Journal of Industrial Ecology (pg. 243)  [Printer-friendly version]
Oct. 1, 2005

A REVIEW OF CASS SUNSTEIN'S BOOK, RISK AND REASON

A review of: Risk and Reason: Safety, Law, and the Environment, by Cass
R. Sunstein. Cambridge, UK: Cambridge University Press, 2002, 342 pp.,
ISBN 0521791995, $25.00 (Also in paperback: ISBN 0521016258 $22.99).

By Adam M. Finkel

As someone dedicated to the notion that society needs quantitative
risk assessment (QRA) now more than ever to help make decisions about
health, safety, and the environment, I confess that I dread the
arrival of each new book that touts QRA or cost-benefit analysis as a
"simple tool to promote sensible regulation." Although risk analysis
has enemies aplenty, from both ends of the ideological spectrum, with
"friends" such as John Graham (Harnessing Science for Environmental
Regulation, 1991), Justice Stephen Breyer (Breaking the Vicious
Circle, 1994), and now Cass Sunstein, practitioners have their hands
full.

I believe that at its best, QRA can serve us better than a
"precautionary principle" that eschews analysis in favor of crusades
against particular hazards that we somehow know are needlessly harmful
and can be eliminated at little or no economic or human cost. After
all, this orientation has brought us increased asbestos exposure for
schoolchildren and remediation workers in the name of prevention, and
also justified an ongoing war with as pure a statement of the
precautionary principle as we are likely to find ("we have every
reason to assume the worst, and we have an urgent duty to prevent the
worst from occurring," said President Bush in October 2002 about
weapons of mass destruction in Iraq). More attention to benefits and
costs might occasionally dampen the consistent enthusiasm of the
environmental movement for prevention, and might even moderate the on-
again, off-again role precaution plays in current U.S. economic and
foreign policies. But "at its best" is often a distant, and even a
receding, target -- for in Risk and Reason, Sunstein has managed to
sketch out a brand of QRA that may actually be less scientific, and
more divisive, than no analysis at all.

To set environmental standards, to set priorities among competing
claims for environmental protection, or to evaluate the results of
private or public actions to protect the environment, we need reliable
estimates of the magnitude of the harms we hope to avert as well as of
the costs of control. The very notion of eco-efficiency presupposes
the ability to quantify risk and cost, lest companies either waste
resources chasing "phantom risks" or declare victory while needless
harms continue unabated. In a cogent chapter (Ch. 8) on the role of
the U.S. judiciary in promoting analysis, Sunstein argues persuasively
that regulatory agencies should at least try to make the case that the
benefits of their efforts outweigh the costs, but he appears to
recognize that courts are often ill-equipped to substitute their
judgments for the agencies' about precisely how to quantify and to
balance. He also offers a useful chapter (Ch. 10) on some creative
ways agencies can transcend a traditional regulatory enforcer role,
help polluters solve specific problems, and even enlist them in the
cause of improving eco-efficiency up and down the supply chain. (I
tried hard to innovate in these ways as director of rulemaking and as
a regional administrator at the U.S. Occupational Safety and Health
Administration, with, at best, benign neglect from political
appointees of both parties, so Sunstein may be too sanguine about the
practical appeal of these innovations.)

Would that Sunstein had started (or stopped) with this paean to
analysis as a means to an end -- perhaps to be an open door inviting
citizens, experts, those who would benefit from regulation, and those
reined in by it to "reason together." Instead, he joins a chorus of
voices promoting analysis as a way to justify conclusions already
ordained, adding his own discordant note. Sunstein clearly sees QRA as
a sort of national antipsychotic drug, which we need piped into our
homes and offices to dispel "mass delusions" about risk. He refers to
this as "educating" the public, and therein lies the most
disconcerting aspect of Risk and Reason: he posits a great divide
between ordinary citizens and "experts," and one that can only be
reconciled by the utter submission of the former to the latter. "When
ordinary people disagree with experts, it is often because ordinary
people are confused," he asserts (p. 56) -- not only confused about
the facts, in his view, but not even smart enough to exhibit a
rational form of herd behavior! For according to Sunstein, "millions
of people come to accept a certain belief [about risk] simply because
of what they think other people believe" (p. 37, emphasis added).

If I thought Sunstein was trying by this to aggrandize my fellow
travelers -- scientists trained in the biology of dose-response
relationships and the chemistry and physics of substances in the
environment, the ones who actually produce risk assessments -- I
suppose I would feel inwardly flattered, if outwardly sheepish, about
this unsolicited elevation above the unwashed masses. But the reader
will have to look long and hard to find citations to the work of
practicing risk assessors or scientists who helped pioneer these
methods. Instead, when Sunstein observes that "precisely because they
are experts, they are more likely to be right than ordinary people. .
. brain surgeons make mistakes, but they know more than the rest of us
about brain surgery" (p. 77), he has in my view a quaint idea of where
to find the "brain surgeons" of environmental risk analysis.

He introduces the book with three epigrams, which I would oversimplify
thus: (1) the general public neglects certain large risks worthy of
fear, instead exhibiting "paranoia" about trivial risks; (2) we
maintain these skewed priorities in order to avoid taking
responsibility for the (larger) risks we run voluntarily; and (3)
defenders of these skewed priorities are narcissists who do not care
if their policies would do more harm than good. The authors of these
epigrams have something in common beyond their worldviews: they are
all economists. Does expertise in how markets work (and that
concession would ignore the growing literature on the poor track
record of economists in estimating compliance costs in the regulatory
arena) make one a "brain surgeon" qualified to bash those with
different views about, say, epidemiology or chemical carcinogenesis?

To illustrate the effects of Sunstein's continued reliance on one or
two particular subspecies of "expert" throughout the rest of his book,
I offer a brief analysis of Sunstein's five short paragraphs (pp.
82-83) pronouncing that the 1989 public outcry over Alar involved
masses of "people [who] were much more frightened than they should
have been."1 Sunstein's readers learn the following "facts" in this
example:

** Alar was a "pesticide" (actually, it regulated the growth of apples
so that they would ripen at a desired time).

** "About 1 percent of Alar is composed of UDMH [unsymmetrical
dimethylhydrazine], a carcinogen" (actually, this is roughly the
proportion found in raw apples -- but when they are processed into
apple juice, about five times this amount of UDMH is produced).

** The Natural Resources Defense Council (NRDC) performed a risk
assessment claiming that "about one out of every 4,200 [preschool
children] exposed to Alar will develop cancer by age six" (actually,
NRDC estimated that exposures prior to age six could cause cancer with
this probability sometime during the 70-year lifetimes of these
children -- a huge distinction, with Sunstein's revision making NRDC
appear unfamiliar with basic assumptions about cancer latency
periods).

** The EPA's current risk assessment is "lower than that of the NRDC
by a factor of 600" (actually, the 1/250,000 figure Sunstein cites as
EPA's differs from NRDC's 1/4,200 figure by only a factor of 60
(250,000 ÷ 4,200). Besides, EPA never calculated the risk at one in
250,000. After Alar's manufacturer (Uniroyal) finished a state-of-the-
art study of the carcinogenicity of UDMH in laboratory animals, EPA
(Federal Register, Vol. 57, October 8, 1992, pp. 46,436-46,445)
recalculated the lifetime excess risk to humans at 2.6 × 10-5, or 1 in
38,000. And, acting on recommendations from the U.S. National Academy
of Sciences, EPA has subsequently stated that it will consider an
additional tenfold safety factor to account for the increased
susceptibility of children under age 2, and a threefold factor for
children aged 2 to 16 -- which, had they been applied to UDMH, would
have made the EPA estimate almost equal to the NRDC estimate that made
people "more frightened than they should have been").

** "A United Nations panel... found that Alar does not cause cancer in
mice, and it is not dangerous to people" (true enough, except that
Sunstein does not mention that this panel invoked a threshold model of
carcinogenesis that no U.S. agency would have relied on without more
and different scientific evidence: the U.N. panel simply ignored the
large number of tumors at the two highest doses in Uniroyal's UDMH
study and declared the third-highest dose to be "safe" because that
dose produced tumors, but at a rate not significantly higher than the
background rate).

** A 60 Minutes broadcast "instigated a public outcry.. . without the
most simple checks on its reliability or documentation" (readers might
be interested, however, that both a federal district court and a
federal appeals court summarily dismissed the lawsuit over this
broadcast, finding that the plaintiffs "failed to raise a genuine
issue of material fact regarding the falsity of statements made during
the broadcast").

** The demand for apples "plummeted" during 1989 (true enough, but
Sunstein neglects to mention that within five years after the
withdrawal of Alar the apple industry's revenues doubled versus the
level before the controversy started).

Sunstein's entire source material for these scientific and other
conclusions? Four footnotes from a book by political scientist Aaron
Wildavsky and one quotation from an editorial in Science magazine
(although the incorrect division of 250,000 by 4,200 and the mangling
of the NRDC risk assessment appear to be Sunstein's own
contributions). One reason the general public annoys Sunstein by
disagreeing with the "experts," therefore, is that he has a very
narrow view of where one might look for a gold standard against which
to judge the merits of competing conclusions. Perhaps Sunstein himself
has come to certain beliefs about Alar and other risks "simply because
of what [he thinks] other people believe," and comforts himself that
the people he agrees with must be "experts."

Similarly, Sunstein makes some insightful points about the public's
tendency to assume that the risks are higher for items whose benefits
they perceive as small, but he fails to notice the mountains of
evidence that his preferred brand of experts tend to impute high
economic costs to regulations that they perceive as having low risk-
reduction benefits. He accepts as "unquestionably correct" the
conclusion of Tengs and colleagues (1995) that government badly
misallocates risk-reduction resources, for example, without
acknowledging Heinzerling's (2002) finding that in 79 of the 90
environmental interventions Tengs and colleagues accused of most
severely wasting the public's money, the agency involved never
required that a dime be spent to control those hazards, probably
because analysis showed such expenditures to be of questionable cost-
effectiveness.

Finally, Sunstein fails to acknowledge the degree to which experts can
agree with the public on broad issues, and can also disagree among
themselves on the details. He cites approvingly studies by Slovic and
colleagues suggesting that laypeople perform "intuitive toxicology" to
shore up their beliefs, but fails to mention that in the most recent
of their studies (1995), toxicologists and the general public both
placed 9 of the same 10 risks at the top of38 risks surveyed, and
agreed on 6 of the 10 risks among the lowest 10 ranked. Yet when
toxicologists alone were given information on the carcinogenic effects
of "Chemical B" (data on bromoethane, with its identity concealed) in
male and female mice and rats, only 6% of them matched the conclusions
of the experts at the U.S. National Toxicology Program that there was
"clear evidence" of carcinogenicity in one test group (female mice),
"equivocal evidence" in two others, and "some evidence" in the fourth.
"What are ordinary people thinking?" (p. 36) when they disagree with
the plurality of toxicologists, Sunstein asks, without wondering what
these toxicologists must have been thinking to disagree so much with
each other. One simple answer is that perhaps both toxicologists and
the general public, more so than others whose training leads them
elsewhere, appreciate the uncertainties in the raw numbers and the
room for honest divergence of opinion even when the uncertainties are
small. These uncertainties become even more influential when multiple
risks must be combined and compared -- as in most life-cycle
assessments and most efforts to identify and promote more eco-
efficient pathways -- so Sunstein's reliance on a style of expertise
that regards uncertainty as an annoyance we can downplay or "average
away" is particularly ill-suited to broader policy applications.

I actually do understand Sunstein's frustration with the center of
gravity of public opinion in some of these areas. Having worked on
health hazards in the general environment and in the nation's
workplaces, I devoutly wish that more laypeople (and more experts)
could muster more concern about parts per thousand in the latter arena
than parts per billion of the same substances in the former. But I
worry that condescension is at best a poor strategy to begin a
dialogue about risk management, and hope that expertise would aspire
to more than proclaiming the "right" perspective and badgering people
into accepting it. Instead, emphasizing the variations in expertise
and orientation among experts could actually advance Sunstein's stated
goal of promoting a "cost-benefit state," as it would force those who
denounce all risk and cost-benefit analysis to focus their sweeping
indictments where they belong. But until those of us who believe in a
humble, humane brand of risk assessment can convince the public that
substandard analyses indict the assessor(s) involved, not the entire
field, I suppose we deserve to have our methods hijacked by experts
outside our field or supplanted by an intuitive brand of "precaution."

==============

Adam M. Finkel, School of Public Health, University of Medicine and
Dentistry of New Jersey Piscataway, New Jersey, USA

Note

1. This is admittedly not a disinterested choice, as I was an expert
witness for CBS News in its successful attempts to have the courts
summarily dismiss the product disparagement suit brought against it
for its 1989 broadcast about Alar. But Sunstein's summaries of other
hazards (e.g., toxic waste dumps, arsenic, airborne particulate
matter) could illustrate the same general point.

References

Heinzerling, L. 2002. Five hundred life-saving interventions and their
misuse in the debate over regulatory reform. Risk: Health, Safety and
Environment 13(Spring): 151-175.

Slovic, P., T. Malmfors, D. Krewski, C. K. Mertz, N. Neil, and S.
Bartlett. 1995. Intuitive toxicology, Part II: Expert and lay
judgments of chemical risks in Canada. Risk Analysis 15(6): 661-675.

Tengs, T. O., M. E. Adams, J. S. Pliskin, D. G. Safran, J. E. Siegel,
M. C. Weinstein, and J. D. Graham. 1995. Five hundred life saving
interventions and their cost-effectiveness. Risk Analysis 15(3): 369-
390.