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3.2.10

The Right to Choose the Lesser Evil

I recently finished Kristin Shrader-Frechette's book Environmental Justice, which aims to apply the sort of liberal-egalitarian perspective dominant in political philosophy -- her particular version is referred to as the "Principle of Prima Facie Political Equality" -- to cases such as hazardous waste dump siting. I found her chapter on paternalism and the case of nuclear waste storage facilities on Native American land helped to clarify some of my own thinking by contrast with her perspective.

In the chapter in question, Shrader-Frechette uses the case study of tribes like the Skull Valley Goshute and Mescalero Apache who have applied to host Monitored Retrievable Storage (MRS) facilities for nuclear waste to examine when we can exercise justified paternalism toward people who seem to be taking a risk onto themselves. Paternalism involves restricting someone's behavior for their own (alleged) good. Shrader-Frechette concludes that we can paternalistically block tribes from hosting these facilities. I think we cannot.

Much of the chapter (like a number of other chapters) actually consists of attempts to do an end-run around the chapter's ostensible theoretical focus, for example by raising allegations that the tribe's "consent" to the MRS facility was illegitimately strong-armed through by a pro-nuclear minority. This may well be true, and would certainly justify her desired conclusion for this particular case -- no MRS on Native land -- but would also make this case irrelevant to the question of paternalism. So let's focus on whether paternalism would be justified if a tribe were to legitimately and democratically (however we end up defining that) seek out the establishment of an MRS facility. We can also stipulate that the risks will accrue to the host tribe only, as the possibility of effects on third parties is raised as a non-paternalistic reason to block the tribes from accepting an MRS facility. Shrader-Frechette's discussion is also somewhat clouded by her view that people in the eastern US, as the primary beneficiaries of nuclear power, ought to accept the risks of storing the waste -- so finding a way to block storage in the west would help force easterners to accept what she sees as their obligation to host.

Shrader-Frechette argues that the core issue is whether the tribe's decision meets the standards for informed consent, on an analogy to the medical field. I agree. We also agree that were someone to be grossly misinformed, their informed consent would be compromised. Neither she nor other authors I've read writing about the Skull Valley Goshutes and Mescalero Apaches raise misinformation as a major concern in this case. Were it so, it would generally only justify attempts to correct the misinformation, though paternalism may be justified if the misinformed person is in immediate danger of making an irreversible decision on the basis of the misinformation (Shrader-Frechette uses the example of tackling a person about to unknowingly walk off a cliff).

Where we disagree is our analysis of what constitutes the consent part of informed consent. Shrader-Frechette defines a free choice in terms of having at least one other reasonable alternative. Thus she concludes that very poor people are unable to give informed consent to economic offers that come with significant risks. They are, in her view, essentially coerced by their poverty into accepting a deal that someone who had the option of a decent income without the accompanying risk would not accept. She applies this reasoning equally to poor black communities in other chapters.

From my point of view, the justification for the informed consent requirement rests on people's right to decide for themselves what situations they prefer. No outside authority can dictate to me what I ought to like better between several options. Thus, the criterion for evaluating whether someone is making a free choice is to ask whether they had the ability to decide which option they like better, and the opportunity to select that preferred option. Free choice may be compromised by factors that impair one's ability to make rational decisions about one's own fate -- say being overwhelmed by emotion, or pathologically emotionless (a la Phineas Gage) -- though the burden of proof is on the aspiring paternalist. But nothing about the absolute or relative attractiveness of the various options being evaluated can compromise the freedom of choice. Thus, people have a right to choose the lesser of two evils, if the only options available to them are evils. This principle for me settles the version of the tribal MRS case at issue here even without getting into the issue of tribal sovereignty.

Shrader-Frechette's analysis creates the weird situation that having a lesser evil that is clearly lesser than the greater evil status quo is grounds for rejecting the lesser-evil-chooser's right to choose. If the nuclear companies offered the tribes a worse deal in terms of economic compensation, it seems that the deal would be less coercive in the sense Shrader-Frechette is concerned about, since it does less to alleviate the tribe's desperate poverty, and paternalism would be less justified -- a rather odd result. Recognizing that one of the available options is much better than the other is to me an expression of free choice, not a coercive situation. Shrader-Frechette's reasoning seems to suggest that if a decision is obvious (and hence predictable) it wasn't free because no-one in their right mind would have done otherwise.

Consider a more classic case of alleged coercion-by-skewed-options: someone puts a gun to your head and makes a trustworthy promise that they will shoot you if, and only if, you fail to eat a piece of uranium. Obviously this is a bad situation to be in. But if "get shot" and "eat uranium" are my only options, it seems that I ought to have a right to save myself by eating the uranium (and a right to refuse and get shot if the prospect of contracting cancer later in life is sufficiently horrifying to me). For a paternalist to try to protect me from cancer by stopping me from choosing to eat the uranium would just leave me dead of a gunshot. Similarly, for a paternalist to stop the Skull Valley Goshute or Mescalero Apache from accepting an MRS facility would just leave them poorer -- which, in the version of the case we're considering here, they've told us is the option they like less.

In the gun case, the obvious solution is to somehow remove the gun from the picture. Then our options are "don't eat it and live" or "eat it." In this case you wouldn't need a paternalist to stop you from eating it (though I also think you'd have a right to eat it if that's what you genuinely wanted to do). When someone is choosing a lesser evil because they don't have a good option, the best response is to give them a better option. So rather than paternalistically blocking tribes from accepting MRS facilities, we should be trying to correct the problems of land degradation and lack of economic opportunity that make accepting an MRS facility the most attractive option. I'm sure Shrader-Frechette would agree that fixing the background conditions in this way would be great. Where we disagree is what to do about the choice to host an MRS facility given that the background conditions are not yet fixed.

The principle of a right to choose the lesser evil applies in other contexts. I originally started thinking this way when considering people forced by economic necessity into prostitution. Faced with the options of "poor but no sex with strangers*" versus "making ends meet but with sex with strangers," a person has the right to decide they'd prefer the latter. To react to the acknowledged ceteris paribus badness of sex with strangers by trying to prevent the person from engaging in prostitution just makes their situation worse by forcing them into the option that they have already declared to be the worst. If you are really concerned that economic necessity is forcing people into prostitution, the solution is to create non-prostitution options for them to make ends meet. This is, admittedly, quite difficult. But if you can't accomplish it, then you have to accept that people can make their own choice about which evil is the lesser.

One caveat to this discussion is that I can imagine situations in which blocking the lesser evil creates an opening for an even better option. This is often raised as a rationale for drug testing student athletes. If the options are "say no, and lose the respect of your peers" versus "do drugs and gain their respect," many students may find doing drugs to be the lesser evil. But if drugs are banned, that may lead the peers in question to cut a non-user some slack (because they respect "I don't want to get kicked off the football team" as a more legitimate comeback than "I'm high on life"), making the options "say no and still retain the respect of your peers" and "do drugs and get extra respect." In this sort of case, though, a well-informed chooser would -- if asked -- request the paternalistic ban. Nothing that Shrader-Frechette, or any other author I've read, says suggests that this sort of situation applies to tribes seeking MRS facilities. The effect of a ban on MRS facilities on Native land would be to narrow, not reconfigure, their available options.


*Take "sex with strangers" to be my awkward way of shortening "sex with people they wouldn't have had sex with for its own sake but are willing to for money."

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