The Fixation with the Last 10 Percent of Risk

April 13, 1994|By LINDA SEEBACH

LOS ANGELES — Los Angeles. -- When President Clinton had his first opportunity to nominate a Supreme Court Justice last year, he dithered for three months. By mid-June, when the indecision was becoming an embarrassment, Press Secretary Dee Dee Myers confirmed that the choice had narrowed to two people: Interior Secretary Bruce Babbitt and Stephen G. Breyer, chief judge of the U.S. Court of Appeals for the 1st Circuit in Boston.

Judge Breyer's nomination was imminent, White House sources were saying, when suddenly President Clinton named Ruth Bader Ginsburg.

With the announcement that Justice Harry Blackmun will retire, Mr. Clinton gets to try again. Early speculation centered on Sen. George J. Mitchell, until he withdrew yesterday. Secretary Babbitt, too, has taken himself out of the running. But Judge Breyer seems to have dropped off the White House radar screens.

That's unfortunate. He understands that policy-making requires a trade-off between costs and benefits, unlike the congressional mandarins who routinely impose sweeping new mandates without the slightest thought of whether the economy can afford it.

Good intentions, Judge Breyer knows, are no guarantee of good policy. In 1992, he gave a series of lectures at Harvard exploring the regulation of risk.

The series was issued in a brief book last year, titled ''Breaking the Vicious Cycle.'' The point, he wrote, was ''to illustrate how

well-meaning, intelligent regulators, trying to carry out their regulatory tasks sensibly, can nonetheless bring about counterproductive results.''

His analysis of the problem is more convincing than his proposed solutions, but getting the problem right is better than adding to it, as Congress has frequently done. The effort to protect people from risky substances, for instance, has resulted in at least 26 different laws administered by an alphabet soup of agencies.

The benefits are less significant than you might think. About 2.2 million Americans die every year, about 500,000 of them from cancer, ''the engine that drives much of health-risk regulation.''

But most of those deaths don't result from the sort of nasty stuff a benevolent government promises to save us from. Diet is a factor in 35 percent of cancer deaths, tobacco in 30 percent.

Regulated substances -- food additives, industrial products, pollution -- are a factor in less than 4 percent of cancer deaths.

That doesn't mean the risks are insignificant, or should be ignored. Judge Breyer is not arguing for deregulation. But he wants to make sure attempts to regulate away one risk do not make some other problem worse.

Asbestos is a good example. The public -- parents especially -- panics whenever a whiff of it is suspected in schools. Yet undamaged white asbestos, or chrysotile, the kind usually found in public buildings, is virtually harmless if it's just left alone. What's dangerous is stirring it up into the air by trying to remove it.

Judge Breyer cites a 1990 study estimating the risk of death from asbestos in schools at one in 10 million, while the risk of

death from high school football is a hundred times as great. But there's no public outcry to abolish high school football.

Removing all asbestos would cost the nation $100 billion, or about $250 million per (statistical) life saved. That's worth doing only if every other measure that can save more lives for less money has already been carried out.

But calculations like that are made in the real world, not in government bureaucracies. Such agencies suffer from ''tunnel vision,'' which Judge Breyer calls the classic administrative disease, because they subdivide their mission so much that conscientious employees carry ''single-minded pursuit of a single goal too far, to the point where it brings about more harm than good.''

When it comes to eliminating health risks, he says, ''the last 10 percent'' can involve limited technological choice, high cost, large legal fees and endless argument.

It took 10 years of litigation to settle the last little bit of clean-up at a New Hampshire toxic waste dump, deciding whether to burn contaminated soil so it would be clean enough for children playing there to eat the dirt as much as 245 days a year. But there weren't any such children, because it was a swamp where building was unlikely.

''To spend $9.3 million to protect non-existent dirt-eating children is what I mean by the problem of 'the last 10 percent,' '' Judge Breyer says.

A second problem is that there's no systematic attempt to regulate the more serious risks first. Agencies' priorities are RTC governed more by public outcry than by scientific need, and there's hardly any agreement between how the public rates health hazards and how experts in risk assessment rate them.

The result is often serious inconsistency, and sometimes outright contradiction, between the efforts of different agencies or different parts of the same agency.

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