Judge Smacks Down EPA’s Attempt to Revoke Six of California’s Waivers

She calls EPA’s legal arguments Orwellian.

Judge Beryl Howell of the U.S. District Court for the District of Columbia is having none of EPA’s shenanigans in the agency’s most recent attempt to revoke four of California’s waivers to cut pollution from vehicles.  On Wednesday, Howell issued a preliminary injunction — accompanied by a stinging opinion –  ordering the agency to withdraw its decision to reclassify the waivers as rules. Judge Howell also denied EPA’s motion to dismiss California’s lawsuit.

Howell granted California’s request for an injunction because EPA Administrator Lee Zeldin had reclassified the waivers as rules and submitted them to Congress in June. Zeldin did so  in order to try to get Congress to revoke the waivers under the Congressional Review Act (CRA).   Howell found that California was likely to succeed in its claim that Zeldin’s reclassification of the waivers as rules violated the Administrative Procedure Act and exceeded EPA’s authority.

You may recall that Congress already used the CRA to revoke three other California waivers  in May of 2025, including California’s zero emission vehicle rule. known as the Advanced Clean Car II rule (ACC II)  That effort, also led by  Zeldin, was widely derided at the time because the CRA doesn’t cover waivers, at least according to the  Senate Parliamentarian and the Government Accountability Office.  California has sued to overturn the Congressional revocation of the first three waivers.

But Zeldin didn’t stop with the first three waivers. Instead, in June of this year, he sent to Congress  four more waivers EPA had previously granted to California.  Remarkably, some of the waivers Zeldin is seeking to revoke have been in place for years.  For example, California’s very first greenhouse gas standards,  which covered model years 2009 and subsequent years, (with a waiver issued in 2009 shortly after President Obama took office) are one of Zeldin’s targets. So is the Advanced Clean Car I rule. The ACC I waiver was granted in 2013, revoked during the first Trump Administration, and then reissued in 2022 by the Biden Administration.  Zeldin also sought to overturn California’s small engine regulation waiver (the so-called SORE rule), which covers lawn equipment like leaf blowers and lawn mowers, along with other small engines used off-road.  The SORE rule phases in a zero-emission requirement for small engines.

In the case before Judge Howell, California sued EPA, seeking a preliminary injunction to prevent EPA from reclassifying the waivers as rules under the Congressional Review Act  and requiring the agency to withdraw the rules from Congress.   Not long after California filed its suit,  in July, EPA reclassified two more waivers as rules and sent them to Congress. One waiver covers pollution from ocean-going vessels that EPA had granted in 2023, and another covers commercial harbor craft, granted in 2025.  Though California did not add those waivers to its challenge, Judge Howell’s reasoning pretty clearly applies to them.

Judge Howell’s opinion supporting her grant of a preliminary injunction is an interesting mix of complex, technical administrative law analysis and a fiery rebuke of EPA’s actions and arguments.   Here are the opening two lines:

 This is no run-of-the-mill challenge to agency action under the      Administrative Procedure Act (“APA”)….. At stake in this case is purposeful agency action to tell Congress one thing while operating differently elsewhere, with the purpose of invoking a legal mechanism that could halt future efforts by the agency itself, as well as California and other States, to control emissions of air pollutants and ensure cleaner air.

Judge Howell’s opinion also underscores who is pushing the EPA waiver/CRA scheme:  the oil industry, represented by the American Fuel and Petrochemical Manufacturers and the American Petroleum Institute. As she explains,  “California’s preemption waivers have been resisted at every turn by the two intervenors in this action— AFPM and API, which are trade associations representing “fuel producers, refiners, distributors, and retailers that operate throughout the United States” and have a commercial interest in opposing these “regulations designed to reduce demand for liquid fuels.””

She also made clear that she knows where the idea for using the CRA to revoke the waivers came from:  “The torch carried by trade associations for the petroleum industry is now being lifted by EPA, in remarkable lock-step with the political planning document, referred to as“Project 2025” or “2025 Presidential Transition Project,” issued in April 2023 by the Heritage Foundation, which document outlined the precise legal steps now being employed by the EPA….”

She then thrashed the agency in her decision for what she calls “Orwellian doublespeak.” That’s because EPA has been essentially talking out of both sides of its mouth.  The regulatory documents granting California every one of its waivers make clear  — in EPA’s own words — that waivers are not rules, and therefore not subject to the Congressional Review Act.   Zeldin’s EPA has now attempted to reclassify the waivers as rules, essentially disavowing its previous statements, and sent them to Congress without following the requirements of the Administrative Procedure Act.  But in court the agency also tried to argue that it had not reclassified the waivers as rules but instead merely submitted a report to Congress that didn’t officially reclassify the waivers.   Judge Howell made clear the these dueling explanations are “irreconcilable.”  She also relied on language in another case to call EPA’s position “preposterous.”

EPA also argued — and this is really the heart of the legal case — that the court has no jurisdiction to decide California’s claims that EPA’s reclassification of the waivers as rules violated the APA and that the agency acted outside of its statutory authority.  That’s because the Congressional Review Act contains a provision, Section 805, that says that“[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.” Judge Howell rejected the argument that courts cannot review an attempt by an agency to reclassify an action as a rule. As she recognized, to grant EPA’s argument would allow an agency to reclassify anything as a rule –“an adjudicatory order, license, internal agency management or personnel procedure or practice, or action otherwise excluded from CRA’s definition of “rule”— send it to Congress for CRA review, and then have that decision completely shielded from judicial review. EPA’s position would also mean that it could exclude from judicial review something it classifies as a rule but also shield it from APA requirements.    As the court held:  the same agency action cannot be a “rule” under the CRA without also being a “rule” under the APA, and an agency determination as to whether an action qualifies as a “rule” is subject to judicial review under the APA and outside Section 805’s scope.” Based on this reasoning – and a ruling that California had standing to challenge EPA’s reclassifications of the waivers – Howell enjoined EPA from reclassifying the waivers.  In doing so, she found that California was likely to succeed on the merits of its case because EPA’s actions appear to be arbitrary and capricious, outside of its statutory authority, and potentially ultra vires (in excess of its delegated powers).

So what does this case portend for California’s other case challenging the Congressional revocation of the first three waivers (ACC II and two heavy duty truck rules)? The decision obviously has no precedential effect given that it was issued by a district court. The Northern District of California, in which the three waiver case was filed, is not bound by a decision of the D.C. district court.  But Judge Howell’s reasoning could be important in influencing the court in the other case.  Her conclusion that EPA’s position would allow an agency to reclassify (or classify in the first instance) anything as a rule, even if it is patently not a rule, send it to Congress, have Congress revoke it, and be immune from judicial review, is a powerful one.  But the original case differs from Judge Howell’s case in an important respect: Congress made the decision to revoke the waivers after EPA reclassified the waivers as rules, whereas in her case Congress has yet to act. Whether a court would be willing to overturn a Congressional act is a different question than whether it’s willing to strike down an agency action — one can imagine some judicial reluctance to strike down legislative as opposed to agency action.

Finally, EPA is likely to appeal the district court decision.  So the waiver saga is far from over, but California’s victory this week  in California v. EPA is a big one.

California waiver, Congressional Review Act, EPA, Judge Beryl Howell