Things don’t move fast in Washington—until they do. Just hours after we published our piece explaining why EPA waivers of Clean Air Act preemption are subject to congressional review under the CRA, GAO published a memo of “observations” taking the opposite view. In addition, UC Berkeley Professors Dan Farber and Eric Biber have explained in a series of posts on this site and on LegalPlanet (here, here, and here) why they agree with GAO and disagree with us.

Here, we clarify what the GAO memo does—and, more importantly, what it does not—purport to do, and provide some brief responses both to GAO’s memo and to Professors Farber’s and Biber’s posts. In brief:

First, the memo is not a “formal decision” as some have claimed, nor does it purport to bind Congress or the Senate Parliamentarian. As it says right in the subject line, GAO’s analysis merely provides the agency’s “observations.” Those observations do not claim to change long-standing GAO and Senate practice that agency actions submitted as rules are treated as such under the CRA.

Second, GAO’s observation memo makes the same mistakes as its original 2023 opinion. It says nothing about how other states can follow California’s rules under Section 177 of the Clean Air Act or EPA’s longstanding practice of finding that waivers are “nationally applicable.” If this were a law-school “issue spotter” exam, GAO would get an “F” (or whatever the equivalent is in today’s inflated grading scale) for ignoring the most important aspect of the statutory program.

Third, Professors Farber’s and Biber’s attempts to backfill GAO’s analysis under the rubric of the “collateral effect” principle miss both that the effects are not collateral, but direct, and—more significantly—that a waiver gives states new authority to regulate the automobile industry. Furthermore, the professors also incorrectly suggest that legal interpretation of the CRA belongs not to Congress, but to the Senate Parliamentarian. As we explain, the Parliamentarian is the custodian of Senate precedent and procedure, but not statutory interpretation.

I. GAO’s New “Observations”

As we explained in our original piece, GAO has no “formal” role to play in policing the CRA; its ad hoc job is to answer Congress’s questions when a member asks whether an agency failed to submit a rule of general applicability.

Senators Whitehouse, Padilla, and Schiff nevertheless asked GAO for a “formal opinion” about EPA’s recent submission of three “waivers” for three electric-vehicle mandate programs. Normally in these circumstances, GAO would “take no position” on the question. Once an action gets submitted as a rule, GAO treats it as a rule: submission “obviates” the need for a GAO decision even when the agency does not think an action is a rule and submits it merely “out of an abundance of caution.” Examples abound—see here, here, and here. Prior submissions include at least one prior waiver decision by EPA, which GAO lists as a “final rule.”

That’s not unlike what happened here: the Trump Administration decided that submission to Congress of these EPA waivers was warranted, presumably because of the waivers’ nationwide scope and applicability, and their economic impact. But in an unprecedented move, GAO issued—with unusual speed—a letter offering its “observations” on EPA’s submissions and opining that its “prior analysis” of a different waiver means these waivers are not eligible for the CRA. The memo, however, does not purport to change GAO’s past practice. That’s why it is framed as “observations,” not a “decision.”

As we’ll explain below, GAO’s recent analysis makes the same mistakes that its original “formal opinion” did back in 2023. Before getting to that, however, a few words on the procedural irregularities of GAO’s speedy response to Senator Whitehouse’s request.

First, GAO’s provision of “observations,” at all, is unprecedented and in tension with the agency’s consistent prior practice. GAO acknowledges in its letter that the current situation “is not one in which [it] normally issue[s] a legal decision.” But rather than declining to take a position as it has in the past, or simply directing Congress to its prior opinion, GAO affirmatively “observ[es]” that its “conclusion” that a prior waiver “was not a rule for purposes of [the] CRA … would apply to the three” waivers at issue here. That departure from GAO precedent is reason enough to question GAO’s motives—and conclusions. As we explained in our opening piece, GAO’s role is to help Congress expand its reach, not contract it. That’s why GAO has long maintained that it doesn’t provide an opinion on submitted actions because doing so “would not further the purposes of [the] CRA.”

Second, GAO’s letter is also difficult to square with the agency’s standard protocols. According to its internal operating procedure (IOP), GAO reaches out to the relevant agency for its legal position and “does not provide interim briefings on potential conclusions” while awaiting an agency response. And typically, GAO gives the agency at least “4 weeks” to respond. Here, GAO sent a letter to EPA on February 25, 2025, and EPA resubmitted the waivers “with additional information” two days later. Apparently, GAO wanted more. But rather than giving EPA reasonable time to respond, GAO issued preliminary “observations”—based on a flawed prior analysis and without input from the expert agency that submitted the waivers—one week later.

All this suggests that what’s going on here isn’t dispassionate analysis but an attempt by an unelected bureaucracy to sow confusion and advance its desired policy outcomes. If the bureaucrats employed to help Congress implement the CRA treat this process as regulatory “Calvinball”—trying to change the “rules” in the middle of the game—then lawmakers are justified in ignoring them.

II. What GAO’s New “Observations” Fail to Observe

GAO’s “observations” largely rehash GAO’s flawed 2023 opinion, complete with that opinion’s central mistake. GAO continues to overlook that EPA has long treated waivers as “nationally applicable,” largely because all other states can follow California’s rules. As we have explained, Section 177 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, so long as the states give manufacturers two years of lead time.

EPA has repeatedly acknowledged the importance of this provision. For example, EPA explained in its “Advanced Clean Trucks” waiver that “this final action is nationally applicable” because it “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” (p. 20725).

GAO ignores EPA’s statements and instead claims that waivers rest on an “individual determination of a particular set of facts” specific to California air quality at the time of the waiver application. That insistence is mistaken not merely because it applies nationwide, but also because EPA says that waivers continue in effect indefinitely unless EPA rescinds them, even if California changes its standards, so long as those changes are “within the scope” of the existing waiver. That means waivers allow all 50 states to choose to follow California’s current-and-future standards regardless of the facts on the ground at the time and place of that decision.

Ironically, a case that GAO cites on page 7 of its “observations” directly contradicts GAO’s assertion that the type of agency action at issue here is an “order” and not a “rule.” That case, Yesler Terrace Community Council v. Cisneros, 37 F.3d 442 (9th Cir. 1994), involved HUD’s determination that Washington state’s public housing authority could substitute its own eviction procedures for federally required ones. The Ninth Circuit held that determination was a rule, not an order. The relevant federal law prescribed federal eviction procedures that state public housing authorities had to follow unless “HUD has determined that state court eviction procedures satisfy the elements of due process as defined in” HUD regulations. 37 F.3d at 445. HUD determined that Washington’s state court procedures satisfied those elements. HUD argued that its waiver of federal procedures for Washington “is not a rule at all, but instead is an order stemming from an informal adjudication.” 37 F.3d at 448.

The Ninth Circuit disagreed, observing that:

Two principal characteristics distinguish rulemaking from adjudication. First, adjudications resolve disputes among specific individuals in specific cases, whereas rulemaking affects the rights of broad classes of unspecified individuals. Second, because adjudications involve concrete disputes, they have an immediate effect on specific individuals (those involved in the dispute). Rulemaking, in contrast, is prospective, and has a definitive effect on individuals only after the rule subsequently is applied.

Id. (citations omitted) (emphases added).

According to the Ninth Circuit, HUD’s determination—even though it assessed Washington state’s eviction procedures based on criteria set out in regulations, id. at 449—“has all the hallmarks of a rule. HUD’s determination had no immediate, concrete effect on anyone, but merely permitted [the Washington Public Housing Authority] to evict tenants in the future without providing them with informal grievance hearings. At the same time, the determination affected the rights of a broad category of individuals not yet identified.” Id. at 448.

Similarly, EPA’s waivers—even though they assess California’s standards based on criteria set out in a statute—“ha[ve] all the hallmarks of a rule.” Id. They have “no immediate, concrete effect on anyone, but merely permit[]” California (and other states) to enforce its standards “in the future.” Id. The waivers similarly “affect[] … a broad category of individuals not yet identified,” id.—manufacturers that sell vehicles in California or in states that have adopted, or may later adopt, California’s standards.

It doesn’t matter if “the manner in which [EPA] made its decision shares certain features with adjudications”—i.e., “compar[ing] the elements … set out in” a statute with California’s standards. Id. at 449. “The form of the proceeding is not dispositive; what counts is its effect.” Id. Because the waivers have “legal consequences for yet-to-be-identified individuals only prospectively,” they are rules, not adjudications or orders. Id. GAO would have noticed this had it read the cases it was citing.

Finally, GAO concludes its “observations” by speculating that any resolution disapproving the waivers for California’s “Low NO_X” and “Advanced Clean Cars II” programs might be legally inadequate because EPA transmitted to Congress the Federal Register documents that notify the public of EPA’s decision, rather than the decision documents themselves. GAO’s speculation is based on a mistaken premise. A CRA resolution disapproves of a particular agency action, not a specific agency document issued in support of that action.

III. Professors Farber’s and Biber’s Attempts to Backfill GAO’s Analysis are Unpersuasive and Misconstrue the Role of the Parliamentarian

Section 177. Professor Farber attempts to cover GAO’s 49-state-sized blind spot by dismissing the waivers’ nationwide consequences as “collateral effects.” He notes that administrative “orders” and “licenses” can affect third parties: an administrative injunction might bind “not only the defendant but all those acting in concert with” the defendant; FDA’s licensing of a drug might preclude certain third-party lawsuits; and agency approval of an immigrant’s “citizenship application has a collateral effect on” the applicant’s family members “through the family reunification policy.” But Professor Farber’s examples miss the key feature of Section 177 that sets waivers apart from other administrative decisions: it results in the establishment of a new regulatory regime.

Section 177 sub-delegates federal regulatory authority to California. As discussed above, Yesler shows quite nicely why this sort of delegation must be a rule, not an adjudicatory order. For it to hold, Professor Farber’s analogy would have to give the citizenship applicant authority to set the family reunification policy for herself and other applicants. That’s not how things work, of course. Indeed, no administrative “order” or “license” that Professor Farber identifies similarly subdelegates an agency’s nationwide regulatory mandate to a licensee or other beneficiary of an agency adjudication.

This distinguishing delegation of authority also defeats Professor Farber’s slippery slope argument. No one is arguing—or could credibly argue—that a television broadcasting licensing decision is a “rule of general applicability” because it prohibits third parties from using the licensed frequency. Unlike a waiver, a broadcasting license does not give effect to new regulatory standards, or delegate authority to create or enforce those standards.

In their follow up pieces, Professors Farber and Biber acknowledge that other states’ ability to adopt California’s standards under Section 177 “is perhaps the best argument for the waivers being ‘rules’ under the CRA,” but claim that because “the waiver analysis is specific to California,” it’s more like an order or rule of particular applicability than a rule of general applicability. But the Ninth Circuit already rejected that argument in Yesler, making clear it’s not the “form of the proceeding” that matters, but its “effect.” 37 F.3d at 449. Professor Biber’s misplaced caution against considering “the practical … effects of an agency decision to determine whether it is a rule for CRA purposes” cannot be squared with this clear direction.

Congressional Procedure. Professor Biber also mistakenly suggests that the buck stops with the Senate Parliamentarian. He therefore contends that were the Senate to “proceed regardless” in the face of disagreement with the Parliamentarian, it would be choosing a “nuclear option”—akin to the Senate’s past decisions to exempt certain nominees from the filibuster—that would “in effect amend the Clean Air Act.” This is wrong in numerous respects.

First, Professor Biber misunderstands the role of the Parliamentarian. The Parliamentarian’s job is to advise on matters of Senate procedure and precedent. But whether an executive agency’s action is a “rule” under the CRA isn’t a procedural question, such as what the Senate treats as “days of continuous session,” but a substantive question of statutory interpretation. Nor is it a matter of precedent—to the extent any precedent exists, it’s that actions submitted as rules get treated as rules. Congress—not the Parliamentarian—is the ultimate arbiter of what its statutes mean. Any procedural question here is entirely downstream. That’s presumably why GAO (and, it appears, the Senate Parliamentarian, as well) has hitherto scrupulously avoided inserting itself into opining on whether an agency action submitted to Congress is, or is not, subject to the CRA.

Second, disagreeing with the Parliamentarian as to whether an agency action is a “rule” under the CRA is nothing like narrowing the scope of the filibuster. In the latter, the Senate affirmatively changes its procedure and “overrules” its precedents. In the former, the Senate is changing no procedural rule, but exercising its longstanding prerogative to interpret the law and apply the CRA. For Professor Biber to be right, the Senate would have to establish a new Byrd Rule-like “Whitehouse Rule” whereby CRA eligibility would require substantive Parliamentary blessing. That is not the CRA that Congress wrote.

Nor is the President “arm-twisting Congress” by giving Congress an opportunity to review the waivers. Quite the reverse. EPA initially withheld the waivers in an effort to deny Congress input on these important actions. Submitting them now doesn’t force Congress’s hand. Congress remains free to disregard the waivers if it so chooses. Making use of a statutorily available process for reviewing agency action also isn’t a “shortcut.” True, it would take longer for the executive branch to undo the waivers on its own, but that’s precisely because the regulatory process does not involve Congress. Public comment and protracted judicial review are ersatz substitutes for decisionmaking by publicly elected officials and are designed to prevent arbitrary executive action. Handing the waivers to Congress gives the electorate the real thing—elective democracy. No one prioritizing the long-term interests of democratic accountability or legitimacy in the United States would lament that a decision of such nationwide importance as whether to compel widespread adoption of electric vehicles ultimately lies with Congress rather than with an unelected federal bureaucracy or an obscure Senate functionary.

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.