Scholar argues that regulators should value the lives of animals in their benefit-cost analyses.
A regulation may have the unintended effect of protecting dogs, horses, or cats from being killed or hurt, but regulators might never know. This is because the regulatory impact analyses regulatory agencies prepare usually do not explore regulations’ costs and benefits with respect to animals.
In a recent article, Cass Sunstein, a professor at Harvard Law School, argues that regulators should value animals, despite the challenges of measuring regulations’ impact on them. Sunstein argues that the well-being of animals is important because the death, illness, or injury of an animal is a morally cognizable loss.
Executive Order 13,563 states that agencies should “use the best available techniques” when conducting a benefit-cost analysis, encouraging agencies to “consider (and discuss qualitatively) values that are difficult or impossible to quantify.” Sunstein argues that the executive order calls on regulators to consider animals, because reducing harms to animals counts as a type of benefit that is “difficult or impossible to quantify.”
Addressing the counterargument that Executive Order 13,563 applies only to humans, Sunstein points out that some regulations specifically seek to protect the lives of animals. Rules adopted under the Endangered Species Act, the Animal Welfare Act, and the Marine Mammal Protection Act are some examples.
Sunstein explains that even if the law does not specifically require agencies to address reduced harms to animals, agencies have good reason to do so. Agencies often explore consequences of a regulation that are not part of the regulatory analysis by law—for example, if a regulation would cost a great deal, people should be made aware of that fact, even if the agency must proceed on a cost-blind basis.
Agencies’ failure to consider benefits to animals, despite their ability to do so—and what Sunstein sees as their importance of doing so—could support an argument that they are acting arbitrarily under the Administrative Procedure Act. Sunstein suggests that it would be arbitrary to fail to consider benefits or costs to animals, in terms of their health and mortality.
Sunstein acknowledges that there are significant challenges associated with assessing a regulation’s impact on animals. Yet he also notes that some of these challenges are not unlike to those that regulators encounter when valuing the lives of humans or impacts on children.
It is well known that a principal driver of benefits calculations for many regulations is the value of a statistical human life, or VSL. Regulators typically use a VSL of around $12 million to estimate mortality effects on adult humans. When producing monetary amounts for statistical risk, including calculating VSL, agencies rely on two kinds of evidence: market evidence of employees’ compensation levels for risk, and survey research on individuals’ willingness to pay to reduce statistical risk. Each type of evidence presents challenges to regulators when dealing with humans. For example, with respect to labor market evidence, workers do not make decisions solely based on mortality. With surveys, the questions are hypothetical and respondents to the studies may be unfamiliar with the question. Furthermore, people are simply not always sufficiently informed or rational.
Sunstein suggests that if these challenges can be sufficiently overcome with respect to impact on human lives, they need not act as a reason to exclude the effects of regulations on nonhuman lives.
Sunstein points to the challenges with valuing the lives of children. One could say that childrens’ willingness to pay to avoid risk is zero because they have no money and are not in the labor market, but no one would seriously suggest that this means that children’s lives have no value. Sunstein argues that the same is true for animals.
Sunstein proposes that agencies factor animal well-being into their cost-benefit analyses, despite the challenges of doing so. He also suggests that these efforts to quantify costs and benefits for animals need not require monetizing these impacts. For example, agencies could explore cataloging and quantifying regulations’ impact on animals, even if the methods do not result in calculations that resemble a human VSL.
Because agencies can and should investigate their regulations’ impact on animals, Sunstein concludes that agencies would engage in legally arbitrary decision-making if they altogether avoid taking on this task.
