In the waning days of the Bush Administration, the White House has offered up a host of “midnight regulations,” easing restrictions on toxic pollutants, mountaintop mining and other environmental hazards. President-elect Obama may succeed in blunting many of these regulations. But he will have a much longer struggle to undo the Bush Administration’s persistent efforts to undermine the protections contained in environmental laws, instead leaving it to those who are harmed by contamination to protect themselves.
Our environmental laws have long reflected our collective commitment to “risk reduction” by requiring that environmental contamination be cleaned up, reduced or prevented altogether. For the last eight years, however, the Bush Administration has quietly worked to replace risk reduction with “risk avoidance.”
Rather than targeting the sources of environmental contamination, risk avoidance shifts the burden to the people whose practices or lifeways expose them to these contaminants. By means of fish consumption advisories, ozone alerts, pesticide-contact warnings, beach closures and the like, these measures ask those exposed to alter their ways to avoid contact with the contaminants permitted in the environment.
The appeal of risk avoidance is that it appears relatively cheap — at least in the short term. These strategies seem to promise “the same amount of human health protection” at a fraction of the cost: It is generally less expensive to post a sign or maintain a website than it is to prevent or clean up contamination. This promise of cost savings is all the more alluring in the current economic climate.
The perils of risk avoidance, however, are several and serious.
A Myopic and Off-Target Approach
By targeting only specific, direct threats to human health, risk avoidance fails to address the myriad other effects of contamination. Thus, it neglects entirely the adverse impacts on all the other components of ecosystems. Loons cannot read fish consumption advisories.
Further, because risk avoidance measures are directed at human exposure, they depend on a complete understanding of the human health endpoints and pathways of exposure involved. Where such understandings are incomplete, warnings will miss their mark.
Fish consumption advisories for mercury, for example, currently target women and children, given methylmercury’s neurodevelopmental effects. But the most recent studies reveal that methylmercury also has adverse cardiovascular effects for adult males.
Warnings Often Are Ineffective
For risk avoidance to work, warning messages must be received and understood, restrictions must be enforced and, ultimately, human behaviors must be changed. Even proponents of risk avoidance concede the enormous hurdles here.
For example, a recent study showed that only half the people consuming fish caught on the Great Lakes were aware of the relevant fish consumption advisories; people of color, women and those without a high school degree were least aware. These hurdles loom larger when those affected don’t speak the language in which advisories are dispensed or don’t have the economic means to alter their practices by fishing elsewhere or purchasing substitutes at the supermarket.
Moreover, those for whom fish consumption has spiritual, traditional or cultural dimensions — such as the fishing tribes in the Pacific Northwest and elsewhere — may feel it simply impossible to alter their lifeways and cease eating fish. A recent survey of the Ojibwe tribes showed that whereas 57% of tribal fishers were aware of mercury advisories for walleye, only 9% had ever refused to eat walleye in a ceremonial setting.
An Approach with Finite Possibilities
For some pollutants, there are few options for avoidance. A fisher seeking to avoid PCBs can alter his preparation methods — trimming the skin and fat from fillets — but continue to fish at his customary sites, for his customary species. But a fisher seeking to avoid mercury cannot do so merely by changing her preparation methods, because methylmercury accumulates in the muscle tissue that comprises the fillet. Instead, she is left to curtail — or eliminate altogether — her intake of certain species from particular waters.
More broadly, if risk avoidance is allowed to supplant risk reduction, eventually we will live in a world in which there are no longer any healthful alternatives, as uncontaminated environments are permitted one by one to become and remain contaminated.
Introducing Risks
If those exposed to contamination change their ways, they may face a different set of risks. For example, to the extent that people comply with fish consumption advisories, they must forego the health benefits of frequent fish consumption, opening themselves up to an increased risk of coronary and other diseases.
This is an especial concern for those for whom fish forms a part of a traditional diet, including members of the fishing tribes. For these peoples, regular consumption of fish and other traditional foods has been shown to promote health and combat diabetes — a disease that afflicts American Indians and Alaska Natives at two to three times the rate of other groups.
Indeed, an approach to mercury regulation that relies on risk avoidance asks a girl to forgo fish throughout her childhood and then, as a woman, throughout her childbearing years — in total, more than half her life!
Risk Avoidance Is Unjust
The burdens of risk avoidance are likely to fall disproportionately on tribes and indigenous peoples, other communities of color and low-income communities, because they are likely to be among the most exposed. Members of the general population, especially those who consume no fish, are not much affected when agencies turn to advisories in lieu of reducing mercury, PCBs, dioxins and other contaminants. But members of the fishing tribes are profoundly affected, given their heavy reliance on fish and fishing.
Moreover, risk avoidance measures are likely to be adopted only where they are thought not to occasion great loss. But this judgment is made by reference to the understandings and commitments of the dominant society — which may not be shared by those faced with altering their practices. Thus, a member of the general population might substitute turkey for tuna with only relatively modest accommodations to palate and pocketbook.
But a member of the Swinomish Tribe might find it unthinkable that she forgo fish, given the grave affront this would mean to the very identity of her people. In this instance, to leave contamination unaddressed while relying on fish consumption advisories is to perpetuate a long history of cultural discrimination against American Indian peoples.
Given these perils, the true cost savings of a shift to risk avoidance dwindle and may even disappear. It is important to consider the bigger picture and see risk avoidance for the short-sighted, ineffective and unjust approach that it is.
Prof. Catherine O’Neill teaches Environmental Law, Environmental Justice and Natural Resources at Seattle University School of Law.
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