Magazine

Legislation & Regulation

Legislative and Regulatory Update

March 2017 by Scott Harn

• Confirmation for some
At press time, we are still waiting for the confirmation of Congressman Ryan Zinke (R-Montana) as the next Secretary of Interior. Democrats objected when Senate Majority Leader Mitch McConnell tried to push through the confirmation with a voice vote, so the vote will likely occur at the end of February or during the beginning of March.

Zinke is a former Navy SEAL who served with SEAL Team One and SEAL Team Six. He also served as a team leader, ground force commander, task force commander, and later as the deputy and acting commander of the Combined Joint Special Operations Task Force—Arabian Peninsula during Iraqi operations.

Regarding climate change, Zinke stated, “It’s not a hoax, but it’s not proven science either.”

Scott Pruitt was confirmed as the head of the Environmental Protection Agency (EPA) on February 17 by a vote of 52-46. Two Senators (John McCain and Joe Donnelly) did not vote, and 447 former EPA employees signed a letter opposing his nomination.

Pruitt was a staunch adversary of the EPA during his six-year tenure as the Oklahoma Attorney General, suing the agency fourteen times. He referred to himself as a “leading advocate against the EPA’s activist agenda.” Regarding climate change, Pruitt stated “the climate is changing, and human activity contributes to that in some manner.”

Pruitt sued the EPA over their change to the definition of Waters of the United States (WOTUS) and the Clean Power Plan, and often challenged their regulatory authority.

During his campaign, President Trump stated several times he wanted to “abolish” the EPA. It remains to be seen how he will go after an agency that has swelled to 15,000 employees.

• Congress canceling regulations
Some of you may have heard of the Congressional Review Act (CRA). It was a bill passed in 1996 that allows the rescinding of recent regulations by a simple majority vote in the House and Senate. On its face it appears to apply to rules and regulations put in place in the last 60 legislative days. At least that is what most people, including me, believed.

The CRA was enacted to help prevent administrations from promulgating unpopular rules or regulations without Congressional approval.

Todd Gaziano believes the CRA goes far beyond “recent” regulations, and he should know.

According to the Wall Street Journal:

“These days Mr. Gaziano is a senior fellow in constitutional law at the Pacific Legal Foundation. But in 1996 he was counsel to then-Republican Rep. David McIntosh. He was intimately involved in drafting and passing a bill Mr. McIntosh sponsored: the Congressional Review Act. No one knows the law better.”

According to Gaziano, a federal agency must submit a report to the House and Senate after promulgating a rule. Congress then has a 60-day window to utilize the CRA, if desired, to rescind the rule. Rules or regulations promulgated during the last 60 legislative days would take us back to about June 2016 because only days where Congress was in session are counted.

But Gaziano said some agencies neglected to turn in the required reports for older rules and regulations, allowing the Trump Administration to do so now. The 60-day clock would start the date the report is submitted. This would create the opportunity to rescind regulations by a simple majority vote in the House and Senate, even for rules, regulations or agency guidance that was put in place as far back as 1996 when the CRA was passed if the required reports were not completed and submitted to Congress.

And the CRA specifically states that if a rule is rescinded, a similar rule cannot be reissued by an agency unless expressly authorized by Congress. The CRA could be utilized to provide lasting relief for miners, ranchers, and other public land users—and virtually all types of businesses in all areas of America.

During a meeting with business leaders on Monday, January 23, President Trump stated, “We’re going to be cutting regulation massively. We think we can cut regulations by 75 percent, maybe more.”

The process has already begun, with nearly thirty regulations being addressed under the Congressional Review Act by the House and Senate.

As an example, the House voted to repeal the Obama-era Department of Interior rule known as “Planning 2.0,” which was touted as giving non-governmental organizations a larger say in public land use decisions. The fate of the rule is now in the hands of the Senate. If the Senate also votes to repeal the rule, the BLM will be prohibited from establishing a similar rule in the future without the express consent of Congress.