# Environmental, Health, and Safety Tradeoffs: A Discussion of Policymaking Opportunities and Constraints

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3ARL30043

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** February 10, 2011
- **Citation:** RL30043

## Text

Environmental, Health, and Safety Tradeoffs:
A Discussion of Policymaking Opportunities
and Constraints
name redacted
Coordinator of Division Research and Specialist in Resources, Science and
Industry
name redacted
Section Research Manager
February 10, 2011

Congressional Research Service
7-....
www.crs.gov
RL30043

CRS Report for Congress
Prepared for Members and Committees of Congress

Environmental, Health, and Safety Tradeoffs

Summary
A policymaker making a decision on approving a program may face the questions, What are the
tradeoffs? What alternatives are foregone by committing resources to that program? This issue
has been sharpened in environmental, health, and safety policy because studies indicate that some
programs are more cost-effective than others, suggesting that redirecting resources from less
efficient to more effective programs would increase overall national economic welfare.
Actually making implied tradeoffs has proved difficult, however. One reason is continuing
controversy over methods for evaluating the risks, costs, and benefits of alternative programs—
leaving uncertainty about exactly what would be gained and lost in a tradeoff. Other constraints
affecting tradeoffs include variations in regulatory standards among environmental, health, and
safety statutes and political responses to nonquantifiable values such as equity. Legislative efforts
to revise the statutes or to establish more comprehensive reviews of tradeoffs have moved slowly.
Two further factors constrain the ability to make a tradeoff at a particular time and in a particular
institutional context. One consists of institutional structures and procedures that impose limits on
possible ranges of decisions within the legislative and executive branches. For example, an
appropriations subcommittee typically weighs spending tradeoffs only among programs within its
jurisdiction, but not tradeoffs with programs in the jurisdiction of other subcommittees even if the
programs are related. Similarly, statutes authorizing environmental, health, and safety regulations
may be written by separate committees, leading to variations in cost-effectiveness standards for
protecting the public health and environment.
A second complicating factor occurs when a program’s alternative(s) would require a shift in who
can decide on the use of the resources involved, as when a regulatory program is considered in
lieu of a tax-supported program. Deciding to regulate industrial air pollutants mandates spending
by industry and consumers; choosing not to regulate leaves those monies available to the
industry’s executives and consumers, who can invest/spend them according to their own
preferences. Having little control over alternative expenditures, a decisionmaker tends to focus on
each program as self-contained, not to compare options.
The actual tradeoff faced by a legislator or policymaker at a particular time and place is
constrained by institutional structure and rules, and by the fact that most decisions are up-ordown, not between program options. Many putative tradeoffs exist only in a theoretical sense:
they are tradeoffs not then and there available to that policymaker. Making environmental, health,
and safety tradeoffs on the basis of cost-benefit analyses implies restructuring decisionmaking
processes, but such restructuring is very difficult in itself, and it is unclear whether the results
would more accurately reflect the informed preferences of Congress—or the citizenry.

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Contents
Preface........................................................................................................................................1
Institutional and Structural Limits on Choosing among Tradeoffs ................................................4
Appropriations for Federal Programs.....................................................................................5
Authorizations for Federal Programs .....................................................................................7
Coordinating or Centralizing Decisionmaking for Tradeoffs ..................................................9
Federal Decision Criteria, State and Local Choices, and Private Sector Preferences: When
Tradeoffs Change Decisionmakers Controlling Resources ...................................................... 11
Weighing Tradeoffs: Where Does It Lead? ................................................................................ 14

Figures
Figure 1. Environmental, Health, and Safety Tradeoffs .............................................................. 17

Tables
Table 1. Congressional Committee Jurisdiction for Selected Environmental, Health, and
Safety Statutes .........................................................................................................................8
Table 2. Decisionmakers and Decisionmaking Criteria Determining Regulatory
Expenditures to Abate Pollution ............................................................................................. 12

Contacts
Author Contact Information ...................................................................................................... 18

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Preface
Government programs are no exception to the constraints of opportunity costs: that is, investing
resources in any one program means that those resources cannot be used for some other program.
A policymaker deciding whether to support a new action; a legislator deciding whether to vote for
a new program; a regulator deciding whether to impose a stringent standard: each decisionmaker
faces the question, What will be foregone if I decide to commit the resources for this activity?
Especially with respect to environmental, health, and safety programs, increasing sensitivity to
the costs of regulations has led some pundits, analysts, and stakeholders to challenge initiatives
on the grounds that alternative choices are available that would provide more risk reduction or
other benefits at lower cost.
Background Note
The original version of this report was prepared in the mid-1990s when regulatory reform and the budget were highprofile congressional issues. CRS was receiving numerous requests in the general format of, “If regulatory program X
were rescinded, how much of some other good Y (e.g., mammograms) could we buy?” The theoretical answer is a
relatively straightforward calculation and may give a sense of relative benefits. But in most cases the answer has little
practical application for actually redirecting dollars from program X to program Y: this report examined why.
Given the probability that regulatory programs and budgetary constraints will again be high-profile for the 112th
Congress, similar questions are likely to arise. This report has therefore been updated and reissued. While many of
the examples are from earlier years, the principles examined remain the same.

When Congress voted on the Clean Air Act Amendments of 1990, columnist George F. Will
wrote, “Policy makers face difficult tradeoffs. Comparative returns to health must be considered.
The $21 billion spent on cleaner air cannot be spent on immunization, infant mortality, care for
poor pregnant women.”1
At a 1997 hearing concerning the Environmental Protection Agency’s (EPA’s) proposal to tighten
the National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, a
Congressman commented, “What are the alternatives to the ... rulemaking? There are clearly
better investments that can be made to promote public health. Eight billion dollars could save 3 or
4 times as many women from breast cancer by paying for mammograms.”2
In a “viewpoint” article in Exxon’s magazine for shareholders, its author states that sound science
and sound economics could lead to smarter regulation by reallocating regulatory expenditures: for
example, “it may be smart to invest more in smoking-cessation education for pregnant women
and less in making the groundwater in a Michigan rail yard cleaner than drinking water.”3

1

George F. Will, “Your Money and Your Life,” Washington Post (March 8, 1990), p. A27.
Hon. David McIntosh, in U.S. Congress, House, Subcommittee on National Economic Growth, Natural Resources,
and Regulatory Affairs, Committee on Government Reform and Oversight, EPA’s Particulate Matter and Ozone
Rulemaking: Is EPA above the Law? Hearing, 105th Congress, 1st session, April 16, 1997 [Serial No. 105-37]
(Washington, D.C.: U.S. Govt. Print. Off., 1997), p. 36.
3
“Bringing Reason to Regulation,” The Lamp (Winter 1997-1998), 13.
2

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In a debate counterposing environmental and economic tradeoffs, Paul Portney of Resources for
the Future said, “A hundred dollars spent on environmental protection is $100 that can’t be spent
on housing, or space, or health, or other alternatives.”4
In 1992 Stephen Breyer (who became a Supreme Court Justice in 1994) addressed the need to
improve the effectiveness of risk regulation in The Oliver Wendell Holmes Lectures, given at
Harvard. His solution featured a centralized administrative group in the federal government to
oversee and guide risk regulation. One of the group’s missions could be to
create a “risk agenda” … that looks for tradeoffs among programs that will lead overall to
improved health or safety. It might, for example, look for practical ways to settle some toxic
waste dump cases, thereby obtaining funds that might be used to help pay for vaccinations,
or prenatal care, or mammograms.... It might, in other words, look for ways to reallocate,
transfer, or combine health resources so that they perform more effectively. 5

In the early 1990s the then-head of the Harvard Center for Risk Analysis, John D. Graham,
together with his student and colleague Tammy O. Tengs, went beyond the rhetoric and studied
these potential tradeoffs. They analyzed the cost-effectiveness of 185 life-saving interventions
(including, for example, laws, regulations, and building codes) for which national cost and benefit
estimates were available. They found that these interventions cost $21.4 billion per year and
averted 56,700 premature deaths and saved 592,000 years of life annually; but there was no
relationship between the cost-effectiveness of the interventions and their implementation. Tengs
and Graham concluded that if the $21.4 billion per year were devoted only to the most efficient
interventions, approximately twice as many lives and years of life could be saved. Alternatively,
they found that the nation could maintain the current level of survival benefits—averting 56,700
deaths per year—and “save $31.1 billion over the status quo, because there are many untapped
investment opportunities that save both lives and money. That is, not only would we save the
$21.4 billion that we are currently spending, but another $10 billion—all the while maintaining
our present level of survival benefits.”6
Graham asserted that failing to follow through on the implications of studies showing that
tradeoffs could improve the cost-effectiveness of health, environmental, and safety regulations
was a “perverse pattern of investment [that] amounts to ‘statistical murder’ of American
citizens.”7 Graham concluded—
Legislators should pass broad-based legislation requiring the use of risk analysis and costbenefit analysis in government decisions. The President and Congress should reexamine
4
Paul R. Portney, representing the economist’s perspective in a debate Does Environmental Policy Conflict with
Economic Growth? Two Views, Resources for the Future (1 December 1993); a printed version is David Gardiner and
Paul R. Portney, “Does Environmental Policy Conflict with Economic Growth?” Resources (Spring 1994, no. 115),
pp. 19-23
5
Stephen Breyer, Breaking the Vicisous Circle: Toward Effective Risk Regulation (Harvard University Press, 1993).
6
Tammy O. Tengs and John D. Graham, “The Opportunity Costs of Haphazard Social Investments in Life-Saving,” in
Robert W. Hahn, ed., Risks, Costs, and Lives Saved: Getting Better Results from Regulation (Washington, D.C.: The
AEI Press, 1996), pp. 173-174; Tammy Tengs, et al., “Five-Hundred Life-Saving Interventions and Their CostEffectiveness,” Risk Analysis, Vol. 15, no. 3 (1995), 369-390. For an explicit critique of the analysis, see Lisa
Heinzerling, “Five-Hundred Life-Saving Interventions and Their Misuse in the Debate Over Regulatory Reform,” Risk
Vol. 13, no. 1/ 2 (Spring 2002), 151-175.
7
John D. Graham, “Comparing Opportunities To Reduce Health Risks: Toxin Control, Medicine and Injury
Protection,” National Center for Policy Analysis, Policy Report No. 192 (June 1995), p. 2.

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annual appropriations to public health and environmental agencies to determine how
reallocations of dollars could offer more health protection and no greater costs to the
taxpayer or private sector.

This view has been broadly accepted among those promoting risk assessment and cost-benefit
analysis as ways of rationalizing regulatory activities. For example, summarizing a volume
analyzing risk-benefit tradeoffs, Robert W. Hahn, a long-time student of regulatory costs,
concluded: “We could save a substantial number of lives and money by reallocating resources
from ineffective domestic regulations to other life-saving interventions in the United States or the
developing world.”8 Similarly, legal scholar Cass Sunstein observed that studies like Tengs’ and
Graham’s create “a presumption that the current system of regulation suffers from serious
misallocation of resources.”9 Sunstein has promoted cost-benefit analysis as a way to require
people “to look globally at the consequences of apparently isolated actions.”10
Thus, going beyond rhetoric, analysts like Hahn and Tengs and Graham see quantitative analysis
of tradeoffs as a practical way of achieving greater societal efficiency for health, safety, and
environmental protection investments. Graham, in particular, has been a strong advocate of using
risk and cost-benefit assessments of tradeoffs to improve decisionmaking11—a view which he
was in a position to further between 2001 and 2006 as Administrator of the Office of Information
and Regulatory Affairs in the White House’s Office of Management and Budget. And Cass
Sunstein likewise has had, since 2009, the opportunity to apply his views on rationalizing
regulation with cost-benefit analysis as Administrator of the Office of Information and Regulatory
Affairs in the White House’s Office of Management and Budget for the Obama Administration.
Certainly, risk assessment and cost-benefit analyses of health, safety, and environmental policies
have advanced substantially over the past several years, leading to efforts at quantifying tradeoffs
to identify the most efficient/least efficient ones. But legislators and other policymakers have
found it difficult to effect overt tradeoffs among environmental, health, and safety programs. One
reason for this difficulty, and perhaps the one most often cited, is the perceived inadequacy of the
assessments themselves. Problematic issues include incomplete assessment of costs and,
especially, benefits; discounting future benefits; monetization of noncommercial benefits such as
health and environmental amenities; the resources and time necessary to conduct analyses; and a
utilitarian bias to the technique, among others.12

8
Robert W. Hahn, “Regulatory Reform: What Do the Government’s Numbers Tell Us?” in Robert W. Hahn, ed., Risks,
Costs, and Lives Saved: Getting Better Results from Regulation (Washington, D.C.: The AEI Press, 1996), p. 239.
9
Cass Sunstein, Risk and Reason: Safety, Law, and the Environment (Cambridge University Press (2002), p. 31.
10
Ibid., p. 40.
11

E.g., Graham, “Edging Toward Sanity on Regulatory Risk Reform,” Issues in Science and Technology (Summer
1995), 61-66; Graham, “Legislative Approaches to Achieving More Protection Against Risk at Less Cost,” University
of Chicago Legal Forum (1997), 1-47; testimony on provisions of H.R. 9 [104th Congress] that would create a system
of risk assessment and cost-benefit analysis for Federal agencies engaged in health, safety, and environmental
regulations: Committee on Science, U.S. House of Representatives, Risk Assessment and Cost Benefit Analysis (104th
Cong., 1st sess.) January 3, 1995 [No. 3] (Washington, D.C.: U.S. Govt. Print. Off., 1995), pp. 69-71.
12
E.g., for a review of the difficulties in applying these techniques, see Lester B. Lave, “Benefit-Cost Analysis: Do the
Benefits Exceed the Costs?” in Robert W. Hahn, ed., Risks, Costs, and Lives Saved: Getting Better Results from
Regulation (Washington, D.C.: The AEI Press, 1996), pp. 104-134; Lisa Heinzerling, “The Perils of Precision,” The
Environmental Forum (September/October 1998), 38-43; and Frank Ackerman and Lisa Heinzerling, Priceless: On
Knowing the Price of Everything and the Value of Nothing (New Press, 2004).

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But leaving aside a more detailed discussion of how accurately it is possible to evaluate potential
tradeoffs, or how fair such tradeoffs might be,13 this report examines two institutional reasons
why policymakers may be disinclined to make tradeoffs—or may even find it impossible. For
even if the tradeoffs can be defined and defended, difficulties in effectuating them remain. One
institutional barrier is the limited authority of policymakers to affect decisions across institutional
boundaries. For example, in part because of independent decisions made at different times by the
relevant congressional committees of jurisdiction, the various health, safety, and environmental
statutes manifest differing standards of acceptable risk and differing criteria for assessing them.
The second barrier arises from the divergence in decision criteria applied by the different
institutional decisionmakers involved in tradeoffs. Health, safety, and environmental policies can
involve both public financing (e.g., appropriated grants or loans) and regulations that require
private sector investments; they can involve a range of federal, state, local, and private
decisionmakers. As tradeoffs change those responsible for making decisions, the bases for acting
or financing programs shift as well. A decisionmaker can rarely if ever prescribe that resources
freed up by his or her not supporting an environmental protection program or not choosing a
regulatory option—or a more stringent option—will go to a more beneficial alternative.
These constraints that arise from institutional contexts in which legislators and other
policymakers address tradeoffs both limit alternatives that can usefully be considered, and tend to
push decisionmakers to make up-or-down, case-by-case decisions rather than choosing among
tradeoffs. Typically, a decisionmaker’s only option is to approve or disapprove an action, to vote
for or against a program, or to implement or delay a regulation—with little power to redirect the
resources to a more cost-effective alternative if the choice at hand is rejected.

Institutional and Structural Limits on Choosing
among Tradeoffs
The rules and structures of organizations channel decisions in ways that limit the options of
decisionmakers. In Congress, rules of procedures and committee structures can limit tradeoffs
available to Members. In particular, jurisdictional limitations affecting congressional
subcommittees’ and committees’ choices and procedural requirements governing floor actions—
including especially the “germaneness” rule of the House14—impede treating comprehensively
the many environmental, health, and safety statutes. These procedural and structural limits play
key roles in determining the availability of potential tradeoffs both among program goals and
among alternatives for federal expenditures of treasury funds. Similarly, procedures and the
bureaucratic structure of the executive branch limit choices of administrators and program
managers.
13

Stakeholders affected by regulations and tradeoffs are likely to weigh in on deliberations by policymakers,
potentially skewing perceptions of impacts and of fairness. See, e.g., Cass Sunstein, Risk and Reason, pp. 91-95, 113114.
14
“No motion or proposition on a subject different from that under consideration shall be admitted under color of
amendment.” Clause 7 of rule XVI of the rules of the House of Representatives. Thus an amendment substituting
language concerning, say, a health program for an environmental action could be subject to a point of order as not
germane, thereby putting at risk any effort to trade off among unrelated health, safety and environmental programs.

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Appropriations for Federal Programs
The process by which Congress considers annual appropriations illustrates how structure can
constrain tradeoffs. While the President, Congress as a whole, each Chamber, and the full
Committees on Budget and on Appropriations have the ability to view comprehensively funding
priorities and consider tradeoffs, only in exceptional cases can those with comprehensive
authority devote attention to the level of detail at which most environmental, health, and safety
tradeoffs occur.15
The House and Senate Appropriations Committees16 each divide the total amount of funds
available for discretionary spending among their subcommittees (12 since the 109th Congress;
previously, 13). These 302(b) allocations, as they are known, set the funding limit for each
subcommittee handling one of the 12 bills annually appropriating funds for the federal
government. As a practical matter, most tradeoffs among programs—whether to spend dollars
here or there—occur within each subcommittee’s jurisdiction. 17 For example, the Subcommittee
on Interior, Environment, and Related Agencies has combined responsibility for the Department
of the Interior, the Environmental Protection Agency (EPA), the Forest Service, the Indian Health
Service, the Smithsonian, and the National Endowments for the Arts and the Humanities. The
subcommittee may make judgments on the best use of a dollar within an agency’s appropriation,
or across agencies within its domain—so that EPA’s dollars may be affected by appropriations
decisions concerning Interior or the Forest Service, for example. Thus the ability to weigh the
effectiveness of funds to be spent on water quality, for example, could balance EPA and
Department of the Interior water programs, since they are under the jurisdiction of one
appropriations subcommittee; but there would not be the ability to comparatively weigh the
effectiveness of water programs managed by the Department of Agriculture, which is under the
jurisdiction of a different subcommittee. Thus an option of spending money through the USDA
for water pollution control is only theoretically an opportunity cost of a choice to spend money on
sewage treatment grants through EPA: those choosing to spend the money through EPA did not
have the option of spending those dollars through USDA. For an actual example, see the textbox
“Clean Water Initiative Tradeoff.”

15

At many steps of congressional (and administration) decisionmaking, Members implicitly or explicitly tradeoff
programs, issues, and/or funding. But, as measured by cost benefit analyses and risk assessments such as Tengs and
Graham’s, some environmental, health, and safety programs empirically seem relatively inefficient compared to other
programs. The question addressed here, then, is why has the purported identification of superior tradeoffs not led to
changes resulting in a potentially more efficient array of programs.
16
For more details, see CRS Report 97-684, The Congressional Appropriations Process: An Introduction, by (name
redacted), and CRS Report RS20144,Allocations and Subdivisions in the Congressional Budget Process, by (name redact
ed); also, Richard Munson,The Cardinals of Capitol Hill (New York: Grove Press, 1993).
17
The Office of Management and Budget, which constructs the President’s Budget, is analogously split into
compartments, each of which focuses on tradeoffs within its allotment of the full budget.

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Clean Water Initiative Tradeoff
To illustrate, in 1997 the Administration proposed a Clean Water Initiative to improve and strengthen water
pollution control efforts. EPA and USDA, working with other agencies, developed a coordinated action plan. To
implement the plan, the President proposed a total of $568 million in increases for various water programs in the
FY1999 budget. However, these programs were under the jurisdictions of five separate subcommittees of each
chamber’s Appropriations Committee, so “there is no single opportunity for making funding tradeoffs where the
several agencies are concerned, e.g., more for USDA, less for EPA.”18 In the end, each subcommittee weighed its
component of the plan against its own priorities, so each agency’s program was treated separately. EPA’s programs
got most of their proposed increases, while most of USDA’s programs did not. The “coordinated action” of the plan
was lost.19

The competition among alternatives is not just on the basis of relative costs and benefits: there is
also political reality. In an interview about federal research and development, Senator Bennett
Johnston was asked about R & D tradeoffs among departments. Johnston observed:
There is no research budget as such. So what happens at National Science Foundation, the
National Institutes of Health and the Department of Energy are not connected to each other.
You know, those silly scientists who said kill the SSC [Superconducting Super Collider] so
there would be more money for something else. They did not fail economics 101, they failed
freshman high school arithmetic. I mean [the budget process] just does not work that way.20

Similarly, when an Appropriations subcommittee proposed cutting the NASA budget by $1
billion in the late 1990s, a commentator said:
Researchers unable to imagine their own discipline ever being graced with billion dollar
budgets in the first place may simply shrug, or even smile. Some may even think that less
money spent on space means more money on some worthier form of research. They’d be
flying in the face of decades of experience, but then that’s optimism for you.21

These bounded tradeoffs become explicit in floor amendments to add funds in an appropriations
bill: as net dollars within the bill cannot exceed a ceiling, offsetting funds must be found
elsewhere in the bill, so tradeoffs typically are restricted to programs within the subcommittee’s
jurisdiction. For an example from 1998, when there were 13 appropriations subcommittees, see
the textbox, “Tradeoff Within a Subcommittee.”
Tradeoff Within a Subcommittee
For example, during consideration of H.R. 4194, in the 105th Congress, the FY1999 appropriations bill for the
Departments of Veterans Affairs, Housing and Urban Development, and Independent Agencies (including EPA and
NASA), an amendment was approved by the House to increase VA grants to construct state extended care facilities
by $21 million and offset the increase from the Housing Opportunities for Persons with AIDS program funding. An
alternative amendment, which was withdrawn, would have offset the $21 million increase for VA extended care
facilities with a decrease in Space Station funding. Thus funds originally allocated to a HUD AIDS program were
traded off to VA, in lieu of an alternative proposal that they come from funds originally allocated to the Space Station.
In this way tradeoffs are typically contained within each of the appropriations bills.

18

CRS Report 98-745, Clean Water Action Plan: Budgetary Initiatives, by (name redacted), p. 4. [Not in print;
available from the author.]
19
In theory, either full Appropriations Committee could have addressed the funding comprehensively, but more often
would defer to subcommittee decisions.
20
The Energy Daily (Jan. 25, 1994), p. 4.
21
Oliver Morton, “Life without NASA,” New Scientist (August 21, 1999), p. 45.

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Authorizations for Federal Programs
The situation is analogous for authorizations of programs—that is, the statutes that establish their
intent, rules, and limitations: jurisdictions are divided among committees (and their
subcommittees). For environmental, health, and safety statutes, tradeoffs are largely determined
by the statutes/programs of the subcommittee/committee of jurisdiction. 22 Opportunities for
tradeoffs across committee jurisdictional lines can be limited, especially in the House.
At one level, legislative constraints hinder consideration of tradeoffs between regulatory impacts
of programs; an example is the separate jurisdictions in the House for air pollution (Committee on
Energy and Commerce) and water pollution (Committee on Transportation and Infrastructure). At
the level of choosing between policy instruments, jurisdiction also has implications. Although
most economists and many other policy analysts believe pollution reductions could be more
efficiently achieved through economic mechanisms, such as pollution taxes, than through
“command and control” regulations, the latter have been most often chosen. This tradeoff is
constrained in large part because of split jurisdictional authorities. The committees establishing
pollution control programs and policies can authorize regulations but cannot levy taxes. Adoption
of pollution taxes would depend on favorable action by the House Ways and Means Committee—
an added step with uncertain outcome that the authorizing committee can avoid by employing
regulations only.23 Jurisdiction can also affect choices between regulatory programs and federally
funded programs. Authorizing committees can authorize regulatory programs themselves. But
when they authorize federally funded programs, the final funding decisions reside with the
appropriations committees, whose priorities on such programs may differ from the authorizing
committees’ priorities.24 One way authorizing committees have effected their view of the
appropriate funding priority for their programs is to establish entitlement programs, which are not
subject to annual appropriations.
Tengs and Graham tried to take institutional constraints into account in their assessment of costeffective alternatives. They analyzed savings achievable if five government agencies25 each
independently invested its regulatory efforts most cost-effectively. The analysis examined 134
agency rules that result in about $4.11 billion spent per year by those regulated and save 94,000
life-years. In the analysis, the marginal cost per life-year saved by each agency’s regulations
varied from $1,510,000 for the Consumer Product Safety Commission to $11,300 for the National
Highway Traffic Safety Administration, but the more cost-effective application of those dollars
within each agency’s regulatory authorities would mean that the $4.11 billion in resource
consumption would nearly double the life-years saved, to about 180,000.26
But even this agency-by-agency assessment of tradeoffs does not fully reflect the limitations on
tradeoffs—especially for EPA. EPA’s authorities derive from over a dozen statutes. Jurisdiction
22

David C. King, Turf Wars: How Congressional Committees Claim Jurisdiction (Chicago: University of Chicago
Press, 1997).
23
See Steven Kelman, What Price Incentives? (Boston: Auburn House Publishing Co., 1981).
24
Authorizing committees frequently specify annual appropriations for a program; for the appropriations committees,
however the authorization for appropriation is in effect a ceiling with actual funding subject to available monies and
competing programs.
25
The Consumer Product Safety Commission, the Environmental Protection Agency, the Federal Aviation Agency, the
National Highway Traffic Safety Administration, and the Occupational Safety and Health Administration.
26
Tengs and Graham, p. 176.

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over these statutes is divided among several committees in the House; while jurisdiction over
environmental laws is considerably more concentrated in the Senate, jurisdictional splits remain.
Table 1 presents the House and Senate Committees that are among those with jurisdictions over
selected environmental, health, and safety statutes. While this list may not capture all relevant
committees with jurisdiction, it illustrates that programs often cited as candidates for tradeoffs are
subject to separate legislative panels. One result is that each act containing regulatory programs
has its own criteria for decisions on setting standards, cleanup, etc. With strong leadership,
negotiations may lead to cross-committee deals to coordinate program authorities, but this is the
exception, not the rule.
Table 1. Congressional Committee Jurisdiction for Selected
Environmental, Health, and Safety Statutes
Environmental, Health, and
Safety Statutes

House Committee of
Jurisdiction

Senate Committee of
Jurisdiction

Clean Air Act

Energy and Commerce

Environment and Public Works

Clean Water Act

Transportation and Infrastructure

Environment and Public Works

Safe Drinking Water Act

Energy and Commerce

Environment and Public Works

Solid Waste Disposal Act/Resource
Conservation and Recovery Act

Energy and Commerce

Environment and Public Works

Superfund

Energy and Commerce;
Transportation and Infrastructure;
Ways and Means (taxes)

Environment and Public Works;
Finance (taxes)

Federal Insecticide, Fungicide, and
Rodenticide Act

Agriculture;
Energy and Commerce (food
tolerances)

Agriculture, Nutrition & Forestry;
Commerce, Science, and
Transportation (food tolerances)

Toxic Substances Control Act

Energy and Commerce

Environment and Public Works

Occupational Safety and Health Act

Education and the Workforce

Health, Education, Labor and
Pensions

Food and Drug Act

Energy and Commerce

Commerce, Science, and
Transportation

Note: This table simplifies many jurisdictional complexities. The identified committees may not have exclusive
jurisdiction over the indicated statutes, and some committees with jurisdiction extending over environmental,
health, and safety statutes may not be included. Subcommittee jurisdictions are omitted. Also, specific provisions
in a bill may lead to multiple referral to other committees for consideration of those provisions. Finally, some
programs have elements that may be affected by separate legislative enactments, such as mass transit programs
under transportation legislation having consequences for Clean Air Act programs.

Thus both legislators and EPA officials have limited opportunities to compare and make
consistent standards and decision criteria among statutes. The resulting fragmented regulatory
structure precludes EPA from proceeding with many putative tradeoffs and from weighing the
costs and benefits decisions under different authorities on the same scales. Hence, at least for
EPA, Tengs and Graham’s analysis showing that regulatory actions could be more cost effective
appears to be more conceptual and hortatory than implementable. EPA has some power to
comprehensively assess the effectiveness of its programs, but the existing statutory patchwork
that shapes EPA’s administrative structure27 goes far to explain the variability in the cost27

Concluding that coordinated decisions among the programs can scarcely be achieved without changes in the
authorizing statutes and their diverse standards for decisionmaking, some analysts have proposed combining EPA’s
(continued...)

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effectiveness of its many programs—at least as measured by available cost-benefit analyses and
risk assessments.

Coordinating or Centralizing Decisionmaking for Tradeoffs
Both Congress and the White House have tried to bring more coherence and rigor to regulatory
decisionmaking. A series of executive orders over the past 40-plus years have led to a process for
assessing the impacts of regulatory proposals (most recently, President Clinton’s E.O. 12866, with
new implementing guidelines issued by the George W. Bush Administration). Congress has
sought, with mixed success, to impose risk assessment and cost-benefit analysis requirements on
the regulatory agencies, and to provide some centralized oversight of the process: the Unfunded
Mandates Reform Act (P.L. 104-4) requires agencies to prepare cost-benefit analyses for
regulations costing $100 million or more—in effect codifying a part of E.O. 12866. However, in
some cases statutory language prohibits the consideration of costs in regulatory decisions.28
Agency-by-agency attention to the effectiveness of regulations has been heightened by the
Government Performance and Results Act (GPRA, P.L. 103-62), as well.
Writing in 1995, Graham, along with Jonathan Baert Wiener, discussed possible reforms “to
enable and impel decisionmakers to pursue a more comprehensive analysis of risk.”29 They made
proposals concerning Congress,30 the judiciary,31 and the executive branch. For the executive
branch, Wiener and Graham suggested more forceful implementation by the Office of
Information and Regulatory Affairs of the executive orders requiring cost and risk analysis (E.O.
(...continued)
diverse statutory authorities into one comprehensive “organic act.” This idea was explored in “Integrated Pollution
Control: A Symposium”—but while the contributors raised the issue of EPA’s structure in constraining consistent
decisions across media, they did not consider the implications of the committee structure of Congress. The multiple
committee jurisdictions make integrating risk reductions, as envisioned by an EPA “organic act,” difficult. See Frances
H. Irwin, “An Integrated Framework for Preventing Pollution and Protecting the Environment” and David Clarke,
“Chasing Rainbows: Is an Integrated Statute the Pot of Gold for Environmental Policy?” Environmental Law, Vol. 22,
no. 1 (1992), 1-76 and 281-300.
28
E.g., in the setting of National Ambient Air Quality Standards; decision by the Supreme Court, Whitman v. American
Trucking Associations, Inc. 531 U.S. 457 (2001).
29
In Jonathan Baert Wiener and John D. Graham, eds., Risk versus Risk (Cambridge, Mass: Harvard University Press,
1995), p. 243. For the ensuing discussion, see pp. 246-265.
30
For example, they proposed that a risk tradeoff analysis be required at some stage of the legislative process; it would
be conducted by staff of a relevant committee or by one of the congressional support agencies. See also Timur Kuran
and Cass R. Sunstein, “Availability Cascades and Risk Regulation,” Stanford Law Review, vol. 51 (April 1999), p. 752,
for a proposal that Congress “create a [congressional] risk regulation committee that would be entrusted with compiling
information about a wide range of risk levels and helping to produce priorities. This committee would have authority
over both substantive statutes and the appropriations process.” In the 105th Congress, legislation (H.R. 1704) was
proposed in the House that would have created a congressional office “to provide the Committee on Government
Reform and Oversight ... information that will assist the committee in the discharge of all matters within its jurisdiction,
including information with respect to its jurisdiction over authorization and oversight of the Office of Information and
Regulatory Affairs of the Office of Management and Budget.” This office would also have taken over congressional
review of agency rulemaking and prepared an annual report on an estimate of the total costs and benefits of all existing
federal regulations.
31
For example, they argued for the interpretation that even for statutes that forbid considerations of cost, that risk
tradeoff assessments should be required under these laws, “because risk tradeoffs are part of the effectiveness of the
rule in attaining its risk-reduction goals, rather than a financial cost of the rule.” They also suggested that those who are
disadvantaged when an agency fails to consider tradeoffs in promulgating a rule be given standing to challenge such
agency action.

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12866). They noted that a more radical reform would be to reorganize “the executive branch to
integrate the array of health and environmental protection agencies.” Further, they observed that a
centralized oversight unit for risk assessments, perhaps located in the White House or the U.S.
Public Health Service, could enhance coordination. Several years later, Cass Sunstein proposed
that Congress “create a new subcommittee entrusted specifically with the power to assess
aggregate risk levels, to compare risks, and to initiate revision of statutes that increase net risks,”
and to “address the problem of health-health tradeoffs through a new directive in the
Administrative Procedure Act”; and, in the executive branch, that the Office of Information and
Regulatory Affairs [of the Office of Management and Budget], “should see, as one of its central
assignments, the task of overcoming governmental tunnel vision, but ensuring that aggregate risks
are reduced and that agency focus on particular risks does not mean that ancillary risks are
ignored or increased.”32 These proposals have particular salience since Graham was appointed by
President George W. Bush to head up the Office of Information and Regulatory Affairs, and Cass
Sunstein was appointed to the same position by President Barack Obama.
Graham and Sunstein have both focused on making more transparent the regulatory
decisionmaking process, on ensuring the soundness of the science underlying decisions, and on
more rigorous cost- and risk-benefit analyses. These are essential parts of making not only better
decisions, but also could lead to consciously made tradeoffs. So far, however, there is no example
of an explicit, practical tradeoff across programs on the basis of the cost-effectiveness of lives
saved. Even with the overarching authority of the White House behind the Director of the Office
of Information and Regulatory Affairs, the Director’s efforts are constrained by institutional
boundaries and statutory dictates.
Despite executive orders and legislated requirements for cost-benefit studies, advances in
evaluating potential tradeoffs have not resolved the issue of how requiring risk assessment and
cost-benefit analysis can be applied coherently across the many environmental, health, and safety
programs, given the differences among the statutes. The decision to diminish resources and effort
in one area is usually separate from a decision and authority to apply those or related resources
and effort in another area. Reconstituting congressional and/or administrative structures to
integrate risk reduction—so that programs now handled more or less independently would go
onto the same table for possible tradeoffs—would imply legislators reallocating their authorities
and responsibilities. 33 This is a rare undertaking of uncertain outcome. 34

32

Cass Sunstein, Risk and Reason (2002), pp. 117, 150-151.
This was highlighted in the difficulties experienced by the House and Senate as they realigned responsibilities in
order to address the creation of the Department of Homeland Security.
34
Congress recognizes these difficulties, and at times has tried to overcome them. For example, noting the difficulties
that Congress experienced in changing governmental structures, which shifted Member and committee responsibilities,
Congress granted the President limited authority to reorganize the government (98 Stat. 3192). When exercised, this
power, which existed during much of the middle of the 20th Century, often created conflict between the President and
Congress, and ultimately the authority was allowed to lapse. See Louis Fischer and (name redacted), “Presidential
Reorganization Authority: Is It Worth the Cost?” Political Science Quarterly, vol. 96, Summer 1981, pp. 301-318.
33

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Federal Decision Criteria, State and Local Choices,
and Private Sector Preferences: When Tradeoffs
Change Decisionmakers Controlling Resources
In choosing among alternative tax-supported federal programs (e.g., grants, Superfund cleanups),
federal decisionmakers decide where to direct resources from monies they control. In choosing
among alternative federal environmental, health, and safety regulatory programs, federal
decisionmakers mandate expenditures by state and local governments, the private sector, and/or
individuals. It can be tempting to pose tradeoffs across these two situations—between federally
funded programs and federal regulatory programs. Thus, among the examples cited in the preface,
immunization, infant mortality, and care for poor pregnant women are rhetorically proposed as
tradeoffs against clean air; mammograms against stricter air regulations; smoking-cessation
education of pregnant women against groundwater cleanup; and housing, or space, or health
against environmental protection. The putative tradeoffs counterpose public programs paid for
primarily by federal (sometimes state) tax dollars with environmental protection programs paid
for primarily by dollars mandated to be spent by individuals, state and local governments, and/or
the private business sector.
The conceptual commingling of federally funded programs and of federal regulatory mandates
ignores a fundamental obstacle to making tradeoffs. This obstacle arises from the distinct
identities and interests between those who establish the mandate and those who control the use of
the money necessary to meet the mandate. In the case of tradeoffs among established federally
funded programs, the decisionmaker for spending monies remains the same for selected
alternatives: the appropriator and, ultimately, Congress. If Congress decides not to spend the
money on option A, it can spend it on option B, subject to institutional constraints previously
described.
In the case of tradeoffs between federally funded programs and regulatory programs (or between
regulatory programs), however, the legislative decisionmaker mandating the program and the
appropriator ultimately responsible for expenditures to meet regulations are separated. And the
administrator responsible for drafting regulations may find his or her options constrained not only
by the statutes and by funding, but also by explicit congressional directions, which can include
statutory authorizing language specifying deadlines and the inclusion or exclusion of certain
options; appropriations language that earmarks or withholds monies for certain options; and
report language that gives guidance that, even if not binding, may have considerable sway.
Finally, the party which must meet a health, safety, or environmental regulation has to consider
the consequences for the business and owners or stockholders. Each decisionmaker thus faces a
set of incentives and options constrained by the institutional context.
As a result, the alternative of spending tax monies on a federal program versus establishing a
regulatory program not only trades off program benefits, but also changes the payer who decides
on the alternative use of the dollars. From the different settings, each decisionmaker can be
expected to employ different criteria in judging the return on the use of the monies. A federal
program decisionmaker presumably makes tradeoffs on the basis primarily of national values and
needs; a state or local program decisionmaker presumably makes tradeoffs on the basis primarily
of state or local values and needs; a private sector business decisionmaker presumably bases

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tradeoffs primarily on profit and loss considerations; and an individual presumably bases
tradeoffs on personal needs and preferences. These differences are shown in Table 2.
To propose tradeoffs between an environmental regulation and a potential alternative federal
program disregards the different circumstances of the decisionmakers involved. For the
regulatory mandate, the federal decisionmaker knows what purpose the dollars will be spent on; if
the federal decisionmaker decides not to impose that mandate, those dollars remain available to
the state/local, private sector, or individual decisionmaker to spend. If the regulatory mandate is
not imposed or is rescinded as not cost-effective, there is little reason to assume that the
state/local, private sector, or individual decisionmaker controlling those dollars will view an
alternative public service program as a preferred destination for the monies freed up. As a
practical matter, the alternative to a specific federal regulatory mandate is some unknown
option(s) on which other decisionmakers responding to other values or pursuing other goals will
spend those unmandated dollars.
Table 2. Decisionmakers and Decisionmaking Criteria Determining
Regulatory Expenditures to Abate Pollution
Decision-maker
mandating
regulatory cost

Criteria for
requirement to
spend money

Decision-maker
for alternative
expenditure

Consumer

Congress, EPA,
state/local
governments

public interest,
national/state
welfare

consumer

personal preference

State/local mandates

Congress, EPA,
state/local

public interest,
national welfare,
state/local welfare

state/local
policymaker

public interest,
state/local welfare

Private industry
regulations

Congress, EPA,
state/local

public interest,
national/state /local
welfare

corporate
management

corporate interest

Regulated Party

Criteria for
alternative
expenditure

It is certainly possible—some would say highly likely, even indisputable—that some portion of
dollars spent to meet federal requirements could be better spent otherwise by state and local
governments, private businesses, or individuals. Underlying this tradeoff is the debate over the
share of incomes that most effectively and efficiently advances national interests by being spent
by government (federal or state or local) rather than privately (individually or corporately).
Compare the following viewpoints (referring to taxes, but the principles expressed apply
analogously to regulation, often called a “hidden tax”):
... Given a choice between keeping taxes high so the government has more money to spend
and ... reducing the tax burden so families can put more money aside to invest in their own
child-care needs, retirement needs, health-care needs or whatever needs they choose, my
preference is the latter....
Letting people keep their money is the best way to address the social problems that confront
us, now and in the future.35
*****
35

Bill Archer, “Paying Down the Debt,” The Washington Post (2 Feb. 1998), p. A18.

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Sen. Pete Domenici (R-N.M.) publicly tells me I “ought to pay less taxes, ought to keep
more” of my money because I “can make better decisions than we [our elected leaders in
Washington] can.”
Thank you, Sen. Domenici, but I emphatically and sincerely disagree. My federal
government does well hundreds of things I want done and which I would not have any idea
of how to do by keeping every cent to myself. Because of the taxes we pay, the Great Lakes,
the Chesapeake Bay, the Charles River, the Chicago River and the Potomac River are all
cleaner, healthier and more alive than they were just a generation ago.36

What seems clear is that even if state and local, corporate, or private investments in alternatives to
pollution control mandates would contribute equally—or even more—to net national welfare,
there is little reason to assume the alternatives would be selected from more cost-effective
environmental, health, or safety programs such as immunization, education, or care for poor
pregnant women.
As Thomas O. McGarity, a student of the legal implications of regulations, has noted:
Even under the highly contestable assumption that a cost-benefit criterion would eliminate
waste, no vehicle exists for channeling the savings to the most deserving social programs.
The savings will invariably go to the regulatees, who may or may not spend them on
activities that benefit society. Absent some governmental vehicle for directing how regulated
entities spend the resources saved by less stringent regulation, they will devote resources to
things that make their shareholders happy. 37

The other side of the argument that money necessary to meet regulations could be spent more
effectively on alternatives38 is that the beneficiaries of a regulation also have more money to
spend. For example, if because of an air pollution regulation people avoid adverse health effects,
any monies that would have been spent on consequent visits to doctors or hospitals are saved and
available for alternative uses. But again, even if these beneficiaries can be identified, how they
will use the savings is unknown.
In short, there are tradeoffs for each dollar paid out to abate and control pollution. But it is not $1
for pollution control versus $1 for some comparable or superior public good. Rather, it is $1 for
pollution control on the one hand, versus $1 for an unknown purpose on the other—with the
probability that the criterion for deciding on how otherwise to spend the money will not be
national welfare. (Which is not to say that the alternative expenditure would necessarily fail to
equally or better serve national wellbeing: one just cannot know.) As a practical matter, it is not
usually possible to specify tradeoffs for dollars expended on regulatory programs. Tradeoffs exist,
but except through imposing alternative mandates, the policymaker seeking to protect the
environment, health, or safety, is not in a position to direct those funds to particular options.39
36
37

Mark Shields, “Taxes Well Spent,” The Washington Post (4 August 1997), p. A19.
Thomas O. McGarity, “A Cost-Benefit State,” Administrative Law Review, Vol. 50, no. 1 (1998), pp. 34-35.

38

The disposition of the monies may have another implication for risk. Income levels correlate negatively with
mortality, presumably because lower income means people have less to spend on health. If regulations lead to slower
economic growth, the lower income levels imply there will be statistical loss of life. Isolating this tradeoff has proven
highly problematic. The idea of incorporating an income-mortality tradeoff in actual policymaking has been broached
but so far remains largely academic. See W. Kip Viscousi, “The Dangers of Unbounded Commitments To Regulate
Risk,” in Robert W. Hahn, ed., Risks, Costs, and Lives Saved: Getting Better Results from Regulation (Washington,
D.C.: The AEI Press, 1996), pp. 159-162.
39
I.e., Congress enacting in lieu a comparable mandate, or an administrator imposing in lieu a comparable regulation.

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Consequently, the policymaker is motivated to achieve whatever is possible through the program
at hand: “... [R]egulators are not empowered to maximize collective welfare by allocating public
funds among all manner of social problems. They face discrete issues that demand concrete
responses. Even legislators, with their broad lawmaking authority, must work within the
constraints of the political process.”40

Weighing Tradeoffs: Where Does It Lead?
In the end, comparative assessments of costs (and benefits and risks) of alternative programs
benefitting the public welfare, or of alternative regulatory mandates, provide information to
policymakers and the public.41 The information can promote better understanding of risks, costs,
and benefits. It may allow policymakers, within their constraints, to focus resources on the most
cost-effective environmental, health, and safety interventions. But comparative risk information
does not mean that a tradeoff can be or will be accomplished. A study of state and local
comparative risk projects to establish environmental priorities concluded that
Successes to date include increasing environmental awareness among participants; building
consensus and establishing collaboration among diverse stakeholders; and establishing novel
means of public involvement. However, no project that we evaluated has, as yet,
documented achievement of a system for developing and implementing environmental
priorities in order to mitigate their most significant environmental problems [italics added].42

For the decisionmaker, a dollar is being spent on “this” rather than on “something else.” While
the “this” is in the decisionmaker’s purview, the “something else” may well be either outside his
or her purview, or it may be completely open-ended, in the realm of the marketplace. The debate
over enactment of the Clean Air Act Amendments of 1990 was not over whether the $21 billion
tab43 should be spent on clean air or on immunization, infant mortality, care for poor pregnant
women, or something else; it was over whether to require $21 billion to be spent on clean air or
more or less (or not at all).44 Similarly, the mid-1990s debate over proposed National Ambient Air
Quality Standards for ozone and particulate matter was not over whether the multibillion dollar
tab should be spent on cleaner air or on mammograms or some particular thing else, it was over

40

Douglas A. Kysar, “Some Realism About Environmental Skepticism: The Implications of Bjorn Lomborg’s The
Skeptical Environmentalist for Environmental Law and Policy,” Ecology Law Quarterly, Vol. 30, no. 223 (2003), p.
258.
41
Tengs and Graham, op. cit., pp. 191, 193; Sunstein, op. cit., p. 107.
42
David Lewis Feldman, et al., “Environmental Priority-Setting Through Comparative Risk Assessment,”
Environmental Management, vol. 23, no. 4 (1999), 483.
43
These are not federally appropriated dollars provided by taxpayers; these are (estimated) costs of regulations and
arise from foregone profits from alternative investments, lost wages or rents, and/or consumer expenditures to cover
higher prices of goods.
44
During the 1990 debate on the Clean Air Act Amendments, a working agreement emerged that the bill could impose
some $25 billion in costs per year after 2000. Some legislators argued that this was too much and others that this was
not enough; but as a practical matter, the majority accepted this as a reasonable pricetag for the program. Given the
difficulties in assessing costs and benefits, it is not surprising that estimates of costs of the legislation ranged greatly,
from the low 20s to 90 billion dollars per year. E.H. Pechan & Associates, Clean Air Act Amendment Costs and
Economic Effects: A Review of Published Studies (Prepared for National Clean Air Coalition, National Clean Air Fund,
Washington, D.C.), in Congressional Record (October 27, 1990), S16963-S16969 [daily ed.] The test of the bill’s
adherence to $25 billion in costs was EPA’s “official” estimate.

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whether to set standards that would result in those regulated to spend more (or less) money on
cleaner air.
For a legislator who faces a vote on imposing costs—for example, the Clean Air Act Amendments
of 1990—or a policymaker who faces a decision on a regulation—for example, the ozone and
particulate matter standards—the choice is basically up-or-down and more-or-less, not on
tradeoffs with other programs. To turn down the amendment or defer the regulation does not
mean more cost-effective environmental, health, or safety alternatives will take its place: it is a
question of following through or starting the policy process anew (see text box, “A Policymaker’s
Options”). With choices tending be up-or-down and limited only to alternatives germane within
relevant jurisdictional boundaries, proponents of environmental, health, and safety initiatives are
loathe to forego or reduce any program, even if its cost-effectiveness is questionable, because
they so seldom can ensure reinvestment of any saved resources in more cost-effective
alternatives.
Only in the abstract, then, is any and every
alternative an opportunity cost of each federal
dollar spent and of every federal regulation
imposing costs. In reality, the actual tradeoff
faced by a policymaker at a particular time and
place—subcommittee, committee, or the floor
of Congress; or Commission or Agency—is
effectively limited by institutional structures
and rules and by the incommensurable criteria
brought by different decisionmakers who
would ultimately decide on the actual
alternatives for spending any dollars the
tradeoffs make available.
The question, How much of “this” could you
buy if one didn’t impose regulation “x,” can
therefore be answered in two divergent ways:

A Policymaker’s Options
Someone has compared a decisionmaker facing a vote or
policy choice to a person on the eve of being married
and who is asked: “Out of the millions of prospective
spouses, can you be confident that the one you are
taking to the altar could not be replaced by someone
more attractive, or more companion-able, or more
intelligent, or sexier, or richer, or offering better genes
to mix with yours?”
This analogy contains two important parallels to
policymakers weighing tradeoffs. First, in both cases, the
decisionmaker has presumably weighed the merits of the
choice across a spectrum of qualities (of which cost is
just one). And second, in both cases, the decisionmaker
has really only the option of going ahead or starting
over: the choice is not this spouse or, say, Emmanuelle
Chriqui/James Franco, it is a question of following
through on the engagement, or starting the courtship C
or policy process C anew.

One way is to take an estimated cost of regulation “x” and divide by the unit cost of “this,”
resulting in the equivalent number of mammograms, inoculations, or whatever. That number is
information that may help to give perspective on the magnitude of the cost of regulation “x”—but
at the same time it may give a sense that a tradeoff is feasible when it is not.
The second way of answering the question is to put the compared costs into context, examining
whether the monies involved in “x” and “this” are really fungible. Whether those expenditures are
truly alternatives depends on the options posed, the decisionmakers involved, and the institutional
setting. There may be definite options, as when an appropriations subcommittee allocates dollars
among programs in its jurisdiction; but in other cases the tradeoff may be between an intended
outcome and the nebulous consequence of not opting for that outcome. Putting the label
“statistical murder” on the failure to make tradeoffs is rhetorically powerful, connoting a wilful
choice to choose a less protective or more costly option. But in reality, legislators and
administrators rarely if ever are in a position to select among the implied options as they
authorize, fund, and implement health, safety, and regulatory programs.

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The problem is depicted in Figure 1: Putative tradeoffs among environmental, health, and safety
expenditures presume that all programs are on the table, as shown in Figure 1-A, each with a
specified dollar amount per unit that gives one measure of potential cost-effectiveness; but the
voting legislator typically has only a single program on the table at a time, the result of a
deliberate, formal process of agenda setting, as shown in Figure 1-B; and the administrator(s) of
diverse programs generally finds each program on a separate table, with the boundaries of each
defined by a separate statute that gives little or no authority to an administrator to compare and
reallocate resources across them, as illustrated in Figure 1-C.
In the end, the underlying issue of environmental, health, and safety cost-effectiveness is how to
foster decision processes and structures that enable tradeoffs that reflect the informed preferences
of the citizenry. Evidence indicates that programs vary in cost-effectiveness. However, given that
there is more to comparing programs than just costs, one could argue that the current
environmental, health, and safety program mix—the result of the present decisionmaking
structure—may in fact reflect citizen preferences (though not necessarily expert opinion).
Where tradeoffs would appear to result in more consistent, cost-effective protection of health,
safety, or the environment, better information may in the short run contribute to improved
decisions in allocating resources, but legislators’ and administrators’ options are limited. There is
a big gap between identifying a potential tradeoff and being able to make the tradeoff. The stakes
are high for winners and losers, especially for those who gain or lose authority to make decisions
about expenditures. In the long-run, better information about desirable tradeoffs may suggest
realignments of decision structures—leading to a different, complex, and difficult set of
institutional decisions.45
In the meantime, if an existing or a proposed program is identified as insufficiently cost-effective
and therefore appropriate for trading off, there is rarely any way to actually terminate it while
concomitantly creating a more cost-effective one. The most likely result of a “tradeoff” would be
either to kill one program without gaining the more cost-effective alternative; or to create a new
more cost-effective program while also maintaining the program with inferior cost-effectiveness.
For either option, there is a stakeholder with a natural resistance—depending on whether one is
more concerned about costs or benefits.

45
See Giandomenico Majone, Evidence, Argument & Persuasion in the Policy Process (Yale University Press, 1989),
pp. 95-115; and Victor P. Goldberg, “Institutional Change and the Quasi-Invisible Hand,” 17 J. of Law and Economics
(1974), pp. 461-492.

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Figure 1. Environmental, Health, and Safety Tradeoffs

Source: CRS.

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Author Contact Information
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[redact ed]@crs.loc.gov, 7-....

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[redacted]@crs.loc.g
ov, 7-....

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL30043. Public record. Not legal advice.