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Democrats brace for ‘midnight rules’ from Bush

White House hastens to put new regs in place – and out of Obama’s reach, watchdogs say.

By Staff writer of The Christian Science Monitor / November 25, 2008

Mountaintop removal: New rule would let miners dump debris closer to rivers and streams. This site is in Kayford Mountain, W.Va.

Jeff Gentner/AP

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Will last-gasp “refinements” to the Clean Air Act let power plants locate near national parks next year? Will a new federal rule allow coal-mining debris to be dumped closer to streams? Will factory farms soon get a pass on reporting hazardous chemical releases?

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So goes the worry list of environmentalists awaiting what they suspect may be an avalanche of last-minute “midnight rules” by the Bush administration that favor industrial polluters by relaxing or undermining environmental standards.

It has become a rite of outgoing presidents to push through, in their final weeks, federal regulations they favor to extend their policies beyond their administrations. Once such a rule is formally enacted by being printed in the Federal Register, the law usually requires another 30 to 60 days to pass before the rules take effect. After that, a rule can be very difficult to reverse.

But while a rule is not yet in effect, it is vulnerable. A raft of last-minute rules that President Clinton did not publish quickly enough were put on hold the day after President Bush took office in 2001. By contrast, Mr. Clinton’s “Roadless Rule,” which restricts road building on federal land, was published and in effect in time. It has been impossible for the Bush White House to undo. Apparently mindful of this, White House Office of Management and Budget (OMB) chief Joshua Bolten, in a memo this spring, had told federal agencies to have rules to his office for vetting no later than Nov. 1 so they could be in effect by Jan. 20, 2009 – Inauguration Day.

But there is rising hope among environmentalists and Democratic lawmakers that any last-minute onslaught will be blunted this time, if not turned back entirely. They look to a little-known and little-used law called the Congressional Review Act of 1996.

The CRA gives Congress fast-track authority to hold filibuster-free votes on regulations if they were enacted within a certain time frame – 60 legislative days – after Congress had adjourned. Given Congress’s frequent ad­­journ­­ments this year, the law may allow the new Congress to vote on regulations enacted by the Bush administration as far back as June, regulatory experts say.

“Usually these rules are very difficult to reverse, except this year might be different,” says Veronique de Rugy, a senior fellow at the Mercatus Center at George Mason University in Fairfax, Va., and an expert on midnight regulations. “Congress could use the CRA, and that would create an expedited process to repeal any rule by simple majority vote. I suspect this time we’re going to see a lot of that happening.”

One key reason the CRA is not often used is that it requires a rare alignment of stars in the political sky: President and Congress must be of the same party. That’s because CRA legislation can be used only at the beginning of a new presidential term, and all CRA bills go to the new president – who can veto them. Presidential vetoes are unlikely this time, since the incoming Obama administration is on the same wavelength as the incoming Democratic-majority Congress.

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