Today, the Senate passed S. J. Resolution 22, introduced by Senator Joni Ernst (R-IA) to disapprove the Waters of the U.S. (WOTUS) rule using the authority of the Congressional Review Act (CRA).
The CRA is also known as the Small Business Regulatory Enforcement Fairness Act of 1996. It empowers Congress to review, by expedited legislative process, new federal regulations issued by government agencies, and by passage of a joint resolution, to disapprove a regulation. Congress is given 60 legislative days to disapprove, after which the rule will go into effect. For the regulation to be invalidated, the Congressional resolution either must be signed by the President, or must be passed over the President’s veto by two-thirds of both Houses of Congress. It only requires 51 votes because it is considered privileged.
The resolution received 53 votes for and 44 against. Democratic Senator’s Donnelly (D-IN), Heitkamp (D-ND) and Manchin (D-WVA) joined the Republicans.
Senator Kirk’s statement said, “Writing a rule from behind a desk at the EPA in Washington that makes farmers in Illinois question their right to use their own private property is the very definition of regulatory overreach, and I have consistently opposed this rule.”
As you know, yesterday S. 1140, a bill to required EPA and the Army Corps of Engineers to rewrite the rule narrowly missed getting 60 votes, the required number to advance the legislation. The bill had 57 votes, just 3 short of the needed amount.
The House will need to pass an identical resolution, which is expected. Also expected is that President Obama will then veto the legislation as soon as it reaches his desk.
However, the legislative effort of the past two days continues to build pressure on EPA. We are hopeful that on December 9, the judge in the 6th Circuit, who issued a stay on October 9, will vacate the rule requiring it to be rewritten.
It is impossible to predict what the 6th Circuit will do, but today the Senate gave the court some ammunition in the fight against WOTUS.