In the News

Cass Sunstein, one of the new President’s friends and advisers since Obama’s days at the University of Chicago, has landed one of the most powerful jobs in Washington—but one that is little known outside the Beltway. As director of the Office of Information & Regulatory Affairs (OIRA), he will review every major regulation promulgated by any federal agency, from clean air to airline safety.

So, the question that the Obama administration needs to ask when reviewing the former President’s last minute rules is whether they were given rigorous scrutiny, or whether they were pushed out the door at the last minute to satisfy a political constituency or ideological goal.”

‘‘I think both sides will be surprised,’‘ says Richard Revesz, dean of the law school at New York University. The tools of cost-benefit analysis in the past ‘‘were captured by antiregulatory academic and interest groups’‘ and misused, says Revesz. He predicts that Sunstein will deploy those same tools in support of novel regulatory initiatives.

Revesz and Livermore claim their reformswould yield “an administrative state that is more efficient and fair, and deliversmore environmental, health, and safety protection for less cost.” Who could be against that? They argue that “the most appropriate and natural role for cost-benefit analysis is to help find the regulatory sweet spot, the optimal point that is between not enough and too much.” Yet at other places, it is unclear whether their aimismore “neutral” regulatory analysis or simply more regulation. While they often stress the importance of “neutral” analysis, they also presume such analysis will produce particular results, and trumpet this claim to their presumably progressive audience.

Sunstein’s appointment makes clear that Obama wants change at OIRA—he is too talented to be wasted in a business-as-usual role in the next administration. But the task of reforming cost-benefit analysis, removing its biases, and reforging it into a neutral tool for sound policymaking, all while promoting a strong regulatory agenda in a time of economic crisis, will not be easy.

“Given the unpopularity of the current administration, and the thin support for these new rules, I can see Congress acting on a handful of them,’‘ said Mike Livermore, executive director of the Institute for Policy Integrity, which studies regulations at New York University’s School of Law.

Following a pattern set in previous transitions, the Bush administration is approving controversial new regulations that would affect federal laws governing the environment, reproductive health, and the workplace, among others. The timing of the approvals would make it harder for the incoming administration to undo these regulations.

According to Michael A. Livermore, Executive Director of the Institute for Policy Integrity at New York University School of Law, the list of proposed 11th hour action by the Bush White House include expanding mountaintop mining.

Were you holding your breath until November 20, too? Well, the big day came and went – and no word from the Department of Health and Human Service on their new, expanded ‘provider conscience’ regulations. Advocates widely speculated that the new rule – which has been denounced by women’s health groups.

In the past few months, we’ve seen President Bush propose a number of controversial midnight regulations. He’s suggested expanding mountaintop mining, allowing tons of rubble and refuse to be dumped into streams and valleys. He’s threatened to significantly weaken Endangered Species Act regulations. He has proposed rules that would allow increased pollution from old power plants. But none of these deregulations have been finalized yet.