The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This week, the Senate considered proposals to reject a new regulation issued by the U.S. Army Corps of Engineers and the Environmental Protection Agency redefining the meaning of "waters of the United States" subject to regulation under the Clean Water Act. This so-called WOTUS rule is intended to clarify and extend the scope of federal regulatory jurisdiction in light of two Supreme Court decisions in 2001 and 2006 concluding that the agencies had adopted an unduly broad interpretation of the scope of their authority. This rule is opposed by many business and landowner groups and is already subject to multiple court challenges.
Arguing in defense of the WOTUS rule, and against a measure to rescind it, Sen. Barbara Boxer (D-Calif.) argued that rejecting the regulation would dramatically roll back federal protections of drinking water and place public health at risk. From the Wall Street Journal:
"You don't want to be frightened when your child swims in a stream or drinks water that makes him or her sick," said Sen. Barbara Boxer (D., Calif.), who is a ranking member of the Senate Environment and Public Works Committee. "What this [bill] would do today is takes us back…to the day when rivers caught on fire."
This claim is ridiculous. Whether or not the new WOTUS rule is a good idea, rejecting it would not "[take] us back … to the day when rivers caught on fire." Not even close.
Some history: There was a time when rivers in the United States would catch fire with some frequency. In the late 19th and early 20th century, river fires were disturbingly common as industrial facilities often dumped chemicals and debris into neighboring waterways. This was a fairly obvious environmental problem, however, and local communities and state governments responded. They took action to prevent such fires from happening long before the federal government enacted the CWA. By the time the CWA was enacted in 1972, river fires were a problem that had long since been solved.
The last significant river fire was in 1969—the infamous Cuyahoga River fire. This was not the first fire on the Cuyahoga, nor was it the worst, but it was the one that received the most national attention. The story of this fire even helped spur passage of the CWA, but the CWA did nothing to prevent river fires. As occurred elsewhere, relevant cleanup efforts were led at the local level. For those interested, I've written an extensive account of this history and common misperceptions about river fires, the Cuyahoga in particular.
So Boxer is wrong to suggest that curtailing federal regulatory authority would "[take] us back … to the day when rivers caught on fire," as federal regulation had nothing to do with eliminating the problem of river fires. Whatever else the CWA has done for environmental protection, it had nothing to do with the end of river fires.
Boxer's claim is wrong in a second way insofar as it suggests that voiding the new WOTUS rule would represent a significant rollback of environmental protection—to the levels that persisted in the 1960s. This too is wrong. The WOTUS rule is a brand-new regulation. It is a response to Supreme Court decisions in 2001 and 2006. So rejecting the WOTUS rule would restore the status quo ante that has existed for nearly a decade, leaving the Army Corps and EPA with the same regulatory authority that they enjoyed for the first six years of the Obama administration. Whether or not one believes this is sound policy, it is not turning back the clock on environmental protection to the days of river fires.
The Senate ultimately rejected legislation to repeal the WOTUS rule on Tuesday. On Wednesday, however, the Senate passed a resolution of disapproval under the Congressional Review Act (CRA). Should this resolution become law (which is unlikely, as the president is sure to veto it), it would rescind the rule. It will not, however, "[take] us back … to the day when rivers caught on fire."