House Republicans this week are expected to weigh in on BLM resource management plans in Alaska, North Dakota and Montana, where the GAO has found them to be subject to the Congressional Review Act. Pursuant to the CRA, any “rule” can be reversed by Congress and the president using this procedure. The CRA requires that agencies report their rules to Congress and provides special fast-track procedures under which Congress can consider legislation to overturn those rules. The definition of “rule” is broader than formal regulations, but it has exceptions that might apply to something like agency plans for federal lands:
- any rule relating to agency management or personnel; or
- any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.
In 1997, the General Accounting Office determined that the Tongass National Forest Land and Resource Management Plan was a rule for the purpose of the CRA. However, Congress did not act to reverse this decision.
Use of the CRA seems to depend on the GAO of the current administration. The GAO applied the Tongass reasoning and conclusion to USDI in 2017. Then, at the end of the Biden Administration, USDI had this to say about BLM plans: “RMPs have never been considered rules by the Department of the Interior (Department) or any reviewing court.” This letter provides the analysis leading to that conclusion.
The same letter pointed out the perverse effect of using the CRA for agency land management plans: “the CRA’s prohibition on issuing a rule ‘… in substantially the same form’ could have extremely far-reaching consequences for BLM plans that make hundreds of overarching allocation decisions across millions of acres …”
Land management plans are not typically presented to Congress by the agencies as rules subject to the CRA (including these BLM plans), and Congress has apparently never applied the CRA to federal land management plans. If that is done here, it’s not hard to imagine it showing up in a future federal lands litigation update.
A similar effort in Colorado is proceeding outside of the CRA parameters.
Jon said:
“Use of the CRA seems to depend on the GAO of the current administration.”
GAO is a legislative branch agency, and as such is not subject to the executive branch or the policies preferences of the White House occupant. GAO has consistently considered RMPs to be “rules” under the CRA. The land management agencies have, as far as I know, consistently held the opposite view regardless of the political party controlling the executive branch.
The CRA itself passed with overwhelming R support and little if any D support. Because the Rs are the party that generally opposes the issuance of new regulations, they have been much more aggressive about using the CRA after the end of a D administration than vice-versa. At the beginning of Obama’s first term there was considerable discussion among the Ds as to whether to invoke the CRA to overturn certain Bush regulations. I think that ultimately they did not resort to the CRA to any meaningful extent, but my memory on this isn’t sharp – that was a lot of beers ago.
My personal view is that applying the CRA to RMPs does not make a great deal of sense. The CRA is a sloppily drafted law anchored in a sloppy definition of “rule” included in a statute (the APA) passed before most of this blog’s readers were born. I think GAO’s views are legally correct, but are also the unfortunate product of a legislative scheme that should have been left to die in a graduate seminar room.
Thanks for that clarification. I don’t agree that GAO’s reasoning is sound, in particular given the Supreme Court’s conclusion in Ohio Forestry that land management plans are not ripe for judicial review because they do not affect the rights of non-agency parties (as noted in the USDI letter). Plans should fit within that exception to the CRA.
But I thought that plans were frequently litigated?
The common understanding/practice is that you can’t sue on a plan until there is a project implementing the plan that would actually affect somebody/something. (Which I don’t agree with for some plan decisions, but that’s another story.)
I don’t understand why it isn’t easier to just pick a different alternative, like the Biden Admin did with Alaska Roadless (granted, it wasn’t an RMP, but the idea is the same). BLM folks, States and others did a great deal of work on the RMP.. I’d think folks could just review them and select a different alternative. OTOH, the new one could be litigated…Perhaps I answered my own question.
An afterthought – I’m not sure how this would ever make it to court (suing Congress?). Even if Congress uses the CRA where they shouldn’t, they have the power to just pass a law that produces the same effect. Including picking their own alternative. It could still get interesting. (So something like the Colorado approach may make more sense.)
There is a rather convoluted way the issue could get to court. Imagine that the Biden administration issued a land management plan we’ll call “Rock Springs,” which among other things limited oil and gas development in the planning area. A new R Congress, under a new R administration, passes a resolution of disapproval. Then the Ds win in 2028, and the new D administration re-issues the old Biden plan with minor changes.
Under the CRA a resolution of disapproval prohibits the affected agency (in this case BLM) from issuing a substantially similar rule. So an oil and gas plaintiff could challenge the new plan, arguing that it is prohibited under the CRA. The BLM might respond by arguing that the original resoultion od disapproval is invalid because the RMP is not a “rule.” Then the issue would be squarely before the court. How would the court rule? My guess is the court would side with the plaintiff here, but it would be a fairly close call.
There is a linguistic way through the maze, though some will view this as sophistry. Under the CRA a rule is a document that has “general applicability and *future* effect.” The Ohio Forestry court conceded that the Wayne NF plan had future effect (through site-specific implementing actions like timber sales) but that it had no *present* effect and therefore was not justiciable. So there is technically no conflict betwen GAO’s CRA interpretation and Ohio Forestry’s characterization of land management plans.
I agree with Jon that this is a poor outcome as a matter of policy. But does it render GAO’s reasoning so infirm as to be legally absurd? I doubt it, given the ludicrously broad definition of “rule” in the statute.
Jon also raises the point that Congress could always simply pass a law striking down a rule it doesn’t like. The advantage of a CRA resolution is that it cannot be filibustered. Once the Senate dispenses with the filibuster (which I believe is not far over the horizon) the CRA will likely lose much of its current relevance.
FWIW, I ran across this example of the opposite case. In May, the CRA was used to invalidate Clean Air Act waivers issued to California by the EPA despite both the GAO and Senate Parliamentarian having determined that California waivers are NOT “rules” subject to the CRA. The Parliamentarian seems to have a lot of sway with budget legislation, why not here?
https://www.hklaw.com/en/insights/publications/2025/05/up-in-the-air-congress-nullifies-clean-air-act-waivers-for-california
The Congressional Review Act actually prohibits judicial review, but maybe your hypothetical lawsuit is still possible – quoting https://sgp.fas.org/crs/misc/R43992.pdf
Section 805 of the CRA states: “No determination, finding, action, or omission under this chapter shall be subject to judicial review.”124 Accordingly, courts will not weigh in on matters falling within the scope of Section 805, but will instead leave the resolution of these CRA-related issues to the political branches. However, there has been some judicial disagreement regarding which CRA-related matters are within Section 805’s scope. On its face, this provision appears to bar judicial review of a broad swathe of claims. While most reviewing courts have interpreted Section 805 to broadly prohibit judicial review of claims alleging CRA violations, a few courts have taken the view that certain types of CRA-related claims are not barred, as discussed in more detail below. In particular, some courts have concluded that Section 805 allows review of agencies’ compliance with the CRA.125