EPA’s data suggest that the number of drinking water systems with elevated lead levels has dropped significantly since testing began in the early 1990s. However, EPA’s database does not contain recent test results for over 30 percent of large and medium-sized community water systems and lacks data on the status of water systems’ efforts to implement the lead rule for over 70 percent of all community systems, apparently because states have not met reporting requirements. In addition, EPA’s data on water systems’ violations of testing and treatment requirements are questionable because some states have reported few or no violations. As a result, EPA does not have sufficient data to gauge the rule’s effectiveness.

Implementation experiences to date have revealed weaknesses in the regulatory framework for the lead rule. For example, most states do not require their water systems to notify homeowners that volunteer for periodic lead monitoring of the test results. In addition, corrosion control can be impaired by changes to other treatment processes, and controls that would help avoid such impacts may not be adequate. Finally, because testing indicates that some “lead-free” products leach high levels of lead into drinking water, existing standards for plumbing materials may not be sufficiently protective. According to EPA officials, the agency is considering some changes to the lead rule.

On the basis of the limited data available, it appears that few schools and child care facilities have tested their water for lead, either in response to the Lead Contamination Control Act of 1988 or as part of their current operating practices. In addition, no focal point exists at either the national or state level to collect and analyze test results. Thus, the pervasiveness of lead contamination in the drinking water at schools and child care facilities—and the need for more concerted action—is unclear.

Genetically-engineered foods pose a variety of known risks both to humans and to the security of the nation's food supply. Moreover, as a relatively new technological advancement, genetically-engineered products also pose many unknown risks as well. The legislation bars communities from enacting the precautionary principle, which would require new technologies be proven safe before being adopted.

Moreover, the situation exemplifies the problems facing state advocacy. Though states have often surpassed the federal government in achieving strong and responsive public protections, they have also presented an easy target for industry special interests whose legislative agendas may meet more resistance in the national arena. Just as state initiatives may present great opportunities for advancing social goods, they are also susceptible to the vast influence of corporate special interests.

More on the hazards of genetically-modified crops: Nanotech, Genetically Modified Crops Spotlights Regulatory Gaps (11/01/2005)

More on state progressive reform: States Present Opportunities and Pitfalls for Progressive Reform (8/22/2005)

Posted by Genevieve Smith, 11:26:07 AM



Pollution and CBA as Knowing Killing
There is another brilliant contribution from scholar Lisa Heinzerling on regulatory policy issues. In her latest article, Prof. Heinzerling notes that "economic analysis has substantially succeeded in de-ethicizing environmental issues" that she wishes explicitly to "re-ethicize." The ethical norm she chooses to focus on is the prohibition against knowing killing.

After a review of the norm as it is inscribed throughout the corpus of American law, Heinzerling observes that this norm animates our concern with pollution:

The ethical commitment against knowing killing can also be seen in modern regulatory statutes. Several modern environmental laws prohibit knowingly releasing hazardous substances into the air or water or onto the land while knowing at the time that these releases are placing another person in “imminent danger of death or serious bodily injury.” The Clean Air Act, for example, prohibits knowingly releasing hazardous air pollutants into the ambient air in situations in which one knows that these releases are placing another person in imminent danger of death or serious bodily injury. These releases are criminal acts, and people who commit these acts may be sent to prison for up to 15 years. Although here the offense is knowing endangerment, not knowing killing, the Clean Air Act’s prohibition must flow from the general norm against knowing killing. Why would life-threatening endangerment matter if killing did not?

In this light, cost-benefit analysis becomes the ethically challenged practice of counting up the number of people we expect to allow a company to kill:

[T]here is a well-established legal norm -- reflecting, I believe, a well-established moral commitment -- against one person knowingly killing another person. This norm is reflected in traditional laws against murder, in modern regulatory laws prohibitions on knowing endangerment, and in old-fashioned tort judgments. This norm reflects, among other things, a widely shared aversion to one person making the decision about death for another person. It reflects an aversion to one person calculating in relation to another person that “it's okay by me” if she dies — or, in fact, “it works for me.” According to the norm I have described, this kind of calculation not only does not deactivate the norm against knowing killing, but indeed, the calculation itself helps to prove that the norm has been violated. In this regard, recall that some state laws make the definition of murder turn on a pre-killing weighing of the choice whether to kill.

Cost-benefit analysis in the context of life-threatening environmental risks involves a pre-killing weighing of the choice whether to kill. In this setting, economic costs are balanced against the value, stated in terms of dollars, of the people who will be killed by the environmental hazards in question unless pollution-reducing strategies are deployed. The dollar value of the people who will be killed is determined by considering the monetary value that people place on relatively small risks to themselves, in contexts such as workplace settings where they might demand an extra wage for extra risky work. These monetary values for risk are summed to produce a value of a “statistical life” -- the value associated with the loss of one life through the imposition of fairly small risks on a population of people.

I think it is obvious that cost-benefit analysis does not redeem knowing killing. Indeed, from what I have just said, it seems clear that using cost-benefit analysis to decide in favor of killing another person makes the killing worse, not better, from a legal and ethical perspective....

Download Lisa Heinzerling, "Knowing Killing and Environmental Law" (2006).

Posted by Robert Shull, 10:27:06 AM