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Congress Fights Back On Last-minute Rules

In a surprise announcement this week, the EPA declared that it would drop plans to modify two rules on coal-plant emissions. One of these rule changes would have made it easier for coal plants to expand their capacity without triggering the New Source Review process, which generally requires a plant to install improved emissions-scrubbing technology. This would have been a major change to the way the Clean Air Act is enforced, and the fact that it's not going to happen is a major victory for environmental groups. So why did the EPA change its mind so suddenly? Part of the reason, no doubt, is that the Bush administration was simply running out of time to finish writing the new rules. But another possibility, hinted at in this Washington Post article, is that they were convinced that a rule change was futile because of its likelihood of being overturned.

In general, as Michael Livermore explained here at The Vine, a rule change that has an economic impact of under $100 million and is made more than 30 days before the end of a president's term can only be reversed by the new administration through the usual, sluggish rulemaking process. (Environmental groups could have challenged the Bush administration's claim that these air-pollution rule changes would have an impact of less than $100 million, but this would have meant a long, complicated court battle.) But there's a second, easier way to overturn midnight regulations, as long as Congress helps out: Any rule change made less than 60 legislative days before Congress adjourns for the year (which in this case means any rule change made after mid-May 2008) would be subject to the Congressional Review Act, which gives Congress the chance to overturn any last-minute administrative rules by passing a joint resolution and having it signed by the president. That resolution cannot be filibustered.

The Congressional Review Act has only been used once, to overturn a last-minute Clinton rule on workplace ergonomic standards. But there's growing evidence that Congress may be inclined to use it again. The House Select Committee on Energy Independence and Global Warming held a hearing yesterday on midnight environmental regulations and what do do about them. And the chairman of the House Natural Resources Committee, Nick Rahall told The San Francisco Chronicle yesterday that a use of the Congressional Review Act could be in the works. Congressional Democrats could even decide to bundle all last-minute rule changes into a single resolution so that they could be overturned en masse. That would be a fitting end to Bush's lame-duck regulatory bonanza, which, even if it's starting to wind down, has already managed to produce a pretty distressing list of rule changes.

--Rob Inglis, High Country News