May 13, 2009 The Pump Handle 1Comment

by Pete Galvin

You never learn much from a “wired” confirmation hearing, and that was true yesterday at the hearing for Cass Sunstein to be director of OIRA.  Only three Senators bothered to come (apart from his former student, now the Senator from Minnesota, who introduced him before leaving) and two short rounds of questions were designed to let him place on the record a few key statements to respond to interest groups.  

He is, he assured them, not in favor of banning hunting; he thinks both OSHA and the Clean Air Act are constitutional; and his number one priority at OIRA is to follow the requirements of the Congress in each case.  That last point is not unimportant for OSHA and MSHA, although it will be a while before either can get around to testing the proposition. 

He doesn’t like command and control approaches, but then again he hasn’t much exposure to industry legal counsel insisting that every “t” by crossed and “i” dotted, right down to the staff implementing instructions.  So, with his nomination all but certain, is there something we can do beyond worry and getting engaged on each and every project to keep the pressure on for desperately needed regulation? 

My suggestion is that the occupational health and labor communities publicly seek his early engagement in coming up with a plan to solve a set of problems which have proved intractable for many years.  Specifically, I would publically dump the PELs problem right in his lap; and do it now, rather than wait for OSHA and MSHA to generate initial ideas.  This is not contrary to my general position that OIRA should let OSHA and MSHA do what Congress assigned them to do and stop usurping their authority.  Rather, what I’m suggesting is to engage the man himself on these problems, not the organization of which he will soon be in charge. 

Sunstein knows the legal issues that have led us to stalemate, though perhaps he is less familiar with the back story of how an industry lobbyist successfully poisoned the well.  That, plus his public posture on regulation in general, will give him particular credibility in suggesting a way forward.  While the PELs may ultimately require a legislative solution — and indeed, the House of Representatives passed legislation to address the problem in the context of mine safety, legislation that died in the Senate — the Congress won’t want to touch this until a new Administration has given this it’s best effort.

So let’s give the guy, and his boss the President, a chance to do the right thing by tossing them this problem.  I’ll bet Mr. Sunstein would like a chance to prove himself to us, so let’s give it to him.

Pete Galvin worked for 35 years at the US Department of Labor, including counsel for administrative law and the Department’s representative to the White House and Congress for regulatory reform issues during the Clinton Administration.    He took a hiatus from retirement in 2006-2007 to serve as a senior labor advisor to the Chairman of the House Education and Labor Committee.

Note 1: for other points of view on Cass Sunstein’s confirmation hearing, read the Center for Progressive Reform’s Rena Steinzor here, and Richard L. Revesz & Michael A. Livermore of New York University here.

Note 2: for more info on why our workplace chemicals policy needs an overhaul, read Mike Wright’s (Director of Health & Safety for the United Steelworkers) February 2009 testimony.

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