Obama halts some of Bush's 'midnight rules'

Only hours into his presidency, Barack Obama has ordered a freeze on all the new and pending federal regulations that the Bush administration pushed through in its final days.

UPI Photo/Pete Souza/White House Press Office
On his first full day in office, President Barack Obama meets with White House Chief of Staff Rahm Emanuel in the Oval Office.

Only hours into his presidency, Barack Obama has ordered a freeze on all the new and pending federal regulations that the Bush administration pushed through in its final days.

As Monitor reporter Mark Clayton noted two months ago, many of these "midnight rules" seek to relax, or completely do away with, environmental standards. Among the rules that have been frozen is one that would have made it easier for factories and refineries to expand without applying for new federal pollution permits. Another would have removed federal protection for gray wolves in the Northern Rockies and Great Lakes. Another would have opened areas of Oregon to logging. Another would have opened 2 million acres of public land in Wyoming, Colorado, and Utah for oil-shale drilling. And another would have helped set in motion the commercialization of meat from genetically modified animals.

It's common for a president to issue a flurry of last-minute rules before stepping down, particularly when a successor is from a different party. And as the Washington Post notes: Starting with Ronald Reagan, it has become a tradition for a president on his first day in office to issue a directive that voids the ones that have not yet gone into effect.

The Jan. 20 memo  from Rahm Emanuel, President Obama's chief of staff, said: “It is important that President Obama’s appointees and designees have the opportunity to review and approve any new or pending regulations.” Therefore, "no proposed or final regulation should be sent to the Office of Federal Register for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009, or in the case of the Department of Defense, the Secretary of Defense."

Mr. Emanuel also asked department and agency heads to "consider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect."

The Washington Post has a PDF of the memo.

President Obama's order successfully blocked several of the Bush administration's late-term rules, but many went into effect before he took office, meaning that reversing them will probably take years. The nonprofit investigative journalism shop ProPublica has been tracking new rules from the Bush administration over the past two months. Of the 65 rules they list, 23 went into effect before Obama's inaguration; one-third of those new rules went into force fewer than three days before Obama took office.

Probably the most significant of the environmental rules already in force is a change to the Endangered Species Act that eases requirements for federal agencies to consult with scientists at the Fish and Wildlife or National Marine Fisheries services about the effects of their actions on threatened species. Under the new rule, which took effect nine days before Obama’s inauguration, federal agencies can in many cases simply check with their own personnel to determine if their projects will harm any of the 1,247  animal and 747 plant species listed as endangered or threatened.

Other rules that have already gone into effect include ones that make it easier for mining companies to dump debris from mountaintop removal into waterways, allow drilling for uranium near the Grand Canyon, eliminate requirements that factory farms report on air pollution from animal waste and let them voluntarily determine whether or not they need a permit to discharge animal waste into waterways, relax limits on airborne lead emissions, and allow people to bring loaded guns into some national parks.

ProPublica's Joaquin Sapien notes that Obama has two options for reversing rules that are already in effect. He could try to replace the rules with new rules, a process that Mr. Sapien calls "enormously difficult" because it resets the rulemaking process and opens it to legal challenges.

Or he could ask Congress to invoke the little-known Congressional Review Act, which allows the legislative body to kill a rule within "60 legislative days" – about six months – after it goes into effect. That law, which was passed in 1996 by the GOP-controlled Congress in an attempt to halt what was seen as excessive regulation by President Clinton, has been used only once.

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