Post Election Flurry of EPA Regulatory Activity

Lobbyists, congressional staffers, and former administrative officials report that many EPA final rules have been delayed in 2012 due to the election year and to avoid providing ammunition to the Romney campaign.  The pace of regulations has been cut in half compared to President’ Obama’s first two years, and is lower compared to other presidential reelection years.  Environmental lawyers estimate that EPA staffers have finalized at least a dozen final rules, but are waiting until after the election to submit them to OIRA for review.  In addition, review of the regulations OIRA does have is moving at a much slower rate.  While the average review time of an executive agency regulation is 60 days, 70% of regulations have been at OIRA for longer than 90 days (the default review time established under executive order) and 10% have been there for over a year.  According to OIRA data, the EPA is the single largest source of regulations currently pending.

The EPA has also been criticized by the media and the U.S. Senate Committee on Environmental and Public Works, Minority Staff for failing to release a bi-annual regulatory agenda.  In 1980, Congress passed the Regulatory Flexibility Act, which requires each agency to publish a description of all rules likely to have a “significant economic impact” on a substantial number of small entities every April and October.  The EPA last published its agenda in Fall 2011, ignoring the April and October 2012 deadlines.  The lack of EPA regulatory action by the Obama Administration was recently brought to the spotlight by the U.S. Senate Committee on Environment and Public Works, Minority Staff’s report entitled “A Look Ahead to EPA Regulations for 2013: Numerous Obama EPA Rules Placed on Hold Until After Election Spell Doom for Jobs and Economic Growth”.  The report, issued by Senator Jim Inhofe (R-Oklahoma), details a number of regulations that would likely be issued in 2013 if President Obama were reelected.

With election day nearing, the EPA is preparing for the release of a large amount of regulatory action.  No matter who wins the election, the EPA will likely begin approving a number of final rules on a variety of environmental issues.  If President Obama wins the election, new regulations will most likely be spread out over his next four years but with a large increase in EPA regulatory action starting in the first half of 2013.  If Governor Romney wins the election, President Obama will likely pursue the common midnight regulation strategy, and issue a flurry of regulations between election day and inauguration day of the new President.  Scuttlebutt has the EPA staff working on finishing greenhouse gas emission standards that impose more restrictions on coal plants to release at the end of November in case President Obama is not reelected.  Former EPA officials and several environmental lawyers think that Governor Romney would likely not directly repeal what has already been implemented by President Obama, but would instead likely try to amend recent rules to make them less stringent or simply concentrate on implementing new rules.  According to the Cato Institute, Governor Romney would not have much power to reduce regulations on carbon dioxide and greenhouse gases due to the Supreme Court’s 2007 decision in Massachusetts v. EPA. The decision held that if the EPA found that carbon dioxide and greenhouse gases endanger human health and welfare, the EPA must regulate those gases to the point at which it no longer endangers.  In 2009, the Obama Administration found endangerment, and in 2012 the Court of Appeals for the District of Columbia upheld the endangerment finding in Coalition for Responsible Regulation v. EPA.

While we wait to discover the results of the election one thing is certain: there will be a number of new EPA regulations in the coming months.

Written by Sarah J. Imhoff, GIELR staff

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