American Oil and Gas Reporter - September 2024 - 26

Regulatory Outlook Relies On Election
Federal Legislative Update
By Del Torkelson
and Colter Cookson
WICHITA, KS.- " Elections have consequences, "
U.S. Senator Roger Marshall,
R-Ks., intoned at the congressional panel
during the Kansas Independent Oil &
Gas Association's 87th Annual Convention
& Expo, held Aug. 18-20 at the Century
II Convention Center in Wichita.
The elections to which Marshall referred
were those of 2020 and the consequences
included oil and gas industry
headaches such as the methane emissions
tax that Congress passed as part of the
Inflation Reduction Act, as well as the
methane emissions regulations that the
Biden administration finalized earlier
this year.
This year's elections also will have
long-term implications, Marshall and the
other panelists stressed. Also participating
in that panel, moderated by KIOGA President
Edward P. Cross, were Representative
Ron Estes, R-Ks., and Representative
Tracey Mann, R-Ks.
James D. Elliott, an attorney with
Spilman Thomas & Battle who is serving
as a lead counsel on litigation challenging
the methane rule, also highlighted the
election's importance. He predicted that
a Republican administration would seek
to change many problematic aspects of
the rule, which could reduce the need
to fight it in court or in the halls of
Congress.
CRA Calculations
Efforts to stymie EPA's new methane
rule during the 118th Congress included
a Congressional Review Act resolution,
a tool Estes noted scarcely saw use before
the beginning of President Trump's term.
" The CRA requires the House and Senate
to vote for it and the president to sign it, "
Estes pointed out. " We passed more CRAs
when President Trump was first elected.
I think there were 14 in the first few
months of 2017. Previous to that, there
only had been one passed by Congress
and signed by the president. "
Marshall mentioned that CRA resolutions
were not subject to the 60-vote
threshold that often stymied controversial
Senate proposals, and noted that he had
introduced such a resolution against the
methane rule before withdrawing it. He
26 THE AMERICAN OIL & GAS REPORTER
explained that move as a tactical decision
designed to prevent lawmakers up for reelection,
such as Senator Jon Tester, DMt.,
from opportunistically gaining political
cover by casting a vote that likely
would prove substantively moot after a
presidential veto.
" If we voted on that, Tester would-
all of a sudden-realize he is an oil and
gas person, one of President Trump's
best friends, and interested in securing
the border, " Marshall related. " He would
have voted with us, and then Biden would
have vetoed it. We are not going to give
him a 'get-out-of-jail-free card.' We do
not want to give Democrats any cover to
vote with us on these CRAs . . . if Joe
Biden will veto them anyway. "
" We have seen such overreach from
the Biden administration on everything,
in terms of what it is trying to accomplish
with rules and regulations, " Estes characterized.
" That is why it is so important
to come in with a big broom after these
elections. "
As for the underlying issue of excessive
federal regulation, the congressional panel
suggested that the U.S. Supreme Court's
June 28 decision to overrule the principle
of Chevron deference could prove pivotal.
" One of the composite consequences is
going to be that regulators are going to
know there are boundaries to prevent
them from even attempting some of this
crazy stuff, " Mann predicted. " Legislators
should legislate, judges should judge and
bureaucrats should not do either. "
However, Estes acknowledged,
Chevron's nullification will require Congress
to put in the work and shoulder the
political risks of writing more specific
legislation. " It is incumbent on us, " he
reflected. " Our system of government
was set up with separate branches, but
the legislative branch was always more
powerful than the executive branch, because
we actually can write a law and
override a president if it is vetoed. The
legislative branch needs to weigh in more
on the legislation we write. "
Other Approaches
The panelists also pointed to another
measure to restrain executive branch overregulation
in the form of the " Regulations
from the Executive in Need of Scrutiny
(REINS) " Act. Mann said such legislation
passed the House during this Congress
in the form of HR 277, but observed that
the bill languished in the Senate.
" (HR 277) basically says if Congress
passes a law . . . the regulators write the
rules to implement the law, and . . .
before those rules can be implemented
they have to go back to Congress for an
up or down, yes or no, vote on whether
those rules are within or outside the scope
we envisioned, " he summarized. " If we
can couple (the end of) Chevron deference
with the passage of the REINS Act, it
would be a game changer. "
When Cross inquired about the feasibility
of the House defunding EPA's
ability to enforce the methane rule, Estes
noted there was some merit in that possibility,
but also acknowledged the hurdles
because of a history of congressional appropriations
dysfunction. " Unfortunately,
our appropriations process is fairly broken, "
he related. " We get in contentious
fights on the discretionary side and there
are always folks who try to stick their
pet projects into them, so you end up
with a lot of contentious discussions between
Republicans and Democrats in the
final appropriations process. "
Nevertheless, Mann promised that the
House would not forget to exercise its
appropriations power. " We have done a
better job than we have for decades doing
a deep-dive scrub through these agencies,
really looking at specific offices, specific
personnel, specific rules they are trying
to implement and not funding them as
they go through the appropriations
process, " he reported. " Congress controls
the purse strings and needs to do a better
job of making known its thoughts about
a lot of these crazy regulations. You
cannot technically defund an office, but
you can reduce someone's salary to $1. "
Cross brought up litigation in which
KIOGA was participating to halt EPA's
methane rule and asked the lawmakers
about their interest in filing an amicus
brief to support the lawsuit. " I think that
is a good idea, " Estes affirmed. " We have
done that on several provisions, in terms
of pulling together members of the House,
or sometimes with members of both the
House and Senate, to draft an amicus
brief out of the congressional membership.
We will look at doing that. "
" Sign me up, " Mann concurred.
American Oil and Gas Reporter - September 2024

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