Ernest Partridge
Chapter Seventeen:
Corporate Self-Regulation: A Case History
Can private industries regulate themselves, or is government
regulation necessary if the public interest is to be protected and served in
a free-enterprise economy?
It is a fundamental dogma of the regressive right that government regulation
of business is not only unnecessary, but is a positive hindrance to optimal
corporate performance. For the past quarter century, “deregulation” has been
the keyword of the Reagan, Bush I, Clinton and Bush II administrations, and
the right insists that we are all the better for it – the public as well as
the private sector. We are assured that a corporation’s proper regard for
its reputation, along with the constant threat of law suits from potentially
aggrieved competitors and citizens, suffice to keep the industry in check.
Furthermore, with the relaxation of regulation, corporations have willingly
and successfully accepted the responsibility of “policing” their own
behavior.
That’s the claim. But is it true?
For seven years, I had the opportunity to scrutinize that claim as it
pertains to the chemical industry, as a member of the “Public Advisory
Panel” of the Chemical Manufacturers Association (later re-named The
American Chemistry Council).
Simply stated, my conclusion from that experience is that corporate
self-regulation can benefit the public and that it might partially achieve
the results otherwise obtained by government regulation. But “partial
success” is not enough – not even remotely -- for it leaves open
opportunities for corporate abuses at the expense of the public. The
chemical industry's tepid commitment to "responsible care" was indicated by
the abolition of the Public Advisory Panel in 2000, and of its short-lived
successor, the so-called "Leadership Dialog," in 2006.
If the public at large is to be served and protected from corporate abuses,
government regulation is essential.
The Chemical Manufacturer’s "Responsible Care®” program -- a brief
history:
On December 3, 1984, a worker at a Union Carbide plant in Bhopal, India
turned a "wrong" valve, allowing water into a tank of methyl isocyanate. The
resulting explosion released some 40 tons of gas into the atmosphere,
resulting in at least 2000 and perhaps more than 5000 fatalities, and from
10,000 to 200,000 serious injuries. (The lesser figure is from Union
Carbide, the larger figure from the Indian government).
While Bhopal was the worst industrial disaster in recent history, it
followed numerous other incidents, including the release of dioxin at a
chemical plant in Seveso, Italy in 1976, and the discovery in 1978 of toxic
waste beneath a housing development at Love Canal (New York), Times Beach
(Missouri) and Carver Terrace (Arkansas). (See Chapter Nine).
Because of these and other incidents, including the industry's
well-publicized public relations campaigns against such environmental
reformers as Rachel Carson, by the late 1980s, the level of public trust in
the chemical industry was alongside that of the tobacco industry, near the
bottom of the list of business enterprises,
The Chemical Manufacturers Association (CMA), the trade association of the
chemical industry, felt that some dramatic initiatives would have to be
taken to restore public confidence in the industry. As industry
leaders remarked at the time, "if we don't clean up our act, then the
government will." Following the lead of the Canadian Chemical Producers
Association, in 1988 the CMA launched a program called "Responsible Care®,"
and in the following year established a Public Advisory Panel. (The
organization was named “Chemical Manufacturers Association throughout the
life of the Public Advisory Panel. In 2001 it changed its name to “The American
Chemistry Council”).
In an informational brochure (December, 1996), the CMA states that
Responsible Care® "requires [member] companies to: (a) continually improve
their health, safety and environmental performance; (b) listen and respond
to public concerns; ( c) assist each other to achieve optimum performance;
and (d) report their progress to the public." The brochure continues: "Two
aspects of Responsible Care make it unique. First, CMA member companies must
participate in Responsible Care as an obligation of membership in the
Association. And second, through a Public Advisory Panel, the public is
directly involved in shaping the initiative."1
(My emphasis, EP.)
Personal Reflections of a CMA/ACC Panel Member
I was invited to join the Public Advisory Panel in 1994, and met with the
Panel for the first time in August, 1994, in Sarnia, Ontario (directly
across the St. Clair River from Port Huron, Michigan). This was a typical
meeting, unique only in the respect that it was held jointly with the Panel
of the Canadian Chemical Producers Association. We toured some local
chemical plants, were given presentations by local and national industry
officials, and engaged in several hours of free-flowing discussions,
unattended by industry personnel.
For the next two years, the Panel met four times a year – twice in
Washington, DC, and twice at a chemical industry facility, and generally for
three days. After 1996 the meetings were reduced in frequency to three times
a year and in duration to two days.
The Panel meetings were skillfully facilitated by a Toronto firm, contracted
by the CMA/ACC. The facilitators presided over the discussions, gathered and
recorded the opinion of the Panel members, prepared summary reports of the
meetings, and assisted in the writing of Panel documents. At no time did the
facilitators express their own opinions regarding agenda issues. Their
integrity was above reproach.
Panel members were chosen by the CMA/ACC, with no advisory input from the
existing Panel. Plant tours were conducted by the plant managers, and the
agenda and presenters were selected by the CMA/ACC. The Panel functioned
without an independent research budget or staff, other than the
facilitators.
I will not elaborate on the content of the Panel meetings, since a
"Valedictory Message" that the Panel prepared in July, 2001, gives a good
summary of our work, our accomplishments, and our complaints. (That message
can be accessed through the internet,
here).
However, some general impressions might well be in order.
The corporate initiators and implementers of Responsible Care deserve all
the credit that they are due – and that credit is considerable. At our
meetings we were shown (and I have no reason to doubt) statistics indicating
significant reductions of industrial accidents and toxic releases. Numerous
chemical facilities throughout the nation established "CAPS" – Community
Advisory Panels – actively involving community leaders and citizens in the
implementation and supervision of the Responsible Care® program.
The plant facilities that we visited were also impressive. To the best of my
recollection, at none of the score of large chemical manufacturing plants
that I visited did I encounter the sort of pervading "chemical odor" that
one might have expected. At the Dow facility in Midland, Michigan, and the
DuPont plant near Victoria, Texas, the water "outflows" were so clean that
they fed wetland wildlife preserves, set aside by the industries. I was
equally impressed by the dedication of several senior corporate executives
and plant managers to the Responsible Care® ethic. In fact, the Panel came
to sense that many of the executives and plant managers of the member
corporations were well ahead of the CMA officers in their commitment to
"Responsible Care."
However, the Panel was not favorably impressed with all representatives of
CMA organizations. In particular, I vividly remember a presentation by an
official of the Chlorine Chemistry Council in Charleston, West Virginia. He
was warned beforehand not to give the standard "Rotary Club PR Spiel" to the
Panel. "This is a tough group," he was told. He found this out when he chose
to disregard that warning, whereupon the Panel pushed aside the PR fluff and
asked tough questions, which the poor presenter was ill-prepared to answer.
Each year, the panel composed a "letter" to the CMA which was published in
its Annual Report, and each year (through 2000) a Panel member was selected
to give a presentation to the Annual April meeting of the Association
(usually in Orlando, Florida). We endeavored to make these messages and
presentations as positive and upbeat as good conscience would allow. But we
never doubted that we owed the CMA our candor. Each year, our primary
concern was about "responsible advocacy" – our euphemism for lobbying and
public relations. We were especially concerned about reports (gained from
"outside sources") that soon after the Republican takeover of the Congress
in 1994, CMA and industry officials had met privately with GOP congressional
leaders and had virtually written their "revision" to the Clean Water Act.
We did not hesitate to express these concerns to the CMA.
In the late nineties, the Panel came to sense that the CMA's enthusiasm for
its Public Advisory Panel was beginning to wear thin. As noted above,
beginning in 1997 our meetings were reduced in frequency to three a year and
in duration to two days. Less often were we presented with proposals and
work-in-progress for our "advisory" opinions, and more often we were given
reports of settled policy. Especially vexing was the presenters' habit of
handing out copies of reports, published weeks and months earlier and then
commenting on these items, thus denying us the opportunity to read them
beforehand. Throughout, we continued to express our candid concern about CMA
"advocacy" practices – i.e., lobbying and public relations.
Probably the most important cause of the Panel's eclipse took place "in the
background," beyond the influence of the Panel itself. The "pioneer"
corporate executives who established and sustained Responsible Care were
retiring and leaving the scene, and were being replaced by a more
politically active, profit-oriented, and institutionally defensive corps of
officers. The "public commitment" proclaimed by Responsible Care was slowly
but inexorably being replaced by the Milton Friedman rule: "The social
responsibility of business to increase profits."2
And so, when the Chemical Manufacturers Association officially decided, in
its April, 2000 meeting, to change its name to "The American Chemistry
Council" (announced June 8) and to adopt the slogan, "Good Chemistry Makes
it Possible," the Panel was (typically by now) presented with a fait
accompli. Even so, the Panel did not hesitate to express its displeasure
with the name and slogan change. "Chemical Manufacturers Association," we
felt, precisely described the organization, while "American Chemistry
Council" connoted an academic association (like the existing academic
"American Chemical Society"). The Panel's response to the new slogan, "Good
Chemistry Makes it Possible" bordered on the derisive. "Sounds like a
resurrection of DuPont's old 'Better Things for Better Living Through
Chemistry.'" "And just what is the antecedent of that ‘it.' Just what does
‘good chemistry' make possible?" And so on. We were later to discover (sans
consultation) that the Responsible Care slogan of "A Public Commitment" was
to be replaced with "Good Chemistry at Work."
Though we may not have fully realized it at the time, that meeting quite
possibly sealed the fate of the Public Advisory Panel of the (now) American
Chemistry Council. Those name and slogan changes were no doubt the result of
expensive and extensive public opinion and focus-group studies. Ours was not
the response that ACC had hoped for.
Our next meeting was in Arlington, Virginia, in late October, 2000 (the date
may be significant). At the close of that meeting, we were advised that "ACC
is re-evaluating its public dialogue processes, including the Public
Advisory Panel." We were also told that a continuation of the Panel was a
distinct possibility, and that we would be informed individually by phone of
the Council's decision in mid-November.
We can only speculate about the deliberations of the Council concerning the
future of the Panel. However, the timing of the decision in the light of
subsequent events makes such speculation irresistible. Was the Panel and
Responsible Care®, "window dressing" designed to give the industry the
public appearance of responsibility? If so, then the Panel would be more
useful to the Council in the event of a Gore victory and Democratic
Congress, and a consequent threat of government oversight and regulation..
But if Bush and the Republicans brought in an administration and Congress
much more friendly to the industry, then ACC could adopt a posture more
along the lines of William Vanderbilt: "the public be damned, I work for
my stockholders."
If so, the issue of the continuation of the Public Advisory Panel turned on
the results of the Presidential election the following week, whereupon ACC,
as promised, would phone its decision to the Panel members. Trouble is, a
funny thing happened on the way to that decision. The election was not
decided until a month later, December 12, by the Supreme Court in Bush v.
Gore. A couple of days after the Supreme Court ruled, we received our phone
call: The Public Advisory Panel was toast.
Go figure!
At our final meeting in June, 2001, we were told that a new panel would be
selected that would interact directly with the ACC President. On "deep
background" a list of names of possible members was read to us (which, of
course, I can not repeat) -- "the sort of high-profile and prestigious
individuals that we are seeking for this group." The ACC was vague about its
plans and timing for "the new Panel," which was to be called the “Leadership
Dialogue.” (More about the "Leadership Dialog" shortly [pending]).
Try as it might, the ACC was unlikely to gather a finer group of individuals
than those who served on the now-defunct Public Advisory Panel. This
collection of scholars, engineers, scientists, environmental and consumer
activists, and community leaders carried out their voluntary service with
energy, intelligence, dedication and integrity. They felt that they owed the
Council nothing more than their attention, their judgment, and their candor,
which, it appears, was more than the Council was willing to tolerate.
Honorable mention is also due to the Panel's facilitators, who conducted our
meetings with consummate skill and patience, never intruding their own
opinions and biases, and with full independence from the ACC.
In their "Valedictory Message," the Panel wisely chose to ignore
speculations regarding the successor "Panel" or the political motives of the
ACC. Such speculations are superfluous in the face of a much more troubling
and verifiable indication of the decline of "Responsible Care – A Public
Commitment:" namely, the Council's response to the issues of global warming,
the testing of human subjects and chemical plant security, which I will
discuss shortly.
At the final meeting in June, 2001, the panel members were invited to
comment upon their experiences on the Panel and their concerns about the
Responsible Care® program. In attendance was the ACC President and CEO,
Frederick Webber, and several of the Council’s senior officers. The comments
were not recorded or transcribed. However, I prepared beforehand the
following statement, which I read at the meeting:
I joined the Panel seven years ago, with an open mind and
a willingness to be persuaded by evidence that the industry could
effectively accept the responsibility of self-regulation. During that
time, I have been genuinely impressed by the sense of public
responsibility that I have found among many industry officials.
Nonetheless, I leave with renewed conviction in the necessity of
persistent and circumspect governmental regulation of this industry as
well as any other industry with a significant impact upon the larger
populations of "stakeholders" who lack direct means to protect themselves
from the "externalities" of business as usual.
Regulation can and should be a cooperative enterprise between private
enterprise and public government. And industry, through regulation, gains
the advantage of an explicit statutory guidance and a "floor" of
acceptable behavior which eliminates, to the advantage of both industry
and the public, the dangers of a competitive "race to the bottom" at the
expense of the public interest.
Four decades of disparagement of "big government" have taken a heavy toll
on the natural environment, on public health, and on citizen confidence in
our public institutions. This reckless slander must now come to an end and
be reversed. In a legitimate democratic polity, "government" is the
appropriate watchdog of the public interest. True, in every government one
can find "waste, fraud and abuse" – for no human institution is or can be
perfect. But the remedy for poor government is better government, not the
abolition of government or, worst of all, the privatization of
government.. This truth is validated in the experience of every civilized
society.
Accordingly, the ACC's advocacy must become less private and tied to
campaign finance, and become more public and dependent upon rational
argument and scientific evidence. If this comes about due to ACC
initiative, then the Council will deserve the gratitude and admiration of
all citizens. If, on the other hand, an enlightened legislature must
impose upon industry a regime of advocacy by means of public debate and
free of financial influence, then so be it.
More than any other industry, the chemical industry is science-based. Thus
industry policy and practice should be expected to yield to the weight of
scientific evidence. Forty years ago, with the publication of Rachel
Carson's Silent Spring, the industry faced the test – and failed it. The
response of the Chemical industry to the Bhopal disaster – the
establishment of the Responsible Care initiative – stands as a monument of
corporate responsibility to the public. But the industry's commitment to
that initiative appears to have eroded with time.
Now there is a new test issuing from a world-wide scientific consensus
regarding the chemistry and physics of the atmosphere – the issue of
global warming. Sadly, the public pronouncements of the ACC seem to
indicate that the Council has failed this test as well.
Nothing would please me more than to be proven wrong in this opinion. Be
that as it may, the responsibility of the industry in the face of global
warming is as clear and unequivocal as the scientific consensus.
As this Panel ends its association with American Chemistry Council, I am
reminded of the remark of Elena Bonner to Mikhail Gorbachev, at the
funeral of Bonner's husband, Andrei Sakharov: "I pity you, for you have
lost an honest critic."
I urge ACC to scrupulously select, in our successors,
critics who will be equally honest.
President Webber, in his reply, expressed his disappointment that seven
years of association with CMA/ACC had utterly failed to convert me to his
cherished belief that the chemical industry was fully capable of regulating
itself and fulfilling its public responsibility without “interference” from
the government.
Unfortunately, the Council’s response to Global Warming, and subsequent to
the Panel’s demise, the Council’s behavior regarding the testing of human
subjects and chemical plant security, validated my conclusion as these
issues
indicated a diminished public responsibility and a failure of
self-regulation on the part of the ACC.
The Decline and Demise of "Responsible Care" -- 2001-2006.
[In preparation]
The American Chemistry Council and Global Warming
In its "Valedictory Message," the Panel noted "with disappointment the
failure of the Council to respond appropriately to the prospect of global
climate change, brought about by the release of ‘greenhouse gases’ into the
atmosphere. In view of the overwhelming scientific validation of this grave
threat to the global environment and to the welfare of future generations,
the Panel urges the Council to reconsider its policy and to join the
coordinated efforts of governments, non-governmental organizations and the
scientific community to counteract this global threat."
In view of the abundance of public relations fog that has recently been
generated over the issue of global warming, it would be useful to review the
weight of scientific opinion on the issue.
The Scientific Consensus: In January, 2001, the Intergovernmental Panel on
Climate Change, a United Nations consortium of more than two thousand
scientists, published its third report. The IPCC report concluded, with 90%
confidence, that by 2100, average global temperatures will rise between 2.3
and 9 degrees Fahrenheit. Commenting on this report, seventeen of the
world's scientific academies stated:
The work of the IGCC represents the consensus of the
international scientific community on climate change science. We recognize
the IPCC as the world's most reliable source of information on climate
change and its causes, and we endorse its method of achieving this
consensus. Despite increasing consensus on the science underpinning
predictions of global climate change, doubts have been expressed recently
about the need to mitigate the risks posed by global climate change. We do
not consider such doubts justified... The balance of the scientific
evidence demands effective steps now to avert damaging changes to Earth's
climate.3
Responding to the IPCC report, Donald Kennedy, editor of
Science (the journal of the American Association for the Advancement of
Science) wrote:
The scientific consensus on global warming is so strong
that it leaves little room for the defensive assertions that keep emerging
from the cleverly labeled industrial consortium called the Global Climate
Coalition and from a shrinking coterie of scientific skeptics...
[Scientific] consensus as strong as the one that has developed around this
topic is rare in science... [T]here is little room for doubt about the
seriousness of the problem the world faces...4
At the request of the Bush administration, the National
Academy of Sciences prepared a report which "summed up science's current
understanding of global climate change." That report effectively added the
United States to the list of international scientific academies, as the NAS
committee wrote: "the conclusion of the IPCC that the global warming that
has occurred in the last 50 years is likely the result of increases in
greenhouse gases accurately reflects the current thinking of the scientific
community."5
ACC Policy on Global Warming: The response of the American Chemistry
Council to these scientific studies and reports has been inappropriate and
disappointing.
At my request for information, the staff of the Council sent me a copy of a
letter from ACC President Frederick Webber to Energy Secretary Spencer
Abraham, dated April 26, 2001. In addition, I personally asked an ACC Vice
President, face-to-face, for information regarding the Council's response to
the IPCC and NAS reports, and the Council's support and endorsement of the
Global Climate Coalition (an advocacy group supported primarily by the
petroleum and coal industries). I was told that "this will be discussed at
our meeting tonight." It was not. And so I followed up with an e-mail
request to that same individual. That message was never answered.
Accordingly, I have had to rely upon media and NGO sources for additional
information regarding the Council's position on global warming.
In his letter to Sec .Abraham, ACC President Webber reported that the ACC is
actively promoting "voluntary programs" among its members to "contribute to
shared national and industry goals ... specifically improved energy
efficiency and strengthened international competitiveness; conservation of
energy resources; and, reduction of energy-related and other greenhouse gas
emission." Despite this promising beginning, the remainder of the letter is
not reassuring. There is no further mention of energy conservation. Instead,
the letter calls for (a) the "use of all available and proven energy
sources," (b) the removal of "regulatory barriers to safe and reliable
energy," (c) "encouragement of voluntary action," and (d) further study.
Missing from that letter is any reference to the IPCC report (released in
January, 2001), the Kyoto Treaty, or proposals for federal or international
regulation of greenhouse gas emissions.
From sources outside the Council, I have learned that the ACC "pushed to
kill the carbon cap" on power plant emissions.6
Also, I have learned that the ACC was, for a time, a contributor to the
now-defunct Global Climate Coalition (GCC), a group funded by the coal and
petroleum industries, and described (above) by Science Editor (and former
Presidential Science Advisor) Donald Kennedy as a "cleverly labeled
industrial consortium." To its credit the ACC discontinued support of the
GCC in [???]. [Hard documentation of this association between the ACC and GCC is not immediately at hand. The GCC website did not list its sponsors
and contributors. My numerous requests for documentation have been
unanswered].
Learning from Past Mistakes: In 1963, the Manufacturing Chemists
Association (predecessor to the Chemical Manufacturers Association and later
the American Chemistry Council) launched a public relations campaign to
counteract public and governmental reaction to the publication of Rachel
Carson's Silent Spring. Eventually, ongoing scientific research combined
with public opinion and governmental regulation overwhelmed this industry
effort, as DDT and other chlorinated hydrocarbon pesticides were phased out
of commercial use.7
In our meetings with the staff of the American Chemistry Council and with
leaders of its member companies, the Panel repeatedly heard admissions by
these individuals that the response of the chemical industry to "Silent
Spring" was a colossal blunder. Indeed, the "Responsible Care" program, we
were told, was established, in part, to ensure that such a mistake would
never happen again.
Regrettably, it is now apparent to this former Panel member that, in the
face of an even greater challenge, the Council is well-embarked upon a
course which will repeat that past mistake.
Global Warming and "Responsible Care: In my opinion,
"Responsible Care" means nothing if it does not entail "careful stewardship"
of the planetary life-support mechanisms, and "responsible concern" for the
welfare of future generations.
"Responsible Care" toward the common atmosphere and future generations may
well exact sacrifices in the immediate future and curtail private-sector
prosperity in the short term. But the weight of scientific evidence combined
with the long-term perspective of human and biotic history together lead to
an inescapable moral conclusion: industrial civilization must act
collectively and decisively to halt and reverse this global threat, brought
about by human industrial activity. For in the long run, there can be no
prosperity on a ruined planet.
Frederick Webber’s proposals in his letter to Secretary Abraham –
de-regulation, "voluntary action," continuing use of "all available energy
sources," and continuation of "business as usual" while we await the results
of "further study" -- are all inappropriate responses to the global
emergency which is now upon us.
If the American Chemistry Council persists in its effort to persuade the
public and the government of the United States to delay appropriate action
in the face of global climate change, it may or may not succeed. What it can
not change are the facts of atmospheric chemistry and physics which continue
to strengthen the already overwhelming scientific case for global concern
and global action.
In the face of these facts, the responsibility of the American Chemistry
Council is clear, and contrary to its current course of action.
The CHEERS Study: The Testing of Human Subjects:
In October, 2004, the Environmental Protection Agency announced the
“Children’s Environmental Exposure Research Study,” with the beguiling
acronym, CHEERS. The EPA solicited the participation of sixty families in
Duval County (Jacksonville), Florida. In addition to residency in Duval
County, the participants had to be parents of a child under the age of 13
months, and were required to “maintain [their] normal pesticide or
non-pesticide use patterns” in the study.8
Participating families were to be given stipends of $970 and an assortment
of promotional items, including video cameras.
Not mentioned in the program announcement was the participation of the
American Chemistry Council, which agreed to contribute $2 million of the $9
million cost of the study.
The announcement was met with vehement condemnation by several public
interest groups and media commentators. As a result, implementation of the
CHEERS study was suspended the next month, and eventually cancelled in April
8, 2005.9
The Public Employees for Environmental Responsibility (PEER) reported these
concerns by some EPA scientists:10
-
Financial Incentives (noted above).
-
Lack of Treatment. The study makes no provision for
intervening if infants or toddlers show signs of developmental problems or
register alarmingly high exposure levels in their urine samples. Instead,
families continue in the study so long as researchers are notified when each
pesticide application occurs
-
Lack of Education. Unlike other EPA programs in this
area, the study does not provide participants information about the safe or
proper ways to apply or store pesticides around the home. Nor does the study
furnish participating families with information about the risks of prolonged
or excessive exposure to pesticides.
So why would the EPA propose such a study? PEER put forth the
following suggestions:
-
Pesticide companies want infant exposure levels so that EPA
will be forced to drop its rules requiring that pesticide exposures to small
children be nearly ten times more protective;
-
EPA wants to use CHEERS as the opening for a new policy on
accepting testing on humans to determine pesticide toxicity. The Bush
Administration will soon announce a repeal of the Clinton-era rules against
testing pesticides on humans.
-
Through direct contributions, corporations are now influencing
EPA research. The American Chemistry Council, which contributed $2 million to
CHEERS, also successfully lobbied to include exposure to flame retardants and
other household chemicals in the study. EPA now has 80 similar research
agreements with industries, universities and local governments.
The Network of Concerned Farmers has additional suspicions as to the reason for
the ACC’s support of the CHEERS study:
The trick here is that these products are known to have
negative long term health effects. This is a short two year study. In other
words, the results of he study are already known...there will be little to no
obvious short term negative effects on these children at the end of the two
year period. The seemingly positive results of the study will allow the ACC to
announce positive "EPA study results" to the public, which will allow the ACC
to more effectively lobby Congress to weaken regulations on these products
even more (thereby increasing profits dramatically). This technique has been
exercised by the ACC for decades.11
While this is an interesting speculation, it must remain just
that, absent additional documented evidence.
Even so, one must wonder why the EPA, with a research budget of over half a
billion dollars, would need, much less accept, two million dollars from an
industry association, an interested party to the study to say the least.
The immediate postponement and eventual cancellation of the CHEERS study was
doubtlessly due to the scientific and public outcry against it, including
significant opposition from within the EPA. From this we can conclude that
“Responsible Care” was probably not foremost in the minds of the ACC decision
makers when they agreed to sign on to the CHEERS study with their $2 million
“contribution.”
Plant Security:
Six weeks after the 9/11 attacks, Sen. John Corzine of New Jersey introduced the
“Chemical Security Act” which would require the Environmental Protection Agency
to take responsibility for chemical plant security. The bill was immediately and
unanimously approved by all nineteen members of the Senate Environment and
Public Works Committee.
The chemical industry, led by the ACC, would have none of it. Says Corzine, “my
bill was crushed by the American Chemistry Council. It was crushed by those who
were looking after their private interests and not the public interests.”12
The National Environmental Trust reports:13
The calculated assault on that legislation – and all
subsequent attempts to improve our chemical security – exposes the dangerous
ties between a $450 billion chemical industry and our nation's lawmakers. ...
With Corzine’s bill destined for a floor vote, the chemical industry united to
undermine it. Thirty industry groups sent a joint-letter to members of the
United States Senate; 29 of them combined to spend over $17 million lobbying
in 2001 alone. (Senate Office on Public Records)
This letter found a receptive audience on the hill: “According to the Center
for Responsive Politics, a nonpartisan group … the chemical manufacturing
industry has given $11 million [in campaign contributions since September 11]
-- 78 percent of it to Republicans.”14
In a sudden change, seven senators whom had previous voted for Corzine’s bill
wrote another letter to their colleagues, asking them to help defeat it.
“A study on the shanking of the Corzine bill by Common Cause [writes Salon’s
Jake Tapper], reported that six of the senators plus two others who wrote
letters opposing the bill -- Sens. George Allen, R-Va., and Richard Shelby,
R-Ala. -- have received more than $850,000 from the [American Chemistry
Council] and its member companies.”15
The administration’s failure to address chemical security is not surprising
given their close ties to industry: “Fred Webber, the ACC's president and
CEO, went to the Senate to decry Corzine's bill. Webber … raised more than
$100,000 for the presidential campaign of then-Gov. George W. Bush as a
"pioneer.” (Salon, op. cit) Webber is only one of ten Bush “pioneers” with
ties to the chemical industry, which has given the president approximately
$1.2 million since 1999.16
Millions of Americans were made dramatically aware of the public
danger from insecure chemical plants in November, 2003, when 60 Minutes’ Steve
Kroft, reported his visits to “dozens of plants in major metropolitan areas that
could put more than a million people at risk in the event of a terrorist
attack.” Kroft reports, “we found gates unlocked or wide open, delapidated
fences and unprotected tanks filled with deadly chemicals...”17
In one especially chilling scene, Kroft and investigative reporter, Carl Prine,
walked up to a tank of boron triflouride – “a particularly nasty gas.” Had they
been terrorists carrying a satchel charge, the fatalities in the Pittsburgh area
might well have totaled six figures.18
Clearly, voluntary security measures on the part of the chemical industry were
insufficient, to say the least. And the ACC’s successful lobbying against
Senator Corzine’s “Chemical Security Act” was not in the public interest. Once
again, the public was not “responsibly cared for” by the ACC and the chemical
industry.
Summing Up.
To begin, I would re-iterate that the chemistry industry executive and managers
that I met were, by and large, decent, principled and well-intentioned people. I
would be pleased to have them as my neighbors, however unlikely given our
respective financial circumstances.
However, my association with the CMA/ACC has strengthened my conviction that
unregulated commerce systematically corrupts those both involved in such
enterprises and government, as it works against the interest of the general
public. The proven remedy for such corruption is a rule of law and a regulatory
regime administered by the only institution with the moral legitimacy to act as
an agent of the public at large; namely, a government “deriving its just powers
from the consent of the governed.” Huge industrial and commercial corporations
affect more than the employees and stockholders of these enterprises; they also
affect, for both better and for worse, the public – the “stakeholders” – in the
countries in which they operate. Accordingly, these stakeholders are entitled to
a voice in the operations of enterprises that significantly affect their quality
of life, and the appropriate agency to represent and act in behalf of those
stakeholder interests is government.
Conversely, stakeholder interests cannot and must not be solely represented by
“public advisory panels” appointed by, and operating at the convenience of,
corporations or industry associations such as the American Chemistry Council.
This is not to say that such panels serve no useful purpose. The law and
regulatory agencies define a “floor” of corporate behavior below which a company
must not be allowed to go. But corporations and commercial associations that
aspire to rise above these minimum requirements and that choose to engage in
community service might usefully invite public input and advice through such
panels. When government stipulates minimum standards of safety for workers and
surrounding communities, industry might say, in effect, “that’s not good enough
for us – we can do better.” And so, industry associations might establish
programs such as CMA/ACC’s “Responsible Care,” and invite members of the
community to advise the operation of such programs. Commendable!
Thus public and community advisory groups should surely count for something. But
not for everything. They must not take the place of government agencies, for
these advisory groups lack research budgets and facilities, they are without
expert staff members, they can not investigate independently and conduct
unannounced “spot” inspections, and they lack the power of enforcement and the
sanctions of the law. For all this, the agency of government is required.
For let’s face it: in numerous and easily recognizable circumstances, corporate
virtue (“responsible care”) is anti-competitive. Firms that pay their employees
less have a competitive advantage. So too firms that reduce production costs by
“externalizing” those costs through pollution and lax safety standards. As
Garrett Hardin put it, “conscience is self-eliminating,” and the result is a
“race to the bottom,” as each firm, striving for advantage cuts internal costs
by externalizing those costs at the expense of the workers, the public, the
environment, and the future. Hardin’s solution, once again, is that of Thomas
Hobbes: “mutual coercion, mutually agreed upon” – in other words: government.19
I will not deny that competition can lead to “a better mousetrap.” The computer
with which I am writing this chapter would never have been developed without
competitive free-enterprise. But neither would it have been developed without
state-sponsored basic scientific research – both are necessary.
Unlike the regressives for which “the free market” is an unqualified good,
progressives regard free enterprise competition as a mixed blessing, sometimes
good and sometimes bad – these opposites best recognized and dealt with on a
case-by-case basis. As we have noted, regressives are guided by dogma, while
progressives are pragmatists, who prefer to be guided by experience and
evidence.
“Good” competition must be encouraged and maintained by anti-trust laws – i.e.,
occasional interference from “big government.” “Bad” competition, which leads to
pollution, exploitation of workers, dangerous products, community risks, must be
regulated and, in extreme cases (e.g. the drug trade) outlawed.
We conclude as we began: voluntary corporate self-regulation, typified by the
American Chemistry Council’s “Responsible Care” program, can and does work, and
public input from advisory panels can contribute to the success of such
initiatives. But corporate self-regulation can not work well enough.
Self-regulation can not protect the good corporate citizen from the scoundrels,
which means in turn, that it can not protect individual citizen stakeholders.
For that we need government.
This simple fact is validated, both in the history of the United States, and in
the experience of every democratic industrial country. And if that is not
enough, the brief history of the "Responsible Care®"
initiative of the American Chemistry Council stands as eloquent testimony to the
insufficiency of voluntary corporate self-regulation.
NOTES AND REFERENCES
1. For a statement of the ten CMA
"Guiding Principles of Responsible Care"
follow this link.
2. New York Times, September 13,
1970.
3. Science, 18 May 2001, p.
1261.
4. Science, 30 March 2001.
5. National Academy of Sciences, June
6, 2001.
6. Newsweek, March 26, 2001.
7. John H. Cushman, "After ‘Silent Spring,' Chemical
Industry Put Spin on All it Brewed," New York Times, March 26, 2001.
8. This program announcement from the
EPA website has now been withdrawn. (Formerly at
www.epa.gov/cheers/basic.htm
. However, the EPA desk statement has been preserved by PEER
here and the
brochure, here.
9. The cancellation notice is at the
same website address as the original announcement of the study:
www.epa.gov/cheers/basic.htm
.
10. Public Employees for Environmental
Responsibility: EPA and Human Testing:
What is CHEERS.
11. Network of Concerned Farmers:
Monsanto &
Bayer promote study exposing infants from low income families to toxic
chemicals.
12. CBS News:
“US Plants : Open to Terrorists”.
13. National Environmental Trust:
Industry
Sabotage of Chemical Security Measures,.
14. “Concerns Rise Over Chemicals as
Targets,” Boston Globe, June 1, 2004.
15. Jake Tapper:
"America's Achilles Heel,"
Salon, March 18, 2003.
See also: James V. Grimaldi and Thomas B. Edsall:
“Across Federal Spectrum,” Washington Post, May 17, 2004
16. “Security for Sale,” The Nation
op-ed, September 17, 2004.
17. CBS News, op. Cit.
18. For more on chemical plant security, see
Common Cause: “Chemical Reaction: Despite Terrorism Threat, Chemical Industry Succeeds in
Blocking Federal Security Regulations.” And Niaz Dorry and Nityanand
Jayaraman: “Chemical
Industry vs. Public Interest: Redefining the Public Debate on Chemical
security,” No More Bhopals Alliance, June, 2004.
19. Garrett Hardin:
“The Tragedy of
the Commons,” op. Cit., 1246-7.
