Dem
47
GOP
53
Note, at the outset, that this item is extremely inside baseball. That is by design, as Republicans are hoping the abstruse nature of their maneuvering will allow them to get away with a transformative change to the filibuster, without suffering much (or maybe any) political blowback.
The proximate issue here is California emissions standards. The Clean Air Act sets various standards for pollution, including from vehicles. It also allows states to set even stricter standards, with EPA approval. In 2024, the Golden State applied for, and received, such approval for vehicles sold within the state. Undoubtedly, the Biden administration knew full well that it's not so easy to make cars to two or three or ten different sets of standards, and that automakers generally just adhere to the rules in whatever state has the strictest standards. Inasmuch as legislation along these lines would never get past the Senate, this was a backdoor way for a Democratic administration to implement a part of its environmental agenda.
On the whole, automakers aren't actually too upset about the California standards. Folks in the car manufacturing business can read the writing on the wall, and recognize that much more eco-friendly vehicles, particularly electric vehicles, are where things are headed. If they are going to have to invest in that R&D, and substantially reinvent their businesses, then it's actually pretty useful if the nation's most populous and wealthiest state mandates the purchase of eco-friendly and electric vehicles. That significantly reduces the risk of getting stuck with cutting-edge vehicles that nobody wants (see DeLorean, John).
The industry that is not excited is petroleum. After all, if people buy a gasoline-powered car, or an electric car, they are still buying a car, and so the auto industry is still moving product. However, in the former scenario, they are also buying gas, while in the latter, they are not. So, Big Oil is up in arms about the EPA waiver, and wants it to be reversed. The only entity that can do that is Congress, through legislation. Needless to say, a bill saying "those meanies in California can't insist on eco-friendly cars" would get through the House, but would not get past the filibuster in the Senate.
And that brings us to the inside baseball. Republicans in the Senate, who would like to grant Big Oil's wish, have been looking for a way to make that happen, and think they might have a winner. The Congressional Review Act (CRA) allows Congress, by a simple majority vote in both chambers, to cancel rules recently passed by federal agencies. Not only that but, as a "bonus," the legislation also says that once Congress has exercised this power, the agency in question can never adopt the same (or a similar) rule ever again.
There is one small fly in the ointment, however. An EPA waiver is not a "rule," as defined in the CRA. In case there was any doubt on that point, the Government Accountability Office published an advisory that a waiver and a rule are not the same thing. Senate Parliamentarian Elizabeth MacDonough issued a ruling with the same conclusion.
Senate Republicans' plan here, then, is to overrule the parliamentarian (and the GAO) and to create a carve-out that effectively says that ANY decision by a federal agency (rule, waiver, or otherwise) is subject to review under the CRA, and that such a review is not filibusterable in the Senate. This would not only allow Senate Republicans to kill California's EPA waiver, permanently, it would also give them enormous new powers over other aspects of executive branch governance. To take but one example, among many, if the members of Congress did not approve of a corporate merger that had been sanctioned by the Department of Justice, they could permanently kill that merger with a bare majority of the two chambers. Or, to take another example, if the FDA approved a new abortifacient drug, then a simple majority of the House and Senate could permanently revoke that approval.
This is not a done deal yet. Some of the filibuster-loving Senate Republicans, like Mitch McConnell (R-KY), appear to be on board with the plan. Others, like Susan Collins (R-ME), are noncommittal, presumably recognizing that one day, the shoe will be on the other foot, and also that if you poke too many holes in the filibuster, the whole house of cards is going to collapse. Presumably, we'll know soon what they decide. (Z)