Guidance on reopening the economy
Policymakers should look to environmental legislation as a model, and involve the public.
Getting things back up and running during a pandemic is no easy task, especially as opinions vary on how to tackle dual public health and economic crises. For policymakers, there are lessons to be learned from the development of environmental legislation.
It's one thing to rely on public-health satistical modeling for coronavirus forecasts. But it takes legislative tools to guide provincial authorities. That's where environmental legislation could serve as a model, as it has had to wrangle, for decades, with how best to mitigate the impacts of economic development.
The cornerstone of any environmental impact assessment legislation is public consultation—a concept sorely missing from Canadian public health legislation. By engaging in consultations, provincial representatives can benefit from enhanced data gathering, improved representation of marginalized communities, more creative solutions, and the promotion of better public engagement in pandemic-compliant behaviour.
In 2006, the U.S. National Academies of Science Forum on Microbial Threats held a workshop to explore the legal and ethical considerations for legislators to consider when managing a pandemic. With SARS as a mental model, researchers examined how legislation should be developed to address a range of issues, from mandatory isolations and quarantines to distancing measures. Although they didn't address shutting down and reopening the economy, they established certain guiding principles in influencing public behaviours. Chief among them was the need for public consultation. As Martin Cetron of the Centers for Disease Control, and Julius Landwirth of the Yale Interdisciplinary Center for Bioethics and Donaghue Initiative in Biomedical and Behavioral Research Ethics wrote in their symposium paper, public consultation is needed to balance the rights of the individual with the interests of the community:
"To address this potential dichotomy, the principles require ensuring opportunity for informed community participation in the development of policies, programs, and priorities, accessibility to basic resources and conditions necessary for health, and protection of confidentiality."
In weighing the opening up of the economy with the health of Canadians, provincial governments have failed to engage in broad-scale public consultation campaigns. Is it right to gain two percentage points in GDP, if that increase in GDP costs two lives? How about twenty lives, or a hundred? How do we quantify and rate relative values in the public interest? And how are governments accounting for the differential impacts among marginalized communities, such as those working in factories or long-term care facilities, or undocumented migrant farm-workers?
Without established and agreed-upon criteria, governments may later be called out for brash decision-making. Lawrence Gostin and Benjamin E. Berkman at the Georgetown University Law Center emphasize the need for public participation during pandemic management:
"Ideally, questions of government authority and accountability should be answered by policy decisions made in an open and transparent process that encourages input from all portions of society and that is carried out before a pandemic hits. Governments should explicitly define who has the power to order social distancing strategies and for what period of time. Governments should also clearly state the criteria under which such power is exercisable and delineate the legitimate bases for any differential treatment. Penalties should be proportional to offenses and not based on irrational fears or discriminatory beliefs."
Public consultations in modern environmental impact legislation are also useful for guidance on government authority and accountability during the management of a pandemic. They are conceived to weigh the imperatives of economic development against the best interests of human health and the environment. Canada's new Impact Assessment Act contains robust provisions for public consultation and even tasks a government agency with ensuring meaningful public participation.
Of course, public consultation can take many forms, and run the gamut from doing little more than providing information to shifting the locus of decision-making. In a review of the use of public participation in environmental impact assessments, Ciaran O'Faircheallaigh, a researcher at the Department of Politics and Public Policy at Griffith University, explores their purposes, utility and relevance to making informed decisions on economic development projects. Following their schema, most provincial authorities in Canada have shared relevant information with the public (e.g. providing data on new daily cases of COVID-19).
Perhaps a more democratic approach would be to provide opportunities for meaningful engagement on what those data mean, projections for future cases, associated deaths, and avenues to provide input on possible mitigation measures. This would, as O'Faircheallaigh puts it, "alter the distribution of power and structures of decision-making" or, at the very least, "assist with problem solving by suggesting ideas, concepts, solutions and resources that can be used to address complex social issues."
What's more, O'Faircheallaigh writes, public participation advances social, organizational and learning opportunities for citizens to improve their understanding of one another, "and to engage in the collective decision making at the heart of democracy."
Some public officials may decry the requirements of active public participation as impeding timely implementation of health and economic policy, leading to paralysis in times of crisis. However, O'Faircheallaigh cautions that making important society-altering decisions without public input can fuel public cynicism, in turn causing citizens to withdraw from participating in broader societal efforts. As the Great Mask Debate reminds us, society relies on us making individual behavioural changes for the common good.