With the midterms approaching, Congress is under pressure to address growing “affordability” concerns. The fastest and easiest way for it to do this is by stopping harmful and unnecessary fees on imports. I’m not referring here to the media catnip that is President Donald Trump’s stance on Canadian trade, but rather to California’s blanket import/export tax under the guise of climate regulation known as the “Vessels-at-Berth” rule.
Currently, seafaring vessels in California are required by law to use “green” energy from the power grid when docked in California ports rather than their auxiliary diesel engines (which power all of their operations aside from locomotion).
Of course, such power is neither available nor safe to connect to, which means that instead shipping companies need to pay Newsom and co. “remediation” fees (up to $14,704 an hour) or noncompliance fines (up to $50,288 per violation) to get around the otherwise impossible mandate. California ports handle about 40 percent of containerized U.S. imports and nearly 30 percent of U.S. exports.
While this is ostensibly an exercise in environmental regulation, the obvious effect is that California has established its own import tax. Conservative estimates are that this will cost billions of dollars over the next five years — costs that get passed on to ordinary Americans nationwide in the form of higher prices for gas and food, depressed demand for American-made products abroad, etc.
What’s more, while traditional tariffs apply to foreign imports, California’s Vessels-at-Berth rule taxes both domestic cargo (like crude oil from Alaska) and American exports while they sit in port.
It’s an outrageous situation, but luckily the solution is simple. California was only able to enact this policy through a waiver of Clean Air Act preemption issued by the Biden EPA. Last summer, EPA and Congress correctly determined that other such waivers are “rules” for the purposes of the Congressional Review Act (CRA), and bipartisan majorities repealed them using that law’s streamlined procedures, thereby preventing California and a dozen other copycat states from forcing electric vehicles on the country.
The same thing can, and should, happen to the Vessels-at-Berth rule.
Indeed, the EPA has already transmitted the waiver to Congress as a rule, teeing up its consideration under the CRA. Sen. Dan Sullivan (R., Alaska) introduced a resolution of disapproval to kill the waiver. Under the CRA, this resolution will be eligible for discharge from the Environment and Public Works (EPW) Committee in the coming work period, provided enough Senate Republicans sign the motion to discharge.
They should. The idea that California is using “green” mumbo jumbo to fill a slush fund at the expense of Americans (and American manufacturers!) across the country is what Sen. Sheldon Whitehouse (D., R.I.) would call “risible.” Preventing California from doing so — ever, because CRA resolutions are preclusive — is a layup for Republicans seeking to show tangible victories in the war on rising prices.
Doing so would also send a strong message to rogue district courts. You see, the Vessels-at-Berth waiver was just one of six that the EPA sent to Congress this summer. California sued to stop — claw back, really — the first four in the ultraliberal D.C. District Court.
Just last week, Obama-appointed Judge Beryl Howell obliged in a long opinion that, even in this time of judicial “resistance,” stands out for its hectoring partisanship and legal incoherence.
Howell, the same judge who previously denounced DOJ for its “ad hominem attack” in trying to recuse her from the law-firm prohibition litigation, decried the EPA for acting “in remarkable lock-step with the political planning document, referred to as ‘Project 2025.’” Never mind that Project 2025 did not advocate for use of the CRA against California’s waivers. That’s just the kind of nonpartisan fairness one has come to expect from D.C. courts.
The case should be as open-and-shut as it gets. Without going into too much boring detail, California’s theory is that EPA improperly “reclassified” waivers as “rules” “of general applicability” in order to justify sending notification letters to Congress about the waivers. That’s wrong — as the Office of Management and Budget (OMB) has explained, waivers are “rules” under black-letter principles of administrative law. And if there were any doubt, Congress settled it during last summer’s near-identical exercise by passing legislation repealing three other waivers as “rules” under the CRA.
Even if this were not the case, the question is irrelevant. The CRA expressly prohibits courts from reviewing any agency “determination” taken “under” that statute. This is why the D.C. Circuit concluded years that you can’t sue to invalidate agency rules that aren’t submitted per the requirements of the CRA (to the detriment of conservatives because Democrats often forget to send the rules). Surely that should also apply to sending them.
To the contrary, Howell concludes that this doesn’t stop her. In pages and pages of justifying how she can ignore a statutory jurisdiction bar, she accuses EPA of “mind-numbing word calisthenics” and “Orwellian doublethink” for arguing that the statute’s words mean what they say.
According to Howell, while EPA’s transmission letter may be covered by the CRA, the supposed underlying determination that the letter should be sent because the waivers are “rules” (as evidenced by a press release) is outside the CRA and, in fact, governed by the Administrative Procedure Act. A clear statutory bar is replaced by a jigsaw puzzle of interlocking statutes that all fit together to give California what it wants.
To do that Howell also blows past basic principles of standing, the requirement that preliminary injunctions prevent some kind of actual imminent harm that the court can prevent, and multiple other jurisprudential stop signs.
Here’s where Congress comes back into it. Despite acknowledging that she “lacks the power to direct Congress to unsee what has already been seen,” Judge Howell’s order nevertheless commands the EPA to do everything within its power to restore the status quo ante prior to submission.
Sorry, Judge, but the notification has been transmitted and now it’s up to Congress to decide what to do with it. That the Vessels-at-Berth transmission has not (yet) been purportedly enjoined makes it a perfect vehicle for Congress to show a renegade district court that Congress controls the Congressional Review Act.
Discharging and passing the Sullivan CRA would let Congressional Republicans go home strong for the final stretch. Where else do you find a bill that lets you strike a blow for affordability and against judicial activism at the same time? It’s a prime opportunity that Republicans should seize.
Michael A. Fragoso is a columnist at the Washington Reporter. He is also a partner at Torridon Law PLLC. He previously served as chief counsel to Republican Leader Mitch McConnell and on the Senate Judiciary Committee.
