Midnight Deregulation: Environmental Policy at the End of the Administrative
Presidency of George W. Bush
David M. Shafie,...
Abstract
Recent presidential transitions have experienced assertive attempts by outgoing
administrations to cement legacie...
Midnight Deregulation: Environmental Policy at the End of the Administrative
Presidency of George W. Bush
Just before Pres...
Presidential Policymaking
A typical way to conceive of presidential power is the “power to persuade.” This
perspective neg...
Beginning with President Nixon’s creation of the Environmental Protection
Agency (EPA) by executive order, the White House...
promulgated the most economically significant new rules in his last three months: 41.
This is a striking number in the abs...
Anticipating the prospect of unilateral executive action by President Clinton, a
Republican Congress passed the Congressio...
Day, 2009 (13 of 27) concerned pollution control, natural resource management or
energy.
Some key deregulation initiatives...
additional health protection of a 5 ppb standard was not worth the cost. The Clinton
Administration yielded to these argum...
as the mining and wood preserving industries. By the summer of 2001, Congress was
feeling pressure from the public to enac...
deregulatory actions in the interregnum period, and these measured had been planned for
some time.
National Park Air Quali...
reduced visibility in some of the nation’s most-visited national parks, including the Great
Smoky Mountains National Recre...
proposed plant sites. Critics immediately countered that the change would obscure
pollution spikes as well as blur the mon...
not wish to impose a “midnight regulation” upon the incoming Obama Administration.
Referencing Chief of Staff Bolten’s May...
of rivers and streams. The OSM could grant waivers, but only if a mining operation
would not adversely affect water qualit...
The rule, finalized by the Bush Department of Interior in December 2008,
preserves the 100-foot buffer but explicitly exem...
The incredulous reaction is understandable. The Department of Labor had not disclosed
that the rule was under development ...
in the year. The first of these requests had been made in writing July 10, two days after
the blog post sounded the alarm....
workers during the entire Bush presidency. Well before the rule was proposed, there
already had been rumors of a “secret r...
major acts of regulation (and deregulation) take place without the opportunities for
democratic deliberation envisioned by...
Works Cited
Andrews, Richard N. L. 2005. “Risk-Based Decisionmaking” in Environmental Policy,
edited by Norman J. Vig and ...
21
Leonnig, Carol D. 2008a. “U.S. Rushes to Change Workplace Toxin Rules.” Washington
Post. (July 23):A1.
Leonnig, Carol D...
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Evaluating the George W Bush Presidency 2009 Conference

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  1. 1. Midnight Deregulation: Environmental Policy at the End of the Administrative Presidency of George W. Bush David M. Shafie, Chapman University shafie@chapman.edu “Evaluating the George W. Bush Presidency” July 29-August 1, 2009 Hilo, HI DRAFT – Do not cite without permission
  2. 2. Abstract Recent presidential transitions have experienced assertive attempts by outgoing administrations to cement legacies through 11th -hour regulations. President Carter issued last-minute rules that frustrated the incoming Reagan Administration, and the Clinton Administration was forced to contend with regulations enacted late in the Bush presidency. This paper examines three instances of rulemaking by George W. Bush as the administration prepared to leave office. Those initiatives were proposed to deregulate strip mining in Appalachian valleys and to ease restrictions on air pollution in national parks. A third proposal was intended to change risk assessment procedures making it easier for employers to challenge restrictions on toxic chemicals in the workplace. In all three cases, the Bush Administration delayed the rulemaking until very late in its second term, but quickly finalized all three proposals before the Obama Administration to overturn them. 1
  3. 3. Midnight Deregulation: Environmental Policy at the End of the Administrative Presidency of George W. Bush Just before President George W. Bush’s inauguration, his chief of staff-designate, Andrew Card, complained that the outgoing Clinton Administration unfairly issued a large number of regulations during its final months before the transition. The midnight regulation phenomenon was not unknown to Andrew Card. Just eight years earlier, as Secretary of Transportation in Bush’s father’s administration, he raced to enact a last- minute rule to loosen restrictions on the number of hours that truck drivers could spend on the road without rest. It was one of several eleventh-hour rules that the Senior Bush Administration finalized before President Clinton’s inauguration. Clinton called for a review of new rules on his first day in office, but there was little he could do to overturn them once the agencies had finalized them. Last-minute regulations are nothing new. However, recent presidential transitions have featured an increase in the volume of eleventh-hour rules as outgoing presidents seek to cement their legacies. The final weeks of the Carter Administration saw a 40 percent increase in the number of final rules issued, compared to the last quarter of his previous three years in office (Cochran, 2001). Bush finalized 90 between Election Day 2008 and Inauguration Day. Less than eight years earlier, he criticized the eleventh-hour administrative actions taken by President Clinton, including the new standards for arsenic in drinking water, ergonomic rules for workers and a ban on road building in national forests (Warber, 2006). 2
  4. 4. Presidential Policymaking A typical way to conceive of presidential power is the “power to persuade.” This perspective neglects the powers that the president can exercise without securing the support—or even the attention—of Congress. Starting with Nixon, whose relations with Congress soured over the Vietnam War, presidents have increased their reliance on administrative tools to affect policy change unilaterally (Nathan, 1983). The president can enact some policies unilaterally though the administrative process with such tools as the budgeting and appointment powers. Executive orders, which are justified under the implied powers doctrine, have been used as strategic tools for presidents to advance their domestic agendas (Warber, 2006). The unilateral use of such administrative tools has contributed to an expansion of presidential power (Mayer, 2001). Another perspective stresses the independence of federal agencies. Since only a small fraction of agency officials are political appointees—and the rest are civil service employees that remain in their jobs after the change of administration—the bureaucracy is somewhat insulated from political manipulation. Therefore, the term "chief executive" is really a misnomer, since there's no way that one person can keep track of the actions of every federal agency (Rose, 1991). Even if presidents have limited capacity for unilateral action, there are certain times (i.e. late in a lame-duck presidency or following an election defeat) when influence over Congress wanes. At these times, presidents might be expected to rely upon their leverage over administrative agencies to advance their policy goals since they have so few policy instruments at their disposal. 3
  5. 5. Beginning with President Nixon’s creation of the Environmental Protection Agency (EPA) by executive order, the White House has always been at center stage in environmental policymaking. However, there has been a shift in the balance of power between the branches of government ever since the “environmental decade” of the 1970’s, when Congress enacted seven major statutes, sometimes over veto threats of presidents. The election of President Reagan signaled the shift. Immediately after that historic event, President Carter and a lame-duck Democratic Congress enacted what would become the last of that decade’s environmental laws: Superfund. Equally significant was Carter’s rush to finalize a number of last-minute rule, which prompted his successor to call for a moratorium and review of Carter’s 11th -hour regulations. As president, Reagan embraced the very same executive-centered approach that characterized Carter’s final weeks in office, relying on administrative tools to propel his own agenda on the environment. Interregnum Rulemaking Observers have debated whether the interregnum rulemaking phenomenon represents a normal instrument of the policy process or partisan mischief (Morrow, 2001). The latter view is prominent in the news media’s coverage of presidential transitions (Rosenkrantz and Drajem, 2009). From this perspective, interregnum rulemaking is a form of scorched-earth policymaking that does more to stymie the incoming president than advance the policies of the outgoing one. Some critics of the practice point to its origins in the Carter Administration, when more than 27,000 pages of new regulations were added to the Federal Register. In terms of the number of midnight regulations, the worst offender is Bill Clinton, who promulgated regulations at the end of his presidency. By another measure, the worst offender was George H.W. Bush, whose administration 4
  6. 6. promulgated the most economically significant new rules in his last three months: 41. This is a striking number in the absolute sense, but this was nearly two-thirds of all the economically significant regulations issued by federal agencies during his entire 4-year term. Even Ronald Reagan, who was succeeded by another Republican president, enacted 13 new rules on his way out the door. If the critics are correct, and the examples discussed above were intended as a form of mischief against the successor administration, then George W. Bush represents the most cynical use of interregnum rulemaking. Sharply critical of President Clinton’s midnight rules in 2001, Bush announced the same kind of moratorium and review that his predecessor issued to review his father’s midnight rules. However, Bush was able to reverse many of Clinton’s midnight regulations because they were finalized within 60 days of the inauguration and had not yet taken effect. Early in 2008, Chief of Staff Joshua Bolten announced a ban on midnight rules, instructing all federal agencies that all rulemaking must be final by November 1 (Bolten, 2008). Still, the Bush Administration planned ahead.1 Federal agencies issued 100 final rules in November, December and January; fewer than his predecessor did during the equivalent time period. However, he issued 85 in the two months leading up to the election, which is more than his predecessor did in September and October of 2000. Even though Bush issued fewer last- minute rules than his predecessor--and his father--his administration promulgated a large number of new rules and avoided calling them “midnight” rules by finalizing most of them in the two months before the election. 1 If the White House memo gave the impression that the Bush Administration was not planning any midnight regulations, then a statement from a White House ally suggested otherwise. Politico reported on the Bolten memo: “…the thinking behind the directive was obvious. As Myron Ebell of the Competitive Enterprise Institute put it: ‘We’re not going to make the same mistakes the Clinton Administration did.’” (Quoted in Lovley and Grim, 2008). 5
  7. 7. Anticipating the prospect of unilateral executive action by President Clinton, a Republican Congress passed the Congressional Review Act (CRA) in 1996. The law was meant to discourage outgoing administrations from enacting last-minute regulations by creating a mechanism for Congress to review and overturn rules finalized in the last six months of the outgoing administration’s term (Dudley, 2001). Even though more than 50,000 rules have been submitted since the law was passed, it has been used to repeal a regulation only one time. That occurred in 2001, when Congress used the law to reverse ergonomic standards enacted by OSHA during the final weeks of the Clinton Administration. The volume of last-minute rulemaking by the Clinton and Bush Administrations—and the reluctance of Congress to invoke CRA—suggest that this form of unilateral action has become a normal feature of the policy landscape. The Bush Agenda In keeping with other recent presidents, George W. Bush preferred to use administrative tools to pursue the environmental policy items on his agenda. His 2000 campaign included just two major environmental pledges. What remained was an agenda of deregulation initiatives; much of which had firmed up by Vice President Dick Cheney’s Energy Task Force in 2001. In the area of pollution, the “clear skies” initiative, consisted of several separate deregulatory actions, including the Clean Air Interstate Rule and a loosening of restrictions on New Source Review. A sizeable portion of this agenda was advanced through the strategic use of midnight regulations. As of October 31, 2008, the Office of Information and Regulatory Affairs (OIRA) had 136 rules under review. Twenty-one of them were proposed for the EPA; the largest number for any agency (Copeland, 2008). Nearly half the regulations finalized in the month before Inauguration 6
  8. 8. Day, 2009 (13 of 27) concerned pollution control, natural resource management or energy. Some key deregulation initiatives came at the end of Bush’s second term. The following discussion of three controversial proposals to relax regulations on pollution, natural resources and toxic chemicals illustrates the strategic use of interregnum rulemaking to advance parts of his environmental agenda. First, for some perspective, it is instructive to note the interregnum rulemaking that President Bush faced when he took office. Arsenic A disputed last-minute environmental rule promulgated by the Clinton Administration—and a problematic one for the incoming Bush administration—was the arsenic standard for drinking water that the EPA proposed in June, 2000. By the time the SDWA Amendments of 1986 mandated stricter standards for certain contaminants, controversy over the drinking water standard for arsenic had existed for decades. A 50 ppb standard left over from World War Two was called inadequate by environmentalists. The 1996 SDWA Amendments required the EPA to concentrate on those contaminants that posed the greatest risk to public health. In response, a new 5 ppb standard for Arsenic was proposed in 2000. Water utilities protested the new standard as too strict and costly to implement. Instead, they argued for standard of 10 ppb, a level that would bring the US in line with other industrial nations. The World Health Organization had adopted 10 ppb as the maximum level for drinking water years earlier, as had the European Union and Japan. A stricter standard, they argued, was too burdensome for small communities and that the 7
  9. 9. additional health protection of a 5 ppb standard was not worth the cost. The Clinton Administration yielded to these arguments and approved the 10 ppb standard in a final rule issued during its last week in office. Even prior to his inauguration, President Bush announced his intent to review all federal regulations issued at the end of his predecessor’s term. One of his first actions after assuming office was to suspend a handful of new regulations. This included the new arsenic rule, with the new EPA administrator citing the need for more scientific research and a review of its costs and benefits. Environmentalists and an appalled public put the administration on the defensive over its decision, and a Republican-dominated Congress responded to by passing legislation directing the EPA to implement a strict arsenic standard. Even though a scientific review vindicating the tougher standard was completed later that year, the opposition’s success at delaying the rule by calling for more scientific research, or “paralysis by analysis” was seen as an effective, yet cynical tactic (Andrews, 2005: 225). Critics of the proposed standard sought to reframe the risk from arsenic. Even though opponents succeeded in persuading the Clinton administration to lower the proposed standard from 5 ppb to 10 ppb, they were elated by the Bush administration’s decision to suspend the rule. Key opposition came from those groups charged with implementing the new standard, including the American Water Works Association, a trade group with 57,000 members, the American Water Works Research Foundation, a think tank funded by water utilities, and the National Rural Water Association, which represented more than 20,000 small communities. To a lesser extent, there was some opposition from industries whose wastewater contributed to arsenic contamination, such 8
  10. 10. as the mining and wood preserving industries. By the summer of 2001, Congress was feeling pressure from the public to enact legislation establishing the higher standard for drinking water. When Congressional Republicans began to call for the rule’s reinstatement, the Bush Administration backed down and the EPA announced the Clinton rule would be finalized. Suspending the arsenic standard—like withdrawing from the Kyoto Treaty— probably seemed like a safe move at the time. The administration might have noted the lack of salience of environmental issues, and gambled that the backlash to its decisions would be slight. According to a Pew Center survey from spring 2001, only 20 percent of the public knew about the decision to withdraw the arsenic standard, even though 57 percent said they disagreed with the decision when informed about it. The numbers are similar to public opinion on the Kyoto treaty. Only 20 percent reported that they knew about the administration’s decision to withdraw, but in that case only 47 percent of respondents disagreed with the move when it was explained to them. The arsenic decision was little-known to the public, but unlike Kyoto, it proved to be very unpopular in the aftermath of the move. Had Vice President Albert Gore become president instead of Bush, and the arsenic rule still been finalized before the inauguration, then it would have been Gore’s problem. Either way, the Clinton Administration finalized a rule in its final week that it never would have had to enforce. The arsenic rule and the surrounding controversy was a headache for the Bush Administration and a distraction during its first hundred days. Nonetheless, the experience did not deter Bush from taking very similar actions. As the following examples show, the Bush White House attempted to take significant 9
  11. 11. deregulatory actions in the interregnum period, and these measured had been planned for some time. National Park Air Quality Improving the condition of the national parks was one of candidate Bush’s two environmental promises (the other, a pledge to regulate Carbon Dioxide emissions was quickly abandoned when he turned against the Kyoto Agreement). As president, Bush increased the operating budget of the park system, but other policy initiatives threatened to undermine the parks in other ways.2 Even as the 2008 election neared, environmentalists became alarmed when a rule was proposed that would have increased the amount of air pollution allowed in national parks. The Clean Air Act Amendments of 1977 created a system that designated certain areas of the country that would enjoy a higher level of protection from air pollution. These Class I zones included national parks, national wilderness areas and “other places of scenic and historical value” (Clean Air Act Amendments, 1977). They were to have ambient air quality beyond the standards established in the 1970 law. Rather, their standards were based on Prevention of Significant Deterioration (PSD) meaning that no permits may be granted for new pollution sources or upgrades to existing sources under New Source Review if the emissions increased the pollution in a Class I zone. Many of the open spaces designated as Class I zones are vulnerable to damage from coal-fired power plants. These facilities emit high levels of sulfur dioxide, which kills trees and causes acid rain, nitrogen oxides, which increase smog, and mercury, which accumulates in streams and kills wildlife. However, the most apparent effect is 2 A proposal to allow concealed weapons in national parks developed during his second term was controversial. Some interest groups considered this a way to improve the quality of the parks. The policy was later enacted into law in a compromise bill passed by Congress during the Obama Administration. 10
  12. 12. reduced visibility in some of the nation’s most-visited national parks, including the Great Smoky Mountains National Recreation Area, Yosemite National Park, as well as the Badlands, Great Basin Wind Cave National Monuments. The proposal was to change the way ambient pollution in Class I zones had been measured for more than 30 years. First, it substituted an annual average for the maximum emission level calculated over three hours in a single 24-period. Second, the new metric excluded existing sources that had been granted variances from the total output. An additional change allowed state regulators to select what they considered any “representative time period” for the two most recent years. Then, they would be allowed to calculate emissions on the basis of the selected monitoring period and granted the discretion to use whatever data they considered more reliable. The March, 2008 proposal caught many by surprise, although other regulatory initiatives during the Bush years had a similar goal of easing the restrictions on burning coal. His 2003 “Clear Skies” initiative (later withdrawn) would have weakened the New Source Review program, allowing power generators to replace equipment without meeting the higher emission standards required by law. In 2005, the EPA proposed the Clean Air Interstate Rule, which was designed to reduce emissions from power plants east of the Mississippi but also exempted some of the dirtiest plants from adding pollution controls. The following year, the EPA weakened a proposed rule to reduce particulate matter in national parks. When the rule was proposed, there were 156 Class I zones. The immediate impact would have been permits for 24 new coal-fired power plants upwind from 10 national parks. Virginia’s Shenandoah National Park, alone, was adjacent to six of the 11
  13. 13. proposed plant sites. Critics immediately countered that the change would obscure pollution spikes as well as blur the monitoring process, making it harder to identify the major sources of emissions. The proposal drew fire not only from environmentalists but officials within government. Mark Bunyak, a policy analyst for the National Park Service drew an analogy that became quoted widely after it was circulated by U.S. Representative Henry Waxman. The comment compared the use of averaging emissions over the course of a year in evaluating permit applications to “…allowing a person to average all the variations in his driving speed over (an) entire year to see whether he is complying with the 55-mile-per-hour speed limit (Clayton, 2008). The theme was echoed in a statement from the Washington, DC-based National Parks Conservation Association: It’s like if you’re pulled over by a cop for going 75 miles per hour in a 55-mile an hour zone, and you say, “If you look at how I’ve driven all year, I’ve averaged 55 miles per hour…. It allows you to vastly underestimate the impact of these emissions” (Quoted in Eilperin, 2008a). In the weeks following the November 2008 election, the Washington Post reported that EPA was working to quickly finalize the rule. That month, stories the opposition to the rule by scientists and administrators within the EPA began to surface. The proposal was criticized by nine of the agency’s 10 regional directors, four of whom objected in written comments and five others formally dissented (Eilperin 2008b). In the waning days of the Bush White House, the administration abruptly changed course, despite “…weeks of frantic work trying to complete the rules” (Barringer, 2008). On December 10, 2008, the EPA issued a new release announcing that it was withdrawing the proposal. No explanation was given, except that the administration did 12
  14. 14. not wish to impose a “midnight regulation” upon the incoming Obama Administration. Referencing Chief of Staff Bolten’s May 9 memo, the EPA spokesperson indicated that the White House had said “no new rules should be imposed in the administration’s final days” (Barringer, 2009). Several other rules that the agency had either recently finalized (or continued to develop) during the administration’s final days were not mentioned. Mountaintop Removal Mining The midnight deregulation of strip mining in December, 2008 was the culmination of a process that begun almost as soon as Bush was inaugurated eight years earlier. Loosening restrictions on strip mining was a priority for the incoming administration, even though neither candidate in the 2000 presidential campaign discussed the issue and both barely campaigned in coal country. The coal industry had been under pressure to curb its degradation of Appalachian rivers and streams because of environmentalists who argued that strip mining violated a Reagan-era regulation against mining runoff. A Bush White House offered the industry a sympathetic venue to argue for the regulation’s repeal. The saga dates back to the 1977 Surface Mining Act, which included a mandate to “minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and groundwater systems both during and after surface mining operations and during reclamation” (Surface Mining Control and Reclamation Act, 1977). In order to implement this mandate, the Office of Surface Mining (OSM) developed the buffer zone rule, which it finalized in 1983. The rule prohibited all mining activities within 100 feet 13
  15. 15. of rivers and streams. The OSM could grant waivers, but only if a mining operation would not adversely affect water quality. Appalachian strip mining is often called mountaintop removal mining for the simple reason that coal operators will literally blow a mountain to pieces with explosives to access the valuable low-sulfur that lies deep in the ground beneath the mountain range. The practice is considered safer than traditional mining techniques because there are fewer deaths from accidents and mine collapses, but it only requires a small number of workers with explosives and a few days to completely pulverize a mountain. Once the surface vegetation is clear-cut and the charges are detonated, the dirt and rock fill neighboring streams and gullies. Rock dams are constructed to retain the infill, as well as the coal slurry and other mining wastes. By one estimate, 724 miles of Appalachian streams were buried under strip mining infill between 1985 and 2001 (OSM, 2003) although others have placed the estimate closer to 2000 miles (Kennedy, 2009). The valley fills tend to stay indefinitely, except when floods and dam collapses send toxic mudslides and coal ash rushing into Appalachian streams. For many years, these fills were permitted under the rule because the OSM interpreted its own rule to apply only to the extraction of coal, not the waste produced from the blast. After a number of accidents, Appalachian residents of these downstream communities began to challenge these waivers in the 1990s. The movement scored a victory in 1999, when U.S. District Judge Charles Haden ruled that the buffer zone rule applied to valley fills. The ruling was later overturned on appeal, but the coal industry saw the Bush White House as a friendly place to ask for a change in the rule. 14
  16. 16. The rule, finalized by the Bush Department of Interior in December 2008, preserves the 100-foot buffer but explicitly exempts valley fills from the buffer zone. This includes slurry impoundments and other waste dumps. By listing the final rule before the end of 2008, the Bush Administration made it nearly impossible for the Obama Administration to reverse the rule without initiating an entirely new rulemaking process. Incoming Interior Secretary Ken Salazar announced his intent to overturn the rule, but his only recourse was to file a lawsuit in U.S. District Court to reject the rule (Hughes, 2009). Workplace Toxics For better or worse, the responsibility for regulating toxic substances in occupational settings has been left to the Department of Labor and its agency entrusted with protecting workers, the Occupational Safety and Health Administration (OSHA). For the first seven and a half years of the Bush presidency, OSHA was quiet. During that time, the agency issued just one significant health rule, a court-ordered standard for exposure to chromium-6. This is why few suspected OSHA to initiate a major regulatory action so close to the end of Bush’s second term. Rumors that OSHA was developing a “secret rule” began in summer of 2008. A public health researcher posted on a blog that the OMB was reviewing a “mysterious draft proposal:” I found the most curious item on OMB OIRA’s webpage today, and my paranoia about end-of-the-term mischief by the Bush Administration kicked into high gear. The item is listed as a proposal rule submitted to OIRA for review on July 7… Could this be OIRA’s Susan Dudley teaming up with Labor Secretary Chao for a last-ditch effort to impose their anti-worker, anti-public health philosophy on OSHA and MSHA rulemaking on health hazards (Monforton, 2008)? 15
  17. 17. The incredulous reaction is understandable. The Department of Labor had not disclosed that the rule was under development in the Unified Agenda the previous December or May, as required by law. Its existence was not confirmed publicly until reported in the Washington Post two weeks later, when the department acknowledged it was fast- tracking a new rule (Leonnig, 2008a). A Labor Department official explained the lapse by saying that they had not disclosed the rule change “because they were uncertain until recently whether they wanted to follow through and pursue a regulation” (Leonnig, 2008a: A1). The proposal was not made public until a Notice of Proposed Rulemaking appeared in the Federal Register August 29. It essentially made it more difficult to control toxic chemicals in the workplace by altering the risk assessment practices used to estimate how much exposure would be considered unsafe. It changed the established assumption that workers stay in the same job for 45 years and recommended the use of industry-specific data about the number of years workers stay with the same employer (Leonnig, 2008b). The proposal added a step to the standard-setting process, requiring OSHA to allow a new round of challenges to risk assessments on the basis of these estimates. By the time the proposal was released, unions, environmental groups and several members of Congress had already called for its withdrawal. Senator Edward Kennedy and Representative George Miller, both of whom chaired committees with oversight in the areas of environment and labor, protested that they had been refused documents related to meetings and communications regarding the development of the proposal, as well as a study by Duke University medical researchers OSHA had commissioned earlier 16
  18. 18. in the year. The first of these requests had been made in writing July 10, two days after the blog post sounded the alarm. After being rebuffed, Miller submitted a subsequent letter with a more severe tone: This secret regulation is an attempt by the Bush Administration and the Business community to fundamentally weaken the scientific process for enacting new regulations that protect American workers (Miller, 2008). Since the Notice of Proposed Rulemaking appeared at the end of August, the 60-day public comment period only spanned the two month interval between the Republican National Convention and the General Election. In September, Senator Barack Obama requested in writing that Labor Secretary Elaine Chao make the results of the Duke study public (Obama, 2009). His letter also included a request that the comment period be extended 30 days past the October closing date. The comment period was not extended, and the proposal continued on the fast track. By the time incoming Hilda Solis was confirmed as Labor Secretary in 2009, OSHA continued to make progress toward issuing a final rule, despite the new administration’s disapproval. Discussion In all three highly controversial cases of last-minute deregulation, there is evidence that the Bush Administration had planned the rulemaking well in advance. Easing surface mining regulations is something that the mining industry had sought since the 2000 campaign, and loosening the restrictions on air pollution in national parks had been identified as a priority ever since Vice President Cheney convened his energy task force in 2001. The Department of Labor’s proposal to change risk assessment procedures caught many off guard, but OSHA had been reluctant to create new rules to protect 17
  19. 19. workers during the entire Bush presidency. Well before the rule was proposed, there already had been rumors of a “secret rule,” for which OSHA had already commissioned a study. Since the rules had been planned so far in advance, the timing of the proposals may have been a deliberate part of the administration’s strategy. In only one case did an agency choose to withdraw a rule after it was proposed. In the other two cases, it is unlikely that the final rules can be changed be unless an act of Congress reverses them, or the Obama Administration initiates an entirely new rulemaking process. In the lone exception where a proposal was withdrawn, the EPA claimed it was abiding by the White House directive against midnight rulemaking, even as more than 30 proposed rules moved forward. One alternative explanation, that the EPA suspected that the air pollution rule might not withstand a legal challenge, seems unlikely because a court challenge could have negated the rule with or without a final action. Conclusion The Bush Administration’s 11th -hour actions illustrate the central role of the federal bureaucracy in environmental policymaking. While this case is only a preliminary study, the incentives and actions of the outgoing administration are probably not unique among modern presidential administrations. Future research on presidents’ strategic use of administrative tools to advance environmental goals may confirm the generalizations about the Bush presidency. Moreover, a continued focus on last-minute rulemaking illuminates a little- understood consequence of bureaucratic policymaking. As more environmental policymaking occurs in the administrative arena, rather than in the legislative arena, 18
  20. 20. major acts of regulation (and deregulation) take place without the opportunities for democratic deliberation envisioned by the framers of the Constitution. Like other recent elections, the election of 2008 was followed by bureaucratic policy changes in the opposite direction expressed by the will of the voters. 19
  21. 21. Works Cited Andrews, Richard N. L. 2005. “Risk-Based Decisionmaking” in Environmental Policy, edited by Norman J. Vig and Michael E. Kraft. Washington, DC: Congressional Quarterly. Barringer, Felicity 2008. “Effort to Relax Pollution Limits is Dropped.” New York Times. (Dec. 11):A34. Bolten, Joshua H., 2008. “Issuance of Agency Regulations at the End of the Administration.” Memo to Heads of Executive Departments and Agencies. (May 9). <http://ombwatch.org/regs/PDFs/BoltenMemo050908.pdf> Clayton, Mark, 2008. “Why National Parks, Coal-Fired Power Plants May be Neighbors.” Christian Science Monitor. (April 24) p.13. Clean Air Act Amendments of 1977. 1977. Statutes at Large. 91, sec. 95: 653. Cochran, Jay. 2001. “The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters.” Working Paper. Arlington, VA: Mercatus Center, George Mason University. Copeland, Curtis W. 2008. “Midnight Rulemaking: Considerations for Congress and a New Administration.” (Report to Congress, Nov. 24) Washington, DC: Congressional Research Service. Dudley, Susan. 2001. “Reversing Midnight Regulations.” Regulation. v. 1, 9-10. Eilperin, 2008a. “Clean-Air Rules Protecting Parks Set to be Eased.” Washington Post. (May 16):A01. Eilperin, 2008b. “EPA Moves to Ease Air Rules for Parks; Regional Administrators Decry Decision.” Washington Post. (Nov. 19):A06. Howell, William G. and Kenneth R. Mayer 2005. “The Last One Hundred Days.” Presidential Studies Quarterly. 35(3):533-553. Hughes, Siobhan. 2009. “Obama Seeks to Reverse Mountaintop-Mining Rule.” Wall Street Journal. (April 28):A1. Kennedy, Robert F. Jr. 2009. “Hope in the Mountains.” Washington Post. (March 25):A15. 20
  22. 22. 21 Leonnig, Carol D. 2008a. “U.S. Rushes to Change Workplace Toxin Rules.” Washington Post. (July 23):A1. Leonnig, Carol D. 2008b. “Democrats Ask Labor to Forgo ‘Secret Rule.’” Washington Post. (July 24):A3. Mayer, Kenneth R. 2001. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton: Princeton University Press. Lovley, Erika and Ryan Grim. 2008. “Dems Eye Midnight Regulations Reversal.” Politico. (Nov. 12) <http://dyn.politico.com>. Miller, George. 2008. Letter to Elaine Chao, Secretary of Labor. (July 10) <http://edlabor.house.gov/letters/20080710GMChaoLetter.pdf>. Monforton, Celeste. 2008. “Secret Rule on OSHA Risk Assessment?” The Pump Handle. (July 8) <http://www.thepumphandle.worpress.com>. Morrow, William S. Jr. 2001. “Midnight Regulations: Natural Order of Disorderly Governance.” Administrative and Regulatory Law News 26(3):3-19. Nathan, Richard. 1983. The Administrative Presidency. New York: John Wiley and Sons. Obama, Barack. 2009. Letter to Letter to Elaine Chao, Secretary of Labor. (Sep. 17). Rose, Richard. 1991. The Postmodern President, 2nd ed. Chatham, NJ: Chatham House. Rosenkrantz, Holly and Mark Drajem. 2009. “Bush Pushes ‘Midnight Rules’ to Support Companies as Term Ends.” Bloomberg.com. January 8. Surface Mining Control and Reclamation Act. 1977. Statutes at Large. 91, sec. 501: 467. Warber, Adam L. 2006. Executive Orders and the Modern Presidency. Boulder, CO: Lynne Reiner.

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