WASHINGTON — President-elect Barack Obama will have limited authority to overturn federal regulations approved in the waning months of the Bush administration. But a little-used power offers the new Democratic Congress an early test of how aggressively lawmakers might unravel such rules pushed through by Republicans.
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Under a special fast-track authority, Congress could repeal current rules from as far back as May. Many are related to the environment and health. Aside from congressional action, such changes involve a laborious rule-making process that can take years.
The Congressional Review Act of 1996, used just once in the past 12 years, could become a sweeping tool for Democrats against late regulations from the Bush presidency. Environmental activists are compiling lists of regulations they believe Congress should target, including ones covering water pollution at huge farms, pollution control equipment at older power plants and hazardous waste restrictions.
"One of the things to watch is whether there are actions in Congress that reflect a new philosophy that is a different direction than the Bush administration, which has been a pro-industry approach to governing," said Rick Melberth, an expert at the Washington-based OMB Watch, a nonprofit watchdog organization.
Bristling over suggestions the Bush administration was too cozy with industry, the White House has defended its new regulations and cites requirements for increased auto fuel efficiency as "maybe not particularly welcomed by members of the business community."
"We're trying to do them in the best way that protects the interests of the nation," White House spokesman Tony Fratto said at a news briefing.
For pending rules, Obama could freeze them as soon as he takes office in January. Separately, Obama could use his presidential authority to reverse executive orders by Bush on policies such as stem cell research and the gag rule on overseas family planning groups that might advise women on abortion.
"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," Obama's transition chief, John Podesta, said on "Fox News Sunday" last weekend. "I think that he feels like he has a real mandate for change. We need to get off the course that the Bush administration has set."
But once regulations are in effect, only Congress could overturn them, outside the cumbersome rule-making process.
The 1996 law gives Congress expedited authority to shortcut the legislative process. Once a regulation is repealed, Congress would have to approve any substantially similar new rule. The law allows 60 congressional working days to repeal a finalized regulation once it comes to Congress for review. If the House or Senate session ends before a full 60-day review period, a new 60-day clock starts 15 working days after the new Congress begins.
The review period is elongated because Congress takes off August and members adjourn for long holidays or other breaks. That means that depending on when the lawmakers wrap up this year, regulations going back to May could be subject to expedited repeal by the new Congress that will convene in January, said Curtis Copeland, an expert at the Congressional Research Service who has studied the issue.
Lawmakers have asked Copeland to testify at a House Judiciary subcommittee hearing on Tuesday to explain their options under the law.
Major new regulations typically take effect 60 days after they are finalized, meaning those completed before Nov. 20 would be in effect when Obama takes office Jan. 20 and could not be blocked by the White House. Bush's chief of staff, Joshua Bolten, previously directed all federal agencies to issue their final rules by Nov. 1 except in extraordinary cases.
Congress is a different matter. The repeal law makes sense only when one party controls both the Congress and White House, eliminating the prospect of presidential veto. Congress has used it just once, in 2001 when Republicans overturned a Clinton-era rule on workplace ergonomics. The law was enacted by a Republican Congress wary of an over-regulatory bureaucracy.
The chairman of the House committee studying global warming, Rep. Edward Markey, a Democrat from Massachusetts, will consider repealing Bush's rules that he considers egregious, said Markey's spokesman, Eben Burnham-Snyder. Markey has criticized Bush's approach on air pollution, greenhouse gases and endangered species protection.
"Congress has been doing battle with the Bush administration on a lot of these rules," Burnham-Snyder said. "There's both the political will and now the mechanism to assist an incoming administration and expedite the reversal of some of these rules."
House Speaker Nancy Pelosi will consult congressional leaders and the incoming Obama administration on the best approach toward Bush's regulations, her aides said.
Targets could include regulations such as one easing hazardous waste restrictions on 1.5 million tons of waste, said Ben Dunham, a lawyer for the organization Earthjustice.
Other candidates could include exemption rules for water pollution permits and regulations on oil refinery emissions, said John Walke, a lawyer for the Natural Resources Defense Council.
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