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3 The Politics of Benefi~-Cost Analysis R. SHEP MEENICK It is hardly surprising that the use of cost-benefit analysis, quantitative risk assessment, and similar analytic tools generates substantial political controversy in the United States. The risks, costs, and benefits under scrutiny are usually difficult to estimate with precision. As one Environ- mental Protection Agency (EPA) scientist so colorfully put it, "One of the nice things about the environmental standard setting business is that you are always setting the standard at a level where the data is lousy" (quoted in Melnick, 1983:244~. Moreover, quantitative analysis frequently spotlights politically and ethically troublesome distributional issues, issues that pit citizen against citizen, nation against nation, and even generation against generation. Sometimes the choices involved are "tragic" in that they require us to decide not just who shall live but who must die (Calabresi and Bobbitt, 1978~. Such analysis, in short, is never a purely technical undertaking; it exposes rather than resolves hard political choices. For this reason, most practitioners insist that benefit-cost analysis is a "decision helping" rather than a "decision making" tool. Adding fuel to these regulatory controversies are several beliefs that are particularly strong and widely shared in the United States. This country has a strong streak of populism that equates bi~whether it be business or government-with bad. Indeed, trust in both business and government decreased precipitously in the 1970s. American political culture also puts a premium on procedures that offer a wide variety of interest groups and cit- izens the opportunity to participate in decision making. The United States' peculiar governmental institutions particularly its independent and ener- getic legislative and judicial branches-reflect and reinforce these beliefs. It is not surprising, therefore, that a number of recent studies have shown that R. Shep Melnick is associate professor of politics at Brandeis University and a member of the associated staff of the Brookings Institution. 23
24 THE POLITICS OF BENEFIT-COST ANALYSIS environmental regulation is much more adversarial and contentious in the United States than in other advanced industrial democracies (Badaracco, 1985; Brickman, Jasanoff, and Ilgen, 1985; Coppock, 1985; Vogel, 1986~. What is startling, however, is the extent to which many key actors in the U.S. environmental regulation arena claim that decision makers should not even attempt to estimate, compare, or balance risks, costs, and benefits in making regulatory decisions. This absolutist, moralistic rhetoric is a uniquely American phenomenon. Much of our public debate focuses not on such important and difficult questions as how to discount future benefits or how to estimate cancer rates but on whether it is proper (or, as some contend, sinful) to "put a price tag on human life." Consider the following examples. In 1981-1982 the Subcommittee on Environmental Protection of the Senate Committee on Environment and Public Works unanimously defeated a proposal to allow EPA to consider cost in setting primary (health- based) air quality standards. It even defeated a proposal to allow EPA to consider cost in setting secondary (welfare-based) air quality standards. One senator explained that, if these proposals had passed, "[wee would no longer consider acceptable air quality, but a standard we can afford" (Environment Reporter~urrent Developments [1982] 12:891~. · When EPA decided to consider both cost and extent of risk in setting limits on "hazardous" air pollutants, Congressman Henry Waxman, chairman of the House subcommittee with jurisdiction over the program, castigated the agency for "writing off" endangered individuals and "re- ducting] human lives to statistics" (Environment Reporter Current Devel- opments [1985115:306~. Environmental groups fought this policy in court, arguing 'You can't compromise the decision to set standards with cost con- siderations. You cannot take into account the cost of control and use that number to argue against controlling pollutants" (Environment Reporter Current Developments [1985315:865) · In 1981 the U.S. Supreme Court ruled that the Occupational Safety and Health Act precluded the use of benefit-cost analysis in setting "per- missible emission limits" American Textile Manufacturers v. Donovan, 452 U.S. 490 [19813~. Previously, the D.C. Circuit had found that the "legisla- tive history of the [Clean Air] Act also shows that the Administrator may not consider economic and technological feasibility in setting air quality standards" (Lead Industries Association v. EPA, 647 F.2d 1130 [1980] at 1149~. The implication of each of these illustrations is that nothing should be allowed to stand in the way of reducing possible health risks-which ulti- mately means the reduction to zero of human exposure to pollutants linked to disease.
R. SHEP MELNICK 25 Those who oppose the use of benefit-cost analysis) of course, are seldom completely faithful to their "health-only" creed. They tale about economic feasibility rather than cost; they countenance lax enforcement; they create exemptions for special classes of polluters; they encourage- indeed, sometimes even demand-delay, lest the consequences of their general policy become too apparent. For example, in 1983 the very same Congressman Wamnan quoted earlier attacked EPA Administrator Anne Gorsuch Burford for imposing sanctions on areas that failed to meet air quality standards for ozone (i.e., smog). He called for a more "flexible" ap- proach and successfully sponsored legislation to extend statutory deadlines once again (Melnick, 1984~. This incident highlights the central paradox of the controversy: the widespread hostility to the use of benefit-cost and risk assessment analysis is based on an absolutist health-only position that virtu- ally no one is willing to embrace in the real world. 1b put it more bluntly, almost no one really believes what many informed people emphatically maintain in public. Human beings in general and elected officials in particular find it difficult to admit that the policies they support leave some innocent people at risk, especially when that risk is potentially lethal. Yet why is it that health-only legislation and rhetoric are common in the United States but virtually unknown in Western Europe? One would expect just the opposite. The United States is generally seen as more sympathetic to free enterprise, more suspicious of government control, more pragmatic, and more inclined to act slowly and incrementally than are European nations. The answer, I will argue, lies above all in the structure of U.S. political institutions. Political power in this country is remarkably dispersed. Despite the growth of the national government in recent decades, state and local governments remain important players in the area of environmental regu- lation. The U.S. Congress is by far the most powerful and active legislative body in the world. While other legislatures have become subservient to the executive, the American Congress underwent a resurgence in the late 1960s and early 1970s. Central to this reassertion of congressional author- ity was further decentralization of power, commonly known as the rise of subcommittee government. Nowhere is the influence of Congress or the extent of decentralization more evident than in environmental protection. For example, from 1969 to 1979, Edmund Muskie, the chairman of a Sen- ate subcommittee, had at least as much influence on environmental policy 1 Throughout this paper, I use the term benept-cost analysis as a shorthand for a variety of tech- niques for quantifying and comparing costs, risks, and benefits. Although the differences among benefit-cost analysis, cost-effectiveness analysis, and various forms of risk assessment are sub- stantial, for the purposes of this paper, those differences are of limited importance. The focus here is the nature of political opposition to any form of explicit consideration of cost or degree of risk.
26 THE POLITICS OF BENEFIT-COST ANALYSIS as Presidents Richard Nixon and Jimmy Carter, or EPA Administrators William Ruckelshaus and Douglas Costle. In parliamentary systems, few members of the "loyal opposition" retain so much power. Much the same can be said of the activity of the judiciary. Hardly any major environmental policy escapes close scrutiny by the courts. Federal judges have issued hundreds of decisions shaping regulatory policy. In the words of Brickman, Jasanoff, and Ilgen (1985:46), "heaven a casual observer is struck by the vastly lower level of judicial involvement in European regulatory processes." Several environmental groups, most notably the Natural Resources Defense Council and the Environmental Defense Fund, have used their success in litigation to become major participants in national policy making. In the United States, each level and branch of government offers access to a wide variety of groups, including corporations, trade associations, labor unions, professional associations, and intergovernmental lobbies, as well as environmental groups. Dispersion of power has three important consequences for environ- mental policy making. First and foremost is the dispersion of responsibility. In the United States, it is easy to shift the blame for nearly everything to someone else (see Weaver, 1987~. Second, because no one controls the entire policy-making process, each participant tries to squeeze as much as possible out of the limited portion he or she controls. Third, given the complexity of the entire process, it is difficult to see the connection between the decisions of each participant and eventual outcomes. These factors in turn affect the receptivity of political actors to benefit- cost analysis. Politicians find it very tempting to take an absolutist, health- only stance when those who will actually impose restrictions on employers, employees, and consumers are located in a different branch of govern- ment. The temptation becomes nearly irresistible when the other branch is nominally controlled by the rival political party. Moreover, each partic- ipant reacts to the perceived biases of the others. Congress exaggerates its goals because it expects the executive branch to water them down; the executive branch does in fact water them down, in part because it considers Congress's goals to be hopelessly irrational. Given the distrust created by these self-fulfilling prophecies, it is hard to engineer compromise, especially when compromise requires a long sequence of decisions. In addition, the difficulty of connecting particular governmental decisions with real-world outcomes makes it hard to convince anyone that exaggerated, absolutist demands have unfortunate long-term consequences. These problems by no means prove that the European approach is superior to ours. The United States spends more on environmental protection measured both in total dollars and as a percentage of its gross national product (GNP)-than any other industrial nation. The key unan- swered question is whether the United States gets more "bang" for these
R. SHIP MELNICR 27 environmental '`bucks.'' Most scholars who have addressed this issue have retreated to agnosticism. For example, in his extensive comparative study of American and British regulation, David Vogel (1986:146) notes that "it is difficult to determine the comparative effectiveness of governmental regulations in different countries"; he concludes that "loin balance, neither nation's regulatory policies have been significantly more or less effective than the other's: both have had some notable achievements and some con- spicuous failures." (See also Brickman, Jasanoff, and Ilgen, 1985:313-314.) One cannot even say with confidence that moving to a less adversarial system would increase receptivity to benefit-cost analysis. Indeed, the very informality of European policy making militates against the use of such formal analysis. The European example stands not so much as a model for emulation as a reminder of the peculiarities of American politics. ALTERNATIVE EXPLANATIONS Most of this paper is devoted to explaining the incentives and strategies of congressmen, judges, agency officials, and environmental advocates. Before delving into this institutional and legal analysis, however, it is worth considering three simpler, more commonly heard explanations for the American antipathy to benefit-cost analysis. Each explanation has some merit, but each is also seriously incomplete. Thinking Like Lawyers Benefit-cost analysis is a tool devised by economists. Yet lawyers dom- inate Congress, the courts, and the upper echelons of most regulatory agencies. Economists think in terms of opportunity costs and incentives; lawyers think in terms of rules and penalties and of defeating their ad- versary (Schultze, 1977; Rhoads, 1985~. Not only are lawyers suspicious of techniques they do not understand, but they are unwilling to accept a process they cannot control. The predominance of lawyers in Congress most likely explains the heavy reliance on "command and control" regulation throughout the 1970s. Still, the thinking-like-a-lawyer argument grows less convincing with every passing year. Congress has embraced the use of benefit-cost analysis for water projects and other programs. Moreover, most of the key concepts behind benefit-cost analysis (e.g., opportunity costs and the impossibility of eliminating all risks) are all too familiar to those who make decisions about the federal budget. In other words, the language of economists is foreign neither to the world of politics nor to the world of the law. Just as importantly, the number and influence of economists and '~policy analysts" is increasing both in Congress and in the executive branch.
28 THE POLITICS OF BENEFIT-COST ANALYSIS As Derthick and Quirk (1985) show, deregulation of airlines, trucking, and telecommunications occurred in the 1970s largely because congressmen, presidents, and regulators accepted the arguments presented by this growing herd of economists. If economists have prevailed elsewhere, why not in the realm of environmental policy? The answer lies in the nature of political incentives. Ravenous Bureaucrats Many critics of health and safety regulatory policy blame overzealous bureaucrats for excessive regulation. There is no more common theme among small businessmen, Republicans, or contributors to Regulation mag- azine. Environmental protection agencies, according to these critics, attract people who are single-mindedly committed to protecting the environment. Bureaucrats seek to expand their empire. Government officials revel in red tape. And so on. Regulatory agencies such as EPA and the Occupational Safety and Health Administration (OSHA) undoubtedly attract personnel who accept the mission of their organizations. It is not hard to find officials at a variety of levels who can be described as zealots. At the same time, however, some regulatory agencies have spawned efforts to expand the use of benefit- cost analysis and to find other ways to balance environmental protection, economic growth, and energy production. In several instances, EPA has turned to benefit-cost analysis despite criticism from Congress. Most regulatory agencies are internally diverse, numbering economists and political executives, as well as lawyers, engineers, and scientists, among their staffs. Political executives must take responsibility for the conse- quences of agency decisions economic as well as environmental. Agency economists spend a good deal of their time estimating the economic conse- quences of regulatory decisions and responding to arguments put forth by economists outside the agency. These two factors political responsibility and the professional norms of economists sometimes lead agencies to em- brace forms of analysis that are heartily disliked by their allies in Congress and by environmental groups. Media Hype A number of recent studies have shown that the alleged anti-business bias of the press is more than just a figment of Jesse Helms's fertile imagination. Public perceptions of environmental risks are to a large extent shaped by the media, which in turn tend to dramatize and exaggerate those health risks that can be personalized and photographed. Publicizing a new risk or emphasizing an existing one creates intense political pressure to act.
R. SHEP MELNICK 29 In a "crisis," few politicians dare ask what the effort will cost. The press then turns to other matters, but regulations remain in place one part of the "regulatory ratchet" described by Bardach and Kagan (1982:Chap. 7~. In his description of press coverage of a haphazardly researched report on the Love Canal, Marc Landy illustrated how some environmental issues get placed at the top of the national agenda: The report's sensational language, coupled with the excellent photo opportunities presented by mauve lawns, chartreuse basement walls, and irate residents, aroused the news media from its late summer torpor. Love Canal became the leading national news story for days on end. In the following months, documentaries appeared on the networks, Time did a cover story, and Jane Fonda paid a tearful visit. (1986:60) Landy pointed out an important asymmetry in press coverage: reports on health dangers receive considerable attention; more careful examinations of the reports' reliability do not. Another study of the media and regulation (Rothman and Lichter, 1987) has shown that, although the general public views nuclear energy as quite dangerous, most scientists familiar with nu- clear power (including those with no financial ties to the industry) consider it relatively safe. The media, Rothman and Lichter argue, have fostered this public perception by mistakenly implying that the scientific community is closely divided on the issue, by devoting disproportionate attention to the most extreme opponents of nuclear power, and by giving more credibility to scientists affiliated with environmental groups than to those affiliated with business or government. In addition to highlighting health risks, the media are eager to discover scandal. In environmental regulation, scandal usually means exposing "un- due" industry influence political pressure that results in inadequate pro- tection of public health. Some reporters interpret any overt consideration of cost as evidence of undue industry influence. For example, Martin Dolphin, who covers Congress and regulatory affairs for the New York Times, makes no effort to hide his contempt for '`the spurious standards of cost-benefit analysis, a theory whose flaws unfold as soon as they are held up to public scrutiny" (lblchin and Chin, 1983:124~. "This kind of decision making," he and his coauthor assert, "has no place in the public sector" (1983:141~. The policies and careers of James Watt, Rita Lavelle, and Anne Gorsuch Burford did not create these deep suspicions of regulatory "capture," but they did much to confirm them. Reporters, nonetheless, are equal opportunity scandalmongers. In the mid-197Os, newspapers were full of OSHA "horror stories." Local papers are particularly quick to jump on EPA for being too rigid and single- minded in applying emission rules to local industries and municipalities. What seems to characterize the press above all is an eagerness to find fault
30 THE POLITICS OF BENEFIT-COST ANALYSIS with whoever appears to be powerful. In the words of Walter Cronkite, "As far as the leftist thing is concerned, that I think is something that comes from the nature of a journalist's work.... I think they're inclined to side with humanity rather than with authority and institutions" (quoted in Rothman, 1979:364~. Thus, regulators have good reason to believe that, in the eyes of the press they are damned if they do and damned if they don't. Like nearly everyone else, the press places conflicting demands on the regulatory system. Public Opinion and Political Culture A recent EPA study found that the agency's "overall priorities ap- pear more closely aligned with public opinion than with estimated risks', (Environment Reporter-Current Developments [1987317:1823~. Public opin- ion polls continue to show remarkably strong support for environmental programs, particularly those that seek to protect public health (Mitchell, 1984~. A 1986 poll, for example, found that 66 percent of its sample agreed with the statement that `'protecting the environment is so important that requirements and standards cannot be too high, and continued improve- ments must be made regardless of cost" (Lipset, 1986~. A 1981 Harris poll found that 80 percent of the public opposed any relaxation of the Clean Air Act; 65 percent opposed any cost-based constraints on health standards (Melnick, 1983:38~. With evidence such as this, it is not surprising that sev- eral participants in this conference have argued that the public "demands" strict regulation of environmental hazards. Why has public support for environmental protection remained so strong? One reason is that environmental programs offer benefits to a wide variety of groups: upper-middle-class hikers, workers in hazardous indus- tries, members of minority groups concentrated in polluted urban centers, suburbanites hoping to protect property values, and business firms who benefit in one way or another from pollution control. Equally important is the fact that the average citizen seldom directly experiences the cost of environmental regulation. It is comforting to believe that somehow corpo- rations (such as General Motors) or wealthy families (such as the DuPonts) rather than consumers and employees will pay for environmental protec- tion. When costs are imposed on private individuals-as they were with transportation controls in the mid-1970s, the proposed ban on saccharine, and interlocking seatbelts-the public response is usually overwhelmingly negative. Since the public generally believes that business pays for environmental protection, it is not surprising that support for environmental regulation is inversely proportional to confidence in business. Since the mid-1960s, such confidence, particularly in big business, has plummeted. According to
R. SHEP MELNICR 31 Lipset and Schneider (1986), in 1966, 55 percent of the public expressed "a great deal of confidence in the people running our major companies"; in 1984, only 19 percent shared this view. In 1985, 73 percent of the public believed that "there is too much power concentrated in the hands of a few large companies for the good of the nation." The United States may have no socialist tradition, but it has a populist tradition that expresses many of the same concerns. In his comparative study, David Vogel found that the debate over environmental regulation represents a contemporary version of American populism: the interests of "big business" in pro- duction and pollution were contrasted with those of the "people" in the preservation of the ecosystem....Threats to the public's health and safeW have not been seen, as they are in Britain, as an inevitable component of production and consumption in a highly industrialized and affluent society; rather they have become identified with the profit motive of America's largest firms. (1986:254) The brief "revolt against regulation" experienced during 197~1982 appears to have resulted more from decreasing trust in government than from increasing trust in business. Ironically, Ronald Reagan has helped to build trust in government while Ivan Boesly, Michael MilLken, and their compatriots have further eroded trust in business. The public's perception of environmental issues above all, its percep- tions of the nature and distribution of costs and risks largely determines its response to polling questions that are often misleadingly simplistic. A1- though environmentalists often argue that regulatory policy should simply respond to public demand (jettisoning analysis in the process), proponents of benefit-cost analysis maintain that the public must be educated about the true nature of the choices faced by policy makers. As Milton Russell (in this volume) puts it, "to obfuscate inevitable choices is to violate the premise of a government based on the consent of the governed...." Members of Congress, judges, presidents, the public, and the press all make multiple demands of government. Americans want to avoid war but stand up to the nation's enemies; to fund a variety of programs but reduce taxes and the deficit; to encourage broad participation but avoid regulatory delay; to promote economic growth but refrain from harming the ecosystem. That government officials would like to avoid the hard choices necessitated by these conflicting demands is undeniable. Yet in most cases, certain features of the policy-making system above all, the need to pass a budget force them to choose. In contrast, regulatory politics has no such unifying, choice-forcing mechanism readily available. Some writers have advocated a "regulatory budget" to bring greater coherence and responsibility to the regulatory process (titan and Nordhaus, 1983:Chap. 6~. One major problem such proposals face is that many participants gain
32 THE POLITICS OF BENEFIT-COST ANALYSIS significant benefits from the existing arrangements. The remainder of this paper focuses on the institutional incentives and strategies of those most opposed to the use of benefit-cost analysis. CONGRESS: KEYSTONE OF THE ENVIRONMENTAL ESTABLISHMENT The starting point of any discussion of the politics of environmental protection must be the fact that all of the major environmental statutes of the 1970s were the product of congressional rather than presidential initiation. This simple fact has a number of important consequences. First, members of Congress, especially subcommittee chairmen, con- sider the Clean Air Act, the Clean Water Act, the Superfund Act, and the other environmental legislation their laws. They advocated action when the president was lukewarm or even hostile. 1b such key figures as Edmund Muskie, Robert Stafford, Paul Rogers, Henry Waxman, and James Florio, statutory intent means their intent. They have devoted much of their time to these issues because they consider environmental protection to be a particularly noble and popular cause. In this respect, they are typical of nearly all those who have chosen to sit on environmental protection sub- committees. Here as in many other policy areas self-selection creates a bias that administrators ignore at their peril (see, for example, Shepsle, 1978:Chap. 10~. John Mendeloff has found that, of the dozens of oversight hearings on health and safety regulation, "all but four featured criticisms that agencies had been too lax" (1987:7-59~. Second, the difficulty of creating broad new programs without presi- dential leadership requires members of Congress to uncover "crises" that command media attention and demand immediate action. Presidents can attract attention for a handful of legislative initiatives simply because they are president. Members of Congress command media attention only when they uncover scandals or dramatic, life-threatening problems requiring tough, comprehensive solutions. Thus, to be bought, environmental pro- grams must often be oversold. Third, congressional initiatives on environmental protection are part and parcel of the broad reassertion of congressional power that began in the late 1960s. Congress has claimed that it, rather than the `'imperial presidency," should set national policy. Moreover, Congress has declared that federal bureaucracy is too slow, too parochial, and too receptive to the influence of business to deal effectively with environmental problems. The detailed, `'action-forcing" statutes passed in the 1970s were founded on a deep distrust of the executive branch and on the conceit that statutory language could provide definitive answers to almost all policy questions (see, for example, Florio, 1986~.
R. SlIEP MELNICK 33 On the latter score, congressional entrepreneurs were clearly mis- taken. EPA and other regulatory agencies were given little usable guidance on how to set air quality standards, new source performance standards, effluent guidelines, and the like. Given the amount of money at stake, it is not surprising that presidents have sought to have some part in agency decision making. President Nixon initiated the "Quality of Life Review," and President Ford added "Inflation Impact Statements." President Carter created the Regulatory Analysis Review Group, which provided detailed analyses of major environmental rules. The Reagan administration's efforts to increase substantially the power of the Office of Management and Bud- get (OMB) and to insist on the use of benefit-cost analysis except when expressly prohibited by law are the latest and most extensive attempts by the White House to influence regulatory policy. All of these regulatory review measures received harsh criticism from Capitol Hill. OMB: The Eye of the Storm Controversy over the use of benefit-cost analysis is thus intertwined with more than 20 years of legislative-executive conflict. Members of Congress understandably associate benefit-cost analysis with hostile OMB economists seeking to relax environmental standards. They see such analytic techniques as little more than Trojan horses carrying industry lobbyists. Conversely, White House and OMB officials view congressional hostility to benefit-cost analysis as further evidence of congressional demagoguery and stubbornness, and an unwillingness to admit that it is impossible to create a risk-free world. Those conducting "regulatory reviews" believe that benefit-cost analysis partially corrects the unbalanced policies advocated by influential members of Congress; members of Congress, on the other hand, see it as a form of regulatory impoundment. The contrasting perspectives of Congress and the White House spring from two sources. The first is partisanship: for 17 of the past 21- years, the Democratic Party has dominated Congress and the Republican Party has controlled the presidency. (Some Democrats would add that, in the second half of his term, President Carter acted more like a Republican than a Democrat.) Republicans tend to be more suspicious of government control than are Democrats; Democrats see environmental protection as a good issue to use against Republican presidents. The second cause is institutional. As noted earlier, the most vocal members of Congress are those who are most thoroughly devoted to environmental protection. Moreover, given the broad appeal but low salience of environmental issues for voters, most members of Congress discover that "a pro-environmental voting record can only help, not hurt, at reelection time" (Mitchell, 1984:68~. Playing it safe the strategy of most incumbents means not appearing to favor
34 THE POLlrTICS OF BENEFIT-COST ANALYSIS dirty air, dirty water, or hazardous waste dumps. Presidential popularity, in contrast, depends primarily on the performance of the economy. 1b the extent that regulation retards economic growth, it is a threat to a president's success. Whenever OMB uses benefit-cost analysis to justify environmental standards that are weaker than those favored by agency personnel, con- gressional outrage is inevitable and, on the surface at least, readily un- derstandable. Yet to what, precisely, does Congress object? Different members tend to give different answers. Seldom is the primary issue the particular set of assumptions used by OMB. Let us take, for example, the lengthy report on asbestos control issued by the House Energy and Com- merce Committee's Subcommittee on Oversight and Investigations (U.S. Congress, House, 1985~. Only 10 pages of this caustic, 140-page report deal with the content of OMB's analysis, and even there the report suggests no alternatives to OMB's assumptions. The most frequently voiced criticism of the regulatory review practices of the Reagan administration is that OMB hides behind closed doors. In the words of John Dingell, one of OMB's most persistent critics, "Congres- sional directives, including those designed to protect the public health and the environment, can be easily circumvented in a review process which is shrouded in secrecy, unbounded by statutory constraints, and accountable to no one." OMB's "secret and heavy handed interference" undermines Congress's "carefully crafted procedures," which were designed "to in- sure that all interested parties. . . participate on an equal footing" (U.S. Congress, House, 1985:iv). OMB frequently has been accused of serving as a "conduit" for private communications from industry lobbyists. However, the recent agreement between OIRA and key members of Congress on the disclosure of OMB activity could take the steam out of this part of the debate (Congressional Quarter) Week) Report, June 21, 1986:1409~. Some members of Congress go one step further. They say they have little trust in OMB or in other non-agency personnel to produce fair benefit-cost analyses, however open the process. Just as OMB's budgetary mission is to cut spending, its regulatory mission is slowing or even reversing the growth of regulation. As former OIRA Deputy Director James Nazi explained, OMB reviewers "start with the idea, 'Do you really need this reg?' People say, 'That's such a negative view,' but I say that's a good role for them" (National Joumal, May 30, 1987:1406~. The fact that OMB's principal mechanism for controlling agency action is its ability to delay or veto administrative rules compounds the problem. Benefit-cost analysis becomes a rationale for stalling and weakening regulations, never for initiating or strengthening them. Given the amount of discretion involved in conducting benefit-cost analysis, this institutional-bias argument against OMB review has significant force. Even those individuals within regulatory
R. SHEP MELNICK 35 agencies who most fervently advocate the use of benefit-cost analysis have come to resent OMB review. For this reason, it is important to distinguish between analysis per se and its use by OMB. The Health-Only Canard Still other congressional leaders argue that any balancing of costs and benefits-whether done by OMB or agency officials~onflicts with policies that have already been established by Congress. A number of statutes fail to include cost as factor that agencies should take into account; others mention feasibility rather than cost; and a few specifically limit the agency's deliberations to health concerns. The sponsors of these legislative provisions usually maintain that the agency is to pursue a strict policy of protecting the public health. Taking these statements at face value, courts have forbidden agencies to use benefit-cost analysis under some statutes (see the later section entitled '`The Federal Courtship What is to be made of health-only commands? It should be noted that the most emphatic health-only statements appear not in the statutes themselves but in committee reports, floor statements offered by sponsors, and subsequent oversight hearings. No votes are taken on these indices of "congressional intent," and, at least according to traditional canons of statutory interpretation, they are not legally binding. Indeed, most statutory language on standard setting is remarkably vague. For example, the Clean Air Act (P.L. 91-609, 1970), which many people claim embodies the health-only approach, directs EPA to set primary air quality standards that "protect the public health" with "an adequate margin of safety" and to establish hazardous emission limits that "provide an ample margin of safety to protect the public health." What does "safe" mean? It could mean (as Senate Report 91-1196~1970] suggests) setting standards at health-effect "thresholds"; that is, at levels below which there are no observable adverse consequences even for sensitive individuals. Almost everyone agrees, however, that there are no thresholds-other than zero-for most pollutants. Does this mean that EPA should set standards at zero or at natural background levels? It is hard to find elected officials who take this position. But otherwise the health-only interpretation frequently given to this and similar statutes becomes meaningless or, to use the surprisingly frank language of a House report, a "myth." When it comes to balancing health benefits against cost, many con- gressmen exhibit a deep-seated schizophrenia (or hypocrisy, depending on how charitable one wants to be). This attitude was graphically illustrated in the remarks of Senate staff member Curtis Moore, who presented the con- gressional perspective at the conference. On the one hand, Moore argued that emitting potentially harmful pollutants is as morally wrong as slavery
36 THE POLITICS OF BENEFIT-COST ANALYSIS (conference transcript:85) and murder (conference transcript:92 and 418~. Consequently, such action should be prohibited regardless of cost: The fact of the matter is, whether you like it or not, the American people don't think a person has a right to take their health or their lives because it saves them money. . .and I will tell you flat out that this [benefit~ost analysis] discipline has been used for one reason, and one reason only, and that is to avoid regulation and to save the industry costs. (conference transcript:492) On the other hand, Moore insisted that "Congress does, in fact, use cost- benefit analysis and risk-benefit analysis in making its decisions" (conference transcript:418~. Indeed, "that is the place to do it, it is where you are legislating" (conference transcript:90~. After all, "if you happen to be in West Virginia where you can lose your job along with 60,000 other miners where EPA changes the base case analysis, that job is pretty important to you" (conference transcript:83~. If Congress did in fact wish to launch a moral crusade against all health-endangering pollution, it could easily do so. It could ban specific pollutants. It could tell EPA and OSHA to set standards at zero or natural background levels. It could also increase appropriations for enforcement and refuse to extend compliance schedules for polluters. It is important to remember that, despite the congressional criticism heaped on the Reagan administration, it was Congress that approved substantial budget reductions for EPIC As numerous studies indicate, Congress has a variety of techniques for controlling agency discretion (Weingast and Moran, 1982; Moe, 1985; Aberbach, 1987; McCubbins, Noll, and Weingast, 1987~. That it has not taken more aggressive action reflects its ambivalence rather than its powerlessness. In practice, those who support a health-only approach advocate stan- dards that are (a) somewhat more stringent than anyone would consider reasonable to meet in the next few years but (b) not so severe as to promote political backlash. Setting standards that industry can meet today is not "technology-forcing"; such standards do not put polluters and regulators on the defensive. Instituting weaker standards or even strict standards without ambitious deadlines, to quote the dissenting opinion of three members of the National Commission on Air Quality, "would legitimize the perpetual failure to provide healthful air quality" (1981:5-36~. Yet standards that put people out of work, dramatically increase consumer costs, or visibly restrict individual freedom threaten to destroy the politically crucial myth that business rather than citizens pays for environmental protection. This strategy is particularly attractive to those who do not themselves set standards or impose sanctions but who can garner political benefit by criticizing those who do. The executive branch is put in the unhappy
R. SHEP MELNICK 37 position of issuing orders to polluters and of condoning some degree of non- compliance. Congress can take credit for passing bold, technology-forcing legislation, for uncovering administrative ineffectiveness and cowardice, and even for inducing administrators to be more "reasonable" with local em- ployers. In the words of Brickman, Jasanoff, and Ilgen, Congress has not only "laid out impossibly optimistic goals" but established deadlines "that fall somewhere between the merely unrealistic and the wholly fantastic. Yet if goals are not met in timely fashion, Congress bears no direct responsibil- ity. Indeed. . Legislative oversight provides Congress an unparalleled means of making political capital out of agency failure" (1985:72; see also Fiorina, 1977; Melnick 1983:Chap. 10) Although Congress may have legitimate questions about the current use of benefit-cost analysis, especially by OMB, much of its opposition is an elaborate form of political posturing. THE FEDERAL COURTS For two decades the federal courts have been deeply involved in nearly every aspect of environmental policy making. Environmental issues arrived on the national agenda just as administrative law was undergoing a funda- mental reformation (Stewart, 1975; Melnick, 1983~. Federal judges have not only insisted that agencies follow elaborate new rule-making procedures but have determined the legislative "intent" behind dozens of statutory pro- visions and ordered administrators to undertake scores of "nondiscretionary duties." Volume upon volume of legal commentary has been devoted to describing these developments. Two central questions are important for discussion here. First, how have judicially mandated procedures affected policy making? Second, have the courts read particular statutes to require, allow, or preclude the use of benefit-cost analysis? I will argue that in the past the federal courts- particularly the D.C. Circuit- strengthened the position of the congressional committee members described earlier, but that this pattern may be changing. Rule-Making Procedures Since Judge Bazelon of the D.C. Circuit first announced the arrival of "a new era in the long and fruitful collaboration of administrative agencies and reviewing courts" in 1971 (EDF v. Ruckelshaus, 439 §2d584 D.C.C. 1971), the federal courts have reshaped the rule-making process to promote both technical accuracy and representational fairness. 1b achieve these goals the courts have read a number of new requirements into the notice- and-comment rule-making provisions of the Administrative Procedures Act (P.L. 79-404, 1946~.
38 THE POLITICS OF BENEFIT-COST ANALYSIS When agencies propose new regulations, they must make public the data, methodologies, and arguments on which their proposals rely. Not only must they invite comment on this material, but they must also respond to all "significant" criticism. Subsequently, they must provide a detailed explanation of how they arrived at their final rule. All of this information must be compiled in a record that can be reviewed by the appropriate court. The reviewing court will take a "hard look" at the record, insisting that the agency "articulate with reasonable clarity its reason for decision and identify the significance of the crucial facts, a course that tends to assure that the agency's policies effectuate general standards, applied without unreasonable discrimination" (Greater Boston Television Corp. v. Federal Communications Commission, 444 F.2d 841 [D.C. Cir., 1970] at 851~. Courts have insisted upon undertaking such "searching and careful" reviews even when such review requires immersion in highly technical material. The objective of ensuring participation by all affected interests goes hand-in-hand with the goal of ensuring adequate technical analysis. In part the former serves the latter: when all can speak, more information and alternatives are presented for consideration. Yet the concerted efforts of the courts to open the door to participation by such nontraditional partici- pants as environmentalists, civil rights organizations, and consumer groups also reflected judicial concern about the political biases of administrative agencies. In the late 1960s the courts began to complain that administrators were focusing too narrowly on the accepted missions of their agencies and losing sight of the public interest in the process. At best, according to the courts, agencies were unimaginative; at worst, they had been captured by powerful industrial interests. Led by the D.C. Circuit, the courts sought to open up these "iron triangles" by giving a variety of interests the chance to be heard. The "reformation" of administrative law, as Richard Stewart has explained (1975:1712), "changed the focus of judicial review. . .so that its dominant purpose is no longer the prevention of unauthorized intrusion on private autonomy, but the assurance of fair representation for all affected interests in the exercise of the legislative power delegated to agencies." Just as the technical components of agency decision making would be re- viewed by the courts for accuracy, the more political components would be scrutinized for fairness and breadth of view. These judicial developments culminated in the demand for what Martin Shapiro has called "synoptic decisionmaking," a process that "requires all facts to be known, all alternatives to be considered, all values to be identified and placed in an order of priorities and that then selects the alternative that best achieves the values given the facts" (1986:466; see also Diver, 1981~. On the surface, at least, this process would seem to encourage more thorough analysis of scientific evidence and more careful weighing of the costs and benefits of regulating. Some of the standards struck down in court
R. SHEP MELNICK 39 were, indeed, seriously flawed. (One example is the air quality standard that was invalidated in Kennecott Copper Corp. v. EPA, 462 F.2d 846 [D.C. Cir., 19723~. ~day, agency anticipation of judicial review makes such shoddy use of evidence unlikely. For this reason the rule-making procedures devised by the courts have been widely praised. Unfortunately, there have been only a few empirical studies of the substantive consequences of these procedural mandates. There can be no doubt that the amount of evidence and analysis that goes into writing environmental regulations is far greater today than it was in 1970. Judicial requirements have contributed to this increase, but they were only one of several factors at work. The environmental legislation passed in the early 1970s gave the fledgling EPA only a few months to make scores of major decisions. Few states, businesses, or environmental groups realized the importance of these regulations or bothered to submit comments to the agency. Now, when regulations are being promulgated, all sides recognize what is at stake and devote enormous effort to marshaling evidence to support their positions. Not only have EPA and other regulatory agencies built larger and more sophisticated staffs, but they have come to realize the political importance of offering elaborate justifications for their rules. Of course, enlargement of the rule-making record is not an unmixed blessing. As records have grown more and more massive, agencies have become more wary of judicial reversal. A vicious cycle soon develops: the more effort an agency puts into building a record, the more it fears seeing that effort going to waste, and the more effort it makes to cover all possible bases. This activity not only adds to regulatory delay but makes it less likely that regulators will adjust their standards in the light of new evidence. In this way, judicial review adds to the rigidity for which American regulation is famous. Perhaps more significant is the subtle way in which court rulings have influenced the types of experts and evidence upon which agencies rely. Serge Taylor has shown that court decisions under the National Environmental Policy Act (P.L. 91-190, 1970) helped bring into the Corps of Engineers and the Forest Service new breeds of specialists who made these development-oriented agencies more sensitive to the environmental consequences of their actions (1984:Chap. 12) Within EPA, court decisions have tended to increase the influence of those responsible for interpreting evidence on health effects-not to mention, of course, the lawyers who construct the agency's arguments for presentation to reviewing courts. 1b state the case more bluntly, the judiciary has given added authority to the naive belief that the "proper" standard will eventually emerge if one collects enough scientific data and stares at it long and conscientiously (Melnick, 1983:Chap. 8; Coppock, 1985~.
40 THE POLITICS OF BENEFIT-COST ANALYSIS Conversely, if court procedures have produced a category of bureau- cratic losers, it is political executives. "The demand for synoptic deliber- ation," Shapiro points out, "encourages agencies to disguise exercises of discretion as exercises of objective synopticism" (1986~. To overturn the recommendations of civil servants or to respond to the political agenda of a new administration Is to emit what the D.C. Circuit called "dan- ger signals," justifying heightened judicial scrutiny (State Farm Mutual v. Department of liansportanon , 68~) F.2d 206 [D. C. Cir. , 1982] at 22~230; Garland, 1985:517-521~. Ironically, although in the 1960s and early 1970s the courts stressed the need to strengthen bureaucratic accountability, more recently, they have emphasized the danger of "political" interference with the administrative process. Relying on this logic, environmental litigants have sought to place tight legal constraints on OMB review of agency rules. OMB, they have argued, should do nothing more than submit comments that become part of the formal record. The courts, however, have not adopted this position. In Sierra Club v. Costle (657 F.2d 298 [19813), the D.C. Circuit stated, "twie do not believe that Congress intended that the courts convert informal rulemaking into a ratified technocratic process, unaffected by political considerations or the presence of Presidential power" (at 408~. Judge Wald, a former "public interest" lawyer, wrote the opinion in the case and presents strong constitutional and practical arguments for extensive White House review of agency rules: The authority of the President to control and supervise executive policy- making is derived from the Constitution; the desirability of such control is demonstrable from the practical realities of administrative rulemaking. Regulations such as those involved here demand a careful weighing of cost, environmental, and energy considerations. They also have broad implications for national economic policy. Our form of government simply could not function effectively or rationally if key executive poli- cymakers were isolated from each other and from the Chief Executive. Single mission agencies do not always have the answers to complex reg- ulatory problems. An over-worked administrator exposed on a 24-hour basis to a dedicated but zealous staff needs to know the arguments and ideas of policymakers in other agencies as well as in the White House. (at 406, notes omitted) The courts have held, in effect, that regulatory review will be judged by its fruits: to the extent that OMB pressure leads to a rapid reversal of agency policy or produces open conDict between the agency and OMB, reviewing courts will take a particularly '`hard look" at the adequacy of the agency's formal justification for its rule. This "hard look," however, will not always prove fatal for the regulation in question.
R. SHEP MELNICK 41 The institutional and policy consequences of the demand for "synoptic" decision making (Shapiro, 1986) are difficult to predict with precision for the simple reason that synoptic decision making is impossible to perform in the real world. Judges must decide whether administrators have done a "good enough" job. Not surprisingly, different judges may come to wildly different conclusions. Circuit courts reviewing the decisions of the National Highway Traffic Safety Administration, for example, have adopted such a demanding evidentiary standard that the agency has virtually abandoned regulation through rule making (Mashaw and Harfst, 1987~. The D.C. Circuit, in contrast, has adopted a permissive standard of review for air quality standards under the Clean Air Act. Not only do judges differ in their assessments of the competence and missions of agencies, but the `'weight" that judges allow administrators to give to each 'Factor'' depends on the idiosyncratic wording of the statute in question. This divergence among judges leads to the issue of whether the courts have interpreted environmental protection statutes to allow, prohibit, or require the use of benefit-cost analysis. Reading Statutes The courts' reading of health and safety statues has been something less than a model of clarity. Obscurity and evasion are evident both in the Supreme Court's two major decisions in the area and in the D.C. Circuit's most recent pronouncements on the regulation of carcinogens. Richard Pierce's general description of judicial review by the current D.C. Circuit applies with a vengeance in this policy area: "Assessing the likelihood of success in making policy through rulemaking increasingly resembles the process of predicting the result of a lottery." (1988:302) In Industrial Union Department, AFL-CIO v. American Petroleum In- stitute (448 U.S. ~7 [19803), a fragmented Supreme Court struck down OSHA's benzene standard, claiming that OSHA had not shown "that the toxic substance in question poses a significant health risk." The majority stressed that the Occupational Safety and Health Act (P.L. 91-596, 1970) does not demand a "risk-free" work environment: "In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result" (p. 645~. Yet the Court refused to "express any opinion on the more difficult question of what factual determination would warrant a conclusion that significant risks are present" (p. 659~. More to the point, the Court had "no occasion to determine whether costs must be weighed against benefits" (p. 640~. Only Justice Powell, writing a con- curring opinion, found that the act "requires the agency to determine that
42 THE POLITICS OF BENEFIT-COST ANALYSIS the economic effects of its standard bear a reasonable relationship to the expected benefits" (p. 670~. Less than a year later, the four dissenters in the benzene case joined with Justice Stevens, the author of the benzene opinion, to rule that the "feasibility" requirement of the Occupational Safety and Health Act precludes use of benefit-cost analysis. The crux of the Court's argument in American Textile Manufacturers Institute v. Donovan (452 U.S. 490 [19813) was the following: Congress itself defined the basic relationship between cost and benefits, by placing the "benefit" of worker health above all other considerations save those making attainment of this "benefit" achievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than struck by Congress would be inconsistent with the command set forth [in the act]. Thus, cost-benefit analysis by OSHA is not required by the statute because feasibility analysis is.... When Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute (pp. 509-510~. As this excerpt indicates, out went "significance" and in came "feasibility" as the touchstone of standard setting. One suspects that both terms are broad enough to allow administrators to justify nearly any decision they reach, provided they know which rule the courts will apply. The Supreme Court's lack of attention to most regulatory statutes, coupled with its inability to offer clear directives to the lower courts, leaves the D.C. Circuit as the key court for most regulatory agencies. In the words of Justice Scalia (1978:371), "as a practical matter, the D.C. Circuit is something of a resident manager, and the Supreme Court an absentee landlord in administrative law." For many years the D.C. Circuit read regulatory statutes to require highly protective health-only standards. But that position may be changing. In several important decisions in the late 1970s and early 1980s, the D.C. Circuit created a legal presumption against the use of benefit-cost analysis any other consideration of cost in many forms of standard setting. This presumption was most evident in cases involving carcinogens. In Environmental Dense Fund v. EPA (598 F.2d 62 [1978~), the court stated: An administrator has a "heavy burden" to "explain the basis for his decision to permit the continued use of a chemical known to produce cancer in experimental animals." When firm evidence establishes that a chemical is a carcinogen, statutes generally leave an administrator no alternative but to step in to protect the public health...."Courts have traditionally recognized a special judicial interest in protecting the public health," particularly where "the matter involved is as sensitive and fright-laden as cancer" (p. 88, cites omitted).
R. SHEP MELNICK 43 The court adopted a similar 'precautionary" position in interpreting the Clean Air Act, even if the pollutant is not carcinogenic. In Lead Industries Association v. EPA (647 F.2d 1130 [1980~), Judge Skelly Wright announced that "the legislative history of the Act shows the Administrator may not consider economic or technological feasibility in setting air quality stan- dards; ithis] was . . . the result of a deliberate decision by Congress to subordinate such concerns to the achievement of health goals" (p. 1149, emphasis added). The court reaffirmed this position in American Petroleum Institute v. Costle (665 F.2d 1176 [19813~. The judges appointed to the D.C. Circuit by President Reagan have been considerably less sympathetic to such arguments than have judges appointed by previous presidents. A 1986 opinion written by Judge Robert Bork allowed EPA to use a very rough form of benefit-cost analysis to set a "hazardous emission" standard for vinyl chloride, despite the facts that vinyl chloride is a carcinogen and the statutory language on "hazardous pollutants" is stronger than the language interpreted by Judge Wright in the Lead Industries decision (Natural Resources Defense Council v. EPA, Environment Reporter Cases 25:1106 [D.C. Cir., 19863~. Judge Bork's opinion, in effect, reversed the presumption about consideration of cost: The statute brings the Administrator's discretion and judgment to bear on scientific uncertainW. If health were the only permissible consideration, no such discretion would be necessary, for deciding how much uncertain to allow from a strictly health-based perspective would always lead to the same answer none.... [A]ny decision informed solely by health, but no other, values would require a prohibition of any emissions. Had Congress intended that result, it could very easily have said so by writing a statute that states that no level of emissions shall be allowed as to which there is any uncertain (p. 1110~. Judge Bork's opinion drew a sharp dissent from Judge Wright, who correctly saw it as a repudiation of previous rulings.2 Such doctrinal clarity, though, was too much for the factious D.C. Circuit to bear. An 11-member en bane panel issued a revised opinion and 2Judge Wright's dissenting opinion included an instructive misquotation. He attempted to refute the above-cited argument of Judge Bork by showing that it is possible to set nonzero emission standards without considering cost. To buttress his claim that health effect "thresholds" exist for some pollutants, he stated that "Senator Muskie, reflecting back on the legislative process, has said that the Act is based on the assumption that thresholds of safety exist for some hazardous pollutants" (p. 1127~. What Senator Muskie actually said in the hearings cited by Judge Wright is this: "Scientists and doctors have told us that there is no threshold, that any air pollution is harm- ful. The Clean Air Act is based on the assumption, although we knew at the time it was inaccurate, that there is a threshold." What one House subcommittee called the "myth" of thresholds is cen- tral to the argument against the consideration of cost in standard setting (Melnick, 1983:Chap. 8~. Judge Wright has insisted on clinging to this myth.
44 THE POLITICS OF BENEFIT-COST ANALYSIS sent the vinyl chloride standard back to EPIC This second opinion (also written by Judge Bork) followed the first in rejecting the Natural Resources Defense Council's argument that EPA must set a standard of zero for a nonthreshold pollutant. According to the court, "Since we cannot discern clear congressional intent to preclude consideration of cost and technolog- ical feasibility . . . we necessarily find that the Administrator may consider these factors" (~Environment Reporter-Cases [1987] 26:1263 at 1278~. Yet such considerations can come into play only after the Administrator has made "an initial determination of what is 'safe"' (p. 1280~. This decision "must be based solely upon the risk to health. The Administrator can- not under any circumstances consider cost and technological feasibility at this stage of the analysis." Cost and feasibility, apparently, can influence only the size of the "margin of safety." But the court also emphasized that "safe" cannot mean "risk-free" and that even during the first stage of analysis the Administrator must use his "expert judgment" to determine what is an "'acceptable' risk to health." The en bane opinion, in short, bore all the marks of a report written by a committee. After making a series of contradictory arguments, the court remanded the standard to EPA "for timely reconsideration of the 1977 proposed rule consistent with this opinion" (p. 1281~. Given the intellectual disarray in the Supreme Court and the D.C. Circuit, one should not expect too much consistency from the courts. Although the courts have given EPA and regulatory reviewers more elbow room in such cases as Sierra Club v. Costle and Natural Resources Defense Council v. EPA, in a varied of other cases the courts have struck down rules (or recisions of rules) they consider too lenient.3 In 1985 the D.C. Circuit heard 19 cases involving deregulation. Agencies won 11 and lost 8. In 6 of the 8 the agency lost, the court found the agency's explanation for its policy inadequate (Wald, 1986:537~. This trend indicates that administrators who admit to using some form of benefit-cost analysis in setting health and safely standards would be well advised to collect a good deal of support for their position from legislative histories as well as from more technical data and to show that they are not merely responding to pressure from OMB, the White House, or industry. All they can do then is hope to face a sympathetic panel on the D.C. Circuit. 3These cases include the following: Motor Vehicle Manufacturers Assoc. v. State Farm Mutual (436 U.S. 29 [1983]), Farmworkers Justice Fund v. Brock, Occupational Safes and Health~ases (13:1059[D.C. Cir., 1987~), Public Citizen Health Research Group v. Tyson, OccupationalSafety and Health~ases (12:1905 [D.C. Cir., 1987~), and the large number of cases listed in Garland (1986) at n.185. Data for 1987 show that the D.C. Circuit approved the ruling of the administra- tive agency in only 40 percent of the cases it heard (Pierce, 1988:301~.
R. SHEP MELNICK 45 REGUI^TORY AGENCIES No images of regulatory agencies frequently surface in discussions of health and safety regulation. The first stereotype is that of the regulator as zealot. The second is the image of the ~`captured'' agency. The first view encourages the belief that regulators will never voluntarily initiate-or even implement, in good faith procedures to quantify and compare costs, benefits, and risks. 1b exaggerate only slightly, this is the view that often pervades OMB. In contrast, the capture version of the story paints benefit- cost analysis as little more than a tool of industry lobbyists and agency use of such analysis as evidence that regulators have "sold out" once again. Like all stereotypes, these two fail to reflect the complexity of political life. It is useful to consider at greater length why administrators are sometimes driven to use benefit-cost analysis and why they remain wary of employing it more fully. Derthick and Quirk (1985:Chap. 3) have found that in three agen- cies administering "economic" regulation (the Civil Aeronautics Board, the Federal Communications Commission, and the Interstate Commerce Com- mission), a number of regulators adopted-even preached the 'views of mainstream microeconomics, even though this analysis threatened the very survival of their agencies. Derthick and Quirk found two major causes of this behavior. First, when presidents care to do so, they can usually appoint political executives who share their political views. These appointees can have a significant impact on the agencies they head, even when these views are at odds with the mission of the agency. Second, agencies sometimes house dissidents who become disillusioned with the performance of the agency and seek to change its behavior. The Reagan administration made unprecedented efforts to ensure that its political appointees were skeptical of or even openly hostile to what it considered social regulation. In a few instances (especially those involving Anne Gorsuch Burford but also Raymond Peck at the National Highway Maffic Safety Administration), the resulting animosity between agency and chief administrator was destructive of both agency morale and regulatory reform. In other cases, less abrasive, more-knowledgeable appointees have succeeded in encouraging the greater use of benefit-cost analysis, in part by building up the offices responsible for performing economic analysis. Perhaps the best example of this approach is the Federal Made Commission under James Miller. It is important to note, however, that EPA had begun to place greater emphasis on economic analysis well before 1981. During the Carter years the Office of Planning and Management under William Drayton increased both its technical sophistication and its internal political clout. Not only did it benefit from its position as the unit responsible for countering the
46 THE POLITICS OF BENEF1~-COST ANALYSIS arguments of Regulatory Analysis Review Group economists, but it began to educate itself and the rest of the agency about the cost and effectiveness of various programs. The hazardous air pollution policy discussed in the preceding section, a policy that departs from EPA:s normal health-only stance, took shape during these years. Very few people at EPA wanted to mandate hugely expensive hazardous emission controls to reduce already small risks. Faced with an all-or-nothing choice, most staff viewed nothing as preferable. Because they remained concerned about some of these health risks, however, they sought to broaden the array of choices open to the agency. There are at least two reasons for believing that regulators, including those in the civil service, will become increasingly sympathetic to the use of techniques for estimating and comparing costs and risks. The first reason is internal. As more and more new jobs are assigned to regulatory agencies and as the complexity of these tasks becomes apparent, regulators Drill want some indication that they are addressing important problems rather than trivial ones. Ordered by Congress to make everything a priority, regulators must find some non-statutory basis for ranking their tasks. Cost- effectiveness is an obvious candidate. The second reason involves the mobilization of political support. Two decades of experience with environmental regulation show that it is not easy to change social and economic practices that adversely affect the environment. As costs mount, Congress becomes more ambivalent, and opposition from within the executive branch intensifies. When industry views regulation as ruinous, it pulls out all the stops in its opposition, trying first to block agency rules and then to avoid complying with them. (The history of air pollution regulations for steel mills, smelters, and midwestern utilities clearly illustrates this dreary fact.- enforce pollution rules, EPA needs the cooperation not just of industry but of state and local governments and federal district court judges as well (Melnick, 1983:Chap. 7~. Not only must the agency avoid "going to the well" too often, but it will be severely hampered if it cannot show each of these actors that costs bear some rough resemblance to benefits. Faced with abstract policy questions, the public often advocates paying "any price" for a clean environment; faced with the prospect of actually bearing these costs, most people change their mind. There remain two important obstacles to the greater use of benefit-cost analysis in regulatory agencies. The first obstacle is the problem of image. In opposing the explicit consideration of cost in setting the ambient standard for airborne lead, two EPA lawyers argued that "two have billed ourselves emphatically of late as a health protection agency. This is an instance where we really need to behave as if we believe our image-making" (quoted in Melnick, 1983:278~. 1b the extent that an agency appears to forsake its role as an advocate for the protection of the environment and of public health,
R. SHEP MELNICK 47
48 THE POLITICS OF BENEFIT-COST ANALYSIS want to make standards more reasonable must be willing to show that they are committed to aggressive enforcement of the revised requirements. ENVIRONMENTAL GROUPS Leaders of environmental groups are clearly among the most vocifer- ous opponents of benefit-cost analysis. Because these groups have, to a remarkable extent, retained their influence despite the "Reagan Revolu- tion," their views count. Yet understanding the nature of their opposition is not always easy. Environmentalists do not distrust all forms of economic analysis: they have supported the use of benefit-cost analysis for water projects and timber sales, as well as the application of marginal cost pricing to electricity. Still, in most other areas, environmentalists have claimed that benefit-cost analysis inevitably underestimates the environmental benefits and overstates the economic costs of a policy. One must ask why, if these mistakes are so clear, environmentalists do not seek to correct them rather than to reject all efforts to compare costs and risks. Inhere are several plausible explanations for their behavior. First and most obviously, environmental leaders need to maintain the viability of their organizations. Voluntary organizations, especially those depending on contributions raised through direct mail solicitation, must make simple moral appeals to their constituents. 'Polluters are killing people and we must make them stop" has much more pizzazz than "let's raise the cost- per-life-saved from $1 million to $2 million." No one wants to abandon the high moral ground. Moreover, as noted earlier, unmet standards provide opportunities for further crusades and lawsuits. Second, the environmental groups that are most active at the national level especially the Natural Resources Defense Council, the Environmen- tal Defense Fund, and the Sierra Club- have more influence during the legislation-writing and standard-setting phases of regulation and less influ- ence in enforcement oversight. In addition, they view their information- gathering resources as vastly inferior to those of the business community. Their failure to take an absolutist position in rule making, they fear, will allow their opponents to overwhelm them with one-sided information. En- vironmental groups that are convinced they are both seriously outnumbered and (to use Michael Pertschuk's phrase) "on the side of the angels" will tend to use every available political resource. The leaders of environmental groups, after all, are advocates. They push as hard as they can because they know their opponents will do the same. Third, for environmental groups the indirect consequences of some rules are more important than their direct effects. For example, environ- mentalists pushed transportation control plans in the early 1970s because they wanted to restructure the transportation systems of major cities, not
R. SHEP MELNICK 49 because they believed that ozone constituted a monumental health threat. Similarly, they viewed EPAs prevention of significant deterioration (PSD) regulations as a way to regulate land use and not just pollution (Melnick, 1983:Chaps. 4 and 9~. The political allies of environmental groups also have hidden agendas. Eastern coal producers backed the 'Percentage reduction" requirement for coal-buming power plants for protectionist reasons (Ack- erman and Hassler, 1982~. According to Bernard Frieden (1979:5), in California, "[riesistance to growth. . Turned into general hostility toward homebuilding for the average family, using the rhetoric of environmental protection in order to look after the narrow interests of people who got to the suburbs first." The rhetoric of environmental protection-especially when it is freed from the need to answer such questions as how much something will cost and who will pay for it can serve many masters. Finally, environmentalists seek not just to lower pollution levels but to raise public consciousness. Once the moral juices are drained from the debate, this job becomes impossible to perform. Similar concerns lie behind labor unions' insistence on strict occupational and health rules. According to John Mendeloff, The frequency with which health and safety topics are discussed in union newspapers suggests that they are good political issues for union leaders. More than most issues, they help mobilize a sense of class conflict-of "us" against "them." For this purpose, it helps to draw the lines sharply: unions want the "lowest feasible limit" while the companies want to sacrifice lives for profit. (p. 160) For some members of the environmental movement, raising public con- sciousness also means calling into question existing political and economic structures. For them, benefit-cost analysis "legitimizes" not only a level of pollution but also the profit-making system that produces it. The number of people who consider themselves environmentalists is quite large, and those who are active in environmental organizations are a varied lot. The environmental "movement" ranges from traditional conser- vationists to the radical "sectarians" described by Douglas and Wildavsky (1982~. The issue of benefit-cost analysis may eventually separate those whose chief interests are health, safety, and prudent use of natural re- sources from those with a much broader political agenda. CONCLUSION No one opposes environmental protection per se. Few sane people enjoy pollution or despise scenic vistas. Environmental protection seldom raises troublesome racial issues, and it does not divide people sharply along class lines. The real political issue is always that of opportunity costs: What
50 THE POLITICS OF BENEFIT-COST ANALYSIS is given up in reducing water pollution or protecting the snail darter or creating a national wilderness area? If environmental benefits were costless, regulation would generate virtually no controversy. It took a long time in the United States for environmental issues to reach the national agenda. Environmental regulation was viewed either as improper interference with private property or as the bailiwick of state and local governments. The federal government's position was similar to that of a parent dealing with a rebellious teenager: "I don't even want to talk about it." Matthew Crenson (1971) has referred to this phase as `'the unpolitics of pollution." For reasons that are not yet entirely clear, environmental protection suddenly burst upon the national scene in 1969-1970. At this point the United States' complex system of "separated institutions sharing power" a system that had previously inhibited action by the federal government created a bias in favor of stringent regulation. Why? This paper has suggested that the explanation lies in the fact that the structure of U.S. governmental institutions makes it relatively easy for many actors to ignore the only rationale for limiting efforts to protect the environment, namely, opportunity costs. Both Congress and the courts have taken strong- indeed, utopian-positions and delegated to others the job of clarifying and imposing the concomitant costs. Confronted with these legislative and judicial demands, even the most conscientious administrators have taken actions they consider extremely unwise. (The classic example is the transportation control plan EPA announced for Los Angeles in 1973. Referring to the fact that he acted under court order, EPA Administrator William Ruckelshaus joked, "Faced with a choice between my freedom and your mobility, my freedom wins.") Stringent, often unattainable standards provide political benefits for several groups: congressmen who wish to embarrass and berate the executive branch; Democrats seeking to show that Republican presidents have no respect for the environment or for human life; environmentalists who want to keep industry constantly on the defensive and in ill repute. This is not to say, however, that our political system ignores the cost of environmental regulation. A few laws specifically mandate the balancing of benefits and costs. EPA has on occasion moved toward an explicit comparison of costs and risks. Still, the most common techniques for lowering regulatory demands are "feasibility" requirements and the use of enforcement discretion. These safety valves eliminate the most visible, most politically damaging forms of economic cost: plant closings and layoffs. Another technique is described by John Mendeloff (1986 and 1987~; that is, refusing to admit that a substance is potentially dangerous because the regulatory consequences of making this admission are so draconian. As many commentators have pointed out, each of these political coping
R. SHEP MELNICK 51 mechanisms generates significant inefficiencies (Ackerman and Hassler, 1981; Harrison and Portney, 1981; Lave and Omenn, 1981; Crandall, 1983~. Ironically, hostility to the use of benefit-cost analysis may do more to inhibit the quantification and comparison of regulatory benefits than it does to inhibit the consideration of economic costs. As former EPA official Albert Nichols pointed out at the conference, "what was regarded as illegitimate and regarded with great suspicion was. . Stying to quantifier the physical benefits, particularly if one were dealing with non-carcinogens" (conference transcript:l28~. It is quite likely that the current helter-skelter approach has led us to focus too heavily on certain types of health risks- especially cancer-and consequently to ignore others. As Nichols also stated, tiff you don't have that kind of discipline in the system, there is a tendency to just make qualitative statements which don't allow you to set priorities and don't allow you to deal with the most serious environmental problems. So, we end up diddling away our time with things like Section 112 of the Clean Air Act which involve perhaps dozens of cancer cases a year as opposed to the big hitters like chlorofluorocarbons. (conference transcript: 130) In short, without quantitative evidence, it is difficult to set reasonable environmental priorities. Blame avoidance is contagious: agency officials frequently question why they should admit that some risks are acceptable when no one else will. Yet responsibility may prove contagious as well. If administrators (preferably those in regulatory agencies rather than in OMB) are forthright and explicit about the need to balance costs and risks and if the courts give them sufficient leeway (as the D.C. Circuit and the Supreme Court now seem to be doing), then the onus will be on Congress to provide more pre- cise and honest statutory guidance. This situation was what occurred with deregulation of the airlines, the trucking industry, and telecommunications. Administrators acted first, the courts deferred, and Congress was forced to decide whether to defend regulatory regimes that benefited only a small group of producers and unions. The status quo crumbled with remarkable swiftness (Derthick and Quirk, 1985~. The same process may be occurring with regard to hazardous air pollutants. Once the courts accepted EPAs policy of balancing costs and risks, the burden developed on Congressman Waxman and his allies to garner support for a tougher alternative. So far, Congress has taken no action. Environmental advocates in Congress and in environmental organiza- tions should view these developments not as defeats but as opportunities. As environmental protection programs grow in number and complexity, it
52 THE POLITICS OF BENEFIT-COST ANALYSIS is important to weed out those that focus on lesser problems in order to make scarce resources~xpertise, agency money, public support, corpo- rate investments available for more important programs. This approach will make regulatory policy less of a morality play but more successful in protecting the environment. REFERENCES Aberbach, Joel 1987 The congressional committee intelligence system. Congress and the Presidency. Ackerman, Bruce, and William Hassler 1981 Clean Coal/Dirty Air. New Haven, Conn.: Yale University Press. Badaracco, Joseph, Jr. 1985 Loading the Dice: A Five Country Study of Vinyl Chloride Regulation. Boston: Harvard Business School Press. Bardach, Eugene, and Robert Kagan 1982 Going By the Book: The Problem of Regulatory Unreasonableness. Philadelphia: Temple University Press. Brickman, Ronald, Sheila Jasanoff, and Thomas Ilgen 1985 Controlling Chemicals: The Politics of Regulation in Europe and the United States. Ithaca, N.Y.: Cornell University Press. Calabresi, Guido, and Philip Babbitt 1978 Tragic Choices. New York: Norton. Coppock, Rob ~ 1985 Interaction between scientists and public officials: A comparison of the use of science in regulatory programs in the United States and West Germany. Policy Sciences 18:371. Crandall, Robert 1983 Controlling Industrial Pollution: The Economics and Politics of Clean Air. Wash- ington, D.C.: Brookings Institution. Crenson, Matthew 1971 The Un-Politics of Air Pollution: A Study of Non-Decisionmaking in the Cities. Baltimore, Md.: Johns Hopkins Press. Derthick, Martha, and Paul Quirk 1985 The Politics of Deregulation. Washington, D.C.: Brookings Institution. Diver, Colin 1981 Policymaking paradigms in administrative law. Harvard Law Review 95:393-434. Douglas, Mary, and Aaron Wildavsky 1982 Risk and Culture. Berkeley: University of California Press. Fiorina, Morris 1977 Congress: Keystone of the Washington Establishment. New Haven, Conn.: Yale University Press. Florio, James 1986 Congress as reluctant regulator. Yale Joumal on Regulation 3:351-382. Frieden, Bernard 1979 The Environmental Protection Hustle. Cambridge, Mass.: MIT Press. Garland, Merrick 1985 Deregulation and judicial review. Harvard Law Review 98:505-591. Harrison, David, and Paul Portney 1981 Making ready for the Clean Air Act. Regulation March/April:24-31.
R. SHEP MELNICK 53 Landy, Marc 1986 Cleaning up Superfund. The Public Interest 85:58. Lave, Lester, and Gilbert Omenn 1981 Clearing the Air: Reforming the Clean Air Act. Washington, D.C.: Brookings Institution. Lipset, Seymour Martin 1986 Beyond 1984: The anomalies of American politics. PS 19:222-226. Lipset, Seymour Martin, and William Schneider 1987 The confidence gap revisited. Political Science Quarter) 102:3. Litan, Robert, and William Nordhaus 1983 Reforming Federal Regulation. New Haven, Conn.: Yale University Press. Mashaw, Jerty, and David Harfst 1987 Regulation and legal culture: The case of motor vehicle safety. Yale Joumal on Regulation 4:257-316. McCubbins, Mathew, Roger Noll, and Barry Weingast 1987 Administrative Procedures as Instruments of Political Control. Working Paper no. 109. Center for the Study of American Business, Washington University. Melnick, R. Shep 1983 Regulation and the Courts: The Case of the Clean Air Act. Washington, D.C.: Brookings Institution. 1984 Pollution deadlines and the coalition for failure. The Public Interest 75:123. Mendeloff, John 1986 Regulatory reform and OSHA policy. Journal of Policy Analysis and Management 5:440~68. 1988 We Dilemma of Toxic Substance Regulation. Cambridge, Mass.: MIT Press. Mitchell, Robert Cameron 1984 Public opinion and environmental policy in the 1970s and 1980s. Pp. 51-74 in Norman Vig and Michael Kraft, eds., Environmental Policy in the 1980s: Reagan's New Agenda. Washington, D.C.: CQ Press. Moe, Terry 1985 Control and feedback in economic regulation: The case of the NLRB. American Political Science Review 79:1094-1117. National Commission on Air Quality 1981 To Breathe Clean Air. Washington, D.C: Government Printing Office. Pierce, Richard J. 1988 1bvo problems in administrative law: Political polarity on the District of Columbia circuit and judicial deterrence of agency rulemaking. Duke Law Journal 300-328. Rhoads, Steven 1985 The Economist's New of die World: Government, Markets, and Public Policy. Cambridge: Cambridge University Press. Rothman, Stanley 1979 The mass media in post-industrial society. Pp. 346-388 in S.M. Lipset, ea., The Third Century: America as a Post-Ind~strial Society. Stanford, Calif.: Hoover Institute Press. Rothman, Stanley, and S. Robert Lichter 1987 Elite ideology and risk perception in nuclear energy policy. Americm Political Science Review 81:383=U)4. Scalia, Antonin 1978 Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court. Supreme Court Review 1978:345.
54 THE POLITICS OF BENEFIT-COST ANALYSTS Schultze, Charles 1977 Me Public Use of Private Interest. Washington, D.C.: Brookings Institution. Shepsle, Kenneth 1978 The Giant Jigsaw Puzzle: Democratic Committee Assignments in the Modern House. Chicago: University of Chicago Press. Shapiro, Martin 1986 APA: Past, present, future. Organza Law Review 72447~92. Stewart, Richard 1975 The reformation of American administrative law. Harvard Law Review 88:1667. Ibylor, Serge 1984 Making Bureaucracies Think: The Environmental Impact Statement Strategy of A`*ninistrative Reform. Stanford, Calif.: Stanford University Press. Tolchin, Susan, and Martin Tolchin 1983 Dwntling America: The Rush to Deregulate. Boston: Houghton Mifflin. U.S. Congress, House 1981 Role of OMB in Regulation. Subcommittee on Oversight and Investigations, Committee on Energy and Commerce. 97th Cong., 1st sess. Washington, D.C.: Government Printing Office. 1985 EPA's Asbestos Regulation: Report on a Case Stud on OMB Interference in Agency Rulemaking. Subcommittee on Oversight and Investigations, Committee on Energy and Commerce. 99th Cong., 1st sees. Washington, D.C.: Government Printing Office. Vogel, David 1986 National Styles of Regulation: Environmental Policy in Great Britain and the United States. Ithaca, N.Y.: Cornell University Press. Wald, Patricia 1986 The realpolitik of judicial review in a deregulation era. Joumal of Policy Analysis and Management 5:535-546. Weaver, R. Kent 1987 The politics of blame. The Brooking Review 5:43. Weingast, Barty, and Mark Moran 1982 The myth of runaway bureaucrac~the case of the FTC. Regulation May/June: 3~38.
