Environmental Research Foundation
August 27, 2005


...to Take Precautionary Action to Achieve Environmental Justice

By Peter Montague

I. What is Environmental Justice?

The federal government defines environmental justice this way:

"Environmental Justice is the fair treatment and meaningful
involvement of all people regardless of race, color, national origin,
or income with respect to the development, implementation, and
enforcement of environmental laws, regulations, and policies.

"Fair treatment means that no group of people, including a racial,
ethnic, or a socioeconomic group, should bear a disproportionate share
of the negative environmental consequences resulting from industrial,
municipal, and commercial operations or the execution of federal,
state, local, and tribal programs and policies.

"Meaningful involvement means that:

"(1) potentially affected community residents have an appropriate
opportunity to participate in decisions about a proposed activity that
will affect their environment and/or health;

"(2) the public's contribution can influence the regulatory agency's

"(3) the concerns of all participants involved will be considered in
the decision making process; and

"(4) the decision makers seek out and facilitate the involvement of
those potentially affected." [End of definition.]

In sum: environmental justice requires that

(1) The environmental and health consequences of decisions must be
shared fairly and nearly equally by everyone;

(2) Everyone whose life will be touched by the environmental or health
consequences of a decision should have an opportunity to GENUINELY
AFFECT that decision; and

(3) In pursuit of (2), above, decision-makers have a duty to "seek
out" and "facilitate the involvement of" affected persons in decisions
that will have environmental or health consequences.

II. What is the Precautionary Principle?

I believe the Wingspread Statement's definition of the precautionary
principle is now widely accepted:

"When an activity raises threats of harm to human health or the
environment, precautionary measures should be taken even if some cause
and effect relationships are not fully established scientifically.

"In this context the proponent of an activity, rather than the public,
should bear the burden of proof.

"The process of applying the Precautionary Principle must be open,
informed and democratic and must include potentially affected parties.
It must also involve an examination of the full range of alternatives,
including no action."

The Essence of Precaution:

In all formulations of the precautionary principle, we find three

1) When we have a reasonable suspicion of harm, and

2) scientific uncertainty about cause and effect, then

3) we have a duty to take action to prevent harm.

Precautionary action has five parts:

(1) Set a goal;

(2) Examine all reasonable ways of achieving the goal;

(3) Adopt the least-harmful way unless there is a compelling reason to
choose otherwise;

(4) Monitor results, heed early warnings, and make mid-course
corrections as needed;

(5) Shift the burden of proof -- when consequences are uncertain, give
the benefit of the doubt to nature, public health and community
well-being, and expect responsible parties (not governments or the
public) to bear the burden of producting needed information. Expect
reasonable assurances of safety for prodycts before they can be
marketed -- just as the Food and Drug asks for reasonable assurance of
safety before new pharmaceutical products can be marketed.

(6) Throughout, give a real "say" -- and honor the knowledge of --
those who will be affected by the decisions. This approach naturally
allows issues of ethics, right-and-wrong, and justice to become part
of the decision process -- a very different process from the old
"leave it to the experts."

In sum:

The precautionary principle offers a new approach to traditional ways
of protecting workers, communities and ecosystems. Instead of asking,
"How much harm is allowable?" the precautionary approach asks us to
consider, "How little harm is possible?"

Faced with reasonable likelihood of harm, the precautionary approach
urges a full evaluation of available alternatives for the purpose of
preventing or minimizing harm.

Precautionary action urges decision-makers to set goals for safe and
healthy environments, examine all available alternatives for achieving
the goals, really involve the public and workers in decisions, and put
the burden of proof of safety on those whose activities raised
suspicion of harm in the first place -- just as the FDA puts the
burden of proof of safety on the drug companies. This means that, when
consequences are uncertain, we should expect to give the benefit of
the doubt to nature, to public health, and to community well-being.

I believe that environmental justice cannot be achieved without use of
the precautionary principle. I have discussed my reasons at length
and will not repeat those arguments here.

The San Francisco precautionary principle ordinance begins:

"Every San Franciscan has an equal right to a healthy and safe
environment. This requires that our air, water, earth, and food be of
a sufficiently high standard that individuals and communities can live
healthy, fulfilling, and dignified lives.

Thus San Francisco introduced the concept of human rights, dignity,
and justice into the first sentence of its precaution ordinance. It
goes on to say that everyone in San Francisco has a duty to protect
and preserve the environment of San Francisco:

"The duty to enhance, protect and preserve San Francisco's environment
rests on the shoulders of government, residents, citizen groups and
businesses alike."

III. What is the Proper Role of Government in Achieving Environmental

The principal actor on the environmental stage is the large publicly-
held corporation.[2] Large corporations, and the elites that
control them, make most of the decisions that affect our air, water,
soils, and quality of life.

a) The Role of Large Corporations: Fiduciary Duty to Investors

As a matter of law, the managers of corporations that issue stock to
the public cannot make decisions principally to promote environmental
justice or to protect the environment.[3]

As a matter of law, publicly-held corporations must return a steady,
modest profit to investors. If corporate managers make decisions that
might interrupt the flow of steady profit to investors, they can (and
probably will) be sued for breach of fiduciary duty. This legal
requirement to return a steady profit narrowly restricts the kinds of
decisions that corporate managers can make.[3]

I do not mean to imply that the individuals who manage large
corporations are bad people or lacking personal conscience. On the
contrary, in my experience many of them are very fine people.

However, when they make decisions on behalf of the corporation,
directors and managers have to put their personal ethics aside and
make decisions that are consistent with their legal obligation to
provide a stream of profits to investors. Everything else is secondary
because profit is the primary corporate goal that MUST be pursued as a
requirement of law.[3]

Therefore, we must accept it as a given that corporate directors and
managers cannot voluntarily seek environmental protection or
environmental justice as primary goals whenever such goals are
inconsistent with the requirement of returning profit to investors.

Therefore, so far as social justice and environmental protection are
concerned, corporations have no reliable built-in mechanism for self-

Indeed, to the extent that they can, corporations have major
incentives to "externalize" their costs, to dump toxic materials into
public air and water, to take inadequate steps to protect the health
and well being of their workers and to oppose all laws, regulations,
and policies that might reduce profits while enhancing social justice
or protecting the environment.

If an individual were to behave in this fashion, he or she would be
labeled a "sociopath" or in extreme cases a "psychopathic

In seeking profits, corporate managers DO have a legal obligation to
comply with public laws, regulations, and policies (even though
financial incentives constantly tempt them to do otherwise).

Therefore, to protect public health and the environment, the behavior
of corporations MUST be and CAN BE constrained by government --
through laws, regulations, and policies.

Government is the only entity that can reliably protect and defend
members of the public, and their environment, from corporate abuse.[5]

b) The Role of Government: Fiduciary Duty to The Public Trust

Everyone acknowledges that a diverse and self-regulating, self-
regenerating environment is essential to life, liberty and the pursuit
of happiness. We know from history that when the natural environment
is allowed to deteriorate, even the greatest and most powerful
civilizations can collapse.[6]

Caring for the commonwealth is an ancient duty of the sovereign.
Sometimes this duty is considered so basic that it is taken for
granted and not spelled out. At other times, this duty is given a
name: the public trust.

As legal scholar Peter Manus describes it, "Under American democratic
theory, the nation's people possess an abstract form of sovereignty
over the land and its natural resources that may be termed original
ownership. In creating the government, the people delegated many
powers and duties to its sovereign authority, including managerial
responsibilities over the country's resources. In trust terms, the
people designated the government as trustee of the land and other
natural resources and themselves as beneficiaries. This framework is
particularly analogous to that of a charitable trust, which may
incorporate a public purpose, government trustee, and generalized
beneficiaries." [7, pg. 325]

Manus goes on: "Certainly the trust concept, as a structure of law,
was part of the common law upon which American constitutional
protections were founded. Thus, the idea that a party may exercise
control over the assets of a second party on that party's behalf, and
not in subjugation of the second party, is a principle that was among
the fundamental presumptions of the original American settlers as well
as the constitutional framers." [7, pg. 361]

Here is another way of phrasing the public trust concept:

"Government has a fundamental duty to adhere to a program of
environmental husbandry aimed at maintaining a regenerative natural
environment. This obligation is perpetual and requires both preventive
measures to protect environmental health and remediative measures
where past behavior has breached the trust. The public trust thus
serves the general citizenry, including future citizens, by ensuring
that the natural environment thrives and will continue to thrive as a
healthy and diverse human habitat." [7, pg. 322]

In sum: Government has a duty to promote and maintain a healthy
natural environment on behalf of current and future citizens. This
duty is not optional: it is a mandatory, affirmative duty that
government cannot deny, ignore, repudiate, or alienate.

The role of trustee casts government in a new and positive light. In
fulfilling its magnificent duty to protect the future for us and for
those unborn, government has a heroic role to play. Government is the
protector, the guardian, the shield of the public trust. It is a role
that government officials can proclaim proudly, for it is their
unique, specific duty to protect our common heritage so that we can
pass it on to the future undamaged and, ideally, improved.

How can we express this fundamental role of government? Here are some


And here are some verbs:

watch over

A trust requires a creator, a beneficiary, a trustee, and a trust
property. The "public trust" was created when the United States was
created. The beneficiary is present and future generations. The
trustee is government. So what is the "trust property" that the
trustee must maintain and enhance for present and future generations?

The following phrases try to capture the elements of the trust

** the things that we own in common, which none of us owns
** our common heritage
** air
** water
** wildlife and biodiversity
** the common weal
** the common wealth
** everything that is essential to life, liberty and the pursuit of
** fertile and self-regenerating soils
** the presumption that we are all created equal and that we all
have an inherent right to liberty and justice
** our genetic heritage (the human and wild genomes)
** knowledge passed from generation to generation[8]
** self-regulating, self-regenerating ecosystems
** the sky, the moon, the stars
** outer space
** the electromagnetic spectrum (which carries radio and TV signals)
** peacefulness, stillness, silence
** the natural beauty of a place
** recreational amenities provided by nature
** the satisfaction of knowing that we are preserving life
** our right to live free from toxic threats
** our right to raise children free from toxic threats
... and so on

This "trust property" is a cultural legacy owed to future generations.

c) The Public Trust and Private Property

We must acknowledge that, in fulfilling its affirmative public trust
duty, government will have an obligation from time to time to limit
the prerogatives of private property:

"A public trustee aims to protect individual citizens from their own
trust-destructive instincts." [7, pg. 342-343]

"A public trust perspective on takings law protects against the
hoarding of nature's gifts by refusing to allow private property
interests to presumptively include the right to destroy natural
resources." [7, pg. 356]

"...[T]he government's overarching sovereign duty to protect the
environmental rights of citizen beneficiaries from the exploitive
tendencies of the beneficiaries themselves. Access rights must be
secondary." [7, pg. 334]

"[T]he duty of this generation to future generations must be the key
ingredient of an effective modern public trust." [7, pg. 334]

IV. The Public Trust Requires Precautionary Action

"In essence, public trustees must recognize that future patterns in
land use and resource consumption may create ecological problems that
trigger public trust duties to regulate these uses and, consequently,
impact private property owners." [7, pg. 342]

This is an important point: the trustee must recognize that
circumstances change, and changing circumstances may bring new threats
to the trust that never existed before.

The trustee must be alert, vigilant, attentive, heedful, mindful,
prudent, prepared and precautious. Like any good sentinel, the trustee
must boldly anticipate and explore potential threats to the trust
property. In this duty, the trustee will find the precautionary
principle an essential guide.[9]

If the trustee waits for threats to fully manifest themselves, it will
be too late -- the trust property will have been harmed by the time
action is taken. Precautionary action is essential for safeguarding
the public trust.

In sum, protection of the trust property REQUIRES the trustee to take
precautionary action.

V. For the Good of All: What Government Can Do

There is a strong consensus among many biologists that the natural
world is in deep trouble.[10,11,12] The biosphere, upon which
all life depends, is being shredded. And there is abundant evidence
that environmental deterioration has led to serious chronic disease
among humans, especially among people of color and low-income
populations.[13,14] This is environmental injustice.

Is must be obvious that we need to develop an environmentally benign
industrial base. It is also clear that corporations, as presently
constituted under law, are not up to the task.

There is precious little evidence that corporate managers (in their
role as corporate officials) are able to conceive of this goal, must
less articulate the goal or prescribe steps for getting there. On the
other hand, corporate managers spend enormous resources defending the
status quo, attacking positive new ideas like the precautionary
principle, and deflecting peoples' concerns away from the main source
of our troubles, which is principally corporate policies.

I think of the air pollution problem that the people of Los Angeles
are facing right now, and I recall that within my lifetime Los Angeles
had the largest steel-rail trolley system in the U.S., with more than
1000 miles of track serving the central city and surrounding
communities with fast, clean, quiet electric-motorized trolleys.
Within my lifetime, steel-rail trolleys served Pasadena, San Gabriel,
San Bernardino, Long Beach, Newport, San Pedro, Santa Ana, Hollywood,
Burbank and Glendale, the San Fernando Valley, and Santa Monica, among
other communities.[15]

This rail system was a tremendous community asset that was
intentionally and systematically destroyed by a handful of major
American corporations -- Standard Oil of California, Phillips
Petroleum, Mack Truck, General Motors, and Firestone Tire. [15, 16]

No, after a sober (and sobering) review of the available evidence, one
is forced to conclude that the corporate sector, in its present legal
form,[2] can never be engine for achieving social justice or
environmental protection.

Protecting the environment and achieving social justice is the duty --
and the honor -- of government. Government has a clear mandate to do
the job, to protect our common heritage, AND to achieve justice,
including of course environmental justice.

It is NOT the role of government to auction off the public trust to
the highest bidder.

It is NOT the role of government to "achieve a balance" between those
who want to preserve our common heritage and those who want to use it
up or throw it away. Too often we hear from discouraged government
officials that they must be doing something right if "both sides" are
dissatisfied with the job they are doing. This is nonsense. Government
has a duty to come out squarely and proudly on the side of protecting
our common heritage, including the natural environment and the
conditions that make justice possible -- including environmental

What are the conditions that make environmental justice possible?

To achieve environmental justice, people need POWER, MONEY, and

1) The POWER to decide. To achieve environmental justice, government
must align itself in service to those who are, or who are likely to
be, the victims of environmental injustice. Figuring out who this
might be is not rocket science.

In concert with these threatened communities, government can ask,
"What can I do right now, and what should I plan to do in the future,
to alleviate and avoid environmental injustices?"

Here, application of "alternatives assessment" -- a key component of
the precautionary principle -- will pay big dividends. See the DRAFT
report of the Cal/EPA Environmental Justice Advisory Committee. (And
see my short discussion of that draft report.)

In this effort, one of government's essential roles is to bring
representatives of all relevant stakeholders to the table, to make
democratic decisions by talking together. The Cal/EPA Environmental
Justice Advisory Committee provides an example of an inclusive process
that gave credibility and power to the Committee's recommendations.

How to engage the public is a subject that we could all study
profitably. Best practices for democratic participation include many
new processes and techniques worthy of study and experiment.

2) MONEY to:

** build the capacity of specific communities to participate in
decisions, including;

** gain time to get involved at the earliest stages, when alternatives
are still being considered;

** gain time to read, think and participate as the process evolves;

** gain time to acquire knowledge and understanding;

** gain time to engage, reflect, reach conclusions, and act;

** tap into the needed resources to evaluate alternatives;

** gather the resources to organize the community to reach consensus
(or at least reach a position that everyone agrees they are willing to
live with) and to develop a community voice.

3) INFORMATION to provide the basis for informed decisions and actions
-- information at the earliest stages of the process (including
available alternatives), information about all relevant aspects of the
process (how the money flows, for example), information in a useful,
understandable format.

It is government's righteous duty to see that victims of environmental
justices, or the POTENTIAL victims of environmental justices, have
access to these three things -- POWER, MONEY, and INFORMATION -- so
that, together with government, communities can provide a
counterweight to the deadening hand of the corporate form.

At their best, government officials provide inspiring examples of
service to community. Protecting the public trust through
precautionary action provides a way for government to celebrate and
rededicate itself in its role of service for the common good. As
guardian of the public trust, government can help America regain its
balance, heal itself, and rediscover its core spiritual values of
stewardship and self-sacrifice. As Peter Manus has written,

"Defined as a government responsibility to preserve a healthy natural
environment for the American people, the public trust captures the
essence of the stewardship principle. At the same time, by stressing
the duty of all parties -- government trustees, market participants,
and citizen beneficiaries -- to compromise personal exploitation
values before the needs of the environment, the public trust captures
the ideal of a democratic society of individuals working for the
greater good even as they work for individual benefits." [7, pg.


* My thanks to Carolyn Raffensperger for several of the key public
trust ideas in this paper, though she bears no blame for the way I
have presented (or distorted) them. My thanks, too, to Maria B.
Pellerano for valuable comments on an early draft.

[1] On the precautionary principle, see:

Precautionary principle - overviews

-- By Schettler, Barrett and Raffensperger
-- By Nancy Myers (2002)
-- The Wingspread Statement (1998)
-- By Jared Blumenfeld (2003)

Precautionary principle in the workplace:

-- By Eileen Senn (2003)
-- By Frank Ackerman and Rachel Massey (2002)
-- By The American Public health Association (1996)
-- By Eileen Senn Tarlau (1990)
-- By Anne Stikjel and Lucas Reijnders (1995)

Precautionary principle and environmental justice:
-- California Environmental Protection Agency (2003)
-- Peter Montague (July, 2003) RACHEL's
-- Peter Montague (Feb., 2003)

Precautionary principle and municipal/county government:
-- The San Francisco Precaution Ordinance (2002)
-- The San Francisco White Paper on Precaution

Precautionary principle and environmental science:
-- By David Kriebel and others (2001)

Precautionary principle and children's health:
--By The American Public Health Association (2000)

Precautionary principle and public health:
-- By Tickner, Kriebel, and Wright (2003)

[2] Sarah Anderson and John Cavanagh, Top 200; The Rise of Corporate
Global Power (Washington, D.C.: Institute for Policy Studies, Dec. 4,
2000. Available here. Throughout this paper, the word "corporation"
refers exclusively to large, publicly-held corporations. Privately
held corporations are free to do whatever their owners choose to do,
within the law, no matter what the effect on profits might be.

[3] Robert Hinkley, "Twenty Eight Words to Redefine Corporate Duties,"
Multinational Monitor Vol. 23, Nos. 7 and 8 (July/August 2002);
available here. And be sure to see The Model Uniform Code for
Corporate Citizenship, available here.

[4] A dictionary definition of a "psychopathic personality" is, "An
emotionally and behaviorally disordered state characterized by a clear
perception of reality except for the individual's social and moral

[5] Corporate campaigns by citizens can sometimes change corporate
behavior. Under present circumstances, laws, regulations and public
policies, COMBINED WITH corporate campaigns, are likely to be the MOST
effective deterrent of corporate abuse. However, sooner or later, I
believe the corporate form itself will need to be modified to allow
corporate managers to pursue other goals in addition to profit. See
note 3, above.

[6] Clive Ponting, A Green History of the World; The Environment and
the Collapse of Great Civilizations (London: Sinclair-Stevenson, 1991;
New York: Penguin Books, 1993).

[7] Peter Manus, "To a Candidate in Search of an Environmental Theme:
Promote the Public Trust," Stanford Environmental Law Journal Vol. 19
(May 2000), pgs. 315-369. Available here.

[8] Joseph L. Sax, "Implementing the Public Trust in Paleontological
Resources," unpublished (?) paper dated 2001 (?). Available here.

[9] James T. Paul, "The Public Trust Doctrine: Who Has the Burden of
Proof?" Paper presented at the July 1996 meeting of the Western
Association of Wildlife and Fisheries Administrators. Available

[10] See, for example, Peter M. Vitousek and others, "Human Domination
of Earth's Ecosystems," Science Vol. 277 (July 25, 1997), pgs.
494-499. Available here.

[11] Jane Lubchenco, "Entering the Century of the Environment: A New
Social Contract for Science," Science Vol. 279 (Jan. 23, 1998), pgs.
491-497. Available here.

[12] William K. Stevens, "Lost Rivets and Threads, and Ecosystems
Pulled Apart," New York Times July 4, 2000, pg. F4. Available here.

[13] See, for example, Michael McCally, editor, Life Support: The
Environment and Human Health (Cambridge, Mass.: MIT Press, 1002; ISBN
0262632578). And see any issue of the U.S. government journal,
Environmental Health Perspectives.

[14] See Richard Wilkinson, Unhealthy Societies: The Afflictions of
Inequality (New York: Routledge, 1997; ISBN: 0415092353); and see the
bibliography in D. Raphael, Inequality is Bad for Our Hearts: Why Low
Income and Social Exclusion Are Major Causes of Heart Disease in
Canada (Toronto: North York Heart Health Network, 2001). And see, for
example: Ana V. Diez Roux and others, "Neighborhood of Residence and
Incidence of Coronary Heart Disease," New England Journal of Medicine
Vol. 345, No. 2 (July 12, 2001), pgs. 99-106. And: Michael Marmot,
"Inequalities in Health," New England Journal of Medicine Vol. 345,
No. 2 (July 12, 2001), pgs. 134-136. And see the extensive
bibliographies in the following: M. G. Marmot and Richard G.
Wilkinson, editors, Social Determinants of Health (Oxford and New
York: Oxford University Press, 1999; ISBN 0192630695); David A. Leon,
editor and others, Poverty, Inequality and Health: An International
Perspective (Oxford and New York: Oxford University Press, 2001; ISBN
0192631969); Norman Daniels and others, Is Inequality Bad for Our
Health? (Boston: Beacon Press, 2000; ISBN: 0807004472); Ichiro
Kawachi, and others, The Society and Population Health Reader: Income
Inequality and Health (New York: New Press, 1999; ISBN: 1565845714);
Alvin R. Tarlov, editor, The Society and Population Health Reader,
Volume 2: A State Perspective (New York: New Press, 2000; ISBN

[15] The history of the electric railways of southern California can
be found here.

[16] Jim Klein and Martha Olson, Taken for a Ride, a 55-minute film
describing the intentional destruction of steel-rail trolley systems
in 83 American cities between 1920 and 1970 by General Motors,
Standard Oil of California, Phillips Petroleum, Mack Truck, and
Firestone Tire. The film is available from New Day Films, 190 Route
17M, P.O. Box 1084, Harriman, NY 10926; 1-888-367-9154. Excerpts from
the film's script are available here.