The Congressional Review Act: A Radical Threat To Science

December 21, 2016 | 11:54 am
US Gov.
Yogin Kothari
Former Contributor

Thanks to your support, UCS has had a lot of crucial victories to improve public health and protect the environment over the last few months. But because of an obscure, radical, and rarely used congressional trick called the Congressional Review Act (CRA), all of this is at risk.

Together, we worked with the Obama administration to require companies to tell consumers how much sugar they add to foods. Together, we pushed the Environmental Protection Agency (EPA) to use science to improve the fuel efficiency of heavy duty trucks, simultaneously saving truck owners money and reducing carbon pollution.

The CRA could be used to undo important public health protections that are vital to protecting the most vulnerable populations.

The CRA could be used to undo important public health protections that are vital to protecting the most vulnerable populations.

These rules, and the many other science-based protections finalized in 2016, are vital to all of us—but especially to communities that are already facing inequitable burdens of poor air quality, unsafe drinking water, and other environmental hazards. They took years to develop, and relied on the work of thousands of scientists.

Now, these critical victories are now in danger of being rolled back. President-elect Trump, who has vowed to undo all of the sensible safeguards finalized by the Obama administration, and key members of Congress, are plotting to reverse these public health victories by utilizing the CRA.

What is the CRA?

The CRA is a rarely used, radical legislative tool that can allow Congress to review any final regulation from an agency and block its implementation. Even if the final regulation is based on science and critical to public health and safety, or protecting the environment, Congress can block it.

Congress has been successful in using the CRA only once in the past 20 years. Now they want to use it to dismantle hundreds of science-based public health and safety protections. Basically, Congress wants to substitute political judgment for scientific judgment.

For the nitty gritty detail of how the CRA works and why it’s a radical tool that doesn’t serve the public interest, click here.

How the CRA could impact you

If Congress successfully uses the CRA to void these actions, the progress we’ve made in protecting public health and the environment over the past year will be thrown out the window.

The CRA could be used to dismantle transparency requirements for companies to tell consumers how much added sugar is in their food

The CRA could be used to dismantle transparency requirements for companies to tell consumers how much added sugar is in their food

Adding insult to injury, agencies are prevented from doing any kind of similar work unless Congress gives them permission to do so in the future. In other words, if Congress uses the CRA to eviscerate fuel efficiency rules for trucks, the EPA likely can’t revisit the topic indefinitely.

But the long-term consequences are even worse. Because the CRA allows politics to trump science, we cannot afford for the use of this radical tool to become routine. In the face of continual CRA threats, the Food and Drug Administration will be less likely to even try to protect the public from tainted food. The EPA will think twice about new rules to protect drinking water. The ability of agencies to follow the science and the law is compromised when Congress can just strike down anything on a whim.

Rigging the system in favor of industry

Industry has plenty of options to weigh in while public protections are being developed. The CRA makes it easier for them to prevent these protections from being implemented. Despite all the thoughtful policymaking that went into passing legislation directing agencies to develop public health, safety, and environmental protections, the CRA makes it a whole lot easier to completely handcuff the government’s ability to fulfill those responsibilities described in their missions to protect us. Public protections that took years, or decades, to develop, could simply be undone in days.

History tells us what happens when this radical maneuver is used. Since 1996, the CRA has been successfully used once. In 2001, Congress blocked the Occupational Safety and Health Administration’s (OSHA) rule that would have required employers to help prevent ergonomic injuries in the workplace. Fifteen years later, OSHA has not touched ergonomics, and workplace injuries related to ergonomics continue to be unregulated.

Implementing the law

Let’s not forget that the work of federal agencies is in response to laws passed by Congress. Executive branch agencies have the responsibility and expertise to carry out these laws that Congress cannot possess. Agencies use the best available science, with input from all stakeholders, to develop rules based on laws such as the Nutrition Labeling and Education Act or the Clean Air Act.

Congress, of course, can always rewrite public health and environmental laws if they want to. But it’s politically unpopular to directly attack the Clean Air Act. So they’d rather use tricks like the CRA to undermine the laws without attacking them directly. Why stop at trucks and sugar? All future safeguards could be at risk.

As the next Congress gavels into session, we need to remain vigilant and tell our elected officials that they shouldn’t undermine science and use the CRA to block critical public health, safety, and environmental protections that we’ve worked so hard to achieve.