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#787 -- Land Use and Precaution, 18-Mar-2004

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#787 -- Land Use and Precaution, March 18, 2004
by Carolyn Raffensperger* and Peter Montague

Land use decisions are ideally suited to the precautionary principle exercised under the public trust doctrine.

The precautionary principle is the "better safe than sorry" approach to decisions,[1] but what is the public trust doctrine? It is an ancient legal doctrine handed down to us from Roman law, through English law, into the law of the 13 original colonies and now the states.[2]

The public trust doctrine asserts that government has an inalienable duty (a duty that cannot be denied or given away) to protect the common wealth -- air, water, wildlife, public health, our genetic heritage, and more -- which we all inherit and own together and none of us owns individually.[2]

This may seem like an obvious role for government but in the real world many government officials behave as if their primary duty is not to protect our common heritage, but to "balance" the interests of the polluters against the interests of public health and the environment. In such a balancing act, money weighs heavily, and so we end up with a damaged natural world and large numbers of people killed each year and many more made sick. (In the workplace alone in the U.S., 55,000 are killed and an estimated 800,000 made sick each year. That's 150 funerals every day of the year, all of them preventable.[3])

Usually in such "balancing" acts, government officials use "risk assessment" to show that their decisions will only cause "acceptable" harm. But risk assessments are easily manipulated to get almost any desired answer. As a result -- whether they intend to or not -- risk assessors usually provide nothing more than a false veneer of "sound science," justifying the destruction and the killing. As William Ruckelshaus (the first administrator of U.S. Environmental Protection Agency) said in 1984, "We should remember that risk assessment data can be like the captured spy: If you torture it long enough, it will tell you anything you want to know."[4]

In essence, governments that use risk assessments to fulfill a "balancing" role are really taking sides with the killers and despoilers. Such governments provide a buffer, a giant sponge to muffle the pleas for help and the angry cries of the victims, without providing adequate relief by preventing harm. Risk assessment is still the main defense offered by "balancing act" governments on behalf of polluters, even though most risk assessments are scientifically indefensible and are therefore about as phony as a three-dollar bill.[5]

The public trust doctrine provides a legal and philosophical foundation for government to take a different approach, to steadfastly resist the destruction of nature and human health. The public trust doctrine casts government in a heroic role as guardian of the public trust -- a trust created by ancient laws, requiring the sovereign to protect the common assets that we all own together. As trustee, government must protect the trust assets (nature and human health) for the trust beneficiaries (present and future generations). Government even has a duty to protect the trust assets against harmful actions by the beneficiaries themselves, and so from time to time government must limit some of the prerogatives of private property in order to protect the common wealth for present and future generations.

In carrying out its duty to protect the public trust, government has a duty to anticipate harm, to look ahead to protect the trust against impending threats.[6] If government waits until harm can be demonstrated beyond doubt, then it will be too late -- the trust property will be damaged and government will have failed in its duty as trustee.

The precautionary principle provides a way for government to fulfill its responsibility to protect the public trust, to anticipate and avoid harm, to foresee and forestall. The precautionary principle says that, when there is reasonable suspicion of harm and there is scientific uncertainty, then we all have a duty to take action to prevent harm.[1]

However, protecting the public trust is not government's only duty. Governments are also created to establish justice, impartiality, fairness. Government's duty to "establish justice" was stated explicitly in the Preamble to the Constitution: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

The Preamble introduces a third set of duties for government -- to defend and promote the general welfare. Defend against what? First, of course, against the British navy -- a real threat in 1789, which the U.S. confronted in 1812. But surely in defending and promoting the "general welfare," government was meant to defend against all serious threats of widespread harm to the citizenry. This is the source of the "police power" that gives governments, down to the municipal level, the authority to protect public health today.

So government is imbued with a cluster of related duties -- to protect the public trust resources of the states (therefore the nation), to defend the citizenry against foreign invasion and other widespread threats and harms to public health, to promote the "general welfare" (sometimes called the "common good"), and to establish the conditions for justice. This cluster of duties defines for us which decisions are ethical (right and good) and which are not.

Land use decisions are some of the most important ethical choices made by governments.[7] When we run sewer pipes out into an orchard, to promote the growth of McMansions instead of apples, that is a decision heavy with ethical consequences. When we then attach those sewer pipes to a smelly sewage treatment plant in a part of town inhabited mostly by people of color or low income, that too is an ethical choice.

The ethical dimensions of land use decisions have long been felt by the environmental justice community because they've born the brunt of unethical and unjust decisions.

Look around. Do you suppose it is by accident that expressways, incinerators, putrid industries and garbage dumps are so often located in poor communities and communities of color? These communities have been told by the risk assessors and other government "experts" that tons upon tons of soot, fumes, and stench pose only "acceptable risks" to health and quality of life. In such situations, the burden of proof is placed on the community to prove harm, not on the government or the corporations to prove that they have done everything possible to prevent harm.

Just last week one of us (PM) watched the New Jersey Department of Environmental Protection rubber stamp a 5-year license for a garbage incinerator to continue dumping 11 million pounds of toxic pollutants -- including 10,000 pounds of toxic lead in the form of a fine dust -- into a predominantly black and Hispanic residential neighborhood in Camden City. The government's risk assessment "proved" that the cancer risk from the incinerator is "acceptable" -- without ever considering any other harms from the toxic lead, or the 100 tons of deadly toxic soot. This is government performing its "balancing act" in its most venal and deadly form. The term "unethical" barely captures the enormity of the evil embodied in such a land use decision -- and this from a state government that claims it is committed to environmental justice, the precautionary principle, and the public trust doctrine. Beware of slick bureaucrats armed with risk assessments.

Land use planners have a term for unpopular projects -- Lulus -- locally unwanted (or "unacceptable") land uses. Typically, when making the decision to impose Lulus on communities of color or low income, alternative ways of solving the problem are not publicly considered. And usually the promised jobs never materialize or they go to people outside the community. The result is a spiral of injustice -- poverty, disease and environmental degradation caused by unethical land use decisions made by "balancing act" governments shilling for corporate "developers."

The precautionary principle has advanced in the United States as a direct response to this spiral of injustice. As defined in the Wingspread Statement, the precautionary principle 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 (this principle) must be open, informed and democratic and must include potentially affected parties. It must involve an examination of the full range of alternatives, including no action."[8]

A key element of the precautionary principle is its blend of science and ethics. Precaution stands for the idea that we should protect the public good in the face of scientific uncertainty and the likelihood of harm. This is, at its heart, an ethical position. Of course honest and thorough science is essential for guiding precautionary action, but as the Europeans are fond of saying, "Science should be on tap, not on top."[9] Our land-use choices must by guided first by our ethical values, with the help of the best available science.

Governments in Europe have begun to embrace the precautionary principle in a systematic way, and they are now working out the practical details of precautionary decision-making.

Some states in the U.S. have begun to toy with precautionary ideas, but it is at the municipal level where precaution has really flourished. Now an enlightened organization of local government officials has recognized the profound harms caused by unethical land use decisions, and has begun to advocate for the precautionary principle as a way of doing better. In September, 2003, the National Association of County and City Health Officials (NACCHO) passed resolution 03-02 laying out the problem.[10] They said (in part),

"WHEREAS, land use decisions may contribute to:

"Health inequities; an increase in health and safety risks, poor quality housing, unstable neighborhoods, unsustainable ecosystems, and poor quality of life can be created; asthma mortality is approximately three times higher among African-Americans than it is among whites; the elderly and people with disabilities are disproportionately affected by a lack of sidewalks and depressed curbs; and

"Chronic disease; more than 25 percent of adults in the United States are obese, and more than 60 percent do not engage in enough physical activity to benefit their health; research has shown that a healthy diet and physical activity can prevent or delay type 2 diabetes; and

"Increased traffic congestion, reliance on the automobile, and increased pedestrian and bicyclist vulnerability; commuting stress has increased in recent years, while there has also been a decline in social capital (community connectedness); one pedestrian is killed in a vehicle accident every 108 minutes and injured every 7 minutes; and

"Decreased air quality and increased pollution emissions; motor vehicles are the largest source of manmade urban air pollution, and the EPA attributes 64,000 premature deaths per year to air pollution; between 1980 and the mid 1990's, the rate of people with asthma rose by 75 percent; and

"Decreased water quality; according to the EPA, soil erosion, and destruction of wetlands threaten surface and ground water quality, which may be drinking and/or recreational water sources; runoff from point and non-point sources pollute waterways, and is exacerbated when the amount of impervious surface in an area is increased; and

"Loss of greenspace and land conversion; greenspace provides benefits for air and water quality, as well as for the physical and mental health of people; sprawling development consumes 1.2 million acres of productive farmland per year; according to the American Farmland Trust, land is being developed at two times the population growth rate; and

"Inappropriate hazardous materials facilities siting, transportation, and storage; exposure to heavy metals has been linked with certain cancers, kidney damage, and developmental retardation; and areas zoned for hazardous materials storage that contain toxic-waste facilities are often located near housing for poor, elderly, young, and minority residents ...."

After calling for the precautionary principle, the NACCHO resolution suggests three ways to make it work:

** integrate public health perspectives and practice (which are based on prevention) into land use planning;

** ensure early, sustained, and effective participation by affected community members in all stages of land use and zoning decisions; and

** dedicate more resources to getting public health people involved in land use decisions through training, development of tools, technical assistance and other support.

The question then becomes, How will we know a precautionary land-use decision when we see one? In other words, how can we tell whether a decision will promote the health and sustainability of our communities?

People who advocate for "sustainable agriculture" have a useful definition that combines three simple ideas. They say sustainable communities must be "economically viable, socially just, and ecologically sound."[11] Let's look at these three criteria:

1. Economically Viable

One way to think about the economics of a land-use decision is to ask whether it will increase the wealth that flows into the community or whether wealth will hemorrhage out. For instance, a big box store that doesn't use local suppliers or local banks can create a colonial economy, siphoning money away to enrich a distant corporation. Similarly, land use proposals can be judged by the number of community- supporting jobs they will create, meaning jobs that pay a living wage and are actually filled by community members.

Another aspect of economic viability is reducing economic inequality. We have an extensive medical literature showing that economic inequality and ill health are strongly correlated. It's not just that poverty causes illness and death, it's that inequality itself -- the chasm between the top and bottom -- causes poor health. Low income forms part of the picture, but equally important are social exclusion, feelings of powerlessness, chronic anxiety, insecurity, low self esteem, social isolation (racism, for example), and the sense that life is out of control -- all of which contribute significantly to heart disease, depression and other debilitating and deadly ailments. Thus steps to reduce inequalities are basic requirements of public health and community viability.[12]

Land use decisions can enrich the few at the expense of the many or they can increase the common wealth and promote the general welfare.

Everyone involved must honestly ask, "Does this proposal improve the economic viability of our community?"

2. Socially Just

As the environmental justice community knows, land use decisions are often unjust. Unethical land-use is where environmental injustice begins. To ensure ethical land use decisions, the principles of environmental justice and full community participation must be incorporated into land use planning and zoning. People of color and those with low income must be represented in decisions. (Why are zoning boards so white, so male, so middle-aged?) Furthermore, transportation planning and investments must support and strengthen communities rather than destroying them.[13]

Everyone involved must honestly ask, "Does this proposal increase justice and fairness within our community and in relation to other communities?"

3. Ecologically Sound

Clean air, good drinking water, adequate parks and open space, are all essential components of the "public good." These environmental assets must be protected from unethical land use decisions. Alternatives should be fully considered and the least damaging ways of meeting the community's goal should be selected. Furthermore, community goals must not be set by the local "growth establishment" -- the land "developers," financiers and lawyers who traditionally "improve" local land for their own gain, often greatly diminishing the common wealth. Affected communities should be enabled to set their own goals and speak for themselves.

Everyone involved must honestly ask, "Does this proposal increase the ecological health of our community?"

Too often land use decisions have protected endangered species but put children in harms way. Jobs have been traded for clean air. Or clean air has been sacrificed for another highway. These trade-offs aren't sustainable because they ignore one or another of the 3 criteria: economic viability, social justice and ecological sustainability.

By using these three tests for judging precautionary action in land use decision-making, governments are more likely to prevent the harms caused by decades of unethical land-use decisions.

Communities are now using these ideas and holding governments accountable for their public trust responsibilities. For example, the Environmental Health Coalition (EHC) in San Diego, California, conducted a successful 10-year land-use and zoning campaign to shut down a chrome plating shop that had contaminated nearby homes with chromium-6, a powerful carcinogen. EHC and its partners forced the San Diego City Council to modify the city's zoning and community plan. Shutting down the polluter -- a notorious convicted violator of emission standards -- gave the Barrio Logan neighborhood an estimated 75% reduction in chromium pollution and it increased the likelihood that city officials would view future land-use decisions in a new light. [13]

Three cheers to NAACHO for its powerful resolution asserting the rightful role of government to protect the public trust by using the precautionary principle in land-use decisions!

And a million cheers to all the community groups who have struggled for years against injustice! Their struggles are paying off for all of us, helping create a better world that is a more economically viable, socially just and ecologically sound.


* Carolyn Raffensperger is director of the Science and Environmental Health Network in Ames, Iowa; http://www.sehn.org

[1] Ted Schettler, Katherine Barrett, and Carolyn Raffensperger, "The Precautionary Principle: Protecting Public Health and the Environment," unpublished paper dated 2003; available at http://www.rachel.org/library/getfile.cfm?ID=187

[2] Peter Manus, "To a Candidate in Search of an Environmental Theme: Promote the Public trust," Stanford Environmental Law Journal Vol. 19 (May 2000), pg. 315 and following pages. Available at http://www.rachel.org/library/getfile.cfm?ID=234

[3] K. Steenland and others, "Dying for work: The magnitude of US mortality from selected causes of death associated with occupation," American Journal of Industrial Medicine Vol. 43, No. 5 (2003), pgs. 461- 82; and J.P. Leigh and others. Occupational Injury and Illness in the United States. Estimates of Costs, Morbidity and Mortality. Archives of Internal Medicine. Vol. 157, No. 14 (1997), pgs. 1557-1568.

[4] William Ruckelshaus, "Risk in a Free Society," Risk Analysis Vol. 4, No. 3 (1984), pgs. 157-162. Available at http://www.rachel.org/library/getfile.cfm?ID=361

[5] For a recent critique of risk assessment, see Peter Montague, "Chemical Wars," New Solutions Vol. 14, No. 1 (2004), pgs. 19- 42. In press.

[6] James T. Paul, "The Public Trust Doctrine: Who Has the Burden of Proof?" Paper presented July, 1996 in Honolulu, Hawaii, to a meeting of the Western Association of Wildlife and Fisheries Administrators. Available at http://www.rachel.org/library/getfile.cfm?ID=190

[7] Timothy Beatley, Ethical Land Use (Baltimore: John Hopkins University Press, 1994). See especially chapter 15.

[8] The Wingspread Statement on the Precautionary Principle. Unpublished, dated January, 1998. Available at http://www.rachel.org/library/getfile.cfm?ID=189

[9] See, for example, Andrew Stirling, On Science and Precaution in the Management of Technological Risk, Vol. I. A Synthesis Report of Case Studies (Brussels, Belgium: European Science and Technology Observatory, May, 1999.) Available at http://esto.jrc.es/detailshort.cfm?ID_report=289

[10] National Association of County and City Health Officials (NACCHO), Resolution 03-02 to Support Land Use Planning/Community Design, dated Sept. 9, 2003. http://www.rachel.org/library/getfile.cfm?ID=337

[11] "A sustainable agriculture must be economically viable, socially responsible, and ecologically sound. The economic, social, and ecological are interrelated, and all are essential to sustainability. An agriculture that uses up or degrades its natural resource base, or pollutes the natural environment, eventually will lose its ability to produce. It's not sustainable. An agriculture that isn't profitable, at least over time, will not allow its farmers to stay in business. It's not sustainable. An agriculture that fails to meet the needs of society, as producers and citizens as well as consumers, will not be sustained by society. It's not sustainable. A sustainable agriculture must be all three -- ecologically sound, economically viable, and socially responsible. And the three must be in harmony." --- Dr. John E. Ikerd, Extension Professor, University of Missouri. Go to http://www.victoryseeds.com/information/glossary.html and look for "sustainable agriculture."

[12] See Rachel's #497, #584 and #654; and see Richard Wilkinson, Unhealthy Societies: The Afflictions of Inequality (New York: Routledge, 1997; ISBN: 0415092353); and see the bibliography in D. Raphael, Inequality is Bad for Our Hearts: Why Low Income and Social Exclusion Are Major causes of healrt Disease in Canada (Toronto: North York Heart Health Network, 2001). And see, for example: Ana V. Diez Roux and others, "Neighborhood of Residence and Incidence of Coronary Heart Disease," New England Journal of Medicine Vol. 345, No. 2 (July 12, 2001), pgs. 99-106. And: Michael Marmot, "Inequalities in Health," New England Journal of Medicine Vol. 345, No. 2 (July 12, 2001), pgs. 134-136. And see the extensive bibliographies in the following: M. G. Marmot and Richard G. Wilkinson, editors, Social Determinants of Health (Oxford and New York: Oxford University Press, 1999; ISBN 0192630695); David A. Leon, editor and others, Poverty, Inequality and Health: An International Perspective (Oxford and New York: Oxford University Press, 2001; ISBN 0192631969); Norman Daniels and others, Is Inequality Bad for Our Health? (Boston: Beacon Press, 2000; ISBN: 0807004472); Ichiro Kawachi, and others, The Society and Population Health Reader Volume I: Income Inequality and Health (New York: New Press, 1999; ISBN: 1565845714); Alvin R. Tarlov, editor, The Society and Population Health Reader, Volume 2: A State Perspective (New York: New Press, 2000; ISBN 1565845579).

[13] Martha Matsuoka, compiler, Building Health Communities from the Ground Up: Environmental Justice in California. (Oakland, Calif.: Asian Pacific Environmental Network [APEN] and others, Sept. 2003. Available at http://www.rachel.org/library/getfile.cfm?ID=360

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Rachel's Democracy & Health News (formerly Rachel's Environment & Health News) highlights the connections between issues that are often considered separately or not at all. The natural world is deteriorating and human health is declining because those who make the important decisions aren't the ones who bear the brunt. Our purpose is to connect the dots between human health, the destruction of nature, the decline of community, the rise of economic insecurity and inequalities, growing stress among workers and families, and the crippling legacies of patriarchy, intolerance, and racial injustice that allow us to be divided and therefore ruled by the few. In a democracy, there are no more fundamental questions than, "Who gets to decide?" And, "How do the few control the many, and what might be done about it?" As you come across stories that might help people connect the dots, please Email them to us at dhn@rachel.org. Rachel's Democracy & Health News is published as often as necessary to provide readers with up-to-date coverage of the subject. Editors: Peter Montague - peter@rachel.org Tim Montague - tim@rachel.org ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::::::::::::::::: To start your own free Email subscription to Rachel's Democracy & Health News send a blank Email to: rachel-subscribe@pplist.net. In response, you will receive an Email asking you to confirm that you want to subscribe. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::::::::::::::::: Environmental Research Foundation P.O. Box 160, New Brunswick, N.J. 08903 dhn@rachel.org