Congress Can’t Legally End California’s Tough Air Pollution Law

Republican senators would be choosing to violate the law if they follow through on using the Congressional Review Act to disapprove the Biden administration’s waivers permitting California to set more stringent vehicle emissions standards than the US government.

The wide-ranging institutional consequences of such an action would not only call into question the continued existence of the Senate filibuster but also would mean our elected officials feel empowered to act lawlessly.

CRA disapproval resolutions, which take effect if approved by the House and Senate and signed by the president, can proceed in a streamlined manner and face no Senate filibuster. But the CRA can be invoked only to disapprove widely-applicable rules, not other agency decisions such as adjudicatory orders that focus on specific parties.

The Government Accountability Office, the nonpartisan agency that reviews agency actions for CRA compliance and advises Congress on such matters, has twice concluded, at the request of members of Congress, that California’s waivers aren’t rules subject to the CRA. Just weeks ago, the Senate parliamentarian—the nonpartisan referee on the Senate’s rules and procedures—reached the same conclusion.

Nevertheless, several Republican senators have shown interest in moving forward with the disapproval.

Sen. John Thune (R-S.D.), the majority leader, expressed openness to overruling the parliamentarian’s determination, even though earlier this year he discouraged his party from taking such a step because it could allow passing all manner of bills through filibuster-less reconciliation legislation. He argued that it would be “totally akin to killing the filibuster. We can’t go there. People need to understand that.”

As Thune then recognized, the institutional implications of such a direct affront on the filibuster are wide-ranging. Once that cat is out of the bag, future Democratic majorities undoubtedly would do the same thing—a move Sen. Mitch McConnell (R-Ky.), when he was the Republican leader, said would “break” the Senate.

But an equally important matter has flown under the radar: Congress would be violating the law if it moves forward with this action. The CRA, a statute that Congress enacted in 1996, applies only to “rules,” which have general applicability.

Because the decision to grant waivers for California applies only to a single state, it was an adjudicatory order, as the GAO and the Senate parliamentarian properly determined, not a rule—and therefore not subject to CRA review.

Two attorneys representing industry opponents offered intellectual support for invoking the CRA to disapprove the California waiver. They argued that the waivers have nationwide economic effects, because other states can adopt California’s standards if the Environmental Protection Agency grants California a waiver. As a result, they claimed, the waivers are rules rather than adjudications.

But those decisions are made by individual states, not by the EPA. And simply because an agency’s action has nationwide consequences doesn’t make it a rule.

Many adjudications have nationwide economic consequences. For example, the Federal Trade Commission regularly reviews mergers and acquisitions of large companies to determine whether consumers will be harmed, and the determination to approve or disapprove a merger can have nationwide consequences, affecting product markets, labor markets, and international trade.

But the magnitude of these secondary consequences doesn’t convert the FTC’s adjudications into rules. If Congress had wanted to make CRA disapprovals hinge on the economic consequences of the agency action, it would have written such a statute.

Instead, Congress determined the CRA could be invoked to disapprove “rules,” regardless of whether their consequences are small, and not adjudications, regardless of whether their consequences are large.

The attorneys making the case for Congress to act also argued that congressional actions under the CRA aren’t judicially reviewable, and, therefore, that if Congress disapproves the waivers there would be no recourse. Regardless of whether this claim is correct, the fact that someone might face no consequences for violating the law doesn’t make the action legal.

The Senate now faces a stark choice: It can violate the law by disapproving the California waiver, or it can uphold the law by declining to take this action. Members of Congress, like all citizens, have an obligation to follow the law. It would be a sad reflection of the state of our democracy if our lawmakers failed to do so.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Richard L. Revesz is a law professor and dean emeritus at the New York University School of Law and was the administrator of the White House Office of Information and Regulatory Affairs from 2023 to 2025.

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