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May 24, 1996

Comparative Risk Assessment in New York

The New York Law Journal

Comparative risk assessment (CRA) is the examination of the relative risks posed by different dangers, with a view to deciding which dangers deserve the most governmental attention. CRA frequently tries to reduce different problems to a common metric, usually the statistical lives saved by a program, so that apples can be weighed against oranges. This column will discuss and assess the growing use of CRA in New York State.

There are two principal arguments for the use of CRA in the environmental context.1 The first is that we do not have unlimited resources; we cannot move against all problems simultaneously. We must set priorities among environmental programs and attack the biggest problems first, in a kind of triage. The second argument is that a rational, quantitative approach should be applied to environmental problems so that we can rigorously analyze them, relying more on science and less on politics and public prejudices.

The New York State Department of Environmental Conservation (DEC) has long had several formal processes for ranking risks and rating environmental resources within programs. These include:

  • The Registry of Inactive Hazardous Waste Disposal Sites, in which contaminated sites are ranked on a scale of one to five, largely according to their risk.2
  • DEC's guidelines for the cleanup of contaminated soil, based largely on the risk of exposure.3
  • DEC's guidance values for unacceptable levels of airborne toxics.4
  • Classification systems for freshwater wetlands5 and surface waters and groundwaters,6 which rank these resources based on their ecological importance, purity and other values.
  • The establishment of sole source aquifers7 and critical environmental areas.8
  • The designation of primary aquifers and principal aquifers.9
  • The Environmental Conservation Law also requires DEC to "formulate guides for measuring presently unquantified environmental values and relationships so they may be given appropriate consideration along with social, economic, and technical considerations in decisionmaking."10

Cost-Benefit Analysis

In November, Governor George Pataki issued Executive Order No. 20 establishing the Governor's Office of Regulatory Reform. In January that office issued a book, "Cost-Benefit Analysis: A Guide for New York State's Regulatory Agencies," which focuses on the more traditional and well-established techniques of cost-benefit analysis, but also ventures into risk assessment. Along similar lines, DEC recently began a comparative risk study, directed by its Pollution Prevention Unit.

The U.S. Environmental Protection Agency (EPA) has made a series of studies of CRA dating back to 1987.11 These studies have found that the greatest threats are posed by radon in homes; pesticide residues on foods; and occupational exposure to chemicals. They have ranked inactive hazardous waste sites (Superfund sites) very low on the list of environmental dangers. Some of the current political attack on the Superfund program is based on findings such as this.

Conservation Functions

These cost-benefit and risk assessment techniques are generally not applied to preservation of natural areas or endangered species -- the conservation functions of DEC. Ecosystem threats such as climate change and ozone depletion are considered, but seldom preservation itself.

Several consequences might follow if these techniques were applied to DEC's conservation functions. For example, many more resources would be devoted to protecting the Long Island Pine Barrens and the Catskills than the Adirondacks, because the former are the source of drinking water to many more people.

There might also be a ban on hunting, because in 1995 hunting accidents killed seven people in New York State,12considerably more than the number of people thought to die from inactive hazardous waste disposal sites annually.

Based on this logic, one could argue that DEC's enforcement efforts should be directed away from the state Superfund program and toward a ban on hunting, or at least a rule that all hunters wear orange vests, a practice that could save several lives each year. A rigid application of comparative risk analysis would also move us to ban swimming and boating in state waters to reduce drownings.

Of course, no one is advocating any of these things. Partly that is because of how we define the objective of the DEC program. Saving lives is a major reason for pollution control and waste cleanup; it is not the reason for hunting, fishing and boating or for protecting wilderness or endangered species.

Differing Objectives 

But that begs the question of why we define different objectives for different programs and reject the common metric of lives saved.

The urge to protect nature comes from a deep-seated part of the human psyche. Hundreds of generations ago, when human consciousness was forming, our species acquired a very deep feeling for nature -- for woods and water and animals and for hunting and fishing. It seems inappropriate to apply an economist's yardstick to these sentiments and endeavors. But techniques have been developed to attach numbers to how much it is worth to people to preserve nature. Hedonic analysis and contingent valuation analysis, in particular, look at how much people have paid, or say they would pay, to protect nature. These have been used especially in calculating natural resources damages, but they could be applied more broadly.

Using these techniques, preservation of the Adirondacks, for example, would come out with a high value, at least as suggested by public opinion polls. Thus, using a term from classical economics, they have a high utility -- people get a great deal of satisfaction from going there or even knowing they are there.

What happens if one applies these same techniques of natural resource valuation to hazardous waste? Polls show a very high degree of public concern over hazardous waste contamination. So, using the same analysis techniques, one would still rank hazardous waste very high, because people care about it so deeply; and we are right back to where we started from. If we ignore these public sentiments, we ignore an important component of economic analysis -- utility.

Why do people care so deeply about toxics? Kai Erickson of Yale University, in his recent book A New Species of Trouble, suggests a reason with the following example. In World War I, shrapnel proved a good deal more lethal than gas, but it was gas, not shrapnel, that was banned by international law. Professor Erikson commented, "Toxic poisons provoke a special dread because they contaminate, because they are stealthy and deceive the body's alarm systems, and because they can become absorbed into the very tissues of the body and crouch there for years, even generations, before doing their deadly work."13

Some psychologists have also given orthodox Freudian explanations of our revulsion to hazardous waste -- that it is waste and therefore so abhorrent.14 Whatever the reasons, fear of hazardous waste is widespread and out of proportion to what most scientists say is the objective risk.

This is reflected in our popular culture. It is an almost standard plot line that an ordinary person is exposed to toxic or radioactive glop and emerges as a monster or a superhero -- from Spiderman to the Incredible Hulk to the Joker in Batman to the Teenage Mutant Ninja Turtles.

Should all this be dismissed as infantile risk aversion, like a child's fear of a monster in the closet? It is not only the uninformed citizens who are risk averse. Banks do not want to touch even slightly contaminated property, although not many more banks have actually been held liable for the cleanup of such property than have been struck by meteorites.

A View of Evil

This fear of toxic waste and its consequences becomes an especially potent political force when coupled with the view that the people who create toxic, nuclear or biological hazards are evil.15 That too, is reflected in the popular culture. Think of the movies "China Syndrome," "Silkwood," "Outbreak" and "Twelve Monkeys."

If there is anything more worthy of opposition than a hazard that causes cancer in little children, it is one that comes from evil men. That is the public perception. That is why, during the generally anti-environmental Reagan years, the only major environmental legislation to be signed into law were two laws on hazardous waste -- the Hazardous and Solid Waste Amendments Act of 1984, and the Superfund Amendment and Reauthorization Act of 1986 -- and it is why the Contract With America bills on risk assessment, despite their strong support in the current Congress, have gone nowhere. That is also one reason why CERCLA liability has cast such a broad net and is so punitive.


The debate about CRA is in large part a case of opposing philosophies and values. What is the relative importance of process and outcomes? That is, is it more important that many people have been able to participate in making the decision and that it reflects their views and fears, or is it more important that the decisions be made quickly and efficiently, based on sound science? And what outcomes should take precedence -- those to society as a whole, or those to individuals? Many of the shouting matches we see between regulators and citizens are really the clash of these values.

A principal attraction of CRA to its proponents is that it is rational rather than, as they might put it, sentimental. Just how rational is a decision based on today's techniques of risk assessment?

A total of about 50 steps have been counted in the conduct of a risk assessment.16 Each of these 50 steps in risk assessment is full of uncertainty. To pick a typical example, in assessing the risk posed by a particular Superfund site, one must determine what chemicals are present; what hazards each of these chemicals poses; how those chemicals could reach human beings, enter their systems and be absorbed or pass through; how long this exposure would last; and how exposure might be affected by several cleanup options. Each of these questions, in turn, embodies numerous sub-questions.

The issue of what hazards are posed by any given chemical, for example, raises hotly contested matters of the applicability of animal studies (such as feeding massive quantities of a substance to rats) to human exposures, the selection of the animal species and organ for study, the presence or not of a lower threshold of effect, the shape of the dose-response curve, the relevance of a study of one chemical to another similar chemical, the latency period and so on.

When it is all added up, the range of uncertainty is so great that it is like not knowing whether you have enough money to buy a cup of coffee or enough to pay off the national debt.17Risk assessment is still a primitive tool. It is cobbled together, full of heroic assumptions and great hopes, like the Wright Brothers' Kitty Hawk.

The question is sometimes asked, when did medicine start doing more good than harm? When did physicians stop bleeding patients and applying leeches and begin learning basic techniques of hygiene? The question can now be asked -- has risk analysis advanced to the point today where it does more good than harm? Because there are so many hidden assumptions, risk analysis as practiced today can be manipulated to achieve almost any outcome. It transfers decision-making from the layman, including the elected and appointed official, to the expert who, alone, understands the equations.

Moreover, the transaction costs in using risk assessment all the time for every decision would be enormous, because so much information would be needed. It is a prescription for paralysis.

If risk assessment is not very rational, how irrational is our current approach to environmental priorities setting? We have a system that involves politicians and citizens together with scientists and economists. It considers the known objective risk of an environmental threat. It also considers -- not in any formal, quantitative way, but it considers -- whether that threat is voluntary or imposed; whether the threat poses a tiny problem to many people, or a big problem to a few people; whether the threat comes from nature or from what is perceived as evil human agents. In short, it includes the factors that most of us really care about in our daily lives.

Bad as well as good decisions have resulted from the current system, and much needs to be fixed. But there remain many babies in the bathwater, and we should not throw out the whole lot in favor of a computer that will coldly crank out the names of the winning and losing programs.


Risk assessment is a primitive science that deserves nurturing and attention, but not obedience -- like a precocious youngster with intellectual flash but not yet sound judgment. The EPA reports that underlie the comparative risk movement themselves repeatedly emphasize the poor quality of the data used and the degree to which subjective judgment rather than solid science underlie the conclusions.

CRA has powerful insights to offer. But, to the extent that they derive from number-crunching, they should be treated with extreme caution. We certainly should set priorities among environmental programs, but using quantitative risk assessment to do so, given the current state of the art, can be an exercise in algebraic sorcery.

Another serious question is that if we devote less resources to a problem because another problem is bigger, will the savings go to that bigger problem? If not, then CRA does not save any lives at all; it is just an excuse to relax regulation. It becomes a variant of the parent's famous line, "Eat your peas -- there are children starving in China" -- a truthful irrelevance.

At least six other states have undertaken and completed CRA projects -- Washington, Colorado, Pennsylvania, Vermont, Louisiana and Michigan. The processes undergone in each state seem to have led to much more systematic thinking about the nature of environmental problems and the underlying values and better communication among and within various constituencies (government officials, regulated companies, scientists, citizen activists, etc.). However, the degree to which these projects have had a concrete effect on governmental programs in any of these states is quite debatable.18

Our final point is that universal risk analysis could be a threat to DEC. If all state government programs that address health and safety were assessed according to the number of lives they saved, less money would go to DEC and more to programs like patrolling state highways for speeders and drunk drivers; prenatal care; child nutrition; and breast cancer screening. How, then, does one justify the very large expenditures devoted to, or mandated by, DEC? That brings us back to the fundamental question of what is the mission of DEC.

DEC is in the business of preserving our portion of the planet for today's and future generations, and for following the dictates of what past generations have planted in our skulls -- love of nature and concern for environmental dangers, especially hidden ones. If we lose any of that in the rush toward cost/benefit analysis of everything and hanging dollar signs on the human soul, we will have lost something extremely important.


(1) SeeDaniel T. Hornstein, "Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis," 92 Columbia Law Review 562 (1992).

(2) N.Y. Environ. Cons. L. §27-1305.

(3) New York State Department of Environmental Conservation, Division of Hazardous Waste Remediation, Technical and Administrative Guidance Memorandum No. HWR-94-4046, "Determination of Soil Cleanup Objectives and Cleanup Levels," Jan. 24, 1994.

(4) DEC, Air Guide 1 (periodically updated).

(5) 6 NYCRR §664.5.

(6) 6 NYCRR pt. 701.

(7) 42 USC §300h-6.

(8) 6 NYCRR §617.2(i) (1996).

(9) 6 NYCRR §360-1.2(10).

(10) N.Y. Environ. Cons. L. §3-0301(q).

(11) U.S. "A, Unfinished Business: A Comparative Assessment of Environmental Problems" (February 1987). See Stephen L. Kass and Michael B. Gerrard, "Reordering Priorities," New York Law Journal, Jan. 16, 1991, at 3:1.

(12) Dick Nelson, "1995 Was A Safe Year for Hunters -- But Not Safe Enough,"Albany Times-Union, March 6, 1996, at D6.

(13) Kai Erikson,A New Species of Trouble 151 (W.W. Norton 1994).

(14) Richard Walker, "The Return of the Repressed: Freudian Theory, Hazardous Waste Siting, and Public Resistance," in Psychosocial Effects of Hazardous Toxic Waste Disposal on Communities 239 (Dennis L. Peck ed., 1989).

(15) This theme is discussed at length in Michael B. Gerrard, "Whose Backyard, Whose Risk: Fear and Fairness in Toxic and Nuclear Waste Siting" (MIT Press 1994).

(16) Mary L. Lyndon, "Risk Assessment, Risk Communication and Legitimacy," 14Columbia J. Envtl. L. 289, 291 (1989).

(17) C. Richard Cothern et al., "Estimating Risk to Human Health," 20 Envtl. Sci. & Tech. 111, 115 (1986).

(18) Richard A. Minard Jr., "CRA and the States: History, Politics, and Results," in Comparing Environmental Risks: Tools of Setting Government Priorities 23 (J. Clarence Davies, ed., 1996).