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In The News Bill could introduce precaution into environmental law
By Christopher Root
Gazette staff writer
Legislative Gazette, Albany N.Y.  April 19, 2004

Following the maxim "better safe than sorry," a New York assemblyman has sponsored legislation that would radically change the way the state addresses technology-related risk management.

The legislation proposed by Assemblyman Alexander B. "Pete" Grannis, D-Manhattan, draws influence from European policy and calls for a precautionary approach in assessing risks associated with New York State funded research and development.

Grannis' bill calls on the developers of technology to prove the safety of their product instead of waiting for corroborated and overwhelming scientific evidence that a product causes harm to humans and the environment.

"[The bill] shifts the burden to those who are the proponents of technology to demonstrate that some level of foresight was used," said Paul Bray, temporary council for the assembly and drafter of the bill.

The law would enable a concerned citizen to submit a petition to the state office of science, technology and academic research advisory council to review a technology. The technology would then be analyzed to determine if the petitioner's concern was merited from both an environmental and public health perspective. If it were determined that the concern was legitimate, a review would be conducted by an independent scientific institution to determine whether or not state funding should be terminated.

Bray said that Grannis' precaution bill is not as revolutionary in New York as it might seem. Bray noted that New York State environmental impact law, specifically the State Environmental Quality Review Act, calls for a very precautionary approach.

Included in the SEQRA, part 617.1 of the New York Environmental Conservation Rules and Regulations adopted in 1995, is a call for all state agencies to regard themselves as stewards of the environment. Additionally, the lawmakers wrote that the law's purpose was to incorporate a consideration of environmental factors in the planning and decision-making process at "the earliest possible time."

The precautionary principle that Grannis' bill draws influence from has its roots in European thought on environmental policy. The principle gained international political legitimacy at the 1992 Rio Conference on the Environment and was included in European Union's 1997 Amsterdam treaty. It has not, however, been met with as much enthusiasm in the United States.

The precautionary principle has been defined numerous times and in different ways, and the lack of a consistent definition is sometimes viewed as one of its political weaknesses.

According to Carolyn Raffensperger, executive director at the Science and Environmental Health Network, all the definitions contain the same three elements: plausible harm, scientific uncertainty and precautionary action.

"When an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically," is how scientists, philosophers, lawyers and environmentalists defined the principle at a 1998 conference on precaution.

Critics of the precautionary principle say that it stunts technological progress and is not based on sound science. In a lecture last year, John D. Graham, administrator of the Office of Information and Regulator Affairs at the federal Office of Management and Budget wondered if important technologies such as electricity, the internal combustion engine, plastics and pharmaceuticals would have been invented had a precautionary principle been in place in 1850.

"By its very nature, technological innovation occurs through a process of trial-and-error and refinement, and this process could be disrupted by an inflexible version of the precautionary principle," said Graham.

Raffensperger dismissed Graham's claim.

"[Graham's speech] that presupposes a real failure of imagination that we could invent technologies which would not destroy the earth," said Raffensperger.

Raffensperger also disagreed with criticism that questions the scientific validity of the precautionary principle. According to Raffensperger, those opponents are thinking of an "18th century version of science that does not take into account scientific uncertainty."

"We don't feel we have to wait for that last nail in the coffin before we take action," said Raffensperger.

Graham and Raffensperger agree that the United States has suffered in the past because of a reluctance to take preventative action in the field of public health. In his speech, Graham cited tobacco, lead, and asbestos as examples of substances the United States waited too long to regulate properly.

"Historians teach us that the major health problems from these substances could have been reduced or prevented altogether if decision-makers had reacted to early scientific indications of harm in a precautionary way," Graham said in his speech.

"We want the dead bodies on the street and we want to count them before we take action," said Raffensperger, describing prevailing attitudes on environmental and epidemiological problems.

James K. Hammitt, professor of Economics and Decision Making at Harvard and Director of the Harvard Center for Risk Analysis says he sees the precautionary principle's value as a means of changing current environmental and public health policy to make it more preventative and proactive. However, he cautioned that because it is impossible to scientifically prove something does not exist, it would not be possible for companies to prove that their products pose zero risk to human health and the environment.

He also warned of the risk of trading one problem for another, mentioning the varying risks from different types of energy production such as coal and nuclear. .

"Most of the time when you reduce one risk, you are increasing another risk," said Hammitt.

Grannis' bill was originally submitted to the governmental operations committee last year and was submitted again early this year.

Bray said it is becoming more important to monitor academic research because of the amount of public funding that goes into it.

"This would build in a mechanism whereby public interest can be looked at and analyzed," said Bray.

Grannis described the advantages of his precautionary bill an broader terms.

"In the end, it is a wiser way," said Grannis.

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