June 19, 2018
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The Midnight Hour

Presidents for decades have pushed through dozens of rule changes during their final weeks in office. What is stunning about the Bush administration’s “midnight regulations” is how many of them involve weakening of environmental protections, changes that will benefit industry at the expense of public health and land and wildlife protection.

The next Congress, and likely the courts, will be busy next year assessing the extent of the changes, determining which ones should and can be reversed and looking for ways to accomplish this.

The appeal of the last-minute changes, commonly called midnight regulations, is that new regulations with significant economic impact go into effect 60 days after they are published in the Federal Register, a period meant to gather and consider public comment. Smaller rule changes can go into effect 30 days after publication. That means major changes published by Nov. 20 and smaller ones by Dec. 20 will be effective by the day President Bush leaves office.

Industries that believe the Obama administration and a more Democratic Congress will be less sympathetic to their views have filled the Bush administration’s calendar, the Washington Post reported. In a matter of days in October, the paper said, representatives of fishing, mining, biotechnology and shipping interests met with the Office of Management and Budget.

Rule changes in the works or already completed would ease restrictions on mountaintop mining, the practice of removing portions of mountains to get the coal underneath; exempt large farms from water pollution permitting requirements; reclassify thousands of tons of hazardous waste as “fuel” to avoid regulation; and deny additional protections, which might require restrictions on carbon emissions, to polar bears, which were recently declared a threatened species.

Others would allow fisheries rule changes without environmental impact review; loosen the definition of organic products; and make it more difficult for workers to take family and medical leave.

Many of the changes have been under consideration for years, so the last-minute rush is even more egregious, especially in cases when the public comments were strongly opposed to the changes the administration has moved ahead with.

Once the rules take effect, they can usually only be changed through a new rulemaking process, which could take years, time during which pollution, environmental damage and public health risks would increase. Legal challenges could also be mounted, but they, too, would take years and a lot of money.

At minimum, Congress, the Obama administration and interest groups will be busy in coming months sorting through the rule changes to determine which ones should be challenged and, where possible, stopped.

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