When the Rules Are the Real Risks

Robert Hahn and
Robert Hahn
Robert Hahn Director of Economics - Smith School of Enterprise and the Environment at the University of Oxford, Former Brookings Expert
Robert E. Litan

November 1, 2004

This week, Wim Kok, the former Dutch prime minister, is expected to release
recommendations for reviving the Lisbon Agenda. That agenda aims to make the
EU the “most competitive and dynamic knowledge-based economy in the world”
by 2010. To make headway, Mr. Kok and company are going to have to attack
the European regulatory juggernaut head-on. EU policy makers should consider
jump-starting this process by borrowing a page from the American regulator’s

We refer to the common-sense approach the United States uses for regulating
the private sector. Increasingly, federal and state governments have stopped
regulating prices and rights to enter an industry where there is little or
no evidence of monopoly. Consumers have reaped tens of billions of dollars
of savings in the process.

But there still is good reason to regulate private firms and individuals
where the actions they take can hurt someone else, or where individuals may
not be aware of the risks. That is why American policy has limited
environmental pollution, regulated workplace safety, put restrictions on
toys for children, and changed the design of automobiles.

The costs of such regulations are substantial — running in the hundreds of
billions of dollars annually. But so, too, are the benefits. The challenge
is to design each regulation so that its benefits exceed its costs. Although
this simple principle still attracts criticism in some quarters, it is also
common sense. If government regulators attempted to eliminate all risks,
they could easily gobble up much, or even all, of a country’s gross domestic

Not all of America’s regulatory statutes permit regulators to balance
benefits against costs, though regulators routinely do so implicitly.
Indeed, the past seven U.S. presidents, over a span of more than 30 years,
have attempted to make sure that the agencies they control do their
analytical homework. Each has required regulatory agencies to tote up
benefits and costs as best they can before setting new rules that could
impose costs of over $100 million on the economy. And since 1997, lawmakers
have required the White House budget office to issue annual reports on the
total costs and benefits of regulation along with recommendations for how to
fix what is broken. These reports give the public some idea of the benefits
it receives in return for the higher prices and lower wages that can result
from regulation.

Contrary to popular impression, cost-benefit analysis, properly applied,
neither favors nor penalizes regulation. It just ensures that those
regulations that are implemented make sense. For example, the decisions to
phase out lead in gasoline and significantly curtail the use of
chlorofluorocarbons were both based on hard-headed cost-benefit analyses.
More recently, White House economists encouraged U.S. environmental
regulators to toughen their standards on diesel emissions from off-road
vehicles because of evidence that the benefits of doing so outweighed the

And the U.S. government is even using cost-benefit analysis proactively, to
get regulators to do things that aren’t on their radar screen. In the past
three years, the budget office has issued twelve “prompt letters” —
encouraging agencies to address new risks through regulations that could
save thousands of lives and improve health at a reasonable cost. Examples
include better food labeling to encourage heart-healthy diets and installing
defibrillators in the workplace to reduce the risk of death from heart

There are lessons in all this for Europe, especially as it continues its
effort to develop a pan-European set of domestic policies that improve its
ability to compete in world markets.

First, we suspect there are several opportunities — air transport being a
prime example — where further deregulation of prices and entry barriers
across Europe could save consumers billions of euros in lower fares and
other costs. Consumers could also reap substantial benefits if strict
regulations on large stores and opening hours were relaxed, assuming
politicians were willing to take the heat.

Second, regulations governing Europe’s labor markets need to be revisited.
It is no accident that unemployment remains high in many EU states. While we
would not necessarily advocate an “American model” for Europe, even a modest
reduction in the cost of hiring and firing employees could have a positive
impact on employment.

Third, the EU and its member states could benefit from a re-examination of
its precautionary principle, which in essence says “it’s better to be safe
than sorry” when deciding whether to allow a new drug, genetically modified
food, or a whole host of other products, to be marketed.

The problem with “better safe than sorry” is that it is not a practical
guide to decision-making, except in its extreme form, which would be to ban
anything that entails a risk of harm. By that logic, we’d never have
electricity, the automobile, the Internet, or countless other inventions
that allow our modern society to function (but each of which has risks).

But if the precautionary principle is not to be applied in such a strict
way, then where and how should decision makers draw the line between what to
allow and what not to? We do not believe there is any principled way to do
so without balancing costs against benefits. In some cases, this may be
relatively easy to do. In others, it may be especially hard to quantify the
benefits — as in the case of regulations designed to protect against
terrorism. But even these hard cases should not excuse decision makers from
at least toting up the costs of various options.

For the fact is, even in the case of terrorism and other hard cases,
societies cannot afford to seek totally risk-free environments. Hard choices
must be made. The precautionary principle does not help one do so in a
nonarbitrary way. Balancing costs against benefits — even though sometimes
difficult and fraught with uncertainties — at least offers a principled
approach for making these tough decisions. We do so in our every day lives;
we should ask our political leaders to do no less.

Finally, we believe that the EU should create a strong centralized
regulatory oversight unit to review and help standardize the preparation of
analyses before new regulations are set. In addition, states that do not
have such units should consider creating them. A more effective oversight
system at both the EU level and within member states could help to reduce
inefficient regulations and promote regulations that do more good than harm.