The Russians say, "even a blind squirrel finds an acorn once in a while," so no doubt among the massive slug of pages that will hit the Government Printing Office for publication in the Federal Register around November 20 there are some carefully thought through, badly needed modifications of federal rules and procedures.

But these are not typical rules -- not even typical Bush rules. These are rules that couldn't meet the Administration's own November 1 deadline. We know very little about how most of them were developed. But we do know enough about one of the most important -- the Administration's proposed massive rewrite of the regulations under the Endangered Species Act.

We know that when 200,000 comments, overwhelmingly negative, were received, the Administration did NOT say to itself, "lots of scientific concern here, we need to slow down and look carefully." Instead the White House hauled 15 staff members from around the country into DC, gave them 32 hours to read, absorb, and understand the tsunami of public concerns. That means that each staffer, assuming they take no coffee or bathroom breaks had to digest 417 comments every hour -- one comment every nine seconds.

Any process that mocks genuine public input in this fashion simply cannot be trusted. Congress should simply use its authority to cancel all of these last minute rules. Those which are meritorious and uncontroversial can be quickly put back in queue after proper vetting -- but the Administration has squandered any basis for giving its land minute, hasty rule making the benefit of the doubt.

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Since the early days of the Clinton Administration, EPA has been working to fix a permitting program known as new source review (or NSR). The Bush Administration has continued to pursue these efforts, initially by finalizing a series of rules that were proposed by the Clinton EPA, but it still needs to issue a rule known as the EGU rule (for electric generating units) that was proposed almost 3 years ago. This is the most important piece of unfinished business left at EPA, and the single most important thing that the Agency can do reduce CO2 emissions from power plants.

The idea behind this program is that, when a major new industrial facility is built, it must go through a permitting process to ensure that it installs the “best available control technology” or BACT. The most troubling parts of this program have nothing to do with “new sources,” but with existing facilities, because the Clean Air Act requires an existing facility to get an NSR permit before making “a physical change or change in the method of operation that will result in an emissions increase.”

This sounds like a fairly simple concept, but in practice it has been almost unimaginably complicated. EPA has issued literally thousands of pages of regulations and guidance documents, and there have been dozens of court cases trying to deal with these issues – cases that have come up with very inconsistent results.

Remember that a facility must obtain a permit before it can make a change that will trigger NSR. It generally takes a new power plant five years or more to get an NSR permit, including multiple rounds of litigation. For an existing plant, triggering NSR not only means years of delay, but tens or hundreds of millions of dollars. Thus, every power company in the U.S. employs teams of lawyers and consultants to scrutinize virtually all the repair and maintenance projects it wants to undertake at its plants – just be sure they will not trigger NSR. This may sound like an exaggeration, but it is not. In a number of recent cases, federal and state enforcement officials and environmental activists have argued, sometimes successfully, that a minor repair or maintenance project at a plant (something costing less than a million dollars) actually “triggered” NSR review that would have required the plant to invest hundreds of millions of dollars. As a result, companies must carefully analyze every project their engineers want to do to make the plant more efficient or more reliable.

The EGU rule will largely resolve these issues, by clearly defining what does, and what does not trigger NSR at existing power plants. Environmental activists claim that it will lead to substantial emissions increases, but a number of studies have shown that this is not the case. It will simply allow engineers free reign to improve the efficiency and reliability of existing plants, as long as they do not change the existing capacity of the plant.

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As the DOE transition officer in 1993, I’d encourage the Obama Administration not to take a “meat cleaver” approach and rescind all rules promulgated by the Bush Administration after a certain date. Many of these rules likely have been in gestation for a long time and are coming out now due to the normal end of year and end of term cycles. Rescinding these would throw away good work and create uncertainty, the last things that the new Administration should want.

You can learn from the current appointees and from career staff. The Clinton Administration transition team representative at the Department of Energy in 1992-93 was extremely gracious. He spent the time to listen re pending priorities and even sought recommendations. He understood that for the Secretary of Energy at that time, Admiral James Watkins, a smooth and effective change in command was a serious matter, one on which he personally spent a great deal of time and effort. I have never forgotten that.

The Obama Administration has been entrusted by the American people to set new priorities and craft its own recommendations. A running start can only help unless the baton is dropped, which seems unlikely with this transition team.

White House Chief of Staff Josh Bolton made it clear earlier this year that the Bush administration would avoid ramming through so called “midnight regulations” as they leave office by requiring all final agency rules to be completed by November 1, “except in extraordinary circumstances.” This deadline has come and gone, yet we’re still awaiting a wave of potentially devastating environmental rules to come down from several agencies. The “extraordinary circumstances” Bolton alluded to were apparently decisive Democratic victories in last week’s national elections. Bush’s successor will not share his unwavering commitment to de-regulation and giveaways to big business at the expense of the environment. Consequently, Bush now must try to finish the job himself, in the process cementing his legacy as the most anti-environment president in our nation’s history.

The Select Committee on Energy Independence and Global Warming that I chair recently issued a report that examines the most notable rules that the Bush administration has targeted in its final weeks. Two of the most important laws under attack in Bush’s midnight regulations are the Clean Air Act and the Endangered Species Act. These long-standing laws represent decades of bi-partisan legislative progress as well as two of the central pillars of our country’s environmental protections.

The Clean Air Act’s New Source Review (NSR), a program that forces power plants to install pollution control technologies when making updates to facilities that increase their emissions, could be completely gutted in the next few weeks. The Environmental Protection Agency (EPA) plans to finalize an NSR rule before the end of the administration that would essentially exempt all existing power plants from having to install new pollution control technology when these plants are updated. If put in place, the effect of the rule will be to allow old, dirty power plants to continue to increase emissions without having to install emissions control technologies. These proposed changes in pollution control follow the same faulty methodology Duke Power used in arguing its challenge to current NSR rules, which it ultimately lost in the Supreme Court in Duke v. EPA – decided the same day as the global warming case Massachusetts v. EPA. The responses to these two cases demonstrate perfectly the Bush administration’s approach to the environmental protection: new rules to allow more pollution in one case while totally ignoring EPA’s responsibility to regulate greenhouse gases in the other.

The Department of the Interior has already indicated its intention to gut the Endangered Species Act by rushing through 300,000 comments on proposed rules in 32 hours, then providing a mere 10-day public comment period on the Environmental Assessment of the proposed rules change. The proposed rules would take expert scientific review out of many Endangered Species Act processes, and could exempt consideration of the effects of global warming.

Perhaps no other step taken by the Bush administration demonstrates its disregard for global warming as the recent reports that Interior intends to finalize new regulations governing commercial development of oil shale on more than 2 million acres of public lands in the American West. At present, fundamental uncertainty remains about the technology that could ultimately be used for large-scale extraction, as well as the larger cost and environmental implications. Oil shale’s low energy content combined with its complex, expensive, and energy- and water-intensive extraction and refining requirements make it an extremely problematic energy option. Large-scale tar shale processing is estimated to produce five times the pre-combustion greenhouse gas emissions of conventional petroleum.

By reneging on his commitment to avoid midnight regulations, Bush will be turning his back on the environment a final time while giving one last gift to his polluting pals. With so much other work to be done on the economy, energy, and health care, it is unfortunate that the Democratic-controlled Congress and President Obama will have to invest time and energy trying to undo Bush’s final radical missteps.

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