Planning Rule Repealed; Regulatory Uncertainty Ahead at EPA

Never heard of the Congressional Review Act (CRA)? Hardly surprising. The 20-year-old law had been used exactly once prior to this year.

Enacted during the Clinton administration, the statute gives Congress the ability to reject federal agency regulations during a short window of time — 60 legislative days — after they are announced. The way CRA is structured allows passage of disapproval resolutions in the Senate by a simple majority and not subject to a filibuster.

While the power sounds sweeping, in practical terms the tool has limited use. The only time it is likely to be used successfully is when a new President takes office, party control of the presidency switches, and Congress is fully controlled by the same party as the new President. So, the CRA was used once in 2001 by President George W. Bush and a GOP Capitol Hill majority to overturn a workplace safety rule approved in the waning days of the Clinton administration.

BLM RULE: Planning 2.0

We are seeing a resurgence in the use of CRA in 2017. Among the first bills signed by President Trump was a CRA disapproval resolution overturning an SEC rule requiring energy companies to disclose payments to foreign governments. That was followed by action to roll back the Office of Surface Mining’s stream protection rule aimed at limiting coal mining waste dumping in waterways.

Now, CRA is being rolled out again to undo a planning rule. On a 51 to 48 vote, the U.S. Senate has sent to President Trump a resolution rejecting the Bureau of Land Management’s new planning rule. The House had previously approved the resolution 234-186.

The BLM rule, known generally as "planning 2.0," was finalized in December 2016 following two years of discussion and review. It was to be the first update to a rule on public land planning by BLM in 34 years. Supporters hailed the new rule as heralding a modern and more efficient process aimed at getting early engagement and minimizing subsequent disputes.

Opponents, however, strongly objected to what they saw as reducing the role of state and local officials by shifting some responsibility to Washington. Rep. Liz Cheney (R-Wyo.) led the effort to quash the rule. President Trump is expected to sign the measure.

The CRA action on the BLM rule could have long-term impacts on planning for federal lands because the statute also limits the ability of agencies to impose similar rules in the future.

Other CRA actions are in the pipeline. The Senate has sent to the House action rejecting an Obama-era rule requiring federal contractors to disclose labor violations, and the House has approved rejecting an EPA rule limiting methane emissions.

Current status of EPA-related regulations

While novel in its use, CRA isn’t the only way Congress and the Trump administration are taking aim at federal regulations. Following the confirmation of Oklahoma Attorney General Scott Pruitt to be the new EPA Administrator, President Trump last week issued an order requiring the agency to undertake a review of the Waters of the United States, or WOTUS, rule.

The action sets EPA on a path to repealing the rule and beginning work on a replacement. It could take years for a replacement to be enacted, leaving uncertainty on wetlands reviews for the foreseeable future.

The WOTUS rule attempted to bring some clarity to long-standing confusion and uncertainty over the reach of the Clean Water Act following two U.S. Supreme Court cases.

In 2001, the U.S. Supreme Court issued a decision in SWANCC v. U.S. Army Corps of Engineers that limited the scope of federal authority over certain so-called “isolated wetlands.” The decision knocked down interpretations that were the basis of key parts of the federal wetlands permitting process.

The action of the high court did not end the issue. EPA and the Army Corps of Engineers failed to issue joint guidance in the wake of the decision, and confusion continued over exactly what waterways were covered by the Clean Water Act. The issued returned to the U.S. Supreme Court just five years later.

In Rapanos v. United States, the Court took another look at the issue and tried to further define what exactly was the federal jurisdiction. The result was a split decision. A five-justice majority ruled in favor of landowners, but the majority was itself split with four justices signing an opinion offering a narrowly tailored definition of Clean Water Act jurisdiction requiring a continuous connection to a body of water. Justice Kennedy wrote a separate opinion in which he created the concept of a “significant nexus” standard where an isolated wetland could be federally regulated if it had a significant nexus to a body of water under CWA authority. APA filed an amicus brief in the case.

It is Justice Kennedy’s standard that has been the basis of wetlands policy for the last decade. However, that too has been the subject of debate, litigation, and near constant attempts at congressional action. The Obama EPA WOTUS rule was designed to settle the matter and establish clear authority over these isolated wetlands. The rule was highly controversial from the start and strenuously opposed by a number of congressional Republicans.

With the new Executive Order, EPA is poised to start all over again.

Many observers expect the agency to move away from the language of Justice Kennedy and attempt to align a new rule more along the narrow lines of the other four justices in the Rapanos majority. That is a process that is likely to be long and contentious.

There is likely to be other regulatory challenges coming from EPA. Most expect the Trump administration to move away from the Clean Power Plan, a regulatory regime aimed at climate change that has been tied up in pending litigation. An Executive Order on that rule is rumored to be imminent.

Action on EPA regulations comes amid uncertainty about the agency’s budget.

Although a formal budget blueprint is not expected until next week, several administration sources are suggesting that a substantial cut in domestic programs would be needed to accommodate proposed growth in defense spending. Some estimates suggest that EPA could see a proposed cut as high as 25 percent. Cuts at that level would prove very contentious on Capitol Hill and could threaten politically popular programs that are vital to local communities, such as brownfields grants and water infrastructure funding.

What APA Is Doing

Recently, APA approved a new set of legislative and policy priorities. These priorities call for strong advocacy for smart investment in infrastructure, dedication to advancing equity and opportunity in communities, and preserving data vital for good local planning. The work of EPA is important to each of these objectives.

APA urges Administrator Pruitt and the Trump administration to maintain essential programs that support local communities and continue implementation of new efforts aimed at bolstering the resilience of the nation.

Efforts to roll back essential regulatory protections, limit critical data, or undermine valuable tools for redevelopment will undermine the health and well-being of the communities we serve.

Top photo: Photo of flowing water by Flickr user pfly (CC BY-SA 2.0).

About the Author
Jason Jordan is APA's director of policy.

March 9, 2017

By Jason Jordan