Against "Individual Risk": A Sympathetic Critique of Risk Assessment

benefit statutes or other "balancing" statutes that permit a wider array of considerations to trump the goal of physical integrity. 20 Indeed, as we shall see, federal programs concerned with safety rather than health hazards generally seem to focus on "population risk" rather than "individual risk," and even health threats such as toxins, radiation, and pathogens are sometimes regulated with reference to "population risk."21 So the question just posed remains unanswered: why do EPA, OSHA, NHTSA, and many other agencies, federal and state, employ some variation on the "individual risk" construct-be it "individual risk" to the maximally exposed individual, to a highly exposed individual, to the median or average individual, or to some other person-in administering statutes that make human health and safety a (high-priority or ordinary-priority) regulatory goal?Why not use a fatality-based metric instead, for example one that looks at the effect of regulatory intervention in reducing the total number of deaths caused by fatal illnesses or injuries?One plausible answer points to a seminal 1980 Supreme Court case, Industrial Union Department v.American Petroleum Institute. 22 This case, more than any other single event, triggered the rapid growth of risk assessment in the federal government. 23And it may well have caused or at least supported the regulatory focus on "individual risk" rather than "population risk."In Industrial Union, a plurality of the Court invalidated an OSHA regulation lowering the maximum permissible workplace exposure to benzene, a carcinogen, from ten parts per million (ppm) to one ppm.The Occupational Safety and Health Act, as the plurality read it, authorized OSHA only to regulate "significant" risks-not to ban workplace chemicals or activities based on the mere possibility of an injury or fatality. 24 Note that this aspect of the 20 See