18

Doctrine of Informed Consent

Yet another philosophy, the Doctrine of Informed Consent, has been forwarded at Yucca Mountain by Dr. Kristin Shrader-Frechette of the University of South Florida. Shrader-Frechette is a highly educated academic, a science philosopher, with close philosophical links to the researchers from Mountain West. Brought in by NWPO in 1992 to shore up the validity of its philosophical opposition to Yucca Mountain, Shrader-Frechette espouses some ideas that are quite controversial in regard to the future of science and civilization. Specifically, she has attempted to extend the Rawlsian ethics to Yucca Mountain with a legal concept called the Doctrine of Informed Consent.

Shrader-Frechette has an undergraduate degree in physics, post-graduate work in economics, hydrology and biology, and a PhD in the philosophy of science. Our purpose here is not to question Dr. Shrader-Frechette's qualifications, but to suggest that she simply has drawn inadequate conclusions about the Yucca Mountain project and about man's relationship to technology in general.

While Shrader-Frechette has criticized nuclear energy and the study of Yucca Mountain on technical grounds, the heart of her argument is actually an ethical one. For Shrader-Frechette, the question seems to be whether the utilitarian principles on which American institutions and our constitution are based should be replaced by egalitarian principles, specifically those of John Rawls.

Utilitarian theories direct us to provide the greatest safety/welfare or least risk for the greatest number of persons. In contrast, according to Shrader-Frechette, a Rawlsian perspective requires that:

". . all persons have a duty to act according to principles of justice securing the fairest distribution of goods among all people. . . . . This means, says Rawls, that persons in the original position would reject utilitarianism, because no rational being would accept a societal theory that might sanction a loss for himself in order to bring about a greaternet good for everyone. Hence, if one adopted Rawls' 'Thought experiment' of the 'original position' it is unlikely that he would sanction the disparity in consumption between U.S. citizens and other people in the world. . . ." [ Shrader-Frechette, K.S.; Nuclear Power and Public Policy, D. Reidel Publishing 1980, p 123]

Applied to Yucca Mountain, Shrader-Frechette seems to suggest that the risks of the repository, no matter how slight, are unacceptable because in an egalitaian framework the least advantaged Nevadan would never accept any such risks. The consequences of her philosophy applied to energy policy are not limited to Yucca Mountain, but are far reaching:

"In other words, recognizing the real costs of nuclear fission might lead us to question closely-related assumptions about the value of increasing energy consumption and the value of an expanding economy. . . .

"If we questioned the thesis that economic growth removes poverty, then we might discover that the poor rarely share in the growth of real wealth and that they are "isolated from economic growth". Likewise if we questioned the thesis that economic growth enriches society, then we might find that the end effects of growth outweigh the good . . . " [Shrader-Frechette, K.S.; Nuclear Power and Public Policy, p124]

Shrader-Frechette seems to imply the poor will be made worse off by expanded nuclear power facilities and the increased wealth this brings. While a total cost accounting of the economic externalities associated with nuclear energy (and fossil fuels, for that matter) is no doubt wise, "questioning the thesis that economic growth enriches society" seems extreme.

The problem appears to be that having once chosen Rawlsian ethics as her philosophy, Shrader-Frechette is forced to link every social and energy policy decision to this ethic. This ignores both the fact that our nation and institutions are still utilitarian by nature and the possibility that while the technology of the nuclear waste repository may not be egalitarian, it is nevertheless safe and appropriate.

In a paper funded by NWPO titled "Expert Judgement In Assessing RADWASTE Risks: What Nevadans Should Know About Yucca Mountain", Shrader-Frechette again argues that the utilitarian philosophy subscribed to by most Americans is flawed and should be replaced by Rawlsian egalitarianism:

Utilitarian theories direct us to provide the greatest safety/welfare for the greatest number of persons. To subscribe to utilitarian theories represents a significant value judgement because utilitarianism has a number of significant flaws (see Rawls 1971, Kasperson and Abdollahzadeh 1988, Shrader-Frechette 1983, Shrader-Frechette 1985, Shrader-Frechette 1985, Shrader-Frechette 1991). [Shrader-Frechette, K.S.; "Expert Judgement In Assessing RADWASTE Risks: What Nevadans Should Know About Yucca Mountain", (NWPO-SE-054-92), June 1992, p108]

It should be noted that Shrader-Frechette referenced herself five times in the preceeding paragraph in support of Rawlsian ethics, a rather untraditional way of providing rigor to an argument. Quoting oneself is hardly a definitive proof of a position and is equivalent to claiming those who shout loudest are always correct. In the five pages Shrader-Frechette devotes to validating her Rawlsian perspective on Yucca Mountain under the NWPO grant, she cites herself no less than eleven out of twenty-six times.

Other interesting citations made by Shrader-Frechette in support of Rawlsian ethics are:

Kasperson, Roger (3 times) NWPO consultant.

Kneese, A.V. (3 times) NWPO socioeconomic peer review consultant.

Kleindorfer (1 time) consultant to NWPO.

Rawls (3 times) namesake of Rawlsian ethics.

Citing Roger Kasperson as justification for the superiority of Rawlsian ethics over utilitarianism at Yucca Mountain is problematic, since he is not independent and also works for NWPO. As shown previously, Kasperson's motivations contain elements of Maoism, Marxism, anarchism, decentralism and a tint of Brazilian liberation theology, hardly a high recommendation for Rawlsian ethics. Others cited in Shrader-Frechette's paper also worked for NWPO, notably William Schultze and Alvin Kneese, academic associates of Roger Kasperson.

Eliminating Shrader-Frechette's self-citation, Rawl's original work and the citations of NWPO reseachers, leaves Shrader-Frechette's general theory of the superiority of Rawlsian and egalitarian ethics on very shaky grounds. This observation is important because it shows Shrader-Frechette's scientific proofs are not necessarily very rigorous and may be driven by the need to validate a Rawlsian worldview. Building an entire ethical treatise on the failings of DOE on the basis of such translucent logic is worrying. Shrader-Frechette has used her credentials as a logician and science-philosopher (Appeal to Authority) to argue that the DOE and its contractors are error-prone, incompetent and inept. The harsh question which must be asked is whether Shrader-Frechette's analysis is not at least as error prone as anything forthcoming from the DOE.

Shrader-Frechette continues:

"The major flaw in utilitarian value judgements is that they allow minorities to be hurt. They allow various groups of persons to be treated inequitably on the grounds of expediency. Egalitarian views, on the other hand, sanction equal treatment of all persons, rather than simply using persons, perhaps violating their rights, in order to achieve some alleged social goal. Applied to Yucca Mountain, the utilitarian versus egalitarian issue focuses on the distribution of risk. Fears about inequitable or utilitarian risk distributions are what drive NIMBY (not in my back yard) syndrome. Few persons want to be members of the minority (like Nevadans) bearing the risk for the society as a whole. Moreover, because of their emphasis on providing equal protection, equal opportunity, and equal access to due process, it is arguable, from an ethical point of view, that egalitarian theories are preferable to utilitarian theories. [Shrader-Frechette, K.S.; "Expert Judgement In Assessing RADWASTE Risks, p 110]

It is indeed very arguable whether egalitarian theories are preferable to utilitarian theories. What Shrader-Frechette, the science philosopher, has ignored is any mention of the potential failings of egalitarianism:

1) Egalitarian theories paradoxically require centralized enforcers to carry them out. Only if everyone agrees to disperse all risks and benefits in an egalitarian way can these theories work. The former Soviet Union could disperse economic risks among its people only through dictatorship.

2) There is little empirical proof that egalitarianism works. Of the many experimental communities attempted in the United States based on egalitarian models, none have thrived and Shrader-Frechette cites no examples of advanced civilizations based on her theories.

In a speech Sponsored by NWPO and the UNLV Environmental Studies program, April 1993, Shrader-Frechette attempted to further extend egalitarian ethics at Yucca Mountain. Using a concept called "The Doctrine of Informed Consent", Shrader-Frechette equated the Department Of Energy with Nazis war criminals at the Nuremburg Trials conducted at the end of World War II.

"Free Informed Consent is something we learned about at the Nuremburg War Trials. We learned that you don't experiment on unwilling subjects without their free informed consent. We all know on account of medical ethics that doctors don't have the right to experiment on patients without their free informed consent.

"So the first question I want to raise in concern to Yucca Mountain, is there a question of free informed consent in the case of Yucca Mountain. Have the traditional constraints that require the public give free informed consent been met in this case? Because if, after all, we expect our medical ethics and our international ethics to conform to the doctrine of free informed consent - it's reasonable to hold our technological efforts to this doctrine as well."

Shrader-Frechette's underlying purpose in introducing the Doctrine of Informed Consent was an attempt to give legal weight to Rawlsian ethics at Yucca Mountain, claiming a basis in international law. Rawl's "least advantaged man" is here replaced by "unwilling subjects", but with the added images of Auchwitz survivors perhaps huddled around the entrance to Yucca Mountain. The question we need to ask is whether the Doctrine of Informed Consent is actually applicable to Yucca Mountain and technology in general. According to Shrader-Frechette in her speech at UNLV, the Doctrine of Informed Consent has four components :

1) "We have to disclose the nature of the risk to the person at risk. You can't withold information."

2) "Understanding. You can't ask people to bear a risk unless there is understanding."

3) "There is no coercion or manipulation involved."

4) "Competence. People must be competent to understand risks."

While the Doctrine of Informed Consent is rational on the surface, its logic fails in the application. For example, at any given time there is a risk that a 747 Jumbo jet will crash into Mr. Jones' cabin in a remote area of Montana. Yet we do not require United Airlines to:

1) Disclose to Mr. Jones and millions of people within a thousand miles of such a route of that risk.

2) Require everyone in the flightpath to study aerodynamics and structures so they can understand the full extent of their risk.

3) We do not consider the absence of such information either manipulative or coercive.

4) We do not require everyone under the flightpath to be a competent adult able to decide whether they are willing to take the risk.

Most disturbing about Shrader-Frechette's speech at UNLV was that she violated all of the tenets of the Doctrine of Informed Consent she had just presented. By not informing the audience of the dangers inherent in her Rawlsian viewpoint, she ignored the four rules of free informed consent:

1) DISCLOSURE: She did not tell the audience that the Rawlsian ethics she espouses is revolutionary and perhaps dangerous.

2). UNDERSTANDING: Her audience clearly did not understand Rawlsian ethics and did not know she was promoting a philosophy, rather than merely discussing scientific objections to Yucca Mountain.

3) COERCION: Shrader-Frechette clearly attempted to manipulate, if not coerce the audience into accepting her Rawlsian worldview. At a similar speech given Union College, May 1993 in New York, Shrader-Frechette went so far as to require recording devices to be turned off to prevent further analysis of her speech.

4) COMPETENCE: An audience cannot be deemed competent to analyze a speech unless there is some shared understanding of terms. Rawlsian ethics is novel, untested and has not been discussed by the public.

The Doctrine of Informed Consent requires us to always inform the least advantaged man (and perhaps least qualified judge) of every physical, economic, and social condition which might put a human at risk. The obvious danger this poses is a collective neuroses, a paralysis in which no risk could be deemed negligible because of the fears of some minority. So while we wish to avoid the horrors of the premeditated evil of Auchwitz which created the need for the Nuremburg Trials, equating DOE's benign intent with such atrocities is an affront to logic.

In her work for NWPO, Shrader-Frechette judges DOE guilty of eighteen errors of methodological value judgement in estimating and evaluating radwaste risks and an additional ten logical inference errors. Shrader-Frechette does not appear to believe anyone within the DOE or its contractors have addressed any of these issues, implying a remarkable degree of incompetence. While Shrader-Frechette's criticisms of DOE's buttress the Nevada Nuclear Waste Project Office's point of view, they provide no reference against which to be measured. The correct comparison would be to apply Shrader-Frechette's logic to NWPO and to the counter proposition:

What if we don't build Yucca Mountain and instead choose on-site storag?

NWPO's position that on-site storage is the preferable technology would then have served as a control against which to compare DOE's logic regarding Yucca Mountain. This would have required a critical evaluation of NWPO's own scientific rigor regarding the on-site storage question, but no such analysis has been forthcoming from Shrader-Frechette. Thus the problem with Shrader-Frechette's work is not that it is insufficiently brilliant, but that it his never been verified through appliction to a control.

By arguing that nearly all investigations conducted by DOE scientists and their contractors are logically flawed, Shrader-Frechette has laid claim to being the expert of all experts. If her work is itself systematically flawed, then it might well be that DOE's estimations are indeed correct and Yucca Mountain is an appropriate technology. However, Shrader-Frechette has left herself in a rather untenable position:

1) She has not provided unimpeachable peer support for Rawlsian ethics.

2) She has not provided empirical proof for the practicality of Rawlsian ethics.

3) She has not applied the Doctrine of Informed Consent to her own proselytizing of Rawlsian ethics.

4) She has provided no control for her logical analysis of DOE through a similar investigation of NWPO. Such an analysis might well lead to the identification of many more errors of logic on the part of NWPO than even DOE is accused of committing.

5) She has provided no control for her analysis of Yucca Mountain through a parallel investigation of the problems inherent in on-site storage.

Ironically, it appears Shrader-Frechette is guilty of as great a magnitude of error in logic in her analysis of Yucca Mountain as those she accuses DOE and its subcontractors of committing. This does not invalidate the individual concerns she has expressed regarding DOE's activities, but it does call into question whether Shrader-Frechette opposition to Yucca Mountain based on science, or on a very theoretical Rawlsian ethics.