Around Midnight

It's been a while since we checked in on the Bush midnight regulations flurry. As a reminder, in the waning days of Republican rule in the White House, there was a concerted effort to inflict as much damage as possible in key, hot-button political issue areas. For example:

• 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 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
• A rule that reduces access of Medicaid beneficiaries to services such as dental and vision care
• A rule that could limit women’s access to reproductive health services.

Not to mention allowing trucking companies to make their drivers have 11-hour shifts, or the super-secret one issued in September that we just found out about this week, which shuts off a critical source of information about abuse and neglect in long-term care facilities to residents and families. The list of regulations is damned impressive, albeit immensely destructive.

So far, the Obama administration has taken a few steps to combat some of these inherited hornets' nests. The first was the first move that every incoming administration takes: to issue a memorandum directing all agencies to put a halt to those regulations in the pipeline. Critical first move, but it hardly stems the bleeding. According to Propublica, more than dozen of the close to 70 regulations they've compiled are in effect.

Dealing with these is thornier, at best.

Final rules present a more difficult problem. Executive branch agencies cannot throw out a final Bush rule with a stroke of a pen. They must conduct an entirely new rulemaking—the legal process by which regulations are made—which often consumes significant time and resources. Unless a rule’s effective date is suspended, which may be possible for a limited number of Bush rules, the rule remains law until a new rulemaking is completed.

Congress also can intervene to block or undo midnight regulation. The Congressional Review Act allows Congress to vote down Bush regulations completed after May 15, 2008, using special expedited procedures. Funding also may be withheld to block implementation or enforcement of undesirable rules.

The last option for dealing with midnight regulation is the courts. Lawsuits are likely to challenge many of the Bush administration’s midnight regulations. The Obama administration will have to decide how to respond to these suits. In some cases, the administration may be able to enter into settlements that effectively torpedo Bush rules.

Of course, it's not just logistical hoops that have to be jumped through in this process, it's dredging up long-standing political hot-buttons--those landmines that BushCo left scattered along the way. It always boils down to abortion, guns, and in the west, endangered species. The new administration has an increasingly narrowing tightrope to walk when approaching these.
This week brought good news on the first of them, abortion. The "conscience clause" rule that would allow medical workers to refuse to provide even family planning counseling to patients was in effect as of January 20. This week the Obama administration moved to rescind it through another rule-making process, with a 30 day comment period. They are also saying they will consider "drafting a new rule to clarify what health-care workers can reasonably refuse for patients."

That's getting weedier than Obama might want to go, and frankly not a good precedent. From my perspective, the government should not be in the business of determining what information health care providers can refuse to give their patients. The protection of being able to refuse to grant abortion services is more than adequate protection for the conscience of health care providers. It's not an area for any more wiggle room.

On the gun side, the administration might be looking to make a political trade, but one that's not likely to succeed. An assault weapons ban is apparently back on the radar screen of the administration. Cue the the NRA, which is completely ignoring the actions by the new administration on one of their pet projects: guns in national parks.

The Obama administration is legally defending a last-minute rule enacted by President George W. Bush that allows concealed firearms in national parks, even as it is internally reviewing whether the measure meets environmental muster.

In a response . . .  to a lawsuit by gun-control and environmental groups, the Justice Department sought to block a preliminary injunction of the controversial rule. The regulation, which took effect Jan. 9, allows visitors to bring concealed, loaded guns into national parks and wildlife refuges; for more than two decades they were allowed in such areas only if they were unloaded or stored and dismantled. . . .
In its reply, the Justice Department wrote that the new rule "does not alter the environmental status quo, and will not have any significant impacts on public health and safety."

They've got a bit of a problem with that argument, considering that at this very moment the Department of Interior is investigating whether this rule "alters the environmental status quo, and will not have any significant impacts on public health and safety." This rule from the Bush administration didn't undergo the requisite reviews. Period. Beyond that,

"Secretary Salazar believes the Department should put forward its legal arguments in defense of the rulemaking procedure, and allow the courts to reach a conclusion," Lee-Ashley wrote in an e-mail. "In addition, in order to ensure that the actions of the government are based upon the best information, Secretary Salazar has directed the National Park Service and the Fish and Wildlife Service, under the auspices of the Office of Assistant Secretary for Fish, Wildlife and Parks, to undertake a 90-day review of any environmental considerations associated with implementation of these rules and to provide him a report on the results of that review."

In this instance, the DOJ should not have intervened. There was a clear violation in the earlier rule-making process, one that it is incumbent upon Secretary Salazar to address. His department was as highly politicized under the Bush administration as even the DOJ, and it is absolutely critical going forward that his department not only undo the damage done by the Bush administration, but that they scrupulously follow the law when doing so.

The guns in national parks battle is peanuts out in the west, though, when compared to the hottest endangered species battle we've had since the spotted owl: the gray wolf. The Bush administration intended to delist the wolves in the Northern Rockies, but Emanuel's memo froze that action. This issues pits hunters and stockmen against their usual foes in the environmental community who see stable populations of predator species like wolves as critical to the Greater Yellowstone ecosystem.

As the granddaughter and daughter of a cattle ranchers, I have to admit some squeamishness on this one. Raising livestock in the high country is a dicey enough proposition without the threat of these predators. At the same time, restoring the ecosystem of this incredible place (to the extent that it can be done after a century of damage) argues for their ongoing protection. Regional politicians have been pushing hard for the delisting to go forward, particularly the blood-thirsty Idaho delegation, which is rivaled only by Sarah Palin in their hatred of wolves.

On this issue, the Obama administration has to do what the best science tells it to do. It's time to have that integrity restored to the public decision-making process. If the science allows for some sort of reasonable state management approach, and you have states you can trust to do that management, then that should be the guiding force for this decision.

Moving forward on both undoing the Bush regulations, and on creating new ones, that same theme holds. Here are the recommendations from a panel of regulatory experts [pdf] coordinated by OMB Watch, based on six principles:

• Regulatory decisions should be timely and responsive to public need.
• The regulatory process must be transparent and improve public participation.
• Regulatory decisions should be based on well-informed, flexible decision making.
• Authority to make decisions about regulations should reflect the statutory delegation granted by Congress.
• Agencies must have the resources to meet their statutory obligations and organizational missions.
• Government must do a better job of encouraging compliance with existing regulations and enforce them fairly.

It's actually rather remarkable that this kind of common sense and good government needs to be reiterated for a president, but that's what eight years of BushCo has left us with. In any case, it's good advice, and change we can believe in.