Recall our class discussion of the Congressional Review Act as a response to the Supreme Court’s decision in INS v. Chadha. Last week, several Senate Republicans and a few conservative Democrats threatened to invoke the CRA against a forthcoming EPA rule regulating carbon dioxide and other air pollutants. Later this semester, we’ll read the Supreme Court’s “landmark 2007 ruling” mentioned in the New York Times article (Massachusetts v. EPA). Is this an appropriate use of the CRA? Who is likely to win this showdown between the legislative and executive branches? (Thanks to Tate Hemingson for the link).
Senate Threatens to Invoke Congressional Review Act against EPA
January 25, 2010 by Nathan Cortez
Congress’s use of the CRA should be an appropriate method in determining whether the EPA’s proposed rules serve the country’s best interests. The White House and Congress established the EPA. Thus, it makes sense that Congress should have, at a minimum, the authority to review agency decisions. The EPA should not have limitless authority to enact whatever rules it deems necessary. Congress upon reviewing the report can make informed decisions as to whether such rules are too restrictive on U.S. businesses and thus adversely affect our economy.
With respect to which branch will ultimately win this showdown, the EPA already has the Supreme Court’s stamp of approval in regulating greenhouse gas emissions. This means that Congress may find it difficult to challenge the EPA’s proposal via CRA.
In any event, Congress’s ability to obtain a successful joint resolution using the CRA will depend on getting more Democrats on board.
The CRA was created to “fast track” procedures which allow Congress to disapprove a broad range of regulatory rules issued by federal agencies by enacting a joint resolution of disapproval. If the legislature disapproves of the rule and the President doesn’t veto their disapproval, then the rule is nullified. Here, the rule that would be implicated is the Clean Air Act which, in Mass. v. EPA, the agencies must have a reasonable basis in order to avoid regulation. The Sup Ct in this case did say that “the EPA has the authority to regulate tailpipe emissions of greenhouse gases, and the EPA is required to review its contention that it has discretion in regulating carbon dioxide and other greenhouse gas emissions.” Ms. Murkowski’s proposal seems to fall within the scope of the CRA act, however, in considering whether this is “appropriate”, it seems like a balancing test should be considered: whether regulating carbon dioxide and other climate altering gases requires the oversight of Congress and/or the President which must be measured against the burdens that would be imposed on Congress and the EPA. The article already claims that President Obama is ready to veto this proposed legislation, however, it is debatable (based on my light knowledge) whether the greenhouse gases are an immediate threat that calls for this type of oversight by the government.
First, I think this development puts the EPA between a rock and a hard place. When not regulating greenhouse gases, the states sue the EPA and the Supreme Court authorizes it to regulate. Then, once the EPA actually takes these judicial branch-prescribed regulatory steps, the legislative branch threatens to step in and block such regulation. If the legislative branch didn’t want greenhouse gases regulated, maybe it should have made it a topic of discussion right after the Massachusetts decision and not after the EPA has taken steps and used numerous resources to create these new regulations. As far as who will prevail, I agree with the responders above – the Supreme Court’s decision in Massachusetts authorizes the EPA to regulate these gases. However, if the majority of Congress does find the regulations too restrictive on the economy, I hope it issues suggestions for improvement instead of making the EPA start from scratch.
This is an ‘appropriate’ use of the CRA if the purpose of the CRA is to allow Congress to check agency regulation power when it deems it is harmful to the country’s interests and goes against public policy and sentiment. Nevertheless, the line between this use of the CRA and threats to invoke it for inappropriate political purposes spurred by special interest is a fine one. And I think Sen. Murkowski may be crossing the line here. Both the President and the EPA have stated that they would prefer to rely on comprehensive climate change legislation rather than EPA regulation of GHGs, but they would both consider falling back on EPA regulation if Congress fails to pass a climate change bill. Rather than focusing on stopping the EPA, lawmakers should focus on crafting workable legislation. This is, of course, harder said than done. Ultimately, I think it is unlikely that Sen. Murkowski will find the support to overturn the EPA’s finding. If she does, overturning it would be a blow to any realistic steps at addressing climate change, which is a scientifically-proven and immediate threat that must be addressed. Government regulation in some form is a good way to start.
I agree with Tate. I think it makes sense to have something like the CRA in place, but I think a large part of the reason it has not been used is because it is not appropriate in most cases. In this case, regulation of carbon emissions due to concern for human health and for the environment is just the kind of regulating the EPA is supposed to be doing. The EPA is supposed to be an agency of scientists and experts who are in the best position to make decisions regarding this type of regulation. If Congress is concerned about the economic repercussions, they should work to create legislation rather than turning to the CRA. Well-crafted legislation would involve the use of research and experts such as climate scientists, doctors, and economists. On the other hand, invoking the CRA is a quick political tool. And, to answer the question of who is likely to win the showdown, I do not think Senator Murkoski will have the support to succeed.
Interestingly, the Democrats threatened to use the CRA to undue Bush’s weakening of environmental regulations just last year after Obama took office: http://www.nytimes.com/2009/01/12/us/12regulate.html
There is obviously a political tug-o-war going on when it comes to environmental regulation, and that is unfortunate because of the potential long-term environmental and health effects. I find it particularly suspect when Congress seeks to deregulate because legislators receive so many campaign contributions from corporate interests who would benefit from deregulation.
I agree with the previous comments. While the CRA is a logical tool to have, it is not the appropriate mechanism to use in this situation. If Congress is concerned with the EPA’s decisions and regulations, it needs to create new legislation to reshape the EPA’s authority. New legislation would better serve the country because it would require more research, experts, and agreement than using the CRA, which seems to be more of a political tool. The EPA, however, is put in a hard position either way.
It seems to me that, if appropriate means ‘as intended,’ this is an approrpiate use. However, I think the situation shows that the CRA, even appropriately used, amasses too much power in Congress. Granted, a joint-resolution has to be passed by the majority and still signed by the President. But it’s still intended to be a fast-track response to a specific agency regulation. Here, if it were to succeed, it would basically be overruling the Supreme Court. Which is fine, if done the proper way procedurally. The CRA, from my naive read, specifically states that its resolutions are not subject to judicial review. More importantly, it is a populat tool to be used as a threat in political battles that most likely will involve Presidential platforms with which one party disagrees. As to an earlier comment that Congress should be able to take away whatever power it grants, that’s not been the law at all. In fact, special counsels and commissioners who have been created by the statute of Congress have been deemed unlawful legislative agents when Congress has the ability to veto/revoke their decisions and opinions. It seems like an off-set of the proper balance in government, and I would say the way that the CRA is being used as a political threat only reflects its inherent flaws.