Cass Sunstein, President Obama's controversial nominee for Administrator of the Office of Information and Regulatory Affairs (OIRA), will go before the Senate's Homeland Security and Governmental Affairs Committee for his confirmation hearing on Tuesday (May 12). The “Regulatory Czar,” as this position is known, wields enormous influence over the substance of federal regulations affecting matters as diverse as public health and safety, the environment, and education.
Professor Sunstein's nomination has attracted attention from the public interest community, largely focused on the many controversial stances on regulatory policy that he has taken in his legal scholarship. Here are some of the things I will be listening for when I go to the hearing on Tuesday:
- Does Professor Sunstein recognize that the federal regulatory agencies are in a severely weakened state? The federal regulatory agencies that the American people depend upon to protect them from pollution, unsafe products, workplace hazards, and predatory lenders have been weakened to a distressing state. The agencies’ financial and human resources have been slashed or maintained at constant levels, even as they are called upon to deal with an ever-increasing amount of unnecessary and irrelevant analytical requirements in order to promulgate the most basic of regulations. These agencies have been hollowed out and aren't able to carry out even the core of their statutorily-mandated regulatory missions. Any effort to reform the federal regulatory system must begin with the recognition that regulatory agencies are in this dire state.
- How rigidly does Professor Sunstein intend to use cost-benefit analysis in forming regulations? Sunstein has long been an enthusiastic advocate of the highly controversial use of cost-benefit analysis as the predominant criterion in regulatory decision-making. He has even promoted a number of controversial Bush era “innovations” in cost-benefit analysis, including the “senior death discount,” which places a lower value on the life of senior citizens. Under what circumstances would Sunstein consider alternatives to cost-benefit analysis? After a quarter century of cost-benefit analysis as the supreme measure of regulations, it’s clear that it tilts the playing field toward corporate profit and away from health and safety. What does Professor Sunstein plan to do about that?
- How does Professor Sunstein interpret the numerous environmental statues that specifically call for using regulatory review methods other than cost-benefit analysis? Most major environmental statutes specifically call for conducting regulatory review by technology-based or effects-based standards, not by cost-benefit analysis. In the years prior to the ascendancy of cost-benefit analysis, those laws served as a key guidepost in regulatory decision-making. For example, the Clean Air Act directs the Environmental Protection Agency (EPA) to regulate certain kinds of air pollutants in order to protect human health; therefore, EPA is charged with developing regulations that would do that. As cost-benefit analysis gained prevalence, such statutorily mandated concerns have often been ignored, replaced by the quixotic goal of achieving perfect economic efficiency in regulation. This criterion is either irrelevant or—worse still—inconsistent with the vast majority of the statutory provisions under which agencies operate.
- What does Professor Sunstein see as the appropriate role of OIRA in decisions involving science? Compared to the regulatory agencies, OIRA has very little expertise in matters of regulatory science. Their relatively small professional staff of approximately 40 people contains only a handful of scientists. The regulatory agencies, in contrast, have a vast army of scientists to call upon in developing and reviewing scientific information for making regulatory decisions. Despite that, OIRA has in the past interfered in a range of scientific issues both large (e.g., promoting broad science-related policies, such as mandating for regulatory agencies a one-sized-fits-all methodology for conducting risk assessments) and small (e.g., ignoring or substituting individual scientific studies when evaluating particular regulatory decisions). Does Professor Sunstein see OIRA decision-making on science issues as fundamentally compatible with President Obama's initiative on science integrity?
- Does Professor Sunstein see OIRA's role as reining in regulatory agencies, or supporting them? Since the Reagan Administration, OIRA has seen its role as preventing supposedly out-of-touch regulatory agencies from running amok and promulgating “excessive” regulations. That fear was never that well founded then, and certainly is not now. Indeed, agencies presently cannot fulfill their core regulatory missions, both because they lack the necessary resources and because they face too many unnecessary hurdles in carrying them out. Under these circumstances, OIRA’s role must be fundamentally changed. As I argued before a congressional committee last week, the American people need more regulation, not less. OIRA must work with the regulatory agencies in a supportive role, helping them to obtain the resources they need and to eliminate any unnecessary hurdles so that these agencies can once again fulfill their regulatory missions.
Cass Sunstein's responses to questions on issues like these will provide the best indicator possible of how he will approach his job if confirmed.