The Senate has passed resolutions of disapproval to rescind waivers previously given to the California Air Resources Board by the Environmental Protection Agency allowing CARB to impose more stringent standards on heavy duty trucks and engines than the federal standards.

Last week the Senate approved H.J. Res. 87, the EPA waiver to allow California (and ten other states) to adopt the Advanced Clean Trucks rule, by a vote of 51-45, and H.J. Res. 89, the EPA waiver to allow California to implement its Omnibus NOx rule on heavy trucks, by a vote of 49-46. The House of Representatives had previously approved the resolutions.

Maryland, Massachusetts, Oregon and Vermont have recently delayed implementing the ACT requirements in their states due to the efforts at the federal level to rescind the waivers.

The joint resolution now goes to President Trump for signature, which is expected. Once signed into law, these congressional resolutions would prohibit the California Air Resources Board or any other state agency from implementing these emissions requirements on truck manufacturers and users.

NEFI and other opponents of the ACT rule have raised major cost and supply chain concerns and highlighted the lack of infrastructure needed to support widespread adoption of commercial EVs. In March, NEFI joined a broad coalition of energy, agriculture, and transportation groups (read the letter here) urging passage of the CRA resolutions.

But there is still an open legal question as to whether an EPA waiver is subject to the Congressional Review Act. The Senate Parliamentarian earlier this month provided an opinion that waivers are not final agency rules as defined in the Administrative Procedure Act and therefore may not be rescinded under the Congressional Review Act. The Senate Majority Leader, Sen. John Thune of South Dakota, overruled the Parliamentarian and scheduled a floor vote in the Senate despite the parliamentarian's opinion.

Governor Gavin Newsom of California has already indicated his State is ready to challenge these resolutions in court. If the courts overturn the waiver recissions under the Congressional Review Act, EPA will have to go through another rulemaking to withdraw the waivers in an administrative proceeding.

In addition, recission of the ACT waiver affects the legal status of the agreement signed by the Clean Truck Partnership, a group of major truck and engine manufacturers, and CARB. The agreement provides that the partnership members will abide by the ACT requirements even if the ACT rule waiver is withdrawn or struck down in the courts.

In November 2024, the Nebraska Attorney General, Energy Marketers of America and the Nebraska Renewable Fuels Association filed suit in state court claiming the Clean Truck Partnership agreement violates state antitrust law. The lawsuit asserts the agreement, by forcing the manufacture and purchase of EVs, will reduce inventory and raise prices for internal combustion engine vehicles in states like Nebraska that do not adopt the ACT rules.

If the ACT rule waiver is rescinded, then the members of the CTP agreement no longer have a defense that they are complying with a regulatory requirement. Instead, they must defend their partnership as a commercial agreement and argue that it is not a conspiracy in restraint of trade under the antitrust laws.