Like Alice's adventure, the development of regulatory oversight in the Obama administration is becoming "curiouser and curiouser." President Obama selected Cass Sunstein to be the head of the Office of Information and Regulatory Affairs (OIRA), a curious choice since Sunstein, although one of the country’s most distinguished academics, is in favor of extending the use of cost-benefit analysis, a position so popular with the business community that the Wall Street Journal endorsed his nomination. Sunstein's confirmation hearing was uneventful, probably because he avoided answering any difficult questions, but Sunstein's nomination is now being held by Senator John Cornyn, who objects to Sunstein's previous statements on animal rights -- an issue that the head of OIRA is highly unlikely to encounter.
In the meantime, the development of a new Executive Order on regulatory impact analysis has had its own curious journey. The new administration invited public comment on shaping the executive order, an unprecedented and welcome development. The administration also sought the input of agencies, although it has not made their comments public. That's defensible -- Presidents defend such secrecy as necessary to ensure that subordinates will be candid in giving advice -- but the administration missed an opportunity to fulfill its pledge to be more transparent since it is unlikely that agencies would have been affected had the comments been disclosed.
To fulfill its transparency commitment, the administration also should have put out a draft Executive Order for public comment. In Republican administrations, OIRA review has been used to scuttle regulation, while OMB in the Clinton administration adopted a more benign attitude towards executive oversight. The ideal outcome would be to replace the current cost-benefit centered review process with a more pragmatic approach, a result CPR board members called for in March. But given Sunstein’s appointment, this outcome would be unexpected (but welcome). If a cost-benefit approach is to be retained, the devil will be in the details, all the more reason to invite public comment on a draft executive order.
On Tuesday, the White House announced the appointment of Dr. David Michaels to head the Occupational Safety and Health Administration (OSHA). An epidemiologist and a professor at George Washington University’s School of Public Health and Health Services, Michaels will bring substantial expertise and experience to the job. Besides being an active health research – he studies the health effects of occupational exposure to toxic chemicals – he has also written impressively on science and regulatory policy. His book, Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health, offers extensive evidence of how regulatory entities spend millions of dollars attempting to dismantle public health protections using the playbook that originated with the tobacco industry’s efforts to deny the risks of smoking. He is also an experienced public health administrator, having served as the Assistant Secretary of Energy for Environment, Safety and Health in the Clinton Administration.
The appointment is good news because OSHA can use all of the help it can get. In 1993, Tom McGarity and I published Workers at Risk: The Failed Promise of the Occupational Safety and Health Administration, which explained how OSHA has fallen short of its statutory responsibility to protect American workers. I wish that I could say that the situation has improved since then, but, if anything, OSHA is in worse shape today than in the early 1990s.
Workplace injuries and fatalities have declined since OSHA has been in business, but the rate of decline has leveled off and the absolute number of injuries and fatalities remains high. Consider, for example, that in 2005, employers paid $48.3 billion in “direct costs” for workplace injuries -- that is, payments for medical expenses and lost wages -- according to the Liberty Mutual Insurance Company, the nation’s largest workers' compensation insurer. This number, of course, does not measure the additional havoc wrought on individuals and their families when a worker is seriously injured or killed in a workplace accident.
American workplaces are dangerous for a number of reasons, including too few OSHA inspectors and a statute that authorizes only small penalties even for more egregious violations. For example, penalties are capped at $70,000 per incident even for “willful violations,” which involve situations where an employer demonstrates “plain indifference to the law.” Plus, OSHA has been way too willing to cut deals and let employers off the hook. The average penalty for enforcement cases involving fatalities in FY 2007 was just $10,133. That’s right, employers paid an average of $10,000 in fines for an accident in which an OSHA violation led to a workers’ death.
Center for Progressive Reform Member Scholar Sidney Shapiro blogs on President Obama's order reinvigorating the Freedom of Information Act. Full text
Center for Progressive Reform Member Scholar Sidney Shapiro blogs a proposed executive order for restoring transparency to government, touching on the Freedom of Information Act, the Federal Advisory Committee Act and OIRA's behavior in the regulatory process. The proposal is drawn from the Center for Progressive Reform's Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days. Full text
Guest Blogger: Liz Borkowski