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Aug. 13, 2009 by Rebecca Bratspies

Paterson's Executive Order: Win for Industry, Loss for Public Health and Safety

This is one of two posts today by CPR member scholars evaluating NY Gov. David Paterson's recent executive order on regulations; see also Sid Shapiro's post, "New York Governor Channels Ronald Reagan: Governor Paterson’s Flawed Plan to Review Regulations."

It is open season on environmental, health, and safety regulations in New York. Last Friday, August 7, Governor Paterson issued an Executive Order directing his public safety agencies to review all of their regulations with an eye toward eliminating any that are “unnecessary, unbalanced, unwise, duplicative or unduly burdensome.

This language could have been lifted directly from anti-regulation lobbying groups. The Governor's press release actually touts: "Streamlined Regulations Will Better Protect the Health, Safety and Welfare of all New Yorkers." Nothing could be further from the truth.

The Order requires each agency to conduct a 60 day comment period and then select at least two regulations to designate for further review, the selection to be based on which regulations have generated the most widespread or substantive criticism and opposition.

Think about what this means.

Paterson’s Executive Order gives well-financed, well-organized business groups a second bite at the apple on a host of regulatory battles that …

July 30, 2009 by Sidney Shapiro
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Like Alice's adventure, the development of regulatory oversight in the Obama administration is becoming "curiouser and curiouser." President Obama selected Cass Sunstein to be the head of the Office of Information and Regulatory Affairs (OIRA), a curious choice since Sunstein, although one of the country’s most distinguished academics, is in favor of extending the use of cost-benefit analysis, a position so popular with the business community that the Wall Street Journal endorsed his nomination. Sunstein's confirmation hearing was uneventful, probably because he avoided answering any difficult questions, but Sunstein's nomination is now being held by Senator John Cornyn, who objects to Sunstein's previous statements on animal rights -- an issue that the head of OIRA is highly unlikely to encounter.

In the meantime, the development of a new Executive Order on regulatory impact analysis has had its own curious journey. The new administration invited public comment …

July 2, 2009 by Rena Steinzor
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As expected, Cass Sunstein's nomination for Administrator of the Office of Information and Regulatory Affairs (OIRA) was approved Wednesday by the Senate Committee on Homeland Security and Government Affairs. Senator Tom Coburn (R-Okla.) alone voted against confirmation (we’re guessing his vote was not motivated by concerns over Sunstein’s past support for cost-benefit analysis and strengthening the institution of centralized regulatory review.) Sunstein is expected to be approved by the full Senate soon.

What now? In his confirmation hearing, Sunstein pledged he'd use underlying statutory standards to guide regulatory decision-making, and illustrated the point by acknowledging that some statutes do not allow agencies to take costs into account at all, such as the provisions of the Clean Air Act that direct EPA to set National Ambient Air Quality Standards. He said the agencies, not OIRA, must play the primary role in making regulatory decisions.

Sunstein also …

July 1, 2009 by James Goodwin
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Earlier this month, representatives from the military and a number of defense contractors had a closed-door meeting with officials at OMB's Office of Information and Regulatory Affairs (OIRA).  The topic under discussion was ostensibly a Safe Drinking Water Act regulation for perchlorate—a highly toxic chemical used in the manufacture of rocket fuel—that the EPA is currently considering.  A closer look at the documents provided to OMB at the meeting suggests that the military officials and defense contractors had an even broader agenda in mind:  making sure OMB continued to be a venue in which executive agencies affected by environmental, health, and safety regulations (what I will call “affected agencies”) can seek to interfere with or dilute those proposed regulations they find most inconvenient.

When it comes to environmental, health, and safety regulations, affected agencies—the Departments of Defense and Energy, in particular—are not all …

May 13, 2009 by Rena Steinzor
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With his attractive family and a phalanx of top aides in tow, Professor Cass Sunstein had a cordial, 45-minute hearing before the Senate Homeland Security and Government Affairs Committee yesterday. He was introduced by former student and current Senator Amy Klobuchar (D-MN) who praised Sunstein as a teacher, mentor, and eclectic thinker, all qualities for which he is rightly known. Ironically, however, the remainder of the hearing could be summarized as efforts by the three Senators in attendance— Chairman Joseph Lieberman (I-CT), ranking minority member Susan Collins (R-ME), and Senator Daniel Akaka (D-HI)—to get Sunstein to pledge that eclectic thinking will not be his modus operandi at the White House.

The Sunstein story has taken on a life of its own, significantly out of proportion to the interest this level of position typically sparks, especially given the urgency of headlines on the global economic crises, swine …

May 13, 2009 by Rena Steinzor
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Cass Sunstein had his confirmation hearing Tuesday; it was well-attended and anti-climactic. President Obama’s nominee to head the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) testified for about an hour, and Senate approval of the nomination seems assured.

Ironically, in a perfect example of timing being everything, at about the same hour that Sunstein took his seat in front of the Senate Committee on Homeland Security and Government Affairs, a story hit the media fan in Washington showing that for the past several months, it has been business-as-usual between OMB and EPA with respect to climate change, with the economists of the first subjecting the scientists of the second to a gauntlet of skeptical questions about whether responding to this urgent problem will cost too much. Had the story broken 24 hours earlier, Sunstein would have had his hands …

May 6, 2009 by Rena Steinzor
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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 …

May 4, 2009 by James Goodwin
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Last week I discussed how the institution of judicial review has been used to amplify the deregulatory nature of cost-benefit analysis.  This week, I'll talk about some possible remedies.

An unusual synergy exists between the institutions of cost-benefit analysis and judicial review.  Under most circumstances, the institution of judicial review is arguably neutral with regard to regulatory issues.  When judicial review is applied to a case involving a regulation that has been weakened by cost-benefit analysis, however, the once neutral institution is transformed into one that that can have no other impact than to aid and abet the deregulatory agenda of cost-benefit analysis.  This is because when an agency is forced by cost-benefit analysis to promulgate a rule that is too weak to be supported by the underlying statute, any public interest groups concerned with public health, safety, and the environment is left with a difficult decision …

May 1, 2009 by James Goodwin
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For the last few years now, CPR’s Member Scholars have made the case that cost-benefit analysis is, by itself, fundamentally deregulatory in nature.  Unfortunately, other institutions in our federal government tend to exacerbate the deregulatory nature of cost-benefit analysis.  Whether by design or dumb luck, cost-benefit analysis allows regulatory opponents to use those institutions—most notably judicial review—to further their deregulatory agendas.

The Clean Air Mercury Rule (CAMR) case is a good example.  In February, the Supreme Court decided not to accept an appeal of a case on CAMR, which was the Bush Administration’s feeble regulatory plan for addressing air mercury pollution from power plants.  The story of CAMR demonstrates how judicial review has been used to amplify the deregulatory impact of cost-benefit analysis, and it's emblematic of the deregulatory synergy between cost-benefit analysis and judicial review.  This synergy typically plays itself out through …

April 28, 2009 by Rena Steinzor
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Inside the Washington Beltway, we are awash in stories about President Obama’s first 100 days. Some are comparative—how is Obama doing in relationship to Franklin Roosevelt at the same point in his first term? Some are pure spin—“we’re competent and we love each other!" opines Rahm Emanuel, the obviously biased Obama chief of staff. And some are substantive—has he kept his campaign promises and, if not, how many more miles does he have to go before he sleeps?

On the issues in our bailiwick, the President gets an “A” for effort, a “B” for execution, and an “incomplete” for the course as a whole.

First, the big picture. Just hearing a President talk about environmental protection again as if it were a very important item on the national agenda is enormously exciting, especially because the President has targeted climate change, the …

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