Last year, we called on all our members to reach out to their federal representatives in defense of the Clean Air Act’s provisions regarding tailpipe emissions from vehicles. Unfortunately, we lost that fight, and Congress used the Congressional Review Act to strip states of the right to enforce several key vehicle regulations described in this blog post. Now, they’re at it again.

The Clean Air Act & Vehicle Regulations

The Clean Air Act makes it the job of the federal government to regulate vehicle efficiency and emissions. Unfortunately, the Trump administration has been outright rejecting that responsibility, repealing the Environmental Protection Agency’s (EPA’s) greenhouse gas regulations for vehicles and weakening the National Highway Traffic Safety Administration’s efficiency standards, known as the CAFE standards.

However, when the Clean Air Act was passed, California had already started implementing its own vehicle regulations to combat the dangerous air pollution blanketing the state at the time. As a result, the Clean Air Act has a provision that allows California to write and implement vehicle standards that are stricter than those of the federal government. The section giving it this authority, Section 177, also allows other states to opt into California’s standards. Before any of this can happen, EPA has to grant California a “waiver,” allowing it to proceed with its stricter regulations. The EPA, over the years and under different administrations, has granted this waiver for 75 different standards, none of which had been subject to congressional review.

Last year, Congress used the Congressional Review Act (CRA) to rescind the waivers the EPA had granted for three key regulations described in more detail here: Advanced Clean Cars II, Heavy-Duty Omnibus, and Advanced Clean Trucks. The Congressional Review Act exists to allow Congress to review and overrule rules by executive branch agencies. Once a rule is repealed, it also prohibits an executive agency from writing a new rule that is effectively the same. However, many legal scholars believe that the use of the CRA for these waivers was not legal: “rules” are different from “waivers” legally, and thus the CRA should not be applied to Section 177 waivers. Both Massachusetts and Rhode Island joined with eight other states in a lawsuit on this matter, which is still pending.

What’s Happening Now?

Earlier this summer, the EPA tried to "reclassify" four waivers into “rules” that would be subject to the CRA. These waivers included greenhouse gas standards that began in 2009 and Advanced Clean Cars I (which got its waiver in 2013)—standards with which automakers have been complying for years. These standards have not only been reducing pollution and improving public health but saving drivers money by ensuring that new vehicle models get more efficient over time.

California responded immediately: Attorney General Bonta, California Governor Gavin Newsom, and the California Air Resources Board filed a lawsuit. In July, the EPA tried to reclassify two more waivers, this time related to emissions from ships, even as the lawsuit was pending.

On September 2, a federal court granted a preliminary injunction, finding that the EPA unlawfully reclassified the waivers. The Justice Department then appealed that ruling, and the House of Representatives voted to use the CRA to rescind the waiver on September 16.

Where do we go from here?

The Senate may or may not take up the vote following the House, especially since the legality of the reclassification is still being fought out. The confusion here is part of the point: the Trump administration wants to weaken every possible tool at states’ disposal to reduce the use of polluting fossil fuels.

What can we do? We can reach out to our federal delegation to let them know that our ability to fight climate change at the state level is being threatened by federal action. We wrote to our four Senators in Massachusetts and Rhode Island with this message; we encourage you to do the same. You can use this template, whether you call or email:

Hello, my name is ____ and I am a constituent of Senator ____, living in ____. I am reaching out to urge Senator ___ to oppose the use of the Congressional Review Act to prohibit states like mine from implementing vehicle standards that protect our air, climate, and health. I am deeply concerned by the actions the Environmental Protection Agency has taken to roll back regulations. With that context, it’s more important than ever that states have the right to implement their own regulations. Thank you for your attention to this matter.

Here’s the contact info you’ll need: