Author Archives: Sherzod Abdukadirov

The Precautionary Principle vs. Glow in the Dark Plants

http://www.thecroodsmovie.com

In “The Croods,” a box office hit cartoon showing a family of cavemen, the father issues daily warnings to his family that everything new is bad. He explains to his inquisitive daughter that they have survived for so long in their dangerous world by doing exactly the same thing every day and eschewing innovation. In our times, we would call his approach “the precautionary principle.”

The precautionary principle was on display when environmental activists petitioned a startup fundraiser Kickstarter to shut down the Glowing Plant Project, calling it “a new biotech threat coming from Silicon Valley.”  As its name suggests, the project aims to create plants that will glow in the dark using synthetic biology. And while the idea may sound like a fad, it may have practical applications, e.g. living streetlights that would use their own energy to illuminate our cities.

Under pressure, Kickstarter amended its rules to ban startups from rewarding their donors with genetically modified products. The environmental activists further called on the regulators to subject similar projects to independent risk assessments. So far various agencies claimed that the issue is outside their jurisdiction.

The idea of making organisms glow is not new. A few years ago, FDA certified that there was no evidence that the Glofish, produced using similar technology, “pose any more threat to the environment than their unmodified counterparts.” But this will hardly satisfy the environmental groups who believe synthetic biology poses a major threat to conservation and sustainability of biological diversity.

There is logic to the precautionary principle. Innovation can and often does bring new risks. There were no driving related fatalities before the invention of cars and certainly fewer greenhouse gas emissions. And it would take a lightening strike to get a fatal electric shock before the invention of powerful electricity generators. Cars, electricity, vaccines and many other innovations came with substantial risks. But just imagine how riskier and poorer the world would be if we had used a precautionary principle to stifle innovation in those technologies.

My colleague Adam Thierer writes in his recent law review article:

New technologies help society address problems that are associated with older technologies and practices, but also carry risks of their own. A new drug, for example, might cure an old malady while also having side effects. We accept such risks because they typically pale in comparison with the diseases new medicines help to cure. While every technology, new or old, has some risks associated with it, new technologies almost always make us safer, healthier, and smarter, because through constant experimentation we discover better ways of doing things.

He further notes:

The precautionary principle destroys social and economic dynamism. It stifles experimentation and the resulting opportunities for learning and innovation. While some steps to anticipate or to control unforeseen circumstances and “to plan for the worse” are sensible, going overboard with precaution forecloses opportunities and experiences that offer valuable lessons for individuals and society.

So take it from the Croods – if we didn’t take risks and innovate, we’d still be living in caves.

Do We Need Greater Congressional Oversight of Agency Rulemaking?

Katherine McFate, president of the Center for Effective Government, writes in the Hill that all regulations are based on congressional law, implying that efforts aimed at greater oversight of agency rulemaking are unnecessary. Technically, she is correct – agencies cannot regulate unless they are authorized to do so by congressional statutes. But her assertion is highly misleading. In fact, agencies have considerable discretion to determine policy and to publish rules that fit their as opposed to Congress’s agenda. Thus, Congress is fully justified in its efforts to push for greater agency accountability.

Scholars have long realized that the traditional rulemaking model (or the “transmission belt” model as Richard Stewart called in his seminal article) in which Congress determined policy through legislation and agencies simply filled in the details was far from reality. While constrained by congressional statutes, agencies nonetheless can substantively shape the policies within their jurisdiction.

Agencies have two sources of power in the rulemaking process: the first mover advantage and expertise. Congress over time delegated considerable policymaking powers to agencies through broad open-ended statutes, which meant that agencies did not need to seek congressional approval in order to regulate. In many cases, they can point to existing statutes as a source of their authority. Rather than initiate policy, Congress ends up reacting to the bureaucracy’s regulatory actions. Yet, given how difficult it is for Congress to agree on any legislation, it may be an uphill battle for Congress to overturn a regulation, letting agency decision stand by default.

Expertise is the second source of agency power. Congress defers to agency expertise on many complex regulatory issues. However, agencies engage in what Wendy Wagner called “the science charade” – masking policy decisions as matters of science. As she explains in her article and an edited volume, scientific analysis often drives policy decisions. Through selective use of evidence or assumptions, agencies can push the scientific analysis towards the answer that would yield their preferred policy alternative.

The EPA’s and DOE’s use of social cost of carbon (SCC) in their rulemaking estimates demonstrates the point. The SCC is an estimate of economic damages caused by greenhouse gas emissions. Agencies use the SCC to estimate the benefits of rules aimed at reducing greenhouse gas emissions and consequently to decide whether the rules’ benefits justify the costs. Higher SCC estimate would justify more expansive and costly regulations.

Even though the agencies claim that they derived the SCC through scientific analysis, critics point to policy choices embedded within the analysis that pushed the estimated cost higher. For example, the agencies chose to estimate global rather than domestic impacts of carbon. Similarly, they omitted from their analysis the recent scientific literature, which pointed to a lower impact of greenhouse gases on climate. These and other choices pushed the SCC higher (almost double the previous estimate), allowing agencies to push for more stringent and costly regulations.

Despite the major policy impact of the SCC’s use in rulemaking, the agencies did not have to consult Congress. They could chose to use the SCC estimates under the powers already delegated to them, even in the face of stiff opposition from Congress. In the meantime, congressional efforts to reassert its authority on the major environmental policy issue have stalled. The GOP-led House passed a bill that would prevent the EPA from factoring in the SCC in its economic analysis. Yet, the measure’s fate in the Senate is uncertain and it would still face the presidential veto.

Contrary to McFate’s assertion, agencies do not simply implement congressional policy. As the SCC example demonstrates, agencies can drive major policy decisions without congressional approval. Thus, Congress needs better tools for more effective oversight of agency regulations.

Nudges or Shoves?

David Brooks writes in the New York Times:

I’d say the anti-paternalists win the debate in theory but the libertarian paternalists win it empirically. In theory, it is possible that gentle nudges will turn into intrusive diktats and the nanny state will drain individual responsibility.

But, in practice, it is hard to feel that my decision-making powers have been weakened because when I got my driver’s license enrolling in organ donation was the default option. It’s hard to feel that a cafeteria is insulting my liberty if it puts the healthy fruit in a prominent place and the unhealthy junk food in some faraway corner. It’s hard to feel manipulated if I sign up for a program in which I can make commitments today that automatically increase my charitable giving next year. The concrete benefits of these programs, which are empirically verifiable, should trump abstract theoretical objections.

I agree with Brooks that arguments over nudges should be based on empirical evidence rather than a purely theoretical discussion. So let’s examine the evidence.

As I pointed out in a recent op-ed:

On the federal level, energy efficiency regulations costing billions of dollars are justified by claiming to correct consumers’ irrational choices. Regulators claim that given the lifetime energy savings, rational consumers would demand more efficient vehicles and appliances voluntarily. They take the fact that many consumers are willing to forego efficiency in favor of other attributes, such as style, safety or lower upfront costs, as a clear proof that consumers are irrational. Hence, regulators force consumers to save by reducing their choices.

Below is a list of recent major federal regulations that use behavioral economics arguments to justify government intervention in markets. While far from exhaustive, it should give you some idea as to the magnitude of “intrusive diktats” that are justified using the nudge philosophy. Note that these regulations are not nudges. This is hard paternalism. Federal regulations do not gently push you towards better choices or give you a chance to opt-out. Contrary to Brooks’ assertion, it is not only in theory that “gentle nudges turn into intrusive diktats.”

For comparison, I can think of no major federal policy that actually nudges. When one looks at the evidence, federal regulators give consumers few nudges but plenty of shoves.

Agency Rule Cost (millions)
EPA/DOT Control of Greenhouse Gases from Light-Duty Vehicles

$176,995

EPA/DOT Greenhouse Gas & Fuel Efficiency for Medium/Heavy Duty Vehicles

$9,600

DOE Energy Conservation Program: Small Electric Motors

$514

DOE Energy Efficiency Standards for Pool Heaters and Direct Heating Equipment and Water Heaters

$1,012

DOE Energy Efficiency Standards for Commercial Clothes Washers

$23

DOE Energy Efficiency Standards for Residential Refrigerators and Freezers

$1,849

DOE Energy Efficiency Standards for Microwave Ovens

$1,341

DOE Energy Conservation Program: Energy Conservation Standards for Fluorescent Lamp Ballasts

$425

DOE Energy Conservation Program: Energy Conservation Standards for Distribution Transformers

$289-$351

DOE Energy Conservation Program: Energy Conservation Standards for Battery Chargers and External Power Supplies

$247

DOE Energy Conservation Standards for General Service Fluorescent Lamps and Incandescent Reflector Lamps

$77-$139

————————-

Addendum: Some of these costs are annualized; some are total. There is no consistency in the way they are reported. Agencies report one or the other but not both. In addition, in an earlier version of this post, two figures were transposed. I have now corrected this.

FDA is Finally Gluten-Free

by OngjulianBrady Dennis reported in the Washington Post that after nine excruciating years FDA finally came up with a “gluten-free” standard. It took so long for the usual reasons, as Dennis explains in his article:

Alessio Fasano, director of the Center for Celiac Research at Massachusetts General Hospital, said the FDA took an “excruciating” amount of time to finalize its gluten-free definition in part because it had to consider a massive amount of research on celiac disease as well as varying opinions from activists who wanted even more stringent standards and industry officials who argued for more lenient requirements. In the end, he said, the agency struck the right balance.

The question that the article failed to ask was whether the FDA standard was even necessary. As Dennis points out, there are several independent private organizations that certify gluten-free products. Thus, not only do markets provide gluten-free certification, they also give consumers a choice on the standard’s stringency. Consumers who are highly sensitive to gluten can pick the labels that impose more stringent standards. Less sensitive consumers could choose products with higher gluten content.

Instead of fighting for nine long years for a single government imposed standard, why not let markets do what they do best – offer consumers better choices at lower prices?

Do We Need a Strategic Cherry Reserve?

What do national public interest and cherries have in common? If you follow national politics on a regular basis, the answer probably will not surprise you. It is federal regulation. This week, the USDA issued an interim rule that revised the deadlines for cherry growers submitting their plans to comply with or applications to divert from the centrally planned production of tart cherries. The plan is approved each year by the Cherry Industry Administrative Board, which is elected by cherry growers. The USDA has the power to sanction any grower that deviates from the plan. Yes, the United States has a federally imposed cartel for cherries (among many other agricultural products; you can check here if your favorite fruit made the list). Take that, Canada.

The Agricultural Marketing Agreement Act, which gave the USDA power to regulate the volume of cherries produced in the country, originally passed in 1937. It is doubtful that it had much economic rationale back then (other than granting privilege to favored interest groups). It certainly makes little sense today. Granted that as a key ingredient in cherry pies tart cherries are dear to many Americans, but counting them as “agricultural commodities with a national public interest,” as the federal government does under the Act, is at best an overstatement. In the end, the best way to protect the national public interest is to for the federal government to stop telling farmers when and how to grow their crops.

Should SEC Be in Charge of Foreign Policy

Last week, the United States District Court for the District of Columbia ruled in SEC’s favor on the Conflict Minerals rule. The rule requires public companies to track their sources of coltan, cassiterite, wolframite, gold and derivative minerals. These so-called “conflict minerals” are often used to finance violent armed groups in the Democratic Republic of Congo (DRC). SEC ‘s rule aims to reduce funding that flows towards these armed groups. Yet despite its laudable goals, the rules will likely fail due to poor analysis:

  • The rule fails to examine the extent of the problem. The rule seeks to reduce funding for armed groups in DRC but fails to examine whether the identified minerals actually constitute a major source of funding for these groups. If they are not, targeting other sources of funding could be more effective.  Similarly, if the armed groups can easily shift to alternative funding sources (DRC is rich in minerals that are not on SEC’s list), the rule’s benefit would be rather limited.
  • The rule presents no alternatives. One can easily think of other ways to reduce armed violence in DRC, including military assistance to DRC’s government or US-led operations to disrupt arms flows into the country. It is difficult to say whether SEC’s approach is more effective when the rule presents no alternatives that its decision could be compared to.
  • The rule fails to estimate benefits. In contrast to its elaborate discussion of the rule’s costs, SEC devotes less than a page to describe the rule’s benefits (only to acknowledge that it is unable to quantify the benefits due to lack of data). While few would expect SEC to have internal expertise on armed conflicts in Africa, the agency’s failure to solicit expert opinions from external sources is inexcusable.
  • The rule makes no plans to measure its effectiveness. In light of the SEC’s admission that it lacks data to estimate the rule’s effectiveness in reducing violence in DRC, one would expect the agency to identify specific metrics to measure success and to establish plans to collect data on the rule’s progress. Yet, SEC seems uninterested in whether its rule will actually produce positive outcomes.
  • The rule makes no plans for retrospective review. Even the best-intentioned regulations can lead to unintended consequences. Given that SEC knows so little about the area that it is regulating with this rule, the chances for things to go wrong are even higher. In fact, some commenters suggested that the rule’s burdens may fall mostly on ordinary citizens and not the armed groups that the rule targets. It is possible that the rule may do more harm to ordinary Congolese than good. Since SEC makes no place to reexamine the rule, it will likely remain in place regardless of its merits.

Troublingly, the court sided with SEC, singing off on the agency’s virtually non-existent economic analysis. My colleague Hester Peirce commented last week:

Although the court did not believe that the SEC had to do cost-benefit analysis for this particular rule given that Congress–not the SEC–made the public interest finding for this rule, the court signed off on the SEC’s analysis. The court reasoned that the SEC’s consideration of efficiency, competition, and capital formation sufficed; “to suggest that the [Securities] Exchange Act mandates that the SEC conduct some sort of broader, wide-ranging benefit analysis simply reads too much into this statutory language.” The need to assess benefits, according to the court, is particularly weak when–as here–a rule’s benefits are supposed to be humanitarian.

 The court’s assertion that humanitarian benefits need not be assessed is startling. One can reasonably argue that benefits of reduced violence cannot be easily monetized. Yet, the reduction in violence can and should be measured. How else would SEC know if its rule is having any impact?

Proponents of better economic analysis are often criticized that they only care about costs. As this example demonstrates, a better analysis can lead to a better rule – the one that actually saves lives.

Why Regulations Fail

Last week, David Fahrenthold wrote a great article in the Washington Post, in which he described the sheer absurdity of a USDA regulation mandating a small town magician to develop a disaster evacuation plan for his rabbit (the rabbit was an indispensible part of trick that also involved a hat). The article provides a good example of the federal regulatory process’ flaws that can derail even the best-intentioned regulations. I list a few of these flaws below.

  1. Bad regulations often start with bad congressional statutes. The Animal Welfare Act of 1966, the statute authorizing the regulation, was meant to prevent medical labs from using lost pets for experiments. Over time, the statute expanded to include all warm-blooded animals (pet lizards apparently did not merit congressional protection) and to apply to zoos and circuses in addition to labs (pet stores, dog and cat shows, and several other venues for exhibiting animals were exempt).The statute’s spotty coverage resulted from political bargaining rather than the general public interest in animal welfare. The USDA rule makes the statute’s arbitrariness immediately apparent. Why would a disaster plan benefit circus animals but not the animals in pet stores or farms? (A colleague of mine jokingly suggested eating the rabbit as part of an evacuation plan, since rabbits raised for meat are exempt from the regulation’s requirements).
  2. Regulations face little oversight. When media reported on the regulation’s absurdity, the USDA Secretary Tom Vilsack ordered the regulation to be reviewed. It seems that even the agency’s head was caught off guard by the actions of his agency’s regulators. Beyond internal supervision, only a fraction of regulations face external oversight. Of over 2600 regulations issued in 2012, less than 200 were subject to the OMB review (data from GAO and OMB). Interestingly, the OMB did review the USDA rule but offered only minor revisions.
  3. Agencies often fail to examine the need for regulation. In typical Washington fashion, the agency decided to regulate in response to a crisis – Hurricane Katrina in this case. In fact, the USDA offered little more than Katrina’s example to justify the regulation. It offered little evidence that the lack of disaster evacuation plans was a widespread problem that required the federal government to step in. In this, the USDA is not alone. According to the Mercatus Center’s Regulatory Report Card, which evaluates agencies’ economic analysis, few agencies offer substantial evidence justifying the need for promulgated regulations.
  4. Agencies often fail to examine the regulation’s effectiveness. The USDA’s plan to save animals in case of a disaster was to require owners to draw up an evacuation plan. It offered little evidence that having a plan would in fact save the animals. For example, the magician’s evacuation plan called for shoving the rabbit into a plastic bag and getting out. In the USDA’s view, the magician would not have thought of doing the same had he not drawn up the evacuation plan beforehand.
  5. The public has little influence in the process. By law, agencies are required to ask the public for input on proposed regulations. Yet, small businesses and individual consumers rarely have time or resources to keep an eye on federal agencies. In general, organized interests dominate the commenting process. The article describes the magician’s surprise to learn that he was required to have a license and a disaster evacuation plan his rabbit, even though the regulation was in the works for a few years and was open for public comments for several months. Most small businesses, much like this magician, learn about regulations only after they have passed.
  6. Public comments are generally ignored. Most public comments that the USDA received argued against the rule. They pointed out that it would impose substantial costs on smaller businesses. The agency dismissed the comments with little justification. This case is not unique. Research indicates that agencies rarely make substantial changes to regulations in response to public comments.

Do We Need Speed Limits to Drive Safely?

A recent RegBlog post discussed a paper by van Benthem, which suggested that the social costs of higher speed limits outweigh their benefits. The paper examines the data from a natural experiment – the repeal of National Maximum Speed Law in 1995 that led many states to increase speed limits – to make its point. Yet, both the RegBlog post and the paper miss the larger question: lower driving speeds may be safer, but do we need the government-imposed speed limits to drive at safe speeds?

In the study, van Benthem finds that “a 10 mph speed limit increase on highways leads to a 3-4 mph increase in travel speed, 9-15% more accidents, 34-60% more fatal accidents.” Thus, he concludes that the difference between private benefits and social costs of faster driving provide a strong rationale for speed limits (while the paper looks at both traffic fatalities and increasing pollution levels, I focus on traffic safety. As the RegBlog post points out, there are alternatives to speed limits to deal with pollution, e.g. emission standards).

However, there is a natural experiment that van Benthem does not discuss: only a third of highways in Germany (mostly around urban areas) have permanent speed limits. On the remaining portion of highways, drivers choose their own speed. The data indicate that there is little difference between traffic fatality rates on highways with and without speed limits. In fact, over the last 20 years, the number of highway traffic fatalities in Germany decreased by 71% despite a 17% increase in number of vehicles on the road and a 25% increase in traffic flow. At 5.6 deaths per billion vehicle-kilometers driven, Germany’s traffic fatality rate is lower than the US rate (6.83) or even France’s (7.01). Apparently, German drivers are able to choose safe driving speeds even without government prodding.

Entrusting drivers with responsibility for their own safety and safety of those around them is behind another natural experiment adopted in several European cities – the concept of shared spaces. These cities are doing away with a thicket of street signs, streetlights and in some cases even sidewalks on some busy intersections. Instead, cars and pedestrians share the road, negotiating their ways as they go. While this may sound like a disaster waiting to happen, the cities report fewer accidents and increased foot traffic in businesses along the roads. The key to the concept’s success comes from drivers’ psychology; drivers compensate for lack of predictable traffic rules by paying attention to their surroundings and being more considerate to others. As Hans Monderman, a proponent of shared spaces, points out “The many rules strip us of the most important thing: the ability to be considerate… The greater the number of prescriptions, the more people’s sense of personal responsibility dwindles.”

For social regulation proponents, stringent rules are the go to response to all social ills. Yet, as European experiences with traffic demonstrate, regulation is not the only and may not even be the best alternative. Crazy as it may sound to some, treating people as responsible adults and trusting them to make the right choices may in fact lead to better social outcomes for all.

Are High Taxes on Smokeless Tobacco Encouraging People to Smoke?

President Obama’s recent budget proposal to pay for pre-school programs by increasing cigarette taxes highlights the confusion both on federal and state levels over taxing tobacco products. A recent Mercatus working paper questions the efficiency and utility of sin taxes in general. But even more fundamentally, tobacco tax policy may fail in its primary goal, which is to reduce the health risks of consuming tobacco.

Since the goal of tobacco taxes is to reduce tobacco’s harms by discouraging its use, the tax rates on various tobacco products should be commensurate with their health risks. If smoking carries four times higher cancer risks than using smokeless tobacco, then the tax rates on cigarettes should be four times higher than taxes on, for example, smokeless tobacco. Yet if cigarettes are taxed at a lower rate than this ratio, the policy may in fact encourage tobacco users to smoke as opposed to using less harmful smokeless tobacco.

A health policy that does not encourage riskier tobacco products should set the ratio of smokeless tobacco and cigarette taxes similar to their health risk ratios. According to a recent review of medical studies, snus (a common type of smokeless tobacco) users face considerably lower oral cancer, gastric cancer and cardiovascular disease risks compared to smokers (see Table 1). In addition, other studies found that, unlike smoking, snus does not lead to lung cancer (the table shows the lung cancer risk for nonsmokers compared to smokers). Importantly, snus users do not expose those around them to second hand smoking, further limiting its negative health impacts. Based on the relative health risks, snus taxes should be considerably lower than cigarette taxes.

Table 1. Comparative Health Risks

Health Risk Risk Ratio (Snus users vs. Smokers)
Oral Cancer 0.43
Gastric Cancer 0.60
Cardiovascular Diseases 0.55
Lung Cancer 0.14

So how do states fare? Table 2 shows the tax rates for cigarettes and smokeless tobacco for select states, which are calculated based on the data are from Tobacco Free Kids campaign (in the source, the tax rates are per ounce of snus and per pack of cigarettes). To make sure that we compare apples to apples, I account for the varying nicotine content in these products. According to a recent study, consuming one gram of snus delivers nicotine content equal to smoking a cigarette. That works out to about a can of snus (typically 1.2 oz) replacing approximately 35 cigarettes (almost two packs). So I convert state taxes to show rates per equivalent nicotine amounts. For simplicity, I focus only on the states that tax smokeless tobacco by ounce. Other states tax smokeless tobacco based on either wholesale or manufacturing prices rather than retail, making calculations trickier.

The relative cancer and cardiovascular disease risks of snus are lower than the risks of smoking, ranging between 0.14 and 0.6 (see Table 1). States with a high snus to cigarette tax ratio are essentially pushing tobacco users towards smoking, which carries higher health risks (coded red in the table). States with a moderate tax ratio are somewhat neutral (coded yellow). Their tax ratio is commensurate with relative health risks for some but not all risk sources. Finally, states with a low tax ratio generally encourage tobacco consumers to use a safer product (coded green).

Table 2. State Tobacco Taxes for Equivalent Nicotine Content

State Snus Tax (gram) Cigarette Tax (cigarette) Tax Ratio (Snus/Cigarette)
Arizona $0.01 $0.10 7.88%
Connecticut $0.04 $0.17 20.75%
Delaware $0.02 $0.08 23.81%
District of Columbia $0.03 $0.13 21.16%
Illinois $0.01 $0.10 10.69%
Iowa $0.04 $0.07 61.73%
Maine $0.07 $0.10 71.25%
Montana $0.03 $0.09 35.27%
Nebraska $0.02 $0.03 48.50%
New Jersey $0.03 $0.14 19.60%
New York $0.07 $0.22 32.44%
North Dakota $0.02 $0.02 96.20%
Oregon $0.06 $0.06 106.42%
Rhode Island $0.04 $0.17 20.39%
Texas $0.04 $0.07 59.54%
Vermont $0.07 $0.13 50.35%
Washington $0.09 $0.15 58.91%
Wyoming $0.02 $0.03 70.55%

Note: snus and cigarette taxes are rounded to nearest cent. The tax ratio is based on actual tax values.

The picture that emerges from the table is that of a confused health policy pursued by the states. Only two states in the list set the snus and cigarette tax rates at the level that does not steer consumer towards riskier tobacco products. Most states set the tax rates at levels that are commensurate with some risks but not the others. Specifically, most states do not account for the fact that snus does not cause lung cancer, which is one of the greatest risks of smoking. Finally, a few states may be steering tobacco users towards cigarettes by setting snus taxes too high (or cigarette taxes too low).

I am not claiming that smokeless tobacco is harmless or that states should promote smokeless tobacco as a substitute for cigarettes. As the National Cancer Institute points out, smokeless tobacco is not a safe alternative to smoking. It still carries increased health risks, including certain types of cancer and cardiovascular diseases. But current policy on tobacco taxes may result in the unintended consequence of pushing tobacco users away from less risky forms of tobacco towards riskier ones.