- The Washington Times - Thursday, June 1, 2000

The story goes that the U.S. government was fighting it out with industry over the cleanup of a waste dump in southern New Hampshire. Most of the work was done. Everybody agreed the site was already clean enough for hypothetical children playing there to eat small amounts of dirt 70 days of the year. But the government wanted the site clean enough to allow children to dine on dirt there 245 days per year. Never mind that the site was a swamp where no dirt-eating children were likely to play. The government insisted industry spend an extra $9.3 million to safeguard the site for nonexistent dirt-eating children.

You can read about the case of the missing dirt eaters in a thin 1993 volume by Stephen Breyer, now a Supreme Court justice, titled "Breaking the Vicious Circle: Toward effective risk regulation." Mr. Breyer's writings take on new importance in the wake of the news that the high court intends to consider whether the Environmental Protection Agency (EPA) must weigh the costs as well as benefits of regulations it issues under the imprimatur of the Clean Air Act.

Although Americans make cost-benefit decisions every day should one risk one's life, for example, by riding in range of a government-mandated air bag? it has been an article of faith among environmentalists and government officials that there is almost no benefit too small, no cost too high to regulate their way to nirvana. The Associated Press reported that the court's decision to consider the issue "drew gasps from environmentalists." The New York Times said the justices had "raised the stakes even higher" in a case already considered one of the most important in years. "What's at stake is a critical national program to protect our children, the elderly and our communities from harmful air pollution," one environmental spokesman told the Houston Chronicle.

At issue are regulations EPA issued in 1997 to reduce smog and particulate pollution from autos, power plants and other sources. Reducing such emissions, the agency argued, was consistent with its obligations to protect the health of those who would otherwise suffer from exposure to them. Industry officials and three states Michigan, Ohio and West Virginia sued the agency, saying, among other things, that EPA had exceeded its authority under the Clean Air Act: In effect, the agency was making laws, a job that up until recently had belonged to Congress. The U.S. Court of Appeals for the District of Columbia agreed with the industry and states, and the Clinton administration appealed the ruling to the Supreme Court, which agreed to hear the case. This week it also agreed to expand its review of the case to include the debate over the agency's obligation to consider the costs of its good intentions.

The press has presented this debate as one pitting human health against corporate stock options. How could the high court, the refrain goes, even think of weighing the well-being of vulnerable elderly asthmatics against industry's bottom-line?

Not surprisingly, it's more complicated than that. It turns out the agency was not even able to convince its own science advisory board that the proposal would mean improved health. There is, wrote the panel to EPA administrator Carol Browner in November 1995, "no 'bright line' which distinguishes any of the proposed standards (either the level or the number of allowable exceedances) as being significantly more protective of human health."

Meanwhile, the presumed beneficiaries would pay a price for the regulations in ways that have nothing to do with corporate profits. Department of Energy (DOE) officials testified, and EPA did not dispute them, that reducing smog concentrations would increase human exposure to harmful ultraviolet-B radiation now blocked by the smog. That increase could generate up to 50 additional melanoma-related fatalities, 11,000 new cases of melanoma and 28,000 more cases of cataracts each year said DOE.

In "Breaking the Vicious Circle," Mr. Breyer warned of a less visible cost to regulations: Insofar as they reduce job creation, paychecks and, yes, company bottom-lines, government rules may reduce overall health. "[D]eprivation of real income itself has adverse health effects, in the form of poorer diet, [and] more heart attacks," he wrote. A public interest research group at George Mason University, the Mercatus Center, says that by that standard, EPA's rule could cause an additional 6,500 deaths annually, not including the melanoma deaths.

EPA doesn't have to consider costs like those, according to its interpretation of the law; it's free to use imaginary science to protect imaginary beneficiaries, including those who eat dirt 245 days a year. Arguments before the high court should be a good opportunity for Justice Breyer and others to concentrate the agency's mind on the real costs of its regulations to real people.


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