Inconclusive science cannot be, in and of itself, a show stopper… I’m not saying that further research will always demonstrate the validity of a regulation. But uncertainty should not stop [legislative] action.” This was the extraordinary position taken in the last Congress by Rep. Sherwood Boehlert, chairman of the House Science Committee.
If inconclusive scientific evidence can’t provide a brake when the regulations themselves involve scientific issues, then what can? Indeed, Boehlert’s views, if fully realized, could eventually precipitate a national public-health disaster, as an apparent willingness — shared by others in Congress — to ignore science in an attempt to regulate certain risks to human health is already siphoning essential resources from the truly legitimate public-health programs.
In free societies, the use of, and adherence to, sound science is a prerequisite to engaging in proper political governance. This necessitates that, prior to implementing any rule that purports to affect the public health, there first be a consensus in the scientific community as to the cause of the harm to be curbed; and, second, that any proposed rule also meet some minimum threshold of cost-effectiveness. This could mean, for instance, that the proposed rule be shown to save a minimum number of lives per million dollars expended, or that it be forced to pass some other strict measure of cost-benefit analysis prior to implementation. Without such parameters, government is simply engaging in rulemaking for the sake of making rules, irrespective of which risks to human health it can effectively diminish.
This kind of legislating is becoming a concern across a number of government departments and agencies, but it has become a particularly serious problem in issues involving the environment. One need look no further than a report recently published by the National Academy of Sciences (NAS), criticizing environmental rulemaking policy: “Scientific knowledge and technical information are essential for determining which environmental problems pose important risks to human health, ecosystems, the quality of life, and the economy. We need scientific information to avoid wastefully targeting inconsequential problems while ignoring greater risks… [Science] has not been the only basis, and in many cases it has not even been a major determinant of EPA’s decisions.”
Unfortunately, Rep. Boehlert’s view — that we can or should marginalize the role of science in the rulemaking process — seems to be more widely held among members of Congress than is the view expressed by the NAS. Of all the federal environmental statutes currently on the books, only two contain any sort of cost-effectiveness requirement for their rulemaking procedures. And even these statutes — the Toxic Substances Control Act and the Federal Insecticide, Fungicide and Rodenticide Act — contain such loose requirements, involving the “balancing” of costs and benefits, that they can be fairly easily circumvented.
The extent to which sound science has been absent from the national ambient air-quality standards (NAAQS) of the Clean Air Act is a case in point. Justice Breyer, in a recent Supreme Court decision, outlined the view of the Senate committee that had crafted the bill, writing that “the Committee determined that… the health of people is more important than the question of whether the early achievement of ambient air quality standards protective of health is technically feasible… [T]he 1970 [and 1990] amendments were ‘expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible.’ ”
The committee’s conclusions are extraordinary in their naiveté, for they presuppose that public health can be achieved independently of economic considerations. In effect, the committee has acted as though the financial resources available to implement environmental rules are infinite, when, of course, they are not. These resources either have to come out of the existing federal budget (in which case they have already been allocated to some other program), or from higher taxes. The resources spent attempting to improve NAAQS standards are simply not available — whether it be for an HHS program to reduce obesity, an OSHA program to reduce accidents in the construction industry, or to equip a family’s pool with an infant-security device.
This is particularly relevant where, as with the NAAQS standards, the implementation of the rule was, by the committee’s own admission, not “feasible” — meaning that resources were being spent in the knowledge that they would not soon yield the desired benefits. Using scarce resources in such circumstances often results in lives being lost rather than saved. There may be a negligible risk reduction, but this is usually more than offset by the resulting increase in risk that results from the individuals and agencies then having fewer resources to reduce other, more prevalent and preventable, risks in society.
Indeed, according to a study conducted jointly by the American Enterprise Institute and Brookings Institution, 13 of 24 federal regulations examined had the perverse effect of increasing the mortality risk they had sought to lessen. The rules that tended to increase mortality risk most were found to be environmental ones, and usually involved attempts to reduce human exposure to carcinogens. This insistence on eliminating certain risks at all costs — regardless of how remote those risks are, or how expensive their elimination might be to achieve — cannot continue if we are going to effectively preserve and protect the public health.
Congress is not the sole culprit in this regard. The EPA itself has likewise had a tradition, within the ambit of its executive authority, of not requiring that its rules meet even a basic level of cost-effectiveness. Consider the ozone standard, for instance. This standard was developed as part of an effort to diminish respiratory ailments by reducing the ambient concentrations of ground-level ozone. Astonishingly, according to Randall Lutter of AEI, EPA’s own unpublished data revealed at the time that this standard would actually cause 696 cases of skin cancer per year, by reducing the amount of ground-level ozone, which acts as a barrier to cancer-causing ultraviolet light. Yet the incidence of these cancers was never made public by EPA, nor was it taken into consideration in determining whether the rule should be implemented. In effect, while the EPA rule might well be easing respiratory ailments, it is also likely causing cancer in hundreds of Americans. Surely such a rule would fail any objective measure of cost-effectiveness. Similar evidence exists concerning recent EPA standards for arsenic in drinking water, radon and lead in homes, and a host of other substances in our environment.
Nor are such problems limited to public-health concerns alone, for the consequences of rulemaking in this fashion are also having profound effects on our nation’s economy and on individual liberty. In fact, according to the OMB, the direct costs of federally mandated environmental regulations have grown tremendously recently, and in recent years have exceeded half of all the spending by the federal government on all non-defense, domestic discretionary programs.
If we are to remain a society of limited government and one that truly values the public health of our citizens, we are going to have to stop seeking the elimination of certain risks regardless of the cost, and start focusing only on the significant risks to human health — in particular, those that can be reduced in a cost-effective manner. What is needed is sound science, not government alchemy.
— Mark I. Schwartz is a regulatory attorney in Washington, D.C., who writes frequently on economic, scientific, and legal issues.