February 25, 2009

Midnight Regulations: Congress Lends a Hand

The following is cross-posted by permission from Executive Watch, a blog maintained by the Duke Law School Public Law Program.


Every time the presidency has changed parties in recent years, the outgoing president has issued regulations in the final months of his presidency implementing policies at odds with the policies of the incoming president.  The critics of these regulations invariably deride them as “midnight regulations”  that have been rushed through the regulatory process.  Propublica is monitoring the Bush midnight regulations, here. Then the incoming president sets out to stop or undo many of them by issuing a regulatory “stop order” to the agencies and departments. 


Stopping a regulation from taking effect is much less resource intensive than undoing one, so every recent president stop order, including President Obama’s, has contained a request that no agency or department send any regulations for publication in the Federal Register until they have been reviewed by a political appointee of the new president, and that they withdraw any regulations that the Office of the Federal Register has received but not published. 


For regulations that have been published, the Obama memorandum – which was issued by his chief of staff, Rahm Emmanuel, on January 20 – asks that agencies review those that have not yet gone into effect and consider extending their effective date for 60 days if they raise significant issues of law or policy, to provide time to reconsider them. 


But what about regulations that have gone into effect?  Under the Administrative Procedure Act as well as the enabling legislation of many agencies, revising an existing rule requires the same lengthy process that issuing it required in the first place, which can mean months and even years – unless the President gets a little help from his friends in Congress.


Two of President Bush’s midnight regulations involve the Endangered Species Act.  One reduces protections that the polar bear would otherwise receive under the ESA.  The other changes ESA procedures so that agencies do not have to consult with experts in the Fish and Wildlife Service and the National Marine Fisheries Service before taking actions that further threaten any endangered species.  Both went into effect in January, prior to the Inauguration. As Propublica’s Joaquin Sapien reports, that makes them difficult to fix, at least for the president acting alone.  Some assistance may be on the way, however.  Tucked away in HR 1105, the draft appropriations bill for the Department of the Interior, is Section 429, providing that the Secretaries of Interior and Commerce “may withdraw or reissue” either or both of these two rules “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.”  That will provide a 60 day statutory window for Interior and Commerce to act.  If HR 1105 passes, it will enable the executive branch to accomplish something more quickly than the executive could have on its own, and at a great savings of human resources.  It will nicely illustrate Justice Jackson’s observation that the power of the president is at its highest when it combines with the powers of the Congress.


A Note on Midnight Regulations:  Just because a regulation is issued late in a president’s term does not mean that the regulation was hastily drawn.  Days before President Clinton left office, his EPA lowered the allowable levels of arsenic in drinking water.  The action was attacked as a midnight regulation, and when President Bush came into office, his EPA issued a sixty day delay of the effective date of the regulation in order to reconsider it.    As Doug Jehl of the NYT reported at the time, a spokesman for the National Mining Ass’n said that “The Clinton administration rushed this out in the midnight hour.  We felt all along that it was really a political decision unsupported by the science.”  But this was far from true — the regulation had been in development for several years and had been thoroughly analyzed.  Closer to the truth was that the move to roll back the rule was politically motivated.  After some hemming and hawing, the Bush administration had to concede that the science was sound, and it eventually accepted the Clinton standard.


On the other hand, the Endangered Species rules that came out late in the Bush administration deserve to have the label “midnight regulation” hung on them.  This is especially true of the rule cutting back on expert consultation, which Holly Doremus at the Center for Progressive Reform called “an unseemly rush to one-sided ‘reform.’”  As the Center for Biological Diversity reports, to get the regulation issued in time, Interior had to “review” more than 300,000 comments in less than three weeks, an impossible task.


Editor's Note: On March 4 at 10:00 a.m., the U.S. House of Representatives Committee on Natural Resources will hold a hearing to consider a joint resolution to disapprove, and thus undo, the Bush regulations on interagency consultation under the Endangered Species Act.  CPR Member Scholar Holly Doremus will testify.

Christopher Schroeder, Former Member Scholar; Professor Law/Public Policy, Duke University School of Law. Bio.