Whitehouse Warns Republican Plan to Overrule Parliamentarian Is Nuclear Option: “There Is No Cabining Such a Decision”

“Once ‘You Give a Mouse a Cookie,’ it never ends.  Pretend all you want that these waivers are exceptional or that any precedent overruling the Parliamentarian would be limited.  That’s not the way it works,” said the EPW Ranking Member

WATCH Senators Whitehouse, Padilla, and Schiff warn that the Republican plan to overrule the Parliamentarian and overturn California’s Clean Air Act waivers amounts to going nuclear. 

Washington, D.C.— U.S. Senator Sheldon Whitehouse (D-R.I.), Ranking Member of the U.S. Senate Environment and Public Works Committee, joined Senators Alex Padilla (D-Calif.), Ranking Member of the Senate Committee on Rules and Administration, and Adam Schiff (D-Calif.) to take to the Senate floor to sound the alarm about Senate Republicans’ considering a dangerous plan to overrule the Senate Parliamentarian’s decision regarding California’s clean air waivers that allow the state to implement more protective air quality standards.

The Government Accountability Office (GAO) has determined that California’s Clean Air Act waivers are not rules under the Congressional Review Act (CRA), and the Senate Parliamentarian affirmed that any CRA resolutions on this subject would therefore require 60 votes to secure Senate passage.  The Senators emphasized the harmful environmental, public health, and economic consequences of attempting to revoke California’s waivers, as well as the dangerous precedent this “nuclear option” would set in undermining longstanding Senate procedures that could be applied to legislation far beyond the CRA.

“Then there’s the question of overruling the Parliamentarian.  The ‘nuclear option,’” said Ranking Member Whitehouse.  “The import of overruling the Parliamentarian extends far beyond CRA resolutions.  Once you overrule the Parliamentarian on a legislative matter, all bets are off.  Any future majority would have precedent to overrule the Parliamentarian on legislative matters.  There is no cabining such a decision.  It is tantamount to eliminating the filibuster.”  

The EPW Ranking Member continued, “‘If You Give a Mouse a Cookie,’ it never ends.  Pretend all you want that these waivers are exceptional or that any precedent overruling the Parliamentarian would be limited.  That’s not the way it works.  Soon some members will think their thing is exceptional and push to use the precedent.  And on and on it will go, if you give the mouse the cookie.  You’d be upending 50 years of treating preemption waivers as agency decisions and not rules; 30 years of deferring to the GAO and the Parliamentarian on what constitutes a ‘rule’ for purposes of the CRA; and centuries of Senate procedure.” 

Earlier this week, Whitehouse, Padilla, and U.S. Senate Democratic Leader Chuck Schumer (D-N.Y.) led Democratic Ranking Members in strongly warning Majority Leader John Thune (R-S.D.) and Majority Whip John Barrasso (R-Wyo.) of the dangerous and irreparable consequences if Senate Republicans overrule the Senate Parliamentarian’s decision on California’s waivers.

Ranking Member Whitehouse’s full remarks, as prepared for delivery:

I thank my colleagues from California for coming to the floor today to talk about this important matter. 

I rise to join them, because the underlying matter is about the Clean Air Act, which falls in the jurisdiction of the Environment and Public Works Committee. 

A different law, the Congressional Review Act, creates a fast-track procedure in the Senate to disapprove agency rules.  For the most part, the CRA is focused on rules during a short period immediately after they are made final, and before they go into effect.  As soon as an agency finalizes a rule, it submits the rule to the Government Accountability Office and both houses of Congress.  That starts a 60-day review clock.  The CRA also provides a “look-back period” where a Congress can reach back into the final 60 days of a previous Congress and review rules from a prior administration. 

Generally, there’s no question what constitutes a “rule” under the CRA.  However, sometimes agencies don’t submit actions to Congress that have typically been deemed rules and sometimes, here, they submit as rules, actions that have never previously been considered rules.  GAO polices whether the submitted action was, in fact, a rule. 

GAO has weighed in about 60 times in the history of the CRA.  When GAO determined the action was a rule, the action was deemed submitted and the review clock started.  When GAO determined the action was not a rule, Congress stood down.  No one moved a CRA resolution of disapproval following a negative finding by the GAO.  Never.  Which brings us to this oddity.

In 2023, Members asked GAO whether an EPA Clean Air Act waiver decision for California was a federal “rule” for purposes of the CRA.  GAO said no.  Like every other time, that settled it

GAO’s “no” comported with the text of the CRA and the waiver provision in the Clean Air Act, and 50 years of agency precedent treating waivers as “decisions” (a type of adjudication which the Administrative Procedure Act distinguishes from rules).  EPA itself across multiple administrations never called waivers rules under the CRA, even under the first Trump administration. 

Then, in February, after much lobbying by the oil industry, the Trump EPA submitted notices of three waiver decisions – one from more than two years ago, far beyond that 60-day lookback period.   Upon a request from the three of us, GAO confirmed its 2023 opinion and found that, notwithstanding EPA’s politically motivated submissions, California waivers are not rules.  GAO pointed out to EPA that the waiver notices on their face indicate they are decisions rather than rules.  The Parliamentarian then heard debate from both sides and affirmed GAO’s decision and ruled that Clean Air Act waivers do not qualify for expedited consideration under the Congressional Review Act.  Every other time the Senate has reached this point, Members have respected the decision of the Parliamentarian.

Not this time.  This time, a faction in the Republican Party wants to overturn decades of precedent, ignore the GAO and the Parliamentarian, and steamroll forward in violation of the plain text of the CRA, deploying the “nuclear option.”

Once there is precedent that anything an agency does can be considered a “rule”, the time and scope limits in the CRA have no meaning.  Anything could be swallowed up in the new CRA definition. 

Think about how the Trump administration might abuse this.  At least one member of this body previously asked GAO if FDA’s decision to allow pharmacies to dispense Mifepristone qualified as a rule for the purposes of the CRA.  GAO said no.  It ended there.  If we overrule GAO and the Parliamentarian on the waivers, nothing stops the Trump FDA from submitting the decision as a rule, or members from introducing a disapproval resolution.  Everyone knows by now that President Trump has a beef with a whole host of media outlets, some of which are licensed by the Federal Communications Commission.  What’s to stop the FCC from submitting CBS’ license as a rule and members from introducing a disapproval resolution?  Is this really the path we want to go down?

A future Democratic administration could submit every oil and gas lease issued since 1996 as a rule, as the subject of disapproval resolutions. 

We’ve already given away too many Article I powers to the executive branch.  Do we really want to give the executive branch this power to submit anything and everything as a rule and allow members to hijack the floor with CRA resolutions?  That is not how this institution is supposed to work.

Then there’s the question of overruling the Parliamentarian.  The “nuclear option”.  The import of overruling the Parliamentarian extends far beyond CRA resolutions.  Once you overrule the Parliamentarian on a legislative matter, all bets are off.  Any future majority would have precedent to overrule the Parliamentarian on legislative matters.  There is no cabining such a decision.  It is tantamount to eliminating the filibuster.  

Once “You Give a Mouse a Cookie,” it never ends.  Pretend all you want that these waivers are exceptional or that any precedent overruling the Parliamentarian would be limited.  That’s not the way it works.  Soon some members will think their thing is exceptional, and push to use the precedent.  And on and on it will go, if you give the mouse the cookie.

You’d be upending 50 years of treating preemption waivers as agency decisions and not rules; 30 years of deferring to the GAO and the Parliamentarian on what constitutes a “rule” for purposes of the CRA; and centuries of Senate procedure. 

There’s another path.  In 2019, the first Trump EPA used the administrative process to withdraw a previously-granted Clean Air Act waiver that permitted California to set car standards. 

So, I ask my Republican colleagues, is this worth it?  Is it worth “going nuclear” to accomplish something that EPA could accomplish?  Is it worth going nuclear, knowing full well the Pandora’s Box this would open? 

I close with the advice of the majority leader, the senior senator from South Dakota.  He said earlier this year that overruling the Parliamentarian would be “totally akin to killing the filibuster. We can’t go there. People need to understand that.”