Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Posted on March 27, 2020 by Seth Jaffe

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide  would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though, a major flaw in our environmental and public health regulatory systems – we have no overarching regulation that provides a context in which to compare costs and benefits across regulatory programs.  Notwithstanding the concerns of my green friends, in an ideal world, we would be able to assess the costs and benefits of different regulatory strategies, compare them, and implement the global decisions necessary to balance different programs and yield the greatest overall protection of public health. 

Balancing exposure to a compound EPA has concluded is a potent carcinogen against the need to provide equipment necessary to respond to a global pandemic is particularly stark, but the issue arises daily in numerous contexts.  I’ll give just one other example from a much more mundane situation.  Early in my career, I went to a public meeting concerning the remedy proposed for a Superfund site in Somersworth, NH.  Somersworth’s population at the time was less than 12,000 people, and its share of the cleanup costs was projected to be more than $10 million.  Numerous residents commented that more lives would be saved by investing in police or traffic lights than the cleanup of a site that might have posed a 1/100,000 risk that someone would get cancer.

The point here isn’t that this anecdotal concern was legitimate – or not – but that we don’t have a framework that allows us to make these comparisons and we don’t have a regulatory system that would allow us to prioritize the greater public health benefit, even if we knew what that was.

My dream is still one overarching public health protection environmental law.



Comments (1) -

Adam Babich United States
3/28/2020 12:23:46 PM #

The problem—at least for complex decisions—is that we have no technique for reliably comparing costs and benefits. Both sides of the equation are easy to manipulate and estimates often prove inaccurate. Look at Congress, setting a discount-rate formula via a 1974 statute that inflates the benefits calculation for projects such as the Army Corps’ seemingly never-ending boondoggle to replace the lock on the Industrial Canal in New Orleans. Look at the Trump administration’s proposal to deny “equal consideration” to disfavored benefits (including many health benefits) when assessing whether it is appropriate to regulate hazardous air pollutants from coal-fired power plants. How many voters are even comfortable with the government assigning a dollar value to human lives, and trading those lives off against economic benefits? For example, in the COVID-19 context, it does not seem popular to discuss sacrificing a percentage of our high-risk elders for the sake of the S&P 500. Granted, real-world trade-offs are inevitable. So should agencies take a peek at their best estimates of these trade-offs when making regulatory decisions? Unless Congress has reserved the question of trade-offs to itself, why not? But should government elevate CBA to a fundamental decision-making criterion by promulgating an “overarching regulation that provides a context in which to compare costs and benefits across regulatory programs”? Gosh no!

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