Behind The Obscure Law Republicans Are Using to Gut Environmental Protections
Republicans in Congress are using the Congressional Review Act, a rarely-used law, to rip away protections for public lands.
An obscure law, known as the Congressional Review Act (CRA), could set environmental protections back decades. This scorched-earth tool is unrivaled in its ability to quash new federal regulations, and prevent similar ones from being created in their stead. Now, emboldened by the Trump administration, Republicans in Congress are invoking it to lay waste to public lands.
The CRA has rarely been used, but two fossil fuel regulations have already been wiped clean from the slate—a financial transparency rule for oil, gas, and mineral extractors, and a rule that protected streams from mining waste runoff. Some environmentalists worry that we haven't seen the end of it.
"Republicans see it as a tool to win, and win quickly. It's the 'nuclear option' as far as these things are concerned," Matt Keller, senior director of conservation at The Wilderness Society, told me.
The law was among a suite of bills written by former Representative Newt Gingrich that formed the Contract with America Advancement Act. Signed by President Clinton, it legally manifested Republicans' desire to shrink executive power and limit government influence over individual states. So its resurgent popularity among Republicans today, who are openly hostile to what they've called "unconstitutional" federal oversight, was foreseeable, but no less concerning.
Under the CRA, Congress has 60 legislative or session days to disapprove of a new rule made by an agency or president. If Congress adjourns before that time period has expired, the CRA mechanism resets, and the next Congress is given a fresh start to submit its own joint resolution of disapproval. The rough cutoff for rules currently subject to the CRA is May 30, 2016. More than 100 Obama-era rules are up for deliberation.
Once a resolution is passed by both chambers of Congress, it becomes the president's responsibility to either sign or veto. CRA resolutions can be approved with just a simple majority, and aren't subject to filibuster.
President Trump, who repealed the Securities and Exchange Commission's fossil fuel transparency rule this month, said at the time: "This is one of many that we've signed, and we have many more left. And we're bringing back jobs big league, we're bringing them back at the plant level; we've bringing them back at the mine level. The energy jobs are coming back."
What makes the CRA even more nerve-wracking than executive orders or a repeal is that it prevents rules that are "substantially the same" from being introduced as replacement measures. Still, the exact definition of this caveat is vague enough to make some legal experts to wonder how lawmakers will interpret it.
"It's never been defined, and it's never been litigated. An agency could promulgate a new rule in the same space, but presumably this would be challenged, and a court could decide what 'substantially the same' means," Kate Konschnik, director of Harvard Law School's Environmental Policy Initiative, told me.
Since the CRA was enacted in 1996, it's been used just a hundred times or so. Only once, until recently, had it ever succeeded in overturning a rule. Under President George W. Bush in 2001, an Occupational Safety and Health Administration (OSHA) ergonomics regulation from the Clinton administration was effectively rolled back. After it was removed, the agency never attempted to issue another rule to regulate in the same space.
So far, the Department of the Interior (DOI), which oversees the National Park Service (NPS) and the Bureau of Land Management (BLM), has been one of Congress' primary targets. These agencies are responsible for safeguarding public lands—some 500 million acres, or a fifth of all land in the United States—along with the natural resources that lie beneath them.
Two important public lands bills hang in the balance, and will be revisited once Congress is back from its recess. One of them requires oil and gas companies who drill on public lands to reuse wasted methane, and return the royalties to taxpayers. The other, called "Planning 2.0," is a measure that would give Americans greater voice and authority in deciding how public lands are used.
The Methane Waste and Prevention Rule was finalized last November with broad public support. Approximately 80 percent of registered voters in western states wanted drilling companies to reduce methane emissions on public lands, according to a 2016 poll by Colorado College's State of the Rockies Project. Nearly $330 million worth of natural gas is wasted each year due to venting or leaks from drilling operations.
"Republicans are trying to use an archaic and blunt weapon to undo a measure that is preventing the waste of hundreds of millions of dollars of natural gas every year," Senator Tom Udall (D-NM), who has opposed Republicans' use of the CRA to undo the methane rule, told me.
"The BLM rule is a common–sense measure to stop waste that was recommended by the nonpartisan Government Accountability Office, and that President Obama's experts spent two years developing with industry, stakeholders, and folks in my state. But Republicans want to use an obscure law to erase all of that work, and all of these protections."
Meanwhile, the BLM's Planning 2.0 rule is also expected to be rolled back next month. As Motherboard previously reported, the regulation took years in the making, and because of that, was supported by Republican and Democratic constituents alike. Its opposers have given no logical reason to strike down the rule, other than to weaken federal influence over states.
Last year, however, Republicans in Congress received a total of $25,456,544 in campaign funding from oil and gas interests, according to the Center for Responsive Politics. Fossil fuel giants like ExxonMobil, Shell, and Chevron spend millions each year in lobbying efforts. At a Senate Commerce Committee hearing this month, Jack Gerard, resident and CEO of the American Petroleum Institute—largest trade association for the oil and gas industry—was invited to testify against the methane rule about its alleged harm to local jobs.
"It takes a while to go through the public process—the Methane Waste and Prevention Rule process was started 2011. Some people don't have the patience, but that's how you do things right and set up future generations. The idea that we should be wiping these things out with little debate is where we see the real harm," said Josh Mantell, an energy policy expert at The Wilderness Society.
The fate of public lands protections is uncertain in almost every way. Here at Motherboard, we've extensively covered the various avenues Republicans are using to dismantle rules that not only protect the environment and wildlife, but human health as well. With Scott Pruitt leading the Environmental Protection Agency, and Ryan Zinke expected to be confirmed as Interior Secretary, Congress is well-positioned to make lasting changes to policies as we know them.
"As we've seen in a lot of spaces, there's a lot of energy and a lot of desire to fight," Mantell said of public lands rules currently under threat. "This isn't the way that most Americans see things going. There's some fright but there's an understanding that now we need to fight."