by Daniel E. Estrin
Supervising Attorney, Pace Environmental Litigation Clinic
Adjunct Professor of Law, Pace Law School
In this age of partisan warfare, of politicians voting strictly along party lines, and of misguided efforts to eviscerate the Environmental Protection Agency and environmental regulation as we know it, it’s fascinating to look back and revisit the passage of the Water Pollution Control Act Amendments of 1972—also known as the Clean Water Act. For while President Richard Nixon is often credited with establishing the Environmental Protection Agency, and with signing many of our federal environmental statutes into law, those who were not old enough at the time to remember may not be aware that President Nixon actually vetoed the Clean Water Act out of a stated concern for “spiraling prices and increasingly onerous taxes.” In his October 17, 1972 Statement on Veto, President Nixon complained about the “staggering, budget wrecking $24 billion” provided for in the bill, and “hope[d], with millions of taxpayers, that at least one third plus one of the members in one House will be responsible enough to vote for the public interest and sustain this veto.”
Upon the “return without approval” of the bill to Congress, veto override debates were conducted by the Senate and the House on October 17 and 18, 1972, respectively. This is where it should get interesting for students of current national politics, for the Senate voted by 52-12 to override, with 36 Senators not voting. Of the 52 Senators who voted to override President Nixon’s veto, 39 were Democrats, 17 were Republicans, with one (Buckley-NY) independent “Conservative.” Democrats accounted for 4 of the 12 “nay” votes.
The House voted after debate by a staggering 247-23 to override, with one Representative answering “present” and 160 Representatives not voting. Of the 247 Representatives who voted to override President Nixon’s veto, 96 were Republicans and 151 were Democrats. Democrats accounted for 10 of the 23 “nay” votes.
Query: Contrasting the 1972 passage of the Clean Water Act by veto override against the modern political climate, are there any current political issues on which such bipartisan consensus might be found? And, even if so, are there any issues on which such a formidable block of Members of Congress affiliated with a President’s own party might stand up to their President and vote to override his or her veto?
Dan: I have previously tried to draw light to Nixon’s veto of the CWA, and the collective belief (even among liberals) that he signed it. For instance, in this interview with Bush EPA administrator Christine Todd Whitman, both Whitman and the Grist author both were on board with the idea that the CWA was a Republican product: http://www.grist.org/article/its-her-party-and-shell-try-if-she-wants-to/
In fact, it was a “midnight veto” designed to outmaneuver a filibuster. In my comment to the Grist article above, I cite to the Muskie archives on the issue. I also cite to a Richard Lazarus piece describing Nixon’s anti-environmental stance. Lazarus himself cited comments in the Nixon tapes in one of the professor’s speeches on the subject at a conference I attended. It always stuck with me. To the extent Nixon did anything in favor of the environment, it was only because the groundswell of environmental activism made it politically impossible to be inactive. Plus, signing onto the EPA was really just a way to steal Ed Muskie’s thunder.
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