Cass Sunstein’s Indelicate Balance

As the National Transportation Safety Board (NTSB) concluded its three-day public hearing on the crash of Colgan Air Flight 3407 in Buffalo, New York, and it became increasingly apparent that shoddy training was largely to blame, the defense mounted by Colgan has so far been: don’t blame us, our training was “FAA approved.”

For those of us familiar with the so-called “preemption defense,” (i.e., I should be immune from lawsuits so long as my reckless behavior adhered to minimal regulatory standards) this argument represents a very tired old saw—one many of us were enjoying a welcome break from after the Supreme Court’s landmark decision in Wyeth v. Levine. Nevertheless, it does say something about the continued resonance of such arguments (at least, in certain circles), and underscores the importance of not only maintaining consumers’ access to the civil justice system, but also having a federal regulatory system with genuine bite.

Enter Cass Sunstein, Harvard law professor and Obama friend/colleague from his University of Chicago days, who is perhaps best known for his “cost-benefit” approach to public protection (as well as attacking punitive damages, we might add). As the Colgan flight 3407 hearings wore on, Sunstein was busy “cruising” through a hearing of his own—with the U.S. Senate, no less—cementing his status as the new White House “regulatory czar.”

Since Reagan came to office, most significant regulations have required the approval of this czar—which can lead to the serious diluting of public protection regulations. President Bush’s czar, John D. Graham, proved to be a lightening rod of controversy for relying heavily on a cost-benefit approach, endangering the public. So, when President Obama was elected, health and safety advocates were hungry for the kind of change Obama had been promising. But unfortunately, it seems all they got was more of the same.

In their report, “Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein,” the Center for Progressive Reform wrote:

* Sunstein is a stout supporter of cost-benefit analysis as a primary tool for assessing regulations, despite its imprecision and the ease with which it is manipulated to achieve preferred policy outcomes;
* He supports such cost-benefit approaches as the widely condemned “senior discount” method for undervaluing the lives of seniors in cost-benefit analyses, an approach even the Bush Administration was forced to disown;
* He rejects the “precautionary principle” as a basis for regulating, thus ensuring that dangerous pollutants and products will be given the “benefit of the doubt,” rather than well-grounded concerns about health and safety;
* He supports the centralization of authority over regulatory decisions in the White House – [Office of Management and Budget’s Office of Information and Regulatory Affairs] (OIRA) in particular, even though Congress delegated the exercise of expert judgment to the regulatory agencies, not to OIRA’s staff economists in the White House; and
* He has written that the Occupational Safety and Health Administration might be unconstitutional.

Sunstein has written, for example, that he doesn’t think the toxic contamination of Love Canal, which one article on the EPA website called “one of the most appalling environmental tragedies in American history,” “ever posed significant risks to anyone” and that “people fear things like toxic chemicals or pesticides because of ‘mass delusions’ … availability heuristics (fears fanned by the media), informational and reputational ‘cascades,’ and interest-group campaigns.”

We’re going to hope for the best with Cass Sunstein. He did testify that he’d be "inclusive and humanized" and more moral in his approach to regulation. We hope that means better days at the FAA and all the other agencies that turned into corporate shills under Bush 43. Rena Steinzor, president of the Center for Progressive Reform, called Sunstein’s remarks "very heartening"—but, as she also said, "the proof will be in the pudding."

One thing seems certain, though. Regulatory balancing of the public health and safety will continue under this Administration. Corporations will still be able to block regulatory oversight and weaken safety regulations. All the more reason why liability must continue to be our the last line of defense against corporate malfeasance.

By Joanne Doroshow and Andy Hoffman, Center for Justice & Democracy.