by Michael A. Livermore
In the
months leading up to President Obama’s inauguration, the Bush administration
rushed through a raft of controversial regulations. These “midnight
regulations,” like the one that would allow mining waste to be dumped into
rivers and streams in West Virginia, caused a major stir at
the time—but whatever happened to them? After a year in office, has
the new president been able to clean up his predecessor’s last minute
mess? The answer is a mixed bag of
attempts, delays, successes, and road blocks.
Among the
avalanche of over
150 midnight regulations issued in the waning days of Bush’s tenure, there
are several major environmental deregulations that make it easier for factory
farms to pollute, endangered species to be threatened, and hazardous waste to
be burned. Despite attempts by the
current administration, almost all of these remain in effect.
Part of
the reason for the holdup is that the outgoing Bush administration made a
special effort to limit the incoming president’s ability to reverse these rules
by finalizing them before handing the reins to Obama. This makes the rules very difficult to
reverse even for a well intentioned successor. Changes or cancellations must go through the same extensive and
politicized process as proposed rules themselves, so removing a bad rule can
take years and success is not guaranteed.
The Obama
administration froze pending regulations where possible—Rahm Emmanuel issued a
memo within hours of the inauguration which stopped all rulemaking. He also
asked agencies to consider delaying the effective date of the rules if they
were already published. But once the
regulations are on the books—as many of Bush’s last minute regulations
were—they cannot be withdrawn unilaterally.
Here is
how the White House and its allies are making progress on overturning nine high
profile environmental midnight regulations:
Congress
In one
case, the president successfully encouraged Congress to use appropriations measures
to overturn a midnight regulation which weakened endangered species
protections. Congressional actions are
effective and binding, but trying to use this method to withdraw each of Bush’s
last minute rules may not be politically feasible: other than riders in appropriations bills,
only stand-alone legislation or the rarely used Congressional Review Act can
strike down a bad midnight regulation. In this political climate, it is not likely that Obama will go back to
the Hill for more help.
Courts
Three of
these nine environmental regulations are being challenged in court by advocacy
groups: the
mountain top mining rule, a permissive oil shale drilling rule, and a
deregulation for air pollution from factory farms. The challenges are all making slow and
halting progress through the legal system.
While
suits are pending, EPA has the authority to ask the courts to suspend the effective
date of the rule, preventing it from being implemented in the meantime. It’s not clear why the agency has not done
this yet for these rules. For example,
the Obama administration pushed back the effective date to May 2010 for a
midnight regulation that would no longer ask facilities to collect and report
certain kinds of pollution emissions.
Slow or stalled
In two
cases, administrative action to reverse midnight environmental rules has been
slow. Only recently has the
administration proposed rescinding a rule allowing the burning of hazardous
waste. In addition, another bad
rule—this one to weaken a standard governing recycling hazardous solid wastes—just
begun the long path towards reversal. EPA
opened a public comment period on proposed revisions, but no further
action has been taken.
In another
two cases, midnight regulations are on the books and seem likely to
stand.: one, allowing concentrated
animal feeding operations to self-regulate their own pollution, and another
rule that makes it harder to limit the development of public lands.
Clearly
there are many issues on the president’s plate that have prevented faster
action to push back against these rules. That is why passing midnight regulations is an effective strategy: it forces a new president to make the choice
between challenging the actions of a past administration and moving forward
with a new agenda. Because they are
drafting aggressive new regulation on greenhouse gases and other issues, the
agencies have not been able to act decisively to overturn midnight
regulations: there is only so much time
in the day, and agency budgets are not exactly flush. But the tradeoff has been that the ghost of
the last administration is still haunting us, carrying out an
anti-environmental agenda well after it drew its last breath.
Related Links:
Bill Gates thinks about energy innovation
Digging into Obama’s 2011 budget on energy and the environment
Murkowski’s floor speech on EPA regulations was full of deceptions
