Bush Pushes Flurry of Last-Minute Regulations

November 12, 2008

The Bush administration's full environmental legacy is not yet set in stone. A strong push has been under way for months to finalize rules dealing with a wide array of environmental issues, and many of these likely will be completed in the next two months.

Part of this "midnight regulation" rush — which is typical for many administrations in recent decades — includes rocketing the rules through the public comment period. For instance, a rule modifying the Endangered Species Act has drawn about 300,000 comments, but the public comment period on the draft Environmental Assessment was only 10 days. Typical comment periods tend to run 30 to 60 days or longer.

There are at least two major stimuli behind the ongoing push. One is the need to accommodate the 30- or 60-day periods that are required before a rule goes into effect. That means that these rules need to be finalized by either November 20 or December 20, so they can be in effect by January 20. If these dates aren't met, then the new administration can immediately bar them from taking effect, as the Bush administration did on its first day.

Another stimulus is the desire to make it more difficult for Congress to revoke or revise any of the rules. Provisions of the Congressional Review Act allow Congress to use an expedited process that allows it to overturn a rule it wants to challenge if the rule was approved within a certain time frame near the end of an administration. This process has been used only once, and it requires the new President to concur with the Congressional action. If he vetoes it, a two-thirds majority in both the House and Senate is needed to override a veto.

The cutoff date for this expedited process to be available depends in part on when Congress is last in session in the waning days of an administration. Since this Congress is likely going back into session in November, the exact cutoff date remains uncertain. But it's likely that rules that have already been finalized in early November may not be easily reversed through this process (though there are other procedures that Congress, the President, and people filing lawsuits can use to eventually revamp the rules if they so desire).

For more information on the timing involved, and other critical issues in the presidential transition period — such as the use of Executive Orders, "burrowing in" people by switching them from political appointees to career civil servants, and actions the incoming President may take — see the two Congressional Research Service reports below (which typically are allowed to be hidden from public view, but which some organizations routinely obtain and post):

It's not easy finding the rules being processed during this final rush. However, there are a number of starting points.

OMB Watch, Matthew Madia, 202-683-4813, has posted a list of some of the more controversial rules that it is aware of:

  • "Watching out for Midnight Regulations," REG*WATCH Blog, OMB Watch, Nov. 3, 2008 (in most cases, includes links to the rule itself, and a source for additional information; also, note that some rules listed under categories other than "environment" have relevance to the environment beat).

In some cases, you can spot a proposed rule on the Web site of the agency involved. One example is the revisions to the interagency consulting process that has been part of the Endangered Species Act. A draft Environmental Assessment for this, which trailed the initial release of the proposed rule by more than two months, was released by the US Fish and Wildlife Service and the National Marine Fisheries Service on Oct. 27, 2008:

Another source is concerned members of Congress. One example is Rep. Edward Markey (D-MA), Chairman of the House Select Committee on Energy Independence and Global Warming, who outlines a host of concerns about the expedited process and specific rules in the following documents:

There also is a group representing what are usually strange bedfellows, but who in this case have a common concern about last-minute regulations. Among its members are the Competitive Enterprise Institute (CEI), Republicans for Environmental Protection, the Environmental Defense Fund, and the National Wildlife Federation.

The main conduit through which most rules must flow is the Office of Management and Budget. To find rules it has recently reviewed, or is now reviewing, search by federal agency at:

As just a small example of what can turn up on this site, rules from the Dept. of Interior that were under review as of Nov. 5, 2008, and may be finalized before the Bush administration leaves office, covered topics such as oil shale leasing and operations, firearms in National Parks, dumping of mining waste, and alternative energy and alternate uses of existing facilities on the Outer Continental Shelf. Among DoI rules reviewed in the 30 days prior to Nov. 5 were ones dealing with snowmobile use in Yellowstone National Park, migratory game bird hunting regulations, deep gas and offshore drilling in Alaska, the abandoned mine land program, and rural water supply programs. For each rule, which has the date it was received and the date the review was completed, you can also glean insights into how rapidly OMB is reviewing these rules, compared to the multiple months usually involved.

Another source of information on rules is the federal government's Unified Agenda. This can be laborious to plow through, and even if you find the rule you're looking for, the information posted here may not tell whether it is part of this last-minute rush. But if you know the agency involved, and especially if you know the identification number for the rule that is provided in the Federal Register or that you have obtained elsewhere, this is a good source for some of the basics about a rule:

To find out who OMB acknowledges it is meeting or talking with regarding some rules, check:

Another resource is the Natural Resources Defense Council, which expects to soon post information on its Web site (Eric Young, 202-289-2373, cell 703-217-6814).

Several media outlets have been covering the midnight regulation push, and their stories can be a source of information on issues, people, and organizations involved. Examples include:

For more information on midnight regulations, and many specific rules (some of which are now in their finishing stages), see TipSheets of June 25, 2008; and July 9, 2008.