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With the outcome of last week’s Georgia Senate runoff elections producing a 50-50 Senate ratio and giving Senate Democrats majority status, there is renewed interest in the Congressional Review Act (CRA) (5 U.S.C. 801 et seq.). Under the CRA, a new Congress can act within its first 75 days of legislative session to reverse “major rules” promulgated by federal agencies during the last 60 legislative days of the previous Congress.
In 2017, Congress used the CRA to pass “resolutions of disapproval” and nullify 16 different federal regulations promulgated in the last months of the Obama Administration. Under the statute, CRA resolutions are considered under expedited procedures and not subject to Senate filibuster rules. This means a simple majority – including all 50 Democratic (and left-leaning independent) senators plus incoming Vice President Kamala Harris breaking a tie if necessary – could pass such a resolution of disapproval in the new Senate.
Wednesday, January 20, 2021
Recent news that the Democrats flipped both U.S. Senate seats in Georgia’s run-off election means that the Democrats have enough votes to add the Congressional Review Act (CRA)[1] to the tools that could be used to advance President-elect Joe Biden’s regulatory agenda through the repeal of recent Trump administrative actions. The CRA is a desirable tool because it can reverse actions of the prior administration without the time and resources necessary to do so through traditional rulemaking.
But what considerations might Congress and the Biden administration face in deciding whether to employ this tool? And what environment and natural resources actions might be targets for the CRA as a result? This blog post breaks everything down.
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On 7 January 2021, the Trump administration finalized a new rule that limits the scope of the Migratory Bird Treaty Act (MBTA or the Act).
1 Under the new rule (which President Biden has already directed the Department of the Interior (Interior) to review), the Fish and Wildlife Service (the FWS) has declared that the MBTA covers only intentional, and not incidental, take of protected birds, memorializing a memorandum that was rejected by a federal court last August.
2 The new rule if it withstands legal challenges and efforts by the Biden administration and Congress to reverse it significantly reduces the activities that would result in liability under the Act, and as a result, reduces the risks businesses and developers face.