Inside the Congressional Review Act and EPA Waivers

New EPA Administrator Lee Zeldin has sent three EPA waivers of California emissions regulations to Congress and the Government Accounting Office (GAO) for potential action under the Congressional Review Act (CRA). The CRA requires all federal agencies to transmit rules to Congress before they become final. Congress may then choose to utilize the special procedures of the CRA to overturn those rules and prevent the federal agency from adopting a substantially similar rule.

The Biden Administration had not sent the Advanced Clean Trucks (ACT) Rule, Omnibus NOx rule and Clean Cars II Rule to Congress – because the EPA at that time considered its waiver decisions as “orders” rather than “rules.” On its face, the CRA does not apply to agency orders.

But does this really make a difference? As ICSA has explained, California has a unique exemption under the federal Clean Air Act to adopt emissions regulations which differ from federal standards. A waiver from the EPA is needed. When EPA waivers allowing California emissions regulations – the three above and the Advanced Clean Fleets (ACF) Rule (which California withdrew before the Inauguration) – effectively set the standard for the whole country, is that not a rule?