This paper is a survey of the law in the United States which is applicable to consulting scientists and engineers. Based on the body of law which has developed for the construction industry and professional “advice-givers” such as attorneys, medical doctors and accountants, the paper reviews professional responsibilities in the areas of Common Law Torts. Common Law Contracts, certain U.S. Federal and State Statutes and the protection of sensitive information.

Many scientists, businessmen, and government regulators believe that the criteria for acceptable societal risk are too stringent. Those who subscribe to this belief often accept the view which I call the probability-threshold position. Proponents of this stance maintain that society ought to ignore very small risks, i.e., those causing an average annual probability of fatality of less than 10–6.After examining the three major views in the risk-evaluation debate, viz., the probability-threshold position, the zero-risk position, and the weighted-risk position, I focus (...) on the arguments for the first of these views, since it is the position which currently undergirds most public policy (especially in the U.S.) regarding acceptable risk. After analyzing Arrow's argument from decision theory, Comar's and Gibson's argument from ontology, and Starr's and Whipple's argument from epistemology, I conclude that these defenses of the probability-threshold position err in a variety of ways. Most commonly, they fail because they tacitly accept the assumption that magnitude of probability, alone, provides a sufficient condition for judging the acceptability of a given risk. In the light of these errors, I suggest that it might be more desirable for risk assessors, decision theorists, and policymakers to weight various risk-cost-benefit parameters according to alternative ethical criteria, rather than to evaluate risks solely in terms of mathematical considerations. (shrink)

Blue-collar workers throughout the world generally face higher levels of pollution than the public and are unable to control many health risks that employers impose on them. Economists tend to justify these risky workplaces on the grounds of the compensating wage differential (CWD). The CWD, or hazard-pay premium, is the alleged increment in wages, all things being equal, that workers in hazardous environments receive. According to this theory, employees trade safety for money on the job market, even though they realize (...) some of them will bear the health consequences of their employment in a risky occupational environment. To determine whether the CWD or hazard-pay premium succeeds in justifying alleged environmental injustices in the workplace, this essay (1) surveys the general theory behind the “compensating wage differential”; (2) presents and evaluates the “welfare argument” for the CWD; (3) offers several reasons for rejecting the CWD, as a proposed rationale for allowing apparent environmental injustice in the workplace; and (4) applies the welfare argument to an empirical case, that of US nuclear workers. The essay concludes that this argument fails to provide a justification for the apparent environmental injustice faced by the 600,000 US workers who have labored in government nuclear-weapons plants and laboratories. (shrink)

On August 22, 2005 the U.S. Environmental Protection Agency issued proposed new regulations for radiation releases from the planned permanent U.S. nuclear-waste repository in Yucca Mountain, Nevada. The goal of the new standards is to provide public-health protection for the next million years — even though everyone admits that the radioactive wastes will leak. Regulations now guarantee individual and equal protection against all radiation exposures above the legal limit. Instead E.P.A. recommended different radiation exposure-limits for different time periods. It also (...) recommended using only the arithmetic mean of the dose distribution, to assess regulatory compliance during one time period, but using only the median dose to assess compliance during another period. This piece argues that these two changes — in exposure-limits and in methods of assessing regulatory compliance — have at least four disturbing consequences. The changes would threaten equal protection, ignore the needs of the most vulnerable, allow many fatal exposures, and sanction scientifically flawed dose calculations. (shrink)

Ethics requires good science. Many scientists, government leaders, and industry representatives support tripling of global-nuclear-energy capacity on the grounds that nuclear fission is “carbon free” and “releases no greenhouse gases.” However, such claims are scientifically questionable (and thus likely to lead to ethically questionable energy choices) for at least 3 reasons. (i) They rely on trimming the data on nuclear greenhouse-gas emissions (GHGE), perhaps in part because flawed Kyoto Protocol conventions require no full nuclear-fuel-cycle assessment of carbon content. (ii) They (...) underestimate nuclear-fuel-cycle releases by erroneously assuming that mostly high-grade uranium ore, with much lower emissions, is used. (iii) They inconsistently compare nuclear-related GHGE only to those from fossil fuels, rather than to those from the best GHG-avoiding energy technologies. Once scientists take account of (i)–(iii), it is possible to show that although the nuclear fuel cycle releases (per kWh) much fewer GHG than coal and oil, nevertheless it releases far more GHG than wind and solar-photovoltaic. Although there may be other, ethical, reasons to support nuclear tripling, reducing or avoiding GHG does not appear to be one of them. (shrink)

In this paper, we present a Capabilities -based Approach to the acceptability and the tolerability of risks posed by natural and man-made hazards. We argue that judgments about the acceptability and/or tolerability of such risks should be based on an evaluation of the likely societal impact of potential hazards, defined in terms of the expected changes in the capabilities of individuals. Capabilities refer to the functionings, or valuable doings and beings, individuals are able to achieve given available personal, material, and (...) social resources. The likely impact of a hazard on individuals’ capabilities should, we argue, be compared against two separate thresholds. The first threshold specifies the minimum level of capabilities attainment that is acceptable in principle for individuals to have in the aftermath of a hazard over any period of time. This threshold captures the level that individuals’ capabilities ideally should not fall below. A risk is acceptable if the probability that the attained capabilities will be less than the acceptable level is sufficiently small. In practice, it can be tolerable for some individuals to temporarily fall below the acceptable threshold, provided this situation of lower capabilities attainment is temporary, reversible, and the probability that capabilities will fall below a tolerability threshold is sufficiently small. This second, tolerable threshold delimits an absolute minimum level of capabilities attainment below which no individual in a society should ever fall, regardless of whether that level of capabilities attainment is temporary or reversible. In this paper, we describe and justify this Capabilities -based Approach to the acceptability and tolerability of risks. We argue that the proposed theoretical framework avoids the limitations in current approaches to acceptable risk. The proposed approach focuses the attention of risk analysts directly on what should be our primary concern when judging the acceptability and the tolerability of risks, namely, how risks impact the well-being of individuals in a society. Also, our Capabilities -based Approach offers a transparent, easily communicable way for determining the acceptability and the tolerability of risks. (shrink)

This paper proposes a Capabilities -based Approach to guide hazard mitigation efforts. First, a discussion is provided of the criteria that should be met by an adequate framework for formulating public policy and allocating resources. This paper shows why a common decision-aiding tool, Cost-benefit Analysis, fails to fulfill such criteria. A Capabilities -based Approach to hazard mitigation is then presented, drawing on the framework originally developed in the context of development economics and policy. The focus of a Capabilities -based Approach (...) is protecting and promoting the well-being of individuals. Capabilities are dimensions of well-being and specified in terms of functionings. Functionings capture the various things of value an individual does or becomes in his or her life, including being alive, being healthy, and being sheltered. Capabilities refer to the real achievability of specific functionings. In the context of hazard mitigation, from a Capabilities -based Approach, decision- and policy-makers should consider the acceptability and tolerability of risks along with the affectability of hazards when determining policy formulation and resource allocation. Finally, the paper shows how the proposed approach satisfies the required criteria, and overcomes the limitations of Cost-benefit Analysis, while maintaining its strengths. (shrink)

Robert Nozick has suggested that risky actions are a problem for a moral view based on rights. We ordinarily think that some actions are too dangerous to be permissible, taking into account both the harm risked and the degree of the risk. Other actions, although they run some risk of serious harm, are thought permissible. The problem is to draw this distinction in a principled way by looking to rights.I think that Nozick's argument about risk can be answered but a (...) different argument has convinced me that the rights view cannot handle risk in a satisfactory way. The inability is a function of the basic nature of the view. (shrink)

We provide examples of the extent and nature of environmental and human health problems and show why in the United States prevailing scientific and legal burden of proof requirements usually cannot be met because of the pervasiveness of scientific uncertainty. We also provide examples of how may assumptions, judgments, evaluations, and inferences in scientific methods are value-laden and that when this is not recognized results of studies will appear to be more factual and value-neutral than warranted. Further, we show that (...) there is a "tension" between the use of the 95 percent confidence rule as a normative basis to reduce speculation in scientific knowledge and other public policy and moral concerns embodied by the adoption of a precautionary principle. Finally, although there is no precise agreement regarding what a precautionary principle might entail, we make several recommendations regarding the placement of the burden of proof and the standard of proof that ought to be required in environmental and human health matters. (shrink)

Most literature on the ethics of global warming focuses on the obligations of industrialized states to reduce their emissions of greenhouse gases and to help poor countries do likewise. These books are no exception, arguing that the issue is a matter of international justice and equity.

In non-technical contexts, the word “risk” refers, often rather vaguely, to situations in which it is possible but not certain that some undesirable event will occur. In technical contexts, the word has many uses and specialized meanings. The most common ones are the following.

Very few moral philosophers have written on climate change.1 This is puzzling, for several reasons. First, many politicians and policy makers claim that climate change is not only the most serious environmental problem currently facing the world, but also one of the most important international problems per se.2 Second, many of those working in other disciplines describe climate change as fundamentally an ethical issue.3.

Many legal disputes turn on scientific, especially statistical, evidence. Traditionally scientists have accepted only that statistical evidence which satisfies a 95 percent (or 99 percent) rule — that is, only evidence which has less than five percent (or one percent) probability of resulting from chance.The rationale for this rule is the reluctance of scientists to accept anything less than the best-supported new knowledge. The rule reflects the internal needs of scientific practice. However, when uncritically adopted as a rule for admitting (...) legal evidence, the seemingly innocuous 95 percent rule distorts the balance of interests historically protected by the legal system. In particular, plaintiffs in toxic tort and employment discrimination suits are effectively held to a heavier burden of proof in showing that their injuries were more probably than not caused by the defendant's actions. The result is that too many victims of toxic torts or employment discrimination cannot win legal redress for their injuries. (shrink)

This paper examines explore the issues of intergenerational equity raised by climate change. A number of different reasons have been suggested as to why current generations may legitimately favor devoting resources to contemporaries rather than to future generations. These - either individually or jointly - challenge the case for combating climate change. In this paper, I distinguish between three different kinds of reason for favoring contemporaries. I argue that none of these arguments is persuasive. My answer in each case appeals (...) to the concept of human rights. It maintains that a human rights-centered perspective to climate change enables us to address each of these reasons. (shrink)

For more than 10 years, Ulrich Beck has dominated discussion of risk issues in the social sciences. We argue that Beck's criticisms of the theory and practise of risk analysis are groundless. His understanding of what risk is is badly flawed. His attempt to identify risk and risk perception fails. He misunderstands and distorts the use of probability in risk analysis. His comments about the insurance industry show that he does not understand some of the basics of that industry. And (...) his assertions about the wrongness of allowing acceptable levels of exposure to toxic chemicals do not stand up to scrutiny. Key Words: Beck • risk analysis • risk perception • probability • insurance. (shrink)

In _Vibrant Matter_ the political theorist Jane Bennett, renowned for her work on nature, ethics, and affect, shifts her focus from the human experience of things to things themselves. Bennett argues that political theory needs to do a better job of recognizing the active participation of nonhuman forces in events. Toward that end, she theorizes a “vital materiality” that runs through and across bodies, both human and nonhuman. Bennett explores how political analyses of public events might change were we to (...) acknowledge that agency always emerges as the_ _effect of ad hoc configurations of human and nonhuman forces. She suggests that recognizing that agency is distributed this way, and is not solely the province of humans, might spur the cultivation of a more responsible, ecologically sound politics: a politics less devoted to blaming and condemning individuals than to discerning the web of forces affecting situations and events. Bennett examines the political and theoretical implications of vital materialism through extended discussions of commonplace things and physical phenomena including stem cells, fish oils, electricity, metal, and trash. She reflects on the vital power of material formations such as landfills, which generate lively streams of chemicals, and omega-3 fatty acids, which can transform brain chemistry and mood. Along the way, she engages with the concepts and claims of Spinoza, Nietzsche, Thoreau, Darwin, Adorno, and Deleuze, disclosing a long history of thinking about vibrant matter in Western philosophy, including attempts by Kant, Bergson, and the embryologist Hans Driesch to name the “vital force” inherent in material forms. Bennett concludes by sketching the contours of a “green materialist” ecophilosophy. (shrink)

Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes (...) virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances. (shrink)