress and Trump should identify all federal regulations that can be repealed during the first 100 days of his administration and subsequently undertake the legislative and administrative process of undoing more tenacious rules.
Koenig said Trump could easily overturn Obama executive orders and memoranda like the new limits on coal mining near waterways and the Paris climate agreement (Greenwire, Dec. 19, 2016).
For other regulations, Koenig recommends the Congressional Review Act, which lawmakers have been eyeing for some time (E&E News PM, Dec. 8, 2016).
The CRA is a legislative tool designed to overturn regulations issued by federal agencies. The CRA was enacted in 1996 and has only been successfully used once. Once a rule is proposed, Congress has 60 days to pass a resolution of disapproval. The resolution must also be signed by the president.
A president is unlikely to nix a rule proposed under the authority of his or her agencies, making the CRA most probable during a transfer of administrations.
Bill Kovacs, senior vice president for the environment, technology and regulatory affairs at the U.S. Chamber of Commerce and a regulatory reform supporter, said the CRA is tricky because it requires a lot of floor time.
"On the CRA, each one of those is entitled to 10 hours of debate in the Senate. So if you have five of them, you’ve taken up a week," he said. "That’s difficult because [the Obama administration was] pumping out rules like you pump gas; it’s going to be very hard for many of those rules to be reviewed."
The Clean Power Plan and the Waters of the U.S. rule will be more difficult to repeal than others, Koenig said. He would like to see Trump direct agencies to stop defending these rules in courts if they are challenged.
Otherwise, agencies will have to repeal such regulations by traditional means, which is a lengthy process that can take years.
"President-elect Trump and the new Congress have their work cut out for them," Koenig wrote in the Freedom Partners guide.
"But if they adopt a strategy that both halts pending regulations before they go into effect and roll back the many others that are already hampering our economy, they will be on their way to unleashing the economic, job, and wage growth that has been far too meager for the last eight years."
The conservative Competitive Enterprise Institute has also floated proposed reforms, calling on the administration to not only better determine whether a rule’s benefits outweigh costs but also to downsize or eliminate whole agencies.
In its congressional agenda, the CEI argues that Congress itself has allowed the executive branch to use rulemaking to gain control over a large swath of the economy.
"Congress needs to grapple with the reality that lawmakers themselves are the source of overregulation, and that Congress has relinquished much of its legitimate authority to the executive branch," the CEI wrote.
The report urges lawmakers to hold more oversight hearings, insist that agencies follow the Administrative Procedure Act, flex their muscles in the appropriations process and take advantage of the Congressional Review Act.
Some Republicans have also recommended including environmental rollbacks in a budget reconciliation bill (E&E News PM, Dec. 15, 2016).
Created by the Congressional Budget Act of 1974, the measure allows Congress to fast-track certain legislation that helps balance the federal budget.
"As far as … energy and environment, from what I can see, they’re going to do whatever they can to repeal regulations," Rep. Frank Pallone (D-N.J.), ranking member on the House Energy and Commerce Committee, said during a media conference call yesterday. But he and other top Democrats said the GOP was focusing more on using reconciliation to scrap the Affordable Care Act, at least for now.
Reforming the system
Republicans not only want to get rid of Obama-era rules, they also want to transform the entire regulatory process, limiting what they see as agency overreach and imbuing Congress with more legislative authority.
"Our body of law is like the failing Articles of Confederation," Philip Wallach, senior fellow at the Brookings Institution, said at a recent regulatory reform roundtable hosted by Common Good.
He said Congress is being marginalized in the legislative process, emboldening agencies with the authority to interpret laws with impunity. Congress, he said, needs to reassert itself.
"Make Congress great again," he said.
To this end, the GOP has, over the years, repeatedly introduced several regulatory reform bills with little movement. Now, with a Republican White House and Congress, there is renewed hope.
House Majority Leader Kevin McCarthy (R-Calif.) said the "REINS Act" — sponsored in the previous session of Congress by Sen. Rand Paul (R-Ky.) and Rep. Todd Young (R-Ind.), who was elected to the Senate in November — would get an early push (Greenwire, Nov. 29, 2016).
The bill, H.R. 427 in the last Congress, would require any agency rule with more than a $100 million economic impact to be approved by both chambers of Congress before taking effect.
"The primary value of this type of reform is that it increases accountability for major policy decisions and by forcing members of Congress to take responsibility for the power that agencies exercise," said Jonathan Adler, professor at Case Western Reserve University School of Law.
Trump has said he supports reforms like the "REINS Act," and while these kinds of measures have passed the House a number of times, the Senate has been a roadblock, and with the GOP sitting on a relatively slim 52-48 majority in the upper chamber, they may not fare much better there in the new Congress.
"All these proposals will lead to the art of no deal, because you’re not going to get any Democratic support," Will Marshall, president of the Progressive Policy Institute, said at the regulatory roundtable.
Still, McCarthy said a number of moderate Senate Democrats from red states who are up for re-election in 2018 may be willing to cross the aisle on these measures. In all, Democrats are defending 10 seats in states that Trump carried in November (E&E Daily, Nov. 10, 2016).
While regulatory reform advocates argue the "REINS Act" is merely a procedural change that provides additional oversight, opponents caution that procedure is substance. They argue these bills are designed to impede the regulatory state altogether, effectively preventing the implementation of any new rules.
"What it results in is basically absolute paralysis of the regulatory system of any future rulemaking in any area," David Goldston, NRDC’s director of government affairs and the former chief of staff of the House Science, Space and Technology Committee, said at a recent reporter roundtable.
Other regulatory reformers favor the "Regulatory Accountability Act," H.R. 185 in the last Congress, which would effectively amend the decades-old Administrative Procedure Act by requiring the most costly of rules to undergo more stringent agency analysis.
"For Congress to be a real check on agency overreach, it needs to reclaim its full legislative authority by establishing clear standards for agency rulemaking and court review of the regulations," Kovacs said.
Opponents of the bill argue it would impose complex and pointless requirements on EPA and other agencies, allowing rules to be tied up in court endlessly.
"The trick with those sorts of bills is they seem pretty innocent, just tweaking the process, but what they’re intended to do is slow or stop the process altogether," said Lisa Gilbert, director of Public Citizen’s Congress Watch division.
Not so fast
While Republicans have talked a big game, analysts say regulatory rollbacks and reform will be an uphill battle.
The Congressional Review Act can only be applied to regulations released on or after June 13 (Greenwire, Dec. 21, 2016), the scope of what can be included in a reconciliation bill is limited (Greenwire, Dec. 13, 2016), and Republicans might lose interest as other legislative priorities emerge.
"It would not surprise me if some Republicans thought this was a great idea when there was a Democrat in the White House but are now less enthusiastic. Unfortunate, but understandable," said Adler, who has testified before Congress in support of the "REINS Act."
James Goodwin, senior policy analyst with the Center for Progressive Reform, said passage of these kinds of bills would also add considerably to Congress’ workload, another possible deterrent.
"Congress doesn’t have the floor time to deal with this stuff, and frankly they don’t have the expertise to deal with this stuff," he said. "There’s a reason agencies are charged with fleshing out the details on these things. Agencies hold the expertise."
William Buzbee, an environmental law professor at Georgetown University, pointed out that most bills proposing regulatory reform face filibuster threats under current Senate rules. Additionally, much of the work being done to combat climate change is happening on a state level.
"Climate denialists in charge of the executive branch cannot halt energy and technological transformations already underway, especially when those are a result of state policies and are linked to private innovations," he wrote in a New York Times op-ed last month.
Practical hurdles aside, environmental and regulatory advocates will be pulling out all the stops to impede the GOP agenda.
In addition to working against confirmations like Trump’s pick to lead EPA, Oklahoma Attorney General Scott Pruitt (R), NRDC’s Goldston said his team plans to attempt to mobilize the American people.
"As we’ve been saying since the election, we’re going to take this case to the public and to Congress and when needed to the courts," he said. "And there will be a public backlash that will lead Congress and hopefully the administration as well to decide to spend their political capital elsewhere."
Reporter Hannah Hess contributed.