Clinton’s Last-Minute Environmental Regs: More Targets for the Congressional Review Act

Bill Clinton’s end-of-administration pardons and other scandals have garnered considerable attention over the past two months. However, they are not the most regrettable things the former president did during his final weeks in office, as his flood of last-minute environmental rules will have far more damaging effects. If allowed to stand, these rules would provide little, if any, benefit while imposing substantial costs on millions of Americans. Fortunately, Congress has a tool to right these regulatory wrongs—the Congressional Review Act (CRA). This act was successfully employed several weeks ago to overturn the Labor Department’s midnight ergonomics rule. Congress now should be encouraged to press on, using CRA to rein in other hasty rules.

Background

In the weeks leading up to inauguration day, the Environmental Protection Agency (EPA), Department of Energy (DOE), and other regulatory agencies cranked out final rules at a furious pace. Many were highly controversial, threatening to do far more economic harm than environmental good. In some cases, these concerns were the very reason the rules had not been enacted earlier. However, knowing that a final rule is harder to undo than a pending one, and that the incoming Bush administration may not want to go forward with several of these measures, the outgoing Clinton team rushed to finish as much as possible.        

Faced with this mountain of new rules, incoming White House Chief of Staff Andrew Card issued a memorandum providing the new administration with an opportunity to review them.[1] The memorandum called on all incoming agency heads to hold up publication of any more Clinton administration rules that had not yet appeared in the Federal Register, and pushed back the effective date of recently published rules by 60 days.

This regulatory respite has given the new Bush appointees time to weigh the merits of these rules, and consider modifications or outright repeals. For example, EPA Administrator Christine Todd Whitman recently announced her intention to propose withdrawing a January 22 rule lowering the allowable arsenic level in drinking water.[2] Whitman cited high costs, especially for small rural communities, and uncertain public-health benefits from tightening the existing standard.[3]

However, only a few rules will come under such scrutiny. Most agency heads are busy enough trying to implement their own agendas and deal with new challenges, and are unlikely to comprehensively review every problematic Clinton rule.

A role for Congress. Assuming that most of these eleventh-hour environmental regulations are not reversed at the agency level, Congress should step in. Under the 1996 Congressional Review Act, Congress can vote down any major regulation by passing a resolution of disapproval, which is essentially a bill forbidding the agency from going forward with the rule in question. CRA was not successfully used during the Clinton years, largely because regulatory critics in Congress never had the two-thirds majority necessary to override a certain presidential veto.

But several weeks ago, the new Congress and president demonstrated a willingness to use CRA to take on questionable regulations. Congress passed a resolution of disapproval of Clinton’s so-called ergonomics rule, a massive Department of Labor effort to regulate workplace injuries linked to repetitive motions. President Bush signed the measure into law, the first such regulatory rejection under CRA. Further, despite the predictable demagoguery from labor unions and some politicians about worker safety being jeopardized for the sake of corporate profits, news of the ergonomics rule’s demise received only minimal critical coverage.        

Now that CRA has been successfully used to strike down one Clinton administration regulation, Congress should target additional rules. Here are a few of the many recent environmental regulations that deserve a similar fate:

Motor-fuel regulations. Despite the fact that last summer’s soaring gasoline prices were caused, in substantial part, by unnecessary EPA regulations, the agency has since promulgated new rules that threaten to further restrict supplies and raise prices. This includes a measure to reduce by 97 percent the amount of sulfur in diesel fuel, enacted on January 18.[4] This diesel-sulfur rule will further complicate the process of refining petroleum, possibly leading to localized shortages as well as overall increases as high as 11 cents per gallon. Meanwhile, motor-vehicle emissions have been declining substantially over the past three decades, raising doubts as to the need for such stringent additional controls.

Home appliance efficiency standards. DOE used the final days of the Clinton era to tighten energy conservation standards for several home appliances. On January 12, the agency set new conservation standards for clothes washers.[5] These standards will add approximately $249 to the purchase price of a new machine, and may adversely affect product choice, performance, and features.[6] On January 22, the very last day Clinton regulations could be published in the Federal Register, the agency enacted new standards for central air conditioners and heat pumps.[7] This rule will add $335 to the price of a new air-conditioning system, and $332 for a heat pump.[8] Even DOE concedes that many consumers will not earn back this amount in the form of energy savings, and that low-income households will suffer disproportionately.[9] On January 17, the agency finalized a new conservation standard for water heaters, despite safety concerns raised by some manufacturers.[10]    

In all three cases, the marginal energy savings are trivial, and the only real consequence of these rules will be to raise costs and compromise consumer satisfaction for these home appliances.

The roadless rule. On January 12, the Department of Agriculture’s Forest Service finalized a rule prohibiting road construction on nearly 60 million acres of federally owned land.[11] This rule would have devastating effects on many communities that depend on timber harvesting and other productive activities in the surrounding federal property. It would also keep substantial domestic natural-gas and oil deposits out of reach. Furthermore, the rule has not been shown to be necessary to protect ecosystems, and in fact may be counterproductive. For example, roads are necessary to bring in personnel and equipment to fight forest fires, and to engage in the kind of forest management necessary to prevent future catastrophic fires.[12]

Conclusion

There are a number of problematic Clinton-administration environmental regulations scheduled to take effect in the coming months. Congress can and should use the Congressional Review Act to reject them. But time is running short. If Congress does not act soon, there will be little to stop this regulatory onslaught, which threatens adverse consequences the American people will suffer long after Clinton’s other follies have been forgotten.