[Congressional Record Volume 171, Number 44 (Monday, March 10, 2025)]
[Senate]
[Pages S1626-S1628]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONGRESSIONAL REVIEW ACT
Mr. WHITEHOUSE. Mr. President, as my colleagues know, since 1996, the
Congressional Review Act, 5 U.S.C. 801-808, has
provided an important tool for Congress to provide a check on certain
Agency rules. Pursuant to the statute, the Government Accountability
Office polices whether an Agency action is or is not a rule for
purposes of the Congressional Review Act. Under that authority, in
2023, GAO decided that certain Environmental Protection Agency actions
under the Clean Air Act relating to California's emission control
standards were not a rule for purposes of the Congressional Review Act.
Late last month, the Trump administration Environmental Protection
Agency submitted three Biden administration actions as rules under the
Congressional Review Act. These actions once again related to
California's emission control standards. Along with my colleagues from
California, Senators Padilla and Schiff, I wrote the GAO to confirm
whether or not these three actions were rules for purposes of the
Congressional Review Act. On Thursday came GAO's response. They are
not.
Referring back to its 2023 decision, GAO concluded that ``our prior
analysis and conclusion in B-334309 that the Advanced Clean Car Program
Waiver Notice was not a rule for purposes of CRA because it was an
order under APA would apply to the three notices at issue here.''
To help complete the Senate's record of this matter, I ask unanimous
consent that the text of GAO's letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
B-337179
March 6, 2025
Congressional Requesters
Subject: Observations Regarding the Environmental Protection
Agency's Submission of Notices of Decision on Clean Air
Act Preemption Waivers as Rules Under the Congressional
Review Act
This letter responds to your request for a legal decision
as to whether the Environmental Protection Agency's (EPA)
Clean Air Act preemption waivers and Notices of Decision that
EPA submitted as rules to Congress and GAO in late February
2025 \1\ are rules subject to the Congressional Review Act
(CRA).\2\ Our regular practice is to issue decisions on
actions that agencies have not submitted to Congress as rules
under CRA in order to further the purposes of CRA by
protecting Congress's CRA review and oversight
authorities.\3\ In this case, we are presented with a
different situation because the actions were submitted as
rules under the CRA, and it is not one in which we normally
issue a legal decision. However, we do have prior caselaw
that addressed the applicability of CRA to Clean Air Act
preemption waivers, B-334309, Nov. 30, 2023, and EPA's recent
submission is inconsistent with this caselaw. Therefore, we
are providing you with our views and analysis of preemption
waivers under the Clean Air Act that may be helpful as
Congress considers how to treat these Notices of Decision and
the application of CRA procedures.
As background to these issues, we issued a legal decision
concluding that a Clean Air Act preemption waiver was not a
rule subject to CRA but was instead an adjudicatory order.
See B-334309, Nov. 30, 2023. Furthermore, we explained that
even if the waiver were to satisfy the APA definition of a
rule, it would be considered a rule of particular
applicability and, therefore, would still not be subject to
CRA's submission requirement because of CRA's exclusions. Id.
For the three Notices of Decision announcing the waivers at
issue here, EPA stated that the Notices of Decision were not
rules under CRA, and, in the underlying decision documents
for two of those notices, cited to our 2023 decision in
support of that statement. However, EPA submitted them as
rules to GAO and Congress without any explanation of this
discrepancy.
We reached out to EPA on February 20, 2025, for
clarification on the submission of the Notices of Decision at
issue here because the notices themselves stated that CRA did
not apply.\4\ After receiving your request, we followed our
regular procedure \5\ and sent a formal letter to EPA on
February 25, 2025, seeking factual information and the
agency's legal views on this matter.\6\ Although EPA
resubmitted the Notices of Decision to GAO on February 27,
2025, with additional information in the corresponding CRA
reports, the agency still did not address the statements in
the notices regarding the inapplicability of the CRA,\7\ and,
to date, EPA has not further responded to our letter.
As explained more fully below, our view is that the
analysis and conclusions in our 2023 Clean Air Act preemption
waiver decision would also apply to the Notices of Decision
recently submitted as rules to Congress by EPA.
BACKGROUND
Clean Air Act
The Clean Air Act generally preempts states from adopting
or enforcing emission control standards for new motor
vehicles or new motor vehicle engines. See 42 U.S.C.
Sec. 7543(a); B-334309, Nov. 30, 2023. However, the Clean Air
Act requires the EPA Administrator to grant a waiver of
preemption for a state that adopted a standard prior to March
30, 1966, if the state determined its standard will be, in
the aggregate, at least as protective of public health and
welfare as applicable federal standards. 42 U.S.C.
Sec. 7543(b); B-334309, Nov. 30, 2023. Only California can
qualify for preemption waivers under this section because it
is the only state that adopted a standard prior to March 30,
1966. B-334309, Nov. 30, 2023.
The EPA Administrator must approve the waiver unless the
Administrator makes any one of three findings set forth in
the statute: (1) the determination of the state is arbitrary
and capricious; (2) the state does not need state standards
to meet compelling and
[[Page S1627]]
extraordinary conditions; or (3) the state standards and
accompanying enforcement procedures are not consistent with
42 U.S.C. Sec. 7521(a) (EPA standards for emissions from new
motor vehicles or new motor vehicle engines). 42 U.S.C.
Sec. 7543(b)(1)(A)-(C); B-334309, Nov. 30, 2023.
When the EPA Administrator receives a waiver request, they
must provide notice of a public hearing and comment period.
42 U.S.C. Sec. 7543(b); B-334309, Nov. 30, 2023; EPA, Vehicle
Emissions California Waivers and Authorizations, available at
https://www.epa.gov/state-and-local-transportation/vehicle-
emissions-california-waivers-and-authorizations (last visited
Mar. 5, 2025) (California Waivers and Authorizations
Website). The Administrator makes a decision on the waiver
and publishes a notice of their decision and reasons in the
Federal Register. B-334309, Nov. 30, 2023.
The Clean Air Act provides similar procedures for the EPA
Administrator to authorize California to adopt and enforce
emission control standards for certain nonroad engines or
vehicles. 42 U.S.C. Sec. 7543(e)(2)(A). The Administrator
must authorize California to adopt and enforce such standards
if California determined that California standards will be,
in the aggregate, at least as protective of public health and
welfare as applicable federal standards, unless the
Administrator makes any one of three findings set forth in
the statute: (1) California's determination is arbitrary and
capricious; (2) California does not need its own standards to
meet compelling and extraordinary conditions; or (3) the
California standards and accompanying enforcement procedures
are not consistent with section 7543. Id. Like the waiver
process under section 7543(b), the authorization process
under section 7543(e)(2)(A) involves providing notice of a
public hearing and comment period and publishing notice of
the decision. See id.; California Waivers and Authorizations
Website.
EPA Notices of Decision
At issue here are the following EPA Clean Air Act
preemption waiver Notices of Decision:
California State Motor Vehicle and Engine
Pollution Control Standards; Heavy-Duty Vehicle and Engine
Emission Warranty and Maintenance Provisions; Advanced Clean
Trucks; Zero Emission Airport Shuttle; Zero-Emission Power
Train Certification; Waiver of Preemption; Notice of
Decision, 88 Fed. Reg. 20688 (Apr. 6, 2023) (Advanced Clean
Trucks Waiver Notice);
California State Motor Vehicle and Engine and
Nonroad Engine Pollution Control Standards; The ``Omnibus''
Low NOX Regulation; Waiver of Preemption; Notice
of Decision, 90 Fed. Reg. 643 (Jan. 6, 2025) (Low
NOX Waiver Notice); and
California State Motor Vehicle and Engine
Pollution Control Standards; Advanced Clean Cars II; Waiver
of Preemption; Notice of Decision, 90 Fed. Reg. 642 (Jan. 6,
2025) (Advanced Clean Cars II Waiver Notice).
In the Advanced Clean Trucks Waiver Notice, the EPA
Administrator granted two separate requests for preemption
waivers regarding four California regulations for heavy-duty
on-road vehicles and engines. 88 Fed. Reg. at 20688. The Low
NOX Waiver Notice announced the EPA
Administrator's December 17, 2024, decision granting
California a preemption waiver for regulations applicable to
new 2024 and subsequent model year California on-road heavy-
duty vehicles and engines and authorizing regulations
regarding off-road diesel engines. 90 Fed. Reg. at 643-44.
The Advanced Clean Cars II Waiver Notice announced the EPA
Administrator's December 17, 2024, decision granting
California a preemption waiver for regulations applicable to
new 2026 and subsequent model year California on-road light-
and medium-duty vehicles. 90 Fed. Reg. at 642.
Congressional Review Act (CRA)
CRA, enacted in 1996 to strengthen congressional oversight
of agency rulemaking, requires federal agencies to submit a
report on each new rule to both houses of Congress and the
Comptroller General for review before the rule can take
effect. 5 U.S.C. Sec. 801(a)(1)(A). The report must contain a
copy of the rule, ``a concise general statement relating to
the rule,'' and the rule's proposed effective date. Id. CRA
allows Congress to review and disapprove rules issued by
federal agencies for a period of 60 days using special
procedures. See 5 U.S.C. Sec. 802. If a resolution of
disapproval is enacted, then the new rule has no force or
effect. 5 U.S.C. Sec. 801(b)(1).
CRA adopts the definition of ``rule'' under the
Administrative Procedure Act (APA), which states that a rule
is ``the whole or a part of an agency statement of general or
particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or
describing the organization, procedure, or practice
requirements of an agency.'' 5 U.S.C. Sec. Sec. 551(4);
804(3). However, CRA excludes three categories of APA rules
from coverage: (1) rules of particular applicability; (2)
rules relating to agency management or personnel; and (3)
rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of
nonagency parties. 5 U.S.C. Sec. 804(3).
EPA did not submit CRA reports to Congress or GAO for any
of the Notices of Decision when they were initially issued on
April 6, 2023, and January 6, 2025, and each notice states
that CRA does not apply because the relevant action is not a
rule for purposes of the Act. Advanced Clean Trucks Waiver
Notice, 88 Fed. Reg. at 20726; Low NOX Waiver
Notice, 90 Fed. Reg. at 645; Advanced Clean Cars II Waiver
Notice, 90 Fed. Reg. at 643. In addition, the underlying
decision documents referenced in the Low NOX
Waiver Notice and Advanced Clean Cars II Waiver Notice
include similar statements about the inapplicability of CRA
and cite our 2023 decision determining that a Clean Air Act
preemption waiver notice of decision was not a rule under
CRA. See EPA, California State Motor Vehicle and Engine and
Nonroad Engine Pollution Control Standards; The ``Omnibus''
Low NOX Regulation; Waiver of Preemption; Decision
Document (Dec. 17, 2024) (Low NOX Waiver
Decision), at 95 & n.281; \8\ EPA, California State Motor
Vehicle and Engine Pollution Control Standards; Advanced
Clean Cars II; Waiver of Preemption; Decision Document (Dec.
17, 2024) (Advanced Clean Cars II Waiver Decision), at 189 &
n.504 \9\ (both citing B-334309, Nov. 30, 2023).
EPA subsequently submitted a CRA report for the three
Notices of Decision to Congress and GAO on February 19,
2025.\10\ The House of Representatives and GAO received the
report on February 19, 2025,\11\ and the Senate received the
report on February 20, 2025.\12\ EPA resubmitted the CRA
report to GAO on February 27, 2025.\13\ The resubmitted
report included additional information for each notice,
including the date of the document, the nature of the action
submitted, and proposed effective date.\14\ EPA did not
explain in either submission why the agency was submitting
the notices under CRA given its statement in each notice that
CRA did not apply.\15\
discussion
GAO's 2023 Decision on a Clean Air At Preemption Waiver
Notice of Decision
In B-334309, we examined an EPA Notice of Decision titled
California State Motor Vehicle Pollution Control Standards;
Advanced Clean Car Program; Reconsideration of a Previous
Withdrawal of a Waiver of Preemption; Notice of Decision
(Advanced Clean Car Program Waiver Notice). 87 Fed Reg. 14332
(Mar. 14, 2022). This Notice of Decision rescinded EPA's 2019
withdrawal of a 2013 preemption waiver for California's
greenhouse gas emissions standards and zero emission vehicle
sale mandate, thereby reinstating the waiver. Id. at 14332;
B-334309, Nov. 30, 2023.
We determined that the Advanced Clean Car Program Waiver
Notice was not a rule under CRA because it did not meet the
APA definition of a rule. We concluded that the notice was,
instead, an ``order'' under APA. APA defines an order as the
``the whole or a part of a final disposition, whether
affirmative, negative, injunctive, or declaratory in form, of
an agency in a matter other than rule making but including
licensing.'' 5 U.S.C. Sec. 551(6). APA further defines
``licensing'' to include an agency granting or revoking a
license, an ``license'' to include an agency approval,
statutory exemption, or other form of permission. 5 U.S.C.
551(8), (9). An agency action that constitutes an order under
APA is not a rule under the statute and , therefore, is not a
rule under CRA. B-334309, Nov. 30, 2023 (citing B-334995,
July 6, 2023; B-334400, Feb. 9, 2023; B-332233, Aug. 13, 2020
(rules and orders are ``mutually exclusive'')).
We explained that an adjudicatory order is a case-specific,
individual determination of a particular set of facts that
has immediate effect on the individual(s) involved. B-334309,
Nov. 30, 2023 (citing United States v. Florida East Coast
Railway Co., 410 U.S. 224, 245-46 (1973); Neustar, Inc. v.
FCC, 857 F.3d 886, 893 (D.C. Cir. 2017); Yesler Terrace
Community Council v. Cisneros, 37 F.3d 442, 448 (9th Cir.
1994)). In contrast, a rule is a broad application of general
principles that is prospective in nature. B-334309, Nov. 30,
2023 (citing Florida East Coast Railway Co., 410 U.S. at 246;
Neustar, 857 F.3d at 895; Yesler Terrace Community Council,
37 F.3d at 448).
We concluded that the Advanced Clean Car Program Waiver
Notice met the APA definition of an order because the notice
determined that California was not preempted from enforcing
its Advanced Clean Car Program and therefore made a ``final
disposition'' granting California a ``form of permission'' as
described in the APA definition. B-334309, Nov. 30, 2023
(citing 5 U.S.C. 551(6), (8), (9)). We noted that the notice
was particular to California's Advanced Clean Car Program,
involved consideration of particular facts, as opposed to
general policy, and had immediate effect on California. Id.
We also concluded that even if the Advanced Clean Car
Program Waiver Notice met the APA definition of a rule, it
would still not be subject to CRA because of CRA's exclusion
of rules of particular applicability. B-334309, Nov. 30,
2023. A rule of particular applicability is addressed to an
identified entity and also addresses actions that entity may
or may not take, taking into account facts and circumstances
specific to that entity. B-334309, Nov. 30, 2023 (citing B-
334995, July 6, 2023). We noted that the notice concerned a
specific entity--California--and addressed a statutory waiver
specific to California's Advanced Clean Car Program;
therefore, the notice would be a rule of particular
applicability. B-334309, Nov. 30, 2023.
EPA's Recently Submitted Notices of Decision
(1) Applicability of GAO's 2023 Decision
The analysis and conclusion in B-334309 that the Advanced
Clean Car Program Waiver Notice was not a rule for purposes
of CRA because it was an order under APA would apply to the
three notices of decision at issue here. For example, all
three notices of decision involve waivers granted to
California under the same authority and process
[[Page S1628]]
(42 U.S.C. 7543(b)) at issue in the Advanced Clean Car
Program Waiver Notice. In each case, California requested
preemption waivers from EPA with respect to specific
California regulations, and EPA, after holding a public
hearing, receiving comments, and considering information
presented by California and opponents of the waivers,
determined to grant the requested waivers. See Advanced Clean
Trucks Waiver Notice, 88 Fed. Reg. at 20688-90; Low
NOX Waiver Notice, 90 Fed. Reg. at 643-45;
Advanced Clean Cars II Waiver Notice, 90 Fed. Reg. at 642-43.
The Low NOX Waiver Notice also involves an
authorization under a separate authority (42 U.S.C.
7543(e)(2)(A)). As described above, the nature of the
determination and process used is very similar to section
7543(b), and our analysis and conclusions in B-334309 would
apply to this portion of the notice as well. See Low
NOX Waiver Notice, 90 Fed. Reg. at 644-45
(describing the relevant procedures and grouping the
corresponding findings in sections 7543(b)(2) and
7543(e)(2)(A) together in summarizing the decision).
Specifically, California requested EPA's authorization to
adopt and enforce specific California regulations, and EPA,
after holding a public hearing, receiving comments, and
considering information presented by California and opponents
of the authorization, determined to grant the requested
authorization. See Low NOX Waiver Notice, 90 Fed.
Reg. at 643-45.
(2) Effect of Resolutions of Disapproval
If Congress were to treat the EPA Notices of Decisions as
rules under CRA and subsequently enact resolutions of
disapproval, there is a question as to the precise effect
those resolutions would have. As described above, if a
resolution of disapproval is enacted, then the rule has no
force or effect. 5 U.S.C. 801(b)(1). However, two of the
three Notices of Decision submitted by EPA to Congress, the
Low NOX Waiver Notice and the Advanced Clean Cars
II Waiver Notice, appear to merely notify the public of
previously issued decision documents granting California the
requested preemption waivers and, in the Low NOX
Waiver Notice, the requested authorization for its
regulations. See Low NOX Waiver Notice, 90 Fed.
Reg. at 643-44 (stating that EPA ``is providing notice of its
decision'' and referencing the Low NOX Waiver
Decision); Advanced Clean Cars II Waiver Notice, 90 Fed. Reg.
at 642-43 (stating that EPA ``is providing notice of its
decision'' and referencing the Advanced Clean Cars II Waiver
Decision). EPA did not include the underlying decision
documents in its submission to Congress and GAO.16
In contrast, the Advanced Clean Trucks Waiver Notice, like
the Advanced Clean Car Program Waiver Notice we examined in
B-334309, appears to be the decision document. See 88 Fed.
Reg. at 20688 (stating that EPA ``is granting . . .
California['s] . . . requests for waivers''). Accordingly, if
Congress were to enact resolutions disapproving the Low
NOX Waiver Notice or the Advanced Clean Cars II
Waiver Notice under CRA, it is unclear whether or how those
resolutions would affect the underlying waivers and
authorizations.
Conclusion
In these circumstances, our view is that our prior analysis
and conclusion in B-334309 that the Advanced Clean Car
Program Waiver Notice was not a rule for purposes of CRA
because it was an order under APA would apply to the three
notices at issue here. We provide this information to assist
Congress as it considers how to treat these Notices of
Decision and the application of CRA procedures.
If you have any questions, please contact Shirley A. Jones,
Managing Associate General Counsel, or Charlie McKiver,
Assistant General Counsel for Appropriations Law.
Sincerely,
Edda Emmanuelli Perez,
General Counsel.
Congressional Requesters
The Honorable Sheldon Whitehouse,
Ranking Member, Committee on Environment and Public Works,
United States Senate.
The Honorable Alex Padilla,
United States Senate.
The Honorable Adam B. Schiff,
United States Senate.
EndNotes
1. Email from Director, Regulatory Management Division,
EPA, to GAO CRA Rules Mailbox, Subject: Electronic Delivery
of USEPA Final Actions to GAO under the Congressional Review
Act (CRA)--[0 major and 3 non-major actions (02-19-2025)]
(Feb. 19, 2025) (EPA Initial Submission).
2. Letter from Senators Sheldon Whitehouse, Alex Padilla,
and Adam B. Schiff to the Comptroller General (Feb. 21, 2025)
(Request Letter).
3. GAO does not issue formal decisions on actions that
agencies have submitted to Congress as rules under CRA
because that submission generally obviates the need for a GAO
decision on the matter. See B-330376, Nov. 30, 2018
(explaining that when a rule is submitted to Congress,
Congress has an opportunity to review the rule and pass a
joint resolution of disapproval to void the rule (see 5
U.S.C. Sec. 802) and there is no impediment that a GAO
decision might cure).
4. Email from Senior Attorney, GAO, to Director, Regulatory
Management Division, EPA, Subject: RE: Electronic Delivery of
USEPA Final Actions to GAO under the Congressional Review Act
(CRA)--[0 major and 3 non-major actions (02-19-2025)] (Feb.
20, 2025).
5. GAO, GAO's Protocols for Legal Decisions and Opinions,
GAO-24-107329 (Washington, D.C.: Feb. 2024), available at
https://www.gao.gov/products/gao-24-107329.
6. Letter from Assistant General Counsel for Appropriations
Law, GAO, to Principal Deputy General Counsel, EPA (Feb. 25,
2025).
7. Email from Director, Regulatory Management Division,
EPA, to GAO CRA Rules Mailbox, Subject: Electronic Delivery
of USEPA Final Rules to GAO under the Congressional Review
Act (CRA)--[0 major and 3 non-major rules (02-27-2025)] (Feb.
27, 2025) (EPA Resubmission).
8. This decision document is available at https://
www.regulations.gov/document/EPA-HQ-OAR-2022-0332-0109 (last
visited Mar. 5, 2025).
9. This decision document is available at https://
www.regulations.gov/document/EPA-HQ-OAR-2023-0292-0562 (last
visited Mar. 5, 2025).
10. See EPA Initial Submission.
11. 171 Cong. Rec. H875 (daily ed. Feb. 26, 2025); EPA
Initial Submission.
12. 171 Cong. Rec. S1311 (daily ed. Feb. 24, 2025).
13. EPA Resubmission.
14. See id., Attachments.
15. EPA also states in each notice that the action is not a
rule under the Regulatory Flexibility Act and therefore EPA
did not prepare a regulatory flexibility analysis addressing
the impact of the action on small businesses. Advanced Clean
Trucks Waiver Notice, 88 Fed. Reg. at 20725-26; Low
NOX Waiver Notice, 90 Fed. Reg. at 645; Advanced
Clean Cars II Waiver Notice, 90 Fed. Reg. at 643. Similarly,
EPA further states in each notice that the relevant action is
not a rule under Executive Order 12866 and is therefore
exempt from review by the White House Office of Management
and Budget (OMB). Advanced Clean Trucks Waiver Notice, 88
Fed. Reg. at 20725; Low NOX Waiver Notice, 90 Fed.
Reg. at 645; Advanced Clean Cars II Waiver Notice, 90 Fed.
Reg. at 643. Lastly, although EPA indicated in their
submission to GAO that the notices were ``non-major'' under
CRA, the statements in the notices make it unclear whether
the Office of Information and Regulatory Affairs within OMB
had an opportunity to review the actions to determine if they
were major rules under CRA, see 5 U.S.C. Sec. 804(2), given
that those determinations are usually made as part of the
Executive Order 12866 review process. See OMB Memorandum M-
24-09, Guidance on Compliance with the Congressional Review
Act (2024), at 3.
16. See EPA Initial Submission; EPA Resubmission.
____________________