After a review of the norm as it is inscribed throughout the corpus of American law, Heinzerling observes that this norm animates our concern with pollution:

The ethical commitment against knowing killing can also be seen in modern regulatory statutes. Several modern environmental laws prohibit knowingly releasing hazardous substances into the air or water or onto the land while knowing at the time that these releases are placing another person in “imminent danger of death or serious bodily injury.” The Clean Air Act, for example, prohibits knowingly releasing hazardous air pollutants into the ambient air in situations in which one knows that these releases are placing another person in imminent danger of death or serious bodily injury. These releases are criminal acts, and people who commit these acts may be sent to prison for up to 15 years. Although here the offense is knowing endangerment, not knowing killing, the Clean Air Act’s prohibition must flow from the general norm against knowing killing. Why would life-threatening endangerment matter if killing did not?

In this light, cost-benefit analysis becomes the ethically challenged practice of counting up the number of people we expect to allow a company to kill:

[T]here is a well-established legal norm -- reflecting, I believe, a well-established moral commitment -- against one person knowingly killing another person. This norm is reflected in traditional laws against murder, in modern regulatory laws prohibitions on knowing endangerment, and in old-fashioned tort judgments. This norm reflects, among other things, a widely shared aversion to one person making the decision about death for another person. It reflects an aversion to one person calculating in relation to another person that “it's okay by me” if she dies — or, in fact, “it works for me.” According to the norm I have described, this kind of calculation not only does not deactivate the norm against knowing killing, but indeed, the calculation itself helps to prove that the norm has been violated. In this regard, recall that some state laws make the definition of murder turn on a pre-killing weighing of the choice whether to kill.

Cost-benefit analysis in the context of life-threatening environmental risks involves a pre-killing weighing of the choice whether to kill. In this setting, economic costs are balanced against the value, stated in terms of dollars, of the people who will be killed by the environmental hazards in question unless pollution-reducing strategies are deployed. The dollar value of the people who will be killed is determined by considering the monetary value that people place on relatively small risks to themselves, in contexts such as workplace settings where they might demand an extra wage for extra risky work. These monetary values for risk are summed to produce a value of a “statistical life” -- the value associated with the loss of one life through the imposition of fairly small risks on a population of people.

I think it is obvious that cost-benefit analysis does not redeem knowing killing. Indeed, from what I have just said, it seems clear that using cost-benefit analysis to decide in favor of killing another person makes the killing worse, not better, from a legal and ethical perspective....

Download Lisa Heinzerling, "Knowing Killing and Environmental Law" (2006).

Posted by Robert Shull, 10:27:06 AM