Diary of a Mad Voter: Joan McCarter

Grijalva Obama’s Best Bet at Interior

By Joan McCarter, 11-25-08

Let’s just take the last few months of midnight regulations as a start. Guns in National Parks. Uranium mining at the Grand Canyon. Oil and gas drilling in Utah’s canyonlands, within in a few miles of a national park. Removing global warming as a consideration in endangered species listings. Allowing mining, drilling, logging and other extractive projects without consultation from scientists and federal habitat managers. Add on top of that the burrowing of some of Bush’s most environmentally destructive political employees, and the incoming Obama team has a hell of a job on its hands.

ProPublica, via Politico explains the difficulty the new administration is going to have in rolling back mnay of these rules and regulations of the Bush administration:

While executive orders and rules that are not yet in effect can swiftly be reversed or altered by Obama’s appointees or his own executive orders, rules that go into effect before he takes office will be extremely difficult to undo. Rescinding a rule would require the new administration to re-start the rule-making process, which can take years and prompt legal challenges. Another strategy that has been talked about lately – getting Congress to disapprove the rules through the Congressional Review Act — carries political risks and has been used only once before.

“The problem with what the Bush administration is doing is that these rules are extremely cumbersome to adopt, and they are every bit as cumbersome to undo,” said David Vladeck, an administrative law professor at Georgetown University. “It condemns the next administration to spend years fighting on the old administration’s agenda.”

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Getting rid of a rule that is already in effect is enormously difficult, because it must be replaced with another rule. That process can take months or even years and could leave some of the Bush rules in place in the meantime. It can also lead to lawsuits.

“If you start the rulemaking process over again, the end product is likely to be challenged in court by somebody, and the administration would need to develop a record that supports the decision to promulgate a new rule,” said Robert Glicksman, an administrative law professor at the University of Kansas.

Bush’s midnight regulations also could be challenged by public interest groups, who are already considering legal actions to get some of them overturned. If the Obama administration agrees with the group’s position, it could promise the court to develop a new rule that both parties can agree on. But that would open up the possibility of further legal challenges from third parties, such as utility companies or other industry interests, which could assert that the Obama administration and the group were participating in a “collusion of interests” without adequately considering the impact on industry.

“By intervening, industry could buy more time and save billions of dollars by avoiding compliance to a new rule,” said Rena Steinzor, a University of Maryland law professor who is also a member of the Center for Progressive Regulation, a Washington, D.C.- based advocacy group.
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To bypass such an arduous process, some Democrats in Congress are contemplating the use of the Congressional Review Act, an obscure Clinton-era law that allows Congress to vote to disapprove any rule finalized within about six months before Congress adjourns. It was passed by the Republican-dominated House in 1996, partly because Republicans wanted to shoot down Clinton-backed rules....

Of the nearly 50,000 rules that have been submitted to Congress since the act was passed, it has been used to overturn only one rule, according to a recent Congressional Research Service report on the act. That happened in 2001, when the Congress voted down a Clinton-backed ergonomics standard aimed at improving workplace conditions and equipment for workers. Critics said the standard was too broad and too costly.

Using the Review Act doesn’t necessarily guarantee that a rule will be voided, because the rule’s opponents may not be able to muster the votes they need. It would have to be for a “rule that is politically unpopular and reinforces the message that the new Congress and the President want to send,” said Reece Rushing, a regulatory expert for the Center for American Progress, a liberal think tank in Washington, D.C.

If the Congressional Review Act is used to disapprove a rule, Congress would also be required to approve any similar rule in the future.

“This might be a lot more difficult than people think,” said Matt Madia, a regulatory expert at OMB Watch.

Given that scenario, the choice that Obama makes for Interior should be able to work very closely with Congress in devising a strategy for rolling back as much of the damage as possible. The good news in this is that names currently being floated by the transition team could do just that. And one of them rises to the top.

INTERIOR SECRETARY
Rep. Raul M. Grijalva, D-Ariz.
Former Gov. John Kitzhaber, D-Ore.
Former Gov. Tony Knowles, D-Alaska.
Rep. Mike Thompson, D-Calif.

At Interior, I expect that Grijalva and Thompson have a leg up. Thompson has been heavily pushed by hunting and fishing organizations, as well as by influential Congressman George Miller. Arizona representative Raul Grijalva meets a couple of key criteria

Choosing the congressman, who was just re-elected to his fifth term, would please both Latino advocates and the environmental community. Grijalva boasts a 95 percent lifetime score with the League of Conservation Voters, and he oversaw a federal study that linked oil and gas development on public lands with the decline in Western hunting habitat. He has also questioned the cheap grazing permits the Interior Department has leased to ranchers in the West.

For the rest of the west--the drought stricken interior--Grijalva would be a better choice than Thompson. One factor is the inherent hostility of most of the Interior west to California--a Rocky Mountain state secretary would have an advantage in dealing with the interior states governors and lawmakers. That perhaps shouldn’t be a factor, but it’s a reality. As an outspoken and constant critic of the Bush administration, last month he issued a scathing report titled “The Bush Administration’s Assaults on Our National Parks, Forests and Public Lands,” accusing Bush of carrying out “a concerted strategy” of reducing protections for federal properties, “opening up these lands for every type of private, commercial and extractive industry possible.” Grijalva has an in-depth understanding of how we got into this mess, and would have a leg up on figuring how to get us out.

As for the other contenders, Kitzhaber is a phenomenal politician--the anti-politician. He’s a consensus builder and is insanely popular in Oregon. But he’s been out of the public spotlight, by choice, since he left the governor’s office in 2004. Tony Knowles, the former governor of Alaska, would be a slightly controversial choice because of his past support for development in the Arctic National Wildlife Refuge (as pretty much all Alaska politicians do). After these past eight years, I’d argue for an Interior Secretary with an inherent skepticism toward more drilling.

That Grijalva is apparently a leading candidate (though his spokesperson claims that he hasn’t been contacted) is highly encouraging. The environment and the stewardship of our public lands is one area in which a “mandate for reconciliation” should definitely be put aside in favor of as complete a reversal of Bush policy as possible.

Editor’s note: Joan McCarter’s weekly blogs are part of NewWest.Net/Politics’ “Diary of a Mad Voter” feature, a group blog, published in partnership with the Denver Post’s Politics West intended give a glimpse into the hearts and minds of several independent-minded voters and thinkers in the Rocky Mountain West in the ‘08 election cycle. For more columns check in with www.newwest.net/madvoter. And for more information on each of the bloggers, click here.

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