The Environmental Protection Agency has sent to Congress for review several vehicle emission-related waivers that the agency granted to California under the Biden administration.
It’s being billed as the first step toward revoking the waivers that allowed California to proceed with the Advanced Clean Trucks Rule, the Omnibus NOx rule and the Clean Cars II rule. California has sought to impose state rules that are tighter than federal regulations.
Chris Spear, president of the American Trucking Associations, hailed the move in a prepared statement. “Thanks to the leadership of the Trump Administration, Congress now has one more avenue available to reclaim the keys from Sacramento and restore common sense to our nation’s environmental policies,” he said.
But it isn’t quite that clear. Does Congress have the right to review a waiver as opposed to a rule that went through the federal rulemaking process? That’s the question that is likely to be litigated following the EPA’s move.
EPA sent or “transmitted” the previously approved actions to Congress under the Congressional Review Act (CRA).
The CRA requires agencies that have adopted a rule that has gone through the rulemaking process to send it to Congress. There is then a 60-day window in which Congress can vote approval or disapproval of the rule. The latter can lead to a rule being overturned if it passes both houses of Congress and is signed by the president – something said to be rare.
Definition of waiver versus rule
The question is, does a waiver have the same standing under the CRA as a rule?
Glen Kedzie isn’t sure. Kedzie, a former ATA official who is now a principal with E&E Strategies, said the CRA “applies to regulations.”
“The CRA adopted the broadest definition of a rule under the Administrative Procedure Act,” he said in an interview with FreightWaves, referring to another federal statute that governs the implementation of federal rules.
Kedzie noted that when a waiver is published in the Federal Register, it is described as an agency action, rather than a rule. “It says notice of decision,” Kedzie said. “So is a waiver a rule, or is it not a rule?”
If a waiver is not a rule, Congress’ ability to overturn it under the CRA may be in doubt.
Kedzie summed up the issue: “It is very complicated and there’s not a lot of black and white. There’s a lot of gray in the whole CRA process.”
The Biden administration did not send the waivers in question to Congress. Submitting them would have been essentially an acknowledgment that waivers were required to meet the mandates of the CRA, and that is what is now in question.
GAO related opinion will likely be an issue
Kedzie said complicating the issue is an opinion provided by the General Accounting Office in November 2023 that weighed in on the question of whether a waiver was subject to the CRA. At issue was the waiver granted by the EPA for California’s Advanced Clean Cars I rule. The next step in the state’s effort is Clean Cars II – one of the waivers EPA has sent to Congress for review.
In the opinion signed by Edda Emmanuelli Perez, the GAO general counsel, she said the waiver for Clean Cars was an “adjudicatory order.” And adjudicatory orders are not subject to Congressional review under the CRA, she wrote.
In a brief statement supplied to FreightWaves by the California Air Resources Board, which approved the rules in question and made the waiver request to EPA, an agency spokesman said the transmission of the waiver requests is “doing what no EPA under Democratic or Republican administrations in 50 years has ever done, and what the GAO has confirmed does not comply with the law” – an apparent reference to the GAO decision on the need for congressional reviews of waivers.
Fifty years is approximately the length of time California has had under the Clean Air Act to seek waivers that allow it to implement tighter environmental standards than the rest of the country.
In the news release announcing the waiver transmission, EPA Administrator Lee Zeldin gave no hint the agency believes the submission to Congress isn’t in compliance with the law.
“The Biden Administration failed to send rules on California’s waivers to Congress, preventing Members of Congress from deciding on extremely consequential actions that have massive impacts and costs across the entire United States,” Zeldin said.
Treasure chest ready to fight
Kedzie noted that California has set aside at least $25 million in funds to fight various Trump administration initiatives. “So they’re raring to go and they will be front and center on any litigation involved in the withdrawal of these waivers,” he said.
The Advanced Clean Trucks rule sets goals and mandates that OEMs must meet in their sales of trucks in California on the way to the state’s goal of a complete zero-emission vehicle fleet by 2045.
The Omnibus NOx rule deals with nitrogen oxide emissions from trucks. The initial rules under the Omnibus were viewed as tighter than federal standards.
But last year, CARB and the Engine Manufacturers Association agreed to a pact in which the state would go back to the federal rules and in return the engine makers wouldn’t challenge California’s emissions rules in court.
The two big questions hanging over these programs beyond the recent EPA move are, first, can the Advanced Clean Trucks rule succeed if the Advanced Clean Fleets rule is dead, thereby eliminating the mandate for fleets to buy zero-emission vehicles? And two, if the OEMs are struggling to sell ZEVs in California in part because of the absence of the ACF, how binding is the association’s deal with California?
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