William & Mary Environmental Law and Policy Review
The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may be used.
Whatever the legal uncertainties, the CRA degrades the federal regulatory system generally, and it has undermined environmental regulatory governance in particular. Using environmental regulation as a prism, this Note argues that Congress should repeal the CRA. If framed properly, repealing the CRA could be seen as supporting the interests of both environmentalists and business interests as the nation confronts climate change. In that vein, Part I of this Note provides a background of the CRA, including its mechanics and history. Part II of this Note argues that the CRA should be repealed for three main reasons. First, the CRA was poorly drafted and its future use will likely cause negative unintended consequences on the environment that may well take years to manifest. Environmentalists have better tools at their disposal to achieve their regulatory goals. Additionally, this Note argues that the CRA creates uncertainty for stakeholders, including both environmentalists and corporate interests, while simultaneously making it difficult for any administration to create long-term impactful policies to address controversial issues. Finally, the CRA has the potential to artificially stymie future legislation, specifically impairing support for environmental bills.