‘Midnight regulation’ abounds after June 1 deadline 2

In less than a week, this country will have a new president ... but the old administration will still be hard at work, potentially pushing through last minute regulations for three more months. That leaves plenty of time for more bad news for the environment and public health.

This spring, the White House chief of staff Josh Bolten instructed [PDF] all agencies that June 1 would be the deadline for any changes to regulations past, present, or future unless there are "extraordinary" circumstances. This is a smart measure considering the urge some regulators might get to unleash an avalanche of half-baked rules in their last days in office.

On July 7, reports came out of the Department of Labor of proposed rules relaxing how workplace toxins are regulated.

And on August 15, the Department of the Interior proposed changes to how the Endangered Species Act is implemented that environmentalists have described as "egregious" among other things.

Last time I checked, both those dates occur after June 1. Clearly, it seems not everyone got the chief of staff's memo ... or at least some don't feel it applies to them.

When the Institute for Policy Integrity sent a letter [PDF] asking the administration how these actions square with Bolton's deadline, we received an interesting response [PDF] from current "regulatory czar" Susan Dudley:

"[T]he memorandum was not intended to be a moratorium on proposed regulations, and thus excludes from its terms regulations proposed after June 1, 2008 that are not finalized during this Administration ... It further contemplates some circumstances in which it would be appropriate for individual regulations to proceed without regard to deadlines if approved by OIRA, working closely with the heads of the President's policy councils."

From that language, there are two possibilities: (A) The new regs will not be finalized during the Bush Administration; (B) OIRA thinks that the new rules can be squeezed through the "extraordinary circumstances" loophole.

Given the furious pace at which Bush's people have been glancing at public comments on the ESA rule, it seems like option A is a non-starter. If that is true, then rules will be redefined by OIRA as "extraordinary" with no explanation to the public on how they meet that high standard.

Whether you agree with the proposed new rules, it's hard to argue that this kind of "midnight regulation" is good policy-making. Not only is it unusual for an administration to ignore its own directive, but it's also irresponsible to allow rules to go into effect without the proper explanation or procedure. Without enough time, the proper vetting can't be done: Public comments are cut short; cost-benefit analyses aren't conducted.

I'd like to say the next president can walk into office and void these rules, but once they are adopted, the process to reverse them is long and tedious. The best bet to stop these rules may be an "arbitrary and capricious" challenge in the courts based on the inadequacy of the agencies' justifications -- always a tough row to hoe. Even better would be if the White House stuck to its guns and stopped these regulations before they get out the door.

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