SJRES-86-119
Motion to proceed to consideration of measure rejected in Senate by Yea-Nay Vote. 43 - 50. Record Vote Number: 4.
Sponsored by Sheldon Whitehouse (D-RI)
What it does
This joint resolution would use the Congressional Review Act (CRA) to nullify an EPA rule published August 28, 2025, that approved South Dakota's state implementation plan for reducing regional haze during the second implementation period. If enacted, the EPA's approval would have no force or effect, meaning South Dakota's current haze reduction plan would lose federal authorization. Under the CRA, a disapproved rule also generally cannot be reissued in substantially the same form without new congressional authorization.
Who benefits
South Dakota industries — particularly electric utilities, mining operations, and agricultural facilities — that may face less stringent air quality requirements if the state's plan loses federal backing and must be renegotiated. State officials who prefer greater flexibility in setting their own haze reduction timelines and methods. Businesses that would otherwise bear compliance costs under the EPA-approved plan.
Who is hurt
Residents of South Dakota and neighboring states (including visitors to national parks and wilderness areas such as Badlands, Wind Cave, and Theodore Roosevelt) who may experience reduced visibility improvements if the haze plan is nullified. Environmental and public health advocacy groups whose policy goals depend on federal enforcement of the Clean Air Act's regional haze program. The EPA, which would lose the ability to reissue a substantially similar rule without explicit congressional action. Downwind communities in adjacent states that share airsheds with South Dakota.
Supporters argue
Supporters argue that the EPA's approval of South Dakota's regional haze plan imposes federal mandates that override reasonable state-level decisions about balancing air quality goals with economic realities. They contend that South Dakota, as a state with relatively low population density and limited industrial emissions, should have greater latitude to craft its own compliance approach under the Clean Air Act's cooperative federalism framework, and that the EPA's second-period requirements go beyond what Congress clearly authorized — a concern amplified by the major questions doctrine established in West Virginia v. EPA (2022).
Opponents argue
Opponents argue that the regional haze program exists precisely because haze pollution crosses state lines, affecting federally protected Class I areas like national parks that belong to all Americans — not just South Dakota residents. They contend that nullifying the EPA-approved plan creates a regulatory vacuum, potentially leaving visibility in protected wilderness areas to degrade without a binding federal backstop, and that the CRA's prohibition on reissuing substantially similar rules would tie the EPA's hands for years, undermining the Clean Air Act's mandate to restore natural visibility conditions by 2064.
Constitutional context
The Clean Air Act's regional haze program rests on the Commerce Clause (Art. I, §8, cl. 3), as air pollution crosses state lines. Post-Loper Bright (2024), courts would independently review whether the EPA's specific approval requirements are clearly authorized by the Clean Air Act, without deferring to the agency's interpretation. West Virginia v. EPA (2022) further requires that any sweeping EPA regulatory action have clear congressional authorization.
Checks and balances
Congress gains the power to nullify the EPA rule under the Congressional Review Act; the CRA's "substantially similar" bar limits the executive branch's ability to reissue the rule without new legislation, shifting regulatory authority back to Congress and the states.
Historical precedent
Congress has used the Congressional Review Act to nullify EPA rules before, most notably in 2017 when it disapproved the Stream Protection Rule under the Surface Mining Control and Reclamation Act; state-specific air plan disapprovals via CRA are less common but procedurally identical.