The Newsletter of the Science and Environmental Health Network
Carolyn Raffensperger and Nancy Myers, editors
May 2001 - Volume 6, #3
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DEMOCRACY AND THE PRECAUTIONARY PRINCIPLE
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EDITOR'S NOTE -- Special thanks to those who responded to our questions
about public interest research. We will return to that subject
in a
later issue.
This is the first in an occasional series elaborating on the major
elements of precautionary policy. As defined in the 1998 Wingspread
Statement on the Precautionary Principle, those components are:
1) action to prevent harm when science is uncertain
2) burden shifting toward proponents
3) assessing alternatives
4) transparency and democratic participation in decision making
This article, adapted from a recent Loka Alert (www.loka.org),
addresses
democratic participation.
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DEMOCRACY AND THE PRECAUTIONARY PRINCIPLE
By Joel Tickner and Lee Ketelsen
Democratic methods of decision-making are critical to implementing the
precautionary principle. The precautionary principle is also necessary
to the practice of democracy in all venues, not only the political
arena
but in the workplace and society at large.
Americans live in a representative democracy based on guaranteed
individual rights. They elect representatives who vote on laws designed
to protect public health and the environment. They vote for executives
who appoint bureaucracies to implement and enforce these laws. The
United States has a court system to punish violators of the laws, to
defend the collective good, and to protect individual rights against
the
tyranny of the majority.
But democracy has functioned poorly in protecting the health of
individuals (both in the workplace and in the community at large) and
ecosystems from environmental contamination. All aspects of the systems
set up for such protection have been undermined by economic and
political pressures, the influence of corporations, and sometimes
majority rule or indifference.
Democracy and the protection of individual and collective rights are
notoriously weak in cases in which activities may have harmful
side
effects, but current scientific methods cannot fully establish direct
cause and effect connections.
Future victims of these actions are unknown and likely to remain
unidentified. These victims cannot organize a voting block because
most
people do not know they are or will be victims, or that their children
will be. The perpetrator, the polluter, or sometimes a government agency
can use the uncertainties of the science to deny to the courts or to
the
court of public opinion that any harm is being done.
Government officials tend to react more swiftly and exercise precaution
when the victims of damage are well identified--such as victims of
infectious disease or accidents--and when cause and effect links are
clear. The same is true of members of the the public, who may
be moved
to support gun control, for example, because the danger is clear, even
if gun violence may never affect them individually. We have even gained
protections for those who have no voice in the process, such as plant
and animal species near extinction. The causes of species decline
are
known, the victims are known, and therefore protections are fought
for
and won.
Even in these cases, action takes place only long after the
victimization has begun, damage has occurred, and many have suffered.
And when the victims remain unproven or unidentified, full health
protections for people or ecosystems are rarely achieved under our
current system.
Various analysts have made this flaw in democratic process starkly
clear. Merrell and Van Strum (1990, as cited in O'Brien, 2000, p. 80)
posed the following question about pesticide risks:
"What would happen if our pesticide risk assessments were so
scientifically advanced that assessors knew not only exactly how many
people would be harmed by a particular pesticide but also which
individuals would be harmed? A permit to release a carcinogenic
pesticide into the food system, for instance, would be preceded
by a
list of those who would contract the cancer. This, however, would
constitute premeditated murder. The marked people would be entitled
to
an injunction on using that pesticide by their Constitutional right
to
life. However, bureaucrats and the private sector routinely 'get away'
with this premeditated murder because the victims are individually
anonymous."
The fact that our current system allows unidentified individuals to
be
harmed without their knowledge or consent results in the routine
violation of the individual's right to life, liberty, and the pursuit
of
happiness and our collective right to health and safety.
The precautionary principle is necessary to guarantee this basic right.
It says that if there is credible reason to believe that the actions
of
one entity will hurt another, action should be taken to protect the
potential victims.
Why Not Leave It to the Experts?
Human activities cause some harm to ecosystems, and could harm human
health. We can't live without risk. We need a process to decide the
safest ways to meet our needs. When do the benefits of an activity
outweigh the risks?
The U.S. process for arriving at those decisions is based on a system
of
elected officials, protective laws, technical experts, risk assessments,
cost-benefit analysis, public hearings, and stakeholder input. Daniel
Fiorino (1990) notes: "Many observers argue that risk decisions are
best
left to administrative officials in concert with scientific experts,
acting under instructions from elected representatives, and consulting
as necessary with interest groups representing aggregated 'public'
interests. . . . Elites, it is argued, will make more rational
decisions."
Proponents of the precautionary principle see a need for a new system
of
democratic methods that protect individual, collective, and minority
rights. Mary O'Brien (2000, p. 79) states:
"While permitting hazardous activities is unavoidable to some degree
in
a representative democracy of 250 million citizens, we must look at
the
degree to which communities are requiring and allowing government and
business to pronounce the adverse effects of unnecessary hazardous
activities acceptable when in fact the victims may not find them
acceptable at all."
A system of decision-making, called risk assessment and risk management,
has evolved that tries to establish an "acceptable risk" for some
harmful activities. The system has major flaws, not the least of which
is that it tends to exclude those affected from the decision-making
process. As O'Brien states:
"Nobody is able to define for someone else what damage is 'acceptable.'.
. . What is acceptable to any person is a matter of personal judgment,
but the word is used by risk assessment promoters as if it were
something about which everyone must surely agree. This is not
accurate.
For instance, while a state Department of Environmental Quality
may
call some amount of toxic pollution of well water acceptable, a person
who actually drinks this well water may not find any unnecessary
pollution acceptable." (O'Brien, 2000, pp. 7-8)
This technocratic process purports to put the decisions into an
objective framework but the process gives greater power to corporate
interests and tends to violate individual and collective rights
to
health. Fiorino (1990) gives three arguments against the technocratic
process:
"A substantive argument is that lay judgments about risk are as sound
or
more so than those of experts. . . . A normative argument is that a
technocratic orientation is incompatible with democratic ideals. It
is
to 'ignore the value dimension of policy analysis and to disenfranchise
the public who, in a democracy, ought to control that policy'. . .
. An
instrumental argument is that effective lay participation in risk
decisions makes them more legitimate and leads to better results."
Fiorino and others have outlined just why lay participation in
environment decisions can lead to better results:
* Lay citizens frame problems in a broader manner that is not
constrained by disciplinary boundaries and may see problems experts
do
not;
* Lay participation can bring a broader range of expertise and
experience into decision processes;
* Lay participation can expose limitations in "expert models";
* Lay judgments reflect a sensitivity to values and common sense;
* Citizens are more likely than experts to identify alternatives and
solutions;
* Citizens are more likely to "institutionalize regret - accommodate
uncertainty and consider potential errors in decisions."
The current process of regulatory decision-making contains some elements
of public participation, such as public hearings on proposals and
sometimes stakeholder committees. But as Arnstein (1969) argues,
"there
is a critical difference between going through an empty ritual of
participation and having the real power needed to affect the outcome
of
the process."
We need to make more democratic choices about what is necessary, what
is
least harmful, and what is fair.
Therefore we need to implement the precautionary principle: to take
action to protect our right to an environment that does not threaten
our health or life, and to implement democratic processes to
choose the
least harmful and most beneficial alternative technologies and methods
of meeting our needs.
Key Methods: Lay Juries and Panels
To protect individual rights to life and liberty, criminal cases in
the
U.S. guarantee the accused a fair trial with a jury of his or her peers.
When someone's life or freedom is at stake we have long trusted the
decisions of juries.
When individuals or groups believe they are being harmed by others,
civil court trials, often with juries, are available to them. For
example, a jury was entrusted to decide if tobacco companies should
pay
damages to smokers. However, when someone's life or way of life is
being
harmed by another's emission of a toxic chemical or destruction of
an
ecosystem, we turn to a state bureaucracy to make the decisions.
Perhaps these decisions should, instead, rest with independent juries
and citizen groups. Questions such as, When is there enough evidence
to
warrant action? and What should that action be? require value judgments.
Science provides vital evidence for informing the decision, but the
ultimate decision is primarily a judgment of what is necessary
and
fair.
"People should be provided with the means to work out what precaution
means for them in their own localities," write Jordan and O'Riordan
(1999) "It means exploring the worst-case scenario and searching
out
the ill-informed and possible 'losers' from a course of action, asking
what they regard as legitimate."
New democratic methods are needed for making environmental and health
decisions in the face of uncertainty. An appropriate system would
include:
* Precautionary laws, regulations, and policies to guide
decision-making;
* A democratic process to guide government decision-making on the safest
ways to fulfill our needs, that maximizes input from potential victims;
* An appeal system to citizen juries or panels.
Several models exist for both increasing potential victim input and
creating greater citizen authority over environmental decisions. These
models have not been perfected, nor have they been fully implemented
and
given legal authority, but they are being tested in the real world.
Citizen juries
Citizen juries represent a direct form of citizen participation in
decision-making processes, modeled after the criminal jury system.
Crosby (1995) contends: "A group of randomly selected citizens,
when
exposed to good information presented by witnesses from differing points
of view, is able to make good judgments on public policy matters even
though in terms of training and experience there are many people more
competent than they."
The citizen jury concept was developed by the Jefferson Center (in
Minnesota, USA), a non-profit, non-partisan facilitation organization.
A randomly selected group of 12 jurors, designed to represent the
general public, is impaneled to study a specific local or regional
public policy issue. (Juries have also been conducted on national
issues.) The facilitating organization develops a narrow charge, which
is presented to jurors at the beginning of the process.
The charge generally contains a clear statement of the problem to be
addressed, often asking jurors to chose between three or four
preselected options, and subsequent follow-up questions to consider.
The
jurors, who are paid for their time, participate in hearings over 4-5
days, facilitated by a neutral moderator. They hear from "witnesses"
presenting a wide range of views on the issue. Jury members may
question witnesses. The jurors then deliberate and issue findings and
recommendations to policy makers.
The process is designed, like a criminal jury, to examine a narrowly
defined charge. Jurors receive limited background information and
training, and the process does not promote critical inquiry into issues
outside the limited mandate (Renn, et al., 1995). As the decisions
are
made by majority vote, minority positions may not be adequately
considered in the jury discourse. And, of course, currently these jury
decisions have no legal weight.
Consensus conferences/planning cells
Consensus conferences (from Denmark) and planning cells (from Germany)
are two mechanisms that engage citizens in examining broadly defined
questions of regional or national importance. The consensus conference
has been defined in this way:
"A forum in which a group of lay people put questions about a scientific
or technological subject of controversial political or social interest
to experts, listen to the experts' answers, then reach a consensus
about
this subject and finally report their findings at a press conference."
(Joss and Durant, 1994)
The lay panel is the main actor in the process, determining the expert
panel, determining the questions to be asked, and reaching consensus.
The process consists of three steps: education and reception of
information on the topic, so that the panel members can formulate
specific questions to be explored; processing of information through
panel discussions, hearings, and questioning of experts; and group
deliberations and findings. (Dienel and Renn, 1995; Sclove and Scammel,
1999)
The process is facilitated by a neutral third party. Results are
generally widely distributed in the media and are the basis for further
local hearings.
Consensus conferences generally address broader issues than normally
addressed by experts, and they issue broader recommendations. A
Norwegian lay panel on genetically modified foods, for example, found
that such foods were not needed because the selection and quality of
food was already sufficient and there was too much uncertainty about
the
potential impacts of these foods on health and the environment.
Although cultural diversity and inequities may present challenges in
this model, a U.S. consensus conference on telecommunications, convened
by the Loka Institute (www.loka.org)
demonstrated that a diverse group
of individuals could ask detailed technical questions and issue
far-reaching recommendations on highly complex issues.
The consensus conference process is one in which "controversial and
contested knowledge will be subjected to critical scrutiny, and through
which lay citizens affected by a policy topic are provided a central
role in framing and assessing the issue, and providing
recommendations." (Fixdal, 1997)
Scenario workshops, community planning, and other models
Other models for forward-looking decision-making are vehicles for the
goal-setting and alternatives assessment that are so important to
implementing the precautionary principle. In Europe, several governments
have undertaken "scenario workshops" to develop future visions for
a
country or region. They involve different groups (residents, government,
academics, business, etc.) in the assessment of possibilities
and needs
related to future technological developments.
These workshops address broad "how" questions, such as how to develop
a
sustainable community or how to address toxic contamination. Often
goals
are set and strategies are developed to achieve those goals.
In some European countries - particularly those where workplace
co-determination is practiced - workers have been involved in production
and workplace design issues. In the U.S., sustainable community planning
exercises have been undertaken in various locations. Finally, other
models exist such as the planning models of native cultures and groups
such as the Amish, who have a long history of democratically choosing
technologies.
The Massachusetts Precautionary Principle Project is exploring using
these and other methods on a statewide level to implement the
precautionary principle in environmental health policy. The project
is
committed to establishing democratic decision-making processes for
choosing the safest alternatives to meet our needs. It is building
a
large, diverse network of health professionals, academics, advocates,
and victims of pollution and developing models for organizing toward
fundamental environmental policy change.
References
Arnstein, Sherry. 1969. A ladder of citizen participation. American
Institute of Planners Journal, July: 216-224.
Crosby, N. 1995. Citizen Juries: One Solution for Difficult
Environmental Questions. In Renn, O, et al. Fairness and Competence
in
Citizen Participation. Boston: Klewer Academic, pp. 157-174.
Dienel, P. and O. Renn. Planning cells: A gate to fractal mediation.
In
Renn, O, et al. Fairness and Competence in Citizen Participation.
Boston: Klewer Academic, pp. 117-140.
Fiorino, D. 1990. Citizen participation and environmental risk: A survey
of institutional mechanisms. Science, Technology, and Human Values
15(2), pp. 226-244.
Fixdal, J. 1997. Consensus Conferences as Extended Peer Groups.
Presented at Technology and Democracy: Comparative Perspectives, Centre
for Technology and Culture, University of Oslo, Norway, January
17-19.
Jordan A. and T. O'Riordan. 1999. The precautionary principle
in
contemporary environmental policy and politics. In Raffensperger,
C and
J. Tickner eds. Protecting Public Health and the Environment:
Implementing the Precautionary Principle. Washington, DC:
Island
Press, pp. 15-35.
Joss, S. and J. Durant. 1994. Consensus Conferences. London: National
Museum of Science and Industry.
Merrill, P and C. Van Strum. 1990. Negligible risk: Premeditated murder?
Journal of Pesticide Reform 10 (1): 20-22.
O'Brien, M. 2000. Making Better Environmental Decisions. Cambridge,
MA:
MIT Press.
Renn, O., T. Webler, and P. Wiedemann. 1995. The pursuit of fair and
competent citizen participation. In Renn, O, et al. Fairness and
Competence in Citizen Participation. Boston: Klewer Academic, pp.
339-368.
Sclove, R. and M. Scammell. 1999. Practicing the principle. In
Raffensperger, C and J. Tickner eds. Protecting Public Health and the
Environment: Implementing the Precautionary Principle. Washington,
DC:
Island Press, pp. 252-265.
********
Joel Tickner is a researcher at the Lowell Center for Sustainable
Production, Email: joel_tickner@uml.edu.
Lee Ketelsen directs Clean
Water Action-New England, Email: lketelsen@cleanwater.org.
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