Remember all those "<?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />midnight regulations" finalized by outgoing Clinton administration officials during their final two months in power? The Bush administration would prefer you forget, as its efforts to deal with them have proven to be failures. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
To its credit, the incoming Bush officials, faced with a wave of these politically correct but substantively problematic environmental regulations, sought to double check their merits before allowing them to take effect. As a result, they were hit with nasty attacks from journalists and environmental activists. The furor over these so-called "environmental rollbacks" frequently dominated the news in 2001 prior to 9/11.
The double standard was obvious, as most of the criticism came from individuals and organizations that had given Clinton a free pass for doing next to nothing on these matters until the very end of his eight year run.
The first midnight regulation to hit the fan was the one setting a tougher standard for allowable levels of arsenic in drinking water. The media, most of whom had shown absolutely no interest in the subject from 1993 through 2000, suddenly couldn't get enough of the claims from groups like the Natural Resources Defense Council that Bush was allowing children to be poisoned with bad water. The New York Times made arsenic the first of its many factually dubious crusades against the Bush environmental record.
In truth, there were plenty of reasons to believe the existing standard was sufficiently protective of public health and that the new standard would impose a punishing economic burden on many rural water systems and their customers. Nonetheless, stung by the criticism and unable to get its own arguments across, the administration eventually backed off and declined to alter the new standard.
Bush did go ahead and change other last minute Clinton rules, including a new energy efficiency standard for central air-conditioners and a snowmobile ban in Yellowstone Park. But these and other rule changes, in addition to getting mostly negative media coverage, have been challenged on legal grounds. So far, the federal courts have handed the administration several setbacks.
The Department of Energy (DOE) rule on air-conditioners, one of the very last under Clinton, called for a 30 percent energy efficiency increase over the existing standard. The Clinton DOE's original proposal called for a less stringent 20 percent increase, in part because the agency's own analysis found that the tougher 30 percent standard would raise the cost of air-conditioners more than many consumers would earn back in the form of energy savings. But on its final day, the Clinton DOE went with the 30 percent increase.
The incoming Bush administration reviewed the rule and decided to move the standard back to 20 percent. However, this change was rejected last month by the US Court of Appeals for the Second Circuit. The court essentially concluded that the Clinton rule, once promulgated, was final and not subject to further modification. A separate legal challenge to reinstate the Bush rule is currently pending, so the issue is not yet over. But for now, it looks like another win for the Clinton regulators.
Bush's repeal of the Yellowstone snowmobile ban is also in legal limbo. As with many other midnight regulations, the Clinton administration demanded far more of its successor than it did of itself. In fact, Clinton did not set even modest snowmobile use restrictions on his watch, though he was more than happy to saddle the incoming Bush team with a total ban, to take effect in 2003.
Faced with angry Yellowstone Park visitors and snowmobile industry opposition, the Bush administration opted for a different approach. It set the first-ever emissions standards for snowmobiles, and then it modified Clinton's Yellowstone rule to allow limited use of these cleaner, new snowmobiles, but no out-and-out ban.
Green groups challenged these changes, and last December a federal district court shot them down, holding that the Bush administration had not sufficiently justified them. Appeals are ongoing and the ban has been delayed, but again it looks like Clinton will prevail.
Overall, Bush has lost many more midnight regulation battles than he has won. The adverse consequences of these problematic Clinton regulations—higher water bills, costlier air-conditioners, less fun for Yellowstone visitors—will probably get blamed on the current administration, though in truth it did at least try to get out of the trap set for it by the Clinton administration.