Climate Change, Human Health, and the Post-Cautionary Principle

In this Article, I suggest two different but related ways of reframing the public discourse on climate change. First, I propose that we move further in the direction of characterizing climate change as a public health threat and not only as an environmental threat. Second, I argue that we should stop thinking of responses to climate change in terms of the precautionary principle, which counsels action even in the absence of scientific consensus about a threat. We should speak instead in terms of a ?post-cautionary? principle for a post-cautionary world, in which some very bad effects of climate change are unavoidable and others are avoidable only if we take dramatic steps, and soon. These points are related insofar as they together create a moral imperative both to adapt to the changes we cannot prevent and to mitigate those we can. Without these efforts, people will fall ill and many will die, and we know now that this will occur. No fancy moral theory is required to condemn, and to make every attempt to avert, this large-scale knowing killing

Forward

Scientific information has become a centralr ationalef or environmental regulation, and scientific uncertainty is viewed as a major obstacle in developing, justifying, and enforcing environmental laws and policies. In the context of environmental regulation, scientific information may be analyzed as subject to both supply and demand. A regulatory system that supplies more scientific information than it demands can operate effectively to impose protective regulation. By contrast, a system that demands more information than it supplies will face a data gap and will fail to accomplish its protective goals. The data gap can be addressed by applying regulatory techniques that increase the supply of data by providing more information (\u27filling the gap) or that reduce the demand by permitting regulation to proceed despite uncertainty and incomplete information ( bridging the gap). Environmental law is also structured by the divide between pollution control and chemical regulation on the one hand, and resource management on the other. In addressing the data gap, therefore, it is necessary to distinguish not only between supply and demand, but also between chemical and conservation issues. The existence of a data gap between the scientific information necessary for effective environmental regulation and the information available to regulators and the public presents an opportunity to study the causes and extent of the differences in the chemical and conservation regulatory systems. Missing Information: The Scientific Data Gap in Conservation and Chemical Regulation, Symposium held on March 24, 2006 at Indiana University School of Law- Bloomington

The Temporal Dimension of Land Pollution: Another Perspective on Applying the Breaking the Logjam Principles to Waste Management

Unlike air and water pollution, pollution from dangerous solid and liquid wastes on land remains a relatively concentrated, active hazard for long periods of time. Uncontrolled, land pollution moves through the environment slowly and often without significant diminution of toxicity. Persistence, in fact, is often regarded as the defining quality of dangerous land pollutants. Hazardous and nuclear waste regulation is very much concerned with the problem of maintaining the isolation of solid and liquid materials over decades, centuries, and even millennia, and, the author argues, there is good reason to believe that waste management practices and institutions are not well designed to monitor and safeguard wastes over the time periods during which it remains dangerous. The author discusses how the principles of the Breaking the Logjam project might be applied in crafting solutions to the problems posed by the temporal dimension of hazardous waste management and concludes with the suggestion of an additional principle of institutional learning and the conservation of options: in any long-term effort one must expect that over time we will come to understand a problem better and so develop better ideas for addressing it. But these improvements can only be implemented if the regulatory system is capable of learning and if decisions now leave open options for the future

The Temporal Dimension of Land Pollution: Another Perspective on Applying the Breaking the Logjam Principles to Waste Management

Unlike air and water pollution, pollution from dangerous solid and liquid wastes on land remains a relatively concentrated, active hazard for long periods of time. Uncontrolled, land pollution moves through the environment slowly and often without significant diminution of toxicity. Persistence, in fact, is often regarded as the defining quality of dangerous land pollutants. Hazardous and nuclear waste regulation is very much concerned with the problem of maintaining the isolation of solid and liquid materials over decades, centuries, and even millennia, and, the author argues, there is good reason to believe that waste management practices and institutions are not well designed to monitor and safeguard wastes over the time periods during which it remains dangerous. The author discusses how the principles of the Breaking the Logjam project might be applied in crafting solutions to the problems posed by the temporal dimension of hazardous waste management and concludes with the suggestion of an additional principle of institutional learning and the conservation of options: in any long-term effort one must expect that over time we will come to understand a problem better and so develop better ideas for addressing it. But these improvements can only be implemented if the regulatory system is capable of learning and if decisions now leave open options for the future

Learning from NEPA: Some Guidelines for Responsible Federal Risk Legislation

The past three or more Congresses have seen substantial efforts to enact risk reform legislation that would require environmental, health, and safety regulations to be adopted following the performance of risk assessments modeled on quantitative risk assessment methods for carcinogens. While such a requirement has potentially beneficial effects on the quality of the resulting rules, there is also a substantial potential for mischief by reorienting substantive environmental, health, and safety regulation, and by introducing substantial new costs and delays into the regulatory process. This article, which is derived from a report by the authors to support an American Bar Association recommendation on risk legislation, presents eight guidelines that ought to be followed by such legislation were it to be adopted. The article also draws on the experience with the National Environmental Policy Act. Environmental impact statements are analogous to risk assessments in many (heretofore unrecognized) respects, especially the importance of distinguishing between a procedural, analytical tool for decisionmaking and a substantive, result-determinative element of rulemaking