The Environmental Protection Agency, under new Administrator Lee Zeldin, has sent to Congress and the GAO three waivers of California emissions regulations, waivers granted by EPA during the Biden Administration. This has triggered a major legal debate.
The waivers granted during the Biden Administration were for California’s Advanced Clean Trucks Rule, Omnibus NOx rule and Clean Cars II rule. Notably, California withdrew its Advanced Clean Fleets Rule from EPA waiver consideration before the Inauguration (https://www.prepassalliance.org/california-withdraws-from-zero-emission-trucks/).
Under the Congressional Review Act, all federal agencies must submit final rules to Congress and the General Accountability Office before they may take effect. The EPA did not submit the California waivers to Congress or GAO at that time because they were decisions by the EPA Administrator – “orders” – and not “rules” adopted through rulemaking procedures, which are expressly covered by the Congressional Review Act.
Enacted in 1996, the Congressional Review Act provides Congress with special procedures to overturn federal agency rules. Once overturned, a substantially similar rule may not be adopted by the federal agency. According to the Congressional Research Service, the CRA definition of “rules” is broad, applying to major rules, non-major rules, interim final rules and probably guidance documents and policy memoranda, if those were to be considered. On the other hand, the CRA does not apply to presidential actions or non-rule agency actions such as orders.
But when is an order effectively a rule? The federal Clean Air Act granted California the ability to seek an EPA waiver for state emissions rules which differed from federal rules. California has exercised that special provision several times. However, these three California emissions rules (and the withdrawn Advanced Clean Fleets Rule) have significant extraterritorial and international impacts, involving fuels and technologies at times immature, often unproven, and certainly costly. As Administrator Zeldin has said, these California rules raise policy questions that belong to Congress.
The Congressional Review Act has been used to overturn a total of 20 rules. It’s been proven to be a steep hill to climb. A more direct course of action may be for Congress to remove California’s special exemption from the Clean Air Act and then revoke these waivers as having no statutory basis.