The Congressional Review Act (“CRA”), enacted in 1996, allows Congress to disapprove federal regulations promulgated by government agencies within 60 legislative working days after the rule is submitted to Congress. In order to disapprove a federal regulation, Congress must approve a joint resolution of disapproval that then goes to the President for signature. If the joint resolution is signed by the President or passed over a presidential veto, the disapproved rule either does not take effect or does not continue. Once a joint resolution of disapproval is enacted, the CRA provides that a new rule may not be issued in “substantially the same form” as the disapproved rule.
Prior to the first Trump Administration, the CRA was rarely used, with a federal rule disapproved pursuant to the CRA only once (during the 107th Congress in 2001). In contrast, during the first Trump Administration, the CRA was used to disapprove 16 federal rules promulgated during the Obama Administration. Last week President Trump used the CRA in a new way to block three Clean Air Act Title II preemption waivers that EPA granted to California during the Biden Administration between April 2023 and January 2025. Unsurprisingly, California and other states have filed new litigation in the U.S. District Court for the Northern District of California that challenges this action and has the potential to define the limits of Congress’s reach under the CRA.
By way of background, the Clean Air Act’s Title II waiver provision requires EPA to grant California a waiver from the Clean Air Act’s preemption of individual state regulation of motor vehicle emissions and allow California to set standards stricter than national emissions levels if the standards meet specified conditions. 42 U.S.C. §7543(b)(1). Once EPA grants the waiver, compliance with the California standard shall be treated as compliance with the applicable federal standard. 42 U.S.C. §7543(b)(3). Other states then have the option of adopting the federal regulations or the California regulations. 42 U.S.C. §7507.
While EPA’s federal vehicle emission standards promulgated under Title II of the Clean Air Act are rules that are subject to review under the CRA, EPA has consistently taken the position (including during the first Trump Administration) that its waiver decisions are not rules and therefore are not subject to the CRA. Consistent with this position, the Biden EPA did not follow rulemaking procedures when considering California’s waiver requests. Instead, EPA followed its traditional practice, providing notice to the public that it had received a waiver request from California and providing opportunity for public comment on the waiver requests. When EPA granted California’s three waiver requests between April 2023 and January 2025, EPA did not submit those waivers to Congress when they were published in the Federal Register pursuant to the CRA because the waivers are not rules.
Pursuant to President Trump’s day-one Executive Order that “state emissions waivers that function to limit sales of gasoline-powered automobiles” should be “terminat[ed],” EPA submitted the three waivers granted to California during the Biden administration to Congress for CRA consideration on February 19, 2025. After receiving EPA’s submittal, the Government Accountability Office (an independent, non-partisan agency that works for Congress) observed on March 6, 2025 that the California waivers are not rules for purposes of CRA and instead are orders under the Administrative Procedure Act. The Senate Parliamentarian reportedly agreed on April 4, 2025 that EPA’s California waivers are not rules subject to the CRA. Nevertheless, on May 22, 2025, Congress passed joint resolutions under the CRA disapproving the three California waivers granted by the Biden EPA. President Trump signed the joint resolutions on June 12, 2025. Notably, President Trump is taking the position EPA is prohibited approving future waivers for California because of the CRA provision that prohibits EPA from taking substantially the same actions as those disapproved in the joint resolutions.
In response, the States of California, Colorado, Delaware, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington filed suit against the United States, EPA, and President Trump on June 12, 2025, challenging their use of the CRA to disapprove the three California waivers on the basis that doing so was ultra vires and exceeded statutory authority, violated the Administrative Procedure Act, violated the CRA, and violated several constitutional provisions and seeking declaratory and injunctive relief. The case will be one to watch closely given its implications on the fate of the California waiver, as well as the scope of the CRA, and has the potential to reach the Supreme Court. Follow our blog for more updates as they unfold.
[View source.]
