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Critics Say Using CRA On CEQ GHG Guide Could Effectively Amend NEPA

December 6, 2016

Critics of a Republican plan to use the Congressional Review Act (CRA) to overturn the Obama White House guidance for how agencies should consider greenhouse gases under the National Environmental Policy Act (NEPA) say that could effectively amend NEPA without going through the full legislative process.

Because the CRA says that any measure overturned by a disapproval resolution under the law “may not be reissued in substantially the same form” unless specifically authorized by Congress, scrapping the White House Council on Environmental Quality's (CEQ) guide would raise a host of questions about future GHG considerations under NEPA.

While some sources say the move could have a major impact on how agencies address GHGs in NEPA reviews, others say it would have little effect on how courts view such issues because the guide merely restates existing requirements.

The CRA effort -- touted by Bill Cooper, staff director for a House Natural Resources Committee panel, at a Nov. 29 event -- would mark a first-time effort to apply the law to a guidance document rather than a rule.

Cooper said that, “Without boxing ourselves in,” the plan is to “look at the CEQ's guide on GHGs as a first step” toward necessary NEPA streamlining. “We think it's an opportunity for us to correct a lot of wrongs, and that in and of itself should streamline the process.”

CEQ finalized the guidance Aug. 2, articulating how agencies should consider climate change and GHG impacts under NEPA, which requires that agencies consider the environmental impacts of major federal projects -- like energy extraction and infrastructure -- as well as ways to mitigate those impacts.

However, CEQ says the guide imposes no new requirements, and that GHG considerations have always been required. Instead, the guide only seeks to clarify how to do so for consistency across agencies, it adds.

One proponent of broad NEPA GHG reviews says disapproving the guidance “would be unprecedented” but that it seems to “be part of a broader push by Congress to effectively outlaw any mention of consideration of climate by federal agencies. This isn't just legislating climate denial, this will be telling agencies they are prohibited from acknowledging facts and truth. This is nothing short of dictatorial and stands as another disturbing sign of the anti-democratic lengths this Congress is going to go to do the bidding for the fossil fuel industry.”

One CRA expert says that Congress might want to use the law to undo the guidance -- rather than simply letting incoming President Trump revoke or ignore it -- to effectively amend NEPA without going through the time-consuming and challenging legislative process.

A CRA resolution needs just 51 votes in the Senate and cannot be filibustered, whereas an amendment to a major environmental statute would face rigorous congressional review and likely need the vote of 60 senators, a high hurdle.

The source adds that a successful CRA effort would leave open many questions about GHG considerations under NEPA reviews but also acknowledges that simply revoking the guidance would also raise similar questions.

“To the extent that the guidance was issued in response to court decisions asking agencies to better account for climate impacts as part of their NEPA analyses . . . just to get rid of the document doesn't solve that problem. If they don't have the document guiding NEPA analysis in future court cases, they'll have to point to something else, and what they point to and whether that satisfies the reviewing judge” remains to be seen.

So, Trump can reverse the guidance, but that can “introduce new problems,” the source explains.

On the other hand, if Congress disapproves the guide under the CRA, then things get “interesting,” the source says, because the law “has this kind of salty earth effect where it doesn't just kill the rule that is targeted but it prevents the agency from doing anything that is substantially similar without the express authorization of Congress.”

'Hands Are Tied'

If that happens, then the Trump administration could plausibly tell a future court “our hands are tied” regarding whether and how to outline GHG expectations under NEPA, because the earlier resolution prevents it from issuing another guidance. The source adds that argument could persuade a judge that the administration cannot issue a new guidance.

“It's an open secret that the CRA is not exactly a paragon of legal draftsmanship,” the source says, noting there is no definition of “substantially similar” and nothing in administrative law to answer the question.

Another source agrees that the ultimate CRA effort may be a way to “amend NEPA . . . to say climate is not considered under NEPA” without going through the “old-fashioned way of passing a bill.” However, the source says the CRA “is not a way to make any law you want. It is just a short-circuit way to rescind newly adopted regulations or rules within a specific time period. And so what I would say is that a [CRA resolution] that would be seen as amending the underlying law” would be an overreach.

The law has only been used successfully once -- to overturn a Clinton-era Occupational Safety & Health Administration (OSHA) ergonomics rule that has scared off OSHA from revisiting the issue ever since. The CRA expert says because of a lack of a track record under the law, there is “still a lot of uncertainty out there. And if [the issue] came before a judge, God help him or her” in reaching a legal decision.

The source adds that one outcome of a resolution of disapproval is “it has the effect of amending the underlying statute. It goes in with a scalpel and pulls out the legal authorization . . . and leaves and empty spot in the statute that remains empty until Congress goes back.”

The source notes that OSHA is under growing pressure to address ergonomics for poultry processors who use dull knives in wet, sloppy conditions and have to carve chickens on a conveyer belt so quickly that workers cannot straighten their fingers after just a few months on the job.

But the OSHA general counsel's office is “exceedingly conservative” and “bulletproofs” any action “against every conceivable legal argument. . . . My guess is their response is to read that CRA resolution of disapproval as broadly and destructively as possible, as preventing them from doing anything on ergonomics full stop. . . . They feel like they cannot touch [the poultry processing problem] because” it could be substantially similar to the rule that was struck down under the CRA more than 15 years ago.

A NEPA expert agrees that the CRA effort here might be a way to effectively amend the law. But the source says a disapproval from Congress “is not the same thing as an amendment of the statute, which is maybe what they're thinking. That they could do sort of an end run around having to actually have a hearing on and seek to actually change NEPA. That may be what they're after here.”

The source adds it would be a “mystery” if the GHG guide went down to a CRA resolution and a new administration wanted to redo it. “We'd be in uncharted waters here. I guess the Trump administration CEQ would be arguably prohibited from issuing its own guidance document. Whether a CEQ five years from now would be prohibited from issuing revised guidance that says something along the same lines . . . it's just really uncharted territory.”

Court Review

However, this source says the guidance's fate should not affect how courts look at how agencies address GHGs under NEPA or their underlying GHG analysis, because the requirement that agencies consider indirect effects is “fairly straightforward” and applies to the GHG emissions from fossil fuels whose extraction is approved by an agency, for example.

The source adds that a CRA effort over the CEQ GHG guide is confounding because an interpretive rule “doesn't have the force of law” but “sets forth the agency's well-considered view of what the statute requires. It doesn't in and of itself create any new requirements.”

This source adds that it is questionable whether the CRA even applies to the guidance because it imposes obligations only on agencies and not the public. The source adds that if the threat is carried out and upheld in court, the precedent “would be horrendous. It would utterly freeze any future administration caught in a situation with an unfavorable Congress. Future administrations would be extremely constrained in their ability to issue policy statements or interpretive guidance across the regulatory spectrum.”

But the CRA expert says the law can apply to guidance documents. The source expects Senate Democrats to seek to fight the effort, noting a provision of the law requires 10 hours of debate on any disapproval resolution in the upper chamber.

“That is their one sort of tool they can use to fight back, and it's not much at this point, but their best friend is the clock and to the extent they make each [resolution] as onerous as possible and as time consuming as they can, then they can effectively limit” how many CRA resolutions are approved.

The source adds: “The goal is to run out that clock as much as possible. . . . I would hope that this would be a great moment for senators to educate the public about the value of safeguards because each rule is not produced in the basement under the fever dreams of bureaucrats running amok, but are meant to address real problem. And when you take those away, people keep bearing the cost of those problems.”

One Senate Democratic source says legal staff is already looking into the possible CRA effort for the CEQ guide.

Meanwhile, one environmentalist says the possible CRA effort “seems ill advised at best” and “seems like their goal is just to exclude the public over and over again.” -- Dawn Reeves (