Recent Congressional Review Act (CRA) Activity

This article is a brief update on recent developments related to Congress’s disapproval of a few Biden administration air quality-related rules. The Congressional Review Act (CRA) was passed into law in 1996 to strengthen congressional oversight of federal agencies’ rules. It gives power to Congress and the President to disapprove major rules issued by federal agencies during the last 60 legislative or session days. Once a rule has been disapproved, the CRA prohibits an agency from issuing a rule that is “substantially the same.” Congress, in conjunction with the new administration, has recently taken several actions to disapprove rules enacted in 2024 under the Biden Administration and send both state and federal agencies back to the drawing board.

Methane Fee Rule

One of the first rules targeted by Congress through the CRA was the U.S. Environmental Protection Agency’s (U.S. EPA) methane waste emissions charge (WEC) implementation rule under the Inflation Reduction Act (IRA). The WEC rule was set to require oil and gas facilities to pay a fee based on excess emissions over U.S. EPA’s existing methane standards. The fee was to be phased in starting with emissions from year 2024; however, in late February Congress approved the rollback of the WEC which was signed by the President in mid-March. The recently signed budget reconciliation package delays implementation of the IRA’s methane fee requirement by 10 years.

Reclassification of Major Sources

Last year, Amy Marshall (ALL4’s Air Quality Practice Director) wrote an article on the U.S. EPA September 2024 rule updating a 2020 rule that allowed major sources of hazardous air pollutants (HAP) to reclassify as an area source (known as the Major MACT to Area (MM2A) rule. The 2024 rulemaking prevented major sources subject to one or more of approximately 30 rules from avoiding applicability of major source standards by reclassifying as area sources. The President signed a CRA resolution on June 20^th effectively scrapping the September 2024 restrictions and reverting major source to area source reclassification back to the 2020 MM2A framework. Litigation on the 2020 rule that was paused while U.S. EPA developed the 2024 amendments is now expected to resume.

Standards for Rubber Tire Manufacturing

In November of 2024, U.S. EPA finalized changes to the National Emission Standards for Hazardous Air Pollutants (NESHAP): Rubber Tire Manufacturing rule. Ben Johnson summarized those changes in a previous blog, which primarily consisted of numeric emissions limits on total hydrocarbons (THC) and filterable particulate matter (fPM, serving as a surrogate for organic and metallic HAP) from the rubber mixing process, along with continuous monitoring. However, in late May the President signed a CRA resolution sending U.S. EPA back to the drawing board to re-evaluate whether it is necessary to regulate HAP emissions from the rubber mixing process, and what HAP regulations might look like.

Waivers for California Vehicle Emissions Programs

Although the Clean Air Act (CAA) generally preempts states from setting their own vehicle emissions standards, Section 209 of the CAA provides an exemption, allowing U.S. EPA to grant waivers to the state of California. In the waning days of the previous administration, U.S. EPA granted several waivers to California for California’s Advanced Clean Cars II (ACC II) rule, Heavy-Duty Low Nitrogen Oxides (NOx) Omnibus rule, and other rules and amendments related to emissions from vehicles and mobile sources. In April, the U.S. House of Representatives voted to disapprove waivers for the ACC II, the Heavy-Duty Low NOx Omnibus Rule, and California’s Advanced Clean Trucks Rule. The Senate voted to rescind the waivers in May, and the President added his signature in June. It is unclear how California will achieve improvements in air quality without the ability to directly require reductions in emissions from mobile sources, but indirect source rules that require emissions reductions from mobile sources associated with warehouses could become more important.

Moving Forward

If you have followed rule development for any amount of time, you know that almost nothing is final until it has made its way through the courts, and such is the case here. In response to disapproving the California waivers, several states, including California, have filed suit in the U.S. District Court for the Northern District of California, challenging the constitutionality of the actions. The outcome of this litigation is anticipated to affect not just the California waivers, but how Congress and the administration can implement the provisions of the CRA in the future. Additionally, we are waiting to see how U.S. EPA will respond to the CRA resolution for Rubber Tire Manufacturing – for instance, will U.S. EPA interpret Congress’s actions to mean that it is no longer necessary to set standards for rubber mixing? Or will U.S. EPA try to develop a completely new set of standards for rubber mixing? And if the Agency does develop new standards, will they be challenged on their similarity to the previous rulemaking?

Disapproval under the CRA has been used sparingly since its inception, and this is the first time CRA disapproval has been used on a NESHAP, so it will be interesting to see the outcome. The CRA does not define the meaning of “substantially the same” or state who should make such a determination. To date, only two rules (neither issued by U.S. EPA) have been reissued following disapproval under the CRA, and in both cases, the agencies issuing the rule looked at the specific objections and focused on changing those aspects of each rule when reissuing them.

If your facility was affected by one of these rules and you are wondering what the future implications might be, please reach out to me, Philip Crawford, or your ALL4 project manager to start a conversation.