House Republicans broke years of precedent—and possibly the law—to kill California’s right to clean air
House Republicans broke years of precedent—and possibly the law—to kill California’s right to clean air
In a move Democrats warned would have disastrous consequences for the economy, the environment, and public health, the Republican-led Senate Thursday voted to block California’s electric-vehicle mandates, revoking the state’s right to implement the nation’s toughest emissions standards. Republicans used the Congressional Review Act, or CRA, to overturn California’s long-standing authority under the Clean Air Act to request waivers from the Environmental Protection Agency to pass emissions standards stricter than federal rules and protect residents from dangerous air pollution. The move affects 17 other states and Washington, D.C., which have voluntarily adopted one or more of California’s stricter standards. The CRA allows Congress to quickly rescind a rule within a limited time after it’s issued by a federal agency, allowing a simple majority vote rather than the 60 votes needed to advance legislation under the filibuster rule. An aerial view of traffic on a smoggy day in Los Angeles in January 1985. [Photo: Ernst Haas/Getty Images] But both the Senate parliamentarian, the chamber’s official nonpartisan adviser, and the Government Accountability Office, the nonpartisan congressional referee, said the waivers are not rules and so are not subject to the Congressional Review Act. In defying the Senate parliamentarian, Democrats charged, the vote endangers not just the health of children and the climate but also decades of legal precedent and the integrity of the Senate itself. “Today, the Senate has done something unprecedented,” said Sen. Sheldon Whitehouse of Rhode Island late Wednesday night, after he and his Democratic colleagues spent the past several days urging Republicans to respect not just California’s authority under the law, but also Senate rules. “Our actions and the ones that will follow from the procedural steps taken here today, over the next day or so will change the Clean Air Act, will change the Congressional Review Act, will change the rules of the Senate, and will do so by overruling the parliamentarian and breaking the filibuster—in effect, going nuclear,” Whitehouse said, referring to attempts to subvert the filibuster. “This isn’t just about California’s climate policies, and this isn’t just about the scope of the Congressional Review Act, and this isn’t just about eliminating the legislative filibuster,” said California Sen. Alex Padilla on the Senate floor Tuesday. The Trump administration’s EPA submitted California’s waivers for review by Congress “with full knowledge that they are not actually rules” subject to the CRA, Padilla said, opening the door for any agency to ask Congress to revoke regulations a new administration doesn’t like. By mid-afternoon Thursday, Republicans moved to overturn California’s waivers through a procedural maneuver—giving the Senate the authority to determine what constitutes a rule for fast-track voting. They overturned waivers behind California’s rules to reduce tailpipe emissions from passenger vehicles and trucks, those regulating medium- and heavy-duty trucks, and the rule for heavy-duty smog-producing diesel and gas trucks. Senate Majority Leader John Thune (R-SD) mocked Democrats’ objections to using the CRA, saying they were “throwing a tantrum over a supposed procedural problem.”Thune insisted that having a waiver submitted to Congress “is all that Congress has ever needed to decide to consider something under the Congressional Review Act.” He called the GAO’s ruling that the waiver is not a rule “an extraordinary deviation from precedent,” saying it was the first time the office “has decided to insert itself into the process and affirmatively declare that an agency rule submitted to Congress as a rule is not a rule.” Despite Thune’s claim, since the CRA was passed in 1996 the GAO has offered 26 legal opinions about whether an agency action was a rule in response to inquiries from members of Congress. And EPA never submitted California Clean Air Act waivers to Congress before the Trump administration, Padilla and his Democratic colleagues say. They contend that Republicans chose this route because they don’t have the votes to withdraw the waivers through legislation. “The CRA has never been used to go after emission waivers like the ones in question today,” Senate Minority Leader Chuck Schumer of New York said on the floor Tuesday. “The waiver is so important to the health of our country, and particularly to our children; to go nuclear on something as significant as this and to do the bidding of the fossil fuel industry is outrageous.” The first waiver was granted to California on July 11, 1968, Whitehouse told his colleagues in a last-ditch effort to change their minds late Wednesday night. Waivers have either been granted or amended or modified repeatedly since then, he said. “The score on whether the California clean air rule is treated by EPA as a waiver or a rule? It’s 131 to zero.” Th
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