Sen. McConnell’s Worthy CRA Resolution Likely Illegal, But It’s For the Senate Parliamentarian To Interpret (not the GAO)

On Thursday, Senate Minority Leader Mitch McConnell filed a resolution of disapproval pursuant to the Congressional Review Act that would, if enacted, block EPA’s proposed Carbon Pollution Standard, a regulation that effectively bans the construction of new coal-fired power plants. I support the purpose of McConnell’s resolution, but, as I explain in this post, I believe it to be impermissibly premature.

The Congressional Review Act was signed into law in 1996, and stipulates that “major” federal regulations must be submitted to both Chambers of Congress and the GAO “before [the rules] can take effect.” In addition, the law establishes fast-track procedures by which thirty Senators can get a simple majority vote on a resolution that disapproves (and therefore disallows) a “major” federal regulation. McConnell already has 40 co-sponsors. To become law, any such resolution would have to be passed by both Chambers of Congress and then signed by the President.

The Congress has only used this power once, to repeal a Clinton-era ergonomics rule, and it is the conventional wisdom that a CRA resolution of disapproval can be taken up only after an agency rule goes final. The Carbon Pollution Standard, by contrast, is only at the proposal stage of the informal rule-making process.

Minority Leader McConnell understands this prevailing legal interpretation, but he disputes it. His case is predicated on the strange applicability provision of the Clean Air Act provision that authorizes the Carbon Pollution Standard, pursuant to which the rule arguably goes into effect when it’s proposed. Here’s the exact language (§111(a)(2))

The term “new source” means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source.

I formatted the important language. It’s not clear what the Congress means here. A regulation can’t take legal effect at the proposal stage, because doing so would violate the procedural rights accorded the public and interested parties in a different section of the Clean Air Act. (Specifically, the public and regulated entities have the right to comment on proposed rules and also to have their concerns answered by the agency.) Yet the above provision of the Clean Air Act suggests that the Carbon Pollution Standard goes into effect on proposal. Thus, the act seems to contradict itself.

McConnell has asked the Government Accountability Office to interpret the matter. In a letter to the GAO, he states:

I am not asking the GAO to address the question of whether all proposed rules are eligible for CRA review. EPA issued the Proposed GHG Rule under a very unusual provision of the Clean Air Act (CAA) that gives immediate legal effect to the notice of proposed rulemaking….Under these circumstances, it is clear that the Proposed GHG Rule is “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy” [this last quote is the definition of a “rule” in the CRA]

Whether or not GAO sides with the Senate Minority Leader’s interpretation is, in fact, moot, because his letter omits mention of the primary legal hurdles faced by his resolution of disapproval. Under the CRA, a Member of Congress can initiate a resolution of disapproval only during the process of reviewing “major” rules, and this process, in turn, is triggered only with the agency’s “submission” of the rule to both Chambers of Congress.

Here’s the relevant section of the CRA (CRA §802(a)

For purposes of this section, the term “joint resolution” means only a joint resolution introduced in the period beginning on the date on which the report referred to in section 801 (a)(1)(A) is received by Congress and ending 60 days thereafter

And here’s the language that described the report, whose submission triggers the review process (during which a Member of Congress can initiate a resolution of disapproval):

(A) Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing—

(i) a copy of the rule;

(ii) a concise general statement relating to the rule, including whether it is a major rule; and

(iii) the proposed effective date of the rule.

So, “before a rule can take effect,” it must be “submitted” to both Houses of Congress for review. And this submission triggers the possibility of a CRA resolution of disapproval. To this end, the Office of Management and Budget has established a procedure by which a “major” rule is transmitted to Congress. See this memo for the details. Importantly, the White House has not yet submitted the Carbon Pollution Standard. It follows that the rule cannot yet be subject to a CRA resolution of disapproval.

McConnell’s letter does not make mention of the submission process. As such, I believe his CRA to be legally deficient.

In any event, I also believe that McConnell, in sending his request to the GAO, sought legal counsel from the wrong entity. As I explained above, the CRA establishes fast-track procedures by which 30 Senators can obtain a simple majority vote on any “major” regulation. By the terms of the Constitution, however, the Chambers of Congress establish their own rules. This is why the CRA contains §802(g), a bizarre provision that allows the Senate to amend the law unilaterally:

(g) This section is enacted by Congress—

(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution described in subsection (a), and it supersedes other rules only to the extent that it is inconsistent with such rules; and

(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

This is very, very weird. As explained repeatedly above, the CRA establishes a new, fast-track Senate procedure for checking federal regulations. The law, moreover, was passed by both Chambers of Congress, and signed by the President. However, the Senate, exerting its Constitutional prerogatives, can amend the bill with a rule change, which are not subject to filibusters. To my eyes, this looks like a Constitutional defect to the law; how could a simple majority in one Chamber of Congress have the power to amend a law? Then again, I’m no Constitutional scholar, so IDK.

McConnell, in seeking an interpretation of the CRA’s procedural rules (namely, an interpretation of when the process starts) should have sent his request to the Senate Parliamentarian, whose duty is to interpret the upper Chamber’s rules, rather than the GAO.

Despite the long odds, count me as a proponent of the Minority Leader’s resolution. I’ll gladly trade the lawmakers’ time in exchange for media attention on this issue. Sen. McConnell, who is up for reelection, also understands the optics, I suspect.