A Close Look At Cass Sunstein’s Take on Cost-Benefit Regulation

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.