PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED STATES CODE, OF THE RULE SUBMITTED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION RELATING TO "FEDERAL MOTOR...

On 2025-05-21, Senator Roger Marshall (R-KS) delivered a floor speech titled "PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED STATES CODE, OF THE RULE SUBMITTED BY THE NAT" in the Senate.

PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED STATES CODE, OF THE RULE SUBMITTED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION RELATING TO "FEDERAL MOTOR...

Congressional Record, Volume 171 Issue 86 (Wednesday, May 21, 2025) [Congressional Record Volume 171, Number 86 (Wednesday, May 21, 2025)] [Senate] [Pages S3025-S3052] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED STATES CODE, OF THE RULE SUBMITTED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION RELATING TO ``FEDERAL MOTOR VEHICLE SAFETY STANDARDS; FUEL SYSTEM INTEGRITY OF HYDROGEN VEHICLES; COMPRESSED HYDROGEN STORAGE SYSTEM INTEGRITY; INCORPORATION BY REFERENCE'' The PRESIDING OFFICER. The clerk will report the joint resolution by title. The senior assistant legislative clerk read as follows: A joint resolution (S.J. Res. 55) providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Highway Traffic Safety Administration relating to ``Federal Motor Vehicle Safety Standards; Fuel System Integrity of Hydrogen Vehicles; Compressed Hydrogen Storage System Integrity; Incorporation by Reference''. The PRESIDING OFFICER. The Senator from Rhode Island. Climate Change Mr. WHITEHOUSE. Mr. President, let me describe what I think is going on here on the Senate floor. Today is an unusual and interesting day. What we understood the plan was, was that the majority was going to move to the Congressional Review Act regarding the California clean air rule in an effort to overrule the Clean Air Act rule for the fossil fuel industry, which the majority so diligently serves. The problem with that is that the Parliamentarian has ruled that the Congressional Review Act does not apply to the waiver that California gets, allowing it to do its own clean air standard. So they had a problem. The problem was that Democrats were going to make a point of order saying: Hey, you can't do that. We have argued this matter. We both went before the Parliamentarian. We made our case. We filed our pleadings. We got a decision. In our view, it was not even a close call of a decision. But that is in our view. And what you are really doing here is, for the fossil fuel industry, going nuclear, overruling the Senate Parliamentarian to accomplish a legislative task--to amend, basically, the Congressional Review Act--and then open the door for that to undo a 30-year tradition of California and other States like Rhode Island being able to operate under better clean air standards and the vehicle emissions standards than the Federal Government may be willing to accomplish. So that is where we thought we were. Now, what is happening is that we have gone to a different CRA, this one having to do with hydrogen vehicles. The minority has 5 hours. There is a total of 10 hours, evenly divided. I suspect the majority is not going to use much of that time. But the minority has 5 hours to talk about what is going on. We are now in the 5-hour debate period on the hydrogen vehicle CRA, as the majority moves toward making its play on the California clean air standard. This is a slight bump in the road for them, but our understanding is that there is a new plan. The new plan is, at the conclusion of our 5 hours, to make a new point of order that allows them to do the California CRA effort and create a new way to get around the terms of the Congressional Review Act. The predicament for them is that the Congressional Review Act, as a law--passed by the Senate, passed by the House, signed into law by the President--says: In the Senate, which is where we are, when a committee is discharged from further consideration of a joint resolution, which is where we are, all points of order against the joint resolution are waived. They intend to create a Senate exception to that. We expect the Parliamentarian will say, when they offer this point of order, based on the statute, based on the law, well, that is not in order. Then they will go nuclear on this. They will bring everybody back to, by a simple majority vote of 51, overrule the Parliamentarian as to that new point of order. The purpose is to create a point of order that allows a bypass of the Parliamentarian's decision--a very sound one, a clear one, in my view, based on precedent, law, history, tradition, all of it--that the CRA effort to undermine California's clean air standard does not work under Senate rules. [[Page S3026]] In a sense, this is like a double nuclear option. They are going to overrule the Parliamentarian to create a new point of order under the CRA that will amend, in effect, the CRA. It will make the law regarding this no longer effective because they will come in and overrule the Parliamentarian. And, then, even though the Parliamentarian's ruling is that you can't use the CRA to go after the California waiver, they don't have to overrule that directly because they will have, by overruling the Parliamentarian, created this little end-around. So I guess this is a demonstration of how many hoops the Senate majority is willing to jump through for their fossil fuel supports. And it ends at the same point, which is the purpose of the exercise. It ends with the Parliamentarian being overruled, and it ends with an attack on California and other sovereign States' ability to require cleaner air and lower vehicle emissions in their States. Now, why does that matter? Well, obviously, if you are the fossil fuel industry, one of the things you sell is gasoline, and one of the things that the California clean air and emissions standards do is to require the auto industry to make automobiles more efficient--maybe even make them hybrid, maybe even make them electric. And whether they are more efficient or hybrid or electric, it all ends in the same place for the fossil fuel industry, which is: We can't sell as much polluting gasoline, and we want to sell more gasoline, and we don't like clean air standards that get in the way of us selling as much gasoline as we want to. So we are here through this complex parliamentary rigmarole to overrule the Parliamentarian to get around her ruling that the Congressional Review Act only covers rulemakings, not the California waiver and other things. One of the problems with that is that--you know, if you give a mouse a cookie--it doesn't stop here; it opens the Congressional Review Act, which was very specifically designed to address rulemakings within a period of time after the conclusion of the rulemaking. And this would allow essentially anything you could put into the Federal Register to be submitted to Congress for Congressional Review Act review, no matter when it was done. All you have to do is re-up it with a submission and send it in to Congress, the California waiver being an example of that in the sense that it has been around for about 30 years now. So one of the Congressional Review Act's limitations was it had a brief time window in which you were allowed to come to Congress to disapprove a rule, and that time period is now blown to smithereens if they go through with this parliamentary scheme. The second thing is, it had to be a rulemaking; that it added a process at the end of the Administrative Procedure Act rulemaking, when the rule was finally enacted into law as an Agency rule. You always had the ability to go to court and sue and say that the Administrative Procedure Act was violated, it is arbitrary and capricious, was a violation of the law or whatever. This gave it political extra opportunity, which was to jump straight to Congress and just ask us to disapprove it. You don't have to prove, then, that there is anything wrong with the rule; just, politically, we don't like it so we are going to jam it. And so, when you expand beyond just APA rulemaking to essentially any Executive decision that can be dumped into the Federal Register to create a submission that can then be brought here, you have opened a massive, massive array of Executive actions to Congressional Review Act disapproval. As my colleagues have said, it could be as simple as a lease, as simple as a permit, as simple as a license. Essentially, any Executive decision since the passage of the Congressional Review Act can now be brought here on a purely political basis and--boom--blown up. If my colleagues on the other side don't think that we will use this if they do this, they have taken leave of their senses. Of course we will. They are about to create a new Senate in which the CRA can be used for an immense array of purposes, well beyond what the actual law says. (Mr. SHEEHY assumed the Chair.) They don't have to be doing this. Let's be clear. They do not have to be doing this. There are other ways to serve their fossil fuel industry friends in the industry's desire to attack the vehicle emissions standards, the clean air standards. There are a whole bunch of them. One, they could do it administratively. In fact, in 2019, the Trump administration withdrew a previously granted Clean Air Act waiver. And to do that, it made findings per a Clean Air Act process--administrative findings per a Clean Air Act process--as to the three criteria established under the Clean Air Act that determine whether a waiver application gets granted or denied. So they already tried that once. They know that that is an avenue. Why did they not want to do that? Well, for starters, it is amenable to challenge if it is done unlawfully, if it is done arbitrarily and capriciously--the magic words of administrative mischief. And you end up in a forum like a court where you have to defend your facts, unlike here where all you have to do is have a majority and ram it through. So they didn't want to do it administratively, but they could have, and they already tried in the last Trump administration. What else could they have done? Well, this is California's Clean Air Act standard. They could have gone and negotiated with the sovereign State of California and the other sovereign States that have attached themselves to the cleaner standa

Referenced legislation: SJRES55, SJRES55, SRES242, SRES243, SRES244, SRES245, S1593, S1804, S1818