California and the Trump administration are at it again over the state’s ability to establish stricter emission regulations.
Before starting his second term, President Donald Trump vowed to get rid of what he called California’s electric vehicle mandate. On his first day back in the White House, Trump signed an executive order that called for eliminating “state emissions waivers that function to limit sales of gasoline-powered automobiles.”
Among the targets of that executive order were California EPA waivers that allow the state to enforce vehicle emission standards that go beyond federal regulations. That included Advanced Clean Trucks, the Omnibus Low NOx regulation and Advanced Clean Cars II.
In order to do that, the EPA submitted those waivers to Congress for review under the Congressional Review Act (CRA). That law allows Congress to review major rules enacted.
Under the CRA, Congress has 60 days after a rule takes effect to challenge it.
If just a simple majority approves of a resolution of disapproval, the rule is eliminated. Furthermore, disapproval prevents an agency from reintroducing the same rule or anything substantially similar. It would take a literal act of Congress to reinstate that rule.
Critics argued there were two major problems. First, the waivers had been granted years earlier and were well beyond the CRA’s normal 60-day review period. EPA argued that the clock never started because the waivers were not previously submitted to Congress.
Second, the Government Accountability Office has twice determined that EPA waivers are not subject to the CRA because they are orders, not rules. That determination was backed by the Senate Parliamentarian. Although influential, neither determination is legally binding.
Regardless, Congress passed resolutions of disapproval for all three EPA waivers, and Trump signed them. The EPA argued that the previous administration had failed to send the waivers to Congress for review. Therefore, the agency was “transparently correcting this wrong and rightfully following the rule of law,” EPA Administrator Lee Zeldin said. California immediately filed a lawsuit, claiming the CRA resolutions were unlawful.
Now, the EPA is doing the same thing with four more EPA waivers.
Those rules include two related to Advanced Clean Cars I, which included a zero-direct emission sales requirement. The third is the 2009 Greenhouse Gas Emission Standard, which was California’s first greenhouse gas regulation for vehicles and the foundation for Advanced Clean Cars I. Lastly, the EPA is going after rules that regulate mostly lawn and garden equipment, such as lawn mowers, leaf blowers, chainsaws and pressure washers.
EPA submitted those California emission rules to Congress under the CRA, setting them up to be eliminated. This time, the EPA waivers in question go even further back. Both the 2009 emission standards and the Advanced Clean Cars I rule were granted waivers back when Barack Obama was president.
Again, Trump’s EPA has reversed previous agency determinations that EPA waivers are not rules. Since neither former President Obama nor Joe Biden submitted the California emission rules under their watch, the EPA is now giving Congress its “statutorily required opportunity to review these rules.”
California has already filed a lawsuit, using similar arguments in its legal challenge to last year’s CRA resolutions.
“No agency has the power to wave a magic wand and transform an action that was finalized as an adjudicatory order into a rule, and certainly not without a public process in which the agency acknowledges and explains its change in position,” the lawsuit states. “Yet, that is exactly what EPA has attempted to do here.” LL
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