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23 Harvard Environmental Law Review 93 (1999)


The past three or more Congresses have seen substantial efforts to enact "risk reform" legislation that would require environmental, health, and safety regulations to be adopted following the performance of risk assessments modeled on quantitative risk assessment methods for carcinogens. While such a requirement has potentially beneficial effects on the quality of the resulting rules, there is also a substantial potential for mischief by reorienting substantive environmental, health, and safety regulation, and by introducing substantial new costs and delays into the regulatory process. This article, which is derived from a report by the authors to support an American Bar Association recommendation on risk legislation, presents eight guidelines that ought to be followed by such legislation were it to be adopted. The article also draws on the experience with the National Environmental Policy Act. Environmental impact statements are analogous to risk assessments in many (heretofore unrecognized) respects, especially the importance of distinguishing between a procedural, analytical tool for decisionmaking and a substantive, result-determinative element of rulemaking.