Long before there were any professional philosophers who identified as doing socially engaged or socially relevant philosophy of science, Carl Cranor was demonstrating exactly how philosophical reflections on science can and should inform law and policy. Cranor is a philosopher who also is a professor of law. He is thus in a unique position to explain how failures in legal protection are tied in part to ignorance about the nature of scientific inquiry. His Regulating Toxic Substances (Cranor 1993), Toxic Torts: Science, Law, and the Possibility of Justice, (Cranor 2006, Cranor 2016), and Legally Poisoned: How the Law Puts Us at Risk of Toxicants (Cranor 2011) explain and describe how the law in many cases has failed to protect our health. He traces these failures to unrealistic standards of evidence, particularly for demonstrating links between toxic substances and human health. Tragic Failures: How and Why We are Harmed by Toxic Chemicals, gives a clear overview of the entire body of current regulatory law and policy as concerns environmental toxins. It is written with great transparency, for a wide audience. It is not just an elegant summary of the state of the law and environmental policy; it is an exceptionally humane call for better thinking about the nature of science, and a passionate call for justice with respect to environmental risks to our health.
The book opens with the story of a cancer cluster among workers and locals near a DuPont plant in Parkersberg, West Virginia. Cranor weaves vivid case studies such as this into a larger argument that all of us have been subject to higher levels of exposure than we would in a different legal context. In particular, Cranor attributes these levels of exposure to the U.S.’s postmarket laws for industrial chemicals, which were modeled in part on nuisance laws. While such laws might be appropriate for visible substances, like burning rivers or smoggy air, such laws were not appropriate for the large majority of potential toxicants, many of which are invisible, diffuse and not immediate in their effects. Postmarket laws put such substances into the environment with no legally required toxicity testing. This places the burden of proof of harm on federal agencies, or (in the case of toxic torts) those who claim to have been harmed. Testing is voluntary, and according to the 1976 Toxic Substances Control Act (Toxic Substances Control Act 15 U.S.C. ch. 53 (1976)), as many as 62,000 chemicals manufactured or imported into the U.S., already in use were “grandfathered” in as “safe.” Manufacturers are not required to routinely test chemicals to demonstrate safety before putting them into the environment, though they may voluntarily do so. As much as 22,000 additional chemicals have been added to the pool to which we are all exposed, including fire retardants, byproducts of rocket fuel, and a variety of potential endocrine disruptors. As a result, according to Cranor as many as 84,000 untested substances have entered the market since the 1970s, or were grandfathered in, only a small percentage of which have been subsequently tested for toxicity, and a yet smaller percentage have been removed from the market. Because such testing is voluntary, and the costs (both immediate, and potential) to industry of voluntary premarket testing are high, postmarket laws create and invite willful ignorance of potential harms. The first half of the book documents some of these harms, and explains how and why certain populations have been particularly vulnerable: namely, children. It is, quite frankly, a devastating read, but essential for anyone concerned with how U.S. law protects us from harm (or, has failed to do so).
The second half of the book engages with toxic torts. Given the failures of protection from regulatory law, tort law (in principle) gives those harmed means of receiving compensation, and (ideally) serves to incentivize safe workplaces and safe disposal of potential toxins. Unfortunately, the decision in Daubert v Merrell Dow Chemical has not only failed to protect citizens from harm, but also positively fostered ignorance and injustice, according to Cranor (Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). The Daubert decision (or, perhaps better: interpretations of this decision) led to a shift in admissibility of expert testimony. Prima facie, the view defended by Judge Blackmun, that expert opinion must have “a reliable scientific foundation and be relevant to the task at hand,” seems plausible. However, Blackmun’s gloss on having a scientific foundation opened the door to questioning of expert testimony. Moreover, subsequent decisions were taken to establish precedent by defendants for the requirement that epidemiological studies be present, or must show a specific risk increase. But of course, evidence other than epidemiological studies can be quite compelling, and setting particular increase in risk as the standard necessary for proof is at best arbitrary. In other words, Daubert shifted matters of assessment of quality of testimony to the judge presiding over a case. But, many judges have no training in relevant science. Without knowing how weight of evidence is assessed given a body of epidemiological and toxicological studies, various judges appealed to arbitrarily high standards for the kind of research of relevance to assessment of toxicity. This in turn led to failure after failure at redress for plaintiffs. Given the great expense of toxic torts, and the high chance of failure on the part of plaintiffs, Cranor argues that this effectively shrunk the deterrence effects of toxic torts cases, leading all of us to be more vulnerable to harm from industry, which of course was no longer motivated to be particularly cautious about workplace exposure or externalities.
The final chapters explain and describe how weight of evidence is assessed in service of scientifically warranted judgments of toxicity, and discusses how the relatively recent Lautenberg Act attempts to reform and address some of the failures of Toxic Substances Control Act. One particular chapter, “How Demands for Ideal Science Undermine the Public’s Health,” should, in my view, be required reading for all federal court judges. Cranor reviews why a scientific ideal (represented by Furst) has mistakenly guided judges’ views about what is required to establish toxicity. The details matter, but his point can be put relatively straightforwardly: sufficient evidence for belief, in terms of ideal scientific “proof” of causation, is a different matter from sufficient evidence for protecting the public from harm. There is a difference, in other words, between evidence we require for belief in the ideal case in science, and what evidence we ought to require to act in the context of regulatory policy and toxics law.
What may Cranor have done better? The book is written for a broad audience, and based on Oxford lectures, so he had limited space, but it may have been useful – at least for philosophically inclined readers – to delve deeper into the principles underlying some of his arguments. For instance, in some of his discussion of law and policy, he makes reference to Rawls’s principles of justice; not all readers may have been moved by this appeal, and so cashing out how and why one might arrive at the same general conclusions from different starting points might have an interesting and worthwhile project. Another concern is to do with the matter of distinguishing warrant for belief and warrant for action. Perhaps making more explicit when there can be good grounds for appeal to values in setting standards of evidence for legal action might have been useful. While philosophers of science are (by now) mostly convinced that values of some sort or other play some role in setting standards of evidence, a careful explanation of why such a view can be maintained consistently without denying objectivity, by Cranor’s lights, might have been valuable. In particular, how and why should we make the role of values in setting standards for policy relevant science transparent? What counts as adequate transparency? Others (Mayo, Steel, Douglas, and Cranor himself) have spoken to this question of precaution and values in science, but it may have been useful to have a general overview of this matter in the context of discussion of Furst’s standards, for example, toward the end of the book. One can imagine some philosophically naïve readers pushing back against Cranor’s claim that ideal evidence for scientific “proof” is simply not appropriate in contexts of the law and toxic torts: Why not, they may ask? Isn’t that exactly why we appeal to science in the first place, to settle matters of fact, before we turn to matters of value? Speaking to this all too common view of the nature of objectivity and “proof” in science may have been helpful.
That said, the book is an engaging and provocative discussion of the history of regulatory and tort law, covering the history leading up to the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, and the precedents in toxic torts, including but not limited to the Daubert v. Merrill Dow Chemical. In addition, it brings readers up to date with the current law, providing a nuanced explanation of the science of environmental toxins, and its import for law and policy. I would not hesitate to assign this book in any course in philosophy of public health, bioethics, environmental ethics, law or policy. Philosophers of science, law and environmental policy especially can gain from this book, not only in teaching, but also in informing their own thinking. It not only reviews the history of environmental regulation, but brings those who brings readers familiar with toxics law up to date: explaining how and why the Lautenberg Act (which was passed just as the author was completing the book) attempts to improve upon the 1976 TSCA, or Toxic Substances Control Act, and how it may have done far better. I sincerely hope more philosophers of science seek to follow Cranor’s example of socially engaged philosophy of science, in service of better law, and better health.
Washington University in St. Louis
St. Louis, MO
Toxic Substances Control Act 15 U.S.C. ch. 53 (1976)
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993)
Cranor, C. (1997). Regulating toxic substances: A philosophy of science and the law. Oxford: Oxford University Press.
———. (2006a). Towards a non- consequentialist approach to acceptable risks. In Tim Lewens (Ed.), Risk: Philosophical Perspectives (36– 53). London: Routledge.
———. (2006b). Toxic torts: Science, law, and the possibility of justice. Cambridge: Cambridge University Press.
———. (2011). Legally poisoned: How the law puts us at risk from toxicants. Cambridge, MA: Harvard University Press.