Reluctantly, President Clinton has nominated Stephen Breyer to the
Supreme Court of the United States. Mr. Breyer presents himself as an
expert on risk assessment; he has even written a book on the subject,
BREAKING THE VICIOUS CIRCLE, subtitled TOWARD EFFECTIVE RISK
REGULATION. Examining Mr. Breyer's book on risk provides an
opportunity to extend our discussion from last week about the
insuperable shortcomings of risk assessment. It will also help us learn
what Mr. Breyer believes about risk in a democracy.
Risk assessment has 4 parts, says Mr. Breyer [pg. 9]: (1) identifying
the potential hazard (i.e., defining the toxicity of the substance in
question); (2) drawing a dose/response curve (i.e., deciding how much
of a substance will cause how much damage); (3) estimating the amount
of human exposure; and (4) categorizing the result (i.e., putting it
all together to state the probability of a certain kind of damage).
Mr. Breyer says 2 of these 4 steps are particularly difficult: "In
carrying out these activities, particularly in making dose/response and
exposure estimates, regulators often find that they simply lack
critically important scientific or empirical data: they do not know how
many Americans inhale how much benzene at gasoline stations; they do
not know the extent to which the biology of a rat or mouse resembles,
or differs from, that of a human being. In such instances, they will
often make a 'default assumption'--a formalized guess--designed to fill
the gap and to permit the regulator to continue the analysis." [We note
that Mr. Breyer is in complete agreement here with the risk expert we
quoted last week, Joseph V. Rodricks; what Mr. Breyer calls "default
assumptions," Mr. Rodricks called "science policy choices" but they are
the same thing -- informed guesses.) Guesses to fill data gaps are not
science. They are political judgments.]
Having defined risk assessment [correctly, we believe], Mr. Breyer now
describes the larger problem of regulating risks, or "the vicious
circle." The problem has 3 parts: public perception, Congress, and
uncertainties in the regulatory process.
The problem of "public perception" is that the "experts" and the public
often disagree on what's an important risk. For example, Breyer says,
the public ranks toxic dumps and nuclear power as big risks but the
experts rank them as small risks. [pg. 33]
The problem with Congress is that it is "not institutionally well
suited to write detailed regulatory instructions that will work
effectively" because (a) it writes one law at a time, (b) its
committees have various priorities, and (c) "Finally, Congress is
highly responsive to public opinion, as it ought to be." Even though
Congress "ought to be" responsive to public opinion, the public "finds
it difficult to order risk priorities" and therefore Congress has the
same difficulty. [pg. 42] For these reasons, Congress can never be
effective at dealing with risk, in Mr. Breyer's view.
The 3rd element of the "vicious circle," Mr. Breyer says, is the
"enormous uncertainties, almost inevitably present, in any practical
regulatory effort to carry out the four stages of risk assessment
earlier described-- identifying the hazard, relating response to dose,
estimating exposure, and characterizing the risk." [pg. 43]
The discipline called "toxicology" is part of the problem, says Mr.
Breyer. "Like civil engineering, toxicology embodies as a disciplinary
canon the importance of 'erring on the safe side.'" This assumption
that we should err on the side of safety is a key part of the problem,
Mr. Breyer says. He says, "Two scientifically plausible models for the
risk associated with aflatoxin in peanuts or grain may show risk levels
differing by a factor of 40,000." From this, Breyer concludes that,
"With estimates that vary by such magnitudes, a simple retreat to the
toxicological principle of erring on the side of safety will not solve
the problem." [pg. 45]
He then goes on to emphasize how little science can actually tell us
about the effects of most toxins on human health [again, agreeing with
toxicologist and risk assessor Joseph V. Rodricks, whom we quoted last
week]. Then Breyer says, "These uncertainties, knowledge gaps, default
assumptions, guesses, and communications difficulties, all embodied in
the technical regulatory process, spell trouble.... Such a system, in
respect to small risks, and with assumptions of varying reasonableness,
can produce random results." [pg. 48]
These uncertainties become political opportunities, Breyer says: "The
very fact that the many assumptions required by uncertainties are not
clearly derivable from science can make them a lightning rod for
contending political forces. Regulatory bodies, after all, are
politically responsive institutions, with boards, commissioners, or
administrators appointed by the President, confirmed by the Senate,
written about by the press, and, from time to time, summoned by
Congressional committees to give public testimony. Their agendas,
within limits, respond to the public's demands. Their choices of
default assumptions, to a degree, can respond to the desire of the
President, Congress, Congressional staffs, interest groups, or the
agencies themselves to appear especially careful to err on the safe
side, or, alternatively, to show sensitivity to economic costs." [pg.
Having established that risk assessment is a highly political, not a
scientific, enterprise, and is subject to pressures from "the public's
demands," Mr. Breyer develops his solutions:
We can't change people, and we can't change Congress, so we've got to
change the third element of the "vicious circle," Mr. Breyer argues.
We've got to change the regulatory process.
Mr. Breyer's solution is a "small, centralized administrative
group" [pg. 60] whose mission will be to develop risk regulations. This
group must have 5 characteristics [pgs. 60-61]:
(1) a mission to develop a risk-regulating system, to create priorities
within government programs, and to determine how to allocate resources
to reduce risks.
(2) Interagency jurisdiction, to transfer funds, say, from the toxic
waste program to vaccination programs and prenatal care, for example,
Mr. Breyer says.
(3) A degree of "political insulation" so it can withstand "political
pressures" that "emanate from the public directly or through Congress
or other political sources."
(4) Prestige, so it can attract a capable staff.
(5) Authority, so that it has "a practical ability to achieve results,"
Breyer says. [Later, on page 72, Breyer suggests giving the group real
power: "perhaps such a group would begin to consider whether proposed
rules, regulations, or major agency actions are 'arbitrary, capricious,
an abuse of discretion'--a legal authority that would bring with it
enormous power," Breyer says.]
Are you getting the picture? Mr. Breyer says our problem is that we're
wasting money on insignificant problems like toxic chemicals and
nuclear power regulation. This occurs because the "experts" are
outweighed in the political process by the general public, operating
through Congress. The general public has different priorities from the
experts. Congress listens too much to the public and not enough to the
experts. Mr. Breyer is clearly saying, what we need is an elite corps
of experts to make decisions for us about risk.
How would this elite group of risk assessors, empowered to create
priorities, allocate resources, and achieve results, really work? Mr.
Breyer offers 5 hints:
(a) They might simply declare some risks too small to worry about.
These would be termed de minimus risks. [pgs. 64-67]
(b) They would call upon risk assessment expertise from outside
(c) The group would develop "models" to achieve "higher quality
analysis and better results." In other words, better risk assessments.
(d) The group could develop a "risk agenda" and then look for practical
ways to save money on some programs and transfer those funds to other
programs. Here Breyer repeats his example of taking funds away from
toxic waste cleanup and transferring them to pay for vaccinations, or
prenatal care, or mammograms. [Clearly Mr. Breyer believes we are a
society that cannot afford to clean up toxic wastes AND vaccinate our
children AND provide prenatal care AND provide mammograms.]
(e) They might consider the risk-related impacts of future scientific
changes, Breyer says: "Suppose, for example, that medical research
identifies particular groups of persons genetically predisposed to
develop cancer when exposed to certain chemicals. Society should not
ignore their special plight. Yet it may prove nearly impossible, and
sometimes inordinately expensive, to grant them a 'right' to the lowest
possible risk and then limit society's use of chemicals to which they
specially react. It might well be more effective to provide them with
special counseling that includes information about how to avoid
exposure to the carcinogens to which they are particularly
susceptible." [pg. 67]
[Mr. Breyer is clearly ready to have his elite group declare null and
void every citizen's right to clean air and water. And what about his
suggestion that, instead of controlling toxic releases, we should tell
people how to avoid particular toxins? How would we tell the eagles and
the salmon to avoid toxins? Or don't they matter?]
Are there any precedents for similar groups operating anywhere in the
world? Yes, says Mr. Breyer, France has the Conseil d'Etat, an elite
civil service group that reviews the "administrative lawfulness" of
government actions and proposed regulations. Is there any precedent in
the U.S.? Yes, says Mr. Breyer; one is "the Armed Forces--not an open
institution, but one which has successfully carried out its
mission." [pg. 78]
Mr. Breyer does not seem to recognize that the chemical risk problems
he seeks to remedy were created chiefly by two institutions: the armed
forces, and private industry. Historically, both these institutions
have enjoyed almost complete "political insulation" of the kind Mr.
Breyer advocates for his elite corps of risk assessors. Furthermore,
both of these institutions have always had access to the best technical
experts money can buy. Indeed, technical experts shielded from
political accountability were, and are, the main engine driving the
global environmental crisis.
As for developing better risk assessments based on "better models": if
science cannot provide consistent and reproducible results about risks,
as Mr. Breyer correctly says science cannot, then his "better models"
cannot be based on science. They must therefore be based on political
judgments. Whose judgments? Those of Mr. Breyer's elite corps of
politically insulated risk experts.
Is Mr. Breyer's final solution better than the democracy presently
written into our Constitution? All we can say is, it would certainly be
 Stephen Breyer, BREAKING THE VICIOUS CIRCLE (Cambridge, Ma.:
Harvard University Press, 1993).
Descriptor terms: bill clinton; stephen breyer; breaking the vicious
circle; risk assessment; supreme court; democracy;