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>>Douglas Kysar: I was asked to do a background paper on risk regulation by which i mean the
ways uh... in which society uses laws and regulations to manage threats to the environment,
health or human safety and the paper that's the basis for this presentation tries to uh...
provide an overview of concepts and controversies in this field of risk regulation and it tries
to do so in a way that's fair fairly fair and even-handed um... this talk will not be
fair and even-handed because what's the fun of that uh... instead, I'm going to present
uh... a really unfashionable argument which is that uh... I believe the future of risk
regulation should lie in the past uh... so like uh... like nigel cameron earlier who
described his talk as fairly a tad iconoclastic but i will also be going against the grain
of the dominant uh script right now that one finds uh... in the area of risk regulation
uh so that dominant script thing that uh... uh... we we we need to undertake a reform
story in which the excesses of our earlier efforts to manage environment health and safety
risks uh... are thought in need in need of disciplining now uh... by the twin insights
of sound science and economic reasoning now this is not merely an argument in favor of
using thorough and reliable empirical information about the consequences of policies because
after all no one would argue that policy should be based on moral principles alone right,
irrespective of the consequences of policies no one would argue that, right? instead the
economic reform story contends more specifically that regulation should be crafted to replicate
the workings of a hypothetical perfect economic market one which lacks messy features like
externalities or bargaining power or lack of information or other of these kinds of
failures of the market that are thought at least according to the office of management
and budget in the white house to be the the justification for collective political actions,
shoring up these failures of the market that helps to maximize overall welfare. now welfare
in turn is meant to be a very capacious concept it's meant to incumbent anything that's of
significance to human well-being but those consequences always have to be located within
an individual human citizens welfare function as opposed to some say collective entitiy
like an entire community that might be endangered uh... by the impact of climate change or perhaps
maybe a nonhuman entity that might be similarly threatened by climate change or worse yet
an endangered nonhuman species that doesn't happen to be a charismatic mega fauna. welfare
consequences in addition to being individualistic and human centered but also have to be converted
in some fashion to a common and continuous metric that treats all rights, all resources
uh... as tradable rather than some of them being separated out and treated as enviable.
so when we apply this to environment and safety regulations means that no resource can be
treated as sacrosanct instead even human lives because they're rendered commensurable in
monetization even human lives become indistinct within this purely consequentialist landscape
so when we combine that with the exclusively individualistic conception of where it is
that welfare resides the approach can lead to absurd results. for instance nothing within
the welfare economic framework precludes the possibility that it might appear to be welfare
maximizing to avoid regulations that are in fact necessary to avoid the extinction of
the human species. that is nothing within the framework excludes the possibility that
it could be efficient or welfare maximizing to sacrifice every single member of future
generations such the humanity ceases to exist. the stock of capital then that supposedly
survives to make those future generations better off will continue to grow exponentially
in bank accounts that are never withdrawn. nevertheless with its semblance of comprehensiveness
and uniform treatment the welfare economic framework promises a method by which all relevant
aspects of policy choices will be accounted for objectivity and even-handedly in the determination
of public policy now so compelling has this promise become that cost benefit analysis
is now regarded as a basically non-partisan and basically non-controversial fixture of
the regulatory state. i want to suggest that this tale in which risk assessment and cost
benefit analysis are the twin hero’s that save us from those excesses of 1970’s era
environmentalism i would suggest that that has caused us to lose sight of a great deal
of moral and practical wisdom that remains alive within those early and supposedly inefficient
environment laws i want to suggest we should go back to the future to recover this wisdom
before we set about writing the next chapter in the story. so to support this unfashionable
argument I’m gonna offer two quick examples from a recent EPA rule-making in which at
least in my view the economic approach to environmental law spilled over in the areas
beyond its competence. these examples come from a cost-benefit analysis the EPA conducted
in connection with the long-delayed rule to try to reduce mercury emissions uh... from
power plants now the primary health benefit that was assigned uh... to the mercurial consisted
of avoided instances of mental impairment to infants from inutero exposure uh... due
to elevated maternal blood mercury levels from eating contaminated fish. so to assess
the welfare significance of this health benefit the EPA’s uh... regulatory analyst first
estimated the number of IQ points that otherwise would be lost from mercury admissions uh...
which they then transformed in the dollar values by referencing empirical studies that
find a correlation ship between IQ levels and unexpected earning potential now citing
a need to be comprehensive though they then reduce the dollar value of these lost IQ points
due to the fewer years of education that people with lower IQ’s typically seek which in
turn state society the resources of tuition expenses and foregone years of productive
labor when you’d otherwise be at school. now to see why this approach was inadequate,
consider what would have followed up the cost of higher intelligence had turned up actually
to be even greater than the enhanced earning potential. if it's true that “everything
depends on what the facts turn out to be” as the cost-benefit proponent would have it
that it could well have been optimal for the EPA to mandate increased mercury emissions
because IQ level of our children would've appeared to be inefficiently high according
to the EPA’s welfare account or imagine for a moment that the question facing us was
not whether to allow the mercury emissions to inflict harm on unborn children but whether
to use generic engineering techniques to directly create newborns with reduced intelligence.
at that point now some might invite philosophical debate about whether ignorance truly is bliss
but would anyone seriously contend that the question should be resolved by comparing earning
potential with avoided tuition expenses. although the example’s purely hypothetical the critical
in the little point is that there are no resources within the welfare economic paradigm to avoid
this conclusion. just as it can appear to be welfare maximizing because future generations
to cease to exist society also can appear to be better off with the mental capacity
of its children deliberately impaired. now similar confusion occurs with respect to the
role of what's called victim avoidance behavior in the economic analysis of environmental
law. Occasionally, the harms of pollution and other environmental impactful activities
can be avoided either by reducing those harmful activities, or through the adoption of avoidance
behavior on the part of the threatened individuals. so in the mercury emissions rule-making, a
key issue raised by environment justice advocates centered around higher levels of contaminated
fish consumed by members of the pacific northwest and great lakes- the great lakes native american
tribes. Caus- because they're primarily subsistence fishers. so because of this higher level of
exposure, the question then arises for our policy analyst should the tribe's be made
to abandon their traditional practices if it would be monetarily cheaper for them to
avoid being harmed then for society to avoid harming them. so from the welfare economic
perspective there's no optimary reason to prefer one with the other approach because
everything depends on cost and benefit stripped of moral content. indeed the genius of Ronald
Coase’s famous article “the problem of social cost” lies precisely in upsetting
traditional ways of describing environmental problems through moralized terms like victim
and polluter. earlier the british economist Arthur Pigou argued that industrial firms
impose these negative externalities, these spillover harms Um Coase instead insists on
seeing only reciprocal relationships between parties who desire to use it for resource
like the atmosphere in a way that can't be jointly achieved. so we have a kind of thinning
out of environmental laws normative dimensions and that continues today in the apparent global
consensus for cap and trade as the ideal greenhouse gas policy mechanism. a policy that might
promote allocate of efficiency but that might also tend to obscure questions like who is
admitting for what purpose and in light of what historical contribution to the existing
greenhouse gas problem. now the EPA did not add much moral texture in its environmental
justice analysis for the mercury rule. rather than truly acknowledge that man’s highest
costs and benefits can’t exhaust the normativity of policy-making rather than engage in a thorough
inquiry into what it means in moral and historical terms to force native american subsistence
fishers to choose between their health and a cultural practice that is significantly
constitutive of their identity rather than do that, the EPA instead reported with apparent
relief that the admissions limits it shows were not so stringent that tribes would be
disproportionately benefited by the rule. so in other words because the traditional
practices of tribes made them more vulnerable to mercury pollution they had more to gain
from pollution reduction. so i'm not making this up apparently it would have been unjust
from the EPA’s perspective to bring all groups to the same level of health risk from
mercury exposure because some groups have a higher baseline risk level. but that of
course assumes that this baseline risk level is somehow morally neutral and that all we
need to do is look than it costs and benefits stripped of content when we make our laws
and regulations rather than look at the moral texture of our history. i believe that passing
moment in the EPA rulemaking is revealing. i think only in overextended form of welfare
economic reasoning one that sees disembodied welfare impacts to the exclusion of the lives
and the communities and histories that are visited by those impacts could have identified
unfair benefits to native americans as the chief environmental justice concern at issue
in mercury. consider as an analogous case of anti-discrimination law where we've attempted
with some success to force employers to hire, promote, and fire without regai- regard to
race and other protected status’ so in the absence of those legal protections many individuals
within disadvantaged groups historically attempted to mask their identity in order to pass as
a member of the dominant group and therefore receive equal or at least uh... better treatment.
so to the welfare economists whose been tasked with quantifying the costs and benefits of
anti-discrimination law, the fact that members of the minority group no longer have to cover
their identity uh... might be an identifiable and might even be a quantifiable benefit of
the law. but if the welfare analyst then went further to express concern that minority groups
would be disproportionately benefited by anti-discrimination law since members of the dominant group don't
have these covering expenses to save, then the analyst would have lost sight of the moral
ground for legislative action if he goes even further to suggest the covering might be a
less expensive way for minorities to receive equal treatment than anti-discrimination law
then to echo the philosopher bernard Williams, “the analysts will have had one thought
to make” at that point the analyst will have made the content of anti-discrimination
laws depend on its consequences rather than having left those consequences flow from laws
morally determined content. in my view much confusion and controversy in the environmental
field arises because we are having one thought too many. as a result the economic approach
condemns laws as inefficient or misguided without actually understanding their aim the
monetary value of human life is made to reflect the apparent willingness to play of workers
to reduce their occupational risk in the market when instead the value of those workers laws
is meant to be enhanced through democratically conferred legal protection the environmental
fate of future generations is made to depend on values like the present interest rate when
instead those values are supposed to depend on a legal market backdrop that includes sustainability
constraints on resources. the likelihood that uncertain but potentially catastrophic events
will occur is made to depend on subject of estimates of technocrats when instead that
likelihood should hinge on whether the responsible political communities want to countenance
disaster among their lag- legacy of achievements. so in short, the promise of environmental
law is that the needs of future generations and non human life forms and other missing
interest holders can be given foundational legal importance so that ensuing costs and
benefits that are observed by economists reflect a prior determination by the political community
to pursue sustainability. proponents of regulatory cost-benefit analysis instead try to force
sustainability into the language of a pre-existing costs and benefits schedule that simply read
from an unsustainable and arbitrarily privileged status quo. lawmaking than on this count comes
to mean ever more refined tinkering with a given liberal market system, the underlying
unexamined rules of which form the set of constraints under which welfare maximization
occurs. Law cannot self-negate in this way, i submit much of law is marginal and incremental
in nature but unless potential moments of upheaval are always latent within it it ceases
to be responsive to its subjects. indeed it ceases to be law in that it no longer represents
the self-expressed commitments of an integrative political community. to commit to laws, to
have the power to remake so this suggests a need to reinvigorate environmental law.
Not in welfare as terms but in terms of the ethical self-understanding of its authors.
I.E. us. what would such a reinvigoration look like? it's actually not that hard to
imagine. like anti-discrimination law, much of environmental law was on a course for foundational,
even constitutional significance until a rash of restrictive court interpretations in a
changing political context resulted in a downgrading of the power and naming it environmental law.
and when i say constitutional in this sense I imagine something that occurs well beyond
the four corners of the written Text, and the four walls of the supreme court. in some
cases, foundational legal change occurs through much more diverse and diffuse mediums, including
through movement parties, through dramatic shared social experiences, through highly
symbolized presidential elections, the passing of landmark statutes like the civil rights
act or the social security act. this broader array of constitutional determinants can under
certain circumstances come together to enable the proposal, the acceptance,and the consolidation
of a constitutional change that's just as powerful powerful as a formal uh... and more
conventionally studied mechanism uh... like formal amendment or judicial interpretation.
so could we profitably understand 1970’s era federal environment statutes from this
perspective? after all the environmental movement modeled its litigation and media and advocacy
strategies on the civil rights movement. broad acceptance of environmental goals and values
within culture, coinciding with similar progressive changes and attitudes toward race uh... and
equality. environmental legislation at least in the early days enjoyed extraordinary levels
of bipartisan support. indeed even our most environmental president is none other than
richard nixon who created the EPA and accepted environmental policies in a way that led to
its ultimate foundational legitimacy just as his refusal to block the civil rights act
helped to signal the ultimate constitutional success of the second reconstruction. So,
also like federal civil rights legislation many of the landmark federal environmental
statutes on their face seem to aspire to something much more dramatic than business as usual
lawmaking. unless you're already aware of the way in which the national environmental
policy act was subsequently curtailed by judicial interpretation, you can only read that statute
as a deliberate effort to revolutionize the approach of agencies in courts to the implementation
of all law. this was an aspirant to super statute status if ever there was one. indeed
though scarcely noted today, the EPA contains language in its preamble that could be read
to confirm environmental right, a human right to environmental protection. equally ambitious
from this perspective was the endangered species act which is non-anthropocentric in its orientation
in which binds not only public actors but private actors, binds them in service of a
collective goal to stop the the the destruction of biodiversity. um... and the clean up water
act which flatly prohibits degradation of high quality waters irrespective of economic
costs of doing so. the clean air act which best such far reaching regulatory power there
were only just now beginning to realize what have congress wrought as the EPA decides whether
to implement the act in the context of greenhouse gas emissions. so had we the people remained
committed to the reformist division found within the statutes, and had the statute's
been implemented according to their terms and their vision, then they would not look
to us today idealistic or naïve, in the way that commentator's describe them to be. that's
because the technologies and the knowledges and the values we would use to assess the
statutes would be quite different. nor with those statutes be easily dismissed as economically
inefficient that's because we'd be unable to ignore the fact that the statutes aim to
alter the underlying technological and informational systems that give rise to those cost-benefit
values that they will later decide to use to assess whether or not something is efficient.
environmental law would then neither operate nor be evaluated at the margins. instead it
would be a central part of our conversation of constitutional uh... embodiment. one way
to resume this conversation right now, a practical way would be to resist the economist mantra
that trade-offs are inevitable. instead we should recall that there is nothing inevitable
about the manner in which knowledge is organized to create the perception of a need for tradeoffs.
Indeed, indeed when we're faced with the tradeoffs refrain our impulse always should be to reevaluate
the underlying empirical and normative assumptions that are driving the appearance of inconsistent
goals. so one thing we should do for instance is resist the notion that any unitary concept
of value, like willingness to pay could ever be adequate for our needs. whatever metric
which used to conduct welfare analysis, the danger rise they will come to crowd out other
ways in conceptualizing well-being. significant questions become effectively embargoed because
the optimizing logic of cost-benefit analysis attach is an efficiency price on anything
that deviates from its norms of valuation. we should instead require agencies to deploy
multiple value metrics when they undertake economic analysis this would rip this would
prompt serious discussion regarding the merits of these competing welfare criteria. cost
and benefit data that they might become de-naturalized especially as it pertains to the existing
pattern of right and resource distribution in society. the politics of stasis that we
associate with cost-benefit analysis might become replaced by politics of possibility.
more broadly liberal constitutionalism should view itself as a work in progress. Asymptotically
structured, striving towards this unattainable but Undeniable goal of universal recognition
and respect. environmental law raises questions that simply can't be subsumed within the cost-benefit
framework. questions that in my view haunt the liberal vision of harmony in just the
right way. these questions concern the standing of what we call environmental laws others,
statistical victims, members of other nations, future generations, non human life forms.
typically within economics we value these others only insofar as they are held as optics
of value by whoever we acknowledge and give standing as a member of the cost-benefit community.
to meet the ethical demand raised by environmental law requires more i believe in the way of
humility and striving and unflaggin self-awareness than it does in scientistic or rationalism
rigor. it requires awe have to share power of being in history of being able to influence
history by connecting thought to action in the world that is already otherwise connected.
And that accordingly will react in ways we cannot foresee and often will not desire.
if we take it to an extreme this all would lead us like janis to gingerly step behind
brune surfaces lest we make moves that cause death even to the insects that lie beneath
the reach of our vision but the basic wisdom this central wisdom is that causing death
must always be done with solemnity and with the hope of greater precaution tomorrow. so
i hope that was adequately polemical to inspire a question or two...