Thirty-sixth Annual Administrative Law Issue Policy Analysis for Natural Hazards: Some Cautionary Lessons from Environmental Policy Analysis

How should agencies and legislatures evaluate possible policies to mitigate the impacts of earthquakes, floods, hurricanes and other natural hazards? In particular, should governmental bodies adopt the sorts of policy-analytic and risk assessment techniques that are widely used in the area of environmental hazards (chemical toxins and radiation)? Environmental hazards policy analysis regularly employs proxy tests, in particular tests of technological “feasibility,” rather than focusing on a policy’s impact on well-being. When human welfare does enter the analysis, particular aspects of well-being, such as health and safety, are often given priority over others. “Individual risk” tests and other features of environmental policy analysis sometimes make policy choice fairly insensitive to the size of the exposed population. Seemingly arbitrary numerical cutoffs, such as the one-in-one million incremental risk level, help structure policy evaluation. Risk assessment techniques are often deterministic rather Copyright © 2006 by Matthew D. Adler. † Leon Meltzer Professor of Law, University of Pennsylvania. Many thanks to David Driesen, Daniel Farber, Jason Johnston, Leonard Shabman, Cass Sunstein, and the participants in the Duke Law Journal’s annual Administrative Law Conference for their comments. 01__ADLER.DOC 11/14/2006 8:29 AM 2 DUKE LAW JOURNAL [Vol. 56:1 than probabilistic, and in estimating point values often rely on “conservative” rather than central-tendency estimates. The Article argues that these sorts of features of environmental policy analysis may be justifiable, but only on institutional grounds— if they sufficiently reduce decision costs or bureaucratic error or shirking—and should not be reflexively adopted by natural hazards policymakers. Absent persuasive institutional justification, natural hazards policy analysis should be welfare-focused, multidimensional, and sensitive to population size, and natural hazards risk assessment techniques should provide information suitable for policy-analytic techniques of this sort.