President is expected to sign both resolutions as passed under Congressional Review Act(CRA}; House passes another CRA measure repealing BLM rule on emissions from oil & gas wells.

Action on a number of fast-track measures to repeal Obama administration energy rules continued in the Senate and House, as the Senate cleared two resolutions to disapprove of an SEC rule for resource extraction companies and an Interior Department stream protection rule. Those measures, considered under expedited procedures provided by the 1996 Congressional Review Act (CRA), are expected to be signed by President Trump. The House, meanwhile, passed another CRA resolution (H.J. Res. 36) overturning a recent Bureau of Land Management rule restricting methane emissions from oil and gas wells on public lands.

On February 2, 2017, the Senate voted 54-45 to pass the measure overturning the Interior Department stream protection rule (H.J. Res. 38). Four Democrats — Joe Donnelly (IN), Heidi Heitkamp (ND), Joe Manchin (WV) and Claire McCaskill (MO) — supported the measure, while Susan Collins (R-ME) was the only Republican to vote against it. Then, in a vote that began at 6:30 am Friday morning, the Senate voted 52-47 to pass the measure (H.J. Res. 41) overturning the SEC resource extraction rule. That vote fell along party lines, with Edward Markey (D-MA) not voting.

House action. The House vote on H.J. Res. 36 (disapproving of the BLM's methane emissions rule) was 221-191, largely along party lines, with three Democrats supporting the measure and 11 Republicans voting against. Senate Majority Leader Mitch McConnell (R-KY) has said the Senate will take up this measure next week. Senate leaders have been debating and voting on House-passed CRA resolutions while the chamber waits through procedural delays surrounding confirmation votes for a number of Cabinet nominees.

CRA resolutions cannot be filibustered. 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. Attached with this alert please find a 2016 report issued by the Congressional Research Service outlining how Congressional Review Act 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 February 1, 2017, House vote on the SEC resource extraction rule was 235-187, mostly along party lines. The House vote the same day on the Interior stream protection rule was 228-194, also largely along party lines. Further detail on all three energy-related rules follows.

Other CRA measures. The House also passed two other non-energy disapproval measures under CRA procedures. H.J. Res. 37, which would overturn a final rule submitted by the Department of Defense, the General Services Administration and NASA relating to the Federal Acquisition Regulation, passed by a vote of 236-187 on February 2, 2017. H.J. Res. 40, which would overturn a rule submitted by the Social Security Administration relating to Implementation of the NICS Improvement Amendments Act of 2007, relating to expanded background checks for firearms purchases, passed by a vote of 235-180 on February 2, 2017.

Three energy-related rules targeted

Methane and Waste Prevention Rule. H.J. Res 36, sponsored by Rep. Rob Bishop (R-UT), would overturn the Interior Department's "Methane and Waste Prevention Rule," intended to reduce the wasteful release of natural gas into the atmosphere from oil and gas operations on public and Indian lands. The final rule, issued in November 2016, updated 30-year-old regulations governing venting, flaring and leaks of natural gas. In addition to harmful methane emissions, Interior's justification for the rule also cited the costs of lost royalty revenue to the federal, state, and tribal governments from wasted natural gas resources. Interior's Bureau of Land Management (BLM) manages the federal onshore oil and gas leasing program and has jurisdiction over 245 million acres of public land and 700 million acres of subsurface estate.

SEC resource extraction rule. H.J. Res 41, sponsored by Rep. 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 U.S. to disclose annual payments of $100,000 or more per project made to the U.S. federal 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 Rep. Bill Johnson (R-OH), 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 impacts to 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.