By Andrea Marpillero-Colomina
You might have missed it, but Senate Republicans just opened Pandora’s Box. In May, a legislative resolution to attack vehicle pollution standards that was intended to be little more than red meat for their base and a thumb in the eye for California became a tinderbox that could destroy one of the Senate’s most famous and sacred guardrails, and potentially open the door to realizing a long-held dream of progressives: the Green New Deal.
Speaking for an organization that has long sought environmental progress, we hate attacks on pollution standards, but we won’t hesitate to turn a loss into long-term victory for environmentalists if the Republicans throw open the door to filibuster-free policymaking.
You’ve probably heard of the filibuster. This hundred-year-old tactic allows the minority party in the Senate to stop the majority’s legislation from passing by running out the clock without yielding the floor. If you want to stop your bill from getting filibustered, you need a three-fifths supermajority of the Senate to vote to end the debate.
For decades, Republicans have wanted to take a hatchet to the Clean Air Act, the bedrock air quality law that has protected public health across the country for more than 60 years. These fundamental air quality protections are especially important for Latino communities, who face some of the nation’s deadliest air pollution burdens. Latino children are three times more likely than their white peers to live in counties with poor air quality, and face 75 percent higher exposure to harmful tailpipe pollution in some places.
Thankfully, the Senate does not have enough votes to escape the filibuster. To get around this problem, the Senate used the Congressional Review Act (CRA), a legislative procedure that allows Congress to overturn recently issued federal regulations. CRA resolutions cannot be filibustered, and only need a simple majority vote to pass, allowing both chambers of Congress to work together to quickly and easily cancel certain types of rules that would otherwise take months or years of red tape to repeal.
The Senate parliamentarian (a neutral arbiter on procedure) already ruled that the Biden EPA’s Clean Air Act waivers for California’s vehicle pollution policies are not subject to the CRA. That’s because they’re not rules or regulations — they’re adjudications, the kind of case-specific, individual determinations that agencies make on a daily or weekly basis to keep the business of the federal government running smoothly.
At other times in legislative history, a final decision from the Senate’s referee would have been the end of the story. But these are not normal times. The House of Representatives advanced these legally inadmissible CRA resolutions, and the Senate followed suit by overruling the parliamentarian to pass them.
Democratic leadership has pointed out the major change in Senate norms that overruling the parliamentarian would signal. Now that these resolutions have been forced through, the Trump administration could start submitting agency adjudications, actions, policies, documents, guidelines, or anything else to Congress to be rapidly overturned, in clear violation of the plain legal meaning of the CRA.
Republicans like to think they’ll hold the Senate majority forever, but history has shown that Senate control never stagnates for long, and the pendulum can always swing the other way. If the next president is a Democrat and the house flips blue, the Senate will face an endless procession of politically fraught CRA votes on the Trump administration’s many unpopular policies.
The CRA includes a six-month look-back period at the end of every presidency. Now that the scope has been expanded via precedent, that means that the last six months of Trump’s term in office can be erased using filibuster-proof congressional resolutions. We hope that Republicans are willing to say goodbye to new oil and gas leases, pipeline permitting memoranda, brutal policy directives for immigration enforcement operations, temporary protected status determinations, and anything else that is now subject to the CRA under these newly minted ‘anything goes’ rules. Importantly, successful CRA resolutions prohibit agencies from reissuing rules that are “substantially the same” without approval from Congress (although the details and scope of this has never been tested in court).
Arguably, the risks to Senate procedure and the GOP’s political goals go even further than unleashing the CRA onto any and all actions by federal agencies. By directly overruling the parliamentarian and trying to end-run around the filibuster, Republicans risk collapsing the bipartisan norms and agreements that uphold it. Make no mistake — setting a precedent that broadens the application of the CRA beyond its original statutory scope is a slippery slope to the total demise of the filibuster.
Senate Republicans have a long history of using the filibuster to keep their agenda on track, and to avoid having to take the most unpopular votes that they don’t want to put their names to. It has often been the last thing standing in the way of passing sweeping progressive reforms into law. Once it’s gone, anything is on the table — from statutory moratoriums on public land leases for fossil fuels, making oil and gas companies pay into climate superfunds, or even the dreaded Green New Deal. Republicans' carelessness around the boundaries of the CRA could turn their short-term victories into an environmental justice tidal wave that they’ll be powerless to stop. We’ll be waiting to bring it on.
