The U.S. Senate has approximately two weeks to take advantage of the expedited provisions provided by the Congressional Review Act (CRA) to repeal a Bureau of Land Management (BLM) rule mandating new restrictions on the venting and flaring of natural gas on federal lands.
BLM’s methane and waste prevention rule requires oil and natural gas producers on public lands to cut by half the amount of gas lost through venting and flaring. The rule also allows the federal government to raise royalty rates above 12.5 percent. The agency estimates it will cost the oil and gas industry as much as $279 million a year to comply.
The methane rule is just one of dozens of regulations pushed through in the final days of the Obama administration. In addition to being unnecessarily costly and duplicative of existing state and federal regulations, the rule threatens the jobs, economic growth, and environmental benefits that have come about as a result of the U.S. shale boom by making it more difficult for producers to operate.
BLM began phasing in the rule in January but the most costly provisions don’t kick in until next year. Congress has an opportunity to weigh in before that time and nullify the rule with a single vote on a resolution of disapproval under the CRA.
The CRA’s expedited review process allows Congress to invalidate certain agency actions with a simple majority vote within a window of 60 congressional working days. But while the CRA, which applies to regulations with an estimated annual cost to the economy of $100 million or more, is not subject to Senate filibuster, it’s an option that’s available for a limited time only.
If the Senate doesn’t act by mid-May, it will be up to BLM to unwind the rule through using the formal regulatory process, which could tie the agency up for months, draining it of limited resources, keeping staff from focusing on other priorities, and almost guaranteeing additional legal challenges from environmental activists.
That’s an outcome that should be avoided at all costs.
The House voted to repeal the rule in February. Senate consideration of similar legislation by Wyoming Republican Sen. John Barrasso has been waiting in the wings for weeks as Senate leaders have worked to round up the necessary 51 votes.
Republicans hold a four-vote majority in the Senate but so far that hasn’t translated into enough votes to nullify the methane rule. Republican Sens. Susan Collins of Maine and Lindsey Graham of South Carolina have both signaled their intention to vote against repealing the rule.
That leaves GOP leaders in need of every remaining member of their caucus – as well as the vice president – to win passage. Complicating matters further has been Georgia Republican Sen. Johnny Isakson’s extended recovery from back surgery, which has kept him out of Washington for much of the spring.
Loss of a single Republican vote – in addition to Sens. Collins and Graham – would necessitate Senate leaders coaxing an energy-friendly Democrat or two to cross the aisle.
In a brief interview with Bloomberg on Monday, senior Republicans signaled their commitment to sending a disapproval resolution to President Trump for signing before the mid-May deadline, but the clock is ticking.
Exact timing depends on the number of days the Senate has been in session, but the deadline for using the CRA to rein in methane and other rules is expected to expire on May 9 or May 10.
Opponents of using the CRA argue that language prohibiting agencies from issuing “substantially similar” rules in the future makes it too blunt an instrument. Instead, they say, the rule should be sent back to BLM for revision.
But kicking the rule back to the agency is a trap.
Not only is the administrative process lengthy and inefficient, it is also fraught with pitfalls for the agency, which would have to build a case for why changes to the rule are justified that could stand up to court challenges. And it would have to do so against the record of public testimony, analysis, and research assembled by the previous administration.
Leaving it to the agency would also allow the industry’s court challenge of the rule to drag on, denying producers any certainty of the outcome, while providing plenty of new openings for environmentalists to challenge the administration’s regulatory reform efforts.
That’s time the industry doesn’t have. Legal briefs in the industry’s challenge of the rule are due this spring and a final resolution in the case could take a year or longer. In the meantime, producers will have to start making decisions this summer on whether to invest in costly new emissions technology and equipment or to simply shut down production before the rule fully takes effect in January.
All this uncertainty about a rule that threatens to curtail U.S. energy production could be avoided with a single vote in the Senate.
The Obama administration issued some 600 major regulations with an estimated cost of $740 billion between 2009 and 2017. In an attempt to reverse the accumulation of regulation, President Trump has ordered federal agencies to remove two rules for every new rule they propose.
The Congressional Review Act has helped jumpstart the unraveling of the regulatory state but its window of usefulness is quickly closing.
President Trump has so far signed 13 disapproval resolutions – an effort the White House estimates will save the economy $10 billion over the next 20 years. It’s time the Senate made it 14.
