Transition at OIRA: What Kind of Change?

Change is coming to the leadership position at the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB). Two news reports during the week of Jan. 5 highlighted the outgoing and (potentially) incoming administrators of the office that reviews federal agencies' proposals for providing public health, safety, consumer, and environmental protections.

On Jan. 6, President Bush named Susan Dudley to the position of Acting Administrator of OIRA. The appointment was necessary to extend Dudley's tenure in the position she has held since April 2007. Dudley was one of a handful of recess appointments whose tenures expired when the 110th Congress officially ended — and a new recess appointment could not be made. In order to continue the work of the Bush administration through Jan. 20, it was necessary that someone be appointed to fill the position in an acting capacity, and Dudley was Bush's logical choice. According to a Jan. 8 BNA article (subscription), Dudley has submitted her resignation from the post effective Jan. 20.

Dudley's initial nomination was widely opposed by those who support an active role for government in providing regulatory protections, including OMB Watch, and was widely supported by business groups and those who view regulations only as unnecessary infringements on free markets. The controversy surrounding her nomination may have prevented the Senate from confirming her when the 109th Congress reconvened following the November 2006 elections, even though Republicans controlled the Senate at that time. Although new confirmation hearings were being scheduled in 2007 under Democratic leadership, Bush decided to use his recess appointment powers to install Dudley at OIRA. She is the only OIRA administrator not confirmed by the Senate since the office was created in 1980.

President-elect Obama's choice to head OIRA is Cass R. Sunstein, a prolific legal scholar, according to a Jan. 8 article in the Chicago Tribune. Sunstein is a friend of Obama's from Chicago and a member of the presidential transition team. He is currently a law professor at Harvard University and remains a visiting professor at the University of Chicago, where he and Obama taught. Sunstein is the author of numerous books and articles and has written on constitutional, administrative, financial, and environmental issues.

According to the Tribune article, Obama's decision to name Sunstein to OIRA signals Obama's commitment to overhaul regulatory processes that determine both financial sector regulations and health, safety, and environmental regulations. Obama has not formally nominated Sunstein and has not made any statement about the nomination.

Sunstein's writings may make his nomination for OIRA as controversial as Dudley's nomination. He is widely published and regarded as an intellectual heavyweight. Some of his writings raise concern over his appropriateness to lead an office that can ultimately control the outcome of health, safety, and environmental regulations. For example, the title of an October 2008 law review article he wrote asks, "Is OSHA Unconstitutional?" Sunstein uses the article to advance the theory that the Occupational Safety and Health Act gives the Labor Department undue authority to promulgate health and safety regulations.

He has also written articles critical of traditional environmental regulatory approaches and has advocated for the use of market mechanisms and cost-benefit analysis, even when statutes explicitly exclude the consideration of costs in determining regulatory standards. In early January, E&E News PM quoted Frank O'Donnell, president of Clean Air Watch, as saying, "[Sunstein] appears to be embracing the very positions of the Bush EPA [Environmental Protection Agency] and other business interests who for years have tried to use this business of cost-benefit analysis as a device to attack the Clean Air Act."

The president of the Center for Progressive Reform, law professor Rena Steinzor, likewise criticized Sunstein's views on cost-benefit analysis in a blog post Jan. 9. She argues that Sunstein should not be "given a free pass" to be OIRA administrator and that "progressives concerned about regulatory policy and Sunstein's ample writings on the subject will want to hear assurances that under his leadership OIRA will stop serving as a roadblock to much needed protections."

Gary Bass, executive director of OMB Watch, said, "I have enormous respect for Sunstein's intellect, but there is a good deal of concern in the public interest community about his support of cost-benefit analysis and what that means for regulatory policy in an Obama administration. He has an immensely difficult task in front of him if the administration wants to change the regulatory process to provide greater public protections."

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