The United States Environmental Protection Agency (US EPA) Administrator Lee Zeldin has announced that his agency will submit the waiver approvals granted for California’s Advanced Clean Cars II (ACC II), Advanced Clean Trucks (ACT) , and Omnibus NOx (Omnibus) regulations to Congress for review under the Congressional Review Act (CRA).

The CRA allows Congress to examine and potentially overturn federal regulations established by government agencies. It provides an expedited review process (60 days) for Congress to quickly consider legislation aimed at overturning a rule. This is done through a “joint resolution of disapproval,” which must pass both houses of Congress and be signed by the President. If signed, the rule will be nullified, and the agency is prohibited from issuing a similar rule unless authorized by future legislation.

In response to this announcement, Rep. Kevin Kiley (R-CA) has announced plans to introduce a CRA resolution specifically aimed at reversing the waiver granted for the ACC II regulation.

The use of the CRA process for this action has raised several questions about its applicability and potential outcomes.

• Are US EPA waiver approvals considered “rules” under the CRA? The CRA applies to final rules, including major rules, non-major rules, and interim final rules. It can also include agency actions that are not subject to traditional notice-and-comment rulemaking, such as guidance documents and policy memoranda. However, it does not apply to presidential actions or non-rule agency actions such as orders. Historically, US EPA waiver approvals have been classified as orders rather than rules. Read more. This is the position of the California Air Resources Board (CARB).

• Is the ACT waiver beyond CRA review? The CRA allows Congress to overturn rules passed in the last six months of a previous presidential administration. However, the ACT waiver was granted in 2023, well outside the six month window. So, is the ACT regulation even eligible for CRA review by Congress? Some believe it is. Read more.

• What could be the potential scope of the outcome? As one commentator noted, when a rule is overturned under the CRA, the agency is barred from enacting a rule that is “substantially similar” in the future. This could potentially prevent California from requesting a waiver for a similar regulation down the line. However, the exact application of this prohibition in this circumstance remains unclear.