Congressional Review of EPA's Mercury Rule

Order Code RS22207

July 25, 2005

CRS Report for Congress

Received through the CRS Web

Congressional Review of EPA’s Mercury Rule

name redacted

Specialist in Environmental Policy

Resources, Science, and Industry Division

name redacted

Specialist in the Legislative Process

Government and Finance Division

Summary

On June 29, 2005, Senator Patrick Leahy and 31 cosponsors introduced S.J.Res.

20; on the same day, a similar resolution (H.J.Res. 56) was introduced in the House by

Representative Martin Meehan. If enacted into law, these resolutions would disapprove,

under the Congressional Review Act, a rule promulgated by the Environmental

Protection Agency on March 29, 2005, in which EPA determined not to regulate

hazardous air pollutants from coal- and oil-fired electric utility units under Section 112

of the Clean Air Act. Introduction of the Senate resolution set in motion procedures

under which the Senate may vote on whether to overturn the rule if at least 30 Senators

submit a petition to discharge the resolution from the committee to which it is referred.

Thirty-two Senators did so on July 18. By that point, no action had yet occurred on the

House measure.

This report discusses the EPA rule that is the subject of the disapproval resolution,

describes the procedures under which the resolution can be considered, and provides

additional references and background information that may be of interest in light of the

potential debate. The report will be updated if congressional action warrants.

Introduction

On March 29, 2005, the Environmental Protection Agency (EPA) promulgated a

final rule1 reversing an earlier EPA determination that mercury and other hazardous air

pollutants emitted by electric power plants should be regulated under Section 112 of the

1

“Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants

from Electric Utility Steam Generating Units and the Removal of Coal- and Oil-fired Electric

Utility Steam Generating Units from the Section 112(c) List,” 70 Federal Register 15994, March

29, 2005.

Congressional Research Service ˜ The Library of Congress

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Clean Air Act.2 By reversing its earlier determination, EPA effectively eliminated a

requirement that utilities meet “Maximum Achievable Control Technology”(MACT)

standards at each individual coal- and oil-fired plant.

Had MACT standards been promulgated, existing facilities would have had three

years to meet them, with the possibility of one-year extensions of the deadline if it were

necessary for the installation of controls. Thus, EPA’s March 29 rule eliminated a

requirement that individual utility plants meet MACT requirements by March 2008 or

2009.

In eliminating the MACT requirement, the March 29 rule paved the way for a

separate May 18, 2005, rule in which EPA promulgated a cap-and-trade program for

power plant mercury emissions. The cap-and-trade rule would be implemented in two

phases, and would allow utilities to bank (for later use) or trade allowances earned by

reducing emissions earlier, or more, than required. In general, according to EPA’s

analysis, power plants would not install control equipment specifically designed to reduce

mercury emissions until the 2020s under the cap-and-trade rule. For a full discussion of

the cap-and-trade rule and EPA’s rationale in promulgating it, see CRS Report RL32868,

Mercury Emissions from Electric Power Plants: An Analysis of EPA’s Cap-and-Trade

Regulations.

There has been much discussion among interested parties regarding what level of

control would have been required by the MACT provision. In Section 112(d), the statute

requires that MACT standards for existing facilities “shall not be less stringent, and may

be more stringent than ... the average emission limitations achieved by the best

performing 12 percent of the existing sources.” On January 30, 2004, EPA had proposed

MACT standards for five categories of electric generating units that would have required

mercury emission reductions of about 30%, on average. Many maintained that this

MACT proposal did not meet the statutory minimum requirements. (For a discussion of

the MACT proposal, see CRS Report RL32744, Mercury Emissions from Electric

Generating Units: A Review of EPA Analysis and MACT Determination.)

If the March 29 rule were to be ultimately disapproved by Congress, EPA would be

forced to issue MACT standards for coal- and oil-fired electric power plants. How

quickly the agency would do so is uncertain. Having proposed MACT standards and

taken public comment on them in 2004, the agency could proceed to promulgation

without significant delay. But the dispute over the stringency of such standards would

likely continue even if promulgation came swiftly, as stakeholders debate whether EPA’s

choice of MACT meets the “best performing 12 percent” minimum established by the

statute.

2

Regulatory Finding on the Emissions of Hazardous Air Pollutants from Electric Utility Steam

Generating Units, 65 Federal Register 79825, December 20, 2000.

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Effect of the Congressional Review Act3

The Congressional Review Act, enacted in 1996,4 establishes special congressional

procedures for disapproving a broad range of regulatory rules issued by federal agencies.

Before any rule covered by the act can take effect, the federal agency that promulgates the

rule must submit it to Congress. If Congress passes a joint resolution disapproving the

rule, it would becomes law unless Congress sustained a presidential veto. If the resolution

became law, the rule could not take effect or continue in effect, and the agency would be

barred from reissuing it or any substantially similar rule, except under authority of a

subsequently enacted law.5 Pending action on a disapproval resolution, the rule may go

into effect, unless it is a “major rule,” in which case a delay period of 60 calendar days

applies, unless waived by the President or issuing agency. The March 29 mercury rule has

not been categorized as a “major rule,” and thus is currently in effect, pending any action

on a disapproval resolution.

The Congressional Review Act provides that a disapproval resolution may be

introduced in each chamber within 60 days (excluding recesses of either house) after the

receipt by Congress of the rule to be disapproved. The rule in question was received by

the Senate on April 4, and by the House on April 21. Both S.J.Res. 20 and H.J.Res. 56

were submitted within the requisite 60-day period, which began on the latter date.

Pursuant to the act, a disapproval resolution is referred in each chamber to the appropriate

committee of jurisdiction. S.J.Res. 20 was referred to the Senate Committee on

Environment and Public Works, and H.J.Res. 56 to the House Committee on Energy and

Commerce.

The act provides an expedited procedure for initial floor consideration of a

disapproval resolution only in the Senate. The House would consider a disapproval

resolution under its general procedures, very likely as prescribed by a special rule reported

from the Committee on Rules. In the Senate, beginning 20 calendar days after Congress

receives the rule, if the committee to which a disapproval resolution has been referred has

not reported it, the panel may be discharged if 30 Senators submit a petition for the

purpose, and the resolution is then placed on the Calendar. On July 18, 2005, 32 Senators

submitted a petition discharging the Environment and Public Works Committee from

further consideration of the mercury resolution.

3

The next four sections of this report, discussing the effect of the Congressional Review Act,

the procedures under which a disapproval resolution is taken up in the Senate, floor consideration

in the Senate, and final congressional action, are adapted from CRS Report RL31160,

Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act.

Additional discussion of the form of disapproval resolutions, statutory time frames, other

elements of the expedited procedures, and limitations of the expedited procedures can be found

in that report.

4

Subtitle E (“Congressional Review”) of the Small Business Regulatory Enforcement Fairness

Act of 1996, Title II of the Contract with America Advancement Act of 1996, P.L. 104-121, 110

Stat. 847 at 868-874, codified at Title 5 U.S.C. Sections 801-808. The congressional disapproval

procedure is contained in Section 802.

5

5 U.S.C. Section 801(b).

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Taking Up a Disapproval Resolution in the Senate

Pursuant to the Congressional Review Act, the expedited procedure for Senate

consideration of a disapproval resolution may be used at any time during the 60 days of

Senate session that begin when the rule in question has been published in the Federal

Register and received by both houses of Congress. For the mercury rule, this period for

expedited Senate consideration appears likely to end on approximately September 13.

Under this expedited procedure, once a disapproval resolution is on the Calendar in

the Senate, a motion to proceed to consider it is in order.6 This provision of the expedited

procedure has the effect of waiving any layover requirements that would normally apply

under the general rules of the Senate. The motion to consider is normally reserved to the

Majority Leader, to whom the Senate, in practice, accords responsibility for arranging the

floor agenda. Nevertheless, by including the motion explicitly in the expedited procedure,

the act emphasizes that the Senate, in principle, has means of calling up the disapproval

resolution, no matter what position the committee or leadership take on it. As with any

other measure, of course, a disapproval resolution could also be brought up for

consideration by unanimous consent, which would usually be obtained by the Majority

Leader.

Several provisions of the expedited procedure protect against various potential

obstacles to the Senate’s ability to take up a disapproval resolution. Some of these help

ensure that the Senate will be able to vote on a motion to proceed, once the motion is

pending, by prohibiting motions to postpone its consideration, to amend it, or to proceed

to consider some other business. Any points of order that might be raised against the

measure or its consideration are waived as well. Finally, if the motion to proceed is

adopted, a motion to reconsider that action is prohibited.

The Congressional Review Act does not explicitly make the disapproval resolution

privileged for consideration. Senate precedents, however, indicate that if a statute

establishes a time limit for the consideration of a specified measure, the provision has the

effect of rendering the measure privileged. In the Senate, a motion to proceed to consider

a privileged measure is not debatable. Consistent with this principle, the Senate has

treated a motion to consider a disapproval resolution under the Congressional Review Act

as not debatable, so that this motion cannot be filibustered through extended debate.7

Floor Consideration in the Senate

After the Senate takes up the disapproval resolution itself, the expedited procedure

of the Congressional Review Act protects the ability of the body to continue and complete

that consideration. First, once the motion to proceed is adopted, the resolution becomes

“the unfinished business of the Senate until disposed of,” and motions to proceed to

consider other business, or to postpone consideration of the resolution, are prohibited.8

Under these conditions other business may interrupt consideration of the disapproval

6

5 U.S.C. Section 802(d)(1).

7

“Motion to Proceed — S.J.Res. 6,” proceedings in the Senate, Congressional Record, daily

edition, Vol. 147, March 6, 2001, p. S1831.

8

5 U.S.C. Section 802(d)(2).

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resolution only if the Senate gives unanimous consent. If the Senate does turn to other

business by unanimous consent, the disapproval resolution automatically recurs as

pending after the interruption, unless the unanimous consent agreement provides that the

other business displace the disapproval resolution as the unfinished business.

Second, it is not in order in the Senate, under the act, to move to amend or recommit

the disapproval resolution. The Senate sometimes uses the motion to recommit in such

a way as to effect an amendment. These provisions therefore help to ensure that the

Senate disapproval resolution will remain identical, at least in substantive effect, to the

House joint resolution disapproving the same rule. Potentially, however, this identity

could be destroyed by House action on H.J.Res. 56, inasmuch as the act does not prohibit

amendment of a disapproval resolution during committee or floor consideration in the

House.

Third, Senate debate on a disapproval resolution is limited to 10 hours, equally

divided between supporters and opponents, so that no filibuster is possible on the

resolution itself. In addition, the act provides that a motion may be offered to limit the

time for debate further, and this motion itself is not debatable. Any appeal from a ruling

of the chair during consideration of a disapproval resolution (or motion to proceed to its

consideration) also is to be decided without debate.9

Finally, the act provides that at the conclusion of debate, the Senate automatically

proceeds to vote on the resolution. No intervening action is permitted, except that one

quorum call may take place if any Senator so requests.10 If the act did not prohibit other

intervening actions at this point, those actions might be used for dilatory purposes.

Final Congressional Action

No measure can be presented to the President for action until both houses have

agreed to it in identical form. If each house initially passes its own disapproval resolution,

even if the texts are identical, neither can yet go to the President, for neither has been

agreed to by both chambers. To prevent this situation, the Congressional Review Act

provides that when either house adopts a disapproval resolution and sends it to the other,

the receiving house must hold it at the desk, rather than refer it to committee. This action

retains the received resolution in a status in which it is available for floor action. The act

then provides that, after the receiving house later considers a disapproval resolution of its

own, it shall vote not on its own measure, but instead on the resolution already received

from the other house. In this way both houses take final action on the same measure; if

both adopt it, the requirements for presentation to the President are satisfied.11

In one respect, these proceedings reflect normal practice in both houses for carrying

out a “hookup” between corresponding House and Senate measures. Normally, each

house initially considers its own measure, but the house that acts second then takes up and

passes the corresponding measure already received from the other. If the two measures

are not identical, the house acting second normally amends the measure received from the

9

5 U.S.C. Section 802(d)(4).

10

5 U.S.C. Section 802(d)(3).

11

5 U.S.C. Section 802(f).

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other with the text of its own measure. This action enables the two houses to proceed, by

conference or otherwise, to resolve the differences between these two versions of the

same measure. The expedited procedure of the Congressional Review Act avoids this

necessity by requiring one chamber to vote directly on the measure received from the

other, without amending it.

It appears that these provisions of the act would apply even if the texts of the two

measures are not identical, as long as the chair could determine that both would

disapprove the same rule, and that they therefore corresponded to each other for purposes

of the statutory procedure. In this way, even if the two houses initially consider

disapproval resolutions with differing texts, both will ultimately vote on the same text;

namely, that approved by whichever house acted first. This mechanism helps to prevent

any delay that might arise if the House and Senate could not agree on a final text through

conference or amendments between the houses.

The automatic hookup mechanism provided for by the act presumes that each house

will initially act on its own disapproval resolution. In 2001, however, when Congress

disapproved the rule on ergonomics submitted by the Clinton administration in 2000, the

House never took up the House measure for floor consideration, but instead considered

and acted on only the companion measure already received from the Senate.12 No doubt

seems to have been raised that this form of action failed to satisfy the requirements of the

act for disapproving a rule.

The Congressional Review Act sets no deadline for final congressional action on a

disapproval resolution. Nor does it establish any expedited procedure for further

congressional action on a disapproval resolution if the President vetoes it. Congress

could, however, attempt to override a veto using its normal procedures for considering

vetoed bills.

Effect of Congressional Review on Other Avenues of Appeal

In addition to the resolutions of disapproval, opponents of the March 29 rule are

pursuing several other approaches to overturning it. The day the rule appeared in the

Federal Register, March 29, nine states filed suit to overturn it in the U.S. Court of

Appeals for the D.C. Circuit.13 On May 31, 14 states and five environmental groups

petitioned EPA to reconsider the rule and to stay its effect pending the reconsideration.

On July 8, 12 environmental groups asked the D.C. Circuit for a stay of the rule.14

In responding to these or other potential motions, the courts and EPA are prohibited

from basing their decisions on whether Congress takes action on a resolution of

disapproval. Under Section 801(g) of the Congressional Review Act, “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.”

12

“GOP Rejects Ergonomics Rules,” CQ 2001 Almanac Plus (Washington: CQ Press, 2001), p.

13-3.

13

New Jersey v. EPA, No.05-1097 (D.C. Cir.).

14

Environmental Defense v. EPA, No. 05-1159 (D.C. Cir.).

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