Congressional Review Act could reverse Bush's lame duck deregulation

It looks like I scooped MSNbc's Rachel Madow by months with" New FBI Guidelines: More COINTELPRO?"Although many of Bush's new regulations have to do with energy and the environment, MSNBC's Rachel Maddow noted (video) on Tuesday that there's also

one that'll kick opponents of the Patriot Act right in the teeth....would allow state and local law enforcement agencies to collect intelligence on individuals and organizations even if the information is unrelated to any criminal matter...Even if they weren't already watching you -- they soon could be.

According to Al Giordano, Obama-Biden Transition Co-Chair John Podesta told a "pad and pen only" press conference call that

Every Executive Order by Bush is Under Review: Those that Obama promised during the campaign to rescind, will be eliminated immediately.

I'm not sure exactly what the promised list included and Giordano doesn't seem to have asked. After all, after making promises to the contrary, our president-elect voted for retroactive telecom immunity.

Interestly, in "Dems eye midnight regulations reversal" by Erika Lovely and Ryan Grim (update by Grim) reports that the Bush administration plan to require that Obama take years to undo climate rules finalized more than 60 days before January 20 failed to take into account the Congressional Review Act of 1996:

Any regulation finalized within 60 legislative days of congressional adjournment is considered to have been legally finalized on the 15th legislative day of the new Congress, likely sometime in February. Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate.

In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress.

An unnamed senior aide on the Senate Environment and Public Works Committee, chaired by Sen. Barbara Boxer (D-CA), acknowledged to Politico that her committee is considering the option. Eben Burnham-Snyder, spokesman for House Global Warming Committee Chairman Ed Markey (D-MA), went on record:

On egregious rule-makings that would have a detrimental effect on energy and environmental policy, [the CRA] speeds up the process for rescinding the bad rule...It’s something Markey is seriously looking into.

According Politico, Congress last used the CRA in 2001 to overturn a Clinton administration rule that set new requirements for ergonomic work spaces. CRA targets may include:

• a rule to allow federal agencies to determine on their own whether their policies will threaten endangered species, rather than requiring them to go through the U.S. Fish and Wildlife Service for approval
• regulations opening land in the West to oil shale development

and best of all,

• elimination of the stream barrier rule that eases mountaintop removal

In case you're wondering where to find the law, it passed as part of H.R.3136, the Contract with America Advancement Act of 1996 passed on March 28, 1996. This act amended Title 5, United States Code, by adding an eighth chapter, "Congressional Review of Agency Rulemaking." Here's the explanation of the bill from the Congressional record of April 16, 1996 from Senators Harry Reid (D-NV), and former Senators Ted Stevens (R-AK) and Don Nickles (R-OK)

In the 104th Congress, four slightly different versions of this legislation passed
the Senate and two different versions passed the House. Yet, no formal legislative history document was prepared to explain the legislation or the reasons for changes in the final language negotiated between the House and
Senate. This joint statement of the authors on the congressional review subtitle is intended to cure this deficiency....

As more and more of Congress’ legislative functions have been delegated to federal regulatory agencies, many have complained that Congress has effectively abdicated its constitutional role as the national legislature in allowing federal agencies so much latitude in implementing and interpreting congressional enactments. In many cases, this criticism is well founded.

Readers of this blog know about Stevens. Nickles retired in 2005 and now runs a pr firm, The Nickles Group.)

Want more information. Read Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act issued October 10, 2001 by Richard S. Beth, Specialist in the Legislative Process for the Government and Finance Division of the Congressional Research Service. See also the CRS Congressional Oversight Manual Updated May 1, 2007.

In other interesting news, see the AP story: "Obama team expected to broker subpoena deal: President-elect seen as getting at least some information from Bush aides."

UPDATE: November 24, the CRS issued a new report, Midnight Rulemaking: Considerations for Congress and a New Administration by Curtis W. Copeland, Specialist in American National Government of the Government and Finance Division.