BACKGROUND PAPER #4
Act with foresight. Prevent harm when credible evidence exists that harm is occurring or is likely to occur, even when some uncertainty remains regarding the exact nature and magnitude of the harm.
Anne Rabe, BE SAFE Center for Health, Environment & Justice
Katie Silberman, Science and Environmental Health Network*
Coming Clean Workgroup for Public Policy Reform
*Katie Silberman was associated with the Center for Environmental Health when this paper was written.
Two conditions establish the threshold for protective action in the presence of scientific uncertainty:
Acting with foresight takes many forms. We must create and strengthen human health and wildlife monitoring programs to detect and predict harm; take steps to prevent, eliminate, and mitigate exposure when credible evidence of harm is found; monitor novel technologies; consider clusters of problems to be early warnings of harm; and open toxic tort records. All action taken must be based on precautionary definitions of “harm” and “credible evidence” and must include public participation. Significant precautionary actions may be taken on the state and local level in advance of a precautionary national chemicals policy.
Twenty-twenty hindsight tells us about the inadequacy of our ability to detect and prevent chemical damage to biological systems. In case after case, long periods of time have elapsed between the emergence of the first credible scientific evidence that unintended harm was being done to biological systems and the first action taken to address the problem. DDT, benzene, asbestos, PCBs, and chlorofluorocarbons are some of the best-known examples. In some cases, such as ozone-layer damage, scientific intelligence systems failed—harm was discovered late because we didn’t know what to look for, or we weren’t looking for harm at all. More often, however, the failures have come in interpreting and acting upon emerging information. We have not heeded early warnings and taken precautionary action.
Precautionary chemical policies do not stifle innovation. On the contrary, exercising foresight implies an aggressive search for, and transition to, safer substitutes. This kind of technological innovation can help us get the benefits we seek with less harm to human health and the environment. To prevent harm, chemical policies should therefore include:
Our chemical policy system must put the health of people and ecosystems above all other considerations. This priority requires a clear sense of when to act and what to do to prevent harm, even before science can give definitive answers. This section describes the kind of harm that biologically active chemicals can cause, scientific uncertainty, and credible evidence of harm. These definitions help us decide when and how to take protective action.
At its simplest and least controversial, “harm” is damage to humans, fish, wildlife, or ecosystems that may show up as
In this paper we will call chemicals capable of causing such harm, as side effects to their intended use, biologically active chemicals.
Although biologically active chemicals can cause harm, identifying harm may still be controversial because linking harmful outcomes in specific individuals or communities to specific chemicals that may have caused them is often difficult or impossible. Here are some reasons why:
By convention, scientific certainty is generally considered to be established when an assertion is considered “true” with at least 95% likelihood or when a number of strict criteria that establish causation have been met. These requirements translate into “beyond a reasonable doubt.” It is, however, difficult to draw conclusions about cause and effect relationships in complex biological systems without acknowledging some degree of uncertainty. Factors that influence uncertainty include the following.
Lack of data—temporary, reducible uncertainties (which may, for example, be addressed by requiring comprehensive safety data for all chemicals, another key action item of the Louisville Charter).
Despite the difficulties posed by scientific uncertainty, we do know enough to act when we have credible evidence that harm is occurring or likely to occur from biologically active chemicals. Credible evidence of harm includes any or some combination of the following:
The duty to consider all relevant information from multiple sources is a fundamental principle of science. The best scientists keep their minds open to all relevant information, including factors that lie outside the scope of their investigations. Yet, when science is translated to policy, this aspect of scientific learning is often forgotten or ignored. Too often, policy makers have looked to science for precision without taking into account the skepticism and uncertainty embedded in science itself—the hesitance to draw hard and fast conclusions—and the continuing curiosity that is essential to scientific investigations. People who are not technical experts, especially people living in communities disproportionately affected by chemical contamination, may have an even keener sense than experts do of what must be considered, and they can provide relevant information.
We must increase our understanding of complex biological systems and, in the absence of complete understanding, do what we can to protect the integrity of such systems, including human bodies. We must keep alert to the political and social influences on our knowledge, the limits of that knowledge, and the potential costs, including the human health costs, of transgressing those limits.
When do we know enough to act? To sum up, two conditions provide credible evidence of harm in cases of scientific uncertainty on biologically active chemicals. These conditions establish the threshold for various kinds of protective action.
The best way to protect the health of people and ecosystems is through chemical policies that regulate the production and use of all biologically active chemicals, remove those chemicals from where they can cause damage, and treat untested chemicals as potentially dangerous. And because it is impossible to predict all side effects of synthetic substances, giving priority to the health and well-being of humans and the environment means monitoring presence and effects of chemicals in the real world even after a full safety-testing regime is in place.
We can act to prevent harm from chemicals through a wide variety of measures, some of which we describe below and many of which are described in other parts of the Charter.
Reform #1: Require Safer Substitutes: A precautionary chemical regime encourages the development of innovative, safer technologies. The principles of green chemistry and requirements for safer substitutes are the positive side of a precautionary approach. Inherently safer chemistry is the goal of this Charter. The preventive actions recommended in this background paper must be accompanied by incentives and requirements for safer substitutes.
Reform #2: Phase Out Persistent, Bioaccumulative, or Highly Toxic Chemicals.Acting with foresight requires collecting enough information to make informed choices and exercising our moral capacity to make just choices. When it becomes clear that chemicals in use are persistent, bioaccumulative, or highly toxic – that is, we know they are harming our bodies, and especially our children’s bodies – then it becomes necessary to make a societal choice to phase them out. Especially in cases where safer alternatives are available, the phase-out of uniquely harmful chemicals becomes a moral choice for society.
Recommendation #3: Give the Public and Workers the Full Right-To-Know. Acting with foresight means both having enough information to know that a product or practice is harmful, as well as acting on that information. By definition, that means that the public and workers must have full right-to-know about the toxicity of substances to which we are exposed. Without knowing the potential harm of exposures, we cannot judge whether we should take action to prevent further harm. Therefore, full right-to-know is essential for implementing a precautionary framework.
Recommendation #5: Require Comprehensive Safety Data. The adoption of a comprehensive safety-testing regime for all chemicals entering or remaining on the market is essential. The procedures and requirements described in the background paper for Recommendation #5 would provide much of the evidence we need to decide whether a chemical should or should not be on the marketplace or whether any restrictions should be placed on its use. But additional measures will be needed in the interim, before all chemicals have been tested, and even after this regime is in place, especially where novel technologies are concerned.
Recommendation #6: Take Immediate Action to Protect Communities and Workers. The recommendation to “act on early warnings” detailed in this paper rests on one fundamental fact: tens of thousands of community members and workers have spoken of harm for years — quite literally while the body count piles up — before being taken seriously by those with decision-making power. While data gathering and considered decision-making processes are both crucial to preventing harm, these steps must not stand in the way of taking immediate action to protect our health. The earliest warnings of harm must be heeded.
The principles and actions described in this section complement all these actions but apply especially to:
Expand & Strengthen State and Federal Environmental and Fish & Wildlife Monitoring Programs. The Environmental Protection Agency (EPA), U.S. Fish & Wildlife Service, and environmental agencies at the state and local levels should broaden the scope of monitoring fish, wildlife, and environmental contamination of air, soil, and water (groundwater and drinking water including private wells) to:
The EPA and U.S. Fish & Wildlife Service should establish monitoring standards and ensure that all agencies are conducting monitoring in a consistent manner, with public input and annual reports available to the public. These agencies should issue a comprehensive annual report summarizing monitoring data from federal, state, and local investigations. Findings of credible evidence of harm, integrating exposure data with effects data, should be reported immediately to the Early Warning Committee for action. Advisory Committees need to be established, where they are not already in place, to provide public input to federal and state agencies conducting such monitoring programs.
When credible evidence of harm is found that a chemical is biologically active and can cause harm in people, fish and wildlife, or the soil, air, and water, timely action should be taken to prevent harm. Such action may include, but is not limited to:
Novel chemicals and quasi-chemical technologies (for example, converging technologies at the nano scale) may have properties and unintended effects that may not be revealed even under a comprehensive safety-testing regime. The EPA must therefore authorize review of novel products and technologies through a democratic process such as an Advisory Committee including experts from a wide range of scientific, health, and nonscientific disciplines (including ethics) and representative, potentially impacted citizens.
Such a panel would determine whether:
The results of these deliberations and recommendations could (do you want to say “should”) be provided to EPA (and any other relevant oversight agency) and would be prioritized and given weight in the body of evidence as EPA and other agencies determine public policy, permitting, regulations, and legal action regarding the novel technology.
Performance bonds should be considered for all new and emerging chemicals and technologies in the absence of ways to test and understand their biological and geological behavior. For instance, bonds could be posted for certain potentially hazardous chemicals or technologies, based on a full-cost accounting of possible impacts.
Note that these requirements for novel technologies would be in addition to meeting requirements for comprehensive safety testing. There is no body of evidence without such testing.
The impacted public should not have to prove harm before action is taken when:
The question should not be whether a cluster of elevated body burdens or unusual diseases is statistically significant before action is taken. Rather, the question should bewhether any of the occurrences are preventable. With the appearance of clusters, both the public and private sector must act immediately to reduce contributing exposures to the extent possible.
Too often, relevant information about toxic chemicals and health effects has been sealed in protective orders issued by courts in specific cases. In exchange for a generous settlement, plaintiffs and their attorneys may agree to keep secret certain information that is detrimental to a defendant. But this secrecy means the offenses may be repeated and other victims may suffer in apparent isolation. In order to protect the public, court records, including settlements, should be opened for all toxic tort cases.
Although there are many opportunities for progress on the state and national level, many communities are making the strategic choice to focus their efforts locally. Local work is less dependent on the politics of the current White House or State House, can be more grounded in community experience, and can lead to more direct accountability from local elected officials.
Several communities have incorporated the precautionary principle into local law in order to provide explicit authority to act on early warnings. The cities and counties of San Francisco, Berkeley, and Marin County CA; Portland OR; Seattle WA; and Buffalo, NY have all passed precautionary principle laws or ordinances. The University of California, Berkeley, is developing recommendations, under the mandate of the California legislature, to give state agencies explicit authority to act on early warnings and take precautionary action. Bills directing state agencies to take precautionary action when credible evidence of harm is found have also been introduced in the New York State Assembly and Senate. In addition, precautionary laws on specific chemicals such as PBDE flame retardants have passed or are pending in many states.
For decades, communities have been acting with foresight to heed early warnings if laws and regulations are not protecting people and the environment. For instance, in the last thirty years communities have prevented harm and stopped exposures to toxic and radioactive chemicals from hazardous technologies and practices, despite gaps in federal or state protective policies and enforcement. Grassroots groups have shut down or halted the siting of hundreds of medical, solid, and hazardous waste incinerators; nuclear power plants; and hazardous and radioactive waste landfills.
Recently many of these actions have been based explicitly on the precautionary principle. For example, people in Denton, TX, advocated for a policy to reduce pesticide use in parks, and, in the process, discovered a new, safer product (corn gluten as an herbicide) that a local business could produce. San Francisco, CA, Buffalo, NY, and several other cities are setting up programs to purchase healthier, less toxic products such as vehicles that burn cleaner fuels and products without persistent bioaccumulative toxic chemicals. Citizens in Georgia are calling on officials to act on early warnings by preventing the siting of an elementary school between hazardous waste sites, and investigating nuclear contamination in counties surrounding a weapons manufacturing plant.
None of these communities or local authorities waited for state or federal authorities to act before taking the initiative to prevent harm. In the suburbs of Pittsburgh, PA, a school superintendent explained his decision to switch away from using harmful pesticides on the school playing fields this way: “If there’s a chance that something I’m doing is hurting kids, and there are safer alternatives available, then why would I do it? I may not be as zealous as some, but I think I know right from wrong.”
Policies and programs that support community involvement in taking local precautionary action are needed. For instance, technical assistance grants, meaningful community participation plans, and Advisory Committees that truly represent impacted communities are needed at every level of government. Non-profit groups can provide resources and model policies, share successful strategies, offer guidance on fundraising, and otherwise support an expansion of community-based precautionary actions around the country.