Promoting the largest deregulation campaign in the last half century, the Bush administration says deregulation will bring prosperity and health. But will it? Cass R. Sunstein, a professor of law at the University of Chicago, makes the case for the Bush claims. He says that environmental laws kill more people than they protect because they are not based on sound science, on cost-benefit analysis and comparative risk assessment. C.R.A. consists of reducing the largest risks first. Unless decisions are based only on C.B.A./C.R.A., Sunstein claims, they are irrational, emotive and ignorant. He says opponents of nuclear energy, for example, have mass delusions that produce harmful laws. Asserting that existing regulations for DDT, formaldehyde, DES, arsenic in drinking water and other substances are neither necessary nor cost-effective, Sunstein asserts it remains unproven that the contamination of Love Canal ever posed significant risks to anyone.
Contending that C.B.A. and C.R.A. would save more lives than do regulations, Sunstein notes that while private expenditures on regulatory compliance reduce risk, they produce less employment and more poverty, because these funds cannot be used for expansion and hiring. Thus Sunstein concludes: if regulations increase poverty, and decrease wealth, they will increase risk. His alternative is free-market environmentalism, based on the public’s willingness to pay for clean air and water.
Why does the author believe only market economics and willingness to pay constitute what is rational? Poor people, unable to pay in order to minimize risks, are hardly able to make free and rational choices about themselves.
Despite repeatedly calling for sound science about risk, Sunstein draws nothing from the U.S. National Academy of Sciences, source of the standard account of risk assessment. In its 1996 Understanding Risk, the academy contradicts Sunstein’s narrow account of rationality, his dismissal of lay views of risk and his espousal of technocratic decision making. Ignoring classic literature, Sunstein uses almost no scientific journals and instead cites nonscientific, corporate sources like the American Enterprise Institute, the Reason Institute, Aaron Wildavsky and John Graham.
Given his flawed science, it is unsurprising that Sunstein supports risks like commercial nuclear power. Natural gas, wind, coal, solar thermal and all energy technologies (except solar photovoltaic) are cheaper per kilowatt-hour than nuclear energy. And no U.S. corporations have invested in nuclear plants since 1974; they are not cost-effective. Globally, only France is expanding nuclear electricity, because it has no coal, and the government pays all nuclear-utility cost overruns. As a market bailout, all nations limit nuclear liability to about 1 percent of total losses. Yet, without documentation, Sunstein argues that nuclear energy is cost-effective and rational.
Although Sunstein repeatedly attacks laypersons’ intuitive toxicology, he ignores Daniel Kahneman, a Nobel prize-winner in economics, who showed that experts’ probabilistic estimates are no better than those of laypeople. Kahneman’s science undercuts Sunstein’s technocratic decision making, his expert-versus-lay distinction and his appeal to C.B.A./C.R.A. Because they rely on probabilistic models (of events like getting cancer), all risk estimates fall within Bayesian uncertainty, where no frequency data (accurate probabilities) exist. Such uncertainty hardly argues that C.B.A./C.R.A. is objective, sound science.
In calling for the government to ignore the uninformed, unscientific risk opinions of citizens, Sunstein owes his readers an explanation of how his views both support democracy and are consistent with Kahneman. Using cost-per-life-saved tables of safety expenditures, he alleges the public is irrational in demanding control of industrial toxins, whichhe sayskill only 60,000 people a year. They should be spending the same money to encourage people to eat properly and exercise daily, which, according to Sunstein, could save 300,000 people a year. The author ignores the facts that polluters have an obligation not to put others at risk, whereas government has no obligation to run diet workshops. Besides, people have rights to choose whether or not to exercise and what to eat. But when industries dump 80,000 chemicals a year into the air and water, children bear most of the risks and have little ability to reduce them.
Why should the vulnerable bear most pollution costs, while industrial offenders receive the benefits? Why should a polluter be allowed to kill 60,000 people per year, just because choices about exercise lead to more fatalities? Why does Sunstein say consent should not factor into risk regulation, thus contradicting the post-World War II Nuremburg trials?
In arguing for free-market environmentalism, the cost-benefit state and willingness to pay, Sunstein assumes polluters need not pay for their own cleanup. But how does a poor child, living on the south side of Chicago, enjoy the right to equal protection and to life, if her ability to breathe clean air is based on willingness to pay?
Obviously Sunstein’s simple policy of attacking big risks firstindependent of fairness, justice and democracywould allow widespread unethical behavior. Statistically, because most murderers (except serial killers) attack only once, in a fit of passion, they pose little risk to society. Adopting Sunstein’s C.B.A./C.R.A. criteria, society should not waste money investigating/prosecuting such murderers, until it has first reduced all other risks that cause more fatalities. And why should society put off reducing the alleged 60,000 deaths (disproportionately among children) from toxic chemicals until it first reduces the supposed 300,000 fatalities from lack of exercise, as Sunstein proposes? The two types of deaths are apples and oranges, governed by different duties and rights.
The National Cancer Institute reports cancer is the leading cause of death among children age 2 to 15. Children are the canaries in societal coal mines. Yet Sunstein’s cost-benefit state ignores responsibility for actions/pollution and places its biggest burdens on children. In response to these objections, Sunstein maintains regulators are entitled to consider who is helped and who is hurt. But this consideration is precisely what he says violates sound science, based only on least-cost decisions; in short, he contradicts himself. Besides, ethics arguably requires, not merely permits, regulators to take account of harm.
It is tempting to ponder what would have happened to blacks, in Sunstein’s ethics, if government were merely entitled but not required to consider the harms of slavery and segregation. And what will happen to the United States if this presidential administration continues to accept Sunstein’s views?