Senate Republicans are weighing whether to defy the parliamentarian as they explore ways to reject California’s plans to phase out gasoline-powered vehicles by 2035 and other related mandates.
Last week, Parliamentarian Elizabeth MacDonough ruled that Biden administration waivers for three vehicle pollution standards are not rules and that federal lawmakers can’t nullify them under the Congressional Review Act.
The CRA allows Congress to repeal newly issued rules by simple majority, and Republicans have been eager to use it against the California waivers. They are also under pressure from industry lobbyists.
The question is: Will Majority Leader John Thune (R-S.D.) agree with ignoring both the Government Accountability Office and the parliamentarian?
“We’re looking at our options right now,” said Environment and Public Works Chair Shelley Moore Capito (R-W.Va.) this week. “Obviously we have other priorities so we won’t really finalize that till after the break.”
Republicans in both the House and Senate have introduced three CRA resolutions against the Biden waivers. They have to decide by May whether to pull the trigger.
Even though the parliamentarian’s ruling is nonbinding, Thune has spoken about following her decisions. Some lawmakers see defying the parliamentarian’s rulings as an attack on the filibuster. Thune’s office has not responded to requests for comment.
EPW ranking member Sheldon Whitehouse (D-R.I.) said, “They have repeatedly said that they would not go nuclear, and they would respect the power of the filibuster, and this will show whether they are honest about that.”
Capito said she’s not worried about setting a precedent. “I think it’s more a function of — there’s lots going on right now, so we have a little bit of time now.”
Other senators suggested there’s been a fair amount of discussion on the topic. “We’re looking at the mechanics but this is a very odd duck — it’s very different,” said Sen. Thom Tillis (R-N.C.). “We’re trying to figure out why we even got here.”
Before the parliamentarian, it was Congress’ watchdog — the GAO — that first ruled against using the CRA to overturn the waivers. The GAO has historically been a referee on the CRA, something Republicans are not happy about.
“It’s very concerning to me in a matter of eight business days, in a seemingly partisan and political move, GAO issued observations that the EPA waivers — which have already been submitted to Congress for review — were not [rules] and therefore not subject to CRA,” Rep. David Valadao (R-Calif.) said during a House Appropriations subcommittee hearing.
Comptroller General Gene Dodaro, who heads the GAO, refuted the idea that anything suspicious was going on. “We were asked by three members of Congress to provide our legal opinion — something we do all the time,” Dodaro said.
He told lawmakers the Senate parliamentarian is the one to decide about the anti-waiver resolutions. “That’s not our role,” said Dodaro.
The Clean Air Act allows California to set more stringent emissions rules, with EPA’s blessing, and other states can follow suit. Tillis called the waivers a “backdoor way of making California regulatory decisions national standards.”
“I’m completely against that,” he said.
Reporter Timothy Cama contributed.
