Illustration: Sarah Grillo/Axios
The Republican effort to repeal California's waivers that allow it to set its own vehicle emissions standards has sparked a complex debate over how the government defines a rule.
Why it matters: Tossing the state's regulations — which effectively ban the sale of new gasoline-powered cars by 2035 — is a major priority for Republicans and much of the auto industry.
Driving the news: Republicans say they hope to use the Congressional Review Act to nix the waiver, likely after Congress' scheduled recess next week.
- That's despite GAO's conclusion that the waivers aren't subject to a repeal resolution.
- "It's still under discussion," Senate EPW Chair Shelley Moore Capito told Axios. "My opinion is that something that's sent up from an agency … is a rule if it's sent up as designated as a rule, which this was."
- Capito and multiple House lawmakers have said they intend to introduce repeal resolutions.
Context: The Clean Air Act lets EPA grant California waivers to set its own vehicle emissions regulations that are more stringent than federal rules, and other states can follow suit.
- The Biden administration used that authority last year to allow California to put out new regulations on cars and heavy-duty trucks.
- But EPA Administrator Lee Zeldin last month sent the Biden waivers to Congress as a formal rule, arguing that they're eligible for speedy repeal under the CRA.
Zoom in: The question is whether the waivers are "rules" that are reviewable under the CRA.
- GAO says they are "adjudicatory orders" as defined by the Administrative Procedure Act and aren't subject to the CRA.
- EPA's action to issue the waivers is "backwards-looking," said Sidney Shapiro, an administrative expert at Wake Forest University School of Law.
Yes, but: Other legal experts argue that EPA's waivers are, in fact, "rules" — and say Congress has the sole authority to make that determination.
- "The fact that every other state in the union can join in distinguishes this from every other adjudicatory order I've ever heard of or seen or that anyone's pointed out in this debate," said Michael Buschbacher, a partner at Boyden Gray.
- His firm has worked on litigation against the waivers.
What's next: Sen. Sheldon Whitehouse, who asked GAO for its opinion, told Axios that the Senate parliamentarian will have to determine "whether it's in order to use a CRA to try to undo an agency decision that is not a rulemaking."
- Republicans could move to overrule the parliamentarian, but "that would be an unusual declaration of war," Whitehouse said.
Between the lines: The CRA bars judicial review, but there's relatively little case law surrounding it, and courts have differing interpretations.
- Shapiro and others say a repeal would nonetheless lead to lawsuits to determine whether Congress has the authority to toss out the waivers via the CRA.
- Repeal could lead to further questions about how California's waiver authority would work in the future, given the CRA's prohibition on agencies making rules that are "substantially the same" as what Congress has repealed.
- "That's the second reason this doesn't work, because now we've got a law that Congress says can't be implemented," Shapiro said.
