Dems eye reversal of midnight regulations instituted by Bush

Erika Lovley and Ryan Grim / Politico.com
Congressional Democrats are eyeing a little-known, Clinton-era law as a way to reverse Bush administration midnight regulations -- even ones that have already taken effect.

It's a move that would undermine the White House's attempt to finalize its energy and environmental regulations by November so that Barack Obama couldn't undo them after he's sworn in as the 44th president on Jan. 20.

Last May, White House chief of staff Joshua Bolten instructed federal agency heads to make sure any new regulations were finalized by Nov. 1. The memo didn't spell it out, but the thinking behind the directive was obvious. As Myron Ebell of the conservative Competitive Enterprise Institute put it: "We're not going to make the same mistakes the Clinton administration did."

President Clinton finalized regulations within 60 days of the 2001 inauguration, meaning Bush could come in and easily reverse them.

It could take Obama years to undo climate rules finalized more than 60 days before he takes office -- the advantage the White House sought by getting them done by Nov. 1. But that strategy doesn't account for the Congressional Review Act of 1996.

The law contains a clause determining that any regulation finalized within 60 days of congressional adjournment -- Oct. 3, in this case -- is considered to have been legally finalized Jan. 15, 2009. The new Congress then has 60 days to review it and reverse it with a joint resolution that can't be filibustered in the Senate.

In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress.

A senior aide on the Senate Environment and Public Works Committee, which is chaired by Sen. Barbara Boxer, D-Calif., was familiar with the act, acknowledging that it is an option the committee is considering.

House Global Warming Committee Chairman Ed Markey, D-Mass., is also looking at it. "On egregious rule-makings that would have a detrimental effect on energy and environmental policy, (the act) speeds up the process for rescinding the bad rule," Markey spokesman Eben Burnham-Snyder said. "It's something Markey is seriously looking into."

Congress last used the act in 2001 to overturn a Clinton administration rule that set new requirements for ergonomic work spaces.

Targets of the act may include a rule to allow federal agencies to determine on their own whether their policies will threaten endangered species, rather than requiring them to go through the U.S. Fish and Wildlife Service for approval. Regulations opening land in the West to oil shale development and mountaintop removal could also be on the block.

"We are not rushing regulations through at the last minute. We are simply continuing our responsibility of governing until the end of the president's term," White House spokesman Carlton Carroll said.

"As for the Congressional Review Act," he said, "Congress has tools they can use now to overturn regulations, just as they do at all other times, but that doesn't discourage us from continuing our responsibility to govern."

Aides to House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Harry Reid, D-Nev., said that a decision has yet to be made regarding the strategy for dealing with Bush administration regulations.

Even though the act can't be filibustered, legislative lifting is generally more difficult than executive action. "There's a lot that the president can do using his executive authority without waiting for congressional action, and I think we'll see the president do that," John Podesta, who is helping direct Obama's transition team, said on "Fox News Sunday."

Jerry Brito, a senior research fellow at the Mercatus Center at George Mason University, closely follows midnight regulations. He said he would advise the Obama administration to package all of the regulations it wants overturned into one large vehicle to be voted up or down.

"That would solve the collective-action problem, and it solves the pet-project problem. It would sort of limit special pleading," he said, noting that each new regulation benefits someone specific who will fight hard to keep it. Lumping them together dissipates that energy.

The environmental lobby would cheer such a move. "It seems like everyone in the world wants to throw themselves in front of this bus," said Sierra Club lobbyist Dave Hamilton, who added that the organization supports any attempt to derail the Bush rules. "You just (think), 'Haven't you done enough?' "

"If these rules are overturned, the benefits for the environment are potentially significant," said Rick Melberth, director of regulatory policy at OMB Watch, a liberal regulatory watchdog group.

The process could also mean bad news for some businesses, which were hoping that key rules might be beneficial.

"Congress has a historic opportunity to adopt a bipartisan, practical energy policy that would strengthen the security of the United States and its citizens," said Karen Harbert, executive vice president with the U.S. Chamber of Commerce's Institute for 21st Century Energy.

"At the end of the day, lawmakers have a responsibility to lead the nation to a more secure energy future with a comprehensive, commonsense approach, rather than resorting to shortsighted, half-measures of the past."

The new president could overturn rules through the regulatory process, but those rules would be subject to new investigation and comment periods, which could take years to finish.

If Obama is able to overturn a sizable number of Bush's midnight regulations, he would be the first president in recent memory to succeed at such an effort, Brito said.

Clinton managed to repeal 9 percent of President George H.W. Bush's regulations and amend 48 percent of them. The rest remained in place.

President Bush managed to repeal 3 percent of Clinton's regulations and amend 15 percent, Brito said.

Though the Competitive Enterprise Institute's Ebell leans more toward President Bush's more hands-off approach to regulation, he insists that he's supportive of congressional review -- since, under the Constitution, Congress is supposed to be the body that makes the laws.

"This might be the first time I've supported Ed Markey on anything," he said.