In praise of conflict | Jonathan Marks

50,736 views ・ 2017-05-08

TED


Please double-click on the English subtitles below to play the video.

00:12
Twenty years ago,
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when I was a barrister and human rights lawyer
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in full-time legal practice in London,
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and the highest court in the land
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still convened, some would say by an accident of history,
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in this building here,
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I met a young man who had just quit his job
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in the British Foreign Office.
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When I asked him, "Why did you leave,"
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he told me this story.
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He had gone to his boss one morning and said,
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"Let's do something about human rights abuses in China."
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And his boss had replied,
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"We can't do anything about human rights abuses in China
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because we have trade relations with China."
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So my friend went away with his tail between his legs,
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and six months later, he returned again to his boss,
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and he said this time,
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"Let's do something about human rights in Burma,"
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as it was then called.
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His boss once again paused
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and said, "Oh, but we can't do anything about human rights in Burma
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because we don't have any trade relations with Burma."
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(Laughter)
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This was the moment he knew he had to leave.
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It wasn't just the hypocrisy that got to him.
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It was the unwillingness of his government
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to engage in conflict with other governments,
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in tense discussions,
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all the while, innocent people were being harmed.
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We are constantly told
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that conflict is bad
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that compromise is good;
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that conflict is bad
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but consensus is good;
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that conflict is bad
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and collaboration is good.
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But in my view,
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that's far too simple a vision of the world.
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We cannot know
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whether conflict is bad
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unless we know who is fighting,
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why they are fighting
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and how they are fighting.
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And compromises can be thoroughly rotten
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if they harm people who are not at the table,
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people who are vulnerable, disempowered,
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people whom we have an obligation to protect.
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Now, you might be somewhat skeptical of a lawyer
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arguing about the benefits of conflict
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and creating problems for compromise,
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but I did also qualify as a mediator,
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and these days, I spend my time giving talks about ethics for free.
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So as my bank manager likes to remind me, I'm downwardly mobile.
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But if you accept my argument,
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it should change not just the way we lead our personal lives,
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which I wish to put to one side for the moment,
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but it will change the way we think about major problems
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of public health and the environment.
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Let me explain.
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Every middle schooler in the United States,
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my 12-year-old daughter included,
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learns that there are three branches of government,
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the legislative, the executive and the judicial branch.
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James Madison wrote,
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"If there is any principle more sacred in our Constitution,
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and indeed in any free constitution,
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than any other,
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it is that which separates
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the legislative, the executive and the judicial powers."
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Now, the framers were not just concerned
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about the concentration and exercise of power.
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They also understood the perils of influence.
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Judges cannot determine the constitutionality of laws
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if they participate in making those laws,
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nor can they hold the other branches of government accountable
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if they collaborate with them
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or enter into close relationships with them.
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The Constitution is, as one famous scholar put it,
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"an invitation to struggle."
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And we the people are served
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when those branches do, indeed, struggle with each other.
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Now, we recognize the importance of struggle
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not just in the public sector
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between our branches of government.
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We also know it too in the private sector,
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in relationships among corporations.
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Let's imagine that two American airlines get together and agree
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that they will not drop the price
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of their economy class airfares below 250 dollars a ticket.
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That is collaboration, some would say collusion,
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not competition,
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and we the people are harmed
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because we pay more for our tickets.
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Imagine similarly two airlines were to say,
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"Look, Airline A, we'll take the route from LA to Chicago,"
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and Airline B says, "We'll take the route from Chicago to DC,
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and we won't compete."
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Once again, that's collaboration or collusion instead of competition,
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and we the people are harmed.
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So we understand the importance of struggle
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when it comes to relationships between branches of government,
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the public sector.
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We also understand the importance of conflict
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when it comes to relationships among corporations,
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the private sector.
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But where we have forgotten it
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is in the relationships between the public and the private.
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And governments all over the world are collaborating with industry
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to solve problems of public health and the environment,
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often collaborating with the very corporations
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that are creating or exacerbating the problems they are trying to solve.
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We are told that these relationships
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are a win-win.
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But what if someone is losing out?
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Let me give you some examples.
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A United Nations agency decided to address a serious problem:
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poor sanitation in schools in rural India.
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They did so not just in collaboration with national and local governments
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but also with a television company
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and with a major multinational soda company.
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In exchange for less than one million dollars,
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that corporation received the benefits of a months-long promotional campaign
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including a 12-hour telethon
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all using the company's logo and color scheme.
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This was an arrangement
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which was totally understandable
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from the corporation's point of view.
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It enhances the reputation of the company
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and it creates brand loyalty for its products.
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But in my view,
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this is profoundly problematic for the intergovernmental agency,
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an agency that has a mission to promote sustainable living.
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By increasing consumption of sugar-sweetened beverages
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made from scarce local water supplies and drunk out of plastic bottles
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in a country that is already grappling with obesity,
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this is neither sustainable from a public health
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nor an environmental point of view.
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And in order to solve one public health problem,
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the agency is sowing the seeds
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of another.
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This is just one example of dozens I discovered
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in researching a book on the relationships between government and industry.
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I could also have told you about the initiatives in parks
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in London and throughout Britain,
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involving the same company, promoting exercise,
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or indeed of the British government creating voluntary pledges
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in partnership with industry
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instead of regulating industry.
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These collaborations or partnerships have become the paradigm in public health,
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and once again, they make sense from the point of view of industry.
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It allows them to frame public health problems and their solutions
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in ways that are least threatening to,
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most consonant with their commercial interests.
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So obesity becomes a problem
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of individual decision-making,
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of personal behavior,
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personal responsibility and lack of physical activity.
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It is not a problem,
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when framed this way,
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of a multinational food system involving major corporations.
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And again, I don't blame industry.
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Industry naturally engages in strategies of influence
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to promote its commercial interests.
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But governments have a responsibility
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to develop counterstrategies
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to protect us
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and the common good.
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The mistake that governments are making
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when they collaborate in this way
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with industry
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is that they conflate
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the common good
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with common ground.
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When you collaborate with industry,
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you necessarily put off the table
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things that might promote the common good to which industry will not agree.
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Industry will not agree to increased regulation
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unless it believes this will stave off even more regulation
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or perhaps knock some competitors out of the market.
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Nor can companies agree to do certain things,
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for example raise the prices of their unhealthy products,
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because that would violate competition law,
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as we've established.
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So our governments should not confound
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the common good and common ground,
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especially when common ground means reaching agreement with industry.
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I want to give you another example,
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moving from high-profile collaboration
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to something that is below ground
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both literally and figuratively:
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the hydraulic fracturing of natural gas.
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Imagine that you purchase a plot of land
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not knowing the mineral rights have been sold.
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This is before the fracking boom.
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You build your dream home on that plot,
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and shortly afterwards,
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you discover that a gas company is building a well pad on your land.
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That was the plight of the Hallowich family.
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Within a very short period of time,
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they began to complain of headaches,
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of sore throats, of itchy eyes,
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in addition to the interference of the noise, vibration
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and the bright lights from the flaring of natural gas.
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They were very vocal in their criticisms,
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and then they fell silent.
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And thanks to the Pittsburgh Post-Gazette, where this image appeared,
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and one other newspaper, we discovered why they fell silent.
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The newspapers went to the court and said, "What happened to the Hallowiches?"
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And it turned out the Hallowiches had made a secret settlement
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with the gas operators, and it was a take-it-or-leave-it settlement.
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The gas company said,
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you can have a six-figure sum
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to move elsewhere and start your lives again,
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but in return
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you must promise not to speak of your experience with our company,
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not to speak of your experience with fracking,
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not to speak about the health consequences
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that might have been revealed by a medical examination.
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Now, I do not blame the Hallowiches for accepting
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a take-it-or-leave-it settlement
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and starting their lives elsewhere.
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And one can understand
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why the company would wish to silence a squeaky wheel.
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What I want to point the finger at is the legal and regulatory system,
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a system in which there are networks of agreements
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just like this one
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which serve to silence people and seal off data points
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from public health experts and epidemiologists,
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a system in which regulators
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will even refrain from issuing a violation notice
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in the event of pollution
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if the landowner and the gas company
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agree to settle.
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This is a system which isn't just bad from a public health point of view;
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it exposes hazards to local families
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who remain in the dark.
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Now, I have given you two examples not because they are isolated examples.
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They are examples of a systemic problem.
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I could share some counterexamples,
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the case for example of the public official
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who sues the pharmaceutical company
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for concealing the fact
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that its antidepressant increases suicidal thoughts in adolescents.
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I can tell you about the regulator who went after the food company
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for exaggerating the purported health benefits of its yogurt.
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And I can tell you about the legislator
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who despite heavy lobbying directed at both sides of the aisle
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pushes for environmental protections.
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These are isolated examples,
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but they are beacons of light in the darkness,
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and they can show us the way.
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I began by suggesting that sometimes we need to engage in conflict.
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Governments should tussle with,
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struggle with, at times engage in direct conflict with corporations.
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This is not because governments are inherently good
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and corporations are inherently evil.
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Each is capable of good or ill.
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But corporations understandably act to promote their commercial interests,
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and they do so either sometimes undermining or promoting the common good.
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But it is the responsibility of governments
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to protect and promote the common good.
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And we should insist
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that they fight to do so.
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This is because governments
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are the guardians
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of public health;
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governments are the guardians
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of the environment;
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and it is governments
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that are guardians
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of these essential parts of our common good.
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Thank you.
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(Applause)
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