H.J. Res. 88
Floor Speech
BREAK IN TRANSCRIPT
Mr. PADILLA. Mr. President, I, first of all, thank my colleague from the State of Rhode Island and echo his sentiment and his message that Senate Republicans have crossed the line this evening. They have chosen to overrule the Parliamentarian, thrown out some rules, rewritten some rules, established new precedents for how this body operates, despite claiming that that was something they were not going to do, despite the majority leader warning earlier this year that this would be akin to killing the filibuster.
But now we have seen it. It is on the record. They have overruled the Parliamentarian not just once but twice. And the Parliamentarian's determination as to whether or not the action taken this evening was in conformance with the rules that we have or not were buttressed by-- again, as my colleague from Rhode Island has explained--the analysis and the findings of the GAO, which we charge with this input.
And so I want to take a moment to just read some excerpts from the GAO, as written to the Senate. And I will submit the entire letter for the Record, but the key excerpts are important to highlight.
From the GAO:
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.
It couldn't be more clear than that.
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.
Just two other elements that, again, I think are in need of being highlighted here because of the significance of the action taken this evening--quoting still from the letter:
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.
Pretty clear.
And, finally, later in their letter:
The agency still did not address the statements in the notices regarding the inapplicability of the CRA, and, to date, EPA has not further responded to our letter.
GAO is charged with establishing this review and making a finding. They heard from the parties involved. They did not get responses from the EPA. Why? They must have something to hide. What are they afraid of? And the GAO shared their conclusions which informed the Parliamentarian in their determination: This was inconsistent with the rules.
Not only have Senate Republicans overruled the Parliamentarian this evening, they have also broken the Congressional Review Act, as has been respected for years, all to bypass the filibuster in order to undermine California's efforts to pursue cleaner air for our constituents. And while today the California waivers may be the target, we don't know what comes next.
In previous statements on this issue earlier today and in previous days, I have given examples of, now that the CRA has been applied in this fashion, there is a whole host of adjudicatory decisions by a wide variety of Agencies across the Federal Government that are now fair game.
But for now, let me continue to focus on the waivers in question that Republicans are seeking to overturn. See, I rise not only in opposition to this power play tonight, I rise in the interest of protecting the health of my constituents, the nearly 40 million Californians that I am honored to represent.
Because, colleagues, leaders in California didn't just wake up one day to find some special privileges to establish our own climate policy and impose it upon the rest of the country. And we certainly didn't cheat the system to jam States represented by Republicans in the Senate or in their Governors' mansions. No. California was explicitly granted waivers because of the unique air quality challenges that we face, different than anywhere else in the country.
California was granted these waivers because California, as a whole, and Los Angeles, in particular--the southern California area, the Los Angeles Basin--is uniquely situated to produce some of the most dangerous air pollution in the Nation. So it means that we had to work harder than other States and other regions to protect the health of our residents.
This is not some new liberal agenda. It actually goes back nearly a century with broad bipartisan support. Way back in the summer of 1943, Angelenos actually started to notice a brown haze descending upon the city. People's eyes and throats began to sting from this smoke, and they could no longer see more than a handful of blocks ahead of them, let alone the beautiful skyline or the views of the city around them.
It was actually in the middle of a World War when Americans feared that breakouts of chemical warfare were imminent and many started to wear gas masks as a result. While it didn't take long to learn that there was no chemical attack targeting Los Angeles, it would take researchers years to learn that the true source of the haze was different. Eventually, they learned it wasn't just factories that were pumping black smoke into the sky; it was in large part due to the cars that were being driven.
Now, unfortunately for us, Los Angeles does create the ideal conditions for smog to thrive. Southern California's sunshine along with a booming population of people reliant on car travel and all the exhaust that comes with it combines to make a photochemical reaction that we call smog. But in addition to that, given the beautiful mountains--and you have all seen the scenes--the mountains that surround the Los Angeles area act as a perfect sort of cradle to hold all those pollutants in, encasing the city in a thick haze of pollution.
For all the beauty of our city--most of you have visited, and you have certainly seen images on television and in the movies--generations of Angelenos know what it is like to feel engulfed by the smog around us.
As I began to share earlier today, that includes me. As many of you know by now, I grew up in the community of Pacoima in the San Fernando Valley, the northern part of the city of Los Angeles. And growing up in the 1970s and 1980s--40 years after the gas masks that I spoke about a minute ago--smog was still ever-present in our sky and part of our daily life.
I still remember what it was like being sent home early from school as a kid because the air was too unhealthy for us just to play on the playground--the stinging in our eyes, the tightness in your chest. Yes, when I was growing up, we were more often waking up to air quality forecasts of unhealthy or hazardous than clean. Imagine just the sheer simplicity of trying to take a deep breath, but not being able to because halfway through taking in a deep breath, your chest would tighten up. You literally choke because of the pollution in the air. While we have come a long way, for too many Californians today, that is still a reality. It doesn't have to be that way.
But that is why, decades ago, Congress recognized both California's unique air quality challenges but also its ingenuity, its creativity, the innovation that is in our DNA and granted California the special authority to do something about those unique air quality challenges.
Thanks to the Clean Air Act, which, again, was adopted in an overwhelming bipartisan basis over 50 years ago, California obtained the legal authority to set its own emissions standards because Congress wisely recognized back then that West Virginia and Wyoming are different than California; and their air quality is different; there are significantly fewer cars on the road in Salt Lake City than there are in Los Angeles; and because California was and still is seen as the innovation center of the United States.
So we earned the right to set California standards for California. We are not setting California standards for national standards. I am sure my colleagues in State government wish we had that kind of power and authority, but that is not the case. And it is certainly not California's agenda to impose our standards on States across the country. We are simply seeking to protect Californians.
And, quite frankly, if Members of this body representing the other 49 States in the Nation are worried about some Federal mandate taking effect because of California's actions, then you should support California's right to set our own State standards. We know that the EPA and the Federal Government has not effectively done its part to rein in pollution.
So from a government standpoint, let me explain why I get so worked up on this. State and local jurisdictions in California have done all they can to push ambitious but implementable regulatory agendas in the country--some of the most ambitious in the country. But we are out of options when it comes to controlling the pollution sources that State and local governments are allowed to regulate.
What is left--the biggest nut to crack--are the mobile sources of pollution--the cars, the heavy-duty trucks, the locomotives, the ships, and the planes that are the key sources of the bad air quality in regions of California. These are industries that only the Federal Government can regulate.
So California has had no option, but we have embraced the challenge to innovate, to advance creative and indirect source rules or rules that, for example, require ships to plug in when docked in our ports to cut down on pollution.
That is why these waivers are so important. They let us get at these mobile sources of pollution that we need to clean up because unless or until the Federal Government gets more ambitious about setting national standards that meet the moment of this climate crisis, at least let California protect Californians.
I am realistic with the times that we are living in. Under this administration, I doubt we will get the assist from the Federal Government over the course of the next 3\1/2\ years.
I want to acknowledge that it was former President Ronald Reagan, when he was Governor of California, who first created the California Air Resources Board. And 3 years later, it was Republican President Nixon who signed amendments to the Clean Air Act into law, fulfilling a promise that he made at that year's State of the Union, that clean air should be the birthright of every American. What a far, far cry from Republican leadership then to the Republican agenda today.
But the bottom line is, colleagues, by supporting this measure, Republicans are simply making it harder for California to improve air quality in California.
As I did yesterday, I also just have to acknowledge what it means for families throughout the State. You see, as the parents of three growing boys--they are not little kids anymore; they are growing--through the course of their upbringing, we have been able to control certain things, like how we feed our kids. We go to the grocery store, and you are shopping for what you are going to prepare for dinner. You have readily accessible information--nutritional information--not just calorie information, protein information, but ingredients of what is in the product you are about to buy. There are certain things that we cannot control, like the ingredients in the air we breathe.
If you are fortunate enough to live in a part of the State of California, in the part of the country with a great air quality index, good for you. But for those who aren't as fortunate and with the assistance of the Union of Concerned Scientists, let me read off a couple of the ingredients that are in the air that we breathe--not just us, our children too.
Particulate matter, defined as follows:
One type of particulate matter is the soot seen in vehicle exhaust. Fine particles--less than one-tenth the diameter of a human hair--[it] pose[s] a serious threat to human health, as it can penetrate deep into the lungs. [Particulate matter] can be a primary pollutant or a secondary pollutant from hydrocarbons, nitrogen oxides, and sulfur dioxides. Diesel exhaust is major contributor to [particulate matter] pollution.
How is this for another ingredient: volatile organic compounds, known as VOCs, referred to as VOCs:
These pollutants react with nitrogen oxides in the presence of sunlight to form ground-level ozone, a main ingredient in smog.
Though beneficial in the upper atmosphere, at the ground level, this gas irritates the respiratory system, causing coughing, choking, and reduced lung capacity.
Now, I know I have felt those things as a kid. It is in the science.
VOCs emitted from cars, trucks and buses--which include the toxic air pollutants benzene, acetaldehyde, and butadiene-- are linked to different types of cancer.
Just a couple more:
Nitrogen oxides.
Which we refer to as NO
These pollutants form ground level ozone and particulate matter. . . . Also harmful as a primary pollutant, NO
I can go on and on--carbon monoxide, sulfur dioxide, greenhouse gases--but in the interest of time and given the late hour, let me say this: All of these ingredients are in the air that we breathe, as I just described, but as you heard me say earlier, it is not just our lungs that are at risk; these toxins can permeate into the bloodstream and spread to other parts of the body. That is what is at stake, again, not just for us but for our children.
But for all the dangers that I see around us, I also see opportunity. Thanks to the allowances afforded to California under the Clean Air Act, we have actually made tremendous progress.
As evidence of that, in 2015, USC--the University of Southern California--published a study that said that the reduction of air pollution was paying off; kids were breathing healthier.
Let me read just briefly from their findings, summarized in a National Geographic article from March of 2015 that said:
In the study published in the New England Journal of Medicine, researchers followed 2,000 kids from five southern California cities with some of the worst air, including Long Beach, Riverside, San Dimas, Upland, and Mira Loma. They focused on kids ages 11 to 15, whose lungs are growing the most.
While other studies have compared kids from polluted neighborhoods to those living with cleaner air, the USC team tracked children from the same communities over 20 years and correlated their findings with pollution data from local air monitors. That allowed them to more clearly weed out other potential factors.
Regardless of race, exposure to cigarette smoke, or factors like education and pets, kids tested between 2007 and 2011 had healthier lungs than kids the same ages tested between 1994 and 1998.
I will skip some of the additional scientific details and jump to more of the conclusions because during those decades differential in the study, ``California officials set groundbreaking standards that phased out many inefficient car and truck engines and some of the dirtiest fuels for everything from jet skis and lawnmowers to school buses and heavy-duty trucks. Local smog-fighters in the Los Angeles basin forced cleanup of oil refineries, manufacturing plants, and consumer products such as paints and solvents. Other local and state programs offered incentives for replacing old trucks and buses.''
The result: Some of the most problematic pollutants--smog- forming nitrogen dioxide and fine particles created by diesel-engine exhaust and other fossil fuels--declined in the worst neighborhoods by up to 50 percent in 20 years. Maritime pollution, particularly in neighborhoods near the massive ports of Los Angeles and Long Beach, also has dropped substantially.
As a side note, by the way, the two ports referenced in this, the ports of Long Beach and Los Angeles--sister ports in the San Pedro Sports Complex--account for 40 percent of our Nation's imports, those two ports alone. So you can imagine the intensity of the pollution in that specific region, let alone the air quality and health impacts for Californians.
So I go back to, if the Federal Government, through the EPA, isn't willing to step up to meet the challenge of air quality in California, let California take care of Californians. As these studies and reports lay out, California's leadership is working. Kids are breathing cleaner air.
But we still have a lot more work to do. We have a track record of successfully developing and implementing innovative tools to improve lives, but because of what is transpiring here now in the Senate, our progress is now at risk. It is important, it is urgent, it is significant because we still have so much more work to do.
California plans on continuing to exercise our legal authority under the Clean Air Act to protect kids, to set ambitious but achievable goals, to reduce pollution and, yes, Heaven forbid, set an example, set a model, set a path for other States to follow if they wish because no one is forcing California standards on States that don't voluntarily choose to follow that simple path.
But what I see transpiring here with the overruling of the Parliamentarian and the overturning of these waivers as if they were rules is the Senators from other States, Republican Senators from other States, imposing their will on California. So much for States' rights, I guess.
And I hope you sleep well at night with the consequences of your decisions in the years ahead.
Government Accountability Office, 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 are rules subject to the Congressional Review Act (CRA). 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. 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. After receiving your request, we followed our regular procedure and sent a formal letter to EPA on February 25, 2025, seeking factual information and the agency's legal views on this matter. 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, 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 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.qov/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 NO
California State Motor Vehicle 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 NO
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 NO
EPA subsequently submitted a CRA report for the three Notices of Decision to Congress and GAO on February 19, 2025. The House of Representatives and GAO received the report on February 19, 2025, and the Senate received the report on February 20, 2025. EPA resubmitted the CRA report to GAO on February 27, 2025. 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. 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. DISCUSSION GAO's 2023 Decision on a Clean Air Act 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 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, and ``license'' to include an agency approval, statutory exemption, or other form of permission. 5 U.S.C. Sec. 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. Sec. 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 (42 U.S.C. Sec. 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 NO
The Low NO
(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. Sec. 801(b)(1). However, two of the three Notices of Decision submitted by EPA to Congress, the Low NO
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 Hon. Sheldon Whitehouse,
Ranking Member, Committee on Environment and Public Works, U.S. Senate Hon. Alex Padilla,
U.S. Senate Hon. Adam B. Schiff,
U.S. Senate
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