On this blog, we’ve not minced words about the damaging impact on new worker safety and other public health regulations by the actions of the White House’s Office of Information and Regulatory Affairs (OIRA). It began causing trouble for OSHA the moment it was created by President Reagan, and its interference continues to this day.
During those early hope-and-change days, I had my fingers crossed that our new President had a fresh vision about the role of his regulatory czar. But in January 2009 my hope was dashed when President Obama nominated law professor Cass Sunstein to lead OIRA. Sunstein was, afterall, the author of law review papers entitled “Is OSHA unconstitutional? and “Is the Clean Air Act unconstitutional?” During his tenure—Sunstein stepped down in August 2012—the regulatory czar made a habit of using proposed worker safety initiatives as examples of burdensome regulations. That was a real slap in the face. Safety and other labor protections for workers already get denigrated by conservatives in Congress and powerful business interests, we sure didn’t need our Democratic White House piling on.
I’ve known for a long time that OIRA interfered in and delayed agency action—-which has real consequences for individuals and families—-but now I’m reading that it was probably worse than I imagined. Writing at Climate Progress, Georgetown law professor Lisa Heinzerling critiques Cass Sunstein’s latest book which describes his experience as Obama’s reg czar. Heinzerling notes:
“Rules on worker health, environmental protection, food safety, health care, consumer protection, and more all passed through Sunstein’s inbox. Some never left. A group of Department of Energy efficiency standards, for example, have languished at OIRA since 2011, as has an Occupational Safety and Health Administration rule to finally reduce exposure to the silica dust that sickens workers every year. In his revealing book, Sunstein tells us why.”
She goes on, quoting from Sunstein’s prose:
“It is because he, Sunstein, had the authority to “say no to members of the president’s Cabinet”; to deposit “highly touted rules, beloved by regulators, onto the shit list”; to ensure that some rules “never saw the light of day.”
Never saw the light of day?? So much for President Obama’s promise for a rulemaking process that embraces public participation.
By Heinzerling’s account, it sounds like Sunstein and his OIRA staff decided that they knew better than the regulatory agencies themselves.
“Assertive intrusions into agencies’ prerogatives — prerogatives given by law to the agencies, not to OIRA — were necessary, Sunstein insists, because otherwise agency decisions might be based not on ‘facts and evidence,’ but on ‘intuitions, anecdotes, dogmas, or the views of powerful interest groups.’”
Heinzerling, who served in the Obama Administration at EPA during 2009 and 2010, offers this zinger:
“Most people, I would venture to guess, think that the person who runs, say, the Environmental Protection Agency is actually the Administrator of the Environmental Protection Agency. But given OIRA’s power to veto rules, the reality is otherwise: In the rulemaking domain, the head of OIRA is effectively the head of the EPA.”
Bravo to Lisa Hienzerling for using the occasion of Sunstein’s book to confirm my suspicions about Obama’s OIRA, even if they are worse than I imagined.