Sunstein Watch: What Progressives Expect from OIRA: An Open Letter to Cass Sunstein

Dear Cass:

As you know, we picked a spat with the Office of Information and Regulatory Affairs (OIRA) last week over Randy Lutter’s supposedly temporary detail appointment to your office. It’s not the first time we’ve criticized the workings of OIRA, and almost certainly won’t be the last. 

I’ve spoken to a number of people in the media and elsewhere who have expressed surprise that progressive organizations like CPR are such relentless critics of a progressive Administration. I’m sure Administration officials feel this frustration as well. That dynamic is at work in OIRA’s case because you have a reputation as a progressive thinker on many issues.

I won’t try to speak for all progressives, but I can assure you that very few of us criticize the Administration lightly. Nor do we do it with any sense of pleasure. The Obama Administration inherited an absolute mess on every front and progressives are well aware of the herculean effort you are making to dig out. But while it is tempting to take refuge in the notion that if only a few things are better at the end of however many terms the voters give President Obama, that limited vision is not why you signed up to serve, nor is it why so many of us voted for your man. 

President Obama promised a transformation and that’s what we will keep asking you to deliver. We won’t settle for “better than Bush” or even “better than Clinton.” We want the worst problems to improve a lot, not comparatively. 

We want the President to succeed in his stated goals of protecting the environment and people's health and safety, and we’d be delighted to do nothing but applaud and throw rose petals – and in fact, we have, when it was merited. I was impressed, for example, that OIRA opened up the process for devising its forthcoming executive order on the regulatory process to public comment. It wasn’t required; doing so was a nice bow to transparency, and I said so at the time. Petal-throwing was also in order when you pledged to leave EPA alone as it proceeds with its program for endocrine disruptor testing. Some damage had been done by OIRA interference before you were confirmed, but things seem to be back on track now. 

But frankly, I’m very worried about the direction of OIRA – worried that close to a year into the Obama Administration, your staff has not yet embraced the President’s call for a reinvigorated regulatory system. True, you spent most of this period awaiting confirmation while right-wing extremists invented far-fetched and unfair reasons to slow that process down. But progress on the President’s agenda need not wait for the confirmation process. To pick just a couple of examples of business-as-usual at OIRA:

L’affaire du Lutter. Temporary or otherwise, Mr. Lutter was brought to OIRA despite a plainly right-wing track record on the very issues he’s working on, and has pursued that agenda while there.

Meetings with industry. OIRA staff have had a lengthy series of meetings with industry representatives to discuss an EPA coal ash regulation that hasn't even been formally started yet. Industry should raise its concerns with EPA, not OIRA. OIRA shouldn’t be setting itself up to conduct a parallel review of the substance of the regulation, certainly not before EPA has done its work.   

The Executive Order. We’re eager for the Administration to issue its update to Executive Order 12,866, establishing a regulatory roadmap for the Obama years. We hope for a surprise, but we’re fully expecting it to continue to employ cost-benefit analysis as a yardstick for grading the worth of proposed regulations. There’s a lot to say about this, but I’ll confine myself to one, threshold point: A quarter century of experience with cost-benefit demonstrates that it is a badly warped yardstick, that its application overstates costs to industry and understates benefits of regulations to consumers and families. And in most cases, it’s not what the law calls for. 

Those are all worrisome issues that do not portend a bright future.

Undoing each of Bush's anti-regulatory maneuvers should be a start, but I fear that the actions enumerated above mean that your office hasn't yet begun serious work on achieving that baseline goal.

Instead, while we argue about when OIRA will begin to change, the bigger picture is left unaddressed.   Undoing Bush is just the start. The real challenge is to actually reinvigorate the regulatory system so that Americans can count on safe food and drugs, safe workplaces, breathable air, drinkable water, a toxic-free environment – and more. In other words, Bush took a regulatory system that was underfunded and in general disrepair and reduced it to shambles. OIRA’s challenge is to revive EPA, FDA, CPSC, NHTSA, and OSHA so that they are independent, strong, and effective.  To accomplish that larger and overridingly important mission, here’s what needs to happen at OIRA:

First, the agencies responsible for safeguarding our environment, our food, our workplaces, our cars, and our toys need to be restored to full fighting weight, with enough resources to mount credible enforcement programs, write appropriately stringent rules, and, most difficult of all, rediscover their autonomy, self-respect, and independence.  Your staff should help agency chief financial officers figure out a method for estimating what they really need to do their jobs, and you should help the CFOs and agency heads present those findings to Congress, preferably outside the routine appropriations process.

Second, the three dozen or so professionals under your supervision should redefine their role, giving up the posture of guardians against regulatory excess and becoming guardians of public health, worker safety, and the environment. They should stop serving as a backdoor for industry to work its will on regulations because they’ve got other things to do, including working to correct exaggerated industry estimates of the potential costs of proposed regulation, helping agencies overturn the various Bush midnight regulations that remain on their books, and developing a methodology for calculating the budget increases that are necessary to make it possible for the agencies to carry out their statutory mandates. 

Third, to accomplish the difficult but crucial culture change of shifting OIRA’s attention from industry complaints to an affirmative agenda appropriate for the Obama presidency, your staff should spend each and every day thinking of ways to streamline and hasten the regulatory process, delivering on mandates communicated by Congress long ago. You might consider telling everyone who wants to meet with you about an issue within the purview of the agencies that they have to go to the agencies first, and come back to OIRA only when you actually have a regulatory decision under review. You should meet with them only when their concerns are rationally related to OIRA’s appropriate role. Don’t allow them to repeat complaints about issues—especially scientific issues--within the expertise of the regulatory agency itself. And you should set standards for your staff on when and with whom to meet, ensuring that OIRA hears from all sides of the debate evenly, rather than expending large amounts of OIRA staff time hearing only from those with the money to field dozens of “experts.”

Fourth, your office should set a sterling example on a central tenet of the President’s agenda, posting online all of your communications, both incoming and outgoing, with agencies and stakeholders about rules and other regulatory decisions that you choose to monitor. These postings should include agency communications to you, which some agency staff apparently want to keep confidential, for reasons that should not be permitted to trump the President’s overriding commitment to transparency.  

This affirmative agenda goes beyond fixing the extreme policies of the Bush Administration, and takes on the real work of using the regulatory structure to do exactly what it was created to do: keep Americans safe from a variety of hazards. We’re eager to help you move in that direction.

Rena Steinzor