[CPEO-BIF] Precautionary Principle and Corporate Disclosure

[Emery Graham <egraham@ci.wilmington.de.us>]

One of the intersting phenomena I've experienced while talking to PRP's
and corporate types is their tendency to raise the spector of harming
economic development as a result of residents in brownfield areas
insisting that a hazardous waste site be cleaned up to health based
levels. The business representatives and their state counterparts often
argue that the poor residents and their representatives are unreasonable
when they point out that no citizen of the United States of America was
ever required to compromise their life, health, and safety so that the
private business interests wouldn't have to incur the costs of making a
profit. In light of the well known fact that the private sector was
responsible for creating of the vast majority of hazardous waste sites
plaguing our cities, it hardly seems reasonable for innocent taxpayers
living near these waste sites to require anything but the most thorough
clean up of these sites.

The article at the web site below offers a good grounding in ideas
supporting a "precautionary approach" to issues dealing with activities
where there is scientific uncertainty related to the business deal. The
idea being that citizens now have a better understanding of how these
hazardous waste sites came to be and the time is now to begin making
sure that the old decision processes change. Hopefully local governments
will implement the ideas in this article.

http://www.enviroweb.org/gnp/precaution.htm#precaution text

 

                The Precautionary Principle and
                          Corporate Disclosure

              A WORKING PAPER - Last updated: Feb. 20, 1998
                               Sanford Lewis*
  

The growing recognition of the need for precautionary action on
environmental issues despite the existence of scientific
uncertainty presents society with substantial new public policy
challenges. Examples of this problem include global warming,
and concerns that numerous toxic substances may be posing
endocrine-disruption throughout the biosphere. 

What is particularly vexing about these problems is the that they
may demand dramatic readjustments of human economic
activities in the absence of conclusive proof about the magnitude
of impacts or precise causal mechanisms.  The efforts to shift
behavior may require profound levels of investment by society. 

The Precautionary Principle is a policy principle to nevertheless
promote action under such circumstances. It states that  "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."  Various existing and proposed mechanisms
attempt to advance this precautionary approach. The approaches
range from promoting additional societal study of the activities
of concern, to shifting burdens of proof, to providing incentives
for preventive behavior, to outright action forcing measures such
as bans and phaseouts of substances suspected of causing the
harms. 

In this brief paper we examine the role played by public policies
relative to corporate disclosure, and propose the outline of a
framework for promoting the precautionary principle through
corporate disclosure rules. 

The Role of Corporate Disclosure in Promoting the
Precautionary Principle 

The societal debate regarding responsive action to dangers
targeted by the precautionary principle is typically colored by
economically-driven renditions of facts. Industries affected by
the demands for precaution either engage in outright denials of
the impacts, or as often, pay experts to heighten the level of
uncertainty ostensibly associated with the relevant products or
risks. 

Corporate-sponsored scientific denials are well highlighted by
information recently emerging in the tobacco litigation. The
absence of disclosure of "what they knew when they knew it"
and the ability of corporations to inject their quasi-scientific
views of risk clearly led to years of delay in corporate
accountability and societal responsiveness to the hazards posed
by cigarette smoking. The same may be equally true in other
longstanding debates such as asbestos. 

Thus there are years of damage to public health arguably
inflicted at least partly by the ability of corporations to conceal
and selectively disclose information in their hands regarding
health effects. 

Once these matters reach the courts, as any destructive behavior
inevitably should in our governance system, the role of
concealment and deception is highlighted even more. Witness in
the tobacco litigation, the attempts of corporations to use
concealment principles such as attorney-client privilege to back
up their longstanding denials. This failed attempt to shield the
truth through attorney client privilege follows decades of
successful concealment -- preventing truths that the firms were
aware of from finding the light of day. 

Distinguishing "Scientific Uncertainty" from "Smokescreen
Uncertainty" 
    The discussion of the precautionary principle shows a need to
         distinguish among types of "uncertainty." Different policy
      responses may be needed to address the different aspects of
     what the participants are deeming to be uncertainty. There is
   surely "real uncertainty" in many arenas, but just as often there
       may be what we can refer to as "smokescreen uncertainty."

  

Experience shows that industries affected by demands for
precaution engage in several tactics to create a false sense of
uncertainty: 

    concealment of what they themselves know; 
    hiring scientists inside and outside the corporation to both
    ceate"contrary" opinions and to promote the notion of
    uncertainty; 
    public relations and political "spins" to create the sense of
    uncertainty. 

The impact is to delay action by what society sometimes calls
"uncertainty," but we will rename here as "smokescreen
uncertainty." The impact of smokescreen uncertainty has been
decades of delay in responsive action to toxic exposure issues
ranging from lead, tobacco and asbestos, to name just a few. 

While there is bona fide uncertainty in some scientific matters,
specific attention is needed in precautionary principle strategies
to preventing "smokescreen uncertainty." 

There is some progress in this realm.. Recent court decisions
have repeatedly denied applicability of attorney client privilege
to scientific documentation of health impacts of tobacco, and in
other contexts, of scientific studies in environmental cases. 

A NEW CORPORATE INITIATIVE AGAINST
DISCLOSURE 

However, the law is also shifting elsewhere *in favor* of some
smokescreen mechanisms: because of their failures in the courts,
corporations have turned to state legislatures to firm up the
concealability of their scientific information. In the last few
years, in 20 states corporations 

have won new rights of environmental concealment, based on
the principle that "honest" self appraisals -- termed "self-critical
analysis" or "environmental audits" -- merit a privilege against
forced disclosure in private or public litigation. Such laws
encompass vast new rights of concealment of information
relevant to the issue of precaution, as the "audits" are broadly
defined to include an array of voluntary corporate environmental
studies. 

Recent court decisions denying applicability of attorney client
privilege to much of the scientific documentation of health
impacts of tobacco, and in other contexts, of scientific studies in
environmental cases, represents an important positive
breakthrough for prevention. Largely because of these failures in
the courts, corporations have turned to state legislatures to firm
up the concealability of scientific information. In these forums
they have been winning new rights of environmental
concealment, based on the principle that honest self appraisals --
"self-critical analysis" or "environmental audits" (broadly
defined to potentially include extensive environmental health
data and analysis) -- merit a privilege against forced disclosure in
private or public litigation. 

For instance, the Michigan environmental audit law enacted in
March 1996 is broad in the documentation that is rendered
privileged.  It covers studies designed to identify "historical or
current noncompliance... or to identify an environmental hazard,
contamination or other adverse environmental condition..."  It
also provides, as many other such laws do, that concealed data
may include "field notes, records of observations, findings...
photographs, computer generated and electronically recorded
information, maps, charts, graphs, and surveys...."    The
Michigan law and many of the others may block government
and citizen access to studies of environmental hazards -- such as
company studies of superfund type contamination, dioxin
emissions, and evaluations of pollution prevention opportunities. 

NEW PRINCIPLES OF DISCLOSURE FOR
RESPONDING TO CORPORATE DENIAL AND
SECRECY ON PRECAUTIONARY MATTERS 

Fighting over access to this information in courts (i.e. fighting
this privilege trend) is a necessary part of maintaining our rights
to the relevant info, but it is also late in the game. However,
society also needs to devise anti-smokescreen strategies to head
off these dilatory tactics "at the pass" -- e.g. groundrules relative
to continuous transparency, public oversight of any
corporate-funded studies, etc. The following principles of
disclosure seem necessary components of a public policy
program for advancing the precautionary principle: 

DESIGNATING PRECAUTIONARY MATTERS. 

    Listing of "precautionary matters." Society, through its
    public bodies, should identify certain types of risks as
    triggering the Precautionary Principle. (An example of this is
    the IJC's targeting of persistent toxic compounds.) These will
    be referred to here as "precautionary matters." 
    General applicability rule. Society should also establish
    legally binding principles that guide public and private
    institutions, acting in the absence of specific societal
    standards targeting the activities, to know when facts before
    them, or activities they are engaged in, may reflect a
    "precautionary" matter. 

DISCLOSURE RULES. 

    An affirmative duty to study. Public and private institutions
    have an affirmative duty of study of the risks, and of the
    opportunities for preventive alternatives. 
    An obligation of rapid disclosure and transparency. The
    institutions that conduct such studies are obliged to disclose
    all data generated regarding precautionary matters promptly.
    Categories of disclosure should be clarified, and include as a
    minimum environmental and health impacts, economic plans
    and transitions, availability of alternatives, etc. 
    Data pooling. Data relative to precautionary matters shall be
    pooled via the internet for realtime access of the public and
    others who are studying this data. The only exception shall
    be for bona fide trade secrets, which shall be narrowly
    construed. 
    The preemption of privilege. Attorney client privilege, audit
    privilege, freedom of information act exemptions, etc. are
    preempted by a higher principle of disclosure for such
    information relating to precautionary matters. 

TRIGGERING SOCIALLY ACCOUNTABLE THIRD
PARTY REVIEW  AND DECISIONMAKING. 
  

    Forums and mechanisms should ascertain when data within
    the data pool reaches a point where it merits the triggering of
    a third party review mechanism -- e.g. study by one or more
    independent institutions, for more conclusive evaluation of
    the extent of uncertainty and the imperatives for action. 



* Sanford Lewis is an attorney who provides strategic counsel
on corporate accountability to environmental, community and
labor organizations. He directs the Good Neighbor Project and
chairs the national Network Against Corporate Secrecy. You
can send him comments on this paper as well as links to related
webpostings at gnproject@earthlink.net. 


     Wingspread Statement on the Precautionary Principle

The release and use of toxic substances, the exploitation of
resources, and physical alterations of the environment have had
substantial unintended consequences affecting human health and
the environment. Some of these concerns are high rates of
learning deficiencies, asthma, cancer, birth defects and species
extinctions; along with global climate change, stratospheric
ozone depletion and worldwide contamination with toxic
substances and nuclear materials. 

We believe existing environmental regulations and other
decisions, particularly those based on risk assessment, have
failed to protect adequately human health and the environment -
the larger system of which humans are but a part. 

We believe there is compelling evidence that damage to humans
and the worldwide environment is of such magnitude and
seriousness that new principles for conducting human activities
are necessary. 

While we realize that human activities may involve hazards,
people must proceed more carefully than has been the case in
recent history. Corporations, government entities, organizations,
communities, scientists and other individuals must adopt a
precautionary approach to all human endeavors. 

Therefore, it is necessary to implement the Precautionary
Principle: 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 the Precautionary Principle must be
open, informed and democratic and must include potentially
affected parties. It must also involve an examination of the full
range of alternatives, including no action. 

Wingspread Participants: 
(Affiliations are noted for identification purposes only.) 

Dr. Nicholas Ashford, Massachusetts Institute of Technology 
Katherine Barrett, Univ. of British Columbia 
Anita Bernstein, Chicago-Kent College of Law 
Dr. Robert Costanza, University of Maryland 
Pat Costner, Greenpeace 
Dr. Carl Cranor, Univ. of California, Riverside 
Dr. Peter deFur, Virginia Commonwealth Univ. 
Gordon Durnil, attorney 
Dr. Kenneth Geiser, Toxics Use Reduction Institute, Univ. of Mass., Lowell 
Dr. Andrew Jordan, Centre for Social and Economic Research on the Global 
Environment, Univ. Of East Anglia, United Kingdom 
Andrew King, United Steelworkers of America, Canadian Office, Toronto,
Canada 
Dr. Frederick Kirschenmann, farmer 
Stephen Lester, Center for Health, Environment and Justice 
Sue Maret, Union Institute 
Dr. Michael M'Gonigle, University of Victoria, British Columbia, Canada 
Dr. Peter Montague, Environmental Research Foundation 
Dr. John Peterson Myers, W. Alton Jones Foundation 
Dr. Mary O'Brien, environmental consultant 
Dr. David Ozonoff, Boston University 
Carolyn Raffensperger, Science and Environmental Health Network 
Hon. Pamela Resor, Massachusetts House of Representatives 
Florence Robinson, Louisiana Environmental Network 
Dr. Ted Schettler, Physicians for Social Responsibility 
Ted Smith, Silicon Valley Toxics Coalition 
Dr. Klaus-Richard Sperling, Alfred-Wegener- Institut, Hamburg, Germany 
Dr. Sandra Steingraber, author 
Diane Takvorian, Environmental Health Coalition 
Joel Tickner, University of Mass., Lowell 
Dr. Konrad von Moltke, Dartmouth College 
Dr. Bo Wahlstrom, KEMI (National Chemical Inspectorate), Sweden 
Jackie Warledo, Indigenous Environmental Network 


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