Joe Pizarchik spent more than seven years working on a regulation to protect streams from mountaintop removal coal mining.

It took Congress 25 hours to kill it.


The rule is just one of dozens enacted in the final months of the Obama administration that congressional Republicans have begun erasing under a once-obscure law — much to the dismay of agency staffers who hauled those regulations through the long process to implementation.

“My biggest disappointment is a majority in Congress ignored the will of the people,” said Pizarchik, who directed the Interior Department’s Office of Surface Mining Reclamation and Enforcement from 2009 through January. “They ignored the interests of the people in coal country, they ignored the law and they put corporate money ahead of all that.”

The arrival of a Republican president opened the door for GOP lawmakers to employ a rarely used legislative tool, the Congressional Review Act of 1996, to nullify executive branch regulations issued since mid-June. The act allows lawmakers to sandblast recently enacted rules with a simple majority vote — as they did last week to the stream regulation, which the Interior Department had completed in December.

President Donald Trump is expected to sign off on that repeal, along with others moving through the Capitol.

Congress has successfully used the 1996 law only once before, but Republicans are wielding it now to slash away potentially dozens of late-term Obama rules. That has left officials who spent years working on those rules feeling rubbed raw.

“It’s devastating, of course,” said Alexandra Teitz, a longtime Democratic Hill aide who joined Interior’s Bureau of Land Management in 2014 as a counselor to the agency’s director and worked on a rule to curb methane waste from oil and gas production. A House-passed Congressional Review Act resolution targeting that rule awaits action in the Senate.

Pizarchik and other former Obama administration officials called the rapid repeal process intensely unfair. The 1996 law says any repeal must come within 60 legislative days after a rule becomes final.

“If there had been more time and Congress had not rushed this through but had actually deliberated on what was in the rule, [then] the results would have been different,” Pizarchik said.

But proponents of the repeal process maintain that it is a blunt but necessary tool.

“It’s important that Congress have a say in the rules that are applied in this country,” said James Gattuso of the Heritage Foundation. “The CRA just makes it easier for Congress and the president to make sure the rules and actions of the agencies reflect their priority.”

The House took up a repeal resolution for Pizarchik’s stream rule shortly before 2 p.m. Feb. 1. The Senate wrapped up its vote — all Republicans but one were joined by four Democrats — shortly after 3 p.m. Feb. 2.

That’s about as fast as a measure can clear Congress, and the swiftness has former Obama officials wondering whether lawmakers even understood the regulations they voted to kill.

“I can’t venture to say that that many people, when they’re being honest, have actually read the rule,” said Brandi Colander, who was Interior's deputy assistant secretary for land and minerals management before leaving in September for the National Wildlife Federation.

“I think that when cooler heads really can prevail and you push the politics to the side, we should really be asking ourselves, should we be able, with the stroke of a pen, without requiring people to read it and not even giving these rules a chance to see the light of day — is that actually good governance?” she added.

Congressional Republicans have been railing against the stream rule since 2011, when a leaked Interior Department document estimated it could kill 7,000 jobs in the ailing coal industry. Interior called that only a preliminary estimate, and it said in December that the rule’s toughened cleanup requirements could even bring a small net increase in jobs.

Teitz similarly argued that the Bureau of Land Management’s methane waste rule would have generated revenue for the energy industry, which could have sold the gas that the regulation would make it capture. But Republicans — backed by oil and gas companies — still made it a top target.

“People are looking for scalps,” she said. “‘It’s an Obama rule so let’s drag it down whether or not it’s actually costly to industry.’”

Before this year, the only time Congress successfully used the review act to repeal a regulation was in 2001, when it blocked the Labor Department’s Occupational Safety and Health Administration from enforcing an ergo nomics rule intended to reduce the risk of musculoskeletal disorders in the workplace.

Sixteen years later, wounds are still open among some officials who helped write that rule, though they say they have become more adept at fighting back.

Charles Jeffress, who was head of OSHA for most of former President Bill Clinton's second term, said the Labor Department knew the rule was vulnerable to a review-act repeal but was eager to finish the regulation, so it “was not a big part of the consideration and planning.”

Ross Eisenbrey, OSHA’s policy director from 1999 to 2001, echoed Jeffress.

The Congressional Review Act "had never been used,” he said. “I don’t think it had been high on people’s minds. It was out of our control anyway because [the final rule] took so long.”

Jordan Barab, who had worked on the ergonomics rule, fought to save it when he moved to the AFL-CIO after the 2000 election. There was an “incredible amount of misinformation about the rule,” he said, and its supporters “didn’t really have a chance to organize effectively to oppose the CRA resolution.”

“To go through all that work . .. and to have Congress overturn it is a travesty,” Barab said.

Opponents of the Congressional Review Act also object to one of its lesser-known provisions: Once Congress blocks a rule, the agency cannot ever issue a new one that is substantially the same. Although that provision has never been tested in court, Eisenbrey said it has a chilling effect, and he noted that the Obama administration never revisited the ergonomics issue.

“Why would an administration risk putting all the years of effort into a rulemaking, all the political capital to do it, knowing somebody could take the rule to district court and have it blocked in an instant because the judge says it’s similar enough?” he said.

Disagreements over the review act have been largely academic since 2001, particularly after Democrats opted not to use it on any George W. Bush-era rules. But now, supporters of the targeted rules are preparing to fight back.

Pizarchik is already working on ideas to write a new version of the stream rule under a future president, though he declined to share any details. He also hinted someone could mount a constitutional challenge to the review act itself, which critics have long argued tramples on the separation of powers.

“I believe there’s a good chance that, in a legal challenge, that a court will overturn Congress’ actions here as an unconstitutional usurpation of the executive branch’s powers,” he said.