Bush team pushes for controversial last-minute rules

Smith writes for the Washington Post.

The White House is working to enact an array of federal regulations, many of which would weaken 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 existing 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 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.

White House spokesman Tony Fratto responded that “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 are considered “economically significant” because they would 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.

Although 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, the regulations reflect new interpretations of language in federal laws. In other cases, such as several new counter-terrorism 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 last-minute activity has made this a busy period for lobbyists who fear that industry views will hold less sway after the November elections.

According to the Office of Management and Budget’s regulatory calendar, representatives of the commercial scallop fishing industry came in two weeks ago to urge that proposed catch limits be eased, nearly bumping into National Mining Assn. officials who want to ease 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.

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 Arbuckle, who retired in 2006 after 25 years as a career official at the OMB. “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 paid a heavy price for procrastination. Bush’s team was able to withdraw 254 regulations that covered matters from drug and airline safety to immigration and indoor air pollutants. After further review, many of the proposals were modified to reflect Republican policy ideals or were scrapped altogether.

Seeking to avoid falling victim to the same partisan tactics, White House Chief of Staff Joshua Bolten in May imposed a Nov. 1 government-wide deadline to finish major new Bush administration regulations, “except in extraordinary circumstances.”


That gives officials just weeks to meet an effective Nov. 20 deadline for the publication of economically significant rules, which take 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.

As the deadlines near, the administration has begun to issue regulations of great interest to industry, including, in recent days, a rule that allows the nation’s 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 would ease environmental regulations, according to sources familiar with the administration’s internal 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 industry source, granted anonymity so he could speak candidly about private conversations, said senior administration officials promised to “get the rule done by the end of this month” and that the outcome would be a big improvement over existing regulations.

Two other rules nearing completion would ease limits on pollution from power plants, a major energy industry goal for the last eight years that is strenuously opposed by Democratic lawmakers and environmental groups.


A third rule would allow increased emissions from oil refineries, chemical factories and other plants with complex manufacturing operations.