Democrats brace for ‘midnight rules’ from Bush

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

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

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?

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.

Ironically, the 1996 law was passed by the Republican-dominated House, led by Newt Gingrich, to try to thwart the first-term Clinton White House from pushing through its own midnight rulings.

Congressional aides say Demo­crats are already fine-tuning CRA-based legislation to turn back some expected rules if the Obama administration is unable to do so through executive action. One expected Bush rule, for example, would undermine the Endangered Species Act – critics say – by relaxing requirements for federal agencies to consult about the effects of their actions on endangered species and critical habitat.

“We are drafting legislation as we speak to block the rule that would harm the Endangered Spe­­cies Act,” says Eben Burnham-Snyder, an aide to Rep. Ed Markey (D) of Massachusetts. Mr. Markey chairs the House Select Committee on En­­ergy  Inde­pen­dence. “It would be something you’d see very quick action on – and that’s why we’re making sure to have legislative language action-ready,” Mr. Burnham-Snyder says.

That sort of ramping-up on Cap­­­­­itol Hill cheers environmentalists.

“Obviously the Bush administration has made a conscientious effort to get these rules done in a way that’s more difficult to overturn,” says Josh Dorner, a spokesman for the Sierra Club.

“But they apparently didn’t take into account the potential of the timing in the CRA to overturn some of these things.”

Bush administration spokesmen dispute such a dour characterization of the administration’s efforts, saying that most rules now in the pipeline have been in the public eye and subject to public comment for several years.

“This president set out with a very aggressive en­­vironment­al agenda when he took office – and this is the culmination of this work,” says Jon­­­athan Schra­der, a spokesman for the Envi­ron­mental Protection Agency. “Some of the New Source Review work [part of the Clean Air Act] was set out as long ago as 2004.... None of this is a surprise. It’s the culmination of years of work ... to keep the environment clean and safe.”

Some dimensions of the Bush rule-writing push are beginning to emerge.

Between Nov. 1 and Nov. 20, at least 47 new federal rules from the En­­viron­­mental Protection Agency, the Depart­ment of Interior, and the De­part­ment of Energy were being reviewed by the Of­­fice of Management and Budget, according to Ms. de Rugy’s tally of OMB data. Of those, 15 are “economically significant” rules – that is, having an impact of $100 million or more, she says.

At that rate, there could be more than 70 economically significant rules enacted between Nov. 1 and Jan. 20, the day President-elect Obama takes office, de Rugy says. By comparison, just eight economically significant regulations were reviewed by OMB during the same period a year ago. Under President Clinton, the OMB reviewed 49 economically significant rules between Nov. 1, 2000 and Jan. 20, 2001, when George W. Bush took office.

If President Bush keeps to that pace, the Obama administration may be faced with hundreds of rules that could come under CRA review. There have been 307 rules enacted by those three federal agencies alone since July, 63 of them economically significant, de Rugy says.

“There’s a lot that the president can do using his executive authority without waiting for congressional action, and I think we will see the president do that,” said John Podesta, Obama’s transition chief, in a FOX TV network interview.

For those rules that have already been published, reversing them won’t be easy. And even the CRA has a downside. It must be used wisely or it may do more harm than good. For one thing, once the CRA has been used to repeal a rule, the agency cannot reintroduce a modified rule on that issue, potentially leaving legislative and enforcement gaps, de Rugy notes.

It’s also unclear whether CRA allows many rules to be bundled together so they can be voted on to reverse them en masse. They may have to be addressed one at a time, which is de Rugy’s interpretation of the law.

That could be a problem, given the landslide of last-minute rules that seems to be coming.

“The Bush administration is working in a way that it hopes to be more effective in cementing these rules in place,” says Matt Madia, regulatory policy analyst for OMB Watch, a liberal-leaning government watchdog group. “It’s going to be more difficult for the Obama administration to do anything, so it’s going to be in the hands of Congress.

Proposed rules on environment

The Bush administration is preparing to put scores of new rules on the books in its waning days, a phenomenon known as “midnight regulation.” Several dozen rules regarding environmental issues are involved, including some that could have major impacts.

Here are some of the more controversial proposed rules, according to OMB Watch, a liberal-leaning government-watchdog group in Washington:

Mountaintop mining. The proposed new rule would allow mining companies to dump rock and dirt from mountaintop-­removal mining closer to rivers and streams.

Endangered species consultation. The rule would alter implementation of the Endangered Species Act by letting federal land-use managers approve projects like highways, mining, or logging without consulting federal habitat managers and biological health experts responsible for species protection. Currently, consultation is required.

Air pollution near national parks. The proposed rule would ease current restrictions that make it difficult for power plants to operate near national parks and wilderness areas.
Runoff and air pollution from factory farms. Under new rules, factory farms could let their runoff pollute waterways without a permit. (The rule circumvents the Clean Water Act, allowing for self-regulation.) Another rule would exempt factory farms from reporting air pollution emissions from animal waste.

New Source Review changes. The rule would change the Environmental Protection Agency’s New Source Review program, which requires new facilities or renovating facilities to install better pollution-control technology, by making fewer facilities subject to its requirements.

Environmental impacts of fishery decisions. The rule would transfer the responsibility for examining the environmental impacts of federal ocean-management decisions from federal employees to advisory groups that represent regional fishing interests. The rule would also make it tougher for the public to participate in the environmental assessment process required by the National Environmental Policy Act.

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