The subtle vices behind environmental values

Duke Environmental Law and Policy Forum

Volumn 8, Issue 1, 1997, Pages 151-171

  Cross, Frank B ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 0031390218     PISSN: 10643958     EISSN: None     Source Type: Journal    
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References (111)

1. Critics of probabilism have contended that the method furthers a "right-wing political agenda." See William Leiss, Assessing and Managing Risks, 25 POL'Y SCI. 341, 343 (1992).
2. Paul B. Thompson, Risk Objectivism and Risk Subjectivism: When Are Risks Real?, 1 RISK: ISSUES IN HEALTH AND SAFETY 3, 22 (1990).
3. See, e.g., Adam Finkel, Afterthoughts, in WORST THINGS FIRST?: THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES 335, 336-37 (Adam M. Finkel & Dominic Golding eds., 1994) (suggesting that citizens' value assessments should prevail over scientific estimation). Others have a more nuanced view. Cass Sunstein suggests that citizens' value judgments about risk deserve respect so long as they are "both reflective and informed. " Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN L. REV. 247, 267 (1996). While the thrust of the article appears to credit public perceptions, his caveats of informed reflection might well obliterate a role for such perceptions. In addition, he has also observed that the "mere fact that certain values are expressed through public action does not, of course, mean that those values must be endorsed. " Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 71 n.233 (1995). This article attempts to elaborate the seldom recognized point that public values about risk may be unworthy of incorporation in government regulation.
4. See, e.g., Adam Finkel, Afterthoughts, in WORST THINGS FIRST?: THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES 335, 336-37 (Adam M. Finkel & Dominic Golding eds., 1994) (suggesting that citizens' value assessments should prevail over scientific estimation). Others have a more nuanced view. Cass Sunstein suggests that citizens' value judgments about risk deserve respect so long as they are "both reflective and informed. " Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN L. REV. 247, 267 (1996). While the thrust of the article appears to credit public perceptions, his caveats of informed reflection might well obliterate a role for such perceptions. In addition, he has also observed that the "mere fact that certain values are expressed through public action does not, of course, mean that those values must be endorsed. " Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 71 n.233 (1995). This article attempts to elaborate the seldom recognized point that public values about risk may be unworthy of incorporation in government regulation.
5. See, e.g., Adam Finkel, Afterthoughts, in WORST THINGS FIRST?: THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES 335, 336-37 (Adam M. Finkel & Dominic Golding eds., 1994) (suggesting that citizens' value assessments should prevail over scientific estimation). Others have a more nuanced view. Cass Sunstein suggests that citizens' value judgments about risk deserve respect so long as they are "both reflective and informed. " Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN L. REV. 247, 267 (1996). While the thrust of the article appears to credit public perceptions, his caveats of informed reflection might well obliterate a role for such perceptions. In addition, he has also observed that the "mere fact that certain values are expressed through public action does not, of course, mean that those values must be endorsed. " Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 71 n.233 (1995). This article attempts to elaborate the seldom recognized point that public values about risk may be unworthy of incorporation in government regulation.
6. It is also important to recognize that public perception may underestimate risks. While the typical debate confronts a public perceiving high risk vs. low probability estimates, the public probably underestimates more risks. See, e.g., Dermot J. Hayes et al., Valuing Food Safety in Experimental Auction Markets, 77 AM. J. AGRIC. ECON. 40 (1995) (documenting public underestimation of risk from foodborne pathogens).
7. See Cass R. Sunstein, Preferences and Politics, 20 PHIL. & PUB. AFF. 3 (1991). He observes that the "phenomenon of endogenous preferences casts doubt on the notion that a democratic government ought to respect private desires and beliefs in all or almost all contexts." Id. at 5. With respect to risk perception, see William H. Foege, Plagues: Perceptions of Risk and Social Responses, 55 SOC. RES. 331, 334-335 (1988) (concluding that we "know from recent studies that the perception of risk that people have for many conditions is unrealistic, unstable, and influenced by illusions of control").
8. See Cass R. Sunstein, Preferences and Politics, 20 PHIL. & PUB. AFF. 3 (1991). He observes that the "phenomenon of endogenous preferences casts doubt on the notion that a democratic government ought to respect private desires and beliefs in all or almost all contexts." Id. at 5. With respect to risk perception, see William H. Foege, Plagues: Perceptions of Risk and Social Responses, 55 SOC. RES. 331, 334-335 (1988) (concluding that we "know from recent studies that the perception of risk that people have for many conditions is unrealistic, unstable, and influenced by illusions of control").
9. See Frank B. Cross, The Public Role in Risk Control, 24 ENVTL. L. 887, 897-912 (1994).
10. See Paul Slovic et al., Characterizing Perceived Risk, in PERILOUS PROGRESS: MANAGING THE HAZARDS OF TECHNOLOGY 91, 1115 (Robert W. Kates et al. eds., 1985); George A. Quattrone & Amos Tversky, Contrasting Rational and Psychological Analyses of Political Choice, 82 AM. POL. SCI. REV. 719, 735 (1988). See also Cross, supra note 6, at 891.
11. See Paul Slovic et al., Characterizing Perceived Risk, in PERILOUS PROGRESS: MANAGING THE HAZARDS OF TECHNOLOGY 91, 1115 (Robert W. Kates et al. eds., 1985); George A. Quattrone & Amos Tversky, Contrasting Rational and Psychological Analyses of Political Choice, 82 AM. POL. SCI. REV. 719, 735 (1988). See also Cross, supra note 6, at 891.
12. See Paul Slovic et al., Characterizing Perceived Risk, in PERILOUS PROGRESS: MANAGING THE HAZARDS OF TECHNOLOGY 91, 1115 (Robert W. Kates et al. eds., 1985); George A. Quattrone & Amos Tversky, Contrasting Rational and Psychological Analyses of Political Choice, 82 AM. POL. SCI. REV. 719, 735 (1988). See also Cross, supra note 6, at 891.
13. See Cross, supra note 6, at 889-90.
14. See id. at 891-95.
15. See id. at 892, 898-99.
16. See Maureen L. Cropper & Uma Subramanian, Public Choices Between Lifesaving Programs: How Important Are Lives Saved?, WORLD BANK POLICY RESEARCH WORKING PAPER No. 1497 (Aug. 1995). The variation in preference among lifesaving programs was up to 2.5 times the probabilistic life saving. This is roughly consistent with other research. See, e.g., John M. Mendeloff & Robert M. Kaplan, Are Large Differences in "Lifesaving" Costs Justified? A Psychometric Study of the Relative Value Placed on Preventing Deaths, 9 RISK ANALYSIS 349 (1989) (finding differences up to two-fold in preferences among programs with equal lifesaving).
17. See Maureen L. Cropper & Uma Subramanian, Public Choices Between Lifesaving Programs: How Important Are Lives Saved?, WORLD BANK POLICY RESEARCH WORKING PAPER No. 1497 (Aug. 1995). The variation in preference among lifesaving programs was up to 2.5 times the probabilistic life saving. This is roughly consistent with other research. See, e.g., John M. Mendeloff & Robert M. Kaplan, Are Large Differences in "Lifesaving" Costs Justified? A Psychometric Study of the Relative Value Placed on Preventing Deaths, 9 RISK ANALYSIS 349 (1989) (finding differences up to two-fold in preferences among programs with equal lifesaving).
18. See, e.g., HOWARD MARGOLIS, DEALING WITH RISK 114 (1996) (suggesting that factors identified as causes of public concern may simply be ways to rationalize such concerns). People give relatively little heed to certain catastrophic risks, such as dam failure.
19. See Cross supra note 6, at 914-918, 924-926.
20. See id. at 924 n.130.
21. Paul Slovic, Sarah Lichtenstein, & Baruch Fischhoff, Modeling the Societal Impact of Fatal Accidents, 30 MGMT. SCI. 464, 467 (1984).
22. Monique M. Raats & Richard Shepherd, Developing a Subject-Derived Terminology to Describe Perceptions of Chemicals in Foods, 16 RISK ANALYSIS 133 (1996).
23. See NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMY OF SCIENCES, CARNIOGENS AND ANTICARCINOGENS IN THE HUMAN DIET (1996).
24. Frank B. Cross, The Risk of Reliance on Perceived Risk, 3 RISK: ISSUES IN HEALTH & SAFETY 59, 66 (1992).
25. Randy LaGrange, Kenneth Ferraro & Michael Supancic, Perceived Risk and Fear of Crime: Role of Social and Physical Incivilities, 29 J. RES. IN CRIME & DELINQUENCY 311, 319 (1992).
26. Id. at 328.
27. KRISTIN SHRADER-FRECHETTE, RISK AND RATIONALITY: PHILOSOPHICAL FOUNDATIONS FOR POPULIST REFORMS 21 (1991).
28. ROBERT D. BULLARD, DUMPING IN DIXIE: RACE, CLASS AND ENVIRONMENTAL QUALITY 18 (1990).
29. See Robert W. Collin, Environmental Equity: A Law and Planning Approach to Environmental Racism, 11 VA. ENVTL. L.J. 495, 509-510 (1992).
30. See 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 (1993).
31. Albert L. Nichols, Risk-Based Priorities and Environmental Justice, in WORST THINGS FIRST?, supra note 3, at 267, 268.
32. Regina Austin & Michael H. Schill, Black, Brown, Poor & Poisoned: Minority Grassroots Environmentalism and the Quest for Eco-Justice, 1 KAN. J.L. & PUB. POL'Y 69, 78 (1991).
33. AARON B. WILDAVSKY, BUT Is IT TRUE? 73 (1995).
34. See Donald T. Hornstein, Paradigms, Process and Politics: Risk and Regulatory Design, in WORST THINGS FIRST?, supra note 3, at 147, 160 (indicating that the EDB ban was "based on overblown fears of consumer carcinogenicity and an underestimate of the risks to pesticide applicators who would be forced to use more carcinogenic substitutes").
35. Chris Whipple, Nonpessimistic Risk Assessment and De Minimis Risk as Risk Management Tools, in THE RISK ASSESSMENT OF ENVIRONMENTAL AND HUMAN HEALTH HAZARDS 1109 (Dennis J. Paustenbach ed., 1989).
36. See Frank B. Cross, Asbestos in Schools: A Remonstrance Against Panic, 11 COLUM J. ENVTL. L. 73 (1986).
37. JOHN D. GRAHAM & JONATHAN BAERT WIENER, RISK vs. RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT 16 (1995).
38. See Tom Arrandale, Environmentalism and Racism, GOVERNING, February 1992, at 63 (reporting how EPA "overlooked minority protests by approving such objectionable projects as a PCB disposal facility in predominantly black Warren County, North Carolina, and a hazardous waste landfill in Kettleman City, a Latino farmworker community in California").
39. See Marianne Lavell & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, NAT. L.J., Sept. 21, 1992, at S1.
40. John A. Hird, Environmental Policy and Equity: The Case of Superfund, 12 J. POL'Y ANALYSIS & MGMT. 323, 338 (1993).
41. See id.
42. BULLARD, supra note 22, at 17.
43. See H. David Robison, Who Pays for Industrial Pollution Abatement?, REV. ECON. STAT. 702, 703 (1985).
44. Frank B. Cross, When Environmental Regulations Kill: The Role of Health/Health Analysis, 22 ECOL. L.Q. 729, 763 (1995) (citing multiple studies on the regressive incidence of pollution control costs). The costs of water pollution control requirements in Boston reportedly have forced 100,000 households to "cut back on food, clothing, and medical care. " David Stipp, Poor Pay a Big Price to Drink Clean Water, WALL ST. J., Jan. 15, 1992, at B1.
45. Frank B. Cross, When Environmental Regulations Kill: The Role of Health/Health Analysis, 22 ECOL. L.Q. 729, 763 (1995) (citing multiple studies on the regressive incidence of pollution control costs). The costs of water pollution control requirements in Boston reportedly have forced 100,000 households to "cut back on food, clothing, and medical care. " David Stipp, Poor Pay a Big Price to Drink Clean Water, WALL ST. J., Jan. 15, 1992, at B1.
46. Cross, supra note 38, at 763. See also Ralph L. Keeney, Mortality Risks Induced by the Costs of Regulation, 8 J. RISK & UNCERTAINTY 95, 106 (1994) (suggesting that environmental regulations shift job opportunities from manufacturing to white collar occupations).
47. Cross, supra note 38, at 763. See also Ralph L. Keeney, Mortality Risks Induced by the Costs of Regulation, 8 J. RISK & UNCERTAINTY 95, 106 (1994) (suggesting that environmental regulations shift job opportunities from manufacturing to white collar occupations).
48. See Ann P. Bartel & Lacy Glenn Thomas, Predation Through Regulation: The Wage and Profit Effects of the Occupational Safety and Health Administration and the Environmental Protection Agency, 30 J.L. & ECON. 239, 246 (1987).
49. It is suggested that "[a]voiding technological risks is a central preoccupation of our age." SHEILA JASANOFF, RISK MANAGEMENT AND POLITICAL CULTURE 1 (1986); see generally, Robin Gregory, James Flynn, & Paul Slovic, Technological Stigma, AM. SCI., May/June 1995, at 220-223.
50. It is suggested that "[a]voiding technological risks is a central preoccupation of our age." SHEILA JASANOFF, RISK MANAGEMENT AND POLITICAL CULTURE 1 (1986); see generally, Robin Gregory, James Flynn, & Paul Slovic, Technological Stigma, AM. SCI., May/June 1995, at 220-223.
51. Beware of False Gods in Rio, WALL ST. J., June 1, 1992, at A12.
52. For a vigorous liberal defense of technology and criticism of much contemporary environmentalism as Luddite, see Walter Truett Anderson, There's No Going Back to Nature, MOTHER JONES, Sept./Oct. 1996, at 34. The anti-technology bias of ecofeminism is particularly ironic, as women have consistently benefited from advances. See also Johana Brenner & Nancy Holmstrom, Women's Self-Organization, 34 MONTHLY REV. 34 (1983) (technology had enabled women to advance in the workplace); Sharon Camp, Population: The Critical Decade, FOREIGN POL'Y, March 22, 1993, at 126 (describing how additional technological advance can "further improve women's status and economic security"). In poorer nations, the "preservation of species and the protection of nature" have depended "upon social exclusion of races, of women, and of other nationalities. " Cecile Jackson, Environmentalisms and Gender Interests in the Third World, 24 DEV. & CHANGE 649, 654 (1993).
53. For a vigorous liberal defense of technology and criticism of much contemporary environmentalism as Luddite, see Walter Truett Anderson, There's No Going Back to Nature, MOTHER JONES, Sept./Oct. 1996, at 34. The anti-technology bias of ecofeminism is particularly ironic, as women have consistently benefited from advances. See also Johana Brenner & Nancy Holmstrom, Women's Self-Organization, 34 MONTHLY REV. 34 (1983) (technology had enabled women to advance in the workplace); Sharon Camp, Population: The Critical Decade, FOREIGN POL'Y, March 22, 1993, at 126 (describing how additional technological advance can "further improve women's status and economic security"). In poorer nations, the "preservation of species and the protection of nature" have depended "upon social exclusion of races, of women, and of other nationalities. " Cecile Jackson, Environmentalisms and Gender Interests in the Third World, 24 DEV. & CHANGE 649, 654 (1993).
54. For a vigorous liberal defense of technology and criticism of much contemporary environmentalism as Luddite, see Walter Truett Anderson, There's No Going Back to Nature, MOTHER JONES, Sept./Oct. 1996, at 34. The anti-technology bias of ecofeminism is particularly ironic, as women have consistently benefited from advances. See also Johana Brenner & Nancy Holmstrom, Women's Self-Organization, 34 MONTHLY REV. 34 (1983) (technology had enabled women to advance in the workplace); Sharon Camp, Population: The Critical Decade, FOREIGN POL'Y, March 22, 1993, at 126 (describing how additional technological advance can "further improve women's status and economic security"). In poorer nations, the "preservation of species and the protection of nature" have depended "upon social exclusion of races, of women, and of other nationalities. " Cecile Jackson, Environmentalisms and Gender Interests in the Third World, 24 DEV. & CHANGE 649, 654 (1993).
55. For a vigorous liberal defense of technology and criticism of much contemporary environmentalism as Luddite, see Walter Truett Anderson, There's No Going Back to Nature, MOTHER JONES, Sept./Oct. 1996, at 34. The anti-technology bias of ecofeminism is particularly ironic, as women have consistently benefited from advances. See also Johana Brenner & Nancy Holmstrom, Women's Self-Organization, 34 MONTHLY REV. 34 (1983) (technology had enabled women to advance in the workplace); Sharon Camp, Population: The Critical Decade, FOREIGN POL'Y, March 22, 1993, at 126 (describing how additional technological advance can "further improve women's status and economic security"). In poorer nations, the "preservation of species and the protection of nature" have depended "upon social exclusion of races, of women, and of other nationalities. " Cecile Jackson, Environmentalisms and Gender Interests in the Third World, 24 DEV. & CHANGE 649, 654 (1993).
56. WILLIAM TUCKER, PROGRESS AND PRIVILEGE: AMERICA IN THE AGE OF ENVIRONMENTALISM 37 (1982). Carl Anthony describes a Berkeley public hearing at which antidevelopment environmentalists booed blacks testifying on the need for jobs, causing him to feel as if he were dealing with the Ku Klux Klan. See Carl Anthony, Eco-Justice, TURNING WHEEL, Spring 1993, at 19.
57. WILLIAM TUCKER, PROGRESS AND PRIVILEGE: AMERICA IN THE AGE OF ENVIRONMENTALISM 37 (1982). Carl Anthony describes a Berkeley public hearing at which antidevelopment environmentalists booed blacks testifying on the need for jobs, causing him to feel as if he were dealing with the Ku Klux Klan. See Carl Anthony, Eco-Justice, TURNING WHEEL, Spring 1993, at 19.
58. PAUL R. GROSS & NORMAN LEVITT, HIGHER SUPERSTITION: THE ACADEMIC LEFT AND ITS QUARRELS WITH SCIENCE 22 (1994).
59. S. 2806, 102d Cong. (1992).
60. See id.
61. See Sandra Blakeslee, Concentrations of Lead in Blood Drop Steeply, N.Y. TIMES, July 27, 1994, at A18 (reporting a 78% reduction in lead levels in the bloodstream of the affected public).
62. See Nichols, supra note 25, at 270.
63. Id. at 268.
64. HARVARD GROUP ON RISK MANAGEMENT REFORM, REFORM OF RISK REGULATION: ACHIEVING MORE PROTECTION AT LESS COST 18 (1995).
65. See, e.g., RICHARD HOFSTADTER, THE AMERICAN POLITICAL TRADITION (1948); Victor Ferkiss, Populist Influences on American Fascism, 10 WESTERN POL. Q. 350 (1957)
66. See, e.g., RICHARD HOFSTADTER, THE AMERICAN POLITICAL TRADITION (1948); Victor Ferkiss, Populist Influences on American Fascism, 10 WESTERN POL. Q. 350 (1957)
67. See CHRISTOPHER LASCH, THE TRUE AND ONLY HEAVEN: PROGRESS AND ITS CRITICS 504 (1991).
68. See Janet M. Fitchen, Cultural Values affecting Risk Perception: Individualism and the Perception of Toxicological Risks, in NEW RISKS: ISSUES AND MANAGEMENT 602 (Louis A. Cox, Jr. & Paolo F. Ricci, eds., 1990).
69. See M. Granger Morgan, Choosing and Managing Technology-Induced Risk, in READINGS IN RISK 21 (Theodore S. Glickman & Michael Gough eds., 1990).
70. SHRADER-FRECHETTE, supra note 21, at 86.
71. See MARGOLIS, supra note 12, at 39 (noting that characteristics like voluntariness mean "perceived voluntariness").
72. See, e.g., Annette Baier, Poisoning the Wells, in VALUES AT RISK 66 (Douglas MacLean ed., 1986) (observing that a coal miner might accept his employment out of compulsion, "even when he is not, like a member of a chain gang, literally coerced into working there").
73. Baruch Fischhoff, Risk: A Guide To Controversy, in NATIONAL RESEARCH COUNCIL, IMPROVING RISK COMMUNICATION app. C, 273 (1989).
74. See Brian Baird, Tolerance for Environmental Health Risks: The Influence of Knowledge, Benefits, Voluntariness, and Environmental Attitudes, 6 RISK ANALYSIS 425, 430 (1986).
75. SHRADER-FRECHETTE, supra note 21, at 73.
76. See Baird, supra note 60, at 430 (suggesting that the distinction is between an event "perceived as voluntary while the other is perceived as involuntary").
77. See Andreas Teuber, Justifying Risk, 119 DAEDALUS 235, 249 (1990) (suggesting that "you are not morally required to obtain the permission of everyone who might be in the path of your car should it go out of control on your way to the post office").
78. Joel Feinberg contends that risks to life cannot be so automatically prohibited without considering "the independent value of the risk-creating conduct both to the actor himself, to others directly affected by it, and to society in general." JOEL FEINBERG, HARM TO OTHERS 191 (1984).
79. WILLIAM LEISS & CHRISTINA CHOCIOLKO, RISK AND RESPONSIBILITY 57 (1994).
80. Id. at 265.
81. Baruch Fischhoff, Acceptable Risk: A Conceptual Proposal, 5 RISK: ISSUES IN HEALTH AND SAFETY 1, 23 (1994). This effect translates into policy - politicians are notoriously hesitant to legislate or regulate when large numbers of citizens are directly involved in the risk-creating activity. See also WILLIAM C. MITCHELL & RANDY T. SIMMONS, BEYOND POLITICS 149 (1994).
82. Baruch Fischhoff, Acceptable Risk: A Conceptual Proposal, 5 RISK: ISSUES IN HEALTH AND SAFETY 1, 23 (1994). This effect translates into policy - politicians are notoriously hesitant to legislate or regulate when large numbers of citizens are directly involved in the risk-creating activity. See also WILLIAM C. MITCHELL & RANDY T. SIMMONS, BEYOND POLITICS 149 (1994).
83. See MICHAEL FUMENTO, SCIENCE UNDER SIEGE: BALANCING TECHNOLOGY AND THE ENVIRONMENT 255 (1993).
84. Margolis refers to the situation as "fungibility," where the same person bears both the risk and reaps the benefits. See MARGOLIS, supra note 12, at 76-77. In the absence of fungibility, individuals can make selfish choices contrary to society's best interests.
85. See id. at 129.
86. See id. 169.
87. Margolis would emphasize that the key to decision making is not the actual fungibility of risks and benefits, but the perceptions of risks and benefits. Thus, an individual decides based on whether he or she perceives personal benefits from an activity, not whether actual benefits accrue. This does not change the deontological selfishness of the choice, but does suggest that some people are incompetent at being selfish.
88. Peter Huber, Safety and the Second Best: The Hazards of Public Risk Management in the Courts, 85 COLUM. L. REV. 277, 283 (1985).
89. Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 901 (1994).
90. AMITAI ETZIONI, THE MORAL DIMENSION: TOWARD A NEW ECONOMICS 9-10 (1988).
91. See MARGOLIS, supra note 12, at 40 (observing that "[w]e ordinarily see it as selfish for an individual to insist on absolute protection of his rights and property with no regard for the costs to others or to society generally" and that "we do not feel that it is unfair if the community is less than sympathetic to people demanding their rights when no significant harm is threatened").
92. SHRADER-FRECHETTE, supra note 21, at 117.
93. Surely some whites in places such as Vidor, Texas perceive that allowing blacks or hispanics to settle in their community would present a physical risk. Yet we do not require the consent of each citizen before authorizing a minority housing project in the community.
94. See, e.g., Cross, supra note 38.
95. SCHRADER-FRECHETTE, supra note 21, at 218. Indeed, the consent requirement can descend into circularity and nihilism. If your withholding consent creates a risk to me, do you need my consent before withholding your consent?
96. See GRAHAM & WIENER, supra note 31; See also, Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851 (1996) (where I recently provided somewhat less detailed accounts of dozens of circumstances in which efforts to reduce one risk have created greater countervailing risks).
97. See GRAHAM & WIENER, supra note 31; See also, Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851 (1996) (where I recently provided somewhat less detailed accounts of dozens of circumstances in which efforts to reduce one risk have created greater countervailing risks).
98. See Schuck, supra note 74, at 939.
99. Rick Pildes has suggested to me that the nature of voluntariness and the necessity of consent might be defined by a communitarian assessment of risk. While this alleviates some of the obvious practicality problems of requiring consent for environmental risks, the approach simultaneously obliterates much of the libertarian appeal of the consent standard itself.
100. See MARGOLIS, supra note 12, at 31 (contending that "it is hard to believe that there has never been a single good case in which lay judgment turned out to be better than expert judgment").
101. See, e.g., JAMES FISHKIN, DEMOCRACY AND DELIBERATION 36 (1991) (generally making the case for deliberation over a plebiscitary democracy); Sunstein, supra note 5, at 4 (noting that U.S. democracy is deliberative and involves "institutions of representation" rather than "an aggregation of interests").
102. See Pildes & Sunstein, supra note 3, at 59 (suggesting that "[o]urs is a republic, not a pure democracy, and a high premium is placed on deliberation rather than on snapshots of public opinion"); Cross, supra note 6, at 953 (urging that deliberation be a fundamental aspect of risk governance). The Harvard School of Public Health risk policy group contends that it "is not plausible to think that existing risk regulation reflects a considered democratic judgment," as it "appears to be a response to sensationalistic anecdotes, or to interest-group pressures, rather than to deliberative judgments by the public about priorities for risk management." HARVARD GROUP ON RISK MANAGEMENT REFORM, supra note 51, at 17.
103. See Cross, supra note 18, at 68-69 (relating the liberating effects of reliance on science vs. subjectivism). John Graham contends that the transparency of scientific analysis "is consistent with the principles of Jeffersonian democracy." John D. Graham, Hammers Don't Cut Wood, Why We Need Pollution Prevention and Comparative Risk Assessment, in WORST THINGS FIRST?: THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES 229, 233 (Adam M. Finkel & Dominic Golding eds., 1994).
104. See John D. Graham, The Risk Not Reduced, 3 N.Y.U. ENVTL. L.J. 382, 399 (1995) (suggesting that people "recognize that it is dangerous to allow the whims of journalists and public opinion to be the primary determinants of risk policy"); Frank B. Cross, Why Shouldn't We Regulate the Worst Things First?, 4 N.Y.U. ENVTL. L.J. 312, 317-318 (1996) (citing various sources indicating that credibility of environmental policy depends on grounding in sound science).
105. See John D. Graham, The Risk Not Reduced, 3 N.Y.U. ENVTL. L.J. 382, 399 (1995) (suggesting that people "recognize that it is dangerous to allow the whims of journalists and public opinion to be the primary determinants of risk policy"); Frank B. Cross, Why Shouldn't We Regulate the Worst Things First?, 4 N.Y.U. ENVTL. L.J. 312, 317-318 (1996) (citing various sources indicating that credibility of environmental policy depends on grounding in sound science).
106. For example, Anne and Paul Ehrlich's most recent book relies centrally on scientific justifications of environmentalism. PAUL R. EHRLICH & ANNE H. EHRLICH, BETRAYAL OF SCIENCE AND REASON (1996).
107. When government policies are based on public perceptions, they tend to produce only symbolic action with relatively little beneficial effect. See John Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233 (1990).
108. See John Horowitz, Preferences for Pesticide Regulation, 76 AM. J. AGRIC. ECON. 396 (1994) (finding particular concern for pesticide regulation vs. auto exhaust regulation but also discovering that 71% of subjects would prefer the regulation that saved the most lives regardless of the risk source).
109. See, e.g., John M. Mendeloff & Robert M. Kaplan, Are Large Differences in "Lifesaving" Costs Justified? A Psychometric Study of the Relative Value Placed on Preventing Deaths, 9 RISK ANALYSIS 349 (1989) (finding variance in public value preferences to be far smaller than actual differences in government actions to reduce risk).
110. See id.
111. See Cross, supra note 6, at 933 (quoting former EPA Administrator William Reilly to the effect that "public concerns are constantly changing, demanding that we make everything a top priority").