The Trump administration wants Congress to block California’s ability to ban the sale of new gas-powered cars over the next decade. It’s just not clear that Congress has the power to do that.
Lee Zeldin, the administrator of the Environmental Protection Agency, is transmitting waivers — which the Biden administration granted California to have stricter emissions standards than the rest of the country — to Congress, calling on them to overturn the actions.
Zeldin accused the Biden administration of failing to give Congress the chance to strike down the “rules on California’s waivers” in the first place. Now, Congress will have the chance to employ a little-used power called the Congressional Review Act, which allows the Legislative branch to overturn recent regulations with a simple majority.
The problem is, legal and administrative law experts don’t see the waivers as eligible for repeal under the CRA. The EPA granted the waivers through an action authorized by Congress, not through a rule-making process that leads to regulation. And the CRA applies only to regulations.
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If Congress wants to undo an authority it has delegated in the past, it needs to pass a law to do so and earn 60 votes, not just 50, experts and former officials say.
“EPA’s waiver decisions are not ‘rules’ for the purposes of the CRA and therefore don’t qualify for the ‘fast track’ Senate treatment provided by the CRA,” said Richard Revesz, who headed up the White House Office of Information and Regulatory Affairs under the Biden administration.
The Government Accountability Office has said the same, ruling in 2023 that the waivers don’t meet the requirements for review under the CRA.
But the CRA also has not been used much since it was passed in 1996, so the boundaries of what actually can be undone with a CRA vote have never been tested. Congressional Republicans during Trump’s first term were the first to embrace the rule to strike down Obama-era regulations.
And there’s plenty of appetite to block California’s ability to ban new gas cars. On Thursday, Majority Leader Steve Scalise named the waivers first on a list of priorities for CRA votes and called them a “rule”. The other nine rules listed are actual regulations, created through the standard rule-making process.
Republicans and many in the auto industry loathe that the state has permission to essentially disrupt the entire auto industry without the consent of the rest of the country, and so they have been looking for creative ways to undo that waiver now that Trump is in office.
“The Biden Administration failed to send rules on California’s waivers to Congress, preventing Members of Congress from deciding on extremely consequential actions that have massive impacts and costs across the entire United States. The Trump EPA is transparently correcting this wrong and rightly following the rule of law,” Zeldin said in a press release.
Members of Congress have also proposed CRA votes this session to repeal the methane emissions fee, conservation standards for water heaters and other appliances, the rule removing medical debt from credit reports, and other Biden administration policies. But while those proposals are more standard, voting on waivers would push the boundaries of the laws.
“This is a kind of gray-ish area because it involves the CRA, and so that hasn’t been used that much. Until I heard this today, it never dawned on me that a waiver would be seen as something covered by the CRA,” said Barry Rabe, an environmental policy expert at the University of Michigan. “There’s not a lot of constitutional history on what its boundaries are.”
The California Air Resources Board didn’t immediately respond to request for comment on what the agency plans to do in response, but California Gov. Gavin Newsom has threatened in the past to do whatever he can to protect the waivers, including sue the Trump administration.
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Anna Kramer is a reporter at NOTUS.
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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