Wednesday, November 12, 2008

Instant Gratification: Undoing the Damage

As reported in

Congressional Democrats are eyeing a little-known, Clinton-era law as a way to reverse Bush administration midnight regulations — even ones that have already taken effect.

It’s a move that would undermine the White House’s attempt to finalize its energy and environmental regulations by November so that Barack Obama couldn’t undo them after he’s sworn in as the 44th president on Jan. 20.

“Fortunately, [the White House] made a mistake,” said a top Senate Democratic aide.

Last May, White House chief of staff Joshua Bolten instructed federal agency heads to make sure any new regulations were finalized by Nov. 1. The memo didn’t spell it out, but the thinking behind the directive was obvious. As Myron Ebell of the conservative Competitive Enterprise Institute put it: “We’re not going to make the same mistakes the Clinton administration did.”

President Bill Clinton finalized regulations within 60 days of the 2001 inauguration, meaning Bush could come in and easily reverse them.

It could take Obama years to undo climate rules finalized more than 60 days before he takes office — the advantage the White House sought by getting them done by Nov. 1. But that strategy doesn’t account for the Congressional Review Act of 1996.

The law contains a clause determining that any regulation finalized within 60 days of congressional adjournment — Oct. 3, in this case — is considered to have been legally finalized on Jan. 15, 2009. The new Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate.

In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress.

Targets of the CRA may include a rule to allow federal agencies to determine on their own whether their policies will threaten endangered species, rather than requiring them to go through the U.S. Fish and Wildlife Service for approval. Regulations opening land in the West to oil shale development and mountaintop removal could also be on the block.

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