The Congressional Review Act (CRA) provides an expedited process by which Congress can adopt a resolution of disapproval that overturns agency rulemakings, guidance, and similar decisions. At the start of the first Trump administration, Congress used the CRA to undo 16 rulemakings from the Obama administration. In the recent elections, Republicans won the Presidency and majorities in the House and Senate. Once these new majorities take office in January 2025, they will likely invoke the CRA to overturn various decisions from the Biden administration.

Apart from whatever rules Congress addresses under the CRA, the incoming administration will conduct its own review within the Executive Branch of Biden administration rules and decisions. Past administrations have directed agencies to carry out a regulatory freeze and delay the effective dates of rules to allow time for the new administration to review regulatory decisions and decide which to revoke or revise.

This Alert summarizes the CRA process, the parallel review process that will occur in the Executive Branch, and related implications.

Key Takeaways:

• Expect the new Trump administration to engage in a broad review of Biden administration rulemaking and other agency decisions and seek to revoke or revise a significant number of those decisions.
• The CRA is one tool that Congress and the new administration can use to set aside a rule or agency decision, but is only available for rules finalized in (approximately) the last six months of the administration (sometimes called “midnight regulations”). Because of bandwidth limitations in Congress, using the CRA may not be practicable for more than a fairly modest group of agency actions.
• Past administrations have ordered a regulatory freeze immediately upon taking office, and the Trump administration is virtually certain to do the same. Past freezes have included pulling back rules pending with the Federal Register, stopping any pending rulemaking processes, extending the effective date of rules that have not yet taken effect (potentially even some with court-ordered deadlines), and postponing litigation deadlines.
• When agencies seek to extend the effective date of rules. certain states and NGO groups will view these actions as a prelude to revoking those rules, and challenge those actions in court.
• Revising or revoking a rulemaking (or other agency action) generally requires a new rulemaking process. It will be important for businesses to engage in that process to ensure that it leads to a new rule that aligns with their needs and that will be upheld in court.

1. Disapproval of Rules Through the CRA

The CRA only allows Congress a limited time period (or “lookback window”) to take action to disapprove a rule. Calculation of that time period is not straightforward, and depends on how many days the House and Senate are in session before the Congressional session ends. For 2024, the Congressional Research Service has estimated that rules adopted by the Biden Administration and submitted to Congress on or after approximately August 1, 2024, are likely to be candidates for review under the CRA by the new Congress.¹

The CRA includes provisions restricting Senate filibusters on resolutions of disapproval, which allows those resolutions to be adopted through an expedited process.² But adopting a resolution of disapproval still requires time on the legislative calendar. Because that time is scarce, especially floor time in the Senate, Congress typically can adopt only a modest number of CRA resolutions.

Both Public Citizen and George Washington University’s Regulatory Studies Center have developed lists of Biden administration rules issued since August 1 that could be subject to review under the CRA. Both lists include many rules related to environmental issues as well as many non-environmental rules. Environmental rules issued within the CRA lookback window that could be targets for CRA override include the U.S. Environmental Protection Agency’s (EPA) review of final rule reclassification of major sources as area sources under section 112 of the Clean Air Act (issued September 10, 2024); EPA’s national primary drinking water regulations for lead and copper (issued October 30, 2024); EPA’s dust-lead hazard standards and dust-lead abatement clearance levels (issued November 12, 2024); EPA’s methane emissions and waste reduction incentive program for petroleum and natural gas systems (issued November 18, 2024); and EPA’s rule regulating trichloroethylene (TCE) under TSCA (issued December 17, 2024).

There are also numerous rules still pending at the Council on Environmental Quality, the Department of Energy, EPA, the Department of the Interior, and the Department of Commerce (NOAA) that could be CRA targets if issued before the end of the Biden administration. For example, as discussed in a separate B&D news alert, the U.S. Department of Energy has numerous pending rules setting efficiency standards for a number of categories of consumer, commercial, and industrial appliances and equipment. If those rules are finalized before the end of the Biden administration, they would be candidates for CRA review.

2. Regulatory Freeze

Incoming administrations typically issue a memorandum to agencies on Inauguration Day directing them to carry out an immediate regulatory freeze. The first Trump administration issued such a freeze, as did the Biden administration, and the second Trump administration is likely to do the same. This freeze would presumably be instituted in parallel with any Congressional action under the CRA.

The freeze typically directs agencies to cease proposing or issuing rules in any manner, and to withdraw any rules pending at the Federal Register but not yet published.³ The previous Trump memorandum also directed agencies to postpone the effective date of rules already published but not yet in effect by 60 days “in order to review questions of fact, law, and policy,” and to consider proposing for notice and comment a rule to postpone the effective date beyond that 60-day period.⁴ For rules subject to such review, the memorandum directed agencies to “consider potentially proposing further notice-and-comment rulemaking.”

The regulatory freeze will likely generate litigation and disputes. Some aspects of the freeze are straightforward. For example, if a rule has been sent to the Federal Register but has not been published, the courts have found that the agency has the authority to withdraw it before publication. There is often a backlog of rules awaiting publication at the Federal Register at the time of a change of administration, so some agency actions may be withdrawn in this manner.

For rules that have already been published, however, disputes are likely. In the first Trump administration, States and NGOs litigated the implementation of the freeze and associated efforts to postpone or suspend rulemakings. An agency’s action to postpone a rule’s effective date is generally subject to the requirements of the Administrative Procedure Act (APA), and is typically subject to judicial review.⁵ Agencies may seek to invoke the APA’s “good cause” exception to allow them time to evaluate the rule and carry out notice and comment on postponing or suspending the rule’s effective date, but some courts have found that the desire to evaluate the rule in this manner does not, standing alone, suffice to establish “good cause.”⁶ Section 705 of the APA also allows an agency to postpone a rule’s effective date if the rule is pending judicial review “and an agency finds that justice so requires.” There is limited authority construing this provision, but it is likely to be invoked by agencies implementing a regulatory freeze.

Agencies will also likely seek to extend or stay existing litigation deadlines, especially those that are imminent at the time the new administration takes office. In the absence of a statutory deadline or other exigent circumstances driving a litigation deadline, courts have typically accommodated such requests. We anticipate a wave of extension requests in pending cases once the new administration takes office.

3. The Process for Revising or Revoking Agency Decisions

Following implementation of the regulatory freeze and action to postpone or suspend rules, the new administration will turn its attention to revising or revoking regulatory actions with which it disagrees. For Biden administration rules adopted through notice and comment, absent application of the CRA, the Trump administration will likely undertake the same (time-consuming) notice and comment process. For example, the Biden Administration recently granted requests by California for waivers under Title II of the Clean Air Act that would allow California to apply its standards to various categories of mobile sources; those actions could be candidates for review by the new Administration, and notice and comment may be used in that context.

Notice and Comment

Revoking or revising a rule adopted through a notice and comment process typically requires a new notice and comment proceeding. Notice and comment processes are very resource-intensive, and businesses that hope to work with the new administration on the revision or revocation of rules may wish to engage with agencies promptly to ensure that the agencies have set aside the time and resources needed to complete this process.

Businesses can also assist agencies by providing views on the most straightforward way to navigate notice and comment and supplying factual, legal, and analytical support for their preferred approach. In the first Trump administration, agencies sometimes moved too quickly in revoking rules and did not build the necessary record to ensure that their decisions would survive judicial review.

The Supreme Court’s recent Loper Bright decision could also complicate agency revisions of past rulemakings. Beveridge & Diamond has previously discussed the implications of Loper Bright for administrative, environmental, and natural resources law. For present purposes, a key point is that in Loper Bright, the Supreme Court was concerned that its previous approach of deferring to agency interpretations of statutes under the Chevron case had become “a license authorizing an agency to change positions as much as it likes,” which operated to “foster unwarranted uncertainty in the law.” Loper Bright found that restoring interpretive authority to the courts would avoid the uncertainty associated with such changes in agency interpretations of the law. When agencies revisit actions taken by the Biden administration, they may necessarily have to revise a past agency interpretation, implicating Loper Bright. Businesses endorsing position changes by the new administration must do so conscious of the new ground rules the Supreme Court has adopted to govern such decisions, which require an agency to adopt the best interpretation of the law, not just a reasonable interpretation (which had been the rule under Chevron).

Other Decisions 

It is typically much easier to reverse an agency decision that was adopted without notice and comment. Guidance documents can be revoked without any particular process, for example. Where an agency has taken a legal position in a guidance document, it is often advisable for the agency to replace that view with a new position that is supported with a well-reasoned analysis. Other agency decisions, like permitting decisions, will be subject to specialized agency processes that may be more streamlined than the full-dress notice and comment procedure.

Beveridge & Diamond has assembled a task force that is closely watching the CRA and other election-related developments across multiple environmental, energy, and natural resources subject areas. Nearly two-thirds of the firm’s lawyers have prior U.S. state or federal government experience, and members of the Task Force include several former EPA and DOJ attorneys who served under both the initial Trump and Biden administrations. Please let us know how we can assist you in planning for the impacts to come from the change in the Administration and Congress in January 2025.

¹Congressional Research Service, CRA Lookback Period Currently Estimated to Begin in August 1 Time Frame (August 21, 2024).

²The CRA has two other significant provisions. First, it prohibits judicial review of Congressional actions under the CRA. Second, it bars the executive branch from later adopting a new rule that is substantially the same as the rule that was disapproved.

³The first Trump administration freeze memorandum had an exception for “emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters,” and other freeze memoranda have included similar exceptions.

⁴Reince Preibus, Memorandum for the Heads of Executive Departments and Agencies (January 20, 2017).

⁵Some categories of agency decisions, such as rules of agency procedure and rules relating to national security or foreign affairs, are exempted from the APA’s notice and comment requirements and can be postponed, suspended or revoked without notice and comment.

⁶See 5 U.S.C. 553(b)(4)(B); see also Natural Resources Defense Council v. National Highway Safety Administration, 894 F.3d 95, 114 (2d Cir. 2018) (rejecting invocation of the “good cause” exception in this context).