Alex Padilla U.S. Senator for California

By Shira Stein and Sophia Bollag

The Senate totaled California’s signature climate change policy — mandating new cars sold be electric by 2035 — in a 51-44 vote Thursday morning.

Gov. Gavin Newsom immediately vowed to sue to keep California’s emission standards in place.

Nearly every Democrat present voted against revoking the EV mandate, while Sen. Elissa Slotkin, D-Mich., supported doing so. Two Democrats and three Republicans did not vote. Senate Majority Leader John Thune, R-S.D., called the waiver an “attempt by the Biden administration to impose an electric vehicle mandate across the country” during a news conference Tuesday.

California, the only state that can seek permission from the Environmental Protection Agency to establish emissions policies stricter than federal law, had waivers approved in December that allow the state to phase out most gas-powered vehicles by 2035, as well as mandating reductions in nitrogen oxide and other emissions for trucks. The Senate also voted to revoke the truck standards in a 51-44 vote along party lines and to rescind the nitrous oxide standards in a 49-46 vote Thursday.

California’s unique ability to seek those waivers means it often has the nation’s most aggressive environmental policies, and automakers often build their vehicles to California’s standards. Other states can only pass similar policies once the federal government has approved California’s. Twelve states and Washington, D.C., have adopted California’s standards and agreed to the state’s electric vehicle sale mandate.

“California has not and cannot force our emission standards on any other state in the nation. As much as I may love that authority, that does not exist. But yes, over a dozen other states have voluntarily followed in California’s footsteps — not because they were forced to, but because they chose to in order to protect their constituents, their residents, and protect our planet,” Sen. Alex Padilla, D-Calif., said Tuesday on the Senate floor.

Newsom and Attorney General Rob Bonta announced Thursday that they will fight in court to block the move.

“This Senate vote is illegal,” Newsom wrote in a statement. “Republicans went around their own parliamentarian to defy decades of precedent.” The move will harm the environment and the economy, Newsom argued.

In addition to allowing more air pollution, revoking the waivers will put less pressure on U.S. automakers to make more EVs. Newsom says that would cede the growing market to China, where the government has boosted EV production. Newsom argued that California’s emissions standards have helped electric vehicle manufacturers such as Tesla flourish in the state and have bolstered the state’s economy.

“This is about our economy, it’s about our health, it’s about global competitiveness,” Newsom told reporters at a news conference in Sacramento. “It’s about our ability to continue to innovate and outpace competition all across the globe.”

Trump sought to revoke California’s clean air waivers during his first term through a federal regulatory process, but was unsuccessful because California sued and the issue got tied up in court. After Joe Biden was sworn in as president, he dropped the efforts to revoke the waivers. California’s authority to set its own emissions standards dates back to the 1960s and ’70s under policies approved by then-California Gov. Ronald Reagan and then-President Richard Nixon as the state battled car-created smog.

Newsom said that when he met with Trump in February after the Los Angeles-area wildfires, he pointed to the portrait of former President Reagan hanging over Trump’s desk and said that the Republican icon would be looking down disapprovingly at the current president if he signed legislation to revoke California’s emissions rules, “authorizing the degradation of his legacy.” Trump laughed, Newsom said.

The California Air Resources Board, the entity that issued the emissions standards, doesn’t plan to back down. “The vote does not change CARB’s authority. CARB will continue its mission to protect the public health of Californians impacted by harmful air pollution,” spokesperson Lindsay Buckley said in a statement.

Should Congress’ revocation of the waivers stand up to legal challenges from California and environmental groups, the EPA would be banned from issuing any substantially similar actions in the future.

“The onerous quality of this rule is just beyond description — not just the penalties forcing certain states and certain consumers to purchase a vehicle that they may not want or that they can’t find. It really eliminates what I think our country was built on, which is individual choice and making decisions for yourselves,” Sen. Shelley Moore Capito, R-W.Va., told reporters Tuesday.

Automakers, including General Motors and the Alliance for Automotive Innovation, reportedly lobbied lawmakers to revoke California’s mandates.

“Michigan is the auto capital of the world, and as Michigan’s U.S. Senator, I have a special responsibility to stand up for the more than one million Michiganders whose livelihoods depend on the U.S. auto industry,” Slotkin said in a statement Thursday. “This standard means car manufacturers, including the Big Three, will be forced to eventually stop the sale of gas-powered cars in these states or pay competitors, particularly Tesla, for credits to remain compliant.”

The other senator from Michigan, Democrat Gary Peters, voted against revoking the car standards.

Senate Democrats tried several maneuvers to prevent the bills from passing, including using procedural motions to stall debate on the bill Wednesday evening. On Tuesday, Padilla placed a hold on four pending Environmental Protection Agency nominees, a procedural tactic that blocks those nominees from receiving a floor vote. He said he would remove the hold only if Republicans stop attempting to revoke the waivers.

“What we have at stake is also a state’s ability, its right, to make its own laws and to protect its own citizens without having this body overturn that right,” Sen. Adam Schiff, D-Calif., said on the Senate floor Tuesday. “It should send a chill down the spine of legislators in every state and communities across the country.”

But revoking the electric vehicle waiver received support from 35 House Democrats, including two from California: Reps. Lou Correa of Santa Ana and George Whitesides of Santa Clarita (Los Angeles County).

“The message we got in November was to represent working-class people. But in my district we have a lot of workers — union workers, that drive to and from work. Ninety percent of them drive gas-powered vehicles,” Correa, who owns four hybrid and one gas-powered car, told the Chronicle on Tuesday. “Long term, EVs are less expensive, but it’s called cash flow. … I’m a big environmentalist, but you can’t hurt people this way.”

“The Democrats here in the Senate, they’re clinging to this last pillar of the Green New Deal. That’s a deal that lost in the elections in November,” Sen. John Barrasso, R-Wyo., told reporters Tuesday.

Rescinding California’s waivers “will not just mean dirtier air for California and dirtier air for all the other states that have adopted California’s higher standard. It will also mean that the filibuster is gone for a whole range of things,” Schiff said.

To pass the legislation, the Senate used a tool called the Congressional Review Act, which allows lawmakers to rescind federal agency actions with a majority vote, rather than a 60-vote threshold, and avoid debate, amendments and filibuster — a much faster path than the administrative process, which can take a year or longer.

Federal agencies are required to submit their rules to Congress for review before they take effect. The Congressional Review Act is triggered when a rule would have a substantial impact on the economy, consumers, industry or competition.

The EPA has issued more than 100 vehicle emissions waivers or waiver-related decisions to California, none of which was previously submitted to the GAO or Congress, Padilla said in a May 19 statement.

The waivers revoked by Congress on Thursday were not submitted for review after their approval by the Biden administration, but the Trump administration EPA did so on Feb. 14.

But the Government Accountability Office, an independent agency that audits Congress, determined that California’s waivers weren’t subject to the CRA on the basis that they are individual administration actions, not agency rules. Senate Parliamentarian Elizabeth MacDonough — an unelected, nonpartisan rules arbiter — similarly determined on April 4 that California’s waivers weren’t subject to the CRA.

Senate Republicans have argued that the dispute is not over the filibuster and the use of the CRA, but the GAO’s ability to determine what is a rule.

“This is a novel and narrow issue that deals with the Government Accountability Office and whether or not they ought to be able to determine what is a rule and what isn’t, or whether the administration and the Congress ought to be able to make that decision,” Thune said Tuesday. “The administration says it’s a rule. The GAO has said it’s not. And the United States Senate is going to be heard from on this issue.”

The GAO has been consulted 60 times about the CRA’s applicability to agency actions since the law’s passage in 1996, according to Schiff’s office. About half of those agency actions were deemed not to be rules under the CRA, and in every case Congress declined to proceed in considering legislation to revoke the actions.

Lawmakers on both sides of the aisle have relied on the auditing office’s determination, including then-Senate Minority Leader Mitch McConnell, R-Ky., who in 2014 requested the GAO review whether the law was applicable to the EPA’s proposed greenhouse gas emissions standards for electric utility power plants. After the GAO said it was not, no further action was taken to revoke the standards.

Thune said Republicans have taken no action to go nuclear and get rid of the legislative filibuster. “The only people that have attempted to get rid of the legislative filibuster are the Democrats. Every single one of them up there that’s popping off and spouting off has voted literally to get rid of the legislative filibuster,” he said Tuesday.

“Senate Republicans are doing an about-face on the filibuster — throwing it aside the first moment it’s convenient,” Padilla, Senate Minority Leader Chuck Schumer, D-N.Y., and Senate Environment and Public Works Committee Ranking Member Sheldon Whitehouse, D-R.I., said in a statement. “It shows we are going nuclear no matter what the leader says.”

Padilla addressed Thune’s comments directly Tuesday: He said he supported lowering the threshold required to pass a bill in the Senate, but “only after there has been an opportunity for amendments and debate in an effort to stop the endless partisan gridlock that prevents so much more progress that the American people deserve.”

Democrats also repeatedly raised the issue that, if Republicans overrule MacDonough on this issue, future Democratic presidents and Democratic-majority Senates could turn it back on them.

“If they can ignore the parliamentarian here, then why not on an upcoming tax bill? Or on their efforts to gut health care for many Americans? Or whatever the latest overreach is called for by President Trump?” Padilla said Tuesday. “‘What goes around comes around.’ And it won’t be long before Democrats are once again in the driver’s seat here, in the majority once again. And when that happens, all bets would be off.”

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