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1 | political cycles and the president’s agenda The days that followed the historic election of Barack Obama in 2008 as the forty-fourth president were filled with heady celebration as well as uncertainty. From the election until Inauguration Day, the national imagination was focused on the president-elect and his ideas to rescue the economy and end two wars, even though another ten weeks remained in the presidency of George W. Bush. Scarcely noticed were more than thirty major last-minute policy changes that were moving through the regulatory process. The outgoing administration was extremely busy during those weeks, and much of this activity had nothing to do with national security or the unfolding financial crisis. Prior to handing the executive branch over to the Democrats, the Bush Administration followed through with policy initiatives that had been in the works since it had come into office eight years earlier. In 2001 Vice President Richard Cheney convened an advisory committee to develop an energy policy agenda for the new administration. White House officials received input from a number of advisory panels as they settled in and established their priorities, but the energy task force was noteworthy for its degree of influence and the breadth of its recommendations.1 In response, the White House supported legislation to encourage natural gas drilling and oil exploration in the Arctic National Wildlife Refuge, among other proposals. A top priority of the coal industry was to repeal regulations prohibiting deposits of mine waste within one hundred feet of rivers and streams, which restricted how and where mountaintop removal mining could be conducted. Rather than pursue the difficult task of changing the two-decade-old surface mining law to expand mountaintop removal mining, the administration opted for a less conspicuous strategy. The policy was addressed through the administrative process. In April 2001, the very same month that the task force was formulating the National Energy Strategy, heavy spring rains began to fall in West Virginia. Before long the southern part of the state experienced a series of devastating political cycles and the president’s agenda • 7 floods. Hillsides denuded of trees and topsoil easily gave way, sending torrents of water and mud through small communities along the Upper Big Coal River, the New River, and their tributaries. “Streams normally only inches deep became torrents 20 to 25 feet high,” the Charleston Gazette reported. “A propane tank from a store in Fayetteville near the New River was pushed 60 miles downstream into a floating pile of debris at the London Locks and Dams. Homes, cars, buses, even caskets, were floating. Highways and hollows became whitewater rivers.”2 Flash flooding continued intermittently for ten weeks. When the worst was over in July, five people had been killed, more than fifteen hundred homes had been destroyed, and residents of the devastated communities focused their rage upon the two companies that were engaged in mountaintop removal mining upstream, Arch Coal and AEI.3 Angry residents also demanded answers from state regulators who approved the mining permits but failed to cite the operators for violations of waste containment rules until after the floods. Mountaintop removal mining was already unpopular in the region, and rolling back regulations on the practice after the catastrophe should have been unthinkable. However, this is just what the Bush Administration was planning. The coal industry used its access to press for rule changes that would further relax restrictions on mountaintop removal mining. Coal operators finally got what they wanted after the election of 2008, in the form of a new Department of Interior rule that exempted valley fills from the hundred-foot buffer requirement. Other initiatives taken by the outgoing administration exempted entire industries from the Clean Water Act and rolled back requirements of the Endangered Species Act. By listing the final rule before the end of December 2008, the Bush Administration avoided the mistakes of the Clinton Administration , as well as that of Bush’s father, and made the rule extremely difficult for the incoming administration to reverse. The rules were delayed until very late in Bush’s second term, but they took effect in time to prevent the Obama Administration from overturning them unilaterally. Late-term rulemaking became routine and predictable because of the cyclical nature of presidential politics. In contrast with the beginning of a president’s term, when there are few incentives for unilateral policymaking, the costs are considerably lower in the final months. Consequently, presidential transitions are preceded by surges in rulemaking...

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