Congressional Review Act
Restoring the Constitutional Method for Passing Laws
President Barack Obama’s agencies issued fifteen laws to protect our environment, workers, teachers, privacy, and public health and safety. In 2017, Republicans repealed them using the unconstitutional Congressional Review Act. We intend to restore all fifteen.
One of those fifteen laws, the Stream Protection Rule, would have protected a small community near Hesperus, Colorado. The King II Mine threatens to pollute the groundwater as it digs federal coal out of poorly understood geologic deposits overlying well water. There, one drop of pollution spreads farther and lasts longer. The mine takes so much local water from that high-desert area that the La Plata River runs dry every year.
The Stream Protection Rule required more water quality monitoring and more pollution protections from coal mines like the King II Mine. Republicans repealed that rule using the Congressional Review Act. That act violates the Constitution in three ways.
First, the Congressional Review Act violates the Constitutional requirement that the government give all citizens "equal protection of the laws." Fifty-one votes does not equal sixty. The Act allows the Senate to pass legislation under the Review Act with only fifty-one votes; the Senate’s Cloture Rule, however, requires sixty votes to pass most other legislation. Thus, the Review Act protects citizens unequally.
Second, the Congressional Review Act violates the Fifth Amendment's requirement that government give citizens due process under the law before taking that citizen's life, liberty, or property. By implementing an easier process to pass laws through the Senate to punish agencies, the Congressional Review Act changes the Constitutional process for passing laws in violation of due process.
Third, the Congressional Review Act and the Senate Cloture Rule, together, violate the separation of powers by creating a situation in which Congress can more easily rescind statutory authorities than expand them. The Congressional Review Act allows Congress to repeal delegations to agencies with fifty-one votes, but the Cloture Rule prohibits Congress from delegating new authorities to agencies without sixty votes in the Senate. Over time, that one-way ratchet erodes the Executive Branch’s authorities, which violates the separation of powers.
For these three reasons, the Congressional Review Act violates the Constitution. Acts contrary to the Constitution are void. Because the Constitution voids the February 16, 2017, act that rescinded the Stream Protection Rule, the Stream Protection Rule remains in effect and applied to the King II Mine expansions. Restoring the Stream Protection Rule will stop that coal mine expansion.
We intend to overturn the Congressional Review Act and to restore all fifteen regulatory protections that President Obama's agencies had issued. We notified the United States of these violations in mid-October. You can read the letter here.
We intend to update this page to reflect the litigation steps as they happen. And we love questions and suggestions.
If you can, please pitch in for the work we are doing for you and for our United States.
Keep going to read about the lawsuit status.
Congressional Review Act
We are suing the United States to stop the King II Mine and to restore the Stream Protection Rule. The U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement (OSMRE), approved two expansions: the 950-acre Modification in 2018 and the 2,462-acre Dunn Ranch Lease in January 2021. You can find all of the filings here.
In October 2020, we sent OSMRE a letter requesting the agency to stop the Modification. That letter explained the legal violations, and the Surface Mining Control Act requires us to give OSMRE sixty days to cure the violations. It never responded. In December 2020, we filed a lawsuit in the U.S. District Court for the District of Colorado. Citizens for Constitutional Integrity v. United States, 20-cv-3668-MSK (D. Colo.).
On January 15, 2021, the Department of the Interior approved the Dunn Ranch Lease. We learned about that approval on January 27, and two days later, we sent another sixty-day letter in which we asked OSMRE to stop the Dunn Ranch Lease. OSMRE did not respond, so we filed another lawsuit.
In the meantime, we filed our motion for summary judgment on March 2, 2021. The United States moved (asked the Court) to dismiss the case on March 10. That same day, GCC Energy, LLC, moved to intervene (to become a defendant in the case), and also moved to dismiss the lawsuit. The United States opposed GCC's motion to intervene.
In our responses to the United States on the merits of our legal claims, we demonstrated that equal protection under the Fifth Amendment requires the United States to explain a rational basis for the 60-vote filibuster threshold in the Cloture Rule. We also demonstrated that the Constitution requires simple majority-of-the-quorum vote thresholds for passing bills--no sixty-vote thresholds.
In its final brief, the Department of Justice sought to justify the filibuster threshold by several objectives: "encouraging the Senate to reach bipartisan consensus, ensuring vigorous debate on matters of importance, [and] protecting the rights of the Senate minority . . . ." None of those rationales justify treating citizens unequally.
On April 21, Judge Moore granted our request to consolidate the Dunn Ranch case with the Modification case.
Judge Moore ultimately dismissed our case in a brief order. He clearly expected either side to appeal, so he did not parse out the strengths and weaknesses of the arguments. And we appealed to the U.S. Court of Appeals for the Tenth Circuit. You can read our briefs here and here. The appellate court held oral argument on September 25, 2022, and you can listen to the argument here.
We are seeking help from other organizations who also want to eliminate the filibuster. We may file a petition for a writ of certiorari with the U.S. Supreme Court. If you know anyone who could help, please send us a message about that!
Separately, the Dunn Ranch case is also on appeal under the Surface Mining Control and Reclamation Act (SMCRA) claims we brought. The coal mine expanded twice, and OSMRE violated SMCRA in approving the Dunn Ranch expansion. OSMRE did not determine the amount of water the mine was using, and it did not determine the volume of water that would have infiltrated to replenish underground aquifers if GCC had not diverted irrigation water to the mine. SMCRA requires the Court to stop the mining. You can read our opening brief and reply briefs here. The Court held argument in that case on November 15. You can listen to that argument here.