CRA provides expedited procedure for overturning recently issued agency rules; disapproval measures cannot be filibustered in Senate; Senate quickly moves to take up measure targeting interior stream protection rule.

The House on February 1, 2017, passed two resolutions of disapproval under the Congressional Review Act that would overturn: 1) an Interior Department rule intended to protect streams from coal-mine waste, and 2) a Securities and Exchange Commission (SEC) rule required by the Dodd-Frank Act that will require oil, gas and mining companies to disclose payments they made to foreign governments or the U.S. government.

The vote on the SEC "resource extraction rule" (HJ Res 41) was 235-187, mostly along party lines, with five Democrats voting yes and four Republicans voting against. The vote on the Interior stream protection rule (HJ Res 38) was 228-194, also largely along party lines, with five Democrats voting yes and nine Republicans voting no.

Attached with this alert please find a report issued by the Congressional Research Service in 2016 outlining how the 1996 Congressional Review Act (CRA) works in practice, including various deadlines built into the law limiting when and how Congress may use the act to target recently issued rules. The CRA provides an expedited process for Congress to overturn rules issued by executive-branch agencies within a limited time-frame after the rules are promulgated. Significantly, such measures are not subject to the filibuster in the Senate and can pass with only 51 votes. If such disapproval measures are enacted, the agencies are prohibited from issuing a new rule that is "substantially in the same form" unless Congress specifically authorizes it.

Senate action. The Senate moved quickly to proceed to consideration of the stream protection rule, while the chamber moves toward a Friday cloture vote on the nomination of Betsy DeVos to be secretary of Education. Senate Majority Leader Mitch McConnell (R-KY) said the iterior stream rule was a product of the Obama administration's "war on coal," and added that the Senate would also consider the SEC resource extraction rule "soon." Under procedural rules stipulated by the CRA, the Senate can debate each CRA disapproval measure for a maximum of 10 hours divided evenly between the parties.

The House is scheduled to consider other disapproval measures under the CRA this week. The House will vote on repealing rules on: 1) methane emission from oil and gas wells on public lands, 2) expanding background checks for some gun purchases through the Social Security Administration, and 3) requiring federal contractors to post information on their workers.

House debate. During floor consideration of the measure disapproving of the SEC resource extraction rule, Republicans argued that the rule will be burdensome and costly for energy companies and duplicates other existing regulations. House Financial Services Chairman Jeb Hensarling (R-TX) called the rule part of "a radical leftist elitist agenda against carbon-based jobs." During debate over the Interior stream rule, Democrats contended the rule will reduce water pollution, while GOP supporters of the disapproval measure said it would cause the loss of coal industry jobs by placing unworkable limits on the industry.

Background on two rules

SEC resource extraction rule. H.J. Res 41, sponsored by Bill Huizenga (R-MI), a senior member of the House Financial Services Committee, would overturn a rule issued by the SEC in June 2016. The "Disclosure of Payment by Resource Extraction Issuers" rule was required by Section 1504 of the Dodd-Frank Act. It will require resource extraction issuers registered in the US to disclose annual payments of $100,000 or more per project made to the US federal government or to foreign governments for the commercial development of oil, natural gas or minerals. The final rule defines commercial development as "exploration, extraction, processing, and export, or the acquisition of a license for any such activity." Section 1504, based on an amendment offered on the Senate floor during 2010 consideration of Dodd-Frank by former senator Richard Lugar (R-IN) and Sen. Benjamin Cardin (D-MD), was intended to combat global corruption by promoting greater transparency about payments related to commercial drilling and mining. The SEC originally adopted its rule in August 2012, but in 2013, the U.S. District Court for the District of Columbia vacated the rule and sent it back to the agency for reproposal. Among other concerns, the court found that issuers should have been able to submit their payment disclosures confidentially to the SEC without making them public. The SEC then revised and re-proposed the resource extraction rule, releasing it for public comment in December 2015 and voting to finalize it in June 2016.

Interior Stream Protection Rule. H.J. Res. 38, sponsored by Bill Johnson (R-OH), a member of the Natural Resources Committee, would overturn the Interior Department's Stream Protection Rule. That rule, finalized by the department on December 19, 2016, is intended to prevent or minimize coal mining effect on surface water and groundwater. It updates 33-year old regulations and establishes requirements for surface coal mining that would, according to Interior's Office of Surface Mining Reclamation and Enforcement, protect or restore about 6,000 miles of streams and 52,000 acres of forests over the next two decades. In 2009, Interior announced its intention to clarify mining requirements in response to public controversy over the impact of "mountaintop removal." The final rule requires companies to avoid mining practices that would permanently pollute streams or destroy water supplies and to restore mined areas to pre-existing conditions.

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