posted October 31, 2008 09:57 PM            

By Dan Froomkin
Special to washingtonpost.com
Friday, October 31, 2008; 12:12 PM

Did we really expect President Bush and Vice President Cheney to go quietly?

R. Jeffrey Smith writes: "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. . . .

"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."

Emma Schwartz reports for ABC News: "Every administration tries to pass last minute rules in hopes of leaving a lasting mark. But experts say the Bush administration is expected to approve a greater number more quickly than previous administrations -- something they said could lead to bad and costly policy.

"'The administration wants to leave a legacy,' said Gary Bass, executive director of OMB Watch, which has been critical of these proposals. 'But across the board it means less protection for the public.' . . .

"It wasn't supposed to be this way. In May, Josh Bolten, then-head of the Office of Management and Budget, which oversees regulatory approval, issued a memo barring new proposals after June. It also required that all new regulations be completed by Nov. 1.

"That hasn't been the case. Many proposed regulations have yet to be finalized and new ones have already come out since the June deadline.

"A spokesperson for OMB said in an email response that the Bolten memo 'wasn't intended to wholesale shut down work on important regulatory matters after November 1st, but to emphasize due diligence.'

"She added: 'Ensuring the integrity of the process is important to the Administration.'"

Among the examples cited by Smith is a proposed rule put forward by the National Marine Fisheries Service that 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.

Watchdogs are up in arms. The Pew Environment Group says the rule "threatens to completely undermine application of the law that protects ocean ecosystems." OMB Watch reports: "In addition to the hundreds of thousands of public comments opposing the proposed rule, 80 members of Congress have also expressed their opposition, including a letter joined by 72 members of the House of Representatives. The letter states that the proposed rule fails to meet congressional intent made clear during the reauthorization of the [fisheries act]. Hundreds of scientists and environmental organizations have also signed on to oppose the rule."

Another example is something Siobhan Hughes wrote about in the Wall Street Journal on Monday: "The Bush administration is moving to adopt rules that would loosen pollution controls on power plants, by judging the plants on their hourly rate of emissions rather than their total annual output, people familiar with the matter said. . . .

"As long as a power plant's hourly emissions stay at or below the plant's historical maximum, the plant would be treated as if it were running more cleanly, even if its total annual emissions increased as plant operators stepped up operations."

From the Archives

I've been calling attention to yet more examples of the Bush administration's midnight rule-making for the past several months. For instance, back in May, Juliet Eilperin wrote in The Washington Post: "The Bush administration is on the verge of implementing new air quality rules that will make it easier to build power plants near national parks and wilderness areas."

Carol D. Leonnig wrote in The Washington Post in July: "Political appointees at the Department of Labor are moving with unusual speed to push through in the final months of the Bush administration a rule making it tougher to regulate workers' on-the-job exposure to chemicals and toxins."

Alicia Mundy wrote in the Wall Street Journal two weeks ago: "Bush administration officials, in their last weeks in office, are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states."

And of course there's the push for a last-minute regulatory overhaul that would effectively gut the Endangered Species Act.

Juliet Eilperin wrote in The Washington Post in August that the new rules would "allow federal agencies to decide whether protected species would be imperiled by agency projects, eliminating the independent scientific reviews that have been required for more than three decades."

Dina Cappiello wrote for the Associated Press just 10 days ago that Interior Department officials were rushing so hard to ease the endangered species rules before Bush leaves office that they were "attempting to review 200,000 comments from the public in just 32 hours."

And on Monday, Cappiello reported that -- surprise! -- the administration had concluded "that changes it wants to make to endangered species rules before President Bush leaves office will have no significant environmental consequences."

And yet another one to add to the list. In today's Post, Juliet Eilperin writes: "The federal Bureau of Land Management is reviving plans to sell oil and gas leases in pristine wilderness areas in eastern Utah that have long been protected from development, according to a notice posted this week on the agency's Web site.

"The proposed sale, which includes famous areas in the Nine Mile Canyon region, would take place Dec. 19, a month before President Bush leaves office."

Tip of the Iceberg?

Keep in mind that rule-making is by definition a public process. So what else is going on, beneath the surface? I raised a slew of questions in that vein for NiemanWatchdog.org back in June. Among them:

• Are major contracts being let out that have long-term ramifications? And are any of those related to outsourcing?

• Are appointees in federal agencies trying to cover their tracks? Are documents being properly retained?

• Are Bush political appointees working on last-minute reorganizations within the federal government?

• Are Bush loyalists burrowing into the civil service? Will political appointees engage in a last-minute flurry of hiring and promoting Bush loyalists into key civil service jobs? Will political appointees try to make the jump into the civil service?
  

posted October 31, 2008 10:04 PM            

The Bush administration is trying to push through a wave of new regulations despite a promise by the White House to ban last-ditch rule-making in the waning days of the presidency, say watchdog groups and experts.

Every administration tries to pass last minute rules in hopes of leaving a lasting mark. But experts say the Bush administration is expected to approve a greater number more quickly than previous administrations  something they said could lead to bad and costly policy.

"The administration wants to leave a legacy," said Gary Bass, executive director of OMB Watch, which has been critical of these proposals. "But across the board it means less protection for the public."

The proposed regulations are of particular concern to watchdog groups who say they could hurt public safety, the environment and consumers.

Among the newest proposed regulations, according to OMB Watch:

Permit health care professionals at federally funded institutions to opt out of providing abortion and sterilization if such processes create "a problem of conscience for the provider." Women's groups have attacked this proposals as a way to limit access to abortions.

Require drug testing for miners. Critics have questioned why this would be a priority given the high safety concerns associated with mining facilities.

Change how occupational safety agencies calculate job-risk for miners, despite opposition from health and safety groups, which said it would "undermine" health rules.

Allow Interior Department officials to approve development projects without full consulting federal wildlife and habitat scientists on the impact on endangered species.

Ease rules for police on allowing them to launch criminal intelligence investigation if the target is suspected of links to terrorism. Proponents say it brings policy in line with current process but critics say it infringes on first amendment rights.

"It's safe to say that these regulations are designed to serve regulated industry and the conservative agenda," said Bass.

Another key concern with the last-minute up tick in rule making is that agencies have less time to reviewing regulations. (One study found that the volume of regulations in an outgoing administration's final quarter-year were 17 percent higher than the number in non-elections years.)

"The real problem is that you have this massive inflow of regulations and yet the checks and balances and the people who do the checks are still the same," said Veronique de Rugy, a research fellow at the Mercatus Center at George Mason University and has studied so-called midnight regulations in past administrations. "Hence all the regulations that are coming through are not given proper oversight."

Already, some proposed regulations have seen the public comment period drop from the traditional 60 days to just over 30 days. A spokesperson for the Office of Management and Budget noted in an email response that publicly available statistics show that the average review period has not gone down and said public comment periods were determined by each agency.

It wasn't supposed to be this way. In May, Josh Bolten, then-head of the Office of Management and Budget, which oversees regulatory approval, issued a memo barring new proposals after June. It also required that all new regulations be completed by Nov. 1.

That hasn't been the case. Many proposed regulations have yet to be finalized and new ones have already come out since the June deadline.

A spokesperson for OMB said in an email response that the Bolten memo "wasn't intended to wholesale shut down work on important regulatory matters after November 1st, but to emphasize due diligence."

She added: "Ensuring the integrity of the process is important to the Administration."

If the regulations go through, there may be little anyone can do to change them in the short term, experts say. A new administration could get Congress to overturn, but that has rarely succeeded and can be vetoed by the president. A new administration could also restart a new regulatory process to change back the rules, but that is a lengthy process. Or it could ask the court to stop regulations, but historically they have limited jurisdiction to intervene.

Either way, says de Rugy, "whether you think regulations are good or bad, one of the things we should all agree upon is that the process they have to go through is open and that it is rigorous and protects tax payers from bad regulations."