Federal agencies push flurry of 'midnight' rule-making under Obama

With less than two months before US President-elect Donald Trump's inauguration, federal agencies under President Obama are pushing for a final flurry of new rules – despite the high likelihood that many will not survive.

First Look

President Obama is heading into his administration's final weeks with a full agenda of new draft orders to consider, even though his successor has vowed to scale back job-killing regulation and cancel "all illegal and overreaching executive orders."

Despite the likelihood that US President-elect Donald Trump and the Republican-controlled Congress would kill any controversial late-in-the-game moves by Mr. Obama, federal agencies under the Democratic president are pushing for a flurry of so-called "midnight" regulations on everything from the environment to transportation and financial marketplaces.

The White House was reviewing as many as 98 final regulations, as of Nov. 15, that could be implemented before Mr. Trump takes office, including 17 with an estimated annual economic impact of $100 million or more, Politico reported. But lawmakers have warned agency heads to avoid rushing to finalize rules or regulations before Obama leaves office.

"Should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions – and, if appropriate, overturns them," House Majority Leader Kevin McCarthy (R) of California, wrote in a letter last week.

Several of the new rules slated for installation before Trump assumes office include environmental protections that critics argue hamper business interests and economic potential. Although some offices had initially delayed implementation of their rules, expecting Democratic presidential nominee Hillary Clinton to win on Election Day, the offices have pivoted to promulgate the rules quickly after Trump's unexpected win – and faced criticism.

"We're looking at the stack of regulations and the fact that the agencies are just as ill-prepared to make these new regulations work as we are confused on how we can possibly comply in such a short time," Kathleen Sgamma, vice president of government and public affairs at the Western Energy Alliance in Denver, told The Hill.

Others, however, contend that the push for environmental protections is consistent.

"We've seen a whole trajectory here of the Obama administration leaning into conservation and climate issues," Alex Taurel, the League of Conservation Voters deputy legislative director, told The Hill.

US Interior Department spokeswoman Jessica Kershaw said in an email that the administration is merely "finishing the business we started and in some cases, finishing the business of prior administrations where decisions weren't complete when we took the helm."

With the addition of three monuments in February, Obama had designated more than 265 million acres of land and water – more than any other president since the US Antiquities Act afforded his office the power in 1906 to protect public lands – as The Christian Science Monitor reported:

To some, Mr. Obama's use of the 110-year-old Antiquities Act to unilaterally designate a massive area that holds everything from lava flows to Joshua trees is a major legacy move, part of the President’s "commitment to aggressive action" to preserve public lands in their natural state.

But to others, it smacks of federal overreach.

Republicans who hope to undo segments of Obama's legacy have a powerful tool to do so in the Congressional Review Act of 1996. The law will enable Congress in January to repeal, with a simple-majority vote, any agency rule completed after May 30, 2016, as Politico reported. After blocking any rule with that mechanism, the agency would be barred from enacting anything that is "substantially the same."

And some Republicans are pushing to bolster the tool by enabling Congress to repeal groups of regulation wholesale, instead of dismantling it piece by piece.