California filed its latest lawsuit against the Trump administration last month in federal court in Washington, D.C. Like dozens of others, this lawsuit seeks to preserve enormously costly programs that give Sacramento power over national markets. But this suit is different in one striking respect. While couched as a request that the court somehow make the Environmental Protection Agency unsend four letters it recently transmitted to Congress, the real target is Congress itself. If successful, California would effectively enjoin the legislative process – an odd way to celebrate 250 years of independence from unaccountable tyranny.
Perhaps more remarkable than the lawsuit itself is the collective shrug it’s received in Washington. Members of Congress in particular seem not to be paying attention, perhaps because they fail to grasp the full implications of what California is attempting or perhaps because they’re distracted by other things. Regardless, failure to respond to this threat, and to the larger policy matters in play behind it, would be political malpractice.
The backdrop here is a wrinkle in the Clean Air Act. That law forbids states from regulating emissions from new motor vehicles and other mobile emissions sources, from yard equipment to supertankers. But it makes an exception for California. EPA can give California a “waiver” of Clean Air Act preemption. Such waivers are a favorite tool of progressive administrations to supercharge California’s anti-fossil-fuel policies. And because other states can copy California’s motor vehicle rules, what starts in Sacramento rarely stays there.
The Trump administration and bipartisan majorities in Congress last year legislatively repealed EPA waivers for a trio of California electric-vehicle mandates under the Congressional Review Act, or CRA. When an agency sends an action to Congress under that law, it starts a 60-day window for legislators to “disapprove” the rule by a simple majority vote – no filibuster. By sending those three waivers to Congress, EPA Administrator Lee Zeldin teed up one of the biggest affordability wins of the last two years – saving Americans hundreds of billions of dollars and ending deeply unpopular state electric-vehicle mandates.
Strangely, however, neither EPA nor Congress sought to repeal any of the many other ill-conceived waivers until a few weeks ago, when the agency sent four more to Congress, including a 2013 waiver that allows California to impose stringent greenhouse gas emissions standards on nearly half of the U.S. auto market.
Yet EPA’s revived effort has not met with the same enthusiasm from legislators, and the executive branch has unsurprisingly held off sending any other waivers, including a 2023 waiver for California’s “Ocean-Going Vessels At-Berth” regulations. These rules require large ships visiting California ports to retrofit so they can plug into shore power or to install California-approved emissions-capture systems while docked. Both options will cost millions per ship. Without either, ships must pay up to about $15,000 per hour to a slush fund controlled by the California Air Resources Board. In practice, Vessels At-Berth is an export/import tax that applies to well over a third of our international commerce, driving up the price of gasoline, food, and basically every other kind of good. Repealing this should be a layup. Congress should be asking for this waiver to be sent over. By not doing so, and by failing to move on the four waivers that EPA has sent, lawmakers have given California time go on the offensive in court.
This brings us to the two demands California makes in its suit. The first is radical enough: Despite the CRA’s prohibition on judicial review, California asks the court to impose a no-contact order on EPA, forbidding it from sending Congress CRA notification letters about any other waivers. California’s theory is that waivers are not “rules” covered by the CRA, but “orders,” like Social Security disability determinations or grazing permits, which are exempt from that statute’s notification requirements. California is wrong. As the Ninth Circuit has explained, an action that gives federal regulatory power to states “has all the hallmarks of a rule.” And regardless, the CRA says that all actions taken “under” that law by federal agencies or Congress are not subject to judicial review.
California’s second demand, though, is unprecedented: It asks the court to unring the bell, forcing EPA to “withdraw” its four earlier submissions. This directly implicates Congress, which has acknowledged receipt of EPA’s letters, triggering the CRA’s 60-day review clock.
As a legal matter, California’s argument is doomed. The CRA could not be clearer that federal courts simply have no authority to police what the executive branch transmits to Capitol Hill under that statute. Further, the court can’t enjoin Congress in any event – it’s not even a defendant. But while EPA is sure to win in the long run, similar legal hurdles have not stopped district courts from overreaching in other contexts. And even a temporary court order against EPA alone – no matter how flawed – will inevitably create confusion and delay in Congress.
Giving California time for its gambit to play out has no upside. Congressional leadership should act decisively and schedule votes on the four waivers EPA sent, and EPA should send over any other waivers that are harming Americans.
