Reading

Shere, M. 1995. The myth of meaningful environmental risk assessment. 19 Harvard Environmental Law Review 409. Only read the excerpts included in the Required Course Pack.

Industrial Union Department, AFL-CIO vs. American Petroleum Institute. 100 S.Ct. 2844. Only read the excerpts included in the Required Course Pack.

Public Citizen Health Research Group v. Tyson. 796 F.2d. 1479 (D.C. Cir 1986). Only read the excerpts included in the Required Course Pack.

Questions for class discussion

Industrial Union

1. What are the facts, issues and legal analysis in Industrial Union?

2. By way of review, what is parts per million (ppm)? How would you define significant risk? What is the distinction between safe and risk-free?

3. If you were employed by OSHA, how would you respond to the International Union decision? That is, how would you fix the problems with the 1977 benzene risk assessment?

4. Is a quantitiative risk assessment required to correct the problems that the Industrial Union opinion identified? Would a qualitative analysis suffice? Would it be wise for the agency to respond to Industrial Union with a qualitative risk assessment?

Public Citizen

5. What are the facts, issues and legal analysis in Public Citizen?

6. Why is the standard of review in Public Citizen substantial evidence, rather than arbitrary and capricious?

7. Given what you know about the science connecting ethylene oxide and leukemia, what range of agency actions would have been upheld under the substantial evidence standard? Would the court have upheld a (hypothetical) agency decision not to regulate ethylene oxide, assuming the substantial evidence standard, and the scientific studies cited?

Science in these cases

8. It is ofter harder to ask good questions about science than to answer them. To ask a question, you have to know quite a bit about the subject. Moreover, for a lawyer to be effective, they must be able to elicit the information they need from scientists. In this regard, suppose you were defense counsel in Industrial Union. What are key questions about the science that this opinion leaves unanswered? (Come to class with your questions in hand.) Why would defense counsel need the answers to these questions?