House Republicans broke years of precedent—and possibly the law—to kill California's right to clean air

Fast Company

24-05-2025

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.
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.'
The use of the Congressional Review Act resolution is inconsistent with past precedent and violates the plain language of the act itself, said John Swanton, a spokesperson for California's Air Resources Board, which regulates emissions.
'The vote does not change CARB's authority,' Swanton said, adding that the agency will continue its mission to protect the public health of Californians impacted by harmful air pollution.
Ten million Californians live in areas that are under distinct, elevated threats from air pollution, said Adam Schiff, California's junior senator. That has led to higher rates of respiratory issues like asthma and chronic lung disease, and increased the risk of heart disease, cancer, chronic headaches, and immune system issues, he said.
'And that is multiplied by us living now on the front lines of the climate crisis. We have devastating and year-round fire dangers that put millions of other pollutants into our air,' Schiff said. 'We need, deserve, and reserve the right as Californians to do something about our air.'
Yet earlier this month, House Republicans, joined by 35 Democrats, including two from California, voted to rescind the waivers, sending the issue to the Senate.
A 'Compelling and Extraordinary' Need
California's legal authority to implement stricter air quality standards than federal rules comes from having already implemented its own tailpipe-emission regulations before Congress passed national standards in 1967. California officials developed the regulations to deal with the 'compelling and extraordinary' air-pollution problems caused by the Golden State's unique geography, climate, and abundance of people and vehicles.
Recognizing these unique conditions, Congress gave California the authority to ask the Environmental Protection Agency for a waiver from rules barring states from passing air and climate pollution rules that are more protective than federal rules.
Only one waiver was denied, an action that was quickly reversed, according to CARB. And though the Trump administration in 2019 withdrew a waiver, a move legal scholars say has no basis in the law, the Biden administration restored the state's authority to set its own vehicle-emission standards within a few years.
Republicans argued that California's rules amount to de facto national standards, given the state's size and the fact that other states have signed on.
But California can't force its emission standards on other states, Padilla said. 'Yes, over a dozen other states have voluntarily followed in California's footsteps, not because they were forced to, but because they chose to, in order to protect their constituents, their residents, and protect our planet.'
California's standards also represent ambitious but achievable steps to cut carbon emissions and fight the climate crisis, Padilla said. 'Transportation is the single largest contributor to greenhouse gas emissions, and California has been proud to set the example for other states who may choose to follow suit.'
Padilla, who grew up in California's chronically polluted San Fernando Valley, recalled being sent home from grade school 'on a pretty regular basis' when throat-burning smog settled over the valley.
'It appears that Republicans want to overturn half a century of precedent in order to undermine California's ability to protect the health of our residents,' Padilla said. 'Republicans seem to be putting the wealth of the big oil industry over the health of our constituents.'
'For Their Fossil Fuel Donors'
Rhode Island's Whitehouse, who has long schooled his colleagues on the perils of carbon pollution, took to the floor Tuesday to school them on the Congressional Review Act.
Under the American legal system, administrative agencies can make rules through 'a very robust process' that follows the Administrative Procedure Act, Whitehouse said. A rule could be contested in court, but years ago Congress decided there also could be a period of review when congressional members could reject the rule.
And for all the decades since the CRA was passed, he said, it's been used to address rules under the APA within the specified 60 days.
Other states, including Rhode Island, follow California's emissions standards because it's good for public health to have clean air, Whitehouse said. 'Efficient cars may mean lower cost for consumers, but those lower costs for consumers are lower sales for the fossil fuel industry.'
Whitehouse told his colleagues they had legitimate pathways to change laws they didn't like. They could pass a joint resolution or a simple Senate resolution. But those approaches would require 60 votes to end debate.
'They don't want to do that,' he said. 'They want to ram this thing through for their fossil fuel donors.'
Republicans, by contrast, argued they had the authority to protect consumers from what they call California's 'electric vehicle mandate,' which they say would endanger consumers, the economy, and the nation's energy supply.
'And our already shaky electric grid would quickly face huge new burdens from the surge in new electric vehicles,' argued Thune.
Congress had approved $5 billion to build electric vehicle charging infrastructure across the country, but the Trump administration withheld that funding, triggering a lawsuit from a coalition of attorneys to reverse what they said was a clearly illegal action.
Republicans' attacks on electric vehicles could disrupt a burgeoning industry built around the transition to renewable energy.
'The repeal of these waivers will dramatically destabilize the regulatory landscape at a time when industry needs certainty to invest in the future and compete on a global scale,' said Jamie Hall, policy director for EV Realty, which develops EV-charging hubs.
Thune also argued that California's waiver rules are an improper expansion of a limited Clean Air Act authority, echoing an argument in Project 2025, a policy blueprint for the second Trump administration produced by the conservative Heritage Foundation, which has long battled efforts to combat climate change.
In a chapter on transportation asserts, Project 2025 claims that California has no valid basis under the Clean Air Act to claim an extraordinary or unique air quality impact from carbon dioxide emissions. Its recommendation? 'Revoke the special waiver granted to California by the Biden administration.'
On Wednesday, a clearly frustrated Whitehouse argued that Republicans were helping the fossil fuel industry create a shortcut for itself so it can sell more gasoline and ignore all the states that joined California to demand cleaner air for their constituents. 'The fossil fuel industry essentially runs the Republican Party right now,' he said.
Last year, the oil and gas industry spent more than $153 million on lobbying, led by the American Fuel and Petrochemical Manufacturers, which spent $27.6 million to influence Congress on bills including those designed to repeal vehicle-emission standards. The trade group also donated $178,750 to congressional candidates, 96% of which went to Republicans.
The American Petroleum Institute, the largest U.S. oil and gas industry trade association, spent $6.25 million on lobbying last year to influence some of the same bills. Of nearly $400,000 donated to congressional candidates last year, 78% went to Republicans.
Ninety-five percent of the $21,000 the Heritage Foundation donated to congressional candidates last year went to Republicans.
'We Believe That You Can Do It'
The week before Donald Trump returned to office, the American Petroleum Institute held its biggest annual meeting in Washington, D.C. API promoted the event as an opportunity to urge the incoming Trump administration and Congress to 'seize the American energy opportunity' by advancing commonsense energy policies.
Thune joined API Chief Executive Mike Sommers onstage, where they reminisced about starting their careers in adjacent offices in the same congressional office building 30 years ago.
'It is a huge opportunity, having an administration that actually is pro-energy development working with the Congress,' Thune told his old friend. 'We want to be supportive in any way that we can in ensuring that the president and his team have success in making America energy dominant.'
Sommers suggested that one of the 'big, powerful tools' Congress can use when one party controls both chambers is the Congressional Review Act, which he said offers fast-track authority to reverse 'midnight regulations' passed by the Biden administration.
Thune said he wouldn't be able to use the CRA for one of California's tailpipe emissions standards because it doesn't fit within the required time window. But he was arguing with the parliamentarian and others, he said, 'about the whole California waiver issue and how to reverse that because that was such a radical regulatory overreach.'
Both California's Clean Cars and Clean Trucks rules require an increasing percentage of vehicles sold in the state to be zero-emissions by 2035, with the cars rule, the so-called 'EV mandate,' requiring that 100% of passenger cars and trucks be zero emissions by that date.
'What California did was completely radical,' Sommers said at the meeting. 'The fact that 17 other states who've waived into this are going to be subject to it could completely change the vehicle market.'
'So we would highly encourage you to look at that as an option for the CRA,' Sommers told Thune. 'And we believe that you can do it.'
Thune assured Sommers that his committee chairs and team were looking at ways to fit repeal of California's waivers 'within the parameters of a CRA action' to fix what they saw as a shared problem.
The oil and gas industry appreciated the efforts of Thune; John Barrasso of Wyoming, the Senate Majority Whip; and West Virginia Sen. Shelley Moore Capito, who pledged to overturn California's clean cars rule and introduced the measure to do so last month.
'Today, the United States Senate delivered a victory for American consumers, manufacturers, and U.S. energy security by voting to overturn the prior administration's EPA rule authorizing California's gas car ban and preventing its spread across our country,' said the American Petroleum Institute and the American Fuel and Petrochemical Manufacturers in a joint statement. 'We cannot thank Senators John Barrasso, Shelley Moore Capito, and Leader John Thune enough for their leadership on this important issue.'
Back on the Senate floor, Democrats warned their Republican colleagues that they may live to regret their decision to override the parliamentarian and flout legislative rules.
'It won't be long before Democrats are once again in the driver's seat here, in the majority once again,' Padilla said. When that happens, he warned, every agency action that Democrats don't like, whether it's a rule or not, and no matter how much time has passed, would be fair game with this new precedent.
'I suggest that we all think long and hard and be very careful about this,' he implored, in vain. 'I would urge my colleagues, all my colleagues, to join me, not just in defending California's rights to protect the health of our residents, not just in combating the existential threat of climate change, but in maintaining order in this chamber.'