Congress and Obama clarify their positions on the WOTUS rule, and it doesn't look good for the President

Last November, we explained how the U.S. Senate was using a special procedure under the Congressional Review Act to enact a congressional “resolution of disapproval” that would overturn the illegal Waters of the United States (WOTUS) regulation jointly issued by U.S. EPA and the Army Corps of Engineers. That same post also reminded Liberty Blog readers that PLF is involved in court litigation to have the WOTUS rule struck down as inconsistent with the Clean Water Act and as an unconstitutional exercise of federal power. Although PLF expends most of its efforts to restore liberty in the courts, it is refreshing when Congress takes responsibility to protect liberty and does not rely on the courts do all the heavy lifting.

The Senate approved Senate Joint Resolution 22, to disapprove the WOTUS rule, last November. Last week, the House of Representatives approved it by a large margin (253-166). The legislation was presented to President Obama for his signature this past Tuesday, January 19. One interesting feature of resolutions of disapproval under the Congressional Review Act is that they repeal the listed regulation and prohibit anything “substantially similar” from being re-issued by the agency, even if the underlying statutory authority for the rule did originally require something like the rejected rule to be issued in the first place. Thus, if the Obama administration wanted an excuse to back away from the WOTUS rule or honestly believed the agencies had limited discretion in issuing the regulation under the Clean Water Act, the President could have signed the legislation. Instead, President Obama vetoed the legislation a day later.

To his and his colleagues’ credit, Senate Majority Leader Mitch McConnell scheduled a vote yesterday to override President Obama’s veto. Although the Congressional Review Act prevented the use of a filibuster for the initial passage of the resolution of disapproval, senators could filibuster a veto override vote—and that’s exactly what liberal senators threatened to do. That doesn’t matter much, since an even larger supermajority is necessary to actually override the veto. In all events, the GOP secured 52 votes to proceed to the override vote, with 40 voting to prevent such a vote. So unless the Majority Leader is able to secure 60 votes to reconsider the matter (and both Houses secure a two-thirds majority vote to override a presidential veto), this particular legislative effort to kill the WOTUS rule is at its end .

To those who have followed this issue closely, as PLF has, President Obama’s veto was not surprising. But what was interesting and encouraging is that Congress took the time to debate and pass the resolution of disapproval in the first instance and that Senator McConnell tried to secure a veto override vote. Senator McConnell and others explained again yesterday why the WOTUS rule was an unlawful and abusive federal overreach that improperly regulated vast tracts of private property. The override debate and procedural vote also showed once again that most senators were not cowed after being falsely accused by Senator Reid of “attack[ing] clean water protections that millions of Americans depend on.” Indeed, in this election year, it suggests McConnell wanted to force senators to take another stand on whether retain or jettison the WOTUS rule. It seems that fear mongering by supposed environmentalists is not effective on this issue.

This particular legislative exercise also clarifies several things for the American people and advances the ball on other legislation that might affect the WOTUS rule:

• The legislative debates on the resolution to disapprove the WOTUS rule helped further educate Members of Congress and their staffs who do not serve on the relevant water and environment committees, and it forced senators to take a position on the rule since a stand-alone bill could not secure the 60-votes necessary to be considered.
• President Obama and his defenders in Congress now “own” the WOTUS rule much more definitively than previously. They can no longer convincingly argue that the Clean Water Act required the agencies to issue the WOTUS rule or anything like it, although that was a pretty frivolous claim to begin with.
• Fewer Members of Congress will be concerned about the laughable propaganda tactic that attempted to label anyone who did not support the illegal WOTUS rule an opponent of “clean water.” Repeated taunts to that effect lose their effectiveness over time, and those in the political arena become inoculated by constant exposure to such nonsense. Before the final votes, some opponents of the rule expressed concern to me that such propaganda tactics might work, but it turns out that boogie man has no teeth or claws. FWIIW, 12 House Members in the President’s party voted for the resolution of disapproval, despite the White House statement that Obama would veto the resolution and the false environmental claims; only one Republican House Member voted against it.
• It is even more likely that the Congress will pass other legislation to defund or overturn the WOTUS rule in the future. The Congressional Review Act vote becomes a launching pad for future action. For example, the House and Senate Appropriations Committees had previously passed riders to defund enforcement of the WOTUS rule, but the riders were removed from the final Omnibus spending law last December. Yet House Speaker Paul Ryan has said that he will defend bills more vigorously that emerge from the normal appropriations process. If the relevant appropriations bills this year have the same riders, it will be harder for congressional leaders to abandon them, especially after the entire Congress has voted to kill the WOTUS rule.
• Finally, the vetoed Congressional Review Act resolution disapproving of the WOTUS rule sets the stage for renewed work on stand-alone legislation that repeals the rule and hopefully includes Clean Water Act reforms that are more effective in preventing agency abuse and re-limit the federal role to what was originally intended.