The Senate is set to vote this week on revoking three vehicle emissions waivers in California, in a controversial move that the chamber’s parliamentarian says Republican lawmakers may not have the right to do.
Senate Minority Leader Chuck Schumer called the planned vote “the nuclear option.”
The three waivers the Senate is looking to revoke set stricter vehicle emissions standards than federal regulations. Two waivers relate to reducing tailpipe emissions from medium and heavy-duty vehicles, as well as limiting smog pollution from trucks.
The last is what’s frequently called California’s “EV mandate,” a rule that aims to phase-out gas powered cars and require all new vehicle sales in California be zero emissions by 2035. The rule to phase out gas powered vehicles goes into effect in 2026.
California was granted the ability to enact stricter vehicle emissions standards than the federal government under the Clean Air Act in a process that involves receiving a waiver from the Environmental Protection Agency if the regulations meet certain requirements. The three waivers in question were approved by the Biden administration’s EPA in 2024.
Republicans argue that the Congressional Review Act gives Congress the ability to overturn rules passed by federal agencies — including the waivers — by a simple majority vote, but nonpartisan government watchdogs do not agree. The Government Accountability Office and the Senate Parliamentarian found that the Congressional Review Act could not be used to vote down California’s waivers because the waivers are not the same as rules, according to Senate Democrats.
Senate Majority Leader John Thune, who supports revoking the waivers, said in remarks Tuesday on the Senate floor that “the EPA has submitted the waivers to Congress as rules – which is all that Congress has ever needed to decide to consider something under the Congressional Review Act.”
But Democrats say such a vote is illegal, and argue overruling the Parliamentarian and bypassing the filibuster sets a dangerous precedent.
“If they invoke this nuclear option now, they should expect that a future Democratic government will have to revisit decades worth of paltry corporate settlements, deferred prosecution agreements, and tax rulings that were overly favorable to multinationals and ultra-wealthy individuals,” said Senate Finance Committee Ranking Member Ron Wyden, an Oregon Democrat, in a statement.
The California Air Resources Board, a state body that designed the vehicle emissions regulations and requested the waivers, measures and sets pollution standards in California to comply with the Clean Air Act. It claims that the state has applied for over 100 waivers that have resulted in vehicles being 99% cleaner in terms of pollution, compared to vehicles from 1970. The board says they have never had a waiver revoked in the 50 years it has had the ability to enact them.
“The law is that the Clean Air Act says California can set its own standards if they are more stringent, more environmentally protective than whatever the federal government standard is,” said Mary Nichols, who was the California Air Resources Board chairwoman from 1975-1982 and then from 2007-2020. Nichols told CBS News that if Congress uses Congressional Review to revoke the waivers, the state of California will sue the federal government.
California state Attorney General Rob Bonta told Politico in March that his office is prepared for a legal fight and said, “We don’t think it’s an appropriate use of the Congressional Review Act, and we’re prepared to defend ourselves if it’s wrongfully weaponized.”
Voting down California’s waivers is expected to impact cities and states around the country, as 16 additional states and the District of Columbia have adopted California’s vehicle standards.
Republicans have staunchly criticized California’s emissions rules, especially the one aimed at driving the auto industry toward electric vehicles.
Sen. Shelley Moore Capito, a West Virginia Republican who chairs the Senate Environmental and Public Works Committee, said this week the rules amount to “forcing certain states and certain consumers to purchase a vehicle that they may not want or that they can’t find.”
The auto industry has been pushing for Republicans to revoke California’s waivers. The Speciality Equipment Market Association represents the automotive aftermarket industry where a third of its businesses are dependent on internal combustion engines and see the waivers and expansion of electric vehicles as a threat to business.
“The death of California’s waiver will give life to more than 330,000 American jobs and preserves over $100 billion of economic impact to the nation’s economy,” the association said in a statement.
But environmental groups are alarmed by the unprecedented use of the Congressional Review Act to revoke the waivers. The Environmental Defense Fund said in a statement that a vote by Congress would undermine California’s ability to address pollution.
“Using the CRA on EPA’s preemption waivers could create a precedent for sweeping congressional nullifications of other executive actions that are outside the scope of the CRA – from decisions about Americans’ eligibility for Social Security, to waivers for state Medicaid or veterans’ health benefits, to actions related to energy infrastructure projects,” the group said.
