=======================Electronic Edition========================
RACHEL’S HAZARDOUS WASTE NEWS #394
—June 16, 1994—
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Risk Assessment — Part 2:
JUDGE BREYER’S PRESCRIPTION FOR RISK
Reluctantly, President Clinton has nominated Stephen Breyer to
the Supreme Court of the United States. Mr. Breyer presents
himself as an expert on risk assessment; he has even written a
book on the subject, BREAKING THE VICIOUS CIRCLE, subtitled
TOWARD EFFECTIVE RISK REGULATION. [1] Examining Mr.
Breyer’s
book on risk provides an opportunity to extend our discussion
from last week about the insuperable shortcomings of risk
assessment. It will also help us learn what Mr. Breyer believes
about risk in a democracy.
Risk assessment has 4 parts, says Mr. Breyer [pg. 9]: (1)
identifying the potential hazard (i.e., defining the toxicity of
the substance in question); (2) drawing a dose/response curve
(i.e., deciding how much of a substance will cause how much
damage); (3) estimating the amount of human exposure; and (4)
categorizing the result (i.e., putting it all together to state
the probability of a certain kind of damage).
Mr. Breyer says 2 of these 4 steps are particularly difficult:
“In carrying out these activities, particularly in making
dose/response and exposure estimates, regulators often find that
they simply lack critically important scientific or empirical
data: they do not know how many Americans inhale how much
benzene at gasoline stations; they do not know the extent to
which the biology of a rat or mouse resembles, or differs from,
that of a human being. In such instances, they will often make
a ‘default assumption’–a formalized guess–designed to fill the
gap and to permit the regulator to continue the analysis.” [We
note that Mr. Breyer is in complete agreement here with the risk
expert we quoted last week, Joseph V. Rodricks; what Mr. Breyer
calls “default assumptions,” Mr. Rodricks called “science policy
choices” but they are the same thing — informed guesses.)
Guesses to fill data gaps are not science. They are political
judgments.]
Having defined risk assessment [correctly, we believe], Mr.
Breyer now describes the larger problem of regulating risks, or
“the vicious circle.” The problem has 3 parts: public
perception, Congress, and uncertainties in the regulatory
process.
The problem of “public perception” is that the “experts” and the
public often disagree on what’s an important risk. For example,
Breyer says, the public ranks toxic dumps and nuclear power as
big risks but the experts rank them as small risks. [pg. 33]
The problem with Congress is that it is “not institutionally
well suited to write detailed regulatory instructions that will
work effectively” because (a) it writes one law at a time, (b)
its committees have various priorities, and (c) “Finally,
Congress is highly responsive to public opinion, as it ought to
be.” Even though Congress “ought to be” responsive to public
opinion, the public “finds it difficult to order risk
priorities” and therefore Congress has the same difficulty. [pg.
42] For these reasons, Congress can never be effective at
dealing with risk, in Mr. Breyer’s view.
The 3rd element of the “vicious circle,” Mr. Breyer says, is the
“enormous uncertainties, almost inevitably present, in any
practical regulatory effort to carry out the four stages of risk
assessment earlier described– identifying the hazard, relating
response to dose, estimating exposure, and characterizing the
risk.” [pg. 43]
The discipline called “toxicology” is part of the problem, says
Mr. Breyer. “Like civil engineering, toxicology embodies as a
disciplinary canon the importance of ‘erring on the safe
side.’” This assumption that we should err on the side of
safety is a key part of the problem, Mr. Breyer says. He says,
“Two scientifically plausible models for the risk associated
with aflatoxin in peanuts or grain may show risk levels
differing by a factor of 40,000.” From this, Breyer concludes
that, “With estimates that vary by such magnitudes, a simple
retreat to the toxicological principle of erring on the side of
safety will not solve the problem.” [pg. 45]
He then goes on to emphasize how little science can actually
tell us about the effects of most toxins on human health [again,
agreeing with toxicologist and risk assessor Joseph V. Rodricks,
whom we quoted last week]. Then Breyer says, “These
uncertainties, knowledge gaps, default assumptions, guesses, and
communications difficulties, all embodied in the technical
regulatory process, spell trouble…. Such a system, in respect
to small risks, and with assumptions of varying reasonableness,
can produce random results.” [pg. 48]
These uncertainties become political opportunities, Breyer says:
“The very fact that the many assumptions required by
uncertainties are not clearly derivable from science can make
them a lightning rod for contending political forces. Regulatory
bodies, after all, are politically responsive institutions, with
boards, commissioners, or administrators appointed by the
President, confirmed by the Senate, written about by the press,
and, from time to time, summoned by Congressional committees to
give public testimony. Their agendas, within limits, respond to
the public’s demands. Their choices of default assumptions, to
a degree, can respond to the desire of the President, Congress,
Congressional staffs, interest groups, or the agencies
themselves to appear especially careful to err on the safe side,
or, alternatively, to show sensitivity to economic costs.” [pg.
49]
Having established that risk assessment is a highly political,
not a scientific, enterprise, and is subject to pressures from
“the public’s demands,” Mr. Breyer develops his solutions:
We can’t change people, and we can’t change Congress, so we’ve
got to change the third element of the “vicious circle,” Mr.
Breyer argues. We’ve got to change the regulatory process.
Mr. Breyer’s solution is a “small, centralized administrative
group” [pg. 60] whose mission will be to develop risk
regulations. This group must have 5 characteristics [pgs.
60-61]:
(1) a mission to develop a risk-regulating system, to create
priorities within government programs, and to determine how to
allocate resources to reduce risks.
(2) Interagency jurisdiction, to transfer funds, say, from the
toxic waste program to vaccination programs and prenatal care,
for example, Mr. Breyer says.
(3) A degree of “political insulation” so it can withstand
“political pressures” that “emanate from the public directly or
through Congress or other political sources.”
(4) Prestige, so it can attract a capable staff.
(5) Authority, so that it has “a practical ability to achieve
results,” Breyer says. [Later, on page 72, Breyer suggests
giving the group real power: “perhaps such a group would begin
to consider whether proposed rules, regulations, or major agency
actions are ‘arbitrary, capricious, an abuse of discretion’–a
legal authority that would bring with it enormous power,” Breyer
says.]
Are you getting the picture? Mr. Breyer says our problem is
that we’re wasting money on insignificant problems like toxic
chemicals and nuclear power regulation. This occurs because the
“experts” are outweighed in the political process by the general
public, operating through Congress. The general public has
different priorities from the experts. Congress listens too
much to the public and not enough to the experts. Mr. Breyer is
clearly saying, what we need is an elite corps of experts to
make decisions for us about risk.
How would this elite group of risk assessors, empowered to
create priorities, allocate resources, and achieve results,
really work? Mr. Breyer offers 5 hints:
(a) They might simply declare some risks too small to worry
about. These would be termed de minimus risks. [pgs. 64-67]
(b) They would call upon risk assessment expertise from outside
government.
(c) The group would develop “models” to achieve “higher quality
analysis and better results.” In other words, better risk
assessments.
(d) The group could develop a “risk agenda” and then look for
practical ways to save money on some programs and transfer those
funds to other programs. Here Breyer repeats his example of
taking funds away from toxic waste cleanup and transferring them
to pay for vaccinations, or prenatal care, or mammograms.
[Clearly Mr. Breyer believes we are a society that cannot afford
to clean up toxic wastes AND vaccinate our children AND provide
prenatal care AND provide mammograms.]
(e) They might consider the risk-related impacts of future
scientific changes, Breyer says: “Suppose, for example, that
medical research identifies particular groups of persons
genetically predisposed to develop cancer when exposed to
certain chemicals. Society should not ignore their special
plight. Yet it may prove nearly impossible, and sometimes
inordinately expensive, to grant them a ‘right’ to the lowest
possible risk and then limit society’s use of chemicals to which
they specially react. It might well be more effective to
provide them with special counseling that includes information
about how to avoid exposure to the carcinogens to which they are
particularly susceptible.” [pg. 67]
[Mr. Breyer is clearly ready to have his elite group declare
null and void every citizen’s right to clean air and water. And
what about his suggestion that, instead of controlling toxic
releases, we should tell people how to avoid particular toxins?
How would we tell the eagles and the salmon to avoid toxins? Or
don’t they matter?]
Are there any precedents for similar groups operating anywhere
in the world? Yes, says Mr. Breyer, France has the Conseil
d’Etat, an elite civil service group that reviews the
“administrative lawfulness” of government actions and proposed
regulations. Is there any precedent in the U.S.? Yes, says Mr.
Breyer; one is “the Armed Forces–not an open institution, but
one which has successfully carried out its mission.” [pg. 78]
Mr. Breyer does not seem to recognize that the chemical risk
problems he seeks to remedy were created chiefly by two
institutions: the armed forces, and private industry.
Historically, both these institutions have enjoyed almost
complete “political insulation” of the kind Mr. Breyer advocates
for his elite corps of risk assessors. Furthermore, both of
these institutions have always had access to the best technical
experts money can buy. Indeed, technical experts shielded from
political accountability were, and are, the main engine driving
the global environmental crisis.
As for developing better risk assessments based on “better
models”: if science cannot provide consistent and reproducible
results about risks, as Mr. Breyer correctly says science
cannot, then his “better models” cannot be based on science.
They must therefore be based on political judgments. Whose
judgments? Those of Mr. Breyer’s elite corps of politically
insulated risk experts.
Is Mr. Breyer’s final solution better than the democracy
presently written into our Constitution? All we can say is, it
would certainly be radically different.
                
                
                
                
    
–Peter Montague
===============
[1] Stephen Breyer, BREAKING THE VICIOUS CIRCLE (Cambridge, Ma.:
Harvard University Press, 1993).
Descriptor terms: clinton; stephen breyer; breaking the vicious
circle; risk assessment; supreme court; democracy;