Bush's Midnight Regulations: The Worse Is Yet to Come

Bush's Midnight Regulations: The Worse Is Yet to Come
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Reports of the president’s lame duck status – his impotence, if you will – have been vastly exaggerated. Even as he has all but given up on rescuing the faltering economy (which, given his track record, isn’t necessarily a bad thing), he and his advisers have been redoubling their efforts to squash what is left of his predecessors’ environmental legacy.

There have been a number of stories making the rounds suggesting that the Bush administration is planning nothing less than the wholesale dismantling of the country’s environmental policy: easing the rules requiring power plants to install emission-reducing technologies, relaxing drinking-water standards, removing Congress’ authority to impose a moratorium on uranium mining and changing the definition of “solid waste” to lessen regulatory burdens (just to name a few).

But, as you might imagine, the president has reserved the most firepower for his administration’s real bête noire: climate change.

The Washington Post’s Juliet Eilperin recently reported that the president has been quietly enlisting the support of his allies to mount a vigorous attack on a proposal – issued by his government, no less – that would require the EPA to regulate greenhouse gas emissions under the purview of the Clean Air Act.

The Post recovered an e-mail sent last week by the White House Office of Intergovernmental Affairs in which Jeremy J. Broggi, its associate director, warned elected officials that the comment period would “close on November 28”. In addition, he linked to a post written by (who else?) the U.S. Chamber of Commerce that cautioned that a limit on greenhouse gas emissions would impose a “de facto moratorium” on new construction and infrastructure projects.

The angle here was clear: by employing scare tactics and doom-mongering predictions to coax its allies into action, the White House hoped to fell the proposal, or at least significantly ease its provisions, by making it sound too oppressive. (It already seems to have had its desired effect: Texas Gov. Rick Perry wrote to the EPA last Tuesday arguing that any cap would cause “irreparable” damage to the economy.) Despite claiming to have seen the light on global warming, acknowledging its risks in several recent speeches, it was always clear to anybody with even half a brain that Bush (and Cheney) preferred the skeptics’ upbeat narrative.

And while President-elect Obama has vowed to roll back his predecessor’s abuses, many regulatory and legal observers say that it won’t be so easy. For one thing, Bush has unleashed a veritable tidal wave of new rules on multiple fronts (close to 90, according to the Post), which means that an Obama administration will need to invest considerable time and resources to reverse all of them – time and resources it may want to save for other priorities.

Second, undoing each rule will necessitate a long, arduous regulatory proceeding – with lengthy public comment periods, drafting and repeated analyses. Even if his government were to successfully repeal most of these rules, the damage would likely already have been done. (Try telling a company to un-build a coal plant.)

To be fair, Bush’s predecessors also used their last months in office to pass a number of so-called midnight regulations (Bill Clinton actually pushed for more). What makes his last-minute proposals unprecedented, of course, is that they would all ease or eliminate environmental regulations, putting the health of workers, communities and ecosystems at risk; also, by getting all of these through by the end of November, the Bushies hope to tie the Obama administration’s hands.

As ProPublica’s Joaquin Sapien notes, this rush to deregulate runs counter to the objectives laid out in a memo issued by the White House Office of Management and Budget earlier this year, telling agency officials to “resist the historical tendency of administrations to increase regulatory activity in their final months” by proposing new regulations no later than June 1. It also stated that no new regulations should be finalized after November 1. Oops.

While the new president’s odds of effecting quick change look to be compromised, the Congress could introduce a resolution, under the Congressional Review Act, to disapprove these proposals during its first sixty session days back in early January. If the resolution is passed by both houses and signed by Obama, it’ll be “like the rules never came into effect at all,” says Matthew Madia, a regulatory analyst at OMB Watch.

With their strengthened majorities, the Democrats should have a fair shot at striking these new rules down. Time to see if they put their money where their mouths are.

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