Rachel's Precaution Reporter #12
Wednesday, November 16, 2005

From: Rachel's Precaution Reporter #12 ...................[This story printer-friendly]
November 16, 2005


[Rachel's introduction: The regulatory system boxes us in to a debate about parts per million when we really want to discuss things like better health, a decent future for our children, fairness, and justice. A precautionary approach invites discussion of those larger issues.]

By Peter Montague

The New Jersey Department of Environmental Protection (DEP) is on the hotseat over thousands of tons of potent cancer-causing chromium wastes lying all over Hudson County -- the most densely populated county in the nation's most densely populated state. Will this problem disappear via "risk assessment" or will a precautionary approach be taken and a real cleanup occur?

I attended a public hearing about these wastes in Jersey City Monday night. Bradley Campbell -- commissioner of the N.J. DEP -- conducted the meeting personally, so you know the political heat has been turned up high, thanks to the Interfaith Community Organization in Jersey City, and a courageous DEP whistleblower, Zoe Kelman. Read Zoe Kelman's report here.

These highly carcinogenic chromium-VI wastes were discovered in 1985, and no real remedy has been developed during 20 years of hand-wringing. Chromium- VI is a potent carcinogen if you get it into your lungs.

The DEP's current "solution" is to employ numerical "risk assessment" to come up with a magic number that is a "safe" level of chromium in soil. Most of the meeting Monday night was spent arguing about whether 240 parts per million (ppm) was the "safe" number, or whether it should be 100 parts per million, or 30 parts per million.

DEP's role in all this is to press for leaving very large amounts of industrial poisons in the ground, then putting a "cap" over the poisons -- a plastic tarp, or a layer of asphalt, or a school building. This is the approach that DEP has approved all across New Jersey -- in Long Branch, Edison, Camden, Newark, Trenton, New Brunswick, and many other cities and towns. There are 12,000 contaminated sites in New Jersey, and if DEP has its way, most of them will be "capped" with a plastic tarp or a parking lot. These are not permanent remedies -- they are a way of evading our responsibilities, passing expensive toxic problems on to our children and grandchildren.

Attending numerous public meetings on cleanups has convinced me that DEP's goal is to save money for polluters, because real cleanup costs a lot of money.

The main assumption of the DEP's "risk-based approach" is that science can determine a safe level of industrial poisons in the ground.

There are four serious problems with this risk-based approach:

1. Because people are exposed to many chemicals simultaneously (chromium, PCBs, mercury, lead, second-hand smoke, diesel exhaust, and much more), science has no way to determine a safe level of one contaminant among many. The problem is simply too complex for science to solve. No one can say what a safe level of exposure to chromium might be, given all the other toxic exposures occurring simultaneously. DEP's solution to this problem is to simply pretend that the other exposures don't exist. This is a silly head-in-the-sand approach and not scientific.

When it comes to cancer-causing chemicals -- such as chromium, coal gas wastes, PCBs, lead, mercury, or many pesticides -- the only exposure we can say is truly safe is zero exposure.

2. Because science cannot solve this complicated problem of multiple exposures, the risk-based approach gets resolved through politics masquerading as science. The first administrator of U.S. EPA, William Ruckelshaus, 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."

So the magic number that DEP declares safe is really a number intended to achieve DEP's political goal -- to save money for the polluters, perhaps to keep the polluters happy so they will contribute heavily at election time.

3. Once DEP determines the magic number that is supposedly safe, large amounts of industrial poisons are left in the ground, based on the magic number. As time passes, those poisons leak out. Insects, worms, reptiles, and small mammals carry them away; grass grows up in the cracks and brings small amounts of poison to the surface; birds transport them; they are carried on the wind as dust; rain moves them around. There is actually a principle of physics that explains why all this is inevitable: it is called the "second law of thermodynamics." It tells us that things tend to disperse. A pot of poison left in the ground will sooner or later disperse into the local environment.

So the net effect of the risk-based approach is to assure that industrial poisons will be oozing into the environment of New Jersey far into the future, all over the state. Because poor people are disproportionately dumped on by toxic waste, DEP's policy serves to keep poor people sick, fearful, and on the defensive. On the bright side, it also keeps the cancer-treatment and pharmaceutical businesses booming. (When you drive down Route 287 approaching New Brunswick, a highway sign advertises the existence of The New Jersey Cancer Institute -- cancer is definitely big business in New Jersey.)

To really fix these problems, the wastes must be excavated and removed. They have to be detoxified or solidified and stored in large above-ground reinforced-concrete buildings where they could be monitored for the duration of the hazard -- or they have to be shipped to the western states and buried deep in places were rain is scant. (People in the western states don't favor this approach.)

These real cleanup activities would create a large number of jobs in the construction trades, and would benefit public health. When politicians say, "We can't afford to do this," they mean, "We don't think these communities are worth the investment." In New Jersey, the wealthiest state in the wealthiest nation on earth, we could definitely afford to do it if we decided it was important. In general, poor people tend not to contribute money to politicians, or even to vote, so they are not considered important. If toxic waste is discovered in Princeton or Upper Saddle River, you can be sure it does not remain there long.

4. The risk-based approach keeps us fighting on our adversaries' turf. Our adversaries designed the regulatory system to stabilize and standardize the business environment -- to control their critics (which is us), to make us predictable and therefore manageable.[1]

The function of the whole regulatory system is to force communities to accept facilities or practices that they don't want. (This includes not only toxic waste but also McMansion housing developments, big box stores, and new highways.)

The community begins with broad concerns about quality of life, fairness, justice, and a decent future for everyone's children. Then the regulatory system funnels those broad, ethical concerns into a debate over parts per million (or other narrow technical issues).

I watched this play out Monday night in Jersey City. The community wants a healthy place to live, work, play, and raise children. The DEP immediately focused the whole discussion into a question of 240 ppm vs. 100 ppm vs. 30 ppm. The community's goals for "quality of life" were never discussed -- DEP made sure of that. In the audience, the chromium polluters, wearing silk suits, sat smiling as they watched DEP focus everyone's attention on parts per million, and not on community goals or ethical questions of right and wrong. DEP did the polluters' dirty work for them. DEP has become the polluters' proxy.

So the main lesson of the evening was this: The regulatory system regulates community activists far more than it regulates polluters because the system makes community activists predictable and therefore manageable. It restricts their response to trouble. It keeps them arguing about parts per million instead of about community goals, political power, coalition-building, and real change.

To get out of this box, we would need to take a completely different approach -- one based on the precautionary principle.

The risk-based approach asks, "How much harm can we get away with?" and it comes up with a magic number. A precautionary approach asks a completely different question: "How much harm can we avoid?" And it provokes a public discussion.

To me, the risk-based question is unethical because it is asked for the sole purpose of exposing innocent people to dangerous chemicals, like chromium.

The precautionary approach focuses on community goals and then asks how to achieve those goals. It entails rich discussions about jobs, local economic development, education, taxes, white privilege and white supremacy, inequalities, justice -- and about organizing a real political movement for change.

Are we ready to get out of that risk-based box? Or are we content to pass thousands of tons of industrial poisons on to our grandchildren?


[1] Gabriel Kolko, The Triumph of Conservatism; A Reinterpretation of American History, 1900-1916. NY: The Free Press, 1963.

[2] See Curtis C, Travis and Sheri T. Hester, "Global Chemical Contamination," Environmental Science & Technology Vol. 25, No. 5 (May, 1991), pgs. 815-819. Available here.


From: ABA [American Bar Association] Journal .............[This story printer-friendly] Journal [Printer-friendly version]
November 7, 2005


Industries Are Using a Landmark Case and a 2001 Law to Block Regulation, Critics Say

[Rachel's introduction: We need a precautionary approach because the regulatory system has become paralyzed by the search for the holy grail of scientific certainty.]

By Mark Hansen

Since 1986, every aspirin bottle sold in this country has carried a label warning that consumption by children with viral illnesses increases the chances of contracting Reye's syndrome, a rare but potentially deadly disease.

The Food and Drug Administration mandated the warning after scientific studies showed that children with colds, flu or chicken pox who took aspirin were more likely to develop Reye's syndrome than those who didn't.

Experts regard that development as a public health triumph, but a bittersweet one. The warning labels have helped save lives. But, they say, many children became disabled or died from Reye's syndrome while the aspirin industry fought the government's efforts. The industry had argued that the scientific evidence for such a warning was incomplete, unclear or uncertain.

The aspirin industry didn't invent the strategy of questioning the underlying science, says David Michaels, an epidemiologist at George Washington University. Corporations have successfully used that tactic for decades, says Michaels, an assistant secretary of energy in the Clinton administration who is writing a book on the subject.

But the strategy has become so common that it is almost unheard of for the science behind a proposed public health or environmental regulation to go unchallenged, no matter how strong or conclusive the evidence is, according to Michaels and other experts in public health and environmental law.

A Lot On The Line

"When there's a lot on the line financially," says Wendy Wagner, a University of Texas law professor who specializes in environmental and regulatory law, "it's always going to be in a corporation's interest to challenge the underlying science -- sometimes illegitimately."

Industry officials say it is ludicrous to suggest that corporations raise scientific uncertainty to delay or defeat government regulation. The uncertainty is real, they say. And it ought to be acknowledged.

"Our position is that every ounce of scientific information that is part of the public debate should be open, available and accessible to everyone," says Bill Kovacs, vice president for environment, technology and regulatory affairs for the U.S. Chamber of Commerce.

But academics are taking a closer look at two legal developments that, they say, may have exacerbated the trend. Both have altered people's understanding of how scientific evidence is gathered.

One is the U.S. Supreme Court's landmark 1993 decision, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, which requires federal judges to act as gatekeepers and to admit only evidence that they find relevant and reliable.

The other is the 2001 Data Quality Act, which allows anyone who believes that information disseminated by a federal agency is not of sufficient "quality, objectivity, utility or integrity" to request that the information be corrected.

Those two developments, the critics argue, allow -- if not encourage -- a piece-by-piece examination of scientific evidence rather than the weight-of-the-evidence approach that most scientists prefer. The result, they say, is that opponents of regulation can pick and choose pieces of data to attack the entire premise of a regulation.

For example, Michaels says, take the cases involving Parlodel, a lactation-suppressing drug taken by non-nursing new mothers in the 1980s and early 1990s.

Citing case reports and animal studies showing that Parlodel can cause a rapid rise in blood pressure in humans, the FDA asked the drugmaker in 1985 to include warning labels. Yet when several women later sued the drugmaker, claiming Parlodel was responsible for their injuries, their cases essentially were thrown out of court for lack of scientific certainty, Michaels says.

"Applying the Daubert rule, those judges demanded a level of certainty that was virtually impossible to provide," he says.

Emboldened, antiregulatory interests are expanding the application of Daubert principles to judicial review of federal regulations, experts say.

Michaels cites the chamber's 2002 call for an executive order requiring all federal agencies to apply the Daubert standards in the administrative rule-making process.

Public health advocates should be wary, Michaels and others say. "The legal, economic and political obstacles faced by regulators will increase dramatically when Daubert-like criteria are applied to each piece of scientific evidence used to support a regulation," Michaels says.

The Data Quality Act also gives antiregulatory interests a new tool, experts say. The statute, which began as a little-noticed rider in a thick appropriations bill, has opened the door to contest every piece of evidence considered by regulators. What's more, the act contains no equivalent Rule 11 sanctions for filing a frivolous claim.

"There's no cost or penalty to mounting such a challenge, whether there's any merit to it or not," Wagner says. "But the potential rewards can be huge. At the very least, it can delay regulation or liability. At best, it can succeed."

Already, Michaels says, the salt industry has used the statute to challenge government recommendations that Americans consume less salt. It has also been used by the food industry to oppose dietary guidelines that suggest reduced sugar consumption, and by the manufacturers of toxic chemicals that do not want their products labeled as cancer-causing.

Junk Science?

Steven Milloy, a lawyer and biostatistician who runs a Web site devoted to exposing what he calls junk science, JunkScience.com, concedes there is an inkling of truth to what Michaels and others are saying. But he dismisses much of it as "exaggerations, distortions and manipulations of the truth" by those who are anti-industry.

All Daubert does is allow judges to set up panels of experts to advise them on scientific matters in litigation, Milloy says. "It's not a tool to deprive plaintiffs of whatever relief they merit." And all the Data Quality Act does, Milloy adds, is allow the public to question the reliability of scientific data used to establish public policy.

Opponents "view it as a way of harassing well-meaning scientists," he says. "We view it as a way of checking up on the people who want to use junk science to regulate how we live."

Milloy also questions Michaels' objectivity because his work is supported by the Project on Scientific Knowledge and Public Policy, which receives funding from the Common Benefit Trust, a fund that he says was created to pay the expenses of plaintiffs lawyers in silicon- gel breast-implant litigation.

"As far as him throwing rocks at everyone," Milloy says, "you know what they say about people who live in glass houses."

The chamber's Kovacs says Daubert has helped improve the quality of science used in court by giving judges a "little bit of control" over so-called experts who are willing to testify to anything.

"It means they can't violate the laws of physics anymore," he says. "It puts some measure of science into the process so they can't just make things up."

And Kovacs says the Data Quality Act helps ensure that studies that form the basis for government policies are evenhanded, free of bias and reliable. The act is also supposed to help ensure that the public has meaningful access to the data needed to test and reproduce the government's results, he says.

The latter point is being tested in court. The chamber has joined the Salt Institute in a lawsuit charging that the government violated the act by failing to release the scientific data that led to its recommendation that Americans reduce their salt intake to avoid the risk of high blood pressure. The plaintiffs contend that a diet with too little salt may actually increase the risk of cardiovascular and other health ailments in some people.

Last year, a federal district judge in Virginia granted the government's motion to dismiss, holding, among other things, that the plaintiffs lacked standing to sue. An appeal is pending before the 4th U.S. Circuit Court of Appeals at Richmond, Va.

Georgetown University law professor Paul Rothstein, who specializes in criminal law and evidence, says it is in an industry's interest to raise questions about the science underlying a proposed government rule or regulation. And since science is never absolutely certain, he says, such questions can always be raised.

Rothstein agrees that some courts have taken Daubert too far, rejecting evidence that suggests a causal relationship because scientists demand more before they are willing to conclude that a relationship has been proved. Other courts have gone the opposite way, finding a causal link between a substance and an injury when the science supporting such a link is tenuous.

But Rothstein thinks it is a misreading of Daubert to suggest that it requires a piece-by-piece examination of the evidence and not a weight-of-the-evidence approach.

"Daubert specifically says it means to require that the evidence conform to the scientific method. Nowhere does it say anything about a 'piece-by-piece approach,"" he says.

Copyright 2005 ABA Journal


From: San Francisco Bay Guardian .........................[This story printer-friendly]
November 2, 2005


[Rachel's introduction: Citizens in San Francisco have begun to use their municipal precautionary principle law in land-use advocacy.]

by Marie Harrison

"Here in San Francisco, we have always been... innovators, and we've been leaders," Mayor Gavin Newsom announced recently. "We're a city of dreams and a city of doers." Today, in the southeastern neighborhoods of the city, we're looking for innovation and leadership.

A key element in the revitalization of southeast San Francisco is Bayshore Boulevard. It's an area begging for development. If done right, development along this corridor could bring jobs and vitality to our community in a way that strengthens our connections with the rest of the city yet protects our locally owned businesses. Bayshore can be a place where city residents work, shop, and eat together. Locally-owned small and midsize businesses can thrive, bringing tax dollars into city coffers and jobs to an area of the city that has suffered under neglect for far too long.

At the moment, however, the future of our neighborhood is being decided by an enormous corporate entity, one based in Atlanta. It has a track record of lawsuits alleging that it discriminates against women and people of color. This is Home Depot.

Working on environmental issues with residents as the organizer and community outreach educator for Bayview-Hunters Point Greenaction, I am primarily concerned with the environmental and health impacts of developments, including the proposed Home Depot.

One child in six suffers from asthma in Bayview-Hunters Point: the highest rate of asthma in the city.

And yet, the city is considering placing another Goliath in our neighborhood: a big-box outlet between 107,211 and 153,089 square feet with as many as 600 parking spaces. This is being done without any consideration of the additional diesel trucks spewing toxic exhaust that the store will bring into the community.

Some members of the Board of Supervisors insist that Home Depot will bring tax dollars into San Francisco. Yet a Texas study concluded that locally owned businesses recycle 45 cents of every dollar back into the community, but big-box stores return only 13 cents of every dollar to the local economy. The rest goes to corporate headquarters.

This development conflicts with the city's commitment to develop Bayshore in a way that's consistent with the city's General Plan. It also violates the landmark environmental policy to do no harm (the Precautionary Principle), which the supervisors and the mayor supported unanimously.

We need jobs now. We need to act quickly to bring in local merchants and developers to create a business corridor that provides sustainable local jobs. We need to produce those jobs in a way that truly benefits our communities without damaging the environment and in a way that supports locally owned businesses.

The jobs offered by Home Depot -- and there's no guarantee that jobs for local residents will actually materialize -- come at the expense of those that will be lost when local hardware stores have to lay off some of their workforce (assuming these stores can survive at all).

Mayor Newsom stated in his recent State of the City address: "As we shape our urban environment, we are reimagining San Francisco as a city of possibility, a city that will attract families and so nurture the next generation." With the increasing development pressure heading down Third Street, which may put additional pressure on locally-owned mom-and-pop outlets, we need to proceed cautiously and carefully.

Strip malls and big-box stores are not the urban environment that draws people to San Francisco. We should focus on local businesses, neighborhoods that work together to generate creativity and prosperity, and preservation of our culture.

Building healthy and vibrant communities can prevent violence. This is what will nurture our next generation. It's called smart growth.

Marie Harrison works for Greenaction.


From: Eco-Cycle ..........................................[This story printer-friendly]
November 6, 2005


[Rachel's introduction: Many communities have taken a precautionary approach to the sale of plastic products that can create serious problems after they have been discarded.]

[RPR introduction: This summary comes to us from Eco-Cycle in Boulder, Colorado, which has been providing innnovate solutions to waste since 1976.]

Polystyrene -- Berkeley, CA: 1988

No restaurant shall provide prepared food to its customers in any polystyrene foam food packaging, nor shall any restaurant purchase, obtain or keep any polystyrene foam food packaging for such purpose. At least fifty percent by volume of each restaurant's food packaging, in which prepared food is provided to customers, or which is kept, purchased, or obtained for this purpose, shall be degradable or recyclable.

Polystyrene -- Freeport, ME: January 1990

No retail food vendor shall serve or sell prepared food and no food packager shall package meat, eggs, bakery products or other food in polystyrene foam (PSF) containers. No vendor in the town of Freeport who sells tangible personal property at retail shall sell polystyrene foam food or beverage containers.

Polystyrene and Polyvinyl Chloride -- Suffolk County, NY: March 1988

No retail food establishment located and doing business within the county of Suffolk shall sell, give or provide individual eating utensils, individual food containers or other packaging to any consumers within the county of Suffolk if such individual eating utensil or individual food container is composed of polystyrene or polyvinyl chloride. This subsection applies only to eating utensils, food containers or other packaging which is added to or placed with a food product at the site of the retail food establishment.

Polystyrene -- Sonoma County, CA: June 1989

In order to prevent litter and protect human health and the health of the environment, the county prohibits the sale, possession, or distribution of polystyrene food packaging at all county-owned facilities.

Polystyrene -- Portland, OR: March 1989

No restaurant or retail food vendor shall serve prepared food in any polystyrene foam container. No packager shall package meat, eggs, bakery products or other food in polystyrene foam containers manufactured with CFCs.

Plastic Packaging -- St. Paul, MN: January 1991

No retail food establishment shall sell, convey, or possess food or beverage placed, wrapped, or packaged at any time in packaging that is not environmentally friendly. Environmentally-acceptable packaging is defined as recyclable or returnable. Exceptions to the policy are made for medical purposes, paper packaging coated with plastics, when no commercial alternative is available, etc.

Food Packaging -- Pittsburg, CA, January 1993

By January 1993, at least 25 percent of the volume of all take-out food packaging used by a restaurant must be returnable or recyclable. By January 1995, the required volume increases to a minimum of 50 percent. Restaurants must phase out the use of CFC-produced polystyrene and are encouraged to purchase packaging from post- consumer recycled materials. The enforcement takes place during the annual renewal of the business license (8.06.200 and 210). Sources: here and here.

Comprehensive Plastics Policy -- Berkeley, CA: June 2000

The city of Berkeley believes first and foremost that the manufacturers and producers of plastic products and packaging must take some form of stewardship over their material. This includes designing products to be reused or recycled, using recycled material in their products, and supporting the recycling infrastructure. The city supports bottle-to-bottle recycling and the reduction of plastics packaging through reusable materials. The city of Berkeley will promote and encourage source reduction and recycling of plastics, and the purchase of products containing recycled materials by all city departments and contractors.


From: New Mexico Environment Department ..................[This story printer-friendly]
November 8, 2005


[Rachel's introduction: Another unit of government creates a task force to consider precautionary approaches.]

In New Mexico, the state Environment Department and the state Department of Health have formed a joint task force to study the precautionary principle. The task force will advise the Governor and the Executive Branch on the potential and practice of implementing the principle in New Mexico. Findings and recommendations are due in October 2006.


Rachel's Precaution Reporter offers news, views and practical examples of the Precautionary Principle, or Foresight Principle, in action. The Precautionary Principle is a modern way of making decisions, to minimize harm. Rachel's Precaution Reporter tries to answer such questions as, Why do we need the precautionary principle? Who is using precaution? Who is opposing precaution?

We often include attacks on the precautionary principle because we believe it is essential for advocates of precaution to know what their adversaries are saying, just as abolitionists in 1830 needed to know the arguments used by slaveholders.

Rachel's Precaution Reporter is published as often as necessary to provide readers with up-to-date coverage of the subject.

As you come across stories that illustrate the precautionary principle -- or the need for the precautionary principle -- please Email them to us at rpr@rachel.org.

Peter Montague - peter@rachel.org
Tim Montague - tim@rachel.org


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