Policy watchdogs expect industry-friendly changes in coming months.
In its waning days, the administration of President George W. Bush may roll out a number of new environmental regulations, the effects of which could persist long after Bush leaves office on 20 January 2009.
Last week, for instance, the US Environmental Protection Agency (EPA) instituted new environmental regulations for factory farms. The EPA says that the regulations would curb the amount of nitrogen, phosphorus and sediment entering waterways, and farm operators have greeted it with cautious optimism. But environmentalists say a loophole in the rule would scale back environmental protection by effectively allowing operators to police themselves — on these and other requirements — under the Clean Water Act.
Environmentalists and public-policy watchdogs are expecting similar industry-friendly regulatory changes in the coming months. Such 'midnight regulations' have become common practice in recent decades as presidents, both Republican and Democrat, seek to leave their mark on public policy.
More than a dozen rules that could be changed are being monitored by OMB Watch, a Washington DC-based advocacy group, and others. One of these rules would make it easier for mountain-top mine operators to dump debris in streams. Others would ease air-quality restrictions on power plants operating near national parks and wilderness areas, and would make it easier for utilities to update old power plants without triggering a requirement to install modern pollution controls.
"There are a lot of rules out there that could potentially move forward, and it's doubtful that environmentalists would be pleased with very many of them," says Michael Livermore, executive director of the Institute for Policy Integrity at the New York University School of Law. "It's bare politics. They want to enact as much of their agenda [as they can] before they get out of office."
Although incoming presidents can in some cases block 11th-hour regulations, it can be difficult for agencies to reverse course in a rule-making process that is, theoretically, separate from the political fray. When Bush came to office in 2001, he immediately put a hold on all regulations passed shortly before Bill Clinton left the White House. Even so, some of Clinton's policies endure: a rule protecting almost 60 million acres of roadless areas, for instance, remains in force even though the legal battle continues eight years later.
This year, White House chief of staff Joshua Bolten issued a memo on 9 May directing all agencies to propose any new regulations before 1 June. But the administration proposed several controversial regulations after that date. One of these would scale back the requirement for Endangered Species Act consultations with federal biologists on projects such as roads and pipelines. Another would require the Department of Labor to conduct risk assessments for toxic chemicals on an industry-by-industry basis. The new rule would make such assessments more difficult, Livermore says, and the resulting standards less protective.
In trying to keep the last-minute rulemaking to a minimum, Bolten also directed that regulations be finalized by 1 November. Many are, however, still working their way through the system. "What we are learning is that the deadlines are not very firm," says Rick Melberth, who heads federal regulatory policy at OMB Watch.
Agencies can sometimes pull back rules that have not come into effect, generally within 30 to 60 days of their being issued. But once a rule has come into effect, Melberth says, the administration must start over — or simply dedicate fewer resources to its implementation.
White House officials say that Bolten's memo was never intended as a moratorium on regulatory activity. Many of the rules have been under discussion for years and could be finalized in the next administration. "It's a matter of due diligence," says Jane Lee, spokeswoman for the Office of Management and Budget, which oversees federal regulatory changes. "We are going to make sure that all regulations have the benefit of a thorough and full review."