by Justin Pidot, Associate Professor, University of Denver Sturm College of Law
In its zeal to block regulations adopted by the Obama Administration, the U.S. House of Representatives recently approved a Congressional Review Act (CRA) resolution to overturn BLM’s Waste Prevention Rule, sometimes called the venting and flaring rule. The effort is another in a recent spate of misguided uses of the CRA and represents poor stewardship of natural resources owned by the American public.
The Waste Prevention Rule requires companies drilling for oil and gas on federal land to take reasonable steps to prevent natural gas from being released into the atmosphere. Gas in the air cannot be used to generate electricity and it significantly contributes to climate change. Companies also do not have to pay royalties on gas that they do not bring to market, meaning that taxpayers receive no revenue from these public resources.
The CRA allows Congress to overturn any regulation adopted by a federal agency within the last sixty legislative days. Until this year, Congress only used the CRA once. This week Congress used it to torpedo the Office of Surface Mining’s Stream Protection Rule, which required coal mining companies to restore waterways after mining, and Congress is considering a raft of other CRA resolutions.
Congress should think twice before using the CRA casually and frequently. Federal agencies spend years developing regulations: the Stream Protection Rule was in development for eight years and the Waste Prevention Rule for more than two. The process of developing a regulation harnesses the wisdom of policy, scientific and legal experts and involves extensive public participation. Under the CRA, Congress undoes years of work in the span of hours; a feature of the CRA is that it limits congressional debate. Perhaps most troublingly, language in the CRA suggests that Congressional action also blocks any similar rule the agency may want to issue in the future, thereby threatening to permanently prevent federal agencies from tackling important issues.