The ongoing effort of the Trump Administration and Republicans in the Senate to use the Congressional Review Act to effectively amend the Clean Air Act without having to break the filibuster hit a skid this week when the U.S. District Court for the District of Columbia granted an injunction and ordered the Environmental Protection Agency to withdraw or correct their reclassifications of four California waivers.

This is not the first time that EPA has reclassified California waivers under the Clean Air Act (CAA) from “adjudicatory orders” to “rules” in order to enable them to be considered for resolutions of disapproval under the CRA and thereby qualify for a 50 vote margin for passage. EPA and Congress successfully used the CRA to overturn and bar future “substantially similar rules” for the waivers granted for three California state vehicle emission regulations last May. This latest effort targets California vehicle regulations that have been on the books for longer, with one dating back to 2009.

The injunction orders EPA to withdraw or correct all public statements about reclassifying the orders, including their original June 12 press release. As of the date of this writing, that press release has not been modified or taken down and EPA has made no public statement acknowledging the injunction. Bloomberg Law reported receipt of an emailed and unsigned statement from EPA indicating that the agency is “considering immediate appeal options.”

Clean Air Act and California Waivers

The Clean Air Act preempts state standard setting but also expressly directs EPA to “waive” preemption for California due to their severe air pollution and existing expertise on vehicle emissions regulations. (The first CA regulations were created in the 1950s well before passage of the Clean Air Act in 1965.) Since enactment of the CAA, EPA has granted California more than seventy-five preemption waivers for updates to the State’s emissions control programs, dating back to the first waiver of emission standards for model year 1969 vehicles.

The waiver authority in the CAA is quite directive to EPA. The Administration must approve the waiver request unless one of three conditions is present: that California’s standard is arbitrary and capricious; that the state doesn’t need a state standard to meet compelling and extraordinary conditions; or that the state standards are inconsistent with EPA standards. It further makes clear in statute that EPA must grant deference California’s policy judgements when reviewing a waiver request. The CAA also does not provide any express authority for EPA to reconsider or withdraw a waiver once granted. Nonetheless in 2019, under the first Trump Administration, the EPA did withdraw portions of a previously granted waiver, relying on analysis from the NHTSA fuel economy regulations and citing changed circumstances and a new interpretation of the CAA. The Biden Administration repealed the Trump era fuel economy regulations and EPA issued a notice rescinding the waiver withdrawal, stating in the Federal register that “EPA did not appropriate exercise its limited authority to withdraw a waiver once granted.” Their reissuance of the waiver was challenged in Ohio v. EPA but the D.C. Circuit sustained EPA’s decision. (That reissued waiver is one of the reclassified waivers at question in this current litigation.)

CRA Strategy

Enacted in 1996, the Congressional Review Act (CRA) allows Congress to review and disapprove rules issued by federal agencies for a period of 60 congressional session days. Importantly, the CRA provides expedited procedures for consideration. Specifically, a petition of just thirty Senators enables the CRA resolution of disapproval to be discharged from Committee consideration (e.g. it can’t easily be killed in committee); the motion to proceed (MTP) on the resolution is non-debatable; the resolution must get a vote after up to 10 hours of debate; no amendments are permitted; and most importantly both MTP and final passage are subject to a simple majority for passage. In other words, the CRA provides a filibuster work-around.

Enacting a CRA resolution of disapproval not only means that the rule has no force or effect but also binds future administrations from promulgating rules that are “substantially the same” as the voided rule. The CRA statute also bars any judicial review of any “determination, finding, action, or omission” under the CRA.

So essentially, by using the CRA to nullify California waivers, the Trump Administration and Republican majority can invalidate California’s vehicle emission regulations without having to fully dismantle filibuster protections, as would be needed to actually amend the Clean Air Act to remove the waiver authority.

The problem is that the CRA may only be used on rules, and the California waivers are adjudicatory orders, which are not rules.

There is sometimes uncertainty as to whether a given agency document or decision is a rule and therefore subject to the CRA, and if an agency does not consider a document a rule they therefore would not submit the rule to Congress and start the CRA 60 day clock. In those situations, members of Congress may request that the Government Accountability Office (GAO) review the document to determine whether it’s a rule pursuant to the CRA, and the GAO decision serves as the start of that clock.

But the GAO has been asked to determine whether California waivers are in fact rules and subject to the CRA. In both instances – first in 2023 and again in 2025 – they have determined that the waivers are not rules. In 2025, when EPA notified GAO that it was reclassifying waivers as rules, GAO responded to both EPA and Congress that the reclassification was improper and that actions were not subject to the CRA. The Senate parliamentarian then also ruled that rules were not subject to the CRA and therefore consideration of the resolution of disapproval was not subject to a simple majority vote.

In order to avoid explicitly overruling the Senate Parliamentarian last year, Majority Leader John Thune (R-SD) offered a “point of order that joint resolutions that meet all the requirements of section 802 of the Congressional Review Act or are disapproving of Agency actions which have been determined to be rules subject to the CRA by a legal decision from GAO are entitled to expedited procedures under the Congressional Review Act.”  And deciding that the joint resolution met said requirements, Senate Republicans adopted the point of order and disregarded other Senate rules in order to repeal three California waivers with a simple majority vote.

Those resolutions of disapproval are subject to ongoing litigation brought by the state of California, calling the federal actions “an unprecedented attack…employing a statute—the Congressional Review Act (CRA)—deemed inapplicable by every nonpartisan arbiter and expert who analyzed the issue” and alleging the resolutions violate separate of powers and federalism principles.

Latest Actions and Litigation

This most recent instance of reclassifying adjudicatory orders as rules in order to enable a CRA vote began on June 12, when EPA reclassified four California preemption waivers: the state’s 2009 passenger and light duty trucks rule, the 2013 waiver for the advanced clean car program, the 2022 reinstatement of the advanced clean car waiver, and the January 2025 waiver for small off-road engines. On July 22, EPA also reclassified an additional two waivers as rules: the 2023 waiver for ocean-going vessels at-berth that had focused on port electrification, and January 2025 waiver for commercial harbor craft regulations. When reclassifying the orders as rules, EPA did not complete any analyses required under the Administrative Procedures Act (APA) for regulations.

Members of Congress quickly took the opportunity to introduce resolutions of disapproval, with Senators Husted (R-OH), Ricketts (R-NE), Schmitt (R-MO), Lummis (R-WY), Sullivan R-AK), and Moreno (R-OH)  leading the CRA resolutions in the Senate and Representatives Gallagher (R-CA), Obernolte (R-CA), Fong (R-CA), Palmer (R-AL), Hageman (R-WY), Pfluger (R-TX), and Joyce (R-PA) leading resolutions in the House.

California filed for an injunction on the EPA reclassification on June 22.

In his opinion, Judge Beryl Howell accused the EPA of playing “word games” and using Orwellian double speak by simultaneously arguing that EPA had determined that the waivers should be reclassified as rules, though not complying with APA, but also that the EPA taken no action other than submitting a report to Congress and therefore no rights of California or other states were affected. Noting that the “two explanations are irreconcilable”, Judge Beryl ordered EPA to reinstate the waivers.

Other California Clean Air Litigation

Meanwhile, this litigation is not the only ongoing suit regarding California’s vehicle emission regulatory authority. As noted above, California is also litigating enactment of the 2025 CRA resolutions of disapproval. In addition, California is the defendant in a suit filed by US Department of Justice and USDOT that alleges that the California’s emissions regulations and requirements for zero emission vehicles are de facto fuel economy regulations, and therefore preempted under the Energy Policy and Conservation Act (EPCA), which gives the National Highway Traffic Safety Administration the authority to establish uniform, nationwide vehicle fuel-economy standards. Three fuel trade associations— the American Fuel & Petrochemical Manufacturers, Energy Markets of America, and the National Association of Convenience Stores—have requested to join the lawsuit in support of the federal government, alleging they have been harmed by California’s regulations “because they are designed to decrease demand for the very liquid fuels members produce, supply, market, or sell.”

The California Air Resources Board has filed a motion to dismiss NHTSA’s suit, noting that EPCA was enacted subsequent to the Clean Air Act and that Congress directed NHTSA to consider the effect of emission standards, including those standards applicable as a result of a California waiver. Courts have previously considered whether EPCA preempts the California authority to set emission standards in two separate suits brought by vehicle manufacturers in 2007 and held that EPCA was not preemptive.