Murkowski to Try CRA to Deny EPA Greenhouse Gas Finding

Sen. Lisa Murkowski (R-AK) announced yesterday [1] that she will introduce a resolution disapproving the U.S. Environmental Protection Agency’s determination that greenhouse gases are a threat to public health and the environment. EPA announced [2]the so-called endangerment finding last week and published [3]it in the Federal Register today, Dec. 15.

Murkowski is introducing the resolution under the Congressional Review Act [4] (CRA), a law that gives Congress the authority to undo agency regulations. The CRA is a powerful tool – if Congress disapproves a rule, the rule “may not be reissued in substantially the same form.” That means, unless Congress reverses itself, the agency cannot reconstitute the idea in the disapproved rule, probably in perpetuity.

In part due to its severity, and in part due to the reality of politics, the CRA has only been successfully used once, when Congress overturned the Occupational Safety and Health Administration’s standards for ergonomics in the workplace. The ergonomics rule was finalized under the Clinton administration, but Congress took advantage of the rule’s timing to disapprove it and send it to the Oval Office after President Bush had taken over. (Presidents can sign or veto CRA resolutions just like regular bills. Thus, presidential transitions are the most opportune time for CRA resolutions, since a president will almost always veto an attempt to overturn one of his administration’s own regulations.)

The CRA is tricky, but, when used properly, CRA resolutions of disapproval enjoy fast-track consideration in the Senate. Here is the process:

• A senator may introduce a resolution of disapproval up to 60 days of continuous session after the regulation is sent to Congress. (Agencies send to Congress copies of all rules.) 60 days of continuous session is a measurement specific to the CRA. It includes all days, including weekends, except for days when either the House of the Senate is adjourned for more than three days. Essentially, only formal recesses are excluded.
• The senator must use the language prescribed by the CRA: “That Congress disapproves the rule submitted by the XX relating to XX, and such rule shall have no force or effect.”
• Like regular bills, the resolution of disapproval is referred to the committee of jurisdiction.
• Then, one of three things can happen: the committee can vote on the resolution, the committee can do nothing, or 30 senators can sign a petition requiring the committee to discharge the resolution without a vote if the committee has not taken action after 20 days.
• If the committee approves the resolution or the resolution is discharged, the resolution is immediately placed on the Senate calendar and a senator can bring a motion at any time to consider the resolution on the floor.
• During floor consideration, the resolution is subject to expedited procedures – no points of order and no filibuster. Debate is limited to 10 hours.
• If the resolution passes with a simple majority, it is sent to the House where it bypasses committee but does not enjoy special consideration on the floor (unless granted by the House Rules Committee, like any regular bill).

Got it?

Murkowski’s resolution disapproving the endangerment finding probably has a fighting chance in the Senate, where moderate Democrats are always looking for opportunities to pander to business interests who oppose regulation. If Murkowski can find 29 other senators to support a discharge petition, the resolution could reach the Senate floor in January. But, it has virtually no chance in the House, where leadership is unlikely to give it the time of day. Even if it passes both chambers, President Obama would surely veto it.