California’s so-called electric vehicle mandates, including Advanced Clean Trucks, have been terminated by Congress, but the controversial method used to eliminate the strict vehicle emission rules will be challenged in court.
On Thursday, May 22, the Senate passed Congressional Review Act resolutions reversing California’s Environmental Protection Agency waivers for three vehicle emission rules: Advanced Clean Cars II, Advanced Clean Trucks and the Omnibus Low NOX regulation. All three resolutions passed on a party-line vote.
Last week’s votes kill any hope for California to implement regulations that phase out internal combustion engine vehicles. By using the Congressional Review Act, California cannot take a second bite at the apple with a future Democratic administration. It would take an act of Congress for it to do so.
Enacted in 1996, the Congressional Review Act requires agencies to send new rules to Congress, allowing lawmakers to review and overturn them. Once a rule is submitted, Congress has 60 days to file a joint resolution of disapproval to revoke the rule. Rather than the typical 60 votes needed to pass a bill in the Senate, a CRA resolution requires only a simple majority.
Once signed into law, an agency is barred from issuing a similar rule in the future. In this case, California cannot request an EPA waiver for vehicle emission regulations that are “substantially the same form” as the Advanced Clean Trucks and Advanced Clean Cars II rules.
If a future EPA wants to grant similar vehicle emission waivers, Congress would need to pass a law allowing it to do just that.
“This action, once signed by President Trump, not only prevents California from implementing their attempt at EV mandate actions but ensures that they can never do something similar again,” EPA Administrator Lee Zeldin said in a statement.
The trucking industry applauded Congress’ decision to stop California’s electric vehicle mandate. The Owner-Operator Independent Drivers Association said CRA resolutions “protect small-business truckers nationwide from California’s regulatory encroachments.”
“Setting national policy is the responsibility of Congress, not California,” OOIDA President Todd Spencer said. “It’s no wonder small-business truckers have left the state in droves to find better opportunities elsewhere. For OOIDA members, vehicle reliability and affordability are critical. So far, there is no convincing evidence that electric commercial motor vehicles are a viable option for small-business truckers given the high costs and inadequate charging infrastructure.”
CRA controversy
This marks the first time the Congressional Review Act has been used to overturn one of California’s EPA waivers, a move Democrats have warned may set a dangerous precedent.
Until now, the EPA has not submitted its California waivers to Congress because it determined that they are not considered rules subject to the Congressional Review Act. The Government Accountability Office and the Senate parliamentarian have backed that determination.
Three years ago, the Biden administration rescinded the EPA’s decision from Trump’s first term to revoke an Obama-era waiver for the Advanced Clean Cars vehicle emission rule. Sen. Shelley Moore Capito, R-W.V., asked the GAO whether those waivers are considered rules under the Congressional Review Act.
In November 2023, the GAO determined that the EPA waivers are not rules under the Congressional Review Act. Rather, they are considered orders and cannot be reviewed and repealed by Congress.
Despite that finding, the EPA submitted the three California vehicle emission waivers, collectively called an electric vehicle mandate, to Congress as rules in February. By doing so, the agency started the 60-day clock for a Congressional Review Act resolution to overturn the waivers.
In March, Democratic Senators Sheldon Whitehouse, Alex Padilla and Adam Schiff asked the GAO if those waivers are rules subject to the Congressional Review Act. The GAO doubled down on its 2023 determination, stating that the EPA waivers submitted to Congress in February are not rules that Congress can review and overturn them through a CRA resolution.
Undeterred, House Republicans introduced the three resolutions in April to overturn EPA waivers allowing California’s electric vehicle mandate.
Just hours before Senate Republicans introduced their resolutions, the Senate parliamentarian ruled that EPA waivers are not subject to the Congressional Review Act, reinforcing the GAO rulings.
Since then, Democrats have raised concerns about breaking with traditional procedures by overruling parliamentarian and GAO rulings. Republican Sens. Mike Lee, John Thune and Susan Collins have acknowledged those rulings, with Thune and Collins indicating they would not vote against the parliamentarian.
During a Senate floor speech before the vote, Padilla called the votes to overturn California’s vehicle emission waivers a “nuclear option.” He claimed there is nothing stopping the Senate from weaponizing the Congressional Review Act to undo virtually any agency action that was not considered a rule in the past.
Padilla warned that using the CRA to overturn California’s electric vehicle mandate could set a dangerous precedent.
“Republicans have crossed the red line and gone nuclear,” Padilla said in a statement. “As the saying goes, ‘What goes around comes around.’ And it won’t be long before Democrats are back in the driver’s seat again. When that happens, all bets will be off. Every agency action that Democrats don’t like – whether it’s a rule or not – will be fair game, from mining permits and fossil fuel projects to foreign affairs and tax policies.”
Capito shot back, claiming nothing in the Senate rules gives the GAO the authority to prevent senators from overturning a rule through the Congressional Review Act. She said Republicans are not expanding the scope of the CRA. Rather, they are not narrowing the CRA by subjecting it to GAO approval.
“The procedural action we have taken today is not about the filibuster and not about the parliamentarian,” Capito said. “Instead, the procedural issue before the Senate was simply whether GAO staff should be able to block resolutions of disapproval against agency-submitted rules.”
Challenges to the Senate’s vote were swift. On the same day, California Gov. Gavin Newsom and Attorney General Rob Bonta announced the state will be filing a lawsuit against the resolution.
“This Senate vote is illegal,” Newsom said. “Republicans went around their own parliamentarian to defy decades of precedent. We won’t stand by as Trump Republicans make America smoggy again – undoing work that goes back to the days of Richard Nixon and Ronald Reagan – all while ceding our economic future to China. We’re going to fight this unconstitutional attack on California in court.” LL
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