The Congressional Review Act gives Congress sixty days to kill a federal rule. Sixty days, and then the window closes forever.
One of the rules now queued for repeal is a California vehicle emissions waiver the EPA granted on 9 January 2013. Another dates to July 2009. The sixty-day window on both expired while Barack Obama was president.
They are back on the table because of a detail almost nobody reads. The clock does not run from when a rule is made. It runs from when the agency hands it to Congress.
So in June 2026 the EPA handed them over again.
How the sixty-day clock got restarted
Under 5 U.S.C. 802, a disapproval resolution must be introduced within 60 days beginning when Congress receives the agency’s report on the rule. Submission starts the clock. Nothing in the statute says a rule can only be submitted once, or promptly, or at all near the time it was issued.
On 12 June 2026, the EPA reclassified four Clean Air Act waivers as “rules” and submitted them to Congress and the Government Accountability Office: the 2009 greenhouse gas standards, Advanced Clean Cars I from 2013, the 2022 reinstatement of the Advanced Clean Car program, and a 2025 small off-road engines waiver. On 22 July it sent two more.
Six joint resolutions followed. H.J.Res. 205 targets the 2013 Advanced Clean Cars I waiver. H.J.Res. 211 targets the 2009 greenhouse gas waiver. H.J.Res. 212 targets the 2022 reinstatement. Three more take aim at ocean-going vessels at berth, commercial harbour craft and small off-road engines.
A statute written to let Congress catch fresh regulations had been turned into a time machine.
The agency that scores this had already said no. Twice.
The Congressional Review Act names a referee. Agencies must submit rules to the Comptroller General, who runs the GAO, and the GAO issues opinions on whether something actually is a rule.
On 30 November 2023, in decision B-334309, the GAO ruled on a California waiver notice and found: “The Notice does not meet the APA definition of a rule. Rather, the Notice is an adjudicatory order… Even if the action were considered to be a rule, it would be a rule of particular applicability. For these reasons, the Notice is not a rule for purposes of CRA.”
That decision concerned 87 Federal Register 14332 — the exact notice H.J.Res. 212 now targets.
On 6 March 2025, in decision B-337179, the GAO said its earlier analysis applied to the newer waivers too. The Senate parliamentarian agreed with the GAO. In 2025 the Senate proceeded anyway, and three resolutions became Public Laws 119-15, 119-16 and 119-17 on 12 June 2025, wiping out the waivers for Advanced Clean Trucks, Advanced Clean Cars II and the Omnibus low-NOx rule.
The reason the override sticks is another line of the same statute. Section 805 says: “No determination, finding, action, or omission under this chapter shall be subject to judicial review.” The referee can be overruled and the call cannot be appealed.
A judge found the one door that was still open
California sued, and on 2 September 2026 Judge Beryl A. Howell of the U.S. District Court for the District of Columbia granted a preliminary injunction.
She got there by threading a needle. Section 805 bars review of what Congress does under the CRA. It does not bar review of what an agency does under the Administrative Procedure Act. So the court reviewed not the disapproval, but the EPA’s decision to reclassify the waivers as rules in the first place.
Her opinion puts the legal point simply: “The only legal rights and obligations directly determined by EPA in the waiver proceeding are the rights of the State of California.” That is the definition of an adjudication, not a rule.
On the manoeuvre itself she was unusually direct, describing it as something that “may seem like a clever policy move, but undermines honest compliance with the law, which is what Americans should expect from executive branch agencies.”
The order enjoins the EPA from giving effect to the reclassification and requires it to restore the previous state of affairs, with a compliance report due 21 September.
The part that outlives every administration
Here is what makes this different from ordinary regulatory whiplash, and it is the least-covered provision in the whole fight.
5 U.S.C. 801(b)(2): a disapproved rule “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution.”
Almost everything in American environmental policy is reversible by the next election. This is not. Once a waiver is disapproved, no future EPA — of any party, in any decade — can grant a substantially similar one without a fresh act of Congress.
And nobody knows what “substantially the same” means when the thing disapproved was permission granted to a single state rather than a regulation of general application. If California reapplies with an amended program, who decides whether it is substantially the same, on what record, and subject to what review? Section 805 suggests the answer to the last one is: none.
Advanced Clean Cars I is not the ZEV mandate, and this is where coverage goes wrong
It is tempting to treat all of this as one fight about electric car mandates. The documents do not allow it.
The EPA’s January 2013 waiver covered a package: the LEV III criteria pollutant standards, the LEV III greenhouse gas standards, and the ZEV amendments. Criteria pollutants are smog — oxides of nitrogen and particulates. By CARB’s own account, ACC I means cars sold in 2025 emit 75 percent less smog-forming pollution than the 2012 average, with ZEVs and plug-in hybrids reaching only about 8 percent of sales.
Eight percent. Advanced Clean Cars I is overwhelmingly a smog rule with a small ZEV component attached. The 100-percent-by-2035 requirement people picture is Advanced Clean Cars II, adopted in 2022 and already repealed in June 2025.
The resolutions do different things, too. The 2019 SAFE Vehicles Rule withdrew only the greenhouse gas and ZEV portions of the 2013 waiver, leaving the criteria pollutant standards untouched; the 2022 reinstatement restored only those portions. So H.J.Res. 212 reaches greenhouse gases and ZEVs. H.J.Res. 205, which targets the full 2013 package, is the one that reaches the smog standards.
Anyone writing that Congress is moving to repeal “EV mandates” without saying which resolution is describing the wrong bill.
One waiver, many states
This is also not the first time the agency’s framing has been tested in court — a judge recently rejected an EPA attempt to treat a 17-year-old rule as brand new. The reach of this is larger than California because of Clean Air Act section 177, which lets other states adopt vehicle standards only if those standards are “identical to the California standards for which a waiver has been granted.”
Read the condition carefully. Every other state’s program is legally parasitic on California’s waiver. Remove the waiver and the states that copied it lose the thing their own rules were required to be identical to — without Congress ever legislating about those states at all. The same section forbids a “third vehicle,” so they cannot split the difference either. It is the federal standard or California’s.
One permission slip, revoked in Washington, reaches every state that ever relied on it. We have traced where that authority came from in the 1966 provision that handed California its emissions power.
Why fuel retailers are in this fight
The convenience store industry’s interest here is not ideological. It is arithmetic.
By NACS’s own published figures, convenience stores sell approximately 80 percent of the fuel purchased in the United States, and 121,852 of them sold gasoline as of 31 December 2024. The Energy Information Administration puts US motor gasoline consumption around 376 million gallons a day.
A rule designed to reduce gasoline consumption is, from a fuel retailer’s side of the counter, a rule designed to reduce their volume. And in June 2025 the Supreme Court said that injury is real enough to sue over. In Diamond Alternative Energy v. EPA, a 7-2 Court held that “the fuel producers have Article III standing to challenge EPA’s approval of the California regulations,” finding injury in lost fuel sales.
That decision is the trade-association position translated into constitutional law: lost gallons are a legally cognisable harm.
What to remember
Forget the resolution numbers. Remember the mechanism, because it is the part that will still matter in twenty years.
The Congressional Review Act was sold as a sixty-day tripwire, a way for Congress to catch a regulation on its way out the door. What it has become is something else: a device that can be pointed at a thirteen-year-old decision by the simple act of mailing it to Congress again, that overrides the referee the statute itself appointed, that cannot be appealed, and that permanently forbids anyone from doing the same thing later.
Every emissions rule in America is one election away from reversal. Except the ones killed this way. Those are one election away from nothing at all.
Does it bother you when a rule like this just gets recycled instead of revisited? Sound off in the comments.