Many of the ‘midnight regulations’ open wilderness for oil and gas drilling, and loosen environmental safeguards. President Bush has pushed 53 through in three weeks, researchers say

Source of this article – Los Angeles Times, November 21, 2008

As the hour grows late, President Bush, like many chief executives before him, seems to hear the call of the wild.

Honoring a tradition that dates at least to the Reagan administration, Bush is pushing through a bundle of controversial last-minute changes in federal rules – many of them involving the environment, national parks and public lands in the West.

President Clinton used his final weeks and months in office to strengthen a host of environmental rules and lock up federal lands with wilderness and other protective designations. Bush is using the same window of opportunity to open wilderness for oil and gas drilling, and to loosen safeguards for air, water and wildlife.

In recent days, the Bush administration announced new rules to speed oil shale development across 2 million rocky acres in the West. It scheduled an auction for drilling rights alongside three national parks. It has also set in motion processes to finalize major changes in endangered species protection, allow more mining waste to flow into rivers and streams, and exempt factory farms from air pollution reporting.

Researchers who track “midnight regulations” say Bush pushed 53 of them through the federal Office of Information and Regulatory Affairs in the last three weeks, nearly double the pace of Clinton at this point in his final year.

Some of the most controversial rules deal with the environment – a legacy-cementing area where Bush diverges sharply from Clinton and from President-elect Barack Obama.

In the mid-1990s, when Clinton was in the White House, the GOP-controlled Congress established rules designed to rein in late-inning regulatory changes. But the move has had little effect.

Outgoing presidents “have an incentive to push stuff that the next administration won’t be in favor of,” said Veronique de Rugy, a senior fellow at the Mercatus Center at George Mason University who tracks midnight regulations. “It’s your last chance … to extend your influence into the future.”

White House officials say they’ve taken pains to avoid a late-term blitz. Spokesman Tony Fratto said that Bush is keeping roughly the same regulatory pace as last year, and that many rules won’t be enacted because agencies missed a Nov. 1 deadline for final action, set earlier this year by Chief of Staff Joshua Bolten. Bolten’s order allows exceptions for what are considered extraordinary circumstances.

“It’s unprecedented in the history of administrations to try to do something this way, and do it the right way,” Fratto said.

Environmental activists and government watchdogs, on the other hand, say Bush rushed several of the rules to completion so that Obama could not easily overturn them.

Obama can summarily reverse anything not enacted by the time he takes office, a lesson Bush learned by blocking several of Clinton’s last-ditch environmental measures, such as a ban on road-building in national forests.

“The Bush administration is trying to prevent Obama from doing to it what it did to Clinton,” said Matt Madia, a regulatory policy analyst for OMB Watch, a Washington-based watchdog group.

Under federal rules, it takes 60 days to enact an economically “significant” regulation, which carries an estimated impact of $100 million or more. Other regulations take 30 days. Today is the deadline for “significant” regulation, though Fratto calls it “irrelevant to our process.”

The process moved especially quickly in the case of oil shale. In July, the administration proposed rules that would eventually lead to leasing 2 million acres of public land in Colorado, Utah and Wyoming for oil shale extraction, even though serious questions remain about how much power and water – a particularly scarce resource on much of that land – would be needed to make it work.

The rules were finalized this week.

The American Petroleum Institute praised the move as “an integral step” toward increased domestic energy production. “It lays the groundwork, lets investors know what they’re going to face going forward,” said Andy Radford, a senior policy advisor for the institute.

Environmentalists cried foul. Sen. Ken Salazar (D-Colo.) said Bush had “fallen into the trap of allowing political timelines to trump sound policy.”

Activists also accuse Bush of disregarding public comments on a proposal to change how the Endangered Species Act guides federal projects. Currently, federal agencies must check with government species experts before building a dam or paving a road.

Bush would allow the agencies to determine on their own if they were putting protected species in danger. The change would be “absolutely necessary if we’re going to move projects forward,” said William Kovacs, vice president of environment, technology and regulatory affairs at the U.S. Chamber of Commerce.

Opponents say administration officials breezed through 250,000 public comments – most of them criticizing the proposal – in less than a week. “They’ve clearly made a predetermined decision to issue it no matter what the public comments say, which is not what we’re supposed to do in this country,” said Andrew Wetzler, director of the endangered species project at the Natural Resources Defense Council.

The NRDC, the Sierra Club and other groups also oppose several rules not subject to the deadline and likely to be enacted soon, including eased restrictions on mountaintop mining near streams, reduced pollution reporting for large farms and weakened air quality controls near national parks.

If those rules are approved, Obama would need to initiate a potentially cumbersome process to revise them.

“They wouldn’t be able to just put out a notice and just overturn them the next day,” said Karla Raettig, the legislative representative for wildlife conservation for the National Wildlife Federation. A little-used law from the 1990s might allow Congress to overturn many of the regulations.