Floor SpeechNeutral2025-03-10

CONGRESSIONAL REVIEW ACT

EnvironmentForeign PolicyTradeInfrastructure

Context

On 2025-03-10, Senator Sheldon Whitehouse (D-RI) delivered a floor speech titled "CONGRESSIONAL REVIEW ACT" in the Senate. The speech addressed the environment and also covered foreign policy, trade policy. It referenced legislation including S1626, S1628, S1627.

Full Text

CONGRESSIONAL REVIEW ACT

Congressional Record, Volume 171 Issue 44 (Monday, March 10, 2025) [Congressional Record Volume 171, Number 44 (Monday, March 10, 2025)] [Senate] [Pages S1626-S1628] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] CONGRESSIONAL REVIEW ACT Mr. WHITEHOUSE. Mr. President, as my colleagues know, since 1996, the Congressional Review Act, 5 U.S.C. 801-808, has provided an important tool for Congress to provide a check on certain Agency rules. Pursuant to the statute, the Government Accountability Office polices whether an Agency action is or is not a rule for purposes of the Congressional Review Act. Under that authority, in 2023, GAO decided that certain Environmental Protection Agency actions under the Clean Air Act relating to California's emission control standards were not a rule for purposes of the Congressional Review Act. Late last month, the Trump administration Environmental Protection Agency submitted three Biden administration actions as rules under the Congressional Review Act. These actions once again related to California's emission control standards. Along with my colleagues from California, Senators Padilla and Schiff, I wrote the GAO to confirm whether or not these three actions were rules for purposes of the Congressional Review Act. On Thursday came GAO's response. They are not. Referring back to its 2023 decision, GAO concluded that ``our prior analysis and conclusion in B-334309 that the Advanced Clean Car Program Waiver Notice was not a rule for purposes of CRA because it was an order under APA would apply to the three notices at issue here.'' To help complete the Senate's record of this matter, I ask unanimous consent that the text of GAO's letter be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: B-337179 March 6, 2025 Congressional Requesters Subject: Observations Regarding the Environmental Protection Agency's Submission of Notices of Decision on Clean Air Act Preemption Waivers as Rules Under the Congressional Review Act This letter responds to your request for a legal decision as to whether the Environmental Protection Agency's (EPA) Clean Air Act preemption waivers and Notices of Decision that EPA submitted as rules to Congress and GAO in late February 2025 \1\ are rules subject to the Congressional Review Act (CRA).\2\ Our regular practice is to issue decisions on actions that agencies have not submitted to Congress as rules under CRA in order to further the purposes of CRA by protecting Congress's CRA review and oversight authorities.\3\ In this case, we are presented with a different situation because the actions were submitted as rules under the CRA, and it is not one in which we normally issue a legal decision. However, we do have prior caselaw that addressed the applicability of CRA to Clean Air Act preemption waivers, B-334309, Nov. 30, 2023, and EPA's recent submission is inconsistent with this caselaw. Therefore, we are providing you with our views and analysis of preemption waivers under the Clean Air Act that may be helpful as Congress considers how to treat these Notices of Decision and the application of CRA procedures. As background to these issues, we issued a legal decision concluding that a Clean Air Act preemption waiver was not a rule subject to CRA but was instead an adjudicatory order. See B-334309, Nov. 30, 2023. Furthermore, we explained that even if the waiver were to satisfy the APA definition of a rule, it would be considered a rule of particular applicability and, therefore, would still not be subject to CRA's submission requirement because of CRA's exclusions. Id. For the three Notices of Decision announcing the waivers at issue here, EPA stated that the Notices of Decision were not rules under CRA, and, in the underlying decision documents for two of those notices, cited to our 2023 decision in support of that statement. However, EPA submitted them as rules to GAO and Congress without any explanation of this discrepancy. We reached out to EPA on February 20, 2025, for clarification on the submission of the Notices of Decision at issue here because the notices themselves stated that CRA did not apply.\4\ After receiving your request, we followed our regular procedure \5\ and sent a formal letter to EPA on February 25, 2025, seeking factual information and the agency's legal views on this matter.\6\ Although EPA resubmitted the Notices of Decision to GAO on February 27, 2025, with additional information in the corresponding CRA reports, the agency still did not address the statements in the notices regarding the inapplicability of the CRA,\7\ and, to date, EPA has not further responded to our letter. As explained more fully below, our view is that the analysis and conclusions in our 2023 Clean Air Act preemption waiver decision would also apply to the Notices of Decision recently submitted as rules to Congress by EPA. BACKGROUND Clean Air Act The Clean Air Act generally preempts states from adopting or enforcing emission control standards for new motor vehicles or new motor vehicle engines. See 42 U.S.C. Sec. 7543(a); B-334309, Nov. 30, 2023. However, the Clean Air Act requires the EPA Administrator to grant a waiver of preemption for a state that adopted a standard prior to March 30, 1966, if the state determined its standard will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards. 42 U.S.C. Sec. 7543(b); B-334309, Nov. 30, 2023. Only California can qualify for preemption waivers under this section because it is the only state that adopted a standard prior to March 30, 1966. B-334309, Nov. 30, 2023. The EPA Administrator must approve the waiver unless the Administrator makes any one of three findings set forth in the statute: (1) the determination of the state is arbitrary and capricious; (2) the state does not need state standards to meet compelling and [[Page S1627]] extraordinary conditions; or (3) the state standards and accompanying enforcement procedures are not consistent with 42 U.S.C. Sec. 7521(a) (EPA standards for emissions from new motor vehicles or new motor vehicle engines). 42 U.S.C. Sec. 7543(b)(1)(A)-(C); B-334309, Nov. 30, 2023. When the EPA Administrator receives a waiver request, they must provide notice of a public hearing and comment period. 42 U.S.C. Sec. 7543(b); B-334309, Nov. 30, 2023; EPA, Vehicle Emissions California Waivers and Authorizations, available at https://www.epa.gov/state-and-local-transportation/vehicle- emissions-california-waivers-and-authorizations (last visited Mar. 5, 2025) (California Waivers and Authorizations Website). The Administrator makes a decision on the waiver and publishes a notice of their decision and reasons in the Federal Register. B-334309, Nov. 30, 2023. The Clean Air Act provides similar procedures for the EPA Administrator to authorize California to adopt and enforce emission control standards for certain nonroad engines or vehicles. 42 U.S.C. Sec. 7543(e)(2)(A). The Administrator must authorize California to adopt and enforce such standards if California determined that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards, unless the Administrator makes any one of three findings set forth in the statute: (1) California's determination is arbitrary and capricious; (2) California does not need its own standards to meet compelling and extraordinary conditions; or (3) the California standards and accompanying enforcement procedures are not consistent with section 7543. Id. Like the waiver process under section 7543(b), the authorization process under section 7543(e)(2)(A) involves providing notice of a public hearing and comment period and publishing notice of the decision. See id.; California Waivers and Authorizations Website. EPA Notices of Decision At issue here are the following EPA Clean Air Act preemption waiver Notices of Decision: California State Motor Vehicle and Engine Pollution Control Standards; Heavy-Duty Vehicle and Engine Emission Warranty and Maintenance Provisions; Advanced Clean Trucks; Zero Emission Airport Shuttle; Zero-Emission Power Train Certification; Waiver of Preemption; Notice of Decision, 88 Fed. Reg. 20688 (Apr. 6, 2023) (Advanced Clean Trucks Waiver Notice); California State Motor Vehicle and Engine and Nonroad Engine Pollution Control Standards; The ``Omnibus'' Low NO X Regulation; Waiver of Preemption; Notice of Decision, 90 Fed. Reg. 643 (Jan. 6, 2025) (Low NO X Waiver Notice); and California State Motor Vehicle and Engine Pollution Control Standards; Advanced Clean Cars II; Waiver of Preemption; Notice of Decision, 90 Fed. Reg. 642 (Jan. 6, 2025) (Advanced Clean Cars II Waiver Notice). In the Advanced Clean Trucks Waiver Notice, the EPA Administrator granted two separate requests for preemption waivers regarding four California regulations for heavy-duty on-road vehicles and engines. 88 Fed. Reg. at 20688. The Low NO X Waiver Notice announced the EPA Administrator's December 17, 2024, decision granting California a preemption waiver for regulations applicable to new 2024 and subsequent model year California on-road heavy- duty vehicles and engines and authorizing regulations regarding off-road diesel engines. 90 Fed. Reg. at 643-44. The Advanced Clean Cars II Waiver Notice announced the EPA Administrator's December 17, 2024, decision granting California a preemption waiver for regulations applicable to new 2026 and subsequent model year California on-road light- and medium-duty vehicles. 90 Fed. Reg. at 642. Congressional Review Act (CRA) CRA, enacted in 1996 to strengthen congressional oversight of agency rulemaking, requires federal agencies to submit a report on each new rule to both houses of Congress and the Comptroller General for review before the rule can take effect. 5 U.S.C. Sec. 801(a)(1)(A). The report must c

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CONGRESSIONAL REVIEW ACT Congressional Record, Volume 171 Issue 44 (Monday, March 10, 2025) [Congressional Record Volume 171, Number 44 (Monday, March 10, 2025)] [Senate] [Pages S1626-S1628] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] CONGRESSIONAL REVIEW ACT Mr. WHITEHOUSE. Mr. President, as my colleagues know, since 1996, the Congressional Review Act, 5 U.S.C. 801-808, has provided an important tool for Congress to provide a check on certain Agency rules. Pursuant to the statute, the Government Accountability Office polices whether an Agency action is or is not a rule for purposes of the Congressional Review Act. Under that authority, in 2023, GAO decided that certain Environmental Protection Agency actions under the Clean Air Act relating to California's emission control standards were not a rule for purposes of the Congressional Review Act. Late last month, the Trump administration Environmental Protection Agency submitted three Biden administration actions as rules under the Congressional Review Act. These actions once again related to California's emission control standards. Along with my colleagues from California, Senators Padilla and Schiff, I wrote the GAO to confirm whether or not these three actions were rules for purposes of the Congressional Review Act. On Thursday came GAO's response. They are not. Referring back to its 2023 decision, GAO concluded that ``our prior analysis and conclusion in B-334309 that the Advanced Clean Car Program Waiver Notice was not a rule for purposes of CRA because it was an order under APA would apply to the three notices at issue here.'' To help complete the Senate's record of this matter, I ask unanimous consent that the text of GAO's letter be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: B-337179 March 6, 2025 Congressional Requesters Subject: Observations Regarding the Environmental Protection Agency's Submission of Notices of Decision on Clean Air Act Preemption Waivers as Rules Under the Congressional Review Act This letter responds to your request for a legal decision as to whether the Environmental Protection Agency's (EPA) Clean Air Act preemption waivers and Notices of Decision that EPA submitted as rules to Congress and GAO in late February 2025 \1\ are rules subject to the Congressional Review Act (CRA).\2\ Our regular practice is to issue decisions on actions that agencies have not submitted to Congress as rules under CRA in order to further the purposes of CRA by protecting Congress's CRA review and oversight authorities.\3\ In this case, we are presented with a different situation because the actions were submitted as rules under the CRA, and it is not one in which we normally issue a legal decision. However, we do have prior caselaw that addressed the applicability of CRA to Clean Air Act preemption waivers, B-334309, Nov. 30, 2023, and EPA's recent submission is inconsistent with this caselaw. Therefore, we are providing you with our views and analysis of preemption waivers under the Clean Air Act that may be helpful as Congress considers how to treat these Notices of Decision and the application of CRA procedures. As background to these issues, we issued a legal decision concluding that a Clean Air Act preemption waiver was not a rule subject to CRA but was instead an adjudicatory order. See B-334309, Nov. 30, 2023. Furthermore, we explained that even if the waiver were to satisfy the APA definition of a rule, it would be considered a rule of particular applicability and, therefore, would still not be subject to CRA's submission requirement because of CRA's exclusions. Id. For the three Notices of Decision announcing the waivers at issue here, EPA stated that the Notices of Decision were not rules under CRA, and, in the underlying decision documents for two of those notices, cited to our 2023 decision in support of that statement. However, EPA submitted them as rules to GAO and Congress without any explanation of this discrepancy. We reached out to EPA on February 20, 2025, for clarification on the submission of the Notices of Decision at issue here because the notices themselves stated that CRA did not apply.\4\ After receiving your request, we followed our regular procedure \5\ and sent a formal letter to EPA on February 25, 2025, seeking factual information and the agency's legal views on this matter.\6\ Although EPA resubmitted the Notices of Decision to GAO on February 27, 2025, with additional information in the corresponding CRA reports, the agency still did not address the statements in the notices regarding the inapplicability of the CRA,\7\ and, to date, EPA has not further responded to our letter. As explained more fully below, our view is that the analysis and conclusions in our 2023 Clean Air Act preemption waiver decision would also apply to the Notices of Decision recently submitted as rules to Congress by EPA. BACKGROUND Clean Air Act The Clean Air Act generally preempts states from adopting or enforcing emission control standards for new motor vehicles or new motor vehicle engines. See 42 U.S.C. Sec. 7543(a); B-334309, Nov. 30, 2023. However, the Clean Air Act requires the EPA Administrator to grant a waiver of preemption for a state that adopted a standard prior to March 30, 1966, if the state determined its standard will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards. 42 U.S.C. Sec. 7543(b); B-334309, Nov. 30, 2023. Only California can qualify for preemption waivers under this section because it is the only state that adopted a standard prior to March 30, 1966. B-334309, Nov. 30, 2023. The EPA Administrator must approve the waiver unless the Administrator makes any one of three findings set forth in the statute: (1) the determination of the state is arbitrary and capricious; (2) the state does not need state standards to meet compelling and [[Page S1627]] extraordinary conditions; or (3) the state standards and accompanying enforcement procedures are not consistent with 42 U.S.C. Sec. 7521(a) (EPA standards for emissions from new motor vehicles or new motor vehicle engines). 42 U.S.C. Sec. 7543(b)(1)(A)-(C); B-334309, Nov. 30, 2023. When the EPA Administrator receives a waiver request, they must provide notice of a public hearing and comment period. 42 U.S.C. Sec. 7543(b); B-334309, Nov. 30, 2023; EPA, Vehicle Emissions California Waivers and Authorizations, available at https://www.epa.gov/state-and-local-transportation/vehicle- emissions-california-waivers-and-authorizations (last visited Mar. 5, 2025) (California Waivers and Authorizations Website). The Administrator makes a decision on the waiver and publishes a notice of their decision and reasons in the Federal Register. B-334309, Nov. 30, 2023. The Clean Air Act provides similar procedures for the EPA Administrator to authorize California to adopt and enforce emission control standards for certain nonroad engines or vehicles. 42 U.S.C. Sec. 7543(e)(2)(A). The Administrator must authorize California to adopt and enforce such standards if California determined that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards, unless the Administrator makes any one of three findings set forth in the statute: (1) California's determination is arbitrary and capricious; (2) California does not need its own standards to meet compelling and extraordinary conditions; or (3) the California standards and accompanying enforcement procedures are not consistent with section 7543. Id. Like the waiver process under section 7543(b), the authorization process under section 7543(e)(2)(A) involves providing notice of a public hearing and comment period and publishing notice of the decision. See id.; California Waivers and Authorizations Website. EPA Notices of Decision At issue here are the following EPA Clean Air Act preemption waiver Notices of Decision: California State Motor Vehicle and Engine Pollution Control Standards; Heavy-Duty Vehicle and Engine Emission Warranty and Maintenance Provisions; Advanced Clean Trucks; Zero Emission Airport Shuttle; Zero-Emission Power Train Certification; Waiver of Preemption; Notice of Decision, 88 Fed. Reg. 20688 (Apr. 6, 2023) (Advanced Clean Trucks Waiver Notice); California State Motor Vehicle and Engine and Nonroad Engine Pollution Control Standards; The ``Omnibus'' Low NO X Regulation; Waiver of Preemption; Notice of Decision, 90 Fed. Reg. 643 (Jan. 6, 2025) (Low NO X Waiver Notice); and California State Motor Vehicle and Engine Pollution Control Standards; Advanced Clean Cars II; Waiver of Preemption; Notice of Decision, 90 Fed. Reg. 642 (Jan. 6, 2025) (Advanced Clean Cars II Waiver Notice). In the Advanced Clean Trucks Waiver Notice, the EPA Administrator granted two separate requests for preemption waivers regarding four California regulations for heavy-duty on-road vehicles and engines. 88 Fed. Reg. at 20688. The Low NO X Waiver Notice announced the EPA Administrator's December 17, 2024, decision granting California a preemption waiver for regulations applicable to new 2024 and subsequent model year California on-road heavy- duty vehicles and engines and authorizing regulations regarding off-road diesel engines. 90 Fed. Reg. at 643-44. The Advanced Clean Cars II Waiver Notice announced the EPA Administrator's December 17, 2024, decision granting California a preemption waiver for regulations applicable to new 2026 and subsequent model year California on-road light- and medium-duty vehicles. 90 Fed. Reg. at 642. Congressional Review Act (CRA) CRA, enacted in 1996 to strengthen congressional oversight of agency rulemaking, requires federal agencies to submit a report on each new rule to both houses of Congress and the Comptroller General for review before the rule can take effect. 5 U.S.C. Sec. 801(a)(1)(A). The report must c