The often-fuzzy distinction between “rules” and “adjudications” jumped to the foreground recently following the Trump Administration’s submission of several EPA “waivers” of Clean Air Act preemption for state electric-vehicle mandates to lawmakers under the Congressional Review Act (“CRA”). The Biden EPA had elected to not submit these actions for review, claiming in a December 2024 Decision Document that “waivers” are not “rules” of “general applicability” because they are “particular” to California (p. 189 & n.504), drawing on a 2023 Government Accountability Office (“GAO”) opinion reaching a similar conclusion about an earlier waiver. This assessment matters because the CRA does not contemplate congressional review of adjudications or of rules of particular applicability, only rules of general applicability.

As we argued in a January 8, 2025, op-ed for the Wall Street Journal, the view espoused by the Biden EPA skips over how the waiver program actually works:

Licensing [which is a form of adjudication] is defined by federal law to grant a “statutory exemption or other form of permission,” and the EPA’s waivers certainly meet this definition: They purport to give California Gov. Gavin Newsom a license to kill the internal-combustion engine. These waivers, however, do far more. Although the law authorizes only California to apply for a waiver, other states can then “adopt and enforce” standards “identical to the California standards for which a waiver has been granted” without further action from the EPA. And compliance with California’s rules is enough for auto manufacturers to satisfy the agency, creating pressure for the whole nation to fall in line. For this reason, the EPA has long said that its waivers have “nationwide scope or effect.” California’s rule banning gasoline cars includes detailed provisions on how compliance credits can be pooled and traded across states, creating a nationwide scheme to subsidize electric cars on the backs of gasoline-car buyers. There’s nothing “particular” about that.

This argument appears to have carried the day with EPA’s new administrator, Lee Zeldin, and with President Trump, who together announced on February 14, 2025 that EPA would submit to Congress three electric-vehicle-mandating waivers that the Biden EPA withheld from congressional review, beginning a 60-day period for Congress to review the waivers via resolutions of disapproval that would also bar any substantially similar future regulation (see 5 U.S.C. §§ 801(b), 802(b)). EPA followed through on this commitment on February 20, 2025 (see EC-439 to EC-441).

Some legal scholars and commentators (see here and here) have argued that this move to involve Congress in lawmaking is illegal because, in their view, the CRA and congressional precedent foreclose review of EPA’s waivers. But their analyses skip over salient features of the Clean Air Act and misapprehend both the CRA and longstanding congressional practice. More fundamentally, CRA resolutions are statutes in the final analysis, and questions of whether Congress followed a rule of internal procedure of which Congress is the sole judge thus miss the point.

This post builds on the analysis we provided in our op-ed and explains both why the CRA applies and why using the CRA to invalidate an EPA waiver is entirely consistent with Congress’s past practice. First, we lay out the background by introducing the EPA waivers’ origins in Title II of the Clean Air Act, the relevant CRA provisions, and the GAO’s advisory memo opining that the CRA did not apply to an earlier EPA waiver decision. Second, we explain that critics have missed how the CRA gives Congress plenary authority to review any action that an agency submits for that purpose, a point that the GAO itself has long noted “obviates” the need for that agency’s involvement. Last, we show why the CRA does apply to EPA waivers—not only because waivers are best understood as “rules,” but also because the Constitution and the CRA make Congress the sole judge of that question (not as an adjudicatory body, but as a legislature making new law).

Background

Title II of the Clean Air Act

EPA waivers are creations of Title II of the Clean Air Act. Title II creates a national regime to control air pollutants emitted from motor vehicles and expressly preempts all state emissions controls with just one exception. That exception, which Congress enacted in 1967, is Section 209(b) of the Clean Air Act. Section 209(b) allows California to apply to EPA for a waiver of Clean Air Act preemption under certain circumstances. Although only California may apply for a waiver, Section 177 of the Clean Air Act allows the other 49 states to “adopt and enforce” standards “identical to the California standards for which a waiver has been granted” without any further action from EPA. Thus far, 18 states have adopted one or more of California’s electric-vehicle mandates under this provision—an option that would not be available to them absent a waiver.

The three waivers that EPA recently submitted to Congress are core parts of this effort. One waiver, granted by EPA in 2023, applies to California’s “Advanced Clean Trucks” rule, which mandates increasing electrification of all medium- and heavy-duty vehicles. The other two waivers are part of the Biden EPA’s suite of “midnight actions” issued on the eve of the administration change. The second waiver applies to California’s “Advanced Clean Cars II” rule, which requires 100% electrification of new passenger vehicles and light trucks by model year 2035, and the third to the “Omnibus” rule, which institutes new, ultra-low NO_x emissions standards for medium- and heavy-duty vehicles in a manner designed to phase out diesel engine trucks. While California has taken a “regulate-first-ask-for-permission-later” approach, these rules did not have the force of law before EPA issued these waivers.

These regulations between them impose hundreds of billions in costs on Americans across the country. States that have adopted the Advanced Clean Trucks and Omnibus rules, in particular, are already seeing shortages, particularly in the heavy-duty diesel market.

The Congressional Review Act

The Congressional Review Act—or “CRA”—requires federal agencies to submit “rule[s]” of general applicability to Congress for review. Congress then has 60 days to introduce a “resolution” of “disapproval.” These resolutions are put on a legislative fast track that is exempt from the filibuster. If a resolution passes both houses and is signed by the President, the rule is not only legislatively invalidated, but the agency is prohibited from issuing a new rule that is “substantially the same.”

But not every federal agency action need be submitted to this process because not every agency action is a “rule” of general applicability. The CRA defines that term by reference to the Administrative Procedure Act (“APA”), which, in turn, defines “rule” as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy … .” The APA separately defines “order” as the “final disposition … of an agency in a matter other than rule making but including licensing,” and it defines “license” as “an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission.” Finally, the CRA restricts its application to exclude “any rule of particular applicability,” such as ratemaking proceedings, ensuring that these more granular types of agency action need not be submitted for congressional review.

The CRA is a powerful tool in theory, but not often in practice. Because of its short timeline, the CRA has teeth only when three criteria are satisfied: (1) there’s a change in presidential administration, (2) the new President’s agenda has the support of both houses of Congress, and (3) the prior administration either (a) failed to promulgate important regulations early enough to avoid the 60-day dragnet or (b) failed to submit the regulation to Congress. The Biden Administration was, of course, aware of all this and therefore promulgated virtually all of its marquee regulations—and submitted them to Congress—well in advance of the CRA’s lookback period. But it took a gamble on its “midnight” approval of several waivers of Clean Air Act preemption for various state electric-vehicle mandates, taking the position (here and here) that EPA did not need to submit these actions to Congress because they were adjudicatory orders particular to California and therefore not subject to the CRA. And it gave the same explanation for its similar decision not to submit its 2023 waiver for California’s “Advanced Clean Truck” program to Congress.

The 2023 GAO Advisory Opinion

On November 30, 2023, the GAO opined to Congress that EPA’s restoration of an earlier waiver of Clean Air Act preemption for California’s original “Advanced Clean Car” electric vehicle mandate and greenhouse gas emissions standards was “an adjudicatory order not subject to CRA” and that, even if it were a “rule,” it “would still not be subject to the CRA’s submission requirement” because “it would be considered a rule of particular applicability.” That opinion’s analysis begins by adopting the definition of “an adjudicatory order” as “a case-specific, individual determination of a particular set of facts that has immediate effect on the individual(s) involved.” The opinion reasons that a waiver is such an order because it is an immediately effective, individualized determination that California is not preempted from enforcing its own, specific emissions standards. According to the opinion, the waiver does not affect “a broad unspecified group” and the process by which EPA granted the waiver “involved consideration of particular facts, as opposed to general policy … .” The opinion thus implies (without actually asserting) that the waiver is similar to a “license,” such as a grazing permit or broadcast license. Finally, the opinion asserts that the waiver would be an exempt “rule of particular applicability” if it were a rule because it “concerns a specific entity—California—and addresses a statutory waiver specific to California’s Advanced Clean Car Program.”

Discussion

Both EPA and its supporters have treated the GAO’s opinion as more-or-less dispositive. Professor Dan Farber, for example, asserts that this reading isn’t merely his personal view because the GAO has “explained its reasoning at some length in a formal opinion.” Professor Ann Carlson and former chair of the California Air Resources Board Mary Nichols similarly assert that “Zeldin’s argument that EPA failed to submit the waiver decisions to Congress is simply wrong legally” because the GAO “has made absolutely clear that California waivers are not covered by the CRA.”

There are three problems with this approach. First, and most fundamentally, it incorrectly suggests that the GAO, an unelected bureaucracy acting beyond any statutory directive, can somehow bind Congress from making law. Second, it relies on the GAO only selectively, ignoring longstanding GAO opinions noting that all actions that an agency submits to Congress are treated as rules. And third, the GAO’s opinion is simply not convincing on its own merits as it ignores what EPA has long considered to be the “nationwide” and prospective scope of its waivers.

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1.         Congress is the Sole Authoritative Interpreter of the CRA.

Once an agency submits its action to Congress, the CRA gives Congress unreviewable power to consider and, if it wishes, disapprove that action. The CRA does this in two steps. First, it gives joint resolutions of disapproval the same status as federal statutes by requiring them to undergo the process of bicameralism and presentment to the President. See U.S. Const. art. I, § 7; INS v. Chadha, 462 U.S. 919, 951–59 (1983). That makes them binding on the Executive Branch, meaning that EPA (and other departments and agencies) would have to treat the waivers as invalid. Second, the CRA withdraws courts’ jurisdiction to review any “determination, finding, action, or omission under” the CRA that Congress makes. That provision prevents courts from second-guessing a congressional resolution of disapproval that invalidates an agency action. So, the CRA gives Congress unchallengeable power to invalidate any action that an agency submits for review.

A GAO advisory opinion that a submitted action is not in fact a “rule” subject to the CRA has no effect on Congress’s unchallengeable power. In fact, GAO opinions have no formal legal effect, and are not even something that the CRA authorizes or contemplates. As the CRS explains, they are part of an informal and ad hoc process that Congress developed to help monitor agencies’ attempts to evade CRA review by not submitting actions to Congress. This informal process allows a lawmaker to request an opinion from the GAO on whether an agency action withheld from Congress is in fact a “rule” of “general applicability” that the agency had to submit. If the GAO opines that it is, then Congress has historically treated this opinion’s submission to Congress as constructive submission of the action, which then starts the 60-day period for review under the CRA.

Note what is going on here. When the GAO issues an opinion at all, it is because an agency has refused to submit an action to Congress and a member of Congress has asked the GAO for its advice on whether Congress should exercise CRA review anyway. In contrast, when an agency does submit an action for review, the GAO has no role to play. It simply defers to the agency and to Congress. It is presumably for this reason that GAO itself lists EPA’s 2019 waiver decision as a “final rule.” This shows that there is nothing “unprecedented” in what EPA has done here. And it is consistent with the informal role Congress has afforded the GAO in increasing congressional oversight of agency action that might otherwise have escaped Congress’s notice.

The GAO itself agrees that it has no authority to limit congressional oversight of agency action by preventing review of an action that an agency has submitted to Congress. The GAO, through its General Counsel, has testified to the Senate that the CRA does not give the GAO any power “to decide what a rule is” and that the CRA only authorizes the GAO to act “in [its] role as adviser to the Congress” on this question (p. 20). The CRA’s text reinforces the GAO’s view of its advisory role because that statute never purports to empower the GAO—or anyone else—to decide for Congress what agency actions Congress may review. See also CRS R45248 (concluding that GAO opinions are merely advisory) and CRS IF11096 (recognizing that the GAO process “has developed outside the statute”). There is simply no basis in law to argue that the informal role Congress gratuitously assigned the GAO to increase agency accountability can somehow be turned on its head to insulate submitted agency actions from CRA review.

2.        Critics of EPA’s Submission to Congress Selectively Ignore Past Congressional Practice and Other, More Relevant, GAO Opinions.

Consistent with the previous point, a 2018 GAO opinion reaffirms that agency’s limited advisory role by declining to opine on whether a revenue procedure that the IRS submitted to Congress qualified for CRA review. The opinion explains that the GAO has no role to play in “the protection of Congress’s review and oversight authorities when an agency has submitted a rule to Congress pursuant to CRA.” “[I]n these circumstances,” the opinion continues, “because IRS submitted the revenue procedure as a rule,” the GAO would “take no position on whether the revenue procedure is a rule otherwise” because the agency’s submission “obviates the need for a GAO opinion.” The opinion further acknowledges that, as between the GAO and agencies, “CRA gives agencies the primary responsibility for determining which agency actions meet CRA’s definition of a rule,” and that “[t]he purpose that a GAO opinion might serve otherwise [i]s superseded by IRS’s submission of the [agency] action as a rule under CRA.” This was so even though the “IRS stated that it believe[d]” its action was “exempt from the CRA” and only submitted it to Congress “out of an abundance of caution.” This confirms that—even if GAO or an agency previously concluded that an agency action was not a rule—the agency’s later submission of such an action to Congress would, in the GAO’s words, “supersede[ ]” the GAO opinion. Simply put: once an agency submits something to Congress, GAO has no role to play. Of course, if Congress does not think an action is a rule, it can decline to review or “disapprove.”

That would appear to be the reason why the Biden Administration submitted to Congress many actions it had determined were not “rules” within the meaning of the CRA “out of an abundance of caution,” as this would prevent a later administration from having the opportunity to seek review with a different Congress. The agencies that submitted actions “out of an abundance of caution” include the Department of Veterans Affairs, CFPB, DOE, NIST, OMB, CMS, and even EPA. For example, EPA stated that it “disagrees with GAO’s broader reading of the Congressional Review Act and does not believe that the enclosed actions is [sic] a ‘rule’ within the meaning of 5 U.S.C. 804(3). Nevertheless, out of an abundance of caution, EPA is voluntarily submitting this action ‘to each House of the Congress and the Comptroller General,’ for their review under 5 U.S.C. 801(a).”

3.        The GAO’s Advisory Opinion Ignores Central Features of Waivers.

All this aside, the GAO’s analysis overlooks several key facts about EPA waivers that tend to indicate they are “rules” of general applicability with prospective effect.

First, waivers have nationwide consequences. Recall that Section 177 of the Clean Air Act allows all other states to adopt any California vehicle emissions standards that receive a waiver, so any waiver actually concerns all 50 states by giving them an alternative to federal vehicle emissions standards. Once a waiver is in place, states do not need any permission from EPA to adopt the California rules, so the initial waiver decision does not solely “concern[] a specific entity—California” as the GAO claimed (p. 6). Consistent with this, EPA has long taken the position that its waivers have “nationwide scope or effect.” For instance, in the “Advanced Clean Trucks” waiver, the agency explained that “[t]his final action will not only affect manufacturers of new heavy-duty vehicles and engines sold in California, but also manufacturers that sell their new heavy-duty vehicles and engines in those states that have already adopted or may choose to adopt California’s regulations”—consequently, “this final action is nationally applicable” (p. 20725). Currently, 18 states have adopted at least one of California’s electric-vehicle mandates under Section 177, spreading the waivers’ direct effect to more than 130 million Americans living on both coasts and in the Northeast, Mid-Atlantic, Midwest, and Southwest. Furthermore, many of California’s programs—including “Advanced Clean Cars II”—include complex provisions on how “compliance credits” can be pooled and traded across states, creating a nationwide scheme that subsidizes electric cars on the backs of gasoline-car buyers across the country. This “cap-and-trade” system shows that the waivers presuppose a nationwide implementation across many different states.

Second, waivers do not have “immediate effect,” but rather have “prospective effect” and “future”—indeed, indefinite—“applicability” because they have no expiration date. Because of the auto industry’s long lead times, EPA generally authorizes waivers for rules that do not require compliance until years later. Moreover, once EPA grants a waiver, it continues in effect indefinitely unless EPA rescinds it. So, a waiver decision is not closely tied to any “particular” set of facts, again contrary to the GAO’s opinion (see p. 5). As the now-former Solicitor General recently explained in a brief before the U.S. Supreme Court, waivers’ indefinite duration gives them effects far beyond the specific years covered by the initial application (pp. 12–13). According to California and its allies, a waiver will continue in effect even if California changes its standards from those that EPA considered when issuing a waiver, so long as those changes are “within the scope” of the existing waiver. See, e.g., Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. N.Y. State Dep’t of Env’t Conservation, 17 F.3d 521, 526 (2d Cir. 1994). Under California’s own view, then, waivers are best understood as general policy decisions—California (and all the other states) may, forevermore and regardless of changed circumstances, adopt and enforce the regulation along with changes California may adopt in the future, unless and until EPA determines otherwise. EPA has also said that such reversals “will be rare” because it “believes it may only reconsider a previously granted waiver to address a clerical or factual error or mistake, or where information shows that factual circumstances or conditions related to the waiver criteria evaluated when the waiver was granted have changed so significantly that the propriety of the waiver grant is called into doubt” (p. 14334).

To be sure, we don’t agree with all aspects of this expansive reading of the Clean Air Act. But supporters, at least, must take the bitter along with the sweet.

Third, these waivers also are not tied to any “particular” set of facts specific to California because EPA granted them assuming that the agency need not consider whether California needs the state standards to meet extraordinary and compelling air quality conditions particular to California. Under EPA’s “whole program” approach, so long as California has not met the federal air quality standards—which it will never do, given that smog was already significant in the Los Angeles Basin when the Spanish arrived there in the 16th century¹1. John D. Graham, The Global Rise of the Modern Plug-In Electric Vehicle 110 (2021) (“When Spanish sailors entered San Pedro (or Santa Monica) Bay on October 8, 1542, they noticed a severe haze covering the area. Smoke from the Tongua Indian villages contributed to the haze but the bigger factor is Southern California’s distinctive topography. When ocean breezes draw cool marine air onshore beneath a mass of warm air above, an inversion layer forms, trapping pollutants.”). —EPA contends that California is entitled to a waiver for any regulation the state wants to adopt to address global problems such as climate change, and other states can then adopt them (p. 14335)‌. That is true even if the regulations will make California’s smog problems worse, say, by reducing the turnover rate and thus keeping older vehicles on the road for longer. As Judge Wilkins on the Court of Appeals for the D.C. Circuit colorfully put it during oral argument in Ohio v. EPA, that’s like saying that so long as someone needs to go on a diet, they may order a dozen doughnuts every morning. EPA therefore granted these waivers on the assumption that it need not review California’s “particular” need for the particular program for which it seeks a waiver in a given instance.

Fourth, courts have treated waivers as functioning like rules that have nationwide general application to insulate them from federal preemption by other statutes. For example, in Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, the District Court for the District of Vermont asserted that “once EPA issues a waiver for a California emissions standard” it has “the same stature as a federal regulation.” 508 F. Supp. 2d 295, 347, 350 (D. Vt. 2007). ²2. See also Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 1173 (E.D. Cal. 2007) (“The court can discern no legal basis for the proposition that an EPA-promulgated regulation or standard functions any differently than a California-promulgated and EPA-approved standard or regulation.”). Although this view is wrong in important respects, California has long relied on it. If a federal district court was correct that an EPA waiver makes the California standards into rules with the force and effect of federal law (which is generally applicable), then how could the waiver not be a rule of general applicability? Some of the writers now complaining about EPA’s decision to send the waivers to Congress effusively praised that district court’s decision concluding that waivers function as federal rules and so were not preempted by other relevant federal laws. No writer we are aware of has addressed this inconsistency.

Similarly, while EPA has taken the position that waiver decisions are not rules for the purposes of Executive Order 12866, ³3. Executive Order 12866 requires agencies to submit rules with at least $100 million effects on the economy to the Executive Branch’s Office of Information and Regulatory Affairs (p. 51738). it has nevertheless submitted at least one waiver decision to Congress as a “rule” covered by the CRA, see here (pp. 51352, 51354). And the GAO apparently deferred to EPA’s judgment; according to the GAO’s website, this waiver decision was a “final rule” promulgated by EPA. This was unsurprising since, as already noted, there are many instances where agencies have submitted actions to Congress out of no more than a mere “abundance of caution.” Nothing prevented the Trump Administration from exercising similar caution as to the three waivers for California’s electric-vehicle mandates, and nothing suggests that they should not receive similar deference from the GAO.

Coda

Our op-ed acknowledges that, on the purely academic question, the “truth is that the EPA’s waiver decisions are the duck-billed platypus of administrative law, with some elements from rules and some from licenses, with both a state-specific focus and an unquestioned nationwide effect.” While we are unaware of any “adjudication” as broad and costly as these waivers, reasonable minds may disagree on the precise taxonomy of this strange creature.

It is nevertheless a non sequitur to argue—as Professor Farber does in his title—that “Congress Lacks Authority to Review California’s Car Waiver.” The CRA is a statute about the making of new statutes. And unlike the Constitution, prior statutes (as well as congressional procedures, norms, precedents, customs, and the like) are not binding on future congressional action in the way that, say, the Rules Enabling Act is binding on the federal courts. This is not to say that the CRA’s text and the customs that have arisen around it are unimportant; they matter, but they do not bind. In this, the CRA’s procedures are not unlike matters where the internal process is “committed to agency discretion by law” or other “grey holes” where “there are some legal constraints on executive [or, here, congressional] action — it is not a lawless void — but the constraints are so insubstantial that they pretty well permit government to do as it pleases,” subject to political rather than judicial review.⁴4. David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency 42 (2006); see also Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009). Indeed, the CRA is explicit on this point as it withdraws courts’ jurisdiction to review any “determination, finding, action, or omission under” the CRA that Congress makes. That’s as it should be and how our Constitution set things up. Allowing federal courts to second-guess legislative determinations and internal procedures would be a separation of powers nightmare.

The scholars critical of the CRA’s use here are unhappy that the nation will receive a political answer to the political question of whether to force electrification of the national car market. Their unhappiness is understandable, perhaps—though it is not shared by the majority of Americans who strongly oppose electric-vehicle mandates. But they have no grounds to argue that the review process, or the outcome it produces, is contrary to law. That outcome—quite literally—is the law.

Michael Buschbacher and Jimmy Conde are partners at Boyden Gray PLLC, a law and strategy firm in Washington, D.C. They represent a number of clients in challenges to regulations seeking to mandate the electrification of the new vehicle market. The views expressed here are their own.