Two Democratic Senators – one angry, one absent – allowed Senate Republicans to pass a resolution this week overturning the Environmental Protection Agency’s emissions rules for heavy trucks and buses that were announced in January 2023. But President Biden has promised to veto the resolution, and the Senate vote shows that Republicans don’t have the numbers on this issue to override his veto.

The EPA proposed rule in question was published on January 24, 2023 and focuses on reducing the emission of the types of pollutant that Congress had in mind when the Clean Air Act was written and reauthorized – ozone, NOx, particulant matter (PM), and carbon monoxide. (The EPA issued a second proposed rule on April 12 setting CO2 emission standards for heavy-duty vehicles starting in model year 2027 based on the more recent theory that CO2 is a pollutant, but the Senate’s vote this week did not address the second rulemaking.)

Sen. Deb Fischer (R-NE) introduced S. J. Res. 11, a resolution privileged under the Congressional Review Act that, if enacted into law, would overturn the EPA rule and prevent the EPA from ever issuing another rule like it, ever (or until the law is changed to specifically allow such a rule). She spoke in terms of costs to the trucking economy (which get passed on to the rest of the economy): “the EPA itself estimates that the technology required to meet this new rule’s standards will cost between $2,568 and $8,304 more per vehicle. The irony is, the prices of newer vehicles will escalate, incentivizing truckers and businesses to hold onto their older, higher-emitting trucks.”

Senate Environment and Public Works chairman Tom Carper (D-DE) defended the EPA rule, but mostly in terms of its application to NOx (nitrogen oxides): “This was the first time in more than 20 years that the EPA had updated the heavy-duty vehicle NOx requirements. It should not be confused with EPA’s recently proposed greenhouse gas emission standards for vehicles…this rule would result in 48 percent reduction in NOx by 2045. These reductions will improve air quality nationwide, especially in areas overburdened by air pollution and diesel emissions.”

Resolutions that are privileged under the CRA cannot be filibustered, so they only have to get a bare majority of those Senators voting in order to get to a final vote, not 60 or any other supermajority. In a 51-49 Senate, the fact that Sen. Dianne Feinstein (D-CA) is out indefinitely with illness at age 89, and the fact that Sen. Joe Manchin (D-WV) is irate with the White House over their watering down the onshoring requirements for electric vehicles that he wrote, meant that a united GOP with perfect attendance was able to win the vote, 51 to 49.

The House is likely to vote to concur in the Senate’s action. But the White House issued a strong Statement of Administration Policy saying that “If Congress were to pass S.J. Res. 11, the President would veto it.” And the Senate is very unlikely to go from a 51 to 49 final passage vote to a 67 to 32 veto override vote, so the EPA rule is safe unless struck down by a court.