[Congressional Record Volume 171, Number 84 (Monday, May 19, 2025)]
[Senate]
[Pages S2967-S2968]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATIONS FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. PADILLA. Mr. President, I must object to the Senate proceeding to
any of the four nominations pending on the Senate's Executive Calendar
for the U.S. Environmental Protection Agency (EPA).
This objection is a direct result of the Agency's cynical attempt to
weaponize the Congressional Review Act (CRA) by attempting to submit as
``rules'' three waivers issued to the State of California under the
Clean Air Act (CAA). If this attempt is successful, the consequences
will be far-reaching, not only for our clean energy economy, the air
our children breathe, and for our climate, but for the future of the
CRA and for the Senate as an institution.
The EPA has issued over 100 individual waivers or waiver-related
decisions to California pursuant to the waiver authority that Congress
passed with overwhelming bipartisan support in 1967. During
administrations of both parties, for over 50 years, the EPA has never
once submitted these waivers to the Government Accountability Office
(GAO) or Congress as ``rules'' because the Agency knew that they were
not rules. Even as EPA Administrators denied or attempted to withdraw a
previously granted waiver, as under the George W. Bush and prior Trump
administration, the EPA explicitly stated that their actions denying or
withdrawing a waiver did not qualify as a rule.
During the first Trump administration, in 2019, the EPA attempted to
use administrative procedures to rescind a waiver. The current Trump
administration could pursue its own strategy from 2019 and again
attempt to rescind these waivers administratively. Instead, it is
choosing a much more reckless track, with far-reaching consequences for
future Senate procedures. Perhaps because the EPA is firing so many of
its own staff experts, they worry the Agency does not have the capacity
to take an administrative route, so they must seek a made-up shortcut.
In 2022, a U.S. Senator sought GAO's legal opinion as to whether
EPA's restoration of a prior waiver was a rule for the purposes of the
CRA. GAO's legal opinion was clear: No, California's waivers are not
rules. Further, GAO found that even if the waivers were somehow rules,
they would still not be covered by the CRA because they would be rules
of particular applicability which are not covered under the CRA.
[[Page S2968]]
Only now, in 2025, the EPA clumsily attempted--multiple times--to
submit three of California's waivers to Congress. One might ask why
they only submitted three of the six waivers issued under the prior
administration if the Agency's viewpoint is suddenly that the
California waivers are rules. EPA's press release announcing their
intent to transmit the three California waivers to Congress makes clear
that their intent is to have Congress overturn these three waiver
decisions. And by attempting to use the CRA, they seek expedited
procedures and a majority vote, instead of the Senate's usual cloture
procedure and 60-vote threshold.
Thankfully, political appointees at executive branch Agencies do not
have the ability to determine questions of privilege on the floor of
the Senate, or the Senate floor would become a mockery. That role
belongs to the nonpartisan, expert Senate Parliamentarian. In this
case, the Senate Parliamentarian has made a very clear determination
that resolutions related to California's CAA waivers are not privileged
under the CRA and can only be considered under regular order, and thus
subject to cloture.
Importantly, the Parliamentarian's determination stands on the same
foundation that has governed similar CRA determinations for nearly 20
years. It has long been established and respected by both parties that
if an agency fails to submit a matter that is a ``rule'' under the
CRA--whether by mistake or by an attempt to avoid congressional
authority--that rule does not automatically escape scrutiny under the
CRA. The Federal Agency doesn't get to be the final arbiter of what
counts as a rule. Instead, any Member may go to GAO and ask for a legal
opinion. If the GAO finds that the matter is a rule under the CRA's
definition, then the Parliamentarian determines if the relevant
resolutions can be considered under the CRA's expedited procedures if
they meet the rest of the criteria.
Here, for the first time in the history of the CRA, an Agency
submitted matters that they knew were not rules. Some of my Republican
colleagues are now arguing that the Parliamentarian should have no role
to limit this partisan gamesmanship, and the Senate should throw out
the rulebook and overturn the Parliamentarian.
Why would we only look to the GAO and the Parliamentarian when an
Agency refuses to submit something to dodge the CRA and not also when
an Agency submits something in order to exploit the CRA? Just as the
Parliamentarian determined that there should be a check against an
Agency that tries to dodge the CRA by withholding a rule, the
Parliamentarian has determined there should be a check when an Agency
tries to exploit the CRA by submitting something that isn't actually a
rule. This ensure the CRA process can't be abused in either direction,
and the Parliamentarian's decision protects the legislative branch from
executive overreach.
But if the Trump EPA and Senate Republicans are successful at this
ploy, the Senate will have no choice but to accept this as status quo
in the future. This would grant Agencies unchecked control over the
Senate floor, an unprecedented encroachment by the executive branch
into the Senate's internal operations.
The current administration could submit any type of Agency action
from prior administrations going back to 1996 to Congress and trigger
the CRA's expedited procedures for related resolutions of disapproval.
The Chairman of the Federal Communications Commission could submit
broadcast licenses and other approvals for media outlets when he
disapproves of their news coverage. The Secretary of Health and Human
Services could submit approvals by the Food and Drug Administration
that he disagrees with, such as vaccines, birth control, or
mifepristone. Numerous Agencies could submit decisions related to
specific organizations that are targets of the President's political
retribution campaigns.
None of these actions are rules, which is why they have never been
submitted to Congress as rules. But if my Republican colleagues open
this door and overturn the Parliamentarian's wise safeguards on this
type of abuse, there would be no practical limit, and the Senate could
be forced to vote repeatedly on such matters that are clearly not
``rules'' notwithstanding the plain language of the CRA.
Further, a future Democratic administration could respond in kind.
When it comes to the environment and climate issues, future Agency
heads could submit individual fossil fuel project leases, loan
agreements, or permitting approvals for congressional review, arguing
that these are clearly highly significant Agency actions with wide-
ranging impacts. LNG export terminals and major interstate and cross-
border pipelines would be fair game. In other areas, there are many
Trump administration actions--from immigration to foreign policy to
unilateral budget and staff cuts by DOGE--for which a future
administration and Congress could use the CRA.
Since this cynical attempt to weaponize the CRA was triggered by the
administration's political leadership at the EPA, at the urging of
their Big Oil allies, I must object to proceeding to any nominations
for the EPA pending on the Senate's executive calendar. I will continue
to object until the Agency withdraws its false submissions to Congress
or the majority leader commits not to overturn the Parliamentarian's
determination on this matter.
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