Lessons from Federal Pesticide Regulation on the Paradigms and Politics of Environmental Law Reform Donald T. Hornsteint Although reform of federal pesticide regulation is often described as a simple choice between "scientific risk assessments" and "mere politics," such reductionism assumes away perhaps the fundamental challenge facing progressive reformers: how to improve political and market institutions that minimize trade-offs among deeply held public values. Professor Hornstein argues that an improved frameworkfor environmental law reform, a "cause- oriented approach," vastly improves the prospects for developing workable incentive structures that can promote a more sustainable agriulture. More broadly, ProfessorHornstein develops a positive political theory of pesticide regulationcapitalizing on both public choice and public purpose explanations -of collective political behavior, to argue that effective regulatory design must openly acknowledge the full complexities of both the "politics" and "science" of environmental protection. Introduction ......................................... 371 I. The Debate over Environmental Law Reform .............. 373 A. Risk-Oriented Reform: Prospects and Problems .......... 376 B. Cause-OrientedReform: Prospects and Problems ......... 380 C. Policymaking Paradigms and the Case for "Probing" in Environmental Law Reform ........................ 385 tReef Ivey H Professor of Law, University of North Carolina School of Law. I wish to thank the University of North Carolina and the Coates Law Foundation for supporting this project with, respec- tively, a Junior Faculty Development Grant and a research leave and summer research grant. I also wish to thank Professors Fred Gould and Bob Rabb of the North Carolina State University Department of Entomology, as well as numerous officials of the Office of Pesticide Programs at the U.S. Environ- mental Protection Agency, for their willingness to discuss biological and regulatory aspects of pest control. I wish to thank Lissa Broome, Elizabeth Gibson, and Sidney Shapiro for their thoughtful comments on earlier drafts. Susan Braxton provided invaluable research assistance on entomological issues and Matt Andronica, Merridee Gibson, Sheena Jones, Maureen O'Neill, Avi Rocklin, Gary Sertich, and Allison Smith provided equally invaluable legal research. For help in researching issues of economic and policy analysis, I wish to thank especially members of the 1992-1993 Environmental Law Project at the UNC School of Law. As always, I am indebted to Amy Sheck for her willingness to set aside her own work and serve simultaneously as my most insightful critic and chief source of support. Copyright 0 1993 by the Yale Jounal on Regdlatlon The Yale Journal on Regulation Vol. 10: 369, 1993 II. Reframing the Debate over Pesticide Policy ................ 388 A. A Cause-Oriented Perspective on Pesticide Use: Prisoners' Dilemmas and Technology Treadmills ................. 393 B. PastAttempts to Develop A Legal Framework to Reduce Pesticide Use . ......................................... 400 C. Probingfor Effective Cause-Based Reform .............. 405 III. Political Theory and Policy Reform ..................... 406 A. Accounting for the Current Shape of Environmental Law: Pluralism,Public Choice, and Positive Political Theory .... 408 B. Political Theory and Environmental Law Reform: The "Totalitarian" and "Republican Moment" Arguments ...... 412 C. Constructing a Positive Political Theory of Pesticide Regulation .................................... 420 1. A "Republican Moment" Explanation of FIFRA ...... 422 2. A "Game Theoretic" Explanation of FIFRA ........ 428 3. FIFRA and the Politics of Risk Analysis ........... 435 IV. Probing for Cause-Oriented Reform: Making the Most of Science and Politics ...................... .......... 440 Pesticide Regulation Introduction To paraphrase Albert Einstein, environmental problems and solutions should be put as simply as possible-but no simpler. Yet despite such common sense, debates over the reform of environmental law often frame policy disputes too simply. The point is well illustrated by one of the first environmental problems to come before the Clinton Administration and the 103rd Congress: the reform of federal pesticide policy. The policy debate is now framed as a choice between evaluating pesticide residues on processed foods with modem risk assessment techniques or continuing the blanket prohibition of such residues now found in the so-called "Delaney Clause."2 Although described as a referendum on "science" versus "politics, the Delaney debate in fact avoids much of the important science governing pest management, ignores virtually all of the economics of pesticide use, and marginalizes many of the public health and environmental values implicated by agricultural chemicals. To avoid being misunderstood, this criticism does not reflect a conviction that Delaney is necessarily good policy. There is plausible evidence that a blanket prohibition on all detectible carcinogenic residues can be counterproductive. 3 But there is also plausible evidence that risk assessments frequently sit atop both suspect data and contentious methodological assumptions. More to the point, the use of risk assessments to discern "reasonable risk" under the Federal Insecticide Fungicide and Rodenticide Act (FIFRAY has arguably led to one of the most colossal regulatory failures in Washington. Yet despite these well-known criticisms, the Delaney debate continues as if the only policy options for sound pesticide policy-and environmental regulation in general-were the status quo or a new regime dominated by scientific risk assessments. In its persistence and oversimplification, the current debate resembles nothing so much as Winston Churchill's definition of character: the ability to go from failure to failure without a loss of enthusiasm.5 1. I am indebted to Chris Whipple of Clement International Corporation for the attribution of this aphorism to Albert Einstein. Mr. Whipple's helpfulness, however, should not necessarily be considered support for the arguments I advance here. Mr. Whipple is a thoughtful defender of the risk-oriented reforms this Article critiques. 2. See 21 U.S.C. § 348(c) (1988) (prohibiting pesticide residues and other "food additives" on processed foods "found to induce cancer when ingested by man or animal"). See infra text accompanying notes 107, 315-16 (further discussing Delaney Clause). 3. 1 discuss infra at notes 448-50, evidence of the so-called "Delaney paradox" in which application of the Delaney Clause can lead to greater risks than are prevented. 4. 7 U.S.C. §§ 136-136y (Supp. 1991). See infra notes 95-101 (discussing FIFRA's major provisions). 5. Dr. Charles Benbrook recounted this insight of Churchill's in Food Safety Issues: Hearings Before the Subcomm. on Department Operations, Research and Foreign Agriculture, of the House Comm. on Agriculture, 102d Cong., 2d Sess. 78 (1992) (testimony of Dr. Charles Benbrook). The Yale Journal on Regulation Vol. 10: 369, 1993 This Article argues for an alternative framework of environmental law reform, one more aggressive in identifying and addressing the causes of envi- ronmental problems than either existing regulatory programs or reform propos- als that emphasize risk-based priority-setting. This alternative framework would focus especially on the role played by existing economic incentives in causing environmental problems and the role that better-designed incentives can play in solving them. And, although any system of responsible environmental regulation cannot ignore questions of cost or scientific estimates of risk, the alternative framework suggested here would integrate such information into a flexible, solution-oriented regulatory structure that reflects both the dangers of asking more of risk assessments than they can deliver and the importance of honoring nonscientific values that inevitably drive our collective preferences for environmental policy. After distinguishing in Part I reform strategies that focus on the risk-based effects of environmental contamination from those that focus on underlying causes, I apply the distinction in Part II to the current dialogue on pesticide regulation. There, I argue that reformers who urge exclusive attention to the risk-based effects of pesticides offer no real reform at all. Although recent litigation over the Delaney Clause has precipitated political tensions that can, and should, be temporarily defused,6 the opportunity for meaningful reform would be squandered merely by replacing Delaney with a risk-based strategy of "counting" environmental effects such as cancers, birth defects, contaminated aquifers, and fish kills. Indeed, it is precisely this strategy that has spawned two decades of failure under FIFRA. In contrast, a cause-based approach to pesticide regulation would emphasize pest control technologies that can reduce pesticide use without significantly decreasing crop yields or growers' profitability. A cause-based approach would also address existing economic incentive structures that lead growers to forego improved technologies in favor of pesticide use which actually exceeds economically optimal levels. Part III takes up the important question of "politics." The question is important because, as I've argued in an earlier work,7 risk-based decision- making is grounded in expected utility theory, which does not insist on a single rational way for society to make decisions about environmental risks. 6.