Why You Should Care: The Congressional Review Act

The name sounds benign-but its potential effects are anything but.

The Congressional Review Act (CRA) is an obscure law enacted in 1996 that allows Congress 60 legislative days to use an expedited process to reject and invalidate certain federal regulations, even ones that have been in effect for months. Because of the way legislative days are calculated currently rules going back to June 13, 2016 are on the chopping block.  This law not only immediately halts the protections afforded by those that regulations immediately, but also bans federal agencies from providing similar protections in the future. Moreover, this repeal under the CRA is usually done in an expedited manner, without the normal Congressional debate and public transparency required for regular legislation. Once a CRA resolution has passed Congress and is signed by President Trump, the targeted rule is instantaneously invalidated and replacing it with future protections is put at risk.

Why You Should Care

The law says that if a rule is rejected by Congress under the CRA and subsequently overturned by the president, the issuing agency – such as the Department of the Interior or the U.S. Fish and Wildlife Service – cannot issue a new rule that is substantially similar to the rule that was rejected. But there’s no specification as to what “substantially similar” might mean. At minimum, this creates a significant chilling effect. Agencies will be less likely to take on a multi-year rulemaking process while facing the prospect that it could be rejected for being similar to a rule that was rejected under a CRA resolution.

Using this arcane law to strip away needed regulatory protections is extreme and damaging.   Many environmental, public lands and public health protections finalized in the last months of the Obama administration are on the chopping block.

Current Impact

The Stream Protection Rule (SPR) was among the first rules targeted for CRA rejection by the current Congress. This rule protects water sources from toxic coal mining pollutants, like lead, arsenic and selenium, and is a public safety necessity. Eight years in the making, the SPR protects clean water for people, communities and wildlife. For decades, mining companies have filled streams with toxic mining debris and allowed contaminated mining runoff to pollute drinking water sources. These pollutants are known to cause cancers and birth defects in people and are decimating wildlife that depend on these waters.

The rule was designed to hold the mining industry accountable for pollution and habitat degradation, while at the same time producing more jobs for affected communities. But Congress has made it clear: killing this regulation for the coal lobby is more important than keeping our water safe. The CRA resolution against the Stream Protection Rule passed the House on February 1. It was immediately taken up in the Senate and passed the next day. With President Trump’s expected signature, the Stream Protection Rule and the protections it provides for communities and wildlife will no longer be in effect.

What could be next?

The Alaska National Wildlife Refuges Rule, finalized in August, is intended to help protect native wildlife on refuges in Alaska from extreme non-subsistence hunting practices and ensure that refuges are managed in accordance with Congressional mandates to conserve species and habitats in their natural diversity. Repealing this rule would allow the State of Alaska to permit hunting methods for iconic animals like wolves and bears, including trapping, baiting, aerial gunning, killing at den sites, and killing mothers and young.

Bureau of Land Management (BLM) Planning 2.0 is another rule at risk. This one impacts more than 245 million acres of public lands in the West that provide habitat for thousands of wildlife species. The new rule updates a 30-year-old planning process on BLM lands, by advancing the role of science and promoting landscape-level planning, to the benefit of wildlife, ecosystems and sustainable economic uses of public lands and resources. The new rule also encourages the BLM, stakeholders and the public to develop and consider ways to mitigate for impacts from land use and development on public lands, which would help balance resource use with long-term conservation of wildlife, watersheds and other public values. Scuttling the new rule under the CRA, and prohibiting BLM from issuing a “substantially similar” rule could prevent the agency from establishing a modern planning process needed to conserve and restore vast swaths of public lands for wildlife, watersheds, and local and regional economies worth tens of billions of dollars.

Other crucial regulations that could come under attack include one from the Department of the Interior to improve safety and oil spill prevention and response when drilling in the pristine but treacherous Arctic Ocean. And yet another rule at risk was issued by the Fish and Wildlife Service to update inadequate 50-year old regulations for managing non-federal oil and gas development on the National Wildlife Refuge System to prevent avoidable damage to some of our nation’s most sensitive wildlife habitat.

Congress aims to use the CRA to strike down these vital rules, putting some of America’s most iconic wildlife at risk and subverting environmental laws that guide the management of public lands and waters across the country. Defenders of Wildlife is deeply concerned that vital conservation and wildlife law and regulation are at risk. Things are moving fast and furiously, so follow us on social media to stay up-to-date on the status of CRA attacks, legislative threats and other developments important to wildlife conservation.