EPA appears to face growing difficulty finalizing several last-minute “midnight” regulations that would ease industry requirements amid threats from a diverse coalition of environmental and deregulatory proponents that they will use legal, congressional and executive tools to overturn them.
The EPA measures that have run into hurdles are discretionary rulemakings -- those that EPA is undertaking without legislative or court-ordered deadlines. For example, EPA is reconsidering the scope of its rule to exempt concentrated animal feeding operations (CAFOs) from reporting air emissions under Superfund law due to political opposition from Democrats and concerns from the Government Accountability Office (GAO).
EPA is also extending the comment period on its controversial decision not to regulate the rocket fuel component perchlorate in drinking water due to concerns from its scientific advisors and environmentalists; an agency rule making it easier to burn hazardous waste as fuel is stalled in White House Office of Management & Budget (OMB) review; the agency withdrew a separate rule easing waste management requirements for industrial wipes and towels; and internal EPA conflict may be making it more difficult for the agency to finalize an air rule that critics say would weaken the agency’s new source review (NSR) program.
One environmentalist also says there are rumors of a growing backlog at the Federal Register, which could pose yet another obstacle, since rules must be published in the register in order to be considered final.
The push to finalize the so-called midnight regulations is prompting strong criticism from a wide array of groups -- including liberal environmental and conservative anti-regulatory groups that otherwise rarely align on the same issues -- that may be adding to the difficulty EPA faces in completing the various regulations.
The coalition -- including Environmental Defense Fund, National Wildlife Federation and Competitive Enterprise Institute (CEI) -- sent an Oct. 31 letter to President Bush calling on him to halt all pending rulemakings. The letter called on Bush to refrain from issuing last-minute regulations that might allow “unfavorable, controversial policies” to be codified without following proper regulatory procedure.
The critics noted that in June, White House Chief of Staff Josh Bolton issued a memo that all final rules should be issued by Nov. 1. Sources say the deadline was an effort by the Bush administration to ensure that the rules become effective before the end of the administration, a move that would likely complicate congressional efforts to reverse them under the Congressional Review Act (CRA) or efforts by the next administration to block them.
But critics, including deregulatory critics, say the administration is plowing ahead with its efforts, prompting consideration of a broad lobbying effort to urge Congress to pass an omnibus measure under the CRA to reverse scores of regulations issued by EPA and other agencies in the final days of the administration.
“They’re pushing like hell to get [rules] out” in the wake of the election, says a source with the Center for Regulatory Effectiveness, despite the memo earlier this year from Bolton vowing to complete most major rules by Nov. 1. “They’re gaming the system.”
The source says the critics of midnight regulations are proposing an omnibus measure that would batch all of the in-effect regulations together for the next Congress to reverse, rather than having Congress dealing with the regulations one at a time. “This would be a systemic change” from past efforts, the source says.
House Speaker Nancy Pelosi (D-CA) has already signaled concerns with midnight regulations from multiple agencies, including EPA (Inside EPA, Nov. 7).
Further, the fate of any last-minute discretionary rules could be in serious doubt once President-elect Barack Obama takes office. Obama’s transition team is said to be compiling a list of hundreds of Bush executive orders and last-minute rulemakings that the next president would have power to immediately overturn (see related stories).
Public Employees for Environmental Responsibility, the environmental group representing EPA and other agency officials, in a Nov. 10 press release even urged Congress to take the unusual step of closing the Federal Register in order to stop the Bush administration from being able to publish midnight regulations. Relevant documents are available on InsideEPA.com.
Despite the growing opposition, EPA is plowing ahead with the rules but in some cases facing difficulties. Industry sources said recently that EPA appears to be grappling with the scope of its proposed rule that would exempt CAFOs from reporting ammonia and hydrogen sulfide releases under the Superfund law, apparently due to political concerns. Rep. John Dingell (D-MI), chairman of the Energy & Commerce Committee, and other critics of the exemption are urging EPA to delay issuing the rule.
EPA has also decided to extend to comment period on its highly controversial preliminary decision not to regulate the chemical perchlorate under the Safe Drinking Water Act. The agency extended the comment period for 15 days, until Nov. 28, after activists and the agency’s science advisors questioned the science behind the agency’s decision (see related story).
Despite the extension, EPA water chief Ben Grumbles said Nov. 12 the agency still plans to issue the waiver by mid- to late-December.
The agency is also backing away from a proposal to modify waste management requirements for solvent-contaminated industrial wipes and towels, despite indications as recently as August that the agency was attempting to advance the regulation before the Bush administration leaves office.
And EPA’s so-called comparable fuels rule, which would increase the number of hazardous wastes that can be burned as fuel without being subject to Resource Conservation & Recovery Act rules, is stalled at OMB. The rule arrived at the White House on June 26, and EPA officials as recently as late September said the final rule was imminent.
However, OMB has extended review of the rule, indicating that the rule missed the normal deadline for clearing the White House and faces an uncertain future.
A controversial rule that would ease emission calculations for power plants by allowing facilities to use an hourly emissions average under EPA’s NSR program may also be in limbo. According to OMB’s Web site, the rule has not yet gone to OMB for review. The rule likely generated a great deal of controversy within the agency, according to the environmentalist source, who says that EPA was still writing the rule very recently.
EPA is also struggling to complete a controversial proposal for assessing the greenhouse gas (GHG) impacts of renewable fuels (see related story).
Former EPA Administrator Carol Browner recommended Nov. 12 that the next administration develop a proposal that accounts for the GHG impacts of indirect land use changes if the Bush administration does not complete the rule.
Sources say that although EPA seems to have missed the Nov. 1 deadline for several important rules, the drop-dead date for many regulations is actually Nov. 20. The White House memo allowed for some wiggle room, and as long as the rules are published by the 20th they will clear a 60-day congressional review period, sources say. Some rules will only require a 30-day review period, so the deadline for some rules could be as late as Dec. 20.
EPA’s substantive problems with several pending rules come amid broader threats from activists, Congress, and President-elect Obama to reverse regulations issued in the final hours of the Bush Administration. Obama could reverse any regulation that hasn’t become final, or Congress could revoke any rule that hasn’t completed its congressional review period, sources say.
There are a range of options to halt last-minute regulations -- even if they have completed congressional review, the environmentalist says. For example, the president could issue an administrative stay of the effective date for rules, and under the Clean Air Act, rules can be stayed for up to 90 days, the source says.
Groups that are opposed to a rule could file a petition for reconsideration of the regulation, which could open the door for EPA to change course on the rule, the source says. Or groups could file a lawsuit against a rule, allowing the administration to settle the lawsuit or accept a voluntary remand of the rule, the source says.
Obama’s transition team is already highlighting the types of rules the president-elect is eyeing to reverse. For example, John Podesta, president of the Center for American Progress and the co-chair of Obama’s transition team, told Fox News Nov. 9 that Obama planned to rescind a controversial Bush administration order that requires EPA and other agencies to have a politically appointed “regulatory policy officer” involved in the rulemaking process.
A CEI source says Obama would also likely want to change course on the five-year plan for oil and gas leasing on the outer continental shelf, which the Minerals Management Service began updating after Bush and Congress lifted the moratorium on offshore drilling.
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