Mention the Supreme Court and most people picture nine justices debating constitutional issues like due process or freedom of speech. But much of the high court's work involves cases rooted in commercial or administrative disputes -- and in resolving them, the court critically shapes the laws under which the economy operates. That's one reason the nomination of Judge Stephen Breyer is so important; far more than any sitting justice, his expertise lies in economic subjects like antitrust and regulation. With Breyer's confirmation seemingly assured, his particular views on making regulation more cost effective are "likely to define the center of the court" on such issues, says John Graham, head of the Center for Risk Analysis at Harvard's School of Public Health. That, in turn, could be part of a trend in government toward regulations more grounded in reason than many are now.
As a federal appeals court judge in Massachusetts, Breyer has decided cases in such areas as environmental regulation. The former Harvard law professor has also expanded on his views in academic writings, including a 1993 book, Breaking the Vicious Circle: Toward Effective Risk Regulation. In that volume, he focuses on how government regulates small health and safety risks -- for example, the roughly 1-in-10 million risk of dying from exposure to asbestos in schools. Typically, "the smaller the risks at issue, the more likely the costs [of regulation] will be excessive," Breyer writes. He cites an old Environmental Protection Agency ban of asbestos products, such as shingles, estimated to cost society $200 million to $300 million but to save just seven to eight lives over 13 years. A federal appeals court eventually struck down the ban, noting that more people would probably die from accidentally eating toothpicks over the same period.
Random. Why are regulators so overly zealous? Not because they're dumb, Breyer contends, but because of a vicious circle. Frightened by scary media reports, the public is obsessed with minor risks; in turn, a reactive Congress influences the regulators, who then try to eliminate tiny risks despite scientific uncertainty over the dangers. The result is a "random agenda" of regulation that produces inconsistent results. Instead of letting the vicious circle play out, Breyer says government should develop a more rational approach, setting priorities and making trade-offs among regulatory programs. One idea: abandoning toxic waste dump cases where the remaining costs of cleanup are high and the benefits small -- then using the savings for other health needs, such as vaccinating poor children.
Not surprisingly, some health activists quarrel with Breyer. Dr. Sidney Wolfe of the public-interest group Public Citizen claims that several errors in Vicious Circle -- in descriptions of existing regulations or the merits of scientific studies -- betray a careless bias against regulators and a predisposition to side with industry. But Breyer's views appear to be in step with a movement afoot toward more rational regulation. Increasingly, Congress is insisting on measures to better assess risks and trade-offs as the price of passing any environmental legislation, notes John Kyte, director of environmental quality with the National Association of Manufacturers.
One bellwether is a Senate vote in mid-May to reauthorize the 1974 Safe Drinking Water Act. In a Breyer-like trade-off, new provisions in the bill would let the EPA lower its current standards for allowable contaminants in drinking water, if that would save money for local governments without endangering health. Moreover, a key amendment would go far beyond the matter of safe drinking water, requiring the EPA to weigh the costs of all major regulations that the agency proposes against the human- health risks. Finally, to put those risks in context, the EPA would also have to compare such potential health dangers with other threats that people face, such as death in an airplane crash. That could dampen one phase of Breyer's vicious circle public concerns over perceived dangers that are actually quite minimal.
Despite his career on the bench, Breyer isn't optimistic that lower federal courts can push government agencies to adopt more rational regulation. He notes that their role in regulatory cases tends to be far narrower, such as merely forcing government agencies to meet deadlines for action written into law by Congress. Rather, Breyer proposes to create a new federal superagency empowered to reorder regulatory priorities and expenditures across the entire government. But that's not likely to come about. On the other hand, Congress will soon rewrite major pieces of environmental legislation, such as the Superfund law, that may well shift regulation in the direction that Breyer favors. That could produce more litigation that might make it all the way to the nation's highest court. Thus, Breyer could well have a chance to underscore his regulatory views through supreme judicial action.
