Breaking the Vicious Circle: Toward Effective Risk Regulation.

I. INTRODUCTION

With continuing international economic integration and declining United States competitiveness, people continue to be insecure in their jobs, targeting regulation in general, and health and safety (including environmental) regulation in particular, as the cause of their problems. Regulation is seen as the gaping hole through which our society's valuable resources are drained. This criticism of regulation has now jumped from the pages of the academic journals to popular literature. Several new books, most notably Justice Stephen Breyer's book, Breaking the Vicious Circle: Toward Effective Risk Regulation,(1) have attempted to respond to this criticism with a proposed overhaul of the way our nation deals with risk assessment, presumably providing us with better risk regulation at lower cost. According to Justice Breyer, the patchwork of risk regulation requires inconsistent expenditures of enormous amounts of money to save lives in certain cases while doing very little to prevent harm in other cases. Justice Breyer claims that this is because the public, and through it, Congress, are focused on certain risks, such as toxic waste dumps, without regard to the true harm of these risks. Justice Breyer advocates reform to break this irrational "vicious circle" formed by the synergism created from public perceptions of risk, congressional actions, and current regulatory methods.(2)

In easily understood language, Justice Breyer examines the various facets of our country's response to risk and puts forward a facially convincing argument that something is wrong with our risk regulatory system. He sees a vicious circle of illogical regulation at work because we are willing to spend hundreds of millions of dollars to protect one life from one type of risk, but will not spend more than $100,000 to protect other lives from different risks.(3) In order to overcome this vicious circle, Justice Breyer proposes breaking it at its weakest link: regulatory response.(4) He recommends vesting one agency with the power of overarching risk examination and regulation authority, including the power to create uniform regulatory responses to specific types of risks (such as cancer) and to provide uniform methods of dealing with particular risk issues (such as scientific uncertainty).(5) Justice Breyer also supposes that such an agency, with improved prestige, could make suggestions to Congress and the public about how to more wisely balance the expenditures made for certain kinds of risks by being the one part of government that will simultaneously examine our various responses to risk in differing contexts.(6)

Unfortunately, in his hurry to remedy the irrationality of risk regulation as it exists today, Breyer fails to examine why the current regulatory choices exist. The scope of his analysis is too restricted. The regulatory reformists blame the sweeping environmental movement for distorting our perceptions of true environmental risks. Likewise, regulatory reform sweeps along its followers, including Justice Breyer, without looking at what is left behind.

Specifically, I believe: 1) the "problems" cited by Justice Breyer in Breaking the Vicious Circle are not as bad as he supposes and do not represent the crisis that he suggests; 2) what Justice Breyer identifies as major "problems" are not "problems" at all, but the implementation of policies that reflect other values; 3) in the case of actual risk uncertainties, the public might be correct; and 4) institutional flaws limit the effectiveness of Justice Breyer's solution even if the problems were as he assumes.

I do not claim that Justice Breyer is absolutely wrong in some of his thoughts nor do I mean to embrace a particular point of view in this review. Instead, I intend to show that Justice Breyer's analysis is too limited and has many weaknesses when considering this issue. Justice Breyer's book missed the mark in its perception of and suggested remedy for our current risk regulatory environment. Far from being a vicious circle, the current combination of public perceptions, congressional actions, and regulatory methods may provide the best regulatory response given our society's needs and wants, posing the question "should the circle be unbroken?"

II. IS THE REGULATORY CRISIS REALLY THAT BAD?

One major problem Justice Breyer identifies to illustrate the regulatory "crisis" in our country is the "last 10% problem," representing the disproportionate expenditures needed to reduce the last ten percent of a particular risk.(7) Justice Breyer believes that the high marginal cost of eliminating the last vestiges of a particular risk could be better spent for greater primary risk reduction in another area. He posits that when asked to eliminate danger from a certain risk, our regulatory agencies focus narrowly on that risk to the exclusion of more effective risk regulation.

Justice Breyer illustrates this problem of overregulation of one risk to the detriment of overall cost-effective risk regulation with an example from his court:

The first [example] comes from a case in my own court, ... 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 $9.3 million to remove a small amount of highly diluted PCBs and "volatile organic compounds" (benzene and gasoline components) by incinerating the dirt. How much extra safety did this $9.3 million buy? The forty-thousand-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.... To spend $9.3 million to protect non-existent dirt-eating children is what I mean by the problem of "the last 10 percent."(8)

The example is so visual and seemingly absurd that it could easily convince a reader that something is terribly wrong with our risk regulatory system. As presented by Justice Breyer, few would disagree with his statement that the "dirt-eating children' example offers a powerful argument ... for a serious effort to prioritize, and perhaps to reallocate, our regulatory resources."(9) However, such superficial anecdotal absurdity should not substitute for a more detailed analysis of the regulatory response to the risk involved, and a closer look reveals a regulatory response to risk that may not be as absurd as Justice Breyer depicts. Though Justice Breyer may know more about the clean-up area because he presided over the case's appeal, I do not think the safety level of 245 "dirt-eating children days" is a blatant example of overregulation.

Much of the apparent absurdity comes in the terms used. Most of us would not characterize our children as "dirt-eating," but all persons do ingest certain quantities of soil on a daily basis directly from food and as contamination from our hands to food. Children, who tend to be less hygienic about washing hands and more likely to play in the dirt, are much more apt to ingest dirt with which they come into contact.(10) It is not beyond the pale for children to actually eat dirt directly as "mud pies." Moreover, though the location specified in the litigation is presently undisturbed by playing children, southern New Hampshire is relatively densely populated, and children do play in swampy areas. Indeed, depending on its nature, a swampy area may be particularly attractive to children.

As for the days involved, how often are children likely to play in a given area? Children often play repeatedly in the same spots, both during free days and after school, and it is logical to assume that they might play in one location as often as the weather allowed. In New England, that would be much closer to 245 days per year than 70 days per year.

Seen in this light, the clean-up of the soil to allow children to ingest some of it safely 245 days per year, while perhaps not economically desirable for this particular site, is neither wholly illogical nor egregious overregulation. Assuming that any dirt will be eaten, to stop at seventy "dirt-eating children days" provides no logical break in terms of risk regulation. While Justice Breyer asserts, without saying why, that no children would play on this site, clearly someone thought that this was a possibility or this type of illustrative risk model would not have been used. I do not claim that such regulation is logical; indeed it may be ridiculous. But Justice Breyer asserts that the model is not logical without making a case for his position. If overregulation is really a problem then Justice Breyer should support this assertion in his examples. If this example of dirt-eating children, used repeatedly but not explained, is the most egregious or "telling" example of structural "overregulation," then the reader is left to wonder if the problem is as bad as Justice Breyer states.

In addition to overstating the absurdity of the "last ten percent problem," Justice Breyer fails to distinguish between isolated examples of regulatory problems and wide-ranging structural deficiencies. For example, Justice Breyer points to another "more important" instance of risk regulation gone awry--the regulation of asbestos.(11) Breyer refers to several studies that show the risk of breathing encapsulated asbestos in public buildings is no greater than breathing asbestos out on the "prairie" and that asbestos is far more dangerous during removal than it is while in stasis.(12)

Justice Breyer correctly states that an absolute policy of asbestos removal is unwise and economically inefficient given the current scientific data concerning its potential danger. Nevertheless, this does not signal a grave problem requiring an overhaul of the risk regulatory system. Although a problem, the issue of asbestos removal regulation is more properly seen as one of regulatory lag. Regulation takes time to catch up with scientific analysis of risks and benefits. Major changes in the asbestos removal regulatory environment will probably be implemented in time. Indeed, the current law and regulations do not require removal of asbestos that is safely encapsulated without risk of it becoming airborne.(13) The initial regulatory response is not incorrect simply because a current risk regulation does not mirror the efficient regulation level suggested by newer risk studies. In our society, regulatory decisions are based on current knowledge and the regulatory environment will change when new information exists, albeit belatedly.

Even if Justice Breyer's proposal were adopted, his suggested super regulatory agency might have regulated asbestos in a similar fashion given the information available. The existence of a super regulatory agency does not guarantee reform of asbestos removal regulation would be its top priority or proceed at a greater pace than it is currently proceeding.

A similar argument applies to Justice Breyer's concern over the need for regulation of indoor air quality and radon in the home. Congress has required EPA to give technical advice and alert persons to the danger of radon in the home. Regulatory action will increase as the problem becomes better identified and the needed level of regulation more certain.(14)

III. DO OUR CURRENT RISK REGULATIONS ACTUALLY REPRESENT A PROBLEM IN

PRIORITIZING HUMAN LIVES AND SAFETY?

At least some of the examples of "significant problems" of risk regulation cited by Justice Breyer are not as bad as they seem. However, I freely admit that they cannot all be dismissed as minor. Justice Breyer is correct that banning the use of certain materials, from asbestos pipes to insecticides, can be very costly to society, and produce unintended effects which may themselves present a health hazard. Inconsistency does exist when cost per human life saved is examined, yet such regulatory decisions not only represent choices regarding the saving of human life but also policy choices reflecting values other than risk reduction. The variations in costs per human life saved cited as a problem by Justice Breyer may actually represent value choices rather than a prioritization problem.

Even if Justice Breyer presented hundreds of examples of "risk" regulation that cost billions of dollars, one could not conclude from his book that an overhaul of our risk regulatory system is required. This is because Breaking the Vicious Circle fails to look indepth at the "cause" of this supposed "problem" A closer look at the problem defined by Justice Breyer reveals that many of the "problems" with inconsistent risk values are not problems at all, but actual policy choices that reflect societal values other than the explicit reduction of risk to human life. Justice Breyer focuses all his attention on human life risk analysis, but he never sees or acknowledges that some regulations serve important functions other than reduction in risk to human life, and that this could explain the varied regulatory responses to human life risk and their differing costs. Recognition of these alternative underlying policies does not mean that regulatory reform is unnecessary or that regulation could not be made more efficient, but it does mean that significant questions must be explored before undertaking major changes in "risk regulation."

In making his case for the existence of the "vicious circle" of risk regulation, Justice Breyer's comments and examples (including the "last ten percent problem") about the regulatory environment for risk can be broken down into two main components: 1) there is too much regulation for the benefits provided (i.e., some high cost regulations save few human lives) and 2) risk to human life is not valued in a consistent manner (i.e., we spend more to save a human life in one area than we do in another). Both of these complaints lead Justice Breyer to the obvious conclusion that more lives could be saved if we equalized or closed the gap between money spent on different types of risk. It is hard to argue with such logic. To use an extreme example cited by Justice Breyer, instead of saving one life at a cost of $86 billion, society should spend that money to save 860,000 lives at $100,000 each in a different regulatory context.(15) Even ignoring (as Justice Breyer does) the question of the marginal costs of lives saved,(16) both complaints can be undercut by examining the values other than "lives saved" behind our regulatory policy choices.

While Justice Breyer recognizes that values other than that of human life may be at work in our regulatory choices, Breyer assumes that these other values should be subordinate to saving human lives. For instance, he notes that human beings value certain kinds of risks differently, e.g., people may want to avoid involuntary exposure, or particularly painful deaths, or uncertain deaths.(17) However, Justice Breyer does not fully explore this concept though he acknowledges that values other than cost to human life affect risk regulation. He simply asserts that we as a society could not logically intend for there to be such discrepancy between values of human life depending upon these other factors affecting risk control choices. Because certain risk regulations seem insupportable in terms of human lives saved, Justice Breyer assumes that the policy choices behind these regulations are illogical or not thoroughly considered. The more logical supposition is that our current regulations reflect real values to society. I have identified a few of these values which separately or taken together may logically justify our current risk regulatory environment. These values must be examined more closely before anyone can determine if regulatory reform is necessary or even desirable.

A. The Value of Control

First let us examine the value Justice Breyer identified that shapes risk perception. It is important to people to control their fate or at least believe that they control their own fate.(18) The exact cost of maintaining this control is difficult to determine because it is dispersed throughout the entire populace. It is reasonable to estimate that a relatively wealthy society such as ours, which has a great deal of disposable income, might spend hundreds or even thousands of dollars per year per person to avoid losing the ability to choose which risks (such as the avoidance of a painful death from cancer) to avoid and which to accept. Our perception of personal control over risk is a reason for our almost fanatical devotion to personal automobile travel even though the comparative health risks of such travel are quite high.(19) People may prefer voluntary risks over involuntary risks by a factor of over one thousand.(20) Therefore, this is an important value that should be con-sidered in our regulatory system.

B. The Value of Internalizing Private Externalities of Risks

Justice Breyer also fails to consider the distinction between regulations in which costs are incurred directly to the government and those in which costs are incurred by a private party, and where those costs should fall. It is logical to suppose that costs borne by the government generally represent a policy decision that we as a society value a certain regulation by "x" amount of dollars, but costs that we as a government impose upon an individual person or company to reduce risk may not represent any societal judgment at all about the value of that risk, but a judgment that whatever risks individual activities cause, they should be borne by the company or person that benefits from them. This is a way for the government to force companies or individuals to internalize harms external to their actions. The goal is not overall cost/benefit analysis for all of society. The goal is to internalize externalities so that everyone makes economically logical choices concerning their decisions and innocent persons are not unfairly burdened.(21)

In this way, government regulations that force individuals or companies to pay for the cost of risk reduction are similar to tort law which forces individuals or companies to pay other persons for the harm for which they are legally responsible. Indeed, CERCLA regulations that force companies to clean up toxic waste sites regardless of costs may be most easily understood by evaluating them as a response to tort law failure to require these companies or individuals to pay for any foreseeable harms associated with their actions.

The causal pathways for cancer are generally unknown. Therefore, it would be difficult for a person exposed to toxic waste who developed cancer to prove that the cancer was caused by proximity to the waste. But causation is a necessary and required element for tort recovery. Therefore, since tort law cannot effectively compensate victims for exposure to car-cinogens by forcing companies and individuals to internalize their costs through tort liability, society has chosen to require the individuals and companies who produce toxic wastes to directly internalize the costs of destroying them, containing them, or otherwise rendering them harmless.

This is a far cry from being a problem with our regulatory system. When there is any chance that a waste substance could harm human life or health external to the system, the policy of having private individuals pay for the cost of cleaning up their own wastes regardless of the costs is logical, and represents no different a policy choice than having a strict liability policy for certain manufactured products. If it could be shown that a substance has no harm to human health or environment (including psychological effects and the aesthetic environment) then one could logically argue that we should not require companies to pay for the cost of control. Otherwise, we are saying that one or two or a hundred people, who live near a harmful facility, should bear a major part of the production cost even though the benefits go elsewhere.(22)

Asbestos removal also internalizes costs and allows control of risks. Asbestos removal workers secure a benefit from removing asbestos and volunteer for that job even though risk is involved. School children derive no benefit from involuntary exposure to asbestos fibers that may be released from damaged materials.

As another example, we as a society have no trouble requiring dog owners to put up fences or leash dogs even when as a general rule dogs may not usually be prone to attack. When making such a rule, the costs to the owner (and the dog) of the loss of the dog's freedom and the extra time spent in exercising the dog are unimportant as long as there is any possibility that any dog could cause some uncompensated harm if released. Unleashed or unfenced dogs may bite or dig in flower gardens without providing a clue as to which dog's owner should bear the financial responsibility for such damage. It may have been "cheaper" for Dorothy to pay for Elvira Gulch's ruined garden than build a fence for Toto,(23) but the law required Dorothy to keep Toto penned up.

We may not like Elvira Gulch and we may think the fears of cancer are exaggerated in the general populace, but the fact remains that as long as there is any identifiable risk from a private activity, we as a society feel that it is not fair to make an individual bear any of the cost of an activity for which he or she does not get a commensurate benefit or compensation.(24) Thus, some of our regulatory choices are not value judgments about what we should pay for regulation but rather who should pay.

C. The Value of Freedom from Coercion

Paradoxically, our desire to have the government require other persons to control the outcomes of their own behavior reflects our own desire that our day to day activities not be altered or coerced. We are willing to pay a price for this privilege. Justice Breyer ignores this consideration when calling for a shifting of our risk resources to "education" or compulsory behavior programs which seem superficially cheaper.

Mandatory sunscreen use might monetarily cost less than a ban on ozone-destroying chlorofluorocarbons, but because this policy choice requires us as individuals to expend time and energy (not to mention that it is an externality) it has a greater personal cost. Most people would probably rather have the government spend billions of dollars to erect a space-based UV shield than have to put on sunscreen every day of their lives.

Similar policy discussions have centered around laws requiring the use of seat belts and motorcycle helmets or government coercion to prod changes in drinking, smoking, and diet. Though some such regulations coercing individual behavior have passed, they have usually focused on correcting the external costs of personal action rather than as a cost-beneficial type of risk management, for example. Moreover, these regulations have been won with high political cost.

Our society despises being controlled and we also do not like to have responsibility foisted upon us, even if it is otherwise "cost effective." For various reasons, certain changes may be viewed as having an overall negative impact even if they reduce the risk to our lives (chocolate eclaris may cause heart disease but could be vital to my mental well being or I might just like them a lot), and therefore, it is not as beneficial to an individual to change a behavior (when all values are considered) as it is to require the government to implement a (monetarily) more expensive solution that does not depend on coercing human behavior. Therefore, many of our policy decisions to spend greater amounts of government money to save fewer lives than could be saved through a behavior modification or education program may be logical and not the result of a misinformed public.(25)

D. Ecological, Distributive, Philosophical, and Other Values

Many of our risk regulation decisions reflect values not even marginally related to traditional questions of human risk. Justice Breyer merely assumes that a comparison of regulations can be made with respect to their effect on human life, but it is clear that our regulations (particularly environmental ones) are not designed solely to protect human life. There are many significant examples of other values at work in our risk regulatory environment.

Some of the most prominent can be seen in our environmental regulations. Despite the language used in Congress and in the statute itself, our original clean air laws and clean water laws were supported by the public not because our soceity feared for human life but because we were concerned with the protection of the health and vitality of the animal and plant world.(26) The program preventing the significant deterioration of air quality in pristine areas is explicitly directed not to the protection of life or even health but to aesthetics.(27) An oil spill that killed marine wildlife and sullied the beaches became the impetus for examining and changing ocean environmental policy.(28) Though later EPA regulations such as CERCLA, RCRA, TSCA and FIFRA(29) seem to be concerned with the protection of human life, it is not hard to see that the benefits of even these laws could extend more strongly to the natural environment, considering the documented effects of insecticides and other pest relief measures on animal life. Although DDT has recently been linked to breast cancer,(30) it has long been banned in our country for other reasons. Who can forget Rachel Carson's eloquent description of a spring gone silent because of the inability of birds to successfully reproduce?(31) Similarly, toxic leachate from a landfill could migrate to underground streams which feed surface water--surface water inhabited by fish that are eaten by other wildlife. Wildlife can be exposed to higher concentrations of toxics than are humans,(32) and this value is probably at play in our decisions regarding toxics control.

Our reasons for regulating certain substances are not only for the benefit of human lives saved or even for human health. Most humans prefer not to live in a sterile world devoid of much of its natural life or even without beautiful views, and we are willing to pay for this privilege. Evaluating all regulation that involves some aspect of human mortality by the common denominator of human lives saved, which Justice Breyer does, ignores these other values. Thus, by putting our risk regulation choices into terms of lives saved with automobile safety, Breyer ignores these other very real concerns.(33) Simply paying $6,000 more per car for a 5% reduction in lives lost (the automobile cost equivalent cited by Justice Breyer for some health regulations) may not be worth it in terms of human lives, but it might be justified by a combination of the human lives saved and the ecological concerns.

It is true that where environmental toxins are concerned, many of the regulatory agencies involved have themselves framed the debate over regulation in terms of human lives saved,(34) but this may be a post hoc justification. It certainly does not mean that this is the sole reason for the existence of such laws and regulations.

Decisions about risk may also reflect our preferred wealth allocation. We do not have to look far to see how important jobs are to our decisions regarding the environment and human health risk. Thus, though it would be cheaper for us as a soceity to simply burn cleaner coal than require the installation of more expensive smokestack scrubbers, we do not make this decision because of the allocative effects on jobs. Lowering the costs of power by using cleaner coal instead of scrubbers in power plants would benefit all of society by the creation of jobs due to cheaper power and would provide cleaner air at lower cost, but it would also cause an overall loss in jobs in the coal mining regions of the east, such as West Virginia and Kentucky, whose coal would no longer be valuable as a U.S. fuel source. A decision to burn cleaner coal, therefore, would result in a net transfer of wealth away from some of the poorest regions of our country. The 1977 amendments to the Clean Air Act suggest that this is something we are not prepared to do.(35) One could even suppose values underlying this decision that go beyond the economics of simple unemployment or wealth distribution. Like farmers, who also receive subsidies from the government, coal miners represent a certain rugged lifestyle which many people look upon with nostalgia as a symbol of American hard work and adversity. As popular culture continuously proves, nostalgia has value. It is not hard to imagine the end of Loretta Lynn's career had she sung "I was born a computer tech's daughter." Providing employment support in these poor areas has a value to us. Thus, when we measure how costly it is to put scrubbers on smokestacks, we should not look at the benefits in terms of human life (or health) alone.

More esoteric but certainly no less important are the philosophical values we as a society hold about our world. These are sometimes harder to see and may not even be consciously recognized, but exist nonetheless, and drive our policy decisions about the regulation of risk. A decision to require all polluters to clean up their pollution regardless of apparent cost may stem, not from irrationality, but from a deeply held belief by most of our society that the world should not be changed or "spoiled" by humankind. Such philosophical values clearly exist and have a net worth to our society. One illustration of this value is the Endangered Species Act.(36) This act requires that no action be taken against animal or plant species that are faced with extinction. Though there are occasional attempts to justify this law by the presence of "rational" values (such as the fact that a given plant or animal might hold the secret to the cure for cancer or that humans enjoy the aesthetic appearance of certain animals), this cannot explain the breadth of the law.(37) If such justifications were the case, the law would not apply to certain species (like the snail darter) that provide no aesthetically pleasing appearance or potential for health treatment breakthroughs.(38)

No, it is obvious that this policy decision comes from a more deeply ingrained notion about what humans should and should not do with respect to our natural environment. Thus, it is fine, in general, to hunt animals, but when the very existence of a species becomes threatened we take a different view of hunting. We see this attitude played out in popular culture frequently as we celebrate the Native American's supposedly benign stewardship of the earth.

Another example can be seen in the existence of the "sustainable development" movement. Critics have criticized some parts of the "sustainable development" movement as calling for draconian behavioral changes in the name of very little safety or environmental protection.(39) The movement is subject to such criticisms because it fails to admit that at its crux are deeply held philosophical values. The "sustainable development" movement at its simplest appears to be based upon the thought that we should live and develop economically in harmony with the earth. This is a philosophical goal in itself, and since it has value to us as a society, even when the movement's raison d'etre--apocalyptic visions of earth's destruction by resource degradation--is undercut by the scientific community, sustainable development remains.(40)

Whatever cultural, religious, or philosophical context it comes from, it is apparent that most in our society, at least at this time, do not want to interfere with God's or mother nature's earth by, for example, putting any "unnatural" toxins into the environment that can have long term effects. We are uncomfortable "playing God" with our environment and we are willing to pay for our philosophical position.

The fact that these policy choices are not always explicitly acknowledged should not detract from their value to society. Both sides of the regulatory debate often engage in a conspiratorial silence about these values. Those who hold philosophical values about environmental regulation often do not discuss them for fear of being labelled irrational, while those who do not hold these values do not emphasize their presence in others for fear that people will latch on to them as legitimate.

Other commentators have recognized even more elusive values, such as paternalism and forgiveness, associated with certain of our regulatory decisions, that come at a relatively high cost. As stated by Tom Isenberg, editor of FREE Perspectives for the Foundation for Research on Economics and the Environment, Inc.:

We all know the guilt-trip that comes with living in an affluent so-ciety. In decades past, those seriously afflicted would have paraded their concern for the poor. But a "deep commitment to social justice" is no substitute for substance. Further, many of the wellintentioned have grown disillusioned by the failure of government social programs. Even more irritating to their sensitivities is the seeming ingratitude and hostility of the poor.

Mother Nature seems a better comforter for the guilt-ridden. She has not brought her problems upon herself. She actually wants their help. While humanitarians often end up embittered cynics, envirotarians know that if animals could talk, they would bless them for their concern and assuage their guilt. The trees would surely love to hug them back .... [S]olutions may do more harm than good, but people cherish their own prejudices and want cheap grace.(41)

Similarly, human emotions other than the need for "cheap grace" may be at play in risk decisions. Many workers who will not wear protective clothing that would reduce their at-work risk from environment hazards are only too happy to require management to install expensive ventilation systems. Could it be because it represents perceived power that the worker has exerted over the employer in negotiations? Could some of our societal decisions on costliness and risk be a way for us to dominate other parts of society?

I am not presupposed to defending these values in the face of other legitimate concerns such as the preservation of human life. Nor do I guarantee that they always exist. But simply to dismiss the manifestations of these values as illogical or irrational does nothing to advance the discussion of where we should set regulatory levels. We do not even know how many people hold some or all of these values either consciously or unconsciously. It may be possible to change people's minds with education, but is this a worthy goal? Who is to say that one's sense of philosophy with respect to the earth is any less valuable than a life in a "rational" society? Not only does Justice Breyer not answer these questions, he also fails to ask them. Assuming we do feel that we need to alter the way we value certain things in response to risk through an education program, it is important that we know where our regulatory choices have come from. Someone has to rationally weigh the values of society that are represented in our regulatory system before our regulations are altered. Justice Breyer's book does not do this. Justice Breyer assumes a societal goal of efficient risk regulation that saves the most lives for the money expended. This ignores many of the other reasons behind our present regulations. If we do not know what values other than human lives saved that our regulations currently protect, changing course in mid-stream could do more harm than good.

IV. MAYBE THE PUBLIC IS RIGHT

By ignoring some of the underlying values at work in our regulatory choices, and thus making many of the current regulatory choices look foolish, Justice Breyer has also made it too easy to simply dismiss public opinion as irrational in the pure debate over the effect of certain regulated substances on human life. Justice Breyer implies that a public that is willing to spend almost a trillion dollars on toxic waste clean-up to save illusory lives cannot have much to add to the debate about logical risk regulation. But he barely mentions that the debates over environmental harms affecting human lives are not settled.(42) Even ignoring the fact that many regulatory choices are made for reasons other than human lives saved and examining only those parts of regulation that deal with risk to human lives, public choice and perception by default must be seen as dominant on any decision where scientific uncertainty over the risk of mortality is involved. Many experts may agree that toxic waste dumps are far less an important health risk than indoor radon, but there is also expert opinion that they could indeed cause significant threats to human life. To the extent that such uncertainty exists, what choice do we have than to defer to the public will as to where our priorities should lie? There is clearly a knowledge and trust gap with respect to what the government says is true and what people believe, but such skepticism is not necessarily irrational. One can look at the first tests of nuclear armaments and the radiation exposure received by armed forces personnel or other citizens to see that the governmental experts' decision on risk may not be the "best" one.(43) If the public does not make the decision, then who does? The experts? But who are the experts? Which experts?

In a democracy, all decisions ultimately live or die with the people. Justice Breyer recognizes this fact, and even if all other critiques of his proposal for regulatory reform that I have put forward are considered minor, his recognition of the role the public must always play in decision making contains the seed that undermines his proposal for a new risk regulatory agency.

V. HOW CAN THE NEW REGULATORY AGENCY COME INTO BEING AND MAKE SUPERIOR

DECISIONS?

Although Justice Breyer continuously criticizes our society's regulatory choices as being misinformed and subject to kinds of thinking that are impediments to "rational understanding,"(44) when it ultimately comes down to making decisions about where our regulatory priorities should lie, he comes back to the very same public (this time in the form of "focus groups") to decide the all important question of where to "help assign value to risk reduction."(45) But Justice Breyer never does explain why these public "focus groups" should be any more rational about risk policy choices than the public at large. Similarly, when discussing the fact that the EPA has failed to completely prioritize which toxic substances it will next regulate, he neglects to explain how his new regulatory risk agency will make that decision in a quicker, more cost effective fashion. Nor does he explain how the new agency will escape the same public pressures that drive the regulatory agenda of all of the individual agencies. Ironically, Justice Breyer even ignores the most obvious question: if the public is illogical in its decisions about risk, why would it logically choose to allow its Congress to implement the solution that he proposes? As noted by James Krier in his discussion of the formulation of an organization to correct market failure: "The public has to coerce the government to coerce it, and to do this the public must organize. Yet an inability to organize, or coordinate, is the problem to begin with."(46)

The truth is, of course, that any new agency created by this illogical, irrational public, by definition could not improve the current regulatory response we have, even accepting Justice Breyer's definition of the problem. Once one admits that we live in a democracy and that policy decisions about risk ultimately have to be made by the public, short of education or changing values, no real change in our agenda is possible. The laws that we now have, which require different regulatory agencies to value human lives or any other values differently, came from a Congress that is very much subject to the will of the people and reflects that will in all its glory of apparent inconsistencies and economic inefficiencies. Therefore, in hoping to break the vicious circle, Justice Breyer will simply start a new one with the same problems that he now sees.

VI. CONCLUSION

Maybe the circle should be unbroken but better analyzed. Because the policy objectives of our whole society may seem grounded in values or emotions not recognized or countenanced by the experts, they are too easily ignored or dismissed. This is ineffectual at best and dangerous at worst. Justice Breyer's book really misses its mark because it is myopically focused only on human lives saved. Unfortunately, such myopia is not uncommon.

It is always important to look for efficiencies, but these should be in the context of the values we have already expressed in our policy decisions. I believe that in order to do this we must not start with the assumptions that the decisions of our society about risk regulation are irrational but instead must start with the notion that our regulatory decisions are based on specific policy objectives and then identify them. When this is done we can more logically start looking at efficiencies or more accurately weigh the costs and benefits of our decisions. At that point in time, perhaps Justice Breyer could address the pluses and minuses of our decisions. Until then, though his book remains interesting, I do not believe it offers much hope of moving "toward effective risk regulation."

(1.)STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993). The Hon. Stephen Breyer is an associate justice on the United States Supreme Court. At the time he wrote the book, he was a judge on the United States Court of Appeals for the First Circuit.

(2.)Reform of the regulatory process is also suggested in MARC K. LANDY ET AL., THE ENVIRONMENTAL PROTECTION AGENCY: ASKING THE WRONG QUESTIONS (1990). For an overview of this synergism, see Frank B. Cross, The Public Role in Risk Control, 24 ENVTL. L. 887 (1994).

(3.)BREYER, supra note 1, at 24-27.

(4.)Id. at 55.

(5.)Id. at 59-68.

(6.)Id. at 74-78.

(7.)BREYER, supra note 1, at 11-19. The other two identified problems, random agenda selection and inconsistency, Id. at 19-20 and 21-29 respectively, I will discuss later in the context of "other values." See infra Part III.

(8.)Id. at 11-12 (citations omitted).

(9.)Id. at 19.

(10.)See generally R.M. Barnes, Childhood Soil Ingestion: How Much Dirt Do Kids Eat?, 62 ANAL. CHEM. 1023A (1990).

(11.)BREYER, supra note 1, at 12.

(12.)Id. (citing B.T. Mossman et al., Asbestos: Scientific Developments and Implications for Public Policy, 247 SCIENCE 294, 299 (Jan. 19, 1990)).

(13.)See generally 40 C.F.R. [sections] 763.90 (1993).

(14.)See Toxic Substances Control Act. 15 U.S.C. [sections][sections] 2661-2671 (1988 & Supp. V 1993); National Emission Standards for Hazardous Air Pollutants, 40 C.F.R. Part 61 (1993).

(15.)BREYER, supra note 1, at 24-27 (comparing the cost per premature death averted between an unvented space heater ban and a formaldehyde occupational exposure limit).

(16.)For instance, it may be true that passive restraint systems (seat belts) installed in new motor vehicles save one life for every $100,000 expended, but putting in two seatbelts for every person in the car at the same cost ($100,000 per person) cannot be expected to save any more lives than having one seat belt per person, let alone twice as many lives. This leads to the conclusion that resources cannot always be shifted from one health and safety program to another with a commensurate increase in the number of lives saved. There are natural limits to the effectiveness of some types of safety programs, and once they have become fully implemented, increasing resources to that safety program will not lead to any greater benefit no matter how much money is expended. In such cases, it makes sense to keep resources where they are, even if the average cost of lives saved in that program is higher than in another more saturated program.

(17.)BREYER, supra note 1, at 16-17.

(18.)W.D. ROWE, AN ANATOMY OF RISK 136-37 (1977); see also Daniel Goleman, Hidden Rules Often Distort Ideas of Risk, N.Y. TIMES, Feb. 1, 1994, at C1.

(19.)ROWE, supra note 18, at 135.

(20.)Chauncey Starr, Social Benefits Versus Technological Risk, 165 SCIENCE 1237, 1235 (1969).

(21.)My apologies to all "law and economics" types who might assert that the law should recognize whatever property rights and compensation schemes provide the overall lowest cost in societal expenditures.

(22.)This also provides part of the rationale for our society's preference for risks that individuals can control. Oftentimes risks outside of our control are also externalities of another's actions. See ROWE, supra note 18, at 61.

(23.)Toto's psychological costs must be considered when determining the most cost effective course for Dorothy to pursue.

(24.)Unless, of course, that right is bargained for.

(25.)See BREYER, supra note 1, at 23, 28.

(26.)LANDY ET AL., supra note 2, at 41.

(27.)See Clean Air Act, 42 U.S.C. [sections][sections] 7491, 7492 (Subpart II Visibility Protection, part of the Prevention of Significant Deterioration of Air Quality).

(28.)LEE DYE, BLOWOUT AT PLATFORM A: THE CRISIS THAT AWAKENED A NATION 90 (1971).

(29.)Respectively, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [sections][sections] 9601-9675 (1988 & Supp. IV 1992); the Resource Conservation and Recovery Act of 1976, 42 U.S.C. [sections][sections] 6901-6992k (1988 & Supp. IV 1992); the Toxic Substances Control Act, 15 U.S.C. [sections][sections] 2601-2671 (1988 & Supp. V 1993); and the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [sections][sections] 136-136y (1988 & Supp. V 1993).

(30.)Mary S. Wolff et al., Blood Levels of Organochlorine Residues and Risk of Breast Cancer, 85 J. NAT'L CANCER INST. 648 (1993).

(31.)RACHEL CARSON, SILENT SPRING (1962).

(32.)PAUL & ANNE EHRLICH, EXTINCTION 180 (1981). See also Patrick E. Tyler, A Tide of Pollution Threatens China's Prosperity, N.Y. TIMES, Sept. 25, 1994, at A3.

(33.)BREYER, supra note 1, at 14.

(34.)LANDY ET AL., supra note 2, at 41.

(35.)See generally BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COAL/DIRTY AIR OR HOW THE CLEAN AIR ACT BECAME A MULTIBILLION-DOLLAR BAIL-OUT FOR HIGH-SULFUR COAL PRODUCERS AND WHAT SHOULD BE DONE ABOUT IT (1982).

(36.)See Endangered Species Act of 1973, 16 U.S.C. [sections][sections] 1531-1544 (1988).

(37.)See Aldo Leopold, Immoral Man and the Moral Universe, in AMERICANS AND THE ENVIRONMENT 43, 52 (John Opie ed., 1971).

(38.)In a highly unusual action, the Endangered Species Act was explicitly overridden by Congress in the case of the snail darter, but originally it was applicable. See Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) (The Endangered Species Act prohibited completion of the dam because the dam would eredicate the snail darter or its habitat); Pub. L. No. 95-632, 92 Stat 3751 (1978) (Amending the Endangered Species Act).

(39.)John A. Baden, Chairman's Welcome: Balancing the Earth's Economy and Ecology, FREE PERSPECTIVES Vol. VII, Issue 2, Summer 1993, at 2.

(40.)It seems that the sustainable development movement grows stronger even though there is more publicized scientific uncertainty governing the catastrophic effects of global warming and greenhouse gases. See generally Jim Bailey, Sustainable Development: Searching for the Grail or a Wild Goose? 24 ENVTL. L. 1159 (1994) (reviewing THEODORE PANAYOTOU, GREEN MARKETS: THE ECONOMICS OF SUSTAINABLE DEVELOPMENT (1993)).

(41.)Tom Isenberg, A FREE Perspective: A Political Priesthood, FREE PERSPECTIVES Vol. VII, Issue 2, Summer 1993, at 2.

(42.)Where they are settled, as with asbestos regulation, commensurate remedial regulation has been forthcoming.

(43.)INTERAGENCY RADIATION RESEARCH COMM., U.S. DEP'T OF HEALTH AND HUMAN SERVICES, NIH PUB. NO. 81-507, SUDOC NO. 20:3002:R 11/3, NUCLEAR WEAPONS TESTING AND STUDIES RELATED TO HEALTH EFFECT: AN HISTORICAL SUMMARY (1980); see also Keith Schneider, New View of Peril from A-Plant Emissions, N.Y. TIMES, Apr. 22, 1994, at A21.

(44.)BREYER, supra note 1, at 35.

(45.)Id. at 75-76.

(46.)J. Krier, The Tragedy of the Commons, Part Two, 15 HARV. J.L. & PUB. POL'Y 325, 338 (1992).