Environmental law applications of hormesis concepts: risk assessment and cost-benefit implications

This article focuses on legal structures that influence the degree to which hormesis can be incorporated into environmental law and policy. Three statutes-the Occupational Safety and Health Act, the Food Quality Protection Act, and the Clean Air Act-are used to illustrate the varied ways in which Congress, agencies and the courts have approached risk assessment and cost-benefit analyses that are relevant to the hormesis issue. This discussion features several examples of regulations and judicial decisions that have begun to recognize hormetic effects. The article concludes that hormesis concepts could be incorporated effectively into present risk assessment and cost-benefit mechanisms. In the context of agency action, an express policy decision might be made to broaden the typical scope of risk assessment and cost-benefit processes by including hormetic effects. In the judicial context, recognition of hormesis may occur where relevant statutory language is read to contemplate that an agency will consider both the beneficial and the detrimental effects of a particular substance in formulating regulations; in this circumstance, a reviewing court could reverse an agency decision that focuses solely on detrimental effects and ignores hormetic effects. Based on these evolving trends, the time may be ripe to seek further incorporation of hormesis concepts into environmental law and policy decisions.