Seventh Biennial Report of the IJC, June 15, 1994
INTERNATIONAL JOINT COMMISSION SEVENTH BIENNIAL REPORT
[Rachel's introduction: The U.S. was first introduced to the precautionary principle by the visionary leadership of conservative Republican Gordon Durnil who saw that precautionary action is the only hope for restoring and protecting the Great Lakes.]
[RPR introduction: In the U.S., precautionary thinking began in the Great Lakes.
In 1978 the U.S. and Canada had signed a "Great Lakes Water Quality Agreement," binding both nations to "virtually eliminate persistent toxic substances" from the Great Lakes ecosystem. In 1990, 1992, and 1994 the IJC described a "virtual elimination strategy" to get persistent toxic chemicals out of the Great Lakes and keep them out.
During 1990-1994 the International Joint Commission (IJC) published reports laying out a strategy for the "virtual elimination" of toxic chemicals from the Great Lakes. The IJC is a government agency created by the Boundary Waters Treaty of 1909 between the U.S. and Canada.
These early IJC reports started a revolution in thinking.
We believe these IJC reports of 1990, 1992, and 1994 are the first time a U.S. government agency explicitly embraced a precautionary approach. So you can hear the original language, here is a portion of Chapter 3 from the 7th Biennial Report of the IJC (1994).
At the time this report was written, the U.S. chairperson of the IJC was Gordon Durnil, a strong environmentalist and conservative Republican.]
Excerpt from CHAPTER THREE (of the IJC's 7th Biennial Report, 1994)
Strategic Thinking and the Need for Further Change
Persistent Toxic Substances: The Commission's Position
As research findings demonstrate linkages between persistent toxic substances and biological injury, they continue to reinforce the Commission's conclusions, which are fundamental to its proposed policy approach:
** persistent toxic substances are too dangerous to the biosphere and to humans to permit their release in any quantity, and
** all persistent toxic substances are dangerous to the environment, deleterious to the human condition, and can no longer be tolerated in the ecosystem, whether or not unassailable scientific proof of acute or chronic damage is universally accepted.
The Commission reiterates its stance that the very existence of human- produced persistent toxic substances in the Great Lakes ecosystem is inconsistent with maintaining the integrity of the ecosystem and hence with the Purpose of the [1978 Water Quality] Agreement [between the U.S. and Canada]. The Great Lakes Water Quality Board has confirmed that the risks to humans are high, that there is a real probability of substantial effects, and that such injury from certain persistent toxic substances merits immediate measures to protect human health.
The characteristics of persistent toxic substances make them much less amenable to traditional pollution control efforts such as discharge limits to set acceptable levels in the environment, end-of-the-pipe technology and disposal regulations.
The idea of a non-zero "assimilative" capacity in the environment or in our bodies (and hence allowable discharges) for such chemicals is no longer relevant. The Great Lakes Water Quality Board supports this view, concluding that there is no acceptable assimilative capacity for persistent, bioaccumulative toxic substances. It states, therefore, that the only appropriate water quality objective is zero, even though interim objectives may be needed.
Within the environment's carrying capacity for human activity, there is no space for human loadings of persistent toxic substances. Hence, there can be no acceptable loading of chemicals that accumulate for very long periods, except that which nature itself generates.
Moreover, conventional scientific concepts of dose-response and acceptable "risk" can no longer be defined as "good" scientific and management bases for defining acceptable levels of pollution. They are outmoded and inappropriate ways of thinking about persistent toxics.
The production and release of these substances into the environment must, therefore, be considered contrary to the [1978 Water Quality] Agreement legally, unsupportable ecologically and dangerous to health generally. Above all, they are ethically and morally unacceptable.
The limits on allowable quantities of these substances entering the environment must be effectively zero, and the primary means to achieve zero should be the prevention of their production, use and release rather than their subsequent removal.
Consequently, vigorous policy is needed to eliminate all persistent toxic substances, except in very specialized, unavoidable, controlled and hopefully temporary applications.
While a broad attack on these substances is required, we must begin somewhere. The Commission has previously proposed beginning with eleven Critical Pollutants* and still supports this approach. At the same time, the Commission has concluded that organochlorines are a major class of pollutants that should be addressed collectively due to their large number and the egregious characteristics of many of them.
Precaution in the introduction and continued use of chemical substances in commerce is a basic underpinning of the proposed virtual elimination strategy. It is generally agreed, in principle, that the burden of proof concerning the "safety" of chemicals should lie with the proponent for the manufacture, import or use of at least substances new to commerce in Canada and the United States, rather than with society as a whole to provide absolute proof of adverse impacts.
This principle should in the Commission's view, be adopted for all human-made chemicals shown or reasonably suspected to be persistent and toxic, including those already manufactured or otherwise in commerce. The onus should be on the producers and users of any suspected persistent toxic substance to prove that it is, in fact, both "safe" and necessary, even if it is already in commerce. As one participant at the October 1993 Biennial Meeting said, "Chemicals are not innocent until proven guilty, people are."
Canada's Environmental Protection Act provides for the review of existing substances and control of dangerous substances, but its implementation has been slow to address specific chemicals for regulation. It also appears possible that legal challenges will further render it ineffective in controlling persistent toxic substances. Provincial action under Ontario's Municipal-Industrial Strategy for Abatement (MISA) can also be used to eliminate discharges of persistent toxic substances.
The United States Government has stated that available mechanisms can be used to invoke regulatory action without definitive proof of a causal relationship. However, the Toxic Substances Control Act, which is used to screen the introduction of new chemicals, has to date failed to screen out many chemicals. Among existing chemicals, it has only limited the use and manufacture of PCBs. The Great Lakes Water Quality Board concluded that the act has been rendered ineffective for the timely control of existing chemicals.
The available approaches have not, in practice, been effective in either country to screen a multitude of chemicals. A realistic review of what chemicals have, in fact, been removed from commerce indicates that the current approach does not provide an effective screening process. Again, the Great Lakes Water Quality Board emphasized that the problem lies not with the basic legislation, but with "significant barriers to the effective implementation of this authority."
The basis for a precautionary approach and reverse onus can also be found in the Agreement. It is the unequivocal statement of the Parties to the Agreement that they intend to pursue an objective of virtual elimination of inputs within a philosophy of zero discharge of persistent toxic substances. These are forward-looking provisions, even if they were focused at the time on regulatory and technological solutions. However, society as a whole is beginning to realize the importance and implications of this approach, as it come to grips with the immensity of the persistent toxics problem. Even less well advanced is a determination to implement virtual elimination rigorously as a way to deal with persistent toxic substances. Pollution prevention programs, while an important step forward, do not necessarily enshrine this concept.
Weight of Evidence
The 1992 Biennial Report also urged adoption of a "weight of evidence" approach to reaching conclusions on these issues. This approach takes into account the cumulative weight of the many studies that address the question of injury or the likelihood of injury to living organisms. If, taken together, the amount and consistency of evidence across a wide range of circumstances and/or toxic substances are judged sufficient to indicate the reality or a strong probability of a linkage between certain substances or class of substances and injury, a conclusion of a causal relationship can be made.
This conclusion is made on the basis of common sense, logic and experience as well as formal science. Once this point is reached, and taking a precautionary approach, there can be no defensible alternative to recommending that the input of those substances to the Great Lakes be stopped. As noted above, the burden of proof must shift to the proponent (manufacturer, importer or user) of the substance to show that it does not or will not cause the suspected harm, nor meet the definition of a persistent toxic substance.
The Commission's definition of "weight of evidence" is a pragmatic one and not based on arbitrary rules or formulae. It is consistent with the use of this term in science and law. The Commission's use of this term has, however, generated considerable discussion and different concepts from the perspective of various disciplines. Also, the question of standard of evidence in this field is evolving. Scholars and practitioners have been encouraged to consider more precise definitions.
The Great Lakes Water Quality and Science Advisory Boards, and the two federal governments in their responses to the 1992 Biennial Report, have all accepted such an approach in principle. It is clear, however, that in practice its application can result in different outcomes. This appears to be the case with chlorine, because of different standards of evidence or different levels of acceptable probability. Governments, industry and other participants in the policy arena should collaborate to codify a set of guidelines as to what factors should be taken into account in weighing evidence.
Another relevant procedure is risk assessment. Clearly, the process of assessing the relative risks to the environment and/or humans from alternative actions is useful for some purposes. Both countries have formal frameworks for risk assessment that are, by and large, compatible, although some discrepancies in methodology exist and improved integration of human health and environmental risks is needed. Risk assessment is useful in decision-making, especially in setting action priorities, but is not directly relevant to the basic virtual elimination commitment. The Commission does not accept the argument that the elimination of persistent toxic substances should be subject to a risk-benefit calculation, as that is not the approach of the [1978 Water Quality] Agreement.
When risk assessment is used to provide information, however, it is important to pay careful attention to the communication of that risk information to the public. Underlying assumptions and caveats, as well as the question of different perceptions of risk across jurisdictional boundaries, also must be communicated. Of specific concern is the lack of uniformity in sport fishing advisories. The Great Lakes Water Quality Board recommended collective effort among state and provincial authorities to develop joint public advisories to ensure uniformity. Furthermore, there is a lack of any public risk information in most other circumstances.
A fuller accounting of environmental, economic and social values is also needed when making decisions. At one level, the determination of what natural resources are being used in human processes should be part of economic accounting. Similarly, the ramifications of "environmental" policy changes, which affect the amount of resources available for production and consumption (including reduction of the ability to pollute or use traditional technologies), must also be taken into account.
In some cases, it will not be possible to eliminate substances in use "overnight," especially if acceptable substitutes are not readily available, as that could cause serious short-term economic and social disruption. However, to continue to introduce new products without this accounting, and to continue resisting a strategy that changes our production and consumption habits and moves away from reliance on persistent toxic substances, will be disastrous in the long term from all perspectives. Again, a reasoned but sure process of transition, and a new way of thinking about production and consumption decisions, are needed.
In 1986, the World Health Organization used its definition of health as a starting point for the Ottawa Charter for Health Promotion (Ottawa Charter). It emphasizes the dependence of health on the environment and identifies peace, shelter, food, education, income, social justice, equity, the maintenance of a stable ecosystem and sustainable resource development as components of health. It is not sufficient for governments, industry and commerce to react only to proven instances of injury. They also must provide a preventive program to enhance personal and societal security against unintentional intrusions on human health, at the same time other basic needs and a high quality of life are met.
While not widely recognized in practice to date, this philosophy is consistent with the ecosystem concept of the Great Lakes Water Quality Agreement, as well as the sustainable development concept embraced by the United Nations World Commission on Environment and Development (Brundtland Report). This also has subsequently become the policy of both federal and several state and provincial governments.
Just as human health is dependent on the absence of environmental degradation, however, ecosystem integrity is dependent on more than environmental quality. It also must include economic, social, cultural and political dimensions, not the least of which is a healthy population and healthy communities. The Commission has previously observed that "long-term economic sustainability, including the existence of a healthy and creative work force, depends on a healthy environment. Paradoxically, a healthy environment depends on the existence of vibrant local and regional economies."
Despite these efforts, an assessment of the overall policy response to the environmental health studies and public concern to date must be characterized as limited and disappointing. The mainstream response from individuals in government, industry and elsewhere is to debate the reality or magnitude of the risk to the health of humans and other components of the ecosystem. Even if the issue is recognized, the focus tends to be on setting priorities, developing lists, devoting resources to avoid action and lobby against it, largely on the basis of debatable short-term economic impacts, rather than on coming to grips with and addressing the enormity of the problem.
Chemical and associated industries have an obligation to protect human and other populations from the adverse effects of substances they bring into existence and use. The Commission recognizes and congratulates those industrial representatives who have responsibly engaged in dialogue with the Commission and others, and have taken pioneering steps to address these problems. It is important and inevitable that the business sector act increasingly to lead rather than resist a broad movement towards manufacturing processes that eliminate the production and use of persistent toxic substances, and that they embrace a new, ecosystemic approach to business and governmental decision-making.
One progressive aspect of the Agreement and the Commission's work pursuant to it has been the emergence of a Great Lakes-St. Lawrence ecosystem "community" and numerous more specific communities-of- interest under that umbrella. This development occurred first in the community of scientists working across jurisdictions and disciplines to enhance learning, understanding and the efficient use of resources. In recent years, the active community of Great Lakes interests has expanded greatly. A variety of new organizations have emerged over the past decade focusing on regional concerns.
Several governmental institutions have evolved to address Great Lakes ecosystem issues. This phenomenon has included a refocusing of the Great Lakes Commission, the Great Lakes Fishery Commission and the Council of Great Lakes Governors. A number of nongovernmental and municipal organizations also have involved interested citizens and specific interests. These citizens and organizations tend to begin at a nontechnical level, but become increasingly more sophisticated in knowledge and approach. A wide range of organizations fit this description, such as Great Lakes United, the Council of Great Lakes Industries and the International Great Lakes-St. Lawrence Mayors' Conference, to name only a few examples.
The Commission encourages this process and its broadening to new areas of the Great Lakes community of interest. Organizations whose mission is to inform and activate the general public should strive to broaden their membership and audience, by improving their media and public affairs approaches and the coordination among organizations to ensure consistent, accurate messages. All of these bodies have played an important role, even if temporary, in the institutional component of the Great Lakes ecosystem.
The voluntary sector is a key component in broadening Agreement awareness and involvement. This sector needs to be encouraged within the Great Lakes institutional mosaic, but the organizations and movements involved, while enthusiastic, are often stymied by lack of scientific data and interpretive skills. The Commission's Great Lakes Science Advisory Board has emphasized that empowerment, participation and involvement of the entire Great Lakes community in the achievement of the goals of the Agreement is vital to its success.
Scientists should make themselves available to communicate with these groups and with their local communities at large. Employers, whether governments, private sector or academia, should permit and encourage such mutually beneficial linkages. Universities, colleges and other institutions of higher education in particular have a function in supporting the wider Great Lakes community. Beyond their educational roles, they can serve as catalysts to bring scientists, industries, governments and citizens together to learn from one another and to develop coordinated action plans....
Geographically, the Great Lakes ecosystem does not stop at the map boundaries specified in the Agreement. Ecosystem boundaries are neither fully jurisdictional, geophysical or even demographic in their definition. They differ for the water, biological, atmospheric and human dimensions of the ecosystem. The scope of an ecosystem's boundaries can also differ depending on what economic, social or political parameters are being considered.
Ecologically, the Great Lakes Basin Ecosystem clearly extends downstream from the Agreement boundary at the end of the international section of the St. Lawrence River, deep into Quebec and possibly to the St. Lawrence estuary. There is evidence, for example, that contaminants are passing downstream from the Cornwall-Massena area and into the flesh of marine mammals and fish. This is a geographical and ecological reality requiring that, at a minimum, concern and dialogue should extend beyond the current "legal" Agreement boundaries. Whether or not these formal boundaries of the Agreement merit reconsideration at an appropriate time, from the Commission's ecosystemic standpoint, the issue will eventually need to be addressed in some manner if a fully ecosystemic approach is to be achieved.
In a number of ways, therefore, a significant modification of institutions and attitudes is required to help resolve Great Lakes Basin Ecosystem issues. The policy frameworks exist and are subscribed to by both federal governments. This allows a new way of thinking and mobilization of concern to move forward....
The Commission also believes that our two nations are still at a turning point of opportunity. They can still make a difference. The legacy we choose to leave for future generations can be either one of diminished options and well-being, or an enhanced one. To choose the latter, a strong, coordinated plan of action with target dates is urgently needed. It should be designed to effect a new way of doing business, and be based on the consideration of six basic principles:
The Governments of the United States and Canada, along with the relevant states and provinces, should act decisively on the commitments of the Great Lakes Water Quality Agreement wherein they agreed that:
"The purpose of the Parties is to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem," and
"The discharge of toxic substances in toxic amounts be prohibited and the discharge of any or all persistent toxic substances be virtually eliminated," within a philosophy of zero discharge.
It is the assumption of the Commission that the federal governments continue to agree on this fundamental statement of intent upon which the Commission builds its advice. Governments should also ensure that their actions are coordinated through effectively functioning mechanisms for consultation, cooperative research and common action.
Representatives of industry, when presented with evidence of ecosystem health concerns about substances used in commerce, should react by embracing open dialogue, data sharing and fact finding to resolve, rather than deny, concerns and effect an orderly and timely transition to those solutions.
Representatives of environmental and other organizations should offer their expertise to help develop pragmatic solutions to the transition issues that face governments, industries and their employees, consumers and others in adopting preventive strategies.
While the scientific process should be value neutral, scientists should be forthcoming in responses to public concerns and the provision of current information about the health of the Great Lakes ecosystem, especially as it relates to human health.
News media should review their policies about reporting on the widespread use and effects of persistent toxic substances and evaluate their responsibility to inform the public about them.
Citizens should constantly ask political, social and industrial leaders about the effects of the use and discharge of pollutants on this and future generations.
Gordon K. Durnil, Co-chairman Claude Lanthier, Co-chairman Hilary P. Cleveland, Commissioner James A. Macaulay, Commissioner Robert F. Goodwin, Commissioner Gordon W. Walker, Commissioner