While the headlines proclaim that both President Trump and Congress together have effectively ended California’s zero emission vehicle (ZEV) efforts, the lawsuit filed by the Golden State in response says the action is “unlawful, unconstitutional and void.”
The lawsuit filed by California Attorney General Rob Bonta was recorded by the U.S. District Court for the Northern District of California on Thursday, the same day President Trump signed the legislation passed by both houses of Congress overruling waivers granted to California by the Environmental Protection Agency. Those waivers allowed the state to implement the Advanced Clean Trucks (ACT) rule, the Omnibus NoX (nitrogen oxide) rule, and the so-called Clean Cars 2 regulation.
As has been the practice since the 70’s, the EPA when it granted its waivers did not submit them to Congress for consideration or approval, with such a submission generally viewed as unnecessary.
However, soon after taking office after the Trump presidency began, EPA Administrator Lee Zeldin did submit them under the provisions of the Congressional Review Act, kicking off the process that culminated in the Presidential signing.
By taking the action it did, according to the lawsuit, “the Federal Government ‘singled out’ these waivers—and the underlying California regulations—for an unprecedented attack, employing a statute—the Congressional Review Act (CRA)—deemed inapplicable by every nonpartisan arbiter and expert who analyzed the question.”
Core argument: rules aren’t waivers
Several times in its suit, California raises its point that the CRA granted Congressional review of federal rules that had gone through the federal rulemaking process. It does not apply to state actions, the lawsuit said.
“No State consented to the CRA as a means for Congress to negate state rules,” the lawsuit said. “Nor would any State have done so.” Quoting an earlier precedent, California said states “do not so easily surrender ‘the dignity … of sovereignty’ they retain in our system of government.”
“The Federal Government ran roughshod over federalism and separation of powers
principles in applying the CRA to these three preemption waiver decisions,” the lawsuit said. “It did so despite EPA’s decades-old, consistent position—reiterated in each of the three actions at issue—that preemption waiver decisions are not ‘rules’ and, accordingly, ‘the Congressional Review Act does not apply.’”
“In fact, the CRA has never before been used in any context that resembles this one,” the lawsuit adds. “It has certainly never been used, as it was here, to negate particular state laws.”
Numerous other states join as plaintiffs
California is not the only plaintiff in the case. It is joined by the states of Colorado, Delaware, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.
Those states (and several others) have agreed to follow the lead of California in spurring ZEV adoption, one of the reasons why the waivers designed to speed the transition to a ZEV fleet have drawn such national interest. The combined heft of California plus its following states is seen as likely to result in OEMs ultimately choosing to follow those rules, given the size of the market, with the regulations promulgated by the California Air Resources Board effectively becoming the de facto national standard.
The lawsuit does note that waivers are subject to review in a federal Court of Appeals.
California’s unique position to be granted a waiver by the EPA under the Clean Air Act rules and implement tougher standards has a tight definition, the lawsuit said. “The waiver provision only empowers EPA to ‘waive application’ of the preemption provision to California, not to make rules,” the suit says. “Until its post-hoc actions challenged here, EPA had likewise consistently maintained that its waiver decisions are not rules and therefore are not subject to a host of requirements that apply only to rules.”
Outside opinions back California
In the runup to the Congressional action, two separate entities weighed in on whether the waivers could be considered rules and therefore subject to the CRA: the General Accounting Office and the Senate Parliamentarian. Both said the waivers could not be considered under the CRA. But those opinions did not have muscle behind them, and Congress went ahead and cast its votes to revoke the waivers under the authority of the CRA.
The California lawsuit does not attempt to argue that the EPA and Parliamentarian opinions barred the action that Congress took. It reads more like intellectual support.
It does argue that Congress did not act on the waivers when they were first published, with the Advanced Clean Trucks’ OK coming down in April 2023. “Any member of Congress could have asked the GAO to determine whether these unsubmitted actions were rules subject to the CRA,” the lawsuit says. “No member of Congress did so.”
When the EPA submitted the waivers to Congress to be considered as rules, it provided “no explanation for EPA’s about-face from its longstanding prior position that waiver decisions are not rules, much less rules of general applicability subject to the CRA,” the lawsuit says.
After the House of Representatives passed the legislation that would allow the CRA to kill the waivers, according to the lawsuit, “No member or committee of the House provided any legal rationale for concluding that waiver decisions are federal agency rules of general applicability that could be subject to the CRA. Nor did any members of the House who had previously expressed the opposite view explain their change of position.”
There are five counts in the lawsuit, including violation of the CRA. More broadly, California charges Congress with “violation of separation of powers” by using the CRA to dismiss a state action.
Among other requests by California are that the court enjoin Zeldin and the EPA “from taking any action to implement or give legal effect to the resolutions” and to declare the reclassification of the waivers as result as “unconstitutional and unlawful”
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