The Rights of Statistical People

In this Comment, I argue that the use of cost-benefit analysis to evaluate life-saving regulatory programs has, in a society that eschews reliance on cost-benefit analysis in other life-saving situations, been justified by the creation of a new kind of entity-the statistical person. A primary feature of the statistical person, as I will explain, is that she is unidentified; she is no one\u27s sister, or daughter, or mother. Indeed, in one conception, the statistical person is not a person at all, but rather only a collection of risks. By distinguishing statistical lives from the lives of those we know, economic analysts have attempted to sidestep the uncomfortable fact that most of us profess ourselves quite incapable of identifying the monetary equivalent of the lives of our sisters, daughters, mothers, and friends

Climate Change and the Clean Air Act

In Massachusetts v. EPA, petitioners - twelve states, three cities, an American territory, and numerous health and environmental groups - have asked the Supreme Court to hold that the Clean Air Act gives EPA the power to regulate greenhouse gas emissions from motor vehicles and that EPA may not decline to exercise this power based on statutorily irrelevant factors. The problem petitioners ultimately seek to address - climate change - is unique in its scope and complexity. But the legal issues before the Court in Massachusetts v. EPA are neither particularly grand nor particularly complex. They are the kinds of statutory and administrative law issues courts address every day in this country without great trouble or fanfare. My aim in this Article is to show that a standard approach to the legal issues raised in Massachusetts v. EPA dictates a ruling in petitioners\u27 favor

Climate Change in the Supreme Court

In Massachusetts v. Environmental Protection Agency, the Supreme Court confronted the issue of climate change for the first time. The Court held that the Clean Air Act gives the Environmental Protection Agency the authority to regulate greenhouse gases and that the agency may not decline to exercise this authority based either on factors not present in the statute or inconclusive gestures toward uncertainty in the science of climate change. I had the privilege of serving as the lead author of the winning briefs in this case. This Article provides an insider\u27s perspective on the choices that went into bringing and briefing the case. This Article is an edited version of the 20th Annual Natural Resources Law Institute Distinguished Lecture, delivered in the fall of 2007 at Lewis & Clark Law School

Reply to Dr. Tengs’ Response

[Excerpt] The primary aim of my article “Five-Hundred Life-Saving Interventions and Their Misuse in the Debate Over Regulatory Reform” was to dispel the myth that had grown up around the studies Dr. Tammy Tengs published with Dr. John Graham: that is, the idea that government regulation is responsible for, in Dr. Graham’s words, the “statistical murder” of 60,000 people in the United States every year. As I demonstrated in my article, nothing in the work of Drs. Tengs and Graham supports Dr. Graham’s recurring charge of statistical murder through regulation. And nothing in Dr. Tengs’ response to my article casts doubt on this, my most important conclusion. I will discuss in sequence the comments Dr. Tengs does provide in her response to my article

Undue Process at the FDA

For over 40 years, the Food and Drug Administration has been collecting evidence that the routine administration of antibiotics to animals destined for the food supply contributes to the development of antibiotic-resistant infections in the human population. For all these years, the FDA has put off acting with any force on this health risk. The agency’s explanation has been that the Food, Drug and Cosmetic Act requires it to hold time- and resource-intensive formal hearings before it can withdraw approvals for antibiotics used for the purposes of promoting growth and preventing infection in food animals. In so arguing, the FDA has ignored decades of developments in administrative law and has misread its own statute. The FDA has the discretion under the law to act on antibiotics in animal feed without going through the years-long process of formal hearings. At the least, the agency owes the public an explanation of why it has insisted on pursuing the longest possible path to protecting human health. The FDA’s legal error is, in principle, simple enough to correct. Far less remediable are the habits of mind that entrench agency inaction, including institutional memory that privileges stasis over change and systematic acceptance of absurdly long timelines for addressing social problems. Equally immobilizing are statutory grants of epistemic authority to particular individuals within large bureaucratic institutions, which allow these institutions officially to deny certain facts about the world even while they report them as the truth

Climate Change, Human Health, and the Post-Cautionary Principle

In this Article, I suggest two different but related ways of reframing the public discourse on climate change. First, I propose that we move further in the direction of characterizing climate change as a public health threat and not only as an environmental threat. Second, I argue that we should stop thinking of responses to climate change in terms of the precautionary principle, which counsels action even in the absence of scientific consensus about a threat. We should speak instead in terms of a ?post-cautionary? principle for a post-cautionary world, in which some very bad effects of climate change are unavoidable and others are avoidable only if we take dramatic steps, and soon. These points are related insofar as they together create a moral imperative both to adapt to the changes we cannot prevent and to mitigate those we can. Without these efforts, people will fall ill and many will die, and we know now that this will occur. No fancy moral theory is required to condemn, and to make every attempt to avert, this large-scale knowing killing