How Much Is A Human Life Worth? Part I

THE OPEN MIND

Host: Richard D. Heffner
Guest: Stephen Breyer
Title: “How Much is a Human Life Worth?” Part I
VTR: 12/14/1993

HEFFNER: I’m Richard Heffner, your host on The Open Mind, and it was Blaze Pascal who had said so famously, apologizing for writing a longer letter than usual, that on his grounds he lacked the time to make it shorter. Today’s guest, on the other hand, has taken the time to write a very short, but very consequential book entitled “Breaking the Vicious Circle: Toward an Effective Risk Regulation” published by Harvard University Press. We know our my guest, of course as the distinguished Chief Judge of the United States Court of Appeals for the first circuit who was so enthusiastically touted by the press as Bill Clinton’s likely first nominee to the Supreme Court of the United States. He wasn’t, but Stephen Breyer remains the choice of all those who look to make whatever sense can be made of that confusing confluence of law and science where the nation seeks to regulate health and safety risks to human life realistically and reasonably. That point at which we ask, “How much is a life worth? What is its dollar value? Asking it in the hope that in our cost benefit age raising antes just may save lives. Perhaps many lives, in fact. Well, my favorite journalist, economic Peter Passal noted in The New York Times that Chief Judge Breyer’s book may not convince those who have dedicated their careers to stamping out risks but this lucid, non-technical essay on risk regulation will impress pragmatists in search of a bigger bang for our regulators’ buck. And like so many others concerned with contemporary risk aversion, through regulation by government agencies and then perhaps reviewed by our courts, Peter Passel appreciates Judge Breyer’s recognition of that abject poverty of that presumed insight into the need for better communications between the scientific community on the one hand, and politicians and the public on the other. For my guest so happily notes in his book that to speak of the need for improved communication in fact is only to call spirits from the vast deep…One can call them, but will they come? So, let’s first ask this distinguished jurist what the chances are that they will. And if they won’t, what are our options? Judge Breyer, what do we do, ah, if we don’t evoke this cooperation, this communication?

BREYER: Well, we started…in this communication, the reason I said that, is that we started talking about risk regulation I was already wondering how many people had already fallen asleep (laughter)…it’s a subject that is, ah, complicated and tends to be, ah, a little dull and adirect answer to your question I, I think is, is going to require people to delegate a little bit more discretionary responsibility to people within the government who will have to make common sense decisions.

HEFFNER: You mean…in the government?

BREYER: That’s a pejorative word. The government is there. The government matters. The government deals with this, however, I’d rather have it dealing with it sensibly than not sensibly.

HEFFNER: Can it deal with it sensibly only if we kind of set off the regulators from the legislature and the press and the rest of us and our demands?

BREYER: I think to a degree, yes. I mean, the public can decide whether it’s a good or bad idea for the President to fight in Iraq. That’s a public decision. The President and Congress are held responsible. Nobody thinks that if the answer to that decision is fight that the public or Congress should start calling the shots about where to move the tank corp. People are prepared to delegate to a military leader responsibility for what particular force goes where on what particular occasion. Unless there’s a greater effort to delegate, let’s say, to EPA or government officials the allocation of money. Depending upon do you fight asbestos here or PCBs there or what extent, or how much is too safe, or how much is not safe enough…a PHH or a dioxin or all of those difficult chemical names. Unless discretionary authority is given to people who are charged with overall responsibility for saving human life, there will be a mess. And that responsibility has not been given. So I think it isn’t surprising that there’s a little bit of a mess.

HEFFNER: But you know, you’re the one who uses the “war” metaphor…

BREYER: Yes.

HEFFNER: …and we’ve been brought up in our time to believe that war is too serious a matter to leave to the generals…isn’t this true, also, of the risks to our environment? You said people tend to fall asleep…you talked about risk regulation, but, my goodness, we’re all so involved in the matter of avoiding Chernoble, avoiding, ah, the dirtying of our environment, of avoiding those things that cause disease, etc. Why do you, why do you make the assumption that…

BREYER: …the decision of wars, whether you want a war or not, you’re not going to get the popular vote, whether you invade Iwo Jima, or Okinawa, or some other place. I mean, of course, if you’re putting to people, “Do you want to save more human life?”, the answer can be “yes”. But you ought to put to people the question of whether one microbe or one molecule of asbestos is worse or better than two pounds of dioxin. That’s not a question that people can have a sensible judgment about unless they are prepared to spend 3 to 4 weeks minimum studying the issue. And my, my problem, which I will…I can give you an example…the example I use, which is “What do I know about this? How can I write this book? I’m not a scientist. I don’t know anything about this. To read what I know about it is absolutely no more than what you would know about it. If you were told you better get some lectures at Harvard, where I taught for a long time, before, your colleagues were very skeptical. So you sit down and read scientific journals for a couple of hours each day for about a year and a half. And all I’ve done in that book is give you a report from the literature. Now, the report from the literature is that things are a little bit mixed up. I was stimulated to write that for this reason: I had a case. The case came out of New Hampshire. People were cleaning up a toxic waste dump. The toxic waste dump had been cleaned up for 10 years, this was going on for 10 years, people were trying to clean up the toxic waste dump. They all had agreed that after about 8 years of effort it was clean enough. So that in fact, small children ate tiny bits of dirt nothing would happen to them. They could eat tiny bits of dirt for 70 days a year. It was so clean nothing could happen to them. But the government wanted it cleaned up to the point where the small children could eat the dirt for 240 days a year. The difference between 70 days a year of dirt eating, and 240 days of dirt eating was going to cost about 9 million dollars. And the company balked of spending that 9 million dollars, which they said was for nothing. It wasn’t for nothing. It was between 70 days of dirt-eating children and 240 days. But there no children, by the way, there were no children. It was a swamp. And there weren’t going to be any children, because it wasn’t zoned, they weren’t going to build on that property. The whole thing was going to evaporate in 5 years anyway. So 9 million dollars, ah, for cleaning up a swamp where it was already 99 percent clean, but that last little bit was going to cost an extra 9 million dollars. I’m reasonable confident of that because, because that particular case I had to read about 20,000 pages of. The question in my mind was, was this a general problem? Do I just have a fluke with this dirt eating children’s swamp? Or is this something that is a problem with the country in general? That’s why I started reading. I read a lot of science magazines, and, scientists write, too. The write English, too! (Laughter) They write as well as lawyers and my pre-impression which I…with a lot of facts is that there is a problem, which I call a problem of the last 10 percent. You can clean up most of these areas very clean, but it’s that last 10 percent that takes the time. And it takes an enormous amount of money. So the issue is, is that that last little bit of clean-up, which is extremely expensive, worth the enormous expense it’s causing? That’s one of the general problems.

HEFFNER: Where will that decision be made? Where can it be made best in your estimation? Can we bring it down to that question?

BREYER: Can we bring it down to that question. I think the problems that are really there…what is this problem with the last 10 percent, spending a lot of money, to get very little good? The opposite problem is that there are a lot of problems you can’t attack, as you’re dealing with the first. And the third way of putting the same thing is you spend a hell of a lot of money on this last little bit while there all kinds of things like mammograms for women and dozens of dozens of things where you can shift resources and save more lives. How do you make those decisions? In my own mind, the only way you’re going to do it is by producing a group of people in the federal government who have some of the scientific training, people who understand a little bit about cost, who know something about law, and giving them the authority to make discretionary systems under a constraint. They make discretionary decisions under the constraint that what they decide at the end of the day has to save more human life, and if they haven’t made that decision…

HEFFNER: Yes, but won’t that judgment then be made by you? And the fellow members of your court…

BREYER: It won’t really be made by me…there are ways…

HEFFNER: Tell me.

BREYER: …any particular problem, take any problem in the world, ah, they’re usually…you know, like crime for example, all right…you don’t have to go into, necessarily, very complicated things like “is euthanasia a crime, or not a court crime?”. They’re difficult questions, but they’re also easy questions…the easy questions like when you see people walking down the street with guns and they shoot other people…that isn’t a difficult question as to whether that’s good or bad. There are a lot of things going on in the country that are not difficult to say “These are bad”. And it isn’t difficult to say “This is an improvement.” And what I tell you is that there are, there is enough money in the safety area being spent on things that are very obviously wasteful. That taking some of that and spending it elsewhere will not be hard to measure and you’re saving more life.

HEFFNER: Just one moment…

BREYER: Yes

HEFFNER: You’re talking about a decision you had to study and you had to render.

BREYER: Yes.

HEFFNER: …and you’re obviously talking about a decision you think had been made on a common-sensible basis…

BREYER: …yes, that’s right.

HEFFNER: What got in the way of that?

BREYER: That’s a great question. A great question…that’s a great question…

HEFFNER: Lawyers? The judicial system?

BREYER: Yah, that’s right, but you see, people operate, in particularly in these technical areas…they could lead the 20th century through huge bureaucratic structures. And these bureaucratic structures tend to operate according to rules. The have to operate according to rules, they have to. And the problem for law in general, for people in general…this has been a problem, by the way, since the age of Justinian…is how do you temper what you call rules of law? In what we call in law “equity”? In general principles, treat like cases alike. But there’s always exceptions, when you have to treat different cases differently. How you temper these rules of law with equity is a problem which has been with us for approximately 3,000 years, minimum. In any legal system there is that problem. At the moment, in this area, what I’m arguing, is that we’ve gone overboard on the side of detailed principles, the rules of law. So that probably in that New Hampshire dump, probably what was happening is that the EPA officials were following a set of rules. And the set of rules were generated by some other people who weren’t familiar with the set of rules for a single area, but were supposed to apply across the country as a whole. I could give you examples, but it would take too long. But then when EPA officials try to apply a set of rules to a particular toxic waste dump, you can discover quite easily that they require expenditures that don’t make any sense. And that’s what was going on. I was some kind of rule that in general was designed for safety. It was going to require the people at the dump to spend 9 million dollars basically for nothing. How do you break into a system that is overregulated in the sense of committee rules? You have to, at some point, give people the power to make exceptions, and these have to be people with discretionary authority. That’s what I’m arguing with in the terms of common sense and there’s a lack of it.

HEFFNER: But that discretionary authority at some point, at any point, at every point is going to be questioned. And you as a federal judge are going to be brought into the situation.

BREYER: Oh, we’re always brought into the situation.

HEFFNER: …then…

BREYER: We’re always brought into the situations, and the only thing I would urge is that people not have a lot of confidence that we can deal too well with these situations. I mean, judges can come in and say…I mean in a very extreme situation…that it appears to be wrong because it’s arbitrary or…of discretion, but those are few and far between. When you have technical regulatory problems, you have to rely on people with training, not judges, to come up with sensible solutions.

HEFFNER: With no traditional review?

BREYER: There’s always traditional review. Traditional review, in these kinds of areas, is on a principle. And the principle is the use of arbitrary capricious abusive discretion. There is a famous case called “Aqua Slide and Dive”, alright? “Aqua Slide and Dive”. A consumer product safety commission decides they’re going to start regulating helping consumers by starting with swimming pool slides. I don’t know why they did. They started there. They then said…they then said that there were 20 deaths or deaths from people going down swimming pool slides into the pool who had broken their neck. This is a terrible thing. But the pools had been empty at the time. 8 of the 12 had been drunk at the time and went down the swimming pool slide. Looking at that fairly minor problem the consumer…the commission says “move the slide to the deep end”. They have a rule, move it to the deep end. Then somebody says “what about children?” They’ll go down the slide. If they can’t swim they’ll drown. The commission says, that’s a good point. We’ll put up a sign saying “don’t go in the deep end…don’t go in if you can’t swim”…children…children can’t read signs…they can’t swim…”Oh, we’ll put the sign in symbols”, you know symbols…says “that’s ridiculous”…alright, we’ll require that the slide has a rope of metal that goes down it, so that the child that goes down it can reach up…and starts pulling up the rope…well, how does the child know? “We’ll put a sign on it in symbols that show the child…blah blah blah…pulls on the rope and goes up the slide”. Alright, that went into the…circuit, and the…circuit judge said “that’s ridiculous”. Alright? If it’s ridiculous to that extent, judges can deal with it. In this kind of area, it’s not that obvious. And judges can’t easily deal with the signs of technical…

HEFFNER: Then I go back to the question I asked you before. Aren’t you then arguing for no judicial review of a significant number of cases because if judicial review is allowed for…

BREYER: Yes.

HEFFNER: …they’re going to find some lawyer somewhere taking the regulatory commission to court.

BREYER: Well I don’t think that…that’s not the major problem…the problem is how do you inject more common sense into this kind of decision? That’s the problem. How do you do that?

HEFFNER: How do you do that?

BREYER: How do you do that? I don’t think judges can easily do it. By the time the matter’s gotten to court the battle’s already lost. I don’t think Congress people can easily do it, because once these things like…or dioxins or…once they become major political issues on the front page of every paper, the battle’s already lost, because people are not going to think about it calmly without emotion. The question is can you get a group of people who will inject common sense into this debate on thousands of little technical scientific chemical, etc. Can you do that before it become a pre-political issue, before it goes to court? I think the answer is “yes, you can”. Other countries have done that. In European countries they frequently have civil servants who are senior, civil servants who move from agency to agency, who get experience drawn from different agencies, and they have a degree of power over the, the, decision making above the civil servants. We had that idea here. It was called the Senior Executive Service. That was to be a reform of the Civil Service, a top level of people who would move from one agency to another. Just hasn’t been able to manage. There are numerous examples that if you give people training, if you give them some scientific training, if you give them some legal training, give them some economic training, in their career let them work in Congress for a while. Let them work in the technical agencies for a while. Let them work in the center, in the White House, the Office of Management and Budget, the control bodies in the Civil Service for a while, give them some authority to review the decisions of others. And, I, I, I believe this, that that will help. Not that it will cure a problem, but it will help. You’ll inject more common sense into the solution of these highly technical safety areas. There’s plenty of room for improvement.

HEFFNER: You won’t hold me in contempt of court…

BREYER: (Laughter) …I trust…

HEFFNER: I say utopian…

BREYER: …I’ve seen it happen. If that doesn’t work I’ve seen…

HEFFNER: (Laughter)

BREYER: Where have I seen it happen? Ah, the federal trade commission. Go back to the 1970s. Remember when Ralph Nader investigated the Federal Trade Commission? He had all those people with, ah, with, ah, newspapers over their heads! They were lying on the sofa! I said “what do you do here?” They said “I don’t know”! It was a bad situation in the 1970s. But it did change and it did improve. Why did it change and why did it improve? Why did it improve? That’s a very interesting example of improvement in government. That…people came in who wanted to energize the agency. And they started with a problem of false advertising. And they were able to demonstrate in a fairly clear way that they had, in fact, made an improvement in respect to false advertising. Once the public, or the informed public, began to understand that, Congress responded by giving them more authority. They then began to attract better people into the agency. Those people began to produce a certain amount of good from the public’s point of view. And the result was greater prestige for the agency, and greater power. If you gave to the present OMB, The Office of Information and Regulatory Affairs, say, a little bit of added discretionary power, when superfund is once again re-authorized, say to the President, “Mr. President, take one billion dollars of this money and spend it any way you want on the condition that you account to us afterwards that you saved more human life than if you hadn’t transferred it”…make a little bit of change by proving one year from today or two years from today, my goodness…we spend some of this money on mammograms, and the result is we’ve saved 8,400 more lives, then the one life we would have saved if it was out there with the dirt-eating children. And the press will begin to report that. And people will, in fact…that’s an interesting story. That’s a story that you save 8,400 people instead of one. It’s good enough even to make page three. I grant you, it isn’t as good a story, if you had said “the toxic cancer rate at this plant is elevated by .007, that gets page one. But let’s report this at least on page three. That’ll help.

HEFFNER: Now, in this…I feel constrained to ask you…Peter Passel points out that you are no de-regulator. And you say, in breaking the vicious circle, you’re not calling for de-regulation…

BREYER: No, no…

HEFFNER: But in a sense you’re calling for de-regulation for more regulation. It’s not so strange a notion, you’re saying “let’s find those wise men and women, those balanced, wise, reasonable men and women who are going to be able to make these grand decisions. And if we do so, we will be able to minimize the level in which regulators get involved in so many aspects of our lives.

BREYER: The part that I don’t like in what you say is…which…it’s a fair criticism, but…I’m not advocating better people. Because there is a…

HEFFNER: …why…

BRYER: …there are plenty of good people in EPA…the problem in EPA, the problem in these agencies is not…the whole point, is that we live in a world where the people are what they are and I recognize perfectly well that the call for better people is a solution to every problem. God made us the way we are. We have to deal with ourselves the way we are. One can change the way one behaves, but giving that person different experience, so if you take a person who wants to go into the Civil Service today, and you say “I’ll give you an interesting career. You’re going to spend 2 years at EPA. You’re then going to work on a Congressional staff. You’ll then work over at OMB for a while. You’ll then go out to FDA. You’ll have an experience that gives you science, technology, law, public policy, politics…these will be in your background. And then, then in addition, we’ll gradually give you more authority as you rise up in the ranks. And when you’re working at OIRA, your job, your job is to review what other agencies are doing for common sense.” For what judges do when they look at arbitrary capricious discretion…that’s happening now, that’s happening now…

HEFFNER: If you do this, these procedures are going to produce a super-regulator who is wise and more balanced?

BREYER: I, I don’t like to say a super-regulator because that implies…what they’re doing…there is already in OIRA, you see, an effort to review what goes on in other agencies, for, ah, to see whether it makes a degree of sense. I’d like to do that more than they do it at present. I’d like to have different people doing it, and there I don’t mean necessarily wiser people, I mean people who have some background in science, technology, Congress, politics, who rotated themselves through the agency.

HEFFNER: Mr. Breyer, I’m getting the signal that our time is up for this program, so let’s break off here, and you sit where you’re sitting now, and we’ll do a second program.

BREYER: Yes.

HEFFNER: Thank you so much, Judge Stephen Breyer. And thanks, too, to you in the audience. I hope you’ll join us again. And if you care to share your thoughts about the program today, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Carnegie Corporation of New York; the Thomas and Theresa Mullarkey Foundation; The New York Times Company Foundation; and, from the corporate community, Mutual of America.