Regulatory Czar Sunstein's First Days

by Rena Steinzor

July 27, 2009

Michael Livermore is right to suggest that environmentalists should be focused on Cass Sunstein’s first official day as regulatory czar for the Obama Administration. After months of delay over the Harvard professor’s eclectic and provocative writings, he will eventually take office if he can placate cattle ranchers concerned about his views on animal rights. Whatever their level of paranoia about Sunstein’s ability to grant animals standing to bring lawsuits, the likely character of his reign was more accurately predicted by the editorial page of The Wall Street Journal, which applauded Sunstein’s devotion to cost-benefit analysis, the major weapon of Presidents Reagan, Bush I, and Bush II to smother health, safety, and environmental protections.

Livermore, an advocate of kinder, gentler cost-benefit analysis that he hopes will lead to regulatory controls more palatable to conservatives, offers a depressing list of priorities for Sunstein on his first day. They boil down to continuing the mission of George W. Bush’s regulatory czars: using number-crunching of “costs” and “benefits” (e.g., a life saved by regulation is worth anywhere from $1-10 million) as the transcendent tool in making decisions on climate change, public health protections, worker safety, and sustainability. I cannot help but remember many economists’ awesome failure to predict and avoid the global economic meltdown and wonder why their predictions in the health and safety arena should be even more essential these days.

Many progressives fear that, despite Lawrence Summers and Timothy Geithner’s claims that they are interested in “true” reform of a fatally corrupt banking system, the two men have essentially missed the opportunity of this generation to overhaul it—and the recent comebacks of the largest firms seem to underscore these fears. In a similar vein, we should be very disappointed if Sunstein does not deliver on the president’s promise of “change we can believe in.” To do that, he should:

  1. Abandon efforts to make the regulatory reform process even more daunting for agencies trying to issue protective rules. Instead, he should figure out what the agencies need to be more effective—streamlined White House review, enforcement resources, political support, independent science—and see that they get it.
  2. Take an axe to the underbrush that Bush left behind in an effort to sabotage agencies like EPA, FDA, and OSHA. Remember all those midnight regulations? Well, many remain on the books, including weak standards for smog control, an excessive risk assessment standard for worker rules, and a plan to postpone controls on plant mercury emissions until 2018).
  3. Stay out of the way of EPA’s and scientists’ efforts to explain the consequences of climate change—as opposed to economists’ projections of what industries might have to pay to curb their carbon emissions, which should be the first order of business anyway. Obscuring the possibility of flooding in lower Manhattan in mere decades to elaborate guesstimates that electric utility customers may have to pay $17 more a month for power in 2020 is not the way to have this debate.


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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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