The Sunstein Also Rises
A Close Look at Cass Sunstein’s Take on Cost-Benefit Regulation
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.
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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
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: flickr.com/sarahfelicity)
A prolific scholar, Harvard law professor Cass Sunstein has written on anything from the implications of the Internet for democracy (in 2001’s Republic.com) 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 regulation—and other scholars’ reactions to them—there’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.”
Comments on this article
I haven’t read your book (”How Scientific Illiteracy Threatens Our Future”), but I did recently finish Risk and Reason.
If the public is scientifically illiterate (and given the percentage of the population that rejects evolution, I’d say that is true), then how could it possibly make sense to bow to public opinion if the data clearly shows that a policy’s costs outweigh its benefits?
Are you suggesting that environmental policy is somehow different? Or would you suggest that, for example, intelligent design be taught in classrooms in the South (which, proponents will tell you, it touted by the “experts” who tout “science” over the objections of the allegedly irrational public).
January 14th, 2009 at 8:43 pmChris,
As somebody who enjoys your work and also admires Professor Sunstein’s work, I am a bit surprised by your commentary. As the post by Gavin Andresen suggests, your own work would appear to support the value of objective and careful analysis. Sunstein is rightly viewed (in the academic community and elsewhere) as someone who employs his formidable intellect in the service of Enlightenment values.
Arti Rai
January 15th, 2009 at 10:19 amElvin R. Latty Professor of Law
Duke Law School
Both comments (I know Prof. Rai and respect her work) misrepresent what Chris wrote. He said that scientists aligned with special interests often muddy the waters surrounding an objective debate about costs and risks. Chris seemed to be saying that in cases where public concern (I would describe it that way rather than opinion) faces self-interested science, he would side with the public. I am with him in that regard.
What Sunstein should be asked during confirmation hearings is how he will deal with managing conflicts of interest among scientists involved in the regulatory process. He also should be asked about his thoughts on how we can generate more objective analyses when the data is largely from regulated industries. Therein lies the answer to how we can construct a more objective and therefore more constructive version of cost-benefit analysis than what we’ve seen over the past several decades.
January 15th, 2009 at 12:43 pmSome of Cass Sunstein’s recent writings provide interesting clues as to how he might behave as head of OIRA. In Worst-Case Scenarios he writes about how individuals and society at large respond to the prospects of serious harms that might result from a variety of sources and events. The book reveals, I think, a penchant for seeing things in terms of conventional cost-benefit analysis, yet at one point he writes, “ my emphasis has been on welfare, not on monetary equivalents. The core of the analysis focuses on what is lost and what is gained by precautions; and if we really want to know what is lost and what is gained, we will think about welfare, not about money. “ Sunstein is exceedingly analytical in outlook. Perhaps one can never have too much of that, but when he comes to the end of a long analysis of some important concept, it is difficult to say just where he comes down. I find his treatment of the Precautionary Principle to be –what can I say? – deeply ambiguous. In a paper in the Spring 2008 issue of Daedalus, the journal of the American Academy of Arts and Sciences, he writes about it at length. He goes to some lengths to describe various versions of the principle, and implicitly at least seems to agree that some form of it is essential in regulating risk. Indeed, it is difficult to imagine why any regulations related to the conduct of society could be formulated absent concerns about the adverse consequences of not regulating, whether it has to do with speed limits, controls on use of pesticides or anything else. After delineating the various levels of its application, and in discussing various potential applications, he asserts that “in its strongest form it is incoherent; it purports to give guidance, but it fails to do so because it condemns the very steps that it requires.” Throughout the paper he increasingly emphasizes the notion that application of the Precautionary Principle fails to take into account the costs (of all sorts) that could ensue from its application in a given situation. But application of the principle is not always, indeed not usually, made in the strongest form. Furthermore, it can and should be applied in concert with other considerations that impact on the assessment of the benefits and costs of its application. He ends the paper by arguing that the Precautionary Principle, presumably in any form, is not a sensible policy for governments. “Rational nations should certainly take precautions. But they should not adopt the Precautionary Principle. “ Not in any form? And if that is the case, on what basis are precautions taken?
January 16th, 2009 at 6:22 pmI think Chris’s excellent commentary, but even more so the first two comments above, draws insufficently complex categorizations. I realize that many of the initial negative reactions about Sunstein are and will be that he is a proponent–as opposed to an opponent– of CBA, and that he sides with biased “experts” over the general public. But the first objection is naive, in my view, while the second misses the point.
1. *Of course* the head of OIRA is going to believe in aligning regulations so as to extract sizable benefits while minimizing needless costs, and will see science and economics as useful tools to make these determinations. Opposing Sunstein on the grounds that Obama should have picked an “intuitive precautionist” squanders the opportunity to make a much more important point– that *within* the community of CBA proponents there are vast differences in orientation. Much of my research over the past 25 years has made the case that current methods of quantitative risk assessment often lead to *underestimation* of risk, and that current methods in regulatory economics often lead to serious overestimation of cost. This is contrary to the conventional non-wisdom, but if I am correct, then Gavin Andresen’s hypothetical about a policy whose costs “clearly outweigh its benefits” would be far less common an occurrence than Sunstein would ever contemplate. By contrast, my long-time colleague John Graham would tend to view an EPA/FDA/OSHA regulatory analysis with a very different set of concerns and expectations (that risks are exaggerated and costs are understated)– I think that is a mistaken view, but one that I think Sunstein has bought into hook, line, and sinker.
2. The problem with Sunstein’s elitism, one that Chris was too kind to highlight, is the possibility that he writes in this area with feigned expertise, and perhaps doesn’t even know which “experts” to look to for guidance. My complete review of “Risk and Reason” (see hyperlink within the original post) points out a litany of errors that, in my opinion, follow naturally when a non-scientist makes scientific conclusions, relying exclusively on the drivel of other non-scientists. I am worried about the influence of money and power on science, but much more about the influence of ignorance on science. Sunstein’s intellect is indeed “formidable” (and I would add “incredibly broad”), but just as I would caution anyone relying on me for the definitive word on constitutional law, I would caution anyone relying on him for the definitive word on chemical carcinogenesis. With enough training and practice, either of us might make an excellent brain surgeon, but woe unto the patient who’d let either of us operate on him with our current level of skill.
January 17th, 2009 at 1:28 pmI very much concur with Adam Finkel’s comments. The problem is not so much that Sunstein subscribes to CBA, but that he is scientifically naive and arrogant at the same time, which leads him to utterly fail at trying to get more effective guidance out of CBA. The problem is also that he for the most part subscribes to a very narrow monetized form of CBA, rather than one based on a broader notion of valuation, as advocated by Amartya Sen. He nods in the direction of “welfare” over costs above, but his analytic analyses are for the most part in the same old dollar-equivalent of mercury poisoning mode.
For further remarks on Sunstein and CBA, you can see my review of “Risk and Reason” published in Nature (under the title “Counting the Costs”), and also my article “Climate Change as a Catastrophe in Slow Motion,” published in the Chicago Journal of International Law. Reprints of both are available in the publications section of my web site.
There are signs that Sunstein is moving towards a more nuanced view, but from what I have seen of the in-press book inaptly named “Climate Justice,” I do not see that this has been anything other than window-dressing.
Raymond T. Pierrehumbert
May 12th, 2009 at 3:24 pmLouis Block Professor in the Geophysical Sciences
The University of Chicago