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Policy
From Midnight to Morning
Obama is moving quickly to overturn harmful Bush-era rules.

From whooping cranes to Hawaiian gardenias, it was a dicey winter for the nearly 1,900 plants and animals listed under the Endangered Species Act (ESA). Beginning in December, a last-minute rule change by the Bush administration made it optional, instead of mandatory, for federal agencies to consult outside scientists before taking any actions that could affect a listed species.

President Obama’s administration revoked the regulation in April. But weakening the ESA was just one of many environmentally egregious rule changes the Bush White House made in its final months. Citing the importance of science-based policy, Obama and the new Congress have made swift strides to untangle the knot they inherited, although they are unlikely to review every change.

During the waning three months of every modern presidency, the executive office has rushed to amend various regulations—a process that doesn’t require congressional approval. But President Bush’s midnight was especially long. His administration began maneuvering last summer to ensure that rules loosening oversight on everything from health care to solid waste would take effect before Obama took office, making them more difficult to overturn.

“This is what’s problematic about midnight regulations,” says Veronique de Rugy, a senior research fellow at George Mason University’s Mercatus Center. “They are very effective and lack oversight and accountability.”

In the case of the ESA rule change, the Obama administration took advantage of a provision in the 2009 omnibus spending bill that gave the White House 60 days to rescind it. But for any rules already on the books, the administration will have to go through the entire rule-making process again, requiring studies and public comments, which can take months or years.

One last-minute change, for instance, would open up two million federal acres in the West to commercial oil shale development—an energy-intensive process that can harm mule deer and sage-grouse habitat (see “Slick Promise,” March-April 2009). Though the rule was finalized, Interior Secretary Ken Salazar stalled it by freezing solicitations for oil shale lease agreements on public lands.

Salazar also reversed a regulation that would have allowed companies to dump mountaintop removal mining waste directly into waterways, reverting to the original policy, which prohibits dumping within 100 feet of a stream. Even so, Appalachian waters aren’t necessarily in the clear, says Betsy Loyless, the National Audubon Society’s senior vice president for advocacy and policy. The buffer zone hasn’t really been enforced since it was implemented in 1983, and Obama, perhaps because of the strong Democratic base in coal country, hasn’t indicated whether he’ll be stricter. “While the announcement carries weight, unless it’s accompanied by enforcing the application of the stream buffer rule,” Loyless says, “then you’ve done nothing but engage in returning to the status quo.”

But overall, environmental groups see the overturning of more than a dozen Bush-era policies as a signal that the days of sidelining science and ignoring greenhouse gases are over. Notably, Carol Browner, Obama’s climate czar, and Lisa Jackson, administrator of the Environmental Protection Agency, moved quickly to declare that greenhouse gases threaten humans, a move that could pave the way for climate change legislation. It’s a marked switch from the previous administration, which the Supreme Court rebuked for withholding a finding that greenhouse gases endanger human health and welfare.

“Obama’s regulatory changes are memorable and significant,” says Loyless. “This administration is meeting and even exceeding expectations.”

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