#488: Fixing Corporations--Part 1: Legacy of the Founding Parents

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RACHEL'S ENVIRONMENT & HEALTH WEEKLY #488
April 4, 1996
News and resources for environmental justice.
==========
Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@rachel.clark.net
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by Jane Anne Morris [1]

The people who founded this nation didn't fight a war so that they could have a couple of "citizen representatives" sitting in on meetings of the British East India Company. They carried out a revolution in order to be free of oppression: corporate, governmental, or otherwise; and to replace it with democratic self-government.

It seems that things have slipped a little. Today, as soon as any group or movement puts together a coherent critique of the role of corporations, tongues start clucking. Politicians, mainstream reformers, degreed experts, and media commentators fall all over each other in an effort to dismiss such clear, practical, focused thinking as mere "conspiracy theories" cooked up by unbalanced "crackpots."

They forget that 17th century political philosopher Thomas Hobbes called corporations "worms in the body politic." [2] Adam Smith condemned them for their effect in curtailing "natural liberty." [3]And most of the so-called "founding fathers" of this nation shared an opinion of corporations that today would earn them the label "lunatic fringe" from the same mainstream tongue-cluckers. [4]

Those who won independence from England hated corporations as much as they hated the King. For it was through state-chartered corporations that the British government carried out some of its most pernicious oppression. Governments extending their power by means of corporations, and corporations themselves taking on the powers of government, are not new problems.

Because they were well aware of the track record of government-chartered corporations, and because they guarded their freedom so jealously, citizens of the newly independent United States of America chartered only a handful of corporations in the several decades after independence. [5]

On those few occasions when states did charter a corporation, "the powers which the corporation might exercise in carrying out its purposes were sparingly conferred and strictly construed." [6]

But inevitably, the generation that had fought against injustices perpetrated by corporations like the British East India Company and the Hudson Bay Company was followed by others whose memories of corporate oppression were less vivid. Still, the warnings against corporations continued.

On the eve of his becoming Chief Justice of Wisconsin's Supreme Court, Edward G. Ryan said ominously in 1873,

"[There] is looming up a new and dark power... the enterprises of the country are aggregating vast corporate combinations of unexampled capital, boldly marching, not for economical conquests only, but for political power.... The question will arise and arise in your day, though perhaps not fully in mine, which shall rule --wealth or man [sic]; which shall lead --money or intellect; who shall fill public stations --educated and patriotic freemen, or the feudal serfs of corporate capital...." [7]

The feudal serfs of corporate capital made a lot of headway during the next fifteen years. But in 1888 President Grover Cleveland echoed Justice Ryan's sentiments:

"Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people's masters." [8]

Well into the twentieth century corporate excesses were acknowledged and condemned by some pretty prominent persons. Louis D. Brandeis, a multimillionaire (from his own law practice and astute investments) by the time he became a Supreme Court Justice in 1916, referred to corporations as "the Frankenstein monster which States have created by their corporation laws." [9]

Far from being "radical," harsh criticism of corporations has a long, respectable, and mainstream political lineage. Now that you know you're in good company, let's dream a little. Imagine what grassroots environmental activism would be like if corporations were restructured to be responsive to the people and to serve the public interest.

What if...

** corporations were required to have a clear purpose, to be fulfilled but not exceeded. [10]** corporations' licenses to do business were revocable by the state legislature if they exceeded or did not fulfill their chartered purpose(s). [11]** the state legislature could revoke a corporation's charter for a particular reason, or for no reason at all. [12]** the act of incorporation did not relieve corporate management or stockholders/owners of responsibility or liability for corporate acts. [13]** as a matter of course, corporation officers, directors, or agents could be held criminally liable for violating the law. [14]** state (not federal) courts heard cases where corporations or their agents were accused of breaking the law or harming the public. [15]** directors of the corporation were required to come from among stockholders. [16]** corporations had to have their headquarters and meetings in the state where their principal place of business was located. [17]** corporation charters were granted for a specific period of time, like 20 or 30 years (instead of being granted "in perpetuity," as is now the practice.) [18]** corporations were prohibited from owning stock in other corporations in order to prevent them from extending their power inappropriately. [19]** corporations' real estate holdings were limited to what was necessary to carry out their specific purpose(s). [20]** corporations were prohibited from making any political contributions, direct or indirect. [21]** corporations were prohibited from making charitable or civic donations outside of their specific purposes. [22]** state legislatures set the rates that corporations could charge for their products or services. [23]** all corporation records and documents were open to the legislature or the state attorney general. [24]

ALL OF THESE PROVISIONS WERE ONCE LAW IN THE STATE OF WISCONSIN And similar ones in most other states.

There is no reason why grassroots activists can not insist that we once again impose similar laws to direct corporate actions. But because education and media corporations are silent about the power of the sovereign people literally to dictate terms to corporations, we instead spend our time fighting in regulatory agencies and courts where the odds are against us from the get-go.

Much activism today concerns itself with struggling to induce government agencies to enforce their own laws, or exerting superhuman efforts to close gaping loopholes in existing laws. When we're not doing that, we're perhaps trying to add an obviously toxic chemical to a list of prohibited substances. Or maybe we're trying to coax a corporation that profited greatly from poisoning our air and water to pay for even a small portion of the cleanup costs.

One reason that we the sovereign people don't know our own strength is that too often we think of corporations and business as more or less synonymous. But corporations are not simply big businesses. You don't need a corporate charter to sell apples on the corner, or to operate a widget factory. Individuals, sole proprietor-ships, partnerships and other business forms can do business without obtaining a corporate charter from a state. Corporations are a special case.

A corporate charter granted by a state gives special privileges not possessed by other businesses. And in return, the state retains the power to alter, amend, or repeal said charter. The legislature of a state thus possesses not only the power to grant charters but to revoke them. This power is laid out in what is called the "reserved power clause," and is explicitly spelled out in the laws or constitution of almost every state. Corporations are all set up by states to serve a "public need" and act "in the public interest." This is a long-established doctrine.

The corporation, insofar as it is a legal entity, is a creation of the state... It is presumed to be incorporated for the benefit of the public. [25]

Corporations are instrumentalities of the state, not independent entities. How have we strayed so far from this notion?

Next week,#489 we will outline some of the legal doctrines that were built up as obstacles to the sovereign people's ability to direct corporate actions. Then we will explore the potential of specific provisions --similar to the ones enumerated above --that we can add to state constitutions, corporation laws, or corporate charters themselves, to reclaim our historic right to make corporations serve the public interest.

===============

[1] Jane Anne Morris is a corporate anthropologist working on corporation issues as part of Democracy Unlimited of Wisconsin Cooperative. [Join them: 29 E. Wilson, Ste. 201, Madison WI 53703; phone (608) 255-6629; fax (608) 255-6643]. She is author of NOT IN MY BACK YARD: THE HANDBOOK (San Diego: Silvercat Publications [(888) 299-9119], 1994).

[2] Thomas Hobbes (1588-1679), English philosopher. 

[3] In his WEALTH OF NATIONS (1776), Adam Smith was concerned that people's liberty was being encroached upon through the use of corporations to restrain competition and establish monopolies.

[4] A discussion of this and related issues can be found in TAKING CARE OF BUSINESS: CITIZENSHIP AND THE CHARTER OF INCORPORATION, a pamphlet by Richard L. Grossman and Frank T. Adams, 1993, available for $4 from Charter, Ink., P.O. Box 806, Cambridge, MA 02140.

[5] See note 3.

[6] Justice Louis Brandeis in Liggett v. Lee, 1933, 288 U.S. 517.

[7] Alfons J. Beitzinger, EDWARD G. RYAN: LION OF THE LAW (Madison: The State Historical Society of Wisconsin, 1960), pgs. 115-116. From an 1873 address to the graduating class of the University of Wisconsin Law School.

[8] Grover Cleveland, "Fourth Annual Message to Congress, 3 Dec. 1888," in MESSAGES AND PAPERS OF THE PRESIDENTS Vol. 8, pgs. 773-4 (James D. Richardson, editor, 1989)

[9] On personal finances, see Melvin I. Urofsky, LOUIS D. BRANDEIS AND THE PROGRESSIVE TRADITION (Boston: Little, Brown & Co., 1981), pg. 9; Brandeis, Liggett v. Lee, 288 U.S. 517 (1933).

[10] Wis. G.L. 1864, Ch. 166, Sec. 7; Wis. R.S. 1878, Sec. 1767.

[11] See the "reserved power" clause.

[12] Wis. A.G. Op. (1913), Vol. 2 p. 169.

[13] Act of Aug. 21, 1848, Wis. Laws, p. 148 (Gen. Incorp. for Plank Roads).

[14] State ex rel. Kropf v. Gilbert, 251 N.W. 478 (1934).

[15] Dudley O. McGovney, "A Supreme Court Fiction: Corporations in the Diverse Citizenship Jurisdiction of the Federal Courts," HARVARD LAW REVIEW Vol. 16 (May 1943), pgs. 853-898, 1090-1124, 1225-1260.

[16] Wis. R.S. 1878, Sec. 1776; Wis. Stat. 1931, 180.13.

[17] Wis. G.L. 1864, Ch. 166, Sec. 9.

[18] Wis. G.L. 1864, Ch. 166, Secs. 4,33.

[19] Wis. R.S. 1878, Sec. 1775.

[20] Wis. R.S. 1849, Ch. 54 Sec. 7; Wis. G.L. 1864, Ch. 166, Secs. 6, 15.

[21] And it was a felony to do so. Wis. State 1953, Ch. 346.12-346.15.

[22] For example, Wis. G.L. 1864, Ch. 166, Sec. 7. See also the author's, "America Needs a Law Prohibiting Corporate Donations," in SYNTHESIS/REGENERATION 9: A MAGAZINE OF GREEN SOCIAL THOUGHT, Winter 1996.

[23] Stone v. State of Wisc., 94 U.S. 181 (1876).

[24] Wis. R.S. 1849, Ch. 54, Sec. 22.

[25] U.S. Supreme Court Justice Henry Billings Brown, in Hale v. Henkel (1905) 201 U.S. 43, 74-5.

Descriptor terms: reforming corporations; history; controlling corporations;

#489: Fixing Corporations--Part 2: Corporations for the Seventh Generation

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RACHEL'S ENVIRONMENT & HEALTH WEEKLY #489
---April 11, 1996---
News and resources for environmental justice.
==========
Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@rachel.clark.net
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================== Original Source ==================
by Jane Anne Morris [1]

[Note: This is second of two articles that explore strategies for going beyond the usual calls for "corporate accountability." (Part 1 appeared in REHW #488.) The author is part of a movement, already taking root in over a dozen states, that advocates retaking the historic right of the sovereign people to determine and direct corporate action.]

In view of the historic provisions that used to govern corporations (see REHW #488), their representatives must be pleased that at least in this country, boycotts and divestment strategies are considered radical, and "dialoging" is the preferred mode of interaction. The rest of this paper is an exploration of ways to restructure today's corporation so that citizen activist efforts to eliminate corporate wrongs can amount to more than just a few hard-won needles in a corporate haystack.

As we saw last week,#488 corporations are a special form of business entity given a state charter and certain privileges in exchange for being subject to the will of the sovereign people as expressed through state legislatures.

Over the last half a dozen generations, corporation representatives have managed to set up barriers to insulate the corporation from citizen influence. Several trends have made it more difficult to direct the corporation towards serving the public interest it was created to serve. 

Among them: 

** Under cover of the U.S. Constitution's "commerce" clause [2]as interpreted by the U.S. Supreme Court, federal regulatory agencies have usurped many of the powers once exercised regularly by state legislatures. Today's corporations are ideally suited to wage battles on the regulatory front, because it is so difficult for citizens' groups to match their resources. [3] (In many ways, the late 19th century ascendance of the "commerce" argument is an eerie foreshadowing of today's NAFTA and GATT controversies.) 

** Through a series of leveraged expansions of the "diversity clause" of the U.S. Constitution [4](allowing "citizens" from two different states to be heard in federal court instead of the presumably more biased courts of either's home state), the U.S. Supreme Court "deemed" corporations "citizens" and thus gave them nearly unrestricted access to federal courts. [5] This saved corporations the trouble of defending themselves in the courts of the state where they actually cause the harms. 

** In 1886 the U.S. Supreme Court decreed that corporations are "persons" under the 14th amendment, thus granting them protection under the Bill of Rights. [6]Such guarantees of free speech, due process, and equal protection under the law were long considered to apply to human persons. This ruling gave corporations unprecedented "rights" to question almost any law applied to them, and frustrated the ability of the people to direct corporate action in service of the public good. 

** Stockholders, who used to really run corporations, have seen their power dramatically reduced. Today the powerful corporate manager class is insulated from stockholder influence by a variety of stock voting tricks and governance structures that they themselves set up. They are protected from most liability by state corporation codes and lax laws and enforcement. And they write their own paychecks. [7]

In order to have a world that we would not be ashamed to bequeath to the Seventh Generation, we must make two major changes in the governance of the corporation. First, we must remove obstacles to citizen control of the corporation. Second, we must reinstate provisions such as those (enumerated in REHW #488) once governing corporations, and add others that are particularly suited to our times.

"Model" provisions can become part of 1) state constitutions, 2) state corporation codes and/or 3) the actual corporate "charters," which are the documents states give to corporations to formally bring them into existence. A program to institute such changes would include areas such as the following.

People's power over corporations.

1. We the people can demand that state legislatures, the most direct expression of the people's will, use their "reserved power" to revoke the charters of errant domestic corporations. (A domestic corporation is one chartered in that state.) The people of Delaware and a few other states with "easy" chartering policies would have a more exciting time than the rest of us here, since the overwhelming majority of offending (U.S) multinational corporations are chartered there.

2. In other states, citizens can demand that their attorneys general (or whatever agent is specified in their state laws and constitutions) revoke the permission of errant foreign corporations to do business in their state. (A foreign corporation is one chartered in another state in the U.S. Those chartered in other countries are called alien corporations.) Such actions have already been initiated against Weyerhaeuser, WMX (formerly Waste Management, Inc.), and CSX corporations. [8] (See REHW #455.)

** Annul "rights" given corporations by judge-made law. We can work for state constitutional amendments that underline corporations' status as subservient to the people and the legislatures, and assert that corporations are not legal constitutional "persons" and thus are not protected by the Bill of Rights of the U.S. Constitution.

** Re-open corporate affairs to legislative scrutiny. At one time, all corporate records and affairs were open to legislatures or other designated state officials so that state governments, on behalf of the people, could monitor and evaluate corporate actions. We can reinstate such provisions in state corporation codes.

** Reinstate stockholder/owner control over corporate management and policy. For decades, concerned stockholders have attempted to curb some of the worst excesses of corporate policies, only to find their efforts thwarted by corporate management. We can modify states' corporation codes to return a modicum of control of corporations to their putative owners, the stockholders. 

Some basic provisions might include 

a) a one stockholder, one vote policy,
b) prohibitions against issuing non-voting stock,
c) removal of obstacles to stockholders' access to information, initiation of policies, and removal of unsatisfactory corporate management.

** Give state courts clear authority to hear all corporation cases. State courts, more sensitive to local needs and conditions and more accessible to citizens, once heard most corporation cases. During the last years of the nineteenth century, numerous unsuccessful attempts were made at the federal level to reinstate this practice. Both federal legislation and federal constitutional amendments were proposed. Either one would do the trick.

** Reinstate historic limits on corporations. State corporation codes and/or corporate charters can be amended to include provisions such as the following: 

a) Require corporations to have a specific purpose, with a penalty of charter revocation if said purpose is either not fulfilled or is exceeded. This would include a prohibition on the kind of "look how ethical we are!" advertising that currently dissipates stockholders' dollars and discombobulates public perceptions.
b) Require a percentage of stockholders to live within the chartering state.
c) Prohibit corporations from owning stock in other corporations.
d) Issue corporate charters for only a specific term of existence, perhaps ten or twenty years.
e) Limit real estate holdings to that necessary for corporate purposes.
f) Prohibit any and all political donations by corporations.
g) Prohibit all civic, charitable, or educational donations not specifically provided for in the corporate purpose.
h) Impose strict liability for all corporate officers and/or stockholders.

** Initiate new limits on corporate activities. We can add provisions (to state codes, charters, and/or constitutions) that:

a) Forbid corporations from doing business under pseudonyms or alternative names.
b) Require corporations to use earth-friendly materials in all stages of operations, and to list all ingredients.
c) Prohibit corporations from buying up patents for the purpose of preventing others from exploiting them.
d) Require every corporate document to be signed by a human being who thereby takes responsibility for the veracity of statements and the soundness of judgments therein.
e) Require a corporation to pay for periodic health, safety, and environmental audits by independent experts selected by workers and affected communities.
f) Require that in the event of bankruptcy, corporate management pay and perks be withheld until all other debts and creditors are paid, starting with workers and small businesses.
g) Require 95% recycling.
h) Prohibit corporations from seeking or accepting "incentive" packages from any government entity.
i) Establish a maximum ratio (like 1:5) between compensation of the lowest-paid worker and the highest-paid executive.
j) Establish a process similar to "recall" procedures for elected officials, so that citizens can initiate revocation referendums for corporate charters (in the case of domestic corporations) and for certificates of authority (that allow foreign corporations to do business in one's state).
k) Require uniformity of health benefits within each corporation for all corporation employees (from CEOs to wage-laborers).

This is just a sampling of some of the options open to us. Priorities might include working to revoke corporate charters, to end the privileges granted corporations under the judicial "corporate personhood" doctrine, and to prohibit political contributions. Most of the obstacles we face are in the arena of judge-made law, but historic legislation and constitutional provisions offer us a solid body of favorable precedents. Much debate lies ahead. But it is high time we shifted the controversy from whether we control corporations to how we do so.

The sky's the limit. What are we waiting for?

===============

[1] Jane Anne Morris is a corporate anthropologist working on corporation issues as part of Democracy Unlimited of Wisconsin Cooperative. [Join them: 29 E. Wilson, Ste. 201, Madison WI 53703; phone (608) 255-6629; fax (608) 255-6643]. She is author of NOT IN MY BACK YARD: THE HANDBOOK (San Diego: Silvercat Publications [(888) 299-9119], 1994).

[2] U.S. Const. Art. I, Sec. 8.

[3] An excellent discussion of the difficulties of relying on a regulatory strategy to actually regulate corporate action can be found in Christopher D. Stone, WHERE THE LAW ENDS: THE SOCIAL CONTROL OF CORPORATE BEHAVIOR (NY: Harper & Row, 1975.]

[4] U.S. Const. Art. III Sec. 2.

[5] See note 15 in REHW #488.

[6] Santa Clara County v. Southern Pac. R.R., 118 U.S. 394.

[7] A discussion of the historical process of taking power from stockholders and giving it to a largely independent corporate management can be found in Adolf A. Berle, Jr., "Historical Inheritance of American Corporations," in Edmond N. Cahn, editor, SOCIAL MEANING OF LEGAL CONCEPTS (New York: NYU School of Law, 1950), pgs. 189-218.

[8] CORPORATE CRIME REPORTER, Vol. 9 No. 25 (June 28, 1995).

Descriptor terms: reforming corporations; regulation; history; constitutional law;

#491: Shifting the Burden Of Proof

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RACHEL'S ENVIRONMENT & HEALTH WEEKLY #491
---April 25, 1996---
News and resources for environmental justice.
==========
Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@rachel.clark.net
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For most of history, humans were so puny, compared to the rest of nature, that the speed of technological change didn't matter. But since 1945, humans have become a major force that nature must reckon with. Human activities now mobilize (pull from the deep earth and redistribute into surface soils and water) much larger quantities of many minerals than all the rest of nature put together. In other words, humans dwarf the rest of nature when it comes to moving nitrogen, phosphorus, sulfur, arsenic, mercury, lead, and a dozen other metals. In addition, we have invented and dumped into the environment enormous quantities of synthetic chemicals that nature does not ordinarily create. As a result, we puny humans are changing the chemical balance of the soils and waters of the entire planet. We are now waiting (without paying close attention) to learn what effects these changes will have on wildlife and on human health. [1]

As we saw last week, we are flying blind (see REHW #490). When we deploy new chemical technologies (and genetic engineering technologies), we have little or no idea what the consequences will be. We learn about the consequences by trial and error, exposing wildlife and humans and then waiting until harm becomes evident. Usually, we do not even study the exposed individuals in any systematic way. Wildlife may or may not be studied. In the case of humans, we almost invariably wait until they notice symptoms in themselves. Then we generally ignore them until they become desperately angry and get themselves organized into a political force. Then we may begin to look for harm, using crude techniques like epidemiology, which can only discover problems that affect a large proportion of the study population. [2]Such studies take years to complete; meanwhile exposure to the chemical continues. This is the "prove harm" philosophy of public health protection and it forms the basis of the public health system in the civilized world today. It is not a philosophy based on prevention. Victims have to prove harm before controls can be initiated.

After harm becomes evident, we may (or may not) take regulatory steps to control the source of the problem. Although corporate polluters complain bitterly that they are being strangled by environmental regulations, in truth, all of the nation's environmental laws, taken together, impose controls on only about 350 individual chemicals. There are 71,000 chemicals in commercial use today, so our regulatory system imposes controls on one-half of one percent of the chemicals currently in use. In other words, 99.5% percent of chemicals are entirely unregulated.

Under the "prove harm" pollution control system, the way we learn about chemical problems is by unpleasant surprises. We learn after the fact that we have begun to heat up the planet by our emission of greenhouse gases. We learn after the fact that our refrigerators and air conditioners have eaten holes as big as the United States in the atmosphere over the north and south poles. We watch cancer rates steadily rise and after about three decades of this, we begin to scratch our heads. This is the way the "prove harm" public health protection system works.

The most recent tidal wave of bad news has to do with hormones. The new book, OUR STOLEN FUTURE, describes how scientists during this decade have pieced together the latest threat to the well-being of wildlife and humans: many industrial chemicals we have been dumping into the ecosystem in huge quantities for years are now thought to interfere with hormones. [3] (See REHW #263, #264, #486, #487, and #490). Hormones are natural chemical messengers that flow through the bloodstream, providing chemical instructions that control growth, development and behavior in birds, fish, amphibians, reptiles, and mammals, including humans. No one knows how many of the 71,000 chemicals now in use can actually interfere with hormones; so far, 51 chemicals have been shown to have such an effect. The range of problems that may be caused by hormone disruption is large: cancer, birth defects, confusion in sexual preference (seen in wildlife and in laboratory animals), poor parenting (seen in wildlife), stunted growth, reproductive failure, diminished sperm count, endometriosis (a painful disease of the menstrual tissues), ectopic (tubal) pregnancies, damage to the immune system, impaired short-term memory, decreased ability to pay attention, diminished intelligence, violent behavior--the list is long and unpleasant. There is no doubt that hormone-related damage is occurring in some wildlife populations. The case for damage to humans is less firm; however, it seems certain that this is a serious problem that the public health system must now gear up to define and then begin to solve. [4]

The main question raised by this most recent tsunami of bad news is this: given that we are flying blind, what public policies could we adopt that might reduce the number of unpleasant surprises we leave to our children?

The problem breaks down into two parts: (1) what should we do about existing chemicals? And (2) what should we do about newly-created chemicals?

For existing chemicals, OUR STOLEN FUTURE offers some useful suggestions:

** Greatly reduce the number of chemicals on the market. OUR STOLEN FUTURE describes an effort to find environmentally benign chemicals for use in the textile business. A group of researchers examined 7500 chemicals used to dye or process fabrics. They eliminated chemicals that were toxic, persistent, mutagenic, carcinogenic, or known to interfere with hormones. Of the 7500 chemicals, only 34 passed all the tests. As a result, an environmentally benign fabric is now being marketed. [5]

** Reduce the number of chemicals in products. Make products simpler.

** Make and market only chemicals that can be readily detected at relevant levels in the real world with current technology.

** Restrict production to only products that have a completely defined chemical makeup and disallow products containing unpredictable mixtures of chemicals. Such mixtures --for example the 209 PCBs [polychlorinated biphenyls] --are difficult to test for safety and to track after they are released into the environment.

These are useful suggestions for altering our approach to EXISTING CHEMICALS. But the issues involved are very complicated and hard for most people to understand. A campaign to achieve these changes would quickly bog down in debates between "dueling experts." The public would be left out and would sleep through the debates. EXISTING CHEMICALS, therefore, offer limited opportunities for initiating needed changes.

On the other hand, NEW CHEMICALS offer much greater opportunities.

** OUR STOLEN FUTURE points out (pg. 219) that we need to reverse the burden of proof for safety of new chemicals. Presently new chemicals are considered innocent until proven guilty. This should be reversed. New chemicals should be assumed harmful until they have been thoroughly tested for all the kinds of harm we presently know about. (This will still not prove that any chemical is "safe" because history tells us that, in the future, new kinds of harm will become apparent, and furthermore we can never test for all the possible interactions between existing chemicals and new ones.) [6]

Requiring that new chemicals be thoroughly tested, then banning the bad ones, is the essence of pollution prevention. Despite this, most corporate polluters --even those claiming to be green as grass --would almost certainly oppose it. A campaign to make this one fundamental change --to reverse the burden of proof for chemical safety --might quickly reveal the amorality and the raw power of corporate polluters. This would be a win-win battle, well worth taking on. Even if such a campaign did not initially succeed in reversing the burden of proof, it might lead to wider understanding that (a) corporations cannot reform themselves and (b) that the corporate form itself will have to be addressed before we can significantly improve chemical safety. (See REHW #489, #488, #455, and #449.)

Strategically, it makes good sense to start with a campaign to reverse the burden of proof for chemical safety. It is an issue that everyone can understand. It's simple: if a chemical hasn't been thoroughly tested, it's assumed dangerous and can't be manufactured. The morality is clear: every baby has the right to be born free of poisonous chemicals. No corporation has the right to chemically trespass, to penetrate our bodies with poisons. Pharmaceutical drugs have to be thoroughly tested before they can be sold; for the same reasons, all chemicals should have to be thoroughly tested before they can be sold. Who would oppose this change? Few people have anything at stake if a chemical gets banned before it is ever manufactured. Therefore, most people have no reason to oppose thorough testing of new chemicals. A campaign to shift the burden of proof for chemical safety would starkly expose the power relationship between the public and the corporate polluters. Corporations campaigning for the right to release untested poisons into the environment would be shooting themselves in the foot.

True, shifting the burden of proof for chemical safety would slow the speed of chemical innovation --but that's part of the point. Evidence accumulated during the past 25 years (see REHW #490) strongly suggests that, when you are flying blind, you should fly more slowly than we are presently doing. That way, even if you hit a mountain, there still might be a chance for survival. 

--Peter Montague

===============

[1] For example, see Jerome O. Nriagu and Jozef M. Pacyna, "Quantitative assessment of worldwide contamination of air, water, and soil by trace metals," NATURE Vol. 333 (May 12, 1988), pgs. 134-139. And see REHW #155. And see David L. MacIntosh and others, "Dietary Exposures to Selected Metals and Pesticides," ENVIRONMENTAL HEALTH PERSPECTIVES Vol. 104, No. 2 (February, 1996), pgs. 202-209.

[2] In principle, epidemiology can discern small effects, but this requires studying large groups which, under most circumstances, is not practical.

[3] Theo Colborn, Dianne Dumanoski and John Peterson Myers, OUR STOLEN FUTURE (N.Y.: Dutton, 1996).

[4] See, for example, ENVIRONMENTAL HEALTH PERSPECTIVES SUPPLEMENTS Vol. 103 Supplement 4 (May, 1995) devoted to the subject of "Wildlife Development." And see ENVIRONMENTAL HEALTH PERSPECTIVES SUPPLEMENTS Vol. 103 Supplement 7 (October, 1995) devoted to the subject of "Estrogens in the Environment." And see ENVIRONMENTAL HEALTH PERSPECTIVES SUPPLEMENTS Vol. 103 Supplement 9 (December, 1995) devoted to the subject of "Great Lakes and Human Health." ENVIRONMENTAL HEALTH PERSPECTIVES is a peer-reviewed journal published by the National Institute of Environmental Health Sciences (NIEHS), a federal agency.

[5] OUR STOLEN FUTURE, cited above in note 3, pgs. 226-229. To learn more about the environmentally benign fabric, call Design Tex in New York [(212) 886-8100] and request information about the McDonough Collection.]

[6] Present tests are inadequate for defining the various kinds of harm that are possible. To begin with, when a chemical is tested, its metabolites and degradation byproducts should be tested as well. The chemical and its metabolites and degradation byproducts should be subjected to an improved battery of tests which would examine 3 generations of various animals species, with exposure occurring at various times in the life of the first and second generations (because the TIMING of exposure is critical for certain effects to be revealed). The battery of chemical tests should be done in an uncontaminated environment (as is present practice) but also should be done under pseudo-realistic conditions, with the test animals simultaneously exposed to various "background" conditions, such as farmers might endure, or city dwellers, or workers in factories or in offices. By this means, the interactions between a new chemical and existing "background levels" of chemicals might be revealed. If any diminished capacity or altered function in the nervous system, immune system, endocrine (hormone) system or any organ system is revealed during the full battery of tests, or if any disease condition or genetic damage is initiated or promoted by the chemical being tested, of if the chemical is persistent or bioaccumulative (see REHW #378), then the principle of precautionary action would be invoked: given that harm can be reasonably expected or suspected, even before scientific consensus is achieved the new chemical would be abandoned for commercial purposes.

Descriptor terms: technological change; biogeochemical cycles; prove harm philosophy; pollution prevention; regulation; our stolen future; hormone disrupters; endocrine disrupters; endocrine system; .

#490: Our Stolen Future, Part 3: Flying Blind

=======================Electronic Edition========================

RACHEL'S ENVIRONMENT & HEALTH WEEKLY #490
---April 19, 1996---
News and resources for environmental justice.
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Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@rachel.clark.net
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RACHEL-4CM = DIOXIN FOCUSED DIRECTORY Remote Access Chemical Hazards Electronic Library. Dioxinnz.com ========================Original Source========================

OUR STOLEN FUTURE, the new book on hormone-disrupting chemicals, [1] provides many lessons about our use of chemicals, and about our reliance on science as a guide for public policy.

Here is a short discussion of the main lessons we find in the book (numbers inside parentheses are page numbers from the book):

** Genes are not destiny. Many people seem to think that we may be able to explain everything from cancer to homosexuality by locating the responsible genes. But in a series of scientific papers starting in 1980, Frederick vom Saal at University of Missouri demonstrated that there are other powerful forces shaping individuals--both females and males--before birth. Genes are not the whole story. Before birth, levels of both male and female sex hormones in the womb can affect the physical characteristics and the behavior of mice, giving rise to great variation in offspring that are genetically identical. By examining human twins, scientists have now revealed similar effects in humans. [2]Thus we now know that hormones are a way that nature provides variation within a species. Profound variation among individuals can be caused by miniscule hormone differences in the womb, differences of a few parts per trillion. (One part per trillion is a million times lower than one part per million.) This is a degree of sensitivity to hormones that approaches the unfathomable, a sensitivity, vom Saal says, "beyond people's wildest imagination." This exquisite sensitivity provides rich opportunities for creating varied offspring from the same genetic stock. However, the dark side is that this same sensitivity also makes the reproductive system vulnerable to serious disruption if something interferes with normal hormone levels. (pgs. 39-41)

** The exposure of a million American women to the drug, DES, in the 1960s and 1970s showed that the human body could mistake a synthetic (human-created) chemical for a natural hormone. (pg. 66)

** Another lesson from the work of vom Saal and others is that hormones in the womb permanently program (and organize) cells, organs, the brain, and behavior prior to birth, in many ways determining an individual's course for life. (pgs. 39-40)

** The dose of hormones that an embryo receives is not the only thing that matters; the TIMING of the dose --WHEN it occurs during development in the womb --can be as important as the dose itself. (pgs. 50-51)

** Birth defects may not be noticeable at birth. Serious effects of hormones on the unborn and on the newborn may not be recognizable for decades. (pg. 66)

** In fact, birth defects may never become visible at all, but may involve cellular damage that undermines an organism's ability to survive. For example, exposure to the drug DES, a synthetic hormone, gave rise to a rare form of cancer in female children of DES-exposed women. (pg. 66)

** Mice and humans share a common fate. To an astonishing degree, evolution has retained through hundreds of millions of years a basic strategy for embryonic development in vertebrates [creatures with a backbone] which depends on hormones. Regardless of whether the offspring is a human or a mouse, a whale or a bat, a turtle or an alligator, hormones regulate its development in fundamentally the same way. In the field of cancer research, scientists argue that data gathered from experiments on mice may not reveal anything useful about humans. This uncertainty occurs because the underlying causes of cancer are poorly understood. On the other hand, the working of hormones is better understood, and knowledge gained from experiments on non-humans CAN reveal useful information about humans. "It is important to take the effects we see in animals seriously," says Dr. Earl Gray, a senior research biologist with U.S. Environmental Protection Agency [EPA]. (pg. 66)

** Industrial chemicals at exceedingly low levels can combine together to produce additive effects. Dr. Ana Soto at Tufts University combined 10 hormone disrupters, each at one-tenth of the dose required to produce a minimal response; she found that the combination produced a response. [3] Thus combinations of chemicals must be taken into account when we try to learn how much "effective exposure" we are getting to hormone-disrupting chemicals.

** Testing hormones at high doses may reveal no effects whereas testing the same hormones at low doses may reveal dramatic effects. This is contrary to the traditional assumptions of toxicology [study of poisons]. The dose-response curve for many hormones is U-shaped: at low doses, the hormones cause effects but at high doses the system becomes overwhelmed and shuts down. This has profound implications for testing. Traditionally, chemicals have been tested on laboratory animals at high doses; now we know that tests must be conducted at low doses as well. (pgs. 169-170)

** Up to now our concept of injury from toxic chemicals had focused on two things: (a) whether a chemical attacks the DNA inside cells, possibly causing cancer; or, (b) whether a chemical damages and kills cells, the way poisons do. However, hormone-disrupting chemicals may not kill or damage cells, and they may not damage DNA. Thus they do not fit the definition of "poisons" or "carcinogens" yet they may cause great harm by disrupting normal growth and development of many organs and tissues, including sex organs, the brain, the nervous system, and the immune system. The key concept in thinking about this kind of toxic assault is the disruption of chemical messages. (pgs. 203-204)

** The traditional approach to toxic chemicals is to look for disease as a result of exposure. However, hormone-disrupting chemicals may not cause "disease" at all: they may cause diminished function --reduced IQ, poorer short-term memory, diminished ability to pay attention, reduced sperm count. These are not signs of "disease" yet they are toxic effects that can be caused in some species by some hormone-disrupting chemicals. (pgs. 205-206)

** To screen for chemicals that cause diminished function, it will be necessary to look for developmental effects across three generations. The first generation (the generation that gets the initial exposures) may not be affected at all. The second generation may have diminished function (for example, diminished ability to reproduce) but the actual effects may not be apparent until the third generation (the grandchildren of the exposed generation). (pg. 207)

** We are flying blind. (pgs. 243, 246) We cannot know whether the ominous shape looming into view is a cloud bank or a mountain. If anything is certain, it is that we must expect more unpleasant surprises. We are flying blind; we can never know that new chemicals are safe (though, if we chose to, we could do a much more thorough job of testing them than we've done in the past).

To show that we are flying blind, OUR STOLEN FUTURE relies on the evidence of hormone-disrupting chemicals and of depletion of the earth's ozone shield by human-created chemicals (see REHW #246, #259, #259).     But there is much additional evidence that could have been cited as well. For example, during just the past 25 years, we have been surprised by:

** Global warming brought on by combustion of fossil fuels (REHW #467, #466);   

** Mercury build-up to toxic levels in the bodies of fish (chiefly from burning coal, oil, and municipal solid waste) (REHW #291);

** Increasing birth defects in American children. Of 38 kinds of birth defects for which the Centers for Disease Control maintains records, 29 have increased during the past 20 years (REHW #410, #411);  

** Steadily increasing cancers, particularly of the reproductive system (prostate; testicles; female breast) and nervous system (brain) (REHW #412, #447, #462);    

** The astonishing toxicity of a family of chemicals called dioxins and furans (including some PCBs, or polychlorinated biphenyls), which now contaminate the entire planet from the depths of the oceans to the polar ice caps (REHW #390 , #391, #414);

** The accelerated loss of species, which, according to the fossil record, is now occurring at rates 10 to 1000 times as fast as natural background rates that were occurring before humans appeared on the scene (REHW #441);

** Acid rain damaging lakes, killing trees, stunting forests, and washing nutrients from soils across much of the northeastern U.S., southern Canada, and northern Europe (REHW #476); ** Rapidly increasing immune system disorders such as asthma (REHW #374) and diabetes (REHW #417);

** Epidemics of disease among marine mammals (seals, dolphins, etc.), apparently related to chemical contamination and to blooms of toxic algae caused by excesses of nutrients (chiefly nitrogen and phosphorus) in near-shore marine ecosystems (REHW #466);

** Diminished IQ and reduced ability to concentrate among 1.7 million American children and 300 to 400 thousand fetuses (at any given moment in time), as a result of exposures to the toxic metal, lead (REHW #369);

** Disappearance or decline of some frog and other amphibian populations worldwide (REHW #380, #441);

** Steep declines or near-total depletion of fish stocks at 13 of the world's 17 major fisheries (REHW #399).

** Decline of 50% in sperm among men in industrial countries (REHW #432, #446 , #448a), and a significant loss of sperm quality during the same period.

** A 60% increase in the rate of migraine headaches among Americans during the period 1980 to 1990. 

Most (71%) of the increase occurred among people aged less than 45 years. [4]

This does not exhaust the evidence, but represents a fair sample of the kinds of problems that have suddenly loomed into view since 1970. Have we encountered the last of such unsuspected and unlooked-for problems? Certainly not. No, there doesn't seem to be any doubt about it: we are rushing forward at high speed with no sure way to learn what hazards lie ahead. We really are flying blind. To us, this seems the most important lesson of OUR STOLEN FUTURE.

Under such circumstances, can science provide us with adequate guidance? 

Next week.#491

--Peter Montague

=============== 

[1] See REHW #485 and #486, reviewing Theo Colborn, Dianne Dumanoski and John Peterson Myers, OUR STOLEN FUTURE (N.Y.: Dutton, 1996).

[2] F. vom Saal and F. Bronson, "Sexual Characteristics of Adult Female Mice Are Correlated with Their Blood Testosterone Levels During Prenatal Development," SCIENCE Vol. 208 (1980), pgs. 597-599. And see: M. Clark and others, "Hormonally Mediated Inheritance of Acquired Characteristics in Mongolian Gerbils," NATURE Vol. 364 (1993), pg. 712. Hormones have also been shown to affect humans exposed in the womb: D. McFadden, "A Masculinizing Effect on the Auditory Systems of Human Females Having Male Co-Twins," PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCE Vol. 90 (1993), pgs. 11900-11904.

[3] Reported in Ana M. Soto and others, "The Pesticides Endosulfan, Toxaphene, and Dieldrin Have Estrogenic Effects on Human Estrogen-Sensitive Cells," ENVIRONMENTAL HEALTH PERSPECTIVES Vol. 102, No. 4 (April 1994), pgs. 380-383.

[4] "Prevalence of chronic migraine headaches -United States, 1980-1989," MORBIDITY AND MORTALITY WEEKLY REPORT Vol. 40, No. 20 (May 24, 1991), pgs. 331-333.

Descriptor terms: endocrine disrupters; hormones; our stolen future; des; diethylstilbestrol; frederick vom saal; ana soto; science; oceans; marine mammals; global warming; mercury; fish; wildlife; birth defects; cancer; dioxins; furans; pcbs; species loss; acid rain; lead; migraine headaches; theo colborn; john peterson myers; dianne dumanoski;