WaPo: Cass Sunstein Not-So-Gently "Nudged" Regulations Away From Election Season

Over the weekend, the Washington Post reported that the Obama administration purposefully delayed enacting a number of environmental, safety, and health rules in order to avoid discussing them during the election season. The WaPo article resulted from discussions with current and former administration officials as well as a recent report from the Administrative Conference of the United States.

The effects of the White House's loathness to challenge business interests--whether out of fear of attack ads or perhaps just general agreement with them--can be seen in the following graph. The 2012 election season saw a major drop in both the number of rules and the speed by which Cass Sunstein's OIRA approved them.

OIRA created bureaucratic hurdles to rule-making:

The officials interviewed for the ACUS report, whose names were withheld from publication by the study authors, said that starting in 2012 they had to meet with an OIRA desk officer before submitting each significant rule for formal review. They called the sessions “Mother-may-I” meetings, according to the study.

The accounts were echoed by four Obama administration political appointees and three career officials interviewed by The Post.

The EPA was a major target of Cass Sunstein's:

At the Environmental Protection Agency, for example, a former official said that only two managers had the authority to request a major rule in 2012: then-administrator Lisa P. Jackson and deputy administrator Bob Perciasepe. Perciasepe and OIRA’s director at the time, Cass Sunstein, would have “weekly and sometimes semi-weekly discussions” to discuss rules that affected the economy, one said, because they had political consequences, the person said.

“As we entered the run-up to the election, the word went out the White House was not anxious to review new rules,” the former official said.

By "affect the economy," we know that Sunstein means "affect big polluters." Industry groups have dominated the OIRA meeting process, so the administration is hearing the vision of the "economy" held by corporate executives and lobbyists, not the workers who would benefit from safety regulations or the members of communities who would benefit from environmental health regulations. Oil and coal lobbyists always had a friendly ear in Cass Sunstein:

Several significant EPA proposals were withheld as a result of those meetings, officials said, including a proposal requiring cleaner gasoline and lower-pollution vehicles that had won the support of automakers but angered the oil industry.

That regulation, which would reduce the amount of sulfur in U.S. gasoline by two-thirds and impose fleetwide pollution limits on new vehicles by 2017, was ready in December 2011, said three officials familiar with the proposal. But agency officials were told to wait a year to submit it for review because critics could use it to suggest that the administration was raising gas prices, they said. The EPA issued the proposed rule in March.

Other EPA regulations that were delayed beyond the 2012 election included rules on coal ash disposal, water pollution rules for streams and wetlands, air emissions from industrial boilers and cement kilns, and carbon dioxide limits for existing power plants.

Delaying or killing much-needed regulations in fear of corporate misinformation campaigns or a closer affinity to corporate over worker interests was not new to 2012, unfortunately. This piece reminded me of an excellent article from The Nation last month about the use of child labor in tobacco fields. In early 2011, the Labor Department released its draft regulations for child farmworkers. Opponents latched onto a patently false narrative of "Obama vs. American family farms," arguing that the new regulations would destroy the rural way of life and refusing to acknowledge the evidence to the contrary.


Facing the misinformation campaign from Republicans and the American Farm Bureau, the administration ultimately caved and killed the proposed regulation. In doing so, the administration embraced the misinformation campaign as well; the Department of Labor's statement on the withdrawal of the proposal cited the administration's commitment "to promoting family farmers and respecting the rural way of life" as part of its rationale. DoL proposed an "education program" with "rural stakeholders" as an alternative. The first "stakeholder" on the list was the American Farm Bureau, the regulation's main opponent, and no representatives of migrant youth were included. This was a major blow toward public health, workplace safety, and children's rights.

The dramatic about-face left public health advocates reeling. “I’ve been following worker safety and health for twenty years,” says Celeste Monforton, a professor at the George Washington School of Public Health and a former OSHA analyst. “I have never seen anything like that statement. It was a sucker punch. It ran completely counter to what we would have expected from an administration that claims to be advocates for vulnerable people.”

Details on who made the decision to drop the proposed changes aren’t clear. In response to a Freedom of Information Act request from The Oregonian, the White House refused to release 600 pages of information, arguing that doing so would “inhibit the frank and candid exchange of views that is necessary for effective government decision-making.” But the Labor Department did tell The Oregonian that it was the White House that sent the announcement over, with instructions to release the news on department letterhead.

What's particularly offensive about such delays and withdrawals is that the problems the regulations seek to address--unsafe working conditions and the pollution of air, water, and land--have a real human toll. Sen. Richard Blumenthal (D-CT) aptly commented, "Legal protection delayed is protection denied." Likewise, Peg Seminario, the AFL-CIO's director of safety and health, noted that a regulation updating the nation's silica standards could save 688 deaths and 1,585 silica-related illnesses each year, but the regulation won't be finalized until 2016 because of the administration's delays.