Wading Through Bush's Last-Minute Flurry of Energy and Environmental Regulations
In its final weeks, the Bush administration issues a set of rules that tend to favor business
In its closing months, the Bush administration has issued at least a dozen new important regulations and notices on energy and environmental issues, hitting upon everything from power plant emissions to safeguards for endangered species. In some cases, the new rules, which are part of the administration's final effort to shape a lasting domestic legacy, merely tweak existing laws. In other cases, the changes are dramatic, with potentially far-reaching impacts.
Taken together, these last-inning rules amount to a boon for industry, favoring production over protection and development over conservation (although there are a few notable exceptions).
And, if history is a good guide, more regulations are coming. In the past, when control of the White House has changed political parties, the outgoing administration's final weeks—indeed, its final days—have been marked by zealous rule-making, often to the next president's great frustration.
And yet the fate and longevity of Bush's midnight rules—both those announced already and those still rumored to be in the works—are far from settled.
Both Congress and President-elect Barack Obama have various means by which to overturn them at the outset of the new administration, depending in part upon when the rules take legal effect. Obama can also temporarily delay some rules from being implemented (as Bush, upon taking office, did to President Clinton's last-minute regulations) or undertake the often lengthy process of rewriting them with his executive agencies. Meanwhile, activists, as well as the state of California, are already challenging some rules in court.
Of the rules published thus far, many have garnered publicity, even a degree of notoriety. Publicly, the Bush administration has defended many of them as benign policy "clarifications." But critics and supporters alike say their impact could be, and in fact is intended to be, substantial. "This is a White House's way of turning uncertainty about the future into certainty," says Veronique de Rugy, a senior research fellow at George Mason University's Mercatus Center, which studies regulatory policy. "You try to push rules to tie up the hands of the next president as much as you can, to extend your influence into the future."
One of the new rules makes it easier for coal-mining companies to dump waste into nearby rivers and streams. Another exempts so-called factory farms, in which animals live in confined quarters, from federal air pollution laws. Another eliminates a long-standing provision in the Endangered Species Act requiring "independent scientific reviews" before construction or drilling can occur in an endangered species's habitat.
Proponents say the new rules cut out bureaucracy and will help to reduce delays; critics charge that they recklessly imperil the environment and, in general, tend to be of poor quality since they are rushed through the rule-making process.
A few rules, though, buck this basic pattern. Early this month, the administration announced it was setting more stringent emissions standards for medical waste incinerators, which can leak lead, mercury, and other toxins into the air. "It's kind of miraculous," says James Pew, a lawyer with the nonprofit law firm Earthjustice who had been working for more stringent incinerator limits since the 1990s. "There was a problem with the way EPA set these standards, and this time it showed it could do a rule right." Also this month, the administration abandoned a rule, vigorously opposed by some governors, that would have allowed an increase in lifetime emissions from many power plants.
As history indicates, the life span of midnight regulations varies. In its final months, the Clinton administration famously pumped out dozens of rules, including ones for higher energy efficiency standards in appliances and stricter limits on arsenic levels in drinking water. But shortly after taking office, the Bush administration suspended all pending Clinton regulations for 60 days. Eventually, some of them were adopted, while many others were challenged in court. Some were replaced by rules developed by the Bush administration itself.
For Obama and the Democratic Congress, reversing Bush's midnight regulations will partly depend upon their ability to move quickly and in concert. Major rules (those expected to cost $100 million or more a year) legally go into effect 60 days after they're finalized; for minor regulations, the span is 30 days. The Bush administration made a concerted effort to publish many rules by this fall, to ensure that they took effect before Obama was sworn in, but many others have only recently been published. If a rule hasn't yet taken effect, Obama can revoke it. For those that have, the options narrow.
Obama can ask the appropriate agency to write a new rule. But that may take many years to complete, since it requires marshaling sufficient data, drafting the new rule, and allowing the public time to comment.
Congress, meanwhile, has at least two options. Under the Congressional Review Act of 1996, it can reject a regulation by passing a joint resolution (rules published anytime this fall, experts say, are vulnerable to the CRA), although the act has been used successfully only once, in 2001. "The question," says de Rugy, "is whether they use the CRA. In theory, the president has all the stars in alignment," since Democrats control both the House and the Senate. Congress can also write new legislation to get around the rules.
Several Democratic leaders already have signaled their interest in using the Congressional Review Act to revoke policies they find particularly distasteful.
In the meantime, much of the action is in the courts. Yesterday, California sued the Bush administration over two rules that it says will weaken the Endangered Species Act: one that makes it easier for loggers and miners to get permits in protected areas and another that allows agencies to ignore possible impacts of greenhouse gas emissions in their assessments of new projects. Environmentalists have filed other lawsuits against the administration's last-minute policies on mountaintop mining, endangered species protections, and lease sales of wilderness land. More are almost certainly on the way.
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