Congress Could Halt Bush Midnight Regulations

Congress Could Halt Bush Midnight Regulations

Lame Duck Session May Withhold Funding for Any More Promulgation of Rules

Washington, DC — When it returns for its short, post-election session later this month, the Democratic-controlled Congress could pull the plug on a raft of last minute regulations being prepared by the Bush administration, according to Public Employees for Environmental Responsibility (PEER). By acting now to prevent enactment of the rules, Congress would save itself and the incoming Obama administration substantial time and effort that will later be required to repeal these “midnight regulations” one-by-one.

Despite a directive from White House Chief of Staff Joshua Bolten stating that “Except in extraordinary circumstances…final regulations should be issued no later than November 1, 2008,” on topics ranging from mountain bikes to birth control, federal agencies are rewriting rules with no such finding of extraordinary circumstances. Many of the last-minute proposed regulations concentrate on weakening environmental protections, including, most notably, pending regulations that would –

  • Undermine air pollution standards for cleaning up older, dirty power-plants (New Source Review). Another proposal would relax rules against smog-producing plants obscuring national park vistas;
  • Make it much harder to impose new safeguards protecting workers from harmful occupational exposures; and
  • Eliminate reviews to protect endangered species from ill-considered federal actions.

Beyond the environment, other pending changes would –

  • Broaden the ability of FBI agents to conduct domestic surveillance on citizens;
  • Allow medical providers to refuse contraceptive and other reproductive-related services on religious grounds; and
  • Limit advice that AIDS prevention organizations could give.

These rules are proceeding largely because Congress did not complete its normal budget process, thus forfeiting the means to check lame duck Bush initiatives. Instead of producing detailed appropriations bills, Congress passed a continuing resolution which allows the Bush administration to reshape programs without constraint.

“It makes no sense for Congress to sit back while vitally-needed funds are siphoned off for creating questionable rules that will later take even more time and money to remove from the books,” stated PEER Executive Director Jeff Ruch, noting that teams of civil servants have been assembled to pore over thousands and thousands of public comments (more than 300,000 comments were filed on the Endangered Species Act revisions alone) opposing these rules. “Congress can simply use its power of the purse to end the midnight madness of lame duck regulations.”

Ironically, the last such regulatory freeze on the Federal Register was imposed by President George W. Bush immediately after his inauguration in 2001. In prior sessions, Congress has both inserted riders into omnibus legislation needed to address emerging problems and imposed restraints on the executive branch’s regulatory discretion. During its upcoming lame duck session (Nov. 17-20), the 110th Congress will take up a number of measures that have widespread support which could serve as vehicles for such a move.

“The few ‘good’ rules still pending, such as the creation of a new Pacific marine sanctuary, can certainly wait until after January 20th”, Ruch added. “No one wants the Bush administration to burden the new president with a welter of unwanted rules.”


Look at some of the Bush midnight regulations

View the Bolten memo announcing the November 1 deadline

See the scramble on the Endangered Species Act rule

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