Editor's Page
Risk assessment and the law Howard Markey is chief judge of the U.S. Court of Customs & Patent Appeals. He spoke recently at a Washington, D.C., symposium on statistics and the environment. Here, verbatim, is part of what he had to say. I am not at all sure that federal judges, immune from the political process, should ever be involved, under any circumstances, as arbiters of the degree of risk acceptable to the public. That task is much better performed by the people's representatives in Congress, whether directly or through delegation to an agency. The sociological-technological risk/benefit type cases, unless limited to questions of law, give us judges too much power. I speak, of course, only for myself. Other judges may not agree. Indeed, it seems decades since a court has said, "This is a political, nonjusticiable question," and refused to hear the case on that ground. But the cases of which I speak involve broad public policy, future direction of large segments of society, level of acceptable risk, group preferment, type questions, the very thing legislatures were designed to decide. If our republican form of democracy means anything, it means that the people, through their representatives, shall make the basic decisions controlling their lives. The type and extent of the risks acceptable in their lives is perhaps the most basic of all those decisions. The power to make those decisions final should not be even indirectly vested in a few unelected bureaucrats, who have virtual life tenure in their jobs, or in a few unelected judges who have a Constitutional life tenure. The argument that the people and their representatives are incapable of making risk/benefit decisions simply won't wash. In the first place, that argument throws the American dream, the dream that man can govern himself, right out the window. And if we are ready to abandon the dream, the people should do it right out in the open. The dream should not die unnoticed, unannounced, and unmourned. In the second place, if the people can't decide the level of acceptable risk, the solution is to design a decision-making mechanism that will ensure that the trade-off assessment can be and is made by the people through their representatives. So the first and primary reason for letting the what-environmental-risk-is-acceptable cup pass the courts is that to let us decide is to pre-empt the people's right to govern themselves. The second reason is that it can injure the very heartbeat of a free society, the administration of justice. The business of the federal courts is to secure Constitutional rights, to interpret federal statutes, and to set forth the law in clear terms for the guidance of a society attempting to live free, under a government of laws, not men. In a word, the business of the courts is the administration of justice. That business is impeded and may be destroyed when the people rush to the courts for broad public policy decisions like acceptable risks assessments, that is, when both legislative and judicial powers are handed to us robed beings on raised benches. Unlike the beings who inhabited the cloud-draped heights of Olympus, we judges are not gods. If courts assess risks, the administration of justice will be severely if not fatally wounded when the people find out a big secret. Judges can't do the public policy environmental risk assessment job. That job requires legislators responsive to the people and assisted by investigative staffs gathering factual and political input from all sides. It also requires recognition that there may be no answer yet learned by science. When a body of experts had to conclude that the effect of fluorocarbons on the ozone would require years of study; when the NAS panel couldn't agree on whether saccharin posed a high or moderate risk, or even what it meant by "high" and "moderate," how can a judge be asked to decide? The courts are simply not equipped to administer justice and, at the same time, respond to the people's expectations when all the people's eggs—all their hopes and dreams, and all their risks—are placed in the federal judicial basket. D
Views expressed on this page are those of the author only and not necessarily those of ACS
Nov. 24, 1980C&EN
5
