- - Monday, December 5, 2016


The bowels of the federal bureaucracy aren’t exactly Santa’s workshop, but legions of Barack Obama’s elves are working 24/7 to leave behind large lumps of coal in the Christmas stocking of Donald Trump. Which is odd, because the president’s loathing of all things anthracite and bituminous is well known.

These metaphorical lumps are the rules and regulations, some barely coherent, being shoveled out the doors of the Interior, Energy and Education departments and the Environmental Protection Agency in the last gasps of a presidency that has never seen a spool of regulatory red tape it didn’t like.

In the fortnight following the Nov. 8 election, the administration finished reviews of nine “economically significant” rules, compared to eight during all of September, according to Bloomberg BusinessWeek. “Economically significant” is how the administration refers to the cost to the economy — more than $100 million a year. Often, a lot more.

In the regulatory pipeline is an Interior Department rule cracking down on methane emissions from oil wells, as well as EPA limits on the use of hydrofluorocarbons, quotas for raising the use of biofuels in gasoline and cutting carbon pollution from the nation’s coal utilities. “We’re running — not walking — to the finish line of President Obama’s presidency,” EPA chief Gina McCarthy wrote in a post-election email to staffers. “I’m looking forward to all the progress that still lies ahead.”

Still lying ahead are a dozen or so energy-efficiency decrees from the Energy Department that would affect furnaces, commercial boilers and portable air conditioners. Other looming midnight regulations and executive actions include schemes to seize for federal control more land in the West, the strengthening of standards to curb falls in the workplace, for evaluating schools under the federal education law that replaced No Child Left Behind, helping high-skilled immigrants get green cards more easily, and canceling bonuses to certain Wall Street executives.

The slurry of midnight regulations will add billions of dollars of compliance costs, which will be passed onto consumers in higher prices for energy and everything else affected by the higher cost of energy. This raises the inevitable question, why has the administration waited until now? Why weren’t the new regulations promulgated months or even years ago? The sudden burst of bureaucratic energy is meant to make it more difficult for Donald Trump to drain the Washington swamp, the natural habitat of fungus and bureaucrats. Obama administration officials calculate that more rules and regulations will force the Trump White House to decide which promises are worth keeping and which are not.

Mr. Trump and the 115th Congress, controlled by Republicans, could start by making maximum use of the Congressional Review Act. The 1996 law, designed expressly to deter this very 11th-hour rule-making, enables Congress to cancel by resolution regulations entered into the Federal Register in the final 60 days of a legislative session.

The Regulations in Need of Scrutiny Act, introduced in the House in January 2015 by Rep. Todd Young, Indiana Republican, with 171 co-sponsors, would further require that every “economically significant” rule or regulation get an up-or-down vote from Congress before it can take effect. The act passed the House, but the companion Senate bill, introduced by Sen. Rand Paul, Kentucky Republican, and 36 co-sponsors, has languished. Enactment of such scrutiny would be a good project for Todd Young, now a senator-elect. Eliminating an excess of bureaucracy, like eliminating fungus, is a job never finished.

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