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Keeping Pace with Science and Engineering. 1993.
Pp. 1-7. Washington, DC: National Academy Press.
Introduction: Environmental Regulation
and Changing Science and Technology
Robert M. White
Accommodating environmental regulation is in many cases an engi-
neering task that can add significant costs in the production of goods and
services as it protects environmental values. How such costs are distributed
is itself a contentious issue, as amply demonstrated by the estimate of costs
of the recent amendments to the Clean Air Act. When environmental regu-
latory costs turn out in retrospect to have been unwarranted because regula-
tory decisions were based on inadequate or inaccurate scientific informa-
tion, it's only natural to express concern, since costs will have been borne
without deriving the projected environmental benefits.
The question under discussion in this volume how does changing sci-
entific, engineering, and economic understanding precipitate reconsidera-
tion of earlier environmental decisions? lies behind current headlines about
environmental issues. For example, the New York Times for Sunday, 7
February 1993, carried a thoughtful article on the proposals of the new EPA
administrator, Carol Browner, to reconsider the Delaney Clause, the part of
the Federal Food, Drug, and Cosmetic Act that strictly bans from food any
substance that has been shown to cause cancer in laboratory animals. Since
its passage, the technology for measuring trace substances in food has im-
proved tremendously, and we have become much more sophisticated in our
This paper was prepared in close collaboration with Myron F. Uman, who served as project
officer for this symposium. Dr. Uman is assistant executive officer for special projects of the
National Research Council.
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2
ROBERT M. WHITE
understanding of risks. We now appreciate more fully that difficult trade-
offs must be made among alternative risks and that some risks are not
unreasonable to accept. According to newspaper reports, Ms. Browner be-
lieves that the time has come to change the Delaney Clause in light of
current understanding.
In a recent editorial in Science magazine, Phil Abelson wrote about the
phenomenon of "regulation gone amok."2 He quoted some statistics that I
found mind-boggling. He pointed out that there are 59 regulatory agencies
with about 125,000 employees at work on 4,186 pending regulations. lIe
also reported that the fastest growing component of regulatory costs is envi-
ronmental regulation, which in 1991 amounted to $115 billion and is slated
to grow by more than 50 percent by the year 2000.
Abelson's concern was directed not at the costs of regulation per se, but
at the costs of regulations that, on the surface, appear to be unwarranted in
light of the benefits derived. Abelson cites as an example the application of
national standards for contaminants in drinking water with results that ap-
pear nonsensical under certain local conditions. One locality is being re-
quired to make large investments in equipment to remove contaminants
from water that already meets the standards for those substances.
Abelson's editorial touches on the difficulty of applying national stan-
dards across a diverse country. Issues of this type arise in two of the case
studies presented in this volume, one on compliance strategies for meeting
ambient ozone standards in urban areas across the country, and the other on
meeting ambient water quality standards in Chesapeake Bay. The conflicts
between national standards and regionally variable implementation raise
important issues in their own right. For current purposes, however, I only
raise them to illustrate the potentially enormous implications of environ-
mental regulations-and hence the importance and difficulty of making sound
. .
decisions.
I write of these issues as one who has been in the trenches administer-
ing regulatory processes. In one of my previous incarnations, as the first
Administrator of the National Oceanic and Atmospheric Administration, I
was the responsible federal official for regulation of the U.S. ocean fisheries
and of other living marine resources. Although fisheries management and
protection of marine mammals constituted only 10 percent of our budget,
regulatory oversight and its attendant political ramifications occupied 80
percent of my time.
Regulating the take of fish or protecting porpoises and whales, like all
presumably rational environmental regulation, is a matter of weighing sci-
entific information about causes and effects against legislated criteria for
regulatory action. Legislated criteria are generally an amalgam of scientific
knowledge and the value judgments of our representatives in the legislature.
In the real world, uncertainty clouds not only the scientific interpretation of
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INTRODUCTION
3
-
the evidence and the economic and social costs of action but also the inter-
pretation of the intent of the law.
Lurking, ready to pounce on decisions whichever way they go, are the
affected constituencies. Depending on the intensity of public concern and
the political clout of the various parties at interest, the consequences for the
regulator can be unenviable, not to mention the consequences for the envi-
ronment and the affected constituencies.
While the kinds of regulatory decisions that I had to make were differ-
ent in some cases from the regulation of toxic emissions or effluents, we
also were confronted by the infamous "mercury in fish" scare. The cause
was believed to be heavy-metal discharges by industry into the oceans. In
the West Coast halibut fishery, the result was the prohibition on the take of
fish above a certain size because the concentration of heavy metals in fish
increases with age and size. The same was true for swordfish. By examin-
ing museum specimens, however, we later found, except in certain circum-
stances, such as at Minamata, that the mercury in ocean fish was not a result
of industrial pollution of the oceans but reflected natural levels.
The environmental case studies presented in this volume reflect the
dilemma of regulation in the face of uncertain and changing scientific knowledge.
I would like to probe this dilemma more thoroughly.
On the one hand, all regulatory policies promulgated legislatively or by
executive actions are based on scientific and technical information that is
only a snapshot of our knowledge at the time of decision. Our scientific
understanding and our technologies for measurement or remediation are
continuously changing, however, sometimes at a very rapid rate, unfettered
and uninfluenced by the politics of the moment or constituency concerns
except as politics might affect federal funding for research and develop
ment.
Regulation, on the other hand, changes slowly. This is true not only
because of the ponderous nature of the legislative and regulatory process,
but also because constituencies who have achieved real or imagined gains
fear losing them if regulations are conformed to the latest scientific infor-
mation. The institutions that must comply with regulations, such as indus-
try, value regulatory stability highly because the overall costs of compliance
can be increased by rapid changes in understanding and technology.
We are all familiar with the cases in which new understanding or tech-
nological approaches have revealed that regulation should be changed in
some cases tightened and in others loosened. Lead is the classic example in
which our improved scientific understanding of health effects and our in-
creased ability to measure ever-lower concentrations have resulted, and ap-
propriately so, in more comprehensive regulation of lead in all human ac-
tivities in fuels, paints, pipes, dinnerware, etc. In other cases, improved
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ROBERT M. WHITE
understanding has revealed that perhaps earlier regulatory actions have over-
estimated risks. The cases of asbestos and perhaps dioxin come to mind.
What is to be done? Regulatory actions have vast implications for
human health, the quality of the environment, and economic and social
welfare. We need to ask how effective are the mechanisms and procedures
that have been incorporated into the regulatory process to enable it to keep
pace with our scientific understanding and technological capabilities.
A host of questions face any regulatory process. Which data shall be
accepted for evaluation? What endpoints are appropriate measures of harm?
Who is best qualified to provide independent evaluation of the available
data? What evaluation processes are the most desirable? How should the
results of these evaluations be expressed?
And the process is plagued by uncertainties in our understanding of
hazards, risks, costs, and benefits. In environmental regulatory affairs, we
frequently are confronted with data for which neither the level of precision
nor the level of accuracy is particularly high. Physicists may know the
value of the speed of light to eight or nine significant digits, but in environ-
mental affairs, we must often deal with uncertainties in the first or at best
the second significant digit.
One reason that uncertainties are high is that environmental regulations
address issues at the cutting edge of current scientific understanding. They
address issues in which the representativeness of data and measurements are
under question. As time goes on, new data are collected and help to im-
prove our understanding and occasionally change it radically. New mea-
surement techniques allow us to detect the presence of contaminants at
lower concentrations than earlier methods did or to gauge their more subtle
effects. Both the techniques and the data they produce are likely to be
subject to interpretation, and there may be legitimate differences among
interpretations, each with different implications for regulatory decisions.
Each party to the regulatory process therefore wants to be sure that the
available data are properly reviewed and evaluated. While there may be
differences among the parties in their attitudes about what constitutes proper
review and evaluation, no one argues that the data ought not to be subject to
this scrutiny, which presumably results in a body of technical evidence that
represents the best that is available at a given time.
As I have already indicated, the body of evidence on which a regulatory
decision is based our understanding of the scientific data, engineering ca-
pabilities, and economic consequences of alternative actions is dynamic.
As a rule, scientists, engineers, and economists strive continuously to refine
this understanding. As we improve in our ability to measure causes and
effects, or to design alternative production or pollution abatement technolo-
gies, or to assess consequences, it is likely that sooner or later the time will
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INTROD UCTION
s
come when the technical basis for a particular decision no longer represents
the best available scientific, engineering, or cost data.
Some national environmental legislation recognizes the dynamic nature
of the technical basis for regulation. In some cases, it mandates research
and development programs to improve the data base. In other cases, it
provides incentives for the development of new, more cost-effective tech-
nology. In still other cases, legislation explicitly includes schedules for
reconsidering specific regulatory decisions.
The National Academies of Sciences and Engineering have been in-
volved in such periodic reviews. In the early 1970s, when the stratospheric
ozone layer was thought to be threatened by the NOX emissions of super-
sonic aircraft, a substantial stratospheric research program was initiated by
the Department of Transportation and several other agencies. The Acad-
emies were asked to help with a series of biennial assessments of the latest
scientific knowledge of stratospheric ozone and the causes of its variability.
The sequence of those reports revealed the changing nature of our under-
standing of the photochemistry of the stratosphere and the effects of nitro-
gen and chlorine on stratospheric ozone concentrations. Because our under-
standing of the chemical and physical processes was changing rapidly at
that time, the best estimates from several successive assessments lay outside
the error bars of the previous respective assessment. No wonder policymakers
were confused and reluctant to act, until the so-called ozone hole was ob-
served over Antarctica.
Another set of issues arises when the government organizes large scien-
tific and technological research programs to improve the basis for decision
making. The acid rain case is an excellent example of an attempt by the
Congress through legislation to develop the necessary scientific knowledge
on which to base recommendations. The National Acid Precipitation As-
sessment Program (NAPAP) began in the early 1980s with all the best inten-
tions. Hundreds of millions of dollars were invested in improving under-
standing of the causes and consequences of acid rain. Our understanding of
acid rain was greatly improved, but it is not at all clear that NAPAP pro-
vided, on a timely basis, the relevant information that Congress wanted in
order to set acid precipitation policy.
It is well and good that we want to base environmental regulations on
the best available technical understanding, but we need to recognize that
that understanding is inherently dynamic. We need to build into the struc-
ture of the regulatory system means for reconsidering earlier decisions if
and when our understanding changes sufficiently to call earlier decisions
into question. On the other hand, it is impractical to attempt to revise
regulations continuously in response to new, presumably better data. For
one thing, the decision-making process itself is very demanding of the time,
energy, and other resources of both the regulatory agency and the affected
, _~
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6
ROBERT M. WHITE
parties. Much effort, including independent reviews and often intense ne-
gotiations among the parties, goes into the effort. We cannot afford the
continuous and considerable commitment of resources required.
Perhaps more important, as desirable as it is to have regulations that are
based on the best, most current technical understanding, it is also desirable
to have a stable regulatory regime within which the affected parties can
intelligently plan to come into compliance and implement their plans. If
they know what is expected of them, most firms will strive to comply.
However, doing so not only takes time but also involves capital expense.
Within their frameworks for planning and executing capital investments in
pollution abatement technology or alternative production processes or prod-
uct formulations, regulated industries prefer-and deserve predictable regula-
tory regimes.
We have then two characteristics that we all would agree the environ-
mental regulatory system should exhibit: it should keep pace with changes
in our understanding of the technical aspects of the issues, and it should
remain stable on a time scale sufficient for regulated parties to comply with
some measure of economic efficiency. It is evident that these two norma-
tive characteristics can be, and frequently are, in conflict.
It is not unusual for scientific discoveries or economic conditions to
change our understanding of the relative risks, benefits, and costs of regula-
tion faster than industry can innovate, develop, and install improvements in
pollution control or production technologies. We may not be able to predict
when our technical understanding will change, but we can reasonably pre-
dict that occasions will indeed arise in which it changes much more quickly
than we might have thought and more quickly than can be readily accom-
modated by affected parties.
How quickly or on what time scale should we either expect or accept
changes in regulation as a consequence of new scientific, engineering, or
economic understanding? Is there a threshold for change, an accumulation
of new understanding which, when reached, should trigger a response by
the regulatory system? When is the legitimate desire of the regulated indus-
try for stability an appropriate barrier to change?
The primary question of policy is this: Does the current environmental
regulatory system strike an appropriate balance between dynamic change
and stability? As my colleagues and I thought about this question, we
discovered to our surprise that while the regulatory combatants have "war
stories" to tell, there have been few, if any, attempts to analyze how the
system has been working in practice.
We know, for example, that the national ambient air quality standards
for the criteria pollutants have not been reviewed on the five-year cycle that
is mandated in the Clean Air Act. Why? Is it because new data or improved
technical understanding has not developed on this time scale, or because the
.
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INTRODUCTION
7
affected industries need longer periods over which the standards remain
constant, or because the investments of time, personnel, and other resources-
including political capital-are too great to repeat the decision-making pro-
cess this frequently? Should this provision of the Clean Air Act be changed?
To take another example, several pieces of environmental legislation
contain provisions that, at the time they were adopted, were intended to
provide incentives for innovation in pollution control technology. The de-
velopment and demonstration of improved technology were thought to com-
pel reconsideration of performance standards for abatement, at least in some
cases. Did the provisions work as intended?
When many of these provisions were enacted, the technological focus
in environmental affairs was on pollution control, that is, on end-of-pipe
treatment. More recently, the focus has been on pollution prevention, that
is, on product reformulation or process redesign. How does this change in
focus affect regulatory decision making on performance standards? Are
changes warranted in the provisions themselves?
This volume is about keeping pace with changing technical understand-
ing in environmental regulation. Its purposes are to shine a spotlight on the
competing demands for keeping regulations in step with current knowledge
and for maintaining regulatory stability and to serve as a catalyst for further
consideration of and debate about the appropriate balance between these
goals. My hope is that the case studies and essays in this volume will
stimulate additional analytic examination of current policies and past prac-
tices, leading to a better understanding of whether the current regulatory
system does about as well as can be expected or, if not, what alternatives
might be considered.
NOTES
1. Keith Schneider. A trace of pesticide, an accepted risk. The New York Times,
7 February 1993.
2. Philip H. Abelson. Regulatory risks. Science 259(8 January 1993):159.
_
Representative terms from entire chapter:
environmental regulatory
