Mountaintop removal: New rule would let miners dump debris closer to rivers and streams. This site is in Kayford Mountain, W.Va. (Jeff Gentner/AP)
Democrats brace for ‘midnight rules’ from Bush
White House hastens to put new regs in place – and out of Obama’s reach, watchdogs say.
By Mark Clayton | Staff writer of The Christian Science Monitor/ November 25, 2008 edition
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.
( More stories )
Comments
2. Richard Knapp | 11.25.08
For someone who claims to be a Christian, Bush certainly actsas though God’s creation exists for the exploitation of the Republican Party and no one else. What a blasphemy! May the conservatives quickly disappear from the American landscape and let God’s creation recover with the help of the new administration. Peace.
3. Pithy Opiner | 11.25.08
This just goes to show how slimy Bush is going to be on his way out. But, then, we Republicans can be pretty slimy at times.
4. ZNoPDX | 11.25.08
“This president set out with a very aggressive environmental agenda when he took office – None of this is a surprise. It’s the culmination of years of work … to keep the environment clean and safe.”
Oh my. So let me review … the strategy is to allow mining companies to dump harmful mining waste into streams and rivers, soften review of government action under under the Endangered Species Act, let factory farms monitor their own water pollution, soften the Clean Air Act’s technology-based requirements on major air pollution sources, and let fishery owners decide how many fish they can take. And this is going to “keep the environment clean and safe”?!!!
Here is the real deal people: the Bush administration is beholden to industry interests. It is giving back where it has been given to. These changes may become permanent. If that happens, industry executives get filthy rich while common folks suffer. Air pollution from major sources causes respiratory illnesses. Polluted runoff from factory farms causes sickness and forces taxpayers to foot the bill for expensive municipal water purification systems. I could go on, but you get the point. Is this a cost we are willing to absorb in exchange for the wealth of a few?
We as a nation must make it clear that we will not tolerate such corruption on the part of our leaders. The past election is a beginning of this statement - toss out the Republicans and their business-friendly policies. For too long Americans have voted against their concrete interests, mostly in exchange for social policies that have no bearing on our daily lives. The past election was not enough, however, voters should send a stronger message in 2010. Vote Green, Vote Dem, just be sure that your candidate supports your interests. Think about the damage that mining companies have caused in Appalachia, all the while being defended by those who were being made sick and subject to flooding on account of economic concerns. But where is the fat-cat mine-company CEO when your community needs doctors to care for the sick? What about when mountaintop removal results in torrential floods? Nowhere to be found. Where are your elected representatives? Sipping martinis with the CEO in some east coast penthouse, laughing about the fortune they have made. It is repulsive, but change is coming, and we are going to bring it about.
5. Cie-J Brown | 11.25.08
Here is my question that I’m guessing 99% of readers miss. What exactly are the current laws in regards to these issues? I am willing to bet that they are TOO over protective to allow business to grow. Otherwise why would Bush bother with it? Yes, industry probably lobbies him. No, I’m not a Bush fan by any means. There is a big movement with the upcoming Obama dictatorship to make people feel bad for existing. I’m to feel bad for slavery, although I never/family never had anything to do with it (and I have “black” people in my family), the whole Global warming scam (http://icecap.us/index.php/go/joes-blog/comments_about_global_warming/) to make us feel bad for living on earth. God did put us here to live on it and thrive. Does this mean go shoot a white owl and nuke the jungle…obviously not. Frankly, I hope Bush does alot of these last minute things to thwart the upcoming green socialist wacko.
6. PHB | 11.25.08
The Bushies are not thinking straight, the Democrats want to stop any future president from using executive authority to upend environmental protection.
They want to use the CRA, if they do it binds Obama and his successors. That is a positive outcome for them, and quite probably for Obama too as it means that there will be no reason for the industries affected to go trying to bribe GOPers with campaign contributions to re-impose them later on.
Any industry that ‘benefits’ from one of these midnight executive orders is going to find that they are permanently locked out.
Obama can use the CRA to cancel regulations and then ask Congress to pass a separate bill giving him authority to re-regulate. The GOP has no ability to obstruct the first, and on the second they will be the ones wanting the relaxation passed.
If the GOP attempts to obstruct by demanding a vote on each they can spend a week doing nothing but vote on these measures with no debate. At 12 hours a day Congress can void almost 50 orders a day with 15 mins each. That should be enough. They can pull everyone in for the weekend shift if necessary. They can also shorten the votes.
I suspect that the claim that there have to be separate votes is unfounded. Congress can do what it likes and the courts have no power to review.
7. Ed Patrick | 11.25.08
The Republican party is really making a bad name for themselves. I remember when “W” took office, he made an issue cause Clinton took some of the kitchenware from the White House. Wish “W” would take a couple of forks and leave. How evil to throw road blocks in the way of a new president when the economy is in a horrible mess. Hope Jeb Bush doesn’t run for President. I won’t vote for him.
WHAT HAS HAPPENED TO THE REPUBLICAN PARTY !?
8. WillyC | 11.25.08
Corporations always try to maximize profit. Good marketing and effecient operational strategies will do the same job and not **** off everyone by leaving behind environmental abuse and negative social impact. I recently moved up to the Copperhill, Tennessee area from Florida and the devastating impact of copper mining in the area is still evident. They basically just packed up and left town, You can sit on a bench in town and see evidence of genetic damage in the general population caused by the polluted creeks, rivers and wells. Deformed arms and hands are way too common to be coincidental.
South West Florida rivers, lakes and back bays and the coral reefs in the Keys are being ruined by Big Sugar and their 700,000 acres of sugar cane that is subsidized by the Government to keep prices down and put pressure on Cuba’s sugar industry. That’s another thing that needs to go away.
9. jdodson | 11.26.08
Just a note on this topic. Until you have actually seen what happens in the aftermath of mountain top removal you cannot begin to appreciate the topic. The mountains are actually removed. Gone. Poof. It is act heretofore reserved for God, not man. Once the mountain is gone the jobs are gone. This is Third World stuff here. It is unimaginable. It is crime against humanity and nature.
10. Green | 11.26.08
To support these actions of Bush’s and to be spiteful (”Socialist green whacko”) against those who oppose it doesn’t make sense. It’s just not right. So, let’ tear down mountains that have been there a myriad longer than us. Let’s get rid o protection for species in danger. Let’s pollute near national parks. Let’s disregard pollution control. Let’s have the fox guard the henhouse. Sorry about that, but still, how can you believe this is right?
11. quig | 11.26.08
You hypocrites! I don’t like Bush, but I didn’t like Clinton, either. Bush is doing the same thing Clinton did, but your short, selective memories choose NOT to remember! The Clinton administration was one of the most corrupt presidencies, but to read what you people are writing makes him sound like a saint.
I sincerely hope the president-elect Obama will break this mold and not repeat the same mistakes as his predecessors have for decades. If he really is about change, he won’t do what either Bush or Clinton did when entering office and when leaving office.
12. Deb Wickersham | 11.26.08
I am so grateful for the thoroughness of this report. I have been following this story for some time, simply appalled by this final effort of the current administration to impact our environment negatively, thinking only of business, and not of our earth, disgarding scientific thought for purely economic gain.
I am thrilled to know that the Democrats in the Congress are watching this very carefully and preparing with the support of our nation’s environmental groups.
Sincerely,
Deb Wickersham, Roseville, CA
13. Adam | 11.26.08
Thanks for the good report, Eoin. While the recession, the new President’s appointments, or the holidays might be taking many people’s focus off of this critical issue, it’s great to see that some journalists are being vigilant. The more people are aware of such transparently evil pieces of governance, the less chance they have of succeeding.
15. Eoin | 11.26.08
Thanks, Adam, but I didn’t actually write this one. It was written by Mark Clayton, whose desk is about 15 feet from mine.
16. Lyn | 11.26.08
I echo what jdodson said.
Forty years ago I spent a summer working with communities in mining districts of Virginia and Tennesee. In one, I got to know an elderly man and his sister who lived near the top of a mountain whose top was being removed. Their little farm was immaculate, with wonderful apple trees so old their branches were supported by crutches. What had been a wonderful sanctuary was ruined by the dumping of mining waste that cut these elderly people off from their water source, forcing then to walk more than a mile to get water. This was in the summer - by winter they knew they would have to leave the only home they had ever known.
I hope there is a way to stop this travesty.
18. Sue Wood | 11.26.08
Thank you for staying on top of this crime against the earth and all its inhabitants. I can’t understand why any U.S. President or political party would want to leave this at their legacy.
19. Archie1954 | 11.26.08
These new regulations to be promulgated by the outgoing Bush are a microcosm of his eight horrible years at the top of the heap. Everything he has touched has been inimical somehow to America and Americans and he is just putting the icing on the cake.
20. Luise of the Phoenix | 11.26.08
Considering the Bushies’ lack of interest or empathy for what these horrible last minute executive orders, I can’t help but weep for the sad state of our nation’s natural splendor being raped by unfeeling, greedy megacorporations which are greedily short-sighted about the total havoc created by the relaxation of much needed environmental protections.
Is the money gained from mountain-top and strip-mining worth the destruction of the land, befouling streams and destroying the physical health of all living creatures (animals as well as humans( who will suffer as a result?
Why is Business and Money-grubbing more important to the Bush White House than the continued health of living beings?
21. Steve | 11.26.08
Deregulation of mortgage-backed securities has contributed to a mess that experts say may take two years to straighten out. Unwarranted deregulation of environmental standards may and certainly can create messes that will, for practical purposes, never be remediated. For me, the question is whether the proposed rules changes are warranted. What evidence is there that current rules are not working as intended? Has there been an audit of them? Or are these deregulatory moves being made because the rules are inconvenient or because it is less profitable when externalities are internalized? Where in the rules changing process are these sorts of questions asked and answered? Where is this process made transparent so someone who cares can find out the answers to any audit that may have been completed?
23. Robert | 11.26.08
What happened with two Bush presidencies was the pendulum swung too far left. So back to the extreme right we went and now most of you want to go back? What’s missing in the center.
Sorry, but the rabid enviromentilists are just preservationists. We the people want to find a balance and the extremes don’t. You who are in those groups are exactly alike. No tolerance and no compromise.
Do I think taking the top off of a mountain is a good thing? Of course not. But I also don’t think the habitat of some obscure minnow is a reason not to use a waterway. Face it,we as humans are going to over run the planet if we don’t find common ground instead of living in some we-are-going-to-save-the-world mentality, MANAGE IT!
24. Jim Vance | 11.26.08
“WHAT HAS HAPPENED TO THE REPUBLICAN PARTY !?”
It was hijacked by neofascists starting in the Nixon administration…
25. david tarbuck | 11.27.08
The “environment” which I take to mean all the current real and future anticipated problems of : global climate change, finite resources (scarcity?) biodiversity (extinctions, loss of habitat), population control etc. is going to require more, not less consideration if the human race is to survive in a way that maintains an acceptable life style for the hard working majority.
These right wing neo fascists who wrap themselvces in the flag and espouse various religious faiths of the fundamentalist bent plue unbridled “free enterprise” have been responsible for most of the problems of the world.
“Less government” they say; of course when they run into problems, mostly of their own making, (ie the auto industry) guess who is quick off the mark looking for handouts?
The honourable Barack H. Obama will have his hans full undoing as much of the mess as possible; lets hope the American paople and others give as much of themselves to help sort out the world problems as humanly possible.
26. H. D. Schmidt | 11.27.08
So, this is not an Emperor and King in action in America? And why not, in as much as America is already a fullfledged Empire already, even more far-reaching and abusive than any other previously, heretofore including the ruthles British!
27. Jason | 11.29.08
“I suspect that the claim that there have to be separate votes is unfounded. Congress can do what it likes and the courts have no power to review.”
Really? I suspect that the United States Supreme Court would be surprised by that assertation considering the ruling in Marbury v. Madison(1803). Congress must play within the rules as imposed by the Constitution( though due to the four Liberals on the court don’t always do that) and US Law. Bush can and will pass regs up until he leaves office as will Obama/Biden and whoever has the unenviable task of replacing them.
For those who believe attacking the incoming Administration is unseemly…where were you 8 years ago( I suspect attacking GWB). May God Bless GWB…We could have done a lot worse…oh wait a minute we just did.
28. Jason | 11.29.08
“I suspect that the claim that there have to be separate votes is unfounded. Congress can do what it likes and the courts have no power to review.”
Really? I suspect that the United States Supreme Court would be surprised by that assertation considering the ruling in Marbury v. Madison(1803). Congress must play within the rules as imposed by the Constitution( though due to the four Liberals on the court don’t always do that) and US Law. Bush can and will pass regs up until he leaves office as will Obama/Biden and whoever has the unenviable task of replacing them.
For those who believe attacking the incoming Administration is unseemly…where were you 8 years ago( I suspect attacking GWB). May God Bless GWB…We could have done a lot worse…oh wait a minute we just did.
29. Robby S. | 11.29.08
Balance is severely missing in this article. Mr. Clayton includes a lengthy quote from a “liberal-leaning” group, but offers no explanation of why these rules might be an improvement nor comments from supporters of these rules changes, leaving the reader with the potentially false impression that the changes are sinister and have no merit.
30. al | 11.30.08
just another example of the Bush administration not giving a damn about anyone except the corporations and fat cats that helped them get elected. it makes me sick to my stomach when i hear of the scummy legislation that bush and cheney and their minions are trying to pass at the last minute. o lord when will it end? only 2 more months to go before we can finally wake up from this eight-year nightmare of our collective conscious and unconscious. i only hope it isn’t too late to fix some of the serious domestic problems we face; that doesn’t even mention the 2 wars we’re fighting and the worldwide cost of the war on terror.
31. Chris | 12.02.08
I believe extremism goes both ways and we should be wary of both. I do not want to see unbridled economic progress at the expense of the environment, but I also do not want to see economic progress stifled by unbridled environmental extremism. It takes compromise. Remember the dire environmental projections that the caribou populations would be decimated by the Alaskan Oil pipeline? The caribou numbers have actually increased because the pipeline was built raised off the ground so as to not block migration patterns. From what I understand the animals actually congregate around the pipeline because of its warmth. Seems obvious that both sides should be happy… except the extremists.
The reality is access to natural resources is necessary as is being good stewards of our environment. By demonizing efforts to increase access to natural resources kills jobs and effects people’s livelihood from the miner to the mine owner. Would it not be better to compromise?
Trackbacks/Pingbacks
Leave a Comment
We do not publish all comments, and we do not publish comments immediately. The comments feature is a forum to discuss the ideas in our stories. Constructive debate - even pointed disagreement - is welcome, but personal attacks on other commenters are not, and will not be published.
Tip: Do not write a novel. Keep it short. We will not publish lengthy comments. Come up with your own statements. This is not a place to cut and paste an email you received. If we recognize it as such, we won't post it.
Please do not post any comments that are commercial in nature or that violate copyrights.
Finally, we will not publish any comments that we regard as obscene, defamatory, or intended to incite violence.
1. Daryl Pullen | 11.25.08
Of course this just shows a continuing disregard for the interests of the American People…what else could you expect from a Corporate ***** !