"Risk Analysis in the Courts: A Roadmap for Risk Analysts"
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Poster 18
JUDICIAL REVIEW OF REGULATORY ACTION
Comparing Alternative Actions
SETTINGS
LEGISLATIVE MANDATES TO EVALUATE ALTERNATIVES
The Toxic Substances Control Act requires that EPA select the "least burdensome requirements" in crafting a regulatory response to an unreasonable risk. 15 U.S.C. '2605(a).Superfund (or CERCLA) requires EPA to develop alternative potential remedies for contaminated sites and to compare them explicitly according to several criteria, many of which have risk components, such as persistence and toxicity of the contaminants, short‑ and long‑term potential for adverse health effects, harm from the remedial activities themselves, and cost‑effectiveness. Much recent regulatory reform legislation C most recently the Levin‑Thompson Bill, S. 981 (105th Cong.)C requires the development of quantitative cost‑benefit analyses (where the benefit, of course, is risk reduction), and of quantitative risk assessments. These follow, in a more prescriptive and quantitative form, requirements for regulatory oversight by the Office of Management and Budget set out in Executive Order No. 12866 (1993 ‑ Clinton) and its immediate predecessor, No. 12291 (1981 Reagan).
EVALUATING PROGRAM PRIORITIES
This is not usually a judicial function, but it occasionally is when someone challenges the agency's failure to take action.
There has been considerable recent interest in legislatively mandated risk-based priority setting, which would presumably imply judicial enforcement.
FUNCTIONS OF RISK ANALYSIS
Determining which problems are worst
Determining whether the cure is worse than the disease
Comparing efficacy of remedies
SPECIAL PROBLEMS FOR RISK ANALYSIS
Amount of data required
Comparative risk
Relevance of non‑risk criteria
RANGE OF JUDICIAL RESPONSES
Confrontation
Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991).
The TSCA mandate to select the "least burdensome requirement" was read for all it is worth, and the court rejected EPA's ban on asbestos (an undoubted carcinogen, after all) in brake linings. EPA not only failed to consider the risks and costs of intermediate alternatives between no ban and a total ban, but it also failed to consider the risks associated with the substitutes for asbestos. Competitive Enterprise Inst. v. NHTSA, 956 F.2d 321 (D.C. Cir. 1992), remanded a decision by the National Highway Traffic Safety Administration not to loosen its fuel economy rule, because the agency failed to make explicit its choices between risks associated with higher miles per gallon versus (1) safety due to available car size; (2) safety due to the continued use of old cars, since lower mileage means more expensive cars); and (3) safety due to the higher price of larger, safer cars or exempted minivans. Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983), held that OSHA must expedite its ethylene oxide (EtO) rulemaking because, compared to the other items on OSHA's docket, it had not given "due regard to the urgency of the need" in putting EtO on the back burner.
Avoidance
Deference
National Congress of Hispanic American Citizens v. Dunlop, 554 F.2d 1196 (D.C. Cir. 1977) (El Congreso II), reversing 425 F. Supp. 900 (D.D.C. 1975) (El Congreso I); 626 F.2d 882 (D.C. Cir. 1979) (El Congreso III).
In the El Congreso cases, migrant farmworkers sought to require OSHA to establish field sanitation standards. Normally, an agency's choice of priorities is entirely immune from judicial scrutiny, see Heckler v. Chaney, 470 U.S. 821 (1985), but in El Congreso the court took the unusual step of requiring OSHA to explain its failure to take action on these standards. However, when the agency did provide a detailed explanation C pointing to risk, available resources, severity of health and safety hazards C the court accepted the agency's position as reasonable.
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Copyright © 2000.
John Applegate and Wendy Wagner.
Last modified September 28, 2000