Toxic Spring: The Capriciousness of Cost-Benefit Analysis Under FIFRA’s Pesticide Registration Process and Its Effect on Farmworkers
Toxic Spring: The Capriciousness of Cost-Benefit Analysis Under FIFRA’s Pesticide Registration Process and Its Effect on Farmworkers,
103 Cal. L. Rev. 1405
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol103/iss5/6
Under the Federal Insecticide, Fungicide, and Rodenticide Act, the Environmental Protection Agency (EPA) must conduct a cost-benefit analysis to ascertain whether a pesticide may be sold on the market. This analysis weighs the benefits of using the pesticide against the costs imposed by the pesticide’s negative effects, such as health consequences for farmworkers, wild life, consumers, or the environment more generally. Critically, under this analysis, the EPA may not remove pesticides shown to pose “unreasonable adverse risks” to affected parties from the market if the counterbalancing costs of removing those pesticides are too burdensome to industry.
As illustrated by the recent litigation over the pesticide Azinphos-methyl, or AZM, this approach poses serious health risks for those most directly impacted by pesticide regulation: not the consumers whose most substantial encounter with pesticides involves scrubbing pesticidal residues from their store-bought apples under the faucet, but the farmworkers who apply the chemicals in the fields daily and live in pesticide-saturated environments with their children. In the case of AZM, the EPA determined that individuals exposed to the pesticide were at greater risk of suffering neurotoxic harm and that children in particular endured developmental disabilities at greater frequencies. Yet, because immediately prohibiting the usage of AZM would have subtracted what the EPA estimated to be millions of dollars from the agricultural industry’s bottom line, the EPA concluded that immediate cancellation of the pesticide was not justified and that AZM was to be phased out over a period of six years. This outcome condoned continued farmworker exposure to a chemical with known toxic effects at levels that would not have been tolerated in other regulatory environments.
This Comment argues that the reliability of cost-benefit analysis employed by the EPA, far from being a clear-cut exercise in the weighing of discrete items against one another, too easily erodes in the face of political imperatives, uncertain or unquantifiable public health benefits, and the limits of empiricism and the generation of scientific knowledge itself. The Comment begins by surveying the literature on the health risks of pesticide exposure and explaining the particular vulnerabilities of farmworker communities to under-regulation and pesticide-related health problems. Then, it explores the rationale that underlaid the EPA’s decision in the AZM controversy and argues that the decision likely overestimated the benefits of continued pesticide usage to growers and underestimated harms to workers. The Comment concludes by endorsing a more stringent regulatory model, one that uses cost-benefit analysis only in limited circumstances. Such a standard is consistent with the precautionary principle of regulation, which advocates taking action against threatened harm to individuals and ecosystems even in the absence of full scientific certainty. In particular, this Comment argues for a system of regulation that more closely approximates California’s regulatory scheme, which considers benefits in the registration process only in limited circumstances. It also argues that the EPA should adopt a number of novel regulatory strategies implemented by the European system of pesticide regulation: Registration, Evaluation, Authorization and Restriction of Chemical Substances (REACH)—in short, a system that, inter alia, incentivizes the substitution of alternatives for suspect chemicals and requires informational disclosures as a way to activate market pressures on companies.
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