Public policy toward pesticides is another example, reflecting the pervasive view that carcinogenic chemicals produced by man are far worse than those produced by nature, even though scientific evidence indicates otherwise.5

• When scientists discovered that large doses of ethylene dibromide (EDB) caused cancer in rodents, the government banned the chemical from use as a fumigant to keep insects and molds off stored grains.

• Yet the average amount of EDB ingested by people with normal diets was 1000 times less risky than the natural carcinogens in two slices of bread.

• Moreover, EDB is the safest known way to combat molds, which produce some of the most potent carcinogens in all of nature.6

These are not isolated examples, but are part of a general trend toward policies which seek to eliminate specific risks while ignoring other, related risks. These policies too often increase rather than reduce the overall risks we face. Moreover, there are many new policies on the drawing board.

• Although it poses a trivial threat to humans, PCE (the main dry-cleaning solvent used in the U.S.) is under attack because large doses cause cancer in rodents. Yet the alternatives are the flammable solvents which caused numerous fires in early dry-cleaning shops, or the more toxic and hazardous solvent, carbon tetrachloride.7

• Polystyrene (used, for example, in McDonald's hamburger boxes) is under attack by environmentalists because it is not biodegradable. Yet polystyrene has been praised by the American Public Health Association because it is far safer than any known food packaging alternative.8

• Almost all man-made pesticides are under attack. Yet these synthetic pesticides replaced far more toxic natural insecticides such as lead arsenate, sulphur, lime, cyanide and flourine.

Paul Slovic, a psychologist at the University of Oregon, specializes in studying public perception of risk. According to Slovic,

Americans today feel they are more at risk from technology than ever before. And yet, in terms of health, life expectancy, even accidents, things have improved greatly. Ironically, the more the nation spends on regulation, no matter how many billions on regulations and environmental controls, the less safe the American public seems to feel. It's a strange paradox.9

Slovic and other social scientists tell us that public outrage,10 as opposed to calm consideration of objective risks, is easily generated when the risks are: 1) involuntary and beyond the control of the individual, 2) unfamiliar or exotic, yet frequently reported, 3) dramatic and focused in time, and 4) perceived to be unfair, in that they are imposed without the individual's approval, for the benefit of someone else.

When presented in dramatic form with skilled, passionate rhetoric, risks from hazardous wastes, chemical pesticides, and other environmental dangers can certainly generate outrage. Once the outrage is created, the objective facts -- the actual dangers under alternative policies -- become much less important. Extreme measures to protect the public from a single danger in focus at the moment seem justified.

In what follows we consider how misperceptions of risk on the part of the general public and policymakers have led to three policy mistakes: the ban on DDT, the creation of Superfund, and California's Proposition 65.

Following the publication of Rachel Carson's highly influential Silent Spring in 1962, an environmentalist campaign was mounted that eventually led to a total ban on DDT in 1972. From a health perspective, DDT had much to commend it. Introduced in 1942, it quickly became the most extensively used pesticide in the world. The chemical deserves credit for stopping a typhus epidemic in Europe during World War II, for helping to control malaria all over the world, and for making a major contribution toward solving the world's hunger problem by increasing agricultural production.

No one doubts that DDT was misused, and that its misuse caused environmental harm, including harm to bald eagles and the peregrine falcon. However, there has never been any convincing evidence that DDT is harmful to man.

• Three years after the DDT ban, an EPA report prepared for the U.S. House of Representatives Appropriations Committee concluded that there were no adequate studies documenting DDT as a carcinogen in man.11

• The most recent and comprehensive study on the subject, a decade-long project covering almost 1,000 people found no statistically significant link between DDT and cancer.12

The ban on DDT has come at an expensive cost in terms of health and safety. Although the fact has received little public attention, DDT has been replaced by more toxic substitutes. For example, in 1985 the number of accidental poisoning incidents involving pesticides was 14 percent higher than it was in 1973 when DDT was in use.13 In less wealthy Sri Lanka, the situation was worse. More expensive pesticides were not utilized very much after the ban of DDT there, and malaria rebounded from its low DDT-controlled level of 110 cases in 1961 to 2.5 million cases in 1968-69.14 As Dr. Philip Handler, President of the National Academy of Sciences, explained,

"The second generation of pesticides is a darn sight more dangerous than DDT, but because of public outcry the government has needlessly banned DDT for most uses .... The predicted death or blinding by parathion, of dozens of Americans last summer must rest on the consciences of every car owner whose bumper sticker urged a total ban on DDT."15

Since applications of the substitute pesticides must be more frequent (unlike DDT, the substitutes are not persistent), and since the pesticides that replaced DDT are much more harmful to people, we can be fairly confident that banning DDT on balance made the world less safe. Silent Spring was a moving and influential book. But overreaction to it by policymakers has been very dangerous to humans. A great many people have died because of the resulting policies.

Superfund was created by Congress in 1980 in reaction to the Love Canal crisis, an election-year nightmare for New York Governor Hugh Carey, who asked for help from the federal government.16 The crisis occurred after the Niagara Falls school board purchased a toxic waste site, which was lined with clay, filled, and capped with clay by the Hooker Chemical Company. The company demonstrated to the school board that the site was potentially dangerous. Under threat of eminent domain, however, it relented and accepted a one dollar purchase price for the property -- but only after writing into the documents of transfer the nature of the dangers, and including a disclaimer of liability for future damages, once ownership of the site was transferred.17

Despite the warnings from Hooker, the school board built a school on the site, later selling the remaining land to a developer. Even before the land was developed, the city built water and sewer service lines through the clay walls installed by Hooker to contain the wastes. These gaps in the walls provided pathways for the chemicals to escape, and the chemicals were later found in the soil and even the basements of area residents. Understandably, fear and anger stirred some of the residents to outrage and to political action. After all, their property and homes had been wrongfully invaded by noxious chemicals. In an election year they had little trouble generating a good deal of action, though few would be satisfied with the ultimate results.

The Environmental Protection Agency (EPA) was called in to investigate. In a very quick statistical study,18 later discredited, EPA announced that it had found evidence of long-term health problems -- an increase in chromosome aberrations in a sample of residents. Federal funds were quickly made available to purchase the homes in the area. These homes were boarded up and the affected neighborhoods were effectively destroyed. Later, additional federal money purchased more homes. To date, however, detailed studies have turned up no clear evidence of cancers or other long-term health threats present in the neighborhoods. And, two decades later, in September 1988, about two-thirds of the area was declared habitable by the New York State Department of Health. Clearly, there were unacceptable chemical leaks and the potential for chemical risks. However, the case can be made that most of the damage to the residents of Love Canal was caused by politics and public policy.19

In establishing Superfund, the Carter administration faced an extremely difficult political problem in an election year. The holy war rhetoric of some environmental activists had fanned the flames of public outrage over "environmental atrocities" perpetrated by "greedy and uncaring corporations." It is true that a great deal of waste and pollution are generated each year, and that much of it can be dangerous if not properly handled. But the actual dangers often are greatly exaggerated, and misguided policies often are adopted in an emotionally charged atmosphere.

For example, soon after Superfund was established, the program quickly turned into a political football, benefitting politicians and lawyers far more than the general public.20

• Every state was entitled to at least one hazardous waste site worthy of federal cleanup, enabling every Senator to claim credit for at least one cleanup effort.

• The Environmental Protection Agency (EPA) was instructed to find at least 400 waste sites, roughly matching the number of Congressional districts.

• After seven years, Superfund has paid for cleanup efforts at only about a dozen hazardous waste sites, and most of these sites are still leaking toxic waste into the groundwater.

• Of more than one billion dollars Superfund has already spent, about three quarters of the money has gone toward litigation and endless studies.

Has Superfund made us safer? That's not clear. Superfund's primary method of cleanup is to transfer hazardous waste from a waste site to a disposal site at which the waste is stored for a period of time. Often, this system has simply spread the waste problem. For example, the Government Accounting Office determined that most disposal sites which have received waste from Superfund sites are leaking themselves.21

Nor is it clear how anyone could find out if Superfund has made us safer. Except for Love Canal, identified before the creation of Superfund, not a single Superfund site has been analyzed to determine the health risks for area residents. In fact, there is only one site for which the government has a complete list of people exposed to the hazardous wastes.

Perhaps the worst damage done by Superfund is that it has discouraged private sector solutions to the problem of hazardous waste disposal, especially voluntary cleanup efforts. Prior to Superfund and other environmental legislation, firms sufficiently solvent to be accountable for their torts generally did a responsible and competent job. In the case of Love Canal, for example, the protection built in by Hooker (presumably to avoid liability from potential damages from leaks) was judged decades later to be sufficient to meet even the tough EPA standards of the 1980s.22 Hooker's clay walls and cap protected the surrounding area until the school board (whose members were not liable for damages) took over the land.

Today, however, things are very different. Any voluntary cleanup will be seen by the EPA as a confession of guilt. Moreover, before private parties can clean up a site, they must negotiate settlement terms with the EPA -- a form of judicial consent decree under which a private company must agree to accept EPA's administrative mandates. EPA also withholds information and subjects private companies to lengthy delays. As a result, EPA has discouraged and almost prevented private companies from cleaning up hazardous waste.23

The legislative launching pad for state-required warnings on chemical risk was Proposition 65, formally called the Safe Drinking Water and Toxic Enforcement Act of 1986, in California. Proposition 65 was passed by a voter Initiative, receiving 63 percent of the vote. Drafted by the Environmental Defense Fund and the Sierra Club, introduced by Tom Hayden, and backed by his wife Jane Fonda and other Hollywood celebrities, Proposition 65 is the most sweeping chemical regulatory law ever enacted by a state government.

Among other provisions, Proposition 65 bans the discharge into drinking water of chemicals "known" to cause cancer or reproductive harm, and requires warnings for individuals who are exposed to these chemicals.24 The list of chemicals to which the law applies immediately became a political battleground.25 As of July 1, 1988, 216 substances were officially listed as carcinogens and 15 substances were listed as reproductive toxins. That list could grow considerably, however. California officials are considering chemical substances ranging from cocaine to aspirin, and ultimately Californians may discover that it is virtually impossible to enter a retail store or place of work without seeing warning labels everywhere.26

Where California treads, other states often follow. Proposition 65-type bills have been considered in Hawaii, Tennessee, Missouri, Massachusetts, Illinois, New York and Louisiana; and an effort is underway to put a Proposition 65 Initiative on the ballot in Massachusetts in 1990. Before citizens of other states follow California's lead, however, they may wish to consider the following.

Legislating Distrust of Politicians and the Regulatory Process. The very language of Proposition 65 suggests that the authors of the Initiative distrusted politicians and the regulatory process and fully anticipated that public officials would attempt to frustrate the intent of the act. Public employees are required to notify the news media when they discover violations, and are subject to criminal penalties if they do not disclose the violations they discover. The law does not merely open the door to numerous lawsuits, it encourages them through bounty hunter provisions that allow private citizens to collect 25 percent of the fines imposed if they initiate successful suits against violators of the act.

Imposing Penalties for Hypothetical Harm and Undefined Risks. To be guilty of violating Proposition 65, you do not have to actually harm anyone, or even put them at risk. Instead, the standards for violations are entirely hypothetical. In the case of carcinogens, a violation has occurred if you expose someone to a chemical and that person would have been at significant risk if the exposure level had been maintained over the whole of the person's lifetime. In the case of reproductive toxins, a violation has occurred if the chemical would have produced an observable effect if the person were exposed at a level 1,000 times the level at which the person was actually exposed. Even if we can determine what would have happened, what constitutes a significant risk? This term and many related key terms in Proposition 65 are left undefined.

Politicizing Science. A chemical is required to be covered by the provisions of Proposition 65 provided that the following is true:

A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state's qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity ...27

Yet Proposition 65 asks scientists to do precisely what they cannot do. In the first place, the term "significant risk" is not a scientific term. There is nothing in science, for example, that says that a one-in-one-million risk of cancer is not significant while a two-in-one-million risk of cancer is.

In the second place, the very nature of scientific progress entails challenging previous studies and "generally accepted" beliefs. Dr. Alvan R. Feinstein, Professor and Director of Clinical Epidemiology at Yale University, has discovered studies that directly contradict each other in 56 cases where a specific menace has been alleged to cause a disease.28 To those familiar with the methods of science, this discovery will come as no surprise. Yet the implications for Proposition 65 are devastating.

We may soon see the day when each new scientific study is immediately introduced into the political fray developing over the regulation of chemicals. A new study, challenging previous research, performed anywhere in the world, will have the potential to help establish the innocence of the formerly guilty or the guilt of the formerly innocent in the California courts.

See TABLE I

This has already happened in the housing industry, where many builders have posted warnings on all new houses -- just to play it safe.30Recently, however, a California district attorney sued a group of housing developers under other provisions of California law -- claiming that the developers posted warnings without really knowing whether the chemicals in their houses posed a "significant risk" and claiming that the posting of warnings as a precaution against a possible violation of Proposition 65 was itself unlawful because these acts dilute the value of such warnings. This damned-if-you-do-damned-if-you-don't legal quagmire is making its way through the California courts.31

If everything is labeled, especially if all labels contain the same warning, then warning labels lose their value. A warning label will affect behavior only if consumers can distinguish the few, especially dangerous risks from the thousands of minor risks they take every day. Putting a warning label on every product robs the warning label on the truly dangerous product of any meaning. California law also has the potential to misdirect attention and focus in dangerous ways -- away from noncarcinogenic risks and dangers that we should be concerned about and toward trivial cancer risks that are no greater than what we experience when we travel on an airplane.32

The worst feature of the California law, however, is the wording of the required warnings. The statement:

This product contains a chemical known to the state of California to cause cancer..

is very different from the statement:

There is one chance in 100,000 that a lifetime of consumption of this product will cause cancer.

The first statement is the warning Californians see. The second is the standard California currently uses to decide whether a warning is required. The first statement implies certain danger. The second implies a very low-probability risk, based on hypothetical consumption patterns.

California warnings, then, do not convey useful information to consumers. Rather, they mislead and misdirect. In theory, this defect could be corrected by constructing accurate warnings about the risks involved. But Professor Kip Viscusi argues that people cannot distinguish among low-probability risks. In consumer experiments, a risk of one in two million often is treated as being equivalent to a risk of one in ten thousand because consumers are not skilled or experienced in evaluating low probabilities.33

If the goal is to convey useful information, a better warning would be one which relates the risk involved to risks associated with everyday activities. But this type of warning would merely underscore the silliness of Proposition 65. In most cases, the risk of consuming a product is lower than the risk of driving to the store to buy it.

Making California Less Safe: The Potential Ban on Chemicals that Promote Health and Safety. One of the strangest features of California's Proposition 65 is that it seeks to rule out risks of cancer and reproductive toxins while ignoring all other risks to human health and safety. For example,

• Chlorine, used in the production of milk, leads to the production of chloroform -- one of the chemicals listed in California as carcinogenic.

• Yet chlorine is necessary in order to prevent a much more serious danger -- the risk to children of death by food poisoning from nonchlorinated milk.

• The spirit of the California law, however, would appear to require a warning label on chlorinated milk, but no warning label for much more dangerous nonchlorinated milk.

Similarly, trace amounts of carcinogens are found in almost all food and food packaging materials. Yet the packaging materials are chosen precisely because they eliminate more dangerous, noncarcinogenic risks. If all food and food packaging material carried warning labels, little would be accomplished other than an increase in public anxiety.34

To the most radical supporters of Proposition 65, incidentally, posted warnings are only an intermediate step. The long-run goal is to ban carcinogenic substances altogether. For example, at a workshop sponsored by the Environmental Defense Fund, the Sierra Club, and the Natural Resources Defense Council, Tom Hayden said that he hoped California would "lead other states down the path that will ultimately lead to legislation that will eliminate all carcinogens and toxic substances that the American people are subjected to."35