California Seeks To Enjoin Democracy

California filed its latest lawsuit against the Trump administration last month in federal court in Washington, D.C. Like dozens of others, this lawsuit seeks to preserve enormously costly programs that give Sacramento power over national markets. But this suit is different in one striking respect. While couched as a request that the court somehow make the Environmental Protection Agency unsend four letters it recently transmitted to Congress, the real target is Congress itself. If successful, California would effectively enjoin the legislative process – an odd way to celebrate 250 years of independence from unaccountable tyranny.

Perhaps more remarkable than the lawsuit itself is the collective shrug it’s received in Washington. Members of Congress in particular seem not to be paying attention, perhaps because they fail to grasp the full implications of what California is attempting or perhaps because they’re distracted by other things. Regardless, failure to respond to this threat, and to the larger policy matters in play behind it, would be political malpractice. 

The backdrop here is a wrinkle in the Clean Air Act. That law forbids states from regulating emissions from new motor vehicles and other mobile emissions sources, from yard equipment to supertankers. But it makes an exception for California. EPA can give California a “waiver” of Clean Air Act preemption. Such waivers are a favorite tool of progressive administrations to supercharge California’s anti-fossil-fuel policies. And because other states can copy California’s motor vehicle rules, what starts in Sacramento rarely stays there. 

The Trump administration and bipartisan majorities in Congress last year legislatively repealed EPA waivers for a trio of California electric-vehicle mandates under the Congressional Review Act, or CRA. When an agency sends an action to Congress under that law, it starts a 60-day window for legislators to “disapprove” the rule by a simple majority vote – no filibuster. By sending those three waivers to Congress, EPA Administrator Lee Zeldin teed up one of the biggest affordability wins of the last two years – saving Americans hundreds of billions of dollars and ending deeply unpopular state electric-vehicle mandates.