Under Obama, Sun Setting on Bush Midnight Rules

The Obama administration continues to reverse policies left by the Bush administration, including many controversial regulations finalized near the end of President Bush's term. Administration officials are employing different strategies with the goal of overturning or significantly altering some of the Bush administration's so-called midnight regulations.

The Interior Department has pushed back against three Bush midnight regulations without undertaking new rulemakings, relying instead on openings Congress and the courts have given it.

Interior Secretary Ken Salazar announced [1] April 28 that the administration would withdraw a December 2008 regulation limiting the role of science in Endangered Species Act decisions. Critics say the rule was designed to make species protection more difficult.

The rule, issued jointly by the departments of Interior and Commerce, allows federal land-use managers to approve projects like infrastructure creation, minerals extraction, or logging without consulting federal habitat managers and biological health experts. Previously, consultation had been required. The rule also forbids global warming from being considered as a factor in species decisions.

Congress gave the Obama administration the authority to withdraw the rule in a FY 2009 spending bill (H.R. 1105 [2]). Without the bill, the administration would have had to undertake a lengthier process, including a public comment period.

In a March 3 memo [3], President Obama instructed Interior and Commerce to review the Bush rule and "determine whether to undertake new rulemaking procedures." In the interim, Obama instructed land-use managers to exercise their discretion in favor of continuing scientific review. As a result, it is unlikely the rule ever had any practical effect.

On April 27, Salazar announced [4] his intent to back away from a Bush midnight rule allowing mountaintop mining operations to dump waste into streams. Calling the rule "legally defective," Salazar said, "I have asked the Department of the Justice to file a pleading in the U.S. District Court requesting that the rule be vacated due to this deficiency and remanded to the Department of the Interior for further action."

Environmentalists applauded the move but emphasized that, without more aggressive enforcement, mountaintop mining waste will continue to degrade waterways and threaten communities. Joan Mulhern, senior legislative counsel for the environmental group Earthjustice, called for [5] "a firm commitment to enforce the law as it applies to mountaintop removal and valley fills," noting that Interior had historically failed to enforce the old regulations.

Interior now awaits the court's decision. The rule was challenged in federal court by two different coalitions of environmental groups.

The third Interior Department rule turned back by the Obama administration had sought to permit the carrying of loaded weapons in national parks. Interior has said [6] that it will accept a judge's decision that sent the rule back to the agency for an assessment of the rule's impact on wildlife. The ban on loaded weapons, first set in 1983, remains in effect.

Other regulatory agencies are reversing Bush midnight regulations more methodically, using traditional notice-and-comment rulemaking.

The Department of Labor published a notice [7] April 21 proposing to withdraw a rule that would have increased reporting requirements for unions. The rule, finished under the Bush administration but not published until Jan. 21, the day after President Obama was sworn in as president, had yet to take effect.

The administration has also proposed [8] withdrawing a November 2008 rule changing services covered by Medicaid. The rule limits the kinds of outpatient services, like vision or dental, Medicaid recipients can access. The Department of Health and Human Services (HHS) is taking comment on the proposed withdrawal from May 6 to June 1. Meanwhile, the Bush rule remains in effect.

Other midnight regulations may be addressed soon:

• The U.S. Environmental Protection Agency (EPA) has asked a federal court to delay a lawsuit over a December 2008 rule that deregulates tons of hazardous waste, allowing it to be burned as fuel instead of disposing of it properly. EPA said [9] it is reconsidering the rule and expects to propose a withdrawal notice in November.
• EPA is also reconsidering a change to the definition of solid waste that critics charge exempts tons of hazardous waste from regulation under the Resource Conservation and Recovery Act, instead allowing the waste to be recycled. EPA will hold a public meeting on the regulation sometime in May.
• HHS proposed [10] March 10 a withdrawal of a regulation giving health care providers the right to refuse services that they believe do not comport with their personal beliefs. Critics say the rule is aimed at limiting access to reproductive health services and information. HHS accepted comment on the withdrawal notice until April 9. A final withdrawal notice is expected soon.

The Bush administration's midnight regulations campaign was more methodical and effective than that of any previous administration. Bush officials pushed to have many rules finalized well before Jan. 20 in order to give those rules time to take effect. By law, agencies must wait at least 30 or 60 days before allowing rules to take effect.

As a result, the Obama administration was unable to quickly or easily undo most Bush-era regulations. Without congressional or judicial intervention, the Obama administration has been left to undertake entirely new rulemakings, an often time-consuming process.

Meanwhile, many Bush rules remain in effect and have yet to be addressed, including rules that ease environmental regulations on factory farms and a rule that allows trucking companies to force drivers to work more hours and longer shifts. For a list of controversial midnight regulations and updates on efforts to overturn them, visit www.ombwatch.org/node/9739 [11].