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In a prior post, we discussed the regulatory freeze that had been implemented by the Trump Administration on its first day in office. The moratorium applied to proposed rules issued by the Obama Administration since election day that had not yet gone into effect. We provided a list of environmental and energy rules that were potentially subject to the moratorium.
A notice will be published in the Federal Register identifying 30 environmental laws that will be frozen for up to 60 days. A pre-publication copy of the notice is available Here
In our prior Post, we discussed the regulations proposed by the Obama Administration since election day that would be subject to the moratorium issued by the Trump Administration. In this post, we cover the Obama-era regulations that have already gone into effect that my be vulnerable to recession under the Congressional Review Act (CRA). The CRA requires agencies to notify each house when regulations are issued. Congress has 60 “session” days from the date of the notification or after the rule is published in the Federal Register to issue a joint resolution of disapproval by a simple majority.
Once the disapproval resolution is signed by the president, the rule cannot go into effect or continue in effect. Once rescinded, the executive branch is prohibited from reissuing it “in substantially the same form” or crafting a new rule that is “substantially the same” unless Congress enacts legislation specifically authorizing it.
The Congressional Research Service (CRS) has estimated that the 60-day period for repealing regulations will apply to all federal rules adopted after May 30, 2016. Several conservative groups and the House Freedom Caucus have developed a “kill list” of environmental and energy-related regulations. Based on the CRS lookback date and the regulatory “kill list”, the following rules that the Obama Administration finalized in 2016 could be subject to a disapproval resolution under the CRA:
Disapproval resolutions may only be enacted as individual regulations. While the CRA provides an expedited legislative path for disapproval resolutions and prohibits the use filibusters in the Senate, each resolution is subject to up to ten hours of debate. Since Congress must pass a new budget, plans on repealing the Affordable Care Act and the Senate must complete confirmation hearings, it is unlikely there Congress could rescind more than a handful of regulations.
To address these constraints and enhance the use of the CRA, though, the House of Representatives recently passed the Midnight Rule Relief Act (H.R. 21) that would amend CRA to allow Congress to repeal groups of regulations en masse instead of one at a time. It is unclear if the Senate will approve this measure.
 81 F.R. 93,066 (December, 20, 2016)
 81 FR 90072 (December 13, 2016)
 81 FR 89320 (December, 9, 2016)
 81 FR 86490 (November 30 2016)
 81 FR 85696 (November 28, 2016)
 81 FR 79948 (November 14, 2016)
 81 FR 73478 (October 25, 2016)
 81 FR 71906 (October 18, 2016)
 81 FR 60272 (September 1, 2016)
 81 FR 54422 (August 15, 2016)
 81 FR 59332 (August 29, 2016)
 81 FR 59276 (August 29, 2016)
 81 FR 45387 (July 14, 2016)
 81 FR 41845 (June 28, 2016)
 81 FR 35824 (June 3, 2016)
 81 FR 35622 (June 2, 2016)
 81 FR 32628 (May 24, 2016)
Since the Carter Administration, it has become customary for outgoing presidential administrations to issue a plethora of new regulations between election day and the inauguration. These rules are often called “midnight rules”. In response, the incoming administrations have issued executive orders or memorandum to temporarily delay or “freeze” these midnight regulations” so the new administration had the opportunity to review these rules.
Several hours after Donald J. Trump took the oath of office, White House Chief of Staff Reince Priebus issued a Memorandum to all executive departments and agencies freezing all pending regulations. The moratorium postpones for sixty days the effective date for any regulation that has been published in the Federal Register but not yet gone into effect. The memo instructs agency heads to withdraw any regulation that had been sent to the Office of the Federal Register (“OFR”) but not yet published so that the rules may be reviewed by the department or agency head appointed or designated by the President. In addition, agency heads are prohibited from sending any proposed or final regulation to the OFR until department or agency nominees have been confirmed and assumed office.
The memo also said that for regulations whose effective date has been delayed to review questions of fact, law, or policy, the agencies should consider potentially proposing further notice-and-comment rulemaking. For delayed regulations that raise substantial questions of law or policy, the memo said agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director.
The following proposed regulations would appear to be subject ta the regulatory moratorium (in reverse chronological of publication date in the Federal Register):
History shows that only a very small percentage of the regulations that have been temporarily frozen end up being rescinded or significantly modified. For example, President Clinton repealed less than 10 percent of the midnight regulations issued by the outgoing George H.W. Bush Administration. Of the 90 rules subject to the freeze imposed by the George W. Bush Administration, one rule was withdrawn in its entirety, three rules were withdrawn and replace and nine others were altered (e.g., different implementation date or reporting requirement). This is because to eliminate or change midnight regulations, a new administration would need to commence a new notice-and comment rulemaking and provide a rational explanation for why the rule is no longer appropriate. Courts have invalidated changes that did not comply with notice-and-comment rulemaking, especially where EPA did not make specific factual findings..
The regulatory freeze does not apply to recent rules that have already become effective. However, Congress could invoke the Congressional Review Act (CRA) to revoke some of those finalized regulations. We will identify the rules that are vulnerable to recission under the CRA in our next post.
 81 FR 7562 (January 19, 2017)
 81 FR 7432 (January 19, 2017)
 81 FR 5490 (January 18, 2017)
 81 FR 4594 (January 13, 2017)
 81 FR 3388 (January 11, 2017)
 81 FR 3512 (January 11, 2017)
 81 FR 3554 (January 11, 2017)
 81 FR 3078 (January 10, 2017
 81 FR 2760 (January 9, 2017)
 81 FR 1651 (January 6, 2017)
 81 FR 95053 (December 27, 2016)
 81 FR 91592 (December 16, 2016)
 81 FR 89674 (December 12, 2016)
 81 FR 85732 (November 28, 2016)
 81 FR 75194 (October 28, 2016)
 81 FR 71661 (October 18, 2016)
 81 FR 68110 (Oct. 3, 2016)
 81 FR 52196 (Aug.5, 2016)
 81 FR 49217 (July 27, 2016)
 81 FR 48372 (July 25, 2016)
 81 FR 42940 (June 30,2016)
 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)
 See, e.g., New Jersey v. EPA, 517 F.3d 574 (D.C. Cir., 2008)(vacating Clean Air Mercury Rule); Nat. Res. Def. Council v. Abraham, 355 F.3d 179 (2d Cir. 2004); Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983); Nat. Res. Def. Council v. EPA, 683 F.2d 752, 761-63 (3d Cir. 1982).
This interview occurred at the old Yankee Stadium in 2008 shortly after the last game was played.
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