Exposed: Asking the Wrong Question in Risk Regulation
101 Pages Posted: 12 Jun 2016 Last revised: 18 Jan 2017
Date Written: June 10, 2016
Environmental agencies determine the future state of our air, waters, and soil by reference to people’s recent-past practices. Agency exposure assessors inquire “to what are people exposed?”, and then set health-based standards accordingly. That is, they require environmental conditions sufficient to support only people’s contemporary pursuits. This Article observes that this approach suffers from several infirmities, such that exposure assessment as practiced fails to advance – and often undermines – the health-based goals of environmental and other laws. This Article examines the development of exposure assessment at EPA to uncover how agencies’ inquiry came to focus on contemporary behaviors, rather than healthful practices – or, in the case of American Indian people, heritage lifeways. This history shows the method’s recent-past orientation to be more an artifact of its formative years than the product of considered debate. Yet important normative choices got instated in the process of articulating a seemingly technocratic method. Given exposure assessment’s serious shortcomings, this Article argues that it is time to ask a better question – one self-consciously aligned with the purpose of health-based standards and the promise of legal commitments to Native peoples.
Keywords: risk assessment, exposure assessment, environmental law, public health policy, tribal lifeways, American Indian treaties, water quality standards, air quality standards, cleanup standards, risk avoidance, averting behaviors
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