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.
Sen. James Inhofe, -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.
Even if 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.
Top Republicans have already threatened to invoke their powers under the 20-year-old Congressional Review Act to toss rules they dislike within 60 legislative days of their enactment on a simple majority vote, without fear of filibusters.
Sen. Rand Paul, R-Kentucky, said legislators would repeal at least a half dozen regulations in the week after the new Congress convenes. And House Majority Leader Kevin McCarthy, R-California, joined 21 committee chairmen in formally admonishing agencies they would take a dim view of any policymaking in the Obama administration’s waning months.
“We write to caution you against finalizing pending rules or regulations in the administration’s last days,” they said in a Nov. 15 letter to agency and department heads. “Should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions — and, if appropriate, overturns them.”
Congressional leaders are speeding up their remaining legislative business in hopes of getting home sooner — and ensuring more regulations are ripe for a rollback.
By wrapping up a week sooner, they’ll be able to use a resolution of disapproval to go after a Labor Department rule allowing millions more workers to collect overtime pay that was published May 23 and is set to go into effect Dec. 1.
Hundreds of other rules issued this year also would be eligible for expedited nullification under the Congressional Review Act.
Some agencies appear to be heeding lawmakers’ counsel to close up shop. After senior Republicans asked Federal Communications Commission Chairman Tom Wheeler to put the brakes on nearly all new regulations and actions, the agency canceled a planned vote on the rates charged for data lines used by businesses.
The agencies have no incentive to hold back, said Batkins, with the American Action Forum, a think tank that favors smaller government.
“Not all of these rules will make their way into CRA resolutions of disapproval, and there’s a pretty significant chance that any one midnight regulation won’t be overturned by the next administration, so what’s the incentive to hold them?” Batkins said. “If you’re just playing the odds, obviously you should publish them.”
Environmentalists are embracing that calculus and lobbying the Obama administration to go big and bold by creating national monuments and imposing new air rules.
“We’ve told the White House and Interior Department on everything — whether it’s offshore drilling or national monuments — to be as ambitious as possible.” said Athan Manuel, director of lands protection for the Sierra Club. “Whatever they do, we’re going to have to depend on it no matter what they propose, so we might as well ask for the moon.”