Congressional Review Act

Floor Speech

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Mr. MERKLEY. Mr. President, colleagues, using the Congressional Review Act to overturn waivers puts polluters in charge of government policy.

In 1970, Congress passed the Clean Air Act. The law explicitly states that individual States like California can enact stricter emission standards to protect the environment if they receive from the Environmental Protection Agency a waiver. And States like Oregon can adopt those standards if they so choose.

Since then, California has applied for, well, about 100 waivers. They have made vehicle emissions 99 percent cleaner than they were in 1970.

I remember going down to Southern California in the early eighties and seeing how incredibly polluted the air was near L.A., and I thought, How can anyone live here?

It hurt your eyes; it hurt your lungs. People don't have that impression today, despite the amount of vehicle miles going way up, because of the incredible efforts California made to clean up their air from auto emissions.

You know, in the last 50 years, California has never had a waiver revoked. That tells me they put together very competent proposals and that the Nation supported their effort to clean up their air.

But something different is happening right now. Senate Republicans are using the Congressional Review Act in ways that Congress never intended. Of course, the Congressional Review Act says if a rule is implemented and you are within 60 legislative days, it can be brought to the floor and it can be overturned by the House and the Senate and that if it is vetoed, well, then the House and Senate can overturn the veto, if they have enough votes--but all about rules; no mention of waivers.

Both the Government Accountability Office and the Senate Parliamentarian said the Congressional Review Act cannot be used to overturn waivers because, quite simply, they are not rules.

You know, here is the thing, words have meanings, and you can only trust the law if those words are honored. And to magically say a waiver is a rule is a real travesty of lawmaking, but that is where we are at now.

So what is this really all about--this Republican decision to invent new meanings to existing words when every bit of common sense and every bit of legal knowledge knows that that is a lie. Why did my colleagues engage in this massive deception? It is an end-run around the policymaking process.

They could have easily said: We want to expand the Congressional Review Act to cover waivers. And then you simply craft a bill. Republicans being in charge of the Senate and the House, they bring it to the floor; we debate it; it either passes or it doesn't pass.

It has the advantage of going through committee and being considered and having people weigh in on whether it is a good idea or not. But to simply reinvent and pretend, if you will, that the color black is the color white or an orange is an apple--because everyone understands a waiver is not a rule.

So it is unfortunate that the colleagues in charge of the legislative process have so corrupted it yesterday and today, not even trying to actually enact the law to accomplish what they want but instead saying: Let's use an expedited process that doesn't go through committee, where there is very limited debate, where there are no amendments allowed, in order to do a favor for a powerful special interest.

What does that tell us about government in the United States? My colleagues are choosing to be the agents for the powerful by inventing new meanings to words that don't exist, meanings that are not supported by the Parliamentarian; they are not supported by the Government Accountability Office, GAO, because they are so dedicated to pulling the strings of government on behalf of the fossil fuel industry. That is corruption plain and simple, on full display before the American public. That is what has happened.

Think about what this means for the future of this Nation. You can't count on a waiver staying in place so how do you make decisions based on getting that waiver?

Well, you get a license from the government. But the license, maybe that looks a lot like a rule. It is an act of government. It is a decision. How is that different from a waiver? You can't count on that license not being taken away by this body.

What about a grant? A grant is a government decision. Kind of like a waiver, except it has money coming in. So now a grant can be brought here to the floor and wiped out.

What about a permit? A permit is very close to being a waiver, saying: Hey, you can undertake this process. We are giving you permission. Well, that is what a waiver does. It says: Yes, you can undertake that process.

So now no one has a foundation for pursuing projects because they know that if the majority wants to play favors for a powerful special interest, they can wipe you out with no foundation of law.

That is what happened here, and that is a travesty. It is a travesty that none of my colleagues, I would hope--if they reflected on it outside the pressure of having their arms twisted--would engage in.

And I know they would be highly critical if the parties were reversed.

In addition, once that waiver is struck down, it is suggested under the rules of the CRA that a similar waiver might not be able to be granted in the future.

So now you have two laws in conflict with each other. One law says you can grant the waiver, and the other law says if something was struck down through the CRA, nothing similar can be done.

How are we to resolve this? My colleagues have no answer. They have taken us down a path where words have no meaning and where sheer power by one of the richest enterprises in America--the fossil fuel industry--is all that matters. They are the puppet masters of my Republican colleagues. They have pulled the strings, and now we are in deep trouble to have an honest foundation for legislative action.

This one waiver was something that the fossil fuel industry really hated because when cars became more efficient, they used less oil, and therefore the oil companies made less money. When these waivers were enacted, people were incentivized to buy cars that didn't even burn gasoline, and the oil companies were like: Oh, my goodness, we are not going to make as much money. Help us. Help us, dear Republicans. Help us out here. Invent something. Change the meaning of some words. Find some way to go past the normal legislative process to somehow deliver what we want.

And my colleagues obliged.

The damage is done. It is going to be extremely difficult to fix it. It has eviscerated half a century of California's clean air protections.

It was the wrong thing to do to blow up the good work of a State seeking to solve its air pollution problem. It was absolutely the wrong thing to do to blow up the integrity of this body by deciding that a waiver is a rule and undermining the ability of any group to act with confidence based on decisions made by the Government of the United States because whether you have a waiver or you have a permit or you have a license, now you don't know whether some powerful interest is going to have this body rip it away from you.

Let's work together to reestablish integrity in this Chamber, integrity in our legislative process that was so badly damaged yesterday and last night.

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