A flurry of rulemaking activity typically accompanies Presidential transitions, a means for the exiting Administration to leave its final imprint on policy. (See this post on Presidential transitions and agency rulemaking). In this respect, the Bush Administration is no different than its predecessors. According to The New York Times, the White House Office of Management and Budget recently approved a final rule that will make it easier for coal companies to dump rock and dirt from mountaintop mining operations into nearby streams and valleys. This readies the rule for publication in the Federal Register, the final stage in the rulemaking process. The new rule will allow coal companies to dump materials that in the past they could do only in exceptional circumstances and only with permission from the government.
E.P.A. Administrator Stephen Jonhson applauds the rule, initially proposed five years ago, as a way to increase our dependence on clean coal technology and decrease our dependence on foreign oil. A coalition of environmental groups argue that the rule would accelerate “the destruction of mountains, forests, and streams throughout Appalachia.” For instance, policy analyst of the Sierra Club, Edward Hopkins, noted that: “The E.P.A.’s own scientists have concluded that dumping mining waste into streams devastates downstream water quality. By signing off on this rule, the agency has abdicated its responsibility.”
Environmental law scholar Robert Percival recently noted in an interview with Maryland Public Radio that the Bush Administration is in the midst of finalizing dozens of other rules that would cater to the needs of energy industries and degrade the environment. Some would involve major changes to the Clean Air Act, such as permitting pollution that would degrade visibility in national parks and exempting factory farms from reporting Clean Air Act violations. To be sure, some of these midnight rules may has limited lives: the Congressional Review Act permits an up or down vote on regulations passed 60 days before a new Administration takes over and some rules may not survive judicial review. But, as Percival explains, some midnight regulatory activity may be very hard for the Obama Administration to undo, such as leases to oil companies. Time will tell how much midnight madness ensues.