PHOENIX – The attempt by the Trump administration’s Environmental Protection Agency to overturn various clean transportation waivers granted to California by the Biden administration may have suffered a recent setback, but the trucking industry still hopes for victory in Congress.
Jim Mullen, a former acting administrator of the Federal Motor Carrier Safety Administration and now executive director of the industry-sponsored Clean Freight Coalition, sought to sum up recent events during his slot at a rapid-fire series of press conferences at the annual meeting of the Truckload Carriers Association meeting. Mullen is also president of Mullen Consulting.
Given recent events, he had plenty of updates to try to stuff into his small allotted time.
Mullen joked that the timing of the recent action by the EPA to roll back various Biden administration emissions regulations caught him by surprise. “I thought maybe the EPA would wait for the TCA annual convention, but they did so last week,” he said.
Mullen also discussed the March 6 release of a memo by the General Accounting Office, which challenges the legal basis of EPA’s earlier decision to try to reverse the California waivers that granted the state the ability to implement its Advanced Clean Trucks (ACT) rule and other regulations promulgated by the California Air Resources Board (CARB). The EPA wants Congress to reverse those waivers.
The EPA’s attempt to reverse its own waivers, albeit those of the prior administration, was always questionable given that EPA waivers historically have not needed to be approved by Congress. The waivers approved by the Biden EPA, for example, weren’t sent to Congress for approval.
But the Trump EPA, led by Lee Zeldin, sent them to Congress last month to kick off what it hoped would be a denial of the waivers if they could be determined to be rules rather than waivers – and subject to the Congressional Review Act (CRA).
GAO weighs in
The GAO memo that could be seen as a setback supported arguments that the waivers didn’t need congressional OK. Waivers granted by the EPA are permitted for California to exceed federal environmental standards. Traditionally, those waiver requests are almost always granted, though the expectation that a waiver for the Advanced Clean Fleets rule was not going to be granted ended California’s attempt to have that regulation adopted just before the Trump administration took office.
The waivers in question were not just for the ACT, but also for its Omnibus NOx rule, which governs emissions of nitrogen oxide, and the so-called Clean Cars II rule, which builds on the earlier Clean Cars I waiver that regulates automobile emissions.
The GAO in November 2023 had ruled on the question of congressional review of waivers, coming down on the side that waivers weren’t regulations and didn’t need a congressional OK.
It did so again in its March 6 memo. “Our view is that the analysis and conclusions in our 2023 … waiver decision would also apply to the Notices of Decision recently submitted as rules to Congress by EPA,” the GAO said.
That GAO decision led to significant criticism from various interest groups. Representative of that view was the statement by the American Energy Alliance, an industry group.
The Alliance disputed what it said were media reports that the GAO action would “block Congress from voting to disapprove of the waiver.”
“The CRA grants Congress, not GAO, the power to approve or disapprove agency actions once submitted for review,” the Alliance said. “The CRA offers Congress the opportunity to reassert control over regulatory policy and prevent this overreach from disrupting the market.”
Senate Parliamentarian has a key role
Mullen, at TCA, was more ambiguous in discussing the impact of the GAO memo. He said it is the Senate parliamentarian who will decide whether a move to have Congress overturn the waivers can be reviewed by Congress. He added that his Washington contacts believe the parliamentarian’s office is leaning toward a view in line with the GAO finding, that a waiver is not the same thing as a rule under the CRA and is not subject to congressional review.
But that wouldn’t close the book on it, according to Mullen. “EPA would have to send the waivers over as a final rule to the Federal Register to trigger the CRA,” he said.
On another front, the announcement by the EPA that it was going to “reconsider” the Greenhouse Gas III regulations on heavy-duty vehicles that are seen by critics as eventually being a de facto mandate for electric vehicles is separate from the question of waivers granted to California.
In its announcement, the EPA used the term “reconsider” in one release on its plans. But the headline on another prepared statement used the word “terminate,” though it said the termination would be of what Trump officials have long described as the Biden administration’s EV mandate. The GHG Phase 3 rules are not explicitly an EV mandate, but interpretations of their impact have led to that argument.
Mullen, a self-described “reformed lawyer,” said the words chosen are important. His interpretation is that the EPA will stop the progress toward Phase 3 regulations and instead hold the regulation at the less onerous Phase 2.
Moreno bill is one to watch
The other Washington development that Mullen said should be monitored is the progress of a bill introduced recently by Sen. Bernie Moreno, R-Ohio, that would codify much of what is going on in the regulatory arena.
Moreno’s bill has been dubbed the Transportation Freedom Act. Among its provisions, it would end what Moreno called state-by-state waivers, though the only state that is eligible for a waiver under the Clean Air Act is California.
It would also render moot the GHG 3 rules for heavy-duty vehicles and require the EPA to come up with a substitute. That substitute, according to the proposed legislation, should “reflect achievable technological advancements based on market readiness and affordability.”
Mullen said he expects a companion bill to be introduced in the House soon, declining to say what member would introduce the legislation.
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