A Cost-Benefit Interpretation of the Substantially Similar Hurdle in the Congressional Review Act: Can OSHA Ever Utter the E-Word (Ergonomics) Again?

The Congressional Review Act permits Congress to veto proposed regulations via a joint resolution, and prohibits an agency from reissuing a rule “in substantially the same form” as the vetoed rule. Some scholars—and officials within the agencies themselves—have understood the “substantially the same” standard to bar an agency from regulating in the same substantive area covered by a vetoed rule. Courts have not yet provided an authoritative interpretation of the standard. This Article examines a spectrum of possible understandings of the standard, and relates them to the legislative history (of both the Congressional Review Act itself and the congressional veto of the Occupational Safety and Health Administration’s ergonomics rule), the statutory text, case law, and “good government” rationales. It concludes that the outlook is not as bleak as the agency officials and earlier scholarship predict: an agency may reissue a regulation in the same substantive area as a vetoed rule as long as the new rule has significantly greater benefits and/or significantly lower costs than the original rule. The Article then notes the practical implications for future rulemaking in the field of ergonomics, and closes with recommendations to amend the Congressional Review Act so as to better effect its underlying purpose