Obama Turning Back Clock on Some Bush Midnight Rules

The Obama administration is taking action to reverse controversial regulations finalized in the closing days of the Bush administration, including one affecting endangered species and another limiting access to reproductive health services.

Public interest advocates are hailing the Obama administration's decisions to undo the Bush-era rules, which had been criticized on both substantive and procedural grounds.

Obama issued a memo [1] March 3 calling for the review of a regulation that changed the way the federal government makes decisions about endangered species. Obama instructed the departments of Interior and Commerce (which published the regulation jointly) to review the regulation and "determine whether to undertake new rulemaking procedures."

The rule, published Dec. 16, 2008, allows federal land-use managers to approve projects like infrastructure creation, minerals extraction, or logging without consulting habitat managers and biological health experts responsible for species protection.

Previously, consultation had been required. Now, consultation is at the discretion of the agencies that make decisions on development. The rule went into effect Jan. 15.

In addition to calling for a review of the rule, Obama's memo instructs agencies to ignore the provision of the regulation that allows them to opt out of consultation, rendering that part of the Bush rule toothless. "I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices," the memo says.

Janette Brimmer, an attorney for Earthjustice, which had sued to stop the rule, called [2] the memo "a crucial and positive first step in reinstating protections for endangered species lost through last-minute actions by the Bush administration," adding, "We're heartened that President Obama intends to return wildlife biologists to their rightful role in determining protections for America's plants and animals."

In another move that may reverse one of Bush's so-called midnight regulations, the Department of Health and Human Services (HHS) has indicated it will revise a rule that gives health care providers the right to refuse to provide women with access to or information about reproductive health services, if the provider objects on moral or religious grounds. The rule went into effect Jan. 20.

"We applaud the Obama Administration for its proposal to rescind the provider refusal regulation that took effect on the final day of the Bush Administration," Debra Ness, President of the National Partnership for Women & Families, said in a statement [3].

Both the endangered species rule and the provider conscience rule are among those Bush midnight regulations that are controversial not only for their policy implications but for the process [4] by which they were developed.

The Bush White House reviewed a draft of the proposed provider conscience regulation in only hours, a process usually measured in weeks or months. The proposal was published online by HHS later that same day. As a result, the Equal Employment Opportunity Commission, which enforces regulations prohibiting workplace discrimination on the basis of religion, was not adequately briefed, according to Rep. Henry Waxman [5] (D-CA).

On the endangered species rule, public input was sacrificed. According to the final rule, the administration received approximately 235,000 comments on the proposal. The Associated Press reported [6] that agency officials pressured staff to review all the comments in just one week. One calculation estimated the staff assigned to reviewing comments had to review seven comments per minute to meet the deadline.

The Bush administration pushed those rules and others through the usual rulemaking process in order to ensure they were not only final but in effect. By law, agencies must wait either 30 or 60 days after publication before implementing new regulations.

On Jan. 20, new White House Chief of Staff Rahm Emanuel issued a memo [7] setting out the Obama administration's policy for dealing with other regulations left by the Bush administration. The memo asks agencies to "consider extending for 60 days the effective date" of those regulations that are final but not yet in effect.

For those rules that were both final and in effect, it now appears the Obama administration will adopt a rule-by-rule strategy to make any changes or withdrawals it deems necessary.

Work will remain for the Obama administration until new regulations replace the ones finalized under Bush. While Obama's endangered species memo effectively neuters the Bush-era provision that made consultation optional, it makes no mention of the rule's prohibition on considering the effect of global climate change on species survival. The provision, inserted in the late stages of the rulemaking process, restricts the federal government's ability to protect those species whose habitats are or will be affected by climate change.

Similarly, environmentalists praised Interior Secretary Ken Salazar's decision [8] not to lease land in the West for oil shale development – an environmentally intrusive method of energy extraction, but the regulations that permit leasing, finalized in November 2008, remain on the books.

And while HHS has pledged to revise the provider conscience rule, details have yet to be released. The White House is currently reviewing the revision. Once published, it will be subject to a public comment period, according to The Washington Post [9]. Meanwhile, the rule remains in effect.

Most of the Bush administration's other midnight regulations have gone unaddressed thus far. OMB Watch has identified [10] 27 controversial regulations finalized between Oct. 1, 2008, and Jan. 20, 2009. Of those, the Obama administration has delayed the effective dates of three, pursuant to the Emanuel memo, and has taken other actions on the endangered species, provider conscience, and oil shale rules.