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.
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