The Risk-Monger

Last semester the Risk-Monger taught a course on public relations to a largely law-school based student body. He is generally impressed by the discipline and intelligence of these law students with the exception that they see more futility than utility in the concept of good PR.

Lawyers don’t actually lobby – they see the most cost-effective solutions to “short-term policy obstacles” and tend to execute with insight and diligence. Long-term issues like public trust, credibility and good will are fluffy foreign concepts they had never learnt in school before my class. There is no slot on a lawyer’s timesheet for engagement and public relations.

Finding lawyers in policy debates had been more commonplace in the litigious American arena – where people are more prone to exchange cards with their lawyers’ details than their own business cards. In most US companies, the head of communications is more likely than not a lawyer. In Brussels, on the other hand, I like to joke, we prefer to talk to each other (and sometimes listen!). The lawyers often only show up in Brussels after the second reading when the cumbersome (and to lobbyists, quite frankly, uninteresting) process of implementation starts (at this time the lobbyists are packing up and looking for more creative endeavours).

But this is changing, and the Risk-Monger is concerned.

The European courts are filling up with cases against legislation, without the EU having a legal structure that can deal with such challenges efficiently. The Lisbon Treaty raises opportunities to interrupt policy processes and everyone from Client Earth to Big Tobacco lawyering up to meet the opportunity to flank policy processes. What this does is transform policy from a process (what it had been from the time of Delors) to a technically sophisticated legalistic game (an obstacle course). As a superficial organism created over generations of quick fixes, the concept of Brussels was not designed for complicated technicalities intended to delay and gum up the process. If the deadlock scenario in Washington is anything to be worried about, Brussels will collapse as a concept if the lawyers move from tweaking implementation measures to looking at affecting the policy process – not only will nothing get done, the concept of Brussels as it had been conceived, will collapse. Ironically, the constitution process (since renamed “Lisbon”) was originally intended to reduce the lawyerisation of EU policy (until the anti-industry neophytes got their teeth into it!).

The Derogation Dance

Let me be cynical. With the first indications of the Juncker Commission, we can safely conclude that the Class of 2001 (those involved with the White Paper on Governance and the need to legitimise the policy process through engagement, dialogue and consensus-building) have moved on. Policy through a stakeholder dialogue process is dead.

Industry, to a large extent, seems to have given up on the EU policy process. With their science and scientists excluded from the risk assessments, with the expression of their interests being brandished as unacceptable lobbying (any email they send to anyone in the European institutions finds itself published on some transparency website), with the rules of the game moving from stakeholder dialogue to compromise theory, there really is no point for industry to engage in a policy game that has been set up for them to fail. Even worse, many in Brussels have concluded that the policy process is a cute game that does not really matter … well, assuming you have some clever lawyers.

The European Commission pretends to legislate, and we pretend to follow them!

In other words, the European Commission pretends to legislate, and we pretend to follow them. This is usually the case when some EU laws are universally agreed to be just plain stupid. When even the regulators admit that the legislation has not been properly thought through, they allow for something I would like to call the “derogation dance”.

How does this work, in practice? Once passed, an EU Directive is translated and implemented by each Member State with some flexibility for national variations. Sometimes, given the unique cultural and social wealth across the European Union, the Commission, as guardian of the treaty, may allow for Member States to introduce some derogations to the laws to preserve their heritage. This heritage can allow countries to exclude themselves from anything from definitions of certain food products to bans on certain chemicals. In theory, this is meant to be the exception, but in practice, the derogation dance is becoming the norm.

A good example of the derogation dance is how industry reacted when the brominated flame retardant, penta, was banned. Many would consider that a loss for industry, for the supply chain and for people who preferred that their products did not catch fire. Rather the industry lawyers systematically applied for and received derogations for all of the industrial applications of penta in all of the relevant markets. So the flame retardant was indeed banned, but all markets where penta was deemed essential to protect products from fire (mostly on airplanes) were exempted from the legislation. The lawyers know what they are doing, but, as I had mentioned, they are not very well schooled in the field of PR or long-term market sustainability.

The derogation dance is a short-term solution, but not sustainable for forward-thinking industries. If I am a progressive producer, aware that the derogation on something like penta may not last forever, I will start to look for alternatives to nominally banned substances in my supply-chain. If I can find an alternative and have recalibrated my production process, I will soon be a voice against extending the derogation (in order to benefit from my competitive advantage). This is a problem within industry – bad legislation can create opportunities for less-tested, potentially more harmful products to enter the market. When industry is no longer forward looking (only hoping to get a few more years from their product pipeline), they leave themselves vulnerable to vultures within their supply chain. Sometimes other industries will work with NGOs to ban substances in order to create a soft market for an alternative they have that was not picked up by the market or regulators.

This is where the Environmental-Industrial Complex can be dangerous for supply chains, economies, public health and the environment. We have seen rich examples of supply chain lobbying distortions with attempts like:

  • the soft-polypropylene producers trying to muscle in on the PVC blood-bag market,
  • certain OEMs finding TBBPA-free alternatives for circuit boards and then working with NGOs for a ban,
  • BPA-free and phthalate-free producers in the baby product supply chains trying to scare parents,
  • HFC-free refrigerator producers using Greenpeace to market their goods,
  • and why not, the entire aluminium industry’s assault on the plastic industry by denying plastics the fire protection that bromine had provided (those now aluminium Apple laptops don’t come cheap and we have the Greenpeace Green my Apple campaign to thank for that!).

I am not sure the activists on the street are aware that their NGO is effectively a mercenary in an inter-industry battle that misuses legislation as a market manipulation tool.

I beg industry to not give up on the policy process and leave their markets to lawyers who are able to stretch a few more years out of the supply chain while the vultures circle with their NGOs in pocket waiting to prey on an uncertain supply chain.

Nowhere is this cynicism worse than in the crop protection industry. A series of completely useless EU legislations and bans (led by activist directors inside DG Sanco) have left the crop protection industry with a choice: give up and pull all pesticide products off of the European market or try to help farmers by doing the derogation dance.

The invoking of the precautionary principle on neonicotinoids, (under the pretense of some bad science linking them to the fictive decline of bee populations) is a rich example. The farmers knew they could not protect their crops sufficiently with the older, more environmentally risky products, so in many countries, simply applied for and attained derogations. In countries like the UK which had not sought a derogation in December, 2013 when the ban was effected (Anglosaxon culture thinks of laws as something of worth that must be respected), farmers faced significant crop losses in the first year that neonicotinoids were not available. The neonic derogation in the UK came far too late to save last year’s oilseed rape crop (the UK’s third largest crop). Next year the derogation request will be made before the planting season, but it is likely that farmers, who are the ultimate risk managers, will avoid uncertainty and plant other crops (having, unfortunately, a severe effect on British bee populations who need pollen-rich sources like oilseed rape).

When legislation is stupid (and it doesn’t come any more stupid than DG Sanco’s pushing through of the neonicotinoid ban), then it is not surprising for the victims of the legislation to give up and, in frustration, turn to their lawyers. Engagement, dialogue and consensus are dead, leaving little else but the derogation dance.

It is not the lawyer’s job to defend the long-term access to good products under attack by dubious actors. It is not the lawyer’s job to preserve PR and stakeholder dialogue. But until the Commission forces some of their corrupted directors in DG Health to take early retirement, it will be the lawyer’s job to enable farmers to protect their crops, producers to protect their products and the European public to afford to consume.

 

 

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Comments

  1. Lawyers are a necessary element in the formulation of law and policy precisely because of the political agendas of EU Commissioners and Parliamentarians, the permissive inclusion policies adopted by such institutions with respect to NGOs, and the presumption, if not belief, that markets are inherently ‘evil’.

    Although it is widely recognized that Brussels is foremost a political venue, its institutions would surely derive strength and resilience from being tested, and consequently, benefit from the give-and-take you describe.

    Clearly, the institutions’ ongoing promulgation of EHS rules based on the precautionary principle betrays the very weakness of the scientific foundations underlying such rules, especially considering the lack of an executive administrative mechanism to ensure that the science proffered as support has been properly peer reviewed and validated.

    For these reasons, my colleagues and I have recommended, in the context of EU-US trade negotiations premised on regulatory cooperation, the introduction of transparency and government accountability administrative mechanisms to ensure against such shenanigans. And, our recommendations have prompted some transatlantic attention.

    Please see:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2376753

    http://www.atlantic-community.org/-/unbiased-safety-through-procedural-safeguards-in-ttip

    http://www.atlantic-community.org/-/current-promises-are-not-enough-to-calm-concerns

    http://www.osservatorioair.it/research-note-revitalizing-the-information-quality-act-as-a-procedural-cure-for-unsound-regulatory-science/

    1. Thank you for your comment Lawrence and your links – I strongly recommend people to read your paper on Trade, PP and post-modern regulatory process (the first link) as it put precaution into perspective with the point I have been trying to make. Since REACH, the reversal of the burden of proof (what I call the David Gee definition of precaution) has slowly eroded the trust and engagement of industry in the policy process (as it is well-nigh impossible to prove a normative-laden concept of safety, there is no point even trying), leaving little to do but resort to short-term derogation measures. You explained in a much more articulate manner than I could ever express on page 501 when you stated:

      Because the PP lowers the evidentiary standard of proof,it has the potential to affect the practice of science. The risk is that the PP does not promote ‘science-based policy’, but rather, ‘policy-based science’

      What I have identified as the rapid rise of “activist science” on subjects from endocrine, GMOs and neonicotinoids, is, as you pinpointed, the consequence of precaution dominating the science-policy balance. Thank you for putting what was disturbing me into such a clear perspective. I am going to re-read your article and I wish every civil servant in DG Health would take the time to do the same.
      I hope you realise that I am not denigrating the role of lawyers, but rather the lawyerisation of policy, where industry abandons the policy process and settles for short-term solutions that affect consumers, markets and the environment. Derogation should be a last resort, and not an entrenched business continuation strategy. It is a curious subtle difference in perception that in the US it is common sense that the citizen must hold the government to account whereas the anti-industry, anti-TTIP crowd in Europe (the ones shouting about lawyers taking governments to court) feel that the government must hold industry to account. Is it a lesser of two evils for them or did they just not think this through?

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