Charting a “Substantially Different” Approach to Land Management Planning Following a Congressional Review Act Joint Resolution of Disapproval

Abstract

Congress enacted the Congressional Review Act (CRA) in 1996 as part of the Gingrich Revolution. The CRA creates an expedited path for Congress to repeal agency rules. It also prohibits an agency from reissuing a new rule that is “substantially the same” as a repealed rule. But the CRA fails to define “substantially the same” and does not require Congress to identify its objections to a repealed rule. The uncertainty that results has a chilling effect on federal agencies. Indeed, Congress has struck down twenty rules using the CRA, and just two of those rules have been replaced. We use the Bureau of Land Management’s Planning Rule, which was struck down in 2017 using the CRA, as an example of how an agency that is statutorily obligated to enact a broad regulatory program can proceed following a joint resolution of disapproval. We argue here for repeal of the CRA. We also argue that absent a repeal, the safest path forward involves a rule that is more protective of the environment than the rule that was repealed by Congress—far from the outcome that congressional Republicans and the Trump Administration intended when they struck down the BLM Planning Rule.