Rejecting the WOTUS rule in the courts and in Congress

Earlier this month, the U.S. Senate used a rare procedural device to pass Senate Joint Resolution 22, which would effectively negate the Waters of the United States (WOTUS) regulation issued jointly this summer by U.S. EPA and the Army Corps of Engineers. The Senate “resolution of disapproval” was sponsored and passionately advanced by freshman Senator Joni Ernst (R-IA), who argued that the WOTUS rule was an illegal land and water power grab that especially hurt farmers.

Regular Liberty Blog readers know that PLF has been battling the federal agencies’ jurisdictional creep (ok, gallop) for decades, including having the prior rule’s overly expansive scope struck down by the Supreme Court in its Rapanos decision. In recent months, PLF joined 30 states and numerous other entities challenging the illegal nature of the current (and even broader) WOTUS rule.

As Reed Hopper has explained, two federal courts have issued preliminary injunctions stopping the agencies from enforcing the WOTUS rule, holding that the states and others are likely to prevail in their challenges to have the rule struck down. One stay is at the district court level and applies throughout the 13 states whose officials filed in that court. The second was issued by the U.S. Court of Appeals for the Sixth Circuit and applies nation-wide, at least pending its determination on its own jurisdiction. (Interesting, the United States supports the Sixth Circuit’s jurisdiction, even though it opposed the stay the court granted.)

Both courts’ stays might normally provide a distracted and oft-divided Congress an excuse not to take responsibility for the stunning agency overreach relating to its laws, but the House is going to vote on the same resolution of disapproval to overturn the WOTUS rule and send it to President Obama for his approval or veto, likely the first or second week of December.

Rep. Adrian Smith (R-NE) introduced the resolution of disapproval for the WOTUS rule in the House, H.J. Res. 59. The House Transportation Committee could vote on the resolution first, but sources in the House told me that further committee action is not necessary or likely on the WOTUS resolution because the committee has conducted numerous hearings on the rule and passed a separate bill, H.R. 1732, that also would overturn it and require the federal agencies to redraft the rule (the vote on that bill was 261-155). Thus, the first House vote will probably be on the final passage of the resolution of disapproval, and the outcome is not seriously in doubt.

The House and Senate resolutions of disapproval are authorized by the Congressional Review Act (CRA) of 1996 that is now codified as chapter 8 of the Administrative Procedure Act, 5 U.S.C. §§ 801-808. The CRA provides for certain expedited procedures, including the elimination of the Senate filibuster for 60 legislative days, to act on joint congressional resolutions to disapprove of federal regulations. I was privileged to serve as the counsel who helped the House draft the CRA, and I have testified at subsequent hearings on the law’s effectiveness. So I am very gratified that Congress is finally using the CRA to express its disapproval of some of the worst (and legally dubious) regulations issued by this administration.

The CRA did in fact allow the Senate to proceed to debate the WOTUS resolution of disapproval and pass it with a simple majority on Nov. 3. The final vote for passage was 55 to 43. Pursuant to the CRA, the second chamber to act is required take up and vote on the first-passed resolution during its floor deliberations and to do so without amendment, eliminating any need for a House-Senate conference. Thus, the House must take up S.J. Res. 22 on the floor instead of H.J. Res. 59, and if it receives a majority vote as expected, it would be enrolled and sent to President Obama without any further delay.

Last week, the Senate also passed two resolutions of disapproval for EPA’s illegal Clean Air Act regulations that many have dubbed the “Costly” Power Plan. S.J. Res. 23 relates to the regulations that govern new power plants; S.J. Res. 24 relates to the rules for existing power plants. The House is slated to consider the corresponding disapproval resolutions for these Clean Air Act rules in committee first, but like the WOTUS resolution, would vote on the resolutions initially passed by the Senate when the full House votes.

It is unclear whether the House leadership will decide to schedule the vote on the WOTUS and Clean Air Act disapproval resolutions on separate days or schedule them together in one big anti-regulatory overreach package. But one hope is to try to send them to the President while the Paris climate change conference is still underway to show the negotiators that our Congress does not support Obama’s principal climate change initiative. A secondary objective is to send them to the President at least before December 11, when the next funding bill must be acted upon to prevent another partial government “slow down” (it is never really shut down is it?).

The appropriations committee has already indicated it will include some riders in that omnibus funding bill; three of those proposed would block agency spending through the end of the fiscal year on enforcing the improper rules discussed above. So if President Obama vetoes the resolutions of disapproval that will only elevate the issue in the appropriations fight. The new House Speaker Paul Ryan has indicated that some policy riders will be included in the appropriations bill, notwithstanding the White House request that the Congress include nothing to push back on the President’s agenda.

With respect to the WOTUS rule, will the President really veto the appropriations bill in order to insist on funding for a highly unpopular and questionable regulation that the courts have already enjoined? There’s no way to know for sure, but I suspect he has bigger matters to ruin with his anti-Midas touch.