From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Jeff Rosen

This month the House of Representatives passed two resolutions under the Congressional Review Act (5 USC 801, et seq .) that disapproved of EPA’s recent rules for greenhouse gases from new and existing power plants. S.J. Resolutions 23 and 24. These two resolutions had already passed the Senate on November 17, 2015. The vote in the Senate was 52-46, and in the House was 235-188. These resolutions of disapproval will next go to the President, who has previously threatened to veto them. They are only the third and fourth times that both houses of Congress have ever sent a resolution of disapproval of agency rules to the President.

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Another interesting wrinkle: As with the earlier NLRB rule, the EPA rules that are the subject of the resolutions of disapproval are also subject to pending litigation challenges under the APA. With regard to the Congressional Review Act, section 805 provides that “No determination, finding, action, or omission under this chapter shall be subject to judicial review.” And section 801(g) provides that “If the Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency may infer any intent of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval (emphasis supplied).”) Perhaps others would like to comment on whether there are any scenarios in which CRA votes or vetoes could be relevant to APA lawsuits.

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