Michael A. Livermore is the Executive Director of the Institute for Policy Integrity at New York University School of Law. He is the author, with Richard L. Revesz, of Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environmental and Our Health.
Yesterday was technically the last day for the Bush administration to easily push through any last-minute rules—or "midnight regulations"—that would weaken environmental and public health protections. In the past few months, we've seen President Bush propose a number of controversial midnight regulations. He's suggested expanding mountaintop mining, allowing tons of rubble and refuse to be dumped into streams and valleys. He's threatened to significantly weaken Endangered Species Act regulations. He has proposed rules that would allow increased pollution from old power plants. But none of these deregulations have been finalized yet.
Under the Congressional Review Act, major rules must wait sixty days before they are considered final. So, on January 20, Obama could easily reverse any rule Bush did not finalize by November 20. Presumably, Bush would have wanted to take his final shots before the buzzer. But the big day came and went with little activity—only one or two potential disasters, not the torrent that was expected. Does this mean that, contrary to all fears, the Bush Administration will end not with a bang, but with a whimper?
Not necessarily.
Here's the catch: Any rules that Bush officials deem "non-major" are only subject to a 30-day aging process. Non-major rules are usually defined as regulations with an annual effect on the economy of less than $100 million. Many of the environmental rules under consideration do not easily fit into this category—it's hard to imagine any deregulation that makes it easier to blow up the tops of mountains as not reaching that threshold. But Bush officials may be willing to shoehorn their regs into the definition anyway. The proposed rules on the Endangered Species Act, mountaintop mining, and grandfathered coal-burning plants are all reportedly in final drafts and ready to go soon.
If they do take this route, there are a couple of ways Congress and the Obama administration could overturn these last-minute regulations, but none of them will be easy. Opponents could challenge the "non-major" classification, forcing courts to determine the scope of the judicial power to review agency actions under the Congressional Review Act. Alternatively, Obama could try to re-categorize the rule as "major" and then disqualify it under the original 60-day deadline. But litigants who would benefit from Bush's handouts could come forward and challenge Obama's actions under the Administrative Procedure Act, which limits the power of the president and agencies to change regulations without going through a lengthy formal process. Meanwhile, Congress could step in, either attempting to use its powers under the Congressional Review Act to disqualify Bush's rule, or by passing new laws that would prospectively reverse the rules. But all of these options would take up valuable time, at precisely the moment that the government has many other major issues to tangle with, not least fixing the economy.
The modus operandi of the Bush administration's agencies has been to ignore both science and economics in favor of an antiregulatory agenda. A new report released by the Institute for Policy Integrity, The Price of Neglect: The Hidden Environmental and Public Health Costs of Bad Economics documents how, on issues like workplace safety, clean air, and global climate change, the Bush Administration has weakened various protections despite evidence from scientists and economists that more regulation was necessary. It will be important for the Obama administration to learn the right lessons from Bush's failures. Bush came into office ostensibly committed to using economic analysis to craft to "smarter" regulation. Instead, we have seen the Administration ignore and twist economics to produce a paralyzed regulatory system with inadequate protections across the board. The lesson to learn is not that the Bush Administration used too much economics when setting policy, but that it didn't use nearly enough.
--Michael A. Livermore