Risk Regulation At Risk: Restoring A Pragmatic Approach - Brossura

Shapiro, Sidney A.; Glicksman, Robert L.

Brossura

ISBN 10: 0804751021 ISBN 13: 9780804751025

Casa editrice: Stanford Law & Politics, 2004

Riassunto

In the 1960s and 1970s, Congress enacted a vast body of legislation to protect the environment and individual health and safety. Collectively, this legislation is known as “risk regulation” because it addresses the risk of harm that technology creates for individuals and the environment. In the last two decades, this legislation has come under increasing attack by critics who employ utilitarian philosophy and cost-benefit analysis. The defenders of this body of risk regulation, by contrast, have lacked a similar unifying theory.

In this book, the authors propose that the American tradition of philosophical pragmatism fills this vacuum. They argue that pragmatism offers a better method for conceiving of and implementing risk regulation than the economic paradigm favored by its critics. While pragmatism offers a methodology in support of risk regulation as it was originally conceived, it also offers a perspective from which this legislation can be held up to critical appraisal. The authors employ pragmatism to support risk regulation, but pragmatism also leads them to agree with some of the criticisms against it, and even to level new criticisms of their own.

In the end, the authors reject the picture—painted by risk regulation’s critics—of widely excessive and irrational regulation, but the pragmatic perspective also leads them to propose a number of recommendations for useful reforms to risk regulation.

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Informazioni sugli autori

Sidney A. Shapiro is Professor of Law at the Wake Forest University Law School. Robert L. Glicksman is Robert W. Wagstaff Professor of Law at the University of Kansas School of Law.

Sidney A. Shapiro is Professor of Law at the Wake Forest University Law School. Robert L. Glicksman is Robert W. Wagstaff Professor of Law at the University of Kansas School of Law.

Dalla quarta di copertina

In the 1960s and 1970s, Congress enacted a vast body of legislation to protect the environment and individual health and safety. Collectively, this legislation is known as “risk regulation” because it addresses the risk of harm that technology creates for individuals and the environment. In the last two decades, this legislation has come under increasing attack by critics who employ utilitarian philosophy and cost-benefit analysis. The defenders of this body of risk regulation, by contrast, have lacked a similar unifying theory.
In this book, the authors propose that the American tradition of philosophical pragmatism fills this vacuum. They argue that pragmatism offers a better method for conceiving of and implementing risk regulation than the economic paradigm favored by its critics. While pragmatism offers a methodology in support of risk regulation as it was originally conceived, it also offers a perspective from which this legislation can be held up to critical appraisal. The authors employ pragmatism to support risk regulation, but pragmatism also leads them to agree with some of the criticisms against it, and even to level new criticisms of their own.
In the end, the authors reject the picture—painted by risk regulation’s critics—of widely excessive and irrational regulation, but the pragmatic perspective also leads them to propose a number of recommendations for useful reforms to risk regulation.

Dal risvolto di copertina interno

In the 1960s and 1970s, Congress enacted a vast body of legislation to protect the environment and individual health and safety. Collectively, this legislation is known as risk regulation because it addresses the risk of harm that technology creates for individuals and the environment. In the last two decades, this legislation has come under increasing attack by critics who employ utilitarian philosophy and cost-benefit analysis. The defenders of this body of risk regulation, by contrast, have lacked a similar unifying theory.
In this book, the authors propose that the American tradition of philosophical pragmatism fills this vacuum. They argue that pragmatism offers a better method for conceiving of and implementing risk regulation than the economic paradigm favored by its critics. While pragmatism offers a methodology in support of risk regulation as it was originally conceived, it also offers a perspective from which this legislation can be held up to critical appraisal. The authors employ pragmatism to support risk regulation, but pragmatism also leads them to agree with some of the criticisms against it, and even to level new criticisms of their own.
In the end, the authors reject the picture painted by risk regulation s critics of widely excessive and irrational regulation, but the pragmatic perspective also leads them to propose a number of recommendations for useful reforms to risk regulation.

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Risk Regulation at Risk

Restoring a Pragmatic ApproachBy SIDNEY A. SHAPIRO ROBERT L. GLICKSMAN

Stanford University Press

Copyright © 2003 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-5102-5

Contents

PREFACE........................................................ix1 Pragmatism and Risk Regulation..............................12 Principles of Pragmatic Risk Regulation.....................143 The Structure of Risk Regulation............................314 The Rationale for Risk Regulation...........................465 The Critique of Risk Regulation.............................736 Valuation Methods...........................................927 Regulatory Impact Analysis Requirements.....................1218 Pragmatic Methods of Regulation.............................1479 Promoting Accountable Risk Regulation.......................78APPENDIXES.....................................................209NOTES..........................................................215INDEX..........................................................267

Chapter One

Pragmatism and Risk Regulation

The 1950s were a time of unprecedented prosperity in the United States. Housing starts skyrocketed and highway construction reached into virtually every corner of the nation. This frenetic development helped produce a booming economy, but modern technology also extracted a considerable toll on humans and the environment. Congress responded to the growing public awareness of these events with an outpouring of legislation whose scope was unprecedented, even by the standards of the New Deal. Congress enacted comprehensive changes to air, water, and pesticide regulation; created new agencies to regulate dangerous automobiles, consumer products, and workplaces; and gave existing agencies, such as the Food and Drug Administration (FDA), new authority to regulate. According to various (conflicting) estimates, Congress during this period passed sixty-two consumer protection laws and seven occupational safety and health laws, twenty-five consumer, environmental, or social regulatory laws, and forty-two laws to regulate business.

Until Congress acted, the federal government had little involvement in solving the various problems that were targeted by the new legislation. Instead, the country had relied primarily on the tort system, administered by the state courts, to address personal and environmental injuries. The tort system promotes safety by requiring a person who has injured someone else to pay compensation if the defendant has violated applicable tort rules that define when compensation is due. Risk regulation, by comparison, seeks to reduce personal and environmental injuries before they occur by addressing the potential causes of such injuries-that is, the "risk" of such injuries. Because risk regulation operates before injuries occur, it does not require that people die or be injured, or that the environment be harmed, before it goes into effect. By design, risk regulation is preventative in character.

Since the 1970s, risk regulation has come increasingly under vigorous attack. Criticisms have arisen in academia, particularly among economists who analyze government regulation, and they have been popularized by well-financed conservative think tanks in Washington. The mantra of these criticisms is that risk regulation is "irrational." Risk regulation is irrational, they maintain, because regulators too often address problems that pose minimal risks to the public or the environment and ignore other more pressing problems. Risk regulation is also irrational because regulators too often impose solutions whose economic benefits to the public are millions (or even billions) of dollars less than the economic costs of the regulation. To address the problems they perceive, the critics would subject risk regulation to a cost-benefit test and other decision-making methodologies that generate, in their view, more rational regulation.

The goal of this book is to examine closely the nature of risk regulation and its results. Our argument is that risk regulation is "pragmatic," and that the results of that regulation likewise have been pragmatic. When we say that risk regulation is pragmatic, we mean it is consistent with the tradition of American philosophical pragmatism that dates back to John Dewey. We are not making a historical claim: we do not assert that the members of Congress consciously sculpted the legislation in light of pragmatic precepts. We do claim, however, that the structure of the legislation is consistent with pragmatic principles and that pragmatism is an appropriate baseline from which to design and implement risk regulation.

We reject the unrelenting attack on risk regulation by its critics. Risk regulation is not perfect, some of the criticism of risk regulation is justified, and we will endorse a number of reforms. The basic structure of risk regulation, as it currently exists, however, better accommodates the difficult policy issues-particularly the difficult value conflicts-that must be resolved for regulation to occur than the structure favored by the critics. Moreover, according to the existing evidence, risk regulation accommodates these tradeoffs without producing the type of extreme consequences that the critics claim. Our ultimate conclusion is that pragmatism offers a better way of conceiving and implementing risk regulation than the economic paradigm favored by the critics. Our analysis of pragmatism and risk regulation begins with a description of the origins of risk regulation and the nature of the criticisms that have been made regarding it.

The Origins

Popular consciousness began to focus on the risks associated with modern technology after scientists discovered the presence of strontium 90 in milk, apparently as a result of the radioactive fallout from the testing of atomic weapons. In the early 1960s, Rachel Carson's book Silent Spring called attention to the environmental destruction caused by the widespread use of pesticides, while Barry Commoner's book The Closing Circle warned that, unchecked, the use of "counter-ecological technologies" could result in environmental ruin. These academic warnings were confirmed by events such as the routine smog alerts in Los Angeles in the 1960s and the Santa Barbara oil spill in 1969. At about the same time, the public learned that modern medicines could injure, as well as heal, after it was revealed that Frances Kelsey, an employee of the FDA, almost single-handedly kept thalidomide from being sold in the United States. Dr. Kelsey acted before it became widely known that the use of the drug in Great Britain had resulted in serious birth defects among children whose mothers had taken it while pregnant. The issue of automobile safety came to the public's attention after General Motors admitted in a congressional hearing that it had hired private investigators to follow Ralph Nader in order to discredit his book Unsafe at Any Speed. Frequent mining catastrophes, such as the death of eighty-eight miners in Farmington, West Virginia, and the discovery of new occupational diseases, such as "brown lung," focused the public on occupational safety and health risks.

By the late 1960s, Congress had determined that the tort system, augmented by minimal federal regulation, was incapable of providing an effective response to the increasing threats to the public health and safety and the environment attributable to new technologies and development. The legislation that resulted included several statutes that constitute the heart of risk regulation. Congress adopted the National Environmental Policy Act (NEPA) in 1969, the Clean Air Act (CAA) and the Occupational Safety and Health Act in 1970, and the Federal Water Pollution Control Act amendments two years later. In the next decade, Congress added the Consumer Product Safety Act; Federal Insecticide, Fungicide, and Rodenticide Act; Safe Drinking Water Act; Toxic Substances Control Act; Comprehensive Environmental Response, Compensation, and Liability Act; and the Solid Waste Disposal Act.

Risk Regulation

The environmental and consumer movements that were instrumental in obtaining risk regulation were premised on the belief that the operation of private markets must be consistent with the social values that citizens establish through democratic deliberation and lawmaking. The supporters of these movements also believed that public participation in regulatory decisionmaking was necessary to ensure that laws-and the social values they embody-were faithfully implemented after their enactment. This section indicates how these beliefs led to two fundamental shifts in the nature of the regulation of technological risks.

Social Values and Private Markets

In the 1950s, Louis Hartz wrote his famous book, The Liberal Tradition in America, which perceived wide public support for the political values associated with John Locke-especially atomistic individualism, capitalism, and limited government. Thus, in the Lockean tradition, government is only a corrective instrument at the margins of economic markets, and the nature of the federal government in the 1950s reflected that axiom. There was only very limited federal regulation of the type of hazards addressed by current risk regulation. Instead, to the extent that such risks were addressed, it was by state tort law, which, as we explain below, is based upon traditional liberal principles.

With the 1960s, in Samuel Huntington's words, came a "spirit of protest, the spirit of equality, the impulse to expose and correct inequities that were abroad in the land." The "themes of the 1960s," Huntington continues, "were those of Jacksonian Democracy and the muckraking Progressives; they embodied ideas and beliefs which were deep in the American tradition but which usually do not command the passionate intensity of the commitment that they did in the 1960s." Michael McCann calls the 1960s reformers "public interest liberals" because, while they agreed with many of the concepts of traditional liberalism, they also looked to government regulation to right the wrongs of the time-to regulate in the "public interest."

Thus, the supporters of risk regulation believed that a society uses its political system to establish collective social values that define how citizens will interact. Once those values are defined, citizens accept the operation of the market system only to the extent that it does not conflict with collective social values. As Richard Andrews explains, "In this conceptual framework, government is ... [a] central area in which members of society choose and legitimize ... their collective values. The principal purposes of legislative action are to weigh and affirm social values and to define and enforce the rights and duties of members of society, through representative democracy." For supporters of risk regulation, the protection of individuals and the environment from the harm posed by technology is a preeminent social principle. Risk regulation implements these collective values.

The importance of protecting human life and the environment led the 1960s reformers to reject tort law as the basis of government regulation of technological risks. In a tort system, persons who have been injured by corporate behavior have the burden of initiating expensive legal action to prove that their injury was caused by the defendant's actions. Moreover, someone who anticipates a potential injury usually cannot obtain protection against that risk. Although injunctive relief is theoretically available in actions such as private nuisance to avoid harms alleged to be the imminent result of technological development, the courts are reluctant to enjoin such "anticipatory nuisances" on the basis of the plaintiff's speculation.

In light of its evidentiary burdens, tort law starts with the baseline assumption that individuals and corporations that operate in private markets should be free from government regulation until and unless a plaintiff can compile convincing proof that their conduct has caused an injury to a person or that person's property. This baseline comports with traditional liberalism and its emphasis on limited government, private autonomy, and the protection of private markets.

The impotence of tort law was vividly demonstrated in the 1960s by the various prominent accidents and environmental injuries that occurred. Tort law failed in part because of what Talbot Page has called "ignorance of mechanism." The tort system will not compensate an individual unless that person has convincing evidence that the defendant caused the plaintiff's injury. If, however, the injury is allegedly caused by exposure to chemicals or other by-products of technological activity, few plaintiffs will be able to meet their burden of proof because the mechanisms of cancer are still not very well understood. Scientists and policy-makers understood even less about how the disease is caused and develops in the 1970s, when most risk-reduction statutes were adopted. The "ignorance of mechanism" is exacerbated by the long latency period that typically elapses between exposure to the disease and its manifestation. By the time the disease appears it is often impossible to isolate its cause or causes; the long latency period means that years if not decades' worth of exposure have already occurred by then. Plaintiffs who sue over environmental injuries face an even more difficult task. Scientific understanding of the manner in which the by-products of technological development adversely affect the ecosystems into which they are discharged is, if anything, even more inadequate than our understanding of cancer mechanisms.

Risk regulation was a paradigm shift from the common law because Congress authorized regulators to act on the basis of anticipated harm, which permitted regulators to reduce personal and environmental risks despite an "ignorance of mechanism." As John Applegate has pointed out, risk regulation therefore changed the baseline of government regulation in fundamental ways: "Regulation based on risk permits regulatory action based on ex ante collective danger rather than ex post individual injury, and also operates preventively to avert injury to the public as a whole."

The Ethyl Corporation case, decided in 1976, illustrates this new political orientation. In that case, the Court of Appeals for the District of Columbia Circuit considered the authority of the Environmental Protection Agency (EPA) under the 1970 Clean Air Act. That act gave EPA the power to regulate gasoline additives whose emission products "will endanger the public health or welfare." The court determined that EPA could act "before the threatened harm occurs" and that "no actual injury need ever occur." This interpretation was justified because "the very existence of such precautionary legislation would seem to demand that regulatory action precede, and, optimally, prevent the perceived threat." In addition, the court refused to insist upon "rigorous step-by-step proof of cause and effect" as a prerequisite to regulation, given the precautionary thrust of the legislation and the uncertainty surrounding the effects of exposure to potentially toxic fuel additives. Instead, EPA was authorized to "apply [its] expertise to draw conclusions from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as 'fact,' and the like." In other words, EPA could justify regulations using factual determinations, policy choices, and "predictions dealing with matters on the frontiers of scientific knowledge."

Public Participation

The 1960s produced another type of reform that constituted a second paradigm shift. Studies by Nader's Raiders documenting the existence of the failure to regulate corporate abuses convinced the consumer and environmental movements that agencies routinely ignored and subverted "the rule of law itself-whether it be antitrust law, environmental regulations, freedom-of-information procedures, or OSHA standards." In light of agency capture, public interest liberals were "acutely aware that what had been won in Congress could easily be lost in the halls of administrative agencies." Administrative procedure had failed to prevent "capture," because the courts, in determining who had the right to appeal an administrative decision, focused exclusively on legitimating the regulation of private property. Because there was no similar appeal right for statutory beneficiaries, judicial review biased the regulatory system in favor of those who were regulated. Business interests adversely affected by agency decisions could sue, but when agency decisions worked against the interests of those who would benefit from regulation, they could not sue. The courts responded by authorizing lawsuits by statutory beneficiaries-persons who were supposed to receive protection from a risk-regulation statute. The courts also adopted other legal doctrines that strengthened the ability of statutory beneficiaries, or the public interest groups that represent them, to hold agencies accountable.

(Continues...)

Excerpted from Risk Regulation at Riskby SIDNEY A. SHAPIRO ROBERT L. GLICKSMAN Copyright © 2003 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
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Dettagli dell'edizione

• Editore: Stanford Law & Politics
• Data di pubblicazione: 2004
• Lingua: Inglese
• ISBN 10: 0804751021
• ISBN 13: 9780804751025
• Rilegatura: Copertina flessibile
• Numero di pagine: 271
• Contatto del produttore: non disponibile
• Persona responsabile: non disponibile