Bush Administration Pushing Last-Minute Rollbacks

The Bush administration is trying to finalize several new rules, covering a range of policy issues, before a new administration takes over and despite its own policy directive. The new rules would relax the standards and enforcement of longstanding federal laws, including the Endangered Species Act (ESA).

In a controversial move, Interior Secretary Dirk Kempthorne announced a proposed rule that would change the way government agencies comply with the Endangered Species Act. The proposal would allow officials to approve development projects that could impact endangered species without consulting federal wildlife and habitat scientists.

The Interior Department published the proposed rule in the Federal Register on Aug. 15. But the proposal missed by two and a half months a White House-imposed deadline for Bush-era regulations. A May memo from White House Chief of Staff Joshua Bolten states, "[R]egulations to be finalized in this Administration should be proposed no later than June 1, 2008." All final rules must be completed by Nov. 1 except in extraordinary circumstances, according to the memo. Bolten claimed the deadlines were necessary to avoid the flurry of regulations agencies often hurry through in the final months of an administration.

However, all signs indicate that Interior intends to finalize the proposed ESA changes before President Bush leaves office and is doing so with the blessing of the White House. The Office of Information and Regulatory Affairs (OIRA), the White House office in charge of approving, changing, or rejecting new administration policy, spent only three days reviewing Interior's proposed rule.

The average review time for the 350 proposed rules OIRA has reviewed this year is 65 days. OIRA's average review time for the 12 Interior Department proposals submitted is 71 days.

Kempthorne also announced that Interior officials will accept public comment on the proposal for only 30 days. The standard comment period for proposed rules is 60 days. OMB Watch Executive Director Gary D. Bass said, "The limited 30-day comment period for this important issue suggests the rule is on a fast track for completion before the Bush administration leaves."

Noah Greenwald, science director at the Center for Biological Diversity, said, "Secretary Kempthorne seems determined to establish a legacy of environmental destruction and extinction."

Allowing agencies to bypass expert scientific review for development projects runs counter to long-standing practices required by the ESA. The act requires project managers to request from Interior "information whether any species which is listed or proposed to be listed may be present in the area" where construction will occur. Greenwald said, "[The proposed rule] would allow thousands of projects that harm endangered species to move forward without mitigation."

Another controversial rule that impacts the health of workers is also moving quickly through the regulatory pipeline despite the Bolten memo's requirements. The rule, proposed by the Department of Labor (DOL), would change the way the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) calculate estimates for on-the-job risks. (Read an article about the rule in the Aug. 5 Watcher.)

A draft of the rule was written quickly and without the consultation of occupational health experts inside OSHA and MSHA, Labor Department insiders say. DOL Secretary Elaine Chao's office forwarded the draft to OIRA for the required review period on July 7. OIRA has yet to send the proposed rule back to DOL for publication in the Federal Register.

Scientists and public health experts fear the rule change would downplay the severity of workplace risks, thereby weakening the case for regulation. In a letter sent Aug. 14, 80 doctors, scientists, and public health experts asked Chao to abandon the proposal. The letter said the rule "has serious flaws that would weaken current procedures and undermine occupational health rules" and would add delays to an already lengthy process for writing occupational health rules.

Both proposed rules have drawn criticism from lawmakers. Addressing the ESA rule change, Rep. Nick Rahall (D-WV) told The Washington Post, "Eleventh-hour rulemakings rarely, if ever, lead to good government — this is not the type of legacy this Interior Department should be leaving for future generations." Rahall chairs the House Natural Resources Committee.

Rep. George Miller (D-CA) and Sen. Ted Kennedy (D-MA) were critical of both the negative effects the DOL risk assessment rule change would have and the way Chao's office has handled developing the rule. The two sent a letter to Chao July 10 asking to be briefed on the rule. Miller has introduced a bill that would forbid DOL from finalizing the rule.

A controversial rule that could reduce women's access to birth control also appeared to be in the works in the waning days of the Bush administration. A draft of the rule leaked from the Department of Health and Human Services (HHS) would have, for the first time, classified oral contraception as a form of abortion. The rule, as written in the draft, would have attached strings to federal funds given to health care providers who dispense birth control or perform abortions.

On Aug. 7, HHS Secretary Michael Leavitt claimed he had not seen the draft before it had been leaked to the public. On his blog, he wrote, "It contained words that lead some to conclude my intent is to deal with the subject of contraceptives, somehow defining them as abortion. Not true."

Nonetheless, reproductive rights advocates and lawmakers continue to criticize the rule. The rule has not been sent to OIRA for review, and Leavitt says, "The Department is still contemplating if it will issue a regulation or not."

According to an Aug. 16 Washington Post article, the Department of Justice (DOJ) proposed a rule July 31 that would "make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years." Under the rule, law enforcement agencies would be able to target groups and individuals but there would have to be a "reasonable suspicion" that the target is engaged in criminal activity before collecting information, according to a source in the article. It appears DOJ hopes to finalize the proposed rule before the end of the Bush administration, which would be yet another example of agencies violating the spirit and intent of the Bolten memo.

Increasingly, it appears the Bush administration is trying to solidify a range of policies before it leaves office — the Bolten memo notwithstanding — tying the hands of the next president and bypassing Congress.