Obama Races to Regulate Before Trump Takes Reins -part 1
by Jennifer A Dlouhy
At federal agencies across Washington, regulators are rushing to finalize rules before President Barack Obama leaves the White House.
Where the administration has issued an average of 2.2 rules per day this year, 10 were pushed out the door on Tuesday and Wednesday, according to a count by the American Action Forum.
"We’re running -- not walking -- through the finish line of President Obama’s presidency," U.S. Environmental Protection Agency Administrator Gina McCarthy said to agency staff in a post-election e-mail.
The Federal Register, the dense tome where the government publishes new agency rules, swelled to 1,465 pages on Friday -- the thickest volume yet this year. Since the Nov. 8 election of Donald Trump, who has vowed to fight “radical regulations,” the White House has finished reviews of nine economically significant rules -- compared to eight during all of September.
One reason for the speed: The later a regulation is released by an outgoing administration, the easier it can be killed by the next one. Republican lawmakers are on track to adjourn early to take advantage of a measure intended to guard against so-called midnight rule-making that permits them to void regulations put in place in the last 60 days of the legislative session.
Senator James Inhofe, a Republican from Oklahoma, wryly noted that "Congress has many tools" with which it can rescind rules.
Recent entries in the Federal Register include an Interior Department rule cracking down on methane emissions from oil wells and measures aiming to help highly skilled immigrant workers get green cards. On the horizon: a stream protection rule for coal mining, limits on the use of hydrofluorocarbons, new leak detection requirements for oil wells and quotas for boosting biofuel use in gasoline.
What’s the hurry? Blame the human tendency toward procrastination -- as well as a clamor to get new rules in place in hopes they will endure long after President-elect Trump is sworn in on Jan. 20. From corner offices to cubicles, the agency leaders and staff who have been toiling on rules sometimes for years are eager to get them across the finish line, said Susan Dudley, director of the Regulatory Studies Center at George Washington University.
Democratic nominee Hillary Clinton had won the presidency, "we would be seeing an uptick in regulatory activity," she said, because staff members don’t want to leave their work unfinished. Delays are inevitable whenever a new administration moves in -- even one with a similar mindset -- because of staff turnover and subtle shifts in approach.
"It’s just human nature to procrastinate, and to think I’ve got until Jan. 20 -- and legitimately, they do," said Dudley, who presided over the Office of Information and Regulatory Affairs during the final two years of President George W. Bush’s administration.. "There’s no reason on Earth why a president shouldn’t use all of his powers up until the end."
Even after new rules are published in the Federal Register, there’s typically a 60-day lag before they go into effect. And while Trump can work in concert with Republicans on Capitol Hill to swiftly repeal rules imposed since late May -- and employ a time-consuming administrative process to rewrite older measures -- it’s much easier to spike those that haven’t yet gone into effect.
"That ability to put on hold and essentially withdraw rules by the previous administration is much, much more efficient than repealing rules," said Amit Narang, regulatory policy advocate for Public Citizen’s Congress Watch. "Of course, that’s why it is so critical, because once you have a rule on the books, it’s harder to undo."
For example, the methane rule that the Interior Department unveiled on Monday and which was published in Friday’s Federal Register has an effective date of Jan. 17 -- just three days before Obama turns over the keys to the White House.
It’s expected that moments after Trump is sworn in, his administration will place a moratorium on new regulations and pull back any others that are on their way to the Federal Register but haven’t yet been published, Dudley said. The Trump administration could also extend the effective date of rules that have been published but have not yet gone into effect, giving appointees time to get confirmed, review the rules and, possibly, chart a different course.
There’s precedent for ordering a stand down; the Obama administration did the same thing on Jan. 20, 2009.