Accepted Manuscript

A More Ethical Chemistry

Rick Reibstein

PII: S2452-2236(17)30045-7
DOI: 10.1016/j.cogsc.2017.09.004
Reference: COGSC 101

To appear in: Current Opinion in Green and Sustainable Chemistry

Received Date: 30 April 2017

Revised Date: 26 July 2017
Accepted Date: 25 September 2017

Please cite this article as: R. Reibstein, A More Ethical Chemistry, Current Opinion in Green and
Sustainable Chemistry (2017), doi: 10.1016/j.cogsc.2017.09.004.

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A More Ethical Chemistry

Rick Reibstein

Institute for Sustainable Energy, Boston University, Questrom School of Business, 595 Commonwealth
Ave, Boston, MA 02215, USA

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Abstract

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The evolution of chemical mastery is something of which the human race can be justly proud.
However, it has produced toxic byproducts, causing concern to reduce impacts. Because of the

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success of greener and safer alternatives the industry now has a new responsibility: to
investigate whether better alternatives are feasible, and continuously evolve to impose less
risk. Leaders are developing these practices of ethical commerce.

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Chemicals law in the US was successfully evolving to foster prevention, but this has stalled.
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Using chemicals that carry risks gives rise to responsibilities that go beyond complying with
existing law. Working to dismantle environmental protections is unethical participation in
democracy. A more ethical chemistry is necessary to reduce significant risks to biological life on
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earth. The chemical industry should accept the need for accountability and voters should
support innovative forms of environmental governance which better inform them and which
prevent risks.
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A Problem for the Industry

The public is concerned about the chemical industry: it is concerned about contamination of
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land, air, water, impacts on children, and growing evidence that toxic chemicals are spreading
and building up. In our bodies this has many effects that go beyond the health of the individual,
including reproductive, affecting the future of humanity, and neurotoxic, affecting our thinking
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and our behavior.

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When concerns suddenly arise, as when Alar was found in apples, Thalidomide was seen to deform
infants, asbestos cases started to win, the danger of PCBs were understood, and the core at Three Mile
Island melted down, profits can quickly disappear. Trust is an intangible asset that is hard to
evaluate, hard to see until its loss affects operations or sales. A new consumer movement to
buy safer, greener products has stimulated the development of ever more alternatives,
threatening businesses that fail to keep pace with trends towards greater environmental
responsibility. The success of current deregulatory politics also threatens existing interests,
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which may experience an erosion of trust because of the perception that they do not share or
respect the public’s concerns about chemical risks. The industry would be better positioned for
a future of more informed and responsible consumers by more aggressively pursuing safer
products and processes, and by adopting a more ethical participation in democracy that accepts
strong systems for accountability. Focusing political action on improving regulatory and judicial
oversight rather than reducing legal pressures would strengthen the stimulus to continuously improve

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and better meet the needs of consumers. The adoption of ethical politics should be the next great step
for responsible actors in the industry.

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Many people in the industry embrace responsibility. There are leaders in responsible production,
distribution, and design, but industry political work to dismantle governance obscures their
achievements. The industry as a whole risks being perceived as irresponsible unless more voices within

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it are raised in support of bettering, rather than simply reducing, governmental authority over their
operations.

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Strong compliance systems allow companies to derive the benefits of the status of being law-
abiding. Weakening mechanisms of accountability reduces the ability of the corporation to
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defend against claims that pursues interests antithetical to that of the public. Without
mechanisms to ensure responsibility, the industry cannot effectively claim to be responsible.
Without trust markets corrode.
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Better regulation, not less, is capable of resolving conflicts. Effective regulation fosters
approvals to operate and reduces fears of products and operations. This reduces the need for
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advertising budgets to counter negative public perceptions. Intelligent regulation prompts the
improvements we need, that result in safer environments. Accepting the responsibility for
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continuous improvement is a better resolution of conflicts concerning chemical risks than the arguments
we now have over risk acceptability. The industry should accept the evolution of law that recognizes
and manifests a responsibility to prevent harm, and work to evolve ever safer products, reducing risks
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where feasible. It cannot produce confidence in its safety by reducing regulatory pressure for this
evolution, but only by assisting in the establishment of truly effective and reasonable means to prompt
the development society needs.
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From Pride and Dependency to Ethical Participation in Democracy

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The industry often expresses a pride about how central it is to modern living. In 1937, chemical
industry leader Arthur Hixson wrote that the industries “render a service that touches
practically every activity” in which people are engaged, and that the ordinary person should be
awakened “to the realization that he is utterly dependent upon these industries not only for the
necessities and luxuries of life, but also for his very existence.”[1] The American Chemistry
Council has similar information on its website today. But dependency does not of itself create
trust. Recently the European Association for Chemical and Molecular Sciences formed a
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working group on ethics in chemistry. The group has identified the objective of convincing
chemists “of their role in the ethical, legal and social implications (ELSI) of research.” The need
for this effort was described in a recent paper by workgroup members that noted that
“Chemistry and enactors depend on public trust and support in its institutional and societal
justification and performance. Therefore, it is also (but not only) the chemists’ responsibility to
create trust through a high degree of credibility and reliability as experts when it comes to

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(public) discourses on risks and benefits of science and technology or the ethical and social
implications of scientific and technological progress.” [2]

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Modern chemistry represents, as Barry Commoner pointed out in 1971, “probably the most
rapid burst of creativity in human history.” But he also noted that the new technology was like

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a two-legged stool: “well founded in physics and chemistry, but flawed by a missing third leg –
the biology of the environment.”[3] The contamination of our world is a fact. Because it “is
almost impossible and economically infeasible to remove dissolute pollution from the

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environment” once dispersed [4], it is necessary to try to prevent toxic wastes from being
created, but progress towards cleaner, safer chemistry is too slow. Experts have found that the
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“unacceptable” burden of cancer and many environmental and occupational exposures “could
have been prevented” [5]. And this preventable burden is enormous: it is estimated that in just
one year (2012) “1.3 million lives and 43 million disability-adjusted life-years were lost” due to
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exposures to just some selected chemicals [6].

Recognitions of the importance of ethical and social responsibility, in addition to scientific credibility,
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should include support for government action to more effectively address the contamination of the
environment in which we live. Yet many in the industry have actively worked to reduce it. A prime
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example of this is the effort to preempt state toxics laws in the recent amendments to the U.S. Toxic
Substances Control Act (TSCA). It is at the state level that chemicals policy has been developing in the
U.S. during recent decades. Narrowing the public’s protections to those provided by the federal
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government reduces the vitality of this nation’s democracy, and gives the industry one entity to deal
with. Funding cuts or industry appointees within the relevant agencies could significantly free the
industry from oversight. If the public perceives industry’s political efforts as having reduced important
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protections, consumers and voters may respond, causing both negative political and commercial
consequences for certain chemical actors.
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A bad reputation can be costly. Union Carbide is no more, Monsanto is written about as a
“hated company”[7], and Exxon seems to feel it must run frequent advertisements about the
jobs it provides to counter negative public attitudes. The story of how the lead industry worked
to forestall regulation, beginning in the 1920’s and continuing for decades, and marketed lead
pipes for water after it was clear this would have public health impacts [8], is now told to
illustrate the danger of political activity by an industry producing a hazardous product. The
poisoning was not just of children, but of our political system.
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The purpose of democratic systems is to find the right balance of interests, rights and
perspectives that can inspire trust in the resolution. The industry deserves to have a place at
the table, to be heard, to be indeed respected. But domination of the process erodes
acceptance of the outcome and runs counter to the premises of mutual self-governance. When
too much money, advertising, legal expertise and lobbying is evident, distrust of the entity that
seeks a dominating influence is inevitable.

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The story of lead has also made clear that uncontrolled dispersion of toxics is a cost imposed on
all of society, not just its victims. Many studies have shown that it increases crime, reduces

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property values, increases health costs, and has many other impacts on entire communities
that are shared by everyone. The average cost of increasing a child’s blood lead level by only

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one microgram per deciliter has been estimated as $50,000 [9], and we see such damage as
reduced IQ, reduced brain volume [10] and altered executive function in the brain [11]. Clearly
a society with healthier brains is of benefit to everyone. Our common health is our common

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If the industry accepts its responsibility concerning such risks, what should it do? Accelerating
programs for transforming to greener chemistry, to safer substitutes in ingredient and process,
for all known and potential toxic and hazardous substances would be one step to take, to
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reduce both public concerns and demand for regulations that the industry considers
burdensome. But companies should also consider that there is an ethical way to participate in
democratic processes. Seeking dominance in policy-making has produced the image of an
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industry that does not respect the legitimate concerns relating to toxic dispersion. Many
responsible people in the industry do not deserve this, but they are not as visible as those
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working for deregulation.

Regulations cost time and effort to produce and are the gift of previous societies. The industry
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should recognize a responsibility to keep them in place. The industry should accept the idea of
a watchdog over it. This political position does not preclude lobbying to improve regulations. It
does not preclude defense against negative connotations. It does not preclude expressing
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pride in accomplishments or benefits provided to society. But it should preclude weakening

accountability to the point of meaninglessness and working to reduce the capacity to govern,
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which prevents the development of the innovative policies we need, to foster greener
production.

Two Different Responses to Reputational Risk

In 2014 the Environmental Working Group reported that “Dow, Dupont, BASF, 3M, Honeywell
and Koch Industries and the companies they hire to lobby Congress spent $48.6 million last year
to lobby legislators, up from $39.6 million in 2010. These six companies and the American
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Chemistry Council, the industry trade association, spent $63 million on lobbying last year, up
from $49.7 million in 2010.” [12] Columnist Nicholas Kristof asked in the New York Times,
referring to endocrine disruptors, “why we allow the chemical industry – by spending $100,000
on lobbying per member of Congress – to buy its way out of effective regulation…”. He noted
that “the industry’s deceit marks a replay of Big Tobacco’s battle against regulation of
smoking.” [13] In 2015 the Union of Concerned Scientists also compared the industry’s aims to

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those of the tobacco industry, to “deny the science, bring in its own experts to counter the
evidence, launch misleading advertising campaigns, and pressure decision makers to abandon

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restrictions on the chemical's use.” [14] Court documents recently released concerning the
potential causation by glyphosphate of non-Hodgkin’s lymphoma included an email from a
Monsanto executive discussing how the company could write scientific articles and then find

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researchers to “just edit & sign their names…”. [15] In January, 2016 the New York Times
magazine section featured pollution and deception concerning perfluorinated compounds:
“When a 1993 interoffice memo announced that a viable substitute had been found, “that

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appeared to be less toxic and stayed in the body for a much shorter duration of time”, Dupont
decided against it because “The risk was too great: Products manufactured with PFOA were an
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important part of DuPont’s business, worth $1 billion in annual profit.” [16] In 2012 the
Chicago Tribune began reporting on deceptive campaigns promoting the use of flame
retardants (“Playing with Fire”). Not long afterwards, the rules were changed so they would no
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longer be required in furniture, and environmental groups and concerned parents started
talking about purchasing products that do not contain these chemicals. Relational ethics
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includes whether industry will acknowledge or deny that it imposes risks; whether it attacks
opponents personally; and whether it uses its money to have excessive weight in policy-making.
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Greater respect for the regulatory system, and working to improve rather than degrade it,
shows respect for the public, and would probably create less friction and fewer legal and
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reputational costs. Well-designed rules are good for everyone concerned, including the
regulated community. Many who have studied environmental regulation have found its
impacts beneficial for the regulated community itself. For example, it reduces the number of
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products that “would have ultimately failed”, a “compensating effect” for imposed costs “from
increased safety, health, or environment quality.” [17] Michael Porter’s famous hypothesis that
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well-designed regulation could be good for the regulated community retains vitality [18], and as
illustrated below, innovative programs for environmentally conscious production, such as those
for pollution prevention or cleaner production, have proven this concept. The benefits of
federal regulations in general are significant, estimated by the General Accounting Office to be
from $141 billion to $691 billion annually, with estimated annual costs of only $42.4 billion to
$66.3 billion, and environmental regulations are especially good investments: EPA regulations
account for 60 to 82 percent of the benefits but only 43 to 53 percent of the costs [19].
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Consumers are alarmed about toxic body burden, plastics in the ocean, damage to their
children’s brains and endocrine systems, and the continued failure to clean up environmental
contamination. If chemical companies should act to reverse the decline in public trust that
their activity in the public sphere has caused, by supporting governance and accountability, the
public would likely take notice of the more responsible posture. This could translate into
consumer support and be worth far more than the most expensive advertising campaign.

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There is a solid business justification for placing profit-making values in the context of the
public interest and the public’s right to processes that best determine that interest.

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Efficient Aspects of the Evolution that Was Happening

Legal mechanisms, particularly those put in place by states, were causing a beneficial evolution

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in the chemical industry, and should be revived. The approach of preventing pollution by
making things out of less toxic materials addresses the root cause of so many environmental
and public health impacts. This is far more efficient than continuing with current practice and

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trying to manage toxic byproducts that could have been avoided. Lowering toxic inputs
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permanently reduces impacts over the entire life of the product. It is far more efficient to
redesign for safety than to manage wastes that have been unnecessarily created.

Governance was once moving in this direction and actions that were taken to implement this
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concept were extraordinarily effective. In 1990 every state in the United States had established
a “pollution prevention assistance” program, where government employees actually helped
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companies – usually for free - to reduce their use of toxic materials and the creation of
problematic wastes. Half the states had some kind of pollution prevention law, which
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stimulated in various ways the examination by companies and others of safer alternatives. In
that year, Congress affirmed what the states had demonstrated, passing the Pollution
Prevention Act, declaring that “pollution should be prevented or reduced at the source
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whenever feasible”. Analysis of reports from sixty-some such programs – all small, many with
just a few staff - found that a decade of activities prevented more than 167 billion pounds of
pollution and conserved 4 billion gallons of water, and that “during the period 1998 to 2000, 13
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Pollution Prevention (P2) programs with a total average budget of $1.9 million annually
reported total cost savings equal to $404 million.” [20]
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The states have demonstrated how environmental law may be improved and how it can benefit
the regulated community. Surveys of companies required to do toxics use reduction planning
by the Massachusetts law, considered one of the strongest, found that businesses saved
millions of dollars beyond the costs of compliance, the opposite of the conventional assumption
that environmental regulations are costly and burdensome [21]. The program has been
credited by numerous companies for helping them to attain valuable certifications, retain or
acquire new customers, develop new products, and increase production efficiencies, all
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benefits far beyond avoided waste management costs, the expected value of pollution
prevention [22].

These benefits have been achieved through a sophisticated mix of governance strategies, many
more friendly than conventional command and control: flexible planning regulation, one-on-
one assistance, education and training, third-party and senior officer certification, and fees

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sufficient to resource the program. Surprisingly, the estimated hundreds of millions of pounds
of reductions reported by companies came about without requiring the reduction of any toxics
use [23]. Instead, the law requires that companies perform a good faith effort to examine their

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opportunities for reducing toxics use. The law respects regulated entities, treating companies
as competent and smart, ready to make the right decisions and see the efficiency of a focus on

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the root cause of their pollution, workplace safety, and consumer acceptance problems – the
decision to use a toxic material. There are many such examples of law that has benefits for the
regulated community as well as the public and the shared environment. By creating greater

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awareness of choices for better product and process design the law prompts continuous
improvement. Beneficial innovation for cleaner technologies can be efficiently fostered by
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requirements to examine safer choices: “Unlike traditional technology assessment, Technology
Options Analysis does not require absolute quantification of all the variables: one has only to
demonstrate, in a comparative manner, that one technology is better or worse than another in
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performance, health, safety, ecological effects, and so forth.” [24] Options assessment is one
example of how regulation can efficiently stimulate the evolution towards safer alternatives
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that will be of universal benefit, but industry participation in policy-making has slowed the
evolution of chemical policy in this direction. Intentional ethics includes whether companies
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adopt the responsibility to examine options for safer production.

Relational ethics includes whether they honor the customer’s right to know. In the 1980’s
workers’ right to know about the hazards of materials they use on the job began to be
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recognized at law and in practice, and it has become global. Some developments reflect the
pressure to evolve such a right concerning consumers. Maine’s attorney general advises
consumers that “In the past when you purchased a home directly from the homeowner the
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doctrine of caveat emptor (“let the buyer beware”) applied. Today the law offers more
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protection... a home owner….must disclose in writing any known defects, whether the home
has hazardous materials.”[25] Many states have required disclosure of hazardous products - a
search on the database of state chemical laws and policies of the Lowell Center for Sustainable
Production revealed 28 [26]. Some have moved to require more information about hazardous
facilities or wastes. Architects and builders and consumers of all kinds are concerning
themselves with constituents but there is as yet no effective system of informing consumers
about what is in what they buy. This benefits those who sell more dangerous products, while
effective consumer right to know would benefit those who would sell safer products.
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The evolution of these forms of law has effectively stopped. There has been an industry role in
opposing that evolution, through lobbying for cutting funds to environmental agencies or
limiting their authorities, suing them, and funding groups that claim government operations are
inefficient and a limitation on freedom, which has helped retard the policy development we
need. The Massachusetts and New Jersey laws pioneering materials accounting were going to

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be adopted by many other states, then they were not; it was to be built into the Toxics Release
Inventory and then it wasn’t. National chemical industry funding created and has helped

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support the Massachusetts Chemistry and Technology Alliance, which has repeatedly tried to
repeal the Toxics Use Reduction Act. Meanwhile, other chemical companies have produced
greener products in response to government solicitation of environmentally preferable

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products.

Which is the face of the industry? Because of this question, participants in the chemical

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industry must now ask themselves if they can demonstrate a commitment to ethical
participation in democracy. They can generate trust by respecting the right to know,
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supporting innovative governance to foster safer products and processes, and ensuring a
fundamental level of safety that includes restrictions where necessary.
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The Prompt of Innovation Arrested

The Toxic Substances Control Act as amended by the 2016 Lautenberg Act preempts, to a large
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degree, further state governance of the chemical industry. This occurred although Attorneys
General from several states wrote to Congress that “TSCA reform should not interfere with the
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authority of states to continue to establish requirements under such longstanding laws.” [27]
Except for some state laws that may continue to operate, most states cannot impose new
restrictions on chemicals without a waiver from EPA. If significant progress is to occur, it must
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now happen at the federal level, and the opportunity to implement Justice Brandeis’s vision of
states as “laboratories of democracy”, to let them try different approaches so we can better
learn how best to govern ourselves, has been greatly diminished.
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Because we are now dependent on the federal government for progress, it is important that
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EPA’s Office of Chemical Safety and Pollution Prevention recently reported to Congress that it
will need to hire outside help [28] to accomplish its duties under TSCA. Subsequent to that
report the new Administration announced its intention to cut EPA’s budget by a quarter. There
are fees authorized by the act, but the language of the section allows the Administrator to
choose not to impose the fee [29]. Without the robust ability of states to regulate chemicals
and with a weak federal presence, chemical companies are without effective checks and
balances, which increases the likelihood that risks will become manifest.
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A Recipe for Stasis

While efforts to develop regulation that would prevent harm have been weakened, laws that
provide an incentive for companies to behave ethically, because of concern over liability, are
also having lowered impact. Our understanding of the harm caused by the dispersion of
substances not compatible with living things and systems calls for new legal forms of response,

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but their development has been stalled. For example, plaintiffs suing in private actions in the
US must meet a high degree of proof in asserting causation of their injury by actions of
defendants. The case of Sindell v Abbott, concerning cancers caused by the miscarriage

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preventative diethylstilbesterol, [30] provided an example of a legal approach more suitable to
the age of mass consumption, in which the chain of production may not be traceable from

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provider to victim, and where the evidence of harm may not surface for many years. The court
articulated a concept of “market share” apportionment of liability to replace the requirement
that a plaintiff prove harm by a specific defendant. Although the court observed that the

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“manufacturer is in the best position to discover and guard against defects in its products and
to warn of harmful effects; thus, holding it liable for defects and failure to warn of harmful
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effects will provide an incentive to product safety”, this approach has not been widely adopted.
Nor has the principle of strict liability, which obviates the need for extensive proofs that the
injury was caused by the fault of the defendant, been applied to many dangerous substances
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and activities. The liability of producers is limited by the failure of the law of private actions to
evolve.
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Plaintiffs are under a high burden even when the specific defendant can be identified. They
must pay for expert witnesses who pass judicial approval and can counter the expert witnesses
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that wealthy defendants can often more easily pay for. They must make their case when many
hazardous substances do not leave “fingerprint” injuries and there are many potential causes of
the harm experienced. Toxic tort law imposes a scientific standard of proof, instead of the
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lower “preponderance” of evidence standard (characterized as “more likely than not”),

distorting “the balance of interests historically protected by the legal system...too many
victims of toxic torts...cannot win legal redress for their injuries.” [31]
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Our legal system imposes little effective general responsibility to reduce such impacts as toxic
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body burden, the cost of managing household hazardous wastes, and chronic damage to
ecosystems. Product liability and our environmental statutes do impose responsibilities for
creating dangerous products but generally they are triggered after a problem has occurred.
Regulations are largely reactive, “postmarket”, or as in the case of Environmental Impact
Statements, only reveal impacts and do not necessarily prevent them. Legal philosopher Carl
Cranor writes: “A company neither ensures that its products are safe nor fully assures others
that they are free from externalities, especially risks. In effect, the company foists off costs and
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consequences on others, who must bear them, subsidizing the market price of the product”.
[32]

The Supreme Court held in the 1980 Benzene case that the Occupational Safety and Health
Administration (OSHA) could not impose a rule requiring companies to reduce carcinogenic
risks to the extent feasible, but had to determine a safe limit – which assumes that our scientific

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capacity is sufficient to this task, that agencies have adequate resources, and that all chemicals
have a safe limit that can be discerned [33]. OSHA had attempted to impose a feasible
reduction standard because carcinogens are not regarded as having a threshold below which

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there is no concern. The approach required by the court, of allowing government action up to
the point of a safety threshold, instead of the concept that an actor who creates risks should

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attempt to reduce it when reduction is feasible, results in a static, compromise solution, rather
than one of continuous improvement.

Another form of stasis has resulted from the 1991 case Corrosion Proof Fittings v. EPA, in which

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the court vacated EPA’s use of the authority to ban toxics under TSCA, finding that before a ban
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can be instituted, less onerous alternatives must be evaluated and compared [34]. This is one
reason it has been often stated that chemicals are “innocent until proven guilty”.

Risk assessment techniques have focused on individual impacts, one at a time, instead of
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cumulative impacts. California has found that “While this approach has been effective in control-
ling media-specific exposures in the past, it does not account for exposure to multiple
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pollutants from multiple sources.” [35] Joseph Guth has pointed out the law needs to have
“the goal of maintaining the functioning ecological systems that we are so dependent upon.”
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[36] EPA, the National Research Council, and a Presidential Commission have all made the same
point [37].
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Cost-benefit analysis has been criticized by many as a poor method for assessing intangibles
such as our view of the value of life, (for example environmental attorney Michael Baram’s
characterization of implicit quantification of intangible decision-criteria as “intellectually and
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morally irresponsible” [38]), or for ensuring a just distribution of benefits and impacts [39]. The
basic outcome of this form of reasoning is that “a person can kill another person if it would cost
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too much to avoid killing her.” [40] The very act of performing cost-benefit analysis employs a
“discount rate” to convert future benefits to present values, privileging the present moment
over the interests of future generations. By looking only to present-day preferences we do not
capture what people “believe we owe to future generations”. [41] Because they are based on
what we know at the time, quantitative methods cannot capture what we don’t know we don’t
know.
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Industry should support the evolution of the common law as well as regulation, because the
potential liability for imposing unnecessary risks will provide a necessary discipline and rigor to
the profession of making and using chemicals, generating trust and higher quality products.

A Matter of Rights and Values

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Testing for contaminants has identified hundreds of known toxicants in our bodies, concrete
evidence that our system of law is failing to protect us [42]. The Environmental Working
Group’s evaluation of the exposure of newborns found 287 chemicals in umbilical cord blood:

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180 that cause cancer in humans or animals, 217 toxic to the brain and nervous system, and
208 that cause birth defects or abnormal development in animal tests [43]. As one writer put
it, we are engaged in a “giant chemistry experiment” that treats people as guinea pigs [44].

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Research on human subjects in the university setting is now strictly governed by ethical
concepts that require anticipation of potential harm and the obtaining of informed consent, but
no such ethical principle has been applied to these wider exposures without consent.

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Does the average consumer know they can have respiratory damage from exposure to spray
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foam [45], that the commonly used antibacterial triclosan is now “in breast milk, in blood, in
babies just born, in dust, in water?” [46] Do they know that the nano-engineered forms of
silver being incorporated into clothing in order to reduce odors may damage aquatic
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microorganisms as the clothing is washed and the washwater discharged to the environment
[47]? Do they know that if their baby’s skin is broken they should refrain from applying the
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sunscreen that may contain nanoparticles that could enter the bloodstream? Do they know
that formaldehyde could be coming from their hair straightener [48]?
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That the consumer right to know about toxic ingredients is not well-established is first and
foremost a question of rights and values, and secondarily a matter for technical estimations of
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the level of impact or whether the costs are more or less than the benefits. A technical
assessment may reveal that the risk is very low, and the cost of removing it very high. But it is
hard to imagine that the average person would elect not to know about it, and to allow another
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to impose risk without his or her knowledge or consent. That the chemical industry in many
locations poses serious risks to the health of highly-impacted communities near large plants
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[49], is a continuing source of toxic wastes and significant related management costs as well as
contaminated sites not cleaned up (1337 sites still on the national priority list) [50], and
incorporates toxics ingredients into products without sufficient notice to those who use them
concerning the risks, is often cast as a technical issue, but it is an ethical or moral problem [51].
These issues are not properly resolved using only the tools of risk assessment or cost-benefit
analysis. They must also be addressed using the lens of relative rights and universal values.
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An ethical or moral chemical industry would actively seek to prevent harm to the extent a
reasonable person would consider sufficient. The principle that a reasonable person would act
to forestall foreseeable harm is a bedrock principle of the common law, and it has been well-
settled that at least to some extent, what is right is in the eye of the beholder, and not simply
determined by the intent of the actor. As Oliver Wendell Holmes Jr. wrote in his landmark
summary of legal principles, The Common Law, even if a defendant “considered carefully what

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would be the conduct of a prudent man under the circumstances, and, having formed the best
judgment he could, acted accordingly...it is very clear that the court would say (to the jury),

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Gentlemen, the question is not whether the defendant thought his conduct was that of a
prudent man, but whether you think it was. . .” [52]

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An ethical chemical industry would welcome the spur of potential liability, because it would
accept that there is a responsibility to work seriously to avoid injury that one’s profit-making
activities may cause. An ethical chemical industry would recognize the value of strong

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governance and participate as a co-equal, not a dominant party, in the development of
effective regulatory programs that satisfy the concerns of the public. A more ethical chemical
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industry would respect those concerns and seek to reduce them through product design and
engineering, and through support for systems that ensure that producers are responsible.
Many in the chemical industry are demonstrating that they know the value of making more
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environmentally friendly products. But have we yet seen the exemplars of ethical participation
in democracy, who can rebuild a relationship of trust with fellow citizens?
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References
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10.1002/chem.201605259. “The academic Humboldtian ideal of scientific conduct being free and independent
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arouses outrage at a pitch few other causes will ever muster. The threat of a shadowy corporation with its fingers
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**26. The Lowell Center for Sustainable Production,

http://www.chemicalspolicy.com/chemicalspolicy.us.state.php. See the updated database at:
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https://www.osha.gov/SLTC/formaldehyde/hazard_alert.html.
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