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

I don’t take pleasure in saying “I told you so.”

In this case, I am especially pained to say my predictions about President Obama’s “regulatory czar” Cass Sunstein have borne out.

You may recall the background: in 2009, President Obama nominated his old friend, Harvard Law School Professor Sunstein, to run the White House Office of Management and Budget’s Office of Information and Regulatory Affairs, an office little known outside the Beltway but one with enormous power. It is, in effect, the gatekeeper over all major rules issued by agencies such as the Environmental Protection Agency

In his prior life as an academic, Sunstein had raised serious questions about environmental requirements. He had urged, for example, changing the Clean Air Act to require that national clean air standards pass a cost-benefit test – a change in the law long sought by big corporate polluters who understood this meant a weakening of the law in the real world. (National clean air standards today are supposed to be based only on science so the public can know if the air is actually safe to breathe.)

I noted that had a Republican president nominated someone with similar views, public interest groups (and Democrats) would be screaming. But progressives and most Democrats basically gave Sunstein a pass.

His nomination was approved on a 57-40 vote. Once approved, Sunstein has generally worked in the office’s typical obscurity. Following his advice, the president issued an executive order demanding that agencies review existing regulations. This was generally viewed as a political concession to anti-governments groups such as the U.S. Chamber of Commerce.

In perhaps his best-publicized activity, as the New York Times recently reported, Sunstein joined forces with then-White House Chief of Staff Bill Daley to torpedo the EPA’s attempt to update national clean air standards for smog. Sunstein basically imposed his own illegal cost-benefit ideology on the decision. As a result, many millions of Americans will be breathing dirty air longer. To compound a bad decision, he then lied about it, claiming politics was not a factor.

If anyone thought this was an isolated incident, I suggest you read a provocative new report by the Center for Progressive Reform. It is the most thorough analysis I have ever seen of Sunstein’s office, and the results are pretty appalling. It documents in great detail how big business groups are using Sunstein as a tool to weaken health and safety standards. It has also become a tool of the administration’s foolish political efforts to mollify the business lobbies.

During a six-month period, Sunstein’s office literally met with nearly 6,000 lobbyists, 65 percent of whom represented industry, compared to only 12 percent representing public interest groups. In a shocking discovery, the analysis found that Sunstein’s office changed more rules than it did under the prior Bush administration!

The analysis notes that EPA rules were singled out for special review and change and that Sunstein’s office frequently ignores public disclosure requirements.

The report ends with a call for reform that it not likely to happen anytime soon. Indeed, even as I write, Sunstein’s office has become the conduit for meetings with dirty electric power companies who are seeking to weaken and include new loopholes in upcoming EPA standards aimed at cutting mercury and other life-shortening toxics from coal-fired power plants.

Will Sunstein strike again, as he did in the ozone decision?

Update: In an interview with the Wonk Room, EPA official Gina McCarthy argues that OMB’s involvement helped strengthen the final standard.

The Obama White House interfered with smog standards at the last minute, preventing the Environmental Protection Agency from properly protecting the health of millions of Americans. The White House’s Office of Management and Budget (OMB) and its subsidiary Office of Information and Regulatory Affairs (OIRA), led by Obama pick Cass Sunstein, oversees regulatory decisions by federal agencies. “The EPA issued a new rule recently on nitrogen dioxide (NO2),” Center for Progressive Reform president Rena Steinzor writes, “but not before it was weakened by OMB. The consequences for the public health are real.” On December 18, the EPA had proposed installing new monitoring stations at all cities with a population of 350,000 or more, but by “the time OIRA completed its review on January 22, the minimum threshold for monitoring stations had been increased to one per 500,000 people.” The Center for Progressive Reform discovered an email from a top EPA official that reveals the agency opposed the White House interference:

The EPA had made its position clear, it turns out. In a January 20th email about the “500,000″ proposal, Lisa Heinzerling, the EPA’s Associate Administrator for policy, wrote, “EPA does not support the alternative threshold described in the email below.”

The new standards “will improve air quality, particularly in communities disproportionately impacted by environmental problems.” However, the last-minute interference unnecessarily leaves millions without the same protection. As Matthew Madia relates at OMB Watch, there was no justification offered for the loosening of the standards:

The final rule claims the threshold was raised “after consideration of public comments,” but EPA provides no evidence that the public opposed the lower threshold. The Clean Air Council asked for an even lower threshold, possibly down to 100,000 people, according to a recap of comments in the final rule. Even Dow Chemical Company, which was pushing for a weaker one-hour standard, called the 350,000 person threshold “reasonable.”

When Cass Sunstein was nominated by Obama to run OIRA, environmental watchdogs raised significant concerns that he may share his predecessors’ antiregulatory zeal.

Ironically, Lisa Heinzerling, a law professor, was one of the sharpest critics of Bush White House interference with environmental rules. When the Bush administration wrote a rule to block the Endangered Species Act from addressing the threat of climate change, she said “rule turns the pit bull into a poodle.” Under Ken Salazar, the Obama Department of the Interior has continued to embrace Bush’s “poodle” rule.

Our guest blogger is Reece Rushing, director of regulatory and information policy at American Progress.

Judge Sonia Sotomayor, President Obama’s selection to replace Justice David Souter on the Supreme Court, is likely to be solid on the environment, based on her record on the Second Circuit of Appeals. In 2007, she authored the decision to strike down an Environmental Protection Agency (EPA) Clean Water Act rule that had been corrupted by the Bush White House Office of Information and Regulatory Affairs (OIRA) on behalf of energy companies. Georgetown law professor and American Progress affiliated scholar Lisa Heinzerling, now senior counsel for the EPA, explained at the time that Sotomayor’s Riverkeeper v. EPA decision was a “huge victory“:

In a huge victory for fish and other fans of the Clean Water Act, the Second Circuit last week ruled that the Environmental Protection Agency may not use cost-benefit analysis in setting standards for cooling water structures used at existing power plants around the country. . . .

The court ruled that the Clean Water Act does not permit the use of cost-benefit analysis in setting these standards or in allowing deviations from the standards. Quite reasonably, the court held that the agency could engage in a form of cost-effectiveness analysis in setting standards, by identifying the level of protection afforded by state-of-the-art technology and then allowing use of cheaper but equally effective technologies in meeting the standards. But the court clearly ruled out OIRA’s favorite technique for undoing regulatory advances, cost-benefit analysis.

As OMB Watch explained in 2002, EPA originally “sought to require the 59 largest plants in the most ecologically sensitive areas to meet the performance achievable by a closed-cycle cooling system, which reduces fish kills by up to 98 percent by recirculating or reusing water.” But by “ignoring the requirements of the law” and applying corporate-friendly cost-benefit analysis to the question of the “best technology available for minimizing adverse environmental impact”, OIRA “embraced alternative, less protective measures urged by energy companies — including Cinergy, Edison Electric, and Public Service Electric & Gas (PSE&G), among others.” Riverkeeper noted that this weaker rule “would allow existing plants to kill 20 to 1000 times more fish” than the stronger proposed mandate.

This April, Sotomayor’s decision was wrongly struck down by the Supreme Court. Justice Antonin Scalia wrote the 6-3 opinion to uphold Bush’s activist interpretation of the Clean Water Act, with Souter, Ruth Ginsberg, and John Stevens in dissent. Scalia’s decision reversed not only the Second Circuit decision but earlier Supreme Court precedent. Scalia effectively ruled that Congressional silence equals consent, writing that the Clean Water Act’s “silence is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used.” As Justice Stevens wrote in his dissent:

Section 316(b) neither expressly nor implicitly authorizes the EPA to use cost-benefit analysis when setting regulatory standards; fairly read, it prohibits such use.

If Sotomayor’s record on the Second Circuit is any guide, she will hold with Justice Souter’s example of putting science and the law above the interests of corporate polluters.

Download the Second Circuit opinion.

Download the Supreme Court decision.