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RACHEL'S ENVIRONMENT & HEALTH NEWS #801
http://www.rachel.org
September 30, 2004

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THE CHEMICAL WARS, Final Part

by Peter Montague

[Continuing:  The current system of environmental regulation
considers new chemicals and new technologies "innocent until
proven guilty." As a result, the public must "prove harm"
before alternatives will be considered. Such a system requires
large-scale harm to occur (to humans and ecosystems) before
anyone is asked to change their destructive behavior.

The present regulatory system was set up to grease the skids
for economic growth, back when the world seemed empty and
growth was needed to expand the supply of basic necessities.
But now the world is full (of humans and their stuff), and the
basic needs of everyone could be rather easily met. In this
full world of abundance, further growth requires the artificial
creation of "demand" through advertising, and it requires rapid
innovation to churn the economy. Churning the economy is
considered necessary because it offers the owning class new
opportunities for profit, regardless of whether it provides any
real benefits.

To defend themselves against a public that is dismayed by the
high price of modern "progress," corporations have wrapped
themselves in a kind of intellectual body armor called "risk
assessment" and cost-benefit analysis, both of which reduce
everything to numbers. As a result, decision-makers can no
longer consider ethical principles of right and wrong.
Democratic questions of fairness, justice and informed consent
must be set aside. The public is not allowed to ask, "Is this
the best we can do?" or "Who gets to decide?" But it doesn't
have to be this way...]

In truth, the most fundamental problems of a "risk-based"
approach lie even deeper than I have so far described. Some
cause and effect relationships between industrial contamination
and disease will most likely never be established because
causes and outcomes are multiple, latency periods are long,
timing of exposure is sometimes critical, unexposed "control"
populations do not exist, and complicating factors remain
unidentified. In many instances, combinations of these factors
are probably at work simultaneously.

Science works by simplifying reality into manageable chunks
that can be manipulated under controlled conditions. Under such
circumstances, science can sometimes clarify cause and effect
relationships between one chemical and one disease, but in the
real world, cumulative impacts of contamination from multiple
sources muddle the picture in ways that are often unknowable.
In many instances, no amount of time, money, expertise,
epidemiological investigation, or laboratory work can resolve
this fundamental conundrum. Because of these realities, we are
often faced with strong suspicion of harm combined with
irreducible scientific uncertainty and ignorance. Under these
circumstances, reliance on the "prove harm" system can only
lead to the steady erosion of human health and the biosphere,
upon which our entire economic enterprise depends.

So the "prove harm" (or "assimilative capacity") system of
environmental protection, based on risk assessment of single
options, stands discredited, bereft of scientific integrity or
validity. The system is intellectually bankrupt and has always
been so. A cynic might conclude that the system was designed to
fail and its design goal has been met.

Happily, there is another way. The European Union (E.U.) in
1994 adopted a different approach to environmental protection,
based on the "precautionary principle," and reaffirmed the
approach in 2000.[1] The E.U. and its member nations are
presently working out the details of coherent chemicals
policies based on precaution. If they succeed, it will
undermine the "growth and rapid innovation" culture. Perhaps
this is why the U.S. has mounted a major campaign to block the
European effort, using name-calling, lawsuits, and open threats
of commercial, financial and political retribution.[2]

The "precautionary principle" evolved in the 1970s from a
concept that was developed to guide environmental planning in
Germany, "Vorsorgeprinzip," which translates best as "the
principle of forecaring" but which also carries the connotation
of foresight and preparation for the future, not merely
precaution. In recent years this new idea has made its way into
several international covenants and treaties.

For example, the precautionary principle appears in Principle
15 of the 1992 Rio Declaration on Environment and Development,
as follows: "Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as
a reason for postponing cost-effective measures to prevent
environmental degradation." "Cost-effective" means "least
expensive."

Another formulation of the precautionary principle is known as
the Wingspread Statement on Precaution, which says,

"When an activity raises threats of harm to human health or the
environment, precautionary measures should be taken even if
some cause and effect relationships are not fully established
scientifically.

"In this context the proponent of an activity, rather than the
public, should bear the burden of proof.

"The process of applying the Precautionary Principle must be
open, informed and democratic and must include potentially
affected parties. It must also involve an examination of the
full range of alternatives, including no action."[3]

The Essence of Precaution:

In all formulations of the precautionary principle, we find
three elements:

1) When we have a reasonable suspicion of harm, and

2) scientific uncertainty about cause and effect, then

3) we have a duty to take action to prevent harm.

The precautionary principle does not tell us what kind of
action to take when we have reasonable suspicion of impending
(or ongoing) harm. But the Wingspread statement offers these
suggestions for action:

1) Consider all reasonable alternatives and adopt the
least-damaging;

2) Place the burden of proof of acceptable harm onto the person
whose activities raised the suspicion of harm in the first
place;

3) In making decisions, fully involve the people who will be
affected.

In sum, the precautionary principle says we should all take
responsibility for our own actions. This simple prescription
runs contrary to the fiduciary obligations of the large,
publicly-traded corporation. The managers and directors of a
publicly-traded corporation are required by law to try to
return a more-or-less steady profit to investors by any legal
means necessary. This legal requirement to consider profit
above all else creates a powerful incentive for the modern
corporation to "externalize" its costs -- that is, to get the
public to pay as many of the corporation's costs as possible,
ranging from the cleanup of toxic waste to medical care and
disability payments for a damaged workforce.

Other ways of stating the precautionary principle are more
familiar: a stitch in time saves nine; look before you leap; an
ounce of prevention is worth a pound of cure; do unto others as
you would have others do unto you; better safe than sorry. Thus
the precautionary principle has immediate appeal to most people
because they can understand it, and it makes sense to them.

The key difference between the "prove harm" system and the
"precautionary" system is the way each responds to scientific
uncertainty. Under the "prove harm" system, scientific
uncertainty creates a green light -- full speed ahead until
someone can line up the dead bodies. Victims must prove harm
before decision-makers can act.

Under a precautionary approach, scientific uncertainty flashes
a yellow light or a red light -- urging us to take preventive
action, assess all available alternatives, shift the burden of
proof of safety onto the proponents of a questionable activity,
and move ahead slowly (if at all) until we have a better idea
of what we're doing. Thus this new approach harnesses
scientific uncertainty to protect the environment and human
health. But it also demands a slower pace of innovation because
it requires careful consideration about future consequences.

Shifting the burden of proof requires the purveyors of exotic
chemicals (or other novel technologies) to provide evidence
that their activities will not interfere to an unacceptable
degree with living things -- and of course "acceptable"
requires an informed judgment by those affected. A
precautionary approach puts the burden of proof on the
corporate sector to produce information, not on government or
the public. Legal scholar Margaret Berger has proposed that we
create a new toxic tort that would condition culpability on the
failure to develop and disseminate significant data. Berger
says, "In order to minimize risk in the face of uncertain
knowledge, the law ought to concentrate on developing the
required standard of care regarding a corporation's duty to
keep itself reasonably informed about the risks of its
products. If a corporation fails to exercise the appropriate
level of due care, it should be held liable to those put at
risk by its action."[4]

Science gets at the truth through an open process of criticism
and revision; precautionary decision-making works by a similar
open process, respecting the fundamental democratic principle
that citizens should have a real say, at least some of the
time, in the decisions that affect their lives.[5] In 2001 the
European Commission of the E.U. proposed a new policy for
chemicals, called REACH (Registration, Evaluation,
Authorization of Chemicals). The original REACH proposal would
have required safety testing of 30,000 chemicals now on the
market in Europe, and pre-market testing of new chemicals. The
proposal has been summarized as, "No data, no market." The EU
had formally estimated that the REACH proposal would cost the
chemical industry $36 billion but would avoid $60 billion in
health costs to the public. Despite these public health
benefits and the obvious common sense of testing chemicals for
safety, the U.S. government and the global chemical industry
weighed in heavily against REACH, and, according to documents
leaked by United Press International, "The United States has
got 90 percent of what it wanted."[6] The final REACH proposal
requires testing of only about 6000 chemicals, and it may be
watered down further before it becomes law. The dispute over
REACH gave us all a glimpse of the raw power and ethical
priorities of the wealthiest 1% of the population.

As the European Union works out the details of its new approach
to chemicals policy, we can all keep abreast of their work at
http://www.chemicalspolicy.org, a web site maintained by the
Lowell Center for Sustainable Production at University of
Massachusetts at Lowell, and at
http://europa.eu.int/comm/environment/endocrine/index_en.htm ,
a web site on hormone-disrupting chemicals and precautionary
action, maintained by the European Commission.

No matter what the outcome of this particular skirmish in the
chemical wars, the precautionary principle has now been
adopted, in one form or another, in many international treaties
and conventions, such as the North Sea Declaration (1987), The
Ozone Layer Protocol (1987), the Ministerial Declaration of the
2nd World Climate Conference (1990), the Maastricht Treaty that
created the European Union (1994), The United Nations Law of
the Sea (2001), and the Cartagena Protocol on Biosafety (2000),
among others. In the summer of 2003, the City and County of San
Francisco adopted precaution as a guide for all their
environmental policies. The handwriting is on the wall.

It must be obvious that these precautionary ideas are
profoundly subversive of "business as usual," which is to say,
growth and innovation at any cost. Systematically assessing
alternatives, by itself, would alter the rapid innovation
system because alternatives assessment asks, "What are we
trying to accomplish and what is the least-damaging way to
accomplish it?" It would even ask, "Might we be better off
without this particular innovation?" These are questions we
could have been asking profitably for more than a century.[7]

If we learn to apply a precautionary approach to such questions
routinely, we may yet find ways to bring the chemical wars to a
peaceable close and stop the massive killing that the chemical
industry is causing today.

Conceivably, we might even be able to solve the riddle of
Humpty-Dumpty and put the world back together again. But to do
so would require us to make explicit the values underlying our
contemporary culture of rapid innovation and growth. To what
extent are we willing to share our good fortune with those less
fortunate than ourselves, within our own society, and
world-wide? Will tiny elites continue to amass uncountable
wealth and unaccountable power, or will a spreading
precautionary approach allow us, as a society, to take firm
steps to reverse these destructive trends and restore
democracy?

=====================

Reprinted with permission from: Peter Montague, "The Chemical
Wars," New Solutions Vol. 14, No. 1 (2004), pgs. 19-41.

[1] Commission of the European Communities, Communication from
the Commission on the Precautionary Principle (Brussels,
Commission of the European Community, Feb. 2, 2000). Available
at:
http://europa.eu.int/comm/dgs/health_consumer/library/pub/pub07
_en.pdf .

[2] "U.S. Threatens to Act Against Europeans over Modified
Foods," New York Times Jan. 10, 2003.

[3] Carolyn Raffensperger and Joel Tickner, editors, Protecting
Public Health and the Environment; Implementing the
Precautionary Principle (Washington, D.C.: Island Press, 1999;
ISBN 1-55963-688-2), pg. 356.

[4] Margaret Berger, "Eliminating General Causation: Notes
Towards a New Theory of Justice and Toxic Torts," Columbia Law
Review Vol. 97 (1997), pg. 2117 and following pages.

[5] Maria B. Pellerano and Peter Montague, Democracy and the
Precautionary Principle (New Brunswick, N.J.: Environmental
Research Foundation, July, 2002). Available at
http://rachel.org/library/getfile.cfm?ID=162 .

[6]. Gareth Harding, "Analysis: EU chemicals law causes stink,"
United Press International, Sept. 30, 2003.

[7] Poul Harremoes, David Gee, Malcolm MacGarvin, Andy
Stirling, Jane Keys, Brian Wynne, and Sophia Guedes Vaz,
editors, Late lessons from early warnings: the precautionary
principle 1896-2000 [Environmental Issue Report No. 22]
(Copenhagen, Denmark: European Environment Agency, 2001).

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RACHEL'S ENVIRONMENT & HEALTH NEWS
Environmental Research Foundation
P.O. Box 160
New Brunswick, N.J. 08903
Fax (732) 791-4603; E-mail: erf@rachel.org

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Permission to reprint Rachel's is hereby granted to everyone,
though we ask that you not change the contents and we ask that
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In accordance with Title 17 U.S.C. Section 107 this material is
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Some of this material may be copyrighted by others. We believe
we are making "fair use" of the material under Title 17, but if
you choose to use it for your own purposes, you will need to
consider "fair use" in your own case. --Peter Montague, editor

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