Annals of Health Law
ENHANCING COMMUNICATION
prime example of such a risk would be those experienced by communities
that surround facilities that conduct dangerous scientific research.
Three decades ago, Professor Barry R. Furrow proposed that private tort
remedies might be a good way for members of the community to regulate
the hazards of modern scientific research, arguing that “common law
nuisance entitlements can be redefined to cope with the risks of modern
science and technology, then coupled with the use of complex injunctive
decrees to provide a prophylactic means of governing hazard[,]” while also
“provid[ing] an existing mechanism for asserting a risk-averse approach to
new scientific and technological activities.”113 Although the purpose of this
argument was to introduce public value judgments to regulation and public
decision-making in a rational and organized fashion, a more direct (and less
adversarial) form of public participation in regulating community hazards
associated with dangerous research better serves the interest of protecting
the public’s general welfare.114 Decision-makers in the emergency
management community appear to agree with this more direct approach and
have urged state and especially local governments to engage community
partners in the public, private, non-profit, and faith-based sectors in their
emergency management and preparedness activities.115
Enhanced communication and collaboration between scientists,
government officials, and the lay public provides the best way to ensure that
scientific research on dangerous biological agents intended to promote and
protect the public’s welfare is conducted in a way that also promotes and
protects the public’s welfare. Such multi-stakeholder interfacing provides a
mechanism for scientists to better grasp the human and societal implications
of their work and to better understand and empathize with the communities
in which they work, for government officials to make informed decisions,
and for community members to express their concerns and to learn how
some of these concerns may be misplaced. Incorporating such multi-
113. Barry R. Furrow, Governing Science: Public Risks and Private Remedies, 131 U.
PA. L. REV. 1403, 1466 (1983).
114. Nuisance suits are also notoriously difficult for plaintiffs to win, given the
numerous elements and sub-elements necessary to make a prima facie case. See generally
RESTATEMENT (SECOND) OF TORTS §§ 827-28 (1979); and George P. Smith, Re-Validating
The Doctrine of Anticipatory Nuisance, 29 VT. L. REV. 687 (2005).
115. U.S. DEPT’ OF HOMELAND SECURITY, THREAT AND HAZARD IDENTIFICATION AND
RISK ASSESSMENT GUIDE: COMPREHENSIVE PREPAREDNESS GUIDE (CPG) 201 9-10 (Apr.
2012), available at www.fema.gov/library/viewRecord.do?id=5823 (“As the impacts of a
threat or hazard affect more than the public sector, the jurisdiction should work with their
whole community partners, including the private and nonprofit sectors and faith-based
organizations, to gain a full understanding of all of the impacts to the community.”); Public
Health Preparedness Capabilities, supra note 12, at 16-26 (“Community Preparedness” and
“Community Recovery”).
