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Approaching the Midnight Hour

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By Dan Froomkin
Special to washingtonpost.com
Thursday, November 20, 2008; 1:14 PM

In May, White House Chief of Staff Josh Bolten issued a memo announcing that, as far as last-minute regulations were concerned, the Bush Administration would take the high road.

Agency heads were instructed to "resist the historical tendency of administrations to increase regulatory activity in their final months." Bolten set a June 1 deadline for proposing new regulations, and ordered that none be issued after November 1, except in "extraordinary circumstances."

But Bolten's deadlines came and went without anyone paying much notice, and the real deadline is now upon us. Rules published by tomorrow go into effect before President-elect Obama takes office, making them much more difficult to reverse.

As a result, the low road is bumper-to-bumper today.

Stephen Power, Elizabeth Williamson and Christopher Conkey write in the Wall Street Journal: "The Bush administration in the past week has adopted several hot-button regulatory changes long sought by business groups, drawing criticism from congressional Democrats.

"The changes include new rules that open the way for commercial development of oil shale on federal land, allow truckers to drive for longer periods, and add certain restrictions on employee time off under the Family and Medical Leave Act."

Dina Cappiello writes for the Associated Press: "A rule eliminating the mandatory, independent advice of government scientists in decisions about whether dams, highways and other projects are likely to harm [endangered] species looked likely to meet the deadline, leaving the only chance for a quick reversal to Congress."

How much of a rush were Bush officials in? As Cappiello notes: "[L]ast month, the head of the endangered species program corralled 15 experts in Washington to sort through 200,000 comments in 32 hours."

Joaquin Sapien writes for ProPublica: "Whether it's relaxing pollution-control standards for power plants or allowing loaded weapons into national parks, the Bush administration is scrambling to approve or change as many federal rules as it can before it hands off power to President-elect Barack Obama. This surge of 'midnight regulations' presents a thorny question for the next administration: What can it do to void rules it thinks should be undone? . . .

"John Podesta, a leading member of the transition team, has said Obama will use his 'executive authority without waiting for congressional action' to reverse many of Bush's policies.

"But that authority has its limits.

"While executive orders and rules that are not yet in effect can swiftly be reversed or altered by Obama's appointees or his own executive orders, rules that go into effect before he takes office will be extremely difficult to undo. Rescinding a rule would require the new administration to re-start the rule-making process, which can take years and prompt legal challenges. Another strategy that has been talked about lately -- getting Congress to disapprove the rules through the Congressional Review Act -- carries political risks and has been used only once before. . . .


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