Inside EPA is reporting this morning that a three judge panel of the 10th Circuit Court of Appeals has joined the 9th Circuit Court of Appeals in upholding the constitutionality of the Congressional Review Act. The Act allows Congress to avoid the effect of the Senate's filibuster tradition in repealing Executive Branch rules Congress determines exceed its authorization of the Executive Branch to make such rules in the first place.
Given the paucity of environmental law-making by Congress over the past decade or two, it isn't surprising that people might think that it isn't Congress's place to interfere with the Executive Branch's environmental rule making. After all, nature abhors a vacuum so the Executive and Judicial Branches of our Government have been quite active in the environmental law-making vacuum left by Congress. But, as the Judges of the 10th Circuit point out in the excerpt from its opinion below, except as specified in Article II of the United States Constitution, the powers of the Executive Branch, including relating to environmental protection, are only the powers that Congress gives it.
This is why Congress's dereliction of its responsibility to take a fresh look at the Clean Water Act over the past thirty years or so has caused so much confusion and consternation in the other two branches of our Federal Government. Today the Executive Branch will make its eighth attempt to clear up that confusion when it publishes its Waters of the United States rule. Perhaps Congress will apply the Congressional Review Act to pass judgment on that attempt. What is more likely is that the Federal Courts will find themselves involved, again.
Kudos to these three Judges for reminding us that the way it has been between the Executive Branch and the Legislative Branch over the past few decades isn't the way it needs to be or is intended to be.
"Plaintiffs' argument is based on the false premise that Congress impermissibly treads on executive authority when it passes laws overriding or overruling agency rules or interpretations, or when it limits the scope of past statutory delegations. . . . If Congress disagrees with an agency rule, then Congress may pass a law overriding it; such a course of events is not a usurpation of executive power but instead a legitimate exercise of legislative power," the panel argues.
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