The news media has picked up on Friday’s announcement by the U.S. Environmental Protection Agency (EPA) that it intends to send to Congress several waivers granted by EPA to California during the Biden administration to enforce vehicles emissions standards on new trucks imposed by the California Air Resources Board (CARB).  In EPA’s view, the waivers granted by EPA are rules that must be transmitted to Congress for review pursuant to the Congressional Review Act (CRA). Pursuant to the CRA, Congress may vote to disapprove, via a simple majority of each body (thus skirting the filibuster in the Senate) and the President’s signature, certain recently enacted federal agency rules.

As with much of the first four weeks of the Trump administration, EPA’s action presents complicated legal questions. The waivers that EPA announced it will be sending to Congress are with respect to the following CARB regulations: Advanced Clean Trucks (ACT), Heavy-Duty Omnibus/Low NOx (Omnibus), and Advanced Clean Cars II. However, in response to a complaint from a Member of Congress that EPA’s 2022 reinstatement of a waiver for a different CARB regulation was not submitted to Congress for review under the CRA, the Government Accountability Office opined that EPA’s grant of that waiver was an order and not a rule, and thus not subject to the CRA. That issue will likely arise again under EPA’s proposed action.

Under the federal Clean Air Act, CARB can only enforce new vehicle emissions standards if granted a waiver by EPA. Both the ACT and Omnibus regulations have restricted new diesel truck equipment availability in California and states that have adopted the ACT and Omnibus regulations. Whether reversed by Congress via the CRA, through pending legal challenges to the ACT waiver itself, or through a regulatory action rescinding the waivers, eliminating the waivers should allow carriers to buy new trucks that meet their operational needs and are supported by publicly available infrastructure. EPA’s announcement is a clear indication of the Trump administration’s intent to address a new truck availability problem created by California’s premature, mandated transition to electric trucks.

Unfortunately, even if the ACT waiver is rescinded or nullified, the major truck and engine manufacturers entered into an agreement with CARB to continue to abide by the ACT in exchange for some minor relief. That agreement is subject to an antitrust lawsuit brought by the Nebraska Attorney General. No doubt, there is much to play out in the days, months, and years ahead that will influence new truck availability.