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The Sunstein Also Rises

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

Cass Sunstein with Larry Lessig SOURCE: flickr/bframe Are science and environmental advocates as happy with Obama’s OIRA choice as his other appointments? Above, Sunstein at a talk with Larry Lessig.

So far, the research community has been ecstatic about Barack Obama’s appointments to the posts that matter most in science-centered decision making. But when it comes to the proposed head of an office accused of being central to the Bush administration’s assaults on science integrity—the Office of Information and Regulatory Affairs in the White House Office of Management and Budget, or OIRA—working out precisely how to feel about the president-elect’s pick is a bit trickier.

Science, Cultured

Contributing editor Chris Mooney

Science Progress contributing editor Chris Mooney surveys the interactions between science, politics, and culture from Los Angeles, California. He is the 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. He and Kirshenbaum blog at “The Intersection.” (Photo:

A prolific scholar, Harvard law professor Cass Sunstein has written on anything from the implications of the Internet for democracy (in 2001’s to animal rights and human cloning. 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. (Perhaps the most thorough presentation of the anti-cost benefit case came in Frank Ackerman and Lisa Heinzerling’s 2004 book Priceless: On Knowing the Price of Everything and the Value of Nothing, which argued for the utter jettisoning of the technique.)

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. Frank O’Donnell, the president of Clean Air Watch, recently wrote that compared with Graham—whose confirmation was opposed by no less than 37 senators—Sunstein has a “similar anti-regulatory view.” And Rena Steinzor, the president of the Center for Progressive Reform, has added that 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, are the fact that Sunstein serves at the pleasure of the president—who is very much in favor of stronger environmental regulation—and furthermore, that he’s certainly not a proponent of cost-benefit analysis above all else. Rather, as you can see in this extensive and thoughtful Sunstein article in The New Republic­—reviewing Ackerman’s and Heinzerling’s book—he simply believes it’s 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, peering into Sunstein’s writings on risk, rationality, and regulationand other scholars’ reactions to themthere’s a troubling sense of what might be called, for lack of a better word, elitism. Or as Sunstein put it in his book 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 this angle could oversimplify matters, for 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 ideological 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.

For now, the environmental community seems to be settling on the following position with respect to Sunstein. He’s going to go through, though senators should question him seriously at his confirmation hearing. In particular, let’s hope we hear 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.

Chris Mooney is 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. He and Kirshenbaum blog at “The Intersection.”


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