Psycho-social impacts - Ingenta Connect

Impact Assessment and Project Appraisal, volume 21, number 3, September 2003, pages 195–203, Beech Tree Publishing, 10 Watford Close, Guildford, Surrey GU1 2EP, UK

Psycho-social impacts Weight and weightlessness: administrative court efforts to weigh psycho-social impacts of proposed environmentally hazardous facilities Michael R Edelstein

This paper reviews the 25-year battle to have psycho-social impacts of contamination weighed in US administrative permit decisions. Despite the establishment of a professional literature and successful application in toxic torts, psychosocial (including psychological) impacts from the siting of hazardous environmental facilities have neither been reviewed substantively in environmental impact statements nor listed as an issue for adjudication in the issuance of permits by regulatory agencies. The reasons for this lag are explored through a detailed examination of key cases according to two sets of factors: personalistic versus environmental; and professional versus paradigmatic. Keywords:

psycho-social impacts; psychological impact; social impact assessment; administrative or adjudicatory hearing; environmental impact assessment; decision-making; social values

Michael R Edelstein is a Professor of Psychology, School of Social Sciences and Human Services, Ramapo College of New Jersey, 505 Ramapo Valley Road, Mahwah, NJ 07430 USA; Tel: +1 201 684 7745; E-mail: [email protected]. The author is grateful to Scott Thornton and Administrative Law Judges Edward Buhrmaster and Daniel O’Connell for their assistance in acquiring necessary documents. Some concepts and case material referenced here is the subject of chapters in Edelstein’s forthcoming second edition of Contaminated Communities and the in-progress book entitled Poisoned Places both cited here with permission of the author and the publisher.

Impact Assessment and Project Appraisal September 2003

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HIS PAPER REVIEWS the 25-year battle to have psycho-social impacts of contamination weighed in US administrative permit decisions. The relocation of residents from the Love Canal neighborhood of Niagara Falls, New York in the late 1970s introduced Americans to chronic toxic exposure as a new mode of victimization (Levine, 1982). A new field of environmental social science inquiry was also inaugurated, allowing us to speak with certainty about palpable psycho-social impacts from past and existing exposure to noxious and toxic contaminants and those potentially caused by proposed environmental facilities.1 These impacts include stress and psychopathology, changes in the patterns of behavior we think of as our lifestyle, and alterations to the core assumptions (that is, the ‘lifescape’) we make about health; control over conditions affecting us; safety of homes and the larger environment; trust of others and government; relationships; and personal, property and community value (Edelstein 1988a; 2003). Importantly, early observations of the administrative hearing process confirmed that citizen victims were not ‘heard’ by administrative law judges. Rather, expert testimony would be required to assure that such impacts were assessed in environmental impact statements for hazardous environmental facilities and weighed in administrative permit decisions (Edelstein 1986–87). This article explores the social resistance to doing so, examining the balance between overt professional and often latent paradigmatic considerations.

1461-5517/03/030195-9 US$08.00  IAIA 2003

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Psycho-social impacts of proposed environmentally hazardous facilities

Legacy of Three Mile Island A logical starting point for understanding adjudication of psycho-social impacts is the case involving the restart of Three Mile Island (TMI) reactor I, which had been shut down during the 1979 nuclear accident at TMI II. A Harrisburg citizens group, Pennsylvanians Against Nuclear Energy (PANE), sued the Nuclear Regulatory Commission (NRC) demanding that community stress from the perceived risk of an accident be assessed pursuant to the National Environmental Policy Act (NEPA) before restarting TMI I. The case went all the way to the United States Supreme Court before PANE lost. While the PANE litigation legitimated assessment of psychological impacts under NEPA, it moved the courts to set forth a series of tests for avoiding frivolous claims of psychological injury arising from hysteria “whipped up” by special interest groups (PANE v NRC, 1982, page 1352). The PANE case was lost because it did not adequately meet these tests (US Supreme Court, 1983; see also Edelstein, 1989; Jordan, 1984; Sorensen et al, 1987; Llewellyn and Freudenburg, 1989; Hartsough, 1989; Hartsough and Savitsky, 1984). Most importantly: • The courts clarified that psychological impacts require “direct sensory impact of a change on the physical environment,” not merely the “perception of risk.” Thereafter, a clear causal link between event and impact would be required. • The courts relied on quantitative measurements of stress or psychological dysfunction to define “true psychological stress,” such as post-traumatic anxiety and physical effects as a result of “fears of recurring catastrophe.” These were distinguished from routine concerns, such as “socioeconomic anxieties … or mere dissatisfactions arising from social opinions, economic concerns, or political disagreements with agency policies” or a land use found to be undesirable. Copious data on the impacts of the TMI II accident were held irrelevant to the restart of the unharmed reactor, viewed as a different and unrelated project (Hartsough and Savitsky, 1984; PANE v NRC, 1982, page 1352; Jordan, 1984). PANE’s chilling effect on subsequent consideration reflects two dimensions. In a professional vein, the court appears to have a muddled understanding of psycho-social impacts characteristic of naive judgments. The judges adopted a personalistic approach, based precariously on objective measures of subjective stress, rather than an environmental approach considering diverse measures of objective stressors directly linked to the assessed action. Their narrow definition of psychological impact has little utility in contexts unsuitable for scientific controls and standardized and quantified measures. It is therefore unsuitable for assessing impacts other than

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stress, devalued as ‘routine’, and is paranoid about finding too much impact. Even within their narrow recognition of psychological impact, the Supreme Court feared that mere facility opponents would score as high on measures of psychological stress as true victims, and thus be indistinguishable.2 The judges either never considered that facility opponents might suffer genuine stress because of their fears of the proposed action or they sought a sufficiently narrow approach to nullify this eventuality. These latter considerations demonstrate that the court’s thinking about professional invalidity issues became confounded by latent paradigmatic concerns.

Administrative context By the time PANE tested the scope of environmental impact assessment, the author had already introduced psycho-social impacts into a different context, the adjudicatory hearing. Adjudication involves a civil trial before an Administrative Law Judge (ALJ) over matters of dispute that might influence the denial or modification of a permit required for construction or operation of a regulated facility. First Al Turi Landfill case In the summer of 1980, hearings were held before an Administrative Law Judge from the New York Department of Environmental Conservation (DEC) to adjudicate disagreements of fact arising from the application and draft environmental impact statement (DEIS) for an expansion of Al Turi Landfill Inc, a private waste facility located in Goshen, New York. As a member of the Environmental Review Board, the author was asked to assist the town of Goshen’s intervention in opposition. Listing the author as its expert, the town petitioned to make psycho-social impacts an issue, and ALJ Robert O’Connor called a three-week adjournment to allow for data collection and preparation of a report (Edelstein, 1980). The resulting study adopted C P Wolf’s (1977) general guidance that social impact assessment addresses impacts for a locality “on real people and their problems … [and] alterations of behavior patterns … the conditions of existence, contents of experience and modes of expression.” During the study period, 15 one-hour-long small group interviews were held in neighborhood homes with a quasirandom sample of 46 people chosen to reflect differences of distance and direction within a radius of 8,000 feet of the landfill. Questions focused on environmental stressors related to the existing landfill. The author took reasonable steps to assure objectivity, avoid bias and protect subjects’ rights including: using standard questions and instructions; explaining the importance of truthful answers; carefully recording the interview and clearly using this record as the basis for the report; and promising respondents



confidentiality. Impacts of the expansion were projected from such effects of the existing landfill as: • a misfit between landfilling and residential expectations for the farmers, commuters, and suburbanites comprising the local population; • daily and direct impacts such as irruptive and constant noises from traffic and equipment, routine noxious and periodic overpowering odors, dust and fumes, litter, bird and rodent vectors, lost visual quality, and concerns for children’s safety; • groundwater contamination; • health problems blamed on the landfill; • loss of a sense that homes are secure and the landscape tranquil; • fear of forced relocation, as was occurring at Love Canal (see Levine, 1982); • environmental stigma evident in perceptions of the area, treatment of residents, and diminished home value and saleability; • distrust of engineering drawings and agency promises of monitoring, enforcement, and assurance of safety; • distrust and fear of the landfill owners, correctly viewed as associates of Organized Crime (Hinchey, 1986); and • cumulative stress magnified by the adjacent Orange County Landfill. While the facility application termed such impacts as “short term,” for residents, a 20-year landfill life corresponded to the passing of a generation. In sum, when weighed against economic and environmental impacts, psycho-social effects favored permit denial. The author took the stand in June/July 1980, explaining the validity of his method and study findings. During cross-examination, the landfill’s lawyers cited the author’s advocacy as an indication of bias, demanding that he name his respondents. The DEC attorney challenged the validity of qualitative findings, repeatedly demanding to see computer printouts and statistical analysis. The ALJ’s findings echo the lines of what I will call ‘invalidity defense’ (O’Connor, 1981, findings of fact # 50):

During cross-examination, the landfill’s lawyers cited the author’s advocacy as an indication of bias: the DEC attorney challenged the validity of qualitative findings, repeatedly demanding to see computer printouts and statistical analysis


“Dr. Edelstein conducted the survey and wrote the report from his own position of being in opposition to the extension and continuation of the landfill. Because of agreements of confidentiality for the interviews, Dr. Edelstein’s testimony and the subjective report are replete with generalities and hearsay.” The issue of hearsay marked a cultural difference in expectations between the social sciences and the rules of law. Given the promise of confidentiality, the ALJ felt forced to dismiss the testimony as generality.3 The dismissal of qualitative research as subjective reflects the same scientistic beliefs found in the PANE decisions. The issue of bias revealed a double standard. While the engineers and experts paid to advocate for the facility were presumed to be objective, the ALJ made the opposite presumption for an activist. Nevertheless, the ALJ acknowledged stressors: “The report does, however, bring together in one place the perceptions of the landfill in the minds of some of the Town’s citizenry. Among these perceptions are the impacts of the landfill relating to the area’s water resources, air pollution, methane gas explosions and fire, noise levels, traffic congestion and safety, odors, dust, visual character, vectors, litter, health impacts and psychological stress, lifestyle impacts, property values, security of the home, benefits to the community, trust in monitoring, community character, quality of life, and importation of garbage from other areas.” However, the impact of forcing local residents to live with these stressors was never considered. The dismissal of impacts as “perceptions” in the minds of “some” citizens reflected, as did PANE, the presumption that people bias information to support their vested interests (see APA, 1982). Instead of the social scientist’s expert ability to assess respondent validity by understanding the research context, faith is instead placed in “objective” standardized quantified methods that convert perceptions into numbers (see Edelstein 1989; 2003). These naive presumptions pose a dilemma for psycho-social impact assessment, where use of subjective data is essential and quantified measures of stress and psychopathology are of marginal utility. Granted, in 1980, there was neither a large reservoir of legitimacy or precedent to draw upon. While open to hearing the issue, the ALJ obviously never anticipated how to consider psychological impacts in his decision. Professional invalidity issues offered a convenient path away from the fundamental difficulty of granting identified impacts weight in the decision. Combined with the subsequent PANE decision, the Turi case set a difficult precedent for the issue’s future consideration. 197


CECOS — a further intervention The next test of psycho-social impacts in administrative court came in the mid-1980s when CECOS International applied to expand its Niagara Falls hazardous waste disposal site. Citizen interveners appealed against ALJ Andrew Pearlstein’s ruling that psychological impact was not a substantive and significant issue able to result in permit denial, major permit modification or the imposition of significant permit conditions (Pearlstein, 1988). The appeal avoided PANE’s ill-fated risk argument by directly linking perceived impacts to the expansion (Concerned Citizens Organizations, 1988, page 14): “… subjective concerns of the citizens … are relevant because, objectively justifiable or not, it is these concerns which will interfere with the everyday lives of the citizens, and hence which will have an impact upon the public interest.” The appeal was less directed at the DEC (concerned with the fit between the project and state environmental regulations) than the New York State Industrial Hazardous Waste Siting Board, a separate decision-making body mandated to determine whether the facility was in the public’s interest. Expecting psychological impact data to aid this determination, the siting board granted the appeal. Citizens were to produce an expert to offer “proof” beyond the “subjective state of mind” of residents who had given testimony at the public hearing (Industrial Waste Siting Board, 1988, page 3). The author of this paper served as the expert.4 Research findings With only a few weeks to prepare written testimony, the author reviewed thousands of pages of documents, toured the impact area and, with the assistance of J Stephen Kroll-Smith, conducted six focused group interviews with 30 community residents in September 1988. Anticipating the invalidity defense encountered in the Turi case, these qualitative sourcs were augmented with a phone survey of a 10% random sample of local residents.5 These diverse data on CECOS’ current and past effects, present social processes, and cumulative effects of hazardous facilities allowed for a onvergent projection of impacts of the expansion (Edelstein, 1988b; also Edelstein, 1991–1992; 1993), including that: • more than 90% of survey respondents were familiar with CECOS; • Niagara Falls’ strong ‘eco-historical’ legacy helped explain the local near-consensus in opposition, voiced by 88% of the survey respondents; • numerous cumulative direct and indirect stressors were evident including visual impacts, odor, dust, soot and traffic, forcing residents to alter lifestyle

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(for instance, limiting outdoor activities and keeping windows shut because of noxious odors) and holding important symbolism; • half the respondents reported that the CECOS site was already a source of stress. Given the city’s toxic legacy, the population was highly sensitized to such impacts. Residents believed that Niagara Falls had already done its share to bear the costs for regional waste disposal. The expansion also threatened residents’ ‘lifescape’, their core views of the world (Edelstein 1988a; 1988b; 2003). Residents feared CECOSrelated health problems. They felt disempowered by CECOS’ continued expansion and viewed the hearing as a last attempt to regain control over their community. With nearly a quarter of the surveyed residents relocated from Love Canal, fear of displacement accompanied a lost sense of security and investment in homes. State, local and CECOS officials were distrusted, as was state-of-the-art technology. Finally, residents feared exacerbation of the environmental stigma that, since Love Canal, had seen previous community images — the scenic wonder of the falls, peaceful residential neighborhoods, and prosperous industry — transformed into a toxic landscape. Anticipatory fears were also evident: 70% expected future harm from the facility, 73% saw CECOS as a threat to their well being; and 86% believed water contamination likely. Less than 20% saw chances of an on-site or transportation-related accident to be only extremely slight. A media analysis suggested that these fears rested less on inflammatory press than community experience. Given the large proximate population, the author concluded, “… thousands of people are at risk for psycho-social impacts.” Conflicting testimony Adjudication of psychological impacts lasted for five days in early November 1988. Against the author, CECOS called Vincent Covello of Columbia University and Robert Gatchel of the University of Texas. Both sides offered pre-filed testimony, final briefs and response briefs.6 While the author had to make the case for social impacts by presenting evidence of damage expected from the expansion, CECOS’s experts merely had to cast doubt on his testimony, not to prove anything on their own. Their role was clearly ‘limiting’ whereas the author’s was ‘expanding’ (Edelstein, 1989; Picou, 1996b). They collected no field data, relying on review of documents and news clippings provided by CECOS, a facility and neighborhood tour guided by CECOS staff, and discussions with CECOS personnel and consultants. For the author, psychological impacts included effects on the behavior, cognition, and emotions of those exposed to an expanded facility. The CECOS



The applicant’s experts asserted that, without statistically significant differences between the proximate population and a control community or pre-project baseline, it was impossible to prove impact: these arguments rested on familiar professional invalidity grounds

experts limited their definition of impact to one construct, stress, measured quantitatively. The author examined past and current effects and dynamics that might be reasonably generalized to the proposed waste facility. The applicant’s experts asserted that, without statistically significant differences between the proximate population and a control community or pre-project baseline, it was impossible to prove impact. These arguments rested on familiar professional invalidity grounds. However, CECOS could not assume that all of the evidence of community stress would be discounted. So it introduced a second line of argument. Widespread opposition, they argued, was a reflection of biased media coverage rther than genuine stress. Moreover, as a state-of-the-art facility, the expansion by definition entailed no risk. Thus, fears about the facility were characterized as irrational and inappropriate. I term this argument the ‘irrationality defense.’ Such misguided fears, it was further argued, could easily be mitigated through individual stress management and “community-based risk communication and public education,” to include tours and open houses and the circulation of brochures, video presentations, and a newsletter. Increased understanding and familiarity with the facility would allegedly help residents cope and, over time, combined with community benefit projects, would provide “a firm basis for community trust and acceptance” reducing psychological stress as a result of CECOS (Covello, 1988, page 33). This personalistic argument views stress as a problem of the resident and not the facility. If the local residents can be changed through education, adaptation, or co-optation, then the problem is resolved. If no change occurs, one can blame the irrational public and the biased media. The author countered with an environmental perspective placing the onus for change on the project not the residents, finding that acceptance of CECOS was unlikely given the legacy of distrust, and predicting that the proposed educational efforts might even backfire because, with hazardous facilities, greater knowledge means greater worry (Slovic et al, 1982).


However, the irrationality argument had moved the decision squarely out of the parry of professional approaches into the paradigmatic bottom line. Administrative findings Given two divergent representations about an area of knowledge unfamiliar to him, the ALJ seems to have thrown his hands up in despair over the professional issues, citing “… the practical difficulty involved in assessing the evidence on this type of issue” (Pearlstein, 1989). The judge then offered contradictory findings (Pearlstein, pages 129–130). First, following precedent, the ALJ cited the invalidity defense to characterize the author’s testimony as biased, subjective and qualitative, and thus invalid and not replicable. In doing so, the ALJ overlooked my use of convergent quantitative data and random sampling, confusing findings of widespread community opposition with survey bias, and dismissed the convergent literature to conclude: “Dr. Edelstein’s contacts, even in the supposedly random telephone survey and group interviews, were almost entirely with individuals and that element of the local population who are the most dedicated opponents of the … application … . [W]hen measured against accepted scientific standards, it is difficult to assess the validity of Dr. Edelstein’s methodology … . He forthrightly admitted that his method is largely subjective and qualitative, rather than quantitative. There is little established empirical data base or literature upon which Dr. Edelstein may build. There is thus only a meager basis upon which to assess the validity of Dr. Edelstein’s qualitative conclusions or to judge whether they may be reproduced by other researchers … . In summary, there is insufficient evidence in the record to find that the … application will have any psychological impact as measured by stress on individuals in the community.” Turning then to acknowledge psychological impacts not “measured by stress,” the ALJ adopts the irrationality defense to render these findings weightless: “There is some evidence, however, that the granting of this application will have a psychological impact on a significant element of the community which may be characterized as an almost symbolic event leading to feelings of powerlessness and inequity. Since this response does not appear justified by the actual environmental impacts of the Project, it should not constitute grounds for denial of the application. The psychological impact does, however, warrant the imposition of explicit permit conditions requiring CECOS to continue and expand community outreach, education, and assistance 199


programs with the goal of directly benefiting the community and reducing community concerns about [the facility].” Importantly, while the validity defense elaborates a professional disagreement amongst social scientist adversaries, the irrationality defense places the question of psychological impact squarely on the ALJ’s turf. Because the ALJ concluded that the CECOS expansion met the regulatory definitions of safety, by extension, recognized psychological impacts evidenced correctable public misperceptions about the dangers of the project. The subsequent ruling on psychological impacts by Commissioner Jorling (1990) further clarifies how irrationality was not only a defense of the proposed project but of the inherent interests of the technocratic paradigm held by regulatory agencies as well. “Though perhaps obvious, it is worth repeating that no activity is risk free. Apparently, the interveners believe that as long as an activity is not risk free, it is rational to fear it. This is clearly not the case… . Regulatory agencies and society in general address questions of risk and make judgments determining a level of risk which is considered acceptable. Although these decisions necessarily have an element of subjectivity, they reflect societal values. If no risk were acceptable, every power plant, every factory and every gas station would have to shut down operations and the basis for our advanced technological society would come to a grinding halt. Through legislation and otherwise, society has made the decision that some level of risk is acceptable in exchange for the benefits of technology. The principal focus of this hearing has been on questions of whether the risk associated with the construction and operation of the facility is within acceptable limits. If such risk is shown to be unacceptable the project will not be approved. As a public policy matter, if the Department were to deny an application for a facility after concluding that it met all regulatory criteria and that the risk of its construction and operation was within acceptable limits merely because of the fears in the host community, the agency would be abdicating its responsibility … . Therefore, I conclude that any psychological impact caused by this facility cannot, standing alone, be grounds for denial of the applications.” The Commissioner also determined that psychological impacts would be mitigated through permit conditions, in a manner that is paradigmatically safe. The CECOS decision clarifies that the deep cause for the ‘weightlessness’ of psychological impact is not doubt over methodological validity. Rather, psycho-social impacts to health, enjoyment of property,

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and quality of life, if acknowledged, pose a fundamental paradigmatic threat. Those in authority fear the impact of the impact on facility siting. However, the last chapter in this case was not written by the DEC. Finding that the expansion would pose a potential risk to the large local population; the Industrial Waste Siting Board denied the certificate of Environmental Safety and Public Necessity. SCRF-6 (Secure Chemical Residue Facility) was never built. Nevertheless, the Commissioners Ruling and the ALJ’s findings stand as precedent.

Rehashed precedents These decisions complicate new efforts to introduce psycho-social impact data. Thus, when Al Turi Landfill applied to the DEC in 1998 for a permit to carry out another major expansion, ALJ Edward Buhrmaster referenced the prior Turi and CECOS decisions in rejecting a petition to adjudicate psycho-social impacts by Orange Environment Inc, a non-profit environmental organization.7 The ALJ concluded, “… because psycho-social impacts can not be fairly and objectively addressed in a DEC hearing they should not be the sole basis for denying or modifying a permit” (Buhrmaster, 1998). In applying precedent, this finding fatalistically reifies past decisions regarding professional and validity issues. Even if it is true that psycho-social impacts had not been fairly and objectively addressed previously, the ALJ finds that they could never be the subject of fair and objective testimony in the future — in effect, saying there is no future for psycho-social impacts. The Buhrmaster decision also articulates another factor in the weightlessness of psychological impact — representativeness of findings. In social impact assessment (SIA), there is less interest in sampling the whole community than in studying those who are impacted. Why water down the impacts? There is no resulting error unless one seeks to generalize to the larger population from this unrepresentative sample. In the cumulative reasoning of the ALJs cited, however, this focus on victims represents a bias in itself. ALJ Buhrmaster addresses the question of representation, citing as a reason for not receiving psychological testimony that public participation in the legislative hearing that preceded the administrative issues conference sufficiently highlighted the “stress and anxiety some neighbors of the Al Turi landfill have about its expansion.” Even if paradigmatically prudent, this conclusion is professionally problematic. It begs issues of representativeness and who participates in public hearings and who does not; speakers’ ability to express impacts, especially given strict time limits; impacts of intimidation felt by the community; the ALJ’s competence to analyze such impacts; and the minimal weight accorded public statements given judicial distrust of ‘subjective’ testimony.



Furthermore, this assertion dismisses the expert’s role in understanding psychological impacts — a role well recognized regarding accepted impacts for ‘hard’ scientists and engineers. Instead, it assumes that people can speak for themselves, will be listened to, and understood by the court without expert interpretation. This assumption is not borne out by experience (see Edelstein, 1986–1987). The ALJ’s reasoning adds to the precedents assuring that psycho-social impacts will continue to have little weight in administrative permit decisions. The effect of these combined precedents is seen in Judge Buhrmaster’s subsequent findings regarding the proposed Oneida County (New York) landfill. Intervening veteran groups claimed that the proximity of the landfill to the Veterans Memorial Forest and memorial was “a distressing dishonor, insult and affront to veterans” that would have psychological impacts on “especially sensitive” members of their groups and that such “psychic” impacts are detrimental to public health, safety and welfare. The ALJ dismissed the issue on three familiar grounds: the lack of an obvious causal connection between the projected environmental impacts and the veteran’s distress; that stressors would be adequately controlled by enforcing the permit; and that the legislative hearing and hearing record already “documents the distress, outrage and anger that veterans feel about this project” (Burhmaster, 2001).

Discussion and lessons learned What are the lessons of this nearly 25-year-long record of decisions on psycho-social impacts? Even as the body of literature has grown voluminous confirming the psycho-social impacts of environmental hazards, there is little influence on administrative decisions. It is as if the reality of such impacts were the subject of a systematic social denial. What is the basis for this denial? Perhaps the expert strategy for forcing recognition of these impacts has been faulty? While a strategy of focusing on controlled, quantitative stress measures might have circumvented some post-PANE objections

Even as the body of literature has grown voluminous confirming the psycho-social impacts of environmental hazards, there is little influence on administrative decisions: it is as if the reality of such impacts were the subject of a systematic social denial


(assuming they proved sensitive to impacts), cross examination would merely have shifted to the myriad lines of attack available against any quantitative field study (that is, questioning sampling, measurement, data collection, analysis, and interpretation), creating different lines of confusion for decision makers. We might also blame the judges, as do Freudenburg and Jones (1991, pages 1162–1163) in their critique of the Supreme Court’s PANE decision: “The relevant question, in fact, may have to do not with the capabilities of social sciences, but with the capabilities of courts, particularly for dealing with the range of problems that appear to have accompanied many of the technological developments of recent decades.” Indeed, a concentrated effort to prepare ALJs to weigh SIA issues and methods is needed if decisions are to address psycho-social impact logically. The adjudicatory process is another factor. The structure of the administrative process disfavors interveners. Applicants often well financed and knowing their plans in advance have lots of lead time. Troublesome impacts are overlooked unless raised by interveners with access to available and affordable expertise. At the Issues Conference that opens a hearing; interveners must show standing and preview issues that might lead to permit denial or modification. Facing this deadline, interveners triage all but their strongest issues. Regardless of their merit, it is likely that psycho-social impacts often end up on cutting room floors or, offered without proof, are sacrificed to certain denial. Then there is the adversarial nature of our truthfinding processes. Are there alternatives? When CECOS initially approached the author to serve as their expert, not wanting to be forced into a limiting role, he proposed working with the court to create a consensual study of psycho-social impact. CECOS never responded and the author ended up as expert for the opponents. A future ALJ interested in advancing this issue might construct just such an approach. There are also matters of advocacy and expertise and the confusion of subjectivity and objectivity regarding project impacts. The author’s advocacy in the original Turi hearing was cited as a biasing factor, despite his use of social science approaches for assuring objectivity and, in the matter of his promise of confidentiality, because of them. Thus, a volunteer advocate expert was considered biased when paid experts were deemed objective. A more honest approach would recognize the vested interests of all experts and equally consider their efforts to offset bias. The importance of this balanced perspective is evident in instances where citizen interveners must rely on motivated activist experts willing to volunteer or receive modest compensation. Judicial suspicion of advocate experts thus becomes a bias against the intervener’s case. 201


Similarly, the latent bias against subjectivity essentially stigmatizes most sources of information about psycho-social impact. One positive outcome of PANE is that there seems to be little dissent from the view that psychosocial impacts can be assessed under NEPA and its state analogs. In practice, however, the issue is rarely studied or even included in the scope of study. Moreover, the intent that decision-makers balance social, economic and environmental considerations is not consistently practiced. These failures assure that agencies have little experience with the topic and are unlikely to advocate for psycho-social impacts as an issue. While the adjudicatory process is technically independent from the assessment process, active assessment of psycho-social impacts would likely enable adjudication by framing disputed facts. Outside a parallel to the CECOS instance of a siting board promoting ‘public interest,’ psycho-social impacts are mostly irrelevant to the permit requirements considered by regulatory agencies. Unless environmental impact review is better linked to adjudication, there is often no basis for proposing this issue despite its poignancy in the community. In contrast to either environmental impact assessment or adjudication, psycho-social impacts have proven influential in toxic tort litigation, ranging from Ayers vs Jackson Township in the early 1980s, where half of the US$15 million award rested on the independent work of Michael R Edelstein (1981; 1988a; 2003) and Margaret Gibbs (1982) to the recent citation of work by Steve Piccou and Duane Gill in determining punitive damages in the Exxon Valdez case (Holland, 2002). In this Civil Court venue, judges are more accustomed to social science issues and expert testimony; juries empathize with victims; people’s rights are salient; and the focus is on damage already done, not prospective damage that might occur. The administrative court is a decidedly different context. As new lines of argument such as environmental justice take root in the regulatory consideration, they may offer new avenues for arguing psycho-social impacts in this context. Fundamentally, the denial or weightlessness of psycho-social impact assessment is rooted in deep social value conflict. The bottom line impediment of Jorling’s ruling that need for permitted facilities trumps community distress would remain, no matter whether impacts were identified through qualitative or quantitative methods and defined narrowly as ‘true’ stress or more broadly. Although not without importance, these are professional side issues. The central issue, acknowledged by Jorling, is that a full and detailed accounting of the human costs associated with technological progress would jeopardize core values of modern society, namely the tradeoff of progress and risk. Herein is the radical dimension of psycho-social impact. It represents a tool for unveiling the deconstructionist ‘risk society’ and is therefore a decided

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threat to the modern paradigm (Olsen et al, 1993; Milbrath, 1984; Beck, 1992). Psycho-social impacts must therefore be rendered invisible, not admitted as evidence and weighed in decisions. This technocratic thinking reflects a broader social learning failure of modern society favoring the blind maintenance of systems over democratic and anticipatory innovation (Botkin et al, 1979). In the end, advocacy for the full weighing of psycho-social impacts is necessary for reasons beyond the desire to fully understand change and predict consequences, to give consideration to the potential victims of progress, or to bring authenticity to regulatory review. SIA, in this instance, is a prime means for balancing the technocratic bias with critical social learning, the very goal that led the American Congress to promulgate the National Environmental Policy Act (NEPA, 1969) in the first place.

Notes 1. Although I use psycho-social and psychological impact equivalently here, the former term is broader and case law more often refers to the latter. 2. Freudenburg and Jones (1991, pages 1162–1163) debunk this “Supreme Court hypothesis,” disproving the relationship between opposition and stress. 3. Subsequently, the author has warned respondents that they would be identified. Note also the protracted battle between researchers and Exxon over the release of sources for psycho-social impact studies of the Exxon Valdez accident (see Picou, 1996a; 1996b; Picou and Rosebrook, 1993). 4. The author’s testimony was prepared at the request of the New York law firm of Milbank, Tweed, Hadley and McCloy. 5. Five groups were recruited from the CECOS area through random phone calls. A sixth group involved key informants, leaders or active members of the citizen interveners. The sample represented a cross section of the community in terms of activism and concern, employment, income, location, age and sex. Additionally, the firm of Goldhaber Research Associates was hired to employ a 35-item survey instrument developed by the author to collect a proportionate 10% sample randomly drawn from reverse telephone directories listing 2,800 residents in three target neighborhoods downwind and near to CECOS, selected for a history of complaint about CECOS. 6. Covello 1988; also SCRF #6 hearing transcripts, Volumes 30 and 31; for Gatchel’s testimony, Volume 34; Edelstein 1988b and Volumes 32 and 33. 7. Note the author is President of Orange Environment.

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