Our guest blogger is Chris Mooney, contributing editor to Science Progress and author of several books, including The Republican War on Science and the forthcoming Unscientific America: How Scientific Illiteracy Threatens Our Future, co-authored by Sheril Kirshenbaum.

Working out precisely how to feel about the president-elect’s proposed head of the Office of Information and Regulatory Affairs in the White House Office of Management and Budget, or OIRA is a bit tricky. Harvard law professor Cass Sunstein is a prolific scholar, but a central focus of his research has been on ways of making the government regulatory process more efficient and effective — and this has included the embrace of so-called “cost benefit analysis,” which many environmental advocates accuse of being a rigged methodology that always seems to favor doing less for public health and the environment.

For a long time, OIRA has been seen as the place where regulations go to die, and cost-benefit analysis — in combination with improper second-guessing of scientific research produced by expert agencies — as the chief executioner. Bush’s controversial first OIRA director, John Graham, was a strong cost-benefit proponent, and at least for some, Sunstein sounds uncomfortably close to him in outlook. Rena Steinzor, the president of the Center for Progressive Reform, warned about Sunstein’s selection:

The appointment means that those of us expecting a revival of the protector agencies — EPA, FDA, OSHA, CPSC, and NHTSA — have reason to worry that “yes, we can” will become “no, we won’t.”

Balanced against such concerns, however, is the fact that Sunstein believes cost-benefit analysis is a flawed but nevertheless useful methodology, leading to a better chance, over all, of making the wisest decisions in a context that always requires some balancing of competing values.

Still, in Sunstein’s writings there’s a troubling sense of what might be called, for lack of a better word, elitism. For example, Sunstein wrote in Risk and Reason, “when ordinary people disagree with experts, it is often because ordinary people are confused.” Sunstein even admits in the book that his approach is “highly technocratic.”

The problem is we also have very strong reasons to be very skeptical of so-called “experts” on science and risk. Anyone who has peered into these sorts of debates closely — over, say, the herbicide atrazine or arsenic in drinking water — knows not only that the issues are exceedingly complex but also that there is a lot of distortion of science by “experts” who are really ideological allies of special interests. If the choice is between such experts and the public, I’ll take the public every time.

Perhaps, then, the issue is not cost-benefit analysis itself, but what form of it you practice. One cost-benefit proponent, OSH whistleblower Adam Finkel, has himself written that Sunstein has “managed to sketch out a brand of QRA [quantitative risk analysis] that may actually be less scientific, and more divisive, than no analysis at all.” Finkel’s take on Sunstein is worth quoting at length, because it captures not only the complexity of the issues involved but also the great divergence of “experts” on risk assessment itself, and where Sunstein stands on the spectrum:

I actually do understand Sunstein’s frustration with the center of gravity of public opinion in some of these areas. Having worked on health hazards in the general environment and in the nation’s workplaces, I devoutly wish that more laypeople (and more experts) could muster more concern about parts per thousand in the latter arena than parts per billion of the same substances in the former. But I worry that condescension is at best a poor strategy to begin a dialogue about risk management, and hope that expertise would aspire to more than proclaiming the “right” perspective and badgering people into accepting it. Instead, emphasizing the variations in expertise and orientation among experts could actually advance Sunstein’s stated goal of promoting a “cost-benefit state,” as it would force those who denounce all risk and cost-benefit analysis to focus their sweeping indictments where they belong.

Let’s hope we hear at Sunstein’s confirmation hearing that he rejects the idea that his office should be in the business of questioning the scientific determinations made by expert agencies like the EPA; that he plans to use cost-benefit analysis to improve regulation, not stifle it; and that he’ll show some serious skepticism towards many of the “experts” who tout “science” in these areas, and not just towards the allegedly irrational public.

Read more at Science Progress.

Our guest blogger is Frank O’Donnell, president of Clean Air Watch.

Cass Sunstein

How would progressives respond if President Bush nominated as “regulatory czar” a person who:

– Once called for changing the Clean Air Act to require a balancing of costs and benefits in setting national clean air standards – a fundamental weakening long sought by big polluters who believe it would help them resist cleanup;

– Urged the federal government to devalue senior citizens in calculating the benefits of federal regulations because “A program that saves young people produces more welfare than one that saves old people.” This is a concept dubbed the “senior death discount,” and that environmentalists forced EPA Administrator Christie Todd Whitman to renounce in 2003;

– Argued that it “might be better” to help future generations deal with global warming by “including approaches that make posterity richer and better able to adapt” than by “reducing emissions.”

– Even raised questions about the value of cleaning up Love Canal, reducing arsenic in drinking water and using child restraints in automobiles?

Progressives would’ve screamed, of course. But what will they do now that President-elect Obama appears poised to nominate Harvard Law School Professor Cass Sunstein to head the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA)? For it’s actually Sunstein who has articulated the views noted above regarding clean air and the other issues involving costs, benefits and risk.

When President Bush nominated someone with similar anti-regulatory views, John Graham, to head OIRA, progressives and environmentalists strongly opposed his nomination.

Thirty-seven progressives, led by Senator Dick Durbin (D-IL) and including Harry Reid (D-NV), unsuccessfully opposed the nomination of Graham, who was also opposed by the League of Conservation Voters because Graham “has a perspective on the use of risk assessment and cost-benefit analysis that would greatly jeopardize the future of regulatory policies meant to protect average Americans. He advocates an analytical framework that systematically reinforces the worst tendencies of cost-benefit analysis to understate benefits and overstate costs.”

LCV even deemed the vote on the Graham nomination one of the eight most critical environmental votes of 2001.

The OMB position is obscure to people outside the Beltway, but it wields enormous power. The office oversees regulations throughout the government, from the Environmental Protection Agency to the Occupational Safety and Health Administration. Draft rules must be approved by OIRA before promulgation. Under Bush, OIRA often used its power to reduce the size and scope of the safeguards to reduce compliance costs to companies causing the health or safety threat. And the Sunstein choice is raising some eyebrows among those wonks who closely scrutinize federal regulatory policy. Robert Shull, former director of regulatory policy at OMB Watch, told E&E News:

It’s difficult to square the choice of an anti-regulatory scholar for the chief regulatory officer with Obama’s many, many promises for a new direction and moving forward from eight years of anti-regulatory, deregulatory misbehavior.

It’s unfair, of course, to paint the 54-year-old Sunstein as a complete clone of Graham and the other Bush anti-regulatory zealots. Indeed, Sunstein has earned a reputation as a genuine progressive on some issues, arguing in 2004 for the implementation of a “Second Bill of Rights” promoted in January 1944 by Franklin D. Roosevelt, to guarantee the “right of every American to a job, a home, and medical care.”

But as co-chair of the American Enterprise Institute Center for Regulatory and Market Studies advisory board, Sunstein works for one of the nation’s most influential right-wing corporate anti-regulatory think tanks. In an interview last year with the Wall Street Journal, Sunstein said of Obama, “He’s a University of Chicago Democrat, so he’s very attuned to the virtue of free markets and the risks of free-market regulation. He’s not an old-style Democrat who’s excited about regulations for their own sake.”

Sunstein will likely be confirmed by the Senate. After all, he is a long-time friend of the President-elect from their faculty days at the University of Chicago law school. Even so, it would seem vital for senators to quiz Sunstein closely at upcoming confirmation hearings and meetings. Does he still hold those views on pollution and risk? (And could he become part of a White House faction — along with Larry Summers, incoming director of the National Economic Council, and incoming national security adviser James Jones — opposing aggressive action on global warming?)

He shouldn’t get a pass just because he was nominated by Obama.