As The Election Nears, New Rules Are Facing Delays

Editor’s Note:  For more information on Midnight Regulations, please see OIRA Watch here.

WASHINGTON (AP) — When the Obama administration agreed to set the first-ever federal limits on runoff in Florida, environmental groups were pleased. They thought the state’s waters would finally get a break from a nutrient overdose that spawns algae, suffocates rivers, lakes and streams and forms byproducts in drinking water that could make people sick.

Nearly three years later — with a presidential election looming and Florida expected to play a critical role in the outcome — those groups are still waiting. The rules, originally scheduled to take effect in March, now won’t be active until next January, and even then could be replaced altogether by state-drafted regulations.

In fact, a growing number of regulations are being delayed at federal agencies or at the White House. The list includes a rule cracking down on junk food at school bake sales, another banning children from dangerous work on farms and one setting federal standards for disposing toxic ash from coal-fired power plants.

Together, the delays suggest caution by the administration at a time when President Barack Obama is increasingly under attack by Republicans and business groups for pushing regulations that they say will kill jobs or needlessly extend federal power.

“Issuing more regulations now would not help dispel the perception that President Obama’s administration is ‘anti-business,'” said John D. Graham, who from 2001 to 2006 headed the Office of Information and Regulatory Affairs, the White House’s political gatekeeper for new rules. And with unemployment at 8 percent, “the Obama administration knows that more costly burdens on business will not create jobs. Those rules will have to wait until after the election.”

It’s not uncommon for rulemaking to slow during election years “because the White House does not want to create any controversy,” Graham, now dean of Indiana University’s School of Public and Environmental Affairs, wrote in an email to The Associated Press.

Just last week, the EPA announced it would wait until 2013 to issue a regulation aimed at reducing the number of juvenile fish and shellfish that die in power plants’ cooling water intakes and would also tweak a rule requiring new power plants to control mercury and other toxic air pollution. Republicans and industry had charged that both rules would help “kill” coal as an electricity source by helping to shut down older plants and preventing new ones from being built.

“Election-year politics commenced earlier than I have experienced in over two decades of working on these issues,” said Vickie Patton, an attorney with the Environmental Defense Fund, which through litigation has forced the Obama administration to unveil politically sensitive rule changes, such as a stronger standard for soot, before the election.

But it’s difficult to pin down the motives, especially when a rule gets to the White House. “If something sits over there for a year … is it political pressure or is it that they are tinkering with the details? The speculation is not the latter, but none of us really know because the process is so hidden,” said Randy Rabinowitz, director of regulatory policy at OMB Watch.

Asked whether the delays on some rules had political motivations, White House spokesman Clark Stevens said in a statement that “every standard or rule is different, and the process for finalizing a rule and making sure it meets administration priorities is unique.”

In January 2011, Obama issued an order for all federal agencies to get rid of rules that were excessively burdensome, redundant, inconsistent or overlapping. The ax fell on hundreds of regulations, including some to streamline tax forms, let railroad companies pass on installing expensive technology and speed up the visa process for low-risk visitors to the U.S. The administration said the moves would save businesses about $10 billion over five years and spur job growth.

One of the most high-profile reversals was on a pledge to set stricter limits for lung-damaging smog. Obama’s predecessor, George W. Bush, bypassed the advice of independent scientists who said the current standard was too weak. The EPA under Obama had promised to change that, only to have the White House put on the brakes, explaining it was acting to reduce regulatory burdens and uncertainty in a shaky economy.

Other environmental regulations, including a rule to reduce greenhouse gas emissions from refineries and lower the sulfur content in gasoline, are also behind schedule, and top EPA officials have said not to expect them anytime soon.

In the area of worker safety, the Obama administration in 2009 said it would set new standards for combustible dust, calling the current rules “fragmented and incomplete.” A proposal has yet to come out. And another standard to protect workers from cancer-causing and lung-damaging silica has languished at the White House for more than a year.

The pattern is similar for new Agriculture Department nutrition standards for sodas, snacks and other foods sold in public schools outside the regular meal plan. Republicans pilloried the idea that the federal government would do anything it could to restrict school bake sales. The rule has been under review at the White House for months, and was supposed to be ready in June.

The Agriculture Department says it was delayed because Secretary Tom Vilsack had further questions and wanted to make sure the policy was done right.

After industry pressed for more time, the Food and Drug Administration pushed back by six months a rule requiring sunscreen manufacturers to make clear how much protection their lotions and balms really provide.

The retreats have not stopped Republicans from continuing to paint the president as a regulatory zealot.

At a recent campaign appearance in Houston, presidential candidate Mitt Romney said he would work to reverse damage that Obama had done.

“These entrepreneurs are being crushed by high taxation, burdensome regulation, hostile regulators, excessive health care costs and destructive labor policies,” Romney said.

In Florida, industry groups and the state mounted a fierce campaign that charged the nutrient rules would kill the Florida economy. Water bills were stuffed with pamphlets warning of an increase in rates. And letters to Florida’s congressional delegation threatened action in the November elections if the lawmakers supported the EPA’s regulations.

“It was a simple protect-public-health issue,” said David Guest, head of the Florida office of Earthjustice, the lawyer who sued on behalf of environmental groups to force the EPA to set the standards. But Guest said that what started out as a wonky pollution lawsuit has become a fat target for Republicans.

The rules, after two subsequent delays, won’t take effect until next year. And another regulation aimed at protecting coastal waters isn’t expected to be proposed until after voters go to the polls.

Critics of the regulations are hoping for another election-year gift: a decision by the EPA to abandon its requirements, and instead endorse ones drafted by the state.

“It did not hurt that there was an election year coming, and Florida, once again is going to be a competitive state,” said Tom Feeney, president and CEO of the Associated Industries of Florida, one of the groups leading the charge.

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