Anyone hoping that Congressional Republican leaders would follow generations of precedent regarding the role of the non-partisan Senate Parliamentarian or the Government Accountability Office (GAO) had a very bad day yesterday. Senate Majority Leader John Thune (R-SD) announced he would schedule a vote, perhaps as soon as today, attempting to revoke California’s clean-air standards for freight trucks and personal automobiles.
In brief: Under the Clean Air Act, California has the right to set its own clean-air standards because the state’s efforts to remove smog from the air preceded the federal effort. However, California needs a waiver from the EPA before any rules more stringent than the federal ones take effect.
In December, the EPA granted a waiver to California allowing the state to set deadlines for converting new car sales to zero-emission vehicles and shifting freight travel away from diesel trucks. Republicans will use rules created under the “Congressional Review Act” (CRA) that allows the rescission of federal rules with a majority vote not the 60 votes needed to break a filibuster. The Parliamentarian and GAO say the CRA doesn’t apply to waivers. Thune disagrees.
“This week, we’re going to be moving to take up Congressional Review Act resolutions to overturn Clean Air Act preemption waivers the Environmental Protection Agency granted to California...effectively imposing a nationwide electric vehicle mandate,” Thune said on the Senate Floor yesterday.
While Republicans hold a majority in the Senate and can pass the CRA resolution with 51 votes, they don’t have enough seats to defeat a filibuster. California’s two Democratic Senators aren’t accepting Thune’s attack on California's right to clean its own air lying down.
“It’s not just why Republicans are trying to undermine California’s climate leadership. It’s how they’re trying to do it,” said Senator Alex Padilla (D-CA).
“Republicans are effectively saying that whenever the Parliamentarian rules against them, they can simply disregard her to bypass the filibuster and pass legislation on a simple majority vote. So no, this isn’t some one-off change to the rules — this is throwing out the rulebook entirely.”
Democratic leaders in the Senate have rallied to Padilla’s side. Yesterday, Minority Leader Chuck Schumer (D-NY) and Senator Sheldon Whitehouse (D-RI), the ranking Democrat on the Senate Environment and Public Works Committee, joined Padilla both on the Senate Floor and by issuing a statement condemning the Republicans’ threatened action. Fellow Democrat Adam Schiff (D-CA) has also actively and loudly opposed the Republican effort.
There are a few different ways that Democrats are hoping to stop Republican leadership from winning by using the CRA.
The first is in the Senate chambers. Politico has identified four Republican Senators who leadership is still trying to convince to vote for rescinding the rule. Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, John Curtis of Utah and Bill Cassidy of Louisiana were all still on the fence, per this morning’s reporting. Should all four vote with a unified Democratic party, Republicans would not have a majority vote.
A second way is through the courts. Should the Senate follow through on Thune’s promise and the resolution is signed by President Donald Trump, California has already promised a lawsuit challenging the rescinding.
Should both of those methods fail, Democrats have vowed that “all bets are off” should they regain the majority. In the meantime, Padilla is using existing confirmation rules to “slow walk” four of Trump’s nominees to EPA leadership positions in protest.
