The Congressional Review Act gives a new Congress 60 days to adopt resolutions halting certain regulations adopted by the previous administration.
Among the final bills introduced in the current lame-duck Congress, and the first resolutions to be filed in the new Congress that convenes on Jan. 3, will be resolutions seeking to suspend implementation of the Biden administration’s “midnight regulations.”
Outgoing Senate Majority Leader Sen. Mitch McConnell (R-Ky.) on several occasions this week said the incoming Senate majority is preparing Congressional Review Act (CRA) resolutions to “rein in Washington bureaucrats” while agency rules are reviewed by the new GOP trifecta Congress.
The Biden administration’s regulations for 2024 “alone amount to the second-highest annual total by pages in the Federal Register,” he said in a Nov. 20 statement, noting since assuming office, the administration has “imposed regulatory costs that, by one estimate, surpass $1.8 trillion. That’s trillion with a ‘T.’”
The Congressional Review Act (CRA) allows Congress to suspend, in simple majority resolutions, implementation of any rules and regulations adopted in the last 60 legislative days.
The CRA has often been used to blunt “midnight” rule-making by a departing administration. A CRA resolution does not repeal a rule, it prohibits agencies from implementing it. Once adopted in both chambers, the resolution is enacted by the president’s signature.
The CRA’s “lookback” provision allows the new Congress extra time to introduce a CRA resolution. That cutoff, or “lookback” date, is uncertain until the current lame-duck Congress adjourns and newly-elected one convenes Jan. 3, 2025.
The Congressional Research Service (CRS) in late August estimated the “lookback” clock began ticking Aug. 1, meaning all rules and regulations finalized since then could fall under CRA purview.
The George Washington University (GWU) Regulatory Studies Center created a CRA dashboard that calculates up to 907 final rules could fall under CRA purview, using the Aug. 1 date.
Earlier this year, the center reported “federal agencies broke records by publishing 66 significant final rules” in April 2024.
“The surge of rules is related to the expectation that rules finalized later in the year may be at risk of being overturned through the Congressional Review Act,” wrote Zhoudan Xie, senior policy analyst at GWU’s Regulatory Studies Center, in the report.
Among potentially CRA-vulnerable rules is one already targeted by a bipartisan bill in the lame-duck Congress—Department of Treasury final rules adopted Oct. 28 for Section 45X advanced manufacturing production credits under the Inflation Reduction Act (IRA).
Reps. John Moolenaar (R-Mich.) and Jared Golden (D-Maine) have co-introduced a resolution to block implementation of the 45x credit because it allows Chinese-affiliated companies to qualify for producing clean energy components.
An analysis by POLITICO’s E&E News found at least eight companies linked to China have spent more than $1.2 billion to build 23.6 gigawatts of solar module capacity since the IRA passed.
Changzhou, China-based Trina Solar, for instance, was in line to receive nearly $1.8 billion in IRA tax credits before selling its 5 gigawatt, 1.35 million-square-foot Texas solar panel factory six days after opening it—and one day after President-elect Donald Trump won reelection Nov. 5—to Norway-founded FREYR Battery for $340 million.
“Under no circumstance should the Chinese Communist Party (CCP) be allowed to benefit from the tax dollars of hardworking American families,” said Moolenaar, whose Michigan district is home to the under-construction battery factory from Gotion High Tech, a Chinese company.
“Unfortunately, the Biden administration’s 45X rule has left the door open for CCP-affiliated companies, like Gotion, to reap billions in taxpayer funding,” he said in a statement Nov. 20. “That’s wrong and the commonsense bipartisan legislation we are introducing today will stop it.”
While unlikely due to its earlier date, the CRA bullseye could potentially zero on the Department of Transportation’s (DOT) June rule enacting stricter fuel economy and emission standards for passenger vehicles and light trucks being challenged in court by 26 Republican state attorneys general.
Others that could be targeted is a Health and Human Services Department August rule that boosts wage and benefit requirements for Head Start workers, and the Environmental Protection Agency’s (EPA) October rule requiring drinking water systems to replace lead pipes within the next decade, which could cost utilities an estimated $2.6 billion.
Among rules finalized during that spate to beat the CRA clock are the Bureau of Land Management’s Conservation and Landscape rule that puts conservation on equal footing with other uses of public lands, and the EPA’s new standards for power plant emissions.
Republicans used the CRA in 2017 to suspend 16 regulations issued in the final months of the Obama Administration. Congressional Democrats used it in 2021 to revoke three Trump rules.
“GOP lawmakers plan to do the same with President Joe Biden’s administration rules,” McConnell said. “Two weeks ago, the American people gave Republicans a legitimate, crystal clear mandate. And come January, we ought to use it to hit the brakes on runaway regulation.”