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.)

Another good report on NRP’s Morning Edition today from Jon Hamilton on the chemical used in some consumer plastic products, bisphenol A (BPA), and regulatory practices and philosophy. From “Is ‘Better Safe Than Sorry’ Reason Enough For Law?“:

The precautionary principle dates back to at least the 1930s, says Jonathan Wiener, a professor of law, environmental policy and public policy at Duke University. He says there are at least three basic forms of the principle, though one scholar found 19 variations.

Weaker versions of the principle say it’s OK to take precautions against a threat to health or the environment even if it’s not clear that the threat has caused any harm. Stronger versions say it’s essential to take precautionary action.

Extreme Interpretations

And then there’s the variation that Sen. Dianne Feinstein (D-CA) used last month when she introduced her bill to restrict BPA.

“If you do not know for certain the chemical is benign, it should not be used,” Feinstein said.

Even advocates for restricting BPA acknowledge that’s an impossible standard to meet. The NPR reporter Hamilton also includes an important fact some stories (like this 2008 NPR story) leave out, that the European Union “hasn’t acted against BPA even though it has a law requiring it to follow the precautionary principle.”

Today’s story follows another fairly reported piece on BPA on April 1 by Hamilton, “Public Concern, Not Science, Prompts Plastics Ban.” The only missing element from both pieces is an acknowledgement that there are major costs associated with eliminating a particular chemical or substance from the production process, costs ultimately borne by the consumer.

If the Toxic Substances Control Act is to be rewritten (see below), one of the targets in the process will be nanotechnology. From the Houston Chronicle, “Warnings issued on nanotechnology“:

Pressure for regulation

This month, the EPA decided to classify carbon nanotubes as “new” chemicals. But even if all nanomaterials are classified as “new,” they’re unlikely to face a rigorous review because of weaknesses in the toxic substances act, said J. Clarence Davies, a senior advisor to the Project on Emerging Nanotechnologies.

Davies plans to be among those testifying at today’s hearing before the U.S. House subcommittee on Commerce, Trade and Consumer Protection. He and others are expected to urge lawmakers to pressure the EPA to adopt a more comprehensive approach to regulating chemicals, similar to that of a 2006 European Union law. That act requires companies to prove chemicals are safe, unlike TSCA, which puts the burden on the government to prove a harm.

The looming regulations have prompted something of a boon for consultants who seek to guide companies.

“Everyone in the country is laying off people,” said Harry Bushong, president of NanoTox. “Right now, I need to hire people.”

Perfect. Apply the precautionary principle to nanotechnology and watch innovation disappear. But consulting firms…

UPDATE: (11:20 a.m.): And indeed, the testimony on nanotechnology came from the Chronicle-cited

And here’s the witness list and prepared premarks for today’s Energy and Commerce Subcommittee Hearing on “Revisiting the Toxic Substances Control Act of 1976.”

NPR’s “Morning Edition” reports on the Consumer Product Safety Improvement Act and asks an important question: So what replaces the now banned chemicals? From “New Safety Law Doesn’t Mean All’s Well In Toyland”

A new federal law took effect this week banning chemicals called phthalates in children’s toys and other kids’ products. While the ban was hailed as a victory for children’s health, it’s no guarantee that the products are safe.

That’s because companies currently aren’t required to publicly disclose the chemicals they use in place of phthalates — and little is known about the health effects of one of the most widely used alternatives.

The chemical in question is DINCH, and questions are being raised, California is concerned, and the precautionary principle is being invoked.*

In California, two new state laws will eventually require companies to post the chemicals in their products in an online database available to the public. And they will likely have to prove that those chemicals are safe before they’re allowed to sell them in the marketplace.

And if the phthalate ban — which started in California — is any guide, manufacturers around the country may someday face those requirements, too.

That’s fair-enough speculation.

But this week we saw incredible disruption of home-based businesses, thrift stories, libraries, motorcycle sales, on and on, the result of an ill-conceived piece of legislative overreaction and fear-instilling media coverage –just like this story and its more sensationalistic cohort. We know, concretely, in human and economic terms, where the regulatory impulse and insanely-risk averse activism takes us. News coverage that fails to acknowledge these realities is, at best, incomplete.

As for sensational cohorts, take a look at this story from WISH-TV, Channel 11, Indianpolis, from last October: “Hidden Hazards – An I-Team 8 Special Investigation.” It’s a model of the fear-mongering art, relying on Henry Waxman, scientists from activist groups and anxious mothers.

We’ve been looking for a follow-up report from I-Team 8 about what happens after all these people get what they want. So far, nothing.

* And class-action lawyers are opening files, but that’s a topic for another day.

As noted below, H.R. 4040, the now-passed consumer product regulation and litigation bill, bans three classes of phthalates “temporarily” until scientific studies prove these plastic softeners are safe to use. A preemptive ban represents the “precautionary principle” in action, preventing any use of a substance until it is demonstrated to pose no risk whatsoever.

This regulatory principle (which is used in the European Union) is an effective weapon when wielded by luddites, ideological scaredycats, anti-consumerists and friends of the tort bar against anything that offends their sensitivities. After all, you can never absolutely prove a negative.

Company: “We’re glad to introduce our new Product A, with X-Appeal! After years of extensive testing and rigorous federal regulatory review, its approval is a win-win for everyone. This product cuts costs to consumers by 50 percent, lasts twice as long, eliminates previously challenged ingredients, and is fun, too!”

Company Critic: “You don’t care about children. You just care about money. Our studies — well, it’s more like an opinion survey, but a scientific one — show a substantial risk when the substance is injested daily in excess of 500 grams. We’re calling for a consumer boycott.”

But so much for reductive scenarios. In the real world…

Columnist Dan Gardner of The Ottawa Citizen reports that Toronto public health officials have warned parents to minimize their children’s time spent on cellphones. Dr. Ronald Herberman, the director of the University of Pittsburgh Cancer Institute, sent staff a memo urging children and adults to reduce their use of cellphones. Similar warnings have been made in Europe. Serious stuff, right? From “The precautionary principle“:

“Overall,” reports the U.S. National Cancer Institute, “research has not consistently demonstrated a link between cellular telephone use and cancer or any other adverse health effect.” A spokesman told the National Post that: “Health Canada sees no scientific reason to consider the use of cellphones as unsafe.”

And because the types of cancer allegedly caused by cellphones are very rare, any risk — if there is one — “is probably very small,” adds the U.S. Food and Drug Administration.

These conclusions aren’t actually disputed by the authorities warning against cellphone use. What they argue instead is — however much nobler the intentions — almost the mirror image of the tobacco industry’s doubt campaign.

There is some evidence that cellphones might cause harm, they say. And there are large gaps in the research. And that’s enough to act.

“At the heart of my concern,” Dr. Herberman told The Associated Press, “is that we shouldn’t wait for a definitive study to come out, but err on the side of being safe rather than sorry later.”

Yes, it’s the “precautionary principle” again.

So, let’s panic parents, attack a key technology, and, just possibly, gin up enough public anxiety so a class-action suit will be easier to generate…because of the possibility of a chance of a risk, maybe.

Among the bad precedents set in the just-passed H.R. 4040, the consumer product litigation and regulation bill, was the banning of six classes of phthalates (a plastic softener), and more specifically the “temporary” banning of the three forms of the chemical pending a safety review by regulators and the National Academy of Sciences. No matter that previous safety reviews by European and American scientific panels saw no reasonable danger of using phthalates in toys and nail polish.

So we now have the policymaking branch of government venturing even deeper into regulatory matters, for which it is ill-prepared; Congress responds politically, not scientifically.

Even worse, this preemptive prohibition represents an embrace of the “precautionary principle,” a regulatory standard that demands any substance be first proved safe before it can be used.

• Sen. Dianne Feinstein (D-CA) said, “I believe this legislation is important as the first national effort to begin to exercise a precautionary principle in the use of chemicals as additives to products that affect human health. It is my belief that chemical additives should not be placed in products that can impact health adversely until they are tested and found to be benign.”
• Also, the Pew Charitable Trusts’ Environmental Health campaign issued a release upon the CPSC bill’s inclusion of a phthalates ban: “That Congress responded to this health threat in lieu of Federal agencies is yet another illustration of the broken regulatory system. A better approach is to require chemical manufacturers to prove their products are safe before exposing consumers to them. The Kid-Safe Chemical Act, introduced in May by Senator Frank Lautenberg (D-N.J.) and Representatives Hilda Solis (D-Calif.) and Henry Waxman (D-Calif.) would do just that by overhauling how the EPA handles the 80,000+ chemicals in consumer products. Phthalates in toys are just the tip of the iceberg.” 

Just the tip of the iceberg, eh? So let’s “temporarily” ban those 80,000+ chemicals, just to be safe.

Cass R. Sunstein, a prominent Harvard Law Professor, examined the precautionary principle in a recent Boston Globe column, “Throwing precaution to the wind“:

The central idea is simple: Avoid steps that will create a risk of harm. Until safety is established, be cautious; do not require unambiguous evidence. The principle, in its many variations, has come to play a powerful role in public debate, the development of government policy, and even international law. It can be, and has been, applied to countless problems, including nuclear power, cellphones, pesticides, electromagnetic fields, and even human cloning.

Yet the precautionary principle, for all its rhetorical appeal, is deeply incoherent. It is of course true that we should take precautions against some speculative dangers. But there are always risks on both sides of a decision; inaction can bring danger, but so can action. Precautions, in other words, themselves create risks – and hence the principle bans what it simultaneously requires.

Indeed. What replaces phthalates? A substance with its own, perhaps unforeseen risks? Or is there no replacement, meaning some products will no longer be available in a malleable form? “Oh, we used to have a vinyl product that would have been perfect for that use, really durable, but well, Congress banned it.”

And if you embrace the precautionary principle, then cost can never be considered. The result is the preclusion of any sort of cost-benefit analysis.

As Sunstein says, the precautionary appeal is deeply incoherent. It asks for proof of a negative, an impossible standard to meet but one that offers endless opportunity for grandstanding and political attacks.

Self-appointed consumer activist groups have issued a joint release hailing the final conference report on H.R. 4040, the CPSC litigation and regulation expansion bill. The statement has been posted on the USPIRG website here: “Consumer Groups Urge Final Passage of Product Safety Bill”

The talking points are all about toy safety, protecting the children. This obvious political sales job suggests there are many actual provisions in the bill the groups would prefer not to talk about and would rather not be examined in detail. (See this PointofLaw.com post for some substantive objections.)

And in this political world, you can expect the legislation to pass the House today — it’s on the House’s suspension calendar — go the Senate for a probable vote Friday and be signed into law by the President.

So that ends the debate, right? Oh, sure.

From a what-have-you-done-for-me-lately statement by Andy Igrejas, manager of the Pew Charitable Trusts’ Environmental Health campaign:

“That Congress responded to this health threat in lieu of Federal agencies is yet another illustration of the broken regulatory system. A better approach is to require chemical manufacturers to prove their products are safe before exposing consumers to them. The Kid-Safe Chemical Act, introduced in May by Senator Frank Lautenberg (D-N.J.) and Representatives Hilda Solis (D-Calif.) and Henry Waxman (D-Calif.) would do just that by overhauling how the EPA handles the 80,000+ chemicals in consumer products. Phthalates in toys are just the tip of the iceberg.”

Thus, with all its other purposes, the CPSC bill is also a stalking horse for the precautionary principle.  Some people just think Europe is better.