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PRI's Environmental News Magazine

Rules & Regulations Primer

Air Date: Week of February 2, 2001

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Transcript

CURWOOD: The final months of President Clinton's administration saw many environmental initiatives. They include requirements for cleaner diesel engines, a federal standard for organic foods, and the creation of new national monuments. But on his first day as President, George W. Bush ordered federal agencies to put those new measures on hold, pending review. Republicans say they may challenge and try to reverse some of Mr. Clinton's environmental actions. Living on Earth's Anna Solomon-Greenbaum explains how the unraveling process might work.

SOLOMON-GREENBAUM: There are three basic categories most controversial initiatives fall into. Regulations, policies, and executive procedures to set aside public land. Regulations are the most difficult to create and to reverse. One recent Clinton regulation that sparked opposition and lawsuits from industry groups is the Roadless Area Initiative, which makes almost a third of national forest land off-limits to roadbuilding, logging, and mining. Pat Parenteau is a professor at the Vermont Law School. He says there are three ways the Bush Administration could challenge Clinton regulations. One, the 1996 Congressional Review Act, gives Congress a lot of latitude.

PARENTEAU: It's never been used or tested so far, but it's a statute that allows Congress to repeal rules that have been adopted by the Executive branch, by introducing resolutions in both houses of Congress. And if they pass by a simple majority in both houses and that resolution is then presented to the President, and if he signs it, it becomes law, and that would repeal any rule that it covered.

SOLOMON-GREENBAUM: A second strategy is more cumbersome. It's called the Administrative Procedure Act, and it would require the Bush administration to go back through the rulemaking process and reopen the rule for public comment. The last way to block a Clinton regulation would require cooperation from the Justice Department.

PARENTEAU: In the fact of lawsuits that have filed against many of these Clinton rules, including the roadless rule, the Justice Department could simply go into court and confess judgment. That is to say, we agree with the people challenging this rule that it was not adopted in a proper fashion, and we intend to go back over it and change it or get rid of it altogether.

SOLOMON-GREENBAUM: Policies are very different from regulations. They can be changed overnight, without any formal process. Examples of recent policies include a ban on most logging of old growth timber on public lands, and a revised interpretation of the 1872 Mining Act that's tougher on industry. Then there is Clinton's horde of national monument designations being contested now by some Republican senators. National monuments are created through the Antiquities Act, which lets the President set aside public land with historic or scientific significance. Though the act grants the power to create monuments, it's silent on the question of abolishing them. Some public land scholars argue this makes the President powerless to reverse a monument designation. But Pat Parenteau says it hasn't been tested, and that Bush would probably have the legal authority to do as he sees fit.

PARENTEAU: One of the major designations that Clinton made in southern Utah is called the Escalante National Monuments, about 1.9 million acres. Reportedly, it contains a lot of oil and gas and coal resources, and we know what President Bush has said about his views on energy. He thinks we ought to be exploiting energy resources on the public lands much more so than we have been doing. So it's possible that he would make exceptions under the Antiquities Act for allowing mineral development in some of these monuments, or it's possible that Congress would step in and do so, and President Bush would go along with it.

SOLOMON-GREENBAUM: Regulations, policies, and national monuments aside, Parenteau says the most common tactics during presidential transitions don't lead to documents you'd find in the Federal Register.

PARENTEAU: The easiest way to accomplish some of the goals of rolling back some of these Clinton initiatives would be what you might call the passive-aggressive approach. Which is: We won't directly challenge any of these rules, but we'll just simply not implement them.

SOLOMON-GREENBAUM: Changes in agency staff and advisory boards, along with budget and priority decisions, can all affect whether a ruling is implemented and how well it's enforced. These are quieter strategies the public is less likely to hear about. For Living on Earth, I'm Anna Solomon-Greenbaum.

CURWOOD: Coming up: Rescuing plants and saving biodiversity in sprawling Florida. Stay tuned to Living on Earth.

Now this environmental health update with Diane Toomey.

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