The Congressional Review Act (CRA) was adopted in 1996 to give Congress a more powerful check on agency regulation that outpaces congressional intent. But now, for the first time, Congress has used that powerful authority in reverse. By disapproving a de-regulatory action — the rescission of the Subpart OOOOa new source methane standards for the oil and gas sector — Congress has brought a dead rule back to life. The birth, death, and now re-birth of Subpart OOOOa (often pronounced “quad-O-A”) raises several new and important questions.

First, when does, or did, the rule become effective? Subpart OOOOa was promulgated via a combination of two actions, the most recent of which was finalized on June 3, 2016, with an effective date of August 2, 2016. As a result, the final rule was effective for nearly four years prior to the Trump EPA’s promulgation of a rescission rule affecting Subpart OOOOa on September 14, 2020. Almost 11 months later, President Biden signed the CRA resolution on June 30, making Subpart OOOOa fully effective once more.

The CRA resolution not only brings Subpart OOOOa back to life, but also appears to erase the 11-month gap when elements of the rule were rescinded. Both the CRA and the language of the resolution itself make clear that the rescission rule will be treated as if it never existed. Specifically, the CRA indicates that a successful disapproval resolution means a rule “shall be treated as through such rule had never taken effect.” The Senate’s resolution, also adopted verbatim by the House, likewise states that EPA’s 2020 rescission rule “shall have no force or effect.” Therefore, although certain aspects of Subpart OOOOa were not actually effective between September 2020 and June 2021, the rule is likely to be deemed retroactively effective during that period of time.

Recognizing the potential for confusion, EPA acted quickly to issue an FAQ document about the CRA resolution. EPA’s advice provides little comfort to the industry — EPA merely says (1) sources should take “immediate” steps to comply, and that (2) in deciding whether to retroactively enforce the rule, EPA will consider, on a “case-by-case basis,” the “circumstances and equities created by the CRA resolution.” EPA does not say how sources are expected to “immediately” comply, nor does it explain how the “equities” could differ on a “case-by-case basis” in these unusual “circumstances.”

The second question raised by the CRA resolution is the effect of Congress’ statements in adopting the resolution — both on the specific rule addressed, as well as on any other similar rules. Legislative history for CRA resolutions is typically scarce, since the whole point of the exercise is to move quickly, without the usual procedures that leave clues to congressional intent. In this case, however, while the Senate moved quickly to meet the deadline of the CRA statute, the House took the time to issue a report to explain its decision to join the Senate’s resolution.

In that report, the House expressly disagreed with one of EPA’s underlying justifications for the rescission rule. The rescission was based, in part, on the lack of a specific finding that methane emissions from the oil and gas sector contribute to air pollution that endangers human health and welfare. EPA had already found that other emissions from the oil and gas sector warranted regulation, but it had never made that same determination specifically for methane. The House report claims that Congress’ intent in the Clean Air Act is clear: Once an industry is found to contribute to one air pollution problem, EPA can regulate it for any air pollution problem.

In essence, the report reflects what the current Congress thinks a prior Congress intended when adopting the Clean Air Act, making it an unusual sort of retroactive legislative history. The effect of this statement remains to be seen, but it is relevant to more than just Subpart OOOOa, as the same issue also affects EPA’s authority to issue climate rules for the power sector, including the Clean Power Plan and ACE.

Finally, perhaps the most important question raised by the Subpart OOOOa CRA resolution is how quickly EPA will act to regulate methane emissions from existing oil and gas facilities. Now that the new source standards for methane are once again effective, EPA is expected to view the revival of Subpart OOOOa as also reviving its obligation under the Clean Air Act to adopt similar requirements for existing sources. That, after all, is the real reason EPA first decided to regulate methane from new sources in the first place — since pollution controls in place to address traditional pollutants already control methane emissions, no significant reductions in methane emissions are expected from the new source rule. Instead, the primary practical effect of regulating methane from new sources via Subpart OOOOa is the legal prerequisite it provides for EPA to regulate methane from existing sources.