November 13, 2008

Nicole Colson reports on the Bush administration's beneath-the-radar push to lock in conservative regulatory changes before a new president takes over.

GEORGE W. BUSH may have less than 70 days left in the White House, but it appears he's intent on doing as much damage as possible on his way out the door.

As the New York Times put it in an editorial on Election Day:

President Bush's aides have been scrambling to change rules and regulations on the environment, civil liberties and abortion rights, among others--few for the good. Most presidents put on a last-minute policy stamp, but in Mr. Bush's case, it is more like a wrecking ball. We fear it could take months, or years, for the next president to identify, and then undo all of the damage.

The push is on now because many regulations go into effect 30 to 60 days after they are finalized. If they aren't in effect when the next president takes office, the new president can simply not put them into practice--as Bush did with many rules finalized at the end of the Clinton administration.

But, as Reuters reported:

"If [new regulations] are in effect [when Obama takes office], it will be hard for the next administration to undo them, and in any case, this may not be the top priority for a new president," said Matt Madia of OMB Watch, which monitors the White House Office of Management and Budget, through which these proposed regulations must pass. "This is typical," Madia said of the administration's welter of 11th-hour rules. "It's a natural reaction to knowing that you're almost out of power."

Short of actions taken by the courts and potential lawsuits, the new administration's option would be to restart the rule-making process--which can take a long time to complete.

In preparation for the coming change of power, Bush's chief of staff Joshua Bolten sent a memo to regulatory agencies in May telling them to come up with any proposed rule changes by June in order to have them in place by November. According to the Times, "This, Mr. Bolten explained, was to avoid a mad dash for midnight regulations--those last-minute tweaks to federal rules made in the twilight of a departing administration. Of course, room would be made for 'extraordinary circumstances,' Mr. Bolten wrote."

But according to OMB Watch, "it appears there are a lot of 'extraordinary circumstances' to be found." As the Washington Post reported on October 31:

The new rules would be among the most controversial deregulatory steps of the Bush era and could be difficult for his successor to undo. Some would ease or lift constraints on private industry, including power plants, mines and farms. Those and other regulations would help clear obstacles to some commercial ocean-fishing activities, ease controls on emissions of pollutants that contribute to global warming, relax drinking-water standards and lift a key restriction on mountaintop coal mining... As many as 90 new regulations are in the works, and at least nine of them are considered "economically significant" because they impose costs or promote societal benefits that exceed $100 million annually. They include new rules governing employees who take family- and medical-related leaves, new standards for preventing or containing oil spills and a simplified process for settling real estate transactions... The burst of activity has made this a busy period for lobbyists who fear that industry views will hold less sway after the elections. The doors at the New Executive Office Building have been whirling with corporate officials and advisers pleading for relief or, in many cases, for hastened decision making.

SOME OF these lame-duck regulations have been in the works for months, like those expected to be announced by Michael Leavitt, secretary of Health and Human Services.

Abortion rights advocates have warned since August that Leavitt seemed near to announcing new rules that not only uphold the right of doctors and other health care providers to refuse to perform abortions, but define abortion so broadly that it would also allow health care professionals to opt out of providing basic medical care like prescribing or dispensing contraceptives, including emergency contraception, birth control pills and IUDs.

Leavitt has since claimed that it was simply a misunderstanding. "An early draft of the regulations found its way into public circulation before it had reached my review," he wrote in August. "It contained words that lead some to conclude my intent is to deal with the subject of contraceptives, somehow defining them as abortion. Not true."

However, pro-choice activists are right to remain skeptical. As lawyer and bioethicist R. Alta Charo told the Washington Post, "Until the regulation removes the redefinition of abortion and it clearly states that it deals solely with abortion (and not with any other procedure, nor with any refusals based on the nature of the patient, such as single or gay), I would not be satisfied."

Leavitt claims the new regulation is necessary to "protect" medical providers who wish follow their "consciences in not participating in abortion." But as the New York Times points out, several existing federal laws already uphold the right of medical professionals to refuse to participate in actual abortions.

The changes, say the Times, "would extend the so-called right to refuse to a wide range of health care workers and activities, including abortion referrals, unbiased counseling and provision of birth control pills or emergency contraception, even for rape victims."

ALSO POTENTIALLY devastating are the host of business-friendly environmental rules that the Bush administration looks likely to ram through in the coming weeks.

The New York Times speculates about a number of draconian changes that could be in the works, including dismantling of federal review of the impact of projects on threatened species; a weakening of the Clean Air Act; and a loosening of regulations on the dumping of toxic waste. As the Times notes:

Mr. Bush's secretary of the interior, Dirk Kempthorne, has recently carved out significant exceptions to regulations requiring expert scientific review of any federal project that might harm endangered or threatened species (one consequence will be to relieve the agency of the need to assess the impact of global warming on at-risk species). The department also is rushing to remove the gray wolf from the endangered species list--again. The wolves were re-listed after a federal judge ruled the government had not lived up to its own recovery plan. In coming weeks, we expect the Environmental Protection Agency to issue a final rule that would weaken a program created by the Clean Air Act, which requires utilities to install modern pollution controls when they upgrade their plants to produce more power. The agency is also expected to issue a final rule that would make it easier for coal-fired power plants to locate near national parks in defiance of long-standing congressional mandates to protect air quality in areas of special natural or recreational value. Interior also is awaiting EPA's concurrence on a proposal that would make it easier for mining companies to dump toxic mine wastes in valleys and streams. And while no rules changes are at issue, the interior department also has been rushing to open up millions of acres of pristine federal land to oil and gas exploration.

One proposed Interior Department rule would erode protections for endangered species in favor of mining interests. When the proposal drew more than 300,000 comments from the public, Bush administration officials said they planned to "review" those comments in a week--a blatant move to "rubber stamp" the new rule.

As the Washington Post noted, the proposed environmental regulations are so blatant that even some conservative groups are joining with environmental campaigners in an effort to block them:

Even some free-market organizations have joined conservation groups to urge a moratorium on last-minute rules proposed by the Interior Department and the Environmental Protection Agency, among others. "The Bush administration has had eight years in office and has issued more regulations than any administration in history," said Eli Lehrer of the Competitive Enterprise Institute. "At this point, in the current economic climate, it would be especially harmful to push through ill-considered regulations in the final days of the administration."

There are other giveaways to big business being planned. One comes in the form of a Department of Labor rule on calculating the severity of on-the-job risks, specifically exposure to toxic chemicals. That rule, according to OMB Watch, "sped through Labor Secretary Elaine Chao's office without consultation with occupational health experts in the department. The rule is based largely on a report prepared by an outside consultant paid $349,000 by the department. That report has not been disclosed to the public."

The Bush administration also plans on doing even more damage to civil liberties--after eight years of such attacks. One rule likely to be enacted is a Justice Department plan to allow the FBI to engage in spying on Americans even where there is no evidence of wrongdoing. Under the new regulation, civil liberties expert Juan Cole explained on Salon.com in July, FBI agents can instead:

establish a terrorist profile or pattern of behavior and attributes and, on the basis of that profile, start investigating an individual or group. Agents would be permitted to ask "open-ended questions" concerning the activities of Muslim Americans and Arab-Americans. A person's travel and occupation, as well as race or ethnicity, could be grounds for opening a national security investigation.

As the New York Times points out, one last-minute change that the Bush administration won't be making is to shut down the U.S. prison camp in Guantánamo Bay Cuba, "the most shameful symbol of his administration's disdain for the rule of law."