H.J. Res. 88
Floor Speech
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Mrs. CAPITO. Mr. President, as chairman of the Environment and Public Works Committee, I rise in support of my resolution to block the Biden EPA's rule approving California's Clean Air Act waiver for its Advanced Clean Cars II regulation.
I want to explain to my colleagues why they should join me in disapproving of this job-killing electric vehicle mandate and why the use of the Congressional Review Act is appropriate and correct in this instance.
First, I would like to offer a little bit of background about how we got here. Typically, the Clean Air Act stops State laws that regulate emissions for motor vehicles in favor of a national standard by the Environmental Protection Agency. This allows automakers to build the same vehicles for use by drivers all across the country.
Since 1966, the Clean Air Act has given California, and only California, the ability to seek a waiver of Federal mobile source emissions standards. Other States can choose to adopt California's standard or follow the Federal standard, but they cannot seek their own waiver.
Congress provided California this special ability because of its need to address unique locally high levels of pollution--like smog--in Los Angeles and in the San Joaquin Valley. But over the past two decades, California has used its waiver authority to push its extreme climate policies on the rest of the country, which was never the intent of the Clean Air Act's decision to grant the waiver. As EPA recognized in 2008, the rationale for California's ability to seek waivers does not extend to greenhouse gases, as these levels are not unique to California but are global in nature. But now, in addition to establishing an EV mandate, California is also seeking to use its waiver authority to eliminate diesel trucks. The Advanced Clean Trucks and Low NO
While my remarks today will focus on the resolution of disapproval that I have offered on the Advanced Clean Cars II EV mandate, I strongly support the resolutions that will follow that are offered by Senator Fischer and Senator Mullin to block these rules.
California's Advanced Clean Cars II program requires all--and I did say ``all''--vehicles sold in that State, Washington, DC, and 11 other States that have adopted California's standard--all cars--to be zero- emissions vehicles by the year 2035; meaning, in one decade, these States, totaling 30 percent of the new car market, will have a full ban on the sale of gasoline-powered vehicles--and not just those but also on traditional hybrids as well.
The regulation begins in 2026--next year--by requiring affected States to sell 35 percent electric vehicles. These cars will hit showroom floors within the next few months. So to avoid the devastating impacts of these waivers, we need to act now.
These unattainable standards, backed by a fine of $26,000 per vehicle--I said $26,000 per vehicle--for noncompliance attempt to reshape auto manufacturing and take away consumer choice all across the country.
I want to be clear, I have no problem with electric vehicles. Consumers should be able to purchase the vehicle of their choice. But I do have a big problem with electric vehicle mandates that replace the will of the consumer and the will of the government.
Only 2.3 percent of new vehicle registrations in West Virginia last year were electric vehicles. Nationwide, EVs accounted for only 10.2 percent of new vehicle registrations. The plain truth is, electric vehicles are not popular. Even in New York, one of the States that has adopted the California standard, only 10.1 percent of 2024 new vehicle registrations were EVs. Perhaps that is why six New York House Democrats voted against this rule.
As States and manufacturers ramp up to meet this EV mandate, the impacts and costs will be massive. As the National Automobile Dealers Association wrote, the economic impact of California's regulation will affect all States. Soon, automakers will be forced to either sell more EVs or limit the number of gas cars for sale in the other affected States. Affordable new gas and hybrid vehicles, which cost between $30,000 and $40,000, are expected to be among the first vehicles that would be rationed out. This will leave consumers with far fewer choices and force everyone to pay more for new and used cars to reflect consumer demand and offset automaker losses.
To make matters worse, hundreds of thousands of jobs will be eliminated. The Specialty Equipment Market Association wrote that a ban on internal combustion engines ``would represent over $100 billion annual economic impact to the U.S. economy and impact roughly 330,000 jobs.''
And those job losses will not be confined to California, but they will be spread all across the Nation. Workers in auto manufacturing, oil and gas production, and the agriculture sectors across this country would lose jobs because of California's EV mandate.
And the elected officials who represent Michigan autoworkers, Nebraska corn farmers, or West Virginia gas workers had no say in California and EPA's decision to impose this mandate nationwide.
The responsibility of approving or disapproving California's waiver application rests solely with the EPA.
California applied to EPA for a waiver to implement ACC2 in May of 2023, and the Biden administration sat on that application until December of 2024. Well, there is no practical reason that the Biden EPA couldn't have acted on California's waiver in 2023 or even during the first 11 months of 2024, but we know why the previous administration decided to wait: President Biden and his team knew that electric vehicle mandates were unpopular with most American voters, especially swing State voters that would decide the Presidential and congressional elections. Mr. President, 2024 polling from WPA intelligence showed that 70 percent of likely voters opposed a ban on gas-powered cars, with only 18 percent in support.
Both the text of the Clean Air Act and public sentiment should have led the Biden EPA to reject California's application. Instead, the Biden administration approved California's waiver in December 2024, after Democrats lost the election.
EPA's approval was published in the Federal Register on January 6, 2025, the same day Congress certified President Trump's victory. The decision to limit consumer choice, increase car prices, and cost hundreds of thousands of jobs was made by California and approved by a Federal administration that had already been rejected by the American voters.
I strongly oppose these California EV mandates and strongly oppose a process that allows such a major national policy decision to be made against the will of the American people, without input from their Members of Congress.
In 1996, the Congressional Review Act was enacted through regular order to create an expedited process for Congress to consider resolutions that overturn rules finalized by Federal Agencies, like the Biden EPA's decision to approve California's EV mandate. The CRA's rationale--as explained by sponsors Don Nickles, Harry Reid, and Ted Stevens--was to allow Congress to efficiently stop rules it finds ``too burdensome, excessive, inappropriate, or duplicative.'' Every one of these terms applies to the situation we find ourselves in today.
The CRA works by requiring Federal Agencies to submit their final rules to the Senate and to the House of Representatives. When a rule is submitted to Congress and published in the Federal Register, a 60-day period is opened for any Member to introduce a resolution of disapproval that, if passed by both Chambers and signed by the President, prevents the rule from taking effect. These resolutions, by law, are subject to limited debate, allowing them to be enacted by the Senate by a simple majority vote.
Senators can bring resolutions of disapproval to the Senate floor either by reporting them through committee or by submitting a petition that has been signed by at least 30 Senators. Either way, the process allows the Senators to vote on whether the rule should go into effect, providing a method for elected Representatives to have oversight over unelected bureaucracies.
I decided to use the CRA process and introduce this resolution against EPA's approval of the California electric vehicle mandate for two reasons.
First, enactment of the resolution would vacate EPA's rule approving of the California waiver, stopping the EV mandate and protecting consumers and workers across the country.
Second, because a vote here in the Senate and in the House would allow the elected representatives of Americans of all 50 States, not just California, to decide whether a nationally significant policy should be implemented.
As I discussed earlier, the Biden administration delayed its action on approving the California waiver for 18 months to get past the 2024 election. But that wasn't the end of the previous administration's effort to shield this unpopular EV mandate from the will of the people. The Biden EPA did not submit its approval of the California EV mandate for review under the CRA and claimed its action was not a rule. That was a clear effort to avoid accountability from Congress.
Fortunately, President Trump and EPA Administrator Lee Zeldin decided to give the American people a say by submitting the approved California waiver to Congress as a rule. Under the CRA, that submission by the Trump EPA triggered my right as a Senator to introduce this resolution to block California's EV mandate. But that submission kicked off another effort by Democrats to stop the Senate from voting on this issue.
On March of this year, at the request of three Senate Democrats, the Government Accountability Office wrote an unprecedented letter stating its ``observation'' that the Biden EPA action approving California's EV waiver is not a rule subject to the CRA. Similar to the Biden administration's efforts, this GAO letter was obtained in an attempt to stop the Senate from exercising its authority provided by the CRA, keeping the California EV mandate in place without a vote in this Chamber.
Nothing in the Congressional Review Act, Senate rules, or Senate precedents gives unelected staff at the GAO the authority to prevent elected Senators from considering a resolution of disapproval against a rule. In fact, Comptroller General Gene Dodaro, who is head of the GAO, recently testified in a Senate hearing and said:
Our decisions are not dispositive on the Congress--they're advisory.
But Democrats now want to give the GAO staff a veto over the Senate's use of the CRA to disapprove rules submitted by Federal Agencies.
The Senate has given GAO the authority in the CRA process in the past to protect the legislative branch's ability to conduct oversight over administrative rules.
My predecessor West Virginia Senator Jay Rockefeller was a leader in 2008 efforts to give GAO the ability to trigger the Congressional Review Act procedures for Agency actions not submitted to Congress as required by the statute.
The issue in 2008 was an action by the Centers for Medicare and Medicaid Services directing States on how they were to administer the Children's Health Insurance Program. CMS did not submit its action to Congress, calling it guidance rather than a rule. Senator Rockefeller asked GAO to determine that the CMS guidance was a rule. When GAO agreed with him, he introduced a resolution to block the rule--the first time such a resolution was introduced pursuant to a GAO decision rather than an Agency submission.
Ten years later, Congress passed and President Trump signed a resolution introduced by my colleague Senator Moran from Kansas against guidance from the Consumer Financial Protection Bureau that was similarly not submitted. Senator Toomey went to GAO for a legal opinion that the CFPB guidance was a rule for the purposes of the CRA, and GAO determined that Congress could consider it as such.
I have personally gone to the GAO myself on several occasions when I believed that an Agency action not submitted to Congress under the CRA should, in fact, be considered a rule, like I did in 2022, when GAO agreed with me that guidance from the Federal Highway Administration instructing State departments of transportation to prioritize bike and pedestrian projects over new highway capacity projects should be a rule. And I did so a year later, when GAO disagreed with my argument that a separate California waiver should have been submitted as a rule.
In all of these cases, Federal Agencies had not submitted their actions to Congress, but in this case, EPA did submit its rule approving the California EV mandate to Congress.
A GAO opinion has never been used to cut off the Senate's ability to consider a CRA resolution of disapproval when the Federal Agency actually submitted the rule to Congress. In fact, GAO has repeatedly recognized that its legal opinions are unnecessary when Agencies submit a rule to Congress.
In 2018, GAO wrote:
[The] Congressional Review Act gives agencies the primary responsibility for determining which agency actions meet the statute's definition of a rule.''
And:
Submission . . . to Congress pursuant to the Congressional Review Act obviates the need for a GAO opinion.''
Two years later, GAO concluded:
When an agency submits a document to our office under CRA, we consider that to be the agency's determination that the document is a rule under CRA. When a rule is submitted to Congress, Congress has an opportunity to review the rule and pass a joint resolution of disapproval to void the rule.
Protecting our legislative branch oversight is the basis upon which this Senate has involved GAO in the CRA process since 2008, but it does not follow that GAO should be able to halt congressional privileges when the executive branch does submit a rule. Once an Agency has submitted a rule to Congress, as EPA has done here, elected representatives should be able to decide whether to approve or disapprove of the rule. That is how the Congressional Review Act has functioned since its beginning in 1996.
I want to quickly talk about the filibuster and the Parliamentarian because this has been raised.
My Democrat colleagues argue that there will be ``profound institutional consequences'' by the Senate not allowing GAO a veto over the use of the CRA against Agency-submitted rules. I, on the other hand, disagree. Such a GAO veto has never existed before, and we must remember that the CRA is all about protecting the authority of elected representatives over unelected Agencies. Delegating to the unelected GAO staff the authority to determine if Members of Congress can use the CRA against Agency-submitted rules turns the statute completely on its head.
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.
The Congressional Review Act, which was passed with the legislative filibuster in place, has stood since 1996, providing a narrow exception to the Senate's normal practice of extended debate. It applies only to allow for disapproval of Federal Agency rules and only during a prescribed time defined by the statute.
In deciding to retain the 30-year-old practice of allowing the use of CRA procedures against Agency-submitted rules, we are not expanding any authority to enact laws by a simple majority. We are not expanding the scope of the CRA itself but, rather, simply refusing to narrow the CRA by subjecting its use to GAO approval.
Like my colleagues in the Senate, I hold our Parliamentarians in very high regard. They perform and she performs a vital role in this institution, and her wise counsel is critical to making this Senate function.
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. Instead, the procedural issue before the Senate was simply whether GAO staff should be able to block resolutions of disapproval against Agency-submitted rules.
I have explained why my answer to that is no. I have spent significant time talking about the CRA itself and about procedure. I think that is important because I respect the Senate as an institution, and I care about how we do things.
We shouldn't lose sight of the substance of what we are doing today. We are deciding whether California, DC, and 11 other States can impose an electric vehicle mandate that will take away consumer choice, drive up prices, and eliminate jobs across the country.
West Virginians don't want California's climate policy. West Virginians don't want California's EV mandate. And I am confident that most Americans don't want these things either. That is why the House of Representatives passed this resolution of disapproval with a strong bipartisan vote that included every Republican and 35 Democrats, some from the State of California.
Today, despite the best efforts of the Biden administration and congressional Democrats to shield this EV mandate from the will of the American people, the Senate will have its say.
I urge my colleagues to vote tomorrow for the resolution of disapproval.
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