Congress can stop California's radical environmental mandates that hurt the entire nation
EPA Administrator Lee Zeldin has launched an inspiring effort to regain sanity in our nation's energy policies. One of his initiatives is particularly important — reversing the Biden administration's attempt to supercharge California's electric-vehicle mandates, which would allow that state to push a radical transformation of our nation's fleet from gas-powered to electric. Congress has an opportunity for a policy and constitutional win here. The reversal of Biden and California's undemocratic effort is now on the five-yard line. To score, Congress needs to punch through one more bureaucratic agency.
Over the last several years, California has tried to aggressively export its progressive energy ideology, leading to a wide number of short-sighted and unconstitutional policies. Near the top of the list are California's bureaucratically crafted electric-vehicle mandates, some of which seek to transform the nation's heavy-duty fleet from diesel-based to electric.
California's attempt to drive national policy would normally run into both constitutional (interstate commerce clause) and statutory (Clean Air Act) roadblocks. Unfortunately, the Biden Environmental Protection Agency attempted to bless California's overreach by granting so-called Clean Air Act "preemption waivers" to three electric-vehicle mandates passed by unelected California bureaucrats.
These waivers give California a Sword of Damocles to hang over the industry. Nebraska has fought back, leading a three-part battle by filing lawsuits against California, the Biden-era mandates and the trucking companies that agreed to eliminate consumer choice in the trucking market.
The good news is that the Trump administration is pushing common-sense energy policies, and Zeldin has taken the first necessary step to repeal the waivers. Under the Congressional Review Act, Congress can repeal EPA's waivers by passing a resolution of disapproval through simple majorities in the House and Senate plus the president's signature.
President Donald Trump's promise to unleash American energy by rescinding radical electric-vehicle mandates — combined with Republican majorities in both houses of Congress — make a legislative repeal a no-brainer. Nebraskans are grateful that our two United States Senators, Deb Fischer and Pete Ricketts, are helping to lead the charge for energy policy sanity.
Now there's a roadblock. A nonbinding opinion from the Government Accountability Office judged that the California waivers are not "rules" of "general applicability" subject to review under the Congressional Review Act. That opinion is wrong.
The California waivers are "rules" because they enact forward-looking policy decisions. And the waivers are "generally applicable" because they reach well beyond California's borders. Even if one ignores the obvious nationwide (if not worldwide) implications of mandating electric vehicles in the fifth-largest economy in the world, the California waivers are generally applicable because they allow other states to enact electric-vehicle mandates they otherwise could not.
Under the Clean Air Act, only Congress can set emission standards for new motor vehicles. The sole exception is California, which can seek a waiver from EPA to enforce emission standards more stringent than the federal ones. But once California gets a waiver, any of the other 49 states can "adopt and enforce" emission standards "identical to the California standards for which a waiver has been granted" without asking EPA for permission.
So far, 18 states have adopted at least one of California's electric-vehicle mandates. The Biden-era waiver paves the way for a widespread adoption of California's bans on internal-combustion engines. This is precisely the kind of agency action that falls within the purview of the Congressional Review Act.
Finding that the waivers are subject to the CRA is both a lawful and commonsense exercise of congressional authority. The GAO — headed by an Obama appointee — broke its own precedent in issuing nonbinding "observations" on whether the California waivers are subject to the CRA. Never before had the GAO opined on an agency action that an agency already submitted for CRA review.
The GAO itself has said that, once an agency action has been submitted to Congress for CRA review, there are "no impediments to Congress's exercise of those powers that could be cured by an opinion from GAO." Procedural irregularities aside, the GAO's opinion is substantively flawed. It fails to mention that once California gets a waiver, every other state can adopt emission standards identical to the California standards, giving the waivers nationwide effect.
The California waivers are "rules" because they enact forward-looking policy decisions. And the waivers are "generally applicable" because they reach well beyond California's borders.
Accepting the GAO's novel observations here would effectively give unelected bureaucrats the final say on whether elected lawmakers get to review sweeping regulatory decisions — decisions that impact the national economy, consumer choice and federalism itself. If Congress defers here, it risks outsourcing democratic oversight of major national policy to technical advisors. That would weaken our constitutional protections.
The Republican Party has claimed unified control of the federal government only five times in the past 100 years. Using that control to repeal California's waivers is both a policy and constitutional win. Elected representatives in Congress, not unelected bureaucrats in Sacramento or a so-called "independent" agency like GAO, have the power to regulate the means of interstate commerce.
Deferring to the GAO would be an undemocratic trifecta — it would leave in place rules written by unelected state regulators, approved by unelected federal bureaucrats and shielded from democratic review through unelected, self-declared referees. That's not how a representative government is supposed to work.
Repealing the waivers would do more than block a radical climate agenda — it would restore a basic principle of American self-government: that laws with national scope must be subject to national debate, national scrutiny, and national consent. Congress has the authority to act, and I urge it to use that authority and repeal these short-sighted waivers.
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