Now What?

The battle is over, the race is won. But how will the 44th president roll back eight years of environmental malfeasance?

By Ben Whitford

With the last cheers echoing around Chicago’s Grant Park, and Democrats across the nation still nursing hard-earned hangovers, it seems churlish to be anything other than optimistic about what the next four years hold in store. George W. Bush has arguably been the worst president for environmentalism since the origin of the term: the lowest rate of endangered species listings of any president since the Act was signed in 1973, zero meaningful action on global warming, broken campaign promises to clean up coal emissions, weakened standards on mercury emissions, public lands opened to development and energy extraction on an unprecedented scale…the list goes on and on. President-elect Obama won the White House while putting energy and environmental issues front and center of his campaign; on Jan 20th, he’ll take the oath of office with a clear mandate--and the votes in Congress--to turn the page on much of the Bush administration’s disastrous environmental record.

Still, good intentions will only go so far; in the last months of his administration, President Bush is going to extraordinary lengths to create bureaucratic momentum that will serve to cement his ideological legacy, ordering his agency chiefs to begin a flurry of last-minute rule-making designed to lock in business-friendly environmental policies. He’s also leaving his successor with a federal infrastructure suffering from systemic dryrot: Key agencies are now understaffed, underfunded, demoralized, and politicized in ways that could take years to put right. “Unfortunately, the Bush administration has done an incredible amount of damage,” says Tiernan Sittenfield, legislative director of the League of Conservation Voters. “The Obama administration is going to be a welcome change - but they’re going to have their work cut out for them.”

The first order of business  for President Obama -- before even the important but laborious process of crafting and negotiating climate-change legislation -- will be to try to slam the brakes on Bush’s last-minute “midnight regulations”: a flurry of dozens of new rules that includes measures to lift important restrictions on mountaintop mining, exempt factory farms from emissions regulations, make it easier for developers to duck the requirements of the Endangered Species Act, and relax drinking water standards. Such last-minute rule-making is something of a tradition for outgoing presidents; Bush has gone further than usual, though, ordering his agency heads to accelerate regulatory efforts in a bid to make sure new rules are not merely published but actually in effect by the time Obama takes office. That could make it far harder for the incoming administration to roll back Bush’s regulations, says Rick Melberth, director of regulatory policy at OMB Watch, a nonprofit watchdog group concerned with regulatory issues. “Once a rule is in effect, the next president can’t just place a moratorium or suspend it the way they could with a regulation that’s still in the pipeline,” says Melberth. “In essence they’d have to start from scratch.”

Ordinarily, midnight regulations are the product of presidents rushing to finalize longstanding regulatory projects before they leave office. Bush, by contrast, has sought to rush through dozens of major new regulatory efforts from a standing start by skipping or curtailing important scientific and public consultation steps, says Reece Rushing, director of regulatory and information policy at the liberal Center for American Progress; in one instance, he says, the Interior Department took just four days to review 300,000 public comments on new Endangered Species Act rule-making. Obama, who’s promised a new era of transparency and open government, won’t have that luxury, meaning that Bush’s hastily written policies are likely to remain the law of the land for months or years while new rules are drafted and debated. Worse, rolling back Bush’s regulatory vandalism will take up valuable time and resources, making it harder for the Obama administration to move ahead with a more proactive environmental agenda. “It ties Obama’s hands,” says Rushing. “They’ve got to go back and undo all the bad stuff, and that can get in the way of moving forward.”

Whether he’s seeking to roll back the sins of his predecessor or to move ahead with his own agenda, Obama will face a further challenge: after eight years, the Environmental Protection Agency, through which the bulk of such rulemaking would need to be processed, is a shell of its former self. “There’s a culture of powerlessness and impotence that’s taken hold at the EPA,” said a former senior agency official. “The top management has not really been able to deliver the support of the White House … The end result of that is a feeling of powerlessness and dejection - that’s a pretty deep problem that will have to be addressed.”

To correct the EPA’s institutionalized malaise, Obama will need to usher in a new era of scientific independence and transparency both at the agency itself and at the Office of Management and Budget, the White House office that under Bush often sought to interfere in the work of EPA scientists and policy analysts. But changing the institutions’ culture may be easier said than done; some observers worry that over the past eight years, Bush loyalists have “burrowed down” (in agency parlance) from appointed positions to permanent staff jobs from which they could potentially block efforts to put the agency back on track. There are no precise numbers, says Francesca Grifo, director of the Union of Concerned Scientists’ Science Integrity Program, but it’s likely that across the federal government many hundreds of Bush appointees have secured permanent positions, often in key roles from which they could effectively impede reform. “We’re going to be working to keep track of these folks,” says Grifo. “We can’t assume a priori that every single appointee who’s stayed on is going to be evil the rest of their days, but we’re going to be watching very closely.”

Not everyone shares Grifo’s concerns - “EPA is an agency of 17,000 people, and I’d be very surprised if any survivors from the Bush administration find themselves in positions of major power and responsibility,” says the former senior agency official. With or without Bush's moles , it’s clear that Obama will inherit an agency in the throes of a major staffing crisis. The EPA is a boomer agency, established in the 1970s and still staffed by career civil servants and scientists who’ve been at the agency since its creation. Many - by some estimates between a third and a half - of the agency’s workforce is likely to retire during Obama’s first term. To make matters worse, their natural replacements - young and idealistic scientists, engineers, lawyers and policy wonks - are the very people who’ve grown disillusioned and left the agency in droves in the course of the Bush administration. And perhaps most troublingly of all, say insiders, the Bush years have led many young graduates to believe that taking federal jobs means signing up not for public service but for abuse and political interference. “In the last administration, EPA’s ability to attract the best scientists and engineers has really been undermined,” says the former senior agency official. “Those people are the backbone of the agency - the real environmental professionals … that’s something the new administration really needs to emphasize.”

It’s possible that the sight of a Democrat in the White House will be enough to restore America’s scientists and engineers’ faith in the government, and to reinvigorate the federal workforce. Even then, though, it would take time and money to bring the federal environmental agencies back up to speed. “You’re going to have to reinvest in these agencies to turn them around,” says Jeff Ruch, director of Public Employees for Environmental Responsibility. “Given two wars and a fiscal meltdown, whether they’re going to have the funds for that   is not at all clear.” Agency insiders say that it’s likely the Obama administration would have to pick its battles; second-tier environmental concerns like Superfund cleanups, pesticide regulations and waste management would probably have to take a back seat to flagship issues like clean energy and climate change.

Even with the necessary staff and resources, though, it’ll take time before any new investments begin to pay off. In many areas, Obama will be inheriting a substantial backlog of regulatory work that will be impossible to immediately put right. Enforcement measures against corporate polluters have been largely neglected by the Bush administration, for example - but with major cases taking years to build, we could be well into a putative Obama second term before polluters are once again held accountable for their actions. “The pipeline of new cases has been shut down to a trickle,” says Ruch. “The Justice Department in the middle of the first Obama term is going to find very few cases being referred to it, because fewer cases are in development.” Similar problems are expected on the regulation of toxic chemicals and on the assessment of species under the Endangered Species Act, both areas that have been largely stagnant under Bush and where too-few staff are currently struggling with massive backlogs.

There are a few rays of light on the horizon. Obama’s historic victory helped carry more Democrats into Congress, increasing the party’s majority in both the House and the Senate and boosting the clout of its environmentally friendly wing. “We’re very encouraged by the people who’ll be coming to the Senate - the Udalls, Mark Warner of Virginia,” says Sittenfeld, the LCV legislative director. “We’ve seen an increasing number of filibusters brought by a vocal minority on energy and environmental issues, so with only a few more votes we should be able to make real progress.” Others are skeptical, though, noting that centrist and business-friendly Democrats like Rep. John Dingell of Michigan are likely to continue to impede calls for change. Besides, they say, the carbon emissions, species extinctions and scarred landscapes left behind by the Bush administration can’t simply be legislated away. “The harm is going to be long-lasting … when the book is closed on the new administration, there’s still going to be a lot of work left,” says Melberth, the OMB Watch regulatory director. “The next administration can certainly make a lot of progress, but it can never catch up.”