Democrats’ Methane Rule Reversal Smells a Little Trumpy


Democrats in Congress are using the Congressional Review Act to reverse a Trump-era regulation on methane leaks at the Environmental Protection Agency. Republicans previously used the unusual law to revise an Obama-era EPA regulation on methane, as well as other federal agency rules — in fact, the GOP used the law 14 times at the beginning of Trump’s term in office. This marks the first time Democrats have followed suit.

Tighter methane rules are sensible. But the CRA is a terrible law.

Typically, legal requirements make it hard to reverse agency regulations without a clear analysis and explanation because it’s understood that the rules are based on expertise and detailed cost-benefit analyses. The CRA invites politicians to sideline agencies’ research and reasons and make snap political decisions by a bare majority in Congress. It encourages a seesawing of regulatory policy — which is not a helpful to anyone. The Republican use of the CRA in Trump’s presidency was an outrage. Democrats should not get into the same habit.

To see what’s wrong with the CRA, start with why we bother to have agency regulation at all, instead of leaving it to Congress to make all our regulations the way it makes laws. Modern regulation exists because we’ve come to accept that we live in a complicated world, and believe that good policymaking requires expert research and judgment to get the most effective and appropriate policies to ensure the safety of the air we breathe, the food we eat and the places we work.

That’s why administrative law requires agencies to explain their reasoning in detail and to respond to public input when they make new rules or change existing ones. The courts get into the act by policing agency action to make sure the reasons given are genuine, well-stated and logical. To be sure, we all understand that agency policy judgments are partly political. Agency heads and senior staff are often political appointees. But that fact doesn’t exempt the agencies from the basic requirement of giving good reasons for their rules.

In contrast, laws passed by Congress don’t have to come with high-quality research or clearly expressed reasons. Congress is made of politicians, and so Congress can mostly make law for (almost) whatever reasons it wants.

The CRA, which became law at the time of Newt Gingrich’s Contract with America, fast-tracks Congressional reversal of new-ish regulation, and exempts the reversal from the filibuster. Essentially, it functions as an invitation to a party that has taken over the presidency and Congress to reverse the prior administration’s regulations without having to justify the reversal.

When Congress gives in to that temptation, it undermines policy continuity — and undermines the very idea that regulations, unlike laws passed by Congress, are based on research and reason. That’s why the law was only used successfully once before the Trump years, in a relatively minor George W. Bush reversal of a Clinton-era Department of Labor ergonomics rule.

The Trump years were different, of course. The rampant Republican use of the CRA was part of the Trump administration’s attacks on rational government and on the stability of the rule of law. It was, in short, bad — not merely because of the specific regulations reversed, but because of the threat to logical, predictable government policy.

It’s totally understandable that Democrats would want to use the CRA to flip Trump regulations that, like the methane rule, were themselves reversals of Obama-era rules. And an occasional use of the CRA isn’t the end of the world.

Nevertheless, caution is warranted. Democrats need to avoid normalizing Trump-era tactics that were designed to de-legitimize government itself. The CRA counts. Its use, even rarely, sends the message that regulations are merely political, not rational.

Yes, it would take time and effort for the EPA to reverse the Trump rule by the usual means. But that time and effort would be well spent — because the process would emphasize how regulatory policy is supposed to be done. Shortcuts are appealing. Yet in the long run, shortcuts like the CRA need to be treated as inappropriate except in emergencies.

Democrats need to avoid normalizing Trump’s conduct. They should double down on logic, research and reason.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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