During remarks on the Senate floor Thursday, Sen. Sheldon Whitehouse (D-RI) spoke about Republicans bypassing the Senate Parliamentarian to overrule California's Clean Air Act waivers.
Category
🗞
NewsTranscript
00:00Mr. President, the series of votes that we've concluded in the last 24 hours
00:12with the last vote that just concluded
00:17brings to its completion a sad and a sordid moment
00:28in the history of the Senate.
00:33And I want to just wrap up to leave a record of what took place.
00:43Before we got into this parliamentary rigmarole,
00:50there were two things that were pretty clear.
00:54One, a Congressional Review Act, a statute in American law
01:04that allows Congress to override a very narrow set of executive actions
01:17for a very narrow time period.
01:23The narrow set of executive actions is APA rulemakings.
01:30And the time frame is set by the Congressional Review Act.
01:35But it's at most months.
01:40That's the law, or was the law until our procedural shenanigans intervened.
01:47And it had been the law for quite a long time.
01:56The Congressional Review Act goes back 30 years.
02:00So there was a long, long, long tradition of obeying this law.
02:07It's not hard to figure out what a rule is,
02:10because rulemakings have a very distinct procedural set of steps that they go through.
02:18And the Congressional Review Act was carefully crafted to deal just with those rules,
02:24including a provision if the executive branch tried to hide a rule by not submitting it,
02:29that our Government Accountability Office was authorized to say, blow a whistle,
02:36say, no, that's actually a rule, in which case it would then have to come over here
02:41for review under the Congressional Review Act.
02:45So the question of what a rule was has long been considered
02:49during the course of the Congressional Review Act and over those 30 years,
02:54and it has always, always, always, always been a rule.
03:03Before the Congressional Review Act came along, in fact, 20 years earlier,
03:08the Clean Air Act was passed by Congress.
03:11And the Clean Air Act, with a healthy respect for federalism
03:16and the role of sovereign states and the role of California
03:20as what is now the fourth biggest economy on the planet,
03:24allowed California a waiver
03:28in order to be able to
03:32make its own clean air auto emissions rules.
03:39And so beginning
03:40with the passage of the Clean Air Act,
03:44California took advantage of this,
03:46and these waivers
03:48were filed with the EPA and processed by the EPA.
03:52Sometimes they created the waiver,
03:55sometimes they amended a waiver,
03:56sometimes they renewed a waiver,
03:58sometimes they modified a waiver.
04:00The first action was taken on July 11th, 1968,
04:08by the EPA.
04:09So, 50-plus years ago.
04:17And the most recent one until our current procedural rigmarole
04:22was December 17th, 2024,
04:25a week before Christmas last year.
04:29Between July 11th of 1968 and December 17th of 2024,
04:39California's Clean Air Standard
04:42was reviewed under this waiver process
04:45131 times.
04:49131 times.
04:50And every single time it was determined
04:54to be a waiver and not a rule.
04:56It was never across that half-century plus
05:01ever treated as a rule.
05:06It clearly was a waiver.
05:08It's described as a waiver in the statute.
05:10That's actually the law.
05:13So, that's where we stood.
05:18California had a legal right
05:20to run its own clean air program for 50 years.
05:26EPA was obliged to treat it as a waiver.
05:30And the Congressional Review Act did not apply
05:34because the Congressional Review Act
05:37only applied to rules.
05:40And this was not one.
05:41The problem was that the fossil fuel industry
05:48more or less runs this place right now
05:50and it wants to sell more gasoline.
05:53So, California's clean air rules
05:55that make cars be either more efficient
05:57and get more miles per gallon
05:59or become hybrid
06:02and be able to run back and forth
06:03between gas and electric
06:05or be fully electric
06:07interfered with the impulse
06:10of big oil
06:11to sell more gasoline
06:13and, of course,
06:16do more pollution.
06:20What was big oil to do
06:22in that circumstance?
06:23Well, there were a couple of things
06:24that they could have done.
06:26They could have, for instance,
06:29negotiated with California.
06:32Indeed, they could have asked the President
06:34to negotiate with California.
06:38And perhaps even with states like Rhode Island
06:40that joined the California clean air standard.
06:43So we'd be in the room
06:44and have our voices heard, too.
06:46There could have been a robust, healthy,
06:49political, and democratic negotiation.
06:52But, no.
06:58Big oil chose not to do that
07:00because it knew it had a fast lane
07:02through this body.
07:04They had another alternative,
07:06which is to amend
07:09the Clean Air Act
07:11or the Congressional Review Act
07:14to solve this problem.
07:16You could amend the Clean Air Act
07:18to call the waiver a rule
07:19or make it proceed by rule
07:22or you could amend
07:24the Congressional Review Act
07:25so that it wasn't limited to rules anymore
07:27but a waiver could fit in.
07:30You could do either one of those things
07:31by what my Republican colleagues
07:34usually like to cheer about,
07:37which is regular order,
07:38the regular order of the Senate,
07:40the regular order of Congress.
07:43Of course, the problem for big oil in that
07:45was that they'd have to get the law passed
07:48in the House
07:50and they'd have to get the law passed
07:52in the Senate
07:52and in the Senate
07:54that would subject it to
07:55having to negotiate with the Democrats
07:57in order to get past cloture
07:59and get 60 votes
08:01and then get the bill signed
08:03by the President.
08:05That's the proper way to proceed
08:07when you want to amend a law.
08:10But big oil didn't care to do that
08:14because it knew it had a fast lane
08:16through this body.
08:19The third way they could have done this,
08:22which was actually commenced
08:24in the first Trump administration,
08:26was to have the EPA
08:28undertake an administrative review
08:31of the three key predicates
08:34that have to be checked off
08:37in order to grant the waiver to California
08:40and proceed under ordinary
08:44administrative agency process,
08:48indeed, one that had already been commenced
08:50in the previous administration.
08:53They could easily have done that,
08:55but of course,
08:57whatever big oil convinced
08:59big oil's representative at EPA,
09:03Lee Zeldin, to do
09:05would have then had to survive
09:08scrutiny in court
09:09because you can't do
09:13administrative procedures
09:14in this country
09:15if there's no rational basis
09:17for the decision
09:18at the end of the day.
09:20You can't do administrative decisions
09:22in this country
09:23if they are,
09:24to use the magic words
09:25of administrative law,
09:27arbitrary and capricious.
09:33So they chose not to follow
09:34the administrative process either
09:36because they knew
09:37they had a fast lane
09:39through this body.
09:43Unfortunately,
09:44the fast lane that big oil
09:45knew it had through this body
09:47ran right over
09:49the parliamentarian
09:52because the parliamentarian
09:59is obliged to police
10:02what is appropriate
10:03under the Congressional Review Act.
10:06She is our referee here
10:09over whether we're doing things legally
10:11and by the rules or not.
10:15And she determined,
10:18which in my view
10:19was an extremely easy determination
10:20based on 131 to 0
10:24in previous waivers,
10:27never in 30 years
10:28under the Congressional Review Act,
10:30something that wasn't a rule,
10:32and the statutory waiver
10:33for 50 years
10:35for California
10:35in the Clean Air Act,
10:38hard to do much
10:39of a stronger case than that.
10:41So we got a decision,
10:43a proper decision
10:44from the parliamentarian
10:46saying,
10:46no,
10:48the special expedited procedures
10:49of the Congressional Review Act
10:51don't work in the Senate
10:53because it would be illegal
10:55because this is not a rule.
10:57This is a waiver.
10:59And it obviously was not a rule.
11:01It obviously was a waiver.
11:04So she wasn't wrong.
11:07But the parliamentarian
11:09is vulnerable
11:11to the political power
11:13of this body.
11:14This body can overrule
11:16the parliamentarian.
11:18The majority can do it
11:20with a simple 51 votes.
11:24Imagine a football game
11:26in which one team
11:27has more players
11:28than the other.
11:30One team commits a foul.
11:35The ref blows a whistle
11:37on the foul
11:38that the majority team committed.
11:41And the majority team
11:43gets by vote
11:44to overrule the referee.
11:48That is a crummy way
11:50to go about doing business
11:52in an orderly,
11:54deliberative body
11:54like the United States Senate.
11:56And that's why
11:57it happens so rarely.
12:00Overruling the parliamentarian
12:02on a matter
12:03is considered
12:04going nuclear.
12:07Going nuclear.
12:08And this
12:10is the first time
12:12in the history
12:12of the Senate
12:13in which the majority
12:15has gone nuclear,
12:19overruling
12:20the parliamentarian
12:21on a matter
12:23affecting legislation,
12:26both
12:27the Congressional Review Act
12:29and the Clean Air Act.
12:32So the complex
12:33procedural rigmarole
12:35you saw last night
12:37and today
12:38and today
12:38was all designed
12:40to do a parliamentary
12:42end run
12:42around the parliamentarian
12:45overruling
12:47the determination
12:48that this was not a rule,
12:50changing
12:51the Congressional Review Act
12:53and
12:53the Clean Air Act,
12:55but without
12:56the proper procedures
12:58under the Constitution
12:59that we're obliged
13:00to follow
13:01when we're passing
13:02or amending laws.
13:03there's a particular
13:07other problem
13:08here,
13:09which is that
13:11if they'd gone
13:13the
13:14negotiation route
13:16with California,
13:18all of us
13:19who like
13:19clean air
13:20and want
13:21strong
13:23vehicle emissions
13:25regulations
13:26would have had
13:27a voice.
13:29Something would have
13:30had to have been
13:31agreed to.
13:31There would have had
13:32to have been
13:33some compromise.
13:35But Big Oil
13:35didn't want that
13:36because they knew
13:37what they had here
13:37in the Senate,
13:38a fast lane
13:39to whatever they want
13:41whenever they wanted.
13:44They could have gone
13:45through the court process,
13:46but the court process
13:47is bounded
13:48by laws,
13:50by fair procedures,
13:53by the opportunity
13:54for effective parties
13:55to be heard
13:56and by the standards
13:58of having a rational
14:00basis
14:00and not being
14:01arbitrary and capricious.
14:04In this forum,
14:06the majority
14:07can have
14:08no rational basis
14:10and be 100%
14:12arbitrary
14:13and capricious
14:14and ram
14:16its view
14:18through.
14:18and so
14:20the court thing
14:23wasn't quite
14:24as appealing
14:25because what
14:26has happened here
14:27would by any standard
14:29have had
14:30no rational basis
14:31and been
14:32arbitrary
14:33and capricious.
14:37Or they could have
14:38gone the legislative route
14:39and passed
14:40the bill
14:41properly,
14:42amended the bill
14:42properly,
14:43and used
14:43the constitutional
14:44procedures.
14:45But again,
14:47we would have
14:47had a voice
14:48in that.
14:49So this ram job
14:51was the solution.
14:55Rolling over
14:56and overriding
14:59the parliamentarian
15:00was the method
15:01and serving
15:03the fossil fuel
15:04interests
15:05behind the Republican
15:06party
15:06was the goal.
15:10But the outcome
15:11is going to be
15:13bad outside
15:14the chamber
15:15and it's going
15:16to be bad
15:17inside the chamber.
15:18Outside the chamber
15:19the bad outcome
15:20is going to be
15:21a lot dirtier air,
15:24a far worse
15:25competitive position
15:26for our auto industry
15:27against China
15:28which is already
15:29running ahead of us
15:30in the future
15:32technology
15:34of electric vehicles,
15:35and worse
15:39health outcomes
15:40particularly in busy areas
15:42where there's
15:43lots of traffic.
15:45Not to mention
15:46having the majority
15:47of the country's
15:48economy
15:49overruled
15:51by a minority
15:52of the country's
15:53economy
15:53where the majority
15:55of the country's
15:55economy chose
15:56cleaner air.
15:58So those are all
16:00the bad things
16:00that happened
16:01outside this body.
16:04and as Senator Schiff
16:08said earlier
16:09that will be measured
16:11in things like
16:11cancer diagnoses.
16:14This gets personal
16:15pretty quickly
16:16when it's clean air
16:18and health matters.
16:21Inside the body
16:22we have just opened
16:24an entirely new avenue
16:26for mischief.
16:28It could be
16:30mischief by any
16:3230 of us.
16:33Frankly,
16:33it could be mischief
16:34by a minority
16:35of the majority
16:36who want to drive
16:38something through
16:39that most of the
16:40majority don't want.
16:41But they can do it now
16:42using the
16:43Congressional Review Act
16:45which requires
16:4530 signatures
16:46to get in.
16:49And you can go back
16:50to any
16:51executive action
16:54taken since the
16:56passage of the
16:56Congressional Review Act
16:58and you can drop
17:00that into the
17:00Federal Register
17:01and submit it here
17:02and say it's a rule
17:04and even if you're
17:06lying,
17:06even if it is not
17:07a rule,
17:09we've just opened
17:10the gate
17:11so that every
17:13executive action
17:14ever taken
17:15can now be
17:16considered a rule
17:17whether it is
17:18or not
17:18for purposes of
17:20the Congressional
17:22Review Act.
17:24And a powerful
17:25special interest
17:26that controls
17:28a powerful
17:29party
17:29can ram
17:31whatever it wants
17:32through this body
17:33without constitutional
17:34procedure,
17:35without judicial
17:36safeguards,
17:37and without
17:38compromise.
17:41So they broke
17:43wide open
17:44the window
17:45of
17:47what
17:48can be brought
17:50through the
17:50Congressional Review Act
17:51in time
17:52used to be
17:55just a matter of
17:56usually just a couple
17:58of months,
17:59depends on the change
18:00in elections,
18:00but 60 days
18:01or thereabouts.
18:03Now,
18:0530 years
18:06of stuff
18:07is available
18:08to be dropped
18:09into the hopper
18:09in this process
18:10and shoved
18:11through this body.
18:14And the other is
18:15that it's not rules
18:16anymore.
18:17It's anything.
18:18So we've gone
18:20from a very narrow,
18:22carefully guard-railed
18:24provision
18:24to provide
18:26a short-term
18:28opportunity
18:29for Congress
18:30to overrule
18:31an offending
18:32legislation
18:32immediately
18:34after that
18:35regulation
18:35is passed
18:37to a
18:38wide-open
18:39sewer
18:40for political
18:43influence
18:43and interference
18:44into any
18:46executive decision
18:48ever rendered
18:50that can be
18:51pulled out
18:51of the past,
18:52dropped into
18:53the Federal Register,
18:55submitted over here
18:56under the pretense
18:57that it is a rule,
18:58and with 30 votes
18:59and a majority
19:00behind it,
19:00off you go
19:01to the races.
19:02So this is a
19:04bad, bad day
19:05for the Senate.
19:07It signals
19:08a willingness
19:08of this majority
19:10after so much
19:12talk about
19:13defending the
19:13filibuster,
19:14oh, defending
19:14the filibuster,
19:16when we were
19:16in the majority
19:17you never heard
19:18them stop talking
19:19about how important
19:20the filibuster was.
19:21But now that
19:22they're in the majority
19:23it's only a little
19:23over 100 days
19:24and this started
19:25some time ago,
19:26they immediately
19:27started the plot
19:28to bring this
19:29chore for the
19:30fossil fuel funders
19:32through the Senate
19:33floor
19:33and break
19:36the filibuster
19:37in order to
19:38accomplish their goal.
19:40So
19:40give me
19:42a break.
19:45I yield the floor.
19:47I see my friend
19:47Senator Cassie
19:48from Louisiana
19:48waiting to speak.