House committee on the lookout for Obama’s ‘midnight’ rules

By Hannah Hess | 02/11/2016 07:18 AM EST

Reflecting on the “midnight rush” of rules President George W. Bush pushed before leaving office, House members yesterday eyed the Obama administration’s unified regulatory agenda.

Reflecting on the "midnight rush" of rules President George W. Bush pushed before leaving office, House members yesterday eyed the Obama administration’s unified regulatory agenda.

The latest version of the rules timeline, released by the White House in November, shows agencies plan to release 75 economically significant rules this year (Greenwire, Nov. 20, 2015). That’s a sizable "uptick" from the 62 issued last year, noted Small Business and Entrepreneurship Council President and CEO Karen Kerrigan, one of four witnesses who testified before the House Science, Space and Technology Committee.

Critics of the Bush administration’s regulatory policies said the Bush White House hustled to publish most of its controversial rules before Nov. 1, 2008, so they would be in place by Inauguration Day. That surge was evident in charts presented by Sam Batkins, who directs regulatory policy for the American Action Forum. Nearly 40 significant rules were pushed through during that period of the Bush presidency.


The data also showed that 2012 experienced some of the slowest "midnight activity," a fact Batkins attributed to President Obama’s delaying controversial rules until after Election Day. Republican leaders that year called on Obama to commit to not issuing any regulations in the final months of his first term (Greenwire, April 11, 2012).

Chairman Lamar Smith (R-Texas) warned that U.S. EPA and the Department of Energy are on track to push through a slew of new regulations in Obama’s final months in office, and asked the panel to weigh in on what could be done to make the rulemaking process more transparent.

The top Democrat on the committee, Texas Rep. Eddie Bernice Johnson, countered that the hearing was nothing more than a platform to attack the Obama administration. In opening remarks, Johnson said the committee had "little if no jurisdiction over the regulations likely to be discussed today."

Lawmakers already have the option to overturn regulations using the Congressional Review Act, though the act is generally only useful right after a change in administration. Under the law, the House and Senate can adopt a resolution of disapproval to overturn recently enacted legislation, but a president can still veto the measure.

Batkins referred to that as a "messy, piecemeal approach" and said Congress also has options that are more direct.

H.R. 1759, the "All Economic Regulations are Transparent Act," or "ALERT Act," would require agencies to submit monthly updates on which regulations they expect to issue throughout the year. The legislation, sponsored by Rep. John Ratcliffe (R-Texas), was included in a regulatory reform package that cleared the House last month. The White House has threatened to veto the measure (E&E Daily, Jan. 6).

Much of the discussion revolved around DOE’s energy efficiency standards for appliances, including a proposed rule that would raise the efficiency standard for non-weatherized gas furnaces and mobile home gas-fired furnaces to 92 percent from the current standard of 80 percent.

Jerry Bosworth, owner of a Galveston, Texas, heating and air conditioning company that his family founded in 1959, talked about the challenges of keeping up with new standards. The Indoor Environment and Energy Efficiency Association — Bosworth heads the group’s board of directors — has been frustrated in its attempts to move the energy efficiency discussion beyond appliance standards to installation practices.

Bosworth explained the difficulty of replacing old units that are hidden in basements or closets with newer furnaces that are "probably about a foot taller." Bosworth said the equipment itself is expensive. When combined with construction work that might be required to install the system, he said, the "sky is the limit."

Rep. Paul Tonko (D-N.Y.), who also serves on the House Energy and Commerce Committee, steered the discussion toward how private industry adapts and grows when new rules and standards are introduced.

"I couldn’t agree more that regulations have led to innovation in technology," said Kateri Callahan, president of the Alliance to Save Energy. "A great example is a refrigerator. A refrigerator today uses 75 percent less energy. It only uses a quarter of the energy of one that was built in the [1970s]. It’s 20 percent bigger, and it … costs about 25 percent less in real dollars."

Rep. Don Beyer (D-Va.), a car dealer, invited one critic of Obama’s regulatory agenda to take a tour of his operation and suggest which regulations should be wiped off the books. "I can’t find any," he said.

Republicans targeted DOE’s lighting standards and the Clean Water Rule. Smith set the tone when he used his opening remarks to cheer the Supreme Court’s decision to halt implementation of the Clean Power Plan.

"Yesterday, the Supreme Court blocked the administration’s rules to limit greenhouse gas emissions from power plants. The court’s ruling confirms that this rule overreaches EPA’s authority. But nothing seems to deter President Obama from achieving his extreme and unconstitutional climate agenda," Smith said.

After the hearing, Callahan told E&E Daily that there seemed to be a "knee-jerk reaction" that regulation is bad, with opponents scrutinizing upcoming rules that are still being developed instead of taking stock of the current regulatory standards.

"Do you not want safe water to drink? Do you not want to have a house or an office building that’s built with water sprinklers in it, or fire alarms and fire detectors? Do you want a house that’s built that you’re going to have to pay 20, 30 or 40 percent more on your energy bills each month because it doesn’t have insulation in it, or good windows, or equipment that’s efficient?" she said. "You have to start asking those questions."