Wetlands Regulation within the Political Swamp
The Congressional Review Act stays bad for policy and worse for democratic deliberation.
Last December, the Biden administration issued a rule defining the scope of the federal government’s authority over streams and wetlands. Congressional Republicans vowed to overturn the rule, using a procedure created by the Congressional Review Act. If Congress goes to repeal something, it must be the Congressional Review Act reasonably than the Biden rule.
The handwringing over the Biden rule is a textbook example of the knee-jerk reactions fostered by the Congressional Review Act. Every Republican senator joined the overrule motion based on claims that the Biden rule “upended” regulatory certainty and burdened “hundreds of thousands of Americans.” Sen. Thom Tillis (R-NC) described it as a “stifling regulation” that will “cripple” agriculture and do irreversible damage.
On the House side of things, E&E News reported that at a hearing concerning the bill, some GOP representatives “argued the rule from EPA and the Army Corps of Engineers was akin to actions taken under Soviet Union dictator Joseph Stalin.” Just one witness was in a position to testify in favor of the rule, San Francisco law professor Dave Owen, but his sober legal evaluation was swamped within the flood of invective.
The offended denunciations were misplaced. It’s true that the Biden rule is broader than the Trump rule it replaced, which itself was mired in litigation. However the Biden rule has affinities with earlier regulatory attempts going back to the Nineteen Seventies. All of them have struggled with find out how to limit federal jurisdiction without compromising the goal of fresh water.
There’s quite a lot of history leading as much as today’s disputes about federal authority over wetlands and streams. Congress set the stage when it passed the Clean Water Act 50 years ago. The law gave the federal government jurisdiction over “navigable waters.” That term had a reasonably well-defined historical meaning focused on waterways that could be used for transportation. However the Clean Water Act adds a definition of its own for the term as meaning “the waters of the US.”
Everyone agrees that Congress meant to transcend those traditional navigable waters. What’s not clear is how far. The terms “waters” and “navigable” may suggest significant lakes and streams. But in scientific terms, those lakes and streams can’t be separated from nearby wetlands or from the smaller flows of water around them. Congress passed the Clean Water Act with ambitious goals of eliminating pollution and restoring the nation’s waters. That’s why the U.S. Supreme Court upheld federal jurisdiction over wetlands adjoining to open water bodies in 1985. That purpose is central to the Biden administration’s rule and was completely ignored within the Trump rule.
Broad claims of federal jurisdiction are nothing latest. In 1986, the federal government took the position that it had jurisdiction over all wetlands that were usable by migratory birds. Fifteen years later, the Supreme Court overturned the so-called Migratory Bird Rule. Regardless that that rule was far broader than the Biden rule today, the sky didn’t fall throughout the time it was in effect: farmers, ranchers, and real estate developers all went about their business with none apparent crisis. Just before Obama took office, the George W. Bush administration issued guidance on federal authority that went well beyond the Trump regulation and took a versatile view of federal authority. Briefly, there wasn’t a crisis before the Trump regulation, and there won’t be one if the Biden regulation goes into effect.
On this particular case, the trouble to make use of the Congressional Review Act may not have much practical impact. Biden would surely veto such a resolution, and the Supreme Court seems more likely to provide more legal clarity within the near future. But the failings in the method are all too typical. The act doesn’t allow nuanced responses or political compromises: Congress must make an all-or-nothing selection between allowing a regulation to enter effect and axing it root and branch. To make things worse, the act also places limits on future agency regulations that make it harder for the agency to repair any flaws once a regulation has been overturned by Congress.
I studied the usage of the act in 2017 by the hands of former President Donald Trump and a Republican Congress. What I discovered was that ideology and special interests were the driving aspects, not economics or legal issues. The rhetoric surrounding the brand new Biden regulation is one other illustration of how the act fosters partisanship reasonably than common sense.
It’s time to repeal the Congressional Review Act and leave it to agencies to come to a decision complex policy issues reasonably than have Congress oversee the method based on nothing but political grandstanding.