With president-elect Barack Obama already taking command of the financial crisis, it's tempting to think that regime change in America is a done deal. But if George Bush has his way, the country will be ruled by his slash-and-burn ideology for a long time to come.
In its final days, the administration is rushing to implement a sweeping array of "midnight regulations" - de facto laws issued by the executive branch - designed to lock in Bush's legacy. Under the last- minute rules, which can be extremely difficult to overturn, loaded firearms would be allowed in national parks, uranium mining would be permitted near the Grand Canyon and many injured consumers would no longer be able to sue negligent manufacturers in state courts. Other rules would gut the Endangered Species Act, open millions of acres of wild lands to mining, restrict access to birth control and put local cops to work spying for the federal government.
"It's what we've seen for Bush's whole tenure, only accelerated," says Gary Bass, executive director of the nonpartisan group OMB Watch. "They're using regulation to cement their deregulatory mind-set, which puts corporate interests above public interests."
While every modern president has implemented last-minute regulations, Bush is rolling them out at a record pace - nearly twice as many as Clinton, and five times more than Reagan. "The administration is handing out final favors to its friends," says Véronique de Rugy, a scholar at George Mason University who has tracked six decades of midnight regulations. "They couldn't do it earlier - there would have been too many political repercussions. But with the Republicans having lost seats in Congress and the presidency changing parties, Bush has nothing left to lose."
The most jaw-dropping of Bush's rule changes is his effort to eviscerate the Endangered Species Act. Under a rule submitted in November, federal agencies would no longer be required to have government scientists assess the impact on imperiled species before giving the go-ahead to logging, mining, drilling, highway building or other development. The rule would also prohibit federal agencies from taking climate change into account in weighing the impact of projects that increase greenhouse emissions - effectively dooming polar bears to death-by-global-warming. According to Carl Pope, executive director of the Sierra Club, "They've taken the single biggest threat to wildlife and said, 'We're going to pretend it doesn't exist, for regulatory purposes.'"
Bush is also implementing other environmental rules that will cater to the interests of many of his biggest benefactors:
BIG COAL In early December, the administration finalized a rule that allows the industry to dump waste from mountaintop mining into neighboring streams and valleys, a practice opposed by the governors of both Tennessee and Kentucky. "This makes it legal to use the most harmful coal-mining technology available," says Allen Hershkowitz, a senior scientist at the Natural Resources Defense Council. A separate rule also relaxes air-pollution standards near national parks, allowing Big Coal to build plants next to some of America's most spectacular vistas - even though nine of 10 EPA regional administrators dissented from the rule or criticized it in writing. "They're willing to sacrifice the laws that protect our national parks in order to build as many new coal plants as possible," says Mark Wenzler, director of clean-air programs for the National Parks Conservation Association. "This is the last gasp of Bush and Cheney's disastrous policy, and they've proven there's no line they won't cross."
BIG OIL In a rule that becomes effective just three days before Obama takes office, the administration has opened up nearly 2 million acres of mountainous lands in Colorado, Utah and Wyoming for the mining of oil shale - an energy-intensive process that also drains precious water resources. "The administration has admitted that it has no idea how much of Colorado's water supply would be required to develop oil shale, no idea where the power would come from and no idea whether the technology is even viable," says Sen. Ken Salazar of Colorado. What's more, Bush is slashing the royalties that Big Oil pays for oil-shale mining from 12.5 percent to five percent. "A pittance," says Salazar
BIG AGRICULTURE Factory farms are getting two major Christmas presents from Bush this year. Circumventing the Clean Water Act, the administration has approved last-minute regulations that will allow animal waste from factory farms to seep, unmonitored, into America's waterways. The regulation leaves it up to the farms themselves to decide whether their pollution is dangerous enough to require them to apply for a permit. "It's the fox guarding the henhouse - all too literally," says Pope. The water rule goes into effect December 22nd, and a related rule in the works would exempt factory farms from reporting air pollution from animal waste.
BIG CHEMICAL In October, two weeks after consulting with industry lobbyists, the White House exempted more than 100 major polluters from monitoring their emissions of lead, a deadly neurotoxin. Seemingly hellbent on a more toxic future, the administration will also allow industry to treat 3 billion pounds of hazardous waste as "recycling" each year, and to burn another 200 million pounds of hazardous waste reclassified as "fuel," increasing cancer-causing air pollution. The rule change is a reward to unrepentant polluters: Nearly 90 percent of the factories that will be permitted to burn toxic waste have already been cited for violating existing environmental protections.
Environmental rollbacks may take center stage in Bush's final deregulatory push, but the administration is also promulgating a bevy of rules that will strip workers of labor protections, violate civil liberties, and block access to health care for women and the poor. Among the worst abuses:
LABOR Under Bush, the Labor Department issued only one major workplace-safety rule in eight years - and that was under a court order. But now the Labor Department is finalizing a rule openly opposed by Obama that would hamper the government's ability to protect workers from exposure to toxic chemicals. Bypassing federal agencies, Labor Secretary Elaine Chao developed the rule in secret, relying on a report that has been withheld from the public. Under the last-minute changes, federal agencies would be expected to gather unnecessary data on workplace exposure and jump through more bureaucratic hurdles, adding years to an already cumbersome regulatory process.
In another last-minute shift, the administration has rewritten rules to make it harder for workers to take time off for serious medical conditions under the Family and Medical Leave Act. In addition, the administration has upped the number of hours that long-haul truckers can be on the road. The new rule - nearly identical to one struck down by a federal appeals court last year - allows trucking companies to put their drivers behind the wheel for 11 hours a day, with only 34 hours of downtime between hauls. The move is virtually certain to kill more motorists: Large-truck crashes already kill 4,800 drivers and injure another 76,000 every year.
HEALTH CARE In late August, the administration proposed a new regulation ostensibly aimed at preventing pharmacy and clinic workers from being forced to participate in abortions. But the wording of the new rule is so vague as to allow providers to deny any treatment that anyone in their practice finds objectionable - including contraception, family planning and artificial insemination. Thirteen state attorneys general protested the regulation, saying it "completely obliterates the rights of patients to legal and medically necessary health care services."
In a rule that went into effect on December 8th, the administration also limited vision and dental care for more than 50 million low-income Americans who rely on Medicaid. "This means the states are going to have to pick up the tab or cut the services at a time when a majority of states are in a deficit situation," says Bass of OMB Watch. "It's a horrible time to do this." To make matters worse, the administration has also raised co-payments for Medicaid, forcing families on poverty wages to pay up to 10 percent of the cost for doctor visits and medicine. One study suggests that co-payments could cause Medicaid patients to skip nearly a fifth of all prescription-drug treatments. "People who have nothing are being asked to pay for services they rely upon to live," says Elaine Ryan, vice president of government relations for AARP. "Imposing co-pays on the poorest and sickest people in the United States is cynical and cruel."
NATIONAL SECURITY Under midnight regulations, the administration is seeking to lock in the domestic spying it began even before 9/11. One rule under consideration would roll back Watergate-era prohibitions barring state and local law enforcement from spying on Americans and sharing that information with U.S. intelligence agencies. "If the federal government announced tomorrow that it was creating a new domestic intelligence agency of more than 800,000 operatives reporting on even the most mundane everyday activities, Americans would be outraged," says Michael German, a former FBI agent who now serves as national security policy counsel for the ACLU. "This proposed rule change is the final step in creating an America we no longer recognize - an America where everyone is a suspect.
John Podesta, the transition chief for the Obama administration, has vowed that the new president will leverage his "executive authority" to fight Bush's last-minute rule changes. But according to experts who study midnight regulations, there's surprisingly little an incoming executive can do to overturn such rules. The Bush administration succeeded in repealing just three percent of the regulations finalized before Bill Clinton left office in 2001. "Midnight regulations under Bush are being executed early and with great intent," says Bass of OMB Watch. "And that intent is to lock the next administration into these regulations, making it very difficult for Obama to undo what Bush just did."
To protect the new rules against repeal, the Bush administration began amping up its last-gasp regulatory process back in May. The goal was to have all new regulations finalized by November 1st, providing enough time to accommodate the 60-day cooling-off period required before major rule changes - those that create an economic impact greater than $100 million - can be implemented.
Now, however, the administration has fallen behind schedule - so it's gaming the system to push through its rules. In several cases, the Office of Management and Budget has fudged the numbers to classify rules that could have billion-dollar consequences as "non-major" - allowing any changes made through mid-December to take effect in just 30 days, before Obama is inaugurated. The administration's determination of what constitutes a major change is not subject to review in court, and the White House knows it: Spokesman Tony Fratto crowed that the 60-day deadline is "irrelevant to our process."
Once a rule is published in the Federal Register, the Obama administration will have limited options for expunging it. It can begin the rule-making process anew, crafting Obama rules to replace the Bush rules, but that approach could take years, requiring time-consuming hearings, scientific fact-finding and inevitable legal wrangling. Or, if the new rules contain legal flaws, a judge might allow the Obama administration to revise them more quickly. Bush's push to gut the Endangered Species Act, for example, was done in laughable haste, with 15 employees given fewer than 36 hours to review and process more than 200,000 public comments. "The ESA rule is enormously vulnerable to a legal challenge on the basis that there was inadequate public notice and comment," says Pope of the Sierra Club. "The people who did that reviewing will be put on a witness stand, and it will become clear to a judge that this was a complete farce." But even that legal process will take time, during which industry will continue to operate under the Bush rules.
The best option for overturning the rules, ironically, may be a gift bestowed on Obama by Newt Gingrich. Known as the Congressional Review Act, it was passed in 1996 to give Congress the option of overriding what GOP leaders viewed at the time as excessive regulation by Bill Clinton. The CRA allows Congress to not only kill a new rule within 60 days, but to do so with a simple, filibuster-immune majority. De Rugy, the George Mason scholar, expects Democrats in the House and Senate to make "very active use of the Congressional Review Act."
But even this option, it turns out, is fraught with obstacles. First, the CRA requires a separate vote on each individual regulation. Second, the act prohibits reviving any part of a rule that has been squelched. Since Bush's rules sometimes contain useful reforms - the move to limit the Family and Medical Leave Act also extends benefits for military families - spiking the rules under the CRA would leave Obama unable to restore or augment those benefits in the future. Whatever Obama does will require him to expend considerable political capital, at a time when America faces two wars and an economic crisis of historic proportions.
"It's going to be very challenging for Obama," says Bass. "Is he going to want to look forward and begin changing the way government works? Or is he going to look back and fix the problems left by Bush? Either way, it's a tough call."