U.S. Senate Overturns the “California Car” Mandate
On May 22, the United States Senate approved Congressional Review Act (CRA) resolutions to overturn Biden-era rules granting Clean Air Act waivers to California. The CRA vote to block California’s ban on the internal combustion engine passed by a vote of 51 – 44 with Senator Slotkin (D-MI) voting with Republicans. The vote to overturn California’s Advance Clean Trucks rule was approved 51 – 45 as well as California’s heavy-duty NOx rules, 49 – 46.
The CRA resolutions were strongly supported by the Energy Marketers of America. Under the CRA, Congress is empowered to review “rules” issued by federal agencies, including EPA, before the rules take effect. Congress may review a rule for a period of 60 days and then disapprove it using special procedures, including a joint resolution of disapproval. The EPA transmitted the three waiver approvals to Congress earlier this year, starting the clock for review of the waivers by lawmakers.
Earlier this month, the House approved the CRAs with 35 Democrats in support to stop California from dictating which cars motorists should drive and 13 democrats voted to block California’s electric truck mandate.
California’s ACC II rule included a mandate for vehicle manufacturers to sell increasing percentages of zero-emission vehicles in the State, beginning in model year 2026, and culminating in a ban on internal combustion engine-powered vehicles in 2035. To date, 17 states have adopted portions of California’s light- and heavy-duty vehicle regulations. By design, California’s ACC II rules operate to reduce the liquid fuels market by giving preferential treatment to electric vehicles, thereby injuring energy marketers and others who participate in the market.
Unfortunately, the congressional action does not repeal the Heavy-Duty Diesel (HDD) Emissions Control Program (HDD Program) designed to primarily reduce emissions of carbon monoxide, oxides of nitrogen (NOx), volatile organic compounds (VOCs), particulate matter (PM) and air toxics from new HDD engines and vehicles. The final-form amendments adopt and incorporate by reference certain requirements of the California Exhaust Emission Standards and Test Procedures for 1985 and Subsequent Model Year Heavy-Duty Engines and Vehicles as authorized under section 177 of the Clean Air Act (42 U.S.C.A. § 7507) (CAA). Earlier this month, PA DEP announced the enforcement suspension of the Pennsylvania Heavy-Duty Diesel Emissions Control Program will be extended until January 2, 2028 (read more here). The PPA supports federal and/or state to fully repeal this California based program in the future.
Shortly after the Senate vote, California’s Attorney General Rob Bonta said that the State will file a lawsuit against the Trump administration to ensure that it can continue to set its own vehicle emission limits under the Clean Air Act. While Attorney General Bonta refused to detail California’s legal arguments for challenging the congressional vote overturning the State’s phase-out of internal combustion vehicles by 2035, it is expected that the State will assert that the Congressional Review Act does not apply to waivers granted by EPA. The statute has not been used in the past to rescind a Clean Air Act waiver. California Governor Gavin Newsom also made a political argument for continuing the waivers, urging the federal government to get out of the State’s way on vehicle technology (i.e., EVs) and climate change leadership, and saying that the congressional Republicans will “Make America Smoggy Again.” The Governor also contends that overturning the waiver will give the keys to EVs to China.
