by Ann Carlson and Mary Nichols (Legal Planet) Last Friday, EPA’s Administrator Lee Zeldin announced a new and unprecedented way to try to prevent California from implementing its ambitious program to move toward 100 percent zero emission vehicles. This time around, the Trump Administration is trying a new tactic. Rather than revoking EPA’s decision (called a waiver) to allow California’s program to move forward by using standard administrative procedures, as EPA did during Trump’s first term, Zeldin is trying to use the Congressional Review Act to do so. Despite this unprecedented use of the CRA, most of the press seems not to have noticed given the non-stop shock and awe campaign the White House has engaged in since Day 1 of the Administration.
The CRA requires agencies to submit rules it plans to issue to Congress, but even more importantly, the Act allows Congress to reject rules that were adopted at the end of a President’s term. Republicans have already introduced numerous resolutions to overturn Biden Administration rules adopted in the last six months of Biden’s term. But Zeldin’s actions face a major problem: the Congressional Review Act doesn’t cover administrative actions like the California waivers and Congress can’t use the CRA to overturn them.
Trump has made no secret either of his antipathy toward zero emission vehicles or of his intent to revoke the special authority California has under the Clean Air Act to issue its own vehicle pollution standards.
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The problem for California legally is that under the Clean Air Act, the state can’t issue tough emissions standards without EPA’s permission. But EPA has its own problem: under President Biden, the agency already granted California waivers to implement its Advanced Clean Car II program, its Advanced Clean Trucks rule, and something called the Omnibus Nox rule, which also applies to trucks. And the granting of the waivers are on very strong legal grounds because California needs them to meet tough federal air pollution standards that at least two regions of the state (Southern California and the Central Valley) are out of compliance with. For an explanation of the legal strength of the waivers EPA granted, see here.
If EPA tries to overturn the waivers by rescinding permission, California will surely challenge the recission of the waivers and has a very strong legal case. And rescinding the waiver takes months and months: in Trump 1 it took EPA 18 months to rescind the Advanced Clean Car I waiver. In the meantime the California rules remain in effect. So Zeldin is trying something new.
Republicans have increasingly turned to the Congressional Review Act to undo environmental policies. The CRA has two steps: it first requires agencies to submit rules to Congress before they will be published. Once a rule is finalized, the CRA allows the two houses of Congress to reject the rule by passing a joint resolution for the President’s signature. The consequences are serious: if signed by the President, the regulation is void and the agency is prohibited from acting to amend or substitute a “substantially similar” regulation .
The problem for Zeldin, though, is that the Congressional Review Act doesn’t apply to California waivers. The statute explicitly excludes from the process rules of “particular applicability.” The U.S. General Accountability Office has made absolutely clear that California waivers are not covered by the CRA, saying that a waiver “is an adjudicatory order not subject to the CRA.” And even Utah Republican Senator Mike Lee has admitted as much, acknowledging that “California’s CAA federal preemption waivers cannot be reviewed under the Congressional Review Act (CRA) because the waiver granted by EPA is not a rule as that term is defined in the CRA.” So Zeldin’s argument that EPA failed to submit the waiver decisions to Congress is simply wrong legally. Now he’s trying to redo what EPA wasn’t required to do: submit the waiver decisions to Congress. The next step will be to get Congress to overturn them.
The fact that the CRA doesn’t apply to California’s waivers probably won’t stop Congress from overturning them. The Administration’s assault on environmental policies is unrelenting. Then we will inevitably see a lawsuit to determine whether Congress has the power to invalidate a decision that isn’t included in the terms of the Congressional Review Act. READ MORE
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Excerpt from U.S. Environmental Protection Agency: Today, U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced in the Oval Office, alongside President Donald Trump and the newly created National Energy Dominance Council, that the EPA will be transmitting to Congress the Biden Administration’s rules granting waivers that allowed California to preempt federal car and truck standards promulgated by EPA and the U.S. Department of Transportation’s National Highway Traffic Safety Administration.
“The Biden Administration failed to send rules on California’s waivers to Congress, preventing Members of Congress from deciding on extremely consequential actions that have massive impacts and costs across the entire United States. The Trump EPA is transparently correcting this wrong and rightly following the rule of law,” said Administrator Zeldin. “The American people are struggling to make ends meet while dealing with rules that take away their ability to choose a safe and affordable vehicle for their families. As an agency, we are accountable to Congress, but most importantly we must be accountable to the American people.”
The EPA rules granting California waivers transmitted to Congress include California’s Advanced Clean Cars II, Advanced Clean Trucks, and Omnibus NOx rules. The two waivers regarding trucks not only increased the cost of those vehicles but also increased the costs of goods and the cost of living for American families across the country.
In his first week at EPA, Administrator Zeldin announced his “Powering the Great American Comeback” initiative to guide EPA’s work to protect human health and the environment while restoring the greatness of the American economy for the first 100 days and beyond. Today’s action advances two of the five pillars of this initiative: Permitting Reform, Cooperative Federalism, and Cross-Agency Partnership, and Protecting and Bringing Back American Auto Jobs. READ MORE
Excerpt from Land Line: On Friday, Feb. 14, the EPA announced it will be sending Congress three rules issued during the Biden administration granting California a waiver for Advanced Clean Cars II, Advanced Clean Trucks and the Heavy-Duty Omnibus regulation. Using the Congressional Review Act, Congress will review the rules and could strike them down with a simple-majority vote.
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Although the Advanced Clean Cars II and Omnibus rule waivers just barely fall within that 60-day window, Advanced Clean Trucks was given the green light in March 2023. However, the Trump administration is taking advantage of a loophole in the Congressional Review Act to put Advanced Clean Trucks on the chopping block.
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Trucking stakeholders applauded the EPA’s move to roll back Advanced Clean Trucks amid pleas to delay implementation of the rule in five states.
The Owner-Operator Independent Drivers Association said it appreciates the EPA’s efforts to protect small-business truckers across the country “from California’s regulatory encroachments.”
“Setting national policy is the responsibility of Congress, not California. It’s no wonder small-business truckers have left the state in droves to find better opportunities elsewhere,” OOIDA President Todd Spencer said. “For OOIDA members, vehicle reliability and affordability are critical. So far, there is no convincing evidence that electric commercial motor vehicles are a viable option for small-business truckers given the high costs and inadequate charging infrastructure. Additionally, CARB’s overreaching Omnibus NOx rules have raised prices on new vehicles and increased maintenance costs for trucks already on the road.”
Trucking Association of Massachusetts Executive Director Kevin Weeks said the association looks forward to working with state regulators to find “practical solutions that continue to minimize emissions and promote a cleaner and safer environment in the Commonwealth.” Massachusetts is one of the states that began Advanced Clean Trucks rules this year.
“As the commercial transportation industry has consistently stated, we support initiatives for a cleaner environment and the ongoing effort to reduce emissions wherever feasible,” Weeks told Land Line in an email. “However, the electrification of the medium- and heavy-duty truck segment presents significant challenges. The current state of technology, affordability, applicability and infrastructure are not adequately prepared for widespread electrification in this sector.”
Washington state also began Advanced Clean Trucks in January.
Washington Trucking Association President Sheri Call said revoking the waiver would “significantly benefit (medium- and heavy-duty) trucks, which we would welcome.”
“A fragmented multi-state approach which we currently have going won’t address the industries’ long-term decarbonization challenges and will continue to hamper progress,” Call said. “That, and excluding near-zero emission technologies as prescribed by CARB will impede short-term efforts to reduce diesel emissions. The situation is uncertain due to unpredictable state leadership response and potential lengthy litigation over a waiver revocation.”
The American Trucking Associations also commended the EPA’s move to send Advanced Clean Trucks to Congress for review.
“This is not the United States of California,” ATA President Chris Spear said in a statement. “California should never be given the keys to set national policy and regulate America’s supply chain.”
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Excerpt from Inside EPA: The pitch in a Jan. 8 Wall Street Journal op-ed comes amid expectations the incoming Trump EPA is already poised to target California’s waivers for its mobile source emissions rules. Top lawmakers also appear... READ MORE
by Gabriel Malheiros (Datamar News) “The question isn’t whether Brazil will face tariffs—it’s when” That’s the assessment of experts consulted by BBC News Brasil regarding the future of Donald Trump’s tariff policies.
“It’s highly likely that Brazil will eventually become a target of U.S. tariffs,” says economist Otaviano Canuto, a former vice president at the World Bank and researcher at the Policy Center for the New South.
“Not next week, when Europe will probably be in the crosshairs, but later on, very likely.”
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And while Washington has yet to announce any concrete measures against Brazil, Trump has repeatedly called out the country in his speeches, labeling it a “major taxer.”
At the end of January, the Republican included Brazil among nations that “wish harm” on the U.S.
“Put tariffs on countries and foreign people who truly mean us harm,” Trump said. “China is a huge tariff imposer. India, Brazil, so many, many countries. We’re not going to let that happen anymore because we will always put America first,” he declared at a rally in Florida.
That’s why, according to Vinícius Vieira, professor of Economics and International Relations at Fundação Armando Álvares Penteado (FAAP), “The question isn’t whether Brazil will face tariffs, but when.”
Not a Priority—For Now
So why has Brazil been spared so far?
Experts believe the country is simply not high on Washington’s list of priorities.
Brazil has no free trade agreement with the U.S. and runs a trade deficit with the country—meaning it buys more American goods than it sells.
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“In Trump’s view, and that of his inner circle, these trade surpluses are essentially gifts from America,” says Otaviano Canuto.
But that logic doesn’t apply to Brazil. In 2024, the U.S. actually recorded a $253 million trade surplus with Brazil.
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Tariffs as a Bargaining Chip
While Brazil may not be a priority for economic reasons, its membership in the BRICS bloc could put it in Trump’s crosshairs. The Republican has already threatened BRICS nations with 100% tariffs if they support efforts to use alternative currencies instead of the U.S. dollar.
“There’s no chance that BRICS will replace the U.S. dollar in global trade—or anywhere else—and any country that tries will face tariffs and say goodbye to America,” Trump declared in late January.
Though BRICS has explored mechanisms for settling trade in Chinese yuan and issuing loans in non-dollar currencies, there’s no imminent plan for a unified BRICS currency.
That’s why Daiane Santos, an economics professor at the State University of Rio de Janeiro (UERJ), believes Brazil won’t be targeted immediately. “A BRICS common currency has been discussed for a long time, but I find it unlikely in the short term,” she says.
However, Livio Ribeiro, associate researcher at the Brazilian Institute of Economics (Ibre-FGV) and partner at BRCG Consultoria, warns that Trump has shown he’s willing to use tariffs as a geopolitical weapon—not just an economic tool.
Because Brazil carries less economic weight, he speculates, it could be targeted as an “example” to pressure more significant trade partners.
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President Luiz Inácio Lula da Silva has already stated that Brazil would retaliate if Trump imposed tariffs on Brazilian exports.
“It’s very simple: if he taxes Brazilian products, Brazil will reciprocate by taxing U.S. exports,” Lula said. READ MORE
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Excerpt from Bloomberg: By Fernando Travaglini. President Luiz Inacio Lula da Silva received a warning from a major Brazilian ethanol company, Raizen, that ethanol could be the next target of trade measures adopted by President Donald Trump, says Folha de S.Paulo, which cites a document obtained by the newspaper. Raizen told Folha it would not comment. The US has complained that Brazil imposes barriers on the entry of its corn-based ethanol, while the Brazilian equivalent, made from sugar cane, enters the US market basically tariff-free. Brazil’s 18% tariff mainly affects producers in the US Midwest. According to Folha, members of the Brazilian government refute the argument and say that the cases in the two countries are not entirely comparable. Trump announced earlier he will announce the reciprocal tariffs on Thursday. “Today is the big one,” he wrote on his social network Truth Social. READ MORE
Excerpt from Argus Media: Brazil's growing ethanol industry is a likely target for "reciprocal" US tariffs that President Donald Trump plans to impose on products from countries that he says discriminate against US imports.
In announcing the plan Thursday to raise US import tariffs to the same level foreign countries charge on US exports, Trump did not specify which countries and products would face the new levies. But a White House fact sheet specifically mentions Brazil's treatment of US ethanol as an unfair practice worth addressing. "The US tariff on ethanol is a mere 2.5pc. Yet Brazil charges the US ethanol exports a tariff of 18pc," the White House said.
The US produces more ethanol than any other country, almost all derived from corn. Brazil, the world's second largest ethanol producer, largely uses sugarcane as a feedstock but has a fast-growing corn ethanol industry, too.
The disparity in tariff rates has long frustrated US producers, who have become reliant on export markets since ethanol's growth in the US is limited by rising vehicle fuel efficiency, electric vehicle adoption and regulatory constraints on higher blends. The US exported more than 1.9bn USG of ethanol last year according to the Renewable Fuels Association, an all-time high.
Renewable Fuels Association general counsel Ed Hubbard told Argus last week that his organization raised the issue of Brazilian tariffs with Trump transition staffers, and the office of senator Chuck Grassley (R-Iowa) said he discussed the same at a recent meeting with Jamieson Greer, Trump's nominee to be US trade representative. Greer said at a recent Senate hearing that Brazil's tariff on US ethanol was among his top priorities.
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But new tariffs would hurt LanzaJet, a US biofuel producer with a plant that imports Brazilian ethanol and refines it into sustainable aviation fuel (SAF). While the company says it can and does use other feedstocks, federal and state clean fuel programs treat Brazilian sugarcane ethanol as lower-carbon. LanzaJet thus earns larger subsidies for producing fuel from sugarcane ethanol than if it used more corn ethanol, which is generally too carbon-intensive to qualify for a new US biofuel tax credit.
"Tariffs impacting nascent industries like SAF will undoubtedly hurt the United States' potential to continue to lead in this space — limiting our ability to import necessary resources and export our own for the global market, given aviation is a global industry," LanzaJet vice president for corporate affairs Meg Whitty said. READ MORE
Excerpt from Bloomberg Law: US biofuel suppliers jumped as President Donald Trump targeted Brazilian tariffs on US ethanol exports.
The president on Thursday signed a measure directing the US Trade Representative and Commerce secretary to propose new levies on a country-by-country basis in an effort to rebalance trade relations. A White House statement cited Brazil’s 18% tariffs on US ethanol exports as an example of “unfair” trade practice.
Trump’s effort was seen as potentially an opening bid for negotiation with other countries to pare their tariffs and other trade barriers against US goods. By singling out Brazil’s treatment of US ethanol, the White House ... READ MORE
Excerpt from Reuters: Silveira calls U.S. ethanol tariff unreasonable; Trump's plan could lead to higher tariffs by April
BRASILIA/SAO PAULO, Feb 13 (Reuters) - Brazil's Energy and Mining Minister Alexandre Silveira said on Thursday that a potential U.S. tariff on Brazilian ethanol would be unreasonable, emphasizing that the two countries have historically negotiated ethanol and sugar trade together.
His remarks came after U.S. President Donald Trump moved to scrap decades-old low tariff rates, raising them to match those of other countries. A White House fact sheet on the plan pointed to Brazil's ethanol tariffs as an example of unfair trade practices.
"The U.S. tariff on ethanol is a mere 2.5%, yet Brazil charges U.S. ethanol exports an 18% tariff. As a result, in 2024, the U.S. imported over $200 million in ethanol from Brazil while exporting only $52 million in ethanol to Brazil," the document said on Thursday.
Silveira argued that for Trump's plan to be fair and reciprocal, as the Republican advocates, the world's largest economy would need to eliminate import tariffs on Brazilian sugar.
"The measure adopted by President Trump is unreasonable, as there is no mention of allowing greater Brazilian sugar exports to the U.S.," he said in a statement.
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Trump's announcement has no immediate impact but could result in higher tariffs for major trading partners by early April, sparking negotiations with dozens of countries to reduce tariffs and trade barriers.
Brazilian Finance Minister Fernando Haddad said on Thursday he saw potential for tariff negotiations with the U.S.
Brazil, one of the world's largest sugar producers, produced some 35 billion liters of ethanol in 2024, but exported less than 6%, of which only some 300 million liters went to U.S., a report from BTG Pactual showed.
Meanwhile, Brazil imported 192 million liters of ethanol in 2024, 109 million of which came from the U.S., according to BTG Pactual, noting most of U.S. ethanol comes from corn, while sugarcane-based ethanol still holds the lead in Brazil.
In the statement, Silveira argued the U.S. imposes a $360-per-tonne tariff on sugar imports outside preferential quotas, equating to an 81.2% tax considering current market prices - far higher than Brazil's 18% ethanol tariff.
He noted U.S.-set sugar import quota for Brazil last harvest was 147,540 tonnes, or about 0.4% of total sugar exports from Latin America's largest economy.
"For a long time now... Brazil has not been able to export sugar to the United States, except in small quotas, because their tariffs make exportation unfeasible," the head of Brazil sugar and ethanol lobby group Unica, Evandro Gussi, told Reuters.
On the other hand, in a statement, U.S. Renewable Fuels Association, an ethanol trade group, thanked Trump "for his commitment to reestablishing a fair and reciprocal ethanol trading relationship with Brazil." READ MORE
Excerpt from Renewable Fuels Association: The Renewable Fuels Association today thanked President Trump for his commitment to reestablishing a fair and reciprocal ethanol trading relationship with Brazil. While Brazilian-made ethanol has enjoyed virtually duty-free access to the U.S. market since 2012, Brazil has implemented tariffs and disruptive trade barriers against imports of U.S. ethanol starting in 2017. As a result of Brazil’s punitive tariffs, U.S. ethanol exports to Brazil have essentially dried up in recent years—despite American-made ethanol being the most cost-competitive renewable fuel in the world.
In announcing the development of a comprehensive plan to restore fairness in U.S. trade relationships, the White House today cited Brazil’s tariff on U.S. ethanol as a specific example “where our trading partners do not give the United States reciprocal treatment.”
“For almost a decade now, we have spent precious time and resources fighting back against an unfair and unjustified tariff regime imposed by Brazil's government on U.S. ethanol imports,” said RFA President and CEO Geoff Cooper. “What's more ironic is that these tariff barriers have been erected against U.S. ethanol imports while our country has openly accepted—and even encouraged and incentivized—ethanol imports from Brazil.
"As the two largest ethanol producers on the planet, we long enjoyed a cooperative free-trade relationship with Brazil involving ethanol, relying on each other when there were shortfalls or disruptions in the U.S. or Brazilian marketplace. However, that bilateral cooperation was abandoned by Brazil in 2017, when they instituted a tariff rate quota scheme, and eventually adopted a tariff in 2020. The Brazilian tariff on U.S. ethanol now stands at 18 percent and has virtually eliminated all market access for U.S. ethanol producers. We thank President Trump for taking this action and hope this reciprocal tariff will help encourage a return to free and fair ethanol trade relationship with Brazil.”
Cooper noted that U.S. ethanol exports to Brazil went from 489 million gallons in 2018, with a value of $761million, to just 28 million gallons in 2024, valued at $53 million.
In 2020, RFA urged the first Trump administration to consider imposing reciprocal tariffs against Brazil in hopes that it would convince them to remove the tariffs, or at least bring them back to the negotiating table. RFA continued to push for a reciprocal tariff during the Biden administration. However, the Biden administration did not take action to impose of any such counter-tariff, despite Brazil's insistence on continuing its protectionist trade strategy. READ MORE
Excerpt from International Valor: The head of Brazil’s Sugarcane and Bioenergy Industry Association (UNICA), Evandro Gussi, criticized U.S. President Donald Trump’s recent comments about Brazil’s 18% import tariff on foreign ethanol. According to Mr. Gussi, the U.S. complaints are unfounded because the biofuels produced in the two countries are “different products.”
President Trump signed an executive order on Tuesday imposing reciprocal trade tariffs as a way to “level the playing field” in what he called “unfair” trade relationships. The measure could raise the current 2.5% tariff on Brazilian ethanol imports into the U.S.
“We regret [Trump’s announcement] because we’re talking about two different things. The U.S. buys Brazilian ethanol because ours is far more sustainable, with just one-third of the emissions of U.S.-produced ethanol. That’s why California imports Brazilian ethanol to meet its environmental targets,” Mr. Gussi told Valor.
Brazilian ethanol was singled out in a White House statement as one of the tariff disparities that justified the new trade policy.
Mr. Gussi also pointed out that, while President Trump criticizes Brazil’s ethanol import tax, he ignores the steep U.S. tariff on Brazilian sugar. “Sugar faces a 100% tariff in the U.S. Brazil can only export within a restricted quota,” he said. “This idea that the U.S. is a completely free-market economy is misleading.”
The executive described Mr. Trump’s willingness to tax Brazilian ethanol as a disregard for climate action and decarbonization efforts.
Asked about UNICA’s response, Mr. Gussi said the association will engage with Brazilian government officials but made it clear that it will not accept any negotiations that treat Brazilian and U.S. ethanol as identical products that should be subject to the same trade policies.
Guilherme Nolasco, president of the National Corn Ethanol Union (UNEM), said his organization is closely monitoring Brazil’s official stance on the issue. He argues that the government should focus on strengthening biofuels through joint initiatives with the U.S. rather than engaging in a trade dispute. READ MORE
Excerpt from American Ag Network:
“While American biofuel producers have been almost entirely blocked off from the Brazilian market, Brazilian producers have enjoyed unfettered access to the U.S. In some cases, certain policies in the U.S. even incentivize the use of imported Brazilian ethanol instead of ethanol produced here in the U.S.,” said Growth Energy CEO Emily Skor. “This runs contrary to putting America first, and is exactly why President Trump is taking steps to address this issue. Thank you, President Trump for taking action and pushing for a level playing field for American ethanol producers.”
According to a statement from the Renewable Fuels Association, while Brazilian-made ethanol has enjoyed virtually duty-free access to the U.S. market since 2012, Brazil has implemented tariffs and disruptive trade barriers against imports of U.S. ethanol starting in 2017. As a result of Brazil’s punitive tariffs, U.S. ethanol exports to Brazil have essentially dried up in recent years—despite American-made ethanol being the most cost-competitive renewable fuel in the world.
“For almost a decade now, we have spent precious time and resources fighting back against an unfair and unjustified tariff regime imposed by Brazil’s government on U.S. ethanol imports,” said RFA President and CEO Geoff Cooper. “What’s more ironic is that these tariff barriers have been erected against U.S. ethanol imports while our country has openly accepted—and even encouraged and incentivized—ethanol imports from Brazil.
Cooper noted that U.S. ethanol exports to Brazil went from 489 million gallons in 2018, with a value of $761 million, to just 28 million gallons in 2024, valued at $53 million.
Meanwhile, Brazil’s Energy and Mining Minister Alexandre Silveira said on Thursday that a potential U.S. tariff on Brazilian ethanol would be unreasonable, emphasizing that the two countries have historically negotiated ethanol and sugar trade together.
His remarks came after President Donald Trump moved to scrap decades-old low tariff rates, raising them to match those of other countries. A White House fact sheet on the plan pointed to Brazil’s ethanol tariffs as an example of unfair trade practices. The U.S. tariff on ethanol is a mere 2.5%, yet Brazil charges U.S. ethanol exports an 18% tariff. As a result, in 2024, the U.S. imported over $200 million in ethanol from Brazil while exporting only $52 million in ethanol to Brazil, the document said on Thursday. READ MORE