David Brooks on OIRA

by Rena Steinzor

December 06, 2011

New York Times columnist David Brooks weighs in this morning on CPR’s latest report, Behind Closed Doors at the White House: How Politics Trumps Protection of Health, Worker Safety and the Environment. To his credit, he begins by dismissing one of congressional Republicans’ principal lines of argument for 2011 – that an imagined tsunami of Obama Administration regulatory excess is somehow at the root of the nation’s economic distress. In fact, almost any economist will tell you that we got into this mess because of under-regulation, and that the current challenge is depressed consumer demand, not regulation.

From there, Brooks gets a little lost in the sauce. Most significantly, he displays a sort of man crush on Cass Sunstein, head of the White House Office of Information and Regulatory Affairs, and the President’s “regulatory czar.” Sunstein’s small office of economists plays an outsized role in the regulatory process, watering down protective regulations, particularly those proposed by the Environmental Protection Agency. Brooks generously describes the OIRA Sunstein leads as an “incredibly wonky” office of “career number-crunchers of no known ideological bent.” (In Brooks parlance, that’s a real Valentine!)

In point of fact, whatever the political leanings of the economists in Sunstein’s stable, OIRA is, as our report so accurately describes it, a one-way ratchet for weakening regulations. Brooks no doubt prefers that, but it’s disingenuous to suggest that OIRA is merely deploying the tools of wonkery. As Behind Closed Doors amply demonstrates, the agency frequently holds court for industry lobbyists, all of whom have had ample opportunity to weigh in on proposed regulations while the agencies themselves – the ones charged by law with conducting such processes – were drafting the regulations. OIRA insinuates itself into the process under the guise of enforcing requirements for a cost-benefit analysis, but in fact weighs the evidence anew and second-guesses agency expertise – but only after giving industry lobbyists free access, which we found results in four times as much face time as nonprofit advocates under this Administration.

OIRA’s been doing that pretty much since it opened its doors several decades ago, so it’s not an Obama creation. But we had good reason to expect more from this President on the regulatory front, because he promised better.  But instead of seizing the opportunity to reinvigorate regulatory enforcement of the nation’s environmental, health and safety laws, the White House has weakened agency regulations in deference to special interests and mindful of wholly political considerations. Instead of freeing the regulatory process from the grip of special interests, it has adopted an all-you-can-meet policy, under which OIRA meets with any industry shill who knocks on its door, without bothering to make sure it hears the other side of the story. And instead of making its processes transparent, OIRA has refused to release to the public its specific changes to agencies’ proposed regulation.

Brooks’ other remarkable blind spot is his discussion of the costs of regulation. He correctly points out that his Republican friends are vastly overstating the costs to the economy of regulations adopted under the Obama Administration. But he completely omits any discussion of the benefits to the economy – or for that matter, to life and limb – of those regulations. In fact, even using OIRA’s industry-friendly methods of cost-benefit analysis, the monetized benefits of this Administration’s regulations vastly outweigh the monetized costs. What industry doesn’t like about regulation isn’t that it’s bad for the economy – it isn’t. It’s much simpler than that. What industry doesn’t like is that many of the regulations require industry to prevent some of the economic harms they’ve been causing – sending innocent American kids to the emergency rooms with pollution-induced asthma attacks, endangering the health of workers by cutting corners on workplace safety, and much more. Those things cost money, and for years, such costs have been imposed on the economy and on American families by industry. We’ve passed laws to prevent it, but they are often delayed or weakened when turned into enforceable regulations precisely because of the kind of special interest influence that OIRA is courting.

The environmental regulations most under attack by oil, coal, chemical, and other lobbies were mandated by statutes passed by Congress and signed by a President. The same folks who opposed laws like the Clean Air Act and the Clean Water Act yesterday are working hard to undermine their enforcement today. The laws give them a right to offer comments on proposed regulations while the agencies are considering them. When the agencies don’t kneel down to anti-regulatory arguments, OIRA frequently second-guesses them. Under statute, that’s not OIRA’s role. This President promised better.

Unfortunately, one suspects he takes comfort in David Brooks’ praise.

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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