Abstract
This paper discusses certain developments in the psychological and decision sciences which have influenced the legal framework for the management of technological risks in the United States.
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References
See discussion in L. Lave, The Strategy of Social Regulation, Washington, D.C. Brookings (1982).
M. Baram, “Technology Assessment and Social Control,” Science v. 180 (1973), p. 465.
See discussion in M. Baram, et al., Alternatives to Regulation: Managing Risks to Health, Safety and the Environment, Lexington, MA.: Lexington Books, D.C. Heath Co. (1982).
Smith v. Dexter Oil Co.; 432 A.2d 438 (Me. 1981).
W. Prosser, Handbook of the Law of Torts. 4th Edition, St. Paul, Minnesota: West Publishing Co., 1971, p. 49.
W. Prosser, Handbook of the Law of Torts. 4th Edition, St. Paul, Minnesota: West Publishing Co., 1971, p. 327.
Lunda v. Matthews. 613 P.2d 63 (Or. App. 1980).
5 U.S.C. Sec. 552(a).
Johnson v. Department of Treasury, _F.2d _ (5th Cir. 1983).
Miles v. Tabor, 387 Mass, 783 (1982).
A. Larson, The Law of Workmen’s Compensation. New York: Matthew Bender, 1981, Section 42. 20.
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B. Lipson, “Legal reform has increased stress-related claims.” Boston Globe, Feb. 6, 1983, p. 18.
B. Rice, “Can Companies Kill?” Psychology Today, June, 1981.
ILO Study of Workplace Stress Sees Links to Physical, Emotional Ailments.” Occupational Safety and Health Reporter, Jan. 6, 1983, p. 621.
U.S.C. Section 4321 et seq.
Lionshead Lake v. Wayne Tp., 89 A.2d 693 (N.J. 1952).
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410 U.S. 179 (1973).
410 U.S. 179 at 192.
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NEPA states in part that federal agencies must “utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man’s environment.” NEPA, section 102(2) (A).
A previous dispute involving psychological factors under NEPA related to the siting of public housing. Although recognition was not granted, the issue was not addressed head on. See Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980).
People Against Nuclear Energy v. U.S. Nuclear Regulatory Commission, 678 F.2d 222 (D.C. Cir. 1982).
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51 LW 4371 at 4373
51 LW 4372 at 4374
For many examples, see C. Case, “Problems in Judicial Review Arising from the Use of Computer Models and Other Quatitative Methodologies in Environmental Decisionmaking,” B.C. Env. Affairs Law Rev., v. 10, n. 2 (1982), p. 251.
See Committee on the Institutional Means for Assessment of Risks to Public Health. Risk Assessment in the Federal Government: Managing the Process. Washington, D.C.: National Academy Press, 1983.
See discussion in Analysis of the Designation of Chemical Substances for Government Regulation, v. I, ICF, Inc., Washington, D.C., Report to EPA (Dec. 1981);
R. Field, “Patterns in the Laws on Health Risks,” Jnl. of Policy Analysis and Management, v. 1 (1982) p. 257.
For example, ATMI v. Donovan, 452 U.S. 490 (1981), wherein the Supreme Court held that OSHA is neither required nor permitted to use cost-benefit analysis as a framework for determining standards governing worker exposure to toxic chemicals. Also see Portland Cement Ass’n v. Ruckleshaus, 486 F.2d 375 (D.C. Cir.) 1973; cert, denied, 417 U.S. 921 (1974), rejecting industry’s argument that EPA should use quantified cost-benefit analysis in setting new source performance standards under Section 111 of the Clean Air Act of 1970. But the court did permit consideration of economic factors as a “modifier” and Congress affirmed this decision by amending the Clean Air Act in 1977. See Section 317 of the Act as amended.
See M. Baram, “Cost-benefit Analysis: An Inadequate Basis for Health, Safety and Environmental Regulatory Decisionmaking,” Ecology Law Quarterly, v. 8 (1980) p. 473.
For some of the more important decisions on these grounds (e.g., Overton Park, etc.), see Findlay and Farber, Environmental Law: Cases and Materials. St. Paul, Minn.: West Publishing Co. (1981); Sections I-D and II-B.
5 U.S.C. Sections 700-706.
H. Leventhal, “Environmental Decisionmaking and the Role of the Courts,” U. Pa. L. Rev., v. 122 (1974) p. 509.
See Notes 26 and 32, supra.
See note 29 supra, and numerous other decisions; e.g. Crowther v. Seabor, 312 F. Supp. 1205 (D. Colo.) 1970; etc. identified in M. Baram, note 30 supra at p. 496.
See Leventhal, note 32 supra.
See, for example, Baltimore Gas and Electric Co. v. NRDC, U.S.S.Ct., 51 U.S.L.W. 4678 (June 7, 1983), upholding NRC’s reliance on a zero-release assumption regarding radioactive waste in its environmental impact analysis. Also see Case article, note 26 supra.
The proposed remedies include increasing the scientific competency of members of the bar and bench, alteration of judicial processes; the use of seriated trials wherein expert assessment of causation precedes allocation of responsibility and liability by the judiciary; special science or environmental courts; increased use of court appointed experts and masters; and science clerks for the judiciary. See note 32, supra.
Jasanoff and Nelkin, “Science, Technology and the Limits of Judicial Competence,” Science, v. 214 (1981) p. 1211
Piehler, Twerski, et al., Science, v. 186 (1974) p. 1089.
5 U.S.C. Section 700-706 (the Administrative Procedure Act). Also see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), an authoritative but vague Supreme Court decision on the nature of judicial reviews; and notes 26. 30, and 32, Supra.
Reagan Executive Order 12291 (superseding similar Carter Executive Order), (1981). This has stimulated new policy and legal controversies, regarding for example, the intention of Congress in enacting legislation which does not call for cost-benefit analysis, and the Constitutional requirement for the separation of power. See discussion in M. Baram, note 7, supra; and various other materials, such as “Office of Management and Budget Control of OSHA Rule-Marking,” Hearings before Subcommittee of the Committee on Government Operations, U.S. H. Rep., 97th Congress, 2d Session, March 11, 18, 19 (1982).
See note 27, supra.
See note 30, supra.
Note 31, supra.
Compare D. Bazelon, “Science and Uncertainty: A Jurist’s View,” Jurimetrics Journal (1982) p. 372; H. Leventhal, note 32 supra; and the U.S. Supreme Court in Baltimore Gas and Electric, note 35, supra.
Note 32, supra.
See Case, note 26, supra at p. 359.
M. Baram, Regulation of Health, Safety, and Environmental Quality and the Use of Cost-Benefit Analysis (Mar. 1, 1979), final report to the Administrative Conference of the United States.
44 Fed. Reg. 38,817-25 (1979) (to be codified in 1 C.F.R. pt. 305): Section 305.79-4 Public disclosure concerning the use of cost-benefit and similar analyses in regulation (recommendation No. 79-4).
R. Silverberg, The Stochastic Man, Harper Science Fiction (undated).
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Baram, M., Field, R.I. (1985). Law, Risk Management, and the Influence of the Psychological and Decision Sciences. In: Covello, V.T., Mumpower, J.L., Stallen, P.J.M., Uppuluri, V.R.R. (eds) Environmental Impact Assessment, Technology Assessment, and Risk Analysis. NATO ASI Series, vol 4. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-70634-9_37
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