De-Risking Environmental Law

103 Pages Posted: 11 Mar 2024 Last revised: 11 Apr 2024

Date Written: March 9, 2024

Abstract

Over the last forty years, risk assessment has come to provide the foundation for EPA’s major regulatory programs on toxic chemicals, pollution, and hazardous waste—a development that seems quite natural, even necessary. The standard view holds that risk assessment is a largely technical, scientific exercise that provides the basic facts needed for the more value-laden exercise of risk management, often framed as an exercise in cost-benefit analysis. This has led to a preoccupation among legal scholars with the pros and cons of cost-benefit analysis versus other approaches to managing risk, while risk assessment itself has slipped rather quietly into the mainstream of regulatory practice. This is an oversight of great consequence—one that this Article seeks to remedy. The central claim is that quantitative risk assessment has operated first and foremost as a political technology intended to discipline agencies and constrain their ability to solve complex problems rather than as a tool to generate useful information about the world. This has happened in large part through the displacement of poli- tics into seemingly interminable debates about proper technique, choice of model, and different ways of managing uncertainty (among others). The result has been a series of intractable knowledge problems that have made it virtually impossible for agencies such as EPA to complete major risk assessments in a timely fashion and deliver on their obligations to protect the public from environmental harms. The Article traces the history of formal risk assessment since the early 1980s, showing how it grew out of a broader set of anti-administrative tendencies that were gathering strength during this time and how it has worked in practice to inhibit timely, responsive regulation. The Article also offers some provisional thoughts on a political economy of risk assessment and knowledge making within the administrative state. Finally, the Article articulates the outlines of a new ethics of regulatory science that goes beyond generic calls for scientific integrity—an ethics that recenters law in the commitment to protecting public health, embraces the fact of uncertainty and the limits of our ways of knowing, and acknowledges our collective responsibility to come to terms with the violence embedded in the ways we have chosen to understand and manage risk.

Keywords: environmental law; administrative law; bureaucracy; knowledge practices; regulatory science; risk assessment; precautionary approach; toxic harms; pollution; public health; occupational health; law and political economy

Suggested Citation

Boyd, William, De-Risking Environmental Law (March 9, 2024). Harvard Environmental Law Review, Vol. 48, No. 153, 2024, UCLA School of Law, Public Law Research Paper No. 24-10, Available at SSRN: https://ssrn.com/abstract=4753197

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