Choices for Cass Sunstein

Reinvigorating Protections for Health, Safety and the Environment

In September 2009, the Senate confirmed Professor Cass Sunstein to be Director of the White House OMB Office of Information and Regulatory Affairs – the so-called “regulatory czar,” so named because all major proposed regulations go through the office for approval. Looking ahead to his tenure as Director, CPR Member Scholars penned Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein.

In the recent past, OIRA has been a place where regulations to protect health, safety and the environment go to die, or at the very least be weakened.  It has served as a forum of last resort for special interests.  Regulated industries unable to convince Congress not to pass laws protecting health, safety and the environment, and unable to persuade regulatory agencies to go easy on them while drafting regulations pursuant to those laws, have often taken their case to OIRA, where they have met with considerable success, particularly during the Bush years.  As Director of OIRA, Sunstein leads an agency staff that has met routinely with special interests, sometimes exceeding the agency's mandate to do so.  Research from the Center for Progressive Reform, released on the day of Sunstein's confirmation, demonstrates that this practice continued during the early months of the Obama Administration, before Sunstein was confirmed.  In a blog post reacting to Sunstein's confirmation, CPR Member Scholar Rena Steinzor highlighted the concerns raised by OIRA's tilt toward industry -- at least so far as its OIRA meeting schedule suggests.

CPR Member Scholars played a prominent role in the confirmation process for Professor Sunstein.  In a report issued in late January 2009, a group of CPR member Scholars expressed serious concern about Professor Sunstein’s support for the methods the Bush Administration used to weaken and defeat badly needed regulations.

Among the concerns raised in the report, Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein:

• Sunstein is a stout supporter of cost-benefit analysis as a primary tool for assessing regulations, despite its imprecision and the ease with which it is manipulated to achieve preferred policy outcomes;
• He supports such cost-benefit approaches as the widely condemned “senior discount” method for undervaluing the lives of seniors in cost-benefit analyses, an approach even the Bush Administration was forced to disown;
• He rejects the “precautionary principle” as a basis for regulating, thus ensuring that dangerous pollutants and products will be given the “benefit of the doubt,” rather than well-grounded concerns about health and safety;
• He supports the centralization of authority over regulatory decisions in the White House – OIRA in particular, even though Congress delegated the exercise of expert judgment to the regulatory agencies, not to OIRA’s staff economists in the White House; and
• He has written that the Occupational Safety and Health Administration might be unconstitutional.

In releasing the report, CPR President Rena Steinzor, one of seven co-authors, warned that “Unless he turns over a new leaf, or unless President Obama keeps a careful eye on OIRA, we fear that Cass Sunstein’s reliance on cost-benefit analysis will create a regulatory fiefdom in the White House that will deal with needed regulations in very much the same way that the Bush Administration did. We desperately need change in this area, so we hope that if he is confirmed, Professor Sunstein moderates his past-stated views on these issues. In any event, we look forward to working with him in the years to come.”

Read more about CPR's work on the Office of Information and Regulatory Affairs:

• Regulatory Process Executive Order.  Read CPR's November 20, 2009 Editorial Memo on the Obama Administration's Forthcoming Executive Order on Regulatory Process, by Rena Steinzor and Robert Glicksman.  And the very similar press backgrounder.

• OIRA Meetings.  CPR research demonstrates that OIRA staff's meeting schedules during the early months of the Obama Administration tilted toward industry.

• Welcoming Sunstein.  CPR's Rena Steinzor reacting to Cass Sunstein's confirmation.

• Op-Ed.  Read "The Cost-Benefit Dodge," by Amy Sinden and Catherine O'Neill, in the May 12, 2009 Philadelphia Inquirer.

• Editorial Memo.  Read Rena Steinzor's May 9, 2009 Editorial Memorandum on Cost Benefit Analysis and the Sunstein Nomination.

• CPR's Sunstein/OIRA Report.  Read Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein (180 kb). Read the news release (50 kb).  Co-authors of the report are CPR Member Scholars John Applegate (Indiana University–Bloomington), Robert Glicksman (University of Kansas), Thomas McGarity (University of Texas), Sidney Shapiro (Wake Forest University), Amy Sinden (Temple University), Rena Steinzor (University of Maryland), Robert R.M. Verchick (Loyola University–New Orleans), and CPR Policy Analyst James Goodwin.

• Blogging Sunstein. Read Rena Steinzor's May 13, 2009 CPRBlog entry on Cass Sunstein's confirmation hearing, or her May 6, 2009 entry on what to listen for at the hearings, or her February 10, 2009 CPRBlog entry on how OIRA should reform itself, or her January 26, 2009 entry on Cass Sunstein's views on regulatory policy, or her January 9, 2009 CPRBlog entry on the Sunstein nomination.

• Final Comments on Obama Regulatory Review Process.  Read the March 16, 2009 comments Comments Regarding Executive Order on OMB Regulatory Review from John Applegate, Robert Glicksman, Thomas McGarity, Sidney Shapiro, Amy Sinden, Rena Steinzor, Robert Verchick (collectively the CPR board).  The comments call for OIRA to give up centralized regulatory review, and replace its use of cost-benefit analysis with pragmatic regulation impact analysis.  Read the web article.

• Preliminary Comments on Obama Regulatory Process Memo.  Read Rena Steinzor's February 20, 2009 letter to OMB chief Peter Orszag submitting preliminary comments for OMB consideration as it prepares recommendations for President Obama on ways to reform the regulatory process.  The letter also called for a formal review period for OMB's proposal once a draft was prepared.

• Only 2 of 31… Just 2 of the 31 statutory provisions undergirding the nation’s health, safety and environmental regulatory structure call for cost-benefit analysis. One is the Consumer Product Safety Act. Can you guess the other? Use CPR’s chart to impress your friends.