H.J. Res. 88

Floor Speech

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Mr. WHITEHOUSE. Mr. President, today, the Senate has done something unprecedented. Our actions and the ones that will follow from the procedural steps taken here today, over the next day or so, will change the Clean Air Act, will change the Congressional Review Act, will change the rules of the Senate, and will do so by overruling the Parliamentarian and breaking the filibuster.

In effect, going nuclear. The Republicans can say what they like about this, but the fact of the matter is that the Parliamentarian ruled that the Congressional Review Act does not permit what we are doing.

And she did so on the basis of advice from the Government Accountability Office, which was given that role by the Senate, given that role in a bipartisan agreement years ago.

So we are de facto legislating here, amending the operation of the Clean Air Act to remove a statutory waiver for the State of California, amending the Congressional Review Act, so it is no longer the narrow provision only about rules with a short timeframe that the Senator from West Virginia described.

That may have been what the Congressional Review Act was like until today, but after today, none of that is true any longer because of this action.

It did not have to come to this. It did not have to come to this. There were many ways around the procedural shortcut of going nuclear, where a majority of the Senate shoves its view on the minority, without consideration, without cloture, without 60 votes, without negotiation, just rolling the minority in order to get what they want done. That ought to be a last recourse for a desperate majority, but instead it was the first recourse because this is the easy way to do what the fossil fuel industry wants.

Now, one way to do this would have been to go and amend the Clean Air Act and amend the Congressional Review Act through regular order, the way the laws were created, through bicameralism, with both Houses passing the bill and the President signing it. They have been amended over and over again. We know how to amend those laws. That is what we call in the Senate regular order. But regular order would have required compromise, would have required effort, would have required working with Democrats, and the fossil fuel industry didn't want to put up with any of that. They wanted the Republican Party to jam this through, and that is what happened.

So regular legislative order--not interested, not going to do it. That was one way. The second way would have been to go to EPA and have them follow an administrative process, which they had already started in the first Trump administration, to review the three predicates for the waiver administratively.

Now, the problem is that would have taken a certain amount of administrative effort out of EPA, and it also would have required EPA to meet the basic standards for Agency action, that the Agency action be rationally based and not arbitrary and capricious.

If they made a decision that had no rational basis and was arbitrary and capricious, then it could be challenged in court and knocked down. So rather than allow the Agency to go through that administrative process, subject to those very standard requirements of not being arbitrary and capricious and having a rational basis, they came here where it can be as arbitrary and capricious as you please, where it can have no rational basis as long as you have got the votes and are willing to roll the minority.

So that is the second avenue that Republicans could have followed here, that the fossil fuel industry could have followed here, but simply didn't want to.

The third avenue that they could have undertaken was to go talk to California. This is California's waiver. Last I heard, California had a Governor. Last I heard, the United States has a President. They could talk. They could invite the fossil fuel industry into the room. They could invite the auto industry into the room. They could invite environmental groups and health groups into the room.

They could say: Look, we want to have some consideration here. Let's negotiate. But they didn't want to do that because they had this quick and dirty, sneaky maneuver that they could pull off so they didn't have to negotiate, they didn't have to legislate, and they didn't have to use regulatory process. All those rules were available, and yet this was the shortcut that was chosen.

Now, we have repeatedly heard it said--in fact, it was recently said just now on the floor--that President Biden claimed that what was being done with the California waiver was not a rule, claimed that it was not a rule. Do you know why the Biden administration claimed it was not a rule? For the simple reason that it was not a rule.

It did not go through the APA rulemaking process, and it had a history. And I have got a summary of that history right here.

The EPA started granting waivers to California under this Clean Air Act process in 1968. The first waiver was granted on July 11, 1968. And this summary of the waivers that have either been granted or amended or modified over the years, 131 times. The score on whether the California clean air rule is treated by EPA as a waiver or a rule, it is 131 to 0.

It is nearly 50 years of constant practice undisputed. Under President Nixon, 15 times a Republican EPA granted the waivers. Under President Reagan, 33 times a Republican EPA granted the waivers. Under President George H. W. Bush, nine times a Republican EPA granted the waivers. Under George W. Bush, 15 times a Republican President granted the waivers. A waiver for half a century has never once been treated as a rule.

So it really ought to come as no surprise to anybody that the Biden administration did not treat it as a rule. The Reagan administration didn't treat it as a rule. Neither Bush administrations treated it as a rule. No Republican administration since the passage of the Clean Air Act has treated these California waivers as a rule. It just isn't so.

So it is pretty clear that with this history of waivers, there was a real problem. And that is why when EPA pretended for the first time that this was a rule, the Government Accountability Office, which didn't inject itself into this, which didn't butt in to try to interfere with us, which was tasked with giving advice on this by the Senate--we gave them this job, and now we are accusing them of butting in and interfering with our process? We gave them this job so they did it.

It has been said that what GAO did was unprecedented in making this decision that it is actually a waiver and not a rule. Yes, it is unprecedented. It is unprecedented in the same way that a referee blowing a whistle on an unprecedented foul is doing something unprecedented. But it is not the fault of the referee that their whistleblowing is unprecedented, it is the fault of the player committing the foul that has never been committed before, and the foul is to treat the waiver as a rule.

So it was easy for GAO to say: This ain't a rule. This is a waiver. It is not allowed under the Congressional Review Act. Not allowed. But the GAO is just advisory; they don't make any decisions for us.

The rules of the Senate are actually the Parliamentarian, and that is where the going nuclear happened because we went in with the California delegation staff and the EPW staff and the Republicans, and we argued in front of the Parliamentarian. GAO wasn't even in the room. We filed our pleadings. We made our arguments. The arguments went back and forth. The Parliamentarian asked questions.

At the end, there was a decision, and, in my view, it was a slam-dunk decision because the score going in was 131 to 0. Mr. President, 131 times these waivers have been granted. Never once was it even argued that they were a rule, let alone decided that they were a rule.

It was only when GAO and the Parliamentarian made the obvious decision that what the EPA did in this case was wrong that then the fossil fuel industry decided that Republicans had to go nuclear, and that is why we are where we are.

There is statutory text in the Clean Air Act that gives California its waiver. We had testimony from Administrator Reilly earlier today. He was the EPA Administrator at the time this happened. And he understands full well how valuable it was to have a second set of eyes on this process.

The California process is so popular that a dozen other States follow it, and it is in the law. The way we should work around here is if there is something in the law you don't like, you amend the law. You don't run it falsely through the Congressional Review Act, treat it as a rule when it is not, overrule the Parliamentarian when she says it is not, and pretend you haven't broken the rules around here. We have broken the rules around here.

The other rule we broke was the Congressional Review Act itself, which says--I am reading from the text of the law:

In the Senate--

Which is where we are-- when a committee is discharged from further consideration of a joint resolution--

Which means it has come to the floor, it is out of the committee, which is procedurally where we are-- all points of order against the joint resolution are waived.

That is part of expediting the process; part of the deal with it being a very narrow process for only regulations and only in a short time window.

We just heard the person sitting in that chair before this Presiding Officer say that under the rule just created we are now going forward. We just created a new rule through this parliamentary process, and it is that rule that violates this law because now we have a point of order, even though the law says that all points of order are waived.

Why did we go through this? As has been said, the Congressional Review Act is kind of an odd thing. Usually, an Agency goes through a rulemaking process under the Administrative Procedures Act. And if they got it wrong, an aggrieved party can go to court and say that was a bad regulation; it was arbitrary and capricious; it is not a rational basis; you didn't follow the APA properly; your findings are demonstrably false; there isn't support for the rule; the way you have written it violates the actual law involved.

There are a whole array of challenges that you can make in court, but we wanted something more than that. We wanted to have a political intervention narrowed just to rules, just to that short time period window that the Congressional Review Act provides. That was the idea. And the two concerns were what we described in our argument to the Parliamentarian as oversubmission and undersubmission.

I will read from our presentation.

There are two ways in which the Executive branch could try to defeat congressional intent with respect to the scope of the Congressional Review Act. The first would pose an undersubmission problem. In this scenario, an Agency might purposely refrain from submitting an action to Congress, even when the withheld action meets the definition of a rule under the CRA.

Right? So there is a rule. It is actually amenable to Congressional Review Act under the CRA, but they don't submit. They just don't because they don't want to subject it to that process. They thought they could sneak around it would be the notion.

To protect against this type of abuse, it became congressional practice to ask the GAO for an opinion as to whether the withheld action is, nonetheless, a rule and to treat a positive GAO determination as a trigger for the CRA process.

So if an executive Agency tries to cheat on exposing itself to the CRA process by not submitting the rule, a Member of Congress can go to the GAO and say: Hey, what is up with this? Isn't this a rule?

And if GAO says it is a rule, then it is deemed submitted, and the CRA process begins. That solves the under submission process.

We continued in the argument: The second way an Agency could work to defeat Congressional intent in crafting the CRA would be this situation, the incident situation, where an Agency submits actions, which clearly do not meet the definition of a rule under the CRA. This would pose an over submission problem.

The three CRA submissions at stake here illustrate well the slippery slope that could ensue. Not only would treating them as rules override two GAO analyses and broaden the scope of CRA coverage in an unprecedented way, but the waivers are already in effect, and one was issued so long ago as to violate any reasonable reading of the time bounds in the CRA. To accept these three submissions as rules would be to reject the principle that the privileged procedure in the CRA should be closely examined and strictly limited.

Agencies could submit any final action, going back to the enactment of the CRA in 1996--including adjudications, leasing contracts, grant awards, and licensing decisions--and magically convert those actions into timely rules that could be disapproved under the CRA's privileged procedures. This would nullify the reasonable bounds that Congress itself set in the text of the CRA, in the statutory law.

Without strict limits--truly absent any meaningful limits--the statute would be fully weaponized, threatening to destabilize decades of Agency action and highjack the Senate floor for the foreseeable future, which is precisely the can of worms that the majority has just opened with this overruling of the Parliamentarian, this establishment of a new rule.

Now, the other problem with this is that it provides a way to evade court review. Court review is usually how you check the action of the executive branch when they are up to no good. But very often, they are doing perfectly reasonable things, but a special interest doesn't like it. So they have the right to go to court too.

But when they go to court, first of all, there is a record of the proceeding, and the court is bound to that record. Second of all, there is law involved. There is both the Administrative Procedure Act, and there is the substantive law that is the subject of the regulation. Then you have to deal with evidence. The court reviews evidence. Then there has to be a rational decision by the court. And the court is, what we know of, as a neutral and disinterested magistrate.

Those are pretty essential due process determinations. For the Congressional Review Act, none of that. The only thing is the politics and the votes. You have got the politics behind you, and you got the votes. Anything is fair game.

And that is the danger of what was done today. What we have just done is open up the Congressional Review Act from that little 6-month period--60-day period; I am sorry--all the way back to when the CRA was passed, 30 years. Licenses, leases, Executive actions that have had a decade or more of reliance could simply be brought forward, dumped into the Federal Register, sent over here as a submission, magically become a new rule because of this loophole we just built, and then the majority of the Senate, with a compliant House, can just shove it right out the door without following regular order, without ever going to court, without following bicameralism, and present with the constitutional requirements.

I will conclude with two things. First, please don't call this unprecedented when you are talking about GAO saying that this was not a rule. Please don't call it unprecedented when the Parliamentarian said: This was not a rule. This actually is illegal for you to do.

The only thing unprecedented about what GAO said and what the Parliamentarian said was the fact that this rule breaking by EPA, that is what was unprecedented.

Again, 131 waiver determinations over half a century always, always, always treated as waivers--always--a score of 131 to 0.

But the Trump administration, flacking for fossil fuel, decides that all of that is wrong, that this actually is a waiver, even though there was no APA rulemaking, even though none of the steps that lead to a regulation under the Congressional Review Act were undertaken. They just filed it in the Federal Register and sent it over as a submission.

You could do anything that way. File it in the Federal Register, send it over as a submission, and--boom--it is over here to be kicked around as a political football, without due process, without bicameralism, without regular order--none of it.

That is what was unprecedented. And the only reason that the GAO's decision was unprecedented was because nobody had the nerve or the foolishness to do something so stupid before. So they called them out for it for the first time because nobody had ever done such a thing before.

But because of the politics, that just got shoved through here. Because of the power of the fossil fuel industry, that just got shoved through here.

This is part of a campaign of the Trump administration to pretend that climate change isn't real, to ignore the immediate threats that are looming over us of climate change--looming over us--and to serve the interest of the fossil fuel industry.

You remember the President saying, ``Give me a billion dollars, and I will give you everything you want,'' to the fossil fuel executives? Well, he didn't get the full billion dollars, but he got a lot of money. He got north of a 100 million, and now, sure enough, he has given them everything he wants.

And this is one of the payments--this breaking of the Senate rules, this overruling of the Parliamentarian, this going nuclear, this pretending that something that was never a rule, and is clearly not a rule by any reasonable reading of what APA rulemaking is, is suddenly now magically a rule. All of that is being done as just a political errand for the fossil fuel industry, and it is wrong.

I see that the two Senators from California are here. The hour is getting later and later. So I will not review at this moment my presentation earlier today, where I went through the multiple warnings of the systemic economic collapse that is coming at us, based on a fairly simple proposition, which is that climate risk is making weather and risk unpredictable. And when you can't predict weather risk, you can't predict the insurability of a piece of property. The original concern was about coastal risk--flooding, hurricanes, rainstorms, damage to coastal properties. Now wildfire is just as dangerous. And when you can't predict it, you can't insure it.

And we are right now, in the United States, in the middle of an insurance crisis. Go ask around Florida how property insurance is going. It is a full-blown meltdown.

And when you can't get insurance any longer, you can't get a mortgage on a property any longer. And when property doesn't carry a mortgage any longer, when you can't get a mortgage on that piece of real estate, then your buyer pool collapses. You are left with only cash buyers. And what happens then is that the property value crashes.

And that is the prediction: climate risk to insurance collapse, to mortgage unavailability, to property value crash, to economic collapse--recession. And it is coming from all over--all over. And we won't listen to those warnings whether they come from insurance CEOs, from Freddie Mac, from international banking safety reviews, from international economic magazines, from the chief risk officer of Goldman Sachs, from the head of the Bank of England. I mean, you can just go on and on. The warnings are piling, piling, piling up.

And as Ernest Hemingway said about going broke, ``it happens gradually, and then all at once.'' And we are deep into ``gradually'' on this climate risk mess, and pretty soon we are going to get hit with ``all at once.''

And then all this foolishness done on this floor in the service of the fossil fuel industry, which has the world's biggest conflict of interest and a history of lying and of dark-money political influence, is going to look pretty damned bad.

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