House clears “midnight rules” bill; would allow wholesale rejection of all regs issued in last year of presidency

The Republican-controlled U.S. House of Representatives has passed a bill that would allow Congress to reject all federal regulations finalized since January in one fell swoop.

Labeled the Midnight Rules Relief Act of 2016, H.R. 5982 would allow the 115th Congress to sidestep the current requirement that each regulation that is the subject of an override attempt be the subject of a separate resolution.

So-called “midnight rules” are regulations that an administration completes during the time between a presidential election in November and the inauguration of a new President on the following January 20.

Sometimes these late regulations are used by an outgoing administration to assure that its policy initiatives can endure for a time. The Administrative Procedure Act requires that agencies develop a new factual record before they may repeal or significantly modify existing rules.

Most midnight rules are not controversial, though. A 2012 study by the Administrative Conference of the United States concluded that are “relatively routine matters not implicating new policy initiatives by incumbent administrations” and that the “majority of the rules appear to be the result of finishing tasks that were initiated before the Presidential transition period or the result of deadlines outside the agency’s control (such as year-end statutory or court-ordered deadlines).”

The Congressional Review Act, enacted into law in 1996, permits Congress to reject regulations in a process that bypasses the usual risks of legislative gamesmanship in the U.S. Senate.

Under the CRA, amendments to a resolution that rejects a “major” federal regulation are not permitted. No holds by individual senators, and no filibusters by opponents of a resolution that would eliminate a federal regulation, are allowed.

Congress has 60 days following the date on which both chambers of Congress have received a notice that a regulation has been issued in which to pass a CRA resolution that disapproves it. The 60 day-long clock resets at the beginning of a new Congress if the regulation was issued during the final 60 “session” days, in the case of the Senate, or the final 60 “legislative” days in the case of the House of Representatives, of the preceding Congress.

Although opponents of various regulations have introduced dozens of CRA resolutions in the 20 years since enactment of that statute, it has been invoked only one time. An Occupational Health & Safety Administration rule that addressed ergonomics, which the Clinton administration had finalized in November 2000, was turned away in 2001.

H.R. 5982 would need to pass the Senate and be signed by the President to become law. The Senate has not yet taken up the measure. Moreover, President Barack Obama has threatened to veto H.R. 5982, which cleared the House Nov. 17 by a 240-179 vote.

“[P]roviding for an arbitrary packaging of rules for an up-or-down vote, as this bill does, is unnecessary,” a statement issued by the Executive Office of the President on Nov. 12 said.

Three House Democrats voted with the majority GOP to pass the bill.

House to vote on Senate-passed KXL bill next week

The U.S. House of Representatives will vote next week on whether to adopt the KXL pipeline bill approved by the Senate.

The chamber’s majority leader, Rep. Kevin McCarthy, R-Calif., announced Tuesday his intention to move the controversial proposal to President Barack Obama’s desk.

“Next week we will take up the Keystone pipeline as passed by the Senate and send it to the President’s desk,” McCarthy said during a press conference.

If the House, as expected, passes S.1 without changes, then Obama will soon be in a position to impose a promised veto of the legislation.

Senate votes approval of KXL pipeline bill

The U.S. Senate approved Thursday the contentious bill to cut the President out of the process of deciding whether to authorize the KXL oil pipeline.

The vote followed two more days dedicated, in part, to debate on a series of amendments to the bill.

Nearly all of those amendments failed to reach the 60-vote threshold for adoption.

Senators voted on about a dozen amendments this week, following a successful filibuster of S.1 by minority Democrats late last week, and several of them implicated the nation’s environmental policy:

  • proposal by Sen. Benjamin Cardin, D-Md., to assure that communities along the pipeline route are notified of the risks of leaks or ruptures was defeated, 37 ayes to 67 nos.
  • Sen. Gary Peters, D-Mich., sought to require a certification by federal pipeline regulators that they have adequate resources to assure safety; it was beaten back by Republicans, 40-58.
  • An amendment by Sen. Bernie Sanders, I-Vt., to provide tax rebates for solar energy systems failed on a 40-58 vote.
  • An attempt by Sen. Jerry Moran, R-Kan., to force the removal of the lesser prairie chicken from the federal list of endangered and threatened species was voted down, 54-44.
  • Montana GOP Sen. Steve Daines offered an amendment that would have forced presidents to obtain the approval of state governors and legislatures before designating national monuments; it failed, 50-47.
  • An amendment by Sen. Chris Coons, D-Del., that would have put the Senate on record as recognizing the impacts of climate change on the nation’s infrastructure was voted down, 47-51.
  • Alaska’s senior senator, Republican Lisa Murkowski, proposed to end wilderness study area status for all areas not designated by Congress as wilderness within one year of being considered; that amendment was rejected on a 50-48 vote.
  • Sen. Richard Burr, R-N.C., offered an amendment that would have permanently re-authorized appropriations into the Land and Water Conservation Fund; that amendment lost by one vote, 59-39.
  • An effort by Sen. Tom Udall, D-N.M., to include in the bill a federal renewable energy standard was defeated, 45-53.

After debate and votes on all amendments, Democrats again sought to delay a vote on the merits. This time they were unsuccessful, as the Senate shut off debate with a 62-35 vote for cloture.

Democrats Michael Bennet of Colorado, Thomas Carper of Delaware, Robert Casey of Pennsylvania, Joseph Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, Claire McCaskill of Missouri, Jon Tester of Montana, and Mark Warner of Virginia voted with all of the chamber’s Republicans to move to a final vote on the bill.

The final vote mirrored that margin, with the same Democratic senators voting with the majority GOP.

S.1 now moves back to the House of Representatives, where Republican Speaker John Boehner of Ohio will have to decide whether to ask that chamber to vote to approve the amendments approved by the Senate or, instead, send the different House and Senate versions to a conference committee.

Josh Earnest, a White House spokesperson, reiterated Thursday that President Obama will veto any bill that attempts to deprive him of authority to decide whether to grant the permit necessary for a Canadian corporation to build the KXL pipeline across the U.S.-Canada border.

“[O]ur position on the Keystone legislation is well known,” Earnest said. “And if, in fact, the legislation that passed the House also passes the Senate, then the President won’t sign it.”

Senate Democrats block Keystone XL bill

The legislation that aims to bypass President Barack Obama’s role in deciding whether to allow construction of the controversial Keystone XL oil pipeline has hit a roadblock in the U.S. Senate.

That chamber’s minority Democrats filibustered the bill Monday, preventing majority leader Mitch McConnell, R-Ky., from moving to a vote on its merits.

Two votes were held in an attempt by McConnell and the Senate’s GOP caucus to obtain cloture, or an end to debate, on S.1. Both failed, with only 53 senators voting to end debate.

Sixty affirmative votes are needed to obtain cloture.

Among those who voted to move immediately to a vote on the merits of the legislation were four Democrats: Michael F. Bennet of Colorado, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia. Every Republican senator who was present in the chamber for the cloture votes cast their ballot in favor of ending the filibuster.

The Republican-dominated U.S. House of Representatives approved a KXL pipeline bill shortly after the commencement of the 114th Congress earlier this month.

President Barack Obama has promised to veto any legislation that interferes with his discretion to grant or withhold the permit needed for the pipeline developer to construct the project across the U.S.-Canada border.

Senate kills two more proposals to acknowledge anthropogenic climate change

The U.S. Senate again refused on Thursday to acknowledge the human role in climate change, voting down two proposals that would have forced members to go on record as recognizing scientific reality.

Senators first rejected an amendment to the underlying bill authorizing the KXL oil pipeline that specified that climate change is “real” and “caused by human activities” and “has already caused devastating problems in the United States and around the world.” The proposal, offered by Sen. Joe Manchin, D-W.Va., also included language that encouraged research into “clean fossil fuel technology.”

The Senate tabled the amendment, 53-46, with only one Republican – Mark Kirk of Illinois – voting with Democrats to allow floor debate on its merits.

Later, an amendment introduced by Sen. Bernie Sanders, I-Vt., that also acknowledged human impacts on the atmosphere and oceans and that emphasized the importance of developing non-fossil fuel energy sources was also tabled.

The chamber, with every one of 54 majority Republicans opposed to it, voted 56-42 to table it. Democratic senators Heidi Heitkamp of oil-producing state North Dakota and Claire McCaskill of Missouri also voted to deny consideration of its merits.

Majority leader Mitch McConnell, R-Ky., announced late Thursday night that the Senate would not consider additional amendments to S.1. A vote on whether to cut off floor debate on the bill itself is expected early next week.

President Barack Obama has threatened to veto any bill that interferes with his authority to decide whether or not to grant the permit required to construct the KXL pipeline across the U.S.-Canada border.

House of Representatives clears KXL bill on same day Nebraska court rejects challenge to route

The Republican-dominated U.S. House of Representatives passed on Friday a bill that would strip President Barack Obama of the authority to decide whether to authorize the controversial Keystone XL oil pipeline to cross the U.S.-Canada border.

The action came hours after the Nebraska Supreme Court removed one of the causes of delay in the administration’s review of the project. That court reversed a state trial court ruling that the statute under which former GOP Gov. Dave Heineman approved the pipeline route violated the Nebraska constitution.

The White House said again Thursday that President Obama would not decide whether or not to grant a permit allowing the pipeline to proceed until the litigation in Nebraska was resolved.

A committee of the U.S. Senate acted Thursday to approve a bill to expedite the pipeline. That chamber’s Energy & Natural Resources Committee, where Republicans have a 12-10 advantage, gave S.1 a green light with the help of one Democrat – West Virginia’s Joe Manchin.

The vote on the House bill, the proposed Keystone XL Pipeline Act, was 266-153. Every Republican except Justin Amash of Michigan voted “aye.” They were joined by 28 Democrats. Amash voted “present.”

Despite the lopsided sentiment in the chamber in favor of sidelining President Obama and forcing approval of the pipeline, the number of “aye” votes is not enough to override an expected veto of H.R. 3.

Over in the Senate, backers of similar legislation – S.1 – appear to have the 60 votes needed to cut off any attempt to filibuster the bill and approve it. It is not likely that 67 senators would vote to override a veto.

According to a report in The Hill newspaper, Senate majority leader Mitch McConnell, R-Ky., has scheduled a cloture vote on the Senate bill for Monday, Jan. 12.

The House and Senate bills have identical text, which means that the proposed legislation would proceed immediately to President Obama’s desk if the Senate rejects a filibuster of S.1 and then approves it.

The Nebraska Supreme Court ruling did not involve any of the seven justices finding that the law allowing approval of the pipeline route through the state was constitutional. Four justices said the statute violated the state constitution and three opined that the plaintiffs in the case lacked standing to bring the lawsuit. Under Nebraska law five justices must agree that a state law violates the state constitution in order to hold the statute invalid.

New Congress opens with GOP effort to push through KXL pipeline

The 114th Congress, with Republicans in charge of both chambers, opened Jan. 6 with the new majority showing a determination to move quickly on an attempt force approval of the KXL pipeline.

Sen. Mitch McConnell, R-Ky., the new majority leader, said on Dec. 16 that he would bring a bill that strips President Barack Obama of the authority to reject the KXL pipeline to the floor as the first act of the new GOP majority in the chamber.

The Senate Energy and Natural Resources Committee planned to conduct on Wednesday a hearing on S1, the KXL pipeline bill, but it was postponed after an objection by Sen. Dick Durbin, D-Ill., on behalf of the Democratic caucus.

Whether the delay will affect a mark-up of the bill that is scheduled for Thursday is not yet clear.

A Jan. 6 report in The Hill online newspaper said that there are 63 votes in the Senate to support the planned GOP legislation, including Democrats Michael Bennet of Colorado, Tom Carper of Delaware, Robert Casey of Pennsylvania, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, Claire McCaskill of Missouri, Jon Tester of Montana, and Mark Warner of Virginia.

All of the chamber’s 54 Republicans are co-sponsors of the bill.

The House of Representatives, under GOP control since Jan. 2011, repeatedly passed bills to approve the pipeline during the 112th and 113th Congresses and is expected to again pass such legislation within the week.

The White House press secretary, Josh Earnest, said Tuesday that President Barack Obama would veto any bill that seeks to eliminate the president’s authority to decide whether to grant permission for the pipeline to cross the international border separating the United States from Canada.

“I mean, the fact is this piece of legislation is not altogether different than legislation that was introduced in the last Congress, and you’ll recall that we put out a statement of administration position indicating that the President would have vetoed had that bill passed the previous Congress,” Earnest said. “And I can confirm for you that if this bill passes this Congress the President wouldn’t sign it either.”

Even if an attempted override of a presidential veto could secure the necessary two-thirds affirmative vote in the House of Representatives, it is unlikely that such an attempt would succeed in the Senate. In that chamber 67 votes would be needed to enact the KXL pipeline bill into law over Obama’s objection.

The Department of State’s review of the application for the permit needed to build the pipeline across the U.S.-Canada border is currently delayed by litigation in the Nebraska state courts.

A Lancaster County district judge ruled in February that the state law invoked by the state’s former Republican Gov. Dave Heineman to justify approval of the pipeline route through the state violated the Nebraska constitution.

That decision is now before the Nebraska Supreme Court, which heard oral arguments in the case in September.