Earlier this year, Freedom Partners, a conservative advocacy group, released A Roadmap to Repeal containing a list of former President Barack Obama's regulations that the group argued should be repealed quickly after the inauguration. The second week of President Donald Trump's administration witnessed the initial attempts to implement this plan.
Use of the Congressional Review Act
- The Congressional Review Act (CRA), a 20-year-old law, only has been used once in the past. However, it appears that Congress under the Trump Administration intends to use it more frequently to undo regulations enacted in the waning days of the Obama Administration. Late last year, Congress considered, but did not pass the Midnight Rules Relief Act (see Holland & Knight alert, "U.S. House to Consider Bill to Limit, Overturn Midnight Regulations," Nov. 16, 2016), which would have amended the CRA to allow for disapproval of multiple rules at once. As it stands, Congress must pass a single joint resolution for each rule that it seeks to overturn.
- The House and Senate approved a resolution (H.J. Res. 38) on Feb. 2, 2017, to repeal the U.S. Department of Interior's (DOI) Stream Protection Rule. This rule was aimed at mountaintop coal mining and its associated impact on nearby streams. The legislation is awaiting the president's signature.
- The Senate approved on Feb. 3, 2017, a resolution (H.J. Res. 41) – also known as the Section 1504 rule – to repeal a U.S. Securities and Exchange Commission (SEC) rule requiring disclosure of payments to foreign governments. This legislation also is awaiting the president's signature.
- The House has approved a resolution (H.J. Res. 36) to repeal the DOI's methane gas flaring rule. This resolution is expected to be considered by the Senate this week.
- A resolution (H.J. Res. 59) was introduced in the House to repeal the U.S. Environmental Protection Agency's (EPA) recently adopted Risk Management Plan rule that would impose new information-sharing and safety-auditing requirements on certain chemical facilities.
- A resolution (H.J. Res. 60) was introduced in the House to repeal the U.S. Fish and Wildlife Service's recently adopted Endangered and Threatened Wildlife and Plants; Endangered Species Act Compensatory Mitigation Policy.
- To date, there have been 16 disapproval resolutions introduced or considered by Congress pursuant to the CRA, 11 of which are related to rules recently adopted by EPA, DOI or otherwise related to environmental protection and resource extraction. There is widespread discussion that the DOI, Bureau of Land Management's Planning 2.0 rule, issued in December, may be subject to a CRA resolution next.
New Executive Orders
Trump enacted an Executive Order on Jan. 30, 2017, and related guidelines requiring that two existing regulations be repealed for each new regulation adopted. Trump stated while signing the Executive Order that "we will be reducing [regulations] big league, reducing their damaging effect on small business, the economy and our entrepreneurial spirit." The Executive Order also provides that executive agencies will have no budget to adopt new rules for the remainder of this fiscal year. The White House Office of Information and Regulatory Affairs issued a subsequent guidance memo on this order on Feb. 2, 2017. At least one agency, the U.S. Consumer Product Safety Commission, has stated that it is not covered by the Executive Order as an independent agency.
Supreme Court and Other Nominations
President Trump announced on Jan. 31, 2017, his nominee for the U.S. Supreme Court, Neil Gorsuch, to fill the seat of the late Justice Antonin Scalia. Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit in Denver, is described as being an "originalist" who is likely to rule very similarly to Scalia.
Despite a boycott by Democrats, Senate Republicans suspended the rules in the U.S. Senate Environment and Public Works (EPW) Committee in order to advance the nomination of Scott Pruitt to head the EPA. The nomination is expected to be voted upon by the full Senate this week.
The nominations of Rick Perry to head the U.S. Department of Energy (DOE) and Ryan Zinke to head the DOI are also expected to be voted upon by the full Senate this week. The nomination of Sonny Perdue to head the U.S. Department of Agriculture is not likely to be voted upon by the Senate Committee on Agriculture, Nutrition & Forestry Committee until the middle or end of this month. The Federal Energy Regulatory Commission currently lacks a quorum to conduct business, for the first time in 40 years, and additional nominations to fill the vacancies on the Commission are not expected anytime soon.