Shifting Sands: The Limits of Science in Setting Risk Standards

Regulators need to rely on science to understand problems and predict the consequences of regulatory actions, but overreliance on science can actually contribute to, or at least deflect attention from, incoherent policymaking. In this article, we explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued. In revising these standards, EPA mistakenly invoked science as the exclusive basis for its decisions and deflected attention from a remarkable series of inconsistencies. For example, even though EPA claimed to base its standards on a singular concern for public health, it set its standards at levels that will still lead to hundreds, if not thousands, of deaths each year. In other ways, EPA's positions were like shifting sands, changing at points that apparently were expedient for the agency. Such an outcome should not be unexpected when an agency misuses science as a policy rationale, but it also need not be inevitable if agencies learn to respect the limits of science in justifying risk standards. We conclude by offering a set of principles to give direction to standard setting by EPA and other agencies. In the case of EPA's air quality program, Congress will likely need to amend the Clean Air Act to enable EPA to break free of the conceptual incoherence in which it now finds itself mired. Decisionmakers in any setting, though, can avoid the problem of shifting sands by carefully understanding what science can and cannot do.Environment, Regulatory Reform

The Precautionary Principle and Radiation Protection

The authors examine the application of the precautionary principle through a case study of ionizing radiation control and suggest a reevaluation of current radiation safety standards and practices

Emerging Technologies and the Courts

The world is changing at a faster pace today than ever before, in large part fueled by an unprecedented rate of technology advances. This pace of technological change will only accelerate going forward. We all must take this reality of unprecedented change into account as we plan our futures, perform our professional duties, and in the case of judges, write judicial opinions. As Chief Justice of the U.S. Supreme Court John Roberts stated in an interview at the time of his appointment, “politicians – and judges for that matter – should be wary of the assumption that the future will be little more than an extension of things as they are.”1 It is human nature to perceive the world today the same as it was yesterday, and the same as it will be tomorrow. This static view of the world is an illusion, however, and masks the unprecedented disruptive change going on in the world around us

The EPA\u27s Risky Reasoning

Regulators must rely on science to understand problems and predict the consequences of regulatory actions, but science by itself cannot justify public policy decisions. We review the Environmental Protection Agency\u27s efforts to justify recent changes to its National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, showing how the agency was able to cloak its policy judgments under the guise of scientific objectivity. By doing so, the EPA evaded accountability for a shifting and incoherent set of policy positions that will have major implications for public health and the economy. For example, even though EPA claimed to base its revised standards on a singular concern for public health, it set the new standards at levels that will still lead to hundreds, if not thousands, of deaths each year. The EPA\u27s claim to rely solely on science contributed to positions that ultimately failed to meet the law\u27s aspiration of reasoned decision-making by administrative agencies