Groups Urge OMB to Stop Passing Midnight Regulations

Endangered Species Act, Clean Air Act, National Environmental Policy Act impacted


Raviya Ismail, Earthjustice, (202) 667-4500

A coalition of national environmental groups today urged the Office of Management and Budget (OMB), the agency responsible for overseeing the federal rulemaking process, to stop finalizing rules that would significantly weaken bedrock environmental protections that the agency classifies as not “economically significant.”

“The issues at hand — environmental protections that have taken a generation to secure through tremendous hard work and bipartisan consensus — are too precious to be treated so lightly,” said Lee Crockett, director of Federal Fisheries Policy for the Pew Environment Group. “These issues require full consideration and due process.”

As the agency that grants final approval for all federal rules, OMB has the authority to declare whether a rule is “economically significant” or not. This designation is non-reviewable and is based on a complex set of economic and policy criteria including whether the rule is considered to have an annual impact of greater or less than $100 million.

OMB does not disclose how such decisions are made. “Economically significant” rules become effective 60 days after being published in the Federal Register, while rules that are classified as not “economically significant” become effective in just 30 days. In order for rules to be in effect when President-elect Obama takes office on January 20, 2009, they must be finalized by December 19, 2008. Rules that meet this deadline can only be overturned by a new rulemaking process, court order or intervention by Congress and the president. Rules that OMB does not finalize by December 19, 2008 can be immediately suspended and eventually modified or withdrawn by the new administration.

By failing to categorize far-reaching environmental rules as “economically significant,” OMB has given federal agencies 30 more days to cement the current administration’s environmental policies and limit the options of the new administration. As the December 19, 2008 deadline approaches, the impacts of this time reprieve have already been felt.

Just last week, the EPA paved the way for the Office of Surface Mining to finalize a rule under the Surface Mining Control and Reclamation Act to weaken stream protections from mining waste. What OMB does, or does not finalize in the next few days will have an enduring impact on the environment.

“The outgoing administration successfully stymied the implementation of the Clinton administration midnight rules,” said Martin Hayden, Vice President of Earthjustice. “On Inauguration Day 2001, White House Chief of Staff Andrew Card issued a memo that broadly delayed the implementation of rules issued by the Clinton administration that had yet to take effect. Now, they are attempting to prevent a similar fate from happening to them.”

Some of the proposals considered not “economically significant” by OMB will directly impact:

  • The Endangered Species Act, a landmark piece of environmental protection legislation that has saved scores of endangered species from extinction.
  • The National Environmental Policy Act, the nation’s pre-eminent environmental protection law that requires the Federal government to publicly evaluate environmental impacts of its actions before proceeding A Clean Air Act program that protects our national parks with common-sense pollution limits from nearby power plants.
  • The Environmental Protection Agency’s regulations that provide federal, state and local agencies and the public with information about air releases of hazardous substances at factory farms.

“Despite serious concerns raised by every regional office of the Environmental Protection Agency, the National Park Service, Congress, and tens of thousands of Americans, the final power plant pollution rule would threaten scenic vistas, wildlife, and public health by allowing more air pollution in our treasured national parks and wilderness areas,” said Mark Wenzler, director of Clean Air and Climate Programs for the National Parks Conservation Association. “It is ‘significant’ to the millions of Americans who value our national parks and expect them to be protected.”

“Study after study has found that releases of hydrogen sulfide and ammonia from decomposing manure at factory farms can threaten people’s health,” said Ed Hopkins, director of the Sierra Club’s Environmental Quality Program. “When the Agency for Toxic Substances and Disease Registry finds that a Minnesota dairy’s air pollution, which was so severe it drove neighbors from their homes, constitutes a ‘public health hazard,’ that’s not a ‘minor’ issue. The EPA’s rule exempting livestock and poultry operations from toxic release notification requirements is a major special interest giveaway.”

“The proposed changes to the Endangered Species Act would cut the safety net for imperiled fish, wildlife and plants, allowing destructive projects to move forward without scientific review,” said Bob Irvin, senior vice president of conservation programs at Defenders of Wildlife. “That’s not a minor change – that’s a major step backwards in our nation’s commitment to our rarest and most vulnerable wildlife resources. If this rule is finalized it would mean that consideration of the impacts of greenhouse gas emissions on polar bears or other wildlife affected by global warming is completely off limits.”

Listen to Earthjustice Vice-President for Policy and Legislation Marty Hayden discuss the Bush administration’s push to to weaken environmental regulations in the waning days of Bush’s reign. (MP3 file)

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