Senate Panel Says White House May Have Acted Illegally

by Cat Lazaroff

On Inauguration Day 2001, White House chief of staff Andrew Card ordered a freeze of all federal regulations which had not yet taken effect, opening new reviews of hundreds of previously finalized rules.

Though many the suspended regulations had been subject to scientific study and public comment for years or even decades, the new reviews ordered by the Bush administration in most cases did not include an opportunity for public participation and comment, but merely involved an inspection by Bush political appointees.

The report by the Governmental Affairs Committee's majority staff argues that by discounting regulatory procedures and the value of public participation, the administration set an antagonistic tone for its approach to environmental and health regulations. By excluding public input from the reviews, the administration may even have violated federal law, the report says.

"It was wrong for the administration to second guess these final rules," said Senator Joseph Lieberman, the Connecticut Democrat who now chairs the Governmental Affairs Committee. "It was wrong to discount a well established scientific record. And it was wrong for the administration to use stealth tactics to achieve its ideologically driven ends."

The report, titled "Rewriting the Rules," focuses on three environmental regulations that did not survive the Bush administration's inspection. Those rules were the Department of Agriculture's rule prohibiting most road construction and logging in roadless areas of national forests, the Department of the Interior's rule regulating hard rock mining on public lands, and the Environmental Protection Agency's rule capping the permissible level of arsenic in drinking water.

Each rule was "subjected to the new administration's second guessing," the report said. In the first two cases, the administration eventually weakened or undermined the rules.

In the case of the arsenic rule, the Bush administration ultimately adopted the same rule that the Clinton administration had passed after years of scientific study, but only after months of additional, costly studies.

The partisan study argues that the Bush administration's decision to revisit the three rules was based on a "pre-determined hostility to the regulations rather than a documented close analysis of the rules or the agencies' basis for issuing them."

For example, the report charges that the administration's decision to propose suspension of the hard rock mining rule "was not based on documented substantive analysis," and notes that the ultimate decision to rescind parts of the rule allows mining to continue to pose environmental and human health risks.

The administration's future intentions for each of these rules is unclear but the report cautions that "any further actions É must be in full compliance with the spirit and the letter of the law and must not further erode environmental protections or rule making procedures."

Senator Lieberman said the Bush administration's refusal to defend the Agriculture Department's rule protecting roadless areas in national forests against a court challenge has persuaded him to support a bill that would prohibit road construction in certain areas. The National Forests Roadless Area Conservation Act of 2002 was sponsored by Senator Maria Cantwell, a Washington Democrat.

"Protecting these areas is critical to preserving important watersheds, vegetation and wildlife," Lieberman said.

Lieberman ordered the inquiry into the Bush administration's suspension of pending regulations in March 2001. The senator said Wednesday that the report was delayed by the September 11 terrorist attacks, and was not ready for release until this week.

In response to questions from reporters, White House Office of Management and Budget spokesperson Trent Duffy said the timing of the report appeared politically motivated.

"It's disappointing, but it's not surprising it's happening a few days before the election," Duffy told AP and Reuters. "We've opened up the regulatory process to the public like never before."

But the committee's majority report argues that it is precisely the behind the scenes nature of the Bush administration's regulatory review that is disturbing, as it in some cases replaced years of public comment and scrutiny, and on the record agency justifications, with mere months of politicized scrutiny.

The full report is available as a PDF file for download.