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Abstract
Various U.S. laws, such as the Clean Air Act and the Food Quality Protection Act, require additional protections for susceptible subpopulations who face greater environmental health risks. The main ethical rationale for providing these protections is to ensure that environmental health risks are distributed fairly. In this article, we (1) consider how several influential theories of justice deal with issues related to the distribution of environmental health risks; (2) show that these theories often fail to provide specific guidance concerning policy choices; and (3) argue that an approach to public decision making known as accountability for reasonableness can complement theories of justice in establishing acceptable environmental health risks for the general population and susceptible subpopulations. Since accountability for reasonableness focuses on the fairness of the decision-making process, not the outcome, it does not guarantee that susceptible subpopulations will receive a maximum level of protection, regardless of costs or other morally relevant considerations.
DISCLOSURES
The authors have no conflicts of interest to disclose.
ACKNOWLEDGMENTS
This research is funded, in part, by the Intramural Program of the National Institute of Environmental Health Science (NIEHS), National Institutes of Health (NIH), and the Fonds de Recherche du Québec en Santé. It does not represent the view of the NIEHS, NIH, NSF, or U.S. government.
Notes
2. We understand a “value” to be something good or worthwhile, such as life, health, happiness, wealth, freedom, or virtue. An “interest” is something good for or desired by a person, institution, organization, or larger group, such as a nation.
3. Our objective is not to provide a thorough review of theories of justice but to consider some of the limitations of three influential theories for environmental health policymaking. We are confident, however, that the limitations that we discuss probably also apply to other theories not examined here.
4. Libertarianism generally includes views that place a high value on liberty. The strain of libertarianism that we interact with most extensively here is the “rights-based” or deontological version of libertarianism, which is also currently the most prominent form of libertarianism. However, some libertarians ground their views in utility rather than rights, and these different motivations sometimes have significantly different implications for proposed laws and policies. Since we discuss utilitarianism later in the article, we do not give explicit consideration to utility-based libertarianism in this section.
5. The European Union has a carbon emissions cap and trade system, for example (European Commission Citation2017).
6. We will say a bit more about fairness and legitimacy in the sixth section of this article.
7. For more on arguments for and against utilitarianism and refinements of the theory, see Darwall (Citation2002).
8. Although ozone in the air we breathe can impair respiratory function, ozone in the stratosphere can benefit human health by blocking ultraviolet radiation.
9. It is important to note that the EPA is not permitted to take economic impacts directly into account when developing its air quality standards. However, the agency can indirectly consider economic impacts when ascertaining how regulations are likely to impact public welfare, because economic values are included in the definition of public welfare (Environmental Protection Agency Citation2015b).
10. Costs and benefits need not always be equated with economic costs and benefits, even though these could be a major part of utilitarian calculations. Costs and benefits could include other outcomes related social welfare, such as health or well-being (Brink Citation1989; Brandt Citation1998).
11. For critical assessment of Rawls's theory of justice, see Daniels (Citation1989) and Freeman (Citation2002).
12. Daniels (Citation1985; Citation2008) defines the normal range of opportunities in terms of human biology; that is, the normal range of opportunities includes opportunities available to a normal member of the human species.
13. By “economic freedom” we mean the freedom to engage in the free market, including the freedom buy or sell goods or services, start a business, or choose an occupation or profession.
14. Although Daniels developed the AFR approach within a Rawlsian framework, in more recent work he has argued that its justification is independent of any general theory of justice (see Daniels Citation2008; Daniels and Sabin Citation1997).
15. AFR has garnered considerable interest in helping to structure public debates involving the allocation of health care resources (Byskov et al. Citation2014; Ford Citation2015; Moosa et al. Citation2016). For example, the United Kingdom's National Institute for Health and Clinical Excellence (Citation2008), which provides advice to the National Health Services concerning clinical guidelines and utilization of resources, has adopted the AFR framework. Canada, Norway, Uganda, Kenya, Tanzania, and Zambia have also used AFR to make health policy decisions (Byskov et al. Citation2014; Kapiriri, Norheim, and Martin Citation2007).
16. Decision makers are those who participate in the decision-making process by voting, commenting at public meetings, or some other means; affected parties are people affected by the outcome of the decision. A person could be a decision maker and an affected party.
17. Although we discuss protections for asthmatics and children in this example, we hold that the AFR approach can also be applied to decisions concerning other susceptible populations, such as the elderly, factory workers, or people with increased sensitivity to industrial chemicals or certain types of allergens.
18. It is worth noting that federal laws (such as the Administrative Procedure Act) and judicial decisions mandate that the EPA follow decision-making procedures that have much in common with the AFR approach. The laws and decisions are intended to ensure that federal agencies follow principles of procedural due process in rulemaking. The EPA implements these laws and decisions by making regulations based on scientific evidence, economic cost/benefit analysis, and expert opinion, as well as public comments it receives after it announces a proposed regulation (Environmental Protection Agency Citation2015a; Citation2016d; Citation2016e). The evidence, arguments, analyses, comments, and opinions that influence EPA decision making are available to the public. Although the two have some things in common, it is important to note that our analysis seeks to connect the AFR approach with theories of justice, and so goes beyond mere legal analysis. If our account suggests some processes similar to current legal procedures, it should be considered a partial justification of them. Because our account is a normative rather than legal account of fair process in decision making, it could also be extended to decisions that are not explicitly governed by laws and judicial decisions affecting federal administrative agencies. For example, a county planning board could follow the AFR approach when deciding where to place a landfill.
19. It is worth noting that policies that make individuals responsible for protecting themselves from environmental risks raise issues of justice, since some people may not be able to afford such protections (Seltenrich Citation2017).
20. The EPA is in fact committed to a policy, known as environmental justice, that requires fair participation of affected parties, including racial or ethnic minorities and socioeconomically disadvantaged groups, in its decision making (Environmental Protection Agency Citation2016f). The environmental justice movement emerged in the 1980s when minority communities objected to the placement of waste sites in their vicinity. In the 1990s, the Clinton Administration established the Office of Enviromental Justice at the EPA. The National Institute of Environmental Health Science sponsors research and community programs designed to promote environmental justice (Resnik Citation2012).
21. Daniels does not say precisely how the different steps involved in AFR produce outcomes. Daniels focuses on the fairness of AFR at the macro level, as a type of procedural justice, but does not closely examine the internal workings of AFR at the micro level. To understand how AFR actually works in practice, one would need to conduct empirical research on attempts to implement AFR. See, for example, Byskov et al. (Citation2014).
22. The National Institute of Environmental Health Sciences (Citation2017) Program on Environmental Health Disparities and Environmental Justice, for example, addresses many of the policy issues related to protecting susceptible subpopulations.