Senate overturns California’s electric vehicle mandate

The Senate voted 51-44 to overturn California’s electric-vehicle mandate via the Congressional Review Act on Thursday, defying the Government Accountability Office and the Senate parliamentarian.

Elizabeth MacDonough, the Senate’s parliamentarian, said the chamber could not use the Congressional Review Act (CRA) — a maneuver that permits a 50-vote threshold for overturning agency rules in the Senate, rather than 60 — to remove California’s emissions waivers from the Environmental Protection Agency.

But Senate Republicans were adamant that MacDonough’s deferral to the GAO, which also said the CRA was inappropriate for overturning California’s EPA waivers, justified moving ahead with the vote anyway.Republicans also pointed out that the parliamentarian had not made a formal ruling on the matter.

“We’re going to assert the authority of the Senate today to use the Congressional Review Act on rules that have been submitted to Congress,” Senate Majority Whip John Barrasso on Wednesday told NOTUS. “The GAO does not have a veto power.”

The vote required some corralling from Republican leaders. To begin with, a handful of moderate GOP senators appeared hesitant to support the measure, including Sens. Susan Collins, John Curtis and Lisa Murkowski. Leadership worked to persuade the holdouts, including a closed-door presentation at the Senate GOP’s lunch last week.

Corralling the doubters

By Wednesday, the holdouts came around. Ahead of the vote, Collins said she was “likely” to support the measure, noting she supports the underlying effort to nix the California waivers.

Senators then squabbled overnight in a series of wonky procedural votes. Senate Minority Leader Chuck Schumer repeatedly sought to adjourn or break for recess, pushing back hours. Thune, meanwhile, forced a point of order asserting the Senate’s right to move ahead as they see fit on the CRA.

“The effort here is to ensure that you’re not overruling the parliamentarian,” Murkowski said. “To have the agency determine it’s a rule and then to have GAO counteract that, we haven’t had that before. And so there really is no precedent for the parliamentarian here.”

Collins and Murkowski ultimately voted in favor of the resolution. Curtis — who prior to the vote told NOTUS he was not making any comments on the matter — also supported the resolution.

There are three California waivers, each voted on individually. This was the first, which addressed California’s plan to phase out gas-powered cars. The other two address tailpipe emissions from cars and trucks, including one focused specifically on smog-forming pollutants.

Senate Democrats — who delayed the vote overnight Wednesday via repeated procedural votes — said ignoring MacDonough could have implications for the future of the 60-vote filibuster, calling the vote the “nuclear option.” The parliamentarian is responsible for deciding which parts of the coming reconciliation bill must be subject to the 60-vote process under Senate rules, decisions that historically limit what the majority can accomplish during the reconciliation process.

“Republicans just overruled the Parliamentarian, violated the plain text of the Congressional Review Act, changed the Clean Air Act, and broke the filibuster. They falsely claimed that the waivers were exceptional,” Sen. Sheldon Whitehouse said in a late night statement Wednesday after Republicans voted on the motion to proceed.

Senate Majority Leader John Thune called such concerns “hysterical” during a floor speech Tuesday, accusing the Democrats of hypocrisy. A number of Senate Democrats have called to outright abolish the filibuster, and in 2022, Senate Democrats attempted to create a filibuster carveout for voting rights legislation. The effort failed because of former Sens. Kyrsten Sinema and Joe Manchin’s opposition.

“I want to make two things crystal clear, the procedural action we have taken today is not about the filibuster and not about the parliamentarian,” Sen. Shelley-Moore Capito said on the Senate floor Wednesday night. “My Democrat colleagues say that our action today undermines the legislative filibuster, and that is simply not true. I support the legislative filibuster. I have supported the legislative filibuster as a senator in the majority and as a senator in the minority.”

‘Untethered expansion’

But Democrats and former Biden officials saw the GOP’s decision much differently.

“This is an untethered expansion of the CRA beyond the limits that Congress contemplated when it passed this legislation,” said Richard Revesz, the former director of the Office of Information and Regulatory Affairs under the Biden administration. Revesz warned that, with this precedent, any future administration — if the White House also controls the House and Senate — could try to repeal other previously protected agency actions.

California’s leadership opposes the Senate’s decision to vote on its waivers, but it’s not clear what moves the state can make moving forward. The CRA has been so rarely used that it’s not clear whether the Senate’s vote can be subject to any kind of legal challenge or if any challenge would succeed, legal experts told NOTUS.

It’s possible California could sue to try to force a judge to determine whether today’s votes were actually overturning rules, said Craig Segall, a former executive at the California Air Resources Board.

“There’s a threshold question: Are these CRA votes at all or are they just called that? Which a court will have to resolve,” Segall said.

It’s also possible that a state might choose to continue enforcing the regulations because they don’t believe the Senate vote has legitimately removed the waivers, though Segall said taking that course could have political consequences.

The use of the Congressional Review Act resolution is inconsistent with past precedent and violates the plain language of the Congressional Review Act itself as recognized by both the nonpartisan and well-reasoned analyses of the U.S. Government Accountability Office and the Senate parliamentarian,” a spokesperson with the California Air Resources Board told NOTUS.

“The vote does not change CARB’s authority,” the spokesperson added. “CARB will continue its mission to protect the public health of Californians impacted by harmful air pollution.”

Much of the auto industry has lobbied heavily for the revocation of California’s vehicle emissions rules, arguing that the regulations would greatly limit auto manufacturers’ freedom to produce and sell all types of cars across the country.

The size of California’s economy, combined with other states embracing the same rules, means the state’s coming electric vehicle mandate could significantly reshape the auto market across much of the country.

“Repealing gas vehicle bans in California and 30 percent of the U.S. auto market is among the most important policies to restore some balance to vehicle emissions regulations,” the Alliance for Automotive Innovation said in a statement, continuing that such a decision would “support a healthy and competitive auto industry in America” and would “ensure customers remain free to choose the type of vehicle that works for them and their family.”

Anna Kramer and Ursula Perano are reporters at NOTUS. Em Luetkemeyer is a NOTUS reporter and an Allbritton Journalism Institute fellow. This story was produced as part of a partnership between NOTUS and San José Spotlight.