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Public Health Ethics, Legitimacy, and the Challenges of IWT’s: The Case of Ontario, Canada

by Martin Shain on behalf of the National Association for Science, Technology & Society

Used with permission from the author

(part 3 — continuing from yesterday)

The Broader Canvas: Political Legitimacy, Social Justice, and IWTs

As noted earlier, public health ethics discourse as applied to IWTs is antecedent to a further-reaching discussion of political legitimacy. This connection is of vital importance in the case of IWTs because, as observed already, the regulation of IWTs does not fall within the public health remit but rather resides in other administrative bodies. Consequently, public health bodies have no direct control over the ways in which IWT installations are approved or sited. This dissociation of powers is in itself problematic and should be a matter of con- cern to all who govern in the name of the people. However, the issue of the public health impact of IWTs arises not only in the specific arena of institutional public health but also in the arena of political legitimacy generally.

Two fundamental questions of political legitimacy are the following: What gives government the right to govern in a democratic society in the first place? What gives it the ongoing right to coerce compliance with its laws and regulations?

These sound like simple if not simplistic questions but they have consistently eluded answers to which all can agree ever since people began to ask them.

Indeed, it is well to consider the context in which these questions were first asked in any really public and secular context, which was during the 17th century. Prior to that, natural law and divine right had been the source of the domi- nant accounts of political legitimacy and authority.

Early accounts of alternate sources of legitimacy concentrated on the nature of consent as the basis of political author- ity. Locke’s treatise on the social contract is perhaps the best known of these accounts but there are many others that either elaborate on his thesis or challenge it (Peter, 2010). Essentially, however, Locke’s account is based on not only “originating consent” (how government first got its mandate from the peo- ple) but on a form of ongoing majoritarianism. As Locke (1690/1990) wrote,

Every man, by consenting with others to make one body politic under one government, puts himself under an obligation to every one of that society to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact if he be left free and under no other ties than he was in before in the state of nature. (Locke, 1690/1990, p. 52f)

Modern descendants of earlier theories of consent now considered to be overly simplistic focus on notions of public reason and/or democratic approval drawing on the works of Kant and Rousseau, respectively (Peter, 2010).

One of the leading embodiments of these derived accounts is the seminal work of John Rawls (2001; see also Rawls, 1971), who grounds his theory of justice and legitimacy in fairness as a normative social practice.

This writer subscribes to Rawls’s theory and declares his bias in this matter.

Fairness, as Rawls defines it, is to be not only a basis for everyday interactions among citizens but also the basis of interactions between government and citizens.

Fairness, as Rawls sees it, is the requirement to recognize and accommodate up to a standard of reasonableness the legitimate interests, claims, and rights of others.

Shain (2001) further articulates this requirement of fairness as it applies in domestic and institutional situations. Drawing on Trebilcock (1993), he identifies two impediments to the normative application of fairness as defined above: informa- tion failure and participation failure. Essentially, failures in these areas represent a failure of active consent, thus bring- ing full circle the links between fairness, legitimacy, and social justice.

The failure of information and participation are of partic- ular relevance in the context of IWT installations where the alleged perfunctory adherence by government and proponents to regulated requirements for consultation with the public has attracted some harsh criticism.

Information and participation failure is abetted by any system of administrative law in which the principles of natural justice (e.g., let the other party be heard, the rule against bias, and the requirement of reasonableness) have become casual- ties. So much of what goes on under the auspices of administrative law is hidden from or ignored by the public to the point where the erosion of some of our most basic rights can go unremarked (Harlow, 2006).

So it is with IWTs, the story of which, in many jurisdictions, is representative of much that ails our system of administrative law. Anecdotal and deposition evidence from homeowners, community groups, and even municipalities in Canada and beyond frequently testify to the bankruptcy of the consultative process that should embody the principles of information sharing, transparency, and participation.1

Active consent to the rules and procedures that govern site location and installation of IWTs must be sought or obtained in a substantive way from those who are most likely to be affected by them, namely, residents in affected areas and the municipalities in which they live.

Fairness as an applied modern version of social contract theory calls for an active process in which all participants to a decision are engaged in ways that do not, without offer of compensation, advantage one party over another and in which there is an imperative to discover, acknowledge, and accom- modate up to a standard of reasonableness one another’s legitimate interests, claims, and rights.

In such a process, there are no preconceived “trump” values or considerations. For example, regulations under the Green Energy Act in Ontario cannot legitimately (according to a Rawlsian view) simply trump the claims and rights of subpopulations of citizens to the protection of their own and their families’ health or enjoyment of their property based on some preconceived and unconfirmed notion of overall benefit to population health. However, that said, there are modern scholars who propose that there can be certain “preemptive” reasons that would allow governments to trump other considerations and interests if the authority behind the action were considered credible, rational, and legal enough for them to do so (see, e.g., Raz, 1986, 1995, 2006). The credibility of “preemptive” reasons, however, requires a virtually nonnor- mative Weberian account of legitimacy that is based on tra- dition, charisma, or some other kind of faith-based belief in the rightness of authority (Weber, 1918/1991; see also Weber, 1964). This is not considered to be mainstream thinking about the legitimacy of governmental action in Western democra- cies (Peter, 2010).

Various other critiques of consent as the basis of legitimacy see it as wishful thinking (e.g., Wellman, 1996) or as a delusion born of a desire to not acknowledge that many, now legitimate governments were born of violence (e.g., Hume, 1748/1965). Such arguments paved the way for the sorts of pragmatic, utilitarian justifications for public health measures that were scouted in the previous section.

Notwithstanding these objections to consent—in some form at least—as the basis of political authority and legitimacy, beliefs in its importance are probably the most current and widely held in our society today (Peter, 2010). We place a high value on the idea of consent in how we are governed even if in reality it is difficult to invest it with practical meaning. Effectively, consent is at the heart of how we create and honor contractual promises that extend beyond the realm of private transactions to that of state and civic governance. When we depart from the principle of consent, we feel obliged to give some account of how that can be justified, and eventually we return to the basic premise that it is desirable to place consent of the governed at the center of our communal life.

From the foregoing discussion and analysis, this writer proposes that Rawlsian fairness and its implied requirement of active consent emerge as the public health ethical principles most likely to serve the needs of a robust and legitimate democracy.

If that is taken as working assumption, what practical guidelines can be extrapolated from such principles to assist governments in the determination of criteria for approving IWT license applications?

In this regard, three emerging legal doctrines may be drawn on for assistance. These have roots in common law and in international law. They appear to be highly relevant to how we might usefully think about how IWT proposals can be fairly evaluated and judged. One doctrine—the Precautionary Principle—has been applied in an administrative law context in Canada already. The other two—the Neighbor Principle and the Least Impactful Means Test—remain to be fully articulated as such in an administrative law context but their emerging shape can be nonetheless discerned from recent cases.

These three doctrines are “before the fact” tools in that they are used to prevent harm from occurring in the first place.

A fourth doctrine—the Polluter Pay Principle—is an “after the fact” financial compensation tool that has long legal roots in all common law jurisdictions.

The Precautionary Principle

It was imported into Canadian law via the Supreme Court case of Spraytech v. Hudson (Town) [2001] 2 S.C.R. 241 from international law where it was originally approved by Canada in the Bergen Declaration of 1990. Subsequently, this doctrine has been embedded in several pieces of Canadian legislation including the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1).

It means the following: When scientific evidence concerning the harm potential of a given industrial activity leaves room for doubt, that activity should not be undertaken. Proposed mitigating measures are not an adequate response, because if you do not know the nature or degree of risk you cannot prepare for its eventuation.

Some doubt surrounds the standard of care required by this principle. For example, how much harm could or should be reasonably foreseen if a risk eventuates? How big must the risk be to activate the principle? Currently, this principle is being tested in Ontario’s legal and quasi-legal systems as it may be applied to IWT licensing. Such testing is likely to go on for some time. A recurrent issue appears to be the extent to which the Precautionary Principle that may be embedded in governing or parent statutes (such as Environmental Protection Acts) evaporates as delegated legislative vehicles such as regulations and administrative orders are created under its supposed authority.2

(part 4 continued tomorrow)

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  1. Public Health Ethics, Legitimacy, and the Challenges of Industrial Wind Turbines: The Case of Ontario, Canada | Quixotes Last Stand - July 16, 2012

    […] 3 – Public Health Ethics, Legitimacy, and the Challenges of IWT’s: The Case of Ontario, Canada) Share this:TwitterFacebookEmailPrintLike this:LikeBe the first to like this. Tags: legitimacy […]

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