Biden's revved-up regulatory year
The Congressional Review Act might soon weigh heavily on the Biden administration's energy agenda.
Why it matters: A GOP trifecta in 2025 could use the law to obliterate everything from Biden EPA power plant rules to IRA-implementing regulations. One senator said Republicans already are coordinating on upcoming rulemakings.
The situation makes the first six months of 2024 hugely important for climate and energy policy in the executive branch.
- Administration officials are "much more conscious of that challenge than in the past," Sen. Jeff Merkley told Axios. "And I'm assured by the administration that not just with EPA, but with other [agencies], they're working intensely to roll out regulations in a timely fashion to avoid that."
Catch up quick: The CRA was enacted in 1996 to give Congress a mechanism in which rules are submitted to the legislature and lawmakers get a chance to "disapprove" of them.
- It gives Congress 60 legislative days to overturn a rule — a generous time frame, given that the legislative calendar is so sparse.
What's happening: We've seen many attempts at undoing rules through the CRA process already this Congress: sage grouse protections, truck emissions standards, Labor Department ESG rules and more.
- The latest is happening as soon as this week in the House, with a resolution disapproving of a "Buy America" waiver for EV charging stations.
- President Biden said he'd veto it — but it's a preview of future fights in 2024 and beyond.
Zoom in: The CRA efforts are causing headaches for companies that want to rely on a stable regulatory regime.
- Take a campaign against the resolution being waged by the National Electrical Manufacturers Association and ZETA, which represents EV producers, charging station startups and some mining companies.
- Because of the resolution's sweeping nature, the companies say, its stated intent — to boost domestic industries — wouldn't actually come to fruition.
- NEMA says its not against using this law in all cases. But its application on waivers means "there's definitely a risk that this could ... hamstring agencies in the future," Madeleine Bugel of NEMA told Axios.
What we're watching: Agencies have a list of big-ticket regulations to finish up that could be in danger of a real 2025 repeal effort if the administration waits too long (in the case of a GOP sweep).
- EPA's got its auto tailpipe and power plant rules, as well as a proposal to tighten Mercury and Air Toxics Standards. Interior's got IRA renewable energy land use rules. And CEQ's working on NEPA.
- The SEC is close to completing its greenhouse gas disclosure requirements.
- DOE is proceeding with more appliance efficiency mandates — and is now reportedly considering whether LNG exports are in the national interest.
- "The second half of the year is the Congressional Review Act red zone," said Kevin Book, a managing director at ClearView Energy Partners, LLC. "We don't know exactly how far back the next administration could reach if there is one, but that consideration could have very serious implications."
Flashback: The CRA had been used successfully just once before 2017. But that all changed when the Trump administration came into office with a GOP trifecta.
- Republicans overturned 14 Obama administration regulations, including BLM's land use planning rule.
What they're saying: Sen. Kevin Cramer told Axios that Republicans are already coordinating on CRA resolutions for this year's expected Biden rulemakings.
- But given the CRA precedent set in the beginning of the Trump administration, Cramer predicted a flurry of rulemakings in the first half of this year to avoid potential quick repeal in 2025.
- Under President Obama, "the CRA wasn't a widely used tool or weapon," he said. "Once that happened, realizing that could be the scenario this time ... I can't imagine they'd leave that even as a possibility."
The bottom line: There's a rising degree of risk in relying on Biden's regulatory agenda to boost domestic decarbonization — because the longer the administration takes to finalize its regulations, the easier it would be to undo them.