Sunstein on Risk, Reason and Reviewing Rulemakings

The Center for Progressive Reform (CPR), among others on the left, seem poised to oppose the Sunstein nomination to lead the Office of Information and Regulatory Affairs (OIRA). This is OK as far as it goes, but it could easily jump the tracks and get silly. OIRA is an ├╝ber-agency in the executive branch, reviewing rulemakings of other “action” agencies far and wide. Every issue it touches is serious and most are very difficult.

In my own field (environmental law), OIRA has often opposed rules with reasons I’ve found weak-to-ridiculous. But when the fight over Sunstein gets going, it’s likely to include non-issues like the conduct of cost-benefit analysis (CBA) in rulemaking at all. The conduct of CBA isn’t worth fighting over. It isn’t going to be abolished. Period. Sunstein’s been a champion of mending CBA, but he’s attacked rulemakings like arsenic’s parts per billion in drinking water that many on the left thought fully cost-justified. That’s his baggage. But we should keep things in perspective. Back when the arsenic-in-drinking-water controversy was on, U. of Texas lawprof Tom McGarity had this to say.

Ultimately, the source of Professor Sunstein’s unwillingness to abandon the paradigm altogether is his profound and abiding lack of confidence in the capacity of an uninformed and simpleminded public to make wise decisions about the magnitude of health, safety, and environmental risks, and the steps that should be taken to reduce those risks.

All I can say in response to McGarity is, “well, yes—because the very same citizenry has voted to delegate such power out of their own hands consistently for almost a century.” I don’t agree with everything Sunstein has said on CBA over the years, I confess. But that is very different from saying that I think he is methodologically or fundamentally misguided. And so to those who “oppose” CBA root and branch, my question is: what would you have our agencies do? CBA in regulatory contexts is, I’m afraid to tell you, genetically encoded within the agencies themselves. Some just do it more seriously than others. And, in actuality, several targeted reforms in the rulemaking process would be real improvements. Think tanks on the left like CPR need to find a more constructive stance than simple “opposition” to CBA. (Sid Shapiro and Chris Shroeder’s recent piece here is, I think, aiming them in that direction, although only very qualifiedly.)

Their tack has shifted subtly in recent years to a ‘rule of law’ argument: Congress never meant to permit CBA when it legislated our modern regulatory edifice in the first place. But the argument boils down to this: statutes like the Clean Air Act delegated huge economic and societal risk balancing choices to expert agencies but assumed they would just do a better job than average people of “eyeballing” the choices. And this is absurd. The whole point of delegating such choices to bureaucracies is to straighten and quantify them to the maximum possible extent. The rule of law argument really only works when there is affirmative evidence that Congress meant to prohibit CBA in the statutory trigger at issue. And those are the exception.

Sunstein’s most recent opus—arguing that the OSH Act of 1970 is unconstitutionally vague—is perhaps more worrisome than his work on CBA proper. I’m dubious that the OSH Act is any more vague than the Clean Air Act and the conservative Rehnquist Court rejected a big delegation doctrine challenge to it in 2001—nine to zip. Perhaps having an OIRA administrator who usurps the action agency’s power to interpret its statute is something worth worrying about. But taking Sunstein’s piece to mean he’s against workplace safety regulations would be fatuous. Look at what OSHA’s been able to do with its meaningless statute in 40 years. The scholars at CPR can attest to OSHA’s haplessness and paralysis. They’ll say its OIRA’s fault—but, the fact is, OIRA can’t bottleneck a rule except in a vacuum of guidance from the governing statute. In the world as it is, OSHA spends a lot of money and has perfected flyspecking while it ignores tragically significant risks. One possible fix might just be to reboot, honestly.

Sunstein’s confirmation should focus on real questions because this office is incredibly important. (And it’s not often a President has moved so quickly to install an OIRA chief.) Those on the left will have the most to do with whether that happens or not.

Posted by Jamie Colburn