by Denis Campbell

Just when George Bush thought he could sneak it through, there is growing support in Congress for an obscure piece of legislation that could reverse the Bush Administration’s midnight regulation rush — even ones already in effect. W’s team wants to finalize energy and environmental regulations by November so Barack Obama can’t undo them after he’s sworn in as 44th president on Jan. 20. The problem is, the White House made a timing mistake. Back in May when White House chief of staff Joshua Bolten instructed federal agency heads to make sure any new regulations were finalized by Nov. 1 his memo didn’t go into specifics why, but the thinking behind the directive was obvious. They were determined to not make the same mistakes Clinton did. It could have taken years for Obama to undo climate rules finalized more than 60-days before he takes office because they would be printed in the Federal register and thus law. But the strategy didn’t account for the Congressional Review Act of 1996. 

That obscure and mostly unknown law contains a clause which says “any regulation finalized within 60 days of congressional adjournment” — Oct. 3, in this case so count back to 05 August — “is considered to have been legally finalized on (drum rollplease…) 15 January 2009.” We’ll let that sink in for a moment.

That means the incoming 111th Congress on 6 January will have 60-days to review and reverse with a simple party-line vote (in the Democrat-controlled Congress) and… it can’t be filibustered in the Senate. Ooops. 

So basically any regulation, no matter how odious, finalized in the last half-year of the Bush administration could be wiped out that simply. 

Those of us who remembering back to January 2001, saw the incoming Bush Administration overturn every last minute action with a call to the Office of federal Printing to “Stop the Presses.” That killed about 60 regulations and las tminute moevements by Bill Clinton. 

Barbara Boxer in the Senate and Ed Markey in the House are also looking at it. “On egregious rule-makings that would have a detrimental effect on energy and environmental policy, [the CRA] speeds up the process for rescinding the bad rule,” said Markey spokesman Eben Burnham-Snyder. “It’s something Markey is seriously looking into.” 

Targets of the CRA may include a rule to allow federal agencies to determine on their own whether their policies will threaten endangered species, rather than requiring them to go through the U.S. Fish and Wildlife Service for approval. Regulations opening land in the West to oil shale development and mountaintop removal could also be on the block.

“We are not rushing regulations through at the last minute. We are simply continuing our responsibility of governing until the end of the president’s term,” said White House spokesman Carlton Carroll. 

Yeah, right.

Even though the CRA can’t be filibustered, legislative lifting is generally more difficult than executive action. “There’s a lot that the president can do using his executive authority without waiting for congressional action, and I think we’ll see the president do that,” John Podesta, who is helping direct Obama’s transition team, said on “Fox News Sunday.” 

The environmental lobby would cheer such a move. “It seems like everyone in the world wants to throw themselves in front of this bus,” said Sierra Club lobbyist Dave Hamilton, who added that the organization supports any attempt to derail the Bush rules. “You just [think], ‘Haven’t you done enough?’” 

“If these rules are overturned, the benefits for the environment are potentially significant,” said Rick Melberth, director of regulatory policy at OMB Watch, a liberal regulatory watchdog group. 

Though the Competitive Enterprise Institute’s Ebell leans more toward President Bush’s more hands-off approach to regulation, he insists that he’s supportive of congressional review — since, under the Constitution, Congress is supposed to be the body that makes the laws. 

“This might be the first time I’ve supported Ed Markey on anything,” he said.