A Last Push To Deregulate
White House to Ease Many Rules
By R. Jeffrey Smith
Washington Post, October 31, 2008
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President George W. Bush speaks at
the Federal Bureau of Investigation (FBI)
graduation ceremony in Quantico, Virginia
October 30, 2008. The new rules would be among
the most controversial deregulatory steps
of the Bush era and could be difficult for
his successor to undo
Source: Kevin Lamarque,
Reuters
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WASHINGTON - The White House is working to enact
a wide array of federal regulations, many of which
would weaken government rules aimed at protecting
consumers and the environment, before President Bush
leaves office in January.
The new rules would be among the most controversial
deregulatory steps of the Bush era and could be difficult
for his successor to undo. Some would ease or lift
constraints on private industry, including power plants,
mines and farms.
Those and other regulations would help clear obstacles
to some commercial ocean-fishing activities, ease
controls on emissions of pollutants that contribute
to global warming, relax drinking-water standards
and lift a key restriction on mountaintop coal mining.
Once such rules take effect, they typically can be
undone only through a laborious new regulatory proceeding,
including lengthy periods of public comment, drafting
and mandated reanalysis.
"They want these rules to continue to have an
impact long after they leave office," said Matthew
Madia, a regulatory expert at OMB Watch, a nonprofit
group critical of what it calls the Bush administration's
penchant for deregulating in areas where industry
wants more freedom. He called the coming deluge "a
last-minute assault on the public . . . happening
on multiple fronts."
White House spokesman Tony Fratto said: "This
administration has taken extraordinary measures to
avoid rushing regulations at the end of the term.
And yes, we'd prefer our regulations stand for a very
long time -- they're well reasoned and are being considered
with the best interests of the nation in mind."
As many as 90 new regulations are in the works, and
at least nine of them are considered "economically
significant" because they impose costs or promote
societal benefits that exceed $100 million annually.
They include new rules governing employees who take
family- and medical-related leaves, new standards
for preventing or containing oil spills, and a simplified
process for settling real estate transactions.
While it remains unclear how much the administration
will be able to accomplish in the coming weeks, the
last-minute rush appears to involve fewer regulations
than Bush's predecessor, Bill Clinton, approved at
the end of his tenure.
In some cases, Bush's regulations reflect new interpretations
of language in federal laws. In other cases, such
as several new counterterrorism initiatives, they
reflect new executive branch decisions in areas where
Congress -- now out of session and focused on the
elections -- left the president considerable discretion.
The burst of activity has made this a busy period
for lobbyists who fear that industry views will hold
less sway after the elections. The doors at the New
Executive Office Building have been whirling with
corporate officials and advisers pleading for relief
or, in many cases, for hastened decision making.
According to the Office of Management and Budget's
regulatory calendar, the commercial scallop-fishing
industry came in two weeks ago to urge that proposed
catch limits be eased, nearly bumping into National
Mining Association officials making the case for easing
rules meant to keep coal slurry waste out of Appalachian
streams. A few days earlier, lawyers for kidney dialysis
and biotechnology companies registered their complaints
at the OMB about new Medicare reimbursement rules.
Lobbyists for customs brokers complained about proposed
counterterrorism rules that require the advance reporting
of shipping data.
Bush's aides are acutely aware of the political risks
of completing their regulatory work too late. On the
afternoon of Bush's inauguration, Jan. 20, 2001, his
chief of staff issued a government-wide memo that
blocked the completion or implementation of regulations
drafted in the waning days of the Clinton administration
that had not yet taken legal effect.
"Through the end of the Clinton administration,
we were working like crazy to get as many regulations
out as possible," said Donald R. Arbuckle, who
retired in 2006 after 25 years as an OMB official.
"Then on Sunday, the day after the inauguration,
OMB Director Mitch Daniels called me in and said,
'Let's pull back as many of these as we can.' "
Clinton's appointees wound up paying a heavy price
for procrastination. Bush's team was able to withdraw
254 regulations that covered such matters as drug
and airline safety, immigration and indoor air pollutants.
After further review, many of the proposals were modified
to reflect Republican policy ideals or scrapped altogether.
Seeking to avoid falling victim to such partisan
tactics, White House Chief of Staff Joshua B. Bolten
in May imposed a Nov. 1 government-wide deadline to
finish major new regulations, "except in extraordinary
circumstances."
That gives officials just a few more weeks to meet
an effective Nov. 20 deadline for the publication
of economically significant rules, which take legal
effect only after a 60-day congressional comment period.
Less important rules take effect after a 30-day period,
creating a second deadline of Dec. 20.
OMB spokeswoman Jane Lee said that Bolten's memo
was meant to emphasize the importance of "due
diligence" in ensuring that late-term regulations
are sound. "We will continue to embrace the thorough
and high standards of the regulatory review process,"
she said.
As the deadlines near, the administration has begun
to issue regulations of great interest to industry,
including, in recent days, a rule that allows natural
gas pipelines to operate at higher pressures and new
Homeland Security rules that shift passenger security
screening responsibilities from airlines to the federal
government. The OMB also approved a new limit on airborne
emissions of lead this month, acting under a court-imposed
deadline.
Many of the rules that could be issued over the next
few weeks would ease environmental regulations, according
to sources familiar with administration deliberations.
A rule put forward by the National Marine Fisheries
Service and now under final review by the OMB would
lift a requirement that environmental impact statements
be prepared for certain fisheries-management decisions
and would give review authority to regional councils
dominated by commercial and recreational fishing interests.
An Alaska commercial fishing source, granted anonymity
so he could speak candidly about private conversations,
said that senior administration officials promised
to "get the rule done by the end of this month"
and that the outcome would be a big improvement.
Lee Crockett of the Pew Charitable Trusts' Environment
Group said the administration has received 194,000
public comments on the rule and protests from 80 members
of Congress as well as 160 conservation groups. "This
thing is fatally flawed" as well as "wildly
unpopular," Crockett said.
Two other rules nearing completion would ease limits
on pollution from power plants, a major energy industry
goal for the past eight years that is strenuously
opposed by Democratic lawmakers and environmental
groups.
One rule, being pursued over some opposition within
the Environmental Protection Agency, would allow current
emissions at a power plant to match the highest levels
produced by that plant, overturning a rule that more
strictly limits such emission increases. According
to the EPA's estimate, it would allow millions of
tons of additional carbon dioxide into the atmosphere
annually, worsening global warming.
A related regulation would ease limits on emissions
from coal-fired power plants near national parks.
A third rule would allow increased emissions from
oil refineries, chemical factories and other industrial
plants with complex manufacturing operations.
These rules "will force Americans to choke on
dirtier air for years to come, unless Congress or
the new administration reverses these eleventh-hour
abuses," said lawyer John Walke of the Natural
Resources Defense Council.
But Scott H. Segal, a Washington lawyer and chief
spokesman for the Electric Reliability Coordinating
Council, said that "bringing common sense to
the Clean Air Act is the best way to enhance energy
efficiency and pollution control." He said he
is optimistic that the new rule will help keep citizens'
lawsuits from obstructing new technologies.
Jonathan Shradar, an EPA spokesman, said that he
could not discuss specifics but added that "we
strive to protect human health and the environment."
Any rule the agency completes, he said, "is more
stringent than the previous one."
