November 21, 2017
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Congress’ reckless attack on regulations is a perversion of the legislative process

By Jonathan Wood and Rebecca Boulos, Special to the BDN
George Danby | BDN | BDN
George Danby | BDN | BDN

How is it that Congress completely erased a U.S. Department of the Interior rule aimed at protecting streams and wildlife from mining waste? And how is it that the mechanism used by Congress has made it impossible for any similar agency rule to ever be created in the future? The answer is the Congressional Review Act.

The Congressional Review Act is a blunt, all-or-nothing tool that allows Congress to wipe an agency rule off the books permanently, forbidding future reinstatement or amendment. It further states that no other rule may ever be “reissued in substantially the same form” and the actions shall not be “subject to judicial review.”

So why don’t we all know about this draconian 20-year-old law? Because the Congressional Review Act has been used only once successfully since its creation in 1996. Until now.

In the last month, the U.S. House of Representatives has invoked the Congressional Review Act four times in an attempt to undo several Obama-era agency rules, all awaiting a Senate vote: a Social Security Administration rule that would prevent individuals with mental health disorders from obtaining a firearm, a Department of Defense rule to assure that federal contractors are required to abide by labor laws, a Securities and Exchange Commission rule to require companies to disclose payments to foreign governments in exchange for commercially developing oil and natural gas, and a Bureau of Land Management rule limiting easily preventable natural gas waste on federal and tribal lands.

This last effort by the Department of the Interior, which oversees the Bureau of Land Management, “updates 30-year-old regulations governing venting, flaring, and leaks of natural gas, and will help curb waste of public resources, reduce harmful methane emissions, and provide a fair return on public resources for federal taxpayers, tribes and states.” Why would Congress demolish a 30-year-old Bureau of Land Management rule that benefits taxpayers and protects the environment? Why would Congress forbid future administrations from ever again limiting natural gas venting on our lands? This reckless and indiscriminate use of congressional power is a perversion of the legislative process and needs to be addressed.

Congress does not need the Congressional Review Act. It has always had the power to amend or remove objectionable parts of agency rules and regulations. We expect measured, thoughtful action from our representatives, especially the U.S. Senate, which exists in part to prevent rash or emotional federal actions. Instead, we are seeing an unbridled use of the Congressional Review Act that will lay waste to the efforts of countless agencies and tie their hands forever. Many members of Congress are threatening further widespread use. This is irresponsible and reckless behavior that must be checked.

Mainers should be proud of their congressional delegation. All four — Sens. Susan Collins and Angus King and Reps. Chellie Pingree and Bruce Poliquin — voted against using the Congressional Review Act to reverse the mining regulations that would have protected our streams and wildlife. We must thank them with our letters, emails and phone calls.

But equally important, we must implore them to persuade their colleagues that further impulsive use of the Congressional Review Act will cause irreversible harm. The methane waste rule is a perfect example, and its repeal must be opposed. In short, the Congressional Review Act has become a destructive weapon. It is a frightening tool that deserves the neglect it enjoyed for the first 20 years of its existence.

Jonathan Wood is a pediatric intensive care physician practicing in Bangor. He lives in Hampden. Rebecca Boulos is the executive director of the Maine Public Health Association. She lives in South Portland.

 


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