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Whose liability is it anyway?

The environmental impact assessment (EIS) for introducing non-native oysters to the Chesapeake Bay includes a piece that examines ecological risks. As the EIS grinds toward its conclusion, a draft ecological risk analysis is being circulated. It summarizes a lot of scientific research that was undertaken specifically to answer a set of questions about ecological risks that was developed by the National Research Council when the EIS began.

This can be thought of as the assessment of the "known unknowns" as Donald Rumsfeld once had it. We have seen from Mr. Rumsfeld's experience that the unknown unknowns can be more devilish than the known unknowns, once the experiment gets going. But that is a different story. Maybe.

The ecological risk assessment is still a work in progress and it is not my purpose to scoop its authors, here. My question is more fundamental than their assessment of risky outcomes. What I wonder is, independent of the actual probabilities of risky outcomes from the introduction of a non-native oyster, who will be liable for the costs that those risks imply? If any of the ecological risks of the introduction turn into actual outcomes, and if someone suffers harm from them, who would be held accountable? Who ya gonna sue?

Out in the private sector, people handle risk by insuring against an uncertain future. Whether as individuals or as companies, we are liable for outcomes that result from something that we did. To deal with this, we typically enter into a contract with an insurer, who then spreads that risk among a lot of different insurance buyers. The insurance company makes money on this through the magic of large numbers and we are all made better off in the deal. When something bad happens, the person who suffered harm can get compensated and we don't lose everything in the process.

But in the case of the non-native oyster introduction, the action is being undertaken by the State. And, as much as people and, especially, politicians talk about accountability in government, it is pretty difficult to hold the State liable for harm. This is quite interesting if you think about it. The State requires that we all have liability insurance in order to drive a car, even if we have been driving without an accident for forty years. Companies who build anything for the State have to get bonded, to indemnify them and the State if anything bad happens during their project. But in a matter as risky as introducing a non-native oyster to the Chesapeake Bay (and, consequently, to the East Coast of the United States), as well as I can figure, nobody bears any liability for potentially bad outcomes.

I suppose that one might find a lawyer somewhere willing to argue that the scientists who told the government officials that it was not very risky to colonize the Bay with a non-native oyster should be held liable. But, since scientists don't as a rule have very deep pockets, that is not a very practical way to insure against this risk.

Wouldn't it be better if, before we introduced the non-native oyster to the Chesapeake Bay, we all agreed that the State should indemnify the general public from any harm that might result from this action? Then, the Comptroller for the State could go ask one of the principals at Lloyds of London how much we would have to pay each year to insure the State against potential losses. The folks at Lloyds have been making these sorts of bets for a long time, and I suspect that one could be found who would be willing to give us a price for full liability protection. It might be an easy price. Or it might be an attention-getting high price.

We do hear a lot of talk about accountability in government. Here is a chance to put that talk into action. Whether it is high or low, paying the price of indemnifying the public against possible losses from the non-native oyster introduction would improve on the current situation, wherein nobody is liable. If the risks are all that low, where is the harm in that?

RW