Lawrence Jackson/AP

Newest Bush Administration "Midnight Regulations" Anger Environmentalists

December 12, 2008 03:45 PM
by findingDulcinea Staff
Recent "midnight regulations" issued by the Bush administration have environmentalists up in arms, because they ease some of the environmental prerequisites federal agencies must follow for projects.

Bush Administration Alters Endangered Species Protection

The Bush administration issued two controversial “midnight regulations” on Thursday, both of which relax some of the environmental requirements federal agencies must follow before pursuing projects, according to the Chicago Tribune.

The new rules say that agencies do not have to consult federal scientists about potential impacts on endangered species or global warming before pursuing projects such as dams, power plants and timber sales, the Associated Press reports; developers and agencies have previously objected to such requirements for raising costs and causing delays.

The changes will go into effect before Barack Obama takes office in late January, and could be difficult for the president to quickly reverse, though Obama has stated that he plans to strike down the revisions. But House Natural Resources Committee Chairman Rep. Nick Rahall, D-W.Va. said he will attempt to bypass the lengthy reversal process by invoking the uncommonly used Congressional Review Act.

Environmentalists wasted no time expressing their dissatisfaction with the rule changes, and hours after the administration’s announcement several groups challenged the regulation in a San Francisco federal court.

Interior Secretary Dirk Kempthorne said the changes to the law were “narrow” and argued that climate change regulation is a "wholly inappropriate use of the Endangered Species Act."

Also on Thursday, the Interior Department decided to permit oil and gas companies to explore the habitat of polar bears as long as they abide by the rules of the Marine Mammal Protection Act. The polar bear was declared threatened in May because its habitat, the Arctic ice caps, is shrinking in warmer temperatures.

Wave of Recent Midnight Regulations

President George W. Bush and his administration have passed major regulations through federal agencies that will be difficult for President-elect Barack Obama to overturn when he takes office. The Bush administration has passed regulation changes pertaining to oil shale development, the working hours of truckers and employee time off in recent weeks.

President Bush is in power until the Jan. 20 Inauguration Day, and his administration may pass rules and regulations until then. Once he is president, Barack Obama can easily overturn any regulation that has yet to take effect.

Many of the regulations passed and in the process of being passed are pro-industry, giving companies greater freedom on environmental and labor issues. “Most of them relax existing requirements,” says Matt Madia of OMB Watch, a nonprofit organization dedicated to government transparency. “They make it easier for industries to pollute or deny a worker medical leaves.”
ProPublica, a nonprofit devoted to investigative journalism, is tracking the regulations currently being pushed through, with status updates on each.

The Obama administration will have several options to overturn the regulations, but none are simple. It could try to pass new regulations voiding the Bush regulations, but the rule-making process takes years. It could also file lawsuits to undo the regulations, but the legal process is long and often unpredictable.

There is also the option, as Rep. Rahall has proposed, to use the Congressional Review Act, a somewhat obscure piece of legislation passed in 1996 that allows Congress to revoke the regulations. It has only been used once in 12 years.

“It would seem when you have a Congress that is controlled by the Democrats and a president that’s a Democrat, that’s a better option than virtually any of the others,” said Gary Bass, executive director of OMB Watch, to NPR. “But that approach is almost like the atomic bomb because it would mean that no similar rule can be done.”

Reference: Midnight regulations and how regulations are passed

The term “midnight regulation” was coined in 1980, when outgoing President Jimmy Carter spent the last ten weeks of his presidency passing nearly 25,000 pages of regulations. “Since Jimmy Carter, every President has complained about midnight regulations,” writes Elizabeth Kolbert in The New Yorker,” and, four or eight years later, every President has issued them.” President Bill Clinton passed the most regulations—more than 26,000 pages in total.

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