Republican lawmakers introduced on January 22, 2025 a Congressional Review Act (CRA) resolution to overturn a US Environmental Protection Agency rule limiting the use of trichloroethylene (TCE) under the Toxic Substances Control Act (TSCA). CRA resolution H.J. Res. 27 aims to nullify the EPA's final rule on TCE, which the resolution describes as posing a significant threat to companies, such as a battery separator manufacturer in one of the lawmaker’s districts.
The CRA was codified as part of the 1996 Small Business Regulatory Enforcement Fairness Act. It allows the US Congress to rescind rules finalized within 60 legislative days of the end of the prior legislative session—sometimes referred to as the CRA’s “look-back” period. This feature is most relevant at the end of a presidential administration because it offers the new Congress and new president a brief window where expedited procedures are available to overturn rules issued by the outgoing administration.
EPA issued its final TCE rule on December 17, 2024, prohibiting consumer access to TCE, banning industrial and commercial use with transition periods and interim worker protections, and providing time-limited exemptions for critical uses lacking feasible alternatives, including a 15-year exemption for TCE in lead-acid battery separator manufacturing, a 10-year exemption for US Department of Defense vessel requirements, and a 50-year exemption for essential laboratory activities like environmental cleanup sample analysis. But the phase-out timeframes require the implementation of stringent worker protections through a Workplace Chemical Protection Program (WCPP), with an interim Existing Chemical Exposure Limit (ECEL) of 0.2 parts per million based on an eight-hour time-weighted average (TWA).
The EPA's authority for the TCE rule comes from TSCA section 6(a), which mandates regulations to address unreasonable risks identified in risk evaluations. EPA’s 2020 risk evaluation and 2023 revised risk determination found that TCE presents an unreasonable risk of injury to health.
The rule has faced legal challenges from various companies and groups, with the US Court of Appeals for the Third Circuit selected to hear consolidated cases. Industry representatives argue that the rule’s strict exposure limit is based on unverified studies that cannot be reproduced.
A rule nullified by a CRA joint resolution of disapproval is treated as if it never took effect. If the rule is not yet active, it will not take effect. The CRA also prevents agencies from reissuing “substantially similar” regulations to those that have been nullified. For rules promulgated under TSCA, this creates a conflict with TSCA’s mandate for the EPA to address “unreasonable risks” in chemical evaluations. If the TCE rule is disapproved, EPA would need to navigate between TSCA requirements and CRA restrictions, a situation complicated by limited legal precedents.
Historical examples show that agencies like the US Department of Labor (DOL) and the Securities and Exchange Commission (SEC) have reissued rules with significant changes to comply with CRA mandates. While the CRA includes a provision prohibiting judicial review, a number of courts have examined the scope of that provision. Most courts interpreting the provision have held they may not void rules based on an agency’s alleged noncompliance with the CRA. The minority view, adopted by a few federal trial courts, is that the provision prevents review of Congress’s determinations, findings, actions, or omissions made under the CRA—but does not preclude review of agency actions. There is particular uncertainty about whether the provision might bar a court from reviewing whether a new rule is substantially similar to a disapproved rule. The scope of the CRA’s bar on judicial review will continue to be litigated.
Before 2017, Congress used the CRA only once to repeal a final rule. During President Donald Trump’s first administration, the 115th Congress employed the CRA to overturn 16 rules issued at the end of President Barack Obama’s administration. Under President Joseph Biden, the 117th Congress overturned three rules issued at the end of the Trump-Pence administration, bringing the total number of rules repealed by the CRA to 20.
On August 21, 2024, the Congressional Research Service (CRS) indicated that Biden administration rules submitted on or after August 1, 2024 likely fall within the CRA look-back period. This excludes certain TSCA risk-management rules for chrysotile asbestos, methylene chloride, and the revised framework rule. However, new TSCA rules issued after August 21, including the new chemical review rule and its section 6(a) rules on carbon tetrachloride and perchloroethylene (PCE), may be vulnerable to CRA review and nullification.
The period of CRA review is likely to permit the introduction of disapproval resolutions aimed at such rules until late March 2025 and make the CRA “fast track” procedures available to consider such joint resolutions in the Senate until late May or early June 2025.
Meanwhile, on January 24, 2025, EPA filed a motion seeking a 60-day extension of all deadlines in the consolidated litigation in the Third Circuit. EPA said it needs “time to review and take action consistent with the Executive Order, ‘Regulatory Freeze Pending Review,’ which directs EPA to ‘consider postponing for 60 days from [January 20, 2025] the effective date for any rules,’ like the one at issue here, that ‘have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.’” Should EPA ultimately seek to withdraw and reconsider the rule (and the court grants such motion), that would present another pathway for the Trump-Vance administration to reshape this regulation.
Our team will continue to monitor these developments.
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