Congress Aims To Repeal Harbor Clean Air Rules, While Federal Judge Says “Stop!”

The House of Representatives voted to repeal two vital environmental regulations protecting California’s port communities this week, just days after a federal judge ordered the EPA to reverse its decision that made the vote possible.    

“Obviously, Congress isn’t waiting on the courts for a ruling,” said Teresa Bui, Senior Climate Campaign Director at Pacific Environment. “The House plans to vote this week – Tuesday and Thursday – on the waivers and likely to the Senate next week.”

Specifically, the House voted 216-211 to repeal California’s Ocean-Going Vessels At-Berth waiver on Tuesday, Sept 15, and voted to 214-208 to repeal its Commercial Harbor Craft waiver on Wednesday, Sept 16. But on Sept 12, Judge Beryl Howell ruled that the Environmental Protection Agency must reverse its reclassification of the two waivers as rules instead of orders, which is the basis on which they were submitted vote by Congress under the rarely-used Congressional Review Act. 

“Congressional Republicans are trying to roll back decades of efforts we have made here in Los Angeles to protect our port communities from the pollution that ships spew when they are docked,” supervisor Janice Hahn said in a statement after the first vote. “These Members of Congress do not breathe the air we do in San Pedro, Wilmington, and Long Beach. Their children do not have asthma from this dirty air. Their family members do not have cancer because of diesel fumes from container ships. I urge our US Senators to block this harmful bill.”

For 50 years Clean Air Act waivers that allow California to enact its own regulations have been recognized as adjudicatory orders, not rules, which makes them ineligible for Congressional review and possible repeal under the CRA. After the Trump EPA arbitrarily reversed this practice, both the Government Accountability Office and the Senate parliamentarian reaffirmed the traditional understanding, concluding that waivers were not CRA eligible for Congressional review.

Congress went ahead anyway with the first set of waivers, which are now subject to a lawsuit in federal court. A second set of waivers were challenged immediately by California, and on Sept 2, Judge Howell issued an injunction ordering the EPA to reverse its decision. California then asked Howell to extend the injunction to the two harbor waivers and on Sept 15 she did so.

The House, however, having received stolen goods, was determined to go ahead using them anyway.

Rep. James Gallagher (R-Calif.), the sponsor of the Harbor Craft waiver repeal resolution, told Bloomberg Law via email, “a ruling from an activist judge won’t stop us from exercising our powers to roll back costly regulations,” adding that he was “moving forward with my resolution.”

And Rep. Vince Fong (R-Calif.), the sponsor of the Ocean Going Vessel waiver repeal resolution, falsely claimed that “Congress has the authority—and the responsibility—to debate and shape policy that impacts our nation’s supply chain.”

During a House Rules Committee debate on Sept 14, Rep. Frank Pallone Jr. (D-N.J.), the House Energy and Commerce Committee’s top Democrat, accused House Republicans of “wasting their last week of session on CRAs that don’t actually comply with the requirements of the CRA.”

But rules, regulations and laws do not apply to Republicans, apparently. So they’re proceeding with the votes. Another lawsuit in response is a foregone conclusion.

It’s worth recalling that in Howell’s first order in favor of California, she accused the EPA asking the “Court to engage in Orwellian doublethink.”