The Congressional Review Act (CRA) requires federal agencies to submit certain final rules to both houses of Congress (and to the Government Accountability Office) before the rule can take effect. Congress has the opportunity to review and may prevent a rule from going into—or continuing in—effect.
What rules are subject to the CRA’s requirements?
“Major rules,” defined in 5 U.S.C. § 804, are subject to the delayed effective date requirement of the CRA and may not take effect until 60 days after Congress receives the report on the rule or the rule is published in the Federal Register. Whether a rule is “major” is an economic issue. The Office of Information and Regulatory Affairs makes this determination, taking several statutory factors into account, including the potential for significant adverse effects on competition or employment, and the potential for an annual effect on the economy of $100 million or more. Agencies must submit nonmajor rules to Congress as well, but these rules are not subject to the delayed effective date provision.
Is the Clean Power Plan subject to the CRA?
Yes. EPA has stated that the final CPP is subject to the CRA as a major rule.
Are the Carbon Pollution Standards for New Power Plants subject to the CRA?
Yes. Although the new source performance standards (NSPS) for new power plants are not a “major rule” as defined in the CRA, the final rule is subject to congressional review under the CRA. However, it will not be subject to the delayed effective date provision.
What does Congress do under the CRA?
Congress can pass a joint resolution of disapproval of a final rule. This could prevent a rule from taking effect (or from continuing in effect). If a rule does not take effect (or continue in effect) under the CRA, then the agency may not issue a new rule that is “substantially the same” as the disapproved rule, unless the new rule is specifically authorized by a subsequent statute, under 5 U.S.C. § 801(b)(2).
What if Congress passes a resolution to block the CPP or the NSPS?
If Congress passes a joint resolution that would prevent the CPP from taking effect or prevent the NSPS from continuing in effect, President Obama would still have to sign the legislation for it to become law. Since President Obama directed EPA to develop these rules, he would likely veto any such resolution. It would require a two-thirds vote of each house of Congress to override the veto and block the rule under the CRA.
What are the chances a rule will be overturned under the CRA?
Since the CRA was enacted in 1996, Congress has only disapproved of one rule, the Department of Labor rule on ergonomics. Overturning a rule under the CRA entails significant congressional action. Although the CRA provides for an expedited legislative process for considering joint resolutions of disapproval, Presidential sign-off on the disapproval (or a veto override) is often unlikely in these cases.