Report Outlines Obama’s Options in Addressing Bush’s Last-Minute Rules

The report, “After Midnight: The Bush Legacy of Deregulation and What Obama Can Do,” included a list of several dozen of these regulations, including:

• A rule that relaxes enforcement against factory-farm runoff;
• A rule that permits more waste from mountaintop mining to be dumped into waterways;
• A rule that weakens protections and housing standards for agricultural workers;
• A rule allowing truck drivers to drive up to 11 consecutive hours and shortens mandatory rest times between work weeks;
• A rule seemingly designed to protect pharmaceutical companies from being held liable for marketing products they know are unsafe;
• A rule that makes it more difficult for workers to take advantage of the Family and Medical Leave Act; and
• A rule that reclassifies thousands of tons of hazardous waste as fuel, allowing it to be burned instead of sensitively disposed of.

“As a result of these actions, the nation’s air and water are less healthy, consumers and investors are more likely to be defrauded, food and other products are less safe, workers are at greater risk of being injured or killed, and public land is being degraded by rampant mining and drilling,” the report read.

The Obama administration and new Congress are now tasked with addressing these midnight rules. Executive branch agencies can simply stop working on and withdraw proposed rules that have not yet been finalized; alternatively, these rules could be strengthened or changed before they are finalized.

But final rules, the report explains, are a bigger challenge. The new administration has several options to block or undo these regulations:

Suspend the effective dates. Once final rules are published in the Federal Register, they usually take effect within 30 or 60 days. Obama could suspend the effective dates of any final rules that were not in effect by the inauguration, which could provide more time to settle on a different strategy. Many of Bush’s last-minute rules, however, did go into effect by this date.

Conduct new rulemakings. While Obama cannot throw out final regulations, he can begin the process on entirely new rulemakings. This process, however, includes many requirements, is expensive and time-consuming and is subject to judicial challenges.

Seek Court Action. Bush’s midnight regulations could be challenged in federal court; indeed, environmental groups and labor unions have used this tactic to successfully overturn Bush regulations in previous years. But litigation could take years and is not guaranteed a victory. Instead, the Obama administration could settle lawsuits against certain Bush regulations and agree not to enforce them while working to revise or repeal.

Seek Congressional Disapproval. Per the Congressional Review Act (CRA), Congress can vote down Bush rules that were finalized after May 15, 2008. The CRA was used when Bush signed a resolution of disapproval to shut down Clinton’s ergonomics standard. While this method allows Obama to act quickly without subject to judicial challenges, it does not allow multiple rules to be voted on at once. Voting on rules one at a time could be “an unwise distraction” from Obama’s agenda, according to the report.

Withhold appropriations. Congress also could add provisions to appropriations bills that block regulation under development, or withhold funding to prevent final rules from being implemented or enforced. While withholding funding would not be effective for all rules, denying funding for issuing certain permits, for example, could stop rules that open land to mining or drilling.

“As the Obama administration reverses Bush policies, it also must move forward with a positive regulatory agenda that recognizes a fundamental responsibility to protect the public’s health, safety, and general welfare,” the report read. “This will require open and honest assessment of risks, vigorous monitoring and enforcement, and new regulatory protections where there are gaps or where existing protections are not strong enough. The last eight years have left much work to be done.”