Will Talk Lead to Action? “There are many other [regulations] right now being considered covertly inside of this Administration as going away presents to industries. We don’t intend on allowing it to happen without the full light of this committee’s attention being drawn to it.”
—House Select Committee on Energy Independence and Global Warming Chairman Edward J. Markey
AFTER EIGHT YEARS, THE DEPARTURE of Bush and Cheney recalls their arrival, with most of their energy focused on easing the burdens of the minerals-extraction class while imposing hardships on the working class.
Mining lobbyist Steve Griles was the incoming Bush administration’s liaison to energy, mining, and timber interests. Nine days before George W. Bush took the oath of office in January 2001, Griles was standing before a meeting of lobbyists and executives at the American Petroleum Institute’s offices in Washington, D.C., asking them what they wanted from the Bush-Cheney administration. The feeding frenzy got so wild, Newsweek reported, that a lobbyist from the wildcatters’ association began to shout about repealing the Endangered Species Act.
(In 2001 Griles was appointed to the number two position at the Interior Department, where he served for four years. In 2007 he was sentenced to a term in a federal penitentiary, where he served nine months for his role in the $90 million defrauding of American Indian tribes orchestrated by Jack Abramoff.)
House Majority Leader Tom DeLay led the attack on American workers, which began with a joint resolution that overturned a body of ergonomic protections initiated eleven years earlier by former Republican Senator Elizabeth Dole when she was George H.W. Bush’s secretary of labor.
The dismantling of workplace protections pivoted on one law. The Congressional Review Act (CRA) was one of very few Newt Gingrich “Contract With America” proposals actually to become a law. It allows a member of Congress to file a resolution of disapproval against a new executive rule and request a straight up or down vote on the rule within sixty session days of the rule’s finalization. The CRA limits debate to ten hours in each house and precludes filibuster in the Senate.
The CRA was passed by a Republican Congress while Bill Clinton was president—to allow it to overturn late-term rules the Clinton administration might put on the books. All that was required was a Republican president who would not veto a legislative override of the late-term rules.
That president was George W. Bush. In April 2001, with his full support, the most important worker protections enacted since LBJ occupied the White House were dismantled. With two quick votes that Tom DeLay muscled through the House and Senate, protections for millions of workers facing injury incurred by heavy lifting, repetitive motions, or dangerous industrial procedures were eliminated.
Karl Rove called DeLay to congratulate him on behalf of President Bush. And Bush appointed Eugene Scalia—who had spent the previous ten years fighting the ergonomics rules on behalf of business interests—to the position of Labor Department solicitor. (Tom DeLay holds the singular distinction of being reprimanded three times by the moribund House Ethics Committee. He resigned from his Congressional seat after he was indicted in Texas, and has been awaiting trial for three years.)
BUSH RULES!—As they approach the end of their tenure, presidents use their rulemaking authority to impose as much of their policy agenda as possible on the incoming administration. The Bush administration’s final run at environmental safeguards and what remains of protections for American workers was predictable.
In response, the 111th Congress should consider January CRA month. The law was used to overturn worker protections developed over eleven years of drafts, revisions, and hearings. It’s hard to conceive of a reason not to use the same law to reject rules drafted in haste by an administration still setting records for public disapproval. Midnight rules awaiting the attention of the Congress include:
• A provision that will allow coal mining companies to dump rock and dirt blasted off mountaintops into valleys, streams, and rivers. The rule change eliminates buffer-zone protections that prohibit the dumping of mountaintop rock and rubble within 100 feet of a stream—the final protection standing between mining companies and Appalachian streams. Coal companies have already flattened 400,000 acres of Appalachian mountains, filling 1,200 miles of waterways with rock and rubble. Much of the dumping, according to Congressional testimony by Robert Kennedy Jr., an environmental lawyer and chairman of the Waterkeeper Alliance, occurred after lobbyists for the Peabody and Massey coal companies persuaded Deputy Interior Secretary Steve Griles to change Interior’s interpretation of the word “fill” in the Clean Water Act. (Griles had lobbied for the two companies.)
• A rule that circumvents the Endangered Species Act (ESA) and allows mining, drilling, logging, damming, and road-building without review by habitat managers and biological health scientists at the U.S. Fish and Wildlife Service. Muzzling scientists responsible for protecting the newly listed polar bear (and 1,400 other threatened species) only months after the polar bear was listed suggests an agency at odds with itself. Yet it is entirely consistent with an administration that listed only 59 species in eight years, compared with 531 listed by Bill Clinton in his two terms in office and 231 listed by George H.W. Bush during his four years in office. To meet a critical deadline, four days before final paperwork on the ESA rule was due in the office of the agency’s solicitor general, managers at the Interior Department issued an “all hands” call to anyone available to read and analyze 300,000 comments submitted by the public, interest groups and legislators.
• A rule that allows corporate factory farms to ignore the Clean Water Act and dump hundreds of thousands of tons of fecal waste into waterways without obtaining permits from the Environmental Protection Agency. A concentrated animal feeding operation housing 100,000 hogs produces the same amount of fecal waste as a city of one million people. The EPA estimates that the industrial farms generate three times as much waste as do humans. The same animal factories were exempted from federal community right-to-know laws that require them to report air emissions generated by animal waste. That’s two big wins for the National Chicken Council, National Pork Producers Council, National Milk Producers Federation, United Egg Producers and the National Turkey Foundation, whose lobbyists met with EPA and administration officials before the rule was drafted.
• A rule that permits the burning of hazardous waste as fuel, exempting 100,000 tons of refinery and petrochemical waste each year from legislation passed by Congress to protect the public from exposure to toxic substances. Industrial waste burned as fuel emits highly toxic benzene and toluene, the latter a human carcinogen. The U.S. District Court for the District of Columbia has ruled that the Bush EPA neglects public health and “devotes substantial resources to discriminatory rulemakings, many of which make existing regulations more congenial to industry.”
• A rule that would allow the Interior Department to make a million acres of federal land near the Grand Canyon available for uranium mining. The Arizona Department of Game and Fish warned of risks from the consumption of fish or water contaminated by radium-226, arsenic, and other waste that would leach from piles of mine tailings if mining is permitted close to the Colorado River. Western mayors complained that uranium leaching into the Colorado poses a risk for residents of Los Angeles, Las Vegas, and Phoenix, who depend on the river for drinking water. But mining interests, betting on uranium demand driven by an anticipated boom in nuclear energy, prevailed.
• A rule that opens two million acres of federal land in Wyoming, Utah and Colorado to oil shale mining and refining, with which there are several problems. Processing oil shale—either by freezing one rock stratum to contain oil released when sub-strata are heated to 675 degrees for three years or by digging the shale out, then cooking the rocks in huge retorting ovens aboveground—consumes a huge amount of energy and a large volume of water in the arid West. The Natural Resources Defense Council estimates that oil shale operations on the scale the Interior Department is considering will consume the same amount of water each year as a city of 1.5 million people. Oil shale production is expected to emit four times more global-warming pollution than does the production of conventional gasoline. And commercial production of oil from shale has never been done because it hasn’t been economically viable, so the technologies remain untested.
• A rule that significantly lowers the amount of lead allowed in the air would represent progress by any administration other than this one. But the EPA was responding to a court order to lower lead levels when it imposed a stringent standard on this neurotoxin, which is particularly harmful to young children. Then the White House intervened and limited the number of lead monitors that will enable the agency to enforce EPA’s new standard. The Chicago Tribune reports that plants monitored in the U.S. could drop by nearly 60 percent, from 203 to 87.
• A rule that rescinds the collective bargaining rights of as many as 8,600 federal workers involved with “national security,” which the Bush administration insists would be put at risk by unionized workers. The rule excludes career employees at the Departments of Energy, Homeland Security, Treasury, and Justice from protection under the Federal Labor-Management Act, stripping some federal workers of collective bargaining rights they have enjoyed for more than thirty years. When the Department of Homeland Security was established in 2002, the president demanded that Department of Treasury employees who were being moved to Homeland Security be deprived of their collective bargaining rights. “I’m not going to accept legislation that limits or weakens the president’s well-established authorities—authorities to exempt parts of government from federal labor-management relations statutes—when it serves our national interest,” Bush said at the time. That fight, which labor lost, occurred in the open. This round is far more opaque, with some federal employees who lost their bargaining rights getting the news in a White House press release issued a week after the rule was finalized.
• A rule that restricts the Mine Safety and Health Administration and the Occupational Safety and Health Administration (OSHA) in their ability to respond to workplace hazards. The rule adds years to the process of gathering information from regulated industries before new worker protections can be put in place. It also waters down the method by which the agencies determine workplace hazards and skews statistical analysis in a way that puts older workers at greater risk, according to the non-profit advocacy group OMB Watch. The rule will slow Obama administration attempts to return the two agencies to regulatory responsibilities abandoned over the past eight years. (The Washington Postreports that during Bush’s tenure OSHA issued 86 percent fewer economically significant rules than the agency did during Bill Clinton’s eight years in office.) When the rule was leaked to the press in July, Rep. George Miller (D-CA) and Sen. Ted Kennedy (D-MA) wrote to Labor Secretary Elaine Chao, demanding an explanation. The agency’s intent to change the rule, the senators complained, wasn’t properly posted, no hearings were scheduled, nor was there any reason stated for changing the rule. Chao also limited public comment on the rule to 30 days, half of the standard 60-day comment period.
JUST LIKE CLINTON, BUT DIFFERENT—The Bush rule makers raced to beat the clock and get last-minute rules on the books. But so did Bill Clinton. Process, however, is a small part of the problem this time around. The rules themselves, the last gasp of a thoroughly discredited administration, are at issue.
For the record, Clinton’s midnight regs included:
• Standards that required lower lead content in water (which Bush overturned but then reinstated);
• Requirements that air conditioners and refrigerators meet higher energy efficiency standards (Bush overturned the air conditioner standard);
• A ban on snowmobiles in Yellowstone National Park (the Bush Interior Department overturned the rule and only recently reinstated it under pressure from Congress and National Park Service employees);
• Refinery standards that reduced the sulfur content in diesel fuel burned in trucks and buses;
• A ban on federal contractors who had violated environmental or labor rules (overturned by the Bush administration because it was considered a favor to big labor);
• A ban on road building and logging on 58 million acres of federal land;
• The creation of 19 “national monuments” that protected 5 million acres of federal land from development;
• New testing standards for the deadly Listeria monocytogenes bacterium in hot dog and lunch meat plants (suspended by the Bush administration and reinstated after adverse publicity about deaths caused by listeriosis).
EXECUTIVE AND LEGISLATIVE FIX—Eight years ago a new administration with considerably less than an electoral mandate went after Clinton rules with unprecedented zeal, suspending late rules and using every mechanism at their disposal to dismantle or stall those with which they disagreed. (Vice President Cheney ordered suspension of printing of the Federal Register, so rules couldn’t be considered “published.”) Bush’s Office of Management and Budget director ordered agencies not to defend select rules when they were challenged in court, overturning them by default.
Congress went at the rules with similar enthusiasm. In the House, John Boehner (R-OH), now minority leader, described a volume of ergonomic rules that required eleven years to complete as a “last-minute regulation” and urged Republican members to use the CRA to overturn them.
John Podesta was the White House chief of staff at the end of the Clinton administration; he watched the drafting of Clinton’s executive rules and the undoing of many of them by the Bush administration. Podesta is directing the Obama transition team. In an interview with Fox News he suggested that President Obama will use his executive authority to deal with some of the late Bush rules. Speaker of the House Nancy Pelosi (D-CA) issued a warning about rules that “roll back critical regulations protecting the rights of Americans in the workplace, at home and in their communities.” Rep. Edward J. Markey (D-MA) said some of the rules will not stand and his office is drafting legislation to roll them back. And Rep. Jerrold Nadler (D-NY) has filed a dark-horse bill that would give cabinet secretaries the authority to review all new regulations finalized during the last three months of the previous administration.
Not every last-minute regulation will be reversed. But this time, elected officials possessed of distinctly different ideas about the public interest will have the last word.
CORRECTION—As several readers noted, in the Jan. 1 issue, we incorrectly placed Senator Elizabeth Dole in South Carolina rather than in North Carolina.