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Health
& Dollar Priorities Undecided
In Setting Clean Air Standards
On
November 8, while millions of Americans trekked to the polls, another
drama took place in overflowing chambers of the Supreme Court. Arguments
were heard in American Trucking Association v. Browner, in which
the Environmental Protection Agency defended its recent ozone and fine
particulate initiatives. On the day that newly elected President George
W. Bush gave his first “State of the Union” address, February 27,
2001, the Supreme Court of the United States unanimously upheld the
agency’s authority to issue the standards without taking economic cost
into consideration.
The new
administration responded with a pledge to not use its powers to rescind
the new rules. EPA Administrator Christie Whitman called the decision
“a solid endorsement of EPA’s efforts to protect the health of
millions of Americans from the dangers of air pollution.” While most
leaders in the environmental and public health movements were jubilant,
the US Chamber of Congress vowed to battle the standards in the courts
and in Congress. The issue of how the agency should deal with the dollar
costs of clean air when setting standards was left undecided by the
court.
Not Just Clean Air
The disagreement
on the importance of economic factors is not restricted to clean air
rules, or even to environmental issues. Whether the issue is genetic
discrimination, workplace safety or arsenic in drinking water and global
warming, or stem cell research [see Stem Cells in the Marketplace?
in the last issue of GEE!] there are generic questions, the
difficult answers to which have been perennially delayed in the name of
political compromise. How do we bring together and consider all the
factors that define a regulatory issue: health or well-being, death,
pain, disability, wages, costs of health care to the family and the
community, consumer costs, corporate profits, gross national product,
disrupted lifestyles, even hope for a future education or business. One
answer is cost/benefit analysis, a method that usually assumes that each
factor has the same quantifiable common denominator: money. [Read Eavesdroppng
on Gewirth: What Jefferson Would Have Heard About Cost/Benefit Analysis
in this issue.]
Prolonging the
answers is a growing source of political confrontation. Talks on the
Global Warming Treaty to limit “greenhouse” gas emissions were
stalled last year over the American use of “clean air credits”, a
market strategy initiated in the Carter Administration and perpetuated
by President Clinton, in which units of progress in one area of
pollution control are traded for nonachievement in other areas.
The Key Scientific Question in
the Clean Air Dispute
The Supreme Court decision overturned a 1999
Appeals Court decision that threw out the standards on the grounds that
EPA had “failed to state intelligibly how much [air pollution] is too
much.” The decision turned on the near consensus of environmental
scientists that if the Clean Air Act assumes the existence of thresholds
of exposure to pollutants below which effects would not be found, then
the law is flawed. Thresholds have never been established in large
populations for any toxic substance. [See Archives: When Is Asbestos
Exposure Hazardous? Volume One, Number One GEE!] |
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The variation in reaction of individuals and
groups to an agent makes thresholds a chimera. Each of us differ in
reaction to a pollutant because of variations in the amount of exposure,
the conditions or pathway of exposure, age, sex, past exposures, state
of health and health care, damage from other toxic agents, workplace
exposures, psychological stress and genetic differences. This continuum
of effects, industry spokesmen claim, means that a strictly health-based
standard results in trying to achieve “zero risk” which they
consider to be unreasonable. In some cases, new or substitute
technologies have eliminated the use of a toxic pollutant, achieving
zero risk to that pollutant, but not to a zero risk from the substitute.
The Answers in the
Court’s Chamber
In oral argument
before the Supreme Court, Seth P. Waxman, then Solicitor General of the
United States, did not assume thresholds. He assumed selected effects:
“only those adverse effects that threaten populations …shown to
exist not hypthesized… .” He said that the adverse effects to be
controlled must be “medically significant”. An example of medical
significance, he said, is “a physician applying … the standards of
the American Thoracic Society [to] determine that that person requires
treatment … is ill or [manifests] a significant medical symptom.”The
American Thoracic Society is the scientific arm of the American Lung
Association, a leader in the clean air lobby.
In response,
industry attorney Edward W. Warren said that “public health decisions
should be “like the idea of managed care … [in] a world of limited
resources…” in which a decision is made for the population as a
whole. “Public health”, he said, “is a discipline which examines
health questions in terms of protecting the public with explicit
reliance on cost/benefit considerations.”
Justice Ruth
Ginsburg reacted to Warren’s insertion of cost/benefit analysis:
“…You are adding something that will create another morass.”
Warren: “ I
don’t … know how … we can make these decisions if we don’t think
about what risks are acceptable… Even in a rich society like this one,”
he said, “we do have limited resources and these resources can be
better used elsewhere.”
Justice
Antonin Scalia: “ How do you decide how much risk is too much risk …
you still haven’t given me a criterion of where to stop.”
The
Supreme Court decision was unanimous, but not all the justices agreed
with Ginsburg. In a separate opinion on the cost/benefit question,
Justice Stephen Breyer said that cost/benefit analysis should not be
done in this case only because the Congress had specifically prohibited
costs as a consideration in the standard-setting stage of regulation
under the Clean Air Act.
The Solicitor General, the industry
attorney and the Supreme Court of the United States winked at what’s really
going on. EPA and every other agency where the Congress has prohibited
cost considerations in protecting public health - regardless of Court
decisions - routinely justify their rules with economic “impact” and
other analyses submitted to the Office of the President before final
approval.
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