Rumors of a Regulatory Foe at OIRA

Update: Lutter Confirmed at OIRA [1].

As reported by Rena Steinzor [2] at the Center for Progressive Reform blog, rumors are circulating the Randall Lutter may be taking a deputy position at the White House Office of Information and Regulatory Affairs, the executive branch gatekeeper for all things regulatory. OIRA Administrator Cass Sunstein has neither denied nor confirmed the rumors, Steinzor says.

From 2005 to 2009, Lutter served as a deputy commissioner at the Food and Drug Administration. While there, Lutter helped craft FDA’s controversial [3]Good Reprint Practices guidance document, which allows pharmaceutical companies to promote approved drugs for unapproved, or off-label, uses. He also frequently defended [4]federal preemption of state drug and medical device law. Conservative lawmakers, regulators, and judges often claim that federal approval of a drug or device should bar tort suits against manufacturers in the event consumers are harmed by normal use.

Before serving at the FDA, Lutter wrote anti-regulatory academic and opinion pieces for the Brooking Institution/American Enterprise Institute regulatory studies program. He also worked in the White House under President Clinton at both the Office of Management and Budget (of which OIRA is a part) and the Council of Economic Advisors.

Steinzor and Celeste Monforton at the Pump Handle blog [5] have already identified some of Lutter’s more troubling writings on regulatory issues. Let me throw one more log onto the fire.

In 2004, Lutter co-wrote a paper titled, “Increasing CAFE Standards: Still a Very Bad Idea [6].” The title is pretty self-explanatory. (CAFE, or corporate average fuel economy, is the federal system for requiring a minimum level of vehicle fuel efficiency.) The paper says, “An increase in the current CAFE standard makes no economic sense in the current environment.”

His position is particularly interesting since the Obama administration is in the midst of strengthening CAFE standards. OIRA has already approved a joint proposal from the Environmental Protection Agency and Department of Transportation. The public comment period on that proposal has ended. The administration will likely make a final decision next year.

What would Lutter do if the draft final rule crossed his desk at OIRA? It seems unlikely that OIRA would reject a regulation that President Obama himself [7] has directed his administration to write. But that doesn’t mean OIRA couldn’t do damage by nibbling away at the margins of the regulation to undermine some of its impact – even if those changes would seem at odds with stated administration positions.

I’m getting ahead of myself here, as there is no confirmation that Lutter is under consideration for an administration position and no indication of what issues he would be assigned. The CAFE example is purely hypothetical. But if these rumors turn out to be true, it would be an unusual move for an administration that has framed itself as a defender of the environment and public health.