Clinton’s Legacy
Senate Dems second-guess Bush for second-guessing Clinton.

By Ben Lieberman, senior policy analyst with the Competitive Enterprise Institute.
July 26, 2001 11:10 a.m.

enate Democrats are beginning to flex their majority muscles, and are planning several investigations designed to embarrass the Bush administration. Most recently, Sen. Joseph Lieberman (D., Conn.), chairman of the Governmental Affairs Committee, announced that he may subpoena Bush administration officials involved in the review of federal regulations promulgated at the end of the Clinton administration. In truth, this investigation will likely find nothing more than a legitimate attempt by the new administration to protect the public from some bad last-minute policies from the last one.

The months preceding inauguration day were extremely busy ones for Clinton regulators, especially those at the Environmental Protection Agency and the Departments of Energy, Interior, and Agriculture. A wave of last-minute Clinton rules were published in the Federal Register right through to January 22nd, the final day before Bush regulators took over. These included a tough new standard for arsenic levels in drinking water, new energy-conservation standards for several household appliances, and a rule prohibiting road building on nearly 60 millions acres of federally controlled land.

These rules were finalized despite lingering questions about their merits. For example, even DOE admitted that its new efficiency standard for central air conditioners would be a lousy deal for consumers. By the agency's estimates, a majority of consumers cannot expect to earn back the additional $335 cost of a compliant system in the form of lower energy bills. Furthermore, the energy savings, a whopping one fifth of one percent of overall energy use, would be far too little and too late to help America out of the present electricity crunch. DOE went so far as to demonstrate that the rule will disproportionately burden low-income households, but went ahead with it anyway.

Other rules may be worse. Although EPA estimated that its new arsenic standard would hypothetically save 23-33 lives per year, a joint American Enterprise Institute-Brookings Institution study found that it could lead to a net loss of life. The study noted the heavy financial burdens the rule would place on low-income families, who may have to sacrifice more pressing needs to pay for higher water bills. The road rule may also prove counterproductive, as some of the impacted areas actually need roads to allow better access for firefighters.

Faced with this flood of regulations that will take effect on his watch (assuming two terms), the incoming Bush administration chose to give them a second look. Chief of Staff Andrew Card instructed all agencies to delay the effective date of these rules by 60 days, allowing time for further consideration.

The administration has chosen not to overturn most of these the rules, including several problematic ones. However, the new team at DOE has proposed a less ambitious efficiency increase for air conditioners, and EPA is reconsidering the arsenic standard. The road rule has run into problems in federal court, and the Department of Justice may choose not to make an effort to salvage it. A few other rules are also in limbo, pending further agency study.

Now, Sen. Lieberman and other Democrats claim to be concerned that affected industry interests have influenced this process. The senator wants all information on any contacts between industry and the administration regarding these rules, and perhaps will hold hearings on the matter.

Actually, the real improprieties probably lie with the Clinton administration in enacting these rules, not with the Bush administration in reconsidering them. Indeed, Clinton EPA administrator Carol Browner is in legal trouble over precisely this matter. Late last year, the Landmark Legal Foundation filed a Freedom of Information Act request with EPA for documents related to agency dealings with the environmental lobby and other special interests that supported these rules. When EPA refused to comply, Landmark filed suit. The very day that U.S. District Court Judge Royce Lamberth ordered the agency to preserve all such records, Browner had everything deleted from her computer files. The judge has demanded an explanation. Oddly, Sen. Lieberman has shown no interest in this episode.

Beyond being one-sided, Sen. Lieberman's concerns about influence of the regulatory process miss the point. The real issue is not access but accountability. There is little doubt that Clinton's regulators held discussions with supporters these rules, and that Bush's people talked to those opposing them. The big difference is that Clinton and his agency appointees took final action just weeks or days before leaving government service, thus they will avoid public accountability entirely. On the other hand, the president still has three and one half years to answer to the American people, and then faces reelection.

If the public doesn't like the way Bush is handling these rules (they certainly won't if they believe the major media, but probably would if they knew the facts), they have the opportunity to make their displeasure known.

On the other hand, Clinton can sit back and laugh while others have to deal with the regulatory mess he left behind.