Republicans are planning to break decades of precedent — and possibly the law — to stop California from banning new gas cars.
If they move forward with the effort, former administration officials and attorneys say it could suddenly give Congress a pathway to easily overturn any agency action — from licensing pipelines, approving mergers or granting permits for big infrastructure projects.
Sen. Shelley Moore Capito, the chair of the Senate Committee on Environment and Public Works, told NOTUS that Republicans will use the Congressional Review Act — which allows the Senate to fast-track the repeal of some regulations with a simple majority — to undo the Biden-era waivers letting California phase out gas cars.
The Environmental Protection Agency granted those waivers because they are essentially required to do so under the Clean Air Act. The Government Accountability Office has already said that it believes California’s waivers aren’t a rule and are exempt from the CRA. Until this month, former Biden administration officials and outside lawyers have assumed — and told NOTUS — that the waivers couldn’t be repealed under this congressional procedure.
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The CRA specifically grants Congress the right to veto agency rules, not other agency decisions. But Republicans believe they have found a loophole: The GAO has also said it has no role after agencies submit rules to Congress. Lee Zeldin, the administrator of the EPA, sent the waivers to Congress in mid-February, declaring them to be a “rule” subject to the CRA even though they have never been interpreted this way.
“The question on the CRA, on the California waiver, is whether it was a rule or not. And we believe it is,” Capito said. “Once they submitted it to us, it’s a rule. Zeldin did. Then we can take it down.”
The CRA, created in 1996, was rarely used until Trump’s first administration. It’s exempt from judicial review, meaning that it’s up to Congress to self-regulate on what’s within the boundaries of the law.
Republicans have already begun making the case that the CRA should be used to repeal more agency actions — the implications for which could be significant every time power shifts in Washington.
A former Justice Department attorney in the first Trump administration, Michael Buschbacher, has been urging Congress and the EPA to start calling the waivers a rule for months.
“Anything can be a rule,” he said, citing a fifth circuit appeals court opinion that included a broad definition of a agency rules. “As just a matter of academic administrative law, the arguments for why it’s a rule are very, very good.”
Buschbacher clarified after publication that “almost anything” can be a rule.
These precedent-breaking moves could put particular pressure on the Senate’s parliamentarian, who dictates whether the body is following its own rules. (Typically the parliamentarian, a position currently occupied by Elizabeth MacDonough, is called upon during the budget reconciliation process, when she must decide whether senators’ legislative proposals meet the budget rules. Her history of nixing policy ideas has made her very unpopular with certain Republican members.)
It’s unclear whether Democrats will raise a point of order with the parliamentarian over the California waivers.
Sen. Sheldon Whitehouse, Capito’s Democratic counterpart on the committee, told NOTUS that the effort to unravel these waivers is “a bit of a mystery,” but did not say whether he plans to fight back on procedural grounds.
His office and the Democratic side of Environment and Public Works did not respond to follow-up questions.
“There are a lot of folks who understandably don’t want to tear everything up that has emerged as custom on the Hill. I think the real key point that we’re making is, you don’t need to do that,” Buschbacher said, arguing that he doesn’t believe precedent will be broken and that he wants to encourage Congress to embrace oversight of agency decision-making.
But Richard Revesz, who headed the White House Office of Information and Regulatory Affairs under the Biden administration, called the idea that the waivers are a rule “a laughable proposition” and said no one can just change the definition of a rule for convenience.
The Congressional Research Service has issued language similar to the Government Accountability Office, which can only provide nonbinding recommendations.
Congress choosing to use the CRA on these waivers would be “acting lawlessly,” Revesz said.
Both the EPA decision to send the waivers in the first place and Republicans’ choice to behave like those waivers are any other “rule” are “just another troubling step in the erosion of the rule of law,” said Jesse Cross, a former attorney in the Office of the Legislative Counsel for the House.
“The Trump EPA is doing what no EPA under Democratic or Republican administrations in 50 years has ever done, and what the GAO has confirmed does not comply with the law,” said Dave Clegern, the spokesperson for the California regulator that’s pursuing the gas car phaseout.
Buschbacher believes that even if Whitehouse or another Democrat were to raise a point of order with the parliamentarian, the parliamentarian wouldn’t rule in their favor. The parliamentarian typically refers to the position of the GAO, and the position of the GAO is complicated here. The GAO has said that the waivers are not a rule. But the GAO has also said that if an agency submits something to Congress, it becomes a rule.
So in this case, because the EPA has submitted the waivers to Congress, Buschbacher believes there would be nothing for the parliamentarian to strike down.
Revesz adamantly disagreed. “Maybe I’m naive, but I do have faith that the relevant officials would follow the law,” he said. “And I think the law on this is clear.”
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Anna Kramer is a reporter at NOTUS. Oriana González, a reporter at NOTUS, contributed to this report.
This story was produced as part of a partnership between NOTUS and NewsWell, home of Times of San Diego, Santa Barbara News-Press and Stocktonia.
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