Preparing for a Regulatory Reset: How Republicans Could Leverage the Congressional Review Act in 2025

With Republicans poised to control the House, Senate, and White House in 2025 for the first time since 2018, President-elect Donald Trump will have a powerful tool at his disposal: the Congressional Review Act (CRA).¹ In relevant part, the CRA allows Congress and the president to overturn regulations finalized in the last months of the previous administration, provided they fall within a designated “lookback” window. This Advisory outlines how the CRA works, the history of its use, and the key Biden-era regulations that were finalized during the “lookback” window that may be overturned in the next Congress.

The CRA: A Powerful Tool for Regulatory Rollback

Enacted in 1996 as part of the Small Business Regulatory Enforcement Fairness Act,² the CRA empowers Congress to swiftly overturn recently issued agency regulations through expedited procedures. While federal agencies play a critical role in shaping policy by issuing rules to implement laws passed by Congress, the CRA serves as a vital oversight mechanism that enables Congress to hold agencies accountable and to ensure that their actions align with legislative intent. The CRA becomes a particularly powerful tool when control of Congress and the presidency change, as it will in January.

Under the CRA, agencies are required to submit their rules to both Congress and the U.S. Government Accountability Office (GAO) before those rules can take effect.³ Although the CRA does not outline a specific timeframe when an agency must submit a rule to Congress and the GAO, agencies submit rules generally around the time of publication. Once a rule is submitted, Congress has a limited window to introduce and act on a joint resolution of disapproval to overturn the rule. If both the House and Senate pass the resolution and the president signs it into law, the rule is immediately nullified and rules that have not taken effect yet will be halted. Significantly, if a rule is overturned through the CRA, the issuing agency is prohibited from reissuing a rule that is “substantially the same” without explicit authorization from Congress.⁴ However, the CRA does not define what constitutes a “substantially similar” rule, leaving room for interpretation. Since the creation of the CRA, only two rules have been reissued after disapproval under the CRA.

The CRA “Lookback” Window

The CRA can be utilized at any time, but it is particularly effective during the “lookback” window in presidential election years when one party gains control of both the presidency and Congress. This mechanism allows Congress to revisit and potentially overturn regulations issued late in the previous administration. If a rule is submitted to Congress within the last 60 session days in the Senate or the last 60 legislative days in the House, the CRA’s review period resets in the following session of Congress.⁵

In the new session, the window for Congressional action begins on the fifteenth session day in the Senate (currently projected as January 23, 2025) and the fifteenth legislative day in the House (currently projected as February 5, 2025). While this “lookback” period will be determined by the House and Senate parliamentarians after the current session ends, current estimates suggest that rules issued after August 9, 2024 will likely fall within its scope.

Rules Covered

The CRA operates on a broad definition of a “rule,” encompassing a wide range of actions, with only three specific exceptions. Under the CRA, a rule is defined as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.”⁶

This expansive scope ensures that most regulatory actions fall within the CRA’s purview. However, the law excludes the following:

1. Rules of particular applicability (e.g., actions targeting specific individuals or entities)

2. Rules relating to agency management or personnel

3. Rules of agency organization, procedure, or practice that do not substantially affect the rights and obligations of parties outside the agency⁷

This means the CRA applies not only to major and non-major final rules, but also to interim final rules. The CRA may also extend to agency actions like guidance documents and policy memoranda that bypass traditional notice-and-comment rulemaking. Importantly, the CRA does not apply to presidential actions or non-rule agency actions like orders.

CRA Uses

Since its creation, the CRA has been used to overturn a total of 20 rules or regulations: one in the 107th Congress (2001-2002) under President George W. Bush, 16 in the 115th Congress (2017-2018) under President Donald Trump, and three in the 117th Congress under President Joe Biden (2021-2022). On the campaign trail in 2024, Donald Trump frequently called for the revocation of various Biden-administration rules, which increases pressure on the new Republican Congress to take such actions in 2025. In anticipation of the potential use of the CRA, the Biden administration issued many of its regulatory priorities prior to the lookback window, shielding them from being subject to the CRA.

In November, President-elect Trump created an informal working group called the Department of Government Efficiency (DOGE) and announced billionaire Elon Musk and 2024 presidential candidate Vivek Ramaswamy would lead the effort to cut government spending and change its operations. Both chambers of Congress have since created DOGE caucuses and held meetings with Musk and Ramaswamy during the week of December 2, 2024. Additionally, the House Oversight and Accountability Committee recently announced the creation of a new “DOGE” subcommittee, to be chaired by Rep. Marjorie Taylor Greene (R-GA), which will work with DOGE to examine reducing regulations and scaling back government bureaucracy and spending. Among other things, DOGE is likely to be an engine for outside political pressure on Congress to use the CRA to repeal recent Biden-administration rules.

Below, we identify some 2024 rulemakings we believe are vulnerable to congressional CRA actions in 2025, but this is just a small sample of rules enacted in the last few months.

Health Care

• Mental Health Parity. On September 23, 2024, the U.S. Department of Health and Human Services (HHS), U.S. Department of Labor (DOL), and U.S. Department of the Treasury (Treasury, and collectively, the Departments), published a proposed rule to ensure health insurers cover mental health services on the same terms as other types of physical medical care, as required by the Mental Health Parity and Addiction Equity Act which became law in 2008. The proposed rule prohibits certain restrictive requirements sometimes imposed by insurers, including forcing physicians to more often seek prior approval before covering mental health care services or maintaining limited numbers of in-network mental health providers. Some Congressional Republicans, including House Education and Workforce Chair Virginia Foxx (R-NC), have publicly advocated against the proposed rule.
• Medicaid Drug Rebate Program. On September 26, 2024, the Centers for Medicare & Medicaid Services (CMS) published a final rule to implement provisions of the Medicaid Services Investment and Accountability Act of 2019 relating to drug misclassifications under the Medicaid drug rebate program. The rule also finalized other Medicaid rebate program policies, including an amended regulatory definition of a “covered outpatient drug” and a 12-quarter time limit for manufacturers to initiate disputes, hearing requests, and audits regarding questioned utilization included on state rebate invoices to manufacturers. Also, the rule finalized a proposal designed to help in the prevention of illegal Medicaid/340B duplicate discounts, which requires that Medicaid managed care plans use BIN/PCN combinations unique to their Medicaid business for Medicaid enrollees. CMS declined to finalize several of its proposals, including a requirement to “stack” certain price concessions when calculating Best Price, definitions of “manufacturer” and “vaccine,” and a “price verification survey” for certain covered outpatient drugs.
• Medicare Drug Price Negotiation Program (MDPNP). On October 2, 2024, CMS issued final guidance implementing the MDPNP for initial price applicability year 2027, and maximum fair price effectuation for initial price applicability years 2026 and 2027.
• Coverage of OTC Birth Control Without Cost Sharing. On October 28, 2024, the Departments released proposed rules related to expanding the Affordable Care Act to require coverage of preventive over-the-counter (OTC) contraceptive items without cost sharing and without requiring a prescription from a physician.

Inflation Reduction Act (IRA) Rules

Among its many provisions, the IRA included a substantial array of tax measures to shift energy consumption toward renewable sources. Following enactment, Treasury embarked on an ambitious effort to finalize regulations in what they described as a “phased” process.

• IRA’s Clean Energy Credits. During 2023, under “phase one” of their efforts, Treasury finalized guidance on the clean vehicle credit, the energy communities bonus, the domestic content bonus, direct pay and transferability, and the prevailing wage and apprenticeship standards required to receive full credits. Treasury next turned to “phase two,” which included guidance that facilitates investment in the U.S. manufacturing base, such as Sections 45X and 48C, as well as strengthening domestic energy security, particularly with respect to critical minerals and battery components. Some elements of “phase two,” but not all, have been finalized. For instance, final guidance with respect to the production of clean hydrogen has not yet been released. Implementation of the clean hydrogen credit has deeply divided the energy community, leaving Treasury with difficult regulatory decisions to complete. Final publication of the rules governing the clean hydrogen credit could occur during the CRA’s “lookback” date.
• IRA’s Tech-Neutral Tax Credits. Among the guidance efforts under “phase three,” Treasury also seeks to finalize rules relating to the “tech-neutral” tax credits. These credits, the Clean Electricity Production and Investment credits and the Clean Fuel Production credit, are designed to replace the production and investment tax credits that have been the key incentives underpinning clean energy development for decades. Treasury describes the guidance process for these credits as “one of the most consequential pillars” in the law’s implementation. Proposed rules, however, have not been released. Allowing for notice and comment, it is highly likely that these rules will fall within the CRA’s “lookback” date and are thus at risk of a CRA resolution.

Environmental

As the conclusion of the Biden-Harris administration draws near, federal agencies have been working diligently to finalize ambitious environmental goals before the CRA “lookback” window. Since August 9, 2024, notable regulations published in the Federal Register include:

• Waste Emissions Charge for Petroleum and Natural Gas Systems: Procedures for Facilitating Compliance, Including Netting Exemptions. On November 18, 2024, EPA finalized a rule to implement a Waste Emissions Charge on methane emissions from facilities that emit in excess of the waste thresholds set by Congress. This rule facilitates Clean Air Act’s Methane Emissions Reduction Program, enacted as part of the IRA in 2022.
• Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy Coal Combustion Residuals (CCR) Surface Impoundments; Correction. EPA addressed errors in the Legacy Final Rule, previously published on May 8, 2024, by clarifying that the rule’s effective date is November 8, 2024 and correcting unintentional deletions in the existing 2015 regulation.
• National Primary Drinking Water Regulations for Lead and Copper: Improvements. On October 30, 2024, EPA finalized requirements for drinking water systems to replace lead and certain galvanized pipes within 10 years. The rule strengthens testing requirements for drinking water and improves communication with communities regarding the risks of exposure to toxic lead.
• Applications for Permits to Site Interstate Electric Transmission Facilities. Released on October 23, 2024, this final order addressed arguments raised on rehearing of the Federal Energy Regulatory Commission’s May 13, 2024 order amending its regulations governing applications to site electric transmission facilities under the Federal Power Act. Where a project requires a right-of-way on Tribal land, applicants now must include a strategy for how to work with Tribal landowners in its Tribal engagement plan.

There are also notable proposed rules and guidance that agencies will seek to finalize in the final weeks of the Biden-Harris administration. All of the following rules, if finalized before the change in administration, will fall within the CRA “lookback” window:

• Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Federal CCR Permit Program. On February 20, 2020, EPA proposed a set of planned actions implementing a CCR permit program under the Water Infrastructure Improvements for the Nation Act (P.L. 114-322) in states that do not already have approved CCR programs. EPA has not issued a final rule despite indicating an October 2024 publication date in the agency’s Unified Agenda.
• National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change. On January 9, 2023, the Council on Environmental Quality (CEQ) issued interim guidance providing agencies direction in assessing greenhouse gas (GHG) and climate change effects when analyzing proposed actions under the National Environmental Policy Act. Among other recommendations, the interim guidance states that agencies should quantify the proposed action’s GHG emissions over the lifetime of the action and monetize the social costs of those emissions. According to its Unified Agenda, CEQ plans to issue a final rule in December 2024.
• Fuels Regulatory Streamlining Amendments. On August 28, 2024, EPA proposed a rule to provide clarity to regulations governing the sampling and testing of fuel, fuel additives, and certain blend stocks. The proposed rule did not change the stringency of existing fuel quality standards. According to EPA’s Unified Agenda, the agency plans to issue a final rule in December 2024.

Conclusion

With Republicans poised to take control of Congress and the presidency in January, we anticipate Congress may choose to review many rules issued during the CRA lookback window. Stakeholders should take note and prepare for a busy 2025.

For more information on this topic, please contact any of the authors of this Advisory or your usual Arnold & Porter contact. 

*Katrina Umstead contributed to this Advisory. Ms. Umstead is a graduate of William & Mary Law School and is employed at Arnold & Porter’s Washington, D.C. office. She is not admitted to the practice of law.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.