[Congressional Record Volume 147, Number 101 (Thursday, July 19, 2001)]
[Senate]
[Pages S7906-S7934]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JOHN D. GRAHAM OF MASSACHUSETTS TO BE ADMINISTRATOR OF
THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS, OFFICE OF MANAGEMENT
AND BUDGET--Resumed
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. THOMPSON. Mr. President, I rise in support of the nomination of
Dr. John Graham for the position of Administrator of OMB's Office of
Information and Regulatory Affairs.
On May 23, the Governmental Affairs Committee reported the nomination
of Dr. Graham with a vote of 9-3 or 11-4, if you count proxies. The
bipartisan vote included Republican members of the committee, as well
as Senators Levin, Carper, and Carnahan. I urge my colleagues on both
sides of the aisle to join us in support of the confirmation of Dr.
Graham.
The Office of Information and Regulatory Affairs, or OIRA, as we will
refer to it, was established in 1980 by the Paperwork Reduction Act,
legislation developed to address policy issues that Congress was
concerned were being neglected by the executive branch. OIRA is
primarily charged with being a leader on regulatory review, reducing
unnecessary paperwork and red tape, improving the management of the
executive branch, reviewing information policy, and guiding statistical
policy proposals.
The decisions and actions of the OIRA administrator are very
important to the public and should be made by a particularly capable
and dedicated individual. John Graham fits this profile.
John Graham has been a professor of policy and decision sciences at
the Harvard School of Public Health since 1985. He is the founder and
director of the Harvard Center for Risk Analysis. He has worked with
various Federal agencies through his research, advisory committees, and
as a consultant. He holds a bachelor's degree in public affairs from
Duke University and a Ph.D. in urban and public affairs from Carnegie
Mellon University with an emphasis on decision sciences.
In addition, the EPA funded his postdoctoral fellowship in
environmental science and public policy, and he completed course work
in research training and human health risk assessment.
In 1995, Dr. Graham was elected president of the International
Society
[[Page S7907]]
for Risk Analysis, a membership organization of 2,000-plus scientists,
engineers, and scholars dedicated to advancing the tools of risk
analysis.
We have received testimonials attesting to the credentials and
integrity of Dr. Graham from hundreds of esteemed authorities in the
environmental policy, health policy, and related fields. William
Reilly, the former Administrator of EPA, said that ``over the years,
John Graham has impressed me with his vigor, his fair-mindedness, and
integrity.''
Dr. Lewis Sullivan, former Secretary of the Department of Health and
Human Services said that ``Dr. Graham is superbly qualified to be the
IORA administrator.''
Former OIRA Administrators from both Democratic and Republican
administrations have conveyed their confidence that John Graham is not
an opponent of all regulation but, rather, he is deeply committed to
seeing that regulation serves broad public purposes as effectively as
possible.
Dr. Robert Leiken, a respected expert on regulatory policy at the
Brookings Institution, stated that Dr. Graham is the most qualified
person ever nominated for the job of OIRA Administrator.
About 100 scholars in environmental and health policy and related
fields joined together to endorse John Graham's nomination stating:
While we don't always agree with John or, for that matter,
with one another on every policy issue, we do respect his
work and his intellectual integrity. It is very regrettable
that some interest groups that disagree with John's views on
the merits of particular issues have chosen to impugn his
integrity by implying that his views are for sale rather than
confronting the merits of his argument. Dialog about public
policy should be conducted at a higher level.
Having dealt with this nomination for many months, I think that quote
really hits the nail on the head. Some groups oppose Dr. Graham because
they don't agree with his support for sound science and better
regulatory analysis. But they have chosen to engage in attacks against
him instead of addressing the merits of his thinking.
It is especially unfortunate since this nominee has done so much to
advance an important field of thought that can help us achieve greater
environmental health and safety protection at less cost.
While some groups oppose the confirmation of Dr. Graham, I believe
their concerns have been addressed and should not dissuade the Senate
from confirming Dr. Graham. For example, Joan Claybrook, the President
of Public Citizen, has charged that Dr. Graham's views are
antiregulation. Yet Dr. Graham's approach calls for smarter regulation
based on science, engineering, and economics, not necessarily less
regulation. He has shown that we can achieve greater protections than
we are currently achieving.
Opponents have charged that Dr. Graham is firmly opposed to most
environmental regulations. In fact, Dr. Graham and his colleagues have
produced scholarships that supported a wide range of environmental
policies, including toxic pollution control at coke plants, phaseout of
chemicals that deplete the ozone layer, and low-sulfur diesel fuel
requirements. Dr. Graham also urged new environmental policies to
address indoor pollution, outdoor particulate pollution, and tax
credits for fuel-efficient vehicles.
Dr. Graham believes that environmental policy should be grounded in
science, however, and examined for cost-effectiveness. Dr. Graham and
his colleagues have also developed new tools for chemical risk
assessment that will better protect the public against noncancer health
effects, such as damage to the human reproductive and immune systems.
Dr. Graham's basic regulatory philosophy was adopted in the Safe
Drinking Water Act amendments of 1996, a life-saving law that both
Democrats and Republicans overwhelmingly supported, including most of
us here today.
Critics have claimed that Professor Graham seeks to increase the role
of economic analysis in regulatory decisionmaking and freeze out
intangible and humanistic concerns. This is inaccurate. In both of his
scholarly writings, and in congressional testimony, Professor Graham
rejected purely numerical monetary approaches to cost-benefit analyses.
He has insisted that intangible contributions, including fairness,
privacy, freedom, equity, and ecological protection be given way in
both regulatory analysis and decisionmaking.
Dr. Graham and the Harvard Center have shown that many regulatory
policies are, in fact, cost-effective, such as AIDS prevention and
treatments; vaccination against measles, mumps, and rubella;
regulations on the sale of cigarettes to minors; enforcement of
seatbelt laws; the mandate of lead-free gasoline; and the phaseout of
ozone-depleting chemicals.
Critics also claimed that Professor Graham's views are extreme
because he has indicated that public health resources are not always
allocated wisely under existing laws and regulations. Yet this is not
an extreme view. It reflects the thrust of the writings on risk
regulation by Justice Stephen Breyer, for example--President Clinton's
choice for the Supreme Court--as well as consensus statements from
diverse groups such as the Carnegie Commission, the National Academy of
Public Administration, and the Harvard Group on Risk Management Reform.
Professor Graham made crystal clear at his confirmation hearing that
he will enforce the laws of the land, as Congress has written them. He
understands that there is significant differences between the
professor's role of questioning all ways of thinking and the OIRA
Administrator's role of implementing the laws and the President's
policy. I believe Dr. Graham will make the transition from academia to
Government service smoothly, and that he will use his valuable
experience to bring more insight to the issues that confront OIRA every
day.
A fair review of the deliberations of the Governmental Affairs
Committee, and the entire record, lead me and many of my colleagues to
conclude that Dr. John Graham has the qualifications and the character
to serve the public with distinction.
A respected professor at the University of Chicago put it this way.
He says:
John Graham cannot be pigeonholed as conservative or
liberal on regulatory issues. He is unpredictable in the best
sense. I would not be surprised at all if in some settings he
turned out to be a vigorous voice for aggressive governmental
regulation. In fact, that is exactly what I would expect.
When he questions regulations, it is because he thinks we can
use our resources in better ways. It is because he thinks
that we can use our resources in ways that do not necessarily
meet the eye. On this issue, he stands as one of the most
important researchers and most promising public servants in
the Nation.
I urge prompt confirmation of John Graham.
I reserve the remainder of my time and yield the floor.
The PRESIDING OFFICER (Mrs. Clinton). The Senator from Illinois is
recognized.
Mr. DURBIN. Madam President, before beginning my remarks, I would
like to have a clarification, if I can, as to the allocation of time in
this debate.
The PRESIDING OFFICER. There is 1 hour under the control of Mr.
Lieberman, 3 hours under the control of Mr. Thompson, 2 hours under the
control of Mr. Durbin, 2 hours under the control of Mr. Wellstone, and
15 minutes under the control of Mr. Kerry.
Mr. DURBIN. I thank the Chair. Madam President, I rise to speak in
opposition to the nomination of John Graham for the position of
Administrator for the Office of Information and Regulatory Affairs at
OMB.
This is a rare experience for me. I think it is the first time in my
Senate career, in my congressional career, where I have spoken out
against a nominee and attempted to lead the effort to stop his
confirmation. I do this understanding that the deck is not stacked in
my favor. Many Members of the Senate will give the President his
person, whoever it happens to be, and that is a point of view which I
respect but disagree with from time to time. I also understand from the
Governmental Affairs Committee experience that the Republican side of
the aisle--the President's side of the aisle--has been unanimous in the
support of John Graham, and that is understandable, both out of respect
for the nominee and the President himself.
Having said that, though, the reason I come to the floor this evening
and the reason I asked for time in debate is because I believe this is
one of the most
[[Page S7908]]
dangerous nominations that we are going to consider--dangerous in this
respect: Although the office which Mr. John Graham seeks is obscure by
Washington standards, it is an extremely important office. Few people
are aware of the Office of Information and Regulatory Affairs and just
how powerful the office of regulatory czar can be. But this office,
this senior White House staff position, exercises enormous authority
over every major Federal regulation the Government has under
consideration. Because of this, the OIRA Administrator must have a
commitment to evenhandedness, objectivity, and fair play in analyzing
and presenting information about regulatory options.
Do you often sit and wonder, when you hear pronouncements from the
Bush White House, for example, on arsenic in drinking water and
increasing the acceptable level of arsenic in drinking water, who in
the world came up with that idea? There might be some business
interests, some industrial and corporate interests, who have a specific
view on the issue and have pushed it successfully in the
administration. But somebody sitting in the Bush White House along the
way said: That sounds like a perfectly sound idea. And so they went
forward with that suggestion.
Of course, the public reaction to that was so negative that they have
had time to reconsider the decision, but at some time and place in this
Bush White House, someone in a position of authority said: Go forward
with the idea of allowing more arsenic in drinking water in the United
States.
I do not understand how anyone can reach that conclusion at all,
certainly not without lengthy study and scientific information to back
it up, but it happened. My fear is, John Graham, as the gatekeeper for
rules and regulations concerning the environment and public health,
will be in a position to give a thumbs up or a thumbs down to
suggestions just like that from this day forward if he is confirmed.
I think it is reasonable for us to step back and say: If he has that
much power, and we already have seen evidence in this administration of
some rather bizarre ideas when it comes to public health and the
environment, we have a right to know what John Graham believes, what is
John Graham's qualification for this job, what is his record in this
area? That is why I stand here this evening.
I want to share with my colleagues in the Senate and those who follow
the debate the professional career of Mr. John Graham which I think
gives clear evidence as to why he should not be confirmed for this
position.
Let me preface my remarks. Nothing I will say this evening, nothing I
have said, will question the personal integrity of John Graham. I have
no reason to do that, nor will I. What I will raise this evening
relates directly to his professional experience, statements he has
made, views he holds that I think are central to the question as to
whether or not we should entrust this important and powerful position
to him.
Some in the Governmental Affairs Committee said this was a personal
attack on John Graham. Personal in this respect: I am taking his record
as an individual, a professional, and bringing it to the Senate for its
consideration. But I am not impugning his personal integrity or his
honesty. I have no reason to do so.
I assumed from the beginning that he has done nothing in his
background that will raise questions along those lines. I will really
stick this evening to things he has said in a professional capacity,
and in sticking to those things, I think you will see why many have
joined me in raising serious questions about his qualifications.
On the surface, John Graham strikes some of my colleagues in the
Senate as possessing the qualities of objectivity and evenhandedness we
would expect in this position. He is seen by many as eminently
qualified for the position. After all, he is a leading expert in the
area of risk analysis and has compiled a lengthy list of professional
accomplishments.
I have heard from colleagues on both sides of the aisle, whom I
respect, that they consider him the right man for the job. So I think
it is important for me this evening to spell out in specific detail why
I believe that is not the case, why John Graham is the wrong person to
serve as the Nation's regulatory czar.
Professor Graham's supporters painted a picture of him as evenhanded
and objective. They say he supports environmental regulations as long
as they are well drafted and based on solid information. My colleague,
the Senator from Tennessee, said as much in his opening statement.
A casual glance at Dr. Graham's record may lead one to conclude this
is an accurate portrayal. As they say, the devil is in the details. A
careful reading of the record makes several things absolutely clear:
Dr. Graham opposes virtually all environmental regulations. He believes
that many environmental regulations do more harm than good. He also
believes that many toxic chemicals--toxic chemicals--may be good for
you. I know you are wondering, if you are following this debate, how
anyone can say that. Well, stay tuned.
John Graham favors endless study of environmental issues over taking
actions and making decisions--a classic case of paralysis by analysis.
Dr. Graham's so-called objective research is actually heavily
influenced by policy consideration, and he has had a built-in bias that
favors the interest of his industrial sponsors.
He has been connected with Harvard University, and that is where his
analysis has been performed, at his center. He has had a list of
professional clients over the years.
Madam President, I ask unanimous consent that this list of clients be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Unrestricted Grants to the Harvard Center for Risk Assessment
3M.
Aetna Life & Casualty Company.
Air Products and Chemicals, Inc.
Alcoa Foundation.
American Automobile Manufacturers Association.
American Chemistry Council.
American Crop Protection Association.
American Petroleum Institute.
Amoco Corporation.
ARCO Chemical Company.
ASARCO Inc.
Ashland Inc. Foundation.
Association of American Railroads.
Astra AB.
Astra-Merck.
Atlantic Richfield Corporation.
BASF.
Bethlehem Steel Corporation.
Boatmen's Trust.
Boise Cascade Corporation.
BP America Inc.
Cabot Corporation Foundation
Carolina Power and Light.
Cement Kiln Recycling Coalition.
Center for Energy and Economic Development.
Chevron Research & Technology Company.
Chlorine Chemistry Council.
CIBA-GEIGY Corporation.
Ciba Geigy Limited.
CITGO Petroleum Company.
The Coca-Cola Company.
Cytec Industries.
Dow Chemical Company.
DowElanco.
DuPont Agricultural Products.
Eastman Chemical Company.
Eastman Kodak Company.
Edison Electric Institute.
E.I. DuPont de Nemours & Company.
Electric Power Research Institute.
Emerson Electric.
Exxon Corporation.
FBC Chemical Corporation.
FMC Corporation.
Ford Motor Company.
Fort James Foundation.
Frito-Lay.
General Electric Fund.
General Motors Corporation.
The Geon Company.
Georgia-Pacific Corporation.
Glaxo-Wellcome, Inc.
The Goodyear Tire & Rubber Company.
Grocery Manufacturers of America.
Hoechst Celanese Corporation.
Hoechst Marion Roussel.
Hoffman-LaRoche Inc.
ICI Americas Inc.
Inland Steel Industries.
International Paper.
The James Riber Corporation Foundation.
Janssen Pharmaceutical.
Johnson & Johnson.
Kraft Foods.
Louisiana Chemical Association.
Lyondell Chemical Company.
Mead Corporation Foundation.
Merck & Company.
Microban.
Millenium Chemical Company.
Mobil Foundation, Inc.
Monsanto Company.
National Food Processors Association.
National Steel.
New England Power Service--New.
England Electric System.
[[Page S7909]]
Nippon Yakin Kogyo.
North American Insulation Manufacturers Association.
Novartis Corporation.
Novartis International.
Olin Corporation Charitable Trust.
Oxford Oil.
Oxygenated Fuels Association.
PepsiCo Inc.
The Pittston Company.
Pfizer.
Pharmacia Upjohn.
Potlatch Corporation.
Praxair, Inc.
Procter & Gamble Company.
Reynolds Metals Company Foundation.
Rhone-Poulenc, Inc.
Rohm and Haas Company.
Schering-Plough Corporation.
Shell Oil Company Foundation.
Texaco Foundation.
Union Carbide Foundation.
Unocal.
USX Corporation.
Volvo.
Westinghouse Electric Corporation.
Westvaco.
WMX Technologies, Inc.
Zeneca.
(Source: Harvard Center for Risk Assessment).
Mr. DURBIN. I thank the Chair. I will not go through all of the
companies on this list. It reads like, as they say, a veritable list of
who's who of industrial sponsors in America: Dow Chemical Company, all
sorts of institutes, the Electric Power Research Institute, oil
companies, motor companies, automobile manufacturers, chemical
associations--the list goes on and on.
These corporate clients came to Professor Graham not to find ways to
increase regulation on their businesses but just for the opposite, so
that he can provide through his center a scientific basis for resisting
Government regulation in the areas of public health and the
environment.
I am an attorney by profession, and I understand that when there is
balance in advocacy you have an objective presentation: Strong
arguments on one side and strong arguments against, and then you try to
reach the right conclusion. So I am not going to gainsay the work of
Dr. Graham in representing his corporate clients over the years, but it
is important for us to put this in perspective.
If Dr. Graham is appointed to this position, his clients will not be
the corporations of America, his clients will be the 281 million
Americans who count on him to make decisions in their best interest
when it comes to environmental protection and protection of the health
of their families.
When we look at his professional background, it raises a question
about his objectivity. He has had little respect for the environmental
concerns of most Americans--concerns about toxic chemicals in drinking
water, pesticides in our food, or even the burial of radioactive waste.
To John Graham, these are not major concerns. In fact, as you will hear
from some of his statements that I will quote, he believes they reflect
a paranoia in American culture.
Dr. Graham's supporters have taken issue with my categorizing his
views as antiregulatory. They say, and it has been said on the floor
this evening, John Graham supports environmental regulations: just look
at the statements he has made about removing lead from gasoline. That
was said this evening: John Graham supports removing lead from
gasoline.
I certainly hope so. And my colleagues know, it is true, John Graham
has stated clearly and unequivocally that he thought removing lead from
gasoline was a good idea. Do my colleagues know when that decision was
made? Decades before John Graham was in any position to have impact on
the decision. It is a decision in which he had no involvement in any
way whatsoever.
What has he done for the environment lately? What does he think of
the recent crop of environmental regulations? On this matter, his
opinions are very clear. According to John Graham, environmental
regulations waste billions, if not trillions, of taxpayers' dollars.
According to John Graham, our choice of environmental priorities
actually kills people through a process Mr. Graham calls ``statistical
murder,'' something that pops up in his work all the time.
According to John Graham, we should massively ship resources away
from environmental problems such as toxic chemicals to more important
activities that he has identified, such as painting white lines on
highways and encouraging people to stop smoking.
This is a recent quote from Dr. Graham:
The most cost-effective way to save lives generally is to
increase medical treatment, and somewhat second, to curb
fatal injuries. Trying to save lives by regulating pesticides
or other toxins generally used up a lot of resources.
I can recall during the time we were debating the potential of a
nuclear holocaust, there was a man named Richard Perle in the Reagan
administration who said he didn't think we should be that frightened
because if we did face a nuclear attack, in his words, ``with enough
shovels,'' we could protect ourselves.
When I read these words of Dr. Graham who says, ``The most cost-
effective way to save lives generally is to increase medical treatment,
and somewhat second, to curb fatal injuries,'' and then he says that
``regulating pesticides and toxins uses up a lot of resources'' can you
see why I believe he has been dismissive of the basic science which he
is going to be asked to implement and enforce in this office?
This quote is a little bit understated. In other documents, Mr.
Graham refers to spending money on control of toxins as ``an outrageous
allocation of resources.'' This captures the very heart of Graham's
philosophy. Environmental regulations to control toxic chemicals are an
enormous waste of resources, in the mind of John Graham. It makes
little sense, according to Graham, to focus on environmental problems.
Instead, we should use our scarce public policy dollars for other more
important issues.
Why does John Graham hold such strong views opposing environmental
regulations? Because he believes toxic chemicals just are not that
toxic. Dr. Graham has said the so-called ``toxic chemicals'' may
actually be good for us. I will read some of the transcript from his
hearing on the whole question of dioxin.
Now, Dr. Graham supports these beliefs based on what he calls ``a new
paradigm,'' the idea that there may well be an optimum dose for toxic
chemicals or for other environmental hazards such as radiation. The
idea behind this optimum dose theory is there is an exposure that is
good for people in small amounts even if the chemical or radiation is
harmful in larger quantities.
In a conference on this new paradigm at which Graham was a featured
speaker, he urged his colleagues:
Advocates of the new paradigm need to move beyond
empiricism to explanation if we can explain why low doses are
protective, the prospects of a genuine scientific revolution
are much greater.
A scientific revolution inspired by John Graham.
Well, the obvious question I had of Mr. Graham when he came to the
Governmental Affairs Committee was as follows:
Mr. Durbin: Dr. Graham, when I look at your resume, I'm
curious; do you have any degrees or advanced training in the
field of chemistry, for example?
Mr. Graham: No, sir.
Mr. Durbin: Biology?
Mr. Graham: No, sir.
Mr. Durbin: Toxicology?
Mr. Graham: No.
Mr. Durbin: What would you consider to be your expertise?
Mr. Graham: I have a Ph.D. in public affairs from Carnegie
Mellon, with an emphasis in the field of management science
called ``decision science.'' At the School of Public Health,
I teach analytical tools and decision science like risk
assessment, cost-effective analysis, and cost-benefit
analysis.
Mr. Durbin: No background in medical training?
Mr. Graham: No. I do have a postdoctoral fellowship funded
by the Environmental Protection Agency where I studied human
health risk assessment and had research experience in doing
human health risk assessment on chemical exposures.
Mr. Durbin: Does your lack of background in any of these
fields that I have mentioned give you any hesitation to make
statements relative to the danger of chemicals to the human
body?
Mr. Graham: I think I have tried to participate in
collaborative arrangements where I have the benefit of people
who have expertise in some of the fields that you have
mentioned.
Mr. Durbin: Going back to the old television commercial,
``I may not be a doctor but I play one on TV,'' you wouldn't
want to assume the role of a doctor and public health expert
when it comes to deciding the safety or danger over the
exposure to certain chemicals, would you?
Mr. Graham: Well, I think our center and I personally have
done significant research
[[Page S7910]]
in the area of risk assessment of chemicals and oftentimes my
role is to provide analytical support to a team and then
other people on the team provide expertise, whether it be
toxicology, medicine, or whatever.
The reason I raise this is there is no requirement that a person who
takes this job be a scientist, a medical doctor, a chemist, a person
with a degree in biology or toxicology. That is not a requirement of
the job. And very few, if any, of his predecessors held that kind of
expertise.
But when you consider carefully what Mr. Graham has said publicly in
the field of science, you might conclude that he has much training and
a great degree in the field.
That is not the case. He has held himself out time and again, and I
will not go through the specifics here, and made dogmatic statements
about science that cannot be supported. And he wants to be the
gatekeeper on the rules and regulations of public health and the
environment in America.
Mr. Graham is, as I said earlier, trying to create a scientific
revolution but he acknowledges it is an uphill battle. Why do so few
mainstream scientists buy into his theories? Because, says Graham,
science itself has a built-in bias against recognizing the beneficial
effects of low-dose exposures to otherwise dangerous chemicals such as
dioxin.
Scientific journals don't like to publish new paradigm results. In
his written works, Dr. Graham goes so far to say the current
classification scheme used by the EPA and others to identify cancer-
causing chemicals should be abolished and replaced with a scheme that
recognizes that all chemicals may not only not cause cancer but may
actually prevent cancer, as well.
Perhaps he opposes environmental regulation because he is so
convinced that regulations generally do more harm than good. Some of
this harkens back, of course, to his new paradigm, his scientific
revolution. If we restrict toxic chemicals that are actually
preventing, rather than causing, cancer, we wind up hurting, rather
than helping, the population at large, according to Dr. Graham. Think
about that. He is arguing that some of the things we are trying to
protect people from we should actually encourage people to expose
themselves to.
If he had scientific backing for this, it is one thing. He doesn't
have the personal expertise in the area and very few, if any, come to
rally by his side when he comes up with the bizarre views.
He argues environmental regulations hurt us in other ways. They
siphon off resources from what he considers the real problem of
society, and they introduce new risks of their own, so according to Dr.
Graham the cure is worse than the disease. The side effects of
environmental regulation are so problematic and many that he refers to
them as ``statistical murder.'' Our environmental priorities are
responsible for the statistical murder of tens of thousands of American
citizens every year, according to Mr. Graham.
Take his well-known example, and he has used it in writings of
chloroform regulation. Mr. Graham estimates that chloroform regulation
costs more than $1 trillion to save a single life, $1 trillion. And he
uses this in an illustration of how you can come up with a regulation
that is so expensive you could never justify it--$1 trillion to save
one life. What he doesn't say--and the EPA looked at his analysis--that
cost of $1 trillion is over a period of time of 33,000 years. Just a
little footnote that I think should have been highlighted. How can
patently absurd numbers such as this make a contribution to cost-
benefit consideration?
There is a bigger problem. The chloroform regulation he refers to
doesn't exist and never did. I asked the Congressional Research Service
to find out about this regulation on chloroform that Dr. Graham used as
an example of statistical murder, where we will spend $1 trillion as a
society to save one life. Find out where that took place.
Guess what. It doesn't exist. This is a hypothetical case study for
an academic exercise. It is not a regulation. It was never proposed as
a regulation nor was it ever considered seriously by anyone. Someone
invented this scenario and John Graham seized on it as his poster child
of how you can go to ridiculous extremes to protect people from
environmental exposure.
Even when Dr. Graham studies the costs and benefits of actual
environmental regulations, ones that are truly being considered, his
controversial practice of ``discounting" automatically trivializes the
benefits of environmental regulation.
We have been through this debate in the Governmental Affairs
Committee. There are people on the committee, Democrats and
Republicans, who say--and I think this is a perfectly reasonable
statement--before you put in a rule or regulation, find out what it is
going to cost: What is the cost to society? What is the benefit? I
think that is only reasonable. There are certain things we can do to
save lives, but at such great expense, society could never bear that
burden. The problem you have is in drawing up the statistics, in trying
to quantify it, in saying what a life is worth and over what period of
time.
Dr. Graham gets into this business and starts discounting human lives
in exactly the same way economists and business advisers discount
money. A life saved or a dollar earned today, according to Dr. Graham,
is much more valuable than a life saved or a dollar earned in the
future. Dr. Graham's so-called scientific results led him to conclude
that when the Environmental Protection Agency says a human life is
worth $4.8 million, by their calculations, they are 10 times too high.
That is Dr. Graham's analysis.
How many of us in this Senate Chamber today can honestly say they
agree with Dr. Graham's discounting the value of a human life to 10
percent of the amount we have used to calculate many environmental
regulations? That is a starting point. If you are representing
industrial clients who do not want to be regulated, who suggest
environmental regulations and public health regulations are, frankly,
outlandish, you start by saying lives to be saved are not worth that
much.
Discounting may make sense when it comes to money, but it trivializes
the value of human lives and the lives of our next generation and
creates an automatic bias against environmental regulations meant to
provide protections over a long period of time.
I will be the first to admit there are inefficiencies in our current
environmental regulations, but Professor Graham's research hasn't found
them. Instead, he consistently identified phantom costs of nonexistent
regulations and for years referred to them as if they were the real
cost of real environmental regulations. He has played a game with the
facts for his purposes, for his clients. But when it comes to the OMB,
in this capacity it will be the real world where decisions you make
will literally affect the health and future of Americans and their
families.
He has introduced misleading information that has really distorted
many of the elements of an important policy debate. There are
organizations that absolutely love research results that show billions
of dollars being wasted by unnecessary environmental regulations--
groups such as the Cato Institute, the Heritage Foundation, the
American Enterprise Institute, all of whom have made ample use of
Professor Graham's scientific studies, scientific revolution--
statistical murder; results to strengthen their antiregulatory
arguments.
To sum up Dr. Graham's belief, toxic chemicals can be good for you,
environmental regulations can be very bad for you.
Not everyone accepts these beliefs, of course. What does Dr. Graham
think of those with a different set of priorities? In his mind, it is a
sign of collective paranoia, a sign of pervasive weakness and self-
delusion that pervades our culture.
If you think I have overstated it, I think his own words express his
sentiments more accurately. I would like to refer to this poster,
quotes from Dr. Graham.
Interview on CNN, 1993:
We do hold as a society, I think, a noble myth that life is
priceless, but we should not confuse that with reality.
Dr. Graham said that. Then:
Making sense of risk: An agenda for Congress in 1996.
John Graham said:
The public's general reaction to health, safety and
environmental dangers may best be described as a syndrome of
paranoia and neglect.
``Medical Waste News,'' that he has written for, in 1994:
[[Page S7911]]
. . . as we've grown wealthier, we've grown paranoid.
Testimony to the House Science Committee in 1995:
We should not expect that the public and our elected
officials have a profound understanding of which threats are
real and which are speculative.
So the very institution to which we are being asked to confirm this
man's nomination has been really dismissed by John Graham as not having
sound understanding of threats that are real.
Then he goes on to say, in Issues in Science and Technology, in 1997:
It may be necessary to address the dysfunctional aspects of
U.S. culture. . . . The lack of a common liberal arts
education . . . breeds ignorance of civic responsibility.
So John Graham can not only portray himself as a doctor, a
toxicologist, a biologist, and a chemist, he can also be a sociologist
and general philosopher. The man has ample talents, but I am not sure
those talents will work for America when it comes to this important
job.
I would like to take a look at two issues in detail to give a clearer
picture of Dr. Graham's approach to environmental issues of great
concern to the American people. I want to examine his record on
pesticides and on dioxin. It is not unreasonable to believe if his
nomination is confirmed that John Graham will consider rules and
regulations relating to these two specific items, pesticides and
dioxin.
The Food Quality Protection Act of 1996 passed Congress unanimously--
and not just any session of Congress, the 104th Congress, one of the
most contentious in modern history, a Congress that could hardly agree
on anything. Yet we agreed unanimously to pass this important new food
safety law. A key purpose of the law was to provide the public with
better protection against pesticides. In particular, the law aimed to
provide increased protections to our most vulnerable segment of the
population, our children. President Clinton remarked that the Food
Quality Protection Act would replace a patchwork of standards with one
simple standard: If a pesticide poses a danger to our children, then it
won't be in our food.
This groundbreaking legislation received the unanimous support of
Congress. What does John Graham, Dr. John Graham, think about the
importance of protecting our children from pesticide residues on food?
Let me tell you what he said in his work.
The Food Quality Protection Act suffers from the same
failings that mark most of our other environmental laws and
regulations. Our attempts at regulating pesticides and food
are a terrible waste of society's resources. We accept risks
from other technologies like the automobile, why should we
not accept risks from pesticides? When we regulate, or worse,
when we ban pesticides, we often wind up doing more harm than
good.
Let me tell you a case in point. I think it is an interesting one. It
was a book which Mr. Graham wrote called ``Risk versus Risk.'' This is
a copy of his cover. It was edited by John Graham and Jonathan B.
Weiner.
I might also add the foreword was written by Cass Sunstein, who is a
professor at the University of Chicago School of Law and has one of the
letters of support which has already been quoted on the floor. He was a
colleague of Mr. Graham, at least in writing the foreword to this book.
This goes into the whole question of pesticides and danger. The thing I
find curious is this. On page 174 of this book, Mr. Graham, who is
asked to be in charge of the rules and regulations relative to
pesticides, started raising questions about whether we made the right
decision in banning DDT--banning DDT. He says:
Many of the organophosphate pesticides that have been used
in place of DDT have caused incidents of serious poisoning
among unsuspecting workers and farmers who had been
accustomed to handling the relatively nontoxic DDT.
That is a quote--``relatively nontoxic DDT.''
I read an article the other day in the New Yorker which was about DDT
and its discovery. Let me read a part of this article--I want to make
sure of the sources quoted: Malcolm Gladwell, ``The Mosquito Killer,''
New Yorker, July 2, 2001. If I am not mistaken, that is the same
gentleman who wrote the book ``The Tipping Point,'' which I found very
good and recommend.
In his article about DDT, he says as follows:
Today, of course, DDT is a symbol of all that is dangerous
about man's attempts to interfere with nature. Rachel Carson,
in her landmark 1962 book ``Silent Spring,'' where she wrote
memorably of the chemical's environmental consequences, how
much its unusual persistence and toxicity had laid waste to
wildlife in aquatic ecosystems. Only two countries, India and
China, continue to manufacture the substance, and only a few
dozen more still use it.
In May, at the Stockholm Convention on Persistent Organic Pollutants,
more than 90 countries signed a treaty placing DDT on a restricted use
list and asking all those still using the chemical to develop plans for
phasing it out entirely. On the eve of its burial, however, and at a
time when the threat of insect-borne disease seems to be resurging, it
is worth remembering that people once felt very differently about DDT,
and between the end of the Second World War and the beginning of the
1960s, it was considered not a dangerous pollutant but a lifesaver.
Mr. Gladwell, in this article, in summarizing the history of DDT,
really points to the fact that those who have analyzed it around the
world, with the exception of India and China--some 90 nations--
abandoned it. John Graham, who wants to be in charge of the rules and
regulations on pesticides, the environment, and public health, wrote:
It was relatively nontoxic.
This is a man who wants to make a decision about pesticides and their
impact on the health of America.
According to Dr. Graham, it may have been an ill-advised decision to
take DDT off the market. He cites in this book that I quoted how DDT
was particularly effective in dealing with malaria. No doubt it was.
But it was decided that the environmental impact of this chemical was
so bad that countries around the world banned it.
Let me offer some direct quotes from Dr. Graham from various reports
he has written over the years and from the many statements that he has
made.
Before I do that, I see my colleague, Senator Wellstone, is in the
Chamber. At this time, I would like to yield to him with the
understanding that I can return and complete my remarks. I thank him
for joining me this evening. I will step down for a moment and return.
I yield to Senator Wellstone.
Mr. WELLSTONE. Mr. President, I thank Senator Durbin. I am very proud
to join him. I have a lot of time reserved tonight. I say to colleagues
who are here in the Chamber and who are wondering what our timeframe is
that I can shorten my remarks.
I am speaking in opposition to the nomination of Mr. John Graham to
be Administrator of the Office of Information and Regulatory Affairs,
within the Office of Management and Budget.
I believe the President should have broad latitude in choosing his
cabinet. I have voted for many nominees in the past with whom I have
disagreed on policy grounds. I have voted for a number during this
Administration, and I'm sure I will vote for more nominees with whom I
disagree on policy, sometimes very sharply.
Mr. Graham has been nominated to a sensitive position: Administrator
of the Office of Information and Regulatory Affairs (OIRA). In this
role Mr. Graham would be in a position to delay, block or alter rules
proposed by key federal agencies. Which agencies?
Let me give you some examples. One would be OSHA. This happens to be
an agency with a mandate that is near and dear to my heart. Over the
years, I have had the opportunity to do a lot of community organizing,
and I have worked with a lot of people who unfortunately have been
viewed as expendable. They do not have a lot of clout--political,
economic, or any other kind. They work under some pretty uncivilized
working conditions.
The whole idea behind OSHA was that we were going to provide some
protection. Indeed, what we were going to be saying to companies--in
fact, we did the same thing with environmental protection--is, yes,
maximize your profits in our private sector system. Yes, organize
production the way you choose to do. You are free to do it any way you
want to, and maximize your profit any way you want to--up to the point
that you are killing workers, up to the point that it is loss of limbs,
loss of lives, harsh genetic substances, and people dying early of
cancer. Then you can't do it. Thank God, from the point
[[Page S7912]]
of view of ordinary people, the Government steps in, I would like to
say, on our side.
We had a perfect example of that this year in the subcommittee that I
chair on employment, safety, and training. I asked Secretary Chao to
come. She didn't come. I wanted to ask her about the rule on repetitive
stress injury, the most serious problem right now in the workplace. It
was overturned. The Secretary said she would be serious about
promulgating a rule that would provide protection for the 1.8 million
people, or thereabouts, who are affected by this. I wanted to know
what, in fact, this administration is going to do.
So far it is really an obstacle.
As Administrator of OIRA, Mr. Graham can frustrate any attempt by
OSHA to address 1.8 million repetitive stress injuries workers suffer
each year, as reported by employers.
I will just say it on the floor of the Senate. I think it is
absolutely outrageous that rule was overturned. I see no evidence
whatsoever that this administration is serious about promulgating any
kind of rule that would provide workers with real protection.
The Mine Safety and Health Administration, MSHA. The Louisville
Courier Journal conducted a comprehensive investigation of illnesses
suffered by coal miners due to exposure to coal dust--workers who are
supposed to be protected by MSHA regulation. We urgently need vigorous
action by MSHA.
As a matter of fact, I couldn't believe it when I was down in east
Kentucky in Harlan and Letcher Counties. I met with coal miners. That
is where my wife, Sheila, is from. Her family is from there. I hate to
admit to colleagues or the Chair that I actually believed that black
lung disease was a thing of the past. I knew all about it. I was
shocked to find out that in east Kentucky many of these miners working
the mines can't see 6 inches in front of them because of the dust
problem.
Senator Durbin's predecessor, Senator Simon, worked on mine safety.
It was one of his big priorities.
Part of the problem is the companies actually are the ones that
monitor coal dust. MSHA has been trying to put through a rule--we were
almost successful in getting it through the last Congress--to provide
these miners with some protection.
From the point of view of the miners, they don't view themselves as
expendable.
The Food and Drug Administration regulates the safety of prescription
drugs for children, for the elderly, for all of us. The Environmental
Protection Agency (EPA) regulates pollution of the water and air. For
example, EPA will determine what level of arsenic is acceptable in
American drinking water. The Food Safety and Inspection Service (FSIS)
is charged with the task of protecting us to the extent possible from
salmonella, foot and mouth disease, BSE and other food-borne illnesses.
These and other important Federal regulatory agencies exist to
protect Americans and to uphold standards that have been fought for and
achieved over decades of struggle.
It is not true that people in Minnesota and people in the country are
opposed to Government regulations on their behalf and on behalf of
their children so that the water is not poisoned, so that the mines
they work in are safe, so that the workplace they work in is safe, so
that there are civilized working conditions, so that they don't have
too much arsenic in the water their children drink, and so that the
food their children eat is safe. Don't tell me people in Minnesota and
in the country aren't interested in strong regulation on behalf of
their safety and their children's safety.
The Administrator of OIRA must be someone who stands with the
American public, someone who sees it as his or her mission to protect
the public interest. In my view, John Graham's evident hostility to
regulation that protects the public interest, in particular his over-
reliance on tools of economic analysis that denigrate the value of
regulatory protections, is disqualifying.
This is particularly troublesome when it comes to workplace safety,
for example, because his approach flies in the face of statutory
language requiring OSHA--again I am fortunate to chair the subcommittee
with jurisdiction over OSHA--to examine the economic feasibility of its
regulations, as opposed to undertaking the cost/benefit analyses upon
which he over-relies.
As the Supreme Court noted in the so-called Cotton Dust Case,
embedded in the statutory framework for OSHA is Congress' assumption
``that the financial costs of health and safety problems in the
workplace were as large as or larger than the financial costs of
eliminating these problems.'' Instead of cost/benefit analyses to guide
standard setting, OSHA is statutorily bound to promulgate standards
``which most adequately assur[e], to the extent feasible, on the basis
of the best available evidence, that no employee will suffer material
impairment of health or functional capacity even if such employee has
regular exposure to the hazard dealt with by such standard for the
period of his working life.''
In its 30 years of existence the Occupational Safety and Health
Administration has made its presence felt in the lives of tens of
millions of Americans at all levels of the workforce. OSHA and its
related agencies are literally the last, best hope for millions of
American workers whose lives would otherwise be put on the line, simply
because they need to earn a paycheck. Experience has shown, over and
over, that the absence of strong government-mandated safeguards results
in workplace exposure to everything from odorless carcinogens to
musculoskeletal stress to combustible grain dust to other dangers too
numerous to mention.
Since its founding, hundreds of thousands of American workers did not
die on the job, thanks to OSHA. Workplace fatalities have declined 50
percent between December of 1970 and December 2000, while occupational
injury and illness rates have dropped 40 percent.
Not surprisingly, declines in workplace fatalities and injuries have
been most dramatic in precisely those industries where OSHA has
targeted its activities. For example, since OSHA came into existence,
the manufacturing fatality rate has declined by 60 percent and the
injury rate by 33 percent. At the same time, the construction fatality
rate has declined by 80 percent and the injury rate by 52 percent.
It is not a coincidence that these two industries have received some
of OSHA's closest attention. OSHA's role in assuring so far as possible
that every worker is protected from on-the-job hazards cannot be
denied.
Unfortunately, however, compared to the demand, there is still a
whole lot of work to be done. Indoor air quality, hexavalent chromium,
beryllium, permissible exposure limits for hundreds of chemicals in the
workplace--this list goes on and on--not to mention repetitive stress
injuries. The unfinished agenda is huge. It is precisely this
unfinished agenda that should give us pause in confirming, as head of
OIRA, someone whose entire professional history seems aimed at
frustrating efforts to regulate in the public interest. That is my
disagreement. It is a different framework that he represents than the
framework that I think is so in the public interest.
Let me just give one example: the chromium story.
Chromium is a metal that is used in the production of metal alloys,
such as stainless steel, chrome plating and pigments. It is also used
in various chemical processes and it is a component of cement used to
manufacture refractory bricks.
The first case of cancer caused by chromium was reported in 1890.
Since then, the evidence that it causes cancer continued to grow.
Chromium has been declared a carcinogen by the EPA, the National
Toxicology Program, and the International Agency for Research on
Cancer.
In the early 1980s, it was estimated that 200,000 to 390,000 workers
were exposed to hexavalent chromium in the workplace--200,000 to
390,000. Lung cancer rates among factory workers exposed to hexavalent
chromium are almost double the expected cancer rate for unexposed
workers. Lung cancer rates for factory workers exposed to hexavalent
chromium are also double the expected cancer rate for unexposed
workers.
OSHA has known the risks associated with exposure to this dangerous
carcinogen since its inception but has failed to act. OSHA's
assessment, conducted by K.S. Crump Division of ICG Kaiser, was that
between 9 percent and
[[Page S7913]]
34 percent of workers exposed at half the legal limit for a working
lifetime would contract lung cancer as a result of this exposure.
On April 24, 2000, OSHA published its semiannual agenda, which
anticipated a notice of proposed rulemaking would be published in June
2001. If confirmed as Administrator of OIRA within the Office of
Management and Budget, however, John Graham's actions could affect
OSHA's stated willingness to undertake a proposed rule this year, as
the agency has finally promised and as is urgently needed.
I will finish by just giving a few examples of how Mr. Graham could
negatively impact the process.
No. 1, reduce OSHA's ability to collect information in support of a
new standard.
To develop a new hexavalent chromium standard, OSHA would likely need
to survey scores of businesses for information about their use of the
chemical and about workplace exposures. During the committee hearing on
his nomination, Graham said that he supports requiring the federal
agencies to do cost-benefit analyses of information requests sent to
industry in preparation for a rulemaking. Under the Paperwork Reduction
Act, before an information request can be sent to ten entities or more,
it must be approved by OMB. Because it is very difficult to judge the
value of the information being collected prior to receiving it, Graham
could use the paperwork clearance requirement to tangle up the agency
in justifying any information requests needed to support a new rule on
chromium.
No. 2, insist upon a new risk assessment, despite compelling evidence
that chromium poses a cancer risk.
OSHA has conducted its own risk assessment of chromium and reviewed
numerous studies documenting that workers working with or around the
chemical face considerable increased risk of lung cancer. But it is
likely that Graham could exercise his power at OMB to require a new
risk assessment of hexavalent chromium, which could further delay the
issuance of a rule.
Graham has supported requiring every risk-related inquiry by the
federal government to be vetted by a panel of peer review scientists
prior to its public release, which would be costly and create
significant delays in the development of new regulations. He has argued
that the risk assessments done by the federal agencies are flawed, and
that OMB or the White House should develop its own risk assessment
oversight process. This would allow economists to review and possibly
invalidate the findings of scientists and public health experts in the
agencies.
No. 3, flunk any rule that fails a stringent cost-benefit test.
Graham is a supporter, for example, of strict cost-efficiency
measures, even in matters of public health. Because he views regulatory
choices as best driven by cost-based decisionmaking, the worthiness of
a rule is determined at least partly by the cost to industry of fixing
the problem. This is the opposite of an approach that recognizes that
workers have a right to a safe workplace environment.
The OSHA mission statement is ``to send every worker home whole and
healthy every day.''
Under the law as it now stands, OSHA is prohibited from using cost-
benefit analysis to establish new health standards. Instead, OSHA must
set health standards for significant risks to workers at the maximum
level that the regulated industry, as a whole, can feasibly achieve and
afford. This policy, set into law by the OSHA Act, recognizes the
rights of workers to safe and healthful workplaces, and provides far
more protection to workers than would be provided by any standards
generated under a cost-benefit analysis.
Putting John Graham in the regulatory gatekeeper post would create a
grave risk that OSHA protections, such as the hexavalent chromium
standard, will not be set at the most protective level that regulated
industry can feasibly achieve. We know from his own statements that
John Graham will require OSHA to produce economic analyses that will
use antiregulation assumptions, and will show protective regulations to
fail the cost-benefit tests.
It is true that OSHA is technically authorized to issue standards
that fail the cost-benefit test. However, it would be politically
nearly impossible for an agency to issue a standard that has been
shown, using dubious methodologies, to have net costs for society.
Unfortunately, although I would like nothing better than to be proven
wrong, I fear this is not a farfetched scenario. And let there be no
question--such steps would absolutely undermine Congress' intent when
it passed the Occupational Health and Safety Act 30 years ago.
Let me quote again from the Supreme Court's Cotton Dust decision:
Not only does the legislative history confirm that Congress
meant ``feasible'' rather than ``cost-benefit'' when it used
the former term, but it also shows that Congress understood
that the Act would create substantial costs for employers,
yet intended to impose such costs when necessary to create a
safe and healthful working environment. Congress viewed the
costs of health and safety as a cost of doing business.
Senator Yarborough, a cosponsor of the [OSH Act], stated:
``We know the costs would be put into consumer goods but that
is the price we should pay for the 80 million workers in
America.''
There is one final point I want to make. I will tell you what really
troubles me the most about this nomination. And let me just kind of
step back and look at the bigger picture, which really gives me pause.
The essence of our Government--small ``d'' democracy--is to create a
framework for the protection of the larger public as a whole. I believe
in that. And I believe a majority of the people believe in that. It is
the majority's commitment to protect the interests of those who cannot
protect themselves that sets this great Nation apart from others. That
is the essence of our democratic way of life. That is the core of this
country's incredible heritage.
But there are a series of things happening here in the Nation's
Capitol--stacked one on top of another--that fundamentally undermine
the capacity of our Government to serve this purpose of being there for
the public interest. I think we have a concerted effort on the part of
this administration--and I have to say it on the floor of the Senate--
and its allies to undermine the Government's ability to serve the
public interest.
First, there was a stream of actual or proposed rollbacks of
regulations designed to protect the health and well-being of the people
of this country--arsenic in drinking water, global warming emissions,
ergonomics--or repetitive stress injuries in the workplace, drilling in
the wilderness, energy efficiency standards--it goes on and on.
Then there was the tax cut, making it absolutely impossible for us to
protect Social Security and Medicare, or to do near what we should do
for children or for the elderly, for the poor or for the vulnerable,
for an adequate education or for affordable prescription drugs--no
way--in other words, to fund Government, to do what Government is
supposed to do, which is to protect the interests of those who cannot
protect themselves.
And then, finally, the administration seeks to place in key
gatekeeper positions individuals whose entire professional careers have
been in opposition to the missions of the agencies they are now being
nominated to advance.
I am troubled by this. I think people in the country would be
troubled by this if they really understood John Graham's background and
the power of his position and, unfortunately, the capacity not to do
well for the public interest. This is unacceptable. This is a
concerted, comprehensive effort to undermine our Government's ability
to protect and represent the interests of those who don't have all the
power, who don't have all the capital.
The goal is clear: Roll back the regulations that they can. That is
what this administration is about: Defund government programs and place
in pivotal positions those with the will and the determination to block
new regulations from going forward--new regulations that will protect
people in the workplace, new regulations that will protect our
environment, new regulations that will protect our children from
arsenic in the drinking water, new regulations that will protect the
lakes and the rivers and the streams, new regulations that will make
sure the food is safe for our children. This is not acceptable. We
should say no. That is why I urge my colleagues to join me in defeating
this nomination.
[[Page S7914]]
I include as part of my statement a letter in opposition from former
Secretary of Labor Reich and other former agency heads.
I ask unanimous consent that the letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
May 17, 2001.
Re John D. Graham nomination.
Hon. Fred Thompson,
Chairman, Senate Governmental Affairs Committee,
Washington, DC.
Hon. Joseph I. Lieberman,
Ranking Democrat, Senate Governmental Affairs Committee,
Washington, DC.
Dear Senators: We write as former federal regulators in
response to the nomination of John D. Graham, Ph.D., to
direct the Office of Information and Regulatory Affairs
(OIRA) at the Office of Management and Budget (OMB). As OIRA
Administrator, Dr. Graham would oversee the development of
all federal regulations and he would help shape federal
regulatory policy. His decisions will have profound effects
on the health, welfare, and environmental quality of all
Americans. We are concerned by many of Dr. Graham's expressed
views and past actions as Director of the Harvard Center for
Risk Analysis, and encourage the committee to conduct a
thorough investigation into Dr. Graham's suitability for this
position.
Since the early 1980s, both Republican and Democratic
Presidents have issued Executive Orders granting the OIRA
Administrator exceptionally broad authority to approve,
disapprove, and review all significant executive agency
regulations. In addition, under the Paperwork Reduction Act,
the OIRA Administrator has the responsibility to approve and
disapprove agency information collection requests, which
agencies need to evaluate emerging public health and
environmental threats. These powers give the OIRA
Administrator a considerable role in determining how
important statutes are implemented and enforced.
In his written work and testimony before Congress, Dr.
Graham has repeatedly argued for an increased reliance on
cost-benefit and cost-effectiveness analysis in the
regulatory process. We agree that economic analysis generally
plays an important role in policy making. But increasing the
role that economic analysis plays in rulemaking threatens to
crowd out considerations of equal or perhaps greater
importance that are harder to quantify and to put in terms of
dollars--for example, what is the dollar value of making
public spaces accessible so a paraplegic can participate
fully in community activities? How should we quantify the
worth of protecting private medical information from
commercial disclosure? Why is the value of preventing a child
from developing a future cancer worth only a small fraction
of the value of preventing her from dying in an auto
accident? How do you quantify the real value of a healthy
ecosystem?
In addition, we are concerned that Dr. Graham may have
strong views that would affect his impartiality in reviewing
regulations under a number of statues. He has claimed that
many health and safety statutes are irrational because they
do not allow the agencies to choose the regulatory option
that maximizes economic efficiency where doing so would
diminish public protections. He has repeatedly argued, in his
written work and testimony before Congress, that requirements
to take the results of cost-benefit and cost-effectiveness
analyses into account could supercede congressional mandates
that do not permit their use, such as some provisions of the
Clean Air Act. [John D. Graham, ``Legislative Approaches to
Achieving More Protection Against Risk at Less Cost,'' 1997
Univ. of Chi. Legal Forum 13, 49.] It is important to assure
that he can in good conscience carry out the will of Congress
even where he has strong personal disagreements with the law.
We are also concerned about Dr. Graham's independence from
the regulated community. At the Harvard Center for Risk
analysis, Dr. Grahams' major source of funding has been from
unrestricted contributions and endowments of more than 100
industry companies and trade groups, many of which have
staunchly opposed the promulgation and enforcement of health,
safety and environmental safeguards. At HCRA, Dr. Graham's
research and public positions against regulation have often
been closely aligned with HCRA's corporate contributors. In
coming years these same regulated industries will be the
subject of federal regulatory initiatives that would be
intensively reviewed by Dr. Graham and OIRA. It is thus fair
to question whether Dr. Graham would be even-handed in
carrying out his duties, including helping enforce the laws
he has criticized. Might he favor corporations or industry
groups who were more generous to his Center? Will he have
arrangements to return to Harvard? Is there an expectation of
further endowments from regulated industries? There is the
potential for so many real or perceived conflicts of
interest, that this could impair his ability to do the job.
We urge the Government Affairs Committee to conduct a
thorough inquiry into each of these areas of concern. We
believe that the health, safety and quality of life of
millions of Americans deserves such an appropriate response.
Thank you for your consideration.
Sincerely,
Robert B. Reich, Former Secretary of Labor; Ray Marshall,
Former Secretary of Labor; Edward Montgomery, Former
Deputy Secretary of Labor; Charles N. Jeffress, Former
Assistant Secretary of Labor for Occupational Safety &
Health; Eula Bingham, Former Assistant Secretary of
Labor for Occupational Safety & Health; Davitt McAteer,
Former Assistant Secretary for Labor for Mine Safety
and Health.
Lynn Goldman, Former Assistant Administration for Office
of Prevention, Pesticides and Toxic Substances,
Environmental Protection Agency; J. Charles Fox, Former
Assistant Administrator for Water, Environmental
Protection Agency; David Hawkins, Former Administrator,
for Air Noise and Radiation, Environmental Protection
Agency; Joan Claybrook, Former National Highway Traffic
Safety Administration; Anthony Robbins, Former
Director, National Institute for Occupational Safety
and Health.
Mr. WELLSTONE. There are any number of former Federal regulators who
have signed on, along with former Secretary Reich. One paragraph:
In his written work and testimony before Congress, Dr.
Graham has repeatedly argued for an increased reliance on
cost-benefit and cost effectiveness analysis in the
regulatory process. We agree that economic analysis plays an
important role in policy making. But increasing the role that
economic analysis plays in rulemaking threatens to crowd out
considerations of equal or perhaps greater importance that
are harder to quantify and to put in terms of dollars--for
example, what is the dollar value of making public spaces
accessible so a paraplegic participate fully in community
values? How should we quantify the worth of protecting
private medical information from commercial disclosure? Why
is the value of preventing a child from developing a future
cancer worth only a small fraction of the value of preventing
her from dying in an auto accident? How do you quantify the
real value of a healthy ecosystem?
That is what is at issue here. Did you notice the other day the
report about how children are doing better but not with asthma? Where
is the protection going to be for these children? In this cost-benefit
analysis, the thing that is never looked at is the cost to the workers
who suffer the physical pain in the workplace. What about the cost of a
worker who has to quit working and can't support his family because he
has lost his hearing or because of a disabling injury in the workplace?
What about people who have years off their life and end up dying early
from cancer when they shouldn't have, but they were working with these
carcinogenic substances? What about the cost to children who are still
exposed to lead paint who can't learn, can't do as well in school? What
about the cost to all of God's children when we don't leave this Earth
better than the way we found it? We are all but strangers and guests in
this land. What about the cost of values when we are not willing to
protect the environment, we are not willing to be there for our
children?
I believe Senators should vote no. Frankly, the more people in the
country who find out about this agenda of this administration, they are
going to find it to be extreme and harsh and not in the national
interest and not in their interest and not in their children's
interest. This nomination is a perfect example of that.
I urge my colleagues to vote no and yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. THOMPSON. Mr. President, I yield 5 minutes to the Senator from
Oklahoma.
The PRESIDING OFFICER. The assistant Republican leader.
Mr. NICKLES. Mr. President, I thank my friend and colleague Senator
Thompson for yielding to me. I will be brief.
I have heard our colleagues. I heard part of Senator Wellstone's
statement. He said he thought Mr. Graham would be extreme, out of the
mainstream, as far as regulating a lot of our industries. I totally
disagree.
I am looking at some of the people who are stating their strong
support for Dr. John Graham. I will just mention a couple, and I will
include for the Record a couple of their statements. One is former EPA
Administrator William Reilly. No one would ever call him extreme. He
said that John Graham has ``impressed me with his rigor, fairmindedness
and integrity.'' Dr. Lewis Sullivan, former Secretary of Health and
Human Services, said ``Dr.
[[Page S7915]]
Graham is superbly qualified to be the OIRA administrator.''
Former administrators from both Democrat and Republican
administrations conveyed their confidence that John Graham ``is not an
'opponent' of all regulation but rather is deeply committed to seeing
that regulation serves broad public purposes as effectively as
possible.''
I looked at this letter. It is signed by Jim Miller and Chris DeMuth,
Wendy Gramm, all Republicans, but also by Sally Katzen, who a lot us
got to know quite well during a couple of regulatory battles, and John
Spotila, both of whom were administrators during President Clinton's
reign as President. They served in that capacity. They said he is
superbly qualified.
Dr. Robert Leiken, a respected expert on regulatory affairs at the
Brookings Institution said that Dr. Graham is ``the most qualified
person ever nominated for the job.'' That is a lot when you consider
people such as Chris DeMuth and Wendy Gramm, Sally Katzen and others,
all very well respected, both Democrats and Republicans. If you had
statements by people who have served in the job, both Democrats and
Republicans, when you have people who have been former heads of EPA--
incidentally, when we passed the clean air bill, I might mention,
Administrator Reilly--when they are strongly in support of him, they
say he is maybe the most qualified person ever, that speaks very highly
of Dr. Graham.
If I believed all of the statements or thought that the statements
were accurate that claim he would be bad for the environment, and so
on, I would vote with my colleagues from Illinois and Minnesota. I
don't happen to agree with that. It just so happens that several former
Administrators don't agree with it either.
Dr. Graham is supported by many people who are well respected. He is
more than qualified. I believe he will do an outstanding job as OIRA
Administrator.
I urge our colleagues, both Democrats and Republicans, to give him an
overwhelming vote of support.
I thank my colleagues, Senator Thompson and Senator Levin, for
allowing me to speak.
I ask unanimous consent to print in the Record the letters I
referenced.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
April 27, 2001.
Hon. Fred Thompson,
Chairman.
Hon. Joseph I. Lieberman,
Ranking Minority Member, Committee on Governmental Affairs,
Senate Dirksen Office Building, Washington, DC.
Dear Senators Thompson and Lieberman: I am writing to
support the nomination of John Graham to head OMB's Office of
Information and Regulatory Affairs.
Throughout a distinguished academic career, John has been a
consistent champion for a risk-based approach to health,
safety and environmental policy. He is smart, he has depth,
and he is rigorous in his thinking. I think that he would
bring these qualities to the OIRA position and would help
assure that the rules implementing our nation's health and
environmental laws are as effective and as efficient as they
can be in achieving their objectives.
There is a difference between Graham's work at Harvard's
Center on Risk Analysis and the responsibilities which he
would exercise at OIRA/OMB, and I think he understands that.
At Harvard, he has concentrated on research about the
elements of risk and their implications for policymakers, as
well as on communicating the findings. At OMB, the charge
would be quite different, involving the implementation of
laws enacted by Congress, working with the relevant federal
agencies--in short, taking more than cost-effectiveness into
account.
I have no doubt that you and your colleagues on the
Committee will put tough questions to him during his
confirmation hearing and set forth your expectations for the
position and his tenure should he be confirmed by the Senate.
And I expect he will give the reassurances you require, of
impartial and constructive administration of OIRA, and of
avoiding the stalemates that have characterized OIRA-EPA
relations, for example, in years past. The position at OIRA
is fraught with potential for conflict and obstruction, but
the advent of a thoroughgoing professional who has committed
his career to the analysis and exposition of risk should be
seen as positive. In sum, my interactions over the years with
John Graham have impressed me with his rigor, fairmindedness
and integrity.
With every good wish,
Sincerely yours,
William K. Reilly.
____
May 3, 2001.
Hon. Fred Thompson,
Chairman.
Hon. Joe Lieberman,
Ranking Democrat, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman and Senator Lieberman: The undersigned
are former administrators of the Office of Information and
Regulatory Affairs (OIRA), which was established within the
Office of Management and Budget by the Paperwork Reduction
Act of 1980. We are writing to urge prompt and fair-minded
Senate review of Professor John D. Graham's nomination to be
OIRA Administrator.
The ``R'' in OIRA involves the regulatory aspects of the
Office. These are in an important part of the OIRA
Administrator's overall responsibilities. The five of us--
like the Presidents we worked for--have differing views of
the appropriate role of government regulation in the economy
and society. All of us, however, came to appreciate three
essential features of regulatory policy during our tours at
OIRA.
First, regulation has come to be a highly important
component of federal policy-making, with significant
consequences for public welfare. Second, the importance of
regulatory policy means that individual rules should be
subject to solid, objective evaluation before they are
issued. Third, the regulatory process should be open and
transparent, with an opportunity for public involvement, and
final decisions should be clearly and honestly explained. In
our view, objective evaluation of regulatory costs and
benefits, and open and responsive regulatory procedures,
serve the same purpose: to avert policy mistakes and undue
influence of narrow interest groups, and to ensure that
federal rules provide the greatest benefits to the widest
public.
We believe that John Graham understands and subscribes to
these principles. His professional field, risk assessment,
lies at the heart of many of the most important health,
safety, and environmental rules. Despite some of the
criticisms of Professor Graham's work that have appeared
since his nomination was announced, we are confident that he
is not an ``opponent'' of all regulation but rather is deeply
committed to seeing that regulation serves broad public
purposes as effectively as possible.
The Senate's role in the appointment process is a critical
one, and Professor Graham's nomination merits careful
scrutiny and deliberation in the same manner as other senior
Executive Branch appointments. At the same time, the
President is entitled to the services of qualified appointees
as soon as possible--and this is a particularly important
factor today, when many regulatory issues of great public
importance and heated debate are awaiting decision by the
President's political officials. We therefore urge prompt and
fair-minded Senate review of Professor Graham's nomination.
Respectfully,
James C. Miller III.
Christopher DeMuth.
Wendy L. Gramm.
Sally Katzen.
John Spotila.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. THOMPSON. Mr. President, I yield time to the Senator from
Michigan. I ask how much time he would require?
Mr. LEVIN. Perhaps 15 minutes.
Mr. THOMPSON. I yield 15 minutes to the Senator from Michigan.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, at the heart of this debate on the
nomination of John Graham to be Administrator of the Office of
Information and Regulatory Affairs is the issue of cost-benefit
analysis and risk assessment in agency rule making. Some of the groups
opposed to this nomination, I believe, are concerned that Dr. Graham
will live up to his promise and actually require agencies to do
competent and comprehensive cost-benefit analyses and risk assessments
of proposed rules. I hope he will. The goal of competent cost-benefit
analysis and risk assessment is to ensure that the public will be able
to get the biggest bang for its buck when it comes to federal
regulation and that the requirements agencies impose to protect the
environment and public health and safety will do more to help than to
hurt. That is what we should all want.
I have been at odds over the past 20 years with some of my closest
friends in the environmental, labor, and consumer movements over this
notion of cost-benefit analysis. I have supported legislation to
require cost-benefit analysis by agencies when issuing regulations
since I first came to the Senate because, while I believe Government
can make a positive difference in people's lives, I also know that
Government can waste money on a good cause.
When we waste money on lesser needs, when we waste our resources on
[[Page S7916]]
things where the benefits do not justify the costs, it seems to me that
we, at a minimum, have an obligation to tell the public why we are
regulating them. If we don't do that, if we do not take the time to
analyze benefits, analyze costs, and explain why, if benefits don't
justify the costs, we are regulating, then we jeopardize public support
for the very causes that so many of us came here to fight for--the
environment, health, and safety, including workplace safety.
I came out of local government. I fought hard for housing programs,
programs to clean up the environment, neighborhood protection programs,
public safety programs. I spent a good part of my life in local
government fighting for those programs. Too often, I found my Federal
Government wasting resources and failing to achieve the very ends which
those programs were supposed to achieve. Too often. When that happens,
we jeopardize public support for the very programs of which we profess
to be so supportive. When we waste dollars--in whatever the program
is--on things which cannot be justified, as when we spend thousands of
dollars with OSHA regulations, as we used to do before some of us got
involved in getting rid of hundreds of OSHA regulations that made no
sense, when we spent money telling people in OSHA regulations that when
climbing a ladder you had to face forward, that doesn't protect public
health. It doesn't protect workplace safety; it wastes resources on
things that are useless, and it brings disrepute to the regulatory
process--a process I believe in. I don't make any bones about that. I
believe in regulation.
We need regulation to protect people against abuse, to protect their
health and safety. But we don't do that if we waste money and if we are
not willing to at least ask ourselves: What are the benefits of a
proposed regulation? What are the costs of a proposed regulation? Do
the benefits justify the costs? And if they don't, why are we
regulating then?
I have fought on this floor against regulatory reform measures which
I thought went too far. I have filibustered against regulatory reform
measures on this floor which I thought went too far, and which, in
fact, would have required that agencies do some things which I thought
they should not have to do. For instance, we had a regulatory reform
bill here which said, even though the law said you could not consider
the cost, you would have to do it anyway. No, I don't buy that. If the
law says you may not consider cost, that is the law of the land and
that must be enforced, and no regulatory reform bill should override
that legislative intent.
By the way, I have also opposed measures which said you have to
quantify benefits. As my good friend from Minnesota points out, there
are hundreds of benefits which cannot be quantified, at least in terms
of dollars. You cannot say what the value of a life is. We don't know
the value of a life. We don't know the value of a beautiful,
unrestricted view in a national park. We don't know the value, in
dollars, of a child who is disabled being able to get to a higher floor
because of the Americans with Disabilities Act. We cannot put a dollar
value on those benefits. And we should not. But we should weigh the
benefit of that and ask ourselves whether or not, with the same
resources, we can get more kids a better education, or more kids to a
higher floor in a building--not to quantify in dollars those benefits,
but to know what those benefits are.
If we spend a billion dollars to save a life, if that is my loved
one's life, it is worth it. But if we can spend that same billion
dollars and save a thousand lives, or 10,000 lives, do we not want to
know that before we spend a billion dollars? Is that not worth knowing?
Are we afraid of knowing those facts? Not me. I am not afraid of
knowing those facts. I think we want to know those facts.
We should want to know the costs and benefits of what we propose to
do. The people who should want to know them the most are the people who
believe in regulation as making a difference, because if the same
amount of resources can make a greater difference, people who believe
in regulation should be the first ones to say let's do more with the
same resources, let's not waste resources.
We know that effective regulatory programs provide important benefits
to the public. We also know from recent studies that some of our
regulations cost more than the benefits they provide, and that cost-
benefit analysis when done effectively can result in rules that achieve
greater benefits at less cost.
OMB stated in their analysis of costs and benefits of federal
regulations in 1997, ``The only way we know to distinguish between the
regulations that do good and those that cause harm is through careful
assessment and evaluation of their benefits and costs.'' In a well-
respected analysis of 12 major EPA rules and the impact of cost-benefit
analysis on those rules, the author, Richard Morgenstern, former
Associate Assistant Administrator of EPA and a visiting scholar at
Resources for the Future, concluded that in each of the 12 rule
makings, economic analysis helped reduce the costs of all the rules and
at the same time helped increase the benefits of 5 of the rules. Report
after report acknowledges the importance of good cost-benefit analysis
and risk assessment for all agencies.
Yet some of the groups that support regulations to protect public
health and safety appear to be threatened by cost-benefit analysis and
risk assessment. They seem to fear it will be used as an excuse to ease
up on otherwise tough standards. But I think to fear cost-benefit
analysis and risk assessment is to fear the facts, and when it comes to
these vitally important issues of the environment and public health and
worker safety, we shouldn't be afraid of the facts. We shouldn't be
afraid to know whether the approach an agency may want to take to
solving an environmental or public health problem is not as effective
as another approach and one that may even be less expensive.
Justice Stephen Breyer wrote about the value of cost-benefit analysis
in his book called ``Breaking the Vicious Circle.'' He describes one
example of the need for cost-benefit analysis in what he calls ``the
problem of the last 10 percent.'' It was written by Justice Breyer when
he served on the First Circuit Court of Appeals:
He talks about a case ``. . . arising out of a ten-year
effort to force cleanup of a toxic waste dump in southern New
Hampshire. The site was mostly cleaned up. All but one of the
private parties had settled. The remaining private party
litigated the cost of cleaning up the last little bit, a cost
of about $9.3 million to remove a small amount of highly
diluted PCBs and ``volatile organic compounds'' . . . by
incinerating the dirt. How much extra safety did this $9.3
million buy? The 40,000-page record of this ten-year effort
indicated (and all the parties seemed to agree) that, without
the extra expenditure, the waste dump was clean enough for
children playing on the site to eat small amounts of dirt
daily for 70 days each year without significant harm. Burning
the soil would have made it clean enough for the children to
eat small amounts daily for 245 days per year without
significant harm. But there were no dirt-eating children
playing in the area, for it was a swamp. Nor were dirt-eating
children likely to appear there, for future building seemed
unlikely. The parties also agreed that at least half of the
volatile organic chemicals would likely evaporate by the year
2000. To spend $9.3 million to protect nonexistent dirt-
eating children is what I mean by the problem of ``the last
10 percent.''
That was Justice Breyer speaking. As I have indicated, I have tried
for the last 20 years just to get consideration of costs and benefits
into the regulatory process. I have worked with Senator Thompson most
recently, and I worked with Senators Glenn and Roth and Grassley in
previous Congresses. Each time we have tried, we have been defeated, I
believe, by inaccurate characterizations of the consequences of the use
of cost-benefit analysis and risk assessment.
That is what is happening, I believe, with Dr. Graham's nomination.
Dr. Graham's nomination presents us with the question of the value of
cost-benefit analysis and risk assessment in agency rule making once
again. That's because Dr. Graham's career has been founded on these
principles. He believes in them. So do I. And, Dr. Graham sees cost-
benefit analysis not as the be-all and end-all in regulatory
decisionmaking; rather, like many of us, he sees it as an important
factor to consider. Dr. Graham supported the regulatory reform bill
Senator Thompson and I sponsored in the last Congress--which was also
supported by Vice President Gore--that would require an agency to
perform a cost-benefit analysis and risk assessment and
[[Page S7917]]
state to the public whether the agency believes, based on that
analysis, that the benefits of a proposed regulation justify the costs.
If the agency believes they don't, then the agency would be required to
tell the public why it has decided to regulate under those
circumstances. It doesn't hold an agency to the outcome of a strict
cost-benefit analysis. It doesn't diminish an agency's discretion in
deciding whether or not to issue a regulation. It does mandate, though,
that the agency conduct a comprehensive cost-benefit analysis and,
where appropriate, risk assessment before it issues a proposed rule. I
believe that is a reasonable, fair and appropriate standard to which to
hold our federal agencies accountable. And of course our bill also
required that in doing cost-benefit analysis agencies take into account
both quantifiable and nonquantifiable benefits, a principle in which
Dr. Graham firmly believes.
So how do Dr. Graham's opponents attack him? They attack him by
saying his science has been influenced by the donors to his Center and
that he supports industry in its opposition to environmental, health
and safety regulation. And they attack him by taking many of his
statements out of context to create what appears to be an extremist on
the role of environmental and health regulation but which is really a
fabricated character that doesn't reflect reality. I think Dr. Graham
is a fair, thoughtful, and ethical person who believes in the value of
cost-benefit analysis and risk assessment as tools we can and should
use for achieving important public policy decisions. I believe Dr.
Graham has also found it useful to be provocative when it comes to
understanding risk, in an effort to shake us out of our customary
thinking and see risks in a practical and real-life dimension.
Let me first discuss the allegation of bias with respect to funding
sources. When various groups have questioned John Graham's
independence, they have suggested that his science has been skewed by
his corporate sponsorship. Frank Cross, Professor of Business and Law
at the University of Texas, said ``this criticism is unwarranted,
unfair and inconsistent with the clear pattern and practice of most (if
not all) similarly situated research centers.'' Yes, Dr. Graham's
center received significant sums of money from corporate sponsors. But
it also established a conflict of interest policy in line with Harvard
University School of Public Health's conflict of interest policy,
requiring peer review of research products disseminated publicly by the
Center and a complete disclosure of all sponsors. The policy requires
that any restricted grants received by the Center adhere to all
applicable Harvard University rules including the freedom of the
Center's researchers to design projects and publish results without
prior restraint by sponsors. I asked Dr. Graham a number of questions
on this subject during our committee hearing and found his answers to
be forthright and satisfactory. Dr. Graham confirmed for the record
that he has never delayed the release of the results of his studies at
the request of a sponsor, never failed to publish a study at the
request of a sponsor, and never altered a study at the request of a
sponsor. Moreover, there are numerous studies where the conclusions Dr.
Graham or the Center reached were contrary to the interests of the
Center's sponsors.
The other line of attack against Dr. Graham is taking Dr. Graham's
statements out of context, to unfairly paint him as an extremist, and I
would like to go over just a few examples where this has happened.
Opponents say, ``[John Graham] has said that dioxin is an
anticarcinogen'' and that he said that ``reducing dioxin levels will do
more harm than good.''
Those are quotes. Standing alone, that sounds pretty shocking, but
let's look at what John Graham actually said. The issue came up while
Dr. Graham was participating as a member of the EPA's Science Advisory
Board, Dioxin Reassessment Review Subcommittee, when the subcommittee
was reviewing EPA's report on dioxin. Here is what he said during one
of the meetings:
(T)he conclusion regarding anticarcinogenicity . . . [in
the EPA report on dioxin] should be restated in a more
objective manner, and here's my suggestive wording, ``It is
not clear whether further reductions in background body
burdens of [dioxin] will cause a net reduction in cancer
incidence, a net increase in cancer incidence, or have no net
change in cancer incidence.'' And I think there would be also
merit in stating not only that [dioxin] is a carcinogen--
That is John Graham speaking--
And I think there would be also merit in stating not only
is dioxin a carcinogen, but also I would put it in a category
of a likely anticarcinogen using the draft guidelines in
similar kinds of criteria that you have used as
classifying it as a carcinogen.
He said this at another point in the meeting: ``I'd like to frame
it''-- referring to a subcommittee member's comment--``in a somewhat
more provocative manner in order to stimulate some dialogue.''
He discusses two studies that look at different levels of dioxin and
identified some anticarcinogenic effects. Dr. Graham said the
following:
If, as body burdens of dioxin decline the adverse effects
disappear more rapidly than the adaptive or beneficial
effects, and this is as suggested by certain experimental
data both the Pitot study I mentioned and the Kociba study.
As the dose comes down, the adverse effects go away faster
than the anticarcinogenic effects. Then it's possible that
measures to reduce current average body burdens of dioxin
further could actually do more harm for public health than
good.
``Possible,'' ``if,'' as two studies suggest. I want to repeat that.
``If'' something occurs, as two studies--not his--two studies
``suggest,'' then it is ``possible'' that at low levels there are
anticarcinogenic effects. That is what he said in the meeting.
Then he went on to say the following:
The alternative possibility which EPA emphasizes is that
the adverse effects outweigh these beneficial or adaptive
effects. And I think that they're clearly right at the high
doses. For example, total tumor counts are up so even if
there's some anticarcinogenicity in there, the overall tumor
effects are adverse. The question is, what happens when the
doses come down.
Mr. President, I ask for 7 additional minutes. I do not know what
time agreement we are under. What is the time agreement? What are the
constraints?
The PRESIDING OFFICER. The Senator from Tennessee controls 3 hours,
of which there are 150 minutes remaining.
Mr. THOMPSON. I yield an additional 5 minutes to the Senator from
Michigan.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I thank my friend from Tennessee.
Mr. President, Dr. Graham has consistently said, as he stated in the
above quotations, dioxin is a known carcinogen. What he went on to
suggest as an EPA subcommittee member is that there be an additional
comment, supported by two studies, that very low levels of dioxin may
reduce the risk of cancer, calling for full disclosure about two
studies. It turns out, Mr. President, that in the final report of that
EPA subcommittee, his suggestions were adopted.
The final report--not his, but the EPA subcommittee--says:
There is some evidence that very low doses of dioxin may
result in decreases in some adverse responses,
including cancer . . .
That may sound absurd to us, but we are not experts--at least I am
not an expert--and it seems to me that where you have somebody of this
reputation who, as part of an EPA subcommittee, points to two studies
which he says suggests that it is possible that at low levels dioxin
could actually be an anticarcinogen, and then the EPA subcommittee
actually adopts that suggestion, for that to be characterized that he
thinks dioxin is good, or something similar to that, is a serious
mischaracterization of what happened.
I am not in a position to defend the dioxin studies, nor am I arguing
the substance of their outcome. I am pointing out, however, that Dr.
Graham, when he discussed this point, wasn't making it up; he was
bringing two scientific studies to the attention of the EPA
subcommittee, and in the final review report by the EPA Science
Advisory Panel, Dr. Graham's suggestion and the two studies to which he
refers are mentioned.
Who would have thought in the year 2000 that cancer victims would be
taking thalidomide and actually seeing positive results. That is
counterintuitive to me. I was raised believing thalidomide to be the
worst, deadly substance just about known. The idea that last year
people would be taking thalidomide as an anticarcinogen is surely
[[Page S7918]]
counterintuitive to me, but we must not be afraid of knowing cost-
benefits. It must not strike fear in our hearts, those of us who
believe that regulation can make such a positive difference in the
lives of people.
We should not be terrorized by labels, by characterizations which are
not accurate. We should, indeed, I believe more than anybody, say: We
want to know costs and benefits. We do not want to quantify the value
of a human life. That is not what this is about. We should not quantify
in dollars the value of a human life. It is invaluable--every life.
There is no dollar value that I can put on any life or on limb or on
safety or on access. But we should know what is produced by a
regulation and what is the cost of that regulation and what resources
we are using that might be better used somewhere else to get greater
benefits and still then make a judgment--not be prohibited from
regulating, but at least know cost-benefit before we go on.
Lets look at another issue where John Graham has been quoted out of
context by his critics. Critics say that Dr. Graham has said that the
risk from pesticides on food is ``trivial.'' In January 1995, Dr.
Graham participated in a National Public Radio broadcast discussing
upcoming congressional hearings on regulatory reform. At the time, he
was attempting to bring to light the importance of risk-based
priorities, the importance of identifying and understanding the most
serious risks vis a vis less significant risks. In putting this comment
in the right context, lets look at what he actually said:
It [the federal government] suffers from a syndrome of
being paranoid and neglectful at the same time. We waste our
time on trivial risks like the amount of pesticides residues
on foods in the grocery store at the same time that we ignore
major killers such as the violence in our homes and
communities.
It was a provocative statement, and Dr. Graham did refer to pesticide
residues as ``trivial,'' but it was done in the context of a larger
discussion of overall risks. Dr. Graham was making a statement to make
people think about risk-based priorities. Dr. Graham has consistently
stated that since we have limited funds, there should be ``explicit
risk-based priority setting'' of regulations. In other words, we have
to make smart choices and strongly supported decisions and we need full
disclosure of the differing risks to do this.
Dr. Graham's statements from an op-ed that he wrote for the Wall
Street Journal on the merits of conducting cost-benefit analysis have
also been mischaracterized. Critics say that John Graham has said that
banning pesticides that cause small numbers of cancers is ``nutty.'' In
the op-ed, Dr. Graham was opining on the adequacy of EPA's risk
assessments supporting proposals to ban certain pesticides. Dr. Graham
points out that the EPA did not look at all the costs and benefits
associated with banning or not banning certain pesticides. He wrote:
Pesticides are one example of the problem at EPA. EPA chief
Carol Browner has proposed banning any pesticide that poses a
theoretical lifetime cancer risk to food consumers in excess
of one in a million, without regard to how much pesticides
reduce the cost of producing and consuming food. (The best
estimates are that banning all pesticides that cause cancer
in animals would raise the price of fruits and vegetables by
as much as 50%). This is nutty. A baby's lifetime risk of
being killed on the ground by a crashing airplane is about
four in a million. No one has suggested that airplanes should
be banned without regard to their benefits to consumers.
Dr. Graham was making the point that we do not live in a risk-free
world and that some risks are so small that while they sound bad,
relatively speaking, they are minor compared to other risks we live
with every day. Dr. Graham believes we should consider all the facts,
that we should disclose all the costs and benefits associated with
proposed regulations so we make smart common sense decisions.
Dr. Graham writes in the same article that ``One of the best cost-
benefit studies ever published was an EPA analysis showing that several
dollars in benefits result from every dollar spent de-leading
gasoline.'' His critics don't quote that part.
Continuing with the pesticides issue, critics say that Dr. Graham has
said that ``banning DDT might have been a mistake.'' This is not what
Dr. Graham said. He actually said:
Regulators need to have the flexibility to consider risks
to both consumers and workers, since new pesticide products
that protect consumers may harm workers and vice versa. For
example, we do not want to become so preoccupied with
reducing the levels of pesticide residues in food that we
encourage the development and use of products that pose
greater dangers to farmers and applicators. As an example,
consider the pesticide DDT, which was banned many years ago
because of its toxicity to birds and fish. The substitutes to
DDT particularly organophosphate products, are less
persistent in food and in the ecosystem but have proven to be
more toxic to farmers. When these substitutes were
introduced, a number of unsuspecting farmers were poisoned by
the more acutely toxic substitutes for DDT.
These statements were part of Dr. Graham's testimony for a joint
hearing on legislative issues pertaining to pesticides before the
Senate Committee on Labor and Human Resources and the House
Subcommittee on Health and Environment in September 1993. Dr. Graham
was addressing his concerns on the lack of disclosure and review of the
costs and benefits associated with the proposal of certain pesticides
regulations. To properly show where Dr. Graham is on the pesticide
issue, let me quote Dr. Graham's summary comments on risk analysis he
made at that hearing. Dr. Graham testified:
Pesticides products with significant risks and negligible
benefits should be banned. Products with significant benefits
and negligible risks should be approved. We should not give
much attention to products whose risks and benefits are both
negligible. When the risks and benefits are both significant,
the regulator faces a difficult value judgement. Before
approving use of a pesticide, the regulator should certainly
assure himself or herself that promising alternatives of the
pesticide are not available. If they are not, a conditional
registration may be the best course of action--assuming that
the benefits to the consumer are significant and the health
risks are acceptable (even if non-negligible). There is
nothing unjust or unethical about a society of consumers who
subject themselves to some degree of involuntary risk from
pesticide use in exchange for consumer benefits. If possible,
its preferable to let each consumer make this judgement. But
our society certainly accepts a considerable amount of
(irreducible) involuntary risk from automobiles and electric
power production in exchange for the substantial benefits
these technologies offer the consumer.
In other words, Dr. Graham is saying that risks need to be disclosed
and weighted based on the level of risk to make a fair decision. We
need to have full disclosure and consideration of all the costs and
benefits to make smart common sense decisions. In that same testimony,
Dr. Graham also said:
Each year thousands of poisonings occur to pesticide users,
often due to application and harvesting practices that
violate safety precautions. Recent studies suggest that the
rates of some types of cancer among farmers may be associated
with the frequency of herbicide use. It is not yet known
whether or not these associations reflect a cause-and-effect
relationship. Congress should examine whether EPA's recent
occupational health rule is adequate to protect the health of
farmworkers and applicators.
But his opponents don't mention those statements.
Dr. Graham was criticized in a recent op-ed for saying that our
nation is overreacting ``in an emotional gush'' to school shootings at
places such as Columbine High School. But the Sunday New York Times
article in which those words are quoted, has a completely different
context. It is an article about real dangers for teenagers, and whether
schools are now dangerous places to be. The article notes that while
homicide is the second leading cause of death among youngsters,
according to the Centers for Disease Control and Prevention, ``fewer
than 1 percent of the child homicides occur in or around schools.'' The
article quotes Dr. Jim Mercy, associate director for science in the
division of violence prevention at the Centers for Disease Control and
Prevention, as saying, ``The reality is that schools are very safe
environments for our kids.'' Later on in the article the other risks to
adolescents are discussed and that's where Dr. Graham comes in. The
article says:
When public health experts look at risks to young people,
homicides, which account for 14 percent of all deaths among
children, come in second. The biggest threat is accidents,
primarily car crashes, which are responsible for 42 percent
of childhood deaths. Dr. Graham of Harvard says there is a
danger to the ``emotional gush'' over Littleton: ``It diverts
energies from the big risks that adolescents face, which are
binge drinking, traffic crashes, unprotected sex''.
The last mischaracterization I would like to discuss relates to Dr.
Graham's
[[Page S7919]]
work on cell phones. Dr. Graham's critics say that he has said that
``there is no need to regulate the use of cell phones while driving,
even though this causes a thousand additional deaths on the road each
year.'' The Executive Summary of the Harvard Center for Risk Analysis
(HCRA) report, entitled, ``Cellular Phone Use While Driving: Risks and
Benefits'' states that there is a risk of using a cell phone while
driving, although the level of that risk is uncertain. It states:
The weight of scientific evidence to date suggests that use
of a cellular phone while driving does create safety risks
for the driver and his/her passengers as well as other road
users. The magnitude of these risks is uncertain but appears
to be relatively low in probability compared to other risks
in daily life.
Look at the stated objective of the cell phone study. The report
states, ``The information in this report does not provide a definite
resolution of the risk-benefit issue concerning use of cellular phones
while driving. The objective of the report is to stimulate greater
scientific and public policy discussion of this issue.'' Dr. Graham
states up-front that the study is promoting further discussion and
research on the issue of cell phone use. The report also does not
completely rule out the need for regulation; it states that further
study is necessary. The Executive Summary states:
Cellular phone use while driving should be a concern of
motorists and policymakers. We conclude that although there
is evidence that using a cellular phone while driving poses
risks to both the drivers and others, it may be premature to
enact substantial restrictions at this time. Indecision about
whether cellular phone use while driving should be regulated
is reasonable due to the limited knowledge of the
relative magnitude of risks and benefits. In light of this
uncertainty, government and industry should endeavor to
improve the database for the purpose of informing future
decisions of motorists and policymakers. In the interim,
industry and government should encourage, through vigorous
public education programs, more selective and prudent use
of cellular phones while driving in order to enhance
transport safety.
Here, as is in the other examples, Dr. Graham is recommending that
all data be considered so we can make a smart, common sense decision on
any proposed regulation. There is no doubt that as a college professor,
Dr. Graham has made some provocative statements on different issues.
And I don't agree with all of the statements or considerations he has
made, but, I do believe, these statements are within the context of
reasonable consideration of the risks and that he has made these
statements to promote free thinking to generate thoughts and ideas so
we can make the best decisions.
Mr. President, I don't take any pleasure today in opposing some of my
good friends and colleagues on a matter about which they appear to care
so much. They have characterized the nomination of John Graham as a
threat to our progress in protecting the environment, consumer safety
and the safety of the workplace. If I believed that, I would vote
``no'' in an instant. But, contrary to what has been said by his
opponents, I find John Graham to be a balanced and thoughtful person.
So do other individuals in the regulatory field whom I respect. Dr.
Graham has received letters of support from, among others, former EPA
Administrator and now head of the Wilderness Society, William Reilly;
five former OIRA Administrators from both Republican and Democratic
Administrations; 95 academic colleagues; Harvey Fineberg, the Provost
of Harvard College, numerous Harvard University professors, and Cass
Sunstein, University of Chicago Law Professor. Professor Sunstein has
written a particularly compelling letter of support which I would like
to read.
Dr. Graham has supported common sense, well-analyzed regulations
because they use resources wisely against the greatest risks we face.
That is the best way to assure public support for health and safety
regulatory programs. I think Dr. Graham will serve the public well as
Administrator of OIRA, and I look forward to working with him on these
challenging issues.
Mr. President, I ask unanimous consent to print in the Record the
letter from Professor Sunstein.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
.The University of Chicago,
The Law School,
Chicago, IL, March 28, 2001.
Senator Joseph Lieberman,
Senate Hart Office Building,
Washington, DC.
Dear Senator Lieberman: I am writing to express the
strongest possible support for John Graham's nomination to be
head of the Office of Information and Regulatory Affairs.
This is an exceptional appointment of a truly excellent and
nonideological person.
I've known John Graham for many years. He's a true believer
in regulatory reform, not as an ideologue but as a charter
member of the ``good government'' school. In many ways his
views remind me of those of Supreme Court Justice, and
Democrat, Stephen Breyer (in fact Breyer thanks John in his
most recent book on regulation). Unlike some people, John is
hardly opposed to government regulation as such. In a number
of areas, he has urged much more government regulation. In
the context of automobile safety, for example, John has been
one of the major voices in favor of greater steps to protect
drivers and passengers.
A good way to understand what John is all about is to look
at his superb and important book (coauthored with Jonathan
Wiener), Risk vs. Risk (Harvard University Press). A glance
at his introduction (see especially pp. 8-9) will suffice to
show that John is anything but an ideologue. On the contrary,
he is a firm believer in a governmental role. The point of
this book is to explore how regulation of some risks can
actually increase other risks--and to ensure that government
is aware of this point when it is trying to protect people.
For example, estrogen therapy during menopause can reduce
some risks, but increase others at the same time. What John
seeks to do is to ensure that regulation does not
inadvertently create more problems than it solves. John's
concern about the possible problems with CAFE standards for
cars--standards that might well lead to smaller, and less
safe, motor vehicles--should be understood in this light.
Whenever government is regulating, it should be alert to the
problem of unintended, and harmful, side effects. John has
been a true pioneer in drawing attention to this problem.
John has been criticized, in some quarters, for pointing
out that we spend more money on some risks than on others,
and for seeking better priority-setting. These criticisms are
misplaced. One of the strongest points of the Clinton/Gore
``reinventing government'' initiative was to ensure better
priority-setting, by focusing on results rather than red-
tape. Like Justice Breyer, John has emphasized that we could
save many more lives if we used our resources on big problems
rather than little ones. This should not be a controversial
position. And in emphasizing that environmental protection
sometimes involves large expenditures for small gains,
John is seeking to pave the way toward more sensible
regulation, not to eliminate regulation altogether. In
fact John is an advocate of environmental protection, not
an opponent of it. When he criticizes some regulations, it
is because they deliver too little and cost too much.
John has also been criticized, in some quarters, for his
enthusiasm for cost-benefit analysis. John certainly does
like cost-benefit analysis, just like President Clinton,
whose major Executive Order on regulation requires cost-
benefit balancing. But John isn't dogmatic here. He simply
sees cost-benefit analysis as a pragmatic tool, designed to
ensure that the American public has some kind of account of
the actual consequences of regulation. If an expensive
regulation is going to cost jobs, people should know about
that--even if the regulation turns out to be worthwhile. John
uses cost-benefit analysis as a method to promote better
priority-setting and more ``bang for the buck''--not as a way
to stop regulation when it really will do significant good.
I might add that I've worked with John in a number of
settings, and I know that he is firmly committed to the law--
and a person of high integrity. He understands that in many
cases, the law forbids regulators from balancing costs
against benefits, or from producing what he would see as a
sensible system of priorities. As much as anyone I know, John
would follow the law in such cases, not his own personal
preferences.
A few words on context: I teach at the University of
Chicago, in many ways the home to free market economics, and
I know some people who really are opposed to regulatory
programs as such. As academics, these people are excellent,
but I disagree with them strongly, and I believe that the
nation would have real reason for concern if one of them was
nominated to head OIRA. John Graham is a very different sort.
He cannot be pigeonholed as ``conservative'' or ``liberal'';
on regulatory issues, he's unpredictable in the best sense. I
wouldn't be at all surprised if, in some settings, he turned
out to be a vigorous voice for aggressive government
regulation. In fact that's exactly what I would expect. When
he questions regulation, it is because he thinks we can use
our resources in better ways; and on this issue, he stands as
one of the most important researchers, and most promising
public servants, in the nation.
From the standpoint of safety, health, and the environment,
this is a terrific appointment, even an exciting one. I very
much hope that he will be confirmed.
Sincerely,
Cass R. Sunstein.
The PRESIDING OFFICER. The Senator from Tennessee.
[[Page S7920]]
Mr. THOMPSON. Mr. President, we have speakers in support. I see my
friend from Connecticut. In the interest of balance, if the Senator
desires time, I yield. Not my time, of course.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I thank my friend from Tennessee for
his graciousness and fairness. I yield myself up to 15 minutes from the
time I have under the prevailing order.
Mr. President, the nomination of John Graham to administer the Office
of Information and Regulatory Affairs, known as OIRA, is an important
nomination, although the office is little known. I say that because the
office, though little known, has a far reach throughout our Government.
It particularly has a significant effect on a role of Government that
is critically important and cherished by the public. That is the
protective role. This responsibility, when applied to the environment
or the health and safety of consumers and workers, is worth a vigorous
defense. It is a role which the public wants and expects the Government
to play. I fear it is a role from which the present administration
seems to be pulling away. It is in that context I view this nomination.
With that in mind, I have weighed Dr. Graham's nomination carefully.
I have reviewed his history and his extensive record of advocacy and
published materials. I listened carefully to his testimony before the
Governmental Affairs Committee. I did so, inclined, as I usually am, to
give the benefit of the doubt to the President's nominees. In this
case, my doubts remained so persistent and the nominee's record on
issues that are at the heart of the purpose of the office for which he
has been nominated are so troubling that I remain unconvinced that he
will be able to appropriately fulfill the responsibilities for which he
has been nominated. I fear in fact, he might--not with bad intentions
but with good intentions, his own--contribute to the weakening of
Government's protective role in matters of the environment, health, and
safety. That is why I have decided to oppose Dr. Graham's nomination.
Let me speak first about the protective role of Government. Among the
most essential duties that Government has is to shield our citizens
from dangers from which they cannot protect themselves. We think of
this most obviously in terms of our national security or of enforcement
of the law at home against those who violate the law and commit crimes.
But the protective function also includes protecting people from
breathing polluted air, drinking toxic water, eating contaminated food,
working under hazardous conditions, being exposed to unsafe consumer
products, and falling prey to consumer fraud. That is not big
government; that is responsible, protective government. It is one of
the most broad and supportive roles that Government plays.
OIRA, this office which Dr. Graham has been nominated to direct, is
the gatekeeper, if you will, of Government's protective role. OIRA
reviews major rules proposed by agencies and assesses information on
risk, cost, benefits, and alternatives before the regulations can go
forward. Then if the Administrator of OIRA finds an agency's proposed
rule unacceptable, they return the rule to the agency for further
consideration. That is considerable power.
This nominee would continue the traditional role but charter a
further, more ambitious role by declaring that he intends to involve
himself more in the front end of the regulatory process, I assume. That
is what he said before our committee. I assume by this he meant he will
take part in setting priorities in working with agencies on regulations
even before they have formalized and finalized their own ideas to
protect the public.
So his views on regulation are critically important, even more
important because of this stated desire he has to be involved in the
front end of the process. It also means he could call upon the agencies
to conduct time-consuming and resource-intensive research and analysis
before they actually start developing protections needed under our
environmental statutes.
Some others have referred to this as paralysis by analysis; in other
words, paralyzing the intention, stifling the intention of various
agencies of our Government to issue regulations which protect the
environment, public health, safety, consumers, by demanding so much
analysis that the regulations are ultimately delayed so long they are
stifled.
OIRA, looking back, was implicated during earlier administrations in
some abuses that both compromised the protective role of Government and
undermined OIRA's own credibility. There was a history of OIRA
reviewing regulations in secret, without disclosure of meetings or
context with interested parties. Rules to protect health, safety, and
the environment would languish at OIRA, literally, for years. I am not
making that up. Regulations would be stymied literally for years with
no explanation. Then OIRA would return them to the agencies with many
required changes, essentially overruling the expert judgment of the
agencies, which not only compromised the health and safety of the
public which was unprotected by those regulations for all that time but
also frustrated the will of Congress which enacted the laws that were
being implemented by those regulations.
To be fair, of course, it is too soon to say whether similar problems
will occur at OIRA during the Bush administration, and Dr. Graham
himself expressed a desire to uphold the transparency of decisionmaking
at OIRA. However, the potential for abuse remains. That is particularly
so for delaying the process, with question after question, while the
public remains unprotected.
Let me turn directly to Dr. Graham's record. In the hearing on his
nomination, Dr. Graham acknowledged, for instance, his opposition to
the assumptions underlying our landmark environmental laws --that every
American has a ``right'' to drink safe water and breathe clean air.
Indeed, Dr. Graham has devoted a good part of his career to arguing
that those laws mis-allocate society's resources, suggesting we should
focus more on cost-benefit principles, which take into consideration, I
think, one view of the bottom line, but may sacrifice peoples' right to
a clean and healthy environment and a fuller understanding of the
bottom-line costs involved when people are left unprotected. Dr. Graham
has written generally, for example, that the private sector should not
be required to spend as much money as it does on programs to control
toxic pollution, that he believes, on average, are less cost-effective
than medical or injury-prevention efforts, where presumably more money
should be spent. But why force us to make such a choice when both are
necessary for the public interest?
Dr. Graham has said society's resources might be better spent on
bicycle helmets or violence prevention programs than on reducing
children's exposure to pesticide residues or on cutting back toxic
pollution from oil refineries. This is the kind of result that his very
theoretical and I would say, respectfully, impractical, cost-benefit
analysis produces. Bicycle helmets save lives, and violence is bad for
our society. But the problem is that Dr. Graham's provocative
theorizing fails to answer the question of how to protect the health
of, for instance, the family that lives next to the oil refinery or in
the neighborhood. His rational priority setting may be so rational that
it becomes, to those who don't make it past the cost-benefit analysis,
cruel or inhumane, although I know that it is not his intention.
Dr. Graham sought to allay concerns by explaining that his
provocative views were asserted as a university professor, and that in
administering OIRA he would enforce environmental and other laws as
written. I appreciate his assurances. But for me, his long-standing
opinions and advocacy that matters of economy and efficiency supersede
the environmental and public health rights of the citizenry still leave
me unsettled and make him an unlikely nominee to lead OIRA.
Dr. Graham's writings and statements are controversial in their own
right, but they are all the more so in light of the actions the Bush
Administration has already taken with regard to protective regulations.
It began with the so-called Card memo--written by the President's Chief
of Staff, Andrew Card--which delayed a number of protective regulations
issued by the Clinton administration. The Card memo was followed by a
series of troubling
[[Page S7921]]
decisions--to reject the new standard for arsenic in drinking water; to
propose lifting the rules protecting groundwater against the threat of
toxic waste from ``hard-rock'' mining operations on public lands; to
reconsider the rules safeguarding pristine areas of our national
forests; and to weaken the energy-efficiency standard for central air
conditioners.
So his views are disconcerting. In the context of this administration
and the direction in which it has gone, they are absolutely alarming.
We have received statements from several respected organizations
opposing this nomination. I do at this time want to read a partial list
of those because they are impressive: the Wilderness Society, the
League of Conservation Voters, the Sierra Club, the National Resources
Defense Council, Public Citizen, National Environmental Trust, OMB
Watch, AFL-CIO, American Federation of State, County and Municipal
Employees, American Rivers, Center for Science and the Public Interest,
Defenders of Wildlife, Earthjustice Legal Defense Fund, Friends of the
Earth, Greenpeace, Mineral Policy Center, Physicians for Social
Responsibility, Southern Utah Wilderness Alliance, the United Auto
Workers, the United Food and Commercial Workers International Union,
The United States Public Interest Research Group.
We have received, Members of this body, letters from many of these
organizations and others urging us to oppose this nomination. We have
also received letters against the nomination from over 30 department
heads and faculty members at medical and public health schools across
the United States, from numerous other scholars in the fields of law,
economics, science, and business, and from former heads of Federal
departments and agencies that have been referred to earlier in this
debate.
I ask unanimous consent that these various letters of opposition to
Dr. Graham's nomiantion be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
OMB Watch,
Washington, DC, June 8, 2001.
U.S. Senate,
Washington, DC.
Dear Senator: We are writing to express our opposition to
President Bush's nominee to head OMB's Office of Information
and Regulatory Affairs, John Graham. We believe Dr. Graham's
track record raises serious concerns that warrant your
careful consideration. In particular:
As director of the Harvard Center for Risk Analysis, which
is heavily funded by corporate money, Dr. Graham has been a
consistent and reliable ally of almost any industry seeking
to hold off new regulation. As OIRA administrator, Dr. Graham
will sit in ultimate judgment over regulation affecting his
former allies and benefactors. This gives us great concern
that OIRA will take a much more activist role in the
rulemaking process, reminiscent of the 1980s when the office
came under heavy criticism from Congress from continually
thwarting crucial health, safety, and environmental
protections. At a minimum, this raises serious concerns about
his independence, objectivity, and neutrality in reviewing
agency rules.
In critiquing federal regulation, Dr. Graham has employed
questionable analytical methods that have the inevitable
effect of deflating benefits relative to costs. For example,
he's downplayed the health risks of diesel engines, as well
as second-hand smoke, and argued against a ban on highly
toxic pesticides (all after receiving funds from affecting
industries). As administrator of OIRA, Dr. Graham will be in
position to implement these analytical methods, which would
not bode well for health, safety, and environmental
protections.
In pushing his case for regulatory reform, Dr. Graham has
often invoked a study he conducting with one of his doctoral
students. ``[B]ased on a sample of 200 programs, by shifting
resources from wasteful programs to cost-effective programs,
we could save 60,000 more lives per year in this country at
no additional cost to the public sector or the private
sector,'' Dr. Graham told the Governmental Affairs Committee
on Sept. 12, 1997. Senators clearly took this to mean
existing regulatory programs. Yet in fact, most of the 200
``programs'' were never actually implemented, as Lisa
Heinzerling, a professor at Georgetown Law Center has
recently pointed out. This includes 79 of the 90
environmental ``regulations,'' which, not surprisingly, were
scored as outrageously expensive. Despite repeated
misrepresentations of his study by the press and members of
Congress, Dr. Graham has never bothered to correct the
record. In fact, he has perpetuated the myth by continually
using the study to criticize our real-world regulatory
system.
Dr. Graham has promoted the view that cost-benefited
analysis should be the determinative criteria in deciding
whether a rule goes forward. This position is frequently at
odds with congressional mandates that place public health
considerations as the preeminent factor in rulemaking
deliberations. For instance, Dr. Graham was recently part of
an amicus brief filed before the Supreme Court that argued
EPA should consider costs in devising clean air standards
(currently costs are considered during implementation), which
the Court unanimously rejected. We are concerned that as
regulatory gatekeeper, Dr. Graham would elevate the role of
cost-benefit analysis in ways Congress never intended.
Dr. Graham has little to no experience with information
issues, which have taken on even greater importance with the
advent of the intent. OIRA was created in 1980 by the
Paperwork Reduction Act, which gives the office chief
responsibility for overseeing information collection,
management, and dissemination. We fear that information
policy will suffer with Dr. Graham at the helm, and that he
is more likely to focus on regulatory matters--his natural
area of interest and expertise. Ironically, Congress has
never asked OIRA to review agency regulations. This power
flows from presidential executive order.
Dr. Graham's track record does not demonstrate the sort of
objectivity and dispassionate analysis that we should expect
from the next OIRA administrator. Indeed, he has demonstrated
a consistent hostility to health, safety, and environmental
protection--once telling the Heritage Foundation that
``[e]nvironmental regulation should be depicted as an
incredible intervention in the operation of society.'' Dr.
Graham's nomination threatens to bring back the days when
OIRA acted as a black hole for crucial public inspections.
Accordingly, this nomination deserves very careful scrutiny
and should be opposed.
Sincerely,
Gary D. Bass,
Executive Director.
____
Re: Oppose the nomination of Dr. John Graham to be OIRA
administrator.
July 17, 2001.
U.S. Senate,
Washington, DC.
Dear Senator, The League of Conservation Voters (LCV) is
the political voice of the national environmental community.
Each year, LCV publishes the National Environmental
Scorecard, which details the voting records of Members of
Congress on environmental legislation. The Scorecard is
distributed to LCV members, concerned voters nationwide, and
the press.
LCV opposes the nomination of Dr. John D. Graham to direct
the Office of Information and Regulatory Affairs (OIRA) in
the Office of Management and Budget. The Administrator of
OIRA plays an extremely powerful role in establishing
regulatory safeguards for every agency of our government.
This position requires a fair and even-handed judge of the
implications of regulatory policies: John Graham's record
makes him an unsuitable choice for this important position.
OIRA is the office in the Executive Office of the President
through which major federal regulations and many other
policies must pass for review before they become final. The
office has great leeway in shaping proposals it reviews or
holding them up indefinitely. One of the principal ways in
which OIRA influences rulemakings is through its use of risk
assessment and cost-benefit analysis. Graham has a
perspective on the use of risk assessment and cost-benefit
analysis that would greatly jeopardize the future of
regulatory policies meant to protect average Americans. He
advocates an analytical framework that systematically
reinforces the worst tendencies of cost-benefit analysis to
understate benefits and overstate costs. As head of OIRA, he
would be in a position to impose this approach throughout the
government.
Graham's approach has led him to challenge--either directly
or through his support of others who use the approach--some
of the most valuable environmental requirements that exist,
including regulations implementing the Clean Air Act and the
Food Quality Protection Act. He has used comparative risk
assessments to rank different kinds of risk and to argue that
society should not take actions to reduce environmental risks
as long as there are other risks that can be reduced more
cheaply. His approach makes no distinction between risks that
are assumed voluntarily and those that are imposed
involuntarily.
Graham's considerable financial support from industry
raises serious questions about potential conflicts of
interest and his ability to be truly objective. His close
ties to regulated industry will potentially offer these
entities an inside track and make it difficult for Dr. Graham
to run OIRA free of conflicts of interests and with the
public good in mind.
For these reasons, we strongly urge you to oppose the
nomination of Dr. Graham to be the Administrator of OIRA.
LCV's Political Advisory Committee will consider including
votes on these issues in compiling LCV's 2001 Scorecard. If
you need more information, please call Betsy Loyless in my
office at 202/785-8683.
Sincerely,
Deb Callahan,
President.
[[Page S7922]]
____
National Environmental Trust,
Washington, DC, May 15, 2001.
Hon. Joseph I. Lieberman,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Lieberman: I am writing on behalf of the
National Environmental Trust (NET) to urge your opposition to
the nomination of John Graham to head OMB's Office of
Information and Regulatory Affairs. As Ranking Member on the
Senate Government Affairs Committee, Mr. Graham's scheduled
to come before you at a confirmation hearing on May 16, 2001.
Mr. Graham's approach to regulation includes heavy reliance
on business friendly ``risk analysis'' and ``cost-benefit
analysis'' creating a higher barrier for agencies to overcome
in order to issue a rule other than the one which is most
``cost effective''. Furthermore, Mr. Graham is hostile to the
very idea of environmental regulation. In 1996, Graham told
political strategists at the Heritage Foundation that
``environmental regulation should be depicted as an
incredible intervention in the operation of society.'' He has
also stated that support for the regulation of chemicals in
our water supply shows the public's affliction with ``a
syndrome of paranoia and neglect.'' (``Excessive Reports of
Health Risks Examined,'' The Patriot Ledger, Nov. 28, 1996,
at 12.)
We are also greatly concerned that Mr. Graham is being
considered for this position given the Harvard Center for
Risk Analysis' record of producing reports that strongly
match the interests of those businesses and trade groups that
fund them. For instance a 1999 Risk Analysis Center report
found that banning older, highly toxic pesticides would lower
agricultural yields and result in an increase in premature
childhood deaths, because food production would be hampered.
This widely criticized report was funded by the American Farm
Bureau Federation, which opposes restrictions on pesticides.
In 1999, Mr. Graham supported the Regulatory Improvement
Act of 1999 (S. 746). The late Senator John Chafee, then
chairman of the Senate Environmental and Public Works
Committee promised to vehemently oppose this bill due to its
omnibus approach to ``regulatory reform''. Under S. 746,
regulations would have been subject to just the type of cost-
benefit analysis and risk assessments that Mr. Graham
advocates, across the board, regardless of the intent of the
proposed regulation. This bill was strongly opposed by
environmental, consumer, and labor groups.
For these reasons and more, Mr. Graham's appointment to the
Office of Information and Regulatory Affairs within OMB
represents a serious threat to public health and
environmental protections. Please oppose his nomination to
head OIRA.
Sincerely,
Philip F. Clapp,
President.
____
Natural Resources Defense Council,
Washington, DC, May 15, 2001.
Hon. Fred Thompson,
Chairman, Senate Governmental Affairs Committee,
Washington, DC.
Hon. Joseph Lieberman,
Ranking Minority Member, Senate Governmental Affairs
Committee, Washington, DC.
Dear Chairman Thompson and Ranking Minority Member
Lieberman. I am writing on behalf of the over 400,000 members
of the Natural Resources Defense Council to make clear our
strong opposition to the nomination of Dr. John D. Graham to
direct the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget. We encourage
you to very carefully consider his anti-regulatory record and
controversial risk management methodology during your
confirmation proceedings.
The Administrator of OIRA plays an extremely powerful role
in establishing regulatory safeguards for every agency of our
government. This position requires a fair and even-handed
judge of the implications of regulatory policies. Upon close
review, we believe that you will agree that John Graham's
record makes him an unsuitable choice for this important
position.
Dr. Graham possesses a decision-making framework that does
not allow for policies that protect public health and the
environment. He has consistently applied controversial
methodology based on extreme and disputable assumptions
without full consideration of benefits to public health and
the environment. Graham's record puts him squarely in
opposition to some of the most important environmental and
health achievements of the last two decades. His record of
discounting the risks of well-documented pollutants raises
questions about his ability to objectively review all
regulatory decisions from federal agencies.
Complicating matters further, John Graham and his
colleagues at the Harvard Center for Risk Analysis have been
handsomely rewarded by industry funders who oppose
regulations protective of public health and the environment
and have directly benefited from Dr. Graham's work. These
relationships form a disturbing pattern that makes it very
difficult to imagine how Dr. Graham could effectively run
this office free of conflicts of interests and with the
public view in mind.
Dr. Graham's inherently biased record clearly demonstrates
that he is not an objective analyst of regulatory policies
and would not be a proper choice for this position. We
therefore strongly urge you to oppose the nomination of Dr.
Graham to be the Administrator of OIRA.
Sincerely,
John H. Adams,
President.
____
American Federation of Labor and Congress of Industrial
Organizations,
Washington, DC, May 17, 2001.
Hon. Fred Thompson,
Chairman, Senate Committee on Governmental Affairs, Dirksen
Senate Building, Washington, DC.
Dear Mr. Chairman: I am writing to convey the opposition of
the AFL-CIO to the nomination of John D. Graham, Ph.D. to
direct the Office of Information and Regulatory Affairs
(OIRA) at the Office of Management and Budget (OMB).
As Administrator of OIRA, Dr. Graham would be the
gatekeeper for all federal regulations. In our view, Dr.
Graham, with his very strong anti-regulatory views, is simply
the wrong choice to serve in this important policy making
position.
For years as Director of the Harvard Center for Risk
Analysis, Dr. Graham has repeatedly taken the position that
cost and economic efficiency should be a more important, if
not the determinative consideration, in settling standards
and regulations. He has argued for the use of strict cost-
benefit and cost-efficiency analysis, even though for many
workplace safety and environmental regulations, such analyses
are not appropriate or possible or are explicitly prohibited
by the underlying statute. If Dr. Graham's views dictated
public policy, workplace regulations on hazards like benzene
and cotton dust would not have been issued because the
benefits of these rules are hard to quantify and are
diminished because they occur over many years. Similarly,
regulations pertaining to rare catastrophic events such as
chemical plant explosions or common sense requirements like
these for lighted exit signs couldn't pass Dr. Graham's
strict cost-benefit test.
In enacting the Occupational Safety and Health Act, the
Clean Air Act and other safety and health and environmental
laws, Congress made a clear policy choice that protection of
health and the environment was to be the paramount
consideration in setting regulations and standards. Dr.
Graham's views and opinions are directly at odds with these
policies.
We are also deeply concerned about Dr. Graham's close ties
to the regulated community. The major source of Dr. Graham's
funding at the Harvard Center for Risk Analysis has been from
companies and trade associations who have vigorously opposed
a wide range of health, safety and environmental protections.
Much of Dr. Graham's work has been requested and then relied
upon by those who seek to block necessary protections.
Given Dr. Graham's extreme views on regulatory policy and
close alliance with the regulated communities, we are deeply
concerned about his ability to provide for a fair review of
regulations that are needed to protect workers and the
public. If he is confirmed, we believe that the development
of important safeguards to protect the health and safety of
workers across the country would be impeded.
Therefore, the AFL-CIO urges you to oppose Dr. Graham's
confirmation as Administrator of the Office of Information
and Regulatory Affairs.
Sincerely,
William Samuel,
Director, Department of Legislation.
____
American Federation of State, County and Municipal
Employees, AFL-CIO,
Washington, DC, June 7, 2001.
Dear Senator: On behalf of the 1.3 million members of the
American Federation of State, County and Municipal Employees
(AFSCME), I write to express our strong opposition to the
nomination of John D. Graham, Ph.D. to serve as director of
the Office of Information and Regulatory Affairs (OIRA) at
the Office of Management and Budget (OMB).
As gatekeeper for all federal regulations, the
Administrator of OIRA has an enormous impact on the health
and safety of workers and the public. Yet Dr. Graham's record
as Director of the Harvard Center for Risk Analysis
demonstrates that he would minimize consideration of worker
and public health in evaluating rulemaking and instead rely
almost exclusively on considerations of economic efficiency.
Dr. Graham's approach to regulatory analysis frequently
ignores the benefits of federal regulation, indicating that
reviews under his leadership will lack balance. His anti-
regulatory zeal causes us to question whether he will be able
to implement regulations that reflect decisions by Congress
to establish health, safety and environmental protections. We
are also deeply concerned that Dr. Graham's extreme views and
close alliance with regulated entities will prevent the OIRA
from providing a fair review of regulations that are needed
to protect workers and the public.
For the foregoing reasons, we urge you to oppose Dr.
Graham's confirmation as Administrator of the Office of
Information and Regulatory Affairs.
Sincerely,
Charles M. Loveless,
Director of Legislation.
[[Page S7923]]
____
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America--UAW,
Washington, DC, May 11, 2001.
Hon. Fred Thompson,
Chair, Committee on Governmental Affairs,
U.S. Senate, Washington, DC
Dear Chairman Thompson: On May 17, 2001, the Committee on
Governmental Affairs is holding a hearing on the nomination
of John Graham to head the Office of Information and
Regulatory Analysis of the Office of Management and Budget.
On behalf of 1.3 million active and retired UAW members and
their families, we urge you to oppose the nomination of John
Graham. In this critical job, he would oversee the
promulgation, approval and rescission of all federal
administrative rules protecting public health, safety, and
the environment as well as those concerning economic
regulation. We believe his extreme positions on the analysis
of public health and safety regulations render him unsuited
for this job.
The UAW strongly supports Occupational Safety and Health
Administration standards to protect against workplace
hazards. We are also concerned about clean air, clean water,
toxic waste, food, drug and product safety, and consumer
protection rules. The OIRA serves as the gatekeeper for these
standards and rules as well as for government collection of
information on which to base public health protections.
The Harvard Center for Risk Analysis, which John Graham
founded, has been the academic center for the deconstruction
of our public health structure. Mr. Graham and his colleagues
have advocated the full range of obstruction of new public
protections: cost-benefit, cost-per-lives saved, comparative
risk analysis, substitution risk, and so-called ``peer
review'' which would give regulated industries a privileged
seat at the table before the public could comment on a rule.
Mr. Graham has testified before Congress in favor of imposing
such obstacles on all public health agencies and all public
health laws. His academic work is entirely in support of this
agenda as well.
It already takes decades to set a new OSHA standard. Our
members and their families need stronger public health
protections, and Mr. Graham has demonstrated his opposition
to such protections. We are concerned that, with Mr. Graham
as the head of OIRA, public health and safety regulations
will be further delayed, protections on the book now will be
jeopardized, and the interests of workers and consumers will
not be given adequate weight.
For these reasons, we urge you to vote against the
nomination of John Graham to head OIRA.
Sincerely,
Alan Reuther,
Legislative Director.
____
Public Citizen,
Washington, DC, March 13, 2001
Hon. Fred Thompson,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Shortly, the Senate will consider the
nomination of John Graham for a position as the regulatory
czar at the head of the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget (OMB).
We are writing to call your attention to the threat that
Graham's nomination poses to the environment, consumer
safety, and public health, and to urge his rejection by the
committee.
Graham's appointment to OIRA would put the fox in charge of
the henhouse. His agenda is no secret. Over the past decade,
Graham has amply demonstrated his hostility--across the
board--to the system of protective safeguards administered by
the federal regulatory agencies. In 1996, Graham told an
audience at the Heritage Foundation that ``environmental
regulation should be depicted as an incredible intervention
in the operation of society.''
Graham has repeatedly advocated for sweeping regulatory
rollback bills that would trump the statutory mandates of all
the regulatory agencies. He would also impose rigid, cost-
benefit analysis criteria well beyond that which has been
used in previous administrations, virtually guaranteeing that
many new regulations will fail to see the light of day.
Moreover, his special White House clearance procedures may
make it likely that virtually any agency response to public
health hazards, such as the Surgeon General's pronouncements
on the dangers of tobacco use, will not be made. At OMB,
Graham would undoubtedly be the new master of ``paralysis by
analysis.''
Grahm has represented himself as a neutral academic
``expert'' from the Harvard School of Public Health when
testifying before Congress and speaking on risk issues to the
media. In fact, as our investigative report indicates, his
Harvard-based Center accepts unrestricted funding from over
100 major industrial, chemical, oil and gas, mining,
pharmaceutical, food and agribusiness companies, including
Kraft, Monsanto, Exxonmobil, 3M, Alcoa, Pfizer, Dow Chemical
and DuPont.
As just one example of the connections between his funding
and his agenda, in the early 1990s Graham solicited money for
his activities from Philip Morris, while criticizing the
Environmental Protection Agency's conclusion that second-hand
smoke was a Class A carcinogen. In short, Graham has long
fostered deep roots throughout an entire network of corporate
interests that are hostile to environmental and public health
protections, who would expect to call upon his sympathy at
OIRA.
A major area of controversy between Congress and the Reagan
and Bush I administrations concerned the use of back channels
in the OIRA office by major corporations and trade
associations to delay, eviscerate or block important public
health protections that federal agencies had promulgated
following Congress' statutory authorization and open
government procedures. The head of OIRA should be an honest
broker, reviewing regulatory proposals from federal agencies
and deferring to agency expertise on most scientific and
technical matters. Inviting Graham to head that office, given
his close connections to broad sectors of the regulated
industries, would signal a return to back-door intervention
by special interests.
We urge you to read the attached report detailing Graham's
shoddy scholarship and obeisance to his corporate funders,
and to vigorously oppose his nomination to OIRA. As a start,
Congress should request full access to Graham's and the
Harvard Center for Risk Analysis' funding records and records
as to speaking and consulting fees from the industries that
he could not be charged with regulating.
Graham's confirmation would constitute a serious threat to
our tradition of reasonable and enforceable health, safety
and environmental safeguards, and should be rejected.
Sincerely,
Joan Claybrook,
President, Public Citizen.
Frank Clemente,
Director, Public Citizen, Congress Watch.
____
UFCW,
Washington, DC, June 28, 2001.
Hon. Joseph I. Lieberman,
U.S. Senate,
Washington, DC.
Dear Senator Lieberman: On behalf of the 1.4 million
members of the United Food and Commercial Workers
International Union (UFCW), I am writing to express our
opposition to President Bush's nomination of John D. Graham,
Ph.D., to head the Office of Management and Budget's Office
of Information and Regulatory Affairs (OIRA).
As Administrator of OIRA, Dr. Graham would be the
gatekeeper for all federal regulations, including those
dealing with environmental protection, workplace safety, food
and drug safety, and consumer safety. He has consistently
viewed cost-benefit analysis as the determinative criteria in
deciding whether a rule goes forward--a position that is
frequently at odds with congressional mandates that place
public health considerations as the preeminent factor in
rule-making deliberations. In addition to our concerns
regarding the fairness of Dr. Graham, we have strong concerns
about his extreme versions of regulatory reform, which the
Senate has considered but never approved and which we sought
to defeat.
Furthermore, we are also concerned with Dr. Graham's close
ties to industry. As Director of the Harvard Center for Risk
Analysis, he has received financial support from more than
100 corporations and trade associations over the last 12
years. At the same time, Dr. Graham has produced numerous
reports, given testimony, and provided media commentary that
directly benefited those who have funded the Center, which
include food processors, oil and chemical companies, and
pharmaceutical industries. In addition, many of these
companies have staunchly opposed new regulatory initiatives
and have been leading proponents of extreme regulatory
reform.
Dr. Graham's track record does not demonstrate the sort of
objectivity and dispassionate analysis that we should expect
from the next OIRA Administrator. Given his extreme views on
regulatory policy, and his close ties with the regulated
communities, we are deeply concerned about his ability to
provide for a fair review of regulations that are needed to
protect workers and the public.
For these reasons, the UFCW urges you to oppose
confirmation of John D. Graham, Ph.D., as Administrator of
the Office of Information and Regulatory Affairs.
Sincerely,
Douglas H. Dority,
International President.
____
U.S. Public Interest
Research Group,
Washington, DC, June 13, 2001.
Dear Senator: The U.S. Public Interest Research Group (U.S.
PIRG), as association of state-based organizations that are
active in over 40 states, urges that you oppose the
nomination of Dr. John Graham to the Office of Management and
Budget's Office of Information and Regulatory Affairs (OIRA),
and that you support closer scrutiny of his suitability to
lead OIRA. As Administrator of OIRA, Dr. Graham could use a
closed-door process to stop much-needed protections prior to
any public debate, and to construct regulatory procedures
that would weaken consumer, environmental or public health
protections contemplated by any federal agency.
Dr. Graham has a long history of espousing highly
controversial and academically suspect positions against
protections for consumers, public health, and the
environment. He also has a history of taking money from
[[Page S7924]]
corporations with a financial interest in the topics on which
he writes and speaks. Unfortunately, this pattern of
soliciting money from polluting corporations, taking
controversial positions that are favorable to his
benefactors, and failing to fully disclose conflict of
interests calls into question his fitness to be the
Administrator of OIRA.
Dr. Graham's positions are based on theories of risk
assessment that fall far outside of the mainstream, and in
fact, are contrary to positions taken by esteemed academics
and scientists. Widespread opposition to Dr. Graham's
nomination from well-respected professionals is indicative of
his unbalanced approach. Indeed, eleven professors from
Harvard (where Dr. Graham is employed) and 53 other academics
from law, medicine, economics, business, public health,
political science, psychology, ethics and the environmental
sciences drafted letters of opposition to Dr. Graham's
nomination. These experts all concluded that Dr. Graham is
the wrong person to supervise the nation's system of
regulatory safeguards.
Overwhelming opposition to Dr. Graham reflects deep concern
regarding his pattern of pushing controversial and
unsupported theories, combined with his failure to disclose
financial conflicts of interests. In constructing his
positions on regulatory affairs, Dr. Graham has employed
dubious methodologies and assumptions, utilized inflated
costs estimates, and failed to fully consider the benefits of
safeguards to public health, consumers and the environment.
Dr. Graham has used these tools when dealing with the media
to distort issues related to well-established dangers,
including cancer-causing chemicals (such as benzene), the
clean up of toxic waste sites (including Love Canal), and the
dangers of pesticides in food. In each instance, Mr. Graham's
public statements failed to include an admission that he was
being paid by corporate interests with a financial stake in
rulemaking related to those topics.
Widespread opposition to Dr. Graham is buttressed by the
unquestioned need for a balanced leader at OIRA. This office
is the gatekeeper of OMB's regulatory review process, and
dictates the creation and use of analytical methodologies
that other agencies must employ when developing protections
for public health, consumers, and the environment. In his
role as gatekeeper, Dr. Graham will have the ability to stop
much-needed protections before they ever see the light of
day. In his role as director of analysis, he will be able to
manipulate agency rulemakings--without Congressional approval
or adequate public discussion--by issuing new OMB policies
that force other agencies to conform to his narrow and highly
controversial philosophy. This could result in a weakening of
current protections, and a failure to create adequate future
safeguards.
OIRA needs a fair and balanced individual at its helm. A
review of Dr. Graham's record demonstrates an unmistakable
pattern of placing the profits of polluters, over protections
for public health, the environment, and consumers. In the
interests of balance and accountability, we urge you to
oppose Dr. Graham's nomination, and to support on-going
Congressional efforts to carefully scrutinize his record.
Sincerely,
Gene Karpinski,
Executive Director.
Mr. LIEBERMAN. As a Senator reviewing a President's nominee,
exercising the constitutional advice and consent responsibility we have
been given, I always try not to consider whether I would have chosen
this nominee because it is not my choice to make. However, it is my
responsibility to consider whether the nominee would appropriately
fulfill the responsibilities of this office; whether I have sufficient
confidence that the nominee would do so to vote to confirm him.
Where we are dealing, as we are here, with what I have described as
the protective role of government, where people's safety and health and
the protection of the environment is on the line, I approach my
responsibility with an extra measure of caution because the
consequences of confirming a nominee who lacks sufficient commitment to
protecting the public health and safety through protective regulations
are real and serious to our people and to our principles.
Dr. Graham, in the meetings I have had with him, appears to me to be
an honorable man. I just disagree with his record and worry he will not
adequately, if nominated, fulfill the responsibilities of this office.
So taking all of those factors into account, I have reached the
conclusion that I cannot and will not support the nomination of Dr.
Graham to be the Director of OIRA.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I had spoken to Senator Durbin and Senator
Thompson. I ask unanimous consent that all time but for 1 hour on this
nomination be yielded back and that there be, following the conclusion
of that debate, which would be evenly divided between Senator Thompson
and Senator Durbin, with Senator Thompson having the ability to make
the final speech--he is the mover in this instance--following that,
there will be 1 hour evenly divided and we will have a vote after that.
Mr. DURBIN. Reserving the right to object, if I could ask Senator
Thompson, could we agree that in the last 10 minutes before debate
closes we each have an opportunity to speak, with Senator Thompson
having the final 5 minutes?
Mr. THOMPSON. Yes. I have no objection.
The PRESIDING OFFICER. Does the Senator so modify his request?
Mr. REID. Yes.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Who yields time?
Mr. THOMPSON. Mr. President, I yield 8 minutes to the Senator from
Ohio.
Mr. VOINOVICH. Mr. President, I rise today to wholeheartedly support
the nomination of Dr. John Graham to be Administrator of the Office of
Information and Regulatory Affairs within the Office of Management and
Budget.
I view the Office of Information and Regulatory Affairs, or, OIRA, as
a key office in the Federal Government. It is charged, among other
things, with ensuring that cost-benefit analyses are completed on major
Federal rules.
Fortunately, President Bush has nominated an individual who has the
experience, the knowledge and the integrity to uphold the mission of
OIRA and who will be a first-rate Administrator.
Dr. John Graham is a tenured professor at Harvard University. He has
published widely, has managed the Harvard Center for Risk Analysis at
the Harvard School of Public Health, and is considered a world-renowned
expert in the field of risk analysis.
When I was active in the National Governors' Association, I had the
pleasure of meeting Dr. Graham and hearing his testimony about risk
assessment and cost benefit analysis. He is, by far, one of the most
qualified people ever to be nominated for this position.
As my colleagues know, I served as Governor of Ohio for 8 years. I
know what it's like to operate in an environment of scarce resources
where tough choices have to be made on resource allocation among a
state's various programs.
In many instances, new federal regulations have a habit of costing
state and local governments tremendous sums of money to implement. That
is why it is so important to have an OIRA Administrator who understands
the significance of sound regulations and the usefulness of cost-
benefit analysis when determining how federal regulations will be
applied to our state and local governments.
As one who was very involved in the development of the passage of the
Unfunded Mandates Reform Act of 1995, I believe it is important that
the OIRA Administrator work to encourage agencies to consult with State
and local governments while developing new Federal rules. OIRA is an
enforcer of UMRA and a protector of the principle of federalism.
It is important that OIRA produces accurate cost-benefit analyses for
major Federal regulations. For governments, businesses, and those
concerned with protecting the environment, accurate accounting of the
costs and benefits of Federal regulations is a critical tool in
formulating both public and private decisions.
And accurately assessing risks, costs and benefits is what John
Graham has done successfully throughout his career, and he will bring
this experience to OIRA as its Administrator.
Given his background and his years of experience, I am confident that
Dr. Graham will bring a reasoned approach to the federal regulatory
process.
Dr. Graham is widely respected and his nomination has received
support from many of his colleagues and public health officials at
Harvard, from numerous business groups, from dozens of academics, from
labor unions such as the International Brotherhood of Boilermakers and
from environmental advocates such as former Environmental Protection
Agency Administrator William Reilly.
[[Page S7925]]
Robert Litan, a Democrat who heads economic studies for the Brookings
Institution, has said that Graham ``is the most qualified person ever
nominated for the job.''
John Graham is so well-qualified for this job that the last five OIRA
administrators, Democrats and Republicans alike, wrote to the
Governmental Affairs Committee on May 3rd, saying that ``We are
confident that [John Graham] is not an `opponent' of all regulation but
rather is deeply committed to seeing that regulation serves broad
public purposes as effectively as possible.''
These five individuals know what it takes to be an effective
Administrator because they have done the job themselves. In their view,
Dr. Graham has the skills and he has the qualifications to be a
responsible steward of the public interest.
I agree with their assessment.
John Graham makes objective analyses. He throws the ball right over
the plate, contrary to what some of my colleagues have said about his
record this evening. Dr. Graham has a distinguished record. He makes
well-reasoned judgments about the use of public resources.
For example, Dr. Graham has supported additional controls on outdoor
particulate pollution while also highlighting the need to give some
priority to indoor air quality.
The American Council on Science and Health has stated that ``the
comparative risk methods that Professor Graham and his colleagues have
pioneered have been particularly useful to our organization and others
in efforts to highlight the health dangers of smoking.''
Maria New of Cornell University Medical School has stated that
``Graham has dedicated his life to pursuing cost-effective ways to save
lives (and) prevent illness. . . .''
According to Cass Sunstein, a Professor at the University of Chicago
Law School, ``. . . [Graham] is seeking to pave the way toward more
sensible regulation, not to eliminate regulation. In fact [Graham] is
an advocate of environmental protection, not an opponent of it.''
And the American Trauma Society has concluded that, ``Graham cares
about injury prevention and has made many important and significant
contributions to the field of injury control.''
Before I conclude, I would like to raise one other point about John
Graham's nomination.
There has been strong support for Dr. Graham's nomination from a
variety of sources. However, there have also been some criticism of Dr.
Graham and the Harvard Center for Risk Analysis regarding their
corporate funding. I see this criticism as totally unfounded.
While some corporate funding has been provided to the Harvard Center,
what is generally not revealed is the fact that Federal agencies also
fund Dr. Graham's work.
Moreover, John Graham and the Harvard Center for Risk Analysis have
financial disclosure policies that go beyond even that of Harvard
University.
The Harvard Center for Risk Analysis has a comprehensive disclosure
policy, with the Center's funding sources disclosed in the Center's
Annual Report and on their Web Site.
You just turn on your computer, get in their Web site, and it is all
there for everyone to see. They do not hide one thing.
If reporters, activists, or legislators want to know how the Harvard
Center is funded, the information is publicly available. It is well
known that the Harvard Center has substantial support from both private
and public sectors.
The Harvard Center also has an explicit, public conflict-of-interest
policy, and as for Dr. Graham, he has a personal policy that goes
beyond even Harvard's as he does not accept personal consulting income
from companies, trade associations, or other advocacy groups.
We should publicly thank individuals such as Dr. Graham who are
willing to serve our Nation, even when they are put through our intense
nomination process. I know this has been very hard on his family.
As my mother once said, ``This too will pass.''
I am sure my colleagues will see through the smokescreen that is
being put out here this evening by some of my colleagues.
Dr. Graham has answered his critics. It is now time for the Senate to
get on with the business of the people. It is time to confirm Dr.
Graham as the next Administrator of OIRA.
The PRESIDING OFFICER. Who yields time?
Mr. THOMPSON. Mr. President, I yield 5 minutes to the Senator from
Texas.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Mr. President, I wanted to come over and speak on this
nomination for several reasons.
One, OIRA is an office I know something about. My wife held this
position during the Reagan administration. It is a very powerful
position. It is the M in OMB. If there is one position in Government
where we want someone who understands cost-benefit analysis and who is
committed to rationality, it is at OIRA.
As I have listened to Dr. Graham's critics, it strikes me that, first
of all, there is a broad misunderstanding about what cost-benefit
analysis is. Cost-benefit analysis is not the dollars of cost versus
the dollars of benefits. Cost-benefit analysis is when you are a kid
and you climb over this wall and your momma comes out and says, Phil,
get off that wall; so you weigh, A, you are liable to get a beating if
you do not do it; B, you might fall off and break your neck; or, C,
Sally is next door and might see you on the wall and figure that you
actually are cool. And you weigh that in a rational way and decide
whether to get off the wall. That is cost-benefit analysis.
In reality, what Dr. Graham's opponents object to is rationality.
That is what they object to. If there is a garbage dump in the middle
of the desert that no one has been close to in 50 years, they object to
the fact that someone will stand up and say, ``We could probably do
more for child safety by improving traffic safety, by buying helmets
for people who ride bicycles than by going out in the desert and
digging up this garbage dump.''
They object to that statement because it is rational. And they are
not rational. They want to dig up that garbage dump not because it
makes sense in a society with limited resources, not because it is a
better use than sending kids from poor neighborhoods to Harvard
University--a better use of money than that--but it is because it is
their cause.
Let me also say there is something very wrong with the idea that
someone who takes the scientific approach is dangerous in terms of
setting public policy. It seems to me that you can agree or disagree
with the finding, but the fact that somebody tries to set out
systematically what are the benefits of an action, and what are the
costs of an action, and puts those before the public in a public
policymaking context--how can society be the loser from that? It seems
to me society must be the winner from that process.
Let me make two final points.
First of all, I take strong exception to this criticism, which I
think is totally unfair, that Dr. Graham, in his center at Harvard
University, is somehow tainted because corporate America is a supporter
of that center--along with the EPA, the National Science Foundation,
the Center for Disease Control, the Department of Agriculture, and
numerous other sources of funding. Where do you think money comes from?
Who do you think supports the great universities in America? Corporate
America supports the great universities.
I have to say, I think there is something unseemly about all these
self-appointed public interest groups. I always tell people from my
State: Anybody in Washington who claims to speak for the public
interest, other than I, be suspicious. But these self-appointed public
interest groups, where do they get their money from? They don't tell
you. You don't know where their money comes from. Harvard University
tells you, and they are corrupted. All of these self-appointed special
interest groups don't tell you where their money comes from, and they
are pure. How does that make any sense?
Finally, let me just say I have heard a lot of good speeches in this
Senate Chamber, and have heard many weak ones, and given some of them,
but I congratulate our colleague, Senator Levin. Senator Levin is one
of our smartest Members in the Senate. I
[[Page S7926]]
have often heard him make very strong statements, but I have never
heard him better than he was tonight. I think there has been no finer
debate in this Senate Chamber, certainly in this Congress, than Carl
Levin's statement tonight. It was a defense of rationality. That is
what this debate is about.
The opposition to Dr. John Graham of Harvard University is opposition
to rationality in setting public policy, because there are many people
who believe--I do not understand it, but they believe it--that there
are some areas where rationality does not apply, that rationality
should not apply in areas such as the environment and public safety. I
say they should because the world operates on fixed principles and we
need to understand it.
The PRESIDING OFFICER (Mr. Corzine). The Senator's time has expired.
Mr. GRAMM. I appreciate the Chair's indulgence.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Illinois.
Mr. DURBIN. Mr. President, I have listened very carefully to the
defenders of John Graham this evening. I listened very carefully to
Carl Levin, the Senator from Michigan. I respect him very much. It is a
rare day when Senator Carl Levin and I disagree on an important issue
such as this, but we do disagree.
Senator Levin, Senator Voinovich, Senator Gramm, and others have come
to this Chamber and have talked about the fact that when you enact a
rule or regulation in America to protect public health or the
environment or workers' safety, you should take into consideration the
cost of that rule. I do not argue with that at all. You cannot argue
with that. There has to be some rationality, as the Senator from Texas
says, between the rule and the perceived protection and result from it.
I do not quarrel with the fact that John Graham is capable of
understanding the value of a dollar. What I quarrel with is the
question of whether he is capable of understanding the value of sound
science and the value of human life. That is what this is all about.
When you make this mathematical calculation--which he makes as part of
his daily responsibilities at his center for risk studies; he can make
that mathematical calculation; I am sure he can; we can all make it--
the question is, What do you put into the calculation?
Let me give you an example. People have come to this Chamber to
defend John Graham, but very few of them have tried to defend what he
has said on the record throughout his public career.
Here he is quoted in a magazine called Priorities, in 1998:
The evidence on pesticide residues on food as a health
problem is virtually nonexistent. It's speculation.
John Graham, in 1998: Pesticides on food as a health problem is
virtually nonexistent; speculation.
We asked him the same question at the hearing. He took the same
position. He backed off a little bit, but he does not believe that
pesticides on food present a health hazard.
Let's look at the other side of the ledger. You decide whether these
people are credible people or whether, as the Senator from Texas has
suggested, they have their own special interest at stake.
Here is one. Here is a really special interest group, the National
Academy of Sciences. They released a study entitled ``Pesticides in the
Diets of Infants and Children'' in 1993. They concluded:
Changes needed to protect children from pesticides in diet.
Not John Graham, the gatekeeper for the rules of public health in
America, he doesn't see it; the National Academy of Sciences does.
Take a look at Consumers Union. I read the Consumers Union magazine.
I think it is pretty credible. And they go straight down the center
stripe. They tell you about good products and bad ones. That is why
they are credible and we buy their magazines.
In their report of February 1999 entitled ``Do You Know What You're
Eating,'' they said:
There is a 77% chance that a serving of winter squash
delivers too much of a banned pesticide to be safe for a
young child.
Well, obviously, the Consumers Union knows nothing about risk
analysis. They don't understand John Graham's idea of the world, his
scientific revolution, his paradigm.
John Graham said: Pesticides on food? Virtually nonexistent as a
health problem--not to the Consumers Union. They got specific: Winter
squash, young children, 77-percent chance that they will have a serving
of pesticide they should not have in their diet.
How can a man miss this? How can John Graham, who has spent his
professional life in this arena, miss this? This is basic. And he wants
to go to OMB and decide what the standards will be for pesticides in
food for your kids, my grandson, and children to come, for generations?
Do you wonder why I question whether this is the right man for the
job?
Here is the last group--another ``special interest'' group--the
Environmental Protection Agency. Here is what they said:
EPA's risk assessment showed that methyl parathion could
not meet the FQPA [Food Quality Protection Act] safety
standard. . . . The acute dietary risk to children age one to
six exceeded the reference dose (or amount that can be
consumed safely over a 70-year lifetime) by 880%.
Methyl parathion--this was applied to crops in the field. After we
came out with this protective legislation, they had to change its
application so it did not end up on things that children would consume.
The EPA knew it. The National Academy of Sciences knew it. The
Consumers Union knew it. But John Graham, the man who is being
considered this evening, he did not know it. So what minor job does he
want in the Bush administration? The last word at the OMB on rules and
regulations on the environment and public health and safety. That is
why I oppose his nomination.
I at this point am prepared to yield the floor to the Senator from
Massachusetts. I do not know if there will be a request at this point
from the Senator from Nevada, but I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I have spoken to Senator Thompson. The
Senator from Massachusetts wishes to speak for up to 15 minutes. The
way we have been handling this is, whatever time is used on this side
would be compensated on the other side. So I ask unanimous consent for
an additional 15 minutes for this side. And for the information of
everyone, maybe everyone will not use all the time because there are
people waiting around for the vote. But I ask unanimous consent there
be an additional 30 minutes for debate on this matter, equally divided.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Massachusetts.
Mr. KERRY. Mr. President, I thank the distinguished majority whip and
the Senator from Tennessee for his courtesy. I will try not to use all
that time. I cannot guarantee it.
I obviously rise to discuss the nomination of John Graham. Having
served now for a number of years as chairman or ranking member, in one
role or the other, of the Committee on Small Business, I have watched
firsthand and listened firsthand to the frustration of a great many
business owners dealing with Federal regulation. I think all of us have
heard these arguments at one time or another.
I have obviously also witnessed, as many of you have, how needlessly
complex and redundant regulations can stifle economic growth and
innovation and also how regulation that was designed for a large
corporate entity is often totally incompatible with small firms.
Always the intention of the underlying rule or law is sound, whether
it is protecting the environment or public health or worker safety or
consumers, but too often the implementation becomes excessive,
overzealous, onerous, restrictive and, in the end, it is harmful.
Recognizing this problem, I have supported a range of efforts to
ensure that regulations are reasonable, cost effective, market based,
and business friendly. In particular, I supported the Regulatory
Flexibility Act and the Small Business Regulatory Enforcement Fairness
Act. Since its passage, the RFA has played an increasingly important
role in protecting our Nation's small businesses from the unintended
consequences of Government regulation.
[[Page S7927]]
Additionally, with the passage of SBREFA, small businesses have been
given valuable new tools to help ensure that their special needs and
circumstances are taken into consideration. The RFA and SBREFA, if used
as intended, work to balance the very real need of our Federal agencies
to promulgate important and needed regulations with those of small
business compliance costs. They can differ substantially from those of
large business cousins.
The Small Business Administration reports that these laws I just
mentioned have saved over $20 billion in regulatory compliance costs
between 1998 and 2000 alone without sacrificing needed safeguards.
On the other side of the ledger, though, I also believe very strongly
that the Federal Government has a responsibility to protect the
environment, public health, consumers, and workers. It was 6 years ago
that I joined with others in the U.S. Senate to oppose the enactment of
a bill that was incorrectly called the Comprehensive Regulatory Reform
Act, a bill which, for many of us who looked at it closely and examined
what were good intentions, we determined would have undermined
important Federal protections.
I listened to the Senator from Texas a moment ago ask how society can
be the loser for looking at cost-benefit. I support looking at cost-
benefit. I support looking at the least-intrusive, most effective,
least-cost solution to a number of enforcement measures which we seek
to put in place.
But to answer the question of the Senator from Texas, how can society
be a loser, the answer is very simple. Society can be a loser when
people bring you a bill such as the Comprehensive Regulatory Reform Act
that pretended to do certain things but actually, both in intent and
effect, would have done an enormous amount of damage to the regulatory
scheme.
The reason society can be a loser, in answer to the question of the
Senator from Texas, is that if you apply the wrong standards, if you
apply the wrong judgments about how you make your cost analysis, you
can completely skew that analysis to obliterate the interests of
health, of the environment, of workers, and of consumers.
Some of my colleagues may have forgotten that there are people in the
Senate and the House of Representatives who voted against the Clean Air
Act, who voted against the Clean Water Act, who voted against the Safe
Drinking Water Act. There are people who have voted against almost
every single regulatory scheme that we seek to implement in the
interest of protecting clean water, clean air, hazardous waste, and a
host of others. There has long been a movement in this country by those
people who have most objected to those regulations in the first place
to create a set of criteria that empower them, under the guise of
reform, to actually be able to undermine the laws that they objected to
in the first place. That is how society can be a loser, a big loser.
In point of fact, what came to us called the Comprehensive Regulatory
Reform Act was, in fact, the planks of the Contract with America,
championed by Speaker Newt Gingrich, that began with the premise that
they wanted to undo the Clean Water Act altogether. When we looked at
this act and began to read through it very closely, we learned that
what was purported to be a straightforward attempt to streamline the
regulatory process and ensure that Federal and private dollars were
spent efficiently and to consider the costs as well as benefits of
Federal safeguards, while that may have been the stated purpose, that
would not have been the impact of that legislation.
In fact, I stood on the floor of the Senate with a group of
colleagues who defined those differences, and we stopped that
legislation. It would have upended Federal safeguards impacting clean
air, clean water, public health, workers, air travel, cars, food,
medicine, and potentially every other area regulated for the common
good.
It did this by creating a complex scheme of decisional criteria,
cost-benefit analysis, and judicial review that skewed the entire
process away from the balance that we tried to seek in the regulatory
reform that many of us have talked about.
I am in favor of regulatory reform. Do I believe there are some
stupid environmental laws that have been applied in stupid ways by
overzealous bureaucrats? The answer is yes, I do. Does it make sense to
apply exactly the same clean air standard of a large powerplant to
smaller entities, and so forth? I think most people would agree there
are ways to arrive at a judgment about cost and analysis that is fair.
In working on that legislation, I saw how the regulatory process
under the guise of regulatory reform can be weakened to the point that
the laws of the Congress that we have enacted to protect the public
would be effectively repealed. It is partly because of the work that I
did at that time that I join my colleague from Illinois and others. I
congratulate my colleague from Illinois for his steadfast effort. We
know where we are on this vote, but we also know where we are in what
is at stake.
I have serious concerns with this nomination because during that
period of time, this nominee strongly supported and helped draft the
regulation that I just described and other omnibus regulatory rollback
measures that I strongly opposed in the 104th Congress.
As Administrator, Dr. Graham will be in a position to profoundly
impact a wide range of issues and to execute administratively some of
the failed proposals that he has supported previously legislatively.
We all understand what this office is. We understand that OMB
Director Daniels has already signaled the amount of increased power
that Dr. Graham will have over his predecessor in the Clinton
administration.
Let me give an example of one of the ways this would have an
influence. The way in which these rules can be obviously skewed to
affect things is clear in the work that we have already seen of Dr.
Graham. For instance, his approach to risk assessment and cost-benefit
analysis, in my judgment, has been weighed, if you look at it
carefully, against a fair and balanced judgment of what also ought to
be measured about public health and environmental protection itself.
For instance, he focuses on the age of a person saved by a particular
safeguard. In doing so, he argues that the life of an elderly person is
inherently less valuable than that of a younger person and thus less
worthy of protection.
Now, I don't know how many Americans want to make a judgment about
their family, their grandmother, or grandfather on that basis. But if
you weight it sufficiently, you could come out with a judgment on cost
that clearly diminishes the level of protection. In addition to that,
you make a judgment that people who die in the future are deemed less
valuable than people who die in the present.
The doctor has neglected benefits from avoided injury alone, such as
the prevention after nonfetal adverse health effects or ecological
damage. These are things many of us believe ought to be weighted as a
component in the balance, and they are not. That is how you wind up
skewing the consequences.
I am not telling you that it is inherently wrong, if you want to make
a hardnosed statistical judgment, but I am saying that when the value
of life, health, and our environment are discounted too far, then even
reasonable protections don't have a prayer of passing muster under any
such analysis.
I am concerned that Dr. Graham's preferred methodology in this area,
such as comparative risk analysis, would make it extraordinarily
difficult for a new generation of safeguards to be approved under his
or anybody else's tenure.
In addition, Dr. Graham made his views known on a range of issues,
and it is apparent that if the past is a prelude to the future, he
would be hostile to a number of important public safeguards. For
example, he argued against the EPA's determination that dioxin is
linked to serious health problems--a hypothesis that EPA's Deputy
Assistant Administrator for Science called ``irresponsible and
inaccurate.'' Those are the words of the Deputy Administrator of EPA.
In 1999, Dr. Graham's center published a report funded by the
American Farm Bureau Federation that concluded that banning certain
highly toxic pesticides would actually increase the loss of life
because of disruptions to the food supply caused by a
[[Page S7928]]
shortage of pesticides to protect crops. If anybody thinks that is an
analysis on which we ought to base the denial of regulations, I would
be surprised.
However, the report also ignored readily available, safer
substitutes. Dr. Graham's center concluded that the EPA overestimated
the benefits of clean air protections because most acute air pollution
deaths occur among elderly persons with serious preexisting cardiac
respiratory disease. Under Dr. Graham's approach, the benefits would be
lowered to reflect his view that older citizens are worth less in raw
economic terms.
Dr. Graham's center issued a study funded by AT&T Wireless
Communications that argued against a ban on using cellular phones while
driving. An independent 1997 study published in the New England Journal
of Medicine found that the risk of car crashes is four times greater
when a driver uses a cell phone.
In 1995, while debating the merits of the Comprehensive Regulatory
Reform Act, I said then that I was prepared to embrace a legitimate
effort to streamline and improve the regulatory process. We worked very
hard to find a compromise to do that. I believe that with SBREFA and
other measures we have made good progress. I still believe we can make
more progress. But I am deeply concerned that the record suggests this
balance that we look for, which we want to be sensitive and fair, would
be absent with this nominee.
In closing, let me acknowledge the fact that Dr. Graham is from my
home State of Massachusetts. My office has been contacted by residents
who support and residents who oppose this nomination. I have deep
respect for many of those who took the time to discuss this with me and
my office. I am grateful for friends of mine and friends of Dr.
Graham's who have suggested that I should vote for him. I note that I
was contacted by several individuals from Harvard University, which is
home to Dr. Graham's center. I heard both points of view. I thank each
and every person who took the time to contact my office. I intend to
cast my vote absolutely not on personal terms at all but exclusively on
the experience I had with the Comprehensive Regulatory Reform Act and
based on what I believe is an already-declared intention and a declared
willingness of this administration to disregard important safeguards
with respect to the environment.
I would like to see a nominee who has a record of a more clear
balance, if you will, in the application of those laws. I thank the
Chair for the time, and I thank my colleagues.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Illinois.
Mr. DURBIN. Mr. President, how much time remains on both sides?
The PRESIDING OFFICER. The Senator from Illinois controls 25 minutes.
The Senator from Tennessee has 31 minutes.
Mr. DURBIN. I say to the Senator from Tennessee, I don't know if a UC
is necessary, but I would be prepared to reduce the amount of remaining
time if he will join me. I suggest--and he can amend it if he would
like--that we ask unanimous consent that we each have 10 minutes and I
am given 5 minutes to close and you are given 5 minutes to close.
Unless you have other speakers, I would like to make that request.
Mr. THOMPSON. Reserving the right to object, I ask my friend, are you
suggesting a total of 15 minutes on each side?
Mr. DURBIN. Yes.
Mr. THOMPSON. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, as I understand it, if we can keep to the
time we have agreed to, in about a half hour we should reach a vote. I
also thank my colleague from Massachusetts, Senator Kerry, for joining
me in opposing this nomination.
I will tell you about dioxin. I am not a scientist, and I don't
pretend to be. I am a liberal arts lawyer who has practiced politics
and political science for a long time. But let me tell you what I have
learned about dioxin.
Dioxin is a highly toxic and deadly chemical. According to the
National Toxicology Program at the National Institutes of Health,
dioxin is the ``most toxic manmade chemical known.'' It is not just
very toxic--extremely toxic--it is the most toxic chemical human beings
know how to create. It is not manufactured deliberately. There are no
commercial uses for it. It is a waste product, a contaminant, the most
deadly manmade toxic chemical in existence. And astonishingly, small
amounts of dioxin can kill people and animals.
One of the insidious features of dioxin is your body accumulates it,
and over time it can reach a toxic level. The World Health Organization
and the NIH brand it as a ``human carcinogen.'' If a man came before us
and asked to be in charge of the OMB, which rules on safety for the
public health and environmental standards of chemicals and pesticides
and residues, you would think there would be no doubt in his mind about
the danger of dioxin. There doesn't seem to be a doubt in the minds of
any credible scientist.
John Graham, the man we are considering this evening, not only
doesn't question the toxicity of dioxin; he actually thinks it has
medicinal qualities. Let me read what John Graham, the nominee before
us this evening, has said about dioxin, the most dangerous chemical
created by the human race known today:
It's possible that measures to reduce current average body
burdens of dioxin further could actually do more harm for
public health than good.
That is interesting. Then he goes on to say:
I think there would be also merit in stating not only that
TCDD (dioxin) is a carcinogen, but also I would put it in the
category of a likely anti-carcinogen.
Where did he say that? Was that a casual statement that someone
picked up on a tape recorder? No. It was a statement to the EPA Science
Advisory Board on November 1 and 2 of the year 2000. John Graham,
gatekeeper, rules and regulations, protecting American families from
health risks--he thinks dioxin, the most dangerous chemical known to
man, a known carcinogen, actually stops cancer.
Let's see what others have said.
The National Institutes of Health: ``Dioxin is a known human
carcinogen.''
EPA: ``The range for cancer risk indicates about a ten-fold higher
chance than estimated in EPA's earlier assessment, in terms of the
damage and danger.''
EPA: ``The promulgation of this theory--
They are referring to the statement by Mr., Dr., Professor John
Graham.
``The promulgation of this theory that dioxin is an anti-carcinogen
hypothesis is irresponsible and inaccurate.''
That John Graham, whom President Bush's wants to put in a position to
judge questions of public health and safety, who has said on the record
and he acknowledges he is not a chemist, not a biologist, he is not a
toxicologist, not a medical doctor, could stand before the EPA's
Science Advisory Board and tell them dioxin could stop cancer is almost
incredible. It is incredible he would be nominated for this job after
he said it. That is what we face this evening.
People have come before us and said it is all about measuring the
dollar value of rules and regulations with the risk involved. Let me
repeat, I do not quarrel with that premise, but I do believe the person
making the measurement should be engaged in sound science, and in this
situation we have a man with advanced degrees in public policy who goes
around telling us that dioxin, the most dangerous chemical created on
the Earth, can cure cancer.
I do not know how we can really look at that statement and this
nomination and ignore the simple fact. Why would he say things such as
that? Because he has made his life work representing corporate
interests, industries, and manufacturers who want to reduce the
standards when it comes to environmental protection. He has been in
States such as Louisiana, Alabama, and Maine testifying on behalf of
one of his major clients, the paper industry--which, incidentally,
discharges dioxin from paper mills--saying you should not be that
concerned about dioxin. He is a chorus of one in that belief.
Thank goodness the State of Maine rejected his point of view and said
that they would have zero tolerance for dioxin, despite John Graham's
arguments to the contrary.
In his testimony for these companies, Graham stated:
[[Page S7929]]
Based on a comparison of breast cancer screening programs
and other cancer prevention programs, dioxin standards
``would be a poor investment in cancer prevention.''
That is what it comes down to. He does not want to get into this
argument on the merits of dioxin, and cancer, other than these few
outrageous statements. He says there is a better way to spend the
dollars. In Maine and other States they were trying to decide what is a
safe amount of dioxin that we might release in streams that may
accumulate in the fish or the children who eat the fish or the people
who drink the water. He could find a way out for his corporate clients.
Thank goodness the State of Maine rejected his point of view. The New
York Times said it came out with the toughest standards in the Nation
when it came to protecting the people of Maine from dioxin
contamination.
The same man who said pesticides on fruits and vegetables were not a
public health hazard, the same man who finds in dioxin some medical
merit, wants to now be the last word in Washington on rules and
regulations on safety and public health.
Excuse me; I think President Bush can do better; I think America can
do better, better than this man.
A lot of people have talked about the endorsements he received. No
doubt he has. We received a letter originally sent to Senator Thompson
on May 17, 2001, from those who are members of the faculty who work
with John Graham and know of him at Harvard University, and others who
have worked with him in the past. This group which signed the letter
includes Dr. Chivian, director of the Center for Health and the Global
Environment at Harvard Medical School, who shared the 1985 Nobel Peace
Prize, and the list goes on and on, from Johns Hopkins to the
University of Pittsburgh School of Medicine, dean of the School of
Public Health at UCLA. What do they have to say about John Graham?
It is a cardinal rule of scientific research to avoid at
all costs any conflict of interest that could influence
the objectivity of one's findings. This rule takes on
added significance in the context of biomedical and public
health research, for peoples' lives are at stake.
For more than a decade, John Graham, Director of the Center
for Risk Analysis at the Harvard School of Public Health and
candidate for position of Director of the Office of
Information and Regulatory Affairs at the Office of
Management and Budget, has repeatedly violated this rule.
Time and again, Professor Graham has accepted money from
industries while conducting research and policy studies on
public health regulations in which those same industries had
substantial vested interests. Not surprisingly, he has
consistently produced reports, submitted testimony to the
Congress, and made statements to the media that have
supported industry positions, frequently without disclosing
the sources of his funding.
They give some examples:
Soliciting money from Philip Morris while criticizing the EPA's risk
assessment on the dangers of secondhand smoke;
Greatly overestimating the costs of preventing leukemia caused by
exposure to benzene in gasoline while accepting funds from the American
Petroleum Institute;
Downplaying EPA's warnings about cancer risk from dioxin exposure
while being supported by several major dioxin producers, including
incinerator, pulp, and paper companies;
While simultaneously talking on cell phones in research underwritten
by a $300,000 grant by AT&T Wireless communications.
Major spokesman before Congress on behalf of industries' ``regulatory
reform'' agenda, while being supported by large grants of unrestricted
funds from chemical, petroleum, timber, tobacco, automobile--
automobile--electric power, mining, pharmaceutical, and manufacturing
industries.
They continue:
We, the undersigned, faculty members at schools of medicine
and public health across the United States, go to great pains
to avoid criticizing a colleague in public. Indeed, in most
circumstances we would rejoice over the nomination of a
fellow public health professional for a senior position. . .
. Yet, in examining the record of John Graham, we are forced
to conclude there is such a persistent pattern of conflict of
interest, of obscuring and minimizing dangers to human health
with questionable cost-benefit analyses, and of hostility to
governmental regulation in general that he should not be
confirmed for the job. . . .
The PRESIDING OFFICER (Mr. Dorgan). The Chair advises the Senator
from Illinois he has 5 minutes remaining.
The Chair recognizes the Senator from Tennessee.
Mr. THOMPSON. I thank the Chair.
Mr. President, in listening to the criticism of Dr. Graham and the
implicit suggestion that he is a little less than a menace to society
and that his opinions are for sale, my first reaction is that it is a
very bad reflection on Harvard University that has let this kind of
individual roam the streets for the last 15 years. They obviously are
not aware of what he is doing.
It makes me wonder also why a professor at the University of Chicago
Law School would say ``in emphasizing that environmental protection
sometimes involves large expenditures for small gains, Graham is
seeking to pave the way with more sensible regulation.''
I wonder, in listening to why former EPA Administrator Mr. Reilly
would say: Graham would help ensure the rules implementing our
environmental laws are as effective and efficient as they can be in
achieving their objectives.
I am wondering in light of this man's ridiculous notions concerning
scientific matters, matters of chemistry, for example, which we
acknowledge we do not know anything about--we are not experts--we
criticize him for not being an expert in his area; we criticize this
Ph.D. scientist from Harvard for not knowing his subject matter, then
we launch into a rendition of his deficiencies for his scientific
analysis.
Mr. President, we are wading in way over our heads in criticizing Dr.
Graham for his scientific analysis based upon excerpts, based upon
false characterizations, based upon unfair characterizations of what he
has said and what he has done, and we will deal with some of those.
Again, I wonder if there is any semblance of truth of this man who
has headed up the Harvard Center for Risk Analysis, who has been
associated with Harvard for 15 years, who has received the endorsements
of Democrats and Republicans alike, who has received the endorsements
of the last two people who served in this position, who are from the
Clinton administration, who has received endorsements from some of the
foremost authorities in the areas involved, who has received
endorsements from noted scientists from around the country, and I
wonder why the dean of academic affairs for the Harvard School of
Public Health would say that Dr. Graham is an excellent scientist who
has encouraged rationality in the regulatory process.
I wonder why a professor at Rollins School of Public Health would
say: Often these public health issues are approached in a partisan way,
but Dr. Graham is dedicated to using careful analysis to weigh the
costs and benefits, et cetera. Dr. Hemmingway, director of Harvard
Injury Control Research Center: Dr. Graham's interest is in improving
the Nation's health in the most cost-effective manner.
I am wondering how all these people could be so wrong. You are going
to find people who disagree with anybody, and I respect that people
have differences of opinion. I wish it were sufficient to argue on the
basis of those differences of opinion, on the basis of the science that
is involved to the extent that we can, as nonscientists, but instead of
doing that, what we are being introduced to here is an unfair
rendition, what I would call basically a know-nothing kind of approach
to a very complex series of scientific decisions with which we are
dealing, and placing an unfair characterization on them.
I guess the one dealt with the most is dioxin. We would be led to
believe that Dr. Graham's statements with regard to dioxin are
outrageous. Why? Not because of any scientific knowledge we have or
that has been presented on the floor of the Senate but because
everybody knows dioxin is a bad thing. If he says any amount of it is
not carcinogenic, he must not know what he was talking about.
I was looking at the testimony that Dr. Graham gave before our
committee. He was asked by Senator Durbin:
Do you believe that exposure to dioxin can increase your
likelihood of cancer?
Mr. Graham: Thank you for reminding me. I think that at
high doses in laboratory animals, there is clear evidence
that dioxin causes cancer.
Then he says:
[[Page S7930]]
In humans, I think the database is more mixed and difficult
to interpret.
With regard to the low levels of dioxin not being carcinogenic, I
refer to the Science Advisory Board. Their conclusion is as follows:
There is some evidence that very low doses of dioxin may result in
decreases in some adverse responses, including cancer, but can produce
other adverse effects at the same or similar doses.
The Science Advisory Board panel recommends that the totality of
evidence concerning this phenomenon continues to be evaluated by the
agencies as studies become available.
This consensus conclusion by the panel is almost exactly in accord
with Mr. Graham's stated position at the public meeting: the other
adverse effects at the very low doses we are talking about are
noncancerous. He is trying to be a responsible scientist.
By placing so much emphasis on the low doses, we, because of the
cancer issue, are missing the boat on the noncancer problems that
dioxin causes. I don't have enough time to go into all of the detail on
this, but I think we can see how unfair the characterization has been
with regard to this complicated issue. We have a counterintuitive
situation that Senator Levin pointed out with regard to thalidomide.
Who would think doctors today would prescribe thalidomide under certain
circumstances?
At a Governmental Affairs Committee hearing a couple of days ago, a
couple of scientists attending from the National Academy of Sciences
had just done a study on global warming. They pointed out certain
aerosols released into the atmosphere, which we all know is a bad
thing, can actually have a cooling effect in the atmosphere. We are all
concerned about global warming, and this has a cooling effect. Does
this mean we need to release a lot of additional aerosol? Of course
not. It does not mean that. It is a scientific fact that needs to be
taken into consideration.
I am sure, somewhere, if ever nominated for office, their opponents
will take that statement from our hearings yesterday saying that these
idiots believe we ought to be releasing aerosols in the atmosphere
because it can have a cooling effect. I hope that does not happen.
Unfortunately, it is sometimes the cost of public service today.
It is pointed out this man is anti-EPA and that some official
somewhere at some time in the EPA has disagreed with his assessment.
EPA partially funded this man's education. EPA contracts with him to do
work, as we speak--not since he has been nominated. The center at
Harvard has been hired by EPA to do work.
I should rest my case at that point. Of course, we never do when we
should, so I will continue that fine tradition. I do have another point
to make, in all seriousness, that is what this is about, which is Dr.
Graham has been caught up in the debate over cost-benefit analysis.
There are certain people in this country--I am sure their intentions
are noble--who band together, who believe all regulations are good by
definition; that there should be no questions asked about those
regulations; that we should not take into account possible costs to
society, whether they be tangible costs in dollars and cents or
intangible costs; should not take into account whether resources could
be better used for more significant environmental problems; should not
take into account unintended consequences or any of those things; and
that no one should ever bring up anything that challenges the common
wisdom with regard to these issues, and we should only listen to
sciences and promote the regulations.
When times like this come about, they band together and pull excerpts
together to try to defeat people who want to bring rationality to the
regulatory process.
I think they harm sensible, reasonable legislation, where moderate,
reasonable people certainly want to protect us, protect this country,
and protect our citizens, but, at the same time, know we are not doing
our citizens any favor if we are using our resources in a way not most
productive.
For example, it is proven we have been spending money on regulations
pertaining to water, when the real risk was not being addressed. Some
of the money should have been placed elsewhere in our water program.
How much time remains?
The PRESIDING OFFICER. Four minutes.
Mr. THOMPSON. I think that is what has happened. It has to be
recognized we make the cost-benefit tradeoffs all the time. If we
really wanted to save lives at the exclusion of consideration of cost
to society, we would take all the automobiles off the streets and not
allow anybody to drive. We know the examples, I am sure, all of us, by
heart. Or we would make people drive around in tanks instead of
automobiles.
There are tradeoffs we have to make. They need to be done in the full
context of the political discourse by responsible people with proven
records. I suggest that is the nominee we have before the Senate.
I yield the floor.
Mrs. CARNAHAN. Mr. President, the Administrator of the Office of
Information and Regulatory Affairs, OIRA, within the Office of
Management and Budget has the important duty of reviewing the
regulations issued by all Executive Branch agencies. These regulations
are critical to environmental protections, worker safety, public
health, and a host of other issues. I have carefully reviewed the
credentials of Dr. John Graham for this position and his testimony
before the Governmental Affairs Committee. I support Dr. Graham's
nomination to be the Administrator of OIRA.
Dr. Graham brings a wealth of experience and expertise to this
position, including the use of cost-benefit analysis as a tool in
evaluating regulations. As my colleagues know, the Clinton
administration issued an Executive Order requiring the use of cost-
benefit analysis to inform regulatory decision-making. I have no
objections to the use of cost-benefit analysis as long as it is not
carried too far. After all, we should not implement regulations if the
costs of compliance grossly exceed the benefits the regulation would
produce. It is appropriate for cost-benefit analysis to be one factor,
but not the exclusive factor, in making regulatory decisions. Dr.
Graham's testimony indicates that he shares this approach.
While I may not agree with Dr. Graham's application of cost-benefit
analysis in every instance, I believe that President Bush is entitled,
within the bounds of reason, to have someone in this position that
shares his approach to governing. In my view, Dr. Graham falls within
this criteria.
Mr. SMITH of New Hampshire. Mr. President, I rise in support of the
confirmation of John D. Graham to be Administrator of the Office of
Information and Regulatory Affairs.
Dr. Graham has been a Professor of Policy & Decision Sciences at the
Harvard School of Public Health since 1991, and is the Director of the
Harvard Center for Risk Analysis. Prior to that, he was an assistant
professor and then associate professor at Harvard. Graham holds a B.A.
in Economics and Politics from Wake Forest University, an M.A. in
Public Affairs from Duke University, and a Ph.D. in Urban and Public
Affairs from Carnegie-Mellon University where he was an assistant
professor for the 1984-1985 academic year. Given OIRA responsibility's
for ensuring that government regulations are drafted in a manner that
reduces risk without unnecessary costs, Dr. Graham's qualifications to
head the agency are unquestionable.
Since his nomination, he has come under fire for his work at the
Harvard Center for Risk Analysis. Some who have opposed Dr. Graham have
charged that he and the Center have a pro-business bias. Typically,
those same people who oppose Dr. Graham, also oppose the use of
comparative risk as one of many tools to be used in determining
environmental policy. That is unfortunate, because the use of science
and cost/benefit analysis is vital if we are to adequately focus
resources on our most challenging environmental concerns.
I believe risk analysis and comparative risks give us much needed
information to better understand the potential consequences and
benefits of a range of choices. We all recognize that there aren't
enough resources available to address every environmental threat. The
Federal Government, States, local communities, the private sector, and
even environmental organizations all have to target their limited
resources on the environmental problems that present the greatest
threat to human
[[Page S7931]]
health and the environment. Our focus, therefore, is, and should be, on
getting the biggest bang for the limited bucks.
Comparative risk is the tool that enables us to prioritize the risks
to human health and the environment and target our limited resources on
the greatest risks. It provides the structure for decision-makers to:
One, identify environmental hazards; two, determine whether there are
risks posed to humans or the environment; and three, characterize and
rank those risks. Risk managers can then use that analysis to achieve
greater environmental benefits.
Last year, as the Chairman of the Environment & Public Works
Committee, I held a hearing on the role of comparative risk in setting
our policy priorities. During that hearing, we heard how many states
and local governments are already using comparative risk assessments in
a public and open process that allows cooperation, instead of
confrontation, and encourages dialogue, instead of mandates. States are
setting priorities, developing partnerships, and achieving real results
by using comparative risk as a management tool. They are using good
science to maximize environmental benefits with limited resources. I
believe we should encourage and promote these successful programs.
It is important that this nation have someone like Dr. Graham to lead
the OIRA. We must use reliable scientific analysis to guide us in our
decision making process when it comes to environmental regulations. Dr.
Graham's resume and record proves that he is the optimal person to head
the office that will be making many of those decisions. Every person,
Republican and Democrat, who has held the position of OIRA
Administrator, except for two who are now federal judges and prohibited
from doing so, have urged Senate action on his behalf. They state in a
letter to the Committee Chairman and Ranking Member that, ``we are
confident that [Dr. Graham] is not an `opponent' of all regulation but
rather is deeply committed to seeing that regulation serves broad
public purposes as effectively as possible.''
I am a strong proponent of protecting and preserving our
environment--my record proves that fact. I am also a strong believer
that we must use sound science, comparative risk analysis and cost/
benefit in making environmental decisions. Science, not politics,
should be our guide. We must focus our efforts in a manner that assures
the maximum amount of environmental protection given the resources
available. Scientific analysis allows us to make good decisions and
determine where to focus our resources to ensure that our health and a
clean environment are never compromised.
Mr. President, I urge my colleagues to support John Graham for
Administrator of the Office of Information and Regulatory Affairs.
Mr. FEINGOLD. Mr. President, today the Senate will vote to confirm
John Graham to be the head of the Office of Information and Regulatory
Affairs at the Office of Management and Budget. Though I will vote for
Mr. Graham, much of the information that has been presented during the
nominations process to the Governmental Affairs Committee by labor,
environmental and public health organizations and other respected
academics creates concerns regarding this nominee and I want to share
my views on the concerns that have been raised.
The individual charged with the responsibility to head OIRA will
indirectly set the direction of our national policies for our natural
resources, labor and safety standards. I have tried, as a member of
this body, to cast votes and offer legislation that fully reflects the
importance and lasting legacy of America's regulatory decisions. I also
have another tradition to defend and uphold. I have committed myself to
a constructive role in the Senate's duty to provide advice and consent
with respect to the President's nominees for Cabinet positions. I
believe that the President should be entitled to appoint his own
advisors. I have evaluated Presidential nominees with the view that,
except in rare of cases, ideology alone should not be a sufficient
basis to reject a Cabinet nominee. Mr. Graham is not a nominee for a
Cabinet post. The Office of Management and Budget, OMB, is housed
within the Executive Office of the President, making Mr. Graham one of
the President's closest advisors. I believe that the President should
be accorded great deference by the Senate on the appointment of this
advisor.
During the nominations process, I have been disturbed to learn of the
fears that Mr. Graham will not live up to his responsibility to fully
implement regulatory protections. I am particularly troubled by
concerns that he may allow special interests greater access to OMB, and
therefore greater influence in OMB's deliberations. The concerns that
have been raised are that Mr. Graham will allow special interests
another opportunity to plead their case during final OMB review of
regulations and may permit changes to be made to regulatory proposals
that those interests were unable to obtain on the merits when the
regulations were developed and reviewed by the federal agency that
issued them. I also have been concerned about allegations that Mr.
Graham's background might cloud his judgement and objectivity on a
number of regulatory issues and place him at odds with millions of
Americans including members of the labor, public interest and
conservation community and with this Senator.
During the 1980s, OIRA came under heavy criticism for the way in
which it conducted reviews of agency rules. The public was concerned
that agency rules would go to OIRA for review and sometimes languish
there--for years in some cases--with little explanation to the public.
Rather than a filter for regulation, it became a graveyard.
Shortly after taking office, President Clinton responded to this
problem by issuing Executive Order 12866. This order set up new
guidelines for transparency--building on a June 1986 memorandum by
former OIRA Administrator Wendy Gramm--that have helped bring
accountability to OIRA.
With my vote for this nominee, I am calling for a commitment from
him. I believe that it is essential that he maintain this transparency,
and even strengthen it, in this Administration. Mr. Graham, having been
the center of a controversial nominations proceeding, should be the
first to call for letting sunshine disinfect OIRA under his watch.
At his confirmation hearing before the Senate Governmental Affairs
Committee, the new OMB Director Mitch Daniels expressed general support
for transparency and accountability, but refused to endorse
specifically key elements of President Clinton's executive order. At
that time, Mr. Daniels would only commit to work with the Committee
should the Administration decide to alter Executive Order 12866.
Now that President Bush has nominated John Graham as administrator of
OIRA, and he is being confirmed today, this Senate must receive more
specific assurances regarding transparency and accountability. OIRA is
an extremely powerful office that has the power to approve or reject
agency regulations. This makes it critical that OIRA's decision-making
be open to public scrutiny. I agree strongly with the sentiments
expressed in today's Washington Post editorial:
. . . conflicts of interest must be taken seriously if
there is to be any chance of building support for more
systematic cost-benefit efforts. At a minimum, the experts
who carry out these analyses need to disclose their financial
interests (as Mr. Graham's center did), and analysts with
industry ties should not dominate government advisory panels.
There may be room for dispute as to what constitutes `ties'--
should an academic who accepted a consultancy fee 10 years
ago be viewed as an industry expert?--but conflict-of-
interest rules should err on the strict side.
The Post editorial continues,
Mr. Graham's acceptance of industry money opened him to
opportunistic attacks from those who favor regulation almost
regardless of its price. The lesson is that those who would
impose rigor on government must observe rigorous standards
themselves. Even apparent conflicts of interest can harm the
credibility of the cost-benefit analyses that Mr. Graham
champions.
In the days following his confirmation, Mr. Graham should
aggressively affirm OIRA's public disclosure policies and make clear
the office's continued commitment to transparency. Executive Order
12866 requires that OIRA maintain a publicly available log containing
the status of all regulatory actions, including a notation as to
whether Vice Presidential and Presidential consideration was requested,
a notation of all written communications between OIRA and outside
parties, and the dates and names of individuals involved in all
substantive oral
[[Page S7932]]
communications between OIRA and outside parties. Moreover, once a
regulatory action has been published or rejected, OIRA must make
publicly available all documents exchanged between OIRA and the issuing
agency during the review process. Mr. Graham must continue this
disclosure policy, and he should expand it to make the information more
widely accessible, and make the logs available through the Internet.
Executive Order 12866 gives OMB 90 days to review rules. OMB may
extend the review one time only for 30 days upon the written approval
of the OMB Director and upon the request of the agency head. Mr. Graham
should make clear that OIRA will stick to this time frame for reviews.
Moreover, OMB has invested in making this 90 day clock an action that
can be tracked by the public, which must continue. Currently, the OMB
web site documents when a rule is sent to OIRA, the time it took to act
on the rule, and the OMB disposition. Mr. Graham has the ability to
improve the public's access to this information by making the web site
searchable by agency, rule, and date, rather than posting the
information in simple tabular form.
Executive Order 12866 requires OMB to provide a written explanation
for all regulations that are returned to the agency, ``setting forth
the pertinent provision of the Executive Order on which OIRA is
relying.'' OIRA must continue to provide written justification for
returned rules, and Mr. Graham should consider expanding this policy to
require written justification for any modifications that are made to a
rule.
Mr. Graham must take particular care in the area of communications
with outside interests and set the tone for OIRA staff actions in this
regard. Executive Order 12866 directs that only the administrator of
OIRA can receive oral communications from those outside government on
regulatory reviews. Mr. Graham should continue this standard and be
stringent that this standard be employed for all personnel working in
OIRA. Present policy directs OIRA to forward an issuing agency all
written communications between OIRA and outside parties, as well as
``the dates and names of individuals involved in all substantive oral
communications.'' Moreover, affected agencies are also to be invited to
any meetings with outside parties and OIRA. These are important
procedures that protect the integrity of our regulatory system.
Beyond this, however, Mr. Graham should rigorously guard against
contacts that present the appearance of a conflict of interest. He is
entering into a position that will, in many ways, act as judge and jury
for the fate of proposed regulations. He should, like those arbiters,
guard carefully his objectivity and his appearance of objectivity.
I have reviewed these procedural issues because they are critical to
maintaining public confidence in OIRA's functioning. I hope that Mr.
Graham will be mindful of my concerns, and that he will embrace his
duty to take into account the future and forseeable consequences of his
actions. I also hope that he will be guided by the knowledge that this
Senator will scrutinize those consequences, and will look very
carefully at the question of special interest access to OMB at every
appropriate time.
Ms. COLLINS. Mr. President, I support the nomination of Dr. John
Graham to be Administrator of the Office of Information and Regulatory
Analysis at the Office of Management and the Budget. Dr. Graham has
been a leader in the nonpartisan application of analytical tools to
regulations in order to ensure that such rules really do what
policymakers intend and that they represent the most effective use of
our Government's limited resources.
As a professor at the Harvard School of Public Health and founder of
the Harvard Center for Risk Analysis, Dr. Graham has devoted his life
to seeing that regulations are well crafted and effective--and that
they help ensure that our world is truly a safer and cleaner place.
The alleged ``conflicts of interest'' argued by some of Dr. Graham's
opponents are clearly baseless. The Harvard Center has some of the
strictest conflict of interest rules in academia, and Dr. Graham has
complied fully with them. It is absurd to suggest that the bare fact of
corporate research sponsorship creates a conflict. By that standard,
most of the studies produced in America's universities and colleges are
worthless, and few academics can ever again be found suitable for
public office. Dr. Graham's critics miss their mark.
I have had the opportunity to receive input from many knowledgeable
sources about Dr. Graham's nomination. One of these is Maine State
Toxicologist Andrew Smith. Dr. Smith studied with Dr. Graham at
Harvard, and subsequently served as a staff scientist at an
organization opposed to the Graham nomination. He has told us, however,
that Dr. Graham approaches regulatory analysis with an open mind and is
``by no means an apologist for anti-regulation.'' Even a quick glance
at Dr. Graham's record bears this out.
Like other members of the Governmental Affairs Committee, I do not
need to rely solely on second-hand information about Dr. Graham. I
myself was able to work with Dr. Graham on regulatory reform
legislation that had strong bi-partisan support. My personal experience
in working with him confirms that what his supporters say is true: he
has the experience, integrity, and intelligence to be an excellent
Administrator the Office of Information and Regulatory Analysis has
ever had.
Mr. President, the Senate should vote to confirm John Graham.
Mr. REID. Mr. President, I rise today to express my strong concerns
regarding the President's nominee to head the Office of Information and
Regulatory Affairs at the Office of Management and Budget--John Graham.
This office oversees the development of all Federal regulations. The
person who leads it holds the power to affect a broad array of public
health, worker safety and environmental protections.
While John Graham has impressive professional credentials, his body
of work raises serious questions concerning his ability to assume the
impartial posture this job demands.
To do it, this nominee would be required to put aside his passionate
and long-standing opposition to public health, worker safety and
environmental protections.
As any of us who have felt passionately about an issue know, this is
often difficult--if not impossible--to do.
It might be like asking me to argue against nuclear safety controls
and protections. I can tell you I couldn't do it.
And my concern today is that John Graham will not be able to put
aside his passionate and long-held views opposing those protections.
As some of my colleagues have outlined, the nominee has argued in his
writings that certain regulations are not cost-effective and don't
protect the public from real risks.
He makes that judgment based upon radical assumptions about what a
human life is worth--assumptions that fail to account for the benefits
of regulation. His assumptions are well outside of the mainstream.
The nominee concludes that those who fail to reallocate government
resources to other more cost-effective actions are, in his words,
guilty of ``statistical murder.''
And who did John Graham find to be guilty of statistical murder--
opponents of Yucca Mountain.
This is what the nominee had to say about it:
The misperception of where the real risks are in this
country is one of the major causes of what I call statistical
murder. . . . We're paranoid about . . . nuclear waste sites
in Nevada, and that preoccupation diverts attention from real
killers.
Can Nevadans rely upon John Graham to impartially weigh decisions
regarding Yucca Mountain when he views their concerns as ``paranoid''
and considers measures to address those concerns through public health
protections as equivalent to murder?
And the nominee's strong views aren't limited to Yucca Mountain.
He holds strong views in opposition to many other public health,
environmental and worker safety protections broadly supported by my
colleagues and the American people--from reducing dioxin levels to
protecting children from toxic pesticides.
My concerns about those views are also informed by the context in
which we weigh his nomination today.
[[Page S7933]]
Beginning with the Card Memorandum issued the day after President
Bush's inauguration--which placed important public health, worker
safety and environmental protections on hold--we have seen one
important public protection after another eroded.
By sending up a nominee who has dedicated the better part of his
career to fighting those broadly supported protections, the President
sends an unfortunate signal that the public health and environmental
rollback is not at an end.
Mr. DASCHLE. Mr. President, I am voting today against the nomination
of Dr. John Graham to head the Office of Information and Regulatory
Affairs, OIRA, at the Office of Management and Budget.
I do not take this action lightly. I respect the tradition that
deference should be given to a President's nominations for posts within
an administration. Nevertheless, it is the role of the Senate to
provide advice and consent to the President, and I take this
responsibility seriously as well.
OIRA is a little known department that has some of the most sweeping
authority in the Federal Government. It is the gatekeeper for all new
regulations, guiding how they are developed and whether they are
approved. Its actions affect the life of every American, everyday.
The director of this office must have unquestioned objectivity, good
judgement and a willingness to ensure that the laws of the Nation are
carried out fairly and fully. I regret to say that Dr. Graham's record
has led me to conclude that he cannot meet these high standards.
Dr. Graham currently heads the Harvard Center for Risk Analysis, and
in this capacity he has produced numerous studies analyzing the costs
and benefits of Federal regulations. These studies raise serious and
troubling questions about the way in which Dr. Graham would carry out
his duties.
First and foremost, I am concerned that Dr. Graham has consistently
ignored his own conflicts-of-interest in the studies he has conducted,
and that he had not demonstrated an ability to review proposed
regulations in an evenhanded manner. Time after time, he has conducted
studies of regulations affecting the very industries providing him with
financial support. Virtually without fail, his conclusions support the
regulated industry.
Dr. Graham downplayed the risks of second-hand smoke while soliciting
money from Philip-Morris. He overestimated the cost of preventing
leukemia caused by exposure to benzene in gasoline while accepting
funds from the American Petroleum Institute. He even downplayed the
cancer risk from dioxin exposure while being supported by several major
dioxin producers.
This last item is perhaps the most troubling of all. Virtually since
entering Congress, I have fought on behalf of the victims of Agent
Orange who have suffered from cancer and other terrible illnesses due
to their exposure to dioxin. There is absolutely no question that this
chemical is a known carcinogen with many devastating health effects.
Yet remarkably, with funding from several dioxin producers, Dr. Graham
suggested that exposure to dioxin could actually protect against
cancer.
I also question the analytical methods Dr. Graham uses in his
studies. He contends that the cost of regulations should be the primary
factor we consider, instead of the benefits they provide for health or
safety. This position is totally inconsistent with many of our basic
health, workplace safety and environmental laws. After all, we may be
able to calculate the value of putting a scrubber on a smokestack, but
how do you assign a value to a child not getting asthma? We can
calculate the value of making industries treat their waste water, but
what is the value of having lakes and streams in which we can swim and
fish?
If Dr. Graham brings this way of thinking to OIRA, I can only
conclude that it will lead to a profound weakening of the laws and
regulations that keep food safe, and our air and water clean. As over
two dozen of Dr. Graham's colleagues in the public health community
wrote, ``We are forced to conclude that there is such a persistent
pattern of conflict of interest, of obscuring and minimizing dangers to
human health with questionable cost-benefit analyses, and of hostility
to governmental regulation in general that [Dr. Graham] should not be
confirmed for the job of Director of the Office of Information and
Regulatory Affairs.''
Mr. DURBIN. It is my understanding I have 5 minutes remaining.
The PRESIDING OFFICER. That is correct.
Mr. DURBIN. Mr. President, of all the people who live in America who
might have been considered for this position, I find it curious this
man, John Graham, is the choice of President Bush to head up a
sensitive office, this office which literally will make a decision on
rules and regulations which will have an impact on families not only
today but for generations to come.
During the course of this debate, we have come to the floor and
spelled out how Mr. John Graham has been more than just a person making
a mathematical calculation about the cost of a regulation and whether
it is warranted. He has held himself out to have scientific knowledge
about things that are, frankly, way beyond his education. He is a
person who has written in one of his books with the forward by Cass
Sunstein, who has been quoted at length on the floor here supporting
Mr. Graham, that he thinks in comparison to today's fertilizers, DDT is
relatively nontoxic.
Of course, that is a view that has been rejected not only by the
World Health Organization but by 90 nations, and banned with only two
nations in the world making DDT.
For John Graham, there is doubt. He sees no health hazard on
pesticides for fruit and vegetables, but the National Academy of
Sciences, the National Institutes of Health, Consumers Union, and
others say he is just plain wrong.
We have heard and read his statements on dioxin, which the Senator
from Tennessee has valiantly tried to reconstruct here so they do not
sound quite as bad, but it is the most dangerous toxic chemical known
to man, and John Graham, the putative nominee here, thinks it has
medicinal qualities. He is alone in that thinking. The EPA said his
statement was irresponsible and inaccurate. They read it, too. He did
not have his defense team at work there. They just read it and said
from a scientific viewpoint it was indefensible.
What is this all about? What is the bottom line? Why is this man
being nominated? Don't take my word for it. Go to the industry sources
that watch these things like a hawk: the Plastic News, the newsletter
of the plastic industry in America, May 7, 2001, about Mr. Graham:
He could lend some clout to plastics in his new job. The
job sounds boring and inside the beltway, but the office can
yield tremendous behind-the-scenes power. It acts as a
gatekeeper of Federal regulations ranging from air quality to
ergonomics. It has the power to review them and block those
if it chooses to. The Harvard Center for Risk Analysis, which
Graham founded and directed until Bush nominated him, gets a
significant part of its $3 million annual budget from
plastics and chemical companies. The Center's donor list
reads like a who's who of the chemical industry.
And they go on to list some of the sponsors of Dr. Graham's
institute.
Graham is well thought of by the plastics industry. A person from the
industry said the Bush administration intends to make this office more
important than it was in the Clinton administration, elevating it to
its intended status.
They have a big stick. If the President in office allows them to use
it and if they have someone in office who knows how to use it. How
would they possibly use it?
Do you remember arsenic in drinking water, how the administration
scrambled away from it as soon as they announced it, and the American
people looked at it in horror and disgust, that they would increase the
tolerance levels of arsenic in drinking water? During the course of the
Governmental Affairs hearing, we asked Dr. Graham, who tells us all
about DDT and pesticides and dioxin, what he thought about arsenic. He
said he didn't have an opinion.
Let me give you a direct quote. I want the Record to be complete on
exactly what he said here. I asked him:
You have no opinion on whether arsenic is a dangerous
chemical?
Professor Graham replied:
[[Page S7934]]
I haven't had any experience dealing with the arsenic
issue, neither the scientific level nor the cost-
effectiveness level of control.
You have an open mind, my friend. Give him this job and he will have
an open mind about arsenic in drinking water. He has an open mind about
pesticides on fruits and vegetables. He has an open mind about dioxin
and its medicinal purposes. He has an open mind about the future of DDT
in comparison with other chemicals. And this is the man we want to put
in control, the gatekeeper on rules and regulations about public health
and safety and the environment?
That is why I have risen this evening to oppose this nomination. I
thank my colleagues and all those who participated in this debate. I
appreciate their patience. I know we have gone on for some time, but
this much I will tell you. If Mr. Graham is confirmed, and it is likely
he will be, he can rest assured that many of us in this Senate will be
watching his office with renewed vigilance. To put this man in charge
of this responsibility requires all of us who care about public health
and safety and environmental protection to stay up late at night and
read every word, to watch what is going on.
We don't need any more arsenic in drinking water regulations. We
don't need to move away from environmental protection. We don't need to
second-guess the medical experts on the dangers of pesticide residues
on fruits and vegetables and the danger of dioxin. We need sound
science and objectivity, and, sadly, John Graham cannot bring them to
this position, and that is why I will vote no on his confirmation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee has 3 minutes.
Mr. THOMPSON. Mr. President, let's listen to the scientists on the
Science Advisory Board to which the Senator referred.
Dr. Dennis Passionback:
I think John's point [meaning John Graham] is what you
thought his point was, Mort, and that is in several studies
and hypotheses over the years that there are some hormonic
beneficial effects associated with dioxin and related
chemicals for certain disease influences. Of course that is
at very low dose of course.
These are scientists. It is easy for the rhetoric to get out of hand
here, and I want to try to do my part to not engage in escalating, but
I find some of the statements attributed to this man amazing. I think
our colleagues know better. I think the letters of endorsement and the
public endorsements belie this. I think the reflection on Harvard
University is unfair. It is not uncommon for centers doing work similar
to Harvard's center to receive 40 to 60 percent of their funding from
the private sector.
I think what we have here is just a back and forth with regard to a
man whose opponents are desperately trying to undermine this
nomination. I think we have here a question concerning public service
and whether or not we are going to get decent people to come into these
thankless jobs to do them if we are going to see the confluence of
scientific work on the one hand and the political process on the other
produce such an ugly result.
I think we need to ask ourselves that question. I think we need to
ask ourselves also whether or not we want to have these decisions based
upon sound scientific analysis, one that is endorsed by all of the
people who endorsed Dr. Graham, and say that analysis, that sound
analysis that will work to our benefit.
I have a chart of all the areas where lead and gasoline, sludge,
drinking water--where Dr. Richard Morganstern, economic analyst at the
EPA, has shown where cost-benefit analysis, the kind that Dr. Graham
proposes, has been beneficial both from a cost standpoint and
increasing benefits. Let's not get into an anti-intellectual no-nothing
kind of mode here and try to label these fine scientists and this fine
institution with labels that do not fit and are not deserved.
I sincerely hope my colleagues will vote for this nomination.
Mr. REID. Is all time yielded back?
The PRESIDING OFFICER (Mr. Bayh). All time has expired.
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