Senator John McCain made a dramatic return to the floor of the United States Senate this week following his brain cancer diagnosis.  With the scar and stiches from his recent surgery still healing, McCain took to the floor to implore his colleagues to consider using the Senate’s long-standing procedures to find a solution to the legislative body’s quagmire over healthcare.  In parliamentary parlance, he pleaded for “a return to regular order.”

He received genuine and heartfelt applause, but not a return to regular order.

The departure from legislative norms permeates all aspects of our current political landscape; environmental law is no exception.  As we’ve noted, in the midst of its consideration of various agency appropriations bills, the House is considering a rider that would exempt the proposed repeal of the 2015 Waters of the United States (WOTUS) final rule from review under the Administrative Procedure Act.  As of this writing, that rider remains in the current funding package.

When I first noticed reporting on the WOTUS rider, I ruminated that such a measure may be unprecedented in recent memory, especially considering that the draft rule attempting to clarify the definition of Clean Water Act jurisdiction attracted 1 million comments.  Could they really do that?

In short, yes.  Not only has Congress used the precise appropriations rider language previously – there has also been recent litigation over the constitutionality of that sort of measure.

Here’s the language in question.  It permits EPA and the Corps to “withdraw the Waters of the United States rule without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.”  That’s an exemption wide enough to drive a truck through.  One would think Congress would use such language judiciously.  My initial instincts were incorrect.  Thanks to one of our outstanding summer associates, we uncovered at least nine riders addressing administrative agency action, mostly dealing with the listing or delisting of species under the Endangered Species Act.

Perhaps the subject matter of the various ESA riders indicates why they flew mostly under the radar.  The listing and delisting of the gray wolf in Wyoming and neighboring states was (and remains) extremely controversial there, but that action has nowhere near the notoriety of the WOTUS rule.  The similarities between the exemption precedents go beyond just the legislative language.  As with WOTUS, there was active litigation pending over the agency rules dealing with protection of the wolf when the rider was introduced and passed.

Section 1713 of the Department of Defense Appropriations Act of 2011 directed the Interior Secretary to reissue a final rule that removed ESA protections from the gray wolf species outside of Wyoming.  The rule had been challenged in district court and vacated.  While appeals were under way, Congress tucked in the appropriations rider including the “without regard to any provision” language.  Public interest groups promptly challenged the constitutionality of the rider, arguing that it violated separation of powers by directing a court what to do in pending litigation.

The public interest groups lost.  In Alliance for the Wild Rockies v. Salazar, Judge Donald Molloy reluctantly upheld the exemption statute.  In a fairly remarkable opinion, the judge lamented that “if I were not constrained by what I believe is binding precedent…, I would hold Section 1713 is unconstitutional because it violates the Separation of Powers doctrine articulated by the Supreme Court.”  The judge stated that the rider “sacrifices the spirit of the ESA to appease a vocal political faction,” but in a noble act of judicial restraint, went on to say that “the wisdom of that choice is not now before this Court.”  The Ninth Circuit upheld his ruling. Just last year, a similar constitutional challenge repeated itself in the D.C. Circuit over ESA protections that affect African antelopes, with the same result.

Current debate over the WOTUS rider reflects the philosophical struggle evident in Judge Molloy’s opinion.  One representative argued that the provision “allows the executive branch to act unilaterally” and that the House should let the agencies deal with the rule in the courts, rather than in a spending bill.  Others favoring the rider repeated concerns over the breadth of regulation of waters by the EPA.  Despite objections, it seems likely that the WOTUS rider will survive in any final funding bill.

More and more, we see the legislative branch seeking to impose results on the executive branch, even in the face of pending judicial action.  If a majority of the legislature supports a certain administrative action as a political matter, what better way to ensure certain results than to prevent the judiciary from ever addressing the legality of agency action?  The delineation of the separations of power is more blurry every day.

APA review is frustrating.  Rules take years to promulgate, only to face protracted litigation.  But Congress should contemplate potential damage to “small d” democratic institutions as it weighs APA exemptions.  “Regular order” gives voice to millions of citizens impacted by regulation, not just 535 representatives on Capitol Hill.  It’s a concept worth fighting for.