In my most recent Jot, I reviewed two articles that explored “The Limits to Law(s)” – more precisely, the inability of United States environmental law to respond quickly and effectively to the global problems of PFAS contamination and plastics pollution. William Boyd’s De-Risking Environmental Law criticizes the law’s ineffectual response to toxic hazards more generally and identifies a surprising culprit. “Environmental law, it seems,” Boyd writes, “suffers from too much science and not enough law.” (P. 156.)
What we need instead, says Boyd, is “a new ethics of regulatory science . . . that recenters law in the commitment to protecting public health.” (P. 153.) This new twist to an old debate about whether ethics or science should serve as the primary justification for environmental law startles the reader. After all, science appeared to have won that debate decisively and long ago. How could any government make policy choices to protect public health or ecosystems without a thorough understanding of the medical and ecological dynamics at stake? We are so accustomed to relying on science to justify regulatory interventions it seems impossible to imagine any other way of thinking.
And that, according to Boyd, is exactly the problem.
Of course, Boyd does not oppose applying scientific knowledge to regulatory decision-making. Rather, he contends that regulators have been applying the wrong kind of science in the wrong way. His gripe is with quantitative risk assessment and the preeminent role government agencies, especially EPA, have given that methodology.
Boyd shows that across EPA, quantitative risk assessment sits like a troll athwart the bridge to regulation. The troll demands to be fed, but its appetite for “sound science” is insatiable. With the troll on guard, almost no regulatory initiative can get across the bridge to the greener pastures of risk management. So, EPA remains ever in pursuit of its statutory mandates to protect public health from toxic exposures, but rarely able to fulfill its responsibility.
How did this situation arise? Relying on an impressively broad range of sources, Boyd persuasively demonstrates that the idea of quantitative risk assessment as a necessary predicate for regulation arose in reaction to rather than in service of early agency efforts to implement the protective legislation of the 1970s. He documents a multipronged push for this idea coming from trade associations, from the “science policy establishment,” from reviewing courts, and ultimately from within EPA itself. The articulated rationale was to improve regulatory decisions by making them more “scientific,” more objectively credible, and more defensible. But the effect was to impede regulatory decisions by making them more difficult, more time-consuming, and more contestable.
A cynic could justifiably conclude that this effect was foreseen and intended by industries advocating in their own self-interest and by ideological opponents of government regulation. Indeed, part of Boyd’s purpose is to make that case. But Boyd goes further, arguing that even with the best intentions and tireless effort of agency management and staff, quantitative risk assessment is beset by “knowledge problems” (P. 204).
De-Risking Environmental Law systematically explores inherent limitations that belie the ability of quantitative risk assessment to deliver clear scientific answers on which regulators and society could rely. One problem is that in some ways the real world is too complex for a methodology that entails simplifying assumptions. Boyd highlights two of these complexities: cumulative effects of multiple and variable toxic exposures and unequal distribution of toxic burdens in conjunction with socioeconomic inequality. Another problem is that although quantitative risk assessment can speak the language of probability, it cannot cope effectively with genuine uncertainty: the lack of knowledge about what values to assign variables in risk assessment models or how to describe those variables’ relationships. Yet the study of toxic exposures and effects is rife with known unknowns, not to mention unknown unknowns. Worse, Boyd explains that trying to deal with these problems by making risk assessment models more complicated is a Sisyphean task because new uncertainties ramify with each added complication. The answer to the problems of risk assessment is not more risk assessment.
The discussion of the conceptual limits of quantitative risk assessment, alone, makes this article worth reading. But Boyd also shows that these limits have consequences. “[O]pponents of regulation can always find ways to argue for more science, more research, and more data,” (P. 229), resulting in either total inaction or nearly endless delay. He provides a breathtakingly panoptic list of examples of ensnared risk assessments or regulatory initiatives: asbestos, dioxin, trichloroethylene, formaldehyde, PFAS “forever chemicals,” organophosphate residues, the proposed Yucca Mountain nuclear waste repository, the leaded gasoline phasedown, the Hudson River Superfund remedial action, and doubtless others that I’ve overlooked. It is too simplistic, as Boyd acknowledges, to ascribe these failures entirely to quantitative risk assessment, but Boyd compellingly argues that the dominant role of quantitative risk assessment is an important part of the problem. Not in the abstract, but in the “violence embedded in” (P. 228) the power “to determine which environmental harms will be imposed on whom.” (P. 169.)
In the post hoc risk regulation of toxic tort cases, courts invoking the “sound science” mantra have for more than three decades imposed stringent proof requirements on plaintiffs, justified in part by contrast to “the preventive perspective” of regulatory agencies that imposes a “threshold of proof [that] is reasonably lower than that appropriate in tort law.”1 Such rulings require injured plaintiffs to bear the cost of scientific uncertainty about toxic harms. Boyd’s article calls into question the reality of that preventive perspective.
To solve this problem, Boyd sketches out a truly precautionary approach that relies much less on the illusory precision of quantitative risk assessment. He endorses “innovative uses of generic approaches built on simple hazard-based triggers” (P. 246) that would be based on broad screening for and early warning of potential toxic dangers. Such an approach, Boyd contends, would provide incentives for industry to develop less hazardous alternatives to dangerous materials and products. The approach would be justified by an ethical imperative to end or at least minimize the violence of toxic exposures.
As ever, the problem is pathway. Boyd acknowledges that the prominence of quantitative risk assessment seems over-determined. The root causes he identifies – industry influence and manipulation, political backlash, activist judicial intervention and constraint – have intensified, not diminished, since the dominant position of quantitative risk assessment became entrenched. These forces seem poised not only to block the development of a new paradigm, but to immobilize any ethics-based regulatory approach that might develop, just as they immobilized the risk-based approach.
The evident priorities of the current Administration amplify the concern. There is good reason to worry that EPA is losing both the will and the ability even to continue along the path it has been pursuing. At a time when both science and law are taking major hits, thinking about how to improve their relationship may seem beside the point.
Yet even from a defensive crouch hoping to maintain what has been, it is necessary to imagine what could be. William Boyd’s De-Risking Environmental Law is a valuable contribution to a growing literature that identifies the ways environmental regulation has failed, names the reasons for those failures, and gropes toward a proactive, protective, precautionary future.
