Absolute Liability (for profit or use)
The Green Nuke of the Green Revolution
Absolute Liabilityis a simple concept that accompanies Total Cost Accounting. Together, these two policies create social and economic justice.
Just ask this question: If a chemical product is manufactured and sold, and it is used by the consumer on their property, and it thereby enters the environment and causes damage to the life support environment and or an injury to another citizen, who should pay for the damage and injury caused by that chemical product?
Our current system is that YOU pay for the damage, and the illnesses and injuries, along with all other taxpayers. The toxic chemical industry in the United States, and all of the chemical substitute products industries are the most heavily subsidized industries in the world. The products themselves, as well as packaging and harmful effects on human health are all paid for by the taxpayers, and not by the industrialists who produce the products for a profit. The "substitute" products I am referring to are all of the forms of plastics and other composite materials that are employed as replacements for wood, ivory, bone, natural fibers, fatty lubricants, and other materials that are produced by nature and were used effectively in the human economy for centuries or for thousands of years.
Our current system works this way, far more often than people will admit. A corporation produces a toxic or substitute product, sometimes even a food product, that contains chemicals that are harmful to the environment. One of the most fundamental principles of science is totally denied when such products are sold. That principle is that no substance in the environment, meaning on the planet, is destroyed. It can only be modified in some way and be transferred from one place to the other. Foods and medicines go from the package, into our bodies, and out of our bodies and into the ground or rivers or sewerage treatment and then into our rivers and oceans. It is always still here. And many, actually thousands of manufactured chemicals are not changed on their trip into our environment. They persist for decades, possibly for centuries. They represent the greatest chemical transformation on Earth that has ever occurred, the transformation of the entire planetary environment by a new species, humans, that produces thousands of chemical products that no other species has ever produced before the year 1800.
Most of these chemical products begin with good intentions. Oil and gasoline, kerosene and all of the hydrocarbons that are derived (cracked) from the black gold that hides in lakes underground, was originally intended to save the lives of whales. Whale oil was used for lamps and cosmetics and with improved whaling methods in the early twentieth century it was clear that the whales were on their way to extinction. Mineral oil replaced whale oil, and that is why we still have living whales today. Plastics were found to be resistant to rotting or attack from molds, fungi and bacteria. A piece of manufactured plastic would persist in its original form for years after a similar piece of wood or natural fiber would be rotted away. This was deemed wonderful, a fantastic triumph of human technology over the ravages of decay that occurs everywhere in the natural environment. Soon the great disadvantage of plastics was discovered -- it does not decay. It can persist in the environment for decades or for centuries. Even some of our chemically treated papers can persist nearly as long as plastics. We discovered our new technologies created a new problem: permanent junk. Wooden utensils and iron products used to rot and rust away, but not plastics. When any plastic item, or plastic part, is no longer functional, it is still here with us indefinitely. We had to store our permanent trash, in landfills. Landfills were and still are the best evidence that civil engineers can be the enemies of life and society. Looking back, how incredibly incompetent civil engineers were when they spoke and acted as though a giant hole filled with manufactured trash, or a hill or mountain of manufactured trash, would somehow become inert and have no effect on the natural environment. It is as though they believed, or at least acted like they believed a landfill is a giant cosmic toilet that flushes material through some science fiction drain pipe and takes it away into another universe. No, that is not what happens. The chemical trash interacts with itself and with the environment. The permanent trash produces all kinds of toxic substances in gaseous or liquid states, and these flow into the environment, into our atmosphere, soil and water. We are infants defecating in our own sandbox. What we do with our waste products is similar to shitting in a river and than taking a drink downstream. It is similar to throwing a corpse in a river and then taking a drink downstream. We are dumber than any other animal on this planet.
And you are dumb in that you are so gullible that you do not even know that you are paying for hundreds and thousands of manufactured chemical products that you have never purchased and probably never will. The federal superfund sites, where hundreds of millions or billions of dollars are spent to contain, remove and store solid or volatile chemical waste products. The unusually high costs of medical care and health insurance in a country that is supposed to have all of the good food, clothing and shelter a people could need. The costly treatment of waste water that contains not only bacteria but hydrocarbons and other dangerous chemicals. Our system has become so crazy that medicines invented for people with disease are found in streams and rivers and in the fish and other aquatic animals. We are in deep denial about how profoundly we have altered the environment that we depend on to support all living things, including us.
Here is the common pattern that has occurred during the twentieth century, and which continues into the twenty-first century until we stop it: a corporation produces and sells a wonderful new chemically manufactured material. It is used in packaging, or in household products, as a cleaning agent, or as a functional element in electrical or electronic devices, or as a poison for plants or insects that we want to control or eliminate. The corporation makes sales to consumers, other industries, and sometimes to government agencies, in the billions of dollars. Then, that corporation ceases to exist. It is purchased and taken apart, or it goes out of business and dissolves, or it changes its industrial role and no longer manufactures the products it did years ago. Then, after a chemically manufactured product is in the environment for twenty or thirty years, it is discovered that it is persistent and extremely dangerous in the environment. Some very expensive and inconvenient method or project must be undertaken to capture and sequester the toxin, or limit its effects, or remove it from the environment at some point in its journey through our ecology. The cost is hundreds of millions or billions of dollars. Who pays for this. YOU pay. You pay because the company and the persons responsible cannot be identified. The inventors may be deceased. The officers and directors or trustees of the corporation are no longer functioning in their old roles. They are all dispersed, or retired, and they cannot remember what was done and how decisions were made and none of them, and none of the people who bought and used the product, want to accept responsibility for the damage done and the injuries caused. This type of event or occurrence is called "unintended consequences" of manufactured chemicals.
Examples are numerous. Some of the most widely recognized are DDT, dioxin, formaldehyde, thalidomide, diethylstilbestrol, excessive sugar and salt in foods (diabetes and high blood pressure), saccharine, benzene, crude oil, antibiotics, PCBs used to make electrical transformers fire resistant, numerous medicines prescribed for years or decades and then found to be ineffective for their intended use or otherwise dangerous. This pattern of events makes accountability nearly impossible and is destroying our society. Western law and custom includes a long and clear history of liability for damages or injuries. This is at the heart of the civil law which is often referred to as "equity." What this means is that in order for our system of justice to produce an acceptable degree of fairness, people must be accountable for any harm they cause, whether intended or not.
Our law in this area has its origins in ancient cultures, especially what is often described as the "Judeo-Christian" tradition. We have finely tuned laws and a body of precedents that address the issues of intent, knowledge, risk, and fiduciary responsibility. The issue here is that any corporation that manufactures a chemical product is NOW on notice that great risks are involved. Before 1900, because human chemical engineers were ignorant fools who constantly ignored the principle that there is no cause that has only one effect, the damages and injuries caused by chemical manufactures got labeled as "unintended consequences." But our science is more informed now. This pattern of delayed consequences is no longer a big surprise.
We now know that thousands of manufactured products, designed and produced by chemical engineers, are actually nearly all chemical experiments. Neither the engineers, nor the industrialists, nor the gullible and trusting customer knows what the real effect of the new product will be over a period of ten or twenty or thirty years. The book Our Stolen Future, by Theo Colburn, Dianne Dumanoski, and John Peterson Myers, describes how many manufactured chemicals function as hormone disruptors. This means that their harmful effects are visited years later on the children of mothers who use or are exposed to the chemical agent during a specific developmental phase of a pregnancy. This means that you or I can have a genetic or developmental defect that was caused forty years earlier when your mother, or mine, ate a manufactured food, or took a "wonder drug" or used a household cleaning agent or insecticide, or worked in a factory making electronic toys. It should be obvious that our history of "equity" and "liability" and "restoration" and civil justice is strained by a new pattern of harm caused over extended time. The only logical way to address this attack on our concept of accountability and equity is to institute and develop a new legal concept that I call "absolute liability," which is based on the knowledge, now established, that anyone who manufactures and sells a chemical product, and anyone who buys and uses a chemical product, is responsible and accountable for any harm caused in the indefinite future by that product. The RISK is now known, and those who take the risk and impose it on society must be prepared to pay ALL (total) of the possible damages. This is fair. Those who made a profit, and those who wanted and bought and used the product are the ones who should pay. This accountability viewpoint is NOT NEW. Ask any truck driver who pays for our interstate highway system. Our roads are paid for in large part by the taxes on gasoline fuel and tires. This type of tax is sometimes called a "trust fund" tax. This means that the tax is imposed on those who are benefiting from the public capital expense. Some people argue that the taxes on alcohol are justified at least in part by the amounts of tax funds that governments invest in alcohol treatment programs and all of the time missed from work caused by alcoholism.
Absolute liabilityis consistent with the insurance industry concept of RISK. One buys insurance when one is exposed to a risk: a risk of an auto accident, a risk of fire, a risk of being sued or being held liable without a lawsuit. In recommending this concept of absolute liability, I am doing nothing more nor less than stating that every manufacturer of a chemical product needs to accept full responsibility for the risk that they take and impose on society, now fully understood, by manufacturing a chemical product for profit. The buyer and user is responsible also. However, when we ask at what point, and by whom, money should be invested or set aside in order to be prepared to pay for the expected consequences (formerly unintended consequences) of manufacturing the product, the proper time is the point of sale to the consumer. At that point of sale, the price of the product should include an amount that represents an amount set aside or invested in order to have a "chemical risk reserve" ready to pay out hundreds of millions or billions of dollars when the harm caused by the product is discovered in the future. This amount can be calculated the same way insurance premiums are calculated: by using actuarial science and our best current science on the risks known to be involved with categories of chemical compounds. Chemical engineers are obligated to know the history of chemistry, and the history of chemistry must include the stories of all the "surprises" and "unintended consequences" that have terrorized society since the invention of radium dials on clocks. It is now clear that human beings do not know what they are doing. Educated military personnel watched the first atomic bomb tests sitting in lawn chairs and wearing sunglasses. Mercury used as a preservative made felt workers crazy. Mercury thermometers led to the poisoning of fish and people. Mercury gets into our atmosphere from the burning of coal. There are thousands, thousands of examples of humans exercising technology without understanding, without carefully assessing the risks involved and the effects of our chemical experiments on our planet and ourselves.
Absolute liability can get us on the right track where we can make progress in that very important factor of knowing what we are doing, and being accountable and conserving our traditions of equity and justice. The known risk of harm must be part of the cost of the product, collected by the seller, and held for the purposes of equity.
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