Consent and Right to Know

One reason critics question the theory underlying the CWD is its presupposition that, by virtue of accepting certain jobs, workers exposed to serious hazards give free, informed consent to the risks. Yet, from an ethical point of view, those most able to give free, informed consent—those who are well educated and who have many job opportunities—are usually unwilling to do so. Those least able to give genuine consent to a risky workplace or neighborhood—because of their lack of education or information and their financial constraints—are often willing to give allegedly informed consent.

The 1986 U.S. Right-to-Know Act requires owners or operators of sites using hazardous materials to notify the Emergency Response Commission in their state that toxins are present at a facility. However, at least three factors suggest that this law may fail to ensure full conditions for the free, informed consent of persons likely to be harmed by some hazardous substance. First, owners or operators (rather than a neutral third party) provide the information about the hazard. Often those responsible for toxic substances and hazardous wastes do not inform workers and the public of the risks they face, even after company physicians have documented serious health problems. Employers in the chemical industry, for example, frequently spend money on genetic screening to exclude susceptible persons from the workplace rather than to monitor their health on the job (Draper). Second, the existence, location, and operational procedures of dangerous facilities are likely things to which citizens and workers have not given free, informed consent in the first place. Third, mining is not included among the industries required to report their toxic emissions to state and federal regulators. For example, Utah's Bingham Canyon Copper Mine, owned by Kennecott Copper, ranks fourth in the nation in total toxic releases, yet it and other mining companies do not report their releases (Young).

Sociological data reveal that, as education and income rise, people are less willing to accept either work in hazardous facilities or risky jobs; those who do so tend to be poorly educated or financially strapped. The data also show that the alleged CWD does not operate for poor, unskilled, minority, or nonunionized workers. Yet these are precisely the people most likely to have risky jobs, such as handling nuclear wastes. In other words, the very persons least able to give free, informed consent to occupational risks are precisely those who most often work in risky jobs (Shrader-Frechette, 1993).

At the international level, a similar situation occurs. The persons and nations least able to give free informed consent to the location of facilities for using or storing toxic substances are typically those who most often bear such risks. Hazardous wastes shipped abroad, for example, are usually sent to countries that will take them at the cheapest rate, and these tend to be developing nations that are often ill informed about the risks involved. In 1989, the United Nations passed a resolution requiring any country receiving hazardous waste to give consent before it is sent. Because socioeconomic conditions and corruption often militate against the exercise of free informed consent, however, it is questionable whether the U.N. resolution will have much effect (Shrader-Frechette, 1991).

Industrial offers of financial benefits—for storing hazardous waste in a developing nation or in an economically depressed community—create a coercive context in which requirements for free informed consent are unlikely to be met. Likewise, high wages for desperate workers who agree to take risky jobs may jeopardize their legitimate consent. In such contexts, we must admit either that our classical ethical theory of free informed consent is wrong or that our laws and regulations fail to provide an ethical framework in which those most affected by hazardous substances can give free informed consent to the risk.

Given the many consent-related problems relevant to risk from hazardous substances, a crucial issue is: Who should give consent? Liberty and grass-roots self-determination require local control of whether a hazardous facility is sited in a particular area. Yet, equality of consideration for people in all regions and minimizing overall risk often require federal control. Should a particular community be able to veto the location of a hazardous facility, even though that site may be the best in the country and may provide the most equal protection of all people? Or should the national government have the right to impose such risks on a local community, even against the wishes of that group?

On the one hand, federal jurisdiction is more likely to protect the environment, to avoid the tragedy of the commons, to gain national economies of scale, and to avoid regional favoritism. Federal jurisdiction is also more likely to provide compensation for victims of spillovers from another locale and to facilitate the politics of sacrifice by imposing equal burdens on all. On the other hand, local jurisdiction is more likely to promote diversity, to offer a more flexible vehicle for experimenting with waste regulations, and to enhance citizen autonomy and liberty. Local jurisdiction also is likely to encourage cooperation through participation in decision making, to discourage some kinds of inequitable federal policies, and to help avoid many violations of rights.

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