The Congressional Review Act provides an opportunity to reverse decisions from the Biden administration that halted mineral development in the western United States.
J oe Biden isn’t president anymore. But he’s still affecting policy. In response, earlier this month, representatives and senators from North Dakota introduced a resolution to overturn a land-use plan adopted by the Biden administration. The Bureau of Land Management adopted the plan in January, and Representative Julie Fedorchak (R., N.D.) referred to the plan as an “attempt to shut down responsible energy development on federal lands” in her state.
The resolution was introduced under the Congressional Review Act, a 1996 law that allows a simple majority of both houses to pass a resolution disapproving of a regulation. If the resolution passes and is signed by the president, the regulation is revoked and cannot be adopted in “substantially the same form” in the future.
Congress has limited time to adopt a resolution overturning a rule, but the clock does not begin to run until the agency that adopted the regulation officially notifies both houses of Congress about the regulation. That never happened with the January land-use plan — the BLM never officially notified Congress of its adoption — and as a result, Congress still has time to disapprove the plan.
Resource management plans are not the only land-use decisions the Biden administration failed to send to Congress under the Congressional Review Act. If Congress wishes to overturn some ill-advised land management decisions made during the final weeks of the Biden administration, the Congressional Review Act provides an opportunity.
Specifically, Congress could overturn decisions from the Biden administration that halted mineral development in the western United States. For example, in the final days of 2024, the previous administration released Public Land Order 7956, a rule that halted mineral development across more than 20,500 acres in western South Dakota. This rule was issued despite the Forest Service approving exploratory drilling and even though companies must go through an extensive environmental review before extracting minerals from the ground.
The previous administration did not submit this decision to Congress because it is labeled a “public land order” rather than a “rule.” But the name does not determine whether an agency must submit the decision under the Congressional Review Act.
The CRA defines “rule” broadly, as “any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” Public Land Order 7956 falls within this definition, as it implements a policy that prevents anyone from exploring for minerals in a large area of South Dakota.
The statute that authorizes agencies to make decisions like Public Land Order 7956 makes it clear that these types of decisions are “rules” and that Congress should be able to review them under the Congressional Review Act.
The Federal Land Policy and Management Act of 1976 authorizes the secretary of the interior to withdraw federal land from certain uses — like mining — but it allows for Congress to overturn that decision by a simple majority vote of both houses. Congress included this “legislative veto” in many statutes throughout the 1960s and 1970s as a check on executive branch decision-making.
In 1983, the Supreme Court held that legislative vetoes are unconstitutional because they violate the presentment clause’s requirement that all legislation pass through both houses of Congress and be presented to the president for his signature or veto. In response to this decision, Congress adopted the Congressional Review Act to allow for a constitutional way to review and overturn regulations. The Congressional Review Act creates a streamlined process to review important decisions but still requires the president to sign off on any resolution of disapproval.
By not sending Public Land Orders to Congress for review under the Congressional Review Act, previous administrations have ignored congressional intent in passing both the Federal Land Policy and Management Act and the Congressional Review Act. Congress believed that withdrawal decisions were important decisions that needed congressional input. When the Supreme Court ruled that the original mechanism for review was unconstitutional, Congress created a new mechanism.
The current secretary of the interior, Doug Burgum, should recognize that past administrations have illegally prevented Congress from reviewing important land management decisions by incorrectly labeling them “orders” rather than “rules.” He should submit these decisions to Congress for its review. And even if he does not, Congress can do what it did earlier this month — introduce a resolution of disapproval to overturn any public land order that has not been submitted.
Jeffrey McCoy and Paige Gilliard are attorneys at the Pacific Legal Foundation, a public interest law firm that defends Americans’ liberties against government overreach and abuse.