Environmentally, we’re in a trap. Our system for dealing with the flood of chemicals coming on the market each year promises protection but guarantees eventual harm.
That’s because it can’t deal with uncertainty. The system is set up to deal with certainty, and in the 1990s world of chemical complexity, where there are more than 100,000 synthetic chemicals in use and more than 1,000 introduced every year, to demand certainty about their impact is to dream.
The main case in point are the organochlorines. We know they disrupt hormones in the bodies of animals and cause cancer and severe disfigurement. We think they can do the same in humans, but we lack the proof. There is no certainty. So we allow products on the market without knowing their real risk.
Our model — our conceptual framework — for environmental regulation is the criminal law. It prohibits. But at its core it embraces human liberty, and so its first premise is that people are innocent until proven guilty beyond reasonable doubt.
That same approach is incorporated into environmental regulation. What the state thinks it can prove, it prohibits, and, as in the criminal law, a fairly high degree of certainty is required for proof. Otherwise, innocence is presumed and manufacturers are free to market products.
But here’s the difference. Under the criminal law, the demand for near certainty protects the public. Under environmental regulation, it protects the manufacturer; it is the public that bears the risk.
Because chemical interactions are so complex, it may take years, even generations, to develop scientific procedures sophisticated enough to trace the harm being caused back to a specific chemical.
When that is done, the manufacturer will probably be innocent of any intent to harm. But people will be hurt and the environment will be damaged. Under our existing framework of proof and certainty, it’s inevitable that this will happen.
Our belief that we can correctly determine for all new chemicals what level of release is safe and what level should be prohibited is absurd. From a scientific point of view, it’s impossible. Science simply can’t keep up with the consequences of 1,000 new chemicals a year mixing with everything else that’s out there.
This dilemma was recognized at the Earth Summit held in 1992 in Rio de Janeiro. It adopted 27 principles in what has come to be known as the Rio Declaration. The fifteenth principle states: « In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.
« Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’’
Last spring, the International Joint Commission (IJC), the body that advises the Canadian and U.S. Governments on water quality in the Great Lakes, recommended that if new chemicals fall within classes that are considered potentially dangerous, manufacturers, importers, and users should have to prove that they are neither persistent nor toxic before they can be put on the market or used.
The IJC recommendation and the Rio principle have been ignored. The chemical industry has characterized them as an assault on reasonableness.
Robert Costanza has a solution. He is professor of ecology at the Centre for Environmental and Estuarine Studies at the University of Maryland. Where there is uncertainty, firms should be required to post a bond that would cover damage that would occur in a worst case scenario, he says.
The bond would be returned if the firm proved that the suspected harm had not occurred or that it would not.
There would be three great advantages. It would allow the market to assign a true cost to the manufacture and release of a chemical; it would encourage firms to undertake ongoing research into the impact of their products; and it would protect the public and the environment.
Most important of all, it would recognize that uncertainty is a reality of our times and that would get us out of the trap we’re in.