Republican attempt to use Congressional Review Act to overturn California Clean Air Act waivers
This is a lengthy defensive speech opposing Republican procedural tactics rather than engaging in obstruction itself. Senator Padilla is arguing against what he characterizes as Republican abuse of the CRA process, but he's doing so through standard debate rather than obstructive tactics.
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Mr. President, colleagues, when Donald Trump returned to the White House a few months ago, there were a whole lot of people throughout California and beyond that knew that California had a target on its back. For more than half a century, we have been trailblazers in a number of policy areas but especially in the fight for environmental protections and public health protections. And for the last decade, we have been proud to--shouldn't have to-- but proud to stand up to each and every one of Donald Trump's attacks on our clean air and clean water, not just through his rhetoric but through his actions. So while the particular procedural battle that we find ourselves in today over the Clean Air Act waivers may be new, the larger war on California's climate leadership and progress is not new. Thanks to the Clean Air Act, for 50 years, California has had the legal authority to set its own emissions standards to protect the health of our residents and our natural resources. This authority was granted by Congress on a bipartisan basis in recognition of California's unique air quality challenges but also its capabilities as policy leaders. But today, Republicans are threatening to distort the Congressional Review Act and the CRA process in an effort to slow down our progress. Now, one of the most outlandish things I have heard from my Republican colleagues these past few weeks--as it pertains to these Clean Air Act waivers--is that they are concerned that these waivers and other regulations would stifle the California economy, that ``the market is not ready,'' or I have heard some say that they are concerned this could raise prices on consumers. Really? These are the same Republican Members who have stayed silent on Donald Trump's imposed universal tariffs that are actually already increasing prices. So now you are worried about increased costs for American families. Where have you been these last several weeks? But I have some good news for you: In case you haven't heard, California has proven this argument wrong already. In recent years, you have heard me reference, time and again, that California was the fifth largest economy in the world. Well, as of a couple weeks ago, California is now the fourth largest economy in the world. Imagine that. Policy leadership, climate leadership, and economic growth, they don't have to be mutually exclusive. We can and must focus on doing both. Now, California didn't get there by just holding on to technologies of the past. We did so by innovation and investments in clean technologies. So we are proving that you can be for clean air and for business and economic growth. But I want to be clear in this discussion that it is not just why Republicans are trying to undermine California's climate leadership, it is worth emphasizing the concerns of how they are going about it. This session, Colleagues, I have the honor of serving as the ranking member of the Rules Committee. I want to make sure that everyone understands what this proposal, this proposed abuse of the CRA process, would actually do here, because, you see, the Clean Air Act was passed under regular order. So if Republicans want to amend the Clean Air Act to address California's legal authority, bring it up for a vote. But Republicans aren't bringing it up for a vote because they don't have the votes to do so under regular order. So, instead, they have to try to figure out a back door to avoid the legislative filibuster. They want to kill California's Clean Air Act authority with a lower 51-vote threshold. In plain English, they are trying to change the rules of the Senate in order to please Donald Trump and the Big Oil lobby. So let me share another bit of news for you in case you have not heard it: The Senate Parliamentarian has already decided that this is not allowed by Senate rules. The Parliamentarian's determination--which I am happy to share with anybody who is interested and has not seen it. The Senate Parliamentarian's determination came after the independent and nonpartisan Government Accountability Office said that the EPA and Republicans were twisting the rules in their efforts to target California twice. There was a bill introduced around the time of the GAO's findings and before the Parliamentarian's findings, a Republican bill sponsored by the now chair of the Energy and Natural Resources Committee and the Environment and Public Works Committee, the fact sheet for this bill says--and I quote: California's power to influence national emissions standards . . . is not subject to Congressional review. Republican bill, Republican fact sheet, that is the purpose of the bill because they know that you can't do this through the CRA process as some are now proposing to do. And yet there are others in the Republican conference that are insisting on moving forward. So let me remind all of us on both sides of the aisle, the Senate has never overruled the GAO or the Parliamentarian on a CRA question. So it is clear to me that this is about more than just California's climate policies and leadership. This would set a major new precedent that blows way past the bounds of the Congressional Review Act. It is not an insignificant change to the rules. It is not an insignificant precedent that you would be setting. If successful, it would open the door to ignoring the Parliamentarian on any ruling that you don't like. And if Republicans can ignore the Parliamentarian on the CRA, then why not the tax rule that they are working so hard on, or healthcare, or anything else? But luckily, I am holding out some hope because I have come across some remarks by several Senate Republicans with respect to the impact on the rules. You see, earlier this year, the majority leader said that ignoring the Senate Parliamentarian would be ``totally akin to killing the filibuster. We can't go there.'' This is on the public record. The junior Senator from Utah said that ``a red line for'' him ``is overruling the Parliamentarian.'' The senior Senator from Maine said she would ``never vote to overturn the Parliamentarian.'' So for other Members who have not taken a position on whether or not they would overrule the Parliamentarian or not, the recognition of it being akin to eliminating the filibuster, that is a redline that maybe you don't want to cross, maybe you do want to cross, but I will call attention to the fact that the redline is here now, and each Member of this body has a decision to make. The Parliamentarian has ruled that this effort cannot be done on a 51-vote threshold. And if you choose to go forward and overrule the Parliamentarian, just know, there is no going back. All bets are off. With that, I would like to yield to the ranking member of the Senate Environment and Public Works Committee, my colleague and friend from Rhode Island. Mr. WHITEHOUSE. I am actually happy to yield to Senator Schiff from the California delegation. OK. He is happy with me going, so I will go. The PRESIDING OFFICER. The Senator from Rhode Island. Mr. WHITEHOUSE. Mr. President, first, both of my colleagues from California are here, and I want to thank them for coming to the floor today to talk about this important matter in which Republicans want to appease their donors, and they want to break basically two Senate rules in order to get there--not just one, but two. The underlying matter here is about a law, the Clean Air Act, which falls in the jurisdiction of the Environment and Public Works Committee. So that is why I am here. A different law, the Congressional Review Act, creates a fast-track procedure in the Senate to disapprove Agency rules. For the most part, that Congressional Review Act, the CRA, is focused on rules during a short period immediately after they are made final and before they go into effect. We get a window where we can disapprove a rule from Congress. As soon as an Agency finalizes the rule, it submits the rule to the Government Accountability Office and to both Houses of Congress. That starts a 60-day review clock. That CRA also provides a lookback period where a Congress can reach back into the final 60 days of a previous Congress and review rules from a prior administration. The waivers go way back before the CRA period. Generally, there is no question what constitutes a rule under the CRA. There are different acts that the government can do. There are decisions; there are rules; there are laws. A rule is a specific thing under the CRA. Sometimes there are problems. Sometimes Agencies don't submit actions to Congress that have typically been deemed rules, and sometimes, as here, they submit as rules actions that have never previously been considered rules. GAO polices whether the submitted action was, in fact, a rule. That is the law. That is a GAO legal responsibility. GAO has weighed in about 60 times in the history of the Congressional Review Act. When GAO determined that the action involved was a rule, the action was then deemed submitted and the review clock started. When GAO determined the action was not a rule, that was the end of it. Congress stood down. No one--no one--moved a CRA resolution of disapproval following a negative finding by the GAO. Never. Which brings us to this first oddity. In 2023, Members asked GAO whether an EPA Clean Air Act waiver decision for California was a Federal rule for purposes of the CRA. GAO said, no, correctly, because it wasn't. Like every other time, that settled that. And GAO's ``no'' comported with the text of the CRA and the waiver provision originally in the Clean Air Act that created the California exception and 50 years of Agency precedent treating waivers as decisions, a different type of adjudication which the Administrator Procedure Act distinguishes from rules. EPA itself, across multiple administrations, Republican and Democrat, never, never called waivers rules under the CRA, not even under the first Trump administration. Then, in February, after much lobbying by the oil industry, the Trump EPA submitted notices of three waiver decisions, one from more than 2 years ago, far beyond that 60-day lookback period. Upon a request from the three of us, the two Senators from California and myself as ranking member, GAO confirmed its previous 2023 opinion not long ago--this is not ancient history--and found that notwithstanding EPA's politically motivated submissions to try to get into that CRA window, the California waivers simply are not rules. So the CRA does not apply. GAO pointed out to EPA that the waiver notices, on their face, indicate that they are decisions rather than rules. But that wasn't enough, so we had to go to the Parliamentarian, who heard arguments and debate from both sides, and the Parliamentarian affirmed GAO's decision. I will offer the opinion that it was not even a close call because the unblemished record has always been that this is not a rule over decades. The Parliamentarian ruled that Clean Air Act waivers do not qualify for expedited consideration under the Congressional Review Act. Every other time the Senate has reached this point, every other time, Members have respected the decision of the Parliamentarian and that ended the matter. Not this time. This time, a faction in the Republican Party wants to overturn decades of precedent, ignore the GAO and the Parliamentarian, who are the lawful guardians of this process, and steamroll forward in violation of the plain text of the Congressional Review Act by deploying the nuclear option. Once there is precedent that anything an Agency does can be considered a rule, the time and scope limits of the Congressional Review Act have no meaning. Any Agency action ever could be swallowed up in the new Congressional Review Act definition. Think about how the Trump administration might abuse this. At least one Member of this body previously asked GAO if FDA's decision to allow pharmacies to dispense mifepristone qualified as a rule for the purposes of the CRA. GAO said no, and it ended there. If we overrule GAO and the Parliamentarian on the waivers, nothing stops the Trump FDA from submitting the decision as a rule and Members from introducing a disapproval resolution and proceeding through this new loophole. Everyone knows by now that President Trump has a beef with a whole host of media outlets, some of which are licensed by the Federal Communications Commission. What is to stop the FCC from submitting, say, CBS's license as a rule? And Members from introducing a disapproval resolution? Is this really the path we want the Senate to go down? A future Democratic administration could submit every oil and gas lease issued since 1996 as a rule and pursue disapproval of them under the Congressional Review Act. Colleagues, we have already given away too many article I powers to the executive branch, do we really want to give the executive branch this power to submit anything and everything as a rule and allow Members to hijack the floor with CRA resolutions? That would be a new way for this Senate to work. Then there is the question of overruling the Parliamentarian, the nuclear option. The import of overruling the Parliamentarian extends way beyond Congressional Review Act resolutions. Once you have overruled the Parliamentarian on a legislative matter, there is no going back. All bets are off. Any future majority would have precedent to overrule the Parliamentarian on any legislative matter. There is no cabining such a decision. It is tantamount to eliminating the filibuster. Once ``you give a mouse a cookie,'' it never ends. Pretend all you want that these waivers are exceptional or that any precedent overruling the Parliamentarian would be limited. That is not the way it works. Soon, some Members will think their thing is exceptional and push to use this precedent, and on and on it will go, if you give the mouse the cookie. You would be upending 50 years of treating preemption waivers as Agency decisions and not rules, 30 years of deferring to the GAO and the Parliamentarian on what constitutes a rule for purposes of the Congressional Review Act, and centuries of Senate precedent and procedure--all that while there is actually another path. In 2019, the first Trump EPA used the administrative process, the Administrative Procedures Act, to withdraw a previously granted Clean Air Act waiver that permitted California to set car standards. So I ask my Republican colleagues: Is this worth it? Is it worth going nuclear in the Senate to accomplish something that the EPA could try to accomplish under the Administrative Procedures Act on its own? Is it worth going nuclear, knowing full well the Pandora's box this will open? I will close with the advice my colleague from California shared from the majority leader, the senior Senator from South Dakota. He said earlier this year that overruling the Parliamentarian would be--and I quote him--``totally akin to killing the filibuster. We can't go there. People need to understand that.'' So, please, do understand that, and don't go there. I yield the floor. The PRESIDING OFFICER. The Senator from California. Mr. SCHIFF. Mr. President, I thank Senator Whitehouse for his remarks. He has been our environmental champion in the Congress for many years, and he led the effort to insist that the Senate follow the rules when it comes to protecting our environment and when it comes to preserving the power of the Parliamentarian. Mr. President, this is downtown Los Angeles in 1955. It was the postwar era, with the rise of the personal automobile, the baby boom, and the rapid expansion of American cities and suburbs in the West. Suddenly, millions of families were experiencing firsthand, and for the first time, the most serious environmental impacts of unchecked industrial and manufacturing activity. Many could not walk through the streets of our cities without handkerchiefs to their face. The iconic Ford and Chevy automobiles of the 1950s and 1960s kept their roofs shut. And, in some cases, the smog was so bad that people mistook it for a chemical weapons attack. And here is the thing: It got worse, not better, over the coming decades. President Trump often speaks of restoring America, of making America great again, taking us back to that postwar period, with the rapid economic expansion and runaway prosperity of the wonder years. Well, his tariff wars have ended any hopes of an economic boom, and he now has the country headed in exactly the wrong direction, toward an economic bust instead. And if he and Republicans get their way in the coming days, our Nation and our air will be on a trajectory back to 1955, all right. We will make an America where our spacious skies will be clogged and smoggy and our purple mountains' majesty will be hidden behind a haze that comes with letting oil companies call all the shots in Washington. Back then, in reaction to these horrific air conditions, as well as devastating oil spills and other environmental hazards, California helped launch the modern environmental movement. In 1966, California became the first State to regulate tailpipe emissions to tackle this smog head-on. In fact, some of our biggest achievements and biggest actions took place under Republican Governors. And wouldn't you take action? I mean, look at this. If this was your city, if this was your State, wouldn't you take action to deal with air pollution this bad, where you can barely make out the skyline, the skyscrapers? Where a body of lawmakers, many of whom, like me, served in State legislatures before coming to Congress, if you saw your State schoolchildren being choked by smog like this, wouldn't you see it as your job to step up, regardless of party politics? That is the fundamental right of any State and its legislature. In the face of threats against your kids and your own families, you do something. And that is what California did and has continued to do, so often setting the standard for the rest of the country. We in California are 1 out of every 10 Americans. We have a right to protect our citizens, our environment, our ability to live. After all, life, liberty, and the pursuit of happiness are all impossible if we can't breathe. In the 1960s, through the Clean Air Act, Congress granted California the ability to set standards for itself when it comes to air pollution. Under Republican President Richard Nixon, we even formed the Environmental Protection Agency. Through Democratic and Republican administrations and Congresses, that authority and promise has been upheld. Nearly 60 years of environmental protection has made the Golden State the gold standard for protecting our planet. But now Republicans in Congress and Donald Trump are willing to ignore their own promises to punish California and to reward Big Oil. They are trying to break the Senate rules to make California's air dirtier, to make it harder and less safe for Californians to breathe, all to please the oil industry. That is just wrong. And don't take it from me. ``We can't go there.'' That is what the Senate majority leader said about the prospect of overruling the Parliamentarian merely 5 months ago, as did his Republican predecessor, who said: Abiding by the ruling of the Parliamentarian is central to the function of the Senate. The Senate Parliamentarian, he said, is the ``final'' word. And, please, if they try to tell you this is not overturning the Parliamentarian, you must not believe them. The Parliamentarian has ruled that this device--this mechanism--cannot be used to overturn California's waiver and its ability to set its own air standards. This ruling from the Senate's independent referee has been explicit and direct, and it should be respected. I realize I am a newcomer to the Senate, and I will not ask my colleagues to stand on the long traditions of this institution, which I barely know, but they must stand by their commitments. They must stand by a State's right to make its own laws to protect its own citizens. If the Senate goes nuclear overruling the Parliamentarian, there is no telling where the Congressional Review Act will be used in the future, by Republicans or Democrats. Could the Senate merely vote to wipe out an entire 4 years of actions taken by a previous President? Will your State's regulations be next? What about your State's funding, your State's ability to administer programs like the Clean Water Act? Precedent can be a hard thing to make tangible, but this is our history. This is what awaits us if we go down this dangerous road: air like this. We will not stand idly by as this administration fights to make California's air unhealthy again. We will fight this. We must. I yield the floor. The PRESIDING OFFICER. The majority leader. Congressional Record, Volume 171 Issue 77 (Thursday, May 8, 2025) LEGISLATIVE SESSION