[Congressional Record Volume 171, Number 87 (Thursday, May 22, 2025)]
[Senate]
[Pages S3133-S3135]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        CONGRESSIONAL REVIEW ACT

  Mr. WHITEHOUSE. Mr. President, the series of votes that we have 
concluded in the last 24 hours, with the last vote that just concluded, 
brings to its completion a sad and a sordid moment in the history of 
the Senate. I want to just wrap up to leave a record of what took 
place.
  Before we got into this parliamentary rigmarole, there were two 
things that were pretty clear: one, a Congressional Review Act, a 
statute in American law, that allows Congress to override a very narrow 
set of Executive actions for a very narrow time period. The narrow set 
of Executive actions is EPA rulemakings. And the timeframe is set by 
the Congressional Review Act, but it is, at most, months. That is the 
law, or was the law until our procedural shenanigans intervened, and it 
had been the law for quite a long time. The Congressional Review Act 
goes back 30 years. So there was a long, long, long tradition of 
obeying this law.
  It is not hard to figure out what a rule is because rulemakings have 
a very distinct procedural set of steps that they go through, and the 
Congressional Review Act was carefully crafted to deal just with those 
rules, including a provision that if the executive branch tried to hide 
a rule by not submitting it, that our Government Accountability Office 
was authorized to blow a whistle and say: No, that is actually a rule, 
in which case, it would have to come over here for a review under the 
Congressional Review Act.
  So the question of what a rule was has long been considered during 
the course of the Congressional Review Act and over those 30 years, and 
it has always, always, always been a rule.
  Before the Congressional Review Act came along--in fact, 20 years 
earlier--the Clean Air Act was passed by Congress. The Clean Air Act 
was a healthy respect for federalism and the role of sovereign States, 
and the role of California--what is now the fourth biggest economy on 
the planet--allowed California a waiver in order to be able to make its 
own clean air auto emissions rules.
  So beginning with the passage of the Clean Air Act, California took 
advantage of this, and these waivers were filed with the EPA and 
processed by the EPA. Sometimes, they created the waiver. Sometimes, 
they amended a waiver. Sometimes, they renewed a waiver. Sometimes, 
they modified a waiver.

[[Page S3134]]

  The first action was taken on July 11, 1968, by the EPA--so 50-plus 
years ago. The most recent one, until our current procedural rigmarole, 
was December 17, 2024--a week before Christmas, last year. Between July 
11 of 1968 and December 17 of 2024, California's clean air standard was 
reviewed under this waiver process 131 times--131 times--and every 
single time, it was determined to be a waiver and not a rule. It was 
never--across that half century-plus--ever treated as a rule. It 
clearly was a waiver. It is described as a waiver in the statute. That 
is actually the law.
  So that is where we stood: California had a legal right to run its 
own clean air program for 50 years, EPA was obliged to treat it as a 
waiver, and the Congressional Review Act did not apply because the 
Congressional Review Act only applied to rules, and this was not one.
  The problem was that the fossil fuel industry, more or less, runs 
this place right now, and it wants to sell more gasoline. So 
California's Clean Air rules to make cars either be more efficient and 
get more miles per gallon or become hybrid and be able to run back and 
forth between gas and electric or be fully electric interfered with the 
impulse of Big Oil to sell more gasoline and, of course, do more 
pollution.
  What was Big Oil to do in that circumstance? Well, there were a 
couple of things that they could have done. They could have, for 
instance, negotiated with California. Indeed, they could have asked the 
President to negotiate with California and, perhaps, with States like 
Rhode Island that joined the California Clean Air standard so we would 
be in the room and have more voices heard too. There could have been a 
robust, healthy, political, and democratic negotiation. But, no, Big 
Oil chose not to do that because it knew it had a fast lane through 
this body.
  They had another alternative, which is to amend the Clean Air Act or 
the Congressional Review Act to solve this problem. You could amend the 
Clean Air Act to call the waiver a rule or make it proceed by rule, or 
you could amend the Congressional Review Act so that it wasn't limited 
to rules anymore but a waiver could fit in. You could do either one of 
those things by what my Republican colleagues usually like to cheer 
about, which is regular order--the regular order of the Senate, the 
regular order of Congress.
  Of course, the problem for Big Oil in that was that they would have 
to get the law passed in the House, and they would have to get the law 
passed in the Senate. And in the Senate, that was subjected to having 
to negotiate with the Democrats in order to get past cloture and get 60 
votes and then get the bill signed by the President. That is the proper 
way to proceed when you want to amend a law. But Big Oil didn't care to 
do that because it knew it had a fast lane through this body.
  The third way they could have done this, which was actually commenced 
in the first Trump administration, was to have the EPA undertake an 
administrative review of the three key predicates that have to be 
checked off in order to grant the waiver to California and proceed 
under ordinary administrative Agency process; indeed, one that had 
already been commenced in the previous administration. They could 
easily have done that. But, of course, whatever Big Oil convinced Big 
Oil's representatives at EPA--Lee Zeldin--to do would have then had to 
survive scrutiny in court because you can't do administrative 
procedures in this country if there is no rational basis for the 
decision at the end of the day. You can't do administrative decisions 
in this country if they are--to use the magic words of administrative 
law--``arbitrary and capricious.'' So they chose not to follow the 
administrative process either because they knew they had a fast lane 
through this body.
  Unfortunately, the fast lane that Big Oil knew it had through this 
body ran right over the Parliamentarian because the Parliamentarian is 
obliged to police what is appropriate under the Congressional Review 
Act. She is our referee here over whether we are doing things legally 
and by the rules or not. And she determined--which, in my view, was an 
extremely easy determination based on 131 to 0 in previous waivers, 
never in 30 years under the Congressional Review Act something that 
wasn't a rule and the statutory waiver for 50 years for California in 
the Clean Air Act--hard to do much of a stronger case than that. So we 
got a decision, a proper decision, from the Parliamentarian saying, no, 
the special expedited procedures of the Congressional Review Act don't 
work in the Senate because it would be illegal because this is not a 
rule; this is a waiver. And it, obviously, was not a rule. It, 
obviously, was a waiver. So she wasn't wrong.
  But the Parliamentarian is vulnerable to the political power of this 
body. This body can overrule the Parliamentarian. The majority can do 
it with a simple 51 votes.
  Imagine a football game in which one team has more players than the 
other. One team commits a foul. The ref blows a whistle on the foul 
that the majority team committed, and the majority team gets--by vote--
to overrule the referee.
  That is a crummy way to go about doing business in an orderly, 
deliberative body like the U.S. Senate, and that is why it happens so 
rarely. Overruling the Parliamentarian on a matter is considered going 
nuclear--going nuclear--and this is the first time in the history of 
the Senate in which the majority has gone nuclear, overruling the 
Parliamentarian on a matter affecting legislation--both the 
Congressional Review Act and the Clean Air Act.
  So the complex procedural rigmarole you saw last night and today was 
all designed to do a parliamentary end run around the Parliamentarian, 
overruling the determination that this was not a rule, changing the 
Congressional Review Act and the Clean Air Act, but without the proper 
procedures under the Constitution that we are obliged to follow when we 
are passing or amending laws.
  There is a particular other problem here, which is that if they had 
gone the negotiation route with California, all of us who like clean 
air and want strong vehicle emissions regulations would have had a 
voice. Something would have had to have been agreed to. There would 
have had to have been some compromise. But Big Oil didn't want that 
because they knew what they had here in the Senate: a fast lane to 
whatever they want, whenever they wanted.
  They could have gone through the court process, but the court process 
is bounded by laws, by fair procedures, by the opportunity for affected 
parties to be heard, and by the standards of having a rational basis 
and not being arbitrary and capricious. In this forum, the majority can 
have no rational basis and be 100 percent arbitrary and capricious and 
ram its view through. So the court thing wasn't quite as appealing 
because what has happened here would, by any standard, have had no 
rational basis and been arbitrary and capricious.
  They could have gone the legislative route and passed the bill 
properly--amended the bill properly and used the constitutional 
procedures--but again, we would have had a voice in that.
  So this ram job was the solution. Rolling over and overriding the 
Parliamentarian was the method, and serving the fossil fuel interests 
behind the Republican Party was the goal. But the outcome is going to 
be bad outside the Chamber, and it is going to be bad inside the 
Chamber. Outside the Chamber, the bad outcome is going to be a lot 
dirtier air; a far worse competitive position for our auto industry 
against China, which is already running ahead of us in the future 
technology of electric vehicles; and worse health outcomes, 
particularly in busy areas where there is lots of traffic--not to 
mention having the majority of the country's economy overruled by a 
minority of the country's economy, where the majority of the country's 
economy chose cleaner air.
  So those are all the bad things that happened outside this body, and, 
as Senator Schiff said earlier, that will be measured in things like 
cancer diagnoses. This gets personal pretty quickly when it is clean 
air and health matters.
  Inside the body, we have just opened an entirely new avenue for 
mischief. It could be mischief by any 30 of us. Frankly, it could be 
mischief by a minority of the majority who want to drive something 
through that most of the majority don't want. They can do it now using 
the Congressional Review

[[Page S3135]]

Act, which requires 30 signatures to get in. You can go back to any 
Executive action taken since the passage of the Congressional Review 
Act, and you can drop that into the Federal Register and submit it here 
and say it is a rule. Even if you are lying, even if it is not a rule, 
we have just opened the gate so that every Executive action ever taken 
can now be considered a rule, whether it is or not, for purposes of the 
Congressional Review Act. And a powerful special interest that controls 
a powerful party can ram whatever it wants through this body without 
constitutional procedure, without judicial safeguards, and without 
compromise.
  So they broke wide open the window of what can be brought through the 
Congressional Review Act in time. It used to be just a matter of 
usually just a couple of months--depends on the change in elections--60 
days or thereabouts. Now, 30 years of stuff is available to be dropped 
into the hopper in this process and shoved through this body.
  The other is that it is not rules anymore; it is anything. So we have 
gone from a very narrow, carefully guardrailed provision to provide a 
short-term opportunity for Congress to overrule an offending regulation 
immediately after that regulation is passed to a wide-open sewer for 
political influence and interference into any Executive decision ever 
rendered that can be pulled out of the past, dropped into the Federal 
Register, submitted over here under the pretense that it was a rule, 
and with 30 votes and a majority behind it, off you go to the races.
  So this is a bad, bad day for the Senate. It signals a willingness of 
this majority, after so much talk about defending the filibuster--oh, 
defending the filibuster. When we were in the majority, you never heard 
them stop talking about how important the filibuster was, but now that 
they are in the majority, it is only a little over 100 days--and this 
started some time ago. They immediately started the plot to bring this 
chore for the fossil fuel funders through the Senate floor and break 
the filibuster in order to accomplish their goal.
  So give me a break.
  I yield the floor. I see my friend Senator Cassidy from Louisiana 
waiting to speak.
  The PRESIDING OFFICER. The Senator from Louisiana.

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