The Paradox Of “Risk-Free”

By  Michael D. ShawMay 26, 2008 @ Health News Digest
 

This holiday weekend, the plans of many Americans were disrupted by record-high gasoline prices. Not surprisingly, hordes of politicians took advantage of a golden opportunity for publicity, and grilled oil company executives—knowing full well that they have little to do with setting crude oil prices. But if you get past the usual rhetoric, something new seems to be emerging: More folks are questioning the wisdom of a host of government policies affecting energy and the environment.
 

At the core of this inquisitive attitude is the notion that attempting to create a risk-free society poses its own set of risks, and some of these are worse than the very ones supposedly being eliminated. Or, put more concisely: there’s plenty of risk in trying to go “risk-free.”
 

While it might not actually be possible for the United States to be completely self-sufficient in energy, surely the over-regulation that has severely curtailed offshore oil drilling, and has prevented a new refinery being built here since 1976 has hardly helped. Once again, those most hurt by these policies are the poorest among us—those the Government tells us they care the most about.

The risks of going risk-free usually manifest themselves as one or more so-called “unintended consequences,” the latest versions being how using corn for fuel caused food shortages, and how environmental restrictions on Corps of Engineers’ plans for New Orleans definitely exacerbated the effects of Hurricane Katrina. However, “unintended consequences” is little more than verbal cosmetics painted on disastrously conceived policy.
 

What would the reaction be to a drunk driver claiming that killing a family of four in a catastrophic accident was an “unintended consequence” of him celebrating too much at the local tavern? What should the reaction be to millions of African deaths caused by the banning of DDT? In the latter case, the only reaction can be to bring back the chemical, and, in fact, that is happening.
 

Many examples of the negative consequences of regulatory actions could be cited, including a particular case that occurred in California a few years ago. Ethylene oxide (EtO), a vital chemical used as a sterilant in health care and other applications, is one compound the regulators love to hate, and it has been regulated beyond all reason—well past anything that could be justified scientifically. It is one of very few chemicals that has both toxic and explosive properties, that could emerge in a typical workplace, under upset conditions. Of course, with proper handling it is quite safe.
 

California regulations provide for very stringent limits on how much EtO can be exhausted to the air, such that a particular type of device must be used to treat any effluent. Unfortunately, this device contains an open flame. Yes, an open flame device is used with an explosive compound.
 

Certainly, under normal operation, the amount of EtO reaching the flame is below explosive levels. The problem is that when things go wrong, anything less than fail-safe is extremely imprudent. Because of very foolish actions by plant operators, which manually overrode a safety interlock, an explosive level of EtO did reach the flame, and a large explosion occurred. Owing to nothing more than sheer dumb luck, no one was killed.
 

Please note that the effluent treatment required by California provides only marginally better EtO removal than devices used in all other states, and absent the device, the incident would not have occurred. Was it really worth it? At the time, the whole affair seemed like a case of regulatory malfeasance, but I was to find out that no such thing exists, thanks to the landmark Supreme Court case of Dalehite v. United States, 346 U.S. 15 (1953).
 

This was the test case stemming from an April, 1947 incident, referred to as the Texas City disaster, considered the worst industrial accident in American history. A massive explosion of ammonium nitrate fertilizer—destined for relief efforts in Europe—caused 581 deaths, along with more than 5,000 injuries, and property damage leaving dozens of businesses in ruins, and 2,000 people homeless.
 

Since the entire operation was run by the Federal government, and the Feds had written all the specifications on how to handle the material, there was no argument on who was to blame. Many of the resulting lawsuits were combined into the Dalehite case, under the Federal Tort Claims Act (FTCA). Elizabeth Dalehite was the widow of Henry Dalehite, a tugboat captain killed in the explosion. In April, 1950 the district court found the US liable for a long list of negligent acts involving well over 100 agencies and their representatives.
 

Elizabeth was warned, though, that the Government might appeal, and the Supreme Court upheld the appeals court in reversing the lower court decision. In other words, the plaintiffs lost.
 

Under a rather novel theory, the Court would essentially negate the Tort Claims act with the astonishing finding that affirmed that the Feds are not liable for “negligent planning decisions” which were properly delegated to various departments and agencies. Under this reading, the FTCA exempts “failure to exercise or perform a discretionary function or duty,” and all the negligent acts in the case were discretionary in nature. Quite convenient, don’t you think?
 

The dissenting justices noted that a private individual would have been held to higher standards here than the Government. In 1955, Congress would eventually provide some compensation to the survivors, but most agreed that it was too little too late.
 

Thus, with the regulators immunized against the consequences of their actions—intended or otherwise—the public must be much more proactive. That means contacting their representatives before questionable policy plans become law.

Speaking of Supreme Court cases

By Mike Shaw June 05, 2008 @ Shaw's Eco-Logic

I received a few e-mails questioning the relevance of this posting.  Let me explain...

The lion's share of actions affecting environmental or health care policy is under the purview of the government--and most of the time that comes down to the federal government.  The previous post alluded to the fact that the regulators are immunized from the catastrophes caused by their actions, because of a horrible Supreme Court case (Dalehite v. US). 

Thus, those who scandalously banned DDT--possibly the single worst regulatory policy in the nation's history--are free from any accountability.   Tell that to a kid who gets busted with a few ounces of pot.

While the Framers would be shocked at the imperial power of today's Supreme Court, and certainly did not intend it to be such, the Court has become a default legislative body for virtually any cause that "escapes" the attention of Congress.  Moreover, the civics curriculum is largely hagiographic in its coverage of the Court.

Like it or not, if you have an interest in government policy, you'd better get clued into the REAL Supreme Court.

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Over the last few weeks, I have had occasion to study a number of so-called "landmark" cases, and when you come right down to it, most of them are essentially crapola.

In Roe v. Wade, for example, no matter what side of the abortion debate you're on, you have to be struck by one very stupid thing:  If Norma McCorvey (Roe) wanted an abortion so badly, why didn't she just go to another state to get one?  It was even part of the dissent that by the time the case reached the Supremes it was moot, since the baby was already born.  Normally, test cases are not moot, and normally test cases do not occur because someone volunteers to purposely create one against their own interest!

In Dalehite v. US (the case cited in the previous posting) an entire law was invalidated on absurd grounds, mostly so that the government would not have to accept culpability.  In dissent, Robert Jackson, a justice whom I do not particularly like, was brilliant.

[Most of the reason I don't like Jackson is that he quite self-importantly ran the Nuremberg trials, which viewed objectively were nothing more than victor's justice, completely perverted by having the Russians sitting in judgment--whose atrocities were more than a match for those of the Nazis.]

Brown v. Board of Education certainly de-segregated some schools, but there was no legal theory involved, as when the same issue had come up before (Plessy v. Ferguson) the Court went the other way.  Thus, it was purely political and a function of the popular culture.  That's what is so pointless and funny about con law:  Precedent is all important except when it isn't.

AND--Marbury v Madison, the case that started the entire business of judicial review actually did so by stating that the Court had no such authority!

Of course, no one seems to mind that the greatest constitutional question of all time--whether or not states could secede--was completely ignored until after the Civil War.  But, in 1869 in yet another crummy case (Texas v. White) that relied on very shaky theory, and even then was a vigorously contested 5-3 decision, the ruling was that a state could not secede (although some exceptions were made).  As you might expect, there was nothing high-minded in the details of the case.  The Reconstruction state government of Texas was trying to get $10 million from certain individuals who had held some bonds on behalf of the Confederacy era state government.

In my experience, few lawyers--including constitutional lawyers--really know the story behind any of these cases, and simply learn their names and memorize the capsule precedent.

A few weeks ago, I wrote about the case that broke FDR's National Recovery Administration:  A. L. A. Schechter Poultry Corp. v. United States (1935).  The plaintiffs really suffered, and the Feds, aided and abetted by much of the media, were pure scoundrels--not to mention that the laws they were trying to enforce were insanely stupid.

But, talk about drinking the Kool-Aid...

The Schechters, having their business and lives ruined by dear Franklin D., voted for him every time he ran.

Bottom line:  A "good" Supreme Court decision is one in which you agree with the political results.  There are seldom "higher principles" at work.