The Precautionary Principle and International Efforts to Ban DDT

INTRODUCTION

In 1994, the U.S.-Canada International Joint Commission (IJC) recommended the phasing out of all organochlorines in the Great Lakes Basin, and did so in the strongest possible terms. Using the Great Lakes Water Quality Agreement of 1978 ⁿ² (GLWQA) as its mandate, the IJC stated that the “production and release of these substances into the environment must, therefore, be considered contrary to the Agreement legally, unsupportable ecologically and dangerous to health generally.” ⁿ³ The limit on allowable quantities of organochlorines entering the Great Lakes Basin must be “effectively zero.” ⁿ⁴

On the international level, efforts have also been made to eliminate certain Persistent Organic Pollutants (POPs), ⁿ⁵ many of which are organochlorines such as DDT and PCB. But there has been no significant action on this recommendation from either the U.S. or Canada. ⁿ⁶ The United Nations Environment Programme [*136] (UNEP) has taken the lead in the POPs elimination process, beginning with a “short list” of twelve POPs known as the “UNEP 12” ⁿ⁷ (or “dirty dozen” ⁿ⁸). This list includes polychlorinated biphenyls (PCBs), dioxins, furans, aldrin, dieldrin, DDT, endrin, chlordane, hexachlorobenzene (HCB), mirex, toxaphene, and heptaclor. ⁿ⁹ For both the IJC and UNEP, the so-called “precautionary principle” has been prominent, but with different processes and results.

This may be understandable, for the precautionary principle (invoked frequently in both U.S. environmental law ⁿ¹⁰ and international environmental law) ⁿ¹¹ is notably vague, and has several variants. ⁿ¹² In applying the precautionary principle, the IJC took a different approach than the UNEP negotiators for a POPs treaty. DDT, which would be banned in the Great Lakes Basin without exception under the IJC’s recommendation, has survived the UNEP negotiation process. The short explanation is that some beneficial uses of DDT remain, mostly for malarial control. Furthermore, because the principal scientific evidence for DDT’s toxicity relates to its effects on animals, in the absence of effective control alternatives an immediate global ban seemed unfair to anyone who might become exposed to malarial mosquitoes. ⁿ¹³ A more complete analysis of the UNEP negotiations reveals reason for concern over how the precautionary principle has been interpreted. ⁿ¹⁴

There was, of course, considerably less concern in the Great Lakes about the need to control malarial mosquitoes. During the 1990s, a formidable campaign against DDT and other organochlorines was mounted by several non-government organizations (NGOs), including the World Wildlife Fund ⁿ¹⁵ and Greenpeace. These NGOs recognize the immediate value of DDT for malarial control, but urge greater efforts to find alternative control methods. In 1994, the IJC invoked the precautionary principle to recommend banning DDT without exception and phasing [*137] out all organochlorines from the Great Lakes Basin. ⁿ¹⁶

The debate over DDT and other POPs not only shapes how the precautionary principle is used in international environmental law, but also has implications for international trade policy. The U.S. has long prohibited the import of produce with certain pesticide residues, including DDT residues. The actual risk to human life and health from such residues could well be an issue if U.S. import standards are regarded as needlessly stringent or risk-averse. ⁿ¹⁷ One of the ways that the U.S. can discourage use of DDT for purposes other than malaria control would be to ban any article of produce that was raised using DDT as a pesticide or herbicide. But such a ban would arguably violate U.S. GATT obligations as a member of the World Trade Organization. ⁿ¹⁸

Moreover, the differing approaches to DDT taken by the IJC and UNEP reflect the ongoing difficulties of safeguarding a regional environment from long-range, transboundary effects. Even if the IJC had the power to sunset their use in the Great Lakes region, DDT and PCBs will arrive uninvited by their use elsewhere. ⁿ¹⁹ Colder climates, such as the Arctic or the Alps, have an even greater exposure to DDT and other POPs, ⁿ²⁰ and the arrival of these organochlorines is inevitable without effective international agreements. Thus, a better understanding of the precautionary principle as an important element of international environmental law is essential for the global community to move forward.

This article looks at the precautionary principle in its various formulations and applies it to the question of whether DDT should be banned from all uses worldwide. [*138] As noted above, the question is laden with political and legal issues of some currency. It is a question that can be answered quite differently, depending on how the precautionary principle is defined and applied. Because of its multiple appearances and diverse meanings, the precautionary principle does not have one generally agreed upon definition. While it purports to address questions of scientific uncertainty in policy making, the application of the precautionary principle is itself uncertain.

This article has three parts. Part I provides a general background on organochlorines, including DDT, noting their benefits as well as their apparent risks. The IJC’s deliberations and actions are explained in some detail. Part II provides a general discussion of the precautionary principle several pronouncements on the principle from international bodies, and detailed criticism of the principle. Finally, Part III discusses UNEP’s decision to allow specified uses of DDT for malarial control considered in light of the precautionary principle along with the implications of that process for international environmental law and policy.

DDT, PCBs, and Other Organochlorines: All Too Risky?

The first part of this article details the benefits of DDT (and other organochlorines) along with their known and suspected risks. This part also analyzes the IJC’s recommendation that the manufacture and use of DDT, PCBs, and other organochlorines be completely phased out in the Great Lakes region. Further, the analysis includes the IJC’s use of the precautionary principle as well as a “reverse onus” principle, which places the burden of proof on those who would argue for the continued use of organochlorines in general, or DDT in particular. ⁿ²¹

The first section emphasizes organochlorines, of which DDT is only one example. According to the IJC, all organochlorines should be “sunsetted,” because so many of them give indications of being carcinogens or endocrine disputers. ⁿ²² Thus, all discussions of the “risks” of organochlorines generally will apply to DDT. The IJC’s reasons for recommending a categorical ban will also be examined in detail.

Organic Chemicals and the Industrial Revolution

There are millions of different chemicals in and on the earth. Some of these we can sense by taste, touch, or smell; but, many can only be detected with sophisticated [*139] instruments. In addition to chemicals that occur “naturally”, scientists have created hundreds of thousands of chemical compounds that do not occur in nature. ⁿ²³

Many organic (carbon-based) chemicals are found in nature. Plants and animals account for large numbers of organic molecules, and fossil fuels (natural gas, coal, and petroleum) are basic organic chemicals derived from decaying plant and animal remains. The organic chemical industry depends upon fossil fuels and a few other naturally occurring chemicals for everything it manufactures; fossil fuels not used directly for energy production are used as “feedstock” to produce synthetic organic chemical compounds. ⁿ²⁴

Tens of thousands of synthetic organic chemicals are in commercial production today. ⁿ²⁵ As of 1985, the American Chemical Society was registering new chemicals at the rate of 70 per hour, and some 500 new chemicals were entering commerce each year. ⁿ²⁶ Overall, such chemicals are central to industrialization and our sense of progress. For example, the organic chemical industry produces medicines, dyes, pesticides, fungicides, herbicides, rodenticides, soaps and detergents, synthetic fibers and rubbers, plastics and resins, adhesives, additives for drinking water, refrigerants, explosives, cosmetics, cleaning and polishing materials, and substances for processing and preserving foods. ⁿ²⁷

During the 19th century and leading up to World War II, coal was the principle “starting material” for the organic chemical industry. ⁿ²⁸ Other natural products such as animal fats, vegetable oils, and wood by-products were also widely used. ⁿ²⁹ The use of petroleum as a feedstock chemical began in earnest during the 1940s. Many petroleum hydrocarbons were found useful as non-aqueous solvents, however, they also proved highly flammable. Chemists found, however, that conversion of hydrocarbons to chlorine-containing substances (where hydrogen atoms were replaced by chlorine) created new solvents with greatly reduced flammability. ⁿ³⁰ Many of these came into wide use in the 1940s and 1950s as “degreasing” agents for oily machinery parts and for “dry cleaning” of clothing. Trichloroethylene (TCE), made famous (or infamous) in the toxic tort case portrayed in Jonathan Harr’s A Civil Action, is just such a solvent. ⁿ³¹ The good news on TCE and other organochlorines was their utility [*140] resulting from their reduced flammability and overall utility; the bad news was these “chlorinated hydrocarbon” solvents tended to be more toxic and more persistent in the environment than the hydrocarbons.

Overall Benefits of Chlorine Chemistry

Chlorine chemistry contributes far more to modern ways of living than most people realize. In its direct, elemental form, chlorine is used as a laundry bleach, as a disinfectant for public water supplies and swimming pools, in the bleaching process in pulp and paper mills, and as a treatment of wastewater effluent. Chlorine is also incorporated into many consumer products such as pesticides, ⁿ³² solvents, ⁿ³³ and plastics. ⁿ³⁴ Finally, chlorine is used as a catalyst or feedstock in many products such as pharmaceuticals. ⁿ³⁵

[*141] The ubiquitous nature of chlorine in the chemical industry is founded upon its chemical properties. When chlorine attaches itself to organic compounds (the carbon-based materials that comprise the tissues of living organisms), new substances called organochlorines are formed. ⁿ³⁶ As a result of chlorine’s multiple applications, “most . . . elemental chlorine is eventually incorporated into organochlorines,” ⁿ³⁷ either intentionally or unintentionally. Over eleven thousand different organochlorines are produced for industrial use, but many other substances, such as dioxins, are created as unintended by-products of processes that involve chlorine. ⁿ³⁸

During the 20th century, one of the principle benefits of synthetic organic chemistry was the discovery and use of chlorine-based pesticides. Worldwide, several hundred billion pounds of pesticides have been released into the environment. ⁿ³⁹ By 1969, nearly sixty thousand different products were sold containing some combination of pesticides ⁿ⁴⁰ and some five to six billion pounds of insecticides, herbicides, fungicides, rodenticides, and other biocides are added to the global environment annually. ⁿ⁴¹ About one-fourth of this amount is sold or released in the United States. ⁿ⁴² A significant number of pesticides are chlorine-based, and these show a greater tendency to remain in the air for possible human inhalation. ⁿ⁴³ As early as 1950, the FDA found that twenty-three chlorinated insecticides represented “a definite health hazard.” ⁿ⁴⁴

The agricultural revolution of the twentieth century was largely built on the use of new chemical technologies. Fertilizers were developed and applied to assure adequate nutrient value in the soil, and herbicides reduced the need to till the soil for [*142] weed control. Pests, including insects, plant pathogens, and weeds, destroy about thirty-seven percent of all food and fiber crops in the world every year. ⁿ⁴⁵ Some experts estimate that without pesticides, crop losses would increase between ten and one-hundred percent, depending on the type of crop and its location.

DDT was first synthesized in Germany in 1874, but its significance was not realized until the Swiss Chemist Paul Muller discovered its powerful effect on insect pests. Muller subsequently won the 1948 Nobel Prize. The award was well-deserved; within ten years of its introduction DDT “had saved an estimated five million lives.” ⁿ⁴⁶ Malaria killed over 100 million people in the 1900s, mostly infants and small children; it has infected and debilitated hundreds of millions more. “As many as 50 million people worldwide died of malaria, . . .” in the 1930’s. ⁿ⁴⁷ In concentrations of less than one part per million, DDT is effective in killing mosquito larvae. ⁿ⁴⁸

At the same time, acute toxicity of DDT to mammals (including humans) seemed quite low. Massive DDT production began in the U.S. in 1943 because as a fairly simple compound, DDT was cheap to produce, and it aided the U.S. war effort. By 1944, entire islands in the Pacific were sprayed to eliminate the large clouds of mosquitoes carrying malaria, yellow fever, and dengue fever that U.S. troops would have encountered. ⁿ⁴⁹

After the war, civil uses of DDT were widespread and global, and its benefits were both immediate and clear. As John Wargo notes, DDT “. . .gave insecticides a heath-projecting, health-promoting image, which in turn shaped the statutes and decision standards chosen to control pesticides since 1947. It has probably saved millions of children’s lives, especially in tropical areas where insect-borne diseases still take their worst toll.” ⁿ⁵⁰

The potential hazards of DDT and other pesticides became better known with time, where eventually the U.S. banned the use but not the production of DDT. ⁿ⁵¹ Subsequent to the 1973 ban in the U.S., numerous studies showed that DDT, like certain other organochlorines such as PCBs, easily dissolves in body fat and remains there for long periods of time. Rodricks notes that “most people have measurable amounts of these two once widely-used chemicals, and several more as well, in their [*143] fat stores.” ⁿ⁵² Various health concerns have risen over the tendency for human and non-human body fat to store DDT and its metabolite DDE.

Conversely, the banning of DDT is also a health concern. In many nations where malaria has not been eradicated and still remains a threat, DDT is considered a potential solution. ⁿ⁵³ In 1995, the World Health Organization (WHO) estimated that forty percent of the world’s population are still exposed to malaria, and four percent live in areas where malaria is endemic and no national eradication program has been implemented. ⁿ⁵⁴ The incidence of malaria is not declining, but may in fact be increasing. ⁿ⁵⁵ Unless there are practical alternatives to DDT, its continued use will be sought by nations afflicted by the scourge of malaria, regardless of any long-term risks.

The Risks of Organochlorines

While the benefits of chlorine-based chemicals were immediately appreciated, the understanding of their risks to animal and human health developed far more gradually. One by one, the organochlorines have come under scientific scrutiny, and numerous studies have suggested strong risk factors in their use and accumulation in the environment. ⁿ⁵⁶ DDT, PCBs, CFCs and kepone are some of the better known organochlorines that have been banned or restricted after well-demonstrated risks to human and animal health. Many other organochlorines such as dioxin, furans, aldrin, trichloroethylene, perchloroethylene, methylene chloride, chloroform, pentachlorophenol (PCP), dieldrin, dicofol, dienochlor, endosulfan, lindane, hexaclorobenzene and methoxychlor show signs of being “endocrine disrupters” that may undermine the reproductive capacities of mammals, including humans. ⁿ⁵⁷ Among other attributes, these chemicals are toxic, ⁿ⁵⁸ persistent, ⁿ⁵⁹ and bioaccumulative. ⁿ⁶⁰

[*144] Many of these organochlorines show up on the IJC’s list of eleven chemicals “so onerous that little debate is heard about the need to prohibit or virtually eliminate them.” ⁿ⁶¹ The organochlorines on the IJC list include PCBs, DDT, dieldrin, dioxins, furans, and hexachlorobenzene (all of which are also on the “UNEP-12” list). Contrary to general public perceptions, the toxicity of these chemicals is not necessarily their carcinogenic properties, but their potential as “endocrine disrupters” that trick reproductive systems in fish, amphibians, and mammals. ⁿ⁶² They have the potential to be, if not carcinogenic, then either mutagenic ⁿ⁶³ and teratogenic. ⁿ⁶⁴ [*145] Moreover, there are over fifty chemicals suspected of having endocrine disrupting effects, ⁿ⁶⁵ and humans may be exposed to them through products, food, water, and air. They are not only persistent but also widely used for a number of purposes and thoroughly ingrained into our economic activities.

There is a wealth of literature on endocrine disrupters. ⁿ⁶⁶ The work of Theo Colborn is perhaps the best known. Her studies and the book that summarized them – Our Stolen Future ⁿ⁶⁷ – has been compared to the work of Rachel Carson in Silent [*146] Spring. ⁿ⁶⁸ In essence, endocrine disrupters may interfere with normal human endocrine disruption in a number of ways: they can “disrupt the synthesis, storage, release, transport, and clearance of hormones, and they can disturb receptor recognition, receptor binding, or post-receptor responses within cells.” ⁿ⁶⁹ Some EDCs mimic hormones that bind to protein receptors in place of the natural hormones. Some enhance (an agonistic effect) or inhibit (an antagonistic effect) the action of hormones. ⁿ⁷⁰ Other EDCs may directly affect the overall production of certain [*147] hormones in the body. ⁿ⁷¹ Much of the research into EDCs has focused on estrogenic compounds: chemicals that mimic estrogen. ⁿ⁷²

Following the work of Theo Colborn and others, Congress required the EPA to establish its own task force for studying EDCs. The EPA’s Endocrine Disrupter Screening and Testing Advisory Committee (EDSTAC) advises the EPA on risk assessment techniques for EDCs. Formed in October 1996, the EDSTAC released its Final Report in August 1998. The report outlines a tiered structure for screening and testing of chemicals. After initial sorting and priority setting stages, Tier 1 screening will identify chemicals capable of interacting with estrogen, androgen, or thyroid hormone systems. Tier 2 testing will then determine whether those interactions are adverse and will identify, characterize, and quantify the adverse effects. After either stage, a chemical may be moved to a “hold box,” indicating the chemical is not harmful and no further testing is necessary. The EDSTAC estimates that approximately 87,000 chemicals will need to be screened–an enormous task, given the expense of testing and the time needed for each test.

The precise mechanism whereby a chemical (in almost infinitesimal amounts) disrupts the reproductive system of various species is well-documented, but deserves well-funded, objective inquiry. ⁿ⁷³ Scientists have studied the effects of endocrine disrupting chemicals on rodents, fish, birds, seals, and other animals. ⁿ⁷⁴ These studies are too numerous to mention, but some observed effects can be briefly described. These detrimental repercussions include: female snail species exposed to EDCs exhibiting superimposed male sex characteristics; hermaphroditic fish found in rivers below sewage treatment plants; male alligators in Lake Apooka near Gainesville, Florida demasculinized after exposure to certain pesticides (the same lake contains no normal male turtles). Near the Great Lakes and Puget Sound, breeding gulls show reproductive tract abnormalities, male embryos are feminized, populations have declined and sex ratios are skewed. The Great Lakes gulls and terns have shown female-female pairings, in the absence of males, and there is high chick mortality, birth defects, and an excess of female gulls and terns. ⁿ⁷⁵ Additionally, a growing body [*148] of evidence has found that dioxin-like compounds are neurotoxic for mammals. ⁿ⁷⁶

In part because of restrictions on experimenting with human subjects, and in part because all human beings have exposure to EDCs, ⁿ⁷⁷ clear demonstrations of harm to humans from EDCs are nearly impossible to obtain. As a result, we may be limited to mammalian studies, though certain epidemiological studies can reveal EDC’s potential effect on humans. The National Wildlife Federation, while reporting on “hormone copycats” in 1993, noted that hormone-like substances may suppress immune systems, cause thyroid dysfunction, decreased fertility, learning deficiencies, and behavioral abnormalities. ⁿ⁷⁸ The EPA Risks Assessment Forum summarized the scientific literature by recognizing that endocrine-disrupting chemicals have been associated with reduced fertility, birth defects, cancer, endometriosis, malformed reproductive organs, glandular dysfunction, and neurological disorders. ⁿ⁷⁹ Both breast and prostate cancer have been linked to hormone exposure, particularly to DDT exposure. ⁿ⁸⁰ In general, the body mistakes chemicals that mimic hormones and reacts [*149] to them “in ways that cause deep and permanent trouble, especially when exposure occurs during the critical period of development, before, and immediately after birth.” ⁿ⁸¹

In its Seventh Biennial Report, the IJC noted that studies on human exposure to organochlorines and other persistent toxic substances that mimic hormones indicate increased fertility “as well as cancers and other abnormalities in male reproductive systems . . . . Sperm samples tested in one recent Canadian study indicated the presence of several persistent organochlorines.” ⁿ⁸² There are also studies indicating increased rates of cancer and malformations of the penis and testes, where “women exposed to chlorinated organic substances had sons with testicular abnormalities and smaller penises than boys of mothers not exposed.” ⁿ⁸³ Similarly, studies on the effects of certain hormone mimicking chemicals indicate abnormalities in the organs and reproductive capacities of various animal species. ⁿ⁸⁴

Overall, studies on health effects for human males give reason for caution, though currently nothing is conclusive. Historical data shows a decline in sperm quality and quantity in men from industrialized nations. ⁿ⁸⁵ One article in the British Medical Journal reviewed sixty-one studies, involving nearly fifteen thousand men, in over twelve industrialized nations, and concluded that sperm counts had dropped forty-five percent from 1938 to 1990. ⁿ⁸⁶ Increases in bladder and colon cancer are also associated with long-term exposure to high levels of chlorination by-products. ⁿ⁸⁷ [*150] These studies have been challenged on their methodologies, but nevertheless provide credible reasons for caution and further study. ⁿ⁸⁸ As with many matters involving science, there is insufficient data to prove or disprove that these chemicals cause adverse changes in male reproductive health. It is the burden of proof that matters, and the historical legacy of society’s finding immediate short-term payoffs in these chemicals has given them a presumption of innocence. ⁿ⁸⁹

The more sobering studies relate to the potential effects of EDCs on embryos. Some studies show serious deficits in children of mothers who consumed large amounts of Great Lakes fish. ⁿ⁹⁰ One similarity between human and animal studies indicates small amounts of endocrine-mimicking chemicals can negatively affect a developing fetus far more than a mature adult. ⁿ⁹¹ Moreover, since humans and large mammals are at the top of the food chain, the bioaccumulation of persistent toxic substances greatly magnifies the amount of toxins a mammalian mother may ingest. A standard example is the bioaccumulation of PCBs. Because of its attraction to organic matter, the PCB molecule might attach itself to algae, later to be eaten by a water flea. Over the course of its four day life, the water flea will accumulate concentrations of PCB four hundred times greater than the water in which it lived. Later, the water flea will be eaten by a small shrimp (mysid), which may eat hundreds of water fleas, and thus host an even greater accumulation of PCBs. The mysid will soon become food for smelts (the small fish that dart about lakeshores in flashing silver schools). Colborn notes, “As the smelt gorged on mysids and other smaller critters, the persistent chemical concentrations multiplied seventeen more times.” ⁿ⁹²

The smelt then is eaten by lake trout, which in turn is consumed by humans. [*151] The results of this ingestion by humans is evidenced by the accumulated PCBs found in the fatty tissues of women, who may pass on the endocrine disrupting chemicals on to their offspring. The combination of bioaccumulation in the mother’s fatty tissues and the relative vulnerability of a fetus to small amounts of EDCs, means that any absence of observed effects in adult humans does not rule out the possibility of significant harm to very young humans. Studies have confirmed that many pesticides have more harmful effects during the developmental stages of a human life. ⁿ⁹³

Thus, while there is no conclusive proof that EDCs cause reproductive or non-reproductive harm, there are reasons to be cautious. For the Great Lakes region in particular, precautionary measures would seem appropriate. While the IJC’s recommended precautions seeking to protect a unique bioregion from persistent toxics such as DDT and other organochlorines, ultimate protection must rely on a global policy incorporating operative treaties.

The Great Lakes Ecosystem and Persistent Toxic Substances

The Great Lakes form the world’s largest body of fresh water. The five lakes – Superior, Michigan, Huron, Erie, and Ontario – are estimated to hold one-fifth of the world’s fresh water and at least ninety percent of all fresh surface water in the United States. Over forty million people live in the Great Lakes Basin, and over half of those depend on the lakes as a source for drinking water. Recreational and industrial uses are also extensive. One-fifth of U.S. industry and one-half of Canada’s industry is located on the Great Lakes. ⁿ⁹⁴

The lakes have a relatively long retention time; thus, flushing out of contaminants takes longer than in most river systems. ⁿ⁹⁵ Each year more than twenty-billion pounds of toxic substances are released directly into the Great Lakes. ⁿ⁹⁶ In [*152] addition, mercury, PCBs, and other persistent toxic substances enter the Great Lakes by air. ⁿ⁹⁷ As noted in the IJC’s Sixth Biennial Report, in 1986, about half of all the chemicals in the water, sediment, and/or biota of the Great Lakes Basin were human-generated chlorinated organic substances. ⁿ⁹⁸ In 1985, the IJC’s Water Quality Board identified eleven persistent pollutants that bioaccumulate causing adverse effects on wildlife and human health; of these, eight were organochlorines, including DDT. ⁿ⁹⁹

Human exposure to these pollutants is largely involuntary, resulting from drinking water, consumption of fish, inhalation, or incidental contact in recreational activities. Many of the shorelines are periodically off-limits to swimming, though not necessarily because of persistent pollutants. ⁿ¹⁰⁰ A 1985 study by the United States National Research Council and the Royal Society of Canada found “substantial evidence” that people in the Great Lakes Basin are “‘exposed to and [accumulate] appreciably more toxic chemical burden than people in other large regions of North America for which data is available.” ⁿ¹⁰¹ It is estimated that PCB contamination of the Great Lakes may cause as many as 38,000 cancers annually. ⁿ¹⁰² Fourteen species that depend on fish for food are suffering from “severe health problems.” DDT levels peaked in 1992, then decreased, and now are on the rise again, most likely because [*153] of long-range transportation by air.

The persistence of organic pollutants is striking, as well as their ability to travel long distances. For example, Broughton Island is west of Greenland, more than 1600 miles from the smokestacks of southern Ontario, and 2400 miles from the smokestacks of Europe. Yet Canadian health officials found many Inuit children on Broughton Island suffer from chronic ear infections and serious abnormalities in their immune systems. ⁿ¹⁰³ Other Canadian health studies show that Broughton Island babies ingest seven-times more PCBs than typical infants in southern Canada or the United States. ⁿ¹⁰⁴ Indeed, the people on Broughton Island have the “highest levels of PCBs found in any human population except those contaminated in industrial accidents.” ⁿ¹⁰⁵ These levels are so high primarily because of bioaccumulation and the traditional diet of the Inuits. ⁿ¹⁰⁶ As Colborn notes, “No matter where we live, we share their fate to some degree . . . . There is no safe, uncontaminated place.” ⁿ¹⁰⁷

Even so, the Great Lakes Basin may suffer more contamination from PCBs than elsewhere. A study done in the early 1980s by Sandra and Joseph Jacobson of Wayne State University (Detroit), enlisted new mothers who had eaten significant amounts of fish from the Great Lakes. All the new mothers ingested two or three fish meals each month during the six months before their pregnancy (some had not eaten fish during their pregnancy). The PCBs were persistent though, and the women who had accumulated them in their body fat passed on the PCBs to their babies, through the placenta and their breast milk. ⁿ¹⁰⁸ Colborn’s description follows:

Differences between the children of the fish-eaters and nonfish-eaters were evident immediately at birth. The higher the mother’s consumption of Lake Michigan fish, the lower the birth weight and the smaller the head circumference of her baby. A series of tests done at birth and at intervals afterward also found persistent evidence of neurological impairment . . . .

Among the more than three hundred children tested in this study, those whose mothers had eaten greater quantities of fish showed subtle signs of damage, including weak reflexes and more [*154] jerky, unbalanced movements as newborns. In later testing at seven months of age, the Jacobsons found signs of impaired cognitive function based on a test in which a child is shown two identical pictures of human faces posted on a board. After a period of time, the researcher will remove the board, replace one of the pictures with a new face, and show the display to the child again. A child normally recognizes the new face and spends more time looking at it rather than the face the child had seen before. The higher the PCB levels in the mother, the less time an infant spent looking at the new picture. ⁿ¹⁰⁹

Admittedly, there may be other substances and other factors that explain these differences; still, many studies strongly suggest serious immunological and neurological disorders stem from exposure to organochlorines. ⁿ¹¹⁰

IJC Recommendations on DDT and Other Organochlorines

The International Joint Commission (IJC) is a product of the Boundary Waters Treaty of 1909 between the United States and Canada, as well as the Great Lakes Water Quality Agreement (GLWQA) of 1972 and its subsequent modifications. The IJC is a unique binational entity which has become the “water pollution watchdog” for the U.S. and Canada. ⁿ¹¹¹ Each government has the authority to refer specific problems to the IJC for investigation. ⁿ¹¹² When the Commission is alerted, it must offer conclusions and recommendations for the two federal governments, who can either adopt or reject the Commission’s advice. Under the GLWQA, the IJC has pioneered cutting-edge science, ⁿ¹¹³ developed a “world class body of research” in the [*155] management of complex lake systems, and effectively furthered the “ecosystem approach” advocated by the GLWQA. ⁿ¹¹⁴ The IJC’s “globally significant policy recommendations” ⁿ¹¹⁵ include the principles of “reverse onus” ⁿ¹¹⁶ and the “sunset [*156] approach” ⁿ¹¹⁷ to phase out classes of chemicals.

Some of the IJC’s more significant policy recommendations were issued while Gordon K. Durnil served as IJC chair (from 1989-1994). As chairman of the IJC, he presided over the Fifth, Sixth, and Seventh Biennial Reports of the IJC. These reports recommended a gradual phase-out of organochlorine use in the Great Lakes Basin. Often using Durnil’s own words, this section will summarize some of the more significant recommendations of the IJC, which clearly include a permanent ban on production and use of DDT in the Basin.

In the IJC’s Fifth Biennial Report, the IJC reached a consensus that there was a threat to children in the Great Lakes Basin “emanating from exposure to persistent toxic substances, even at very low ambient levels.” ⁿ¹¹⁸ The IJC understood that attempts to regulate persistent toxic substances were neither efficient nor successful. ⁿ¹¹⁹ According to Durnil, regulatory standards by their nature imply that a safe standard exists, even though new information has come to suggest “that even one exposure to dioxin by a pregnant female may be enough to cause an adverse effect on the adult or the progeny.” ⁿ¹²⁰ And as Durnil points out, many of the chemicals to which we are now exposed have never been tested for human safety.

By 1994, in its Seventh Biennial Report, the IJC had concluded that persistent toxic substances were not amenable to the end-of-pipe regulatory discharge limits that characterized much of clean water legislation. Given the persistent and bioaccumulative nature of any persistent toxic substance, there is “no acceptable assimilative capacity . . . [and] there can be no acceptable loading of chemicals that accumulate for very long periods, except that which nature itself generates.” ⁿ¹²¹ Referring to the Boundary Waters Treaty of 1909 that created the IJC, the Seventh Biennial Report went on to claim that

the production and release of these substances into the environment must, therefore, be considered contrary to the Agreement legally, unsupportable ecologically and dangerous to health generally. Above all, it is ethically and morally unacceptable. The limits on allowable quantities of these substances entering the environment must be effectively zero and the primary means to [*157] achieve zero, should be the prevention of their production, use and release rather than their subsequent removal. ⁿ¹²²

In short, by 1994 the IJC was advising both the U.S. and Canada that the regulation or management of persistent toxic substances (most of them organochlorines) was not legally or ecologically acceptable. Durnil claims the decision to recommend the “sunsetting” of these chemicals was achieved by consensus, and the scientists who participated in the process worked in a setting that attempted to maximize objectivity and fairness. ⁿ¹²³ During all the IJC hearings that preceded the Fifth, Sixth, and Seventh Biennial Reports (1989 in Hamilton, Ontario; 1991 in Traverse City, Michigan; and 1993 in Windsor, Ontario) no one claimed that “anthropogenic chlorinated industrial feed stocks were good for human or ecosystem health.” ⁿ¹²⁴ More typically, the IJC heard denials that certain chemicals were as harmful as others claimed, or that there was not enough scientific evidence to verifify certain harms.

The IJC was well aware that these recommendations posed serious economic consequences. It understood that business could not be continued in the same way, and some economic dislocations would occur if the IJC’s recommendations were taken seriously. For various reasons, the IJC’s recommendations on sunsetting organochlorines have barely been implemented as of October 2001. ⁿ¹²⁵ The IJC recommendation clearly fits within the more forceful versions of the precautionary principle, ⁿ¹²⁶ though possibly policymakers simply are unwilling to put stronger versions of the precautionary principle into action, especially where estimated [*158] negative economic effects are so large. ⁿ¹²⁷

There is no particular constituency in the Great Lakes region to bring DDT back, but the long-range transport of DDT brings it back anyway. The U.S., Canada, the IJC as well as the states and provinces that surround the lakes, must look to larger international bodies to insure that long-range transport of DDT and other POPs do not add to the already significant “loading” of organochlorines in the basin. In discussions on UNEP’s proposal to ban DDT and the rest of the “dirty dozen,” the precautionary principle was much in evidence. The apparent outcome of that negotiation sheds light on current interpretations and applications of the precautionary principle.

The Precautionary Principle & Its Various Versions

The IJC invoked the precautionary principle in its proposed phase out of DDT and other organochlorines, but this was not the first time an international body had done so. The principle has been expressed in a variety of international conventions and proclamations, as well as national environmental protection laws. A casual survey of the precautionary principle’s various iterations and applications concludes that the precautionary principle is not one clear principle, but rather an ambiguous concept with several possible variants.

Numerous questions inevitably arise about any principle which advises caution or prevention. First, what kinds of precautions are appropriate? Policy actions may include not only immediate and outright bans on a substance or activity, but also gradual phase-outs, quantitative limitations, permitting, assessments, and monitoring. Second, what kind and/or amount of evidence will be sufficient to activate such precautions? Third, are some potential risks tolerable and, if so, to what degree? Fourth, does it matter how much the necessary prevention or precaution may cost? Fifth, does the availability, or non-availability, of technically feasible alternatives make a difference, so that the lack of alternatives should warn against precaution? Sixth, for whose benefit are precautions taken – humans only? If so, should the effect on future generations be taken into consideration? In the third section of this part, a [*159] series of criteria are presented to indicate the multiple and diverse considerations that might appropriately be factored into precautionary policies. First, however, various statements of the precautionary principle in international environmental law will be examined.

Various Versions of the Precautionary Principle

Abundant references to “precaution” are found in international environmental law. Ozone layer depletion, the use of persistent organic pollutants worldwide, trans-boundary pollution of various kinds (for example, the Chernobyl reactor fire fallout), and global climate change concerns have reminded decision makers at various levels that new technologies have spawned new uncertainties.

The Ozone Layer protocol spoke of “precautionary measures,” ⁿ¹²⁸ and the Second North Sea Declaration spoke of “a precautionary approach” that might require action “even before a causal link has been established by absolutely clear scientific evidence.” ^n129. The United Nations Environment Programme recommended in 1989 that all Governments adopt the “principle of precautionary action” as the basis of their policy with regard to the prevention and elimination of marine pollution.” ⁿ¹³⁰ The Bamako Convention on Transboundary Hazardous Waste urged the signatory nations to “adopt and implement the preventive, precautionary approach to pollution problems which entails, inter alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm.” ⁿ¹³¹

During the 1992 U.N. Conference on Environment and Development, the state parties declared a number of principles, twenty-seven in all, reaffirming the Stockholm Declaration twenty years prior, as well as breaking new conceptual ground. Principle 15 declares: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent [*160] environmental degradation.” ⁿ¹³²

The Rio Conference culminated in the U.N. Framework Climate Change Convention (UNFCCC). The UNFCCC reflected Principle 15 by asking signatory nations to “take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.” ⁿ¹³³

By 1994, the European Union’s Maastricht Treaty included a version of the precautionary principle in saying that “community policy on the environment . . . shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.” ⁿ¹³⁴ By 1999, the EU’s Environment Commissioner said that “the precautionary principle should be applied fully and measures taken at the international level” against persistent toxic chemicals that bioaccumulate. ⁿ¹³⁵ The EU also claims to rely on the precautionary principle in resisting U.S. exports of hormone-treated beef or genetically modified food and crops. However, the EU plans to make use of the precautionary principle in ways that are “transparent” and “non-discriminatory” so that its restrictions are consistent with world trade rules. ⁿ¹³⁶

Such consistency is mandated by the Uruguay Round of GATT. The Final Act Embodying the Results of the Uruguay Rounds of Multilateral Trade Negotiations contains the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), prescribing that “sufficient evidence” and “scientific principles” must be [*161] employed in any trade restrictions for sanitary and phytosanitary reasons. ⁿ¹³⁷ Concurrently, the SPS prescribes that “when relevant scientific evidence is insufficient, governments can provisionally adopt SPS measures on the basis of available pertinent information.” ⁿ¹³⁸ The EU plans to put precautionary measures into effect where scientific evidence is insufficient, inconclusive, or uncertain as well as where reasonable grounds for concern about potentially dangerous effects on the environment, human, animal, or plant health exist. ⁿ¹³⁹ Questions over “sufficient evidence” and scientific principles are bound to arise in trade disputes over EU protections and have already done so for U.S. exports of hormone-fed beef and genetically modified products. Similar trade-related questions have risen regarding U.S. restrictions on produce with trace residues of DDT. ⁿ¹⁴⁰

Given the various written statements of the precautionary principle, we may conceptualize a number of somewhat differing versions where X is a substance or activity that may engender undesirable risks. Potentially, the precautionary principle may advise policy makers to:

Minimize current and future harms to human well-being from X (where some credible scientific evidence exists that X may cause harm) in a way that

eliminates current levels of risk from X; ⁿ¹⁴¹ or
reduces current levels of risk from X; or
maintains but does not increase current levels of risk from X.

[*162] Alternatively, the principle may advise policy makers to:

Minimize current and future harms to human well-being from X (where some credible scientific evidence exists that X may cause harm) in a way that

does not raise or exceed current levels of risk from X, unless continuing or increasing levels of X will result in benefits that yield more overall good; or
does not raise or exceed current levels of risk, unless continuing or increasing levels of X yield more overall good in a way that is also cost-effective.

Even variants among these versions are possible. In Version 1, for example, the amount of credible evidence could read as “substantial” rather than “some,” and “harm” may instead read “serious harm.” If so, decision makers would be more likely to aim for elimination of risk rather than risk reduction or simply maintaining status quo levels of risk. Version 2a emphasizes the concept of foregone benefits noted by Graham and Weiner, ⁿ¹⁴² where using the alternatives to X may result in decreased overall good. Version 2b adds a component of cost-effectiveness. Other versions might also include technical feasibility of alternatives including their cost-effectiveness. Finally, some versions might use the “canary in the coal mine” analogy to insist that protecting non-human species is appropriate precaution, so that even if no evidence of harm from X to humankind exists, the existence of harm from X to bald eagles or peregrine falcons would justify precautionary measures. Others might say that non-human species have intrinsic value and taking precautionary measures for their protection need not be motivated by human interests.

In short, the precautionary principle could easily be a kind of ink-blot test where necessary precautions are in the eye of the beholder. Depending on their philosophical perspectives, policymakers can easily choose an interpretation of the precautionary principle that others would not. For present purposes, this article assumes that few readers are interested in the protection of mosquitoes for their intrinsic worth, that there is no strong moral imperative for doing so, and that most people are primarily interested in protection of human life and health. Further, it is assumed that most people and policy makers are willing to factor in, however imperfectly, available and potential alternatives along with the apparent weight of scientific evidence. In its “strictest” form – striving for risk elimination and unaccompanied by considerations of alternatives, technical feasibility, or cost-effectiveness – the precautionary principle makes an easy target, as Frank B. Cross [*163] has clearly shown in his article Paradoxical Perils of the Precautionary Principle. ⁿ¹⁴³

Cross and the “Paradoxical Perils” of the Precautionary Principle

“The precautionary principle,” Cross claims, “simply reflects the classic adage: Better safe than sorry. The principle suggests that government should take precautions to protect public health and the environment, even in the absence of clear evidence of harm and notwithstanding the costs of such action.” ⁿ¹⁴⁴ Cross claims that the precautionary principle is “deeply perverse.” Many, if not most, of his examples are drawn from U.S. regulatory actions, but would relate as well to international applications of the precautionary principle.

In setting up his claim that the precautionary principle is “deeply perverse,” Cross notes a variety of U.S. environmental laws that are structurally designed to emphasize the precautionary principle. ⁿ¹⁴⁵ With approval, he cites Aaron Wildavsky’s comment that the “canon of ‘decide in favor of safety,’ sometimes known as the ‘precautionary principle,’ pervades analysis and action in all risk issues.” ⁿ¹⁴⁶ Cross also claims that U.S. courts have often resorted to precautionary principles, ⁿ¹⁴⁷ and that federal agencies have often incorporated the precautionary principle in rulemaking. ⁿ¹⁴⁸ He writes,

For whatever reason, “agency estimates of health risks tend to be worst-case or upper bound.” ⁿ¹⁴⁹ The Environmental Protection Agency (EPA) incorporates a number of conservative assumptions in its assessment of risks. A recent survey referred to how “most regulatory attempts to standardize assessment methods have introduced several levels of conservatism because such assessments [*164] have, for the sake of public safety, been structured to over-estimate true risks” and cited ten recent scientific articles to this effect. While risk assessments are commonly criticized as overly conservative, defenders of the prevailing assessment methods have risen to claim that the EPA’s methods overstate risk by only seven times. The D.C. Circuit recently took note of the EPA’s “blanket, highly conservative assumptions” in regulation. ⁿ¹⁵⁰

A more balanced assessment would not characterize U.S. pesticide policy as so risk-averse. ⁿ¹⁵¹ However, it is hard not to agree with Cross that the precautionary principle is notably vague and uncertain in application; as such, it is ripe for critical inquiry. Cross’ critique is as follows:

The Precautionary Principle is an uncertain decision rule. ⁿ¹⁵²
The Precautionary Principle contains within it a “presumption that an action aimed at public health protection cannot possibly have negative effects on public health.” ⁿ¹⁵³ Yet such “unanticipated adverse effects are demonstrably common.” ⁿ¹⁵⁴
The Precautionary Principle gives us the illusion that risks can be eliminated, when in fact an attempt to achieve zero risk almost inevitably leads to unintended risky consequences. ⁿ¹⁵⁵
The Precautionary Principle does not prescribe how much uncertainty or risk should be allowed by a regulation. ⁿ¹⁵⁶
If new regulations can impose counterproductive effects (risks), and if a precautionary approach toward regulations required a demonstration “to a certainty” of the absence of such risks, then “the precautionary principle would preclude further regulation.” ⁿ¹⁵⁷

Placing the requirement of “certainty” into the principle is a mistake. The Cross version does not accurately represent how the precautionary principle is generally applied by regulators, or how environmentalists and thoughtful commentators believe [*165] it should be. However, many of Cross’ comments on the DDT ban are accurate and merit review here. As a preliminary observation, it appears that his “fifth element” contains assumptions not generally operative among policy-makers. Cross’ explanation of element 5 is as follows:

Applied fully and logically, the precautionary principle would cannibalize itself and potentially obliterate all environmental regulation. Environmentalists would apply the principle to chemicals and industries, but why not apply it to the environmental regulations themselves? According to the burden of proof approach, advocates of regulation would be required to demonstrate to a certainty the absence of counterproductive effects on health resulting from the effects of the regulation itself. The practical consequences of regulation are so uncertain that advocates typically could not meet this burden, and the precautionary principle would preclude further regulation. ⁿ¹⁵⁸

Explicit in this criticism is the notion that the precautionary principle imposes a near zero risk burden on new technologies. That has seldom been the case. The courts, the Congress, and administrators seldom demand certainty. “Beyond reasonable doubt” or by a “preponderance of the evidence” are the operative thresholds in criminal and civil actions, and administrative agencies must use a “rational basis” or “substantial evidence” in making their findings. Congress has charged the EPA with the administration of various statutes, and has seldom imposed a zero-risk standard. ⁿ¹⁵⁹

Wirth and Silbergeld identify three traditional approaches to regulating toxic chemicals that more or less pre-date the emergence of the precautionary principle. First, technology-based approaches have the stated goal of controlling releases or concentrations of a regulated chemical, and are defined and limited by existing technical capacities. ⁿ¹⁶⁰ Second, public health approaches have the goal of achieving [*166] risk reductions, often without reference to technical or economical implications. ⁿ¹⁶¹ Using this standard, bans or targets (allowable risk tolerances) are typical. Third, risk-balancing approaches reduce risk by taking into account the costs of achievement along with the nature and extent of the perceived risks. In other words, a risk-balanced approach is achieving stated goals through “optimally cost-effective means.” ⁿ¹⁶²

Risk-balanced policy is “the dominant theory in current legislation” and “seems rational in concept but has proven largely unworkable in practice.” ⁿ¹⁶³ Reviewing pertinent legislation, Silbergeld and Wirth identify the Toxic Substances Control Act ⁿ¹⁶⁴ as the first statute to require consideration of the “magnitude of risk as a condition precedent to regulation.” ⁿ¹⁶⁵ They note, “the rigor required for the necessary finding of ‘reasonable risk’ prior to regulation, defined by reference to a risk-benefit balancing approach, has substantially compromised the statute’s effectiveness as an instrument of public policy.” ⁿ¹⁶⁶ The use of some version of the precautionary principle does not effectively change matters, because “the selection of substances in these approaches often implicitly incorporates a risk assessment . . . . Indeed, some form of risk assessment, whether explicit or implicit, is almost inescapable whenever priorities are established.” ⁿ¹⁶⁷ This aspect is certainly true for the U.S. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), ⁿ¹⁶⁸ which “contains an explicit risk balancing provision based on a basic assumption of the [*167] value of chemical pest control similar to that in drug legislation, in which a therapeutic risk-benefit ratio is incorporated in the regulatory decision-making process.” ⁿ¹⁶⁹ In essence, generous values “for” the chemical are plugged into the risk-benefit equation from the start.

Consequently, contrary to the Cross critique, cost-benefit analysis is often required, and neither the USDA nor the EPA requires manufacturers to prove harmlessness. In general, the burden of proving certainty or near-certainty has not entered into environmental regulation, unless the “zero-risk” policy of the Delaney Clause is considered. But the Delaney Clause, now revoked by Congress ⁿ¹⁷⁰ and the President, is hardly the model for U.S. regulation of chemicals. Worldwide, there is no operative or even aspirational principle that the safety of new technologies must be proven to a near certainty or be banned from commerce. ⁿ¹⁷¹ The presumption, rather, is free trade in articles of commerce, and the pressure is on governmental bodies to prove the riskiness of technologies they wish to limit or prohibit.

Cross scores several telling points in other elements of his critique. In pointing out that the precautionary principle might bring with it the presumption that “an action aimed at health protection cannot possibly have negative effects on public health,” he highlights the possibility that banning DDT worldwide may sound very good (who could be against banning a harmful substance?), but its banning may bring about unanticipated adverse effects. In short, he takes up the “risk vs. risk” issue raised by Graham and Weiner in 1995. ⁿ¹⁷²

Cross contends that the government’s response to Silent Spring “forced the category of organochloride pesticides off the market.” ⁿ¹⁷³ On the contrary, in 1994 the IJC asked for a complete phase out of organochlorine pesticides and other organochlorines in the Great Lakes Basin. Moreover, a worldwide market for DDT and for other organochloride pesticides still exists. That inaccuracy aside, his point remains valid that market participants felt that substitutes were necessary, and DDT was replaced by pesticides in the organophosphate family, such as malathion, diazinon, and dichlorvos. This change, notes Cross, had the effect “of transforming a highly uncertain, long run risk from organochlorines into a more certain, immediate, and significant risk of toxicity from the organophosphates.” ⁿ¹⁷⁴ Cross’ argument, [*168] which tracks the insights of Graham and Weiner as well as Wildavsky, merits extended quotation:

This risk is felt primarily by the farmworkers involved in the application of the pesticides, although children are also at risk. The shift to organophosphates “caused incidents of serious poisoning among unsuspecting workers and farmers who had been accustomed to handling the relatively nontoxic DDT.” While deaths and injuries in most jobs have decreased over the years, the number of accidental pesticide poisonings increased by fourteen percent over the decade following the DDT ban. The President of NAS reproached the public by declaring that the “predicted death or blinding by parathion of dozens of Americans last summer must rest on the consciences of every car owner whose bumper sticker urged a total ban on DDT.” To employ the anecdotal approach common to antipesticide campaigns, consider the case of Clarence Lee Boyette. He was informed that use of DDT to control a worm infestation on his tobacco crop would preclude his receiving government price supports; he therefore used a brand of parathion, which subsequently killed his youngest son. The prohibition of DDT also had some adverse consequences to the environment. ⁿ¹⁷⁵

To use Graham and Weiner’s terminology, banning DDT resulted in “risk transformation.” The banning of DDT may have saved birds and other wildlife, but imposed a different risk (human poisonings) on a different population (farmworkers and their children). ⁿ¹⁷⁶ But the Cross critique goes further. The risk was not only shifted in kind and to a different population, but it also resulted in “foregone benefits.” “Countries around the globe had used DDT to eradicate or at least control insect-borne diseases, particularly malaria. These countries followed U.S. action in prohibiting or restricting the use of DDT.” ⁿ¹⁷⁷ At the time of the ban, malaria was close to being eradicated, but malaria reappeared after the ban and currently causes [*169] “millions of deaths each year throughout the world.” ⁿ¹⁷⁸

In short, if we apply the precautionary principle to pesticides (such as DDT) and fertilizers, we must consider foregone benefits and unintended costs as part of the risk assessment equation. It is doubtful whether DDT (much less an entire class of organochlorines) was banned because of the precautionary principle. The first articulations of the precautionary principle came considerably later than 1973, when William Ruckleshaus, then the chief administrator of EPA, overturned the administrative law judge’s findings that DDT’s adverse effects were not in “unreasonable balance” with its benefits. ⁿ¹⁷⁹ Whether Ruckleshaus in fact believed that the EPA was morally and legally bound to eliminate all risk from DDT (regardless of countervailing risks and lost benefits) is not known, though Wildavsky makes a persuasive case that there was unjustified optimism that alternative pesticides were minimally harmful. ⁿ¹⁸⁰

Despite the unintended consequences created by the 1973 DDT ban, the precautionary principle is still critical in coping with the question of organochlorines generally and DDT in particular. Nevertheless, the Cross version of the precautionary principle, which pictures regulators and policy-makers taking a hard line against anything which is not “proven” safe, is certainly not the version which prevails in the U.S. or worldwide. ⁿ¹⁸¹ Moreover, even those versions of the precautionary principle which do not mention “cost-effectiveness” do not put a burden of proof approaching certainty or near-certainty on those who wish to introduce or maintain commerce in certain risky chemicals. Even in theory, the precautionary principle does not require that makers of organochlorine pesticides prove “harmlessness.” In most contexts, the precautionary principle means that the burden of proving possible harm before regulating a substance or activity need not approach scientific certainty. In practice, U.S. pesticide regulations do not either; the burden is on government to prove harmfulness. ⁿ¹⁸²

[*170] C. Criteria for Applying the Precautionary Principle

In practice, risk assessment, cost-benefit analysis, and the precautionary principle are bound together. If scientific inquiry establishes that a given chemical may create risks, the precautionary principle seldom operates (conceptually or actually) to ban all uses of that chemical. Regulation, rather than elimination, is the usual public response. However, regulation in the U.S. has often carried with it various requirements of technical feasibility or cost-effectiveness. Indeed, the Supreme Court recently considered whether cost-benefit analysis is an implicit regulatory requirement, independent of any statutory mandate to balance costs and benefits of a regulation. ⁿ¹⁸³ Thus, where a statute counsels or admits use of some precaution, it is usually read in connection with common sense questions such as, “How great is the risk?” and “How much risk can we reasonably afford to reduce?” Cost considerations and risk assessment have also entered into global deliberations on persistent organic pollutants ⁿ¹⁸⁴ as well as the UNCED declarations from the Earth Summit and other international deliberations. ⁿ¹⁸⁵

Accordingly, there is no clear and distinct articulation of the “precautionary principle” as part of customary international law, although some would claim its existence. ⁿ¹⁸⁶ Rather, a confusing mix of scientific and economic considerations for [*171] things as diverse as toxic chemicals and carbon dioxide emissions persist. Perhaps at some point such a singular principle will emerge, either in treaty form or as a matter of customary international law. For now, however, it may suffice to propose that precautions be applied quickly and firmly in certain cases and slowly or gently in others. The following are operative variables, posed as questions. Based upon the most objective and reliable information and analysis available, does the substance or activity:

1a. imperil human health and life, or	1b. imperil animal health and life?
2a. threaten irreversible harm, or	2b. threaten reversible harm?
3a. undermine short-term well being, or	3b. undermine long-term well-being?
4a. burden developing nations, or	4b. burden developed nations?
5a. impose reasonably certain risks, or	5b. impose uncertain risks?
6a. impose high short-term costs,	6b. impose low short-term costs?
7a. have available alternatives, or	7b. have no available alternatives?
8a. have affordable alternatives, or	8b. have expensive alternatives?

As Cross (following Graham and Weiner) points out, the same questions can and should be asked of remedial measures or product substitutes as well.

Tentative as it is, the list attempts to bring into focus the numerous variables that might affect deliberations about the safety of any pesticide, product, or activity. Generally, if there is objective and reliable information available and analyses indicating that something could impose undesirable risks, then a significant number of positive findings in the “a” (or left-hand) column would indicate the need for more precaution, rather than less. For example, if reducing risk is relatively affordable (8a) and alternatives are available (7a), then one should begin to attempt to reduce the risk or find an alternative with caution. Or if human life is in immediate (short-term) peril (1a), with high “front-end” costs imposed by the risk (6a), one should not to wait to take positive precautions. Or, if seemingly irreversible harms may be dealt with affordably (2a and 8a), then they should be sensibly dealth with. The usual difficulties reside in the details: when is “immediate” all that immediate? Or what, exactly, is affordable and what is not?

In brief, while a fairly precise objectivity may seem possible, value judgements will inevitably intrude. The ambiguities of “affordable” and “immediate” are likely [*172] to be viewed subjectively, and one person’s “imperilment” can often be tolerable to another. ⁿ¹⁸⁷ For example, while not empirically provable, the difference between 4a and 4b implies a value judgment that where developing nations are likely to be adversely affected, a factor exists for taking stronger precautionary action. Consider the degree to which precautions should be taken for reducing carbon dioxide emissions as a means of moderating global climate change. If developing nations are expected to suffer more than developed nations in the process of greater global warming, 4a relative to 4b suggests that stronger precautions are in order. True enough, a decision-maker from a developed nation that has the financial means and technical ingenuity to employ protective measures might not regard this distinction as important; people tend to put their own interests first. But doing so also expresses a value judgment.

Thus, a value judgment is usually made in choosing any of these criteria over its “twin.” If this is so, then applying precaution as public policy will usually have significant moral or political dimensions. If using precaution means including cost-effectiveness, technical feasibility, and sophisticated risk assessments that include risk trade-offs and transformations, then decision-makers should make clear the operative value judgments inherent in these factors.

The listed criteria illuminate the potential interstices of the precautionary principle. When all the ambiguities and implicit values are made more transparent, our chances of collectively making a more informed decision are bound to improve. In the case of recent UNEP decisions on DDT, the precautionary principle as applied has left critical uses of DDT for malarial control intact, as well as critical questions for further resolution.

III. Global Action on DDT: the Precautionary Principle Applied

Because persistent organic pollutants are world-travelers, the DDT question bears a striking similarity to several other problems of international environmental policy. Whether the problem is transboundary acid rain, use of clorofluorocarbons that deplete stratospheric ozone, or carbon dioxide emissions that threaten global climate change, ⁿ¹⁸⁸ something useful is generated in one place that creates unwelcome [*173] changes elsewhere. ⁿ¹⁸⁹ The resemblance does not end there. The benefits of the substances and activities are usually clear and measurable, while the risks are indistinct or uncertain. When scientific evidence suggests that there may be a problem, those with a vested interest in the status quo also tend to initially deny there is a problem; the burden of proof naturally falls on those who would forecast risk or harm from ongoing activities.

Moreover, when the risks do become clear, remediation is seldom effective in cost or in fact; acidified lakes and denuded forests cannot be restored for a price, much less an affordable one, nor can the ozone layer be restored by any known technology. Prevention, rather than remediation, becomes the byword, but no single authority that has the power to rule conclusively on the issue. Because there will usually be losses of some kind if decisive action is taken, the risk versus risk problem comes to center stage: we are damned if we do, and damned if we do not. Rather than choosing “the greatest good,” we may settle for the lesser of two evils, a method which does not make for sound moral or policy judgments. Implicit in the Cross-Wildavsky critique is that categorical bans are naive, and typically fail to look at all dimensions of the problem. Cross claims that a “deontological approach” is indefensible. By insisting that regulatory changes always do more good than harm, he implicitly champions a utilitarian approach. However, utilitarian moral theory would not be satisfied with doing just more good than harm: nothing less than the greatest overall good for society is fully justified. ⁿ¹⁹⁰

Because two international groups have examined DDT and proposed different choices and methods, the DDT question may be especially informative on how the international community will apply the precautionary principle.

DDT and Malaria: Still Bad News

Malaria still kills and DDT is still the most effective means to fight it. DDT remains legal for use in Bolivia, Venezuela, Mexico, Kenya, Tanzania, Ethiopia, Sudan, Mauritania, India, Nepal, Thailand, Malaysia, Vietnam, and the Phillippines, but is apparently available (and not always well-marked) in other nations as well. As [*174] recently as January 2000, a family in Iran was poisoned at a birthday party when DDT was accidentally used instead of flour in the cake prepared by one of the daughters; the girl’s father and two uncles died. ⁿ¹⁹¹ Nor is it necessary to ingest DDT to be harmed; children in the U.S. who frolicked in the spray of “bug trucks” in the 1950s experienced serious health problems many years later. One such child required a difficult and painful lung surgery in his forties that required a year’s recuperation and left permanent partial disability. ⁿ¹⁹² DDT exposure was diagnosed as the cause.

Most expected harms from DDT do not involve ingestion or direct exposure, yet there are many indirect risks. DDT increases risks to clean water, not only in nations where used for agriculture, but in distant nations as well. In the Austrian Alps, at an altitude of 8,000 feet, several pristine lakes now have fish with 1,000 times more DDT than lower-lying lakes. ⁿ¹⁹³ The amounts of DDT in the lakes pose no immediate danger to drinking water, but studies on the endocrine-disrupting capabilities of DDT (and other suspect chemicals) are being conducted in the U.S. and elsewhere. As noted earlier, there is sound scientific reason for concern that DDT and other organochlorines may be undermining reproductive health in mammals, including humans. ⁿ¹⁹⁴ Because remediation of reproductive deficits may be costly or technically impossible, some degree of caution seems rational, but to what degree? A global ban seems altogether too extreme to many scientists, physicians, and commentators.

The proposed ban on DDT “met opposition from leading scientists who say the move could result in millions of deaths from malaria in developing countries.” ⁿ¹⁹⁵ Some 370 of the world’s leading experts in malaria appealed to UNEP delegates to delay any ban on DDT, citing the malaria-related deaths of more than two million people each year, mostly children. ⁿ¹⁹⁶ Most of these doctors believed that DDT should be permitted as a house spray until equally effective and inexpensive alternatives are found. Such an appeal fits well with the Cross critique of the precautionary principle: policy-makers must not be blind to the foregone benefits of an otherwise risky [*175] substance.

Likewise, alternatives to DDT should be studied carefully. Alternatives such as synthetic pyrethroids are less toxic to wildlife and biodegrade more efficiently. Synthetic pyrethroids can be used to spray the inside of houses or to impregnate bed nets to protect people from malarial mosquito bites at night. They are three times as expensive, though smaller amounts are equally effective as DDT in bed net spraying. ⁿ¹⁹⁷ The search for alternatives to DDT may be a more pressing concern than we realize. According to Graham and Weiner, excessive use of DDT in earlier decades may have fostered resistant strains of insects. ⁿ¹⁹⁸ Similarly, malarial mosquitoes may be developing resistance to pyrethroids, and their effect on human health still warrants further research. ⁿ¹⁹⁹

Those who oppose a firm deadline for banning DDT worldwide also raise significant moral issues. The Malaria Foundation International has claimed that setting a deadline to ban DDT “places an unethical burden on the world’s poorest countries.” ⁿ²⁰⁰ Given that alternatives to DDT are more expensive, the possibilities for malarial control are roughly just two: (1) something new is invented that is equally effective and no more expensive, or (2) the “developed” nations offer substantial aid to developing nations to find effective and reasonably priced alternatives to DDT. As of 1999, there was an $ 80 million worldwide investment in developing a malaria vaccine, and a $ 200 million loan from the World Bank to India for exploring DDT alternatives. Such monetary measures are needed, but they will only be morally meaningful if they are likely to create viable alternatives to DDT. ⁿ²⁰¹

The POPs Negotiations: Taking Appropriate Precautions?

By December 2000, the fifth and final round in the UNEP POPs negotiations had been completed, and a diplomatic conference for adoption of the treaty was set for Stockholm in May 2001. ⁿ²⁰² During the fourth round, delegates from 121 countries participated in the Intergovernmental Negotiating Committee negotiation, [*176] with eleven U.N. bodies, seven intergovernmental organizations, and eighty-one NGOs participating. ⁿ²⁰³ During meetings in June and September 1999, an “expert group” had proposed scientific criteria for adding chemicals to the POPs agreement, using toxicity and capability for long-range transport as principal criteria. ⁿ²⁰⁴ Klaus Topfer, UNEP Executive Director, noted that “taking action against the initial list of twelve [chemicals] and establishing the means for combating others will give us a strong and ready defense against known and emerging toxic threats.” ⁿ²⁰⁵ UNEP’s press release in March 2000 noted that while eventual elimination was the goal of the convention, exemptions for use of DDT in controlling malaria mosquitoes as well as existing uses of PCBs would be granted, subject to periodic review. ⁿ²⁰⁶

Some observers suggested that the U.S. delegation was advocating controls over these chemicals rather than their elimination, and some environmental groups were urging then Vice-President Gore to work for outright elimination of POPs. ⁿ²⁰⁷ The World Wildlife Fund claimed that “while most countries agreed on the words ‘the ultimate elimination’ of POPs during the negotiations, the U.S. and their allies tried to include phrases like ‘where feasible and practicable’ in the draft text.” ⁿ²⁰⁸

As negotiations neared their climax in November and December of 2000, it became clear that a number of countries would seek exemptions on the use of DDT and PCBs, such exemptions to remain until satisfactory alternatives are found. ⁿ²⁰⁹ With regard to adding new substances to those prohibited or restricted under the Convention, the U.S. and E.U. continued to disagree regarding the precautionary [*177] principle, with the E.U. favoring a version that would make it easier to add new substances to the treaty even if there were uncertainties about the adverse affects. ⁿ²¹⁰ Negotiators for 122 nations reached final agreement in Johannesburg on December 12, 2000. This agreement called for an immediate end to production of aldrin, chlordane, dieldrin, endrin, heptachlor, mirex, toxaphene and hexachlorobenzene, and PCB, while also calling for the gradual elimination of DDT, and “reductions” in dioxins and furans as may be feasible. ⁿ²¹¹ It was not clear as of January 2001 to what extent the parties in Johannesburg included language about the precautionary principle; the draft text circulated by the Chair did not include precautionary principle language in Article B (convention objectives), and Article D’s very title (Measures to reduce or eliminate releases) suggests that reduction is considered along with elimination. Moreover, the various Annexes allow not only gradual reduction of dioxins and furans and DDT, but also allow exemptions for numerous nations to continue using the nine POPs whose production will be immediately ended. ⁿ²¹²

In short, just how the precautionary principle will manifest itself in the UNEP convention is not yet clear. The various exemptions, as well as the language allowing continued use and production of DDT, and “gradual” reduction of dioxins and furans, suggest that the negotiators gave considerable weight to avoiding certain economic and social costs of immediate and absolute bans of DDT or any other persistent pollutant. Thus, the POPs convention’s use of the precautionary principle does seem to embrace the “reverse onus” approach advocated by the IJC and is not the more unconditional version attacked by Cross. Indeed, the substance by substance [*178] approach of UNEP is quite different from the IJC’s categorical approach. ⁿ²¹³ Available reports on the POPs negotiations and the draft convention itself do not clearly articulate the weights to be given to the various values inherent in precautionary policy-making. ⁿ²¹⁴ The vague nature of its invocation is likely to spawn further confusion, and further limit the substances that can be added to its prohibitions.

Conclusion: From the IJC to the POPs Convention

In the global debate over POPs and DDT, the IJC’s recommendations have been all but forgotten. Neither Canada nor the U.S. has implemented the IJC’s recommendations on organochlorines; moreover, the U.S. delegation has agreed to a ban on eight chemicals that are no longer used commercially, and has assented to further study on limited uses for DDT, as well as dioxins and furans. Even as the categorical approach of the IJC can be criticized, the utilitarian approach is clearly problematic.

If the matrix suggested in Part II.C seems too complex to be workable, then we must ask how the seeming incorporation of cost-benefit analysis, technical feasibility and risk assessment within the POPs convention is any more clear, direct, or workable. The power of the IJC’s approach is its simplicity: because the scientific evidence is sufficient to raise the possibility (not the certainty) that this class of chemicals is harmful, the chemicals should be phased out as a precaution. ⁿ²¹⁵ To preserve the right to market these chemicals, the makers have the burden to show that harms are unlikely or minimal, reversing the usual presumption that requires the government to show likely harm.

Instead, both domestically and internationally, we will undertake an exhaustive substance-by-substance review of risks and benefits for each pollutant that may affect the international environment. This means, in essence, that the “presumption of innocence” for chemicals that Durnil has objected to prevails worldwide. Stated otherwise, those who would eliminate a potentially harmful chemical bear the burden of proof. Yet if later remediation cannot restore clean waters, the precautionary principle seems emptied of its true potential.

All notable problems of international environmental law – ozone depletion, global climate change, acid rain – make us realize that precaution, not remediation, is the rational path. Internationally or domestically, the IJC’s categorical approach for [*179] phasing out organochlorines does not pass the politically feasible test, yet the current system does not practice much in the way of precaution. As to DDT, the current approach may create more good than harm in the short-term by softening the scourge of malaria, however, doing more good than harm in the short term is not the same as optimizing the overall good to society. Additionally, the UNEP reasoning process is not all that clear. If there must be complex analyses of alternatives, feasibilities, and cost-effectiveness along with difficult scientific assessments, the values and preferences of decision-makers should be clearly articulated. Moreover, the goal of prevention should be given some preferential value in the overall decision process, and commitments to finding the best alternatives should be clear, direct, and adequate; yet, they are not. Roht-Arriaza concludes her review of Hohmann’s survey of the precautionary principle in international environmental law by noting that we still do not have an international movement towards pollution prevention and toxics use reduction, where financial incentives and technical assistance from rich countries combine with the rediscovery and development of traditional low-input means for producing goods . . . . Until we get there, it is optimistic to think of international environmental law as fully precautionary in its approach. ⁿ²¹⁶

In the case of DDT at the POPs negotiations, negotiators seem to have acknowledged the risk versus risk problem in allowing limited uses of DDT for malarial control. Unless such uses are carefully monitored, and alternative methods of malarial control are actively pursued with technical and financial assistance, prevention of harm from DDT has effectively been delayed. Perhaps more importantly, the question of precautions regarding the much larger class of organochlorines is no closer to resolution than in 1994.

Legal Topics:

For related research and practice materials, see the following legal topics:

Environmental LawLitigation & Administrative ProceedingsToxic TortsGovernmentsAgriculture & FoodPest & Disease ControlTortsStrict LiabilityHarm Caused by AnimalsGeneral Overview

FOOTNOTES:

n2 Agreement Between the United States of America and Canada on Great Lakes Water Quality (Nov. 2, 1978), 30 U.S.T. 1383 <http://www.ijc.org/agree/quality.html>.

n3 Intl. Jt. Commn., Seventh Biennial Report Under the Great Lakes Water Quality Agreement of 1978 ch. 3 (1994) <http://www.ijc.org/comm/7bre.html> (accessed January 28, 2002) [hereinafter Seventh Biennial Report].

n4 Id.

n5 ” Persistent organic pollutants (POPs) are toxic, organic compounds of natural and anthropegenic origins. These compounds resist photolytic, chemical and biological degradation and consequently accumulate and persist in the environment.” Christina S. Chen, Student Author, Comment: Persistent Organic Pollutants: Regime Formation and Norm Selection, 13 Conn. J. Intl. L. 119, 119-20 (Winter 1998). “The POPs chemicals can be sub-divided into three categories: pesticides, industrial chemicals, and industrial by-products. The pesticides include aldrin, dieldrin, DDT,endrin chlordane, hexachlorobenzene (HCB), mirex, toxaphene, and heptachlor. [citation omitted].” PCB is “the main industrial chemical” while dioxins and furans are industrial by-products. Id. at 121.

n6 See generally Sally Billups et al., Treading Water: A Review of Government Progress Under the Great Lakes Water Quality Agreement (A Report to the International Joint Commission) (Part I), 1998 Toledo J. Great Lakes’ L., Sci. & Policy 91, 103-4 (Spring 1998) [hereinafter Treading Water I].

n7 Id.

n8 Sheryl Gay Stolberg, DDT, Target of Global Ban, Finds Defenders in Experts on Malaria, 148 N.Y. Times sec. 1, p. 1 (Aug. 29, 1999) [hereinafter Stolberg, DDT, Target of Global Ban].

n9 Treading Water I, supra n. 5, at 121.

n10 See infra nn. 145-150 and accompanying text.

n11 See infra nn. 128-135 and accompanying text.

n12 See infra nn. 128-182 and accompanying text.

n13 The World Health Organization estimates that there are 300 million to 500 million new cases of malaria each year. Approximately 2 to 2.7 million people die annually of malaria, most of them children. Stolberg, DDT, Target of Global Ban, supra n. 8.

n14 See infra nn. 202-212 and accompanying text.

n15 Stolberg, DDT, Target of Global Ban, supra n. 8.

n16 Seventh Biennial Report, supra n. 3, at Ch. 3.

n17 The better view seems to be that an Article XX exception would be upheld if there were “sound science” to support the residue tolerances imposed by U.S. law. Still, the outcome is not certain, and struggles over just such issues seem likely. See Robert M. Millimet, Student Author, The Impact of the Uruguay Round and the New Agreement on Sanitary and Phytosanitary Measures: An Analysis of the U.S. Ban on DDT, 5 Transnatl. L. & Contemporary Problems 449 (1995) (examining GATT exceptions under Article XX for the protection of human health).

n18 Id. See also Claudia Saladin, Morag Simpson, & Mariann Lloyd-Smith, IPEN Briefing Paper: The POPs Convention and The Trade Rules <http://www.ienearth.org/pops_unep_14bwto.html> (accessed January 28, 2002).

n19 See infra nn. 103-107 and accompanying text.

n20 Karin Taylor, Alpine Lakes Trap “Dirty Dozen” Poisons <http://www.planetark.org/dailynewsstory.cfm?newsid=6314> (accessed January 28, 2002) [hereinafter Alpine Lakes]. See also Kurt Shillinger, 122 Nations Agree to Cut Use of Toxins, The Boston Globe A8 (Dec. 11, 2000). “Thousands of miles from where they are used, for example, these pollutants are found in concentrated levels among people and animals in the Arctic.” Id.

n21 This article distinguishes between the precautionary principle and the “reverse onus” principle employed by the IJC. For a discussion of the “reverse onus” principle, see notes 105-107 and accompanying text. To this writer, the precautionary principle retains sufficient meaning even without adding the “reverse onus” principle.

n22 See infra, nn. 117-122 and accompanying text.

n23 Joseph V. Rodricks, Calculated Risks: Understanding the Toxicity and Human Health Risks of Chemicals in Our Environment 1 (Cambridge U. Press 1992).

n24 Id. at 5.

n25 Id. at 8.

n26 Id. at 10.

n27 Id. at 9-10.

n28 Id. at 8.

n29 Id.

n30 Id. at 9.

n31 Ted Schettler et al., Generations at Risk: Reproductive Health and the Environment 101-04 (The MIT Press 1999).

n32 Many crop protection chemicals, such as herbicides, fungicides, and insecticides, contain chlorine and are utilized to increase yields and reduce losses caused by pests. Id. at 130. DDT is a prime example of an insecticide which has considerable utility but has also introduced unforeseen risks to human and animal well-being.

n33 ” Chlorinated solvents are used in dry cleaning processes, as well as processes which clean metal and other materials during their conversion to common consumer goods such as automobiles, electronics, and photographicfilm.” Alana M. Fuierer, Student Author, Comment: The Anti-Chlorine Campaign in the Great Lakes: Should Chlorinated Compounds Be Guilty Until Proven Innocent?, 43 Buff. L. Rev. 181, 187 n. 25 (Spring 1995).

n34 ” The largest single use of chlorine is the manufacture of polyvinyl chloride (PVC or vinyl). PVC is a versatile plastic used to produce many everyday consumer goods. Examples include: luggage, raincoats, furniture, packaging, automobile seat covers, floor mats and dashboards, and building and construction materials, such as pipes, siding, gutters, window and door frames, flooring, and electrical wire insulation.” Id. at 187 n. 24 (citing George Werezak, A Report On Chlorine to the Virtual Elimination Task Force, in 2 A Strategy for Virtual Elimination of Persistent Toxic Substances 33, 34 (1993)) [hereinafter Werezak, Chlorine Report].

n35 Id. at 187 n. 29 (citing Werezak, Chlorine Report 33): Nearly 85% of all pharmaceuticals are based on chlorine chemistry, even though less than 1% of all the chlorine produced is used in pharmaceutical manufacturing. Only 20% of the pharmaceuticals dependent on chlorine actually contain chlorine as an active ingredient. In addition, chlorine-based catalysts are used to produce polyethylene and polypropylene resins, which are used to make carpeting, rope, film, packaging, appliances, and automobiles. Chlorine is used to manufacture other plastics which do not contain chlorine, such as polycarbonate and fluoropolymer, which are used to make compact discs and bulletproof glass. The manufacture of all silicone products depends on chlorine chemistry, as well as the manufacture of propylene oxide, which is used in food additives and polyurethanes.

n36 Joe Thornton, The Product Is the Poison: The Case for a Chlorine Phase-Out 7 (Greenpeace 1997); see also James A. Moore, Halogenated Hydrocarbon, 8 McGraw Hill Ency. 300-302 (discussing various organohalides, including some organochlorines). Fungi, algae and certain plants produce several organochlorines naturally. However, these naturally occurring organochlorines are usually produced in small amounts and are found adjacent to or in the cells that produce them.

n37 Thornton, supra n. 36, at 8.

n38 Jim Stiak, The Trouble With Chlorine, Buzzworm 22 (Nov.-Dec. 1992). In the U.S., about 70% of the chlorine produced is used to manufacture organochlorine products. The other 30% is used directly in its elemental form in processes which tend to form organochlorines as by-products. Thornton, supra n. 36, at 8.

n39 John Wargo, Our Children’s Toxic Legacy: How Science and Law Fail to Protect Us From Pesticides 3 (2d ed., Yale U. Press 1998).

n40 Id.

n41 Id.

n42 Id.

n43 Id. at 136.

n44 Id. at 72 (citing H. R. Select Comm. to Investigate the Use of Chemicals in Food Products, 82nd Cong., 1st Sess. 36 (1950)).

n45 Id. at 6.

n46 Robert Matthews, Strange But True: One Man’s Meat Is Another Man’s Deadly Insecticide, Sunday Telegraph 14 (Feb. 7, 1999).

n47 Wargo, supra n. 39, at 15.

n48 Id. at 38.

n49 Id. at 40.

n50 Id. at 42.

n51 See generally David Weir & Mark Shapiro, Circle of Poison: Pesticides and People in a Hungry World (Inst. for Food & Dev. Policy 1981).

n52 Rodricks, supra n. 23, at 32.

n53 See, e.g. Elizabeth Olson, DDT Complicates Debate on Pact to Ban Pesticides, 148 N.Y. Times A14 (Sept. 14, 1999).

n54 Wargo, supra n. 39, at 15-16.

n55 Id. at 16.

n56 See generally Schettler et al., supra n. 31, at 185-188, 226-231.

n57 See infra nn. 62-93 and accompanying text.

n58 The word “toxic” or its derivative, “toxicity,” has no definitively accepted meaning. Generally, “toxic” means harmful to human or animal health or habitation. In the context of a statute such as the Toxic Substances Control Act, toxicity has specific meaning. Operationally, regulatory bodies must determine toleration for toxicity; a chemical which is toxic in large amounts may be “safe” or “non-toxic” in smaller amounts, or a chemical which is toxic when administered to a fetus may be safe when administered to a mature adult.

In the Great Lakes Water Quality Agreement, “toxic substance” is defined as one “which can cause death, disease, behavioural abnormalities, cancer, genetic mutations, physiological or reproductive malfunctions or physical deformities in any organism or its offspring, or which can become poisonous after concentration in the food chain, or in combination with other substances.” GLWQA, supra n. 2. “Half-life” is defined as “the time required for the concentration of a substance to diminish to one-half of its original value in a lake or water body.” Id. at Annex 12(1)(b). The terms “toxic substance” and “persistent toxic substance” are not interchangeable. While a persistent toxic substance always exhibits the characteristics of a toxic substance, the reverse is not the case. 1 Virtual Elimination Task Force, A Strategy for Virtual Elimination of Persistent Toxic Substances 9 (1993).

n59 Persistence indicates how long its takes for a substance to break down in soil, sunlight, water, or indoors. Generally, the more persistent a substance is, the greater potential for its effect on the environment. Organochlorines are persistent because they are stable; the addition of a chlorine atom to a hydrocarbon forms an “impenetrable screen” which protects the molecule from breakdown. Fuierer, supra n. 33, at 188 n. 34. See also Schettler et al., supra n. 31, at 111. “Pesticides that persist in the environment and accumulate in living organisms tend to concentrate at the top of the food chain. For example, some organochlorine pesticides are dispersed worldwide, contaminating oceans, sediments, bottom-dwelling clams, mussels, sea urchins, and fish.” Id.

n60 Chemicals that “bioaccumulate” tend to build up in a given organism over time. Schettler et al., supra n. 31, at 110. Birds and mammals at the top of the “food chain” may bioaccumulate persistent toxic substances to dangerous levels. Because organochlorines are more soluble in fat than in water, they tend to migrate from lakes and streams into the fatty tissues of fish. For example, TCDD (2,3,7,8-tetrachlorodibenzo-p-dioxin) has been found in fish tissues up to 159,000 times greater than the concentrations found in the water where the fish swim. Thornton, supra n. 36, at 10; see also Ivan Amato, The Crusade Against Chlorine, 261 Science 152, 153 (July 9, 1993). See generally Theo Colborn, Dianne Dumanoski, & John Peterson Myers, Our Stolen Future: Are We Threatening Our Fertility, Intelligence and Survival? – A Scientific Detective Story 26, 157 (Dutton 1996).

n61 Gordon K. Durnil, The Making of a Conservative Environmentalist 58 (Indiana U. Press 1995).

n62 As to endocrine disrupters, infra nn. 72-76 and accompanying text.

n63 Chemicals that cause chemical changes in DNA are called mutagens. Many mutagens are carcinogens, but DNA can be changed in other ways. According to Rodricks, the very physical structure of DNA “can be deranged by certain agents called clastogens. In some cases whole chromosomes . . . can be added or lost, a condition called aneuploidy. Aneuploidy is often produced by chemicals that interfere with the mechanics of cell division.” Rodricks, supra n. 23, at 151.

Cell deaths or abnormalities may then occur when protein molecules created under the direction of the DNA “can no longer be produced with fidelity to the cell’s original blueprint. If the genetic damage occurs in germ cells, reproductive failure may occur, or if it does not, the abnormal cells are carried forward and may create abnormal offspring.” Id. at 152.

n64 In the process of an embryo’s development, the single cell ovum begins to proliferate by making a series of divisions. In human beings, a remarkable process of cell differentiation begins around the ninth day; the specific kinds of cells (neurons, liver cells, etc.) that make up the human body begin to form and to migrate to their specific positions within the body. The embryonic period where organs form – organogenesis – lasts until the fourteenth week of gestation, when the “fetal” period begins, ending at birth. Teratogenic chemicals alter the normal development during organogenesis.

Thalidomide is a well known example of a teratogen. “Teras” is the Greek word for “monsters.” Experimental studies have conclusively shown that the timing of exposure to a teratogen is as important as the size of the dose. Id. at 105.

DES is another example of a teratogen. For a thorough discussion of DES litigation as an analogy to potential EDC litigation. See Noah Sachs, Student Author, Blocked Pathways: Potential Legal Responses to Endocrine Disrupting Chemicals, 24 Colum. J. Envtl. L. 289, 326-38 (1999) (“Obstacles to Successful Litigation over EDCs,” and “Parallels with DES Litigation.”). Sachs concludes that in toxic tort litigation, plaintiffs are likely to be successful “when the toxic substance is potent, associated with a signature disease [footnote omitted], and emitted in a concentrated fashion from one or a small number of sources.” Id. at 338. These conditions do not generally exist for EDCs.

n65 See Colborn et al., supra n. 60, at 81. For a list of suspected endocrine disrupters, see Known Endocrine Disrupters <http://www.nihs.go.jp/hse/endocrine-e/index.html> (accessed January 28, 2002). Some of the suspected endocrine disrupters, such as DDT and PCBs, are no longer produced in the United States, but they persist in the environment and are believed to be significant contributors to EDC risks.

n66 See, e.g., Schettler et al., supra n. 30, at 151-188.

n67 See generally Colborn et al., supra n. 59 (tracing birth defects, sexual abnormalities, and reproductive failures in wildlife to their source – synthetic chemicals that mimic natural hormones).

n68 Sachs, supra n. 63, at 290 n. 4. The comparisons are not always meant to compliment, and there remain those who attack Carson’s credentials and the decision to ban DDT. On the first day of the “new millennium,” the Detroit News editorial page weighed in against Rachel Carson, who made many “Persons of the Century” lists. “Unspoken in these tributes, however, is that mosquito-borne malaria is actually one of the few diseases on the rise at the dawn of the new millennium – in large part due to the Carson-inspired ban on DDT.” Monica, Jane, DDT, etc. Detroit News 16D (Jan. 1, 2000). In a similar vein, Rachel Carson’s credentials as a scientist are still challenged. See, e.g., John Tierney, Public Beliefs, Global Politics, and Pesticides, 148 N.Y. Times B1 (Sept. 16, 1999). “Mrs. Carson had little scientific expertise–she edited publications for the United States Fish and Wildlife Service–but she had a flair for the dramatic . . . . [Silent Spring] was riddled with unintentional fiction.” The Internet Web site junkscience.com features “‘Rachel Carson’s Legacy of Death,’ presented as a malarial clock that adds a new fatality every 10.5 seconds.” Id. Wargo points out that there were scathing attacks on Carson’s scientific expertise and objectivity. Wargo, supra n. 38, at 80-81. At the same time, many in the scientific community supported her claims. Id. at 82. The national debate engendered by Silent Spring caught President Kennedy’s attention; he appointed his science advisor, Jerome Weisner, to lead a panel of experts in assessing the situation. Weisner’s report noted the enormous benefits of pesticides, but noted the difficulty of regulating them because of low concentrations (difficult to detect) and intermittent human exposure. Remarkably, the committee called for eliminating persistent toxic pesticides, in particular those that accumulate in human tissues. Id. at 83. Forty years later, the debate continues.

Schettler, Solomon, and Valenti agree that Carson engaged in years of “painstaking ecological research” and that industry scientists and representatives “attacked the arguments in Silent Spring vehemently, trying to discredit Carson’s scientific methods . . . Silent Spring heralded much of what we now know about the health effects of toxic persistent organochlorine chemicals. Carson’s work brought environmental protection into the arena of public debate, and over time her views were vindicated.” Schettler et al., supra n. 30, at 110-111.

n69 Sachs, supra n. 63, at 293 (citing EPA Risk Assessment Forum Technical Panel, United States Environmental Protection Agency, EPA/630/R-96/012, Special Report on Endocrine Disruption: An Effects Assessment and Analysis 2, 14 (1997) <http://www.epa.gov/ORD/WebPubs/endocrine/index.html> (accessed January. 28, 2002) [hereinafter Risk Assessment Forum].

n70 Risk Assessment Forum, supra n. 69, at 13.

n71 Id. at 14.

n72 Colborn et al., supra n. 60, at 84-85.

n73 Id. at 29-86.

n74 Sachs et al., supra n. 64, at 295.

n75 Schettler et al., supra n. 31, at 157; (citing P.E. Gibbs et al., Sex Change in the Female Dog-Whelk, Nucella Lapillus, Induced by Tributyl Tin from Antifouling Paints, 68 J. Marine Biological Assn. UK 715-31 (1988); C.E. Purdom et al., Estrogenic Effects of Effluents from Sewage Treatment Works, 8 Chem. Ecology 275-85 (1994); S. Jobling et al., Inhibition of Testicular Growth in Rainbow Trout (Oncorhyncus mykiss) Exposed to Alkylphenolic Chemicals, 15 Envtl. Toxicology & Chem. 194-202 (1996); L.J. Guillette et al., Developmental Abnormalities of the Gonad and Abnormal Sex Hormone Concentrations in Juvenile Alligators from Contaminated and Control Lakes in Florida, 102 Envtl. Health Persp. 680-88 (1994); M. Fry, Reproductive Effects in Birds Exposed to Pesticides and Industrial Chemicals, 103 Envtl. Health Persp. 165-171 (1995); G.A. Fox, Epidemiological and Pathobiological Evidence of Contaminant-Induced Alterations in Sexual Development in Free-Living Wildlife, in Chemically Induced Alterations in Sexual and Functional Development: The Wildlife/Human Connection 366 (Theo Colborn & Coralie Clements eds., Princeton Sci. Publg. Co. (1992)).

n76 Gail Krantzberg, Great Lakes Commentary: A Research Agenda for Great Lakes Revitalization and Protection, 1 Toledo J. of Great Lakes’ L., Sci. & Policy 13, 18 (Spring, 1998) (citing A. Brouwer et al., Functional Aspects of Developmental Toxicity of Polyhalogenated Aromatic Hydrocarbons in Experimental Animals and Human Infants, 293 European J. Pharmocology, Envtl. Toxicology & Pharmacology ß 1 (1995)).

n77 As Colborn notes, EDCs are well-traveled, often becoming airborne, and can affect peoples in relatively pristine areas even more than those in industrialized societies. See infra nn. 103-107 and accompanying text.

n78 National Wildlife Federation, Hormone Copycats (1993).

n79 Sachs, supra n. 64, at 295.

n80 Mary S. Wolff et al., Blood Levels of Organochlorine Residues and Risk of Breast Cancer, 85 J. Natl. Cancer Inst. 648, 648 (1993). The study found that higher blood levels of DDE, a broken-down product of DDT, were present in women with breast cancer. Id. at 649; see also Joe Thornton, Chlorine, Human Health and the Environment: The Breast Cancer Warning 38-43 (Greenpeace 1998). When exposure to organochlorines declined sharply in Israel between 1976 and 1986 due to a phase-out of organochlorine pesticides, breast cancer mortality rates went down by 8%. Id. at 41-42. In other industrialized nations where exposures did not decrease, breast cancer rates rose. Id. at 42; see generally Tracey Woodruff et al., Organochlorine Exposure Estimation in the Study of Cancer Etiology, 65 Envtl. Research 132, 132 (1994).

Other studies have indicated links between DDT and breast cancer. See Tom Spears, First Proof: Pesticides, PCBs Cause Breast Cancer: Canadian Researchers Also Find DDT Speeds Spread of Disease, Ottawa Citizen, A1 (July 20, 1999) at A1. Dr. Alain Demers of Quebec City conducted a study finding that women with high exposure to DDT had breast cancer that is “more aggressive” (spreads faster). Id. “In the study, involving 7,712 women followed for 19 years and published in the British medical journal The Lancet, researchers found that women with the highest traces of the pesticide Dieldrin in their blood were twice as likely as women with the lowest levels to develop breast cancer.” Banned Pesticide Linked to Breast Cancer Risk, Miluakee J. Sentinel 5 (Dec. 4, 1998).

The DDT-breast cancer link is hardly proven, but rather raises the kinds of findings that some version of the precautionary principle might take seriously. In other words, rather than wait for conclusive proof, some precautionary measures should be taken.

n81 Durnil, supra n. 61, at 79.

n82 Durnil, supra n. 61, at 80. See also Seventh Biennial Report, supra n. 3.

n83 Id.

n84 See, e.g., Fooling with Nature (Frontline PBS June 2, 1998) (t.v. documentary) in which researchers from the University of Florida found markedly smaller penis size among alligators exposed to EDCs.

n85 Krantzberg, supra n. 76, at 18.

n86 Sachs, supra n. 64, at 295-96 (citing Colborn et al., supra n. 60, at 172-73).

n87 Krantzberg, supra n. 76, at 19 (citing L.D. Marrett & W.D. King, Bureau of Chronic Disease Epidemiology (Laboratory Centres for Disease Control), Great Lakes Basin Cancer Risk Assessment: A Case-Control Study of Cancers of the Bladder, Colon and Rectum (1995)).

n88 Sachs, supra n. 64, at 300.

n89 Gordon Durnil notes, with some acerbity, that a presumption of innocence is granted to humans, not the chemicals. Durnil, supra n. 61, at 184.

n90 Health Canada, A State of Knowledge Report on Environmental Contaminants and Human Health in the Great Lakes Basin (1997).

n91 Chemically Induced Alterations in Sexual and Functional Development: The Wildlife/Human Connection 366 (Theo Colborn and Coralie Clements eds., Princeton Sci. Publg. Co. 1995) [hereinafter Alterations in Sexual and Functional Development]. While exposure to large doses may have little effect on an adult, very low dose exposure during fetal development can be very damaging. The timing of exposure is the critical factor. Organochlorine Endocrine Disruptors, in Alterations in Sexual and Functional Development at 375.

DES (diethylstilbestrol), a drug taken by women to prevent miscarriage, is one example of an endocrine disrupter that is known to have adverse health effects on the offspring of humans. It is suspected that other synthetic chemicals, such as organochlorines, that interfere with natural hormones would have similar effects. Id. at 2.

n92 Colborn et al., supra n. 60, at 98.

n93 Wargo, supra n. 39, at 172-200.

n94 Charles Stewart Mott Foundation, The Great Lakes: A Stewardship Left Untended (1988).

n95 See Robert J. Sugarman, Controlling Toxics on the Great Lakes: United States-Canadian Toxic Problems Control Program, 12 Syracuse J. Intl. L. & Com. 299, 304-05 (1985); Gail Krantzberg, Great Lakes Commentary: A Research Agenda for Great Lakes Revitalization and Protection, 1 Toledo J. Great Lakes’ L., Sci. & Policy 13, 16 (1998). “Toxicity problems emerged in the Great Lakes earlier than in other regions because much of the pollutants entering the Lakes are retained. The waters of Lake Michigan are completely flushed only once very 100 years; in Lake Superior, the turnover is every 200 years.” Id. at 16 (citing William K. Reilly, Introduction, in Under RAPs, Toward Grassroots Ecological Democracy in the Great Lakes Basin 1-4 (John H. Hartig & Michael A. Zarull eds., 1992)).

n96 Phil Busse, The Great Lakes: Sweet Seas or Inland Sewers? Sierra 78 (Mar. – Apr. 1993).

n97 See Herbert G. McCann, Mercury Showing Up in Midwestern Rain, Associated Press (Sept. 15, 1999) (available at LEXIS, WL). “Mercury is showing up in Chicago rainfall at levels 42 times greater than federal standards consider safe, . . . mercury pollution by Midwestern utilities probably will increase because deregulation will prompt them to generate higher levels of electricity . . . . A naturally occurring metal, mercury accumulates in fish and becomes more concentrated as it moves up the food chain. In humans, the neurotoxin can slow fetal and child development and cause brain damage.” Id.

n98 Sixth Biennial Report Under the Great Lakes Water Quality Agreement of 1978 ch. 2 (1992) <http://www.ijc.org/comm/6bre.html> (accessed January 28, 2002).

n99 Great Lakes Water Quality Board, 1985 Report on Great Lakes Water Quality 17-18 (1985) [hereinafter GLWQB 1985 Report]. These eight organochlorines are “polychlorinated biphenyl (PCB), DDT and metabolites, Dieldrin, 2,3,7,8-tetrachlorodibenzo-p-dioxin (2,3,7,8-TCDD or dioxin), Hexachlorobenzene, Toxaphene, Mirex, and 2,3,7,8-tetrachlorodibenzofuran (2,3,7,8-TCDF).” Id.

n100 More than 2,190 recommendations, including no consumption and restricted consumption advisories, were in effect in 1996. See Sally Billups et al., Treading Water: A Review of Government Progress Under the Great Lakes Water Quality Agreement (Pt. 1) A Report to the International Joint Commission, 1 Toledo J. Gr. Lakes’ L., Sci. & Policy 91, 103 (Spring 1998). The number of advisories in the U.S. increased 72% from 1993 to 1998. Id.

n101 Warren Flint, Background on Toxic Chemicals in the Great Lakes, in Human Health Risks from Chemical Exposure: The Great Lakes Ecosystem 9 (1991).

n102 Bette Hileman, Cleanup of Great Lakes Toxic Sediments Urged, 71 Chem. & Engr. News 8 (June 28, 1993).

n103 Colborn et al., supra n. 60, at 107.

n104 Id.

n105 Id. at 108.

n106 The traditional Inuit diet on Broughton Island includes mostly wild fish and game – seals, polar bears, narwhals, and caribou. Because persistent organic pollutants bioaccumulate (or biomagnify) up the food chain, the traditional Inuit diet is particularly risky.

n107 Colborn et al., supra n. 60 at 109.

n108 Id.

n109 Colborn et al., supra n. 60, at 190-191.

n110 There are numerous studies regarding the harmful effects of organochlorines. See generally Schettler et al., supra n. 31, at 130-34, 160-61, and 183-85.

n111 Carl A. Esterhay, Restoring the Water Quality of the Great Lakes: The Joint Commitment of Canada and the United States, 4 Can.-U.S. L.J. 208, 213 (1981). The IJC is a six person binational commission, with three members appointed by the President of the United States and three members appointed by the Governor General in Council of Canada. Id. These Commissioners do not represent the separate interests of their countries, but act as a single body to advise the two governments jointly on matters of common interest.

n112 Boundary Waters Treaty art. IX (Jan. 11, 1909), 36 Stat. 2448, 2452. When a reference is received, the IJC appoints a Board to conduct studies. After these studies are published, the IJC holds public hearings in which interested parties may participate. Esterhay, supra n. 110, at 214.

n113 Treading Water I, supra n. 5, at 94.

n114 Neil S. Kagan, Building on the Great Lakes Water Quality Agreement: The Next 25 Years, 1 Toledo J. Great Lakes’ L., Sci. & Policy 37, 37 (Spring 1998). Any “systems” approach tends to run counter to “reductionist” or “narrow” scientific approaches. Durnil notes that the ecosystem approach was a “revolutionary concept at the time” of the GLWQA, and “one that is still difficult to bring into scientific and regulatory reality. The ecosystem concept is to consider everything at once, look at it all, unshackle the boundaries.” Durnil, supra n. 60, at 128-29.

According to Durnil, the IJC found itself “in the forefront of worldwide ideas to cleanse the environment of the most onerous of substances.” Id. at 65. Various national and international bodies reached similar conclusions regarding reverse onus and sunsetting, including the 1992 Convention and Ministerial Meeting of the Oslo and Paris commissions for the Prevention of Marine Pollution (OSPARCOM), involving fourteen European nations; the thirty-nation International Whaling Commission’s annual meeting in May 1993; the Fifth World Wilderness Congress in Norway, in October 1993; and the Barcelona Convention of the Mediterranean Sea (BARCON) in 1993. Id.

n115 Kagan, supra n. 113, at 37.

n116 In essence, the “reverse onus” concept would reverse the presumption of safety (or innocence) that many chemicals have enjoyed since their introduction and obvious benefits. A reverse onus approach accepts the presumption that these compounds should be phased out, unless evidence is presented to demonstrate that individual compounds or processes do not produce persistent toxic substances.

In most of the U.S. laws that govern various chemical substances, the regulators must prove the likelihood of harm or lack of safety. Typically, the substance goes on the market and is only restricted or banned if regulators can prove it to be a hazard.

In the case of toxic substances, there is a potential for reverse onus, meaning the party who places a new substance on the market must prove it is not harmful. As noted by Alana Fueirer, section 5 of the Toxic Substances Control Act (TSCA) requires assessment of the risk a new chemical poses before it can be distributed. See Fuierer, supra n. 32, at 222-23. TSCA section f imposes an initial burden on the Administrator to show there is a “reasonable basis” to find an “unreasonable risk” to the environment. 15 U.S.C. ß 2604(f) (2000). Fueirer states:

Once this threshold is met, the burden then shifts to the producer to prove that its use will not pose an unreasonable risk. Under a sunrise process, this threshold determination that a chlorinated organic poses an unreasonable risk has already been met. Therefore, reverse onus would automatically apply, and it would be the manufacturer’s burden to prove that the new compound is safe before it is released.

n117 Intl. Jt. Commn., Sixth Biennial Report on Great Lakes Water Quality (1992). This report defines sunsetting as follows: a comprehensive process to restrict, phase out and eventually ban the manufacture, generation, use, transport, storage, discharge and disposal of a persistent toxic substance. Sunsetting may require consideration of the manufacturing processes and products associated with a chemical’s production and use, as well as of the chemical itself, and realistic yet finite time frames to achieve the virtual elimination of the persistent toxic substance. Durnil, supra n. 61, at 64.

n118 Durnil, supra n. 61, at 25.

n119 Id. at 26.

n120 Id.

n121 Seventh Biennial Report, supra n. 3, cited in Durnil, supra n. 61, at 26.

n122 Id. at 27.

n123 Id. at 129.

n124 Id. at 32-33.

n125 See generally Sally Billups et al., Treading Water: A Review of Government Progress Under the Great Lakes Water Quality Agreement (Part II): A Report to the International Joint Commission, 1 Tol. J. Great Lakes L., Sci. & Policy 245 (Fall 1998) [hereinafter Treading Water II]. Part I of Treading Water notes that, despite “prodigious efforts on both sides, the governments have not succeeded in the goal of eliminating or reducing, to the maximum extent practicable, the discharge of pollutants into the Great Lakes system. Although discrete discharges of pollutants from industries to surface waters are being reduced, evidence reveals that discrete sources of pollutants from air deposition, runoff, and contaminated sediments continue to contribute to unacceptably-high levels of many chemicals in the water and biota of the Great Lakes.” Treading Water I, supra n. 5, at 96.

n126 Cf. supra n. 116 and accompanying text and infra nn. 173-174 and accompanying text.

n127 Jerry Zremski, Activists, Industry in Chlorine Battle; Businesses See Economic Peril in Environmentalists’ Call for Ban, Buffalo News Loc. News Sec. (Mar. 7, 1994) (available in WL, LEXIS, NewsLibrary) (“And above all, chlorine-industry leaders say a chlorine ban would shakeup every industry that uses the substance. The resulting cost: $ 90 billion a year to industry, or $ 1,440 to every family in America.”). See also Chlorine Ban Would Devastate Industry, Chemical Firms Say, Toronto Star C7 (June 29, 1993) (available in WL, LEXIS, NewsLibrary). A consultant’s report to the Chlorine Institute “concludes that finding substitutes for chlorinated chemicals, which make up about half the substances produced by the industry, would cost Canadian and U.S. economies about $ 100 billion (U.S.).” Id.

n128 United Nations: Protocol on Substances that Deplete the Ozone Layer (Sept. 16, 1987), 26 I.L.M. 1541, 1551.

n129 Second International Conference on the Protection of the North Sea: Ministerial Declaration Calling for Reduction of Pollution (Nov. 25, 1987), 27 I.L.M. 835, 838.

n130 Report of the Governing Council on the Work of its Fifteenth Session, U. N. Environment Programme, U.N. GAOR, 44th Sess., Supp. No. 25, 12th mtg. at 153 (1989), U.N. Doc. A/44/25.

n131 Organization of African Unity: Bamako Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa art. 4 (Jan. 30, 1991), 30 I.L.M. 773, 781.

n132 U. N. Conference on Environment and Development: Rio Declaration on Environment and Development (June 14, 1992), 31 I.L.M. 874, 879.

n133 United Nations Conference on Environment and Development: Framework Convention on Climate Change art. 3 (May 9, 1992), 31 I.L.M. 849, 854. The U.S. ratified the Convention on October 15, 1992, but the treaty is not “self-executing”, meaning that implementing legislation must be passed, and Congress showed little inclination to do so during the Clinton Administration. The Bush Administration wants to renegotiate the Kyoto Protocol, citing the “cost” to the U.S. economy.

n134 Treaty on European Union and Final Act art. 130r (Feb. 7, 1992) 31 I.L.M. 247.

n135 Toxic Substances: Apply Precautionary Principle to PBTs, EU Environment Commissioner Says, 30 Envtl. Rep. (BNA) 170 (May 28, 1999) (available in WL, ER database).

n136 Guy Jonquieres de, Brussels Aims to Clarify Safety Ban Criteria; Precautionary Principle Guidelines Promised by Year-End on Action Over Products Suspected of Being Hazardous, Fin. Times (London) 12 (Nov. 1, 1999) (available in WL, LEXIS).

n137 A sanitary and phytosanitary measure is “any measure applied . . . to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in food, beverages, or feedstuffs. . . .” Final Act Embodying the Resultsof the Uruguay Round of Multilateral Trade Negotiations: Agreements on Trade in Goods: Agreement on the Application of Sanitary and Phytosanitary Measures, pt. II, annex 1A, GATT doc MTN/FA (Dec. 15, 1993) (available on LEXIS).

n138 Hector Rogelio Torres, Precaution Meets Protectionism at the WTO, J. of Com. 9 (Jan. 13, 2000) (available at JOC Online).

n139 Mike Smith, Brussels Sets Criteria on ‘Precautionary’ Restrictions, Fin. Times (London) 6 (Feb. 1, 2000) <http://globalarchive.ft.com>).

n140 Millimet writes that the SPS Measures create a detailed process for evaluating whether a member nation’s restrictions are based on “scientific principles” or “sufficient scientific evidence.” Therefore, a challenge could be mounted to U.S. restrictions on DDT if scientific principles and sound evidence of the alleged risks are not objectively demonstrated. Millimet, supra n. 17 at 468.

n141 This typology is offered, among other reasons, to illustrate how much the version that Frank Cross critiques so well is actually the “strongest” or most absolute possible version. See infra n. 143 and accompanying text.

n142 John D. Graham & Jonathan Baert Wiener, Risk Versus Risk: Tradeoffs in Protecting Health and the Environment (Belknap Press 1995).

n143 Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 Wash. & Lee L. Rev. 851 (1996).

n144 Id.

n145 Id. at 856.

n146 Aaron Wildavsky, But Is It True? A Citizen’s Guide to Environmental Health and Saftey Issues 8 (Harvard U. Press 1995). Wildavsky’s book is famous for casting doubt on a number of claimed risks, and has a fairly thorough review of the scientific assessment of DDT and DDE risk up to 1995. DDE is a metabolite of DDT and has been associated with increased rates of breast cancer. See supra n. 80.

n147 See eg., Indus. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 656 (1980) (plurality opinion) (holding agency “free to use conservative assumptions” and risk “error on the side of overprotection rather than underprotection”).

n148 Cross, supra n. 143, at 856.

n149 Id. (citing Daniel J. Fiorino, Making Environmental Policy 113 (U. Cal. Press 1995)).

n150 Cross, supra n. 143, at 856-57 (citing Leather Indus. of Am., Inc. v. EPA, 40 F.3d 392, 403 (D.C. Cir. 1994)).

n151 See infra nn. 149-155 and accompanying text.

n152 Cross, supra n. 143, at 859.

n153 Id. at 860.

n154 Id.

n155 Id.

n156 Id. at 861.

n157 Id.

n158 Id.

n159 The primary exception would be the Delaney Clause, a 1958 statute that prohibits any cancer-causing residue in processed foods, no matter how little risk it posed to human health. See Wargo, supra n. 39, at 76-78. Wargo notes that most of those involved in the legislative battle over this clause underestimated its severity, and “its potency led regulators to avoid its strict application.” Id. at 78.

n160 David A. Wirth & Ellen K. Silbergeld, Risky Reform, 95 Colum. L. Rev. 1857 (1995) (reviewing Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (Harvard U. Press 1993)); Phillip K. Howard, The Death of Common Sense: How Law is Suffocating America (Random House 1994); National Research Council, Science and Judgment in Risk Assessment (Natl. Acad. Press 1994); Worst Things First? The Debate Over Risk-Based National Environmental Priorities (Adam M. Finkel & Dominic Golding, eds., Resources for the Future 1994).

n161 Id.

n162 Id.

n163 Id. at 1860. The “unworkable in practice” comment is a recognition that cost-benefit analysis is a form of utilitarian thought which requires considerable discipline, complex calculations, difficult predictions and, inevitably, value judgements that are not measurably objective. See infra nn. 175-179 and accompanying text. As the conclusion to this article indicates, cost-benefit analysis – to be true to its philosophical underpinnings – must be more than an assessment that a given act or policy will generate more short-term good than harm. And, beyond the short-term, many consequences simply cannot be known.

n164 15 U.S.C. ßß 2601-2692 (1988).

n165 Wirth & Silbergeld, supra n. 160, 1861.

n166 Id.

n167 Wirth & Silbergeld, supra n. 160, at 1861-62. Wirth and Silbergeld are using “risk assessment” in a broader sense, to include what is often referred to as “risk management.” Some would prefer to confine risk assessment to scientific findings and predictions. See id. at 1863 n. 17 (discussing risk management). “The selection process necessarily requires the use of value judgments on such issues as the acceptability of risk and the reasonableness of the costs of control.” Id. at 1863.

n168 7 U.S.C. ß 135, et seq. (1994).

n169 Wirth & Silbergeld, supra n. 160, at 1883.

n170 Pesticide Legislation Wins Senate Passage, 145 N.Y. Times A19 (July 25, 1996).

n171 Genetically modified organisms (GMOs) may yet prove to be the exception, however.

n172 Graham & Wiener, supra n. 142.

n173 Cross, supra n. 143, at 870.

n174 Id. (citing Wildavsky, supra n. 146, at 58 (noting that “organophosphate insecticides, such as the parathions, . . . are hundreds of times more toxic to man than DDT.”)).

n175 Cross, supra n. 143, at 870-71. Here, Graham and Weiner are cited with approval in noting the study by Ottaboni on farmworkers. Graham & Weiner, supra n. 142, at 174. The adverse consequences to the environment include, in Cross’ account, wiping out 83,000 bee hives in California, and hazards to Douglas firs in the U.S. Northwest. Cross, supra n. 143 at 87. It is not clear from Wildavsky or Cross how Mr. Boyette’s son died. Over-optimism about the safety of alternatives may be a cause, as might negligence in labeling or handling the parathion. Regardless, it is foreseeable that an alternative pesticide more toxic to humans will at various points cause those effects.

n176 See Graham & Wiener, supra n. 142, at 19-25.

n177 Cross, supra n. 143, at 890.

n178 Id., at 890-91.

n179 See Wildavsky, supra n. 146, at 77-78 (describing the lawsuit filed by the Environmental Defense Fund, the subsequent public administrative hearings at EPA, and the ALJ’s recommendations).

n180 Id. at 72-75.

n181 See supra nn. 159-171 and accompanying text.

n182 Wargo, supra n. 39, at 279-280. According to Wargo:

the predominant standard for pesticide registration during the twentieth century – risk-benefit balancing – has permitted humans to experience greater-than-trivial risks without their knowledge or consent. These outcomes have been justified not only by claimed benefits, but also by employing “risk averaging,” which avoids considering highly exposed or susceptible groups such as children. The act of balancing risks and benefits is often justified by analyses that conclude that average risks are trivial. Under these conditions, benefit claims are not challenged by EPA, and products are registered.

Id. at 282.

n183 Whitman v. Am. Trucking Assns., 121 S. Ct. 903 (2000).

n184 See infra nn. 195-197 and accompanying text.

n185 See supra nn. 132-133 and accompanying text.

n186 See Naomi Roht-Arriaza, Book Review, 21 Colum. J. Envtl. L. 183 (1996) (reviewing Harald Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law (Graham & Trotman/Martinus Nijhoff 1994)). Roht-Arriaza notes a change in international environmental law from a reactive, sovereignty-based approach to a precautionary approach that embraces regional and global cooperation. Id at 185. Roht-Arriaza further explains that:

Hohmann finds an extremely wide range of state obligations derived from the precautionary principle. He finds support for the precautionary approach in the regulation of activities based on a likelihood rather than a certainty of harm, in extensive monitoring, planning, and impact assessment duties, as well as in medium-specific emissions and ambient quality control measures. Id. at 196.

Notice that Hohmann finds the precautionary principle in international environmental law where there is a likelihood of harm, not just a possibility of harm. On his view, then, the precautionary principle seeks to control or monitor likely risks rather than eliminating all potential risk. Cf. Cross, supra n. 141 and accompanying text. Roht-Arriaza seems to think that Hohmann’s version of the precautionary principle is too broad, preferring to focus on “clean production, source reduction and materials and process aspects that lie at the heart of any truly precautionary vision of environmental protection.” Id. at 197. In the context of DDT and other POPs, this would mean a global committment to finding thoroughly safe alternatives to DDT and manufacturing that did not result in dixoins and furans as industrial by-products. As such, her vision is more consistent with the IJC’s: to set credible deadlines to phase out certain chemicals and stimulate development of safe alternatives.

n187 For example, judging by the pace of implementing the U.N. Framework Climate Change Convention through the Kyoto Protocol, island nations take global warming more seriously than most of the developed nations.

n188 Many leaders, both corporate and political, now take the climate change issue quite seriously. As Ross Gelbspan noted in May 2000, “the world’s political leaders, opinion leaders, and CEOs of the 1,000 largest corporations surprised organizers of the annual meeting of the World Economic Forum in Davos, Switzerland, by declaring climate change to be the paramount challenge facing humanity.” Ross Gelbspan, Rx for a Planetary Fever, 11 Am. Prospect 30, <www.prospect.org> (accessed January 28, 2002).

n189 However, the risks of DDT or other pesticides tend to be higher near the point of application.

n190 Summarized, the utilitarian principle holds that “an action is right from an ethical point of view if and only if the sum total of utilities produced by that act is greater than the sum total of utilities produced by any other act the agent could have performed in its place.” Manuel Velasquez, Business Ethics 46 (4th ed., Prentice Hall 1998).

As Tom Dunfee has said, “A lot of people are utilitarians until they find out exactly what that means.” Tom Dunfee, Comments to the Faculty Development in International Business Law and Ethics Seminar, Center for International Business & Education Research (U. Colo. June 7, 2000).

n191 Iranian Girl Accidentally Kills Father with DDT (Jan. 3, 2000) (available in LEXIS-NEXIS, Academic News Service, General News file).

n192 Interview with Dave King, Co-owner, Queen Anne Bed & Breakfast, Denver, Colo. (June 6, 2000).

n193 Subzero temperatures around Alpine peaks have caused DDT evaporating over Africa or India to humidify and fall as precipitation in a process known as “global distillation.” See Taylor, supra n. 20.

n194 See supra nn. 74-93 and accompanying text.

n195 Taylor, supra n. 20.

n196 Sarah Boseley, The Case for DDT: Still Vital in the Fight Against Malaria, The Guardian (London) 19 (Sept. 1, 1999). Some estimates are as high as 2.7 million deaths annually, or one child’s death every 12 seconds. Sheryl Gay Stolberg, DDT, Target of Global Ban, Finds Defenders in Experts on Malaria, 148 N.Y. Times Sec. 1 (Aug. 29, 1999).

n197 Sarah Boseley, Green Ideal Clashes with Third World Need, The Guardian (London) 4 (Aug. 30, 1999). Stolberg notes that “the cost of treating one house with DDT ranges from $ 1.60 to $ 8.50, compared with $ 4.20 to $ 24 for pyrethroids.” Stolberg, supra n. 196, at 8.

n198 Graham & Wiener, supra n. 142, at 174.

n199 Schettler et al., supra n. 31, at 135-36.

n200 Stolberg, supra n. 196.

n201 Banning DDT: First, the World Needs Alternatives, Star Trib. (Minneapolis, Minn.) 18A (Sep. 25, 1999).

n202 United Nations Environment Programme, Press Release: Governments Finalize Persistent Organic Pollutants Treaty <http://irptc.unep.ch/pops/princ5.htm> (accessed January 28, 2002) [hereinafter UNEP, Governments Finalize].

n203 United Nations Environment Programme, Press Release: Progress Made in Negotiating Global Treaty on Persistent Organic Pollutants; 121 Countries Participate (Mar. 27, 2000)<http://irptc.unep.ch/pops/POPs_Inc/press_releases/pressrel-2k/prmarch27.htm> [hereinafter UNEP, Progress Made].

n204 Scientific Criteria, Process for Adding Chemicals to New POPs Treaty Completed, 22 Intl. Envtl. Rep. 520 (June 13, 1999).

n205 Id.

n206 See Progress Made, supra n. 203.

n207 Nancy Dunne, Clinton ‘Weak’ on Chemicals Policy, Fin. Times (London) 10 (Mar. 21, 2000).

n208 Marijn van der Pas, UN-Led Anti-Pollution Talks Snagged Over Cash (Mar. 25, 2000) <http://www.cnn.com>.

n209 The desired exemptions were granted. See UNEP, Governments Finalize, supra n. 201. As to DDT, the press release noted that a “health-related exemption has been granted for DDT, which is still needed in many countries to control malarial mosquitoes.” Id. As to PCBs, “governments may maintain existing equipment in a way that prevents leaks until 2025 to give them time to arrange for PCB-free replacements. Although PCBs are no longer produced, hundreds of thousands of tons are still in use in such equipment. In addition, a number of country-specific and time-limited exemptions have been agreed for other chemicals.” Id.

n210 Vanessa Houlder, Deal in Sight Over Toxic Chemicals Treaty: African Exemptions for Malaria Control Are Adding to Tensions at Johannesburg Meeting, Fin. Times (London) 15 (Dec. 7, 2000).

n211 According to the UNEP, each government signing the Convention agrees to reduce releases of furans and dioxins, “with the goal of their continuing minimization and, where feasible, ultimate elimination.” UNEP, Governments Finalize, supra n. 202, at 2.

n212 See United Nations Environmental Programme, Preparation of an International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants, Draft Text by the Chair, UNEP/POPS/INC.5/5, 3 Aug. 2000, Annexes A, B, and C (Aug. 3, 2000) <http://irptc.unep.ch/pops/>). For example, in Annex A, chlordane usage was exempted for an unspecified time as an additive in plywood adhesives for the Republic of Korea, exempted for treating termiticide in the structures of houses (Japan) and for treating buildings and dams (China). Use of hexachlorobenzene is exempted for wood treatment (Russian Federation) and as a solvent in pesticide (Nigeria and the Russian Federation). There are numerous other country and use-specific exemptions in Annex A, as well as some exemptions for production. Only toxaphene and endrin have no exemptions for production or use in the final draft treaty. The most recent draft of the UNEP POPs treaty (with annexes) is available at <http://irptc.unep.ch/pops/> (accessed January 28, 2002).

n213 Id.

n214 See supra nn. 186-187 and accompanying text for the various value choices inherent in precautionary policy making.

n215 The IJC recommended immediate bans for some chemicals and phasing-out periods for others. DDT was recommended for immediate phase-out.

n216 Roht-Arriaza, supra n. 186, at 201.

The Precautionary Principle and International Efforts to Ban DDT

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The Precautionary Principle and International Efforts to Ban DDT

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