Today in 1972: The Clean Water Act is passed in the House over President Nixon’s veto

October 18, 2013

Today in Legal HistoryThe federal government shutdown has finally come to an end with legislation that left Obamacare fully funded and implemented, just as President Barack Obama wanted.

According to some reports, the fact that Obama got exactly what he wanted in the legislation was no coincidence: the White House took an active role in the negotiations, and successfully worked to quash any deals that would have compromised his goals.

The episode serves as an example of how the executive branch may be strengthened by division within the legislative (in this case, not only was Congress sharply divided along party lines, but one party itself was sharply divided).

This environment is a stark contrast from that of 41 years earlier, when the Clean Water Act (CWA) was passed by Congress over President Richard Nixon’s veto on October 18, 1972.

The CWA is a sweeping law that regulates both the discharges of pollutants into “water of the United States” and quality standards for “surface waters” – which, as opposed to groundwater or atmospheric water, are defined as water sources such as streams, rivers, lakes, wetlands, or oceans (the law also authorizes federal financial assistance for municipal sewage treatment plant construction, which is largely irrelevant today).

The “discharge of pollutants” regulated by the CWA isn’t limited to things like the dumping of toxic waste by a refinery into a river or lake.

First, “pollutant” is broadly defined, and can include not only chemicals or biological elements, but also heat, rocks, or sand; in short, a “pollutant” under the CWA is anything that would change the ecosystem of the water in which it is being introduced.

In addition, “water of the United States” includes water that is connected to “any navigable water.”  Although the definition is somewhat contentious depending on who you talk to, the Environmental Protection Agency uses the following definition:

“[a]ll waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.”

This definition, like “pollutants,” is quite broad, and allows for the regulation of water pollutants in a far wider scope than simply rivers, lakes, and oceans.

The significant impact that the CWA on the field of environmental regulation cannot be denied; it was and remains one of the most powerful tools that the federal government has at its disposal to prevent environmental pollution.

It wasn’t this regulatory expansion that President Nixon opposed in vetoing the bill, but rather its $24 billion cost.

Nevertheless, public support was so strongly in favor of the bill at the time that the Senate overrode the veto by a vote of 52 to 12 and the House did so with a vote of 247 to 23 – with 96 yays coming from Republicans.

The strong support for the CWA was partly due to the increased public awareness of environmental concerns in the late 1960s and early 1970s: the CWA was passed shortly after several other landmark environmental protection acts, the National Environmental Policy Act of 1969 (NEPA) and the Clean Air Act (CAA) amendments of 1970, were enacted.

However, this increased public concern for the environment wasn’t the primary impetus for congressional unity on overriding Nixon’s veto.

Instead, overwhelming public support for legislation enacting water pollution controls was “sparked” by an incident on June 22, 1969: Cleveland’s Cuyahoga River caught fire.

The Cuyahoga was considered one of the most polluted waterways in the country at the time, and the fire was caused by the pollutants that saturated the river that had been likely ignited by sparks from a passing train or by another otherwise innocuous source.

The fire was featured on the cover of Time magazine shortly thereafter; the magazine described the river as being one that “oozes rather than flows” and repeated one of Cleveland residents’ favorite jokes: “Anyone who falls into the Cuyahoga does not drown. He decays.”

Although the images featured in Time about the 1969 fire were actually from the 1952 Cuyahoga River fire, and although the 1969 fire was one of the least harmful of the 13 that had occurred since 1868, the impact of the Time coverage was undeniably influential: the imagery of a polluted river catching fire was burned into the American public’s mind (I apologize, the fire puns are too good to pass up).

Thus, despite the failure of several other water pollution control bills since the 1950s, the CWA enjoyed strong bipartisan support – enough to safely override a presidential veto.

Such strong congressional unity on a matter of public concern doesn’t seem quite as likely nowadays – whether because of partisan division or less of a willingness of Congress to listen to public opinion.

Nevertheless, the Clean Water Act remains an example of how strong public support can force the government into change – despite the president himself standing in the way.