9.1 Inconsistencies of a complex legal system
9.1.2 The paradigmatic battle
Spatial planning and environment protection have separate legislation which is essentially based in different paradigms. The precautionary principle is claimed to be a cornerstone of rational ecological governance (Lundqvist, 2004). The interpretation of the principle and the clash between seeing it as mainly reflecting scientific uncertainty versus a deliberative issue is one example of paradigmatic difference that the 3G case illustrates.
The Planning and Building Act handles many conflicting interests of which the environment is one. The PBA committee states that the Planning and Building Act offers fitting means to balance the pillars of sustainable development (SOU 2005:77, p 197f.).
“The concluding judgment of the committee is that the planning and building legislations’ purpose, fundamental structure, responsibility distribution and decision processes in high extent correspond with the fundamental components for sustainable development, and that the legislation offers suitable instruments for treating different goals and interests, mainly at municipal level.” (SOU 2005:77 p 197)
The question of whether or not the electromagnetic radiation is hazardous is of interest here.
When a phenomenon like the radiation is debated, it is the expert knowledge of the natural sciences that is given the task to tell if it is hazardous or not, or to which extent and in which cases it is etc. When the effect is undetermined, risk levels are put up, as a way to handle the issue, and to communicate it to decision-makers facing the issue of having to make decisions based on if the radiation is dangerous or not. This is when the precautionary principle of environmental law can be introduced. This principle expresses the idea of being cautious when there is an uncertainty whether or not an activity is hazardous or not. This has been discussed in relation to long term effects of the electromagnetic radiation from mobile
telephone masts. It is however likely that the aspects of being cautious competes with other values or driving forces in a political arena.
Emmelin and Lerman (2006) conclude in a report to the “Responsibility Committee”
(Ansvarkommittén), a parliamentary commission, that the term “sustainable development” is used to create a comprehensive consensus regarding the development of society. The idea is that consensus of where we are going simplifies the issues to become a matter of knowledge production, to the remedy the problem. A problem with “sustainable development” as a term to create consensus around is therefore its ambiguousness, the various meanings tied to the term, that “…consensus regarding ‘sustainable development’ does not bring consensus regarding the character of the problems and even less regarding concrete measures” (ibid p 61). Emmelin and Lerman criticize the fact that the term is handed over to expert’s interpretation and influence, where an “environmental engineering” is developed as a successor to social engineering, rather than in interplay between politics and science.
The plan paradigm and the environmental paradigm do not necessarily share the same view of sustainable development (Emmelin & Lerman 2006 p 21 ff.). For instance, the PBA committee regarded the balancing of sustainable development to be fitting well with the Planning and Building Act (SOU 2005:77, p 197f.), and the Environmental Code focus the ecological aspects of the sustainable development. (Emmelin & Lerman 2006 p 115). The PBA controls the process, the form, rendering in the question of whether or not this process has been followed. This allows social norms to be represented within the process. This can be seen in contrast to the natural scientific segments of knowledge represented in the environmentalist paradigm, represented by the Environmental Code, and the radiation issue when handled as in the appealed building permit cases under PBA controlled permit process, where the natural scientific norms take over, becomes the legitimate knowledge communicated into the legal sphere, attempting to display the content of the matter (as opposed to the form), answering the question of what is hazardous and what is not to human health and the environment. The radiation issue displays how the environmentalist expert based paradigm excludes a question from the assessment of the 3G masts.
The precautionary principle expresses a decision making strategy that borders both science and politics, both calculating rationality and deliberative rationality. When applied, the precautionary principle listens to the public opinion, the not yet completely corroborated beliefs, and the evidence pointing in a direction without being scientifically beyond all doubts certified. With it follows a slight displacement of who has to prove what is hazardous, meaning that the active part, the entrepreneur has to prove (or corroborate) that the activity is not hazardous. That is, if it is applied.
The handling of the precautionary principle in the 3G case lies with the calculating, expert base, rather than the deliberative, communicative paradigm. This accentuates the political element of when and how the precautionary principle should be applicable. There is a part of the radiation issue that is rationality defining. The legal system contributes in defining what knowledge is to be used, pointing at the environmentalist paradigms, which decides the adequate knowledge for being the basic data for the decision making. One could say that the inherent norms of the paradigms of governance form an epistemological forefinger, pointing at the desired knowledge. This is an expression of a power struggle of whose version of reality that should apply, and reach legal legitimacy. What is regarded as true is one thing, and what is true is another. The two can be more or less closely related. The precautionary principle, it seems, could be applied in the 3G case, but is not. There is therefore not only a
scientific matter if the principle should be applied or not, and neither is it mere a legal interpretation that can answer if it should be applied or not.
Part of the problem concerns the communication between social norms, natural scientific norms, and the legal norms: all of which of different epistemological representation, written, calculated or socially present, and different norms seems to reach legitimacy at different levels of the planning and environmental administration. This can for instance be illustrated by the question of where in the permit process what knowledge is legitimate. The balancing aspects of the plan paradigm decreases as the matter becomes a legal case, the participatory knowledge is left out, to the benefit of expert based knowledge and the binary ruling of the judicial system.
When it comes to the handling of the radiation issue above the local level the norm, in its sociological sense, is that knowledge for a correct decision can only be found in the results of natural scientific research (which on its hand can be both contradictive and heterogeneous).
This norm gives the imperative for the action that this is the way to retrieve the answer, in this case meaning that the chosen expertise (the National Radiation Protection Agency) sets up radiation levels which the court interpret as when not exceeded, the radiation is not dangerous, and hence the fear of radiation not a legitimate reason for denial of mast building permit.
The norm for decision making at the local level of the permit process is that knowledge for a correct and good decision in part has to be retrieved from the public, and the opinions of the concerned parties, such as neighbours and others. This leads to a balancing of sometimes conflicting values, wills, and attempts to run the process, an attempt of a consensus based decision, rather than an expert based.
The conclusion is that the radiation issue has not been handled in the 3G case. It has rather been shut out, and avoided by all means. The question has been handled as an expert decision, not as a deliberative. From the Swedish environmental management and planning point of view the radiation fearing simply are wrong.
The extreme coverage requirement for the 3G system in combination with the inherent inflexibility of the radio planning can partly explain the inflexibility of the roll out. This combination has given no room for the local planning to be flexible of where to locate the base stations. This is likely a part of the setting that has put the radiation issue at its edge.
From a socio-legal point of view one can say that this is a hesitating matter, existing law could choose either way, and the outcome of this choice may well depend on non legal factors such as politics. It may be a matter of what is considered the most important for the time being, economical growth and development, or environmental and human health concern.
Those who feel that they have been overrun by the first, and wish the decision had leaned towards the latter can perhaps take a little comfort in that they are not alone. The trend is global. Research shows that despite community protests against installation of base stations, the authorities tend to decide in favour of telecom companies because the radiation levels used by these masts are usually under formal legal limits (Castells et al. 2006, p 115).