LAND USE AND PRECAUTION
Donald L Ferrt
Date: Mar 18, 2004 4:43 PM
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RACHEL'S ENVIRONMENT & HEALTH NEWS #787
http://www.rachel.org
March 18, 2004
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LAND USE AND PRECAUTION
by Carolyn Raffensperger* and Peter Montague
Land use decisions are ideally suited to the precautionary
principle exercised under the public trust doctrine.
The precautionary principle is the "better safe than sorry"
approach to decisions,[1] but what is the public trust
doctrine? It is an ancient legal doctrine handed down to us
from Roman law, through English law, into the law of the 13
original colonies and now the states.[2]
The public trust doctrine asserts that government has an
inalienable duty (a duty that cannot be denied or given away)
to protect the common wealth -- air, water, wildlife, public
health, our genetic heritage, and more -- which we all inherit
and own together and none of us owns individually.[2]
This may seem like an obvious role for government but in the
real world many government officials behave as if their primary
duty is not to protect our common heritage, but to "balance"
the interests of the polluters against the interests of public
health and the environment. In such a balancing act, money
weighs heavily, and so we end up with a damaged natural world
and large numbers of people killed each year and many more made
sick. (In the workplace alone in the U.S., 55,000 are killed
and an estimated 800,000 made sick each year. That's 150
funerals every day of the year, all of them preventable.[3])
Usually in such "balancing" acts, government officials use
"risk assessment" to show that their decisions will only cause
"acceptable" harm. But risk assessments are easily manipulated
to get almost any desired answer. As a result -- whether they
intend to or not -- risk assessors usually provide nothing more
than a false veneer of "sound science," justifying the
destruction and the killing. As William Ruckelshaus (the first
administrator of U.S. Environmental Protection Agency) 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."[4]
In essence, governments that use risk assessments to fulfill a
"balancing" role are really taking sides with the killers and
despoilers. Such governments provide a buffer, a giant sponge
to muffle the pleas for help and the angry cries of the
victims, without providing adequate relief by preventing harm.
Risk assessment is still the main defense offered by "balancing
act" governments on behalf of polluters, even though most risk
assessments are scientifically indefensible and are therefore
about as phony as a three-dollar bill.[5]
The public trust doctrine provides a legal and philosophical
foundation for government to take a different approach, to
steadfastly resist the destruction of nature and human health.
The public trust doctrine casts government in a heroic role as
guardian of the public trust -- a trust created by ancient
laws, requiring the sovereign to protect the common assets that
we all own together. As trustee, government must protect the
trust assets (nature and human health) for the trust
beneficiaries (present and future generations). Government even
has a duty to protect the trust assets against harmful actions
by the beneficiaries themselves, and so from time to time
government must limit some of the prerogatives of private
property in order to protect the common wealth for present and
future generations.
In carrying out its duty to protect the public trust,
government has a duty to anticipate harm, to look ahead to
protect the trust against impending threats.[6] If government
waits until harm can be demonstrated beyond doubt, then it will
be too late -- the trust property will be damaged and
government will have failed in its duty as trustee.
The precautionary principle provides a way for government to
fulfill its responsibility to protect the public trust, to
anticipate and avoid harm, to foresee and forestall. The
precautionary principle says that, when there is reasonable
suspicion of harm and there is scientific uncertainty, then we
all have a duty to take action to prevent harm.[1]
However, protecting the public trust is not government's only
duty. Governments are also created to establish justice,
impartiality, fairness. Government's duty to "establish
justice" was stated explicitly in the Preamble to the
Constitution: "We the people of the United States, in order to
form a more perfect union, establish justice, insure domestic
tranquility, provide for the common defense, promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America."
The Preamble introduces a third set of duties for government --
to defend and promote the general welfare. Defend against what?
First, of course, against the British navy -- a real threat in
1789, which the U.S. confronted in 1812. But surely in
defending and promoting the "general welfare," government was
meant to defend against all serious threats of widespread harm
to the citizenry. This is the source of the "police power" that
gives governments, down to the municipal level, the authority
to protect public health today.
So government is imbued with a cluster of related duties -- to
protect the public trust resources of the states (therefore the
nation), to defend the citizenry against foreign invasion and
other widespread threats and harms to public health, to promote
the "general welfare" (sometimes called the "common good"),
and
to establish the conditions for justice. This cluster of duties
defines for us which decisions are ethical (right and good) and
which are not.
Land use decisions are some of the most important ethical
choices made by governments.[7] When we run sewer pipes out
into an orchard, to promote the growth of McMansions instead of
apples, that is a decision heavy with ethical consequences.
When we then attach those sewer pipes to a smelly sewage
treatment plant in a part of town inhabited mostly by people of
color or low income, that too is an ethical choice.
The ethical dimensions of land use decisions have long been
felt by the environmental justice community because they've
born the brunt of unethical and unjust decisions.
Look around. Do you suppose it is by accident that expressways,
incinerators, putrid industries and garbage dumps are so often
located in poor communities and communities of color? These
communities have been told by the risk assessors and other
government "experts" that tons upon tons of soot, fumes, and
stench pose only "acceptable risks" to health and quality of
life. In such situations, the burden of proof is placed on the
community to prove harm, not on the government or the
corporations to prove that they have done everything possible
to prevent harm.
Just last week one of us (PM) watched the New Jersey Department
of Environmental Protection rubber stamp a 5-year license for a
garbage incinerator to continue dumping 11 million pounds of
toxic pollutants -- including 10,000 pounds of toxic lead in
the form of a fine dust -- into a predominantly black and
Hispanic residential neighborhood in Camden City. The
government's risk assessment "proved" that the cancer risk from
the incinerator is "acceptable" -- without ever considering any
other harms from the toxic lead, or the 100 tons of deadly
toxic soot. This is government performing its "balancing act"
in its most venal and deadly form. The term "unethical" barely
captures the enormity of the evil embodied in such a land use
decision -- and this from a state government that claims it is
committed to environmental justice, the precautionary
principle, and the public trust doctrine. Beware of slick
bureaucrats armed with risk assessments.
Land use planners have a term for unpopular projects -- Lulus
-- locally unwanted (or "unacceptable") land uses. Typically,
when making the decision to impose Lulus on communities of
color or low income, alternative ways of solving the problem
are not publicly considered. And usually the promised jobs
never materialize or they go to people outside the community.
The result is a spiral of injustice -- poverty, disease and
environmental degradation caused by unethical land use
decisions made by "balancing act" governments shilling for
corporate "developers."
The precautionary principle has advanced in the United States
as a direct response to this spiral of injustice. As defined in
the Wingspread Statement, the precautionary principle says,
"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 (this principle) must be open, informed and
democratic and must include potentially affected parties. It
must involve an examination of the full range of alternatives,
including no action."[8]
A key element of the precautionary principle is its blend of
science and ethics. Precaution stands for the idea that we
should protect the public good in the face of scientific
uncertainty and the likelihood of harm. This is, at its heart,
an ethical position. Of course honest and thorough science is
essential for guiding precautionary action, but as the
Europeans are fond of saying, "Science should be on tap, not on
top."[9] Our land-use choices must by guided first by our
ethical values, with the help of the best available science.
Governments in Europe have begun to embrace the precautionary
principle in a systematic way, and they are now working out the
practical details of precautionary decision-making.
Some states in the U.S. have begun to toy with precautionary
ideas, but it is at the municipal level where precaution has
really flourished. Now an enlightened organization of local
government officials has recognized the profound harms caused
by unethical land use decisions, and has begun to advocate for
the precautionary principle as a way of doing better. In
September, 2003, the National Association of County and City
Health Officials (NACCHO) passed resolution 03-02 laying out
the problem.[10] They said (in part),
"WHEREAS, land use decisions may contribute to:
"Health inequities; an increase in health and safety risks,
poor quality housing, unstable neighborhoods, unsustainable
ecosystems, and poor quality of life can be created; asthma
mortality is approximately three times higher among
African-Americans than it is among whites; the elderly and
people with disabilities are disproportionately affected by a
lack of sidewalks and depressed curbs; and
"Chronic disease; more than 25 percent of adults in the United
States are obese, and more than 60 percent do not engage in
enough physical activity to benefit their health; research has
shown that a healthy diet and physical activity can prevent or
delay type 2 diabetes; and
"Increased traffic congestion, reliance on the automobile, and
increased pedestrian and bicyclist vulnerability; commuting
stress has increased in recent years, while there has also been
a decline in social capital (community connectedness); one
pedestrian is killed in a vehicle accident every 108 minutes
and injured every 7 minutes; and
"Decreased air quality and increased pollution emissions; motor
vehicles are the largest source of manmade urban air pollution,
and the EPA attributes 64,000 premature deaths per year to air
pollution; between 1980 and the mid 1990's, the rate of people
with asthma rose by 75 percent; and
"Decreased water quality; according to the EPA, soil erosion,
and destruction of wetlands threaten surface and ground water
quality, which may be drinking and/or recreational water
sources; runoff from point and non-point sources pollute
waterways, and is exacerbated when the amount of impervious
surface in an area is increased; and
"Loss of greenspace and land conversion; greenspace provides
benefits for air and water quality, as well as for the physical
and mental health of people; sprawling development consumes 1.2
million acres of productive farmland per year; according to the
American Farmland Trust, land is being developed at two times
the population growth rate; and
"Inappropriate hazardous materials facilities siting,
transportation, and storage; exposure to heavy metals has been
linked with certain cancers, kidney damage, and developmental
retardation; and areas zoned for hazardous materials storage
that contain toxic-waste facilities are often located near
housing for poor, elderly, young, and minority residents ...."
After calling for the precautionary principle, the NACCHO
resolution suggests three ways to make it work:
** integrate public health perspectives and practice (which are
based on prevention) into land use planning;
** ensure early, sustained, and effective participation by
affected community members in all stages of land use and zoning
decisions; and
** dedicate more resources to getting public health people
involved in land use decisions through training, development of
tools, technical assistance and other support.
The question then becomes, How will we know a precautionary
land-use decision when we see one? In other words, how can we
tell whether a decision will promote the health and
sustainability of our communities?
People who advocate for "sustainable agriculture" have a useful
definition that combines three simple ideas. They say
sustainable communities must be "economically viable, socially
just, and ecologically sound."[11] Let's look at these three
criteria:
1. Economically Viable
One way to think about the economics of a land-use decision is
to ask whether it will increase the wealth that flows into the
community or whether wealth will hemorrhage out. For instance,
a big box store that doesn't use local suppliers or local banks
can create a colonial economy, siphoning money away to enrich a
distant corporation. Similarly, land use proposals can be
judged by the number of community-supporting jobs they will
create, meaning jobs that pay a living wage and are actually
filled by community members.
Another aspect of economic viability is reducing economic
inequality. We have an extensive medical literature showing
that economic inequality and ill health are strongly
correlated. It's not just that poverty causes illness and
death, it's that inequality itself -- the chasm between the top
and bottom -- causes poor health. Low income forms part of the
picture, but equally important are social exclusion, feelings
of powerlessness, chronic anxiety, insecurity, low self esteem,
social isolation (racism, for example), and the sense that life
is out of control -- all of which contribute significantly to
heart disease, depression and other debilitating and deadly
ailments. Thus steps to reduce inequalities are basic
requirements of public health and community viability.[12]
Land use decisions can enrich the few at the expense of the
many or they can increase the common wealth and promote the
general welfare.
Everyone involved must honestly ask, "Does this proposal
improve the economic viability of our community?"
2. Socially Just
As the environmental justice community knows, land use
decisions are often unjust. Unethical land-use is where
environmental injustice begins. To ensure ethical land use
decisions, the principles of environmental justice and full
community participation must be incorporated into land use
planning and zoning. People of color and those with low income
must be represented in decisions. (Why are zoning boards so
white, so male, so middle-aged?) Furthermore, transportation
planning and investments must support and strengthen
communities rather than destroying them.[13]
Everyone involved must honestly ask, "Does this proposal
increase justice and fairness within our community and in
relation to other communities?"
3. Ecologically Sound
Clean air, good drinking water, adequate parks and open space,
are all essential components of the "public good." These
environmental assets must be protected from unethical land use
decisions. Alternatives should be fully considered and the
least damaging ways of meeting the community's goal should be
selected. Furthermore, community goals must not be set by the
local "growth establishment" -- the land "developers,"
financiers and lawyers who traditionally "improve" local land
for their own gain, often greatly diminishing the common
wealth. Affected communities should be enabled to set their own
goals and speak for themselves.
Everyone involved must honestly ask, "Does this proposal
increase the ecological health of our community?"
Too often land use decisions have protected endangered species
but put children in harms way. Jobs have been traded for clean
air. Or clean air has been sacrificed for another highway.
These trade-offs aren't sustainable because they ignore one or
another of the 3 criteria: economic viability, social justice
and ecological sustainability.
By using these three tests for judging precautionary action in
land use decision-making, governments are more likely to
prevent the harms caused by decades of unethical land-use
decisions.
Communities are now using these ideas and holding governments
accountable for their public trust responsibilities. For
example, the Environmental Health Coalition (EHC) in San Diego,
California, conducted a successful 10-year land-use and zoning
campaign to shut down a chrome plating shop that had
contaminated nearby homes with chromium-6, a powerful
carcinogen. EHC and its partners forced the San Diego City
Council to modify the city's zoning and community plan.
Shutting down the polluter -- a notorious convicted violator of
emission standards -- gave the Barrio Logan neighborhood an
estimated 75% reduction in chromium pollution and it increased
the likelihood that city officials would view future land-use
decisions in a new light.[13]
Three cheers to NAACHO for its powerful resolution asserting
the rightful role of government to protect the public trust by
using the precautionary principle in land-use decisions!
And a million cheers to all the community groups who have
struggled for years against injustice! Their struggles are
paying off for all of us, helping create a better world that is
a more economically viable, socially just and ecologically
sound.
=================
* Carolyn Raffensperger is director of the Science and
Environmental Health Network in Ames, Iowa; http://www.sehn.org
[1] Ted Schettler, Katherine Barrett, and Carolyn
Raffensperger, "The Precautionary Principle: Protecting Public
Health and the Environment," unpublished paper dated 2003;
available at http://www.rachel.org/library/getfile.cfm?ID=187
[2] Peter Manus, "To a Candidate in Search of an Environmental
Theme: Promote the Public trust," Stanford Environmental Law
Journal Vol. 19 (May 2000), pg. 315 and following pages.
Available at http://www.rachel.org/library/getfile.cfm?ID=234
[3] K. Steenland and others, "Dying for work: The magnitude of
US mortality from selected causes of death associated with
occupation," American Journal of Industrial Medicine Vol. 43,
No. 5 (2003), pgs. 461-82; and J.P. Leigh and others.
Occupational Injury and Illness in the United States. Estimates
of Costs, Morbidity and Mortality. Archives of Internal
Medicine. Vol. 157, No. 14 (1997), pgs. 1557-1568.
[4] William Ruckelshaus, "Risk in a Free Society," Risk
Analysis Vol. 4, No. 3 (1984), pgs. 157-162. Available at
http://www.rachel.org/library/getfile.cfm?ID=361
[5] For a recent critique of risk assessment, see Peter
Montague, "Chemical Wars," New Solutions Vol. 14, No. 1 (2004),
pgs. 19-42. In press.
[6] James T. Paul, "The Public Trust Doctrine: Who Has the
Burden of Proof?" Paper presented July, 1996 in Honolulu,
Hawaii, to a meeting of the Western Association of Wildlife and
Fisheries Administrators. Available at
http://www.rachel.org/library/getfile.cfm?ID=190
[7] Timothy Beatley, Ethical Land Use (Baltimore: John Hopkins
University Press, 1994). See especially chapter 15.
[8] The Wingspread Statement on the Precautionary Principle.
Unpublished, dated January, 1998. Available at
http://www.rachel.org/library/getfile.cfm?ID=189
[9] See, for example, Andrew Stirling, On Science and
Precaution in the Management of Technological Risk, Vol. I. A
Synthesis Report of Case Studies (Brussels, Belgium: European
Science and Technology Observatory, May, 1999.) Available at
http://esto.jrc.es/detailshort.cfm?ID_report=289
[10] National Association of County and City Health Officials
(NACCHO), Resolution 03-02 to Support Land Use
Planning/Community Design, dated Sept. 9, 2003.
http://www.rachel.org/library/getfile.cfm?ID=337
[11] "A sustainable agriculture must be economically viable,
socially responsible, and ecologically sound. The economic,
social, and ecological are interrelated, and all are essential
to sustainability. An agriculture that uses up or degrades its
natural resource base, or pollutes the natural environment,
eventually will lose its ability to produce. It's not
sustainable. An agriculture that isn't profitable, at least
over time, will not allow its farmers to stay in business. It's
not sustainable. An agriculture that fails to meet the needs of
society, as producers and citizens as well as consumers, will
not be sustained by society. It's not sustainable. A
sustainable agriculture must be all three -- ecologically
sound, economically viable, and socially responsible. And the
three must be in harmony." --- Dr. John E. Ikerd, Extension
Professor, University of Missouri. Go to
http://www.victoryseeds.com/information/glossary.html and look
for "sustainable agriculture."
[12] See Rachel's #497, #584 and #654; and see Richard
Wilkinson, Unhealthy Societies: The Afflictions of Inequality
(New York: Routledge, 1997; ISBN: 0415092353); and see the
bibliography in D. Raphael, Inequality is Bad for Our Hearts:
Why Low Income and Social Exclusion Are Major causes of healrt
Disease in Canada (Toronto: North York Heart Health Network,
2001). And see, for example: Ana V. Diez Roux and others,
"Neighborhood of Residence and Incidence of Coronary Heart
Disease," New England Journal of Medicine Vol. 345, No. 2 (July
12, 2001), pgs. 99-106. And: Michael Marmot, "Inequalities in
Health," New England Journal of Medicine Vol. 345, No. 2 (July
12, 2001), pgs. 134-136. And see the extensive bibliographies
in the following: M. G. Marmot and Richard G. Wilkinson,
editors, Social Determinants of Health (Oxford and New York:
Oxford University Press, 1999; ISBN 0192630695); David A. Leon,
editor and others, Poverty, Inequality and Health: An
International Perspective (Oxford and New York: Oxford
University Press, 2001; ISBN 0192631969); Norman Daniels and
others, Is Inequality Bad for Our Health? (Boston: Beacon
Press, 2000; ISBN: 0807004472); Ichiro Kawachi, and others, The
Society and Population Health Reader Volume I: Income
Inequality and Health (New York: New Press, 1999; ISBN:
1565845714); Alvin R. Tarlov, editor, The Society and
Population Health Reader, Volume 2: A State Perspective (New
York: New Press, 2000; ISBN 1565845579).
[13] Martha Matsuoka, compiler, Building Health Communities
from the Ground Up: Environmental Justice in California.
(Oakland, Calif.: Asian Pacific Environmental Network [APEN]
and others, Sept. 2003. Available at
http://www.rachel.org/library/getfile.cfm?ID=360
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