House to Take Action Under the Congressional Review Act for Energy Regulations Finalized Under the Biden Administration

On February 20, House Majority Leader Steve Scalise released a list of regulations that will be prioritized as potential targets for Congressional Review Act (CRA) legislation in the coming weeks. The notice also indicated that Leader Scalise will be considering additional CRA actions in the days ahead.   

Before a regulation can take effect, the CRA requires agencies to submit that regulation and a report to both Houses of Congress and to the Comptroller General, the leader of the Government Accountability Office (GAO).1  Following receipt of that report, Congress has a specified time period within which a Joint Resolution of Disapproval can be introduced and passed.2  If both Houses pass that Resolution, it is then sent to the President.3   

The procedure for enactment is the same as for any other piece of legislation.  If the President signs the Joint Resolution, it becomes law, which not only invalidates the rule, but precludes the agency from issuing another rule in “substantially the same form” as the disapproved rule unless the reissued or new rule is “specifically authorized” by a law enacted after the date of the Joint Resolution disapproving the original rule.4   

The advantage of a rule invalidated under CRA action is two-fold.  Not only does a bad regulation go away; but that action has the effect of preventing another “substantially similar” bad regulation from ever going into effect unless Congress specifically authorizes, by a subsequently enacted law,  the promulgation of another “substantially similar” bad regulation – which hopefully never occurs.   

Because of the powerful “one-two punch” that a Joint Resolution of Disapproval under the CRA brings, Congress has the ability, in very short order, to make a bad regulation go away forever.   

To that end, it is critically important that Congress focus on matters for CRA attention that can unencumber energy production and jump start our economy.  Leader Scalise’s list is a step in the right direction.   

That list includes Department of Energy (DOE) regulations regarding Energy Conservation Standards for Consumer Gas-fired Instantaneous Water Heaters, which would increase costs and limit choice for consumers; and Certification Requirements, Labeling Requirements, and Enforcement Provisions for Certain Consumer Products and Commercial Equipment which would impact product supply chains and inventories.   

Department of the Interior final regulations are also mentioned including the Oil and Gas and Sulfur Operations in the Outer Continental Shelf – High Pressure High Temperature Updates, which imposes new regulations on equipment used in certain offshore drilling environments, resulting in increased costs for consumers; and the Protection of Marine Archaeological Resources which requires an archaeological report for certain exploration or development activities on the Outer Continental Shelf, setting up obstacles for increased energy production.   

In addition, matters from the Environmental Protection Agency (EPA) are included.  The Waste Emissions Charge for Petroleum and Natural Gas Systems:  Procedures for Facilitating Compliance, Including Netting and Exemptions final rule imposes a fee on methane emissions from oil and natural gas facilities that exceed certain threshold emissions.  This rule would raise costs for consumers.   

In addition, matters concerning certain Clean Air Act (CAA) waivers that EPA granted the California Air Resources Board (CARB) are on the list for potential CRA review.   

Those matters include the California State Motor Vehicle and Engine Pollution Control Standards; Advanced Clean Cars II; Waiver of Preemption; Notice of Decision, where EPA granted the request of the CARB for CAA preemption for its Advanced Clean Cars II regulations; and the California State Motor Vehicle and Engine and Nonroad Engine Pollution Control Standards; The “Omnibus” Low NOx Regulation; Waiver of Preemption; Notice of Decision where EPA granted the request of the CARB for a waiver of CAA preemption for its Heavy-Duty Vehicle and Engine “Omnibus” Low NOx Regulations.  That EPA decision also included an authorization for portions of the Omnibus Low NOx program that pertain to off-road diesel engines.   

These waivers of Clean Air Act preemption – which the previous administration’s EPA failed to notify Congress concerning its decisions – have allowed California to preempt federal law with respect to air emissions standards, and have resulted in increased complexity for vehicle manufacturers, and increased costs for consumers.  Beyond that, a number of states have adopted California’s auto emissions standards.   

Americans for Prosperity appreciates Leader Scalise’s focus on these energy regulations and looks forward to additional CRA attention on the myriad of other energy related matters that will help our country achieve energy abundance.   

1 “The Congressional Review Act (CRA):  Frequently Asked Questions”, “Summary” section of document, unnumbered page, Updated November 12, 2021, Congressional Research Service, CRS Report Prepared for Members and Committees of Congress, R43992, https://crsreports.congress.gov/product/pdf/R/R43992 

2 Id. 

3 Id. 

4 5 U.S.C. §801(b)(2).