The U.S. government has filed its response to California’s claim that Congress was legally out of line when it yanked waivers from the Environmental Protection Agency (EPA) that permitted various transportation-related emission policies in that state, as the two parties head toward an October 30 court hearing.
Last week’s filing by attorneys for the Environment and Natural Resources Division of the Department of Justice (DOJ) came as part of a motion for the U.S. District Court for the Northern District of California to dismiss the case brought by California and several other states that was filed in June, challenging the Congressional action.
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That suit challenged the Congressional vote, later signed by President Trump, that overrode three waivers granted by the EPA to the California Air Resources Board allowing the implementation of California’s Advanced Clean Trucks rule, the Omnibus NOx (nitrogen oxide) rule and Clean Cars II.
At its core, California’s argument is that waivers are not subject to the Congressional Review Act, which Congress used to override the waivers.
Waiver requests by California over the years have not normally been submitted by the EPA to Congress for review.
But EPA administrator Lee Zeldin put the waivers through to Congress–even though they already had been granted under the Biden administration without such submissions–resulting in the vote taken under the CRA to deny them.
Waivers equal rules or maybe not
The request for dismissal of the case filed by the DOJ is focused on procedure. There are numerous references to whether the waivers are “rules” as defined under the CRA, or whether they are in a separate category not covered by that legislation.
One argument made by the DOJ is that the actions of Congress under the CRA are not reviewable in court. “The CRA expressly precludes review,” the DOJ brief says, quoting from the CRA itself: “No determination, finding, action, or omission under this chapter shall be subject to judicial review.”
“That jurisdiction-stripping provision disposes of this case in full,” the DOJ adds.
Congressional prerogatives also are not reviewable, the DOJ said. Citing a precedent, the government argues that “Congress, after all, is the exclusive judge of its own legislative procedures as a matter of constitutional prerogative.”
And as to whether the waivers granted by the EPA are waivers or rules, tDOJ argues that it isn’t relevant.
“At least for purposes of this lawsuit, it makes no difference whether the waivers are best categorized as ‘rules’ or ‘orders’ within the meaning of the CRA,” the DOH said. “Either way, they have now been invalidated by Congress.”
In a discussion of whether the power to grant waivers was correctly delegated to the EPA, the DOJ argues that Congress had never given up its ultimate power. “Congress directly shouldered legislative power and responsibility by voting on whether to abrogate the waivers,” the DOJ says in its filing. “That is the antithesis of a nondelegation problem.”
No love for the parliamentarian
A key argument made by California is that the Senate parliamentarian and the General Accounting Office both offered opinions that the waivers were not subject to Congressional review.
But the DOJ argument essentially gives the parliamentarian the back of its hand. Noting that the California lawsuit uses the word parliamentarian 113 times in its complaint, the DOJ diminishes the role of that office. “The Senate parliamentarian is not mentioned in the Constitution, and thus does not have the last word on Senate procedure—the Senate does,” the DOJ said.
Even if the EPA had not submitted the waivers for review, the DOJ argues the Congress could have taken the identical steps it did in overturning them. “Nor, for that matter, does EPA have any constitutional role in the enactment of legislation,” the DOJ brief says. “Congress could have passed laws disapproving of these waivers without any involvement from EPA, or by explicitly disagreeing with EPA’s interpretation of the CRA.” It adds that Congress does that “routinely.”
California has not withdrawn the now waiverless rules in the wake of the Congressional action. After the CRA vote, the California Air Resources Board (CARB) did make minor amendments to the Advanced Clean Truck program. The changes mostly redefine various methods for generating the credits that under the ACT would allow a company to reach the regulatory milestones needed to comply with the law.
The ACT is a series of standards going out roughly 20 years by which OEMs would need to sell an increasing percentage of zero emission vehicles (ZEVs) into the state.
Making the California dispute with the federal government more complicated are the number of other states that have vowed to follow California’s lead. Ten of them are plaintiffs with the Golden State in their lawsuit against the federal government.
Clean Truck Rule dispute operating in parallel
Keeping the litigation related to the waiver rescission straight without a scorecard can be challenging.
The other California-based lawsuit tied to the Congressional action on the ACT will impact the future of the Clean Truck Partnership.
That deal between California and several truck OEMs saw California easing up on some regulations, including the NOx rule under the Omnibus NOx rule, in exchange for OEM agreement on other parts of the ACT and a pledge not to challenge them in court.
Now tethered to that deal, the OEMs see a mandate to sell an increasing number of ZEV vehicles into markets that for now and maybe into the future will have no mechanism to compel those purchases absent the ACT..
The lawsuit filed by the OEMs, with Daimler North America as the lead plaintiff, seeks to extricate the equipment makers from the deal they signed because of the potential demise in the ACT that underpinned the pact. It is a situation they have called “impossible.”
The latest development in that case, which is in the U.S. District Court for the Eastern District of California, is that the OEMs are asking the court to expedite a hearing to October 17 on their motion to stop CARB from enforcing any aspect of the ACT.
The federal government is seeking to be an intervenor in that case on behalf of the OEM plaintiffs.
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