HJRES-46-118
Placed on the Union Calendar, Calendar No. 72.
Sponsored by Cliff Bentz (R-OR)
What it does
This joint resolution would use the Congressional Review Act to nullify a 2022 National Marine Fisheries Service (NMFS) rule that expanded the agency's ability to designate areas as "critical habitat" for endangered and threatened species. If passed, it would restore the more restrictive pre-2022 standards for critical habitat designation. Areas stripped of critical habitat status would no longer be subject to the federal protections and consultation requirements that designation triggers under the Endangered Species Act.
Who benefits
Landowners, farmers, ranchers, and real estate developers whose properties overlap with potential critical habitat areas would face fewer federal use restrictions. Energy companies, mining operations, and infrastructure developers operating in or near coastal and marine environments would encounter fewer regulatory hurdles. State and local governments seeking to manage land and water resources without federal consultation requirements would gain greater autonomy.
Who is hurt
Species currently listed or potentially listable as endangered or threatened under the Endangered Species Act could receive less habitat protection, which scientists argue may reduce their chances of recovery. Commercial and recreational fishing industries that depend on healthy fish and marine mammal populations could be indirectly affected if reduced protections lead to population declines. Environmental and conservation organizations that rely on broad critical habitat designations as a legal tool would lose a regulatory mechanism.
Supporters argue
Supporters argue that the 2022 NMFS rule dramatically expanded the federal government's power to restrict private land use by allowing designation of areas that a species does not currently occupy and may never occupy. They contend this overreach imposes significant economic burdens on landowners, farmers, and businesses without a demonstrated conservation benefit, since the species in question may not even be present. They further argue that Congress — not an executive agency — should set the boundaries of such consequential regulatory authority, and that the Congressional Review Act is the appropriate democratic check when an agency exceeds its mandate. They also point to recent Supreme Court decisions, including West Virginia v. EPA and Loper Bright, as confirmation that agencies must have clear congressional authorization before issuing rules of major economic and regulatory significance.
Opponents argue
Opponents argue that the 2022 NMFS rule restored scientifically grounded protections that are essential for species recovery, noting that habitat loss is the leading driver of species decline and that protecting unoccupied areas is often necessary for a species to expand its range and survive. They contend that nullifying the rule would weaken the Endangered Species Act's core purpose and leave vulnerable species with inadequate federal protection at a time of accelerating habitat loss. They further argue that NMFS acted within its statutory authority and relied on peer-reviewed science, and that using the Congressional Review Act to override expert agency judgment substitutes political decision-making for evidence-based conservation. They also warn that once nullified under the CRA, a substantially similar rule cannot be reissued without new congressional authorization, making the resolution's effects difficult to reverse.
Constitutional context
The Endangered Species Act rests on Congress's Commerce Clause authority (Art. I, Sec. 8). The resolution invokes the Congressional Review Act (5 U.S.C. Ch. 8), a statutory mechanism for legislative oversight of agency rulemaking. Key constitutional tensions include the major questions doctrine (West Virginia v. EPA, 2022), which requires clear congressional authorization for rules of vast economic significance, and the end of Chevron deference (Loper Bright, 2024), which means courts now independently assess whether NMFS's 2022 rule was within its statutory authority. A successful CRA disapproval would also trigger the CRA's bar on reissuing a substantially similar rule, raising separation-of-powers questions about the scope of that restriction on future executive action.
Checks and balances
This resolution would shift authority from the executive branch (NMFS/Department of Commerce) back to Congress. Under the Congressional Review Act, if enacted, Congress would not only nullify the specific rule but also bar the agency from issuing any substantially similar rule in the future without new legislation — a significant and durable constraint on executive agency rulemaking power in this area.
Historical precedent
The Congressional Review Act has been used successfully to nullify agency rules on multiple occasions, most notably in 2017 when Congress used it to rescind 14 Obama-era rules. The ESA's critical habitat provisions have also been the subject of prior regulatory revisions, including a 2019 Trump administration rule that similarly restricted unoccupied habitat designations — a rule that the 2022 NMFS rule was itself designed to reverse.