Air Date: Week of June 24, 1994

Steve Curwood talks with Vic Sher of the Sierra Club Legal Defense Fund about Supreme Court nominee Judge Stephen Breyer’s environmental views and case record, especially regarding risk assessment.

Transcript

CURWOOD: Confirmation hearings for Supreme Court nominee Steven Breyer are scheduled for the US Senate in mid-July. Judge Breyer is now the Chief Judge of the First US Circuit Court of Appeals in Boston, and he once served on Senator Ted Kennedy's staff in the Senate. And barring any unforeseen hitches, he's expected to be easily confirmed. But if Judge Breyer's appointment has generated little controversy, it has certainly caught the attention of environmental lawyers and activists. That's because Judge Breyer has written 2 books about the arcane and controversial business of environmental risk assessment. His latest volume, published in 1993 by Harvard University Press, is called Breaking the Vicious Circle: Toward Effective Risk Regulation. To discuss Judge Breyer's thinking and his record on the bench, we called Vic Sherr, President of the Sierra Club Legal Defense Fund in San Francisco. Mr. Sherr has studied Judge Breyer's writings and his environmental case record. He says the appointment to the high court should be a milestone for environmental law.

SHERR: Well you know, the Supreme Court has not had a friend of the environment since Justice Douglas stepped down in the early 70s. And Judge Breyer is actually the first Justice who we have coming up who has actually dealt with a number of environmental issues, and indeed has resolved a number of environmental cases as a sitting judge in the First Circuit. And they have been a diverse set of cases and he's issued a diverse set of opinions. He has ruled for environmental plaintiffs in a number of important cases. He has also upheld decisions by Federal agencies either not to prepare environmental impact statements, or has upheld them against challenges brought by criminal plaintiffs in a number of different cases. But what makes me feel good about the prospects of appearing in front of him is that he's clearly a judge who is very intelligent, very thorough, pays a lot of attention to the laws as passed by Congress and the reasons they were passed by Congress, and pays a great deal of attention to the actual cases presented to him in his courtroom.

CURWOOD: Surveying the people who bring environmental cases to the bar, which groups, which movements, which causes do you think are going to be cheered by Judge Breyer, and which are going to feel some apprehension, do you think, about his appointment?

SHERR: I suspect that the debate over Judge Breyer will reflect divisions within the environmental community about certain issues: most notably, the role of economics in addressing environmental problems. That's one significant issue. And a second significant issue is the role of risk assessment in regulating toxics in society.

CURWOOD: Now risk assessment is actually an area where Judge Breyer has written. He's got a couple of books out. The most recent one is called Breaking the Vicious Circle: Toward Effective Risk Regulation. Can you just briefly describe for people who don't study these things closely, just what is risk assessment, and why it's important in legal cases?

SHERR: Well, risk assessment is an effort by regulators to determine what risks are posed by certain kinds of substances that are introduced into the environment, and then to make policy judgments about what levels of risk are acceptable. So there's 2 separate inquiries. Judge Breyer's concern is that we have gotten ourselves into over-regulating certain kinds of toxic substances, and that we are causing very, very expensive solutions to obtain minimal incremental benefits. The flip side of that, and what either hasn't been in the cases that he's decided or he didn't address in his book, are the situations in which government has under-regulated, and, as a result, people in society have been harmed. And one prime example of that is the dithering over regulating lead-based gasoline, which because of arguments about cost, economic cost, and risks, took years. And as a result, significant numbers of people were exposed to problems and have had medical problems as a result.

CURWOOD: So, your concern then about the validity of risk assessment must bring you some concern about the appointment of Judge Breyer to the Supreme Court. His books seem to say that risk assessment is an effective way to look at regulation.

SHERR: What we find when you start getting into areas of risk assessment is that scientists are unable to take into account all of the variables. And sometimes don't even know what questions to ask. For instance, a whole generation of toxics has been regulated without even realizing that they might be endocrine disrupters, which have tremendous reproductive and developmental hazards at extraordinarily low levels. What gives me more comfort is that this is a widespread debate on which Judge Breyer appears to be actively engaged, and that that speaks of an open mind. And I suspect that his ideas are out there as debating points and as ideas for starts of discussion. And I would be very, very surprised if he were either wedded to them or if they would unduly influence his decision in a particular case.

CURWOOD: Now, as I understand it, Judge Breyer has something of a record in civil rights cases. He's viewed as being fairly sympathetic to civil rights. How do you think this might impact any environmental justice cases that come in front of him?

SHERR: Well, those are the coming wave on toxics and risk in society. I think that we have the opportunity, by marrying civil rights and environmental rights, to revolutionize the way the courts look at toxics. So I think it's a very exciting area, and I think Judge Breyer's record on civil rights is cause for optimism on that.

CURWOOD: Justice Douglas was fairly enthusiastic about the environment, as you mentioned. How do you think Justice Breyer, should he be confirmed, and it certainly looks like he will be, will be in his regard in the environment? Is this something he comes to with any passion?

SHERR: It's hard to say. Justice, or Judge Breyer still, his opinions are extremely readable, and they're very intelligently crafted. But one doesn't detect the same kind of passion about the environment, or, frankly, about anything else. And that's just stylistic. I think that my writings, were I a judge, would be more like Steven Breyer's than like William O' Douglass's.

CURWOOD: Well, I want to thank you for taking this time with us. Vic Sherr is President of the Sierra Club Legal Defense Fund. Thank you, sir.

SHERR: Thank you.