The Age of Ooops

March 8th, 2011

For at least fifteen years, I’ve been publicly arguing that this culture is functionally, inherently, systematically unjust and unsustainable, and that while legislative approaches can slightly mitigate some of the injustices or unsustainability, these approaches will never be anywhere near sufficient. Well, I was wrong. I recently undertook a thought experiment in which I challenged myself to imagine a piece of legislation that would solve the injustices and unsustainability of this culture.

Maybe I should back up a little bit. A central problem of this culture is a near-total lack of accountability on the part of perpetrators of violence on every level, from domestic violence and rape (only 6 percent of rapists spend even one night in jail) to government-sponsored torture and war crimes to massive crimes against the environment. A not-very-funny riddle should make my point. Q: What do you get when you cross two nation states, a large corporation, forty tons of poison, and at least eight thousand dead human beings? A: Retirement with full pay and benefits (Warren Anderson, CEO of Union Carbide). I’m not the only person who has noticed that those who are destroying the planet almost never pay any real costs themselves. What happened to Tony Hayward, CEO of British Petroleum, who among others should be held accountable for the massive Deepwater Horizon oil spill? He was released from his position with a $1.6 million severance payment, as well as an annual pension of about $1 million (he also holds several million shares of BP stock). While some daring souls have boldly asked whether it might be a teensy bit appropriate to, ahem, politely request an inquiry into whether this severance package should be reduced even the tiniest bit, I’ve not seen many public calls (though I’ve heard a lot of private calls) for Hayward’s head to be paraded around New Orleans on a pike.

The solution I dreamed up to this lack of accountability is a robustly enforced legislative version of the precautionary principle. The precautionary principle suggests that if an action, or policy, has a suspected risk of causing harm to the public or to the environment, the burden of proof that this action is not harmful falls on those proposing to take the action. They can’t act if they can’t prove no harm will come. So, for example, instead of presuming that deepwater drilling in the Gulf of Mexico is safe, and only suspending drilling when there is proof of harm, we should presume that this action is harmful until it has been proven otherwise. The same logic should apply to the emission of greenhouse gases. In fact, there are thousands of examples of harmful actions that would be stopped by any reasonable application of the precautionary principle.

Of course, a perverted form of the precautionary principle is already employed by our culture, but instead of serving the public or the environment, it serves corporate entities: actions that protect the real world, including human communities, must be shown to not harm profits before they can be seriously considered. Today, potential harm is typically calculated through a process called “risk assessment” wherein the corporation that’s going to conduct (or, more accurately, perpetrate) some harmful activity writes up an often large, often unreadable document that purports to lay out the project’s potential risks and rewards. There are many problems with this process. First, the documents are often based on absurdly false pretenses, and the documents themselves are openly falsified (the environmental impact statement for the Deepwater Horizon rig, for example, contained references to the potential effects of an oil spill on walruses and other Arctic mammals). Second, these documents are often approved by bureaucrats or technicians who are as corrupt as their corporate equivalents (and indeed, a revolving door exists between these two seemingly oppositional entities), under duress (approve these documents or lose your job), or in cahoots (or even in bed, literally) with members of the industries they purport to oversee. But all of the above is trivial compared to the primary problem of so-called risk assessment, which is that the profits from the projects being assessed generally go to the company’s leaders and shareholders while the risks are foisted off on those humans and nonhumans who suffer when things go wrong (or often even when they go right). Union Carbide derives profits from a factory manufacturing bulk industrial chemicals (most of them toxic) in Bhopal, India, while the people of Bhopal suffer under the day-to-day operations of the factory and die when the factory explodes. British Petroleum gains the profits from drilling in the Gulf of Mexico, yet the Gulf and its human and nonhuman residents suffer the toxic, and now disastrous, consequences.

It’s a ridiculous system that leads unavoidably to atrocity. It’s like a gambling house where the heads of corporations make money if the dice roll right, and if the dice roll wrong, you die. No wonder they keep rolling the dice. No wonder we keep dying.

And so, if we want to maintain a livable planet, we must change the calculus of risk assessment. The enforced precautionary principle legislation I came up with goes something like this: if someone attests that some policy, action, or product will not harm the public or the environment, and then puts in place this policy, action, or product — that is, imposes the risk of harm upon the public or the environment — and the public or the environment is then harmed, that person should be brought to justice: put on trial, sentenced to return all of the profits to the victims and to clean up the mess, and assigned some other sizable penalty appropriate to the scale of the damage. In other words, since the rewards are internalized, so, too, should be the risks. After all, if the people putting these policies, actions, or products in place are telling the truth, and there really is no significant risk to the public or the environment from deepwater drilling, greenhouse gas emissions, dams, or the manufacture of toxic chemicals, then they have nothing to lose, right? Such a policy would only be a problem for them if they were either lying or mistaken. And when you risk the lives of others, you certainly shouldn’t lie, nor should you be cavalier about the possibility of being mistaken.

If those who were enriching themselves as they destroy human and nonhuman communities had to take risks commensurate with the risks they imposed on others, their destructive behaviors may very well stop overnight. And now imagine if this applied not only to policymakers and CEOs, but to all people significantly associated with the project, from engineers who design destructive products and accountants who find ways to pay for them to marketers who advertise them and bureaucrats who sign off on them. This suggestion isn’t even all that radical. There exists significant legal precedent: if you and I are hired by a third party to rob a bank, and someone dies because of our actions, all three of us would face charges, even if you were the triggerman and all I did was drive.

Bureaucracies, of which corporations are one form, have as one of their primary functions the dispersal of accountability. I didn’t do anything wrong! I was just doing my job! I was just making the trains run on time. Never mind that the trains were heading to death camps. If you are a public servant entrusted to review environmental impact statements for the United States Environmental Protection Agency, and you truly believe that deepwater drilling doesn’t pose serious risk to oceans, ocean life, or coastal communities, you should be willing to share some of the risk with all the other creatures who will be harmed when that drilling technology does what we all (probably even you) knew all along it could do — fail. And how’s this for a novel idea: if you don’t truly believe it, you shouldn’t sign off on it.

Originally published in Orion Magazine

Filed in Essays