Reason Foundation - Authors > Alexander Volokh

Environmental Information

Tue, 01 Dec 1998 00:00:00 EST

Executive Summary

Environmental-information initiatives, including “right-to-know” laws, currently enjoy widespread popularity. The U.S. Environmental Protection Agency (EPA) has expanded its Toxics Release Inventory (TRI), a database of chemical releases and some chemical uses, and further expansion of the TRI to include “materials accounting” is under consideration. The information generated by right-toknow laws, especially TRI data, has found many different uses. The federal government, and some state governments, use it to track their environmental progress. Journalists write about it; researchers analyze it; environmental groups lobby on the basis of it; and companies and industry groups discuss it in their annual reports. But in terms of securing greater environmental quality and communicating meaningful information about the environment, the TRI process has substantial limitations, as discussed in Part One of this two-part study. Some of the TRI limitations identified in part One of this study include:

A focus on materials-use reduction, often irrespective of demonstrated risk-reduction or environmental quality gain;
Inaccurate characterizations of the health and environmental effects of chemical use, often failing to distinguish between safer and riskier chemicals, and between chemical use that exposes people or communities to potential harm and chemical use that is safely managed;
Overestimation of actual releases through double-counting reported releases, transfers, or waste;
Inconsistent and incomplete coverage of chemicals and facilities;
Creation of an open-ended right of citizens to sue over legal violations that may have no relation to personal harm, risk-reduction. or environmental quality;
The potential to expose trade secrets to competitors, or facilitate industrial sabotage.

This study summarizes the current state of alternative environmental information and environmental management systems, and compares them with traditional environmental information and environmental management measures, such as the Emergency Planning and Community Right-to-Know Act, TRI and Proposition 65. Some of those alternative systems include:

Environmental performance measures, such as those of EPA or the Florida Department of Environmental Protection, which measure environmental variables people find relevant and meaningful.
Environmental-management systems, which make it easier for firms to adopt risk-reduction and sourcereduction goals that fit their own local circumstances. These include private environmental-management codes (Responsible Care, The Coalition for Environmentally Responsible Economies Principles, The Global Environmental Management Initiative, ISO 14000), but they also include nonregulatory state programs that strive to reduce environmental risk or materials use for voluntarily participating companies through technical assistance, pollution-prevention incentives, or flexible compliance. They also include accident-management and accident-prevention programs which can be adopted through private insurance companies, through the action of Local Emergency Planning Committees, or through membership in an industry program such as Chemtrec.
Mechanisms for stakeholder involvement, which increase the ability of relevant stakeholders to become informed about, and provide input regarding, relevant environmental impacts that affect them in their communities. These run the gamut from company communication policies, such as Good Neighbor Policies, to the formation of community groups to deal with well-established environmental procedures like brownfields redevelopment, to the formation of totally new coalitions of stakeholders to address emerging concerns such as watershed restoration.

After reviewing the available alternative environmental information and environmental management systems in development, this study concludes that government, at this point, cannot identify the optimal environmental information or environmental management systems that best address the needs of all the stakeholders. Government should, we conclude, allow and encourage the discovery process to continue, a process in which different reporting and participation mechanisms emerge and compete to provide useful information at reasonable cost. Companies and communities are constantly experimenting with different instruments to determine which ones best serve their needs.

Should government choose not to facilitate this process, they should at least refrain from foreclosing the development of such options by mandating a one-size-fits-all reporting scheme—such as a dramatically expanded TRI—that may offer information that is not always directed at disclosing potential harms to the public or ecosystems.

Race to the Top

Sun, 01 Feb 1998 00:00:00 EST

Preface

A sea-change is taking place in environmental management in the United States today; the states are its leaders.

The old environmental vision, formed in the 1970s and 1980s, was crisis-driven. It distrusted markets and the private sector; punishment rather than cooperation was the method of choice for securing environmental progress. The old vision, which assumed environmental problems and conditions were similar everywhere, called for “onesize- fits-all” regulations mandating acceptable technologies and cleanup methods. Moreover, the prevailing wisdom took it almost as an article of faith that the states lacked the capacity to regulate effectively, would strike cozy deals with bad polluters, and would “race to the bottom” in their attempt to cut environmental standards to attract businesses from other states.

As the largest environmental problems have been addressed, with the remaining problems being smaller, subtler, and varying from place to place, the costs and inadequacies of inflexible, prescriptive, and confrontational policies have become more apparent. Achieving future environmental goals will require innovation, flexibility, cooperation, and decentralization.

Our new environmental vision stresses problem-solving instead of primarily relying on punishment for failure to follow one-size-fits-all approaches. It strives to balance competing values—both environmental values against other values, and some environmental values against other environmental values. It seeks flexibility in compliance methods, so that companies can choose the lowest-cost way of achieving a given level of environmental quality rather than following prescribed approaches. It views the private sector as central to environmental improvement. And it tries to bring decisionmaking authority to the lowest possible level where it makes sense—so that local problems can have local solutions, state problems can have statewide solutions, and federal problems can have federal solutions.

Many states have taken the lead in enacting environmental reforms based on these principles. This report chronicles some of their efforts.

This report builds on NEPI’s report, Building Partnerships for Accountable Devolution (Fall 1996), and on Lynn Scarlett’s report, New Environmentalism (January 1997). Information in the report was drawn from in-person interviews and conversations with representatives from state agencies across the country, and from material provided by the Environmental Council of the States.

Strategies to Keep Schools Safe

info@reason.org (Alexander Volokh) lisa.snell@reason.org (Lisa Snell) — Thu, 01 Jan 1998 13:28:00 EST

Introduction

School violence is a serious problem, especially in public schools. Improving the quality of American education is difficult without also addressing school violence, since regardless of how good the teachers or curriculum are, violence makes it difficult for students to learn.

School violence wears many faces. It includes gang activity, locker thefts, bullying and intimidation, gun use, assault—just about anything that produces a victim. Violence is perpetrated against students, teachers, and staff, and ranges from intentional vendettas to accidental killings of bystanders. Often, discussions of school violence are lumped together with discussions of school discipline generally, as both involve questions of how to maintain order in a school.

We divide school violence-prevention methods into three classes—measures related to school management (that is, related to discipline and punishment), measures related to environmental modification (for instance, video cameras, security guards, and uniforms), and educational and curriculum-based measures (for instance, conflict-resolution and gang-prevention programs). All methods have their advantages and disadvantages.

Our research leads us to the following conclusions:

There is no one-size-fits-all solution. As William Modzeleski of the U.S. Department of Education put it, "There is no one program, no silver bullet, so that you can get one program up and say, Here it is if you put this program in your school, you are going to resolve violence." If all schools were the same, in demographically similar neighborhoods, with similar crime rates in the surrounding community, with similar-quality teachers and similarly committed staffs, and similar budgetary constraints, then we could feel safe advocating a common policy for all schools. But schools are self-evidently not like that. The ideal violence-prevention policy will likely be different for each school.

For most anti-violence interventions, evidence of effectiveness is either sparse or mixed. Many programs have been imperfectly monitored or evaluated, so few data on results exist. Those programs that have been monitored work in some cases and not in other cases.

Yet programs that "don't work" in some overall sense may work at individual schools. Every case study of an anti-violence program that works at some school should be an individual cause for rejoicing, even if we wouldn't want to mandate that same program everywhere. Since programs work in some places and not in others, the only reasonable agenda for fighting school violence is to encourage individual schools to experiment and to find what "works" in their particular circumstances.

As in any field, out of the many hot, new solutions, some are real, and some are unsubstantiated fads. Moreover, since school violence research is sparse and mixed and since there are so many variables that it is even difficult to recognize success or failure-the most reliable way of distinguishing between the real and the faddish is to subject individual schools, in their experimentation, to the discipline of competition. Schools choose their anti-violence programs; parents choose their children's schools.

Many traditional anti-violence remedies, mostly those related to discipline and punishment, have been limited at public schools, either legislatively or judicially (through constitutional interpretation). This is not because these methods should not be used at schools at all if parents choose their children's school, they should be able to delegate authority to schools to use discipline measures, up to and including corporal punishment. But these methods have been limited at public schools because the government must provide safeguards against the abuse of its power in circumstances where education is compulsory and attendance at specific schools is mandatory. These safeguards involve notice and hearing requirements and other procedural roadblocks to punishment—all necessary, given the mandatory and monopoly nature of the service, but all making it difficult for schools to effectively choose a disciplinarian approach. These constraints on public schools may be one reason why private schools have less violence than public schools, and it may be one reason to encourage private schools as educational providers.

This paper concludes with a discussion of what some private schools are doing, including the results of our interviews with principals of several Catholic schools. We further suggest that compulsory education laws may be contributing to violence in public schools.

Our general conclusion is to encourage innovation and experimentation in schools through decentralization and deregulation. Incentives matter, so effectively addressing school violence must include some level of parental choice, and an emphasis on private, voluntary, contractual methods rather than compulsory ones.

School Violence Prevention

info@reason.org (Alexander Volokh) lisa.snell@reason.org (Lisa Snell) — Wed, 01 Oct 1997 00:00:00 EDT

Introduction

Our research leads us to the following conclusions.

There is no one-size-fits-all solution. As William Modzeleski of the U.S. Department of Education put it, “There is no one program, no silver bullet, so that you can get one program up and say, ‘Here it is—if you put this program in your school, you are going to resolve violence.’” If all schools were the same, in demographically similar neighborhoods, with similar crime rates in the surrounding community, with similar-quality teachers and similarly committed staffs, and similar budgetary constraints, then we could feel safe advocating a common policy for all schools. But schools are self-evidently not like that. The ideal violence-prevention policy will likely be different for each school.

Yet programs that “don’t work” in some overall sense may work at individual schools. Every case study of an anti-violence program that works at some school should be an individual cause for rejoicing, even if we wouldn’t want to mandate that same program everywhere. Since programs work in some places and not in others, the only reasonable agenda for fighting school violence is to encourage individual schools to experiment and to find what “works” in their particular circumstances.

As in any field, out of the many hot, new solutions, some are real, and some are unsubstantiated fads. Moreover, since school violence research is sparse and mixed—and since there are so many variables that it is even difficult to recognize success or failure—the most reliable way of distinguishing between the real and the faddish is to subject individual schools, in their experimentation, to the discipline of competition. Schools choose their anti-violence programs; parents choose their children’s schools.

Many traditional anti-violence remedies, mostly those related to discipline and punishment, have been limited at public schools, either legislatively or judicially (through constitutional interpretation). This is not because these methods should not be used at schools at all—if parents choose their children’s school, they should be able to delegate authority to schools to use discipline measures, up to and including corporal punishment. But these methods have been limited at public schools because the government must provide safeguards against the abuse of its power in circumstances where education is compulsory and attendance at specific schools is mandatory. These safeguards involve notice and hearing requirements and other procedural roadblocks to punishment—all necessary, given the mandatory and monopoly nature of the service, but all making it difficult for schools to effectively choose a disciplinarian approach. These constraints on public schools may be one reason why private schools have less violence than public schools, and it may be one reason to encourage private schools as educational providers.

Punitive Damages and Environmental Law

info@reason.org (Alexander Volokh) — Sun, 01 Sep 1996 00:00:00 EDT

Executive Summary

The current debate over punitive damages, both in environmental cases and in general, is misguided. That debate paints a false dichotomy between environmental protection and corporate profits. There is a problem with punitive damages, though contrary to what tort reformers may argue, the problem is not large punitive damages awards per se. The problem is not that punitive damages are assessed in “crisis” proportions—no one knows what “crisis” proportions are. Rather, the problem is that punitive damages are often assessed in inappropriate situations or in unjustifiable amounts.

Formulations like “Punitive damages are too high” or “Punitive damages are too low” suffer from the same problem as statements like “Too many people are convicted of murder.” Such statements, based on aggregate results, lose sight of the purpose of the law, which is to establish a fair process for achieving a fair result in individual lawsuits. In the legal system, a fine that is $100 too high and one that is $100 too low do not cancel each other out. A solution to the punitive damages problem must explain what a “correct result” is and how to achieve it in individual cases. This paper will argue that:

Only recklessness, intent to harm, and intentional violations of the law should carry punitive sanctions; accidents and negligence are adequately deterred with compensatory damages, and punishment for such cases is inappropriate.
Criminal law is a better tool than punitive damages to punish and deter. In criminal law, the burden of proof is higher, the criminal fines go to the state and not to the injured party (though the injured party may also bring a civil suit for compensatory damages), punishments are more predictable, the problem of multiple punishment for the same cause of action does not exist, and decisions to prosecute rest with public authorities vested with the task of punishing criminal conduct.
However, if the civil law continues to be used to impose punitive damages, various reforms merit consideration.
a) Juries themselves aren't the problem; the more fundamental problem is unlimited discretion, whether on the part of juries or judges. Punitive damages reform must involve at least the procedural safeguards mandated by the Supreme Court in the Haslip case: clear jury instructions, post-verdict review by the trial court, and appellate review.
b) In addition, punitive damages should incorporate those features pointed out above as advantages of the criminal law. The burden of proof for awarding punitive damages should be higher; plaintiffs shouldn't keep punitive damages awards; punishments should be more predictable; and multiple awards of punitive damages for a single action should be curtailed.
c) Punitive damages should concentrate on how much defendants benefited from their reckless or malicious conduct. All penalties already incurred by defendants, like regulatory fines or compensatory damages, should be subtracted from this number. Multipliers may be appropriate, in cases where the underlying conduct was hard to detect.
d) The ratio between compensatory and punitive damages should be irrelevant. Relying on this sort of simple formula, or using a ratio as a cap on punitive damages, makes it more difficult to come up with appropriate deterrent fines, and it magnifies any previous errors in the calculation of compensatory damages and regulatory fines.
e) The wealth of the defendant generally should not be a consideration in establishing damages.

Environmental Enforcement

info@reason.org (Alexander Volokh) info@reason.org (Roger J. Marzulla) — Thu, 01 Aug 1996 00:00:00 EDT

Executive Summary

The current enforcement of environmental laws often violates basic principles of fairness, with perverse consequences for everyone.

Businesses suffer from the high costs of attempting to comply with vague and ambiguous environmental regulations to avoid prosecution.
Individuals suffer by being subject to civil and criminal penalties unjustly imposed, and out of proportion to the severity of their violations.
Government suffers by failing to improve the environment, while spending vast sums of money on sometimes useless litigation efforts.
We all suffer by having dirtier water, more polluted air and a less clean environment than we should have for the tremendous sums we spend.

Environmental enforcement encompasses the range of measures which government uses to punish noncompliance with environmental laws or regulations. When faced with a violation of environmental laws, enforcement agencies can often choose from a range of options—from administrative action to civil fines to criminal prosecution.

The question is not whether we need environmental enforcement—of course we do. As in any regulatory regime, the possibility of violations exists; wherever there is an intent to harm people or intentionally violate the law, a mechanism for enforcement (and, sometimes, criminal enforcement) must exist. But how do we judge whether a particular enforcement regime, whether for environmental or other laws, is effective and appropriate? Some of the criteria we should use in answering this question are:

Is it procedurally fair?
Is there some reasonable relationship between the “crime” and the “punishment”?
Does it effectively prioritize enforcement efforts, concentrating the most resources on punishing the worst actors and protecting us from the worst risks?
Do enforcement agencies have appropriate incentives?
Does the regulated community have appropriate incentives?

These issues exist in some degree for all enforcement efforts, and there's little about environmental law that differs inherently from the issues raised by other substantive areas of the law. Yet environmental enforcement has seldom been held up to the same scrutiny as other government enforcement programs.

The problems of environmental enforcement fall into two main categories:

The current environmental enforcement system often fails to improve the environment—because of unclear regulations, and because environmental enforcers inappropriately concentrate on technical compliance with regulations and not on improving environmental quality.
Current environmental enforcement policy often violates fundamental principles of fairness and justice— by using criminal punishments where they're not appropriate, by abandoning traditional concepts of intent and responsibility, and by eroding constitutional protections.

The numbers of cases filed, penalties collected, and years of imprisonment obtained are largely irrelevant to measuring the success of the environmental enforcement program. One would think, from the fact that these figures climb year by year, that American businesses are becoming increasingly lawless and disdainful of environmental protection. Yet the opposite is actually true. Year by year, American businesses improve their environmental record and spend more on environmental protection than in any previous year. What these statistics prove is that the environmental enforcement program is pushing the margins of judicial deference, regulatory interpretation, and strict liability, to achieve essentially meaningless results of greater penalties and more convictions. Environmental enforcement is responding to the first principle of any government bureaucracy: bigger budgets and more employees. New measures of success must be found.

There is no one way to achieve effective and fair environmental enforcement; reality is complicated. The principles to keep in mind, though, are relatively simple. To be effective, an enforcement regime must:

be clear in what it mandates and prohibits;
be predictable in how it punishes violations of the regulations, and rely where possible on cooperative, problem-solving approaches; and,
seek environmental improvement, not numerical enforcement targets.

And to be fair, an enforcement regime must:

reserve criminal penalties for the morally blameworthy, and punish others with civil or administrative penalties;
restore specific criminal intent as a necessary condition of a criminal prosecution, and only punish those who are truly responsible for the criminal acts; and,
respect the Bill of Rights.

Reforms based on these principles would make environmental enforcement more predictable for businesses and more cost-effective for governments. Environmentalists would benefit from these reforms, because a misguided enforcement regime that leads to unjustified punishments is, after all, bad press. The environment need not suffer as a result, and would, in fact, probably improve as the government starts to send a clearer and more consistent deterrent message. Most importantly, these reforms would make environmental enforcement more fair for all concerned.

How Government Building Codes and Construction Standards Discourage Recycling

info@reason.org (Alexander Volokh) — Fri, 01 Mar 1996 00:00:00 EST

Executive Summary

Why doesn't everyone use recycled materials? In many areas, recycling is a relatively new technology, and the companies that use the technology tend to be fairly small. Many people don't know about the full range of products made with recycled material, and education is costly. This is especially the case with plastics. The basic problem is one that is common to many new technologiesthe world as we know it came to be in an earlier time, before current recycling opportunities became commonplace. Where recycling technology is relatively new, it has to overcome many institutionalized barriers to change.

Part of the problem is that potential end-users rely on industry standard-setting organizations, like the American Society for Testing and Materials (ASTM) or the American Association of State Highway and Transportation Officials (AASHTO), which write standards that sometimes shut out recycled materials.

Plastic lumber, a promising construction material, isn't generally being purchasedin part because the ASTM has been slow in drawing up testing standards;
The ASTM and AASHTO haven't advanced standards for drainage pipes made of recycled PVC or HDPE, because of infighting between different industry groups.

The problem isn't that such organizations exist; these organizations serve a useful purpose in developing standards and performance tests. Rather, the problem is that when governments rely on them, the standards often become mandatory, not voluntary. Another part of the problem is that governments themselves sometimes enforce restrictive regulations that shut out recycled materials:

Building codes, which are generally enforced on the local level, are very conservative and make it difficult for innovative building materials to be used in construction;
Highway construction standards are wedded to specific materials, methods, and industrial processessometimes mandating materials (as with a recent recycled rubber mandate) and sometimes prohibiting them. This makes innovation difficult in highway technology, even when such innovation would improve the performance of roadways.

Yet another part of the problem is that government procurement agencies can inadvertently or subtly discriminate against recycled materials, through such methods as:

The arcane rules of government bidding processes;
The somewhat arbitrary distinction between pre-consumer and post-consumer recycled materials;
Color and thickness requirements, and other conditions that are unrelated to performance;
Materials requirements, for instance in the purchasing of carpets or composts.

One theme runs through this array of government practices. Governments often don't rely on measures of performance. In the past, specifying materials or methods may have been the best proxy for performance one could find; when performance is difficult to measure, "doing it the way we've always done it" may have had some justification. Whatever the explanation, it's time for governments to move toward performance standards and away from specifying particular materials.

The question "Why doesn't everyone use recycled materials" is, in a sense, as ridiculous a question as "Why doesn't everyone make things out of steel" The physics and chemistry of recycling are complicated; there are lots of different processes which have lots of different effects, and it would be dangerous to draw blanket conclusions like "We should always use recycled materials" or "We should never use recycled materials." The honest answer is to admit that optimal levels of recycled material usage will vary by situation. Unless we adopt performance standards wherever possible, we can never know what those levels are, much less reach them. Many promising products are being discriminated against today because a performance standard isn't in place.

Governments shouldn't always rely on industry standards. In areas like plastic lumber or drainage pipe, when the ASTM or AASHTO don't have standards for a possibly good product, it may make sense for governments to draw up their own performance standards, allowing companies to submit performance data from approved testing labs.
Local building code offices, highway departments, and such agencies should establish clearer and more predictable approval procedures that are more open to innovative technologies. They should rely less on materials and methods specifications, and use performance standards whenever possible.
Government procurement agencies should scrutinize their procurement specifications to see whether they're using irrational or non-performance-related criteria to buy the products they need. President Clinton's 1993 Executive Order on recycled procurement has reformed and will continue to reform government procurement, though it treats recycling too much as an end in itself. More should be done to require performance standards whenever possible instead of dictating what a product must be made of.

Recycling Hazardous Waste

info@reason.org (Alexander Volokh) — Sun, 01 Oct 1995 00:00:00 EDT

Executive Summary

Each year, about 100,000 to 1 million tons of hazardous waste are recycled in the United States. Another 13 million tons are dumped into hazardous waste landfills. The amount recycled is only about 0.8 percent to 7.7 percent of the amount dumped.

The two main federal laws regulating hazardous waste—the Resource Conservation and Recovery Act (RCRA) and Superfund—may be reauthorized in the 104th Congress. This makes hazardous waste a hot topic in the environmental world. Recycling is also high on many people's environmental checklists. But the two issues—hazardous waste and recycling—are rarely thought of together.

Still less frequently is hazardous waste recycling thought of favorably. Hazardous waste recycling's bad reputation stems from a number of environmental misconceptions. When thinking about hazardous waste recycling, one must keep in mind that:

Calling something hazardous doesn't make it so.
Calling something a waste doesn't make it bad.
A hazardous ingredient needn't produce an unsafe product.

We don't want too much recycling of hazardous waste—not if it wastes more resources than it saves. But we don't want to artificially discourage it either by needlessly making recycling more expensive than landfilling. Yet the federal government is doing exactly that—even while it's trying to encourage recycling in general, it's discouraging the recycling of hazardous waste.

Hazardous waste law is confusing. The terms “solid waste” and “hazardous waste” are difficult to understand. This is a big problem when a regulatory scheme hinges on the definitions, and it has led to uncertainty and litigation.
The EPA's risk assessment is unnecessarily conservative. The impact of improper disposal is small compared to other risks that the public willingly accepts. The risks posed by hazardous waste are also lower than most of the risks currently addressed by environmental regulation.
RCRA's requirements are expensive. The total cost of complying with RCRA is estimated at over $40 billion.
Recycling is treated differently than the manufacture of the same products out of virgin materials. RCRA often considers that substances intended for recycling are in fact “discarded.” Many perfectly acceptable and reusable (and regulated) raw materials become RCRA hazardous wastes the moment they are “discarded,” whatever that means, which virtually guarantees that few people will recycle them.

In short, hazardous waste law is expensive, irrational, and confusing. The only way to get around these requirements for certain products is by case-by-case exemptions. Lead acid batteries are exempted from hazardous waste law until they reach the recycler, so battery recycling is high despite the industry's costly regulation. RCRA regulation has discouraged the recycling of spent aluminum potliner, which is only now slowly starting up again. And state hazardous waste provisions in California and some New England states have discouraged the recycling of used motor oil.

Other aspects of hazardous waste law also do their part to discourage recycling. The Toxics Release Inventory (TRI), for instance, requires that companies report how much of certain “toxic chemicals” they use. There have been proposals to expand the list of industries subject to the TRI to include scrap metal recyclers and waste management facilities. This sounds like a good idea, but in fact it would discourage the recycling of copper, zinc, and other metals. These metals are hazardous in certain forms (for instance, when they're dissolved and discharged into water), but not when they're recycled; making scrap metal recyclers subject to the TRI would give people the impression that scrap recyclers are heavy polluters because of the amounts of metals they accept. Also, waste management facilities only receive wastes from elsewhere, and making them subject to the TRI would impose costly bookkeeping burdens on them without adding to health or safety.

And then there's Superfund, which provides for the cleanup of hazardous sites. If a hazardous substance is found at a Superfund site, whoever arranged for the treatment or disposal of the substance at that site can potentially be made to pay for the cleanup of the entire site. The problem here is that selling metal to a scrap metal recycler can be considered “arranging for disposal” if that recycler eventually goes bankrupt and his property becomes a Superfund site—and so everyone who ever sold anything to the scrap metal recycler can be stuck with huge cleanup costs for “contamination” they weren't even responsible for. This discourages the recycling of scrap metal and other products, like nickel-cadmium batteries, containing substances that are considered hazardous.

Superfund should be amended so that recycling isn't considered “treatment or disposal.” RCRA should be overhauled so that it is based solely on realistic risks of actual harms. Whether or not something is a waste is irrelevant to the risk it poses. At the very least, RCRA should be amended to exclude recyclable materials.

The FDA vs. Recycling

info@reason.org (Alexander Volokh) — Sun, 01 Oct 1995 00:00:00 EDT

Executive Summary

Since 1958, the Food and Drug Administration (FDA) has regulated the components of food packaging as “indirect food additives.” The FDA doesn't have any special regulations for food packaging made with recycled materials. This means that any recycled material can be used as long as it's “suitably pure.”

But no one knows how pure “suitably pure” is. This is a problem for packagers who use recycled material. Recycled paper and plastic come from many different, unknown sources, and are more likely to contain “contaminants” than virgin materials. This doesn't mean they're necessarily unsafe, but it does mean they're less “pure.” So a standard that's too strict discriminates against recycled packaging.

To clarify things, the FDA issues informal “non-objection letters” to let packagers know that particular recycled content applications are O.K. Non-objection letters aren't required by law, but many packagers who use recycled material consider them a must. In July 1995, the FDA finalized its “threshold of regulation policy,” announcing that it would exempt some substances from regulation as food additives. To qualify, the substance musn't be carcinogenic, and should have an expected dietary concentration of less than 0.5 parts per billion. This policy is now being applied to non-objection letter requests. It has simplified the process, but because of the FDA's backlog, the process is still lengthy and expensive. Getting a non-objection letter can take half a year and cost hundreds of thousands of dollars.

The FDA continues to be too restrictive in its food packaging regulations, and discourages new packaging applications, especially recycled-content packaging. Every non-objection letter request now requires an environmental assessment, which will add an extra few months of delay. Also, the FDA uses conservative risk assessment methods. It assumes the worst for any chemical, regardless of whether any migration of contaminants between the packaging and the food has been detected. When many studies have been done on a chemical, FDA uses the most pessimistic one, and extrapolates the results to humans in the most conservative ways. The new policy may actually tighten FDA standards. And the FDA gives itself blanket permission to sidestep its rules.

The FDA should:

adopt reasonable risk assessment methods;
act less arbitrarily by encouraging procedural certainty; and
cut down on the delays in issuing non-objection letters by adopting a pre-market notification system and/or by farming out its approval system to approved, independent, competing labs.

We don't want to force food into recycled packages—that might not be safe. But we shouldn't discourage safe and profitable recycling. No one knows what “proper levels” are for recycled plastics in food packaging, but we do know that the more of a drag the FDA is, the longer it'll take recycled material use to grow to desired levels, whatever they are. Add to that the burden of misguided state regulations—like California's Proposition 65, which was designed to protect public health but which has unintended perverse effects—and it's small wonder that recycled materials aren't being used much in food packaging. Prop. 65 was adopted in 1986 by voter initiative and was intended to improve health by informing consumers of products with carcinogens and reproductive toxins. But it has unintended effects. Because Prop. 65 also uses conservative risk assessment, violations of Prop. 65 don't necessarily correspond to actual risks. This means manufacturers spend a lot of money testing their products for tiny quantities of chemicals, and then spend a lot of money reformulating their products to not contain these chemicals— but we don't get any safer.

Again, such a state of affairs threatens recycled materials, which are more likely to have low levels of “bad” chemicals. At first, FDA-approved products were exempt from Prop. 65, but this “safe harbor” for food and drugs was rescinded in 1994. Now, packagers can find that while the FDA says their products are safe, the state of California doesn't. Because recycled paperboard, for instance, tends to have more contaminants than virgin paperboard, Prop. 65 may impede the use of recycled paperboard packaging.

Protecting health is important, but health isn't served by exaggerating risk and arbitrarily enforcing regulations. There are many forms of recycling that make economic sense and don't require a government mandate. But they are being discouraged by superfluous health regulations that don't protect people's health. If food additive regulations are properly eased, both the food packaging industry and the environment will benefit.

“I hate a man who swallows [his food], affecting not to know what he is eating. I suspect his taste in other matters.”

—Charles Lamb, “Grace before Meat,” Essays of Elia

“Why it's the Uneeda Biscuit made the trouble. Uneeda, Uneeda, put the crackers in the package, in the package, The Uneeda Biscuit in an airtight, sanitary package, Made the cracker barrel obsolete, obsolete.” “Obsolete, obsolete, obsolete.”

—Meredith Willson, “Rock Island,” The Music Man