Within the past two weeks, Congress has moved to undo a number of Obama administration actions under the Congressional Review Act (CRA), which allows for an expedited legislative review process when members of Congress express disapproval over a recently finalized rule. Among the targeted rules are those affecting the management and protection of natural resources on lands throughout the U.S.
In a press release issued on Feb. 3, Rep. Bradley Byrne (R-AL) described Congress’ reasoning for quickly seeking to overturn so many rules: “Overregulation has a detrimental impact on all Americans and limits opportunities for economic growth.” He added, “Through the Congressional Review Act, we can quickly and permanently target unnecessary, costly, and burdensome government regulations, and I hope we continue to use this power over the coming weeks.” House Speaker Paul Ryan (R-WI) called the regulations “harmful” and pledged to work with the Trump administration to repeal them.
The expected overruling of the Obama administration’s Stream Protection Rule and Resource Management Planning Rule and the possible overruling of the U.S. Fish and Wildlife Service’s Endangered Species Act Compensatory Mitigation Policy may have considerable impacts on wildlife management and conservation. Congress also seeks to eliminate rules pertaining to non-federal oil and gas rights issued by USFWS and the National Park Service, BLM’s methane emission rule, and new regulatory requirements for exploratory drilling operations on the Outer Continental Shelf in the Arctic.
In his response to the effort to overturn the Stream Protection Rule, Rep. Raúl Grijalva (D-AZ) of the House Natural Resources Committee stated, “The American people didn’t vote in November to weaken our environmental laws or have mining waste dumped in their communities. But that’s what this bill does, and that’s what my Republican colleagues voted for today.”
Congressional Review Act
The CRA was signed into law in Title II of the Contract with America Advancement Act of 1996. The CRA modifies the federal rulemaking process by giving Congress the authority to review and nullify recent major federal agency regulations. Once a rule is finalized, Congress has 60 days (excluding days when either chamber is adjourned for more than three consecutive days) to review it and may overrule it if both the House and the Senate pass a joint resolution that is then signed by the President. Such a resolution prevents the rule from taking effect, and it prohibits the same rule or a very similar one from being issued in the future.
The CRA has only been invoked to successfully undo a regulation once. In 2001, President Bush signed a joint resolution overturning an ergonomics rule issued by the Occupational Safety and Health Administration. President Obama was presented with five joint resolutions of disapproval but did not sign any of them.
Stream Protection Rule
The Stream Protection Rule, finalized on Dec. 20, 2016, is intended to better protect surface and groundwater, fish, wildlife, and public health from the harmful byproducts of surface coal mining operations. The requirements stipulated by the Rule address impacts to aquatic resources beyond mining permit areas and include, among many others, a requirement for the establishment of a 100-foot-wide native vegetation corridor around affected streams.
Backed by recent advancements in scientific research, the Stream Protection Rule strengthens permitting requirements for mining operations to prevent water pollution and long-term costs of treating water to remove mining-related pollution. The House voted on a joint resolution to overrule it which then passed the Senate on Feb. 2. It was sent to President Trump on Feb 6. and awaits his signature.
Resource Management Planning Rule, or “Planning 2.0”
BLM finalized its Resource Management Planning Rule, or “Planning 2.0,” on Dec. 12, 2016 with the purpose of establishing new procedures for preparing, revising, or amending land use plans under the Federal Land Policy and Management Act of 1976. The Rule intends to increase planning transparency and to incorporate more input from other federal agencies, state and local governments, Indian tribes, and the public when land use plans are in development. It also ensures that decision-making is guided by the best available scientific data and provides strategies to effectively address the spread of invasive species and adapt to the effects of climate change.
A joint resolution set to abolish the Rule was introduced in the House on Jan. 30 with several Republican cosponsors. If Planning 2.0 is overturned, BLM will continue to operate according to procedural regulations that were written in 1983 and last amended in 2005.
Endangered Species Act Compensatory Mitigation Policy
The Endangered Species Act Compensatory Mitigation Policy was developed in response to a presidential memorandum issued by President Obama in November 2015 which directed USFWS to revise and finalize a mitigation policy to address the negative impacts of development activities to at-risk species and their habitats on lands under USFWS’ authority. The finalized policy clarifies existing procedures, establishes new mitigation programs, and incorporates landscape-level management plans to ensure that conservation goals are achieved effectively and sustainably.
The policy emphasizes the importance of mitigation activities that achieve a “net gain” of affected resources. This means that the policy intends not only to prevent development-related harm or loss of species protected under the ESA, but it aims to actively increase the capacity of the landscape to support the recovery and growth of those species’ populations as compensation for the impacts of development.
H.J.Res. 60 was introduced on Feb. 2 to provide Congressional disapproval for the Endangered Species Act Compensatory Mitigation Policy. The Trump administration’s energy policy goals rely largely on opening up energy development leasing on federal lands, so the nullification of USFWS’ mitigation policy could lead to significant impacts for at-risk species.
As described in its Standing Position on Threatened and Endangered Species, TWS supports the legislation and enforcement of existing laws designed to safeguard wild populations. TWS opposes activities that jeopardize threatened and endangered species populations and supports the restoration of critical habitats.
Read TWS’ Technical Review on Impacts of Crude Oil and Natural Gas Development on Wildlife and Wildlife Habitat in the Rocky Mountain Region.