No matter who wins the White House, Election Day is likely to unleash a flurry of regulatory action within the Environmental Protection Agency (EPA). But if Mitt Romney wins, the stakes will be particularly high as the EPA seeks to approve several rules that have been caught up in regulatory purgatory amid election-year politics.
"I think we will see an increase regardless of who wins, because there seems to be a backlog of regulatory activity that is just waiting to burst forth," said Susan Dudley, who was head of the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs in the George W. Bush administration and has studied the growing trend of outgoing presidents issuing "midnight" regulations. "If Romney wins, there won't be as much time, so [the rules] will hurry through OMB review rather quickly," Dudley added.
Congressional Republicans, cognizant of this trend and worried about what some in their party call a "rogue" EPA, introduced legislation in April that would ban a lame-duck president from issuing major regulations.
"If President Obama in his last days attempts to ram through a number of costly regulations, I can tell you that the House of Representatives will take action to prevent them from going into effect," House Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.) said to National Journal Daily.
EPA has proposed draft rules for new power plants, and experts predict that the agency would finalize those by Jan. 20 if Romney wins. EPA has not proposed parallel carbon rules for existing power plants and new or existing oil refineries. But environmentalists are pressuring the agency to do so.
"The biggest concern is if Romney wins, EPA enters into consent decree with environmental groups before Jan. 20. They will lock the Romney administration into issuing a rule," said a utility lobbyist who would only speak on the condition of anonymity.
EPA is also expected to act on final standards controlling mercury pollution from industrial boilers and incinerators, which have been pending at OMB since May 17 (the default upper limit for review is 90 days).
Both Democratic and Republican administrations have traditionally pushed through a flurry of regulations at the end of a president's tenure.
"This 'midnight regulation' phenomenon is not dependent on a party," Dudley, who is now director of the George Washington University Regulatory Studies Center, wrote in a research note on the subject. "Every modern president has issued more regulations between Election Day and Inauguration Day than in other quarters of his term."