Rethinking regulatory reform: Toxics, politics, and ethics

Yale Law Journal

Volumn 105, Issue 7, 1996, Pages 1891-1925

  Michaelson, Jay ^a  

^a NONE

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EID: 0002281368     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797236     Document Type: Article

References (236)

1. See GUIDO CALABRESI, THE COSTS OF ACCIDENTS 17-18 (1970).
2. GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 184-89 (1978).
3. Id. at 17-18.
4. "Toxics," referring to toxins proper and any other poisonous or carcinogenic substance, seems to have joined the lexicon of grammatically incorrect bureaucratic shorthand in use in the environmental community, and I have reluctantly gone along with the usage in this Note.
5. Although the distinction between what is "ethical" and what is "political" is hardly a clear one, I will treat the former term as referring to categorical choices regarding the just treatment of persons, the latter as referring to the exercise and legitimation of the state's power to make them. Obviously, the two subjects are intimately linked (and, if "might makes right," they are identical), but it is still useful to distinguish between "ethical" decisions, which express or determine social norms themselves, and "political" ones, which apply, defend, ignore, or undermine those norms in the state's exercise of power.
6. H.R. 9, 104th Cong., 1st Sess. § 7004(c)(11) (1995) [hereinafter H.R. 9.]; see infra Part II.
7. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
8. Rachel Carson's landmark book, hailed as the beginning of the modern environmental movement, was about the toxic pesticide DDT. See RACHEL CARSON, SILENT SPRING (1962).
9. For overviews of the Love Canal crisis, see ADELINE GORDON LEVINE, LOVE CANAL: SCIENCE, POLITICS, AND PEOPLE (1982);
10. Lois R. Ember, Love Canal: Uncertain Science, Politics, and Law, in RISK IN THE TECHNOLOGICAL SOCIETY 77 (Cristoph Hohenemser & Jeanne X. Kasperson eds., 1982).
11. Overregulation of "pineapple pesticide," dibromochloropropane, was the subject of repeated congressional ridicule in the heady "first 100 days" of the Republican-controlled House of Representatives, until it was discovered that the known carcinogen was used on 40 crops until 1979 and has been found in drinking water in 19 states. John H. Cushman, Jr., Tales from the 104th Congress: Watch Out, or the Regulators Will Get You!, N.Y. TIMES, Feb. 28, 1995, at A20.
12. See, e.g., STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993);
13. KATHRYN HARRISON & GEORGE HOBERG, RISK, SCIENCE AND POLITICS 7 (1994) (attributing distinction between the two to William Lowrance);
14. NATIONAL ACADEMY OF PUB. ADMIN., SETTING PRIORITIES, GETTING RESULTS: A NEW DIRECTION FOR THE ENVIRONMENTAL PROTECTION AGENCY 49-50 (1995) [hereinafter NAPA];
15. Howard Latin, Good Science, Bad Regulation, and Toxic Risk Assessment, 5 YALE J. ON REG. 89, 89 (1988);
16. Milton Russell & Michael Gruber, Risk Assessment in Environmental Policy-Making, 236 SCIENCE 286 (1987).
17. For noncentralized approaches to toxics regulation, see David Roe, An Incentive-Conscious Approach to Toxic Chemical Controls, ECON. DEV. Q., Aug. 1989, at 179 (discussing market-based toxics regulation in California's Proposition 65);
18. Richard B. Stewart, Environmental Regulation and International Competitiveness, 102 YALE L.J. 2039, 2093-97 (1993) (advocating market-based environmental regulation).
19. But see William F. Pederson, Jr., The Limits of Market-Based Approaches to Environmental Protection, 24 ENVTL. L. REP. 10,173 (1994).
20. The Toxic Substances Control Act (TSCA), for example, requires EPA to determine whether a substance poses an "unreasonable risk of injury to health or the environment." 15 U.S.C. § 2603 (1994). As discussed infra, EPA has historically tended to conflate "reasonable" and "de minimis."
21. Such amounts include a risk level randomly selected by the best available control technology. See infra Subsection I.A.2.
22. The four steps of Quantitative Risk Assessment are hazard assessment, dose-response assessment, exposure assessment, and risk characterization. BREYER, supra note 11, at 9; NAPA, supra note 11, at 37.
23. TSCA § 2 requires EPA to consider "the environmental, economic, and social impact of any action the Administrator takes or proposes to take under this chapter." 15 U.S.C. § 260 1(c) (1994).
24. One of the areas of toxics regulation where explicit levels of acceptable risk are central to the process is that of toxic waste cleanups and similar remediation activities. I have omitted such activities from this discussion because they are special cases, distinguishable from ordinary toxics regulation in at least four ways. First, the rules of the allocation game can and should vary with the site-specific contingencies involved. Second, unlike most toxics regulation, the persons facing remediation costs are often not those who produced the harm. Third, substitution risks in remediation cases are extraordinarily high (for example, complying with an overly strict standard may bankrupt a small business). And finally, remediations address a toxic harm that is already present; they are less about allocating a new harm than about mitigating an existing environmental condition.
25. Compared with risk assessment and management, what I am calling "risk determination" has received only sparse discussion in the literature. For a thorough compilation of risk determinations, see Joseph V. Rodricks et al., Significant Risk Decisions in Federal Regulatory Agencies, 7 REG. TOXICOLOGY & PHARMACOLOGY 307 (1987).
26. See also Gary E. Marchant & Dawn P. Danzeisen, Note, "Acceptable" Risk for Hazardous Air Pollutants, 13 HARV. ENVTL. L. REV. 535 (1989);
27. Alon Rosenthal et al., Legislating Acceptable Cancer Risk from Exposure to Toxic Chemicals, 19 ECOLOGY L.Q. 269 (1990).
28. See John S. Applegate, Worst Things First: Risk, Information, and Regulatory Structure in Toxic Substances Control, 9 YALE J. ON REG. 277, 306-09 (1992). Applegate lists six nonzero risk standards: de minimis, unreasonable, near-unreasonable, lowest-feasible, cost-effective, and cost-benefit justified. This system seems unnecessarily complex. "Cost effective" means only that cost is taken into account in considering means to reach an end; this is a factor in risk management, not risk determination. And the near-unreasonableness standard is a matter of risk assessment, not risk determination; it refers to that level of pollutant at which the determined risk could be expected to appear within the exposed population.
29. See 33 U.S.C. § 1317(a)(1) (1994) (Clean Water Act (CWA)); 42 U.S.C. § 7412(b)(1) (1994) (Clean Air Act (CAA)).
30. See 29 U.S.C. § 655(a) (1994) (Occupational Safety and Health Act); 42 U.S.C. § 7412(b)(2) (1994) (CAA list revisions); 42 U.S.C. § 11002(a)(2) (1994) (Right-to-Know Act).
31. See 7 U.S.C. § 136a(b) (1994) (Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)); 15 U.S.C. § 2602(2) (1994) (TSCA).
32. See NATIONAL RESEARCH COUNCIL, RISK ASSESSMENT IN THE FEDERAL GOVERNMENT: MANAGING THE PROCESS 9-82 (1983) (National Academy of Sciences study listing 25 components in carcinogenic hazard identification).
33. In fiscal year 1993, 6166 out of 7595 risk assessments were of this type, NAPA, supra note 11, at 37, belying the claim that the full risk assessment process burdens every new chemical.
34. FDA Proposed Rule to Regulate Tobacco Sales to Minors, 60 Fed. Reg. 41,314, 41,316 (1995) (proposed Aug. 9, 1995). Industry reaction was predictable. See Glenn Collins, Teen-agers and Tobacco: The Reaction; Companies Sue to Prevent Control of Cigarette Sales, N.Y. TIMES, Aug. 11, 1995, at A18. Tobacco is expressly excluded from the "organic or inorganic" substances regulated by TSCA. 15 U.S.C. § 2602(2)(B)(iii) (1994).
35. For its part, EPA has occasionally refused to list hazardous materials rather than be forced to implement strict regulations of them. See John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 258-60 (1990).
36. This is perhaps an understatement. Though hundreds of substances have been "identified" and listed as toxins, only 17 are actually regulated under TSCA. Roe, supra note 12, at 181.
37. Cf. WILLIAM W. LOWRANCE, OF ACCEPTABLE RISK: SCIENCE AND THE DETERMINATION OF SAFETY 8 (1976) ("A thing is safe if its risks are judged to be acceptable."). Lowrance later describes several guides to acceptability, including reasonableness, custom, and necessity. Id. at 79-84. Of course, regulating under statutes that explicitly set levels of acceptable risk does not involve such EPA effort. See, e.g., 42 U.S.C. § 7412(c)(9)(B)(i) (1994) (1990 CAA Amendments); NAPA, supra note 11, at 186 (differentiating between explicit and "narrative" requirements).
38. See Applegate, supra note 19, at 306 (discussing preliminary risk assessments that "narrow the range" for risk determination).
39. EPA historically has not adopted the fourth risk determination level mentioned above - a nonzero "reasonable" one. But see infra Section II.B, discussing proposals to set risk levels based on economic efficiency.
40. 21 U.S.C. § 348(c)(3)(A) (1994) (clause of Food, Drug, and Cosmetic Act).
41. See, e.g., Margaret Gilhooley, Plain Meaning, Absurd Results and the Legislative Purpose: The Interpretation of the Delaney Clause, 40 ADMIN. L. REV. 267 (1988);
42. Richard A. Merrill, FDA's Implementation of the Delaney Clause: Repudiation of Congressional Choice or Reasoned Adaptation to Scientific Progress?, 5 YALE J. ON REG. 1, 1 (1988).
43. The Delaney Clause has been threatened continually with repeal, most recently by the present Congress. Marian Burros, Congress Moving to Revamp Rules on Food Safety, N.Y. TIMES, July 3, 1995, at 1.
44. 448 U.S. 607 (1980) (Benzene).
45. 29 U.S.C. § 651 (1994).
46. Benzene, 448 U.S. at 613. As discussed infra, this approach is less a decided zero standard than an undecided, technologically determined nonzero standard (the "lottery of science"). The Court's subsequent analysis, however, treated it as a zero standard.
47. There were five separate opinions: the plurality of four represented by Justice Stevens, concurrences with different rationales by Chief Justice Burger and Justices Rehnquist and Powell, and an angry dissent by Justice Marshall accusing the court of Lochnerizing, see id. at 723-24 (Marshall, J., dissenting).
48. Id. at 642; cf. Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 361 (D.C. Cir. 1989) (holding that minimizing health risks does not require levels of "no threat to health").
49. Benzene, 448 U.S. at 642. Interestingly, the plurality further justified its decision by noting that "the segment of the petroleum refining industry that produces benzene would be required to incur $24 million in capital costs and $600,000 in first-year operating expenses to provide additional protection for 300 workers ($82,000 per employee)," id. at 629, suggesting that some price for life may be too high. But see BREYER, supra note 11, at 15 (listing EPA benzene regulations at cost of $180 million to save single statistical life).
50. The case of Natural Resources Defense Council v. EPA, 824 F.2d 1146 (D.C. Cir. 1987), which similarly rejected the zero standard, is discussed in the next section.
51. Nor are bans themselves free of risk; they may carry high "substitution risks" and are as much a risk tradeoff as any other regulatory option. See Daniel C. Esty, What's the Risk in Risk?, 13 YALE J. ON REG. (forthcoming Spring 1996) (book review) (arguing that "there is no escaping risk analysis").
52. See CALABRESI & BOBBITT, supra note 2, at 41 (characterizing random, lottery-style allocations of scarce resources such as kidney machines as "choices not to choose"). Though Calabresi and Bobbitt never discuss environmental regulations as a form of lottery, the typology of the allocation process is remarkably similar to the phenomena they describe.
53. Obviously, BAT approaches do not apply to toxics such as food additives or pesticides, and are confined to situations where a toxin is in the environment but people may be protected from it to one degree or another.
54. 448 U.S. 607, 642 (1980).
55. 824 F.2d 1146 (D.C. Cir. 1987) (Vinyl Chloride). The statute under which the case was litigated was the TSCA, discussed supra note 13.
56. Vinyl Chloride, 824 F.2d at 1153 (quoting Benzene, 448 U.S. at 642).
57. Id. at 1164-65.
58. -5 is close enough), it need not do so, depending on the regulatory tools available and their respective costs.
59. Responding to Vinyl Chloride, EPA proposed four possible definitions of "acceptable" risk, which are still being considered. See Marchant & Danziesen, supra note 18.
60. But see infra Part II (describing proposals to deem any economically efficient risk to be acceptable).
61. -4); Rosenthal et al., supra note 18, at 321 (charting acceptable risk levels and methodologies).
62. -6 to be acceptable. Id. at 306.
63. -4 risk level).
64. See BREYER, supra note 11, at 6; Chauncey Starr & Chris Whipple, Risks of Risk Decisions, in RISK IN THE TECHNOLOGICAL SOCIETY, supra note 9, at 217, 227-29 (arguing that perception of extremely small probabilities is psychologically equivalent to zero risk).
65. U.S. BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS, at P25-1095 (1992).
66. The risk equals the chances of death, resulting from, for example, eating 40 tablespoons of peanut butter (cancer), living two days in New York (lung cancer from air pollution), drinking half a liter of wine (cirrhosis of the liver), and living 150 years within 20 miles of a nuclear power plant (radiation poisoning). Cristoph Hohenemser & Jeanne X. Kasperson, Overview: Towards Determining Acceptable Risk, in RISK IN THE TECHNOLOGICAL SOCIETY, supra note 9, at 191, 191-92.
67. See. e.g., Frank B. Cross, The Public Role in Risk Control, 24 ENVTL. L. 887 (1994) (examining differences between public perception and scientific calculation of risk);
68. Paul Slovic, Perception of Risk, 236 SCIENCE 280, 283 (1987) (correlating risk aversion with "unknowability" and "dread" of risk).
69. Which may, of course, be what many of today's "reformers" truly intend to bring about.
70. ENVIRONMENTAL PROTECTION AGENCY, REDUCING RISK: SETTING PRIORITIES AND STRATEGIES FOR ENVIRONMENTAL PROTECTION 13-14 (1990) [hereinafter EPA]. EPA's high-risk items are (to the environment) habitat destruction, biodiversity loss, ozone depletion, and climate change and (to human health) ambient air pollutants, worker exposure to chemicals, indoor pollution, and drinking water pollution.
71. When used to set the level of risk, risk comparison conflates public and private choice, assuming that a risk personally assented to by one person may necessarily be forced upon another. See infra text accompanying notes 147-55.
72. See Joel Yellin, Science, Technology, and Administrative Government: Institutional Designs for Environmental Decisionmaking, 92 YALE L.J. 1300 (1983) (tracing separation to New Deal scientific "experts" making value-free estimates).
73. See Barry Commoner, The Hazards of Risk Assessment, 14 COLUM. J. ENVTL. L. 365 (1989) (noting that risk assessments are sometimes tailored to fit risk management choice of technology).
74. The superficial nature of the scientific narrative of risk assessment has recently been observed by Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613 (1995). Wagner paints a convincing portrait of science as a mere game played intentionally or unintentionally by bureaucrats, and alleges several ill effects of this masquerade, from transaction costs to obfuscation and delay. As discussed infra, however, the "science charade" plays a significant role in basing risk allocation on defensible social norms.
75. Even when economics has become intertwined with the determination of acceptable risk, it has so far done so only in the abstract. That is, courts have required "some balancing" or "some consideration" of costs, but have, as yet, never required measured benefits to exceed measured costs to industry. See, e.g., Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1215-19 (5th Cir. 1991) (holding that asbestos regulations under TSCA should "take account" of costs). But see Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1164-65 (D.C. Cir. 1987) (Vinyl Chloride) (holding that cost should play no role in setting acceptable risk under Clean Air Act).
76. Charles H. Ris & Peter W. Preuss, Risk Assessment and Risk Management: A Process, in RISK ASSESSMENT AND RISK MANAGEMENT OF INDUSTRIAL AND ENVIRONMENTAL CHEMICALS 2 (C. Richard Cothern et al. eds., 1988) [hereinafter RISK ASSESSMENT AND RISK MANAGEMENT];
77. see also Interim Procedures and Guidelines for Health Risk and Economic Impact Assessments of Suspected Carcinogens, 41 Fed. Reg. 21,402 (1976).
78. EPA has tended to label chemicals as "known human carcinogen," "probable carcinogen," "possible carcinogen," "unknown," or "not carcinogenic." EPA Guidelines for Carcinogen Risk Assessment, 51 Fed. Reg. 33,992, 34,003 (1986).
79. Constructive analyses and reforms have included those by BREYER, supra note 11; NAPA, supra note 11; and Rosenthal et al., supra note 18. This Note does not purport to add to the many practical analyses of risk assessment as a scientific form.
80. The range of uncertainty regarding the risk to a population's health posed by trichloroethylene in drinking water, for example, is six orders of magnitude - a factor of one million. C. Richard Cothern, Uncertainties in Quantitative Risk Assessments - Two Examples: Trichloroethylene and Radon in Drinking Water, in RISK ASSESSMENT AND RISK MANAGEMENT, supra note 64, at 159, 159.
81. For a list of 21 uncertainties in risk assessment, see W. Gary Flamm & Ronald J. Lorentzen, Quantitative Risk Assessment: A Special Problem in the Approval of New Products, in RISK ASSESSMENT AND RISK MANAGEMENT, supra note 64, at 91, 99.
82. See David W. Gaylor, Quantitative Risk Estimation, in RISK ASSESSMENT AND RISK MANAGEMENT, supra note 64, at 23, 37-38 (surveying studies of reliability of animal carcinogenicity tests across laboratory species);
83. see also GREGG EASTERBROOK, A MOMENT ON THE EARTH 240-44 (1995) (criticizing animal tests for carcinogens);
84. Joel Brinkley, Animal Tests as Risk Clues: The Best Data May Fall Short, N.Y. TIMES, Mar. 23, 1993, at A1.
85. See NAPA, supra note 11, at 40; Ronald E. Wyzga, The Role of Epidemiology in Risk Assessments of Carcinogens, in RISK ASSESSMENT AND RISK MANAGEMENT, supra note 64, at 189, 189-208.
86. -6 cancer risk).
87. See BREYER, supra note 11, at 42-45; EASTERBROOK, supra note 69, at 242 (mocking "peanut butter logic" of maximum tolerated dose testing). Not everyone believes that EPA is too conservative in its risk assessment, however. See HARRISON & HOBERG, supra note 11, at 28-29 (finding EPA less protective than its Canadian counterpart); Adam M. Finkel, Has Risk Assessment Become too "Conservative"?, 96 RESOURCES 11 (1989) (answer: no);
88. Sonia L. Nazario, EPA Under Fire for Pesticide Standards, WALL ST. J., Feb. 17, 1989, at B1 (citing EPA testing model based on consumption of only 7.5 ounces of cantaloupe, mushrooms, and zucchini a year).
89. Howard Latin, Good Science, Bad Regulation, and Toxic Risk Assessment, 5 YALE J. ON REG. 89, 91-95 (1988); Wagner, supra note 62, at 1673-88 (noting adverse consequences of use of science in toxics regulation).
90. Latin, supra note 73, at 126-30; see also Wagner, supra note 62, at 1674 (arguing that use of science to set standards prevents democratic participation).
91. Roe, supra note 12, at 181; Wagner, supra note 62, at 1678.
92. See Roe, supra note 12, at 181 (advocating creation of system of incentives for industry to set "bright line" de minimis levels).
93. Recent defenses of the use of science in EPA risk allocation have been put forward by Applegate, supra note 19, at 352-53 (defending use of scientific estimates in setting priorities); Finkel, supra note 72, at 12-13 (defending existing risk analysis methods and data); Russell & Gruber, supra note 11, at 287 (noting that uncertainty can be incorporated into policy decisions); Esty, supra note 40 (arguing that scientific risk analysis brings "analytic rigor to environmental decisionmaking").
94. See. e.g., NATIONAL RESEARCH COUNCIL, SCIENCE AND JUDGMENT IN RISK ASSESSMENT 79-269 (1994) (National Academy of Sciences detailed proposed reforms of EPA's scientific methodology).
95. See Yellin, supra note 60. The principle of science grounding ethically troubling regulation has found favor in past legislation. See K.S. SHRADER-FRECHETTE, RISK ANALYSIS AND SCIENTIFIC METHOD 5 (1985) (discussing Risk Analysis Research and Demonstration Act of 1992).
96. For an illuminating treatment of America's love affair with new chemicals and its "pesticide subgovemment," see Angus A. MacIntyre, Why Pesticides Received Extensive Use in America: A Political Economy of Agricultural Pest Management to 1970, 27 NAT. RESOURCES J. 533 (1987).
97. See CALABRESI & BOBBITT, supra note 2, at 26 (analyzing how societies dodge value-laden questions).
98. William Ruckelshaus, Speech to the National Academy of Sciences, quoted in Ris & Preuss, supra note 64, at 2.
99. The term had its genesis in the early 1980s, with its first documented use being in a National Academy of Sciences report entitled "Risk Assessment in the Federal Government: Managing the Process." Ris & Preuss, supra note 64, at 2.
100. See 15 U.S.C. § 2604(e) (1994).
101. See id. § 2605 (a)(1), (3), (4).
102. See id. § 2605 (d)(2)(B).
103. Id. § 2605 (c)(1)(A)-(D). While some have characterized TSCA as requiring risk-benefit calculation, see, e.g., Rosenthal et al., supra note 18, at 306-09, the statute's requirements are quite removed from the strict language of true cost-benefit analysis. Under TSCA, EPA must only "consider and publish a statement with respect to" the economic consequences of the rule, 15 U.S.C. § 2605(c)(1)(D) (1994), not certify that these "costs" are outweighed by the "benefits" of saving a determined number of lives. This seemingly small difference is all the difference in the world; it distinguishes simply taking economics into account from a rigorous pricing of lives on the basis of economic facts. Saying that TSCA requires risk-benefit balancing is thus somewhat misleading.
104. See BREYER, supra note 11, at 24-27. Breyer's well-known chart of risk and cost effectiveness of federal regulations yields a range from $200,000 per life saved for EPA's trihalomethane drinking water standards to over $92 billion per life saved for EPA's atrazine/alachlor drinking water standard.
105. See EPA, supra note 58, at 15, 20 (seeking to attack high-priority problems such as global warming and biodiversity loss rather than relatively low-risk toxic hazards). While this approach has become dominant in policy circles, some have suggested that a rigorous economic prioritizing erodes the position of democratic government in framing questions of public value by supplanting the decisionmaking capacity of democratically elected representative bodies with a preset order of priorities. See Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562, 627 (1992);
106. Joel A. Mintz, Economic Reform of Environmental Protection: A Brief Comment on a Recent Debate, 15 HARV. ENVTL. L. REV. 149, 160 (1991). But see Esty, supra note 40 (arguing that some prioritizing is unavoidable).
107. See BREYER, supra note 11, at 59-61; NAPA, supra note 11, at 137. While these approaches have gained considerable favor in academic circles, it is also true that situational analyses are often critical to effective risk management. We may want some unevenness across categories of regulation, depending on the relative costs, benefits, and externalities involved.
108. See EASTERBROOK, supra note 69, at 649. Unfortunately, many of the factual premises upon which Easterbrook's tome is based have been shown to be incorrect. Steven Schneider, Remarks at Ecorealism: Towards the Next Generation of Environmental Policy, Yale Law School (Apr. 8, 1995); ENVIRONMENTAL DEFENSE FUND, A MOMENT OF TRUTH: CORRECTING THE SCIENTIFIC ERRORS IN GREGG EASTERBROOK'S A MOMENT ON THE EARTH, PART 1 (1995).
109. The Amendment was to S. 171, 103d Cong., 1st Sess. (1993), the bill elevating EPA to cabinet status, and passed the Senate 95-3 on April 29, 1993. The bill ultimately failed in Congress. See NAPA, supra note 11, at 56-57.
110. Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (1993).
111. S. 171, 103d Cong., 1st. Sess. (1993) (Johnston amendment) (emphasis added). The language of the Johnston amendment was incorporated wholesale into H.R. 9, see infra text accompanying note 135, but notably without the caveat that if EPA cannot make the certification required, it may "report to Congress that such certification cannot be made." See NAPA, supra note 11, at 56.
112. Exec. Order No. 12,866,58 Fed. Reg. 51,735 (1993). Both costs and benefits are defined far more broadly, and with no requirement of quantification, in the Clinton executive order than in the Johnston amendment, or H.R. 9, which copies it.
113. Recent regulatory reform initiatives have likewise explicitly included costs borne by "the private sector" in EPA cost-benefit analyses. H.R. 9, supra note 6, § 3201(c)(1).
114. The term "merely" should not mislead. Courts have invalidated EPA regulations under TSCA because they were not adequately compared to regulatory alternatives, as required by the statute. See TSCA § 6(a), 15 U.S.C. § 2618(c)(1)(B)(i) (1994); Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991) (holding that ignoring cost of regulations and failing to consider alternatives invalidates asbestos ban). Dicta in Corrosion Proof Fittings suggests that cost should have figured into EPA's risk determination of "reasonableness" as well, though the court limited itself to requiring EPA to take cost into some account, noting that EPA's estimate of $23 million per one-third of a life rendered TSCA's required economic review "meaningless." 947 F.2d at 1223.
115. Of course, the risks associated with some toxics are well publicized. See BREYER, supra note 11, at 48-49 (discussing media coverage of pesticide EDB); EASTERBROOK, supra note 69, at 249 (recalling Alar scare of 1990). Indeed, some have alleged that toxics are too much on Americans' minds. See MARY DOUGLAS & AARON WILDAVSKY, RISK AND CULTURE 52-57 (1982); EASTERBROOK, supra note 69 at 228-31.
116. It may be that we do not mind EPA pricing lives simply because the prices are reasonable: Maybe the baseline principle of pricing lives is not intolerable after all. As pop culture artifacts such as the film INDECENT PROPOSAL (Paramount 1993) suggest, pricelessness is, ironically, a relative term. Yet it still seems fair to say that society continues to scorn bald exchanges of death for a benefit. Only when one gains foundational benefits - "dying for one's country" or even "dying for love" - is the trade generally understood to be acceptable. It thus makes sense to look for those factors that distinguish acceptable tradeoffs or allocations from unacceptable ones.
117. See CALABRESI & BOBBITT, supra note 2, at 19, for the original exposition of the first-order/second-order distinction.
118. JOHN RAWLS, A THEORY OF JUSTICE 136-42 (1971).
119. The acronym stands for "Not In My Back Yard" and refers to local citizens' groups organized to fight an existing or proposed threat. See William Glaberson, Coping in the Age of "Nimby", N.Y. TIMES, June 19, 1988, at C1;
120. see also Town of Warren v. Hazardous Waste Facility Site Safety Council, 466 N.E.2d 102 (Mass. 1984) (holding that state statutes requiring hazardous waste facilities trump town bylaws excluding disposal facility). Statutory burdens placed on industry also tend to be stricter when victims are not anonymous. Title III of SARA, the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11004 (1994), requires industry to report in detail all hazardous pollutants being discharged, at an expected cost of $4 billion per decade. Elizabeth Grillo Olson, When a Chemical Company is Forced to Tell All, N.Y. TIMES, July 3, 1988, at C8.
121. See Robert W. Collin, Environmental Equity: A Law and Planning Approach to Environmental Racism, 11 VA. ENVTL. L.J. 495 (1992).
122. By no means is there consensus on how to interpret environmental racism data. See, e.g., Vicki Been, What's Fairness Got to Do With It? Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 CORNELL L. REV. 1001, 1016 (1993) (noting that economic and racial shifts often occur after facility siting). Whatever the controversy, environmental justice has become an official priority in environmental decisionmaking. White House Memorandum on Environmental Justice. 30 WEEKLY COMP. PRES. Doc. 279 (Feb. 11, 1994). The accompanying executive order required that all federal agencies include analysis of effects on minority communities as part of the review required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 (1994).
123. CALABRESI & BOBBITT, supra note 2, at 25.
124. See Russell & Gruber, supra note 11, at 287. For a thorough ethical critique of the present, science-based risk allocation process, see SHRADER-FRECHETTE, supra note 79.
125. Indeed, it does not matter even if science really is a "charade" or health a "canard," as Wagner and Melnick argue, respectively. R. Shep Melnick, The Politics of Benefit-Cost Analysis, in VALUING HEALTH RISKS, COSTS, AND BENEFITS FOR ENVIRONMENTAL DECISION MAKING: REPORT OF A CONFERENCE 23, 35 (P. Brett Hammond & Rob Coppock eds., 1990); Wagner, supra note 62. Charades may be dramatic rather than descriptive acts, but they nonetheless may convey important information, as dramas have done from Sophocles to O.J. Simpson.
126. See NEWT GINGRICH, TO RENEW AMERICA 115, 139 (1995).
127. The bill was Item #8 of the Republican Contract with America, see CONTRACT WITH AMERICA 11 (Ed Gillespie & Bob Schellhas eds., 1994), and passed the House on February 28, 1994 as H.R. 9, supra note 6, before becoming bogged down in the Senate. There is insufficient space here to discuss all of H.R. 9's proposed reforms, ranging from 23-step "Regulatory Impact Analyses," H.R. 9, supra note 6, § 7004(B)(1), to the amusing "Citizens' Regulatory Bill of Rights." Id. § 8101(A) (requiring federal investigators to advise alleged violators of their right "to have an attorney or an accountant present"). Particularly as regulatory reform proposals are bandied back and forth again in Congress, the practical consequences of such provisions await detailed treatment.
128. For a graphic representation of the dizzying new bureaucracy H.R. 9 would have established, see Gregory S. Wetstone, And Now, Regulatory Reform, N.Y. TIMES, Feb. 23, 1995, at A23.
129. For a cogent description of industry-driven antienvironmental legislation, see MacIntyre, supra note 80, at 566-74. Some editorialists have suggested that simple obstructionism might be a good idea. See, e.g., Real Risk Reform, WALL ST. J., April 18, 1995, at A20 ("Ensnaring bureaucrats in red tape isn't a bad idea . . . ."). Bluster such as this highlights the differences between those who truly seek to reform the regulatory process and those who seek only to obstruct or destroy it.
130. S. 343, 104th Cong., 1st Sess. (1995) (proposed by Sen. Robert Dole).
131. See John H. Cushman. Jr., G.O.P. Is Reviving Plans To Reduce Regulations, N.Y. TIMES, Mar. 2, 1996, at A10 [hereinafter G.O.P. Reviving Plans].
132. See John H. Cushman, Jr., G.O.P. Backing off from Tough Stand over Environment, N.Y. TIMES, Jan. 26, 1996, at A1 [hereinafter G.O.P. Backing Off].
133. John H. Cushman, Jr., Businesses Scaling Back Plans to Defang Federal Regulations, N.Y. TIMES, February 3, 1996, at A1 [hereinafter Businesses Scaling Back].
134. Indeed, the "tactical retreat" described above would in fact be a congressional version of President Clinton's Executive Order No. 12,866, 58 Fed. Reg. 51,735 (1993), discussed supra text accompanying notes 92-97, which requires some "taking account of" costs in evaluating regulatory alternatives. Businesses Scaling Back, supra note 113, at A1. Nor are Republicans alone in proposing regulatory reform bills. See John H. Cushman, Jr., Opponents Nervous as a Democrat Tries Regulatory Overhaul, N.Y. TIMES, Mar. 12, 1996, at A13.
135. See infra text accompanying notes 137-40.
136. That is, risk determination as opposed to risk assessment and management.
137. H.R. 9, supra note 6, § 3101 et seq. Remaking EPA's risk assessment apparatus has remained a focal point, together with cost-benefit analysis, of subsequent regulatory reform proposals. See G.O.P. Reviving Plans, supra note 111.
138. The term "federal agency" is defined in H.R. 9, supra note 6, § 3107(5), as including all executive departments, military departments, and administrative agencies. If eventually written into law, this clause should provide interesting test cases for enterprising liberals. As the subtitle is presently constructed, military departments would be required by law to engage in the lengthy risk assessment and communication procedures described below for any risk assessment in connection with "federal regulatory programs designed to protect human . . . safety." Id. § 3103(B)(1). While not every military expenditure is connected to a regulatory program, those that are (including, perhaps, those pursuant to the nuclear nonproliferation treaty?) should be covered by H.R. 9's regulatory provisions.
139. Id. § 3103(B)(1). Although § 3103(B)(2)(a)(ii) excludes from the new risk assessment process "screening analys[es] for the purpose of product regulation," presumably to exclude routine FDA approvals of new substances and the like, subparagraph B of the same section specifically exempts from this exclusion any analysis that serves "as the basis for imposing restrictions on substances or activities," such as those undertaken as part of TSCA. Id. § 3103(B)(2)(b)(i). Given that all regulation may impose some restrictions, one wonders what product regulations would fall under this exemption.
140. Id. §§ 3104(b)-3106(e). In light of Subtitle A's new requirements, it is interesting to note that in a comparative study, EPA was found already to justify its scientific methodology to a far greater extent than that of its Canadian counterpart. HARRISON & HOBERG, supra note 11, at 171-73.
141. But cf. CALABRESI & BOBBITT, supra note 2, at 69 (discussing merits of "priesthood" making allocation decisions); NAPA, supra note 11, at 49 (recommending that judicial review of risk assessments be "constrained"). Of course, having courts serve as arbiters is particularly questionable if science remains the standard of decision.
142. H.R. 9, .supra note 6, § 3301(a).
143. Agencies must "provide a written response to all significant peer review comments," which may include dissenting opinions, evaluations of data and methodology, etc. Id. § 3301(d). No time limit for the peer review process is specified in the bill.
144. "Major rule" is defined in H.R. 9 as any regulation likely to result in one or more of the following: (a) an annual effect on the economy of $100,000,000 [sometimes $20,000,000, depending on the provision] or more, (b) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions, (c) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. Id. §§ 3301(h), 3201(c)(2). Since both direct and indirect economic effects are taken into account, anyone with creative legal representation can characterize virtually any rule as "major" under this definition.
145. Id. § 3301(a)(3).
146. But see DOUGLAS & WILDAVSKY, supra note 98, at 168-72 (characterizing environmental groups as elitist, "sectarian" enterprises seeking to strengthen government control over masses by inducing panic over inconsequential harms).
147. NAPA, supra note 11, at 40.
148. In fact, Subtitle C confusingly establishes two different sets of peer-review panels. The first is regulation-specific; each major rule requires a peer-review panel to evaluate it. The second are described in § 3301(g) as "national peer review panels," designed "to annually review the risk assessment and cost assessment practices of each federal agency for programs designed to protect human health, safety, or the environment." H.R. 9, supra note 6, § 3301(g).
149. See supra note 124.
150. Id. § 3201 (a). It is unclear why § 3201 does not use the same "federal agency" designation as § 3107; perhaps the provision was more limited in light of the increased burden of cost-benefit analyses.
151. Id. § 3201(a)(1), 3201(a)(4). EPA must certify that this assessment is based on "an objective and unbiased scientific and economic evaluation of all significant and relevant information provided to the agency by interested parties." Id. § 3201(a)(1). For the futility of this task, see infra Section II.B.
152. Id. § 3201(a)(2); see infra text accompanying note 186.
153. Id. § 3201(a)(3).
154. Id. § 3201(a)(5)(C). Importantly, these costs explicitly include those borne by the private sector. Id. § 3201(c)(1).
155. Id. § 3201(a)(5)(D).
156. See supra text accompanying notes 92-97.
157. In fact, many of H.R. 9's provisions are copied verbatim from the 1993 Johnston amendment to S. 171. See supra text accompanying note 93.
158. Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (Feb. 19, 1981).
159. 627 F. Supp. 566 (D.D.C. 1986).
160. See EASTERBROOK, supra note 69, at 457-59.
161. See Doniger, supra note 71, at 514-15 ("The costs of controlling exposure to a toxic substance are shrouded in as much uncertainty as the risks of the exposure."); Hohenemser & Kasperson, supra note 55, at 196 ("Risk/benefit analysis breaks down altogether when risks or benefits cannot be reliably quantified, as in the case of toxic chemicals."). Substitution cost - the value of the toxin to society expressed as the cost of replacing it - is itself difficult to estimate, with toxins being used in everything from essential biomedical materials to bright red maraschino cherries. One should not, incidentally, presume that cost-benefit analysis is a mere proxy for less regulation; the reverse result has sometimes been true. See Feller, supra note 52, at 882 (discussing sulfur dioxide standards tightened after cost-benefit analysis).
162. H.R. 9, supra note 6, §3201(c)(1) (emphasis added).
163. See Robert Hahn & John Hird, The Costs and Benefits of Regulation: Review and Synthesis, 8 YALE J. ON REG. 233 (1991). While Hahn and Hird's measurements of regulatory costs are quite comprehensive, it is curious, given the title of the article, that regulation's benefits are never discussed.
164. For discussions of cost-benefit analysis generally, see W. KIP VISCUSI, RISK BY CHOICE: REGULATING HEALTH SAFETY IN THE WORKPLACE 15-52 (1983); Melnick, supra note 106. See also DOUGLAS & WILDAVSKY, supra note 98, at 69-71 (warmly endorsing "rationalism" in risk allocation).
165. Though this Note focuses on human "benefits," quantifying environmental benefits is not at all an easy question. Presumably some sort of "productive value" calculation would be used for utilitarian environmental harms. For unique or endangered environmental treasures, however, some have used public surveys to measure the surrender value of natural objects. See, e.g., Peter Passell, Disputed New Role for Polls: Putting a Price Tag on Nature, N.Y. TIMES, Sept. 6, 1993, at A1 (discussing State of Alaska poll of Americans' willingness to pay to prevent another Exxon-Valdez spill; $30 average answer yielded $2.8 billion total for U.S. population). Of course, such surveys are open to the charges that people's "willingness to pay" tends to be inflated when payment is not actually expected, and that such logic is a slippery slope (should one always measure liability damages by asking for "replacement value"?).
166. For more nuanced treatments of the environmental valuation problem, see ALDO LEOPOLD, The Land Ethic, in A SAND COUNTY ALMANAC 237, 262 (1949) ("A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community.");
167. PAUL W. TAYLOR, RESPECT FOR NATURE: A THEORY OF ENVIRONMENTAL ETHICS (1986) (presenting Kantian environmental ethic based on qualities of intrinsic value, inherent value, and merit);
168. Laurence H. Tribe, Ways Not to Think About Plastic Trees: New Foundations for Environmental Law, 83 YALE L.J. 1315 (1974).
169. See Donald VanDeVeer & Christine Pierce, Cost Benefit Analysis: Are We Bewitched by Numbers?, in PEOPLE, PENGUINS, AND PLASTIC TREES: BASIC ISSUES IN ENVIRONMENTAL ETHICS 238, 239 (Donald VanDeVeer & Christine Pierce eds., 1986).
170. See supra text accompanying note 38 (quoting Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 642 (1980) (Benzene)). Similarly, the Fifth Circuit, striking down an EPA ban on asbestos pipe, noted that "over the next 13 years, we can expect more than a dozen deaths from ingested toothpicks - a death toll more than twice what the EPA predicts will flow from the quarter-billion-dollar bans of asbestos pipe, shingles, and roof coatings." Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1223 n.23 (5th Cir. 1991); see supra note 63. The court did not endorse any explicit risk comparison algorithm, however.
171. See H.R. 9, supra note 6, § 3105(3).
172. For a classic willingness-to-pay approach to safety regulation, see Gary Fromm, Civil Aviation Expenditures, in MEASURING BENEFITS OF GOVERNMENT INVESTMENT 172, 193-96 (Robert Dorfman ed., 1965).
173. See generally Hornstein, supra note 89, at 592-616 (noting distributional inequities and "cognitive errors").
174. See W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK 263-65 (1992) (noting disparities in life valuation across regulatory contexts); Slovic, supra note 56, at 281-83 (correlating desire to regulate a substance with "dread" and "unknowability" and comparing risk priorities across demographic groups);
175. see also Mark Sagoff, At the Shrine of Our Lady of Fatima, or Why Political Questions Are Not All Economic, 23 ARIZ. L. REV. 1283, 1283 (1981) (recounting popular rejection of risk comparison analysis).
176. See John D. Graham & Jonathan Baert Wiener, Confronting Risk Tradeoffs, in RISK VS. RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT 1, 34-35 (John D. Graham & Jonathan Baert Wiener eds., 1995) [hereinafter RISK VS. RISK] (noting distributional inequities in exchanging risks).
177. See infra text accompanying note 183.
178. -6 risk. With 250 million potentially exposed individuals, this yields a regulatory cost ceiling of a whopping $50 billion.
179. See Graham & Wiener, supra note 152, at 26-28 (risk tradeoff calculations). Graham and Wiener's work, if nothing else, serves to emphasize that risk comparison is by no means a simple, binary task. As another article in the same volume suggests, risk comparison is indeed quite useful in risk management situations where a "lesser of two evils" must be chosen and to avoid "tunnel vision," George M. Gray & John D. Graham, Regulating Pesticides, in RISK VS. RISK, supra note 152, at 173, 191, but risk comparison as a form of risk determination is rife with complexity and error.
180. Ralph L. Keeney, Mortality Risks Induced by Economic Expenditures, 10 RISK ANALYSIS 147 (1990). Keeney estimates this nexus cost to be about $7.25 million (in 1980 dollars). Id. at 154.
181. See, e.g., Aaron Wildavsky, Richer is Safer, 60 PUB. INTEREST 23 (1980);
182. Aaron Wildavsky, Wealthier is Healthier, REGULATION, Jan./Feb. 1980, at 10. In the trickle-down spirit of the times in which these cleverly named articles were written, Wildavsky argues that regulation can lead to unemployment, which can lead to suicides and despair, giving the phrase "don't worry, be happy" a new economic spin.
183. International Union, UAW v. OSHA, 938 F.2d 1310, 1326-27 (D.C. Cir. 1991) (Williams, J., concurring). OSHA has also decided to study the issue "and will consider whether weighing the risks to workers from exposures to toxic substances with the risks associated with lowering those same workers' incomes is appropriate and relevant." OSHA Proposed Rule on Air Contaminants, 57 Fed. Reg. 26,002, 26,006 (June 12, 1992).
184. See Bob Davis, What Price Safety? Risk Analysis Measures Need for Regulation, But It's No Science, WALL ST. J., Aug. 6, 1992, at A1 (discussing embrace of Wildavsky's cost-cost theories by White House Council on Competitiveness);
185. Bronwen Maddox, The Cost of Fear, FIN. TIMES, Oct. 7, 1992, at 15 (Report of English Health and Safety Executive calculations).
186. See BREYER, supra note 11, at 23 (citing E.M. KITIGAWA & P.M. HAUSER, DIFFERENTIAL MORTALITY IN THE UNITED STATES OF AMERICA: A STUDY IN SOCIOECONOMIC EPIDEMIOLOGY (1973)).
187. Even some supply-siders concede that "[i]t's a difficult case to make empirically." Robert Hahn, economist at American Enterprise Institute, quoted in Davis, supra note 159, at A4.
188. See Michael E. Porter, America's Green Strategy, SCI. AM., Apr. 1991, at 168.
189. Even in easy, localized cases, the link is unclear: One would have to measure how much of the regulatory burden was absorbed by the company in question, how much passed on to consumers as higher prices, and how much cost actually trickled down as reduced incomes for affected parties.
190. See LOUIS I. DUBLIN & ALFRED J. LOTKA, THE MONEY VALUE OF A MAN 7 (1930).
191. I include the adjective "modestly" in tribute to the still unsurpassed cost-benefit valuation of human life, JONATHAN SWIFT, A MODEST PROPOSAL (Dublin, Harding 1729).
192. Based on the cost of production and optimal selling price, Swift calculated the "'net profit on a plump yearling child'" to be 40p, in 1729 prices. See J.G.U. Adams, . . . and How Much for Your Grandmother?, in VALUING LIFE: PUBLIC POLICY DILEMMAS 135, 135 (Steven E. Rhoads ed., 1980) [hereinafter PUBLIC POLICY DILEMMAS].
193. JOHN KLEINIG, VALUING LIFE 154-59 (1991). "Surrender value" has already been discussed supra text accompanying notes 147-55, in the context of
194. See E.J. Mishan, Evaluation of Life and Limb: a Theoretical Approach, 79 J. POL. ECON. 687, 693-701 (1971) (arguing that surrender value is incoherent in context of constant daily risks).
195. For discussions of willingness-to-pay valuations in public policy, see Vincent Taylor, How Much Is Good Health Worth?, in PUBLIC POLICY DILEMMAS, supra note 165, at 49.
196. See KLEINIG, supra note 166, at 155.
197. See Adams, supra note 165, at 136-40.
198. As an aside, it is particularly repulsive in the face of the greatness of human potential on the one hand, and the tragedy of lives cut short on the other, that one would even facetiously suggest that pricing methods capture what it truly is to be "human, all too human." Though the societal costs of using such placebos for human interaction are not discussed at length in this Note, it certainly behooves us would-be Ivan Ilyches to recall that there are meanings beyond those we can barter with one another.
199. τt represents the probability in the current, τth year of the person being alive during year t; and r is the social rate of discount expected during the tth year. Mishan, supra note 166, at 688. The classic DFE methodology was first developed by DUBLIN & LOTKA, supra note 164. See also Steven E. Rhoads, How much should we spend to save a life?, in PUBLIC POLICY DILEMMAS, supra note 165, at 285, 288-91 (discussing DFE methodology in public policy);
200. Dorothy P. Rice & Barbara S. Cooper, The Economic Value of Human Life, in PUBLIC POLICY DILEMMAS, supra note 165, at 19 (providing detailed analysis of DFE calculations).
201. See Robert M. Veatch, Justice and Valuing Lives, in PUBLIC POLICY DILEMMAS, supra note 165, at 147, 150.
202. From an environmental justice perspective, valuing wealthy neighborhoods over poorer (predominantly minority) neighborhoods is a familiar practice. See supra text accompanying note 103. A DFE cost-benefit analysis for all "major rules" would simply make it an omnipresent one.
203. See KLEINIG, supra note 166, at 160-61 (arguing that single value of life is chimerical).
204. See Graham & Wiener, supra note 152; Esty, supra note 40.
205. The ethical problems discussed in this section are distinct from the political allocation problems discussed at the end of Part I, supra. The latter are complexities of government legitimations for the exercise of power over lives; the former pertain to the exercises themselves. See discussion supra note 5.
206. See KLEINIG, supra note 166, at 147 (quoting 1976 U.S. House of Representatives Subcommittee Report: "The value of a human life cannot be measured in terms of dollars and cents").
207. Diffuse toxic harms, whose effects may not be known for years and that may be impossible to trace to a single actor, are a classic example of this situation.
208. Calabresi & Melamed, supra note 7, at 1089-92.
209. See CALABRESI & BOBBITT, supra note 2, at 32. Presumably, classical economics would simply take such "transaction costs" into account and allocate less death until we feel good enough about ourselves. Of course, viewing moral turpitude as just another transaction cost is itself quite "costly." Perhaps that too should be factored into the calculations.
210. See Margaret J. Radin, Market-Inalienability, 100 HARV. L. REV. 1849 (1987).
211. See SHRADER-FRECHETTE, supra note 79, at 213 (noting different answers when same data are applied to Rawlsian and Benthamite/utilitarian criteria).
212. That capitalism contains a theory of ultimate value should not surprise anyone; every value system that is as dominant in its adherents' lives as is American capitalism must posit a conception of ultimacy to be coherent. Of course, the value theories of American consumerism are somewhat beyond the reach of this Note. See CHARLES A. REICH, OPPOSING THE SYSTEM 76 (1995) (characterizing capitalist economics as religious faith).
213. See infra note 187. Obviously, one of the central pillars of post-Keynesian neoclassical economics is that private interests are public as well, that it is in all of our best interests to keep businesses in business. If the Invisible Hand is so rigorously understood, though, it becomes difficult to see what isn't a public interest, and why some private interests are more public than others.
214. -6 risks to everyday activities).
215. By focusing on environmental toxics regulation, I seek to avoid regulations such as those governing an individual's chosen activities, from the use of hazardous drugs to informed exposure to carcinogens. While such activities may produce externalities borne by others (tobacco smoking being the classic example), antiparentalist arguments may still be cogently made against regulating them. See, e.g., Gerald Dworkin, Paternalism, in PUBLIC POLICY DILEMMAS, supra note 165, at 181. In the category of exposures we cannot control - breathing the air, for example - the charge of parentalism does not apply.
216. See, e.g., VISCUSI, supra note 144, at 156-71 (suggesting that we provide workers with choice to accept occupational risks for compensation). Curiously, discussions of choice in toxic exposure frequently take the position that, because we cannot select all our risks, higher levels of coercion are acceptable. See Feller, supra note 52, at 882 ("It is simply not possible to preserve individual freedom of choice where a collective good such as air quality is involved."). Douglas and Wildavsky suggest that discontent at this loss of autonomy is unjustified, "control" being a mere chimera of psychology. DOUGLAS & WILDAVSKY, supra note 98, at 16-20 ("Voluntary/involuntary is a movable boundary, capable of turning every constraint on choice into injustice."). One wonders whether, if Douglas and Wildavsky were involuntarily forced to recant, the distinction would still seem so insubstantial.
217. Claims that regulation hurts "international competitiveness" or otherwise harms the economy seek to cast the debate as one of national good (being competitive) versus safety. See, e.g., Stewart, supra note 12, at 2050 (advocating reduction of "excessive costs and burdens imposed by [the] exceptionally rigid, legalistic system of environmental law and administration"). But see Porter, supra note 162, at 168 (arguing that regulation spurs productive investment in environmental technologies, thus fostering competitiveness); Study Says Environment Laws Aren't a Big Cause of Job Loss, N.Y. TIMES, Mar. 18, 1996, at A10 (citing California State Senate report). In any case, taking seriously the principle of sacrificing lives for the common good of competitiveness seems Darwinian at best.
218. The response that we all benefit from having certain toxins may be true in some cases, but by requiring the consideration of all costs to the public - including those borne by toxics producers - H.R. 9 still begs the private preference question. See supra note 134.
219. See Charles A. Reich, The Individual Sector, 100 YALE L.J. 1409 (1991).
220. Real Risk Reform, supra note 109, at A20.
221. For a useful analysis of regulation's perception in the business and media communities, see Melnick, supra note 106, at 28-30. But see G.O.P. Backing Off, supra note 112 (noting increased "moderation" in election-year rhetoric among skittish Republican members of Congress).
222. See REICH, supra note 182, at 41 (arguing that "big government" is justified to offset impingements on individuals' freedom by powerful corporate and other entities).
223. Even if we assume that these preferences are only to make money and toxic harms are merely "accidental" by-products of that enterprise - disregarding the foreseeability of cases of cancer arising from carcinogens - toxics producers at least remain the "cheapest cost avoiders" of cancerous harms. See CALABRESI, supra note 1, at 138-40.
224. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
225. Calabresi proposes that "other justice concerns" be used as veto points in cases where "inefficient" decisions must be made because of an ethically prior commitment. CALABRESI, supra note 1, at 304; cf. Steven Kelman, Cost-Benefit Analysis: An Ethical Critique, REGULATION, Jan./Feb. 1981, at 74, 76 ("We do not do cost-benefit analyses of freedom of speech or trial by jury."). Though such concerns may be more expansive and flexible than the quasi-constitutional values employed in this Note, they also lack the political groundedness that core American values possess.
226. Or perhaps even constitutionally; though it seems a stretch to suggest that shifting the entitlement to bodily integrity to producers of toxic harm violates the Due Process Clause, one may at least invoke the Constitution as caution against such a reallocation.
227. Franklin Delano Roosevelt, quoted in KENNETH S. DAVIS, FDR: INTO THE STORM, 1937-1940, at 230 (1993).
228. Sagoff, supra note 151, at 1298 ("We cannot replace with economic analysis the moral function of public law. The antinomianism of cost-benefit analysis is not enough.").
229. See, e.g., NAPA, supra note 11, at 158-62; NATIONAL RESEARCH COUNCIL, supra note 78.
230. BREYER, supra note 11, at 59-61.
231. See NAPA, supra note 11, at 127-31 (proposing both structural and procedural reforms).
232. California presumes and labels suspect chemicals to be unsafe until tested and proved otherwise, creating an incentive for industry to assist and speed the risk assessment measurement process. See Roe, supra note 12, at 180.
233. Id. at 179-80.
234. In some ways, market-driven toxics regulation tries to address a form of the collective action problem in which consumers who seek to avoid toxin-laced substances incur high costs to exercise their preference for alternatives ("organic" produce and nontoxic cleansers, for example, remain difficult to find and are more expensive than mainstream products) and gain only marginal benefits, whereas toxics producers have a concentrated stake in maintaining the status quo. Economic remedies would have to lessen these consumer-borne costs, perhaps by providing tax incentives for nontoxic products to lower their market price. If industry seeks to avoid responsibility for limiting toxic outputs, consumers must be made the "cheapest cost avoiders" of toxic risks by lowering the costs they bear to avoid them. See supra note 193.
235. Such cases would likely exclude situations in which some toxic substance is actually necessary, such as in medical or industrial contexts, and a choice must be made between alternatives on the basis of a given criterion (safety, or profit, for example). In these coerced-use situations, centralized regulation remains both the necessary prevention of a classic race to the bottom, in which the cheapest but possibly least-safe alternative is chosen by the unrestricted market, and the only way to protect a maximal amount of individual autonomy, as discussed supra note 186 and accompanying text.
236. MARTIN LUTHER KING, JR., Letter from Birmingham Jail, in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS OF MARTIN LUTHER KING, JR., 289, 293 (James Melvin Washington ed., 1986).