Last week, President Donald Trump signed an executive order aimed at rolling back federal regulations. The executive order appears to embrace a "one-in, two-out" regulatory scheme in which any additional regulation under consideration by the government can only be approved if two existing regulations are stripped away.
Trump made regulatory rollback a key facet of his presidential campaign and has indicated that environmental regulations, especially, had gotten "out of control."
Additionally, since the start of the new Congress, several bills have been introduced to overturn regulations signed in the last months of the Obama Administration utilizing the Congressional Review Act (CRA). The Congressional Review Act, a law enacted in 1996, requires a simple majority in both Houses as well as a signature by the president and uses expedited procedures that allow for nullification of an entire regulation through a joint resolution that cannot be filibustered. The CRA prevents the rule from continuing in effect and also prevents a substantially similar rule from being reissued. All rules submitted during the 114th Congress on or after June 13, 2016, are eligible for review under the Congressional Review Act.
To date, there have been 16 disapproval resolutions introduced or considered by Congress pursuant to the CRA, 11 of which are related to rules recently adopted by EPA, DOI or otherwise related to environmental protection and resource extraction.
Last week, the House passed the two CRA bills:
- The stream protection rule for coal mining. This regulation, finalized in December 2016, would sharply restrict coal-mining companies from dumping debris and waste into nearby waterways in the future. (Passed the House on February 1st)
- The methane waste rule. This Department of Interior regulation, finalized in November 2016, would require oil and gas companies to reduce methane leaks from operations on federal and tribal lands. (Passed the House on February 3rd)
Other CRA bills that are likely to be considered and are of potential interest to land developers include:
- Blocking U.S. Fish and Wildlife Services’ Compensatory Mitigation Policy. On December 27, 2016, the U.S. Fish & Wildlife Service (USFWS) released its final Endangered Species Act (ESA) Compensatory Mitigation Policy (CMP). The final CMP is a significant departure from existing practices regarding compensatory mitigation and would hinder economic development.
- Blocking Bureau of Land Management’s Planning 2.0 Rule. Planning 2.0 changes the BLM’s resource management planning process, and introduces significant uncertainty by creating ambiguous standards and expanding agency discretion. Planning 2.0 takes planning decisions away from local communities and centralizes those decisions with the federal government.
- The “blacklisting” rule for contractors. This rule, finalized by the Department of Labor in August 2016, would require federal contractors to disclose labor law violations from the last three years — and change their practices — before they can receive a contract. In October, a federal judge halted this rule from taking effect, saying it went beyond the authority Congress had given the executive branch.