The right to know

The right to know – legal and ethical responsibilities of businesses

Nicholas A. Ashford

What are the legal and ethical responsibilities of industrial enterprises when communities and workers are at risk from the sudden and accidental releases of toxic and/or radioactive substances into the atmosphere?

Well-known examples of such incidents occurred at Seveso (Italy) in 1973, at Bhopal in India in 1984, at the Three Mile Island (Pennsylvania) nuclear power plant in 1979, at Chernobyl in Ukraine in 1985, off Alaska in 1989 and the French coast in 1978 due to oil spills from the supertankers Exxon Valdez and Amoco Cadiz, as well as a large number of chemical production and petroleum refining catastrophes.

Such events sometimes engender legislative responses. The passage of the U.S. Emergency Planning and Community Right-to-Know Act (1986) and the so-called first and second Seveso Directives of the European Union (1982) are examples. In the United States, the Clean Air Act Amendments of 1990 require increased attention to the risks of sudden and accidental releases, placing obligations on both government and on industrial firms.

Democratic risk management

Right-to-know, the mandatory sharing of information between management, workers, and the community, embodies a democratization of risk management decisions.

Early right-to-know legislation in the United States and elsewhere addressed workers’ and communities’ right to know scientific information about the ingredients in chemicals and materials used in production, waste content, actual chemical releases to the environment, and information about exposure to gradual, expected pollution. But technological information about potential system failures, unexpected chemical reactions and releases, and ameliorative control technology is also needed, and here, right-to-know legislation is more recent and less adequate. While risk management plans requiring “worst case scenarios” to be explored by firms are increasingly common, obligations to identify superior, inherently safer technologies are notably absent. In addition, much of the important information is held closely by industrial firms and is not shared with either workers or the community.

The relevant rights and obligations under right-to-know fall into three categories.

* The duty to generate and/or retain information, i.e. a firm’s obligation to compile and retain a record of certain facility-based events such as near misses or system failures.

* The right of access (and the corresponding duty to disclose upon request), i.e. the right of a worker, union, community member or agency to request information and access to information held by a manufacturer or employer.

* The duty to inform, i.e. the firm’s obligation to disclose, without request, information needed by government, workers, and communities to understand the potential risks of sudden and accidental releases; to assess the adequacy of in-place technology and human resources that can prevent, minimize or address the consequences of those risks; and to identify the technological options that could have been adopted but were not.

Conflict analysis

The law establishes legal rights and provides remedies to correct their violation. But it also recognizes that conflicts of legitimate interests, conflicts of legal duties, and differences in perception of what is right or wrong, fair or unfair, require an appropriate balancing in the fashioning of remedies. Indeed, there are both legal remedies (usually of statutory origin) and equitable remedies that give great discretionary power to the courts or adjudicating institutions. In examining questions of conflict, the law views behaviour in the context of relationships, and will sometimes find a duty when none was intended by original legal arrangements, because it was reasonable that workers or the community expected certain behaviour on the part of an industrial enterprise.

The law does not, however, always serve the ethical interests of society so nobly. Legislation and legal institutions can be compromised by powerful special interests. In addition, if there is a lack of societal consensus or interest about a moral issue, the law may either not address that issue or fail to give helpful guidance concerning the boundaries of fair or equitable behaviour. Thus, it is important to engage in both a legal and ethical enquiry concerning human and institutional behaviour.

In the context of the risk management of low probability, high catastrophic events, legal and ethical norms are in a state of considerable flux. Conflicts of interest and conflicts of duty (for example, for the corporate or government official in charge of protecting the community and workers) abound. Just how much should workers and the community be told? Given the arguable scientific uncertainty of constructing worst-case scenarios for sudden and accidental releases, questions of what risk communication activities and preventive actions to take or not to take may reflect differences in perceptions of fairness and risk-averseness. In possible contrast, a duty on the part of industrial firms to identify and implement superior, inherently safer technology that would both reduce the risks of sudden and accidental releases and bestow cost savings on the firms themselves, would seem to be morally irrefutable.

Internal conflicts among the duties of various stakeholders (firm and government officials, workers, community residents) can lead to psychological distress and sometimes to unethical behaviour. Community residents may feel torn between a duty to be well informed (so as to anticipate and respond appropriately to danger) and a duty to maintain their own peace of mind (which is conducive to rational thought) and present a calm exterior for the benefit of their families.

Environmental and public health professionals have experienced conflicts between their duties to prevent panic in the community and to inform the public of potential danger, as well as between the duties associated with their roles as scientists, wage earners, public servants and employees of a particular branch of government. Other individuals who work for governmental agencies have experienced conflicts as a result of their multiple roles as promoters and regulators of a particular industry, such as nuclear energy.

Conflicts arise from the relative significance of “subjective” versus “objective” information and from the nature and degree of uncertainty, error, and/or risk that is tolerable. Community residents, workers, and agency professionals may disagree about priorities: residents and workers worry about experts’ ability to assess and control risk, while “experts” fret about citizens’ and workers’ “unreasonable demands” for certainty. All the members of a group will not necessarily share the same views on these matters. Conflicts occur between those trained and socialized in a technical field and those who identify more closely with humanistic traditions.

Anxiety and stress affect key figures who are faced with unprecedented situations, scientific uncertainty, and a need to make decisions quickly. Since the catastrophic incidents mentioned above, professionals have acquired experience and received specialized training. Nevertheless, in the political controversies that develop and the continuing scientific uncertainty surrounding sudden and accidental releases of toxic substances, government officials and professionals still find their personal moral integrity threatened. Workers or residents of communities where a dramatic accident has recently occurred, are generally not well prepared to cope and can be expected to respond emotionally and with confusion. They need to be treated in a non-patronizing way like any other victims of natural disasters, with understanding, patience and counselling.

As risks become more uncertain and serious, the case for fuller partnerships between industrial firms and their workers or communities concerning risk management options becomes stronger and more ethically imperative.

Shared decision making

Participation by members of the affected communities is an essential element in constructing ethically-sound risk management decisions. This can be facilitated in a number of ways, notably including the utilization of advisory panels.

A variety of possible technical and legal interventions is available, from minor to major changes to plant and production, from training existing personnel to hiring new professionals, from adopting specific legal requirements to suggesting administrative processes. Both new laws and institutions and informal ad hoc mechanisms are needed to involve the affected public and other key actors more fully in risk management involving sudden and accidental releases of toxic and radioactive substances. In general, the earlier that people are involved, the more effectively adverse effects and loss of trust are likely to be avoided or minimized. Firms, government, communities and workers have begun to explore ways to address the problems. Law provides little structure at this time, but the ethical and moral imperatives remain.

COPYRIGHT 1998 UNESCO

COPYRIGHT 2004 Gale Group