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.