Office of Information and Regulatory Affairs Archives - Shopfloor

Circumnetting the President’s Executive Order on Regulations

By | Labor Unions, Regulations | One Comment

Federal News Radio’s report, “Obama’s regulatory reforms draw mixed reviews,” provides a thorough round-up of the reaction to President Obama’s new positioning on federal regulations, including the Executive Order, “Improving Regulation and Regulatory Review.” It’s informative to read the comments Cass Sunstein, the head of the Office of Information and Regulatory Affairs.

“The Executive Order makes clear that the look back process will occur with full understanding of the agency’s priority settings and resource constraints in a tough budgetary environment. So we expect the agencies will take this process very seriously but do so in way that recognizes resources are not unlimited.”

Sunstein said agencies will have to find a way to do the look back based on the resources they have already.

“I don’t anticipate any additional budgetary assistance for the look back,” he said. “We do anticipate a rule of reason where agencies will be expected to make their own choices about how to balance the cost because in many of the agencies there either is some process of look back and because of all agencies there is considerable expertise about the existing set of programs, we don’t think this will require huge resources to be invested.”

Phew, exhaled the EPA officials. We have so many pending regulations that we really don’t have the budget and personnel to go back a look at the old ones. Carry on!

And at least one activist sees the new review process as an opportunity for MORE regulations. Gary Bass, head of OMBWatch, commented: “Bass said by looking back at existing regulations agencies may find not only outdated policies, but also gaps where new ones are needed.” Read More

A Loophole Big Enough to Drive Environmental Justice Through

By | Economy, Energy, Regulations | 4 Comments

From the President’s Jan. 18 executive order, “Improving Regulation and Regulatory Review,” Section 1, General Principles of Regulation:

c)  In applying these principles, each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.  Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

Thus, any rational cost-benefit analysis can be tossed out the window if Executive Branch agencies prefer to make their decisions on subjective political and ideological reasons. Distributive impacts? You can justify the entire  program of the “environmental justice” movement using that rationale.

The EPA is already headed down that capricious regulatory path. Glenn Lammi of the Washington Legal Foundation recently explained how the EPA could circumvent the regulatory process to push the anti-growth and redistributionist priorities of the environmental justice advocates. From “Activists Work to Inject ‘Environmental Justice’ Concept into All EPA Actions and Beyond“:

 The issue injects a touchy subject into the controversial realm of environmental law and policy.  Invoking the broad and amorphous concept of environmental justice (“EJ”) – which equates “disparate impact” (rather than intentional acts) with discrimination – affords activists a highly effective new way to demonize free enterprise and demagogue the building of new business facilities and the award of pollution emission permits….

As explained in a [July 2010] cover memo to EPA employees, the Interim Guidance on Considering Environmental Justice During the Development of an Action is a “step-by-step guide [to] help EPA staff determine whether actions raise possible environmental justice concerns,” which will allow EPA to “explicitly integrate environmental justice considerations into the fabric of EPA’s process for developing actions,” according to a  which accompanied the guidance.  Agency “actions” include, “rules, policy statements, risk assessments, guidance documents, models that may be used in future rulemakings, and strategies that are related to regulations.”  In other words, essentially everything that EPA does on a daily basis.  The document’s two sections are a thorough roadmap on how EPA bureaucrats can weave a seemingly infinite number of EJ “concerns” into their  decisions, moves which can create a great deal of discomfort for regulatory targets challenging EPA future actions.

Because, unless until the courts act, the EPA would be the ultimate authority deciding what’s fair, equitable or respectful of human dignity. And creation of private-sector jobs? Too many negative distributive impacts!

Let’s Be Cautious about Precaution in Chemical Reg Bill

By | Regulations | No Comments

From today’s Washington Post, “Lautenberg bill seeks to overhaul U.S. chemical laws“:

After a year of working with environmental groups, government regulators and the chemical industry, a leading advocate for chemical regulation has devised a plan to remake the nation’s chemical laws — a 34-year-old set of regulations that all players agree is outmoded and ineffective.

The plan, contained in legislation that Sen. Frank Lautenberg (D-N.J.) is set to file Thursday, would require manufacturers to prove the safety of chemicals before they enter the marketplace. That would be a significant departure from current laws, which allow chemicals to be used unless the federal government can prove they cause harm to health or the environment.

Sounds like the full-blown introduction of the regulatory philosophy embodied in the precautionary principle, i.e., the requirement that you prove a negative — no harm — before any new product can enter the market.

It’s a philosophy that leads to a stagnant marketplace, unnecessary costs, and more litigation. If the principle takes hold in regulation, the dynamic United States will become even more like Europe. As a wise man has written:

Over the coming decades, the increasingly popular “precautionary principle” is likely to have a significant impact on policies all over the world. Applying this principle could lead to dramatic changes in decision making. Possible applications include climate change, genetically modified food, nuclear power, homeland security, new drug therapies, and even war.

We argue that the precautionary principle does not help individuals or nations make difficult choices in a non-arbitrary way. Taken seriously, it can be paralyzing, providing no direction at all. In contrast, balancing costs against benefits can offer the foundation of a principled approach for making difficult decisions.

That’s Cass Sunstein, the abstract to his book, “The Precautionary Principle as a Basis for Decision Making.” Sunstein now holds the top regulatory review post in the Obama Administration, administrator of the Office of Information and Regulatory Affairs.

Sunstein has written the single best newspaper column explaining why the precautionary principle is a bad idea. “Throwing precaution to the wind” appeared in the July 13, 2008, Boston Globe.

Cass Sunstein Confirmed to Top Regulatory Post, 57-40

By | Regulations | No Comments

By a vote of 57-40, the Senate has voted to confirm Cass Sunstein as administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget.


We’ll post the roll call when it becomes available.

UPDATE: Here’s the roll call vote.

UPDATE (5:50 p.m.): Ah, now that he’s confirmed, the irrepressible Frank O’Donnell of Clean Air Watch can re-emerge to criticize him: “We hope that he won’t be an impediment, based on his past emphasis on cost-benefit analysis to the exclusion of other values. We hope he will look at other values, such as protecting the environment.”

Early on it was the left-leaning “consumer activist” and environmental groups who criticized Sunstein because he has written favorably on cost-benefit analysis. But they had been largely quiet since Glenn Beck took up his television cudgel against Sunstein based — loosely based — on his writings on animal rights and the Second Amendment.

As you can read in Senator Lieberman’s floor statement yesterday, the NAM, U.s. Chamber of Commerce and American Farm Bureau all thought Sunstein was a good nominee based on his views on regulation and acumen.

UPDATE (6 p.m.): Ah, more warm greetings from the left now that Sunstein’s been confirmed, this from an early and harsh critic, Rena I. Steinzor, a Maryland law professor and president of the Center for Progressive Reform. She writes at The Pump Handle blog, attacking the OIRA in a post:

We look forward to working with Cass Sunstein. And we also promise to stay in his face, making sure he remembers that his biggest challenge is to revive strong government protection of environmental quality, food, drug, and worker safety, and the control of climate change, not working to appease industry. We wish him luck and success.

In Support of Cass Sunstein for Regulatory Post

By | Regulations | No Comments

Prior to the 63-35 cloture vote on the nomination of Cass Sunstein to head the Office of Information and Regulatory Affairs, the leaders of the Senate committee who held his confirmation hearing spoke in praise of the nominee. We’ve uploaded the relevant section of The Congressional Record here.

Senator Joe Lieberman (I-CT), chairman of the Senate Homeland Security and Government Affairs Committee, said:

Because Professor Sunstein is brilliant, creative, and prolific, he has written some things that are unconventional and, for some, controversial. I believe when asked about each of those matters he answered sincerely and fully and reassuringly.

For example, hunters were concerned about Professor Sunstein’s views on gun rights. He made very clear he believes the second amendment creates an individual right to possess guns for hunting and self-defense. To farmers and others concerned with his previous writings and comments on cruelty to animals, Professor Sunstein has said he would take no steps to promote litigation on behalf of animals, which some concluded was his position based on a provocative article he wrote, and that he has no plans, certainly, to regulate animal husbandry.

So this is a bright, thoughtful, creative man who, as a professor, has written some provocative, unconventional ideas. I suppose if one wanted to take advantage of them for one’s own purposes, to politicize, in some sense, or ideologize, in some sense, this nomination, one might seize on those. But at bottom, this is a person extraordinarily well qualified for this position.

Senator Susan Collins (R-ME), the ranking member, also found Sunstein well-qualified, and his former law student, Senator Amy Klobuchar (D-MN) spoke strongly in his favor.

Groups cited in his support were the U.S. Chamber of Commerce, American Farm Bureau and National Association of Manufacturers. Included in the record was the letter from the NAM’s Vice President for Infrastructure, Legal & Regulatory Policy, Rosario Palmieri:

DEAR CHAIRMAN LIEBERMAN AND RANKING MEMBER COLLINS: On behalf of the National Association of Manufacturers (NAM) and the millions of Americans our members employ, I am writing to offer our support for the confirmation of Cass Sunstein to be Administrator of the Office of Information & Regulatory Affairs (OIRA) in the Office of Management & Budget. Thank you for the swift work of your Committee to report Professor Sunstein favorably to the full Senate.

The NAM has supported nominees to OIRA under both Republican and Democratic presidents. The office plays a crucial role in agency prioritization, paperwork reduction, and regulatory review. President Obama said that the office offers a “dispassionate and analytical `second opinion’ on agency actions.” We believe that function is especially crucial during the economic crisis we face and to preserve high wage jobs from being lost due to unnecessary or thoughtless government action.

Cass Sunstein, in particular, is deserving of confirmation because of his keen intellect, expertise in the fields of administrative and environmental law, and his commitment to fair and reasoned deliberation of issues that will come before him. Under an Administrator Sunstein, all sides will be given a fair hearing and a real opportunity to impact the final analysis of an issue.

We stand ready to assist in ensuring confirmation by the full Senate of Cass Sunstein.

On the Pending Cass Sunstein Vote

By | Regulations | No Comments

The reliable Jake Tapper of ABC News writes that the Senate vote on Cass Sunstein to head the Office of Information and Regulatory Affairs could occur as soon as today (at least cloture, we think), and reports on the criticism and defenses in, “The Sunstein Also Rises.

He notes that it was liberal groups like the Center for Progressive Reform and Clean Air Watch who initially attacked Sunstein after his nomination. Tapper also reports that Sunstein has responded to criticisms for his writings on animal rights and the Second Amendment.

But Cornyn and Chambliss ultimately relented. Sunstein wrote to Cornyn that “the Second Amendment creates an individual right to bear arms for purposes of self-defense and hunting,” and to Chambliss that “If confirmed, I certainly would not use my position at OIRA to promote animal standing in civil litigation, such standing would indeed be an intolerable burden on farmers, ranchers and hunters.”

Wrote the American Farm Bureau Federation in a September 1 statement:  “Like others in the agricultural community, we were concerned about reports related to Mr. Sunstein’s views on animal rights and the impact that could occur should such views be reflected in federal regulations. We have, however, had the opportunity to discuss this subject in person with Mr. Sunstein. He has been candid, forthright and very open about how he views his role in OIRA. He has shared his perspective on the issues in question and stressed that he would not use his position to undermine federal law or further policies inconsistent with congressional directives.”

Good report.

AFTERTHOUGHT: Although Tapper’s wrong to refer to Glenn Reynolds as a conservative. He’s a libertarian, mostly.

Cass Sunstein: A Regulator With Promise – Really

By | Regulations | No Comments

The Wall Street Journal, a consistently sharp critic of the Obama Administration, had this to say about Cass Sunstein, President Obama’s nominee to be head of the Office of Information and Regulatory Affairs in the OMB.

We still don’t know much about how Barack Obama plans to overhaul our financial regulatory system, but his reported appointment of Cass Sunstein to an important post is a promising sign.

Mr. Sunstein, a professor at Harvard Law School, is no conservative — far from it. But his writings on regulation and the herd mentality deserve a voice in the incoming Administration. From his new post as Administrator of the Office of Information and Regulatory Affairs inside the White House, he would have an opportunity to put into practice some of the ideas he has written about as an academic.

That was from a Jan. 10 editorial, “A Regulator With Promise — Really.” We were reminded of the editorial by a good piece today in the online Washington Independent by Dave Weigel, “Attacks on Sunstein Frustrate Conservative Fans.” Weigel reports:

Ilya Somin, a libertarian law professor at George Mason University, has written at the popular Volokh Conspiracy lawblog that “the czar system does circumvent the regular appointment and confirmation process.” Like Morrissey and Reynolds, he was critical of Beck and other Sunstein critics.

“Sunstein has nothing to do with the ‘czars’ or the problems with the ‘czars,’” said Somin. “The ironic thing is that anybody else who might be appointed to this job would be less qualified, and more liberal. I disagree with what Sunstein writes in ‘Nudge.’ But what he advocates is not as bad as the views likely to be held by other people who could run [the Office of Information and Regulatory Affairs].”

Senate Majority Leader Reid submitted a cloture motion before the Senate adjourned in August, and the Senate could vote on cloture today after the tourism bill debate. We posted on Sunstein’s many merits yesterday, arguing that the attacks against him are indiscriminate and off-base.

More from Glenn Reynolds, as well as Dave Kopel at the Volokh Conspiracy, who writes on Sunstein and the Seconde Amendment and comments, “I echo Ilya’s point ….that Sunstein has a much more pro-liberty perspective than anyone else that Obama might nominate to run the Office of Information and Regulatory Policy.”

OIRA Position is No ‘Czar’ and Sunstein Understands Regulation

By | Briefly Legal, General, Regulations | One Comment

The resignation of the White House’s green jobs adviser, Van Jones, for his radicalism and outrageous statements has been accompanied by a serious outbreak of anti-czardom, i.e., criticism of the Obama Administration for creating “czars” with great authority but no accountability. The fervor is most fearsome among the blogospheric right, and Glenn Beck on Fox has been impassioned on the topic.

It’s a good, legitimate issue, but too much of the criticism about czars has been indiscriminate and wrong. As Jonah Goldberg writes at National Review Online’s The Corner:

Politico has a report up that conservatives, flush with victory over Van Jones, are going to go after other czars. One problem, the three people it lists as next on the conservative list aren’t actually czars.

Cass Sunstein, President Obama’s nominee to head the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget, is a prime example of this misrepresentation.  Nominee. He was nominated. He has to be confirmed by the U.S. Senate.

People who protest czars say the White House creates these ad hoc positions to evade the confirmation process. (Van Jones, for example.) But that doesn’t apply in the case of Sunstein, who underwent a confirmation hearing before the Senate Homeland Security and Government Affairs Committee on May 12 and was reported out on May 20. (Committee news release.) Cloture has been filed and we can expect a Senate floor vote this week.

And the head of OIRA is anything but an ad hoc position. The office is a statutory one within the Office of Management and Budget, created by Congress in the 1980 Paperwork Reduction Act to bring additional accountability to the writing of Executive Branch regulations. Here’s the language — it’s Chapter 35, paragraph 3503. OIRA serves important oversight and coordination duties as Congress specified in law.

So, the czarist critique of Sunstein is just wrong. One can certainly oppose his confirmation on the merits, but the efforts to paint him as a far-out animal rights, anti-gun or organ-harvesting extremist are only tangentially related to reality.  Sunstein’s prepared statement and testimony at his confirmation hearing addressed the first two issues persuasively, and this post today by Glenn Reynolds points out how Sunstein’s positions have been misrepresented on organ donation.

Sunstein was a respected law professor at the University of Chicago for many years before going to Harvard. (White House bio.) In his numerous books and writings, he has written some provocative things, but nothing beyond the pale (or remotely as offensive as Jones’ statements). There should be room for thinkers in government.

On the matter of regulation, he’s top-notch. In his book, “Laws of Fear: Beyond the Precautionary Principle,” Sunstein against against the incoherence of the precautionary principle, which holds that products or practices must be proved safe before they can be allowed into the marketplace. This Boston Globe column by Sunstein, “Throwing precaution to the wind,” summarizes his arguments well. Note:

The simplest problem with the precautionary principle is that regulation might well deprive society of significant benefits, and even produce a large number of deaths that would otherwise not occur. In some cases, government regulation eliminates the “opportunity benefits” of a process or activity, and thus threatens to cause preventable deaths.

Indeed, Sunstein’s appreciation for cost-benefit analysis has brought him of criticism from “consumer activists” who would love to overregulate economic activity into paralysis. The trial-lawyer backed groups are suspicious of him on the issue of federal preemption. Those are signs of his merit in our book.

So Cass Sunstein will not be a White House czar, he’s gone through a thorough confirmation hearing and approval by the Senate Homeland Security and Government Affairs Committee, and his writings show him to be a supporter of regulatory reason and the benefits of the free market.

Those attributes make him a poor target for the political attacks du jour. But they would make him a good head of the Office of Information and Regulatory Affairs.

UPDATE (7:38 p.m.): Welcome Instapundit readers, and thanks, Glenn. (And don’t miss his earlier post on the Sunstein nomination.)

A Smooth Confirmation Hearing for Sunstein to Head OIRA

By | Regulations | No Comments

The Senate Committee on Homeland Security and Government Affairs held a relatively short (less than one-hour) confirmation hearing yesterday on the nomination of Harvard law professor — and friend of President Obama — Cass Sunstein to head the Office of Regulatory and Information Affairs. Some good discussion of regulatory policy, a few assurances about the Second Amendment and hunting (Sunstein supports them), and affirmations of the value of transparency.

Sen. Joe Lieberman of Connecticut, who chairs the committee, said he would vote for Sunstein’s nomination.

Prepared statements:

 News and other things:


Sunstein’s remarks made clear that for him, cost-benefit analysis is not an intellectual exercise but a means to deliver greater benefits for the American public at lower costs. It should not be used as a hammer to beat back regulation, nor should it be discarded in favor of omnipotent federal agencies. Instead it should be employed judiciously to select regulatory approaches that achieve maximum net benefits for society.

This new approach to regulation could not come at a better time. The recent fiscal meltdown clarified the degree of our interconnectedness–a loose screw on Wall Street can send homes in Arizona to the foreclosure auction blocks; a blind eye in Washington can result in a tsunami of wet coal sludge in Tennessee. We can no longer afford to pay the social cost of letting corporations “self-regulate,” nor can we afford to place unnecessary burdens on already struggling businesses.