The Biden administration just blew through a potential Trump-proofing deadline

A second Trump administration could more easily dismantle California's nation-leading climate and air pollution rules if the Biden administration misses a fast-approaching deadline.

The Congressional Review Act allows next year's Congress and president to void this year's executive branch rules. It kicks in as early as May 22, according to legal observers. President Joe Biden's Environmental Protection Agency needs to give California permission to enforce a slew of its programs. Otherwise they could face new challenges if President Donald Trump wins a second term and Republicans take control of the Senate.

Trump has said he'll attempt to revoke California's pollution rules, as he did in his first term when he targeted the state's ability to set stricter vehicle emissions rules than the federal government. Trump campaign spokesperson Karoline Leavitt said Wednesday that's still the plan.

"President Trump is committed to doing everything in his power, and whatever is necessary, to stop Joe Biden and his far-left cronies from implementing a ban on gasoline-powered automobiles anywhere in America," she said in an email.

But the Congressional Review Act window opens up another line of attack for Republicans seeking to block California’s market-setting emissions standards for cars, trucks and tugboats, among other programs. The Biden administration could insulate the state's programs from congressional challenge under the rule if it granted the state's Clean Air Act waivers before the deadline.

“It would be nice to have it wrapped up so the Congressional Review Act is completely off the table,” said Ethan Elkind, director of the climate program at University of California, Berkeley’s Center for Law, Energy and the Environment. “The Congressional Review Act is just another prong of attack.”

California is still waiting on the Biden administration to act on eight waivers. Republicans trying to prevent EPA from issuing them, like the 74 House members who wrote to EPA last week to argue against the California Air Resources Board's pending emissions rules for locomotives, aren’t directly addressing the question of congressional review.

“Congressman [Doug] LaMalfa opposes the California waivers and believes the entire program should be eliminated,” said spokesperson Alexandra Lavy, in response to a question about whether the California Republican would try to use the act to reverse waiver decisions.

Defenders of California's authority point to a Government Accountability Office determination in November that said Congress can't use the act to review EPA's waiver decisions.

“The fact that GAO has already made a call probably means the waivers are safe,” said Matt Davis, vice president of federal policy at the League of Conservation Voters and a former EPA scientist.

California officials agree but are taking a firm stance.

Gov. Gavin Newsom’s office cited the Government Accountability Office opinion. ”The CRA doesn’t apply to waivers,” said spokesperson Alex Stack.

The California Air Resources Board declined to comment on the CRA question. "We’re confident U.S. EPA will approve California’s waiver requests," Dave Clegern said in a statement.

EPA spokesperson Angela Hackel said the agency would "follow the prescribed process in the Clean Air Act regarding any California waiver decisions," including a public comment period. She declined to comment on the congressional question or the agency's timeline.

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