Visionary Science, Ethics, Law and Action in the Public Interest

Never Again

By Carolyn Raffensperger and Nancy Myers

But a renaissance, a rebirth occurs not just because there is a rising of images and archetypal symbols. A renaissance happens because the soul is breached, the psyche unlocked, and a flood of new questions are released as to who we are and what we contain. — Jean Houston

Only a crisis – actual or perceived – produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around. That, I believe, is our basic function: to develop alternatives to existing policies, to keep them alive and available until the politically impossible becomes politically inevitable. — Milton Friedman

Environmentalists have developed some amazing and useful alternatives to the policies that have gotten us into big trouble like the Gulf oil catastrophe. The old policies are those like privatization is the best and highest use of all property. Government by and for corporations. Fossil fuels are essential for the economy regardless of their pollution.

The new policies are the commons, public trust, and precaution.

In the weeks that followed the BP oil disaster, the public and the media are expressing outrage that BP acts as if it owns the ocean. BP refused an EPA order to use less toxic dispersants. It is keeping scientists and the public away from the site itself and refusing to make data public. The public has been vociferous: “BP does not own the ocean.”

The deep intuitive sense is that the ocean is a commons—we all share it. Herons, whales, seaweed and humans. We have a right with all of these other beings and humans to care for it, to share in its bounty. The commons are the foundation of our economy. Without a healthy ocean, or local prairie or forest, without clean air and water, without the web of life, all of our dollars are worthless.

The idea of the commons is an ancient one but has been lost in the private property free-for-all of the United States. There’s a good historical reason for the ascendancy of private property in the U.S. When we broke away from the British monarchy, owning land was the basis for citizenship, the right to participate in government. This is so deeply embedded in our cultural DNA that public ownership of land is often seen by the right wing as a Communist plot.

But throughout our history we’ve also set aside public places such as national parks and shorelines that are commons. The U.S. law of the commons has developed piecemeal and underground, for the most part. A year ago, several of us wrote a paper that put forward a comprehensive law of the commons. The law of the commons is one of those ideas lying around that Friedman says we need in time of crisis. The old idea that privatization leads to the highest and best use has failed.

The corollary to the commons is that government is the trustee (not the owner) of our shared wealth and must care for it on behalf of present and future generations.

The standard of care government must use to fulfill its responsibility as the trustee is the precautionary principle: “When an activity raises threats of harm, precautionary measures must be taken even if some cause and effect relationships have not been fully established scientifically.” This means our agencies must act on the best available information to prevent harm.

The BP oil hemorrhage has demonstrated that cleaning up messes is far more costly than preventing them in the first place. Calls for the precautionary principle by scientists like Jean-Michel Cousteau and others who love the ocean have never been stronger or clearer. We’ve done our homework and figured out how to implement the precautionary principle. It can be taken off the shelf and used now.

Canadian environmental leader Wayne Roberts calls the precautionary principle the “plug for the legal loophole that caused the gushing hole in the Gulf.” That loophole was the U.S. insistence, for the past 30 years, on the “risk management” and “cost benefit” approach to regulating iffy technologies of all kinds. He predicts Europe’s decade of experience with the precautionary principle is about to get a lot more respect. No more will Europeans be scorned as technological sissies.

Here is how the precautionary principle is working in Europe, is beginning to work in the US states and localities that have adopted it, and is ready to work on the national level.

1. It shifts the burden of proof and responsibility to the perpetrators of risk. Demonstrate the safety of your products and procedures before you impose them on the public. Demonstrate your ability to prevent, clean up, and pay for your own messes. If you can’t do that, you have no business doing business. The Safe Chemicals Act of 2010 now before Congress is an example of how that could work in one major area of the economy. We must apply that shift to energy and mining.

2. It makes us pay attention to the big picture. In today’s world we can’t afford to weigh the costs and benefits of each harm, each risky move, as if it were the only one. Rather, each environmental insult pushes fragile systems closer to the point of no return. The Gulf marshes have already been weakened by erosion, hurricanes, and development. They may not survive the oil spill. And we must look beyond the present disaster to the disasters waiting to happen as well as those quietly underway, like the Canadian oil sands devastation.

3. It makes us plan for the long term. President Obama approved a new round of off-coast drilling because we need that short-term oil fix for today’s bottom line. But short-term fixes can produce long-term disasters that destroy the livelihoods of people today as well as tomorrow. We can’t afford to wait to change the economic practices that produce false bottom lines and create enormous hidden costs and debt both today and in the future.

4. Precautionary policies are cost effective, even for industry, if they can prevent disasters too big to contain. Sanford Lewis proposes a number of strategies to integrate “the common sense of precaution” to corporate decision-making. By contrast Senator Lisa Murkowski’s attempt to protect the oil industry by limiting liability to $75 million shows how far backward politicians can bend to protect businesses from the consequences of their own actions. This kind of coddling doesn’t protect our economy; it weakens it.

Deepwater drilling is one of many high-risk enterprises we have turned loose on the world. We’ve seen what happens when they go wrong. Implementing the precautionary principle, on the other hand, is something like making the transition to renewable energy. It takes work and investment in the near term. But the risks are low and the potential rewards are high.