Valuing Health Risks, Costs, and Benefits for Environmental Decision Making Report of a Conference (1990) / Chapter Skim
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3. The Politics of Benefit-Cost Analysis
3. The Politics of Benefit-Cost Analysis
Pages 23-54
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From page 23... ...
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.
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Circuit had found that the "legislative 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.
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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)
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, "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.
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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 conspicuous failures." (See also Brickman, Jasanoff, and Ilgen, 1985:313-314.)
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If economists have prevailed elsewhere, why not in the realm of environmental policy? The answer lies in the nature of political incentives.
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In addition to highlighting health risks, the media are eager to discover scandal. In environmental regulation, scandal usually means exposing "undue" industry influence political pressure that results in inadequate protection of public health.
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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 several participants in this conference have argued that the public "demands" strict regulation of environmental hazards.
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From page 31... ...
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 production 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.
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First, members of Congress, especially subcommittee chairmen, consider 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.
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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 Budget (OMB)
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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, "Congressional 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 insure that all interested parties.
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For example, the Clean Air Act (P.L.
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It could ban specific pollutants. It could tell EPA and OSHA to set standards at zero or natural background levels.
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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 fundamental reformation (Stewart, 1975; Melnick, 1983~.
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The "reformation" of administrative law, as Richard Stewart has explained (1975:1712) , "changed the focus of judicial review.
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Serge Taylor has shown that court decisions under the National Environmental Policy Act (P.L.
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(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.
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The D.C. Circuit, in contrast, has adopted a permissive standard of review for air quality standards under the Clean Air Act.
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, "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.
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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 central to the argument against the consideration of cost in standard setting (Melnick, 1983:Chap.
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Costle and Natural Resources Defense Council v. EPA, in a varied of other cases the courts have struck down rules (or recisions of rules)
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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.
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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.
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Second, the environmental groups that are most active at the national level especially the Natural Resources Defense Council, the Environmental Defense Fund, and the Sierra Club- have more influence during the legislation-writing and standard-setting phases of regulation and less influence in enforcement oversight. In addition, they view their informationgathering resources as vastly inferior to those of the business community.
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160) For some members of the environmental movement, raising public consciousness also means calling into question existing political and economic structures.
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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.
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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)
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Harvard Law Review 98:505-591. Harrison, David, and Paul Portney 1981 Making ready for the Clean Air Act.
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The Public Interest 85:58. Lave, Lester, and Gilbert Omenn 1981 Clearing the Air: Reforming the Clean Air Act.
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Stewart, Richard 1975 The reformation of American administrative law. Harvard Law Review 88:1667.
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