When Science Meets Responsibility: The Major Risks Commission and the L’Aquila Earthquake
Published online by Cambridge University Press: 20 January 2017
This article aims to analyse the role of law in the identification of the responsibility domain of ‘regulatory science’ (Jasanoff, 1990) within the risk regulatory process. The main research question is therefore,what kindof relationshipbetween science andpolicy-making lawshould design in risk regulation.
In order to address this issue, this contribution focuses on the recent verdict of the Tribunal of L’Aquila. After the earthquake occurred in L’Aquila on the 6th April 2009, six Italian scientists that had participated in the Major Risks Commission's meeting have been condemned for the multiple manslaughter of 29 people who were among the 309 victims of the earthquake, ‘for having assessed the risks related to seismic activity in the L’Aquila territory in an inaccurate, generic and ineffective way’ and for having provided ‘information which was imprecise, incomplete and contradictory as to the nature, the causes and the hazardousness and on the future development of the seismic activity’.
As far as risk assessment and risk communication are concerned, firstly the tasks of the Major Risks Commission under the Italian Civil Protection law will be analysed. Against this backdrop, the issues related to this expert body's responsibility will be addressed and the gaps in the current accountability regime will be pointed out.
- Symposium on the L'Aquila Seven: Re-Establishing Justice After a Natural Disaster
- Copyright © Cambridge University Press 2014
1 See S. Jasanoff, Contested Boundaries in Policy-Relevant Science, in 17 Social Studies of Science, 1987, 195, p. 199, who considers the separation between policy and science one of the “rethorical benchmarks on which all parties agree”.
2 See A. Alemanno, The Shaping of European Risk Regulation by Community Courts, The Jean Monnet Working Papers, 18/2008, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1325770, pp. 4–5 (who defines risk assessment as the ‘Grundnorm’ of risk regulation).
3 Jasanoff, S., The Fifth Branch. Science Advisors as Policy Makers, Harvard University Press, Cambridge MA, 1990.Google Scholar
4 S. Jasanoff, Contested Boundaries in Policy-Relevant Science, cit., pp. 199–200.
5 See Tribunale dell’Aquila, crim. sec., 22 October 2012, n. 380, p. 25.
6 See Tribunale dell’Aquila, 380/2012, p. 295.
7 Art. 3, L. 225/1992.
8 Art. 7, L. 225/1992.
9 Art. 4, d.L. 245/2005, as converted in L. 21/2006. It should be noted that the very nature of the Commission was previously changed by d.L. 343/2001 as converted in L. 401/2001 and the Minster of Interior's Decree 12 April 2002, as far as the number of members coming from institutions was increased in comparison with the members with sheer scientific expertise. The following DPCM 3 April 2006, n. 23582, has finally reduced the number of the Commission's members and introduced a register of experts to be involved in the Commission's activity.
10 Art. 1 (1), L. 225/1992.
11 Art. 3, c. 2, L. 225/1992.
12 Art. 3, c. 3, L. 225/1992.
13 Art. 2, lett. s), D.Lgs. 81/2008.
14 See Tribunale dell’Aquila, 380/2012, p. 296.
15 See Tribunale dell’Aquila, 380/2012, p. 297.
16 To clarify this, the Judge takes examples from other disasters and for instance, distinguishes between fires and the risk of fires: the first one refers to this phenomenon as occurred; the second one consists in the assessment of all the potential circumstances which could provoke fires and its predictable harm. See Tribunale dell’Aquila, 380/2012, p. 309.
17 Vulnerability would have been considered a significant variable in the seismic risk assessment of the city of L’Aquila, since its building heritage was particularly vulnerable and unsuitable for anti-seismic intervention. This is particularly important since a previous study on this issue was conducted by an expert Commission composed by some of the defendants and chaired by one of them: the so called Barberi's Report. See Censimento di vulnerabilità degli edifici pubblici, strategicie speciali nelle regioni Abruzzo, Basilicata, Calabria, Campania, Molise, Puglia e Sicilia, Final Report, Dipartimento Protezione Civile, Roma, 1999.
18 See Tribunale dell’Aquila, 380/2012, pp. 365–366.
19 See Massera, A., Contributo allo studio delle figure giuridiche soggettive nel diritto amministrativo, Giuffrè, Milano, 1974, pp. 329–331 Google Scholar (who addresses this issue in the case of the National Health Service).
20 Consiglio di Stato, V, 13 November 1990, n. 782 (on waste) and IV, 11 July 2001, n. 3898 (on expropriation proceedings).
21 Only one report was commissioned by the Head of the Department of Civil Protection (authorised by Article 6 of Ordinanza del Presidente del Consiglio dei Ministri no. 3757, issued on 21 April 2009), who appointed the International Commission on Earthquake Forecasting for Civil Protection to draft a Report on the following: ‘1. Report on the current state of knowledge of shortterm prediction and forecasting of tectonic earthquakes. 2. Indicate guidelines for utilisation of possible forerunners of large earthquakes to drive civil protection actions, including the use of probabilistic seismic hazard analysis in the wake of a large earthquake’. See International Commission on Earthquake Forecasting for Civil Protection, ‘Operational Earthquake Forecasting State of Knowledge and Guidelines for Utilisation’, in 54 Annals of Geophysics, 2011, 315.Google Scholar
22 See D.P.C.M. 17 October 2011, concerning the reorganisation of the national Major Risk Commission.
23 Art. 2 (1) D.P.C.M. 17 October 2011.
24 Art. 2 (2) D.P.C.M. 17 October 2011.
25 Wiretapping between the Head of the Civil Protection, Guido Bertolaso, and the Regional Council member to the Civil Protection, Daniela Stati, shows that the Head intended to organise the meeting of the Major Risk Commission in L’Aquila (and not in Rome, as usual) and then make its members communicate directly with the interested population with the specific aim of mitigating fears. The full conversation is available (in Italian) at: http://www.6aprile.it/media/video/2012/10/23/video-ecco-le-frasi-che-incastrano-la-commissione-grandi-rischi.html
26 See L. 7 June 2000, n. 150, concerning public administrations’ activities of communication and information. In the literature see Arena, G. (ed.), La funzione di comunicazione nelle pubbliche amministrazioni, Maggioli, Rimini, 2001.Google Scholar
27 See Mashaw, J., Accountability and institutional design: some thoughts on the grammar of governance, in Dowdle, M.W. (ed.), Public Accountability. Design, Dilemmas and Experiences, Cambridge University Press, Cambridge, 2006, 115, pp. 117–118Google Scholar, who unpacks accountability in a series of questions and considers ‘to whom’ one is accountable the first variable to take into account when designing accountability regimes.
30 On the extension of accountability through the downwards accountability's frameworks see C. Scott, Accountability in the Regulatory State, cit., pp. 48–l50.
31 Art. 3 (8) D.P.C.M. 17 October 2011.
33 See Löfstedt, R., Risk Communication and Management in the Twenty-first Century, in 7 International Public Management Journal, 2004, 335, p. 338.Google Scholar
34 See A. Alemanno, The Shaping of European Risk Regulation by Community Court, cit., p. 15, where the Author underlines that in the Member States such procedural duties on risk assessment serve ‘an anti-protectionist goal by preventing the adoption of measures liable to hinder free movement within the internal market’, whereas at the EU level these ‘ensure the scientific rationality of (harmonised) regulation’; Alemanno, A., The Dialogue between Judges & Experts in the EU and WTO, in Fontanelli, F., Martinico, G., Carrozza, P. (eds.), Shaping Rule of Law Through Dialogue, Europa Law Publishing, Groningen, 2009, 345, p. 367 Google Scholar, where the Author emphasises that ‘how the conclusions have been reached, not what conclusions are that make good science today’.
35 General Court, T-70/99, Alpharma v. Council,  ECR II-3495, para. 172; T-13/99, Pfizer Animal Health SA v. Council,  ECR II-3305, para. 159.
36 Court of Justice of the European Union, C-212/91, Angelopharm,  ECR I-171, para. 31; General Court, T-70/99, Alpharma v. Council, cit., para. 175; T-13/99, Pfizer Animal Health SA v. Council, cit., para. 158. As a consequence, every deviation from those updated and accurate scientific data should be motivated on the ground of other scientific opinions as much reliable; see Pfizer Animal Health SA v. Council, cit., paras. 197–199.
37 General Court, T-229/04, Kingdom of Sweden v. Commission,  ECR II-2437, paras. 108–110.
38 See Tribunale dell’Aquila, 380/2012, pp. 821–830.
39 On the importance of these factors for the identification of the risk, in the EU case-law see T-13/99, Pfizer Animal Health SA v. Council, cit., paras. 147–148; T-70/99, Alpharma Inc. v. Council, cit., paras. 160–161.
40 See Tribunale dell’Aquila, 380/2012, p. 663.
41 See Tribunale dell’Aquila, 380/2012, p. 685. The rules of experience’s validity as a suitable means to verify the existence of the causal link, is ascertained on the grounds of the Italian case law in the case Franzese, Cass., SS.UU., 10 July 2002, n. 30328.
42 See Tribunale dell’Aquila, 380/2012, pp. 665–674.
43 In this regard, the verdict emphasises that institutional communication issued by a ‘scientific authority’ has the highest potential of persuasion, which appears from the scientific thought's capability of influencing the collective social behaviour; see Tribunale dell’Aquila, 380/2012, p. 670.
44 See Tribunale dell’Aquila, 380/2012, pp. 688–694.
45 See Tribunale dell’Aquila, 380/2012, p. 715. In his reasoning, the Judge also examined the defence's argument about the interruption of the causation link through the proof of the mass media’s misinterpretation of the Commission's meeting's findings. However, the scrutiny of the records did not show a deceiving intention and testimonies confirmed the absence of misrepresentation. Moreover, the statements of the defendants in these interviews fully matched the content of Commission's meeting's memorandum.
46 See R. Löfstedt, Risk Communication and Management in the Twenty-first Century, cit., pp. 336–337, 343.
47 J. Mashaw, Accountability and institutional design: some thoughts on the grammar of governance, cit., p. 117.
48 See Department of Civil Protection, Memorandum of the Department on the effects of the Major Risks verdict, press communication, 23 October 2012.