By John Gallagher of FreightWaves
The Biden administration’s recent final rule setting new carbon emissions standards for truck makers could be overturned if Republicans in Congress get their way.
Senate and House Republicans on Wednesday introduced a resolution of disapproval of the Environmental Protection agency’s Phase 3 greenhouse gas emissions rule for heavy-duty trucks.
Co-authored by Sen. Dan Sullivan of Alaska and Rep. Russ Fulcher of Idaho, the resolution invokes the Congressional Review Act (CRA), a legal maneuver created in 1996 that allows Congress to nullify a federal rule.
If a CRA joint resolution of disapproval passes both houses of Congress and is signed by the president — or if Congress overrides a presidential veto — the rule cannot go into effect. If it has already taken effect, it goes out of effect immediately when the resolution is enacted and “shall be treated as though such rule had never taken effect,” according to the Congressional Research Service.
The Phase 3 trucking rule, published in the Federal Register on April 22, takes effect June 21.
“Biden’s latest effort to push electric vehicles is completely out of line and will eliminate consumer choice, grow our reliance on foreign adversaries, directly impact transportation for Idahoans, and have lasting impacts on the U.S. supply chain,” Fulcher said.
“These vehicles consume roughly seven times as much electricity on a single charge as a typical home does in a day and charging centers can require as much power from the electrical grid as a small city. [Charging] infrastructure aside, electric trucks cost roughly twice as much as diesel trucks, and these vehicles are not able to haul nearly as much.”
Trucking praises tactic
In support of the resolution, Ed Gilroy, the American Trucking Associations’ chief advocacy and public affairs officer, said the rule’s post-2030 truck model-year targets are “entirely unachievable” given the state of zero-emission technology and the lack of charging infrastructure.
The resolution “highlights the need for EPA to include the operational realities of trucking in their final regulation.”
Todd Spencer, president of the Owner-Operator Independent Drivers Association, said small truckers could be “regulated out of existence” if EPA’s rule goes into effect.
“This could have devastating effects on the reliability of America’s supply chain and ultimately on the cost and availability of consumer goods. Local mom and pop trucking businesses would be suffocated by the sheer cost and operational challenges of effectively mandating EV trucks.”
CRA successes rare
According to the Congressional Research Service, the CRA has been used to overturn 20 rules: one in the 107th Congress (2001-2002 under President George W. Bush), 16 in the 115th Congress (2017-2018 under President Donald Trump) and three in the 117th Congress (2021-2022 under President Joe Biden).
The law firm Covington & Burling points out that a unique feature of the CRA is a 60-day “lookback period” that allows next year’s Congress time to review rules issued near the end of the last Congress. “This means that the administration must finalize and publish certain rules long before Election Day to avoid being eligible for CRA review in the new year,” the law firm noted in recent blog post.
Agency rules submitted to Congress before May 22 likely will not be subject to CRA review by the new Congress in 2025, the law firm noted, because it gives the current Congress enough time to take up the legislation. That would make a rollback of the EPA rule unlikely given that the Senate currently is controlled by Democrats who presumably would vote against the resolution.
Sullivan, however, is confident that enough Senate Democrats will vote for the resolution.
“Senator [Joe] Manchin [D, W.Va.] is fully supportive, and I think it’s likely we’ll get other Democrats to support this because they’re hearing from their constituents,” Sullivan said at a press conference on Wednesday. “Then we’ll see if Joe Biden vetoes what the vast majority of the members of the House and Senate want.”
Legal challenge remains an option
A CRA is not the only option for those looking to overturn the rule. “Legal action is also a possibility,” OOIDA told FreightWaves, referring to a court challenge which, according to a Clean Air Act requirement, would have to be filed in the U.S. Court of Appeals for the District of Columbia Circuit.
In addition, because EPA intended for all the standards finalized in the rule to be entirely separate from each other, based on both the model year and the type of truck, “if a court were to invalidate any one of these elements of the final rule, we intend the remainder of this action to remain effective,” EPA stated in the rule.
“For example, if a reviewing court were to invalidate the MY 2027 standards for [light-heavy duty] vocational vehicles, the other components of the rule, including the other Phase 3 GHG standards, remain fully operable as the remaining components for the rule would remain appropriate and feasible.”
Those opposing the rule can also file a petition asking the EPA administrator to reconsider the rule. Doing so, however, “does not affect the finality of the action for the purposes of judicial review,” EPA states, “nor does it extend the time within which a petition for judicial review must be filed and shall not postpone the effectiveness of such rule or action.”
