‘Keep It In The Ground’ Group Tries To Overturn Congressional Review Act, Despite Past Support For The Law

The Center for Biological Diversity (CBD), a national environmental activist group, has filed a federal lawsuit claiming the Congressional Review Act (CRA) is unconstitutional and should be struck down. But the group – a leading member of the “keep it in the ground” coalition – used to support the same law it’s now trying to overturn in court.

The CBD’s lawsuit, filed April 20 in Anchorage, Alaska, argues the CRA gives Congress too much authority over executive agencies, violating the U.S. Constitution’s separation of powers. “The Congressional Review Act throws the balance of power out of whack and opens the door for politicians in Congress to meddle in decisions that ought to be made by experts at federal agencies,” CBD attorney Collette Adkins said in a press release announcing the lawsuit.

The CRA has been used repeatedly by Republicans in Congress and the Trump White House to repeal regulations issued by federal agencies in the final months of the Obama administration. Under the 1996 law, lawmakers can take action against these last-minute regulations, although only for a limited time. The CRA clock, based on the number of days Congress is in session, is expected to run out the week of May 8, E&E News reported this morning.

The CBD’s lawsuit takes aim at a specific CRA disapproval motion, passed last month, which repealed new hunting restrictions imposed by the Obama administration in Alaska. But if the lawsuit succeeds in overturning the CRA itself, it could impact the repeal of other Obama administration regulations.

The CBD lawsuit, however, fails to mention an important historical detail. In early 2009, when Democratic President Barack Obama was about to take over from Republican President George W. Bush, the CBD was a vocal supporter of the CRA.

The statute provides a good option for reversing “a long list of failed Bush administration actions and policies,” CBD biodiversity director Noah Greenwald wrote in a column for The Denver Post at the time. “Under the Congressional Review Act of 1996, Congress has the option to pass a joint resolution of disapproval, stopping any new rules from going into effect,” he said. “We strongly encourage both Congress and President-Elect Obama to ensure the rules do not take effect.”

The CBD is far from alone in attacking a statute it once supported. As Western Wire has previously reported, environmental groups like Earthjustice and the Sierra Club today call the CRA “an undemocratic and rarely used backdoor tactic” and “a blunt instrument with dangerous consequences,” despite the fact that they supported the statute eight years ago.

The CRA was signed into law by President Bill Clinton (D) and one of the statute’s leading authors was former Senate Majority Leader Harry Reid (D-Nev.). During his farewell speech last year, Reid – one of the Obama administration’s closest allies in Congress – touted the CRA as one of his top legislative achievements.

“I know some of my Democratic colleagues say: Why in the hell—why did you do that?” Reid said. “The worm turns … [and] we knew that administrations would change and it would affect every president, Democrat and Republican.”

When a regulation is finalized, “Congress has a chance to look it over to see if it is too burdensome, too costly, too unfair,” he said. “That was legislation that I did, and it was great when we had Republican presidents, not so great when we had Democratic presidents,” Reid said to laughter in the Senate chamber. “But it was fair,” he said.

After the 2008 election, liberal political commentators Rachel Maddow and Keith Olbermann also praised the CRA. Maddow celebrated the fact that last-minute Bush administration regulations could “easily be reversed” and Olbermann called the CRA “blessed relief.”