House Votes to Block “Waters of the United States” Rule

On Wednesday, the U.S. House of Representatives successfully passed S.J. RES. 22 – a Congressional Review Act (CRA) vote to overturn EPA and the Army Corps of Engineers’ efforts to redefine “Waters of the United States.” Twelve congressional Democrats joined with Republicans to pass the measure by a vote of 253-166. The Senate passed the same resolution – sponsored by ALEC alumna and current Sen. Joni Ernst (IA) – this past November, but President Obama has, unsurprisingly, indicated he will veto the measure.

The CRA is a seldom-used tactic adopted in 1996, whereby Congress can review any new major rule issued by a federal agency and vote to overturn implementation of the regulation in question. A CRA vote only needs a simple majority (rather than the 60 votes typically needed in the Senate to secure cloture), but would require a two-thirds majority to override a presidential veto, which House Republicans will likely be unable to secure.

On the same day the House voted on the measure, Speaker Paul Ryan (WI) had an op-ed appear in the Omaha World-Herald in which he stated that when Congress passed the Clean Water Act, it “never intended the federal government to oversee tiny streams and ponds on private property.”

The CRA was also used in late 2015 to (symbolically) try to overturn the EPA Clean Power Plan in anticipation of the then-upcoming COP 21 meeting in Paris. Again, the measure was unsurprisingly vetoed by President Obama.

The House CRA vote for the “Waters of the United States” rule comes three months after the Court of Appeals for the Sixth Circuit issued a nationwide stay preventing EPA and the Corps from implementing the rule before it is litigated. Significantly, courts typically only issue stays if petitioners have a “substantial possibility of success on the merits of their claims.”