Did Water Kill the Cows?: The Distribution and Democratisation of Risk, Responsibility and Liability in a Dutch Agricultural Controversy on Water Pollution and Cattle Sickness

Did Water Kill the Cows? The Distribution and Democratisation of Risk, Responsibility and Liability in a Dutch Agricultural Controversy on Water Pollution and Cattle Sickness

Ruth M. Mourik

Did Water Kill the Cows? The Distribution and Democratisation of Risk, Responsibility and Liability in a Dutch Agricultural Controversy on Water Pollution and Cattle Sickness

Ontwerp binnenwerk: Ruth M. Mourik, Eindhoven Coverfoto: "Koe op stal", Ruth de Ruwe, www.ruthderuwe.nl Omslagontwerpen: René Staelenberg, Amsterdam ISBN 90 8555 001 7 NUR 741 © Ruth M. Mourik / Pallas Publications, 2004 Alle rechten voorbehouden. Niets uit deze uitgave mag worden verveelvoudigd, opgeslagen in een geautomatiseerd gegevensbestand, of openbaar gemaakt, in enige vorm of op enige wijze, hetzij elektronisch, mechanisch, door fotokopieën, opnamen of enige andere manier, zonder voorafgaande schriftelijke toestemming van de uitgever. Voorzover het maken van kopieën uit deze uitgave is toegestaan op grond van artikel 16B Auteurswet 1912 jº het Besluit van 20 juni 1974, Stb. 351, zoals gewijzigd bij het Besluit van 23 augustus 1985, Stb. 471 en artikel 17 Auteurswet 1912, dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3051, 2130 KB Hoofddorp). Voor het overnemen van gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatiewerken (artikel 16 Auteurswet 1912) dient men zich tot de uitgever te wenden. All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book.

Did Water Kill the Cows? The Distribution and Democratisation of Risk, Responsibility and Liability in a Dutch Agricultural Controversy on Water Pollution and Cattle Sickness Ruth M. Mourik PROEFSCHRIFT ter verkrijging van de graad van doctor aan de Universiteit Maastricht, op gezag van de Rector Magnificus, Prof.mr. G.P.M.F. Mols volgens het besluit van het College van Decanen, in het openbaar te verdedigen op donderdag 16 december 2004 om 12:00 uur door Ruth Machteld Mourik geboren op 17 december 1973 te Parijs (Frankrijk)

Promotores: Prof. dr. ir. W.E. Bijker Dr. R. Bal (Erasmus Universiteit Rotterdam) Beoordelingscommissie: Prof. dr. R. de Wilde (voorzitter) Prof. dr. L. de la Rive Box Prof. dr. W.F. Passchier Prof. dr. J.D. van de Ploeg (Wageningen Universiteit & Researchcentrum) Prof. dr. mr. E. Vos

Deze uitgave is mede mogelijk gemaakt dankzij de financiële bijdrage van de Onderzoeksschool Wetenschap, Technologie en Moderne Cultuur

Contents Acknowledgments 1

2

9

Introduction

11

1.1 How to deal with invisible and boundary crossing problems?

12

1.2 The two controversies

15

1.3 How to study the distribution of risk and responsibility?

18

How to blame a farmer? Constructed risk in the agricultural arena

21

2.1 Theoretical intermezzo 2.1.1 The Social Construction Of Technology approach 2.1.2 Different farming strategies

22 22 24

2.2 The historical context of Dutch farming 2.2.1 The government and the farmers: conflicting farming strategies 2.2.2 The Dutch government: from machine to cow farming strategy 2.2.3 The strategy of a cow farmer: Jan van de Geest 2.2.4 The strategy of a machine farmer: Klaas Pauw 2.2.5 The strategy of an economical farmer: Henk Drenth 2.2.6 The strategy of a big farmer: Kees Calis

27 27 28 30 32 34 35

2.3 Different farming strategies and the interpretative flexibility of the water pollution 36 2.3.1 The governmental farming strategy: no risk 36 2.3.2 The cow farming strategy: cows at risk 39 2.3.3 The machine farming strategy: efficiency at risk 43 2.3.4 The economical farming strategy: sound finance at risk 47 2.3.5 The big farming strategy: expansion at risk 49 2.4 Interpretative flexibility of water pollution: different solutions 2.4.1 The solution for the government 2.4.2 The solution for the cow farmer 2.4.3 The solution for the machine farmer 2.4.4 The solution for the economical farmer 2.4.5 The solution for the big farmer

50 50 55 57 61 63

2.5 Different farming strategies: different expertises

65

3

4

How to blame a polder? Obdurate risk in the water management arena 69 3.1 Theoretical intermezzo 3.1.1 Contextualisation 3.1.2 Risky contextualisation 3.1.3 Embeddedness and obduracy

70 70 71 72

3.2 The Beemster polder 3.2.1 The historical context of polders and waterboards 3.2.2 The reclamation of the Beemster Lake 3.2.3 The lay out of the Beemster polder 3.2.4 The agricultural practice in the Beemster polder

74 74 76 78 86

3.3 Contextualising the Beemster polder 3.3.1 Contextualising the lay out of Beemster polder 3.3.2 Contextualising the function of Beemster polder 3.3.3 Contextualising the Beemster polder: a second round

87 87 88 90

3.4 Risky contextualisation

93

3.5 The need for change versus the obduracy of the polder 3.5.1 First measure: centrally raising the water table 3.5.2 Second measure: flushing the waterways 3.5.3 Third measure: renovate the overflows

96 96 98 102

3.6 Contextualisation and responsibility

103

How to blame a government? Distributing responsibility in the political arena 105 4.1 Theoretical intermezzo 4.1.1 Boundary work: constructing credible and relevant expertise and knowledge 4.1.2 New risks and the distribution of responsibility

106 106 110

4.2 The construction of relevancy 115 4.2.1 From farmer knowledge to relevant knowledge: Van de Geest 115 4.2.2 From farmer knowledge to incredible knowledge: Pauw 125 4.2.3 From farmer to expert 137 4.3 The distribution of responsibility 144 4.3.1 Informing the farmers: scientific certainty and the distribution of responsibility 145 4.3.2 The Action Program: experts found, responsibility lost 148

5

4.4 The democratisation of expertise

149

Who to blame? Attributing responsibility in the judicial arena

155

5.1 Theoretical intermezzo 157 5.1.1 Is boundary work in court different from boundary work in the scientific arena? 157 5.1.2 How do the courts determine what counts as relevant evidence? 158 5.1.3 Credibility contests in court 160 5.1.4 Ownership in court 164 5.2 Boundary work in court: constructing evidence

166

5.3 Credibility contests in court: constructing expertise

174

5.4 Ownership in court: distributing responsibility in court

178

5.5 The court as knowledge machines: the construction of law-science hybrids in court 182 5.6 New risks, science and the law 6

191

Conclusion. How to democratise the distribution of risks, responsibility and liability 197 6.1 A sketch of the outcomes of the two controversies in the different arena’s they travelled through 198 6.2 Social learning in risk controversies

203

6.3 Do risks controversies reflect the need for more participatory democratic decisionmaking processes? 208 6.4 My role as an STS researcher in the controversies

213

Bibliography

217

Glossary

239

List of interviewees

243

Dutch Summary

247

Curriculum Vitae

257

Acknowledgments I believe it is impossible to write a PhD thesis without the help and support of many people. My two most important supporters were my supervisors Wiebe Bijker and Roland Bal. Wiebe and Roland formed an excellent team. Wiebe, time and time again convinced me that my struggle to position myself, empirically and theoretically, and that my difficulty in distancing myself from the emotional aspects of my project were very important aspects of the journey. Wiebe became my intellectual father, but always ordered me to commit intellectual patricide in the end. I think I succeeded, by ignoring this order. Roland was my theoretical sparring partner. I would not have been able to write this thesis without his incredible interdisciplinary knowledge of science, society and technology studies. Wiebe and Roland, I want to thank you for this incredible journey. The openness and warmth of the farmers, scientists and governmental employees that I interviewed was very special. In addition, many provided valuable comments on draft versions of my chapters. I would especially like to thank Jan van de Geest, Klaas Pauw, Rom de Leeuw, Kees Calis and Henk Drenth for allowing me to remain observer, in spite of their need for people that committed themselves to their cause. I am also grateful to my colleagues of the Faculty of Arts and Culture, and particularly the members of the BOTS research group for their interest in my project and willingness to read draft chapters. I would like to thank Jessica Mesman specifically for the way she stood by me in the dilemma of taking on the role of an observer participant or a participant observer. My fellow PhD students, both at the University of Maastricht and at the WTMC research school have been incredible partners in crime. We discussed draft chapters and research problems during lunches, meetings, summer schools and workshops. I would especially like to thank the participants Ruth Benschop, Marco Goud, David Hamers, Ruud Hendriks, Anique Hommels, Stine Jensen, Erik Lemmens Jessica Mesman, Peter Peters, Marcus Popkema, Jessica Slijkhuis, Cecile aan de Stegge, and Peter Paul Verbeek for their valuable comments. In the final stages of my project, my friends Eric Leussink and Marcus Popkema carefully read the thesis. Their comments, interest and above all their friendship have been of great value. I would also like to thank Sabine Kuipers, Joke Oud and Nicole Cremers for their help during the five years that I was assigned to the University of Maastricht, and I thank Cora Blankendaal and Janneke Stemerdink for all the editing and formatting of the final text. I would also like to thank Pauline 9

Bodde for the great precision with which she edited and improved my English. It is reassuring to know Stine Jensen and Jessica Slijkhuis will be at my side during my graduation. Stine and Jessica were colleagues at the University of Maastricht, but above all the two best persons to talk with about apes, cows, (psychiatric) men and supervisors. Frans, thank you for all the love, patience, talking and listening. Mam and Matte, thank you for your unconditional support and confidence. Lastly I would like to thank my father, Maarten Mourik. He died in 2002. My father helped me find a balance between staying true to myself, my supervisors and the farmers I worked with. But most of all he was always there, supporting me. Papa, I dedicate this thesis to you. Ruth Mourik- Eindhoven, September 2004

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1 Introduction “I wished it wasn’t true. However I consider it to be my moral duty to speak out. I do not fear critical remarks.”1With these words, the Belgian professor of toxicology Paul Schepens warned the Dutch government that research he had conducted for a Dutch insurance company had shown that the Dutch practice to withdraw oil and gas from the earth generated a great risk for the health of both animals and humans. Schepens stated that, because of the oil and gas drilling in the province of North Holland, a layer that normally was impermeable was damaged. Because of this damage, oil and gas residues surfaced and polluted both the soil and the ditchwater in the area. Most of the cattle in the province drank water from ditches and were exposed to the pollution, which caused a sickness that often led to death. Schepens said that the milk of the infected cattle was not safe to drink. Schepens said that he was not afraid to receive criticism, which indeed he did. The Dutch government asked several research institutes to investigate Schepens’ claims. These institutes dismissed his claims because, according to them, Schepens had not conducted his research adequately. He did not have the data to back up his claims and he had trespassed the boundaries of his professional expertise as a toxicologist. To reassure the public, the government ordered scientific institutes to research the milk and the water. Although Schepens’ research had shown that the water was polluted, the institutes did not find pollution in the milk, and the state was able to reassure the Dutch public. This incident was one of the milestones in a very long debate between Dutch cattle farmers and the government about the possible existence and accompanying risks of water pollution. The controversy not only dealt with the gas drilling practices that Schepens warned about. Already in 1975, several Dutch dairy farmers experienced serious problems. Their cattle became sick. Calves were born blind or with both sex characteristics, and some calves were even stillborn. The farmers believed that there was a relationship between the cattle’s health problems and the surface water that the cattle drank. The farmers thought that the water was polluted because the water smelled funny and the fauna and flora in and near the ditches died. Initially, the Dutch government did not acknowledge the water pollution nor the cattle sickness, and certainly not a relationship between the two. However, some fifteen years later, in the nineties, after years of scientific research and debate, the Dutch government admitted that the water of many ditches was in1

de Jong, B. (1997). Olieboringen Noordzee maken de kalveren blind. Leidsch Dagblad.

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deed polluted. The government did, however, not acknowledge that there was a relationship between the polluted ditchwater and the cattle’s health problems. The farmers were convinced that there was such a relationship, and as a result several hundred dairy farmers, governmental bodies and scientific institutes were entangled for more than two decades into two large public controversies that focused on issues of political responsibility and legal responsibility, liability for the water pollution and the contested relationship between the water pollution and the cattle’s health problems. In both controversies farmers, government and scientists disagreed as to what was the cause, what was the real risk, which person or institute had to deal with the situation and what was to be done about it. In addition, although scientists called upon to define the problem, to assess the risks and to give recommendations about handling this situation, the scientists were not able to establish a direct relationship between the water pollution and the cattle health problems, but they could not exclude the possibility of a relationship either. This complicated the process of allocating responsibility and liability even more.

1.1 How to deal with invisible and boundary crossing problems? The debate between Dutch cattle farmers and the government about the possible existence and accompanying risks of water pollution illustrates difficulties that governments, the general public, scientific institutes and legal courts face when they attempt to deal with many problems and risks that result from the complex interplay of science, technology and society. 2 The characteristics of many of these risks and problems make it difficult to establish their existence. 3 First these risks require scientific methods to make them visible. The scientific arena is, however, often not able to establish their existence, and even if a risk’s existence is established, scientists are often not able to establish the relationship between the risk and possible consequences. The scientific arena has such difficulty to establish the causal relationship between risks and their consequences because these risks and their (secondary) effects often only become apparent after several years, sometimes only after generations. 2

For a more comprehensive discussion of the issues of responsibility and liability accompanying these complex risks see: Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press. And see: Jasanoff, S., Wynne, B. (1998). Science and Decisionmaking. Human Change and Climate Choice. S. Raynor, Malone E.L. Columbus, Ohio, Batelle Press. 1: pp. 1-87. 3 For a more comprehensive analysis of these new risks see: Beck, U. (1992). Risk Society: towards a new modernity. London, Sage. Also see: Beck, U. (1999). World Risk Society. Cambridge, Polity Press.

12

In many controversies dealing with these complex risks governments and the courts of law often are not willing to take action or make a statement on the relationship between cause and (secondary) effects because current scientific research is unable to establish the necessary causality.4 The characteristics of risks as discussed in the paragraph above make it extremely difficult for governments, public and scientists not only to identify and assess these risks and to prove the relationship between cause and (secondary) effects, but also to decide on issues of responsibility and liability for these problems and risks and their consequences. Many of these problems and risks are not (easily) solved and result in years of controversy over issues of causality, responsibility and liability. Actors in these controversies deploy different strategies and arguments to prove that their definition of the problem is correct, and often have different opinions on how the situation should be handled, and who should handle it. In search of solutions and satisfactory distributions of responsibility the actors involved in these controversies, usually government, public and scientists, travel through many different arenas. For example, the farmers, governments and scientists that are centre stage in this thesis travelled (often simultaneously) through the agricultural and watermanagement arenas of farmers, cattle, ditches, sewage systems, and polder land; the political arena of citizens, politicians, newspapers, hearings, parliamentary questions, and regulations; the scientific arena of scientists, experts, laboratories, measurements, and counter research. This journey, as many other controversies dealing with risks, ended in the legal arena of lawyers, expert witnesses, courts, settlements, and verdicts, without being solved. To develop political, scientific, public and judicial mechanisms to cope with risks and (secondary) effects that cannot be assessed scientifically it is important to understand why many scientific practices are increasingly faced with difficulty in establishing the existence of risks and problems or the existence of a relationship between risks and (secondary) effects; a second issue that needs to be understood is why governments have so much difficulty in deciding on issues of responsibility and liability that accompany these risks when scientists cannot provide certainty about their existence and consequences; to get more insight in the complex relationship between scientists and politics; and finally to understand why the public, scientific, political and judicial arena’s increasingly fail to solve issues related to risks and problems.

4 The increasing difficulty to establish scientific causality has been discussed extensively in: Jasanoff, S., Wynne, B. (1998). Science and Decisionmaking. Human Change and Climate Choice. S. Raynor, Malone E.L. Columbus, Ohio, Batelle Press. 1: pp. 1-87.

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In this thesis, I will describe two controversies dealing with water pollution problems and their consequences for dairy cattle, to gain insight in the issues described above. These controversies illustrate the strategies different actors deploy in their attempts to define risks and to allocate responsibility and liability for these risks and their effects.5 The situation in both controversies was one of total disagreement. Each party -farmers, government and scientists- had a different view on the situation. In spite of much time and effort to appreciate each other’s definitions of the risks involved, the parties had great difficulty in reaching agreement. The following quote in a governmental report on overflow water pollution illustrates the difficulty that the government had because of the lack of scientific certainty on the relationship between cause and effect: “the establishment of general recommendations for overflow emissions is hampered as a consequence of the fact that, with the current knowledge, an assessment of sewer systems on the basis of waste discharges is only possible within wide margins.”6 And even when agreement was attained, it appeared difficult to change the circumstances surrounding the pollution or the cattle’s health problems. In each arena, the farmers, government and scientists were able to ask different questions and they could deploy different strategies to allocate responsibility and liability in a way that suited their needs. Not only did the farmers, government and scientists use different strategies in different arenas, they also asked different questions and used different strategies to allocate responsibility and liability in both controversies. Both controversies were concluded differently and the differences between them will allow me to illustrate how risks and responsibilities are distributed differently, depending on the strategies of the parties involved. I will analyse the construction and distribution of risk and responsibility in both controversies, hoping that these insights will assist policy makers, farmers, watermanagers, civil groups and scientists to deal with the complex water pollution risks and cattle health problems that still continue today. In addition, I hope to contribute to a theoretical approach in the field of Science and Technology Studies to analysing the role of scientific and nonscientific knowledge and expertise in the distribution of responsibility and liability in risk controversies. Finally I hope to contribute to the ongoing dis5

For a discussion on how the field of Science and Technology Studies can contribute to the analysis of controversies and deal with the possible normative issues that can accompany such an analysis see: Woodhouse, E., Hess, D., Breyman, S., Martin, B. (2002). "Science Studies and Activism: Possibilities and problems for Reconstructivist Agendas." Social Studies of Science 32: pp. 297-319. 6 Coördinatiecommissie Uitvoering Wet Verontreiniging Oppervlaktewateren CUWVO (1992). Overstortingen uit rioolstelsels en regenwaterlozingen. 's-Gravenhage, CUWVO.

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cussion in the field of Science and Technology Studies on the possible role of STS researchers in risk controversies: observation, participation or intervention.

1.2 The two controversies One controversy started in 1995 and still continues today. It is concerned with the pollution of water by natural and human-caused decay of peat soil. Peat soil is a typical soil in a polder. It is composed of plant and animal residues and keeps its volume only when it is submerged in water. As soon as the water level in a peat area starts to decrease, by natural processes such as evaporation or artificial processes such as drainage, the top layer of the peat soil starts to dry and then decomposes. This decay is accompanied by the emergence of the polluting compounds sulphate and nitrite, which surface in the ditchwater in peat areas. A process called 'seepage’ accelerates the decay of peat soil. In a polder the groundwater level is lower than the water level of neighbouring seas and lakes. If (semi-) salt water can seep through and reach the peat soil, yet another kind of decay occurs and even more polluting compounds emerge. Farmers and some scientists were convinced that when cattle consumed these polluting compounds, it inhibited their ability to process copper, which serves to bind certain vitamins, and they argued that this caused the cattle sickness. The government and affiliated scientists refused to acknowledge this relationship between water pollution and cattle sickness and a controversy resulted that was lost by the farmers. The basis for the other controversy was laid in 1975 when the cattle farmer Rom de Leeuw initiated a lawsuit against his municipality and his waterboard. Again, this controversy continues to today. This controversy is concerned with sewage water and the structure of the Dutch sewage system. In 1975, the length of the Dutch sewerage was insufficient to contain the total amount of wastewater.7 To cope with this wastewater, separate sewer system components called overflows were built. An overflow is a large concrete reservoir in the ground. When the reservoir is completely filled, the water reaches a threshold connected to a sewer pipe. This threshold has two openings: one on the side of the sewer pipe and one on the opposite side, where there is an opening of approximately twenty to thirty centimetres, through which discharges take place into a ditch. When the water level in the sewer exceeds a certain level and the threshold is reached, the water can overflow into a ditch. See Picture 1. 7

The above information about sewage water and the Dutch sewage system is retrieved from: Coördinatiecommissie Uitvoering Wet Verontreiniging Oppervlaktewateren CUWVO (1992). Overstortingen uit rioolstelsels en regenwaterlozingen. 's-Gravenhage, CUWVO.

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Picture 1: an overflow structure

Today there are approximately 15000 overflow structures connected to a Dutch sewage system of approximately 68000 kilometres.8 Most of these structures are situated in rural countryside, linked to small, often (semi-) stagnant watercourses.9 The overflows were designed to discharge wastewater and sewage water into the surface water, but this was only to occur in case of heavy rainfall, when the purification plants were not able to process the amounts of wastewater.10 However, because of the increased urbanisation, of problems with clogs and defect pumps, this new Dutch sewage infrastructure could not even contain all the wastewater under normal circumstances and the sewage water was discharged in an increasing number of instances.11 8 Coördinatiecommissie Uitvoering Wet Verontreiniging Oppervlaktewateren CUWVO (1992). Overstortingen uit rioolstelsels en regenwaterlozingen. 's-Gravenhage, CUWVO. 9 Dokkum H.P. van, M.C. Th. Scholten, D.P.C. van der Veen, S. Huwer & R.G. Jak (1997). Kwaliteit van boezem- en polderwater rond Burgerbrug (de Zijpe) in relatie tot de gezondheid van weidevee. TNO-rapport. TNO-MEP- R97/393. And: van Asseldonk, M. A. P. M., Mourik, R.M., Huirne, R.B.M., Meijer, G.A.L. (2001). Verantwoord boeren versus verantwoord lozen. Wageningen, ID-Lelystad. 10 NWRW (Nationale Werkgroep Riolering en Waterkwaliteit) (1989). Eindrapportage en evaluatie onderzoek van het onderzoek 1982-1989. Ministerie VROM, Den Haag. 11 For a more detailed analysis of these issues see: Heuvel, H. van den, J.C.J. Jacobs, p. van Eck, E.T. Schutte-Postma. (1996). Hemelwater, het riool in? TU Delft, April 1996. And see: Kop, J.H. (2001). De duurzaamheid van riolering. Rioleringswetenschap, jaargang 1, nr. 1, Valkenswaard, februari 2001. In March of 1998, during a tour at a purification plant the care-

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These discharges are not unproblematic. An employee of the Ministry of Transport, Public Works and Water Management stated: “in the eighties, it was already appreciated that sewer overflows had a side effect on water quality, because of unwanted discharges into the surface water. At that time, the first attempt was made to assess the situation in quantitative terms.”12 In 1992, next to the few farmers that had already initiated lawsuits dealing with these overflows and their polluting effect, many more farmers believed that the quality of surface water decreased because of these overflows. And these farmers also believed that the problems they experienced with the health of the cattle that drank of the surface water were related to the overflow discharges. When in 1992 the Coördinatiecommissie Uitvoering Wet Verontreiniging Oppervlaktewateren (CUWVO), the official deliberation platform for policy making and development in the field of integral water management stated that: “in general, the influence on the surface water, the sediment and the aquatic ecosystem resulting from the discharges from overflow structures is …considerable”, many farmers believed this warning also applied to the health of cattle. 13 However, the government and governmental scientific institutes did not agree with the farmers and a fierce controversy between farmers, government and scientists took shape, which was ‘won’ by the farmers.

taker of the plant informed me that in the past a sewer system was designed in order to simultaneously bring rainwater and wastewater to the purification plants. In time, more households and streets were connected to the sewer system. Because of this growth, at present old sewer pipes cannot handle the amount of combined rainwater and wastewater to be drained off after heavy rainfall. To install more sewer pipelines and sewage farms or different installations was too expensive. Moreover, the space available in the Netherlands does not allow the construction and instalment of pipes of several meters in diameter for thousands of underground kilometres. Furthermore, the overflow structure was embedded into a geographical, customary and even judicial web in such a manner that it could not be changed easily. An additional problem of polluted water, as the caretaker of a purification plant argued, is that older sewage farms are no longer sufficient either. Even in normal weather there is a surplus of wastewater, but during heavy rainfall the surplus is such that the water does not have enough time to settle down. As a result, polluting compounds cannot be fully extracted from the water, or fully digested by bacterial activity in basins. Thus, the water which ends up as surface water sometimes does not meet the level of purity it should. 12 Interview with Jan Willem Bloemkolk, employee of the Ministry of Transport, Public Works and Watermanagement, 27-02-1998. 13 Coördinatiecommissie Uitvoering Wet Verontreiniging Oppervlaktewateren CUWVO (1992). Overstortingen uit rioolstelsels en regenwaterlozingen. 's-Gravenhage, CUWVO. All official agencies in the area of watermanagement are represented in this platform: the state, provinces, water managers and the municipalities.

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1.3 How to study the distribution of risk and responsibility? In the two controversies that I analyse here, each of the parties -farmers, government and scientists- had a different definition of the situation. Each party also had a different view on what was the cause of the water pollution and the cattle’s health problems. And each party had a different opinion on who was responsible and liable for the situation. Even within each group of farmers, governmental agencies and staff and scientists consensus lacked about the correct definition of the situation. To empirically discuss the differences of opinion between and among groups of actors from within their context, I needed a methodological approach that allowed for an analysis on the level of individual actors and for an appreciation of the heterogeneity of opinions within the groups of farmers, governmental agencies and scientists. The anthropological method of participant observation offered me an understanding of these processes because it facilitated an inside perspective.14 This perspective allowed for an analysis on a micro level. This insider’s perspective helped to avoid cultural blindness. I could differentiate between the different farmers and their farming strategies, instead of blindly seeing the farmers as one group. I believe that if I had not spent time walking amongst their cattle, seeing them work, and discussing their choices about adequate farming, I would not have learned about the different farming strategies. In the same way, I applied the anthropological method to the scientists and the government, which allowed for a similar appreciation of the heterogeneity within those groups. I conducted research into the interactions of farmers, the government and scientific institutes for a period of five years. This ethnographic study resulted in an extensive amount of empirical material, comprising fieldwork notes, interviews, archival copies, personal communications, newspaper clippings, and judicial and governmental documents. Initially I spent time among the farmers, government policy makers and scientists as an observer and attempted to gain an “ insiders” position, to become one of the group. I addressed all perspectives and attempted to understand them from within each, without commenting on the truthfulness as seen from the outside. Because of this combination of both attempting to understand all perspectives and at the same time spending much time with all actors, I obtained an ‘inside’ position that still can be called neutral. Such an inside position facilitates understanding by becoming one of the group, by ‘going native’. It also led to emotional attachment. The personal suffering of the farmers and the cattle did not always make it easy to distance myself from my research ob14 For a more elaborate discussion of the method of participant observation see: Hammersley, M., Atkinson, P. (1983) Ethnography: Principles in practice. London and New York. Routledge.

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jects and describe the processes of construction and distribution analytically and in neutral terms. Nevertheless, I think I have avoided to become biased in favour of one group or the other. Indeed, while I gradually became more actively engaged in the controversy, members of different groups did ask me to function as an intermediary between them. I will return to this in the concluding chapter. To describe the strategies that the actors in both controversies deployed in their attempts to define the situation and allocate responsibility in a way that suited their needs analytically, I introduce concepts from the field of Science and Technology Studies, and more particularly of the (social) construction of scientific knowledge and technology. Studying scientific knowledge and technology in a constructivist way means that scientific knowledge and technology are viewed as achievements of interactions between actors. Scientific facts and technological artefacts are analysed as accomplishments, constructions. Whether a claim is a scientific fact is not intrinsic to the claim, but the outcome of interactions between actors.15 The constructivist approaches within the field of Science Society and Technology Studies also criticize the notion that risks and problem definitions are ‘given’, and stress the importance of analysing risk and problem definitions as outcomes of complex and strategic interactions between actors (both human and nonhuman).16 Moreover, the field of Science and Technology Studies denies that there is an intrinsic divide between on the one hand the scientific assessment of risks, and on the other the political management of these risks. Instead, it analyses the ways in which boundaries between scientists and politics, between risk assessment and management, are themselves part of the strategic struggle that defines the controversy.17 Since I followed this constructivist approach to studying risk issues, I did not have a definition of what the real risk was beforehand, as a reference to value the different perspectives on risk

15 For a more elaborate discussion of the constructivist approach to researching science and technology see: Bijker, W. E. (2001). Social Construction of Technology. International Encyclopedia of the Social & Bevavioral Sciences. N. J. Smelser, Baltes, P.B. Oxford, Amsterdam, Elsevier Science Ltd. 23: pp. 15522-15527. 16 Irwin and Wynne have discussed the complexities involving the analysis of risk and problem definitions in controversies involving the public, scientists and the government. See: Irwin, A., Wynne, B., Ed. (1996). Misunderstanding Science?: the public reconstruction of science and technology. Cambridge, Cambridge University Press. 17 For detailed case studies on the boundary work involved in defining a situation see: Bal, R. (1999). Grenzenwerk: over het organiseren van normstelling voor de arbeidsplek. Enschede, Universiteit Twente. And: Bal, R., Bijker, W.E., Hendriks, R. (2002). Paradox van wetenschappelijk gezag. Over de maatschappelijke invloed van adviezen van de Gezondheidsraad, 1985-2001. Den Haag, Gezondheidsraad.

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in the controversy that I analysed. Instead, I analysed risks as defined by the actors in the controversies as starting point for analysis.18 Because I take the risk definitions of actors in the controversies as starting points, my analysis goes beyond an account of truth or falsity. Although the guilt question is central to most of the farmers and governmental officials, my aim has not been to establish on right or wrong. I will not evaluate which definition of risk is more or less true. I will discuss issues of fault and guilt, but only as these allegations are made by the participants in the controversy. Neither will I assess whether knowledge claims made in the controversy are essentially ‘scientific’ or not. Instead, I am concerned with the interactions that lead to specific definitions of a situation and in the consequences of the acceptance or rejection of specific risk definitions for the distribution of risk, responsibility and liability.

18 This strategy of “ following the actors” in risk controversies has been discussed in detail in: Rip, A., Smit, W.A. (2002). Het risicobegrip vanuit een wetenschapsfilosofisch en sociologisch perspectief. Perspectieven op Milieurisico's. Werkdocument W 128. B. Wissink, Bouma, J. Den Haag, Wetenschappelijke Raad voor het Regeringsbeleid (WRR). W 128: pp. 67102.

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2 How to blame a farmer? Constructed risk in the agricultural arena In the beginning of the nineties a dairy farmer in Noord-Holland, a northern province of the Netherlands, and a group of dairy farmers in Drenthe, an eastern province, were mired in similar controversies with the government. In both instances the farmers believed that their cattle fell sick because it drank polluted surface water from ditches. The farmers believed that respectively decay of peat soil in Noord-Holland and sewage overflows in Drenthe caused the pollution. Because the farmers ascribed the sickness to factors outside of their own management, they presented the problems to the Ministry of Agriculture, Nature Management, and Fisheries. The same social groups of actors were relevant to both controversies: farmers, scientists and governmental officials. These groups did not share, however, the same opinions about to the situation. The controversy gained further momentum when the government and some scientific institutes argued the solution was to put all the cattle on pipeline water.19 For some farmers pipeline water was indeed a solution, but for other farmers the switch to pipeline water would mean the end to farming because pipeline water was difficult to incorporate in their farming strategy. It was expensive and in some cases impossible to install. The farmers, governmental officials and scientists perceived the problems differently. Farmers believed they faced a real risk, while government and scientists argued the farmers only perceived risks where there were none. The different opinions made it difficult to communicate, let alone to reach a common view. Why did the opinions of the farmers, governmental bodies and scientists regarding the situation differ so much? How did the different opinions influence the creation and acceptance of the pipeline water solution? Both questions relate to the issue that is central to this thesis: how did farmers, scientists and government construct risk, responsibility and liability? The locus of this chapter is the agricultural arena, an arena that allows very specific questions to be raised and arguments to be made. To answer why farmers, government and scientists had different opinions and reacted differently to the pipeline water solution, I need to borrow insights from two theoretical approaches. I will first discuss these theoretical approaches, and then continue to discuss the farmers.

19

(1997). Commissieonderzoek naar ziekte van Beets. Noord-Hollands Dagblad.

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2.1 Theoretical intermezzo 2.1.1 The Social Construction Of Technology approach The Social Construction of Technology approach (SCOT) was developed to analyse the development and use of technological artefacts in society.20 ‘Technology’ here refers both to artefacts and to processes. In the SCOT approach the key to understanding technology, are the social actors using technology, rather than the artefact itself. The concept ‘relevant social group’ denotes formal and informal organizations, as well as groups of individuals that are unrelated in a classical sociological sense. The defining requirement is that all members of one group share the same meaning regarding the technology being studied. To decide who belongs to which group, the researcher can follow the actors themselves: they generally make clear to which group they and others belong. Actors can be part of several groups. These relevant social groups typically change over time: they come into existence, split, merge, or disappear, and with these changes, the technology might change as well. To understand the development of an artefact, we can now focus on the ways these relevant social groups handle the artefact. To capture these various ways of handling artefacts, the concept of ‘technological frame’ is introduced. The technological frame of a relevant social group shapes the thinking, handling and interactions of that relevant social group: the use of the artefact, the values and norms associated with it, its problems and the problems it solves. A group’s technological frame not only describes the ways of handling the artefact, but also the social relations to others. Just as the delineation of a social group tends to change in time, the technological frame of a group also typically develops over time.21 Not all actors within one relevant social group are the same: they may handle, think and interact slightly differently. To describe this, the concept of ‘inclusion’ is used. A highly included actor handles, thinks, and interacts more in accordance with the technological frame than an actor with a low inclusion. A technological frame enables and constrains the actions of all actors. However, actors with a low inclusion experience more the constrain20

For a more comprehensive introduction to SCOT, see: Bijker, W. E. (1995). Of Bicycles, Bakelites and Bulbs. Towards a Theory of Sociotechnical Change. Cambridge, MA, MIT Press. Also see: Bijker, W. E. (2001). Social Construction of Technology. International Encyclopedia of the Social & Bevavioral Sciences. N. J. Smelser, Baltes, P.B. Oxford, Amsterdam, Elsevier Science Ltd. 23: pp. 15522-15527. 21 For a detailed analysis of a lengthy controversy in which new actors emerged, disappeared or changed positions see the bicycle example in: Bijker, W. E. (1995). Of Bicycles, Bakelites and Bulbs. Towards a Theory of Sociotechnical Change. Cambridge, MA, MIT Press.

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ing character, while actors with a high inclusion particularly benefit from the enabling character of the technological frame. The highly included actor, however, has less possibility to switch to another frame while low included actors can do so more easily. Social groups with different frames see, and indeed live in different worlds. To describe this, the concept of ‘interpretative flexibility’ is introduced. Bijker demonstrates the interpretative flexibility of the nineteenth century ‘Ordinary bicycle’ by showing that for different relevant social groups different bikes existed. For the social group of young men, it was the ‘Macho Bicycle’ with which they proved their skills and courage to young women. For women and elderly men, it was the ‘Unsafe Bicycle’ because one fell easily and got hurt. The Macho Bicycle and the Unsafe Bicycle are different artefacts, even to the extent that one was working well and the other was not. The working of an artefact is not an inherent ‘technical’ characteristic of the artefact, but socially constructed.22 By deconstructing the artefact with sociological means, the researcher has demonstrated the interpretative flexibility of the artefact. Then the question arises, what happened to these artefacts: how did two artefacts, the Macho and the Unsafe Bicycle become one bicycle? To describe this process of social construction, the concept of ‘closure’ is introduced. Closure is the result of diminishing interpretative flexibility. Typically, consensus emerges between the relevant social groups over time, and the technology’s different meanings converge into one and the artefact stabilises. These concepts of technological frame, interpretative flexibility and closure were introduced to understand the development of a technology. MacKenzie and Wajcman distinguish three meanings with respect to technology: physical artefacts, human activities and knowledge.23 Additionally Bijker uses the word technology in ‘social technology’ to analyse the traditional dike management system in the Netherlands.24 In this thesis I will use the word ‘technology’ in this broad and social sense, and apply it to farming. As the focus on two different social groups resulted in two different bicycles, I will demonstrate the interpretative flexibility of water pollution by describing it through the eyes of a variety of relevant farmers.

22 Several authors have analysed how ‘truth’ and scientific ‘true’ knowledge are not given attributes of science but are the end product of a complex game of expertise played out in the scientific arena. See: Latour, B., Woolgar, S. (1987). Laboratory Life: The Social Construction of Scientific Facts. Princeton, Princeton University Press. 23 MacKenzie, D., Wacjman, J., Ed. (2000). The social shaping of technology. Buckingham Philadelphia, Open University Press. 24 Bijker, W. E. (1995). Of Bicycles, Bakelites and Bulbs. Towards a Theory of Sociotechnical Change. Cambridge, MA, MIT Press.

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The technological frame of relevant social groups characterizes their thinking, handling and interactions. In the next section I will explore how the concept of technological frame can be used to analyse the farming practices of the relevant social groups. To highlight the heterogeneous character of farming, I will use the phrase farming strategy’ rather than technological frame. 2.1.2 Different farming strategies In both controversies central to this thesis, different groups of farmers had different farming strategies. To characterize these different farming strategies, I will focus on different ways of guaranteeing the continuity of the farm. Continuity in agriculture typically not only means continuity of the family possession of the farm, but also continuation of the farming strategy. However, as we shall see, sometimes altering the family farming strategies is the only way to ensure continuity. After years of living amongst farmers in the French Alps, the British essayist John Berger argued that it is essential to a farmer to hold to his traditions: “a farmer sticks to tradition because it seems to provide the best chance of success, but also because, by maintaining a certain rhythm, by doing what his father or his neighbour’s father did, he safeguards his own continuity, and in this way consciously witnesses his own survival.”25 After all, as the historian Geert Mak shows in his sociohistoric account of a small village of farmers in the Netherlands: “a young farmer (…) not only had to learn to milk swiftly, to be handy in repairing his tools, to place a solid fence and a thousand more skills; he also had to learn to trust his intuition, he had to learn to see that a cow was sick, feel that the whether was about to turn, know that the crop should be harvested. And to do so, the accumulated experiences of many generations were indispensable.”26 The Dutch rural sociologist Jan Douwe Van de Ploeg, in discussing the importance of continuity to farmers, identifies seven cattle farming strategies to ensure this continuity.27 The farming strategy characterizes the handling, thinking and interactions of farmers, and structures and orders their social and economic relations, and places them in a pattern of relationships with other individuals, institutions, organisations and technology.

25

Berger, J. (1994). De vrucht van hun arbeid. Het varken aarde. Ver weg in Europa. Sering en Vlag. Amsterdam, De Bezige Bij. 26 Mak, G. (1996). Hoe God verdween uit Jorwerd. Amsterdam, Uitgeverij Atlas: pp.180, translation Ruth Mourik. 27 When, in the remainder of this book, I use the term ‘farming’, this always refers to cattle farming.

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The first strategy is that of the cow farmer. These farmers ensure continuity by exclusively focusing on the cattle. To do so, a cow farmer needs to have an almost personal, direct relationship with his cattle. “Shouldn’t you see the udders and the bum of your cows daily? Isn’t it only then that you know whether an animal is sick or not? Ask the cow. You don’t get your wife to be treated mechanically either, do you. If you do not like milking, do not become a farmer.”28 A cow farmer is farmer because he loves to work with cows. The second strategy is that of the machine farmer. These farmers ensure continuity by dedication to advanced technology and machines, and knowledge about these technologies and machines. These machines ensure high efficiency by realizing a large production with a minimum of human effort. The machine farmer relies heavily on scientific knowledge about farming. The difference between the attitudes of a machine farmer and a cow farmer towards the cows and nature is described by Mak: “in the old days a cow was always right, a cow never made mistakes, a cow did not do much anyway. The new stabling introduced a new phenomenon: the rebelling cow, the cow that would be good for nothing, the foolish cow. That same cow scraped itself against the fences, or licked the pants of the farmer. That farmer would push such an animal away with a hit on her horns, half-punishing, halfloving. The farmers now talked about unusable cattle, and slaughtered it.”29 For a machine farmer, efficiency is more important than an individual cow. The third strategy is that of the intensive farmer. These farmers ensure continuity with a total focus on the adage ‘input is output’. To do so this farmer aims at the most intensive farming possible: as many cattle on one id, as many nutritional add-ons, as much milk production per cow as possible.30 This farmer also uses technology to achieve the highest level of intensity. The fourth strategy is that of the big farmer. These farmers ensure continuity by expanding. Expansion has priority over intensive or efficient production. The focus is on enlarging the size of the farm, the number of cows, and the milk production, and often this is realized by hiring extra hands. Lending money to make the necessary investments for maintaining such a large enterprise is often inevitable. The fifth strategy is that of the economical farmer. The economical farmers ensure continuity by farming as economically as possible. This farmer is careful about investments in his farm, borrows as little as possible 28

Mak, G. (1996). Hoe God verdween uit Jorwerd. Amsterdam, Uitgeverij Atlas: pp. 118, translation Ruth Mourik. 29 Mak, G. (1996). Hoe God verdween uit Jorwerd. Amsterdam, Uitgeverij Atlas: pp. 117, translation Ruth Mourik. 30 An id is 100 x 100 m2.

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and tries to recycle as much as possible. The milk production is relatively low, but his costs for additional nutrition are low too. The sixth strategy is that of the meat farmer. The meat farmer does not focus on milk production but on the production of cows for trade. This is a relatively simple form of farming, and does not require much investment. The meat farmer thus resembles the economical farmer in not wanting to borrow money. The last strategy is that of the sjluchtwei farmer.31 This strategy is to have a spread strategy. The sjluchtwei farmer is able to adapt his farming strategy to every situation, because he has no specific focus on technology, cows, or expansion. This farmer has chosen to follow the path as it comes. The strategies as defined by Van de Ploeg are ideal types. In reality, there is not one farmer who would completely fit one strategy. The boundaries of the strategies are not always clear: all farmers work with cattle, technology and a combination of practical and scientific knowledge. The different farming strategies are analytical distinctions used by me as researcher; the farmers rarely use them themselves. However, the strategies do allow me to identify the central focus of a farmer’s attempt to ensure continuity. Van de Ploeg argues that a farming strategy is, on the one hand, the outcome of continuous confrontations and negotiations between the human and non-human elements involved in farming. It is the outcome of interactions between the family farming tradition, social relationships, technologies, cows, knowledge, market forces, and national and international regulations on adequate farming. On the other hand, a farming strategy is also shaping farming life, social relationships, and the use of technology, the use of knowledge, the attitude towards cattle, and the attitude towards the government. Farming strategies represent different styles of farming. Although I have introduced them primarily to characterise the thinking, handling and interactions of relevant social groups of farmers, I can also use the concept to characterise the attitude of the government with respect to farming. The government can, depending on for example the economic situation or European agricultural policies, decide to promote machine farming, or big farming or cow farming. With the theoretical approach sketched in this intermezzo, I will describe the various groups involved in the controversy on water pollution and cattle health. Theses are four groups of farmers and the government. Before doing so in detail, I will briefly sketch the historical context of Dutch farming.

31

Sjluchtwei is the Frisian term for vlakke weg, flat or smooth road, a farmer that farms in reaction to what crosses his path.

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2.2 The historical context of Dutch farming 2.2.1 The government and the farmers: conflicting farming strategies In the Netherlands, farming strategies were and are quite differentiated. Geert Mak describes how, for example, in the nineteenth century farmers did not posses much land, and the nutritional value of grass was not as high as it is now. A farmer could only graze a maximum of one cow per id. With the little land owned by a farmer, the one or two cows he could graze were not enough to provide a sufficient income. Therefore, the continuity of a dairy farm was secured by spreading evenly the production over dairy cows, meat cows, vegetables, and crops.32 In the past most farmer families were self-sufficient. Geert Mak describes how in 1849 approximately forty-four percent of the Dutch households earned a living with cattle, fields, vegetables or a combination of these. One century later, this number had decreased to twenty percent. In the 1950’s the milking machine entered the farms, and made the farmers’ aids superfluous. Tractors replaced horses. Within three decades, the labour to keep one dairy cow had diminished with 80 percent. In 1950 there were almost four thousand milking machines; in 1960 the number had increased to ten times that amount. After milking machines and tractors, the cooling tank was introduced. The acquisition of such a tank was problematic, since it obliged many farmers to take out a loan and change their farming strategy to the will of the bank. Geert Mak also describes how the intensification and mechanisation that were stimulated after the Second World War, led many farmer to quit and the surviving farmers were forced to adopt new technologies and new management techniques to meet new governmental requirements. “These changes, imposed by the government in order to secure the national foodsupply and to establish an export competition, had forced many farming families to retire because the line of continuity, which was so important to most farmers in those years, had been broken. Large-scale farmers took a flight forward because of developments like the cooling tank. Prices stayed low and their only means of survival existed of two words: more and efficiency. Another obstacle was introduced: capital. To the farmers, who had survived the former obstacles, a vicious circle arose: a spiral of continuous investments, more production, and more profit was unavoidable. The government stimulated this process in every possible way. Later on, that same

32

Mak, G. (1996). Hoe God verdween uit Jorwerd. Amsterdam, Uitgeverij Atlas.

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government would speak of moderation and rest, however at that point many farmers had already swum in the fish-trap.”33 By 1995, the Netherlands had become the country with the most intensive agricultural production of Europe. Geert Mak describes how the changes had decimated the amount of farmers, from three-quarters of a billion in 1950, to seventy-five thousand in 1995. The number of cattle had also decreased. To maintain the level of dairy production; mechanisation, automation and techniques such as breeding and genetic enhancement were used to change the cow into an optimal production machine. In 1950 a cow produced 3300 litres of milk annually. In 1995 this increased to some 6500 litres of milk annually, with maximums of 12000 litres in 2000. Farmers needed fewer cattle to produce the same amount of milk. In addition, the land available for farming decreased because of urbanisation processes. Not only did the farmers mechanize and intensify their way of farming, they also helped to ‘change’ or 're-construct’ the cows to meet the demands. Each farming strategy creates a new cow: “the milking robot, the centrepiece of the agricultural conference, the machine with which the cows will have to milk themselves. It starts off with the machine fitted for a cow and ends up with a cow fitted for the machine; it ends with a square cow, because it is easy in storage.”34 Most cows became top athletes, bred in such a way that every milk production organ reaches its optimal performance. This change annoyed many cow farmers, as the novelist Koos Van Zomeren describes: “in some way or another the calf changes into an obsessive milk-producing monster. Its head screams for milk, and the cow obeys. It has come to the point that a cow produces 7000 litres a year, ten times its own weight. The cow's production of milk can be compared to the ability of humans to run a marathon. However, not nearly every person runs a marathon, but almost every cow does.”35 I will now show how the government’s agricultural policies can be characterized in terms of farming strategies. 2.2.2 The Dutch government: from machine to cow farming strategy The government’s farming strategy can be expected to reflect changes in agricultural policy as induced by international developments and national problems. In the 1980’s the government’s farming strategy was machine farming. Due to changed competition positions, the Dutch milk and butter production could not compete with the cheaper dairy products from Eastern 33

Mak, G. (1996). Hoe God verdween uit Jorwerd. Amsterdam, Uitgeverij Atlas: pp. 89, translation Ruth Mourik. 34 van Zomeren, K. (1995). Wat wil de koe. Amsterdam, Uitgeverij De Arbeiderspers. 35 van Zomeren, K. (1995). Wat wil de koe. Amsterdam, Uitgeverij De Arbeiderspers.

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Europe and the Netherlands witnessed the emergence of seas of milk and mountains of butter. The overproduction and increased use of fertilisers and pesticides also caused environmental problems. In 1985, the Netherlands produced more milk then could be consumed or exported.36 In 1984, the European Union reacted to the agricultural problems of the 1980’s by setting a quotum for the amount of milk a farmer was allowed to produce. This quotum could be exchanged, sold and bought among farmers. To decrease the production of manure, the European Union decided that the number of cattle had to be cut back, and in order to keep up milk production the remaining cattle were selectively bred and genetically enhanced to produce more milk. In 1991 MacSharry, the European Union Agriculture Commissioner, proposed to reform the Common European Agricultural Policy. This would enable a dairy farmer, amongst other things, to receive a premium if he kept the number of cattle per id limited. According to Mak, these new resolutions were profitable to farmers with a small herd and a way of farming less oriented towards maximum production.37 Until the new EU policy in the 1990’s, the Dutch government had actively propagated four to five cows per id, favoured the computer or machine farmer, and saw the smaller and more traditional farmer as a problem.38 As part of its 1980’s farming strategy, the government had stimulated scale increase and intensive cattle herding by means of mechanisation, automation and other uses of scientific knowledge and technology. Although I am using the concept of ‘farming strategy’ to characterize the government’s policies as well as the farmers’ practices, there obviously is a difference. Governments don’t farm themselves. In addition, the governmental farming strategy reflects socio-economic and political interests. For example, in the 1960’s the Dutch government’s farming strategy had changed into machine farming. In the 1990’s, the government’s farming strategy changed again, now into a kind of cow farming strategy, among others as a response to the problems of the 1980’s and the new policy of the European Union. As I will describe later in this chapter, the shift in strategy was also particularly influenced by the government’s need to react to the water pollution controversy. The farming strategy of the government aims at influencing the farmers’ future strategies. Subsidies, for example, are allocated to farmers that farm in 36

For a detailed discussion of the Dutch (historical) agricultural context see: van der Ploeg, J. D. (1999). De virtuele boer. Assen, Van Gorcum. 37 Mak, G. (1996). Hoe God verdween uit Jorwerd. Amsterdam, Uitgeverij Atlas. 38 This is also argued by: Somers, B. M. (1991). Small farmers and agricultural extension. Surviving on a small farm in the Netherlands and possibilities for agricultural extension to reach a hard-to-reach category. Wageningen, Landbouwuniversiteit Wageningen. And also see: van der Ploeg, J. D. (1999). De virtuele boer. Assen, Van Gorcum.

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accordance with the governmental farming strategy. Because the governmental farming strategy is a reaction to current problems, and aims at alleviating problems in the future, it is future politics by agricultural means.39 Now that the Dutch agricultural context is sketched briefly, and the governmental farming strategy is described, I can introduce the four farmers and their farming strategies that are central to the water pollution controversy. 2.2.3 The strategy of a cow farmer: Jan van de Geest The farming strategy of Jan van de Geest, a farmer in a village called Nieuwlande, situated in the province of Drenthe, was focused on his cows and on his bond with the cows.40 “I have learned to observe, to use my eyes and to look at what happens in nature. I learned this from my father. When I visit my herd I can immediately see if something is wrong. For example, I know when one of my cows has a cold stomach, a stomach that does not work anymore. You make it out by the way the cow ruminates. One litre of Berenburger (Friesian gin, author’s addition) and she is well again within five minutes.”41 Knowing his cattle individually was important to Van de Geest because it was part of the cow farming strategy his father had taught him. Since that farming strategy had ensured the continuity of the farm in his fathers’ days, Van de Geest believed it was the best way to ensure that the farm would exist for another generation. 39

Langdon Winner developed this notion of politics by other means in: Winner, L. (1986). The Whale and the Reactor. A Search for the Limits in an Age of High Technology. Chicago, IL, University of Chicago Press. See also: Winner, L. (1999). Artifacts/ideas and political culture. Technology and the Future. A. Teich. New York, St. Martin's press. And see: Winner, L. (2000). Do artifacts have politics? Technology and the Future. A. H. Teich. Boston, Bedford/St. Martin's. Winner identified two ways in which this strategy is used. The first politics by other means that Winner discusses is politics through invention, design or arrangement of a specific technical device or ensemble. According to Winner, the technical device or ensemble becomes a way to settle an issue in the affairs of a particular community. The second strategy that Winner discusses is politics by other means in inherently political technologies. These are man-made ensembles, which appear either to require or to be strongly compatible with particular kinds of political relationships, without the designers’ intention. Technology, so Winner argues, requires its social environment to be structured, alike an automobile requires wheels to move. Winner also argues that a specific kind of technology usually is strongly compatible with, however does not strictly require certain social and political relationships. I will discuss this issue in more detail in chapter three, when discussing the concept of contextualisation. 40 Jan van de Geest and Klaas Pauw will receive more attention than Drenth and Calis because they were and still are involved in major conflicts with governmental and scientific institutes. Drenth’s and Calis’ involvement with the controversy on water pollution was short and their conflict with the government was solved after a short period of time. As a consequence, this chapter will provide more details on Pauw and Van de Geest than on Calis and Drenth. 41 Based on interviews with the farmer Jan van de Geest, 01-03-1998, 16-03-1998, 14-091998, 09-04-1999, 06-05-1999, 28-06-1998, 22-10-1999, 07-04-2000, and 01-05-2000.

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He aimed at a small but stable number of cattle. Owning thirty-eight ids and grazing some eighty milk-producing cattle and sometimes sixty younger animals on the land, he had a density of 3.7 animals on one id, which was a common density in the 1990’s. Van de Geest milked his cattle without a milking robot and he produced an amount of milk below the maximum annual production per cow. He did so because his cattle would have a longer life span if he did not burden them too heavily. A cow’s life span had to be long because it permitted Van de Geest to build up a relationship with the cow. The novelist Koos van Zomeren describes these cow farmers as follows: “these farmers do not stare themselves blind on the production per cow, computerised feeding, or their credit with the bank. They pride themselves on the trust of their cattle.”42 Because his herd was relatively stable Van de Geest did neither breed many calves to keep the herd stable, nor did he need to buy many cows. The herd produced a stable amount of manure that he could partly disperse on his land, and the rest was sold. He bought some crops in addition to the grass the cattle ate. All farming aspects were focused on the cattle. He was a genuine cow farmer. This focus on cattle was related to his distrust of technology. Van de Geest felt that it was unwise to trust agricultural technology and scientists and to entrust his farming strategy and continuity to scientific and technical changes. Berger describes the same distrust of technology among farmers in the Alps: “when a farmer resists the introduction of a new technique or approach, it is not because he does not see the possible advantages – his conservatism is not based on blindness or laziness – but because he knows the world and does not trust those advantages. If they would fail to materialize, he would remain behind, cut off from his rhythm of survival.”43 Van de Geest felt that the technological and scientific changes in agriculture weren’t improvements. This positioned him against the government that viewed the changes as positive, since they were part of the modernisation process of agriculture: “the post-war period, specifically the mid-fifties are characterised by an increasing state intervention in agriculture: agriculture had to be modernised.”44 However to many farmers these changes had a negative effect on their farming. The situation of these businesses became increasingly problematic with the introduction of new technological models, usually forming the core of modernisation as a material process. To Van de Geest the word ‘change’ had a negative ring, because it suggested a lack of continuity. His cows, in contrast, were stable. He knew them 42

van Zomeren, K. (1995). Wat wil de koe. Amsterdam, Uitgeverij De Arbeiderspers. Berger, J. (1994). De vrucht van hun arbeid. Het varken aarde. Ver weg in Europa. Sering en Vlag. Amsterdam, De Bezige Bij. 44 van der Ploeg, J. D. (1999). De virtuele boer. Assen, Van Gorcum. 43

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and his relation with them would not change as long as they lived. This continuity was also reflected in his stable relationship with his veterinarian. The veterinarian had learned to rely on Van de Geest’s judgement. The farming strategy of the cow farmer, with special focus on the relationship between man and nature, farmer and cattle influenced Van de Geest’s view of the water pollution strongly, as I will show later in this chapter. 2.2.4 The strategy of a machine farmer: Klaas Pauw Klaas Pauw, a farmer in Beets, a village in the Province of Noord-Holland, followed a different strategy to ensure the continuity of his farm. He had taken over the farm from his father, and held one hundred and ten dairy cows and some fifty youngsters on fifty-two ids of land. This meant a population of 3.1 cows per id, and it made him the most intensive farmer in the Beets polder. Pauw had thirty-two cows more than Van de Geest to handle and to milk. His farm was organised around state of the art dairy farming technology. He based his acquisition of high-tech improvements on publications and on suggestions from experimental farms from the Dienst Landbouwkundige Voorlichting (DLV), the Department of Agricultural Advice of the Ministry of Agriculture. He took many courses to learn the new technologies: “I like to learn and have always wanted to gather as much knowledge about farming as possible. As a farmer, you not only have to deal with animals, but also with machinery, hoses, presses, and turning lathes. I wanted to know all about these things, so I worked during the day and went to school in the evening.”45 Pauw also aimed at continuity of the farm life, however not through continuity of the farming strategy of his family. In the ten years since he had taken over the farm from his father, the farm had grown by almost one hundred percent and achieved a very high rate of mechanisation and automation. To achieve this growth Pauw had to deviate from the farming strategy of his father and grandfather. Pauw had worked hard to change the family business, so that cost efficiency was secured with mechanisation and automation, aiming at the highest possible production. Pauw’s strategy I will call a ‘machine farmer strategy’. To show how Pauw was characterised by the government I refer to a report from the Informatie en Kennis Centrum (IKC), the National Information and Knowledge Centre for Agriculture. In 1996 the Informatie en Kennis Centrum (IKC) received notice from the Ministry of Agriculture to research Pauw’s company because of the problems with the health of his cattle. The IKC concluded that the dairy cattle part of the farm was extensive. The farm had a relatively high degree of mechanisation. The manage45

Interview with the farmer Klaas Pauw in Braun, T. (2000). "Boerenslimheid." www.dezaak.nl (10-2000): pp. 60-61.

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ment was not focused on a high milk production through feeding, grooming, shedding or breeding measures, but on minimising the costs of food and fertilisers and maximising the revenues from turnover and crop. The IKC argued, in contradiction to Pauw, that his economic results were not good. The IKC characterised Pauw and his management as a do-it you-self entrepreneur with special emphasis on technology. Pauw however, labelled himself a cattle farmer: not a cow farmer, but a farmer that works with cattle. Exemplary to the degree of mechanisation and automation was Pauw’s milking robot, used to increase efficiency. Pauw used a computer application to breed his cattle. The breeding aimed at the better digestion of the diet, to increase the production of milk. Pauw also used computer models to calculate future efficiency effects of changes. He had an average annual modal production of 6700 kg of milk per cow. He hoped that in the future he could do with even fewer cattle to reach the same milk production. Thus the amount of manure would be reduced. Next to the high degree of mechanisation and automation, another aspect typical of a machine farmer was his heavy reliance on the aid of his veterinarian. The co-operation between a veterinarian and a farmer’s family usually goes back generations. Pauw’s veterinarian Jantijn Swinkels had also been his father’s veterinarian. A veterinarian knows the farm's history, which is valuable knowledge. This relationship must not be broken. Machine farmers who farm intensively cannot possibly watch over every animal individually. They trust upon a knowledge network of scientific health and nutrition experts. Pauw’s strategy also aimed at reducing the environmental impact of his farming. The Ministry of Agriculture had rationed the mineral outlet by farmers. The MINAS-law aimed at a minimisation of the impact on the environment. One way to accomplish this was to prohibit farmers to manure their land more than once every year. Consequently, many farmers had to hire manuring companies to process the manure. This was expensive. Before this law, the manure was dispersed on the land to increase the protein richness of the grass. Pauw installed a high-tech manuring system on his land. This system, consisting of pipelines from the dung-hole to the grazing lands and connected to the surface water, would pump the manure immediately onto the land, while it diluted it with surface water. This removed the necessity to drain the peat soil severely to allow heavy machines to ride on it for the dispersion of the manure. Moreover, the system created rest and security for many precious pasture birds and their eggs. The Ministry of Agriculture highly valued this system and even organised a public meeting on Pauw’s farm to promote this way of farming. Pauw aimed to stay ahead of what was likely to become governmental agricultural policy. All the actions Pauw undertook were aimed to be: "ready 33

for the year 2000. My cattle won prize after prize, I was a top-farmer, I made good money.”46 He expected the government would emphasise recycling and the self-sufficiency of farmers. He also saw how the government had stimulated farmers to farm in a more differentiated way, to spread their sources of income. Pauw recycled as much as possible, was as self-sufficient as possible and attempted to spread his sources of income: "I tried to solve the problem of being self-sufficient and controlling every aspect of my farming by using the manure of my own animals to fertilise the land. I used sheep to graze in the winter to remove the weeds instead of using pesticides, and I had a flower farm and holly bushes to spread the source of income.”47 Before I will show how Van de Geest’s and Pauw’s farming strategies resulted in different interpretations of the risk of water pollution, I first sketch two more farming strategies. 2.2.5 The strategy of an economical farmer: Henk Drenth The economical farmer Henk Drenth has a relatively small dairy farm. In the thirty years that the family exploits the farm, little has changed. The farm has grown a little smaller because Drenth has no son to take over the farm some time in the future. Drenth learned about farming from his father with whom he shared a farm. Because of unfavourable land redistributions, Drenth had to move to a new farm when he was twenty-one. Some forty-five cows graze on thirty ids, resulting in a cattle density as low as 1.5. The cattle produce 7000 litres a year per cow, which is more than Pauw’s production per cow. However Pauw aimed at efficiency in workload through technology. The maximum is considered to be around 12000 litres a year per cow. Drenth prefers his cattle to produce less, because that allows for a longer life span. A practical matter is that he is not be able to milk more because he has no help. The land lies directly behind the farmhouse, and his cows are not burdened with long walks. Drenth feeds his animals little additional nutrition because they can retrieve almost all nutrition from his own land. “I have never felt the pressure to expand. I have hardly any loans at the bank, and I don’t grow because I don’t have successors. I just want to farm, that’s all.”48 All of the elements of Drenth’s farming business are aimed to fit his notion of adequate farming. Drenth wants to farm easily, without having to make large investments or having to expand. He wants no more work than one man can handle. He borrows and invests as little as possible because investing would mean that he would work for the bank and not for himself. Moreover, the bank can then impose a farming strategy that he does not want 46

Interview with the farmer Klaas Pauw, 10-11-1998. Interview with the farmer Klaas Pauw, 02-05-2000. 48 Interview with the farmer Henk Drenth, 10-08-2001. 47

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to commit to, such as expansion. Drenth feels that high-tech is not necessary to farm since older mechanical aids are sufficient. Drenth aims to keep the farm as stable and small as possible because he believes that is the best way to secure economical continuity. This focus on an economical farming strategy would strongly influence Drenth’s view of the water pollution. 2.2.6 The strategy of a big farmer: Kees Calis The Calis family has yet another way of farming. The big farmer Kees Calis started his farm in 1973. He began with fifteen cows. Calis is now the biggest farmer in the neighbourhood. He has approximately three hundred and fifty cows and some two hundred youngsters. He grazes them on two hundred ids of land, which makes up for a cattle density of 1.9 per id. With 7500 litres of milk a year his cattle produces below maximum production. With that many cattle, it is essential to keep an eye on them, in order to avoid problems by noticing them too late. Because Calis has a mixed feeding and sleeping stable that does not allow the cows much rest, he needs to watch their health even more closely. In an interview with the novelist Koos van Zomeren, Jan van Weperen, another big farmer, also identified the need to watch carefully over the health of cattle when you have a big herd. Van Weperen has 400 dairy cows, with an average annual milk production of 9700 litres per cow: “every cent we can save stands for 36,000 guilders. Yes, that means maintaining a sharp focus.”49 Van Weperen is one of the biggest farmers in the Netherlands, however that does not imply a neglect of individual cows: just as Calis already concluded: “it isn’t true…that you loose sight of the individual cow with such a large number of cattle. And you shouldn’t. Infections can cause a disaster here. If the computer indicates a decrease in milk production, it is really too late. We have to be there first. Always watching, always talking, always touching.”50 The extra attention for the cattle is also needed because the land is dispersed and not situated near his stables. The land in that environment is difficult grazing land. It is often very wet and difficult to work on. To keep the land in good shape the cattle need to be moved often and Calis needs much land. The cows must walk extensively and because of that the cattle have to be robust. Calis breeds his own cattle. That way he can select the most robust cows to breed. Because all hands are necessary to keep an eye on the cows, he also needs many technical and mechanical aids. Hired helps do the land work. Calis does not want to achieve the growth of his farm through an

49 50

van Zomeren, K. (1995). Wat wil de koe. Amsterdam, Uitgeverij De Arbeiderspers. van Zomeren, K. (1995). Wat wil de koe. Amsterdam, Uitgeverij De Arbeiderspers.

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increase of milk production. To achieve higher milk production would diminish the robustness of his cattle. Calis rents and buys as much land as possible. He also bought the right to produce more milk. Expansion is very important for Calis. The bigger the farm the better continuity is ensured. He believes it is the only way to continue in a country where the government places an increasing number of restrictions on dairy farming and at the same time asks for more production. Calis feels the only adequate way of farming is to become as large as possible. With the farming strategies of the government and the four farmers sketched, I can now discuss how these different farming strategies resulted in different handling, thinking and interacting, thus demonstrating the interpretative flexibility of the water pollution.

2.3 Different farming strategies and the interpretative flexibility of the water pollution 2.3.1 The governmental farming strategy: no risk In the nineties, an increasing number of farmers started to complain to municipalities, waterboards about the cattle sickness they related to the pollution of surface water with peat compounds or sewage overflow discharges. As a consequence, there was a growing political awareness of the problem.51 That so many farmers labelled the water pollution a risk puzzled the government. After all, there was no solid scientific proof of a relationship.52 The Ministry of Agriculture mentioned that not all problems at Pauw’s farm could be explained with the theory of copper shortage only, but that the causes had to be located in the realm of management. The Ministry, however, also stated that it was increasingly confronted with a growing number of farmers that complained about water pollution in Noord-Holland.53 The government stated that it was not the water pollution, but the lack of scientific knowledge about the pollution that presented the actual risk. The farmers saw risks where there were none, according to the government. The political impasse that thus followed the peat soil and the overflow controver51

I will describe how the controversies evolved in the political arena in chapter four. What is considered ‘solid proof’ will depend on the situation. Different actors in different situations will have different definitions of what counts as solid scientific evidence. I will discuss the negotiation process that leads to different criteria for knowledge being scientific in chapter four. 53 Ministerie van Landbouw Natuurbeheer en Visserij (1997). Gezondheidsproblemen runderen in Noord-Holland. 971121/DNW. Den Haag. 52

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sies, in combination with the growing number of farmers that complained about the pollution of the water led the Ministers of the Ministry of Agriculture and the Ministry of Watermanagement to create two working parties. The two working parties were assigned to investigate the problems. The Ouwerkerk interdepartmental working party, chaired by H. Ouwerkerk, was assigned to investigate the Pauw case and to formulate recommendations.54 The Meijer working party, chaired by Theo Meijer, had to make an inventory of the overflow problem in the Netherlands and had to resolve the issue of who was responsible for the related water pollution. While the working parties investigated the controversies, new scientific results were published. In 1998, the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP), the Dutch research institute for Environment, Energy and Process Innovation published a report on the relationship between the water pollution and the cattle’s health problems.55 I will now briefly summarise the results and discuss this report in more detail in chapter four. According to the TNO-MEP researchers, a combination of factors, created a situation in which the compounds nitrogen and sulphur existed in a toxic form as sulphide, ammonia and nitrite. This polluted ditchwater might cause a serious copper deficit in animals and might lead to other health problems. The compounds sulphide, nitrite and ammonia could exist because of a combination of factors: a lack of oxygen in (semi-) stagnant ditches, seepage water, extensive manuring and the presence of peat soil. TNO-MEP argued that the polluted water primarily seemed to decrease resistance in cattle, making the cattle more prone to stress factors caused by changes in animal and farming management. However, it was also possible that management had generated a decreased resistance, so that cattle were more vulnerable to the effects of water pollution. The TNO-MEP researchers concluded that by 'management' they did not necessarily refer to mismanagement, but to intensification of livestock breeding: “stockbreeding and dairy farming have undergone enormous intensification. At present, a cow produces 8,000 to 10,000 litres of milk a year, against 5,000 litres several years ago. As a consequence, a cow now drinks 250 litres of water a day, especially on a hot summer day, compared

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Ministerie van Landbouw Natuurbeheer en Visserij (1997). Gezondheidsproblemen runderen in Noord-Holland. 971121/DNW. Den Haag. 55 Dokkum H.P. van, M.C. Th. Scholten, D.P.C. van der Veen, S. Huwer & R.G. Jak (1997). Kwaliteit van boezem- en polderwater rond Burgerbrug (de Zijpe) in relatie tot de gezondheid van weidevee. TNO-rapport. TNO-MEP- R97/393.

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with 100 litres previously.”56 In a sense, the TNO-MEP researchers referred to the management of machine and big farmers. The Meijer working party, investigating the overflow problem, accepted the TNO-MEP results. And, in doing so, the governmental working party labelled the machine and big farming strategies a risk to the health of cattle. The Ouwerkerk working party, on the contrary, concluded that there was only a possible relationship between the water pollution by peat decay and cattle sickness. In 1996, additional research conducted by the Gezondheidsdienst voor Dieren (GD), the National Animal Health Service organisation for the animal health and quality control for Dutch livestock farmers, veterinarians and livestock industry had shown that molybdenum pollution in water and soil could be the cause of serious cattle health problems.57 Yet the Ouwerkerk working party stated explicitly that Pauw’s management did cause a disturbance of the very delicate equilibrium between feeding, grazing, production and breeding management. Pauw’s animals probably had become too weak to resist even the smallest intoxication. Via this verdict on Pauw, Ouwerkerk implicitly labelled all machine farming strategies a risk to the health of cattle, just like the Meijer working party. When these working parties presented their findings, a controversy arose between the farmers and the Ministry for Agriculture, the Ministry of Watermanagement and the Ministry of Housing, Spatial Planning and the Environment.58 The farmers accused the government of reacting to the water pollution by changing its farming strategy from machine to cow farming. A debate developed about this changed farming strategy. I will return to this controversy in the section on the governmental solution for the water pollution in chapter four. The government had difficulties to decide what to communicate to the public: was the water safe, not safe, or was this simply unknown? The government had been worried as to what the effect of their statements regarding

56 Interview with Martin Scholten and Henno van Dokkum, researchers at the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP), 07-01-1998. 57 Gezondheidsdienst voor Dieren (1996). Molybdeen. GD, Drachten. See also: Gezondheidsdienst voor Dieren (1996). De voorziening van koper (CU), molybdeen (Mo) en zwavel (S) op het bedrijf van K. Pauw te Beets (NH). GD, Drachten.. And also see: Komijn, R. E. (1996). Bijeenkomst evaluatie bedrijf Pauw te Beets. Verslag vergadering 16-09-1996. 58 Commissie Ouwerkerk (1997). Verslag overleg Commissie Ouwerkerk 29-09-1997. See also: Werkgroep Riooloverstort Meijer (1998). Een stelselmatig probleem. Aanpak riooloverstorten. Werkgroep riooloverstort. Den Haag. Also see: Logtenberg, A. B. V. (1996). Reactie op het eindverslag van de commissie Ouwerkerk. Dalfsen. And see: Team Environment, B. E. M. C. (1998). Rapport Commissie Ouwerkerk: De achterkant van het gelijk. Een beschouwing van de bedrijfs- en milieutechnische conclusies in het rapport commissie Ouwerkerk.

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the quality of the surface water would be already since 1995.59 It suffices to mention here that the Ministry of Agriculture, the Ministry of Watermanagement and the Ministry of Environment at that time were convinced that the farmers did act irrationally when they labelled the water pollution a risk in spite of a lack of solid proof. Municipalities and waterboards were warned that any message that there was no solid proof of the safety of the water would generate commotion amongst the farmers.60 Such lack of scientific certainty would lead the farmers to think the worst of the situation, and would lead them to interpret words in a negative way. Farmers themselves however, were convinced they acted rationally and that their reaction was based on sound evidence. Still, in each farming strategy the water pollution posed a different risk and led to different reactions to the pollution. 2.3.2 The cow farming strategy: cows at risk When Van de Geest asked his veterinarian De Bie for help in 1991, De Bie had already experienced several years of unexplainable cattle health problems on Van de Geest’s farm. The cows suffered from abscesses, it was difficult to get them in calf, they lost weight, and they experienced several infections. This time, the most important symptom was that the cattle that were in calf underwent spontaneous abortions or gave birth to dead calves. It looked like Abortion Bang: a highly contagious bacterial infection causing cattle to abort. 61 However, when he sent material of the foetus to research labs, the labs could not find any cause for the abortion. Nothing had changed in feeding, stabling, or manuring management. Van de Geest did not have an overcrowded barn, which could increase the risk of infection; neither did he have continuous supply of new cattle, which could introduce possible infections from the outside. De Bie did not question Van de Geest’s management either. He trusted the experience and judgement of Van de Geest, since Van de

59

Veterinaire Inspectie van de Volksgezondheid voor Groningen Friesland Drenthe en Overijssel (1995). Riooloverstorten. u 51144 HP fk. Veterinaire Inspectie van de Volksgezondheid voor Groningen Friesland Drenthe en Overijssel. 60 Veterinaire Inspectie van de Volksgezondheid voor Groningen Friesland Drenthe en Overijssel (1995). Riooloverstorten. u 51144 HP fk. Veterinaire Inspectie van de Volksgezondheid voor Groningen Friesland Drenthe en Overijssel. 61 With this abortion millions of bacteria are spread in the environment, thus passing on the infection orally to other cattle. This sickness is also dangerous for humans, and thus has been fought. Since twenty years the sickness occurs only incidentally, and can be traced back to the import of cattle from areas where it still occurs. See: Praktijkonderzoek Rundvee Schapen en Paarden (1997). Oppervlaktewater als drinkwater.

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Geest was a cow farmer that could recognise illnesses because of the special bond with his cattle. Van de Geest noticed that this bond between farmers, nature and cattle started to fade with the coming of young farmers, who were taught not to rely on that practical knowledge but on professional knowledge taught to them during their higher education in special agricultural colleges. Van de Geest was certain that this would have an effect on the quality of cattle farming, given that this bond is what makes a cow farmer: a farmer with a special connection with cattle and land. “I have learned to observe, to use my eyes and to look at what happens in nature. I learned this from my father. It is something I cannot explain. I have a connection with nature. When I visit my herd I can immediately see if something is wrong. I do not need to count my animals to know whether one is missing. I recognise sicknesses by looking and listening. For example, one day I had a cow that was not well, I knew she had an uterus infection because of the dark urine and because I heard it when I listened at her chest. I cannot use a stethoscope. I use my ears.”62 De Bie, certain that Van de Geest’s cow farming strategy did not cause the problems, considered other possibilities and asked Van de Geest to recall what might have changed in the past years that might affect the cattle’s health. Until 1984, Van de Geest had had fewer cattle and used water from peat soil wells as drinking water for the cattle. In order to grow, he built new stables and held more milk producing cows and youngsters. Those animals did not appreciate the water from the wells and he let them drink the surface water from the ditches on his land. Around that same time, extensive land reorganisation had taken place. Some of his ditches were dammed, and others had to be handed over to the waterboard, so that they could use it for water supply or other purposes. Since about that period, Van de Geest remembered that his cattle and his family often got infected with salmonella and other infections. Van de Geest had also noticed then that the land reorganisations had a negative effect on the fauna and flora in the ditches. The water had become so transparent that one could see a meter deep. This was very unusual in the ditches that farmers used. These ditches were not very deep or broad; they were filled with vegetation, and easily accessible to the cattle. The water used to be dark, containing water fleas and other life. Van de Geest remembered that he had witnessed the disappearance of water plants in some ditches, and everything that was flooded up to twenty centimetres above the normal water level had died. 63 Van de Geest had also observed that the water fleas and frogs had disappeared. His father had taught him to measure the quality of the envi62 63

Interview with the farmer Jan van de Geest, 07-04-2000. Interview with the farmer Jan van de Geest, 14-09-1998.

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ronment by the presence of biological indicators: frogs and water flees were ideal animals for that purpose. If those animals disappeared or acted up, it was a sign that something was wrong with the water. Van de Geest had witnessed no other significant change in nature in the past years, so to him the water and land reorganisation offered the only plausible explanation for the bad quality of the water. Van de Geest did not worry too much at the time. Although viewed from the cow farmer’s strategy problems could be expected to emerge from an interaction of technology and nature; the knowledge that accompanied his cow farming strategy taught Van de Geest that nature always rebalances, if man and technology do not interfere too aggressively. He compared it to spring, when frogs and other animals that have been frozen in ditches for several months come to life again. Van de Geest looked for the technological interference that caused the contamination and found a sewer overflow on his land - something he had not been aware of. Van de Geest learned that during heavy rainfall, the sewer system of the neighbouring area could not cope with the amount of wasteand rainwater. Under those circumstances, sewer water with sewage sludge was discharged into the ditch. Usually the waterboard flushes the areas with additional water later on, except during hot and dry summers, when there is a water shortage. Van de Geest related this to his problems and recalled that it was especially during hot summers that his cattle experienced the spontaneous abortions. For him the matter was clear now: “if the water is dead, the cows die as well.”64 Since the problem was a technological one, the bodies responsible for that technology, the waterboard and municipality, should handle the situation, Van de Geest argued.65 However, the municipalities demanded scien64

Interview with the farmer Jan van de Geest, 07-04-2000. This view of nature fits what within Cultural Theory is called the nature ephemeral perspective. Although Cultural Theory is developed to apply to political cultures, it is illuminating to link it to Van de Geest’s view of nature, because it partly explains his actions and his labelling the problems as problems related to the delicate balance between technology and nature. Cultural Theory relates perceptions to specific socio-cultural groups and explains risk controversies as the outcome of four conflicting political cultures, four worldviews of nature. The first view perceives nature as a capricious force that, because of that capricious character inhibits humans to learn about nature. The second view perceives nature as tolerant. There are limits to the balance of nature, and once those are passed it can lead to catastrophe. The third view perceives nature as benign. There are no limits to the balance of nature since nature always heals itself after a perturbation. The fourth view perceives nature as ephemeral: a minor perturbation can lead to the destruction of the delicate balance of nature. These four different views of nature order a specific way of life and lead to a pluralist rationality, which means that knowledge and understanding of the world is interpreted differently, depending on one's worldview. As a result, controversies have four different sides, and a problem is different to different actors, and for some there even is no problem. These different views of nature can

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tific proof. Although Van de Geest’s use of water fleas was the way a cow farmer measured the water quality, this was not a scientifically accepted way of testing. Van de Geest hired the Gezondheidsdienst voor Dieren (GD) to conduct research into the quality and the GD concluded that the water could not safely be used as drinking water for cattle because of raised nitrite and EColi levels.66 One of their observations was that the water of ditches that was not in contact with the open surface waterways was least contaminated. The ditch nearest to the overflow was the most severely polluted. Although on one hand a causal relationship between the cattle’s health problems and the water pollution could not be established, on the other hand the GD could not exclude the possibility that the nitrite and E-Coli did cause the animal health problems. Van de Geest’s farming strategy had resulted in a specific view of the water pollution. Van de Geest had defined the water pollution to be the result of technological interference. And reasoned from the strategy of a cow farmer, this water pollution put his cattle at risk. Not his expansion was at risk, not his efficiency, not his business, but his cattle. Van de Geest had defined the water pollution, not solved it. The GD did establish the water pollution, but did not establish a one on one causal relationship between the water pollution and the cattle sickness. The waterboard, however, would not act without scientific proof of a one on one relationship; in spite of the problems farmers were experiencing. The matter remained unresolved.

lead to major cultural clashes in interpretation and perception of a risk or a problem. Each political culture, except for the first, selects risks that are functional to maintain its own preferred social organisation. For an extensive description of Cultural Theory see for example: Douglas, M. and A. Wildavsky, Eds. (1983). Risk and culture: an essay on the selection of technical and environmental dangers. Berkeley, University of California Press. And: Douglas, M. (1992). Risk and Blame: essays in cultural theory. London, Routledge Also see: Schwarz, M., Thompson, M., Ed. (1990). Divided We Stand. Redefining Politics, Technology and Social Choice. Philadelphia, University of Pennsylvania Press. And: Wildavsky, A., Drake, K. (1990). "Theories of Risk Perception: who fears what and why." Daedalus 119(4). Also see: Nelkin, D. (1985). The language of risk. London, Sage. And: van Asselt, M. B. A. (2000). Perspectives on Uncertainty and Risk. The PRIMA Approach to Decision Support. Dordrecht, Kluwer Academic Publishers. 66 Gezondheidsdienst voor Dieren (1991). Uitslag watermonsters oppervlaktewater Riegmeer, derde wijk waterschap Riegmeer. W 1083. GD, Drachten. And see: Gezondheidsdienst voor Dieren (1992). Uitslag watermonsters bron rioolzuiverings installatie Oosterhesselen. W 29. GD, Drachten. See also: Gezondheidsdienst voor Dieren (1992). Uitslag watermonsters Jufferswijk. W 4. GD, Drachten.

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2.3.3 The machine farming strategy: efficiency at risk During the winter of 1995, the machine farmer Klaas Pauw noticed that some dairy cows suffered from various affections to the joints, eyes, and other organs. These cows were also hard to impregnate and the calves he had so precariously bred were born dead or not born at all. Because of the health problems of his cattle, the production of milk decreased severely. This was a major loss. After several months, when even more cattle fell sick, Pauw contacted his veterinarian Jantijn Swinkels. Swinkels tested the cattle for several diseases including BSE.67 He could not diagnose or identify the cause. Pauw and Swinkels called upon the GD for help. After some blood sample research, the GD concluded that the cattle suffered from a bacterial infection originating from a fungus infection. According to them, this infection had not been adequately cured because an overcrowded population in the barn had caused further injuries.68 After a while the GD concluded that the treatment they had set up, although usually successful, did not cure the animals. They decided it was better to put down the sick animals.69 Additional veterinary investigation showed that the animals also suffered from a copper deficit. This is a normal phenomenon among animals that graze on peat soil, and a farmer must feed his cattle additional minerals. Because Pauw could not prove that he had given the minerals to his animals, Swinkels and the GD both believed Pauw had not done so.70 Swinkels accused him of negligence. He also argued that Pauw had sent for him too late: “we did not have a history of the animals or the farm because we were never called upon… but I can not blame him, it was part of his way of farming.”71 With this comment Swinkels accused Pauw of not committing himself to the proper way of farming for a machine farming, meaning a heavy reliance on a veterinarian. At the same time Swinkels explained but also condoned Pauw’s actions by referring to his specific individual way of farming. On top of that, Swinkels classified the barn and lying boxes as dangerous. They were too small and with sharp corners and edges that could cause injuries. Swinkels believed that it was more important to Pauw to protect his (technological) investment than his cows’ health: “the general condition of 67

At that time, Bovine Spongiform Encyphalophy, BSE, was diagnosed in the United Kingdom and other European countries. 68 Gezondheidsdienst voor Dieren (1995). Verslag bedrijfsbezoek Pauw 23 juni 1995. RUN/JV/95610727. GD, Drachten. 69 Gezondheidsdienst voor Dieren (1995). Verslag bedrijfsbezoek Pauw 23 juni 1995. RUN/JV/95610727. GD, Drachten. 70 Dierenartsenpraktijk VEO (1995). Een uitbraak van atypische Actinobacillosis bij jongvee. And see: Veevoeding Adviesburo VAB (1995). Bedrijf Pauw. Voorthuizen, VAB. 71 Interview with Jantijn Swinkels, former veterinarian of farmer Klaas Pauw, 20-10-1999.

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his cattle was bad, even a layperson could see that. He did not take appropriate care of his animals. My colleague had been the veterinarian for Klaas Pauw’s father for thirty years; he was called in regularly, and never had any serious problems. But ever since Klaas took over the farm, he called for a veterinarian only once or twice a year, when things were getting out of hand… He was not a cow farmer, he did not care for his animals.”72 Pauw disagreed with that judgement and felt wrongly accused: “I do a lot to preserve nature; I love to watch the small birds in the grazing lands. I built a technological state of the art manuring system just for the birds… And I know how to feed my animals, I did everything according to the computer program and my animals never suffered before.”73 He decided never to call upon Swinkels again. This decision did not fit the strategy of a machine farmer, because these farmers heavily rely on the aid of a veterinarian. The GD, who also felt that a dairy farmer should never be without a veterinarian, let alone argue with him, did not take this measure lightly. The continual co-operation between a farmer and veterinarian was part of the machine farmer’s strategy. When Pauw severed the ties with his veterinarian, the GD relied only on the expertise of the veterinarian. That veterinarian had labelled Pauw a mismanager, and the GD shared this conclusion: “Pauw was a machine farmer. He had a complicated manuring system. He was a merchant. And he continuously occupied himself with his machines. We also found traces of oil in the soil and water, probably from his cars and machines.”74 Pauw also called upon his catastrophe-risk insurance adviser, Dik Van Nederpelt, for financial aid. This fitted his machine farmer’s strategy because he was not able to run his farm in a self-supporting manner any longer and efficiency came at risk. Machine farmers like Pauw, with a dense cattle population, a high rate of mechanisation, and high debts usually take out such insurances, to cover the risk of inefficiency. Van Nederpelt contracted a new veterinarian, H. Logtenberg. He asked him to investigate whether the cattle’s health problems were related to Pauw’s animal and farming management.75 Logtenberg used the same protocol the GD used for its investigation but concluded that Pauw’s animal and farming management was sufficient.76 Perhaps the shedding circumstances 72

Interview with Jantijn Swinkels, former veterinarian of farmer Klaas Pauw, 20-10-1999. Interview with the farmer Klaas Pauw, 02-05-2000. 74 Interview with Koos Verhoeff, researcher at the Gezondheidsdienst voor Dieren (GD), 2909-1999. 75 Animal management relates to feeding, breeding and acquisition techniques that might have negative effects on the cattle health. Farming management relates to stabling techniques. 76 Logtenberg, A. B. V. (1996). Rapportage over de gezondheid en welzijnstoestand van het rundvee op het bedrijf Pauw, Beets 138, te Beets per 1 december 1996. Dalfsen. 73

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were not optimal, but the older shedding was sufficient, and Pauw was also building a new shed. The insurance company paid Pauw a certain sum to cover his financial losses. Van Nederpelt stayed on to look into the cause of the problems, because Logtenberg had argued that injuries by the shedding could not account for the severity of the symptoms. The dead born calves and the blindness of several cows and calves could not be accounted for by a bacterial infection. According to Logtenberg, this infection usually affects only a few cows, not twenty or more, as was the case on Pauw’s farm. Although Pauw had received financial aid from his insurance company, he still had to run his farm in an efficient way, and to do so he needed to get rid of the label of ‘inadequate’ farmer. The farming strategy of the machine farmer shaped his perspective of the situation. Not only did he view the water pollution as a risk to the efficiency; he also needed to demonstrate that it had not been his farming strategy aimed at efficiency that had caused the problems. To defend his farming strategy, he needed to make someone or something outside his farm responsible for the problems. In 1996, Pauw believed that he was the only farmer with these problems, which allowed him to exclude air pollution. He also believed that the soil was safe, since he had grown his nutritional necessities on that soil for years and had never experienced problems before. The only ‘nutritional’ aspect left was the water. Some of the ditches he used to water his cattle smelled odd. Moreover, bubbles and turbulence occurred in the ditch water whilst they should be stagnant. Water pollution was a hot item in the scientific and agricultural literature Pauw read. Pauw did not have control over the quality of the water. In fact, this was one of the few aspects of his farm he did not have control over. The actions available to him as a machine farmer were limited. He called upon science, because that was the source of knowledge that machine farmers typically relied on. He was certain that scientists would locate the source of the cattle sickness. Van de Geest had also called upon scientists, but only after the municipalities had not accepted Van de Geest’s practical knowledge and had required sound scientific proof. Pauw, as a machine farmer, however, turned to scientists almost immediately. Already in 1995 Pauw had asked the GD to analyse the water. The analysis was presented in 1996 and showed that the water was contaminated with raised levels of sulphide and sulphate.77 The GD labelled the water unsuitable as drinking water for cattle. Pauw and Van Nederpelt were convinced that something in the environment caused the water pollution. They 77

Gezondheidsdienst voor Dieren (1996). Commentaar op resultaten analyses US. GCC/GCC 9645.313. GD, Drachten. And: Gezondheidsdienst voor Dieren (1996). Reactie op rapport US. GCC/GCC 9650.551. GD, Drachten.

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asked the GD to investigate this possibility. The GD refused. At that time, 1996, there was a lack of scientific proof to support a causal relationship between water pollution and cattle sickness, and the GD remained of the opinion that its earlier conclusion (that Pauw had neglected his animals) was correct. Pauw now only had two options. He could either continue farming following the machine farmer’s strategy, or quit farming altogether. Choosing to continue with another farming strategy also meant the end of farming, since he would need to change all aspects of his current farm. He would need another staple of cows, cows that produced less milk and were more resistant to pollution, he would need more land, to give his cows more room to graze, and he would need to change much more aspects. In the end this would cost him not only too much time, but also too much of his finances. He had taken extremely high mortgages on his farm several years before to change the farming strategy of his father into a strategy that fitted a machine farmer. Doing this change a second time would not be feasible. He chose to continue with the strategy of the machine farmer, and tried to tackle the situation from within that strategy. Since the GD was unwilling to conduct scientific research, Pauw started his own experiment. He installed a pipeline and fed part of his herd with that new and clean water. At the same time, he kept feeding another part of his herd with the polluted surface water. To him, this action seemed logical because it was a scientific approach to the situation. He had two groups and could now establish whether the surface water was indeed the cause of the health problems that his cattle were experiencing. However, this action did not change the perspective of his ex veterinarian, the GD and of the Veterinaire Inspectie (VI), the governmental department for veterinary health inspection that was newly involved through the GD. Pauw’s experiment convinced them that he did not care enough for his animals, and that mechanisation and automation were the only important elements in his farming strategy. This technological focus had led him to keep: “his animals on the polluted drinking water, to prove they were sick because of that water, but he had better taken them off that water, to prove they got well when they did not drink it.”78 All his actions were interpreted as belonging to a farmer who raised cattle to work with high-tech machines, and to whom enterprising was more important than the well being of his animals. Although a machine farmer’s focus is on machines, he still is expected to farm because he loves to work with machines and cattle. Pauw had failed to prove that he also loved his cattle. The Veterinaire Inspectie (VI) concluded that: “Pauw is not a good farmer, he is a merchant. He bought and sold animals constantly. He is not a 78

Interview with J. Minderhoud, researcher of Veterinaire Inspectie (VI), 17-09-1999.

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real dairy cow farmer. He did not feed his animals on time and he fed them inferior fother. He just is not a dairy farmer. His grandfather had founded the farm. He was a great dairy farmer. His mother was a great dairymaid, but his father already traded his animals more often. Klaas Pauw is more of a merchant than he is a farmer. Even his neighbours and his veterinarian label him a merchant, a bad dairy cow farmer.”79 In 1997, Pauw had taken almost all his cattle to the slaughterhouse, including the cattle that had drunk the pipeline water. These cows had not recuperated, Pauw argued, because they were already weakened and still ate the infected grass. Abscesses and affected organs were cut away, and the meat was approved for consumption. Had they diagnosed the meat unfit for consumption, this would have had major economic consequences because of national and international export boycott. Since the diagnosed afflictions were not part of the meat, but present in the form of removable parts, the meat was approved. This worried Pauw, although he could not stop the slaughter. He felt that public health was in danger since the cause of the pollution, the effects on cattle, and possible effects on humans were scientifically uncertain. Pauw was of the opinion that neither the meat nor the milk of the infected cows should be consumed: “if my cattle is drinking polluted water, I am drinking polluted milk.”80 Pauw publicly announced his accusations through the media. Responding to these accusations in order to avoid a large-scale public scandal, as mentioned earlier the government had already installed the Ouwerkerk committee to thoroughly evaluate Pauw’s case. The committee also came to the conclusion that Pauw was to blame: “farmer Pauw failed to manage his business because of his own ignorance. Pauw just did not listen to veterinary feeding advice. Moreover, the committee argued he did not take good care of his animals and shedding was inadequate.”81 The farmer Pauw had partly acted according to the strategy of machine farmers. He had defined the water pollution as a risk for the efficiency of his farming. He had relied on technologies and scientific knowledge to find the cause for the water pollution. However, in the view of his critics, he had not sufficiently acted in accordance with the strategy of a machine farmer. He had neglected his cattle, even put it to danger the GD and the VI argued. 2.3.4 The economical farming strategy: sound finance at risk To farm economically was the farming strategy of the Drenth family. They felt that their economical aim was a risk when the cattle had difficulty to get 79

Interview with J. Minderhoud, researcher of Veterinaire Inspectie (VI), 17-09-1999. Interview with the farmer Klaas Pauw, 06-02-1998. 81 Commissie Ouwerkerk (1998). Rapport Commissie Ouwerkerk. 80

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in calf in 1990. The cows that were in calf suffered abortion. The troubles persisted and milk production went down. Drenth turned to his veterinarian. The veterinarian was convinced that it could not have anything to do with Drenth’s management, because this was a constant factor. He advised Drenth to monitor strange occurrences. From that moment on, Drenth noticed that when he brought his cattle inside for milking, they fought to get to the pipeline water. That was strange because they had ample opportunity to drink from ditches outside. Drenth started to inspect the ditches. He noticed that the ditch that ran from the street, by his farm, and along the grazing fields, smelled terribly. It was filled with junk and Drenth looked for the source of the pollution. It appeared to come from a water tunnel under the road. Around 1995 Drenth went to the municipality to retrieve more information. He learned that there was a sewage overflow under the road. The overflow had been there already when Drenth moved to this farm in 1980, but started to discharge more often since the beginning of the nineties. More houses were built, and more roads were connected to the sewer. The amount of water that had to be recycled exceeded the capacity of the sewage. “Normally approximately six discharges are allowed every year. In the summer relatively few discharges take place, which is part of the problem. In the dry summer months dried muck piles up in the sewer pipes. When finally a good downpour takes place, this filth is flushed out in a ditch in one discharge. This filth is not only waste water and human faeces, but also waste from the street, tampons, condoms, medicines and other strange junk.”82 Drenth and his veterinarian both were familiar with the possible problems related to overflows because articles had already appeared in agricultural newspapers and magazines. They felt certain they had found the cause for the cattle sickness. They immediately complained to the municipality and the water manager. These agencies put the overflow on a list for redevelopment, but nothing really changed. Drenth was no longer able to farm economically. His economical aim and consequently his farm were at risk because he had little margin in the amount of milk production he could lose without getting into financial trouble. Also, he could not afford to lose his carefully bred calves. He did not want to buy new calves because they could very well bring new disease in the herd, and he could not afford to buy a new herd all at once either. It was probable that the bank would not even grant him a loan, since he did not have a successor to take over the farm. Moreover, these new investments did not fit his farming strategy of economical farmer. Because he did not have the financial leverage to alter his farming strategy, Drenth viewed the water

82

Interview with the farmer Henk Drenth, 06-03-1998.

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pollution as a risk to the continuity of his farming practices because it endangered his financial independence. 2.3.5 The big farming strategy: expansion at risk Kees Calis was experiencing serious problems around 1985, and saw that his aim of expanding was at risk. He could not get his cattle in calf anymore, even with artificial insemination. Many of the cattle that were in calf aborted that summer. The milk production decreased severely. He quickly related the health problems of the cattle to the presence of an overflow. Calis had read about a possible relationship in newspapers and magazines. The overflow did not function properly: “the discharge is so enormous that …my land is flooded. Condoms, sanitary towels, and the rest of the junk stay behind. The municipality then comes quickly to clear the garbage, but it still partly infiltrates the land. I realised the relation between that overflow and the sickness of my cattle because many of my cattle than aborted.”83 After every discharge, his cattle experienced more problems. To exclude the possibility that something in his management caused the cattle sickness, he asked the GD to investigate the aborted calves. As I already argued in an earlier section, for a big farmer it is really important to monitor the impacts of the animal and farming management on the animals. The GD research cost him a large sum of money but did not lead to clear conclusions. “After some time I saw the relation and so I kept my cattle in the shed for two weeks after a discharge had taken place. But the problem was not solved with that measure because the waterboard dredges the ditch in the summer and the sludge is dispersed on the land. As farmer near that ditch I am obliged to receive the sludge.”84 He then asked the GD to analyse the water. The GD labelled the water as unsuitable drinking water for cattle. This water pollution was a risk to Calis’ aim to expand. His average milk production decreased, which meant that he would not be able to buy a larger milk quotum, and would not be able to grow. And with the loss of unborn calves, he also lost future calves and cows selectively bred to match with his farming strategy. When Calis turned to the waterboard and the municipality, they refused to help him. Although the GD had proven that the water was polluted, they did not prove that the water pollution caused the cattle’s health issues. Above all, Calis did not have the time to negotiate with the governmental bodies: “I have thought about submitting an insurance claim to the municipality or the waterboards, but I was afraid that my farming days would be long since over by the time the law suit

83 84

Interview with the farmer Kees Calis, 06-03-1998. Interview with the farmer Kees Calis, 06-03-1998.

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would be settled.”85 Thinking from the strategy of a big farmer, this lack of proof and the water pollution itself posed a risk to Calis’ need to expand. The water pollution in a sense also posed a risk to the health of Calis’ cattle as Van de Geest experienced the pollution, and it could also pose a risk to Calis’ finances as the water pollution did for the economical farmer Drenth, but these aspects were not the real problem for Calis, in the end it was only the risk of not being able to expand that Calis experienced as the ultimate effect of the water pollution. All four farmers viewed the water pollution in terms of what the effect might be on their farming strategy, and the farmers described the risk of the water pollution in those terms. For the big farmer the water was a risk for his expansion. For the cow farmer the water was a risk for the health of cows. For the economic farmer the water put the finances at risk and for the machine farmer the water put machine farming at risk. I have described how farmers and government see different forms of water pollution, and demonstrated the interpretative flexibility of water pollution. More is involved than mere differences in farming style. The interpretative flexibility of water pollution is revealed when the pollution is described as it is seen from the different styles of farming. Not only the ways of farming are different in these worlds, but also what counts as risk and evidence. The water pollution was different for the four farming strategies. The pollution was a risk to health of cows, a risk to expansion, a risk to finances and a risk to machines at the same time. For the four strategies the water pollution posed a different risk, but this does not imply that if a farmer were to change his farming strategy the problem would be solved. As already shown in the case of the machine farmer, switching from one strategy to another is not easily done and usually means such huge expenses that the farmer would be bankrupt. In addition, the water was a risk to all four strategies, and switching would simply mean that the water pollution would still pose a risk, however in a different but equally endangering manner. Linked to different risk conceptions, equally different solution strategies were corresponding.

2.4 Interpretative flexibility of water pollution: different solutions 2.4.1 The solution for the government All of the governmental agencies pursued two solutions to deal with the consequences of the water pollution. The first solution was to get farmers to in85

Interview with the farmer Kees Calis, 06-03-1998.

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stall pipeline water on all farms with problems. The second solution was to get all farmers to change their farming strategy into a kind of cow farming strategy. The pipeline solution was the governmental reaction to the many pervasive scientific uncertainties. The working of the stomachs of a cow is still of some mystery to scientists. The cattle’s ability to cope with the effects of toxic compounds or a combination of compounds is also unknown. And most importantly, there was still no clear scientific proof of a relationship between the water pollution and the cattle health. As long as these scientific uncertainties remained, the government did not want to formulate any specific policy for dealing with the pollution. Therefore the government suggested that farmers with problems should simply switch to pipeline water. The government proposed some very explicit changes in the management of farmers too. “The Minister of Agriculture believes that the sickness can be countered with pipeline water and more copper in the nutrition.”86 The chairman of the department for dairy farming of the Land en Tuinbouw Organisatie (LTO), the national interest managing organisation for farmers, argued that the governmental solution did not solve the pollution: “although the situation is different in every area, the pollution is a national problem. In fact the use of pipeline water is the postponement of a real solution. In the end we will have to tackle the pollution.”87 By claiming that pipeline water was the solution, the government shifted the problems to the realm of the management of farmers, because the farmers would have to provide and pay for that water. And thus the farmers had to deal with the (financial) consequences. When governmental officials and scientists researched problem farms, farmers were told that it wasn’t strange they experienced the cattle health problems. After all, they did not use the clean pipeline water, and it was common knowledge that the contemporary cows had almost no tolerance for stress. What was first the issue to be explained now functioned as explanation.88 When some farmers argued that it was not easy to switch to pipeline water, because it did not fit their farming strategy, the government replied that they then should change their farming strategy, just as the government had done. Part and parcel in the changing governmental farming strategy from 86

(1997). WLTO: veesterfte tot op de bodem uitzoeken. Agrarisch Dagblad. (1997). WLTO: veesterfte tot op de bodem uitzoeken. Agrarisch Dagblad. 88 Gezondheidsdienst voor Dieren (1999). Inventarisatie knelgevallen diergezondheid als gevolg van verontreinigd oppervlaktewater. 602961. GD, Drachten. And also see: Tweede Kamer der Staten-Generaal (1997-1998). Vaststelling van de begroting van de uitgaven en de ontvangsten van het Ministerie van Landbouw, Natuurbeheer en Visserij (XIV) voor het jaar 1998. Brief van de Minister van Landbouw, Natuurbeheer en Visserij. 25600 XIV. 25600 XIV. 65. Den Haag. And: (1998) "Slootwater te smerig voor vee." NRC Handelsblad. 87

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machine to cow farming were the conclusions and recommendations of the two governmental working parties Meijer and Ouwerkerk. The government now viewed her former machine farmer strategy, with farming aimed at increased production with fewer animals with the help of technology and science, as part of the problem. The cattle’s health problems were the result of the intensification and specific management that belonged to the machine farmer strategy, the government argued.89 The cows of a machine farming strategy were highly optimal production machines, and their balance could easily be disturbed by something like the water pollution. Machine farmer’s cows had very little tolerance for stress. Since the water pollution could not be countered easily or quickly, the government had turned promote a less fine-tuned, less intensive way of farming.90 Such a farming strategy did not push the cow to perform to a maximum and allowed for a basic resistance against stress factors. This way of farming resembled the cow farmer’s way: “the ditch water quality is not determining everything…the management of the dairy farmers is also important. Especially when animals are exposed to toxic stress, additional attention is necessary. The TNO-MEP research shows for example that farmers with an optimal farming management have less or no problems.”91 The government’s view of ‘optimal’ shifted from a machine farmer’s to a cow farmer’s strategy. The governmental farming strategy did not only shift because of the recommendations of the two working parties. International and national problems and regulations played a role as well in changing the governmental strategy. A large movement towards ecological farming had gained firm ground in the political arena. This movement was helped mostly by new requirements that the European Union set to manage the overproduction of manure and other problems of intensive farming.92 Some farmers made some rather strong statements as to the recommendations of the working parties, accusing politicians to use scientific results selectively to strengthen their environmental policy aimed at decreasing stockbreeding and dairy farming, in the light of the European Union policy.93 Not only the individual farmers identified this strategic use of the problems to change governmental policy, but also a representative of the LTO con89

Commissie Ouwerkerk (1998). Rapport Commissie Ouwerkerk. Commissie Ouwerkerk (1998). Rapport Commissie Ouwerkerk. 91 Floris, R., de Jong, B. (1997). "Slootwater blijkt risico voor vee." Provinciale Zeeuwse Courant (20/11/1997). Also see: Floris, R. (1998). 'Slootwater alleen maar schoner geworden'. Expert: veesterfte door riooloverstort twijfelachtig." Noord-Hollands Dagblad. 92 For a more elaborate discussion of the Dutch (historical) agricultural context see: van der Ploeg, J. D. (1999). De virtuele boer. Assen, Van Gorcum. 93 Interview with the farmer Jan van de Geest, 01-03-1998. 90

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cluded that: “the insinuation in the TNO-MEP report that the intensification of the stock breeding- and dairy farming was causing the problems is wrong. In that research sometimes the reverse situation was at hand. Nevertheless the Ministry of Agriculture uses that research to strengthen its environmental policy aimed at extensivation.”94 Van de Geest was also of influence on the changing farming strategy. He actively participated in the construction of the new preferred farming strategy when he hired scientific institutes and managed to get specific research questions and notions about adequate farming on the scientific and political agenda. I shall discuss this in chapter four. Van de Geest’s push was so effective because it was in line with a new governmental policy on funding. The government increasingly refrained from subsidising and protecting farmers. The government also increasingly stimulated local farmers’ initiatives such as Van de Geest’s active involvement in science and politics. Also a changing public attitude towards farming, expressed in the increased consumption of ecological products, stimulated a shift from preferring cow farmers to machine farmers. Even though Van de Geest’s farming strategy was now becoming the preferred one, he criticised the governmental changes. Especially the fact that the problems and the solution were described as belonging to the realm of the farmers’ management: “we, the cattle raisers, did not choose for an ever growing dependence on ‘high tech’. We had no choice but were pushed by the ongoing intensification of the agriculture and livestock raising. The government forced us in that position in the light of national and international competition.”95 Although many farmers protested against the changing governmental and scientific attitude, many farmers had no choice but to change their strategy. As a result, a new farming strategy emerged. This strategy focused on ecology, small-scale, nature conservation and agro tourism. According to a survey that the Ministry of Agriculture conducted among 526 farmers, some nineteen percent of the Dutch farmers wanted to start ecological, ‘green’ agriculture.96 When farmers did not change their strategy, at least they started to supplement their income with other activities to ensure continuity. Many farms added camping facilities. Some farmers started riding farms or sailing schools.

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Interview with Hans Ghijssels, representative of the Westelijke Land- en Tuinbouw Organisatie (LTO), 10-03-1998. 95 Interview with the farmer Jan van de Geest, 01-03-1998. 96 (1999). Meer landbouwers geneigd tot biologisch boeren. De Volkskrant.

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Many farmers also had to quit.97 The Ministry of Agriculture subsidised farmers who retreated or altered their farming strategy to include more ecological means of farming. In 2001, approximately three percent of the farmers quitted. And in 2001 the Ministry of Environment argued that in the next thirty years the agricultural area in the Netherlands should diminish with twenty percent. As a consequence the dairy farming sector would diminish, to make place for urban, recreational, water and nature functions.98 Agricultural subsidies are an important governmental tool to force the farmers to alter their strategy: a farmer that quitted told in an interview that the only means to survive is to abandon the preference for one farming strategy. “If a farmer wants to survive, he needs to be flexible. He needs to change strategies or move.”99 Some farmers had lost much money by the health problems and receiving subsidies was sometimes the only means to ensure continuity. However to receive the subsidies they had to alter aspects of their farming strategy. To survive farmers had to abandon their farming strategy and that was for many the same as quitting farming altogether. The research institutes finally reached consensus on the interplay of peat soil in the polder, drainage seepage water and cattle health problems.100 I shall discuss this scientific debate in chapter four. With the scientific closure as a basis, the insurance companies defined the problems to be a natural problem. This meant that the consequences of that natural phenomenon could affect any cattle raiser, making it a non-insurable condition. Insurance companies started to remove cattle health problems by land, air or soil pollution from their policies.101 I will now describe how different farming strategies influenced the capacity of various farmers to use pipeline water or to change their ways of farming. To understand just how restrictive the farming strategies were in the formulation of solutions, I will use the SCOT-concept of inclusion. 97

de Mik, K. (2000). De 'Ontboering' van het platteland. NRC Handelsblad: 3. And: aan de Brugh, M. (2000). Explosie van grondprijzen nekt de boer. NRC Handelsblad. 98 Heselmans, M. (1999). de multi-boer. Toekomstige landbouw moet ook natuur, water en recreatie leveren. NRC Handelsblad: pp. 47. And: Oostveen, M. (2000). En de boer, hij zaait natuur en oogst subsidie. Landschap niet langer een bijproduct van het agrarisch bedrijf. NRC Handelsblad: pp. 2. Also see: Schreuder, A. (2000). Slimme boer wordt duizendpoot. NRC Handelsblad. And: Schreuder, A. (2001). "Nieuwe boer moet flexibel zijn." NRC Handelsblad(25-01-2001). And: Jungschleger, I. (1999). De toekomst van de boer is groen. NRC Handelsblad: pp. 1. 99 Schreuder, A. (2001). "Nieuwe boer moet flexibel zijn." NRC Handelsblad (25-01-2001). 100 Gezondheidsdienst voor Dieren (1996). Molybdeen. GD, Drachten.And also see: Gezondheidsdienst voor Dieren (1996). De voorziening van koper (CU), molybdeen (Mo) en zwavel (S) op het bedrijf van K. Pauw te Beets (NH). GD, Drachten. 101 Commissie Ouwerkerk (1997). Verslag overleg Commissie Ouwerkerk 29-09-1997.

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2.4.2 The solution for the cow farmer The cow farmer Van de Geest wanted the overflow to be cleaned. The problem was technological and he wanted a technological solution. That technological solution was to get the municipality to renovate the overflow and to cut down the emission. To put pressure on the municipality, he made his appearing in a radio show in 1992. That did not work, but Van de Geest did come in contact with farmers who had had similar problems, some of them since 1975. They had suspected the surface water and as a test switched to pipeline water, upon which their cattle recuperated. Van de Geest also put his cattle on pipeline water as a trial. He and his veterinarian saw his cattle recuperate. But Van de Geest wanted his cattle to drink clean ditch water. He set out to find a way to clean the water with technical means. He considered placing a reed bed, a biological purifier. However, his ditch was not wide enough. Van de Geest could also dig wells of 6 to 8 metres deep and give his cattle groundwater to drink. He would have to place a well on every two ids to get enough water up. Financially this was a solution, but his cattle refused to drink that water. He would have to dig wells of several tens of metres deep to get to another kind of water. But that was financially impossible. It would cost him even more to put his cattle on pipeline water. To install pipeline water on his land would be costly, but what was more important was that the amount of water the cattle drank would cost him an enormous amount of money. A cow can drink up to two hundred litres of water a day and that would be a financial disaster. To compensate that financial loss, he would have to milk his cattle more intensively. That meant more stress for his animals, and that in turn would diminish their robustness. To compensate for that he would have to breed according to other selection criteria. His farming strategy influenced the choices and solutions available to him to a large extent because he had a high inclusion in that strategy. He had a high inclusion in that strategy because he was strongly committed to farming according to the cow farmer’s strategy. When a farmer has a high inclusion this means that the strategy allows him hardly any possibility to step out of that strategy because he is highly committed to all elements, and sees no alternative ways of ‘living’ outside the strategy. Van de Geest’s cow farming strategy had become fixed, had materialised in technologies, milk quotum, and cows. This specific constellation could not be changed easily without far-reaching implications for his relation with the cattle, his milk buyer and his manure buyer. Installing pipeline water would require alterations of his farming strategy and therefore endangered his relationship with his cattle. And if Van de Geest would no longer commit himself to the cow farming strategy and decide to switch to for example the strategy of the big farmer, he would not be able to do so easily. The cows he 55

had now did not produce the amount of milk he would need to become a big farmer. And the cows could not start to produce more overnight. To change a farming strategy would already take a generation of cows. As I described in the theoretical intermezzo, actors with a high inclusion experience more the constraining character of a strategy, whilst actors with a low inclusion can switch more easily. On the other hand actors with a high inclusion benefit more from the choices available to them within a strategy. One of the choices available to Van de Geest was to enter the political arena, and to understand the strategy of the government. The fact that he entered the political arena did not mean that he stepped out of his own strategy. He still was highly included in the cow farmer’s strategy, but now also became included in the political arena. In this political arena, Van de Geest had to deal with a new position in the process of defining a problem or risk. He had to subject himself to rules and ethics that shaped the political arena he had just entered. In this new arena other arguments were valid. One of the consequences was that he now had to accept that from now on his claims had to be based on politically valid scientific findings. In a lengthy process that I will discuss in chapter four, Van de Geest formed a working group and managed to translate the farmer’s knowledge and intuitions into scientifically and politically relevant knowledge. Van de Geest and his working group managed to reshift the boundary between what counted as scientific and non-scientific knowledge. And they reshaped the scientific and political agenda.102 These political activities had become part of Van de Geest’s cow farmer strategy. His son had taken over the farm and that gave Van de Geest the time to step into that political arena, and become relatively influential in that arena indeed. In a sense Van de Geest became highly included in two similar farming strategies: his own cow farming strategy, and the newly defined governmental kind of cow farming strategy. A farmer can be part of many strategies at the same time, but usually only at a low level of inclusion. To give an example, a sjluchtwei farmer, standing with one leg in the cow farmer’s strategy and at the same time taking elements from the strategy of the machine, big, economical or meat farmer, has hardly any difficulty in exchanging robust cattle with low production for intensively producing stress-sensitive cattle. At the same time, the choices available for that sjluchtwei farmer, because of his low inclusion in the cow farmer’s or any other strategy, are limited to a take it or leave it situation. Farmers with a low inclusion in one specific farming strategy can decide to follow the rules of that strategy or to step out and into another 102

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Interview with the farmer Jan van de Geest, 07-04-2000.

strategy. To step out is not hard and has not much consequences for the way of life of farmers with a low inclusion in a farming strategy. It is, for example, easier to change a farming strategy for a young farmer, because he has not yet invested financially and materially in cows, technology etceteras. Consequently the changes often occur when a son takes over his fathers farm, as did happen in Pauw’s case. Usually the son is trained externally, at school. Less and less farmers train their sons themselves, which makes it easier to change the farming strategy at the take over. However, this drastic change of farming strategy does not always works out, as I will show in the next section. Not only did Van de Geest become a farming politician; he also managed to do something about the polluted water locally. A dam separated his ditch from the waterboards’ canal. Van de Geest reconnected his ditch with that canal with a tube. Now, when the water level of his ditch was high, the tube would discharge the water unto the main canal. If an overflow discharge took place, the water level was raised and the polluted water was redirected to the main canal. The ditch where the cattle drank remained clean. Van de Geest chose willingly to participate in the arena of politics. Other farmers might prefer not to participate. Being dependent on clean water forced Calis en Drenth to participate in a negotiation with waterboards. For many farmers with a high inclusion in their specific strategy, the water pollution was a risk and their dependence on the free surface water meant that they had to change their way of farming drastically. They had to fence their land, they had to change their methods of irrigation that till then had depended on the use of ditch water, they had to put more stress on their cattle, or rely more on technologies. Or, in worst case scenarios farmers had to keep their cattle in the shed the whole year through, just to serve them pipeline water. 2.4.3 The solution for the machine farmer The machine farmer Pauw needed financial compensation and clean water but he also wanted his reputation of a good farmer back. To keep his case open and to reinitiate a discussion on other possible causes for the cattle’s health problem than his management, Pauw went to the media to tell his side of the story. It was his last option, except for a judicial battle with the government. This turn to the media is not unusual in public controversies. The media represent a battleground for political and economic interest groups, seeking support for their views from the public.103 The media are actively 103

Nelkin, D. (1995). Science Controversies: the Dynamics of public disputes in the United States. Handbook of Science and Technology Studies. S. Jasanoff, Markle, G.E., Petersen, J.C., Pinch, T. London, Sage: pp. 444-456.

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influencing public policy because they can help to get things on the political agenda. Pauw was successful in using this influence of the media.104 In October 1995, the first articles on the Beets cattle disease appeared in newspapers. It was called Beets, because that was the region where Pauw farmed. These articles initiated public rumours of a mysterious plague amongst livestock in the North of the Netherlands, possibly related to polluted water. In the articles it was mentioned that hundreds of animals died of a plague similar to AIDS, with danger for public health as well, but that no action was taken. As a reaction, the municipality held a meeting and decided to issue a press release in cooperation with the GD.105 In this communication, they argued that only twenty animals had died and that the cause of the cattle sickness had been bacterial infection. Furthermore they stated that there was no reason to believe that ditch water or surface water could be related to the sickness. They concluded that there was no danger whatsoever to public health when meat or milk from infected animals was consumed. In a letter to his superiors, the GD researcher in charge of Pauw’s case assured that the public rumours were misguided and also filed a complaint at the Raad voor Journalistiek, the National Board for Journalism. In this complaint, the researcher argued that the animals had been brought to the slaughterhouse, because Pauw had refused to treat his animals according to GD advice, as he did not agree with the diagnosis of Actino Bacillose by motivations related to his insurance payment.106 In 1996 De Vijfheerenlanden (VHL), Pauw’s milk company measured the quality of his milk. The germ and cell levels were too high. Pauw was warned, and the price for his milk was lowered.107 Pauw has three months to get the cell level down or else his milk would not be bought anymore. Because of the fact that Pauw's farm got these warnings, the Centraal Orgaan Kwaliteitszaken Zuivel (COKZ), the Central organisation for Quality affairs in the dairy started a periodical hygiene investigation and specified require104

Nelkin, Miller and Lewenstein show that advocacy groups as well as industries perceive the press as a resource through which to mobilize the collective consciousness about risk. See for example: Nelkin, D. (1989). "Communicating Technological Risk: the Social Construction of Risk Perception." Annual Review of Public Health 10: pp. 95-113. And: Lewenstein, B. (1995). Science and the Media. Handbook of Science and Technology Studies. S. Jasanoff, Markle, G.E., Petersen, J.C., Pinch, T. London, Sage: pp. 343-361. And: Miller, D. (1999). "Risk, science and policy: definitial struggles, information management, the media and BSE." Social Science & Medicine 49 (1999): pp. 1239-55. 105 Gemeente Zeevang (1995). Aan de inwoners van Beets, Gemeente Zeevang. Also see: Gezondheidsdienst voor Dieren (1995). Verslag bedrijfsbezoek Pauw 23 juni 1995. RUN/JV/95610727. GD, Drachten. 106 Gezondheidsdienst voor Dieren (1995). Verslag bedrijfsbezoek Pauw 23 juni 1995. RUN/JV/95610727. GD, Drachten. 107 The germ and cell levels are monitoring instrument to determine the quality of the dairy. See: Zuivelonderneming De Vijfheerenlanden (1996). Geachte heer Pauw.

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ments Pauw had to meet. After the first check Pauw was notified that his farm did not meet the demands as to the maintenance of the milking shed and the milking area, the storage and cooling of the milk, the grooming of the dairy cattle and the storage of the cleansing agents and medicines in a closed closet. If the farm still showed germ and cell levels above norm at the end of the improvements term the Algemene Inspectie Dienst (AID), the General Inspection Service of the Ministry of Agriculture would inspect the farm. Pauw was warned that the dairy company, on other judicial grounds, could still refuse his milk. And in April 1996 his milk buyer VHL ended the contract with Pauw.108 This communication was the last one in an increasingly bad relationship between Pauw and the VHL that started in October 1995 when, as a result of the publicity, the dairy company had sent Pauw a letter asking him to keep quiet about the health problems of his cattle, since it might have a negative effect on the imago of the milk this company sold. They would do whatever would be necessary to protect their public image.109 In November 1996 Firma Overdevest, Pauw’s manure buyer also ended his contract because of the publicity surrounding Pauw. Firma Overdevest mentioned that they would only continue buying his manure if the Ministry of Agriculture or the Province would guarantee the possibility to dispose of the manure. 110 However, Pauw was also partly successful with his media offensive. He managed to pressure the GD to visit his farm again. Now, in 1996, the GD employee J. Verhoeff commented that the bacterial infection could not cause the gravity of the cattle’s symptoms. Following Pauw’s suspicions he argued that it was perhaps possible that there was a relation between the quality of the ditchwater on Pauw’s land and the health of his cattle.111 The bacterial infection normally affected only a few animals, and in Pauw’s case the disease had affected all of his two hundred animals. Moreover, the animals did not respond well to the normal treatment for this infection. By the end of 1996 Pauw had taken all his animals to the slaughterhouse. The GD employee Verhoeff took the initiative to form a working group with all parties deemed relevant to solve the water pollution and cattle health issues.112 These parties were the waterboard, the Province of Noord Holland, the VI, the Rijksdienst voor de Keuring van Vee en Vlees (RVV), the Na108

Zuivelonderneming De Vijfheerenlanden (1996). Geachte heer Pauw. Zuivelonderneming De Vijfheerenlanden (1995). Imago. 110 Transport mesthandel en verspreiding Firma Overdevest (1996). Afvoer mest. 111 Gezondheidsdienst voor Dieren (1996). Enkele opmerkingen naar aanleiding van het bezoek dat op 3 April 1996 door Drs. A. Emmerzaal en Dr. J. Verhoeff is gebracht aan het bedrijf van de fam. Pauw, Beets 138 te Beets. GD, Drachten. 112 Gezondheidsdienst voor Dieren Werkgroep Verhoeff (1996). Evaluatie situatie bedrijf fam. Pauw. HVW/HVW 9620.009. GD, Drachten. 109

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tional Inspection Service for Livestock and Meat, the Ministry of Agriculture, the Ministry of Watermanagement, the GD, the University of Utrecht, and farmer Pauw and his advisers. The Verhoeff working group reported to the Ministries. At one meeting of the Verhoeff working group, the GD mentioned the increased levels of sulphate that were found in the water samples, and asked the waterboard for an explanation. The waterboard representative present replied that the cause for this increase had to be sought in a complex interaction of factors.113 In 1989-1990 heavy rainfall caused water level problems in polder areas. That water had to be drained off and, to compensate for any heavy rainfall in the future, the (local) waterboard created an artificially low water level mark, at least fifty centimetres lower than previously. Because of this lower mark, increased seepage from the North Sea caused increased levels of salt. In combination with artificial drought, peat soil in many polders started to decompose, causing other mineral forming processes. Minutes of this same meeting made by a participant, mention that in Pauw’s ditch, a very high level of 4 ppm of hydrogen sulphide was found. The toxic level of that compound is 0,1 ppm. In these minutes it was concluded that the cattle health problems could probably be explained with sulphide poisoning and a level of molybdenum above acceptable levels. Both compounds would create the cattle to experience difficulty in absorbing copper. As a consequence, even with additional feeding of copper, a copper deficit would result.114 In a press communiqué, the Verhoeff working group preliminarily concluded that Pauw’s cattle probably had suffered from the combination of molybdenum, sulphur and iron compounds in soil and water that caused a copper deficit.115 The problems were labelled as a natural phenomenon, not a technical one, since the under-drainage belonged to the polder’s hydrological management. When the waterboard labelled it as a natural aspect of polder farming, they did not need to take any action. The cattle raisers themselves had to take measures, such as fencing their land and installing pipeline drinking water. In contrast to earlier evaluations it was stated in the communiqué that Pauw’s management had not been the cause for the cattle health problems.

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Gezondheidsdienst voor Dieren Werkgroep Verhoeff (1996). Verslag van de bijeenkomst betreffende de situatie op het bedrijf van de familie Pauw d.d. 16 September 1996. JVE/JVE.96. GD, Drachten. 114 Komijn, R. E. (1996). Bijeenkomst evaluatie bedrijf Pauw te Beets. Verslag vergadering 16-09-1996. 115 Gezondheidsdienst voor Dieren Werkgroep Verhoeff (1996). Verslag van de bijeenkomst betreffende de situatie op het bedrijf van de familie Pauw d.d. 16 September 1996. JVE/JVE.96. GD, Drachten.

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For Pauw, dependent on the ditch water for his efficient management style, the water pollution, whether it was a natural phenomenon or not, it presented a risk. Without the ditch water he would have to construct a pipeline, which would cause him severe financial loss, jeopardising the continuity of his farm. Pauw was on the verge of bankruptcy. He had written several letters to the waterboard asking them for compensation for the damage to his herd and his farm. The waterboard, however, repeatedly refused to take responsibility and compensate Pauw financially because there was no scientifically established relationship between the water pollution and Pauw’s cattle health problems. As a consequence he was not able to install pipelines to provide all of his two hundred animals with water.116 He could not dig wells because the wells would have to be several tens of metres deep to reach water that tasted acceptably for the cattle. That was also financially impossible. Pauw had no alternative but to bring his whole herd to the slaughterhouse. His machine farmer strategy did not allow for a financial investment as big as necessary. That would make it impossible for him to farm efficiently. In 1998 Pauw quit farming even though that was the last thing he wanted: “I miss the scent of grass and cows. I will never get used to it. I am a farmer; it’s in my genes.117 He decided to quit now to start over again in the near future. However then, he would no longer farm with cattle or any other animal, but only with crops. 2.4.4 The solution for the economical farmer For the economical farmer Drenth, who farmed according to the economical farming strategy, the solution was easy: pipeline water. Contrary to the cow farmer and the machine farmer the installation of pipeline water was a solution for Drenth, but only because it fitted different aspects of his economical way of farming. For the cow farmer pipeline water was no permanent solution, but at most a short-term solution for as long as the ditch water was not clean. For the machine farmer pipeline water was absolutely no solution, because it would create too much financial burden on the machine farming strategy. For the economical farmer pipeline water was also a financial burden. However, financially the family could handle it because the municipal116

Hoogheemraadschap van de Uitwaterende Sluizen in Hollands Noorderkwartier (1996). Kwaliteit oppervlaktewater en waterbodem, schade veestapel. 9611413/WAB/TL. Also see: Hoogheemraadschap van de Uitwaterende Sluizen in Hollands Noorderkwartier (1996). Aansprakelijkheid voor schade aan veestapel. 9609718/WAB/NT. See also: Hoogheemraadschap van de Uitwaterende Sluizen in Hollands Noorderkwartier (1997). Schade veestapelaansprakelijkheid. 9613825. 117 Braun, T. (2000). "Boerenslimheid." www.dezaak.nl (10-2000): pp. 60-61.

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ity subsidised them.118 Although this solution did cost more money than clean ditch water, it gave them the possibility to continue farming economically in the long run. Pipeline water, in combination with the subsidy of the municipality fitted the strategy of the economical farmer Drenth because in the end the costs for the installation of the pipeline water would be much less than the costs of losing milk, calves and cows. When all costs were taken into account, installing pipeline water was the most economical solution, and above all it ensured continuity of the farm because there would be no more sickness. Without the subsidy, pipeline water most probably would not have been the best solution for the economical farmer. Because their land was surrounding the farm, a typical aspect of an economical farmer, the installation of pipeline water on the land was no problem. All the elements of Drenth’s economical farmer’s strategy favoured pipeline water as best solution. The cattle already spent 16 hours a day in the barn, which was economical, where they drank pipeline water. The other eight hours would not cost much more. The real investment was the installation of the pipeline system in the land. Drenth could dig wells, but he knew from experience that the cattle did not like that water and the municipality did not allow for any more wells to be dug. And: “a reed bed was not an option because the ditch wasn’t wide enough to make sure the reed bed would have enough capacity to purify all the pollution.”119 The shed that Drenth owned fitted his economical way of farming and also influenced the choice available. “In walking stables you can work with alternatives, but I have a stable with boxes, and pipeline water is the only feasible solution there. Installing pipeline water on the land was a logical step.”120 However, the overflow was not renovated. The overflow still discharged and the sludge from the ditch had to be removed annually. Normal practice was to disperse that sludge on the land. Drenth argued that the problems probably occur under more farmers but that most of them keep quiet: “on advise of the GD I installed a pipeline water installation on the land such that the cattle needs not to drink from the dirty water anymore. Since the installation and the use of the pipeline water the cattle are considerably recuperating. Here lies the problem. I received a small financial aid from the municipality to install the new pipeline system and in principle the problem is solved. Therefore I do not complain anymore at the municipality and the pressure does diminish to search for a long-term solution. You see, as it happens I am not the only dairy farmer who has taken this as a solution.”121 118

Gemeente Opsterland (1995). Schoonwatervoorziening nabij riooloverstort te Wijnjewoude. 7/RZ-A2, Gemeente Opsterland. 119 Interview with the farmer Henk Drenth, 10-08-2001. 120 Interview with the farmer Henk Drenth, 10-08-2001. 121 Interview with the farmer Henk Drenth, 06-03-1998.

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However, many farmers would also keep quiet because they had witnessed how farmers that spoke openly about their problems were automatically classified as bad farmers. A manager of the GD argued in a newspaper interview: “it isn’t strange that so few messages reach the agricultural union. Every farmer with many dead cows soon is known as a ‘bungling farmer’.”122 Van de Geest also experienced the consequences of speaking openly about the problems and mentioned that it is often said that it is mismanagement of the farmer. In other words: the farmer just bungles his work. And no farmer wants his name in the newspapers, because soon people talk about that farmer and don’t want his meat, milk or cheese anymore. Drenth knew that other farmers experienced problems with the health of their cattle after the sludge was dispersed on the land. Therefore he refused to accept the sludge. After some debate the waterboard promised to remove the sludge if Drenth would not complain about the overflow anymore. This was convenient for the waterboard and the municipality because it meant that Drenth would not pressure them anymore to redevelop the overflow. This compromise still works. 2.4.5 The solution for the big farmer Pipeline water was the best solution possible for the economical farmer Drenth. For the big farmer Calis, however, pipeline water meant the end of farming big. For the big farmer, with five to ten times as many cattle than the economical farmer, and with much more acres of land, pipeline water was the least desirable solution because he simply could not afford it. He only saw the use of wells as a feasible solution. The installation of pipeline water would cost so much that it would not only diminish his possibilities to invest in growth by buying more animals, more land, and a bigger milk quotum, it would close the options to expand. It contradicted his notion of security and adequate farming: grow bigger and grow as fast as possible. When he considered the installation of pipeline water, Calis expected technical problems to arise. Because his land was so widely dispersed, it would be difficult to get pipes everywhere. And even when he did, additional pumps would be necessary to pump the water over such distances. Pipeline water would only work if he were able to redistribute his land and get it closer to his farm. But even if he got his land close together, Calis argued, it might still be too big to serve with pipeline water, because distances could be too long for the pumps to overcome because of the sheer size of the land. When he would react to this by not using all his land for grazing, he would need to diminish his number of cattle. Fewer cows would imply less 122

Floris, R., de Jong, B. (1997). "Slootwater blijkt risico voor vee." Provinciale Zeeuwse Courant (20/11/1997).

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milk and that would violate his strategy to grow. The possible counter measure of increasing the milk production per cow would jeopardise their robustness. All consequences of the government’s solution thus endangered his specific farming strategy. Calis did not want to become a farming politician as Van de Geest. He explained: “I have thought about conducting some research as to the relation between the health of my cattle and the overflow but that is difficult. You see, as it happens I have sent a calf more then once to the GD but they never found unambiguous proof that I could use. To organise your own research project costs much money. As dairy or stock farmer you lose thousands of guilders that way. That is not easy to come up with, certainly not in difficult times when your income decreases anyway. Secondly you cannot fight against the government. You do not speak the language and do not have the time. Furthermore it always comes down to the fact that you need to prove first that it is not your management that causes the problems. And that is as hard as proving that there is a relation between the health of your cattle and the environment.”123 A big farmer operates on the margins of both time and money. Every penny is reinvested in the farm to expand, and every work that can be done by the farmer himself or his family is seen as saving money that in turn can be used to expand. For a big farmer, ideally all the time he has is spent on his cattle, on working with the cattle and with the machines necessary to do the work. Every minute spent on the telephone or in The Hague to confer with politicians is experienced as loss of money, because in the worst case additional hands need to be hired. Loss of money diminishes opportunities to invest in growth and as such spending time solving this problem puts the expansion of the farm at risk. Calis’ farming strategy did not allow for any involvement in politics as part of the solution. His way of farming required more constant monitoring of his cattle than the farming strategy of an economical or cow farmer. Every minute spent on the telephone or at the municipal house could have been spent on monitoring the health of his cattle. And to finance science to research the cause for his problems, while he already knew what was going on through practical knowledge, endangered the growth of his farm because that money could not be spent on expansion. The big farmer needed every penny to invest in an even bigger farm. Calis’ management or his cattle could not be altered to fit the polluted water because his strategy required a cheap or even more preferred a costless technical solution. Only one solution was adequate for Calis’ farming strategy: digging wells. Wells would allow Calis to get unpolluted water to his cows, wher123

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Interview with the farmer Kees Calis, 06-03-1998.

ever they were: on a huge farm, even on dispersed land. He already worked with wells, but the waterboards wanted to forbid the farmers to use them. They were retrieving too much groundwater, which led to dehydration of the land. All farmers that I discussed had a rather high inclusion in their farming strategy. The farming strategy of some farmers only allowed for a solution that was far from the pipeline water solution that the government proposed. And none of the farmers could easily get out of his strategy. To get out of the strategy typically meant to quit dairy farming. The ability of the farmers to accept the consequences of the pollution influences the definitions of the situation. This explains why farmers that could easily switch to pipeline water did not view the pollution as a risk. To others the pollution was a great risk because they were unsuccessful in their attempt to switch to pipeline water or to another strategy.

2.5 Different farming strategies: different expertises In this chapter, I discussed the agricultural arena in which the fierce controversy between farmers, the government and research institutes took place. I analysed how the actors differed in the farming strategies they were committed to, and I demonstrated the interpretative flexibility of the water pollution, implying different solutions. The government and scientific institutes were more than once caught by surprise by the, in their view, irrational risk perceptions in the farming community.124 Seen from the perspectives of the farmers and their farming strategies the opposition to the pipeline water solution was very rational. Communication between the different parties would benefit greatly from a general acknowledgement that cattle farmers deploy relevant perspectives and knowledge concerning the causes, consequences, and solutions, and that this knowledge is necessary to come to a solution that fits their specific strategy.125 Bryan Wynne argues that in most debates that deal with a combination of social and technical problems -sociotechnical debates- science and its results are presented unproblematically as the only valid way of apprehend124

For a comprehensive discussion of the social and cultural construction of risk see: Johnson, B., Covello, V.T., Ed. (1987). The Social and Cultural Construction of Risk. Essays on Risk Selection and Perception. Dordrecht, Kluwer Academic Publishers Group. 125 For a detailed discussion of the issues that accompany the (lacking) political and scientific acknowledgment that non-scientists can also deploy relevant perspectives and knowledge concerning a risk see: Wynne, B. (2001). "Creating public alienation: expert cultures of risk and ethics on GMOs." Science as Culture 10 (4). And see: Wynne, B. (1989). Frameworks of Rationality in Risk Management: Towards the Testing of Naive Sociology. Environmental Threats: Analysis, Perception and Management. J. Brown. London, Bellhaven: pp. 33-45.

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ing nature. Wynne argues that as a result of the assumption that only the scientific perspective is valid, the public deviation from scientists’ prescriptions is ascribed to public ignorance, irrationality, or incompetence at handling scientific terms. Scientists, however, also embody assumptions about society in their scientific assertions about risks and ways of dealing with them. It would do justice to the complexity of farming if farmers and their definition of the problem were evaluated on the basis of their commitment to a specific strategy. Every strategy knows its own approach, its own risk and its own solution, and regardless of the political preferences at a particular time, a cow farmer is intrinsically neither better nor worse than a big, economical, or machine farmer is. To make government policy relevant to farmers, it needs to take farming strategies as a starting point. By demonstrating the interpretative flexibility of the water pollution, I could argue that every risk perspective has its own rationality.126 The farmers and the government each constructed risks that fitted their farming strategies. The pipeline solution was politics by other means because of the constraining character of farming strategies.127 If farming strategies would be so flexible that the use of pipeline water and the extensivation could easily be introduced in any strategy, the solutions would not have the consequence of excluding certain farmers from continuing. But 126

The notion of risk ‘perspective’ is more adequate than risk ‘perception’ because ‘perception’ implies that there is an objective risk that lies outside the realm of the perception of it and that only science can address this objective risk. In 1995, a committee of the Gezondheidsraad, the Health Council of the Netherlands, questioned the risk management approach in Dutch environmental policies because: “…the judgement of the parties involved is determined by more than merely the chance of death and the chance of affecting certain species. In a judgement process like that, voluntariness, confidence, dread, etcetera are important in addition to considerations related to the societal benefits of the particular action that causes the risk… the Dutch environmental risk management approach…does not provide an adequate basis for decisions on the tolerability of the risk and decisions on risk management measures.” Although the Health Council of the Netherlands in a sense acknowledges the interpretative flexibility of risk perspectives, it did not acknowledge that all risk perspectives are rational. The connotations of voluntariness, dread, and confidence imply irrational behaviour because these words refer to emotions. See: Gezondheidsraad (1995). Niet alle risico's zijn gelijk. Kanttekeningen bij de grondslag van de milieubenadering in het milieubeleid. 5547/WP/MK/346-Z2. Den Haag, Gezondheidsraad. 127 Winner’s design-version of ‘artefacts-contain-politics’ that was discussed earlier misses an important aspect: power is not intrinsic to an artefact or a solution and its effects are not universal for all contexts it is implemented in. The power of an artefact and its effects differ according to the characteristics of the systems it is designed to fit into. For a more comprehensive discussion of this criticism see: Bowers, J. (1999). "The politics of formalism." Social Studies of Science 29(3): 232-259. And see: Joerges, B. (1999). "Do politics have artefacts?" Social Studies of Science 29(3): 411-31.The pipeline water solution can be called politics by other means because this solution favoured (read fitted better into) certain farming strategies and hampered other strategies.

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the farming strategies were not flexible systems, and the pipeline water did fit in some strategies and not in others. The waterboards acknowledged the obdurate character of the farming strategies, and proposed three alternate solutions to adapt the water infrastructure. However, these solutions were as difficult to implement as the pipeline water solution was. In chapter three, I will focus on the obdurate character of the context in which these solutions had to be implemented: the water management arena.

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3 How to blame a polder? Obdurate risk in the water management arena In chapter two I demonstrated the interpretative flexibility of the water pollution. I showed that farming strategies shaped the way farmers and government defined the water pollution as a risk for cattle’s health and also defined what was a feasible solution. In the last paragraphs of chapter two, I analysed the solutions brought forward by the government and the farmers. None of the solutions attempted to counter the water pollution itself. To many farmers, however, clean surface water was the only solution that fitted their farming strategy, so the controversies continued. In 1998, after years of scientific research and continuous controversy, farmers, scientists and governmental bodies all agreed that the water was indeed polluted and that it was a possible risk for the health of the cattle.128 Interpretative flexibility diminished and closure was reached. Once consensus on the water pollution and its possible relationship to the cattle’s sickness was established, the waterboards attempted to counter the water pollution itself. The waterboards proposed three solutions, all of which were adjustments to the hydrological system. One solution was to raise the water level to counter the peat decay. The second solution was to flush the waterways more frequently to dilute the peat and overflow pollution.129 The last solution was to renovate the overflows. Although the solutions appeared to fit the farming strategy of many farmers, because they would lead to clean surface water, it was difficult and sometimes even impossible to implement them. What made it so difficult to implement the solutions? In this chapter I will focus on what happens after diminished interpretative flexibility has led to closure. I will show that although closure is reached 128

As was already concluded by the Verhoeff committee in 1997: Gezondheidsdienst voor Dieren Werkgroep Verhoeff (1997). De zaak Pauw. Conclusies van de organisaties die betrokken zijn geweest bij het onderzoek naar de problemen op het bedrijf van de familie Pauw te Beets. KV/1179/ns. GD, Drachten. In 1999, the waterboard Hoogheemraadschap Hollands Noorderkwartier analysed the water in Noord-Holland and concluded that it was polluted with elevated levels of the E-coli bacteria, phosphor, sulphide, nitrite, and sulphate. The quality of the surface water was especially bad in dead-end ditches, in shallow ditches and in ditches with thick sludge layers. See: Hoogheemraadschap van de Uitwaterende Sluizen in Hollands Noorderkwartier (1999). Slootwaterkwaliteit in relatie tot diergezondheid in Hollands Noorderkwartier 1999. Edam. 129 (1999). "Slootwater vaak niet goed voor koe." Noord-Hollands Weekblad(49). See also: Hoogheemraadschap van de Uitwaterende Sluizen in Hollands Noorderkwartier (1999). Slootwaterkwaliteit in relatie tot diergezondheid in Hollands Noorderkwartier 1999. Edam.

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on the definition of a problem and solution, this does not imply that the solution is easily implemented. The arena for this chapter is the Beemster, an area in the north of the Netherlands, next to the Beetskoog area where Pauw farmed. The Beemster is an illustrative arena of water management because both the overflow and the peat pollution occurred, and the waterboards' solutions were applicable to solve both situations. Although the Beemster soil is mainly composed of clay and not peat; like peat, clay soil also shrinks, but this does not cause pollution. However, Dutch government labelled the combined clay and peat shrinking process a national problem.130 Not because of the pollution, but because the shrinking and consequently the increased risk of inundation poses a risk to the safety of the public. The solutions opted for by the waterboards in the Beemster represent a national attempt to counter the shrinking of soil in the Netherlands. To analyse the difficulty surrounding the implementation of the waterboards’ solutions I need additional theoretical concepts. I will first introduce these. Then I will introduce the Beemster area. Next I will introduce the three solutions of the waterboards and analyse the difficulties the waterboards encountered when they attempted to implement these solutions.

3.1 Theoretical intermezzo 3.1.1 Contextualisation Once put in practice, users always adjust original designs or technologies, to fit local circumstances and needs. To describe this process the concept of ‘contextualisation’ is introduced.131 When a technology is designed, not only the technology is constructed, but also the designers (unconsciously or sometimes explicitly) design a technology in such a way that a certain function is more compatible with it than others.132 Sometimes, designers of a technology actively think about the use of their technology, and try to embed that use in the technological design. However, the context in which a technology is de130

Casale, S. A. (1998). Brak water welt ook in binnenland op. De Volkskrant. For a discussion of the concept of contextualisation see: Wynne, B. (1988). "Unruly technology." Social Studies of Science 18: pp. 147-167. Also see: Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press. 132 For a detailed analysis of the ‘pre-designed’ functions inscribed in a technology see: Akrich, M. (1992). The De-Scription of Technical Objects. Shaping Technology/Building Society. Studies in Sociotechnical Change. W. E. Bijker, Law, J. Cambridge, MIT Press: pp. 205-221. And also see: Winner, L. (1986). The Whale and the Reactor. A Search for the Limits in an Age of High Technology. Chicago, IL, University of Chicago Press. 131

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ployed often does not exactly reflect the suppositions of the designers. And if a technology does fit a context, it is likely that, in time, the context changes and the technology will no longer fit. Wynne argues that for a technology to function in a certain context, it is essential for its users to develop new functions or practices, or even to change the technology itself. This contextualisation is thus necessary to counter the mismatch between the original design and the actual context in which the technology is deployed. Summarising, the usefulness of an object or technology is often determined by informal uses and practices which were not originally foreseen by the designers and which may even change the character of the object or technology itself. 3.1.2 Risky contextualisation On the one hand contextualisation is necessary because without it, the technology would often not even function. However, the slow and invisible adjustments to an ensemble may change the character of a technology. Although that change might lead to a risky situation, the process of contextualising a technology is not a risky practice in itself and does not inherently put the users of that technology at risk. Contextualisation is a risky practice when the local adaptations to the original functions and characteristics create a vulnerability of the technology.133 I can best illustrate this notion of ‘risky contextualisation’ with the following two examples. John Law’s example of ‘risky contextualisation’ concerns a train accident at Ladbroke Grove.134 He shows that officially signalmen, according to the official practice had to stop all train traffic in case of a signal situation. In addition, signalmen had to make sure that after a train passed a red light, the train had stopped. In practice, in most cases not the signalmen but the driver stopped the train if he passed a red light, and would then call the signalmen 133

Brukx and Wackers developed the concept of drift. They use the term drift to refer to the mismatch between practice and protocol or design that occurs because of local adaptations. Brukx and Wackers also demonstrate how by means of repairs and quality control the drift movement can also return closely to the original state of the system. For a more comprehensive study on the concept of drift see: Brukx, J. F. L. M., Wackers, G.L. (2001). De complexiteitsparadox: over mechanische en adaptieve systemen. Betrouwbaarheid van technische systemen. Anticiperen op trends. M. R. de Graeff, Stichting Toekomstbeeld der Techniek. 64. 134 Law, J. (2000). Ladbroke Grove, or How to Think about Failing Systems. http://www.comp.lancs.ac.uk/ sociology/soc055jl.html, Centre for Science Studies and the Department of Sociology, Lancaster University. Also see: Brukx, J. F. L. M., Wackers, G.L. (2001). De complexiteitsparadox: over mechanische en adaptieve systemen. Betrouwbaarheid van technische systemen. Anticiperen op trends. M. R. de Graeff, Stichting Toekomstbeeld der Techniek. 64. See also: Law, J., Mol, A. (2001). Local entanglements or Utopian Moves: an Inquiry into Train accidents. http://www.comp.lancs.ac.uk/ sociology/soc090jl.html, Centre for Science Studies and the Department of Sociology, Lancaster University.

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within 20 seconds to affirm his train had stopped. Law shows how this local adaptation, necessary to keep the trains running, led to a serious accident when one train did not stop after passing the red light and collided with another passenger train. Law remarked that, in spite of the accident, the local adaptations to the ensemble were necessary if the ensemble was to run at all. Brian Wynne describes a second example of a risky contextualisation.135 He argues that contextualisation of an underground water transfer valve house in Abbeystead killed sixteen visitors in 1984. In the course of time, the valve operators had evolved an informal work practice. The official procedure involved fully flushing the normally closed valve once every several weeks, to wash out accumulating sludge. In response to angler protests about muddying their clear fishing river for days, the workers stopped the official procedures and allowed the system to flush the sludge slowly but continually. However, because they left the washout valves a crack open all the time, a large void had formed in the tunnel, filled with methane, which eventually led to an explosion. The operators had unofficially implemented this alternative practise, and therefore had not been warned of the possible implications. Moreover, the experts had not taken the presence of methane into account, so could not have foreseen the hazards of allowing a void to form in the tunnel. The examples above illustrate that although contextualisation is a normal phenomenon, this reinterpretation of the original ensemble is potentially risk enhancing. Risk and problems can thus be the result of informal and uncoordinated uses and practices. In time, these informal uses and practices sometimes lead to patterns of unsafe behaviour. To understand this process of fixing patterns, I shall introduce the concepts of embeddedness and obduracy. 3.1.3 Embeddedness and obduracy Although the concept of contextualisation of technology or of a system with technological elements implies that change is easy to achieve, technology or a technological system itself can also be very difficult to change. The system of different technical and non-technical elements that form a farming strategy for example, can be difficult to change. To analyse this phenomenon the concept of ‘obduracy’ as analysed by Anique Hommels is introduced.136 An example of obduracy in one of the two controversies under study in this thesis is that of the big farmer Calis, who could not put a reed bed in his ditch to clean the water, because the ditch was not wide enough. He could not widen 135

Wynne, B. (1988). "Unruly technology." Social Studies of Science 18: pp. 147-167. Hommels, A. (2001). Unbuilding Cities: Obduracy in urban Sociotechnical Change. Universitaire Pers Maastricht. 136

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the ditch either. The ditch had been dug centuries before and he was legally not allowed to make it wider to fit in the reed bed. The measurements of the ditch were fixed in laws, and in water management infrastructures. He also had no possibility of altering the course of the ditch, because its course and measurements were fixed because of land boundaries. He could not dam the ditch, because the waterboard wanted to keep the ditch connected to the central canal and keep it open for a regular flush. This example illustrates that once a technology is in place it is difficult to deconstruct it. All the elements that constitute that technology or are interconnected with that technology display obduracy and resist change. Anique Hommels identifies four existing explanations for the obduracy of technologies in her thesis Unbuilding Cities. Obduracy in urban Socio-technical Change: material obduracy, obduracy related to dominant ways of thinking and interacting, obduracy explained by embeddedness and finally obduracy as constituted by persistent traditions. One conception of technological obduracy that Hommels identified is that material obduracy is related to the physical, material and formal dimensions of technology. Material or technological aspects of a technology play a crucial role in processes of change, and even determine the limits to change. Hommels, however, disputes a notion that accompanies this material conception of obduracy: the notion that cities, buildings or infrastructures have inherent technical properties that resist change. She points out the fact that sometimes a building may be easy to demolish in a material sense, but still difficult to deconstruct in an immaterial sense. Obduracy must also be explained with reference to a wide range of cultural factors, Hommels argues. A second conception of the obduracy of technologies that Hommels identified relates to dominant ways of thinking. Actors involved in the design of technological artefacts may experience constraints to their roles and strategies. The socio-technical frameworks within which the actors operate pose these constraints. This conception has been extensively discussed in chapter two, by demonstrating how farming strategies allowed for specific definitions of a problem and only allowed for very specific solutions to be implemented in the strategy. These technological frames fix certain roles and strategies available to actors, depending on their level of inclusion in that frame. It can thus become difficult to bring about changes that fall outside the scope of this particular way of thinking. This conception typically highlights the struggle for dominance between groups of actors with diverging opinions. A third conception of obduracy relates to persistent traditions. This category comprises choices and decisions that influence the development of a technology over a longer period of time. These enduring traditions refer ex73

plicitly to more collective and longer-term inclusions in dominant ways of thinking.137 The last conception of obduracy that Hommels identified is obduracy by embeddedness. Technology is always part of a greater whole. Technological developments co-evolve with societal developments. In this conception obduracy of technology can be explained because of its embeddedness in socio-technical networks. This concept of obduracy stresses the relational aspect of technology: because the elements of a network are closely interrelated, changing one element requires the adaptation of other elements. This could also be observed in chapter two: the farming strategy of a farmer consisted of so many interrelated elements that changing one of them, for instance the water supply, could have devastating consequences for the other elements and for the functioning of the network as a whole. The extent to which a technology has become embedded determines its resistance to efforts aimed at changing it. Such efforts to change an existing system may be prompted by societal change, economic demands and so forth. In this chapter, efforts to change the existing water management system were prompted by the water pollution that threatened the health of cattle. Since the embeddedness of technological networks refers to the difficulty of changing elements of the network that have become intertwined in the course of time, this fourth conception will be central to this chapter. However, as I will demonstrate in this chapter, dominant ways of thinking, persistent traditions and material obduracy can all be elements of the network that resists change. To understand the embeddedness and obduracy of the Beemster polder, I will now first focus on the interconnectedness of the reclamation, lay out and agricultural practice of the Beemster.

3.2 The Beemster polder 3.2.1 The historical context of polders and waterboards The Beemster is a polder. A polder is new land, land that used to be water. One third of the Netherlands lies below sea level. In the past, these areas were permanently or seasonally subject to a high water table –man-made adjustments to the ‘natural’ water level by means of drainage- either by groundwater or surface water, the sea or lakes. The hydraulic history of the 137

Hommels argues that the notions of path dependence, transition theory, trajectories, momentum and technological regime embody this conception of obduracy, since they refer to long-term patterns in technological development. See: Hommels, A. (2001). Unbuilding Cities: Obduracy in urban Sociotechnical Change. Universitaire Pers Maastricht.

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Netherlands starts with the drainage of peat soil areas in the eleventh, twelfth and thirteenth century.138 Future inhabitants drained the peat areas by means of ditches. When they were drained, the lands were lower than the surrounding areas and the inhabitants had to protect them against infiltration of water by dikes and canals. By means of technologies such as dikes, new waterways and draining mills the water quality and water quantity of the drained land was managed. The land, which was thus created, is called a polder.139 To manage the technologies that safeguarded the polder from inundation, Waterschappen, regional and local waterboards were erected: “the waterboards emerged around the Middle Ages as interest groups against floods and sometimes also against water shortage. In the course of centuries a rich variety of organisations came into existence, of a very complex nature in total, because it consisted of many, more or less independent, highly autonomous units.”140 These waterboards managed the water quantity and quality of the new polder and also assumed responsibility for local dike and sluice maintenance and management. The waterboards were supervised by elected councils, and represent the earliest forms of Dutch democracy.141 All landowners had voting rights, but the weight of the vote depended on the extent of the property. Some waterboards were not supervised by an elected council but had an administrative source, such as the board in the Beemster polder.142 These administrative boards were also endowed with matters of judicial or public concern. In the South of Holland a totally different hydraulic council existed: the (hoog) heemraadschappen. These heemraadschappen were endowed with more tasks than the waterboards, and even controlled the actions of the waterboards. The heemraadschappen were prestigious and wealthy institutions that could hire employees. By the end of the eighteenth century the combination of local and regional waterboards, more than thousand, created a fragmentation that could pose a danger to the reclaimed land. The government

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The above description of the hydraulic history of the Netherlands is based on: Ferguson, H. A. (1991). Dialoog met de Noordzee. 2000 jaar Deltawerken. Hippolytushoef, AMA Boeken. And is based on: van der Woud, A. (1998). Het lege land. De ruimtelijke orde van Nederland 1798-1848. Amsterdam, Uitgeverij contact. 139 Ferguson, H. A. (1991). Dialoog met de Noordzee. 2000 jaar Deltawerken. Hippolytushoef, AMA Boeken. 140 van der Woud, A. (1998). Het lege land. De ruimtelijke orde van Nederland 1798-1848. Amsterdam, Uitgeverij contact. 141 Bijker, W. E. (2002). "The Oosterschelde Storm Surge Barrier. A Test Case for Dutch Water Technology, Management, and Politics." Technology and Culture 43 (3): pp. 569-584. 142 The description of the waterboards and heemraadschappen is based on information in: Bosch, A., van der Ham, W. (1998). Twee eeuwen Rijkswaterstaat 1798-1998. Zaltbommel, Europese Bibliotheek.

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increasingly started to regulate the waterboards and in 1798 a separate central bureau of water was created: Rijkswaterstaat.143 The waterboards and the technologies to manage the water such as the man-made water table form a hydrological management combination, that differs from polder to polder. The Beemster polder is therefore a unique polder, with a specific hydraulic management, and today encompasses very varied and specialised farming practices. This variety in farming practices required many different water tables in 1999. I will now first describe the reclamation of the Beemster. 3.2.2 The reclamation of the Beemster Lake In 1607 magistrates and merchants from Amsterdam and The Hague had become wealthy through the VOC shipping trade, and needed a safe investment. An investment in land was safe: “during the Tachtigjarige Oorlog (eighty-year-war) the focus went to nearby lakes.”144 The reclamation of the Beemstermeer, an area of inland water situated fifteen kilometres north of Amsterdam seemed a good investment.145 The Beemstermeer flooded the surrounding areas frequently. Although those seasonal floods fertilised the arable farming land around the lake, those areas were also endangered since the lake reclaimed land. The merchants decided that reclamation of the Beemstermeer would serve a double purpose. The land was one of the richest alluvial soils and was suitable both for arable farming and for the creation of estates for the urban patriciate that had invested their capital into the reclamation.146 Moreover: “reclaiming the Beemster meant a considerable land reclamation that could be used to levy taxes in the future.”147 In 1607 the Staten van Holland gave permission to drain the lake. The reclamation was not an easy task. The lake had a surface area of 17,500 acres. It was the first time a polder of this size was drained. The windmill 143

Bosch, A., van der Ham, W. (1998). Twee eeuwen Rijkswaterstaat 1798-1998. Zaltbommel, Europese Bibliotheek. 144 Pielage, G. (2000). Een parel van zeventiende-eeuwse landschapskunst. Noordhollands landschap: 16-17. 145 The information about the reclamation of the Beemster is retrieved from: Danner, H. (1987). Van water tot land van land tot water. Verwikkelingen bij de indijking van de Beemster. Hoogheemraadschap van de Uitwaterende Sluizen in Kennemerland en Westfriesland & Waterschap ' De Waterlanden'. And from: Pielage, G. (2000). Een parel van zeventiendeeeuwse landschapskunst. Noordhollands landschap: 16-17. 146 Danner, H. (1987). Van water tot land van land tot water. Verwikkelingen bij de indijking van de Beemster. Hoogheemraadschap van de Uitwaterende Sluizen in Kennemerland en Westfriesland & Waterschap ' De Waterlanden'. 147 Danner, H. (1987). Van water tot land van land tot water. Verwikkelingen bij de indijking van de Beemster. Hoogheemraadschap van de Uitwaterende Sluizen in Kennemerland en Westfriesland & Waterschap ' De Waterlanden'.

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engineer Jan Adriaanszoon Leeghwater was hired to do the job because: “he is capable of improving windmills so that the project is also technically feasible.”148 Leeghwater had to overcome several obstacles before he could start the draining procedure.149 Many inhabitants of the surrounding land protested against the plans: skippers that would lose their waterways, fishermen that would lose valuable fishing ground and farmers that used the rich mud of the Beemster to fertilise their land. Farmers tried to sabotage the work and attempted to pierce the initial circular dike, in an unsuccessful attempt to flood the land anew. Nature seemed to side with the farmers: in 1610 the dike gave way during a storm and the land was flooded again. The most influential resistance came from the waterboards of the surrounding peat areas. Waterboards usually protested against new land reclamations in their area, because they had to represent the interests of existing peat and clay polders. The reclamation of lakes resulted in a smaller drainage capacity for the surrounding polders.150 In 1600 the water from the already reclaimed lakes around the Beemster was drained onto a circular canal outside the dikes, and onto surrounding land and lakes such as the Beemster. The waterboards of surrounding polders knew that when the Beemster was reclaimed, they would loose an important part of their storage capacity for the drained water. In addition, after the reclamation of the Beemster, the waterboards would have to drain the superfluous water from the Beemster as well. The waterboards feared that they would not manage to drain the additional water. That would result in additionally elevated groundwater tables in the older peat areas surrounding the Beemster, and might even lead to occasional floods.151 The possible elevated water levels and the eventual floods endangered arable farming in those older areas. To farm on the relatively wet peat soil, a low water table was necessary; otherwise the farmers could not use the early type machines. And the crops also needed relatively dry soil. But, in contrast to the possible dangers of the reclamation of the Beemster to the already existing polders, the waterboards also acknowledged that the constant flooding of the existing land by the Beemster and other lakes in that 148

Gelderblom, A. J. (1991). Mannen en Maagden in Hollands Tuin. Interpretatieve Studies van Nederlandse Letterkunde 1575-1781. Arts and Culture. Amsterdam, Universiteit van Amsterdam. 149 Gelderblom, A. J. (1991). Mannen en Maagden in Hollands Tuin. Interpretatieve Studies van Nederlandse Letterkunde 1575-1781. Arts and Culture. Amsterdam, Universiteit van Amsterdam. 150 Thurkow, A. J. (1999). Gekrakeel over boezemwater. Noordhollands Landschap: pp. 1013. 151 Danner, H. (1987). Van water tot land van land tot water. Verwikkelingen bij de indijking van de Beemster. Hoogheemraadschap van de Uitwaterende Sluizen in Kennemerland en Westfriesland & Waterschap ' De Waterlanden'.

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northern district posed continuous dangers to the existing arable farming areas.152 This acknowledgement allowed for the reclamation of the Beemster, on the condition that the possible risk of elevated groundwater levels could be avoided. The waterboards of the older reclaimed lands and of the Beemster attempted to neutralise the danger of elevated water tables by constructing a circular canal, bordered with a dike, that discharged the drained water into the sea. In addition, the Beemster waterboard promised that in case of complaints about the drainage of the older surrounding polders, they would build another valve to increase the draining power. Two years after the reclamation this valve was indeed built.153 Still this was not enough for the waterboards of the older peat areas: “the waterboards of the peat polders on many occasions asked for the creation of a ‘maalpeil’: a maximum water table in the water storage areas. The additional storage of water by all surrounding polders, including the reclaimed land, could then be prohibited by a maalstop: a stop to drainage activities. However, the influential regents and landowners in the newly reclaimed land were more than once successful in countering these attempts of what they called ‘de kleine dijkjesman’ (the small dike man). That is why the situation remained unchanged until 1795.”154 3.2.3 The lay out of the Beemster polder The Beemster polder came into existence in 1612.155 It took Leeghwater forty-three windmills, twenty-seven more than he started off with in 1608. The next step was to make this new land habitable and useable. The Amsterdam patriciate and merchants made clear that the region should have two purposes: farming and pleasure. This wish expressed the classical humanist principle of a combination of work (otium) and rest (negotium).156 In addi152

Danner, H. (1987). Van water tot land van land tot water. Verwikkelingen bij de indijking van de Beemster. Hoogheemraadschap van de Uitwaterende Sluizen in Kennemerland en Westfriesland & Waterschap ' De Waterlanden'. 153 Danner, H. (1987). Van water tot land van land tot water. Verwikkelingen bij de indijking van de Beemster. Hoogheemraadschap van de Uitwaterende Sluizen in Kennemerland en Westfriesland & Waterschap ' De Waterlanden'. 154 Thurkow, A. J. (1999). Gekrakeel over boezemwater. Noordhollands Landschap: 10-13. 155 Adriaanszoon allocated himself the name Leeghwater that means as much as ‘low water’ following the successful drainage of Beemster. See: Danner, H. (1987). Van water tot land van land tot water. Verwikkelingen bij de indijking van de Beemster. Hoogheemraadschap van de Uitwaterende Sluizen in Kennemerland en Westfriesland & Waterschap ' De Waterlanden'. And see: Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 156 The information about the classical humanist principle and about the actual design of the Beemster polder is retrieved from: Danner, H. (1987). Van water tot land van land tot water. Verwikkelingen bij de indijking van de Beemster. Hoogheemraadschap van de Uitwaterende

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tion to this humanist notion of work and rest, the Beemster also had to be the realisation of a classical planning concept. This concept was based on the ideas of the Roman architects Vitruvius and Alberti and was applied in the Italian Renaissance practices of landscape architecture and eventually also in the Italian urban ‘ideal city’ planning in the seventeenth century. The principles of order, soberness, and functionality, all part of an ‘ideal city’, were central to this renaissance planning concept.157 The application of these three guiding principles in urban planning was still fairly new when the architects hired to lay out the Beemster polder were thinking of applying the principles to the polder, something that had never been done before.158 They wanted the Beemster to be a reflection of the ‘ideal’ city of Amsterdam.159 The design of such an ideal city consisted of a chessboard grid, square forms and straight lines.160 Although the architects knew the grid would be the main design, they could not put the design to practice without an accurate chart of the Beemster land. “In the harsh winter of 1607/1608 the Beemster was one enormous field of ice. This opportunity was used to take precise measurements and level information. After all, the ice was on spirit level.”161 The architects divided the Beemster into a grid of six big squares measuring 3600 by 3600 metres. Each of the six squares was again divided into four smaller squares of 900 by 900 metres, twenty-four smaller squares in total. And each of the twenty-four smaller squares was divided into five oblongs of 180 by 900 Sluizen in Kennemerland en Westfriesland & Waterschap ' De Waterlanden'. And from: de Zeeuw, P., Steenbergen, C., de Jong, E. (1995). De Beemster. Een arena van natuur, kunst en techniek. Nederland als kunstwerk. Vijf eeuwen bouwen door ingenieurs. P. de Zeeuw, Steenbergen, C., de Jong, E. Rotterdam, NAI Uitgevers: pp. 153-167. 157 Since 1600, the Dutch Leidse Academy trained engineers in architecture, garden-, and landscape planning, with a special focus on the role of mathematics. The training of urban planning engineers consisted of applying the principles of order, mathematics and planning in landscape architecture. Simon Stevin (1548-1620) applied the concept of the ideal city to Dutch landscape and urban planning in his book ‘Vande Oirdeningh der Steden’. See: Freriks, K. (2000). De Waterwolf bedwongen. De Beemster als wereldkunstwerk. NRC Handelsblad: pp. 23. 158 de Zeeuw, P., Steenbergen, C., de Jong, E. (1995). De Beemster. Een arena van natuur, kunst en techniek. Nederland als kunstwerk. Vijf eeuwen bouwen door ingenieurs. P. de Zeeuw, Steenbergen, C., de Jong, E. Rotterdam, NAI Uitgevers: pp. 153-167. 159 Some authors argue that the same grid was projected onto the city of Manhattan. Manhattan was built around 1625. The grid architecture supposedly ‘travelled’ along with the Dutch immigrants that arrived in the United States around 1625. See: van den Broek, M. (1998). "Patroon van de beemster is nog zichtbaar in Manhattan." De Volkskrant (27-07-1998). 160 de Zeeuw, P., Steenbergen, C., de Jong, E. (1995). De Beemster. Een arena van natuur, kunst en techniek. Nederland als kunstwerk. Vijf eeuwen bouwen door ingenieurs. P. de Zeeuw, Steenbergen, C., de Jong, E. Rotterdam, NAI Uitgevers: pp. 153-167. 161 Pielage, G. (2000). Een parel van zeventiende-eeuwse landschapskunst. Noordhollands landschap: pp. 16-17.

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meters, 120 oblongs in total. Ditches and roads would form the boundaries between the smaller squares and oblongs. The grid of the Beemster had a main road, running north to south and a smaller road running from east to west. The main ditch crossed the main road. The main Beemster town, Middenbeemster, was to be situated at the centre of that axis. The architects believed that the measures of the 6 big squares, twentyfour smaller squares and 120 oblongs were best compatible with the existing practices of cultivating crops: “the building blocks for the land redistribution is the oblong of 180 X 900 metres, that originates in a long tradition of drainage and agricultural exploitation of peat and clay areas in the Low Lands.”162 To maximise efficiency for farming practices, the direction of the six biggest squares had to correspond as much as possible with the original borders of the lake. That would minimise the amount of unprofitable land near the dikes. The short side of the oblongs was connected to the prior existing circular canals. To maximise draining efficiency, the grid of the six biggest squares was also hydrologically divided into four areas by means of large ditches to drain the polder. These four areas were not linked hydrologically and allowed for individual draining and individual water tables. Each square would have its own mills to drain the water from the parcels. See picture 2.

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de Zeeuw, P., Steenbergen, C., de Jong, E. (1995). De Beemster. Een arena van natuur, kunst en techniek. Nederland als kunstwerk. Vijf eeuwen bouwen door ingenieurs. P. de Zeeuw, Steenbergen, C., de Jong, E. Rotterdam, NAI Uitgevers: pp. 153-167.

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Picture 2: Division of Beemster in squares. Copyright Hoogheemraadschap Hollands Noorderkwartier

Alongside the roads elms and ashes were planned.163 Their fan-shaped form, in avenue design, would be a reference to pointed or gothic church arches. The avenues would mirror the hedges of the Italian castle gardens and the upright trunks would express the pillars in a long loggia of an Italian villa and create a neutral pattern of square landscape chambers on both sides. See picture 3.

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According to Bouman trees could not yet be planted because the land was still too wet. See: Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker.

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Picture 3: The creation of a loggia by means of an avenue of upright trunks.

The principle of order, central to the seventeenth century urban and landscape planning would best be expressed by the successful control over nature by man. This successful control was reflected by a tunnel view from each road. This tunnel view mirrored the tension between the natural horizon and the man-made horizon of the circular polder dike.164 See picture 4. The

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de Zeeuw, P., Steenbergen, C., de Jong, E. (1995). De Beemster. Een arena van natuur, kunst en techniek. Nederland als kunstwerk. Vijf eeuwen bouwen door ingenieurs. P. de Zeeuw, Steenbergen, C., de Jong, E. Rotterdam, NAI Uitgevers: pp. 153-167.

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struggle between man and nature was fought out by means of windmills with their technical control of the natural dynamic of water and wind.

Picture 4: The tunnel view.

The principle of functionality was reflected in the grid design with its straight lines. A grid design facilitated the most efficient use of the land for farming purposes. And the grid also facilitated the efficient drainage of the polder because: “straight lines imply that the distance from one point to another is the shortest. This way the windmills could pump the water out as quickly as possible.”165 For an illustration of this geometrical design that facilitated the drainage see picture 5.

165

Freriks, K. (2000). De Waterwolf bedwongen. De Beemster als wereldkunstwerk. NRC Handelsblad: pp. 23.

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Picture 5: Symmetry and geometry to facilitate the drainage.

The principle of beauty central to that era would automatically follow from the order and functionality present in the polder because the harmony and symmetry of the design created beauty.166 That principle of beauty by symmetry is found in many other polders as well: “if you walk a long time in our polder you get a certain sense of rhythm. You move in quarters of an hour… Again and again a new reclamation, the next quay. Each time again a 166

de Zeeuw, P., Steenbergen, C., de Jong, E. (1995). De Beemster. Een arena van natuur, kunst en techniek. Nederland als kunstwerk. Vijf eeuwen bouwen door ingenieurs. P. de Zeeuw, Steenbergen, C., de Jong, E. Rotterdam, NAI Uitgevers: pp. 153-167.

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new strip of land was reclaimed and every time the length of the parcels was 360 roeden, 1250 metres, a quarter of hour walks. You still walk by the hand of people then.”167 Picture 6 is illustrative for this geometrical design.

Picture 6: The geometrical design of the Beemster.

Although divided into neat sections, the Beemster soil differed in quality. The soil of some oblongs was much more suited to cultivate crops than others.168 That meant that if every landowner received one big piece to farm on, some owners would have very good farmland whereas others wouldn’t. To facilitate the most efficient distribution of soil for the cultivation of crops, the merchants and magistrates distributed the land among them in shares of equal soil quality instead of size. This caused a situation in which a landowner had pieces of land distributed all over the polder.169 Some landowners received a small piece with very good soil; other farmers received very big parcels dispersed everywhere with soil of a lesser quality. Finally the polder was ready to welcome the farmers that would farm the land for the merchants and magistrates. 167

van Zomeren, K. (1995). Wat wil de koe. Amsterdam, Uitgeverij De Arbeiderspers, pp.42. Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 169 de Zeeuw, P., Steenbergen, C., de Jong, E. (1995). De Beemster. Een arena van natuur, kunst en techniek. Nederland als kunstwerk. Vijf eeuwen bouwen door ingenieurs. P. de Zeeuw, Steenbergen, C., de Jong, E. Rotterdam, NAI Uitgevers: pp.153-167. 168

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3.2.4 The agricultural practice in the Beemster polder Around 1612, the design was implemented almost up to the last detail. However, did the twofold function of the polder, arable farmland and a paradise of rest, meet the expectations? In this section, I will show that designing functions for a polder is one thing but putting the design into practice is quite another. As discussed in the theoretical intermezzo, technology, such as a polder, is not designed to function universally, but to function in a concrete complex situation. When the Beemster polder was reclaimed in 1612 and prepared for agriculture, the farmers encountered serious problems.170 The polder was wetter then the designers or the farmers had expected. Because of that it was very difficult to cultivate crops, as the merchants had intended: “the digging of ditches and construction of roads could have begun in the late summer of 1611… however, the early arrival of fall and the wet season prevented continuation. The weak and still saturated soil soon became completely unmanageable.”171 In addition, the wet state of the land and the roads made it difficult for the farm wagons to reach or work on the fields. The difficulty in cultivating crops posed a serious problem because the agricultural use of the land was very important for the magistrates and merchants in economic sense: “the clay-like soil, richly covered with peat, clay and silt led the landowners to impatiently await the mild crops they were already seeing in their imagination.”172 Not only the expected crops were important. If the soil was successfully functioning as arable farmland, the merchants could start imposing tax. However, reality was that: “some of the lower situated soil was not easy to cultivate, and was not suitable for growing ‘winter seed’. Some of the pieces were too wet and marshy for any purpose.”173 The Beemster waterboard and farmers identified four causes for the wet state of the land. Firstly, the newly reclaimed land was still wet because it was too soon after the drainage. Secondly, the ditches that had been dug were not deep enough to simultaneously drain the polder water as well as the storm water. Thirdly, the windmills were situated on the south dike whilst they should have been put on the North dike because the average wind direction was south to south-west, and pushed the water north. The existing 170

The information about the problems that farmers encountered when they attempted to cultivate the Beemster is retrieved from: Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 171 Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker, pp. 126. Modernised translation by Ruth Mourik. 172 Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker, pp. 141. Modernised translation by Ruth Mourik. 173 Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker, pp.141. Modernised translation by Ruth Mourik.

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windmills did not have enough power to counter the direction of the water. Finally, the new polder land did not have the same water level everywhere. As a consequence, the polder water and the storm water accumulated in the lowest areas.

3.3 Contextualising the Beemster polder 3.3.1 Contextualising the lay out of Beemster polder The original Beemster design did not fully match the practice of arable farming on this low land, even though the designers believed it would. To make the agricultural use of the land possible, the Beemster had to be drier. Adjustments were made to the watercourses.174 The waterboard and the farmers wanted to create more hydrologically different areas with separate water tables than the original four. They dammed some of the existing ditches to create smaller hydrological regimes. Each parcel received its own mill to drain the area onto a main canal. To drain these new areas even more easily, they dug more crosscutting trenches and ditches within the newly created hydrological areas. However, establishing more separated hydrological regimes did not solve the wetland problem. Another characteristic of the polder played a role: the low natural ground table, of up to 4.8 meters below sea level. The contemporary windmills were not capable of elevating the water level to five meters, at least not in the quantities that this large polder required. The wet state of the land and the difficulties in draining it made it difficult for the farmers to keep motivated in attempts to cultivate crops in the Beemster. Their motivation was really put to the test when it became apparent that the land was still quite salty, which also made it difficult to cultivate crops.175 Only grass and some other grass-like crops really flourished, which made the land particularly suitable for livestock farming: “in addition to this, the suitability of the soil for grassland was so apparent that many soon decided to turn the soil into grazing fields instead of arable land.”176 The architects of the Beemster landscape apparently thought that it would not make a real difference if their design would be implemented upon 174

This process of adjusting the watercourses and hydraulic system of the Beemster is described in detail in: Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 175 Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 176 Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker.

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an Italian soil where a city was planned or on Dutch soil of a polder where roads, agricultural land and small cities were planned. They only made simple and obvious adjustments to the original design. For example, they planned ditches where otherwise roads would have been constructed, and a dike instead of a city wall. They had transferred a technological design from the context for which it was designed (a city on Italian soil) to another context (peat soil of a Dutch polder) without taking into account that the new context might require totally different design characteristics. However, at that time this transfer of a design did not seem problematic, because the merchants that hired the architects and the persons hired to drain the polder believed that the design and lay-out would be used on a dry and crop-ready land. Not the merchants, Leeghwater or the architects could have imagined that this polder, a polder that was situated approximately five meters under the water level, would not be drained sufficiently to create arable farming land. This transfer of the ‘ideal city’ design to the polder still would not have been problematic if the merchants and magistrates had not put such pressure on cultivating the land as cropland. The merchants and reclaimers had not sufficiently grasped that the Beemster would be more difficult to drain and would stay salty for a longer period of time than other polders. In the next section I will show that because the designers and reclaimers in 1612 designed a polder that, in principle, should be suitable for arable farming, they did not consider the possibility that the polder’s agricultural function might change in time, and that this new function would require a different design. 3.3.2 Contextualising the function of Beemster polder In spite of all the adjustments to the hydrological regime, the land remained too wet to cultivate enough crops to be economically rendering. Grass and grass-like crops were more compatible with the polder land than other crops, and the land was dry enough for cattle to walk on. In addition, early type machines were not needed as often if the land was used for grazing. The knowledge that the windmills would not be capable to drain the polder any drier pushed many farmers to switch to livestock farming: “their conviction was soon reaffirmed, when, next to the characteristics and the position of the soil, they also became better acquainted with the water table of the polder.”177 When in 1700 the export of crops and the import price for grain decreased, almost all of the Beemster was turned into grazing fields.

177

Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker, pp.143. Modernised translation by Ruth Mourik.

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This transformation of arable land into grazing fields was not limited to the Beemster polder. Cattle farming also became the most important practice in other polders. Koos van Zomeren describes how, as in the Beemster, the landscape became intricately connected to cows. The farmers reflected this connection in the additional contextualisation: “…the cow again found something to do in Waterland. Even more so: the land was now organised around her. And that is the land as we know it, typically Holland. You can safely state it is man-made, but it was the cow that made it possible. The current crisis of this landscape is, therefore, in effect a crisis of the cow.”178 To turn the polder land into effective grazing fields for livestock the farmers needed to contextualise the lay out. And almost half century after reclamation, the farmers and the waterboard altered the watercourses and land distribution once more to make the polder compatible with the new practice of livestock breeding.179 The original parcels had measures that fitted the expected needs and demands of crop cultivation. In 1612, the original parcels had been fairly divided according to soil quality. Therefore, the land of one farmer was often dispersed all over the Beemster polder. The dairy/livestock farmers could not afford to have cattle grazing across the polder, because they needed to milk them at specific times, and to travel several kilometres to milk the cattle took too much time. The cattle farmers needed their cattle to be in one place.180 The soil quality was not of great influence for the cultivation of grass, and as a consequence the parcels were re-distributed to form bigger parcels near the farm. In addition, the original parcels were too long and too narrow for the practice of livestock farming. Effective grazing fields for cattle were shorter and wider. Digging a new ditch to divide the parcel easily did make them shorter. However, it was not easy to make the parcels wider, because ditches bordered them. The farmers connected adjoining parcels by filling up the ditches that separated the parcels in length. A historical analysis of the Beemster polder by Bouman illustrates that the farmers were not allowed to alter the main ditches and canals because the waterboard used them to drain the land and lead the water to the circular canal. However, within the parcels the owners were allowed to dig as many ditches as they saw fit.181 In doing so, the farmers also filled up ditches that had been dug before to drain the land more effectively. 178

van Zomeren, K. (1995). Wat wil de koe. Amsterdam, Uitgeverij De Arbeiderspers, pp.44. Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 180 Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 181 Department for Conservation Ministry of Education Culture and Science and Municipality Beemster (1998). The Beemster polder (Droogmakerij de Beemster). The Netherlands. 179

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Although the use of the Beemster land as cattle farmland was not intended by the reclaimers or the architects that laid out the original Beemster landscape, almost half a century after the reclamation “the production of cheese became increasingly important as did the livestock breeding.”182 The cattle business experienced high-days for the following centuries. The dairy products deriving from Beemster became famous. And the cultivation of crops was less important for centuries. As I will describe in the next section, however, major contextualisation would again be necessary in the years following World War II, when arable farming was reintroduced in the Beemster polder. 3.3.3 Contextualising the Beemster polder: a second round Several centuries later, after World War II, the use of the Beemster land as arable farmland, as originally intended in 1612, was able to make its come back in the Beemster. First, new hydrological technologies made it possible to achieve the water table the farmers needed to cultivate crops in the Beemster. In addition, in the decades after World War II the international need for crop cultivation increased. And in the 1980’s the production of milk and butter exceeded demand, as discussed in chapter two. Farmers turned to mixed arable farming or mono cultivation, next to or instead of cattle farming. New agricultural technologies made it possible to increase production, and because of that a farmer needed less land to produce the same amount of crops. As a consequence, farmers started to produce a variety of crops on small pieces of land. These different crops needed different water tables. To facilitate local control of the water table, the farmers again needed to drastically contextualise the design. They managed the water tables in one parcel locally by dividing damming the adjoining ditch to be able to create two or more different water tables.183 See picture 7.

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Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 183 Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker.

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Picture 7: Damming ditches.

Not only was there a need for locally controllable water tables to facilitate the cultivation of crops, the waterboards also needed to keep the water table lower than the four centuries before.184 In addition, the increased use of heavy machines and changed cattle farming strategies required a very low water table, as the next quote illustrates: “the use of increasingly heavier machines is still problematic; especially in the wet season, and during the dispersion of the manure on the land by tractor from fall to spring time. In addition the grass roots and attaches less because of the increased nitrite output and high yield grass sorts and this leads to a quicker damage, which is in turn, harmful to production. The increased density of cattle and the heavier cows increase the damage to the grass by trampling.”185 Sometimes adjoining parcels or even one parcel needed different water tables that could vary with tens of centimetres. See picture 8.

184

Interview with Gervien Pielage, representative of the waterboard “De Waterlanden”, 2109-2000. 185 Roep, D. (2000). Vernieuwend werken. Sporen van vermogen en onvermogen. Een sociomateriële studie over vernieuwing in de landbouw uitgewerkt voor de westelijke veenweidegebieden. Wageningen, Circle for rural European Studies. Wageningen University.

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Picture 8: Different water tables.

In the period from the end of the sixties until 1999, farmers, in agreement with the waterboard created many separate water table areas in the Beemster.186 Another related aspect of the practice of lowering the water table to fit changed agricultural purpose is that: “the Netherlands shrink. Everyone talks about the raising of the sea level, but few people realise that the shrinking of the earth goes much faster. One centimetre annually, a metre a century is nothing special; especially not in grass and polder land. Clay and peat shrink because of the artificial lowering of the water table. This process, inklinking, is irreversible.”187 In the course of time, the Beemster polder was contextualised to meet new demands from its users. This illustrates that the contextualisation of a technology is a continuous process. The contextualisation of the polder occurred without explicitly reformulating its lay out and without reformulating the intended practices and uses, and it occurred without coordination of the different contextualisation efforts. In the co-evolution of the polder and its 186

The waterboard De Waterlanden calls this thirty year-transformation the ‘ontwateringsplan” or waterbeheersplan. Interview with Gervien Pielage, representative of the waterboard “De Waterlanden”, 21-09-2000. 187 Casale, S. A. (1998). Brak water welt ook in binnenland op. De Volkskrant.

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context, new practices, informal uses and new relationships between the polder and the users came into existence. The contextualisation of the polder in itself was not a risk. On the contrary: without the contextualisation, the polder would not have functioned. However, the slow and invisible historical and contemporary contextualisation of the polder did result in a risky predicament, as I will show in the next section.

3.4 Risky contextualisation In the 1990’s many farmers were confronted with cattle that experienced serious health problems, and in 1997, the national government, animal scientists and farmers were convinced that water pollution by overflow discharges and peat decay might pose a risk to the cattle’s health.188 However, the decay of peat was as old as the polder, and the overflow discharges took place since the 1970’s.189 The waterboards wondered why the cattle did not experience problems before. When this question was posed all the actors had different answers, and identified different causes for the pollution. However, many farmers, waterboards and municipal bodies argued that the continuous changes to the waterways had somehow caused not only the pollution but also the cattle’s health problems. The Unie van Waterschappen, the national association of waterboards said that the cattle experienced the problems because they were now forced to drink water from dammed ditches. And the water in those dammed ditches was polluted: “according to TNO it appears that in dead-end polder water, so-called ‘kopsloten’, there frequently occurs a lack of oxygen. Thick layers of sludge on the bottom cause this lack of oxygen. Many dead-end ditches have come into existence during land redistributions. Now it appears that they impede the streaming capacity. The lack of oxygen, mostly in combination with the presence of large quantities of salt due to seepage, nitrogen and ammonium… can result in poisoning combinations in the water such as hydrogen sulphide and ammonia.”190 The Beemster waterboards and farmers both mentioned that the cattle experienced problems recently because of a combination of two factors. Firstly, the Beemster waterboard mentioned that for centuries water was seeping through the North dike, from Beetskoog into the lower situated 188

The scientific and political process leading to this conclusion will be discussed in chapter four. 189 Interview with Gervien Pielage, representative of the waterboard “De Waterlanden”, 2109-2000. 190 "Aidsachtige ziekte bedreigt veestapel. Onderzoek wijst vieze sloten aan als boosdoener." Ijmuider Courant, 20/11/1997.

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Beemster.191 This lower water table, in combination with the lower position of the Beemster compared to surrounding polders had brought about the increased withdrawal of water from the higher surrounding peat areas, like Beetskoog. This water brought along overflow and peat pollution from the surrounding peat polders. Secondly, the increasingly low water table in the Beemster accelerated the natural decay of peat, which also polluted the surface water. Hans van der Vlist, the dike reeve in the province of NoordHolland commented: “since the 1960’s wet farmland has been dried and cultivated for bulbs, glasshouses and houses. Many dead-end ditches have come into existence. Combine that with the overflow pollution that seeps into the polder and you can figure out that a lot of cattle fell sick.”192 “In Burgerbrug the main factor was the increased drainage because of which seepage water surfaced in the polder; the damming of ditches worsened the situation.193 If an overflow discharges in that same ditch, the situation is very unfortunate. In addition there is much nitrite in the water. This is caused by the injection of manure in the land. The nitrite that used to end up in the air is now present in the water.”194 The cattle farmers pointed out that the cattle had not experienced any problem with water pollution in the past, because the levels of pollution had dramatically increased over a short period of time. The pollution had started when the Beemster land was increasingly used for arable farming, and the water table was artificially lowered. Because of that, the peat started decomposing faster, and the pollution increased.195 Animal scientists were of the opinion that intensification of the dairy cattle business was the reason.196 The increased dairy production also increased the amount of water that cattle needed on a daily basis. This situation was risky because it could mean the end of dairy farming on peat soil, farmers and animal scientists argued: “when a special situation is defined as insurmountable for modernisation, such as low peat grazing fields with a water 191

Interview with Jaap Dik, representative of Beemster municipality, Middenbeemster, 11-102000. See also: Bouman, J. (1857). Bedijking, opkomst en bloei van de Beemster. Purmerende, J. Schuitemaker. 192 Luyendijk, W. (2000). Boezem vol, polder op slot. NRC Handelsblad: pp. 39. 193 Dokkum H.P. van, M.C. Th. Scholten, D.P.C. van der Veen, S. Huwer & R.G. Jak (1997). Kwaliteit van boezem- en polderwater rond Burgerbrug (de Zijpe) in relatie tot de gezondheid van weidevee. TNO-rapport. TNO-MEP- R97/393. And: Komijn, R. E. (1996). Bijeenkomst evaluatie bedrijf Pauw te Beets. Verslag vergadering 16-09-1996. 194 Floris, R., de Jong, B. (1997). "Slootwater blijkt risico voor vee." Provinciale Zeeuwse Courant (20/11/1997). 195 Roep, D. (2000). Vernieuwend werken. Sporen van vermogen en onvermogen. Een sociomateriële studie over vernieuwing in de landbouw uitgewerkt voor de westelijke veenweidegebieden. Wageningen, Circle for rural European Studies. Wageningen University. 196 Interview with Guillaume Counotte, researcher at the Gezondheidsdienst voor Dieren (GD), 13-02-1998.

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table which is too high, and marshy peat soil, the area is written off for agriculture. If it is not possible to farm in a modern way, a farm in that area cannot compete and then there is no future for agriculture, it is argued.”197 The GD researcher Guillaume Counotte argued that if nothing was done to solve the situation, in three years time the whole herd west of Utrecht, a city in the middle of the Netherlands, could be exterminated.198 The combination of an increasing scale of dairy farming and the subsequent increase in the cattle’s need for drinking water, the increased damming of ditches, the emerging thick layers of sludge on the bottom and subsequent lack of oxygen in ditches, the increased lowering of the Beemster water table to fit arable farming and the following increased seepage from outside areas, together seemed to destabilize the formerly functional water system and agricultural practices of the Beemster polder. The continuous informal and uncoordinated contextualisation over a period of four hundred years caused the current mismatch and led to this risky situation. The ensemble of strongly coupled, interconnected and interacting elements of the polder had reached a vulnerable state. For an ensemble such as the polder there are no bodies that control the quality of the ensemble, or control whether or not the original design and protocols still function. There simply still is no protocol or manual on how to handle a polder.199 Now that this risky situation was acknowledged, and now that the causes for the pollution and the cattle’s health problems were identified, it was possible to move on to the solutions. I have already mentioned that practices, such as the practice of water management and agriculture, tend to embed and then fix patterns of behaviour: they make them obdurate in much the same way as technologies fix engineering choices. These embedded and obdurate patterns of water and farm management also worked against change in the situation at hand. And, as I will discuss in the next section, the implementation of solutions would prove difficult.

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Roep, D. (2000). Vernieuwend werken. Sporen van vermogen en onvermogen. Een sociomateriële studie over vernieuwing in de landbouw uitgewerkt voor de westelijke veenweidegebieden. Wageningen, Circle for rural European Studies. Wageningen University. 198 (1997). "Koeien sterven aan een soort AIDS. Zembla over raadselachtige vee-sterfte." Nederland 3: NPS, RVU, VARA, en VPRO. 199 Perrow discusses how uncoordinated and continuous changes to a system can destabilise a seemingly functional system and lead to accidents, that in retrospective were waiting to happen: Perrow, C. (1984). Normal Accidents: Living with High-Risk Technologies. New York, Basic Books.

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3.5 The need for change versus the obduracy of the polder The waterboards believed that the adjustment of the watercourses would solve the problem of peat pollution and the involved governmental bodies, waterboard and municipality started a project to improve the water management in the Beemster polder. They proposed a package of measures, aimed at raising the water table, reconnecting dead-end ditches to the main canals, reinstating former ditches to improve the oxygen levels, and flushing the water in the polder more effectively.200 The renovation of existing overflows was also proposed. The solutions that the waterboards presented to counter the peat decay and the overflow pollution sound simple and effective: raise the water table, flush more frequently and renovate the overflows. These solutions were not exclusive to the Beemster, but were also labelled as national solutions to the problem of water pollution due to peat or overflows. In many areas the solutions were implemented successfully, but not in the Beemster. 3.5.1 First measure: centrally raising the water table As described in former sections, the infrastructure of the watercourses in the Beemster was intricately connected to the arable and dairy farming practices. Dominant ways of thinking related to farming and water management strategies had constituted the specific water management and farming infrastructure of the Beemster polder. In the course of four hundred years the farmers, in communication with the waterboards, had created many separate water table areas in the Beemster to facilitate the combination of cultivation of many different crops and grazing fields. Because of the dams and filled up ditches in the Beemster it was impossible for the waterboard to centrally regulate the water table level in the Beemster. However, it also proved impossible to undo the damage, reinstate the original ditches and remove the dams to reconnect the dead end ditches to the main watercourses, because the existing arable and dairy farming practices were dependent on the dams and the separate water table areas: “modest drainage, a higher water table of the groundwater can prevent further shrinking. However, this has an impact on the function of the land. Livestock farming has to take one step back.”201 The farmers were not the only party that made it difficult to remove the dams and raise the water table. Two protected bird species, the Black-tailed Godwit and the Ruff had been spotted in the peat soil area of the Beemster 200

Meester-Broertjes, R. (1999). Oppervlaktewaterkwaliteit en diergezondheid. Het Waterschap. 9: pp. 382-387. And: (1997). "Zwavel wellicht oorzaak ziek vee." Algemeen Dagblad. 201 Bendeler, G., et al; Ed. (1998). Nat & Droog. Nederland met andere ogen bekeken. Amsterdam, Architectura & Natura Pers.

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and surrounding peat polders.202 These birds need dry grassland to breed and raising the water level in the polder would create a wetland unsuitable for them to breed on. The birds breeding in the surrounding polders would also be endangered. The polders surrounding the Beemster polder had a higher ground level, and also a higher water table. The groundwater naturally flowed from the surrounding polders to the Beemster polder. If the water table of the Beemster was raised, the groundwater of the surrounding polders would no longer be able to flow into the lower Beemster polder to the extent it did now. This could result in wetter land. Since the birds would be endangered, environmental groups could prohibit changes to the areas where they were spotted, by appealing to the habitat act. The protection of these birds, and of their breeding ground was also very valuable to some of the dairy farmers: the government subsidises farmers who do not mow their land and who keep grazing fields, potential breeding land, uncultivated: “with this we reach the vast, and sometimes far stretching, conflict of interest between a modern agriculture aimed at production and the preservation of low peat grazing fields as typical cultural landscapes with a unique value to nature. It is a conflict about the most preferable land (re) distribution of management areas centring on the water table.”203 In spite of different interests, the farmers and the birds both represented reasons not to raise the Beemster water table: they entailed reasons that were embedded in judicial, environmental, social and economic practices.204 The dams and differentiated water table areas were embedded in the farming strategies, local informal water management practices, and environmental acts. The co-evolution of differentiated water tables, supported by dams, filled up ditches, farming practices and bird protection, implies that a change in one of the elements holds consequences for other elements. In this case, the farmers were not able to adapt their farming practices to the re-

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Interview with Gervien Pielage, representative of the waterboard “De Waterlanden”, 2109-2000. 203 Roep, D. (2000). Vernieuwend werken. Sporen van vermogen en onvermogen. Een sociomateriële studie over vernieuwing in de landbouw uitgewerkt voor de westelijke veenweidegebieden. Wageningen, Circle for rural European Studies. Wageningen University. 204 The protection of the bird’s breeding grounds was not only a strong argument for those opposed to the raising of the water table. Some farmers also used it as a counter argument in a discussion with the waterboard on whether or not to designate Beemster as a retention reservoir. After large parts of the Netherlands were flooded in 1993 following raised water levels in rivers, engineers deliberated that instead of elevating dikes it was time to consider seasonally flooding the land. By consciously flooding designated areas, other parts of the Netherlands would be less endangered. 204 Beemster was a perfect area to flood as if it was a ‘natural’ reservoir because of its relatively low ground table. The protection of the birds was successfully used as a counter argument in this debate.

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moval of dams and the raising of the water table, nor could the birds be removed or ignored. This resulted in a fixed and obdurate pattern. 3.5.2 Second measure: flushing the waterways The second solution, to flush the waterways more frequently in order to dilute the pollution of both overflows and peat, proved difficult to implement as well. The watercourse infrastructure of the Beemster as it was in 1600 had been altered in such a way that the original lay out of four separate hydrological regimes with open, interconnected ditches did no longer exist. Many ditches had been dammed, had become dead-end ditches, cut off from the main watercourses that the waterboard used. The only option to achieve optimal flushing was to breach all the dams, to create more waterways, to reconnect the dead-end ditches or to fill up the ditches that could not be reconnected. These adjustments to the watercourse architecture were difficult to implement. First, the Beemster waterboard had no immediate judicial possibility to remove the dams to facilitate the flushing. In the course of four hundred years the informal practice of damming and filling up ditches had become institutionalised, and even had become essential for the viability of farming in Beemster polder. An official of the waterboard De Waterlanden, Gervien Pielage, mentioned that although nowadays Beemster farmers have to request a dam officially, this request is only a formality, because the waterboard cannot forbid the damming or filling up of ditches in the Beemster unless this threatens the waterboard’s capacity to store a certain percentage of water.205 The waterboard had no official means to order the removal of the dams and to undo the filling up of ditches. An additional difficulty was that the Beemster polder had become listed as UNESCO World Cultural Heritage in 1999. This organisation had a tradition of protecting cities, places and other structures that were believed to represent cultural heritage. This tradition led to the fixing of the characteristics of this cultural heritage and as such resisted attempts to change elements of the polder. In 1996, several bodies presented Beemster to the UNESCO as a monument that should be preserved as World Cultural Heritage. They emphasised the importance of this nomination by stating that in no other huge architectural landscape the heritage of the Italian and Humanist treatises had been preserved that well or functioned that well: “a creative masterpiece, in which 205

This rule is typical for the Beemster polder and not all waterboards allow for the farmers practice of damming and filling up ditches. The waterboard in a neighbouring polder, De Zijpe, for example forbids the damming of ditches. Interview with Gervien Pielage, representative of the waterboard “De Waterlanden”, 21-09-2000.

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seventeenth century ideals are still very much detectable in the whole area.”206 When in 1999 Beemster polder was included on the UNESCO list of World Cultural Heritage its architectural lay out, including the hydrological regime became judicially protected.207 “The land, as it is, should remain untouched for the future.”208 The Dutch Monuments Act, issued in 1988 by the Ministry of Education, Culture and Science determines that it is forbidden to damage or destroy, to demolish, interfere with, move or in any way change a protected monument, and it is even forbidden to restore or use a protected monument in a manner which can endanger the monument, without departure from a written permit.209 When the Beemster was listed on the Cultural Heritage List it became a protected ‘designed landscape’. And because of that, to alter elements of the polder that were believed to constitute its very character, namely the hydrological architecture, had become almost impossible. In that same time period, the Beemster received a ‘bruine koers’ listing in the Fourth Policy Document on the Extra Environmental Planning.210 This policy document was the result of the Environmental Planning Act that had already been issued in 1962. This act safeguarded the possibilities for the development of agricultural practices, while also considering the historical value of the reclaimed areas. In the document Nota Landschap Regeringsbeslissing, Visie Landschap of the Ministry of Agriculture, dated 1992, the Ministry highlighted the points that had to be taken into consideration when altering aspects of polders, the new developments had to: “relate to the rational layout of the polders and the landscape characteristics that are connected to that lay out. New developments should connect to or contrast with this canvas, so that justice is done to the geometrical and monumental character of the reclamations. Attention should be paid to the lay out of roads, watercourses and the ring dike, and to the meeting points between these ele-

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Pielage, G. (2000). Een parel van zeventiende-eeuwse landschapskunst. Noordhollands landschap: pp. 16-17. 207 Beemster sides on the list with the Taj Mahal in India, the Chinese wall and the Egyptian pyramids. 208 Freriks, K. (2000). De Waterwolf bedwongen. De Beemster als wereldkunstwerk. NRC Handelsblad: pp. 23. 209 Department for Conservation Ministry of Education Culture and Science and Municipality Beemster (1998). The Beemster polder (Droogmakerij de Beemster). The Netherlands, pp. 5556. 210 Department for Conservation Ministry of Education Culture and Science and Municipality Beemster (1998). The Beemster polder (Droogmakerij de Beemster). The Netherlands, pp. 5556.

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ments. The kind of vegetation and the lay out of the vegetation should be connected to the characteristics of the reclamations.”211 This tension between safeguarding the agricultural practices and safeguarding the historical value of reclaimed areas became the centre of debate. The debate focused on whether or not new ditches could be dug or filled up to facilitate flushing and to safeguard the adaptive nature of the agricultural practices. To answer that question, the debate focused on establishing what was authentic and historically valuable in the Beemster, and what should be safeguarded from change. In 1999, UNESCO listed the contemporary watercourse infrastructure of the Beemster as authentic. However, in the course of four hundred years this infrastructure had been radically altered, and it could be argued that the listed architecture was not original.212 The farmers pointed out that the filling up of ditches should not be an issue to UNESCO since these ditches were not part of the original architecture of Beemster as laid out in 1607, but were created by farmers to solve draining problems in the past four centuries.213 On the other hand, a group of influential Beemster inhabitants, municipal and tourist organisations, striving to add the Beemster to the UNESCO list, opposed to the digging of new ditches and filling up of old ditches. This group had been watching over the ‘original’ lay out for years. The promise of being listed as UNESCO World Heritage was so influential that many contemporary changes to the landscape had either been incorporated in the existing landscape architecture, or refused.214 “All new roads that are constructed in the polder are placed parallel to the existing roads. This even goes for the highway between Hoorn and Zaanstad, which was constructed in the 1970’s. The village development of

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Department for Conservation Ministry of Education Culture and Science and Municipality Beemster (1998). The Beemster polder (Droogmakerij de Beemster). The Netherlands, pp.5556. 212 In the field of cultural heritage the definition of ‘original lay out’ is acknowledged to be a difficult matter. Irene Klaver identifies a difficult issue with respect to the question of change and authenticity of a cultural landscape: “democratic decisionmaking about the lay out of the landscape implies that it is not possible to derive authority from authenticity and expertise as one might wish. Because every democratic decision initialises a new situation, the question regarding the prior state of the landscape, how it was authentically, has relatively little meaning. And it follows that the expertise used to ascertain how the landscape used to be, also has relatively little value. Klaver, I. (1998). Wonder van het Hollandse landschap. Alles is eigenlijk kunstmatig. Kennis en Methode: Tijdschrift voor Empirische filosofie. XXII: pp. 53-65. 213 van den Broek, M. (1998). "Patroon van de beemster is nog zichtbaar in Manhattan." De Volkskrant (27-07-1998). 214 van den Broek, M. (1998). "Patroon van de beemster is nog zichtbaar in Manhattan." De Volkskrant (27-07-1998).

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Middenbeemster also follows the straight pattern. Diagonal streets are taboo. Listing on the UNESCO list will not change the municipals policy.”215 This group argued that the existing ditches were part of the polder’s characteristics and should not disappear even though they impeded the farmers’ possibility to farm efficiently: “farmers are bothered by the ditches, because they are not allowed to use pesticides in a strip two meters from the banks. The ditches are part of the Beemster. It would be really sad if they disappeared, certainly now that the polder is listed on the Cultural Heritage list.”216 The waterboard partly chose the side of the farmers: “the damage to the original pattern could have been worse. The ditches that should be filled-up have been dug far after the reclamation. You could say that the polder is brought back to its original state by filling up those ditches.”217 However, on the other hand the waterboard did not favour the filling up of the ditches because it made it even harder for them to regulate the water table level in a somewhat flexible manner in the future. The waterboard wanted to lower the water table if they expected heavy rainfall, and keep the water table higher if they expected drought, even though “the flexible water management stands in sharp contrast with the working tradition of the farmers because in principle this creates the possibility to flood the land if necessary.”218 This dispute over what actually was the original lay out of the polder finds it origin in differing definitions of the Beemster’s original architecture. Apparently, the group that aimed at listing the Beemster as World Cultural Heritage included those adjustments that had been made to facilitate the agricultural exploitation until 1980. They fixed the actual constituency in the eighties as the original lay out. The farmers and waterboard shared a different definition of the polder’s original architecture. They took the actual seventeenth century lay out to be original. Any changes made after 1611 consequently were not part of that original lay out. UNESCO won indirectly on the matter of filling ditches when the waterboard also chose to safeguard the existing ditches. The waterboard wanted to “preserve the ditch pattern because we assume that in the future we need to store more water.”219Since the waterboard was the body which licensed farmers to fill up their ditches, the 215

van den Broek, M. (1998). "Patroon van de beemster is nog zichtbaar in Manhattan." De Volkskrant (27-07-1998). 216 van den Broek, M. (1998). "Patroon van de beemster is nog zichtbaar in Manhattan." De Volkskrant (27-07-1998). 217 van den Broek, M. (1998). "Patroon van de beemster is nog zichtbaar in Manhattan." De Volkskrant (27-07-1998). 218 Interview with Gervien Pielage, representative of the waterboard De Waterlanden, 21-092000. 219 Interview with Gervien Pielage, representative of the waterboard De Waterlanden, 21-092000.

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power to safeguard the ditches lied partly with them. Civil groups were also able to protest against the filling practices through Administrative Law and public participation. 3.5.3 Third measure: renovate the overflows The municipalities also researched whether renovating the sewage system could solve the overflow problem. This renovation was already an old measure: when in 1986 the consequences of sewer overflow discharges became visible through decreasing surface water quality, the government decided that municipalities should forward integral municipal sewer plans, to renovate the overflows.220 This took much more time than had been anticipated and in 1989 the government issued an investigation into the slow pace of the renovation. In 1997, in a closed hearing of the Meijer Working party, the working party mentioned that theoretically the problem of the overflows was solvable but the costs were too substantial. The national renovation was a difficult issue: “the full renovation of overflows is economically and practically not feasible, the report of the lower house argued. However, the problems should be reduced to fifty percent in 2005. This reduction will cost no less than 16,5 billion Dutch guilders. A huge sum, spent on things that are underground, and invisible for the citizen. As a politician, this does not help you win a popularity contest.”221 The waterboards mentioned another factor: “to tackle the overflow is less easy because in first instance it is the task of the municipality. Removing all overflows from the rural area is an enormous task. In the area of Hollands Noorderkwartier alone, the forty-eight municipalities have to cough up a sum of hundred and fifty billion Dutch guilders.”222 The waterboard pointed out that the municipalities had to deal with the pollution by sewage overflows because they had issued the license to discharge the sewage water into the surface water. The new knowledge about the consequences of the pollution had to result in a reformulation of the license agreements. By redefining the issue of pollution in terms of municipal license agreements the waterboards allocated the responsibility to act on the pollution to the municipalities. I will focus on this issue of distributing responsibility in the next chapter. 220

Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer; SGBO Grontmij. (1997). Evaluatie GRP’en. Effecten van de verplichting tot het opstellen van een gemeentelijk rioleringsplan in de gemeentelijke beleidspraktijk. Samenvatting en conclusies. Den Haag. 221 Boxmeer, A. (1998). Dood door de sloot. Intermediair. And: Truijens-Hagesteijn, M., van Geleuken, B. (1997). Riooloverstorten, een blijvend zorgenkindje? Riolering: pp. 23-25. 222 Floris, R., de Jong, B. (1997). "Slootwater blijkt risico voor vee." Provinciale Zeeuwse Courant (20/11/1997).

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However, even with the frequent flushing, the raising of the water table and the removal of dams, the problem would not be solved, the dike reeve Hans van der Vlist argued: “such an assignment is almost impossible to accomplish. The water system is open and is influenced by all sorts of aspects that we cannot control, such as salt seepage and lack of oxygen in dead-end ditches.”223 In addition, Van der Vlist pointed out that even if the peat and overflow pollution could be countered to some extent, there were no standards one could refer to with regard to pollution levels for water functioning as drinking water for cattle.224 The water pollution was left unsolved. The dams and differentiated water tables, the varied arable farming strategies, the bird protection, the judicial and cultural tradition of cultural heritage that protected Beemster’s architectural constitution, the low water and ground table of the Beemster and the financial and political aspects of overflow renovations embedded choices in material, economic investments, judicial and social practices. This interconnectedness of material obduracy, persistent traditions and dominant ways of thinking resulted in an obduracy by embeddedness. It is important to mention that the flexibility of an ensemble can vary over time.225 The situation in the Beemster is still at an impasse. It can change again if, for example, major changes affect the agricultural business or the water management system. In addition, not all elements of the ensemble attain the same level of rigidity. Some elements may become obdurate whilst others can still change to some extent. This combination of contextualisation, embeddedness and obduracy can, however, fix risks for at least some time.

3.6 Contextualisation and responsibility The difficulties in implementing the designed solutions cannot be explained by referring to material or economic factors alone. I showed how other factors played a role as well. The fact that peat decay and overflow pollution posed a risk to the health of cattle was the outcome of a continuous contextualisation process. The difficulty to implement solutions to counter the pollution was the outcome of the embeddedness of choices in water- and farm 223

Floris, R., de Jong, B. (1997). "Slootwater blijkt risico voor vee." Provinciale Zeeuwse Courant (20/11/1997). 224 Floris, R., de Jong, B. (1997). "Slootwater blijkt risico voor vee." Provinciale Zeeuwse Courant (20/11/1997). 225 Hommels also made this statement: Hommels, A. (2001). Unbuilding Cities: Obduracy in urban Sociotechnical Change. Universitaire Pers Maastricht.

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management, bird protection, cultural heritage acts, political and financial practices, and the subsequent obduracy of all elements. The farmers, waterboards and the government now faced two big problems with respect to both the peat soil and the overflow pollution. First, the solutions opted so far could not be implemented nationally. Second, much was unknown about the relationship between the water pollution and the cattle’s health problems. The difficulty in adjusting the hydrological infrastructure to counter the peat decay led the farmers, governmental officials and bodies and scientists to re-examine the problems in terms of responsibility. Those ‘in charge’ of the water management, the waterboards and early inhabitants of the polder could not be defined as negligent, since deviating from the formal lay out had been essential to the functionality of the polder. In his Abbeystead example, Brian Wynne argued that the consequences of contextualisation, in combination with changing user practices puts experts in a predicament since it becomes difficult to distinguish between safe and unsafe actions or conditions.226 Was the practice of adapting the watercourse architecture a risky practice? Or was the intensification of the cattle business the real risk? Could the situation of water pollution and cattle health problems have been avoided? Who was politically responsible? Who was responsible in legal terms, liable? Who was politically responsible for the continuation of the search for a solution? The farmers and governmental bodies believed that more scientific knowledge would help them solve the problem and provide answers to the questions mentioned above. The scientific arena might be able to formulate more solutions. And, if not, scientists at least would be able to establish the causal story, and who was responsible for the source of the pollution. The scientific arena would be of assistance in defining who could be held responsible and who was to deal with the consequences on a political level. However, I shall show that the role of scientists was more ambiguous and less clear-cut than the farmers and the governmental bodies anticipated. The controversy moved to the political and scientific arenas, and this process will be discussed in the next chapter.

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Wynne also argues this: Wynne, B. (1988). "Unruly technology." Social Studies of Science 18: pp. 147-167. Also see: Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press.

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4 How to blame a government? Distributing responsibility in the political arena Farmers Van de Geest and Pauw, local and national government all had their own theories about the cause and effect of the pollution. These theories differed. The farmers felt that the relationship between the water pollution and the cattle’s health was sufficiently established to attribute responsibility to the waterboards and the municipalities. In turn these local governmental organisations argued that, before they could take responsibility and act on the situation at hand, an uncontested causal relationship between the water pollution and the cattle’s illness should be established. The local governments and the farmers both called in scientific research centres to establish the causal chain of factors leading to the water pollution and the cattle’s health problems. The actors expected that once the experts had established this relationship, it would facilitate the distribution of responsibility and, accordingly, point to which of the parties should take action. The results did, however, not bring the clarity that the actors had hoped for, due to the fact that each of the actors had different opinions as to what counted as relevant expertise and relevant (scientific) knowledge. This difference of opinion was linked to a difference in problem definition. Depending on this problem definition, both the distribution of responsibility and the possible solutions differed too. In this chapter I will show which factors were involved in determining what counted as relevant knowledge and expertise. Furthermore, I will show how the different problem definitions influenced the distribution of responsibility. The focus of this chapter will be the political arena, an arena that involves very specific questions and arguments. In order to discuss the labelling of a problem, the construction of relevant knowledge and its uptake into decisions on responsibility, I will again first introduce several theoretical concepts. I will then continue to discuss the construction of relevancy and the construction of expertise in both controversies, and finally conclude with a discussion on the distribution of responsibilities in both controversies.

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4.1 Theoretical intermezzo 4.1.1 Boundary work: constructing credible and relevant expertise and knowledge Many studies in the field of Science and Technology Studies have described how science often stands for credibility, for legitimate knowledge, for reliable and useful knowledge, and how scientific knowledge claims are often preferred over claims lacking this ‘seal of approval’.227 However, when it comes to competing scientific and credible claims about an issue at hand, science often does not provide an easy answer. When this occurs, the actors involved often raise questions about what scientific knowledge actually is, what the difference is between scientific knowledge and non-scientific knowledge, whether the researchers that conducted the analysis used the right scientific methodologies, if there is consensus among scientists on the credibility of the results, whether the expertise of the researchers is relevant to the issue at hand, and whether or not the issue should be addressed by scientists at all.228 This process is described in the concept of ‘boundary work’.229 Boundary work is defined by Gieryn as “the attribution of selected qualities to scientists, scientific methods and scientific claims for the purpose of drawing boundaries between scientific knowledge and non-scientific knowl-

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This is also argued by Jasanoff in: Jasanoff, S., Wynne, B. (1998). Science and Decisionmaking. Human Change and Climate Choice. S. Raynor, Malone E.L. Columbus, Ohio, Batelle Press. 1: pp. 1-87. 228 For a detailed analysis of controversies where these questions arise see: Jasanoff, S., Wynne, B. (1998). Science and Decisionmaking. Human Change and Climate Choice. S. Raynor, Malone E.L. Columbus, Ohio, Batelle Press. 1: pp. 1-87. 229 For an in-depth understanding of the concept of boundary work I refer to: Gieryn, T. (1999). Cultural Boundaries of Science: credibility on the line. Chicago, University of Chicago Press. See also: Gieryn, T. (1995). Boundaries of Science. Handbook of Science and Technology Studies. S. Jasanoff, Markle, G.E., Petersen, J.C., Pinch, T. London, Sage: pp. 393-443. Also see: Gieryn, T. (1996). "Policing STS: A Boundary-work souvenir from the Smithsonian Exhibition of " Science in American Life"." Science, Technology & Human Values 21(1): pp. 100-115. And: Jasanoff, S. (1990). The Fifth Branch: Science Advisers as Policymakers. Cambridge, MA, Harvard University Press. Also see: Jasanoff, S. (1997). Judging Science: Issues, assumptions, models. 1997 Forum for State Court Judges, Washington. See also: Bal, R. (1999). Grenzenwerk: over het organiseren van normstelling voor de arbeidsplek. Enschede, Universiteit Twente. And: Bal, R., Bijker, W.E., Hendriks, R. (2002). Paradox van wetenschappelijk gezag. Over de maatschappelijke invloed van adviezen van de Gezondheidsraad, 1985-2001. Den Haag, Gezondheidsraad. See also: Halffman, W. (2003). Boundaries of regulatory science. Science & Technology Dynamics. Amsterdam, University of Amsterdam.

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edge.”230 Both the knowledge producer and the receiver of that knowledge undertake boundary work. Bal and Halffman define boundary work not only as the process of drawing boundaries between scientific knowledge and nonscientific knowledge, but also as a process that draws and re-establishes social and material boundaries and that can reshift boundaries. In that definition boundary work defines a practice in contrast with other practices, protects it from unwanted participants and interference, while attempting to prescribe proper ways of behaviour in that practice for participants and non participants (demarcation); at the same time, boundary work defines proper ways for interaction between these practices and makes such interaction possible and conceivable (coordination).231 In the ‘boundary work’ concept as developed by Gieryn, the construction of relevancy and credibility centres on the contests of credibility between the relevant social actors. The defining requirement for credibility contests is that different actors put their knowledge claims forward as truths and argument that these truths are based on objectivity, efficacy, predictability, reliability and other connotations that are typically linked to science and truth. Every contest of credibility leads to a different definition of what scientific knowledge is. There are no fixed characteristics that can be attributed to science in order to endow it with authority or to restrict its supposed legitimacy and the boundaries of science are drawn and redrawn in every new controversy when each side brings scientists to the battle to defend its knowledge claim. The concept of boundary work was developed to identify and analyse this process of drawing and redrawing boundaries between science and other forms of knowledge. Key to the understanding of the process of drawing and also redrawing boundaries between scientific knowledge and other forms of knowledge in credibility contests is the construction of trust, credibility and relevance of knowledge. Gieryn defines boundary work as a strategic and practical action that results in attributing specific knowledge claims on either of the follow230

Gieryn, T. (1999). Cultural Boundaries of Science: credibility on the line. Chicago, University of Chicago Press. And: Gieryn, T. (1995). Boundaries of Science. Handbook of Science and Technology Studies. S. Jasanoff, Markle, G.E., Petersen, J.C., Pinch, T. London, Sage: pp. 393-443. 231 Bal, R., Halffman, W., Ed. (1998). The politics of Chemical Risk: Scenarios for a regulatory Future. Dordrecht, Kluwer Academic Publishers. The above definition is based on the following article by Steven Shapin: Shapin, S. (1992). Discipline and Bounding: The history and sociology of science as seen through the externalism-internalism debate. History of Science. 30: pp. 333-369. Bal, Bijker and Hendriks also argue that boundary work can occur implicitly as part of the coordination of actions and activities that define and prescribe proper ways for interaction between these practices. See: Bal, R., Bijker, W.E., Hendriks, R. (2002). Paradox van wetenschappelijk gezag. Over de maatschappelijke invloed van adviezen van de Gezondheidsraad, 1985-2001. Den Haag, Gezondheidsraad.

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ing poles: trustworthy-non trustworthy, credible-incredible, relevantirrelevant, scientific-non scientific. Every credibility contest deals with a different issue, and the features actors choose to attribute to one of the opposing poles are chosen strategically, with the aim to allocate authority in a way favourable to these actors. Boundary work occurs in settings where tacit assumptions about the contents of scientific knowledge made explicit. These are settings where knowledge claims and authority are involved, such as judicial, scientific, media and political arenas. As Sheila Jasanoff has analysed in many studies on credibility contests, to get their knowledge claim acknowledged, the competitors in the credibility contest first have to prove that the knowledge originated from a source that is deemed trustworthy by the intended receivers of the knowledge. Only then can the knowledge be labelled credible. Societal disputes over knowledge claims and truth are thus, Jasanoff argues, disputes over trust.232 The successful transportation of knowledge claims from a practical to a (relevant) scientific context or from a scientific to a practical context depends on trust. Halffman and Bal argue that trust can be achieved through the process of black boxing contingency by developing standard procedures, techniques and devices.233 Once it is established that knowledge was developed in a standardised way, the next step is to achieve more credibility by stressing the objectivity of the practices, discourses and institutions which confirm the standard measures or methods. Whether knowledge is considered neutral, objective, political, or subjective, hence is established during the contest. Yet credibility is not sufficient. The knowledge also has to contribute to solving the problem. This is step two in the boundary work process, since there is no a priori boundary between relevant and irrelevant knowledge. As described in chapter two, the problem definition can differ, depending on the 232

For a more detailed analysis of the issue of trust in credibility contests see: Jasanoff, S. (1996). "Is Science Socially Constructed- And can we still inform Public Policy?" Science and Engineering Ethics 2(3): pp. 263-276. 233 Halffman analyses how the results of commercial laboratories become trustworthy when standardised procedures are followed. The results become more trustworthy to fellow experts, and to regulatory parties, such as the government. Stability and reliability of tests and assessments across contexts is essential to trust the quality of the predictions. See: Halffman, W. (1998). Standardization as a trust device. The politics of Chemical Risk: Scenarios for a regulatory future. R. Bal, Halffman, W. Dordrecht, Kluwer Academic Publishers. See also Jasanoff, S., Wynne, B. (1998). Science and Decisionmaking. Human Change and Climate Choice. S. Raynor, Malone E.L. Columbus, Ohio, Batelle Press. 1: pp. 1-87. For additional case studies on the role of standardisation the process of producing relevant knowledge see: Timmermans, S., Berg, M. (1997). "Standardization in Action: Achieving local Universality through medical protocols." Social Studies of Science. 27: pp. 273-305. And see: Schmidt, S. K., Werle, R. (1998). Coordinating Technology: Studies in the international standardization of telecommunications. Cambridge, MIT Press.

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technological frame of the actors. Just as different problem definitions lead to differences in what is deemed a relevant solution to solve a problem, so do different problem definitions lead to differences in what is deemed relevant knowledge to solve that problem. Boundary work is strategic: every problem definition has its own boundaries, and actors will undertake boundary work to keep the boundaries stabilised. Actors actively attempt to construct specific knowledge claims relevant to their specific problem definition and construct a problem definition, which makes their knowledge claim relevant. The question of what counts as relevant knowledge and what the right definition of a problem is, also incorporates notions of whether or not the problem needs to be solved through the political arena or the scientific arena.234 For example, when actors label a problem scientific, this incorporates the acknowledgement that only scientific knowledge and scientists are relevant to the issue at hand. The way a problem is defined in boundary work determines which knowledge is relevant to the problem, and the problem definition is strategically constructed with the specific purpose of including or excluding specific knowledge. Consequently, the involvement of a specific public or group of people can be excluded. Bal demonstrated how expert committees undertake this boundary work aimed at the strategic construction of a problem definition when they assign problems to either side of the science-policy boundary. Scientific experts can resolve problems, which the expert committees deem to be scientific without needing full political responsibility or judicial liability. Wynne argues that if boundary work leads to the allocation of a problem to scientists, it is implicit that every other (i.e. non-scientific) involvement or definition of the situation looses relevance.235 The credibility contests relevant to this chapter both took place in the political arena. In this arena scientific knowledge is intimately connected to policy-making. Scientific experts are expected to use their skills and knowledge to produce arguments and insights which can help the policymakers identify, select and evaluate different courses of collective action in controversies dealing with scientific knowledge. Scientific experts advise policymakers on how to cope with uncertain events and how to select between dif234

For a detailed analysis of boundary work in the political arena see: Bal, R. (1999). Grenzenwerk: over het organiseren van normstelling voor de arbeidsplek. Enschede, Universiteit Twente. 235 Bryan Wynne argues that the label ‘perception’ for non-scientific definitions of a problem leads to a situation where scientists and governmental organizations label ‘science’ controversies as objective risk assessment versus public misperceptions constructed by ill-informed and emotive publics. See: Wynne, B. (1989). Frameworks of Rationality in Risk Management: Towards the Testing of Naive Sociology. Environmental Threats: Analysis, Perception and Management. J. Brown. London, Bellhaven: pp. 33-45. Also see: Irwin, A., Wynne, B., Ed. (1996). Misunderstanding Science?: the public reconstruction of science and technology. Cambridge, Cambridge University Press.

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ferent policy options.236 According to Jasanoff, policymakers rely on this scientific expertise because of their own lack of scientific knowledge and because of their need to integrate elements of different knowledge claims and disciplines into a useful return for the given problem.237 The concepts of boundary work and credibility contests were developed to understand the process of labelling knowledge as scientific. However, sometimes, although knowledge has been successfully constructed as scientific, that knowledge is not relevant to the issue at hand, or is not able to supply the actors with the necessary certainty on how to deal with the issue. Typically, as the controversies central to this chapter will illustrate, in these situations, key to resolving the issue is the construction of knowledge that is relevant, but not necessarily scientific. These situations will (and did in the water pollution controversies) put strain on the intimate connection between scientists and policy making: if policymakers rely heavily on the expertise of scientists, they will not be equipped to deal with situations which lack scientific certainty or consensus, or situations which are characterised by many relevant and conflicting knowledge claims concerning the problem. If actors put the problem into the political arena and scientific experts fail to advise policymakers about the issue, an interesting shift of boundaries between experts and lay people can occur. In her analysis of the BSE scare in the United Kingdom, Jasanoff demonstrated that the monopoly on rationality enjoyed by scientific experts stands and falls with the distinction between relevant and irrelevant knowledge, hence the monopoly of science can be broken if science is not able to provide relevant knowledge but lay people are able to do so.238 4.1.2 New risks and the distribution of responsibility In his ‘risk society’ approach, the German sociologist Ulrich Beck argues that typically, the monopoly of science is broken when it has to advise poli236

According to Renn, this intimate connection between science and politics is typical for a European style of using science as a system- and problem oriented approach in which science, politics and economics are linked by strategic networks. Renn identified four ways in which the political arena can use expertise. In an adversarial style, a fiduciary style, a consensual style and finally a corporatist style. See: Renn, O. (1995). "Style of using scientific expertise: a comparative framework." Science and Public Policy 22(3): pp. 147-156. See for other European examples: Jasanoff, S. (1986). Risk Management and Political Culture. A comparative study of Science in the Policy Context. New York, Russell Sage. Jasanoff, S. (1990). "American exceptionalism and the political acknowledgment of risk." Daedalus 119(4): pp. 61-81. 237 Jasanoff, S. (1986). Risk Management and Political Culture. A comparative study of Science in the Policy Context. New York, Russell Sage. And see: Jasanoff, S. (1990). "American exceptionalism and the political acknowledgment of risk." Daedalus 119(4): pp. 61-81. 238 Jasanoff, S. (1997). "Civilisation and Madness: the Great BSE scare of 1996." Public Understanding of Science 6: 221-232.

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cymakers on how to deal with what he has labelled as ‘new risks’.239 These ‘new risks’ are difficult to identify or foresee scientifically because they are invisible. New risks are threats that require the sensory organs of the scientific arena- theories, experiments, and measuring instruments - in order to become visible and interpretable as threats. New risks are no longer limited in time or space and often find their origin in decisions made years earlier. In addition, the new risks are different because it is only when the substance or technology which causes a risk is put into circulation that its effects can be monitored. Society is, Beck argues, becoming a laboratory: new technologies are introduced of which the effects are not completely clear beforehand. According to Beck these new risks have a potential social boomerang effect and can be catastrophic because of the social, economic, and political consequences of secondary effects: market shifts or collapses, devaluation of capital, creeping expropriation, new responsibilities, political pressures, recognition of compensation claims, gigantic costs, and judicial proceedings. The paradox of this ‘risk society’, according to Beck, is that there is an increasing need for scientists to identity new risks and their effects, but at the same time these new risks are often the result of scientific and industrial specialisation and overproduction. Beck states that the need that is felt publicly and at the governmental level to solve and tackle the consequences of these 239

For a detailed understanding of the Risk Society approach I refer to: Beck, U. (1999). World Risk Society. Cambridge, Polity Press. In Beck’s initial Risk Society description an inherent tension between holism and localism could be detected. The risk approach was based on local empirical material from a German and US context but made general statements on a democratic, western, high-tech culture where science and technology were institutionalised. The non-western world, the individual and the poverty stricken were absent from this approach, while these groups often attract risks and countered Beck’s these that risks are equally distributed. These criticisms were tackled in his most recent study of the world risk society. However, in this 1999 publication risks, technology, and science are still studied as black boxes without any differentiation or contingency. Beck is not sensitive to the cultural shaping of risk agenda’s and is reluctant to acknowledge that some institutions and source of power in this contemporary system are more influential than others. Finally Beck still evokes the possibility of a rational society able to take responsibility for its development and for its relationship to nature. See for these elaborate criticisms: Rustin, M. (1994). "Incomplete Modernity. Ulrich Beck's Risk Society." Dissent summer: pp. 394-400. And: Satterwhite, J. H. (1994). "Review of Risk Society: towards a new modernity. Ulrich Beck." Social Science Quaterly 75(1): pp. 236. Also see: Hall, J. R. (1994). "Review of Risk Society: Towards a New Modernity. Ulrich Beck 1992." The Sociological Review 42(2): pp. 344-345. And: Hogg, D. (1995). "Outdated Modernity. Review of Risk Society: towards a new modernity." The Ecologist 25(1): pp. 32. Also see: Rosen, R. (1994). "Who gets polluted? The movement for environmental justice." Dissent spring: pp. 223-230. 239 For other examples see: Jasanoff, S. (1997). "Civilisation and Madness: the Great BSE scare of 1996." Public Understanding of Science 6: 221-232. And: Goncalves, M. E. (1998). Politics and Science in the European Periphery: the management of the BSE risk in Portugal. ISCTE, Lisbon University Portugal.

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risks in a scientific way could allow the scientific arena to transform her mistakes and problems into new research fields. The scientific arena could thus turn her (technological) mistakes into new work.240 John Street mentioned yet another aspect that makes it difficult for scientists to provide decision makers with relevant knowledge on these new risks. Street argues that the side effects of the risks are not intrinsic to the technology producing them and the causes of risks or problems are not directly related to the intention or purpose of the technology. As a consequence, scientists are often not able to demonstrate the causal relationship between cause and effect.241 In addition, according to Street, the extent and unpredictability of the side effects make a coherent political judgment or response very difficult. There are no adequate existing political, judicial or scientific strategies or solutions to cope with the risks and their side effects.242 At the same time, Beck argues, it is unclear what sort of politics, political institutions and scientific approaches would even be capable of coping with the complex issues that result from the new risks, and a situation of institutionalised political incompetence emerges. According to Jasanoff, in controversies dealing with these new risks, typically the lacking openness on how the dangers are to be handled politically stands in stark contrast to the growing public need for action and policy making.243 As a consequence, cases dealing with new risks have contributed to the decreasing credibility of science and of its supposedly neutral role in policy. According to Renn, the existing model of specialised democracy is a model in which politics and policymaking are based on legitimating political action by means of scientific knowledge. And several case studies demonstrated that in reaction to the failure of science to legitimate political action, scientific knowledge makes way for a new political culture.244 The scientific 240

In a 1985 newspaper articles, the sewage overflows were labelled the future market opportunity. See: Tillekens, G. (1985). "Vooral een politieke kwestie. Renoveren van rioleringen markt van de toekomst." C&D: pp. 61-62. 241 For a more detailed discussion of the (political) side effects of technologies see: Street, J. (1992). Politics and technology. Houndsmills, MacMillan. 242 Michiel Schwarz analysed the increasing difficulty that modern democracies have in dealing with the complex social issues that accompany technological problems in his articles on the technological culture: Schwarz, M. (1992). Technology and Society: Dilemmas of the Technological Culture. Third European Congress on Technology Assessment, "Technology and Democracy", Copenhagen. And: Schwarz, M. (1993). The technological culture: challenges for technology assessment and policy." Science and Public Policy 20(6): 381-388. 243 Jasanoff, S. (1997). "Civilisation and Madness: the Great BSE scare of 1996." Public Understanding of Science 6: 221-232. 244 For an example of the decreasing credibility of science and the emergence of a new reflexive public I refer to: Goncalves, M. E. (1995). "Scientific expertise and European Community regulatory processes." Science and Public Policy 22(3): pp. 183-187. See also: Goncalves, M. E. (1998). Politics and Science in the European Periphery: the management of the BSE risk in Portugal. ISCTE, Lisbon University Portugal. And: Goncalves, M. E. (2000). "The impor-

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arena and scientific statements, which used to be a matter for scientific experts, become open to discussion by a public that reflects on the role of scientists and technology and (scientific) knowledge in society, a reflexive public. This reflexive public is increasingly organised in heterogeneous citizens groups, and social movements. By means of media publicity, these heterogeneous public groups have an effect on the political process of forming and enforcing decisions.245 These reflexive publics become distributed and decentralised groups of politics, and in his risk society approach Beck labels these groups ‘heterogeneous centres of sub-politics’. These centres of subpolitics affect the political distribution of responsibility for problems and risks. This distribution of responsibility is debated in contests of credibility, when actors deploy a definition of expertise and relevant knowledge which suits their purpose and their vision of how responsibility should be distributed. Acknowledging and denying the relevance of a problem definition is about power: the power to decide how responsibility should be distributed.246 The struggle for this power takes primarily place in the construction of problem definitions. The political labelling of a situation in scientific terms can originate from the political intention to keep the problem within the scientific domain. Maarten Hajer argues that the discussion of acceptable daily intake levels that emerges as soon as an environmental risk is analysed, is typically a scientific discussion.247 By keeping a discussion on risks within the scientific realm, policy makers attempt to avoid the participation of political and public interest groups in the discussion. As a result, policy makers are able to prevent public interest groups to partake in the decisionmaking process and in that sense policy makers prevent the loss of their control over the possible

tance of being European: the science and politics of BSE in Portugal." Science Technology & Human Values 24(4): pp. 417-448. 245 For other examples of how these social movements become influential co-producers of knowledge and decisions see: Eyerman, R., Jamison, A. (1991). Social Movements. A Cognitive Approach. Cambridge, Polity Press. And see: Jasanoff, S. (1997). "NGOs and the environment: from knowledge to action." Third World Quarterly 18(3): pp. 579-594. 246 For a detailed discussion of the concept of ownership as the power to decide how responsibility for a problem should be distributed see: Gusfield, J. R. (1981). The culture of public problems: drinking-driving and the symbolic order. Chicago, University of Chicago Press.. The concept of ownership will be discussed in detail in chapter 5. 247 For a comprehensive analysis of the politics of the scientific discussion of acceptable daily intake levels see: Hajer, M. A. (1992). Het milieu: een kwestie van risico's? Sturing in de risicomaatschappij. N. J. H. Huls. Zwolle, Tjeenk Willink: pp. 115-135. And see: Hajer, M. (1995). The politics of environmental discourse: ecological modernization and the policy process. Oxford, Clarendon Press.

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decisionmaking process.248 This need for control is the outcome of a culture where scientific knowledge plays a major role in various political practices.249 As long as science is able to remain the only source that provides policy makers with definitive proof and knowledge on a problem or risk, this science-policy system can legitimate, reproduce and maintain itself.250 Barker and Peters argue that the legitimation of this science-policy system, however, is successful only if the scientific arena is able to build consensus on what to advise policy makers and is only successful if the political system offers no real opportunities for effective public criticism. If these requirements are met, this results in a political culture in which politics relies heavily on the expertise of scientists and in which scientists can be invoked as an independent support for policy.251 In such a science-policy culture expertise is distributed to the realm of the scientific arena. As a consequence, when problems require decisions based on scientific expertise, it is the political arena, because of its connection to scientific advice that can make these decisions, and that can remain responsible for dealing with matters dependent upon scientific knowledge. This results in a situation where the political arena retains not only the power to take the right scientifically based decisions regarding the matter, but also 248

For other examples see: Jasanoff, S. (1997). "Civilisation and Madness: the Great BSE scare of 1996." Public Understanding of Science 6: pp. 221-232. See also: Goncalves, M. E. (1998). Politics and Science in the European Periphery: the management of the BSE risk in Portugal. ISCTE, Lisbon University Portugal. 249 For a comprehensive discussion of the major role scientific knowledge plays in various political practices see: Houtman, D. (1994). Kennis is macht. Over wetenschap, rationaliteit en beleid. De vanzelfsprekendheid van vooruitgang. Kritische beschouwingen over technologie en rationaliteit. D. Houtman, Steijn, B., de Witte, M. Amsterdam, Boom: pp. 59-81.The sociologists of science and technology Wynne and Sclove address social-technical systems as performing indefinitely large numbers of social functions beyond their designed intent, and as polyvalent in meaning. Because of that interpretative flexibility, according to Wynne and Sclove, socio-technical systems play an integral role in maintaining and producing specific cultures. See for example: Sclove, R. E. (1982). "Decision Making in a Democracy." Bulletin of the Atomic Scientists 38: pp. 44-49. And: Wynne, B. (1992). Risico en reflexiviteit: van objectief naar onderhandelbaar risico. Sturing in de risicomaatschappij. N. J. H. Huls. Zwolle, Tjeenk Willink: pp. 93-114. And: Sclove, R. E. (1993). Technological Politics as if Democracy really Mattered? Technology and the future. A. Teich. New York, St. Martion's Press: pp. 223-245. 250 For a detailed analysis of the reproduction of a particular science-policy system see: Brante, T., Fuller, S., Lynch, W., Ed. (1993). Controversial Science. From content to contention. New York, State University of New York Press. See also: Elzinga, A. (1993). Science as the continuation of politics by other means. Controversial Science. From content to contention. T. Brante, Fuller, S., Lynch, W. New York, State University of New York Press. 251 For a comprehensive discussion of these politics of expert advice see: Barker, A., Peters, G.P., Ed. (1993). The Politics of expert advice. Creating, using and manipulating scientific knowledge for public policy. Edinburgh, Edinburgh University Press.

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the monopoly on the power to distribute responsibility for handling the matter. When a new risk destabilizes science’s monopoly on truth and nonscientists start to produce equally relevant knowledge claims, it becomes extremely difficult to distribute responsibility according to the need of all actors. Everyone starts blaming one another, criticism begets more criticism and policy stasis is often the result.252 In this situation all parties are equally powerful in distributing responsibility, and as a consequence responsibility is not successfully distributed. A situation emerges which Beck describes as ‘organised irresponsibility’. With the theoretical approach sketched in this intermezzo, I will describe the construction of relevancy and expertise in the cases of the farmers Van de Geest and Pauw.

4.2 The construction of relevancy My aim in this section is to understand how scientific and other kinds of knowledge brought forward in the water pollution controversies acquire credibility, relevancy and authority in the scientific and political arena. As mentioned in the theoretical intermezzo, problems and solutions in the scientific and the political arena are not clear-cut, and there are no clear-cut boundaries between knowing and not-knowing, fact or value, scientific and other forms of knowledge. Where and how did the actors in both the overflow and the peat soil controversies draw the boundaries of relevant knowledge? Was scientific knowledge immediately acknowledged as relevant? What was the influence of different problem definitions on the claim of relevancy of knowledge? The following examples of the interaction between farmer Van de Geest and the GD, and the interactions between Pauw, the GD, the Rijksinstituut voor Volksgezondheid en Milieu (RIVM), the National Institute of Public Health and the Environment and finally the IWACO, the Dutch consultancy firm for water and environment illustrate that different arguments were used in the credibility contests to label knowledge as relevant or irrelevant. 4.2.1 From farmer knowledge to relevant knowledge: Van de Geest In 1992, Van de Geest involved the GD to establish a relationship between the water pollution and the cattle’s health problems. The GD research on the 252

This is also argued by: Jasanoff, S. (1996). Science and Norms in Global Environmental Regimes. Earthly Goods. Environmental Change and Social Justice. F. O. Hampson, Reppy, J. Ithaca, Cornell University Press: pp. 173-197.

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ditch water showed that the ditches held nitrite, nitrate and ammonium levels above the maximum daily amount for animal consumption, and the GD could not exclude the possibility of negative effects on the health of Van de Geest’s cattle. In the literature available to the GD, the possibility of a risk was expressed, but there was no consensus on concentrations that would pose a risk.253 The GD believed that an overflow was causing the contamination, but told Van de Geest that they had no scientific evidence for this relationship.254 In addition, the GD said that they did not have scientific evidence to confirm a relationship between the possible overflow pollutants and the health of cattle. Since the pollution with the overflow pollutants had not been considered a risk before, research on the health effects on cattle of the sewage pollutants did not exist. In addition, knowledge about the function of surface water as drinking water for livestock did not exist either. The GD had no frame of reference regarding the Maximum Acceptable Levels of overflow pollutants for cattle consumption because they had never been established. In order to conduct the current research, the GD used the general frame of reference of the waterboards, but this frame did not match that of the government completely, and this led to a problem. The central government gives an Algemene Milieu Kwaliteit Norm (AMK), a General Environment Quality Norm for surface water. According to the GD toxicologist Guillaume Counotte, some of these AMK norms are broad and general, too general to safely assess the health effects of the (peat or overflow) water pollution on (highly productive) dairy cattle. The GD therefore uses norms for sulphate, nitrite, ammonium, and molybdenum which are defined more specifically, and that, according to Counotte, are more adequate in defining the actual health risk of highly productive dairy cattle. 255 Counotte argued that when the cattle health problems were first detected, the waterboards often did not perceive the water to be a risk, even if the levels of sulphate, nitrite and ammonium exceeded the AMK levels. According to Counotte, the waterboards reasoned that elevated sulphate levels (above 250mg/L) are not a threat as 253

Gezondheidsdienst voor Dieren (1992). Onderzoek. 20312.GC1. GD, Drachten. Interviews with Guillaume Counotte, employee of the Gezondheidsdienst voor Dieren, 3001-1998 and 13-02-1998. 255 The aim of this chapter and this thesis was not to assess the truthfulness of claims, but to establish how the different actors used specific claims to distribute responsibility according to their needs. Therefore I have not established whether or not the GD claims were correct and I have not analysed the difference between the AMK and the GD norms for sulphate, nitrite, ammonium and molybdenum. Nor have I analysed the history of the establishment of the AMK norms. My aim was to establish the uptake of this claim and other claims in the controversy. Among others, the acknowledgment of the relevance of the claim discussed in the main text above led to coordinated research to establish adequate reference norms for among others the compounds mentioned above. See footnote 255. 254

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long as humans are not exposed to the levels for a long period of time and because this water isn’t used as drinking water for humans.256 With respect to the levels of nitrite and ammonium, Counotte argued that for water that did not function as recreation, fishing or ‘nature’ water, the waterboards often only assess the combined nitrogen-N levels, and not the separate ammonium, nitrite or nitrate levels. As long as the combined levels did not exceed 2,2mg/LN the water was not perceived to be a risk. The waterboards only assessed the combined nitrogen-N levels because nitrite levels are often a little elevated in winter, and the level of ammonium in surface water can typically be high in peat areas.257 The GD’s frame of reference labelled the individual nitrite and ammonium levels too high, but the levels did not exceed the (combined) AMK levels. Counotte argued that “there exists a gap between the two norms.”258 The lack of scientific knowledge relevant to establish a causal relationship between the overflow pollution and the health of the cattle impaired the GD. In addition the lack of standardisation between the GD and governmental norms posed a problem. A second gap in available knowledge became evident when more cattle raisers experienced problems with overflow pollution and the health of their cattle, similar to the problems the cattle of Van de Geest experienced. When these cattle farmers refused to receive the sludge extracted from the ditches, the Dutch municipalities and the union of Dutch waterboards promised to destroy the sludge in case of veterinary suspicion. However, “this advice was given in the presumption that a frame of reference for veterinary aspects was 256

Email correspondence with Guillaume Counotte, employee of the Gezondheidsdienst voor Dieren, 03-08-2004 and 05-08-2004. 257 However, in 1998, waterboard Uitwaterende Sluizen, the GD, the Instituut voor Dierhouderij en Diergezondheid- Dienst Landbouwkundig Onderzoek (ID-DLO), the semigovernmental Institute for Animal Science and Health and TNO-MEP agreed that elevated levels, especially if cattle were exposed to these levels for a longer period of time, could create toxic stress. These institutes worked together to establish reference values (norms that have no legal basis yet) for all individual compounds, to assess the quality of surface water in light of the health problems that highly productive dairy cattle experienced. In addition, the GD, ID-DLO, waterboard and TNO-MEP argued that a combination of individual compounds could create multiple stress and combination toxicity. Therefore, the GD, ID-DLO, TNOMEP and waterboard argued, additional research was necessary to establish the effect of combinations of nitrogen compounds, and of combinations of sulphate, copper and molybdenum. See: Dokkum, H.P. van; Counotte, G.H.M.; Meijer, G.A.L.; Hovenkamp-Obbema, I.R.M. (1998). Achtergronddocument Referentiewaarden Waterkwaliteit-Diergezondheid. GD, ID-DLO, Uitwaterende Sluizen, TNO. 258 Interviews with Guillaume Counotte, employee of the Gezondheidsdienst voor Dieren, 3001-1998 and 13-02-1998. See also: Nederlandse Organisatie voor Toegepast Natuurwetenschappelijk Onderzoek Milieu Energie en Procesinnovatie TNO-MEP (2000). Protocol voor de beoordeling van de bruikbaarheid van oppervlaktewater als veedrinkwater. 31241. Apeldoorn, TNO-MEP in samenwerking met DLV, GD, Alterra, USHN, ID TNO, NLTO.

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available. In additional correspondence with, among others, the GD, it became clear that this frame did not exist.”259 Although the GD did not have sufficient relevant scientific knowledge, in 1992, the GD told Van de Geest that it was wiser not to use the ditch water as drinking water for his cattle. Although the GD could not establish a causal relationship, it could not exclude the possibility that the nitrite and EColi could cause animal health problems. So what does the label ‘scientific’ mean in this case of boundary work? On what basis did the GD label the knowledge available to them relevant but not scientific? To the GD, knowledge should meet the following requirements in order to count as scientific proof: first, there must be proof of either a reasonable suspicion of a monocausal relationship between cause and effect, or if this is not possible than at least a definite evidence that excludes any monocausal relationship between cause and effect. This evidence should be based on uncontested knowledge. This means that all experts have to agree on the evidence provided. Institutes, which both the GD and the government label as scientific, must produce the proof. The GD’s requirement of monocausality may seem strange; after all it is usually impossible to establish a direct link between a particular instance of cause and effect outside the laboratory. However, this direct link between cause and effect is exactly the relationship the government and the courts of law require to base their decisions on. Since the GD leans heavily on governmental approval, they have to translate or rewrite their findings into a monocausal relationship. In future, when I speak of a causal relationship, I refer to this monocausality. Hilmar Van Weering, researcher at the GD, felt the need for more scientific knowledge before he could acknowledge a causal relationship between the overflow pollution and the health problems of the cattle. Van de Geest recovered reports from the CUWVO, a scientific institute that the government had contracted before. In these reports, scientists labelled the overflows a risk for the fauna and flora in ditches. Van de Geest read that sewer overflow discharges had been an item on the governmental agenda since 1986, when the CUWVO scientists determined that the quality of surface water deteriorated as a result of overflow discharges. When Van de Geest turned to the GD with his findings, with knowledge that he argued was relevant, the GD pointed at the lack of direct causality. Although the knowledge had been labelled scientific by the government and was related to overflows, the GD argued that the NWRW and CUWVO results were only relevant to issues dealing with overflows and their influence 259

Meester-Broertjes, R. (1999). Oppervlaktewaterkwaliteit en diergezondheid. Het Waterschap. 9: pp. 382-387.

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on the quality of the surface water. However, the CUWVO results could not be used as evidence in issued dealing with the interaction between the overflow pollution and its effects on the health of cattle. That interaction between the overflow pollution and the cattle’s health had been defined as the problem. Only knowledge and evidence that explicitly spoke of a relationship between the overflow pollution and the cattle’s health could be used and might be defined as relevant in this early phase of the credibility contest. Van de Geest needed the government to act, to take responsibility and tackle the problem, and this meant he had to present knowledge claims the government would acknowledge as relevant. Since he could not find knowledge that met the problem definition of the GD, Van de Geest decided it would be best if the GD researched and established this causal relationship. The GD, however, needed government funding to conduct their research. And the government would only finance research they felt was relevant. Consequently, the possible relationship between water pollution and the cattle’s health had to enter the political realm and be discussed there first before it could return to the scientific realm. To bring about this shift, boundary work was required. To get the possible relationship between the overflows and the cattle’s health on the political research agenda, the GD first had to translate Van de Geest’s suspicions into a scientifically relevant causal relationship. This translation, or boundary work, took place in 1996 by means of agro-scientific evaluations of veterinarians. An employee of the Informatie en Kennis Centrum (IKC) argued that the word of the veterinarian is all important to the GD and the Ministry: “because of the constant relationship between a farmer and his veterinarian, the opinion of that veterinarian is the first step in the process of establishing which factors play a role and which don’t. The second step in the protocol is to analyse the farm management.”260 Van de Geest’s veterinarian had already assessed his management as sufficient. As part of the second step in the protocol of the Ministry of Agriculture and in the credibility contest, in September 1994 Van de Geest’s management was assessed by the Algemene Inspectie Dienst (AID) and again assessed as sufficient.261 Because Van de Geest’s management had positively been assessed, the GD could acknowledge Van de Geest’s practical suspicion of a relationship between the water pollution and the cattle’s health and could translate it into a political recommendation for scientific research. By translating Van de Geest’s knowledge into a recommendation, 260

Interview with Ed van Klink, employee of the Informatie en Kennis Centrum Landbouw (IKC), 11-10-1999. 261 Directie Milieu Kwaliteit en Voeding Ministerie Landbouw Natuurbeheer en Visserij (1994). Bedrijfscontrolerapport. MKV 94.2198, Directie Milieu, Kwaliteit en Voeding Ministerie Landbouw Natuurbeheer en Visserij. Den Haag.

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his knowledge moved from the non-scientific realm, through the scientific realm into the political realm and received the label of ‘relevant’ scientific knowledge. In May 1996 the government ordered research to be conducted by the GD and the Rijksinstituut voor Integraal Zoetwaterbeheer en Afvalwaterbehandeling (RIZA), the institute for inland water management and wastewater treatment of the Directorate-General for public works and watermanagement of the Ministry of Transport, Public Works and Watermanagement. That research focused on making an inventory of the locations where a relationship between an overflow and cattle health problems was suspected by farmers and the GD. The results of that research were presented in September 1996. The RIZA and GD concluded that the cattle showed many differing symptoms, but that all symptoms might be related to water pollution. Other factors, however, such as management circumstances and feeding practices, might also influence the health of the cattle. Because of the different possible influences, the RIZA and GD concluded that is was not possible to establish a direct relationship between the overflow pollution and the cattle’s health problems.262 The RIZA and GD advised for further research and also argued that it was important to warn farmers in case they were operating near an overflow. The government, however, was slow in contracting more scientific institutes to conduct additional research, and Van de Geest wanted to speed up the process. Van de Geest thought it wise to organise the other farmers involved, before he would communicate his problem on a political level and before he would contract scientific research institutes. In 1996 Van de Geest, other farmers and veterinarians founded a working group called ‘Healthy Drinking Water For Livestock’, which was soon turned into the working group “ Wetenschappelijk Natuur en Milieubeleid”, a working group for scientific nature en environmental policy. This working group searched for alliances to consign big scientific institutes. In 1996, they started a cooperation with the Department of Dairy Farming of the farmers union Landbouwschap, and with the Nederlandse Zuivelorganisatie (NZO), the Dutch Union for Dairy Production.263 This coalition presented a report in which the responsi-

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Rijksinstituut voor Integraal Zoetwaterbeheer en Afvalwaterbehandeling RIZA Directoraat-Generaal Rijkswaterstaat Ministerie van Verkeer en Waterstaat, Gezondheidsdienst voor Dieren (1996). Riooloverstorten en weideveedrenking. Lelystad, RIZA and GD. 263 The Landbouwschap, dissolved in 1997, was the governmental interest manager for agriculture and livestock breeding in the Netherlands. The Land en Tuinbouw Organisatie (LTO), the national non-governmental organisation for agriculture and horticulture, has taken over most of the responsibilities of the Landbouwschap and now has departments in several regions of the Netherlands.

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bility for the overflows was discussed and in which the coalition requested broader and more scientific research.264 In the beginning of 1998 the farmers believed that by turning their working group into the Stichting voor Wetenschappelijk Natuur en Milieubeleid (SWNM), a non-profit organisation for scientific nature and environmental policy they could reach a wider public, address more problems related to water pollution on a national level, could file collective claims, and start collective lawsuits.265 This was a very strategic decision with the sole purpose of becoming a water pollution research organisation that could hire scientific institutes in order to influence policy-making. TNO-MEP and the Instituut voor Dierhouderij en Diergezondheid- Dienst Landbouwkundig Onderzoek (ID-DLO), the semi-governmental Institute for Animal Science and Health were often contracted by the government to conduct investigations related to animal health and environmental pollution, and in the beginning of 1997 the SWNM contracted the ID-DLO. In October 1997 the ID-DLO research results on the relationship between the water quality and the health of cattle were presented.266 The results showed that critical water quality seemed to generate a decreased resistance in the cattle. Because of this weakened condition the cattle were less resistant to other stress factors caused by management. Especially the management accompanying the intensification of the livestock raising business was described as stress enhancing. The ID-DLO had established a scientific multicausal relationship between the cattle’s health, the water pollution and the management of farmers. All parties immediately accepted the ID-DLO research techniques, methodologies and researchers. However, the results were not uncontested. Many farmers, for example, criticized the conclusion that intensification was one of the factors influencing the health of the cattle. The government, however, accepted all of the ID-DLO results and acknowledged their relevance for the water issue. The ID-DLO saw this as an opportunity to receive funds for further research by means of acquisition and they formulated an agenda for further research.267 The main argument of this 264

Afdeling Melkveehouderij van het Landbouwschap, Nederlandse Zuivelorganisatie NZO, et al. (1996). Oplossingsrichtingen problematiek riooloverstorten. Visie van de afdeling melkveehouderij van het Landbouwschap, de Nederlandse Zuivelorganisatie NZO en de werkgroep voor Wetenschappelijk Natuur- en Milieubeleid. 265 Stichting voor Wetenschappelijk Natuur- en Milieubeleid (1998). Jaarverslag 1998. 266 Meijer, G. A. L., Wagenaar, J.A., de Bree, J., Spoelstra, S.F. (1997). Riooloverstorten: risico's voor de gezondheid van melkvee. 97028. Lelystad, DLO- Instituut voor Dierhouderij en Diergezondheid. 267 Interviews with the farmer Jan van de Geest 07-04-2000, 01-05-2000 and interviews with Guillaume Counotte, employee of the Gezondheidsdienst voor Dieren, 30-01-1998 and 13-021998. For a detailed case study demonstrating the strategic actions of scientists to take advantage of occasional opportunities see: Hart, D. M., Victor, D.G. (1993). "Scientific elites and

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research agenda was that, according to them, there were too many scientifically uncertain aspects about the interaction between the polluting compounds in the water, the intensification in the cattle sector, the dairy farm management and the health of the cattle. In 1997, the ID-DLO advised the government to conduct additional scientific research on ten points.268 In 1998, the SWNM proposed several recommendations of her own that were additional to the recommendations of the ID-DLO. Many recommendations were about the technical possibilities to cut down the overflow pollution. Other recommendations related to scientific research that needed to be conducted to generate the yet unavailable knowledge on the relationship between the water pollution and the cattle’s health. The SWNM argued that the accepted maximum exposure levels or levels for daily intake of compounds should be researched and re-evaluated, because the existing reference frame stemmed from the sixties. The SWNM farmers argued that if their cattle were less resistant and drank more surface water than before as a result of the intensification movement in dairy farming, then the effect of polluting compounds had probably changed as well. The SWNM argued that, for example, in the used reference frame the maximum levels for nitrite are 1,00mg/L with a consumption of forty litres a day. The SWNM calculated that over time cattle came to drink approximately 160 litres a day. In addition, the SWNM commented that there did not exist uncontested scientific knowledge on the interaction between compounds such as sulphate and molybdenum. The SWNM argued that if the cattle drank a cocktail of polluting compounds, the effects of compounds would be felt much sooner and bethe making of US policy for climate change research 1957-74." Social Studies of Science 23 (1993): 643-80. This strategic knowledge production by scientists in order to integrate their research agenda’s with those of societal groups or organisations is also identified as mode 2 knowledge production. See: Gibbons, M., Limoges, C., Nowotny, H., Schwartzman, S., Scott, P., Trow, M., Ed. (1994). The New Production of Knowledge. The Dynamics of Science and Research in Contemporary Societies. London, Sage Publications. 268 First the ID-DLO pointed out that accurate measurement of the pollution in the overflow discharges should take place. And the distribution of the compounds in the receiving water should be researched. The effect of nitrite in the nutrition and water of cattle farms on the abortion rate should also be researched. The effect of sulphate compounds on the sulphide presence in the stomachs of cattle and the presence of secondary copper shortage was a research item. The effect of estrogenic compounds on animals was unknown and should be researched. Research should be conducted on the appearance of organ chloride compounds in household wastewater and the risks of exposure for cattle. The effect of medications in the overflow water on the health of cattle was the seventh research item. The reference frame had to be evaluated and broadened to include other compounds as well. The health risk for cattle of detergents was number nine on the agenda. Lastly the role of overflows in the spread of oöcysten had to be researched. See: Meijer, G. A. L., Wagenaar, J.A., de Bree, J., Spoelstra, S.F. (1997). Riooloverstorten: risico's voor de gezondheid van melkvee. 97028. Lelystad, DLO- Instituut voor Dierhouderij en Diergezondheid.

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cause of that the reference frame should be lowered to eighty or even fifty percent of the normal reference level.269 As discussed in the theoretical intermezzo, a problem definition is often deployed strategically with the aim to serve specific interests. The ID-DLO acted strategically and took advantage of a temporary window of opportunity to influence what was deemed relevant knowledge or research in the political and scientific arena. By defining the problem of water pollution and cattle health in terms of ‘unknown’ effects and ‘not yet researched but important’ aspects, the ID-DLO strategically aimed at more governmental funding. Because the research agenda of the SWNM fitted the above terms it was partly incorporated by the ID-DLO.270 As Gerwin Meijer, the ID-DLO employee concerned with the Van de Geest dossier, explained: “Van de Geest’s attempts to broaden the field of research coincided with the changing structure of our institute.”271 Meijer witnessed how the ID-DLO changed from a governmentally financed research institute to an institute which had also to find funds in society. As a consequence, the ID-DLO started to formulate research agendas and questions which followed the interest of both public and government: “in the old days we delivered products to the government, now we also have to supply services to society.”272 The results of these political attempts of both the ID-DLO and the SWNM to start a new research program will be analysed in a later section. In April of 1998, the SWNM became more active in the political arena when they formed a coalition with societal and environmental organisations, among which the Stichting Natuur en Milieu, the Netherlands Society for Nature and Environment, an independent environmental organisation.273 This 269

Stichting voor Wetenschappelijk Natuur- en Milieubeleid (1998). Aan Henno van Dokkum. 270 This became apparent afters several years, when a researcher approached the SWNM and congratulated them, thanking them for creating a political window of opportunity for research. 271 Interview with Gerwin Meijer researcher at the Instituut voor Dierhouderij en Diergezondheid- Dienst Landbouwkundig Onderzoek (ID-DLO), 06-02-2001. 272 Interview with Gerwin Meijer researcher at the Instituut voor Dierhouderij en Diergezondheid- Dienst Landbouwkundig Onderzoek (ID-DLO), 06-02-2001. 273 Other participants were the ANWB, the Royal Dutch Touring Club; the Centrum voor Landbouw en Milieu, the non-governmental Centre for Agriculture and Environment; the Consumentenbond, the National Consumers Organisation; the Nederlandse Vereniging tot Bescherming van Dieren, the Royal Society for the Prevention of Cruelty to Animals; de Nederlandse Vereniging van Sportvissersfederaties, the Royal Society for Amateur Fishing Federations; the 12 provinciale Milieufederaties, the 12 Provincial Societies for Environment, and finally the Stichting Meldpunten Netwerk Gezondheid en Milieu, the Monitoring Network Health and Environment. See: Stichting Natuur en Milieu (1998). Gezamenlijke reactie van negen maatschappelijke organisaties op het rapport van de werkgroep riooloverstorten 'Een stelselmatig probleem'. AK/MG/980420.012. Aan de Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieu. Stichting Natuur en Milieu. Utrecht. See also: Stichting Na-

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coalition reacted to the report of the Meijer working party and demanded surface water that was clean enough to use as drinking water for livestock, but also clean enough to swim in and even clean enough to be used as a basis for drinking water for human consumption. To achieve this goal the coalition formulated a research agenda that they presented to the government. The coalition argued that the effect of raised levels of phosphates and xenoestrogenic compounds in the surface water on the health of cattle should be researched. The effect of fertilising the land on the quality of surface water was yet another aspect to be researched. Finally the coalition argued it was also necessary to research the effect of antibiotics used in cattle raising on the quality of drinking water for human purposes.274 The SWNM had successfully taken part in the credibility contest. First, Van de Geest passed the boundary from farmer to a credible source of information to the scientific arena by means of the agricultural protocols of the Ministry of Agriculture. Then he organised farmers with similar interests and goals into a non-profit organisation, which in turn linked up with governmentally approved societal organisations such as the Stichting Natuur en Milieu. And the SWNM contracted a research institute that produced knowledge, which was accepted by the government and the GD as scientific. The knowledge claims of the SWNM farmers were no longer produced only by what they knew intuitively or observed, but were written down in scientific reports produced by scientific institutions and experts acknowledged by the government. And finally, when the SWNM research agenda was incorporated by the ID-DLO, they managed to get politicians and scientists not only to accept the farmer’s practical knowledge as relevant knowledge, but also as relevant scientific knowledge. SWNM’s knowledge had passed all hurdles relevant in the credibility contest: the boundaries between credible and incredible, relevant and irrelevant and finally the boundary between scientific and non-scientific. The SWNM farmers had successfully challenged the ability of scientific institutes such as the GD to generate relevant scientific knowledge.275 The practical knowledge of the SWNM farm-

tuur en Milieu (1997). Aanpak Riooloverstorten. Een lokale zaak of meer een kwestie van kennis, plansturing en financiering? Stichting Natuur en Milieu. Utrecht. 274 Stichting voor Wetenschappelijk Natuur- en Milieubeleid. Het welvaart-technisch probleem, het filosofisch-ideologisch probleem, het moreel probleem. And see: Stichting voor Wetenschappelijk Natuur- en Milieubeleid (1997). Aan de Voorzitter van de Tweede Kamer der Staten-Generaal. Also see: Stichting Natuur en Milieu (1998). Gezamenlijke reactie van negen maatschappelijke organisaties op het rapport van de werkgroep riooloverstorten 'Een stelselmatig probleem'. AK/MG/980420.012. Aan de Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieu. Stichting Natuur en Milieu. Utrecht. 275 Brian Wynne identifies a similar credibility contest in his paper presented at the British Council Amsterdam lecture, 10-10-2000. See: Wynne, B. (2000). Public participation in "Sci-

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ers, however, could only be put on the credible, relevant and scientific pole because the ID-DLO could transform it into scientific questions. Having described the first round of the credibility contest between Van de Geest and the government, I will now discuss Pauw’s contest of credibility. In a later section I will demonstrate how the ‘lay’ SWNM farmers became experts. 4.2.2 From farmer knowledge to incredible knowledge: Pauw In 1995 and in 1996, the GD researched the water on Pauw’s farm and concluded that the water was contaminated with high levels of hydrogen sulphide (4mg/L) and elevated levels of sulphur compounds (above the allowed 250mg/L). The GD labelled the water in the ditches surrounding Pauw’s farm unsuitable drinking water for cattle.276 The GD and the government followed their norm concerning sulphur. According to that norm, lengthy exposure to levels of sulphur above 250mg/L could cause health problems amongst cattle. However, when Pauw and his insurance adviser asked the GD if that meant that the sulphur and the nitrite in the water were causing the health problems of Pauw’s cattle, the GD answered that there was no scientific proof of a relationship between the pollution and the health of Pauw’s cattle. There was no knowledge available on how long the cattle had been exposed to the increased levels of sulphur. It was also unknown to what extent the increased levels were present: all the time or only accidentally. In connection to the other organic compounds that were found, professor Wensink, a toxicologist at Utrecht University who became involved through the GD, wrote that there was no direct relation between the lab results and the health problems of Pauw’s cattle. 277 Wensink wrote that there was very little information available about the consequences of chronic exposure to the measured levels of the organic material amongst ruminants. The way the stomach of ruminants worked seemed to suggest the animals would have additional protection against exposure, thus making the connection even more unlikely. In November 1996, Pauw still did not know what caused the pollution of the water, so he then started to look into several possible sources of conentific Issues': what is the recent fuss about, and how should we address it? Lancaster, Lancaster University. Paper presented at the British Council Amsterdam lecture, 10-10-2000. 276 Gezondheidsdienst voor Dieren (1995). Uitlag watermonsters. W 466. GD, Drachten. See also: Gezondheidsdienst voor Dieren (1996). Wateronderzoek monsters dd. 10/4/96. HVW/HVW 9620.023. GD, Drachten. And: Gezondheidsdienst voor Dieren (1996). Toelichting op uitslag zwavel. GCC/GCC 9617.719. GD, Drachten. 277 Veterinaire Inspectie (1997). Vertrouwelijke notities betreffende "Overleg Theo Wensink (TW) en I/TW en H 2/5/97. Veterinaire Inspectie voor de Volksgezondheid, Rijswijk. And see: Commissie Ouwerkerk (1997). Verslag overleg Commissie Ouwerkerk 29-09-1997.

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tamination. The credibility contest Pauw was involved in since 1995, when the GD and his veterinarian concluded that Pauw did not meet the standards of a good machine farmer, became fierce in 1995 and 1996 when Pauw contracted a number of research institutes to create knowledge relevant to the issue. First, Pauw believed a dumpsite nearby might be the cause of the pollution. When he asked the GD to research that possibility, they declined. The GD, contrary to their opinion in Van de Geest’s case, did not believe there was a causal relationship between the water pollution and the health problems of Pauw’s cattle, as they believed the problems could be traced back to Pauw’s management because his veterinarian had condemned his specific management style (as described in chapter two). 278 Pauw did not manage to pass the boundary between credible and incredible, since his veterinarian had testified against him in an earlier phase of the credibility contest. As a consequence, the GD did not deem the knowledge Pauw brought forward credible. In 1995, Pauw decided to contract IWACO, also often contracted by the government, to analyse the possibility that the dumping site caused the pollution on his land. IWACO found elevated levels of strontium in the soil samples of the dumpsite: 1800 mg/kg where the levels should have been below 0,50 mg/kg. Furthermore, IWACO found 1500 mg/L strontium in the water samples, where the levels should have been below 5,0 mg/L. Many metals, chemicals, toluene and benzene also showed raised levels. The amount of sulphate was 0,22 mg/L in the analysed ditch water sample; it should have been below 0,10 mg/L. Moreover, IWACO found extremely high levels of methylthiocyanate in the ditch water sample: 1600 µm/L.279 Pauw presented the IWACO findings to the municipality and the GD, because he believed that the presence of so many elevated levels of toxic compounds was proof enough of a scientific causal relationship. The Beets municipality, the VI and the Province of Noord-Holland did not accept the IWACO results and ordered a counter research by the renowned governmental affiliated Rijksinstituut voor Volksgezondheid en Milieu (RIVM), the National Institute of Public Health and the Environment. In the boundary work process, one of the requirements to be able to put knowledge on the ‘relevant’ pole is that the knowledge needs to originate from a reliable and credible source. Although the government often contracted IWACO, the fact that Pauw had contracted the institute was sufficient to label the results as incredible, or at least as doubtful enough to order a counter 278

Interview with Hilmar van Weering, researcher at the Gezondheidsdienst voor Dieren (GD), 29-09-1999. Interview with Koos Verhoeff, researcher at the Gezondheidsdienst voor Dieren (GD), 29-09-1999. Interview with Jantijn Swinkels, former veterinarian of Klaas Pauw, 20-10-1999. 279 Advies Bureau voor water en milieu IWACO (1995). Onderzoek terrein Beets. 5-7979.

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research. The RIVM counter research revealed no serious pollution.280 The institute found elevated toluene levels in both the water and the soil samples, but did not find levels of methylthiocyanate above 0.5 µm/L. The RIVM concluded that: “with regard to consumption of the ditch water by cattle, in the condition they were when the RIVM researched the matter, effects on the health of cattle are not expected.”281 However, in that same report the RIVM also pointed out that specific information as to the effect of these exposure levels on cattle did not exist. A discussion between Pauw, the municipality, the province of NoordHolland, the RIVM, the VI and IWACO followed, which dealt with the causes of the difference between the IWACO and RIVM findings. This discussion was a perfect illustration of a credibility contest in action. The governmental agencies argued that IWACO could not have been objective because it was a commercial institute. In other words, the results were subject to non-scientific influences. Through the way they formulated their comments, the government labelled both the results and the institute as incredible.282 Pauw countered the argument by showing that IWACO was frequently hired by governmental agencies, and the government had never questioned its results. In an interview the RIVM researcher Marc van Bruggen argued that, though IWACO was possibly objective, the institute did not possess expertise on matters of water pollution.283 The government and the RIVM argued that IWACO had not been qualified to conduct the research Pauw had requested. This was the second attempt of the government to place the results of IWACO’s research on the incredible pole: first they referred to non-scientific factors influencing the results, and now they questioned the expertise and thus the reliability of the researchers and research methods used. The government and the RIVM labelled the major differences in result measurements as lab mistakes. Marc van Bruggen argued that IWACO probably had not known how to measure sulphate and had made some mis280

Rijksinstituut voor Volksgezondheid en Milieuhygiene (1995). Analyseresultaten onderzoek "Zieke koeien slootwater Beets". 683/95 LOC/HW. RIVM. And see also: Rijksinstituut voor Volksgezondheid en Milieuhygiene (1996). Resultaten van het onderzoek van bron-, kraan- en oppervlaktewater alsmede slib, afkomstig van een agrarisch bedrijf te Beets. 055/96 IEM/JK JK. RIVM. 281 Rijksinstituut voor Volksgezondheid en Milieuhygiene (1996). Resultaten bemonstering Beets. 055/96 IEM/JK. RIVM. 282 Gemeente Zeevang (1996). Kort verslag van een bespreking gehouden op 20 februari 1996 in de raadzaal te Beets. Onderwerp: onderzoek mogelijke verontreiniging bron-en oppervlaktewater te Beets. And see also: Gezondheidsdienst voor Dieren Werkgroep Verhoeff (1997). Verslag van de evaluatiebijeenkomst betreffende de zaak Pauw d.d. 6 maart 1997. GD, Drachten. 283 Interview with Mark van Bruggen, researcher at the Rijksinstituut voor Volksgezondheid en Milieu (RIVM), 10-02-1998.

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takes in the lab settings, and he argued that the lack of expertise of IWACO could be illustrated by the fact that: “IWACO, for example, first reported to have found MITC (methylisothiocyanate), a conclusion they had to revise later on because it turned out to be MTC (methylthiocyanate). In other research conducted by the RIVM, neither compound was found above acceptable levels.” IWACO replied they did posses the expertise and knew how to conduct this research. In 1999, the GD employee Counotte stated that unclear policy as to which norms should be used - local norms (NEN) or broader norms (ISO) - could yield different results. He mentioned that the difference between these two norms lies in the two phases preceding actual measurements. The sampling phase and the preparation of the sample are both susceptible to errors. The Province of Noord-Holland and the VI concluded that there was no uncontested scientific relation between the pollution of the ditch water and the dumpsite and pointed out that the cattle’s health problems were not related to the water pollution.284 The waterboards did not aim at discrediting the IWACO results, but attempted to explain the differences by mentioning that the waterboards might have flushed the ditches in the meantime. After a flushing, the ditch water is diluted and the pollution is diluted as well. Whether or not a flushing took place was not resolved. The government and the RIVM, however, had already won the contest. They had successfully managed to raise doubts as to the IWACO results, and Pauw had to find another way to prove his suspicion that the cattle had become ill as a result of polluted surface water. In a conversation about the difference between the results of the RIVM and IWACO, TNO-MEP employee Martin Scholten argued that even if the IWACO results would have been accepted as credible, the matter would not have been resolved, because they would not have established a causal relationship between the cattle’s health and the pollution of the water. “The only possibility a farmer has to conduct research is by contracting an institute like the GD or IWACO to research water samples. But these results never lead to conclusions concerning a relationship. The farmers obviously get really frustrated with that. Such water samples show something, but not enough to satisfy institutes like the Ministry of Agriculture or the waterboards because the whole context lacks. Consequently, the impasse in which the farmer is stuck becomes even more apparent. If the farmer is lucky enough to get results showing elevated PAK’s he still does not have a leg to stand on.”285 284

Gemeente Zeevang (1996). Persbericht Onderzoek mogelijke verontreiniging bron- en oppervlaktewater te Beets. 285 Interview with Henno van Dokkum and Martin Scholten, researchers at the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP), 07-01-1998. PAK’s are Polycyclic Aromatic Hydrocarbons.

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This quote illustrates that the water pollution and sick cattle problem had to be dealt with in the scientific arena, since it was labelled to be a scientific problem. A consequence of this conclusion was that only scientific centres of expertise were able to objectively determine the relationship between the water pollution and the cattle’s health. If the farmers wanted to get the government to formulate a policy dealing with the problem, their arguments needed to be based on relevant scientific methods and claims. There is, however, no a priori boundary between relevant and non-relevant knowledge. This boundary is continuously constructed, and the IWACO example illustrates it was not sufficient for a farmer to contract a scientific institute acknowledged by the government in earlier issues. The construction of credibility is closely related to the construction of relevancy. And, by referring to the non-scientific factors that might have influenced the research, Pauw’s affiliation with IWACO was sufficient to discredit the IWACO results. The process of discrediting the results was easily concluded by referring to boundaries of expertise and possible mistakes in the methodology used. The credibility contest between Pauw and the government, however, had not yet finished. In 1996 more farmers joined Pauw in his struggle. More cattle raisers had complained to the local and national governmental agencies and the GD about sick cattle. But these cattle health issues could not be related to the overflow pollution. The farmers and farmer’s unions demanded that the Ministry of Agriculture, the Ministry of Watermanagement, and the union of waterboards would take political responsibility for the matter, and that they would order more research to establish a relationship between the water pollution and the cattle’s health. 286 In 1996, because of the multitude of complaints, Pauw’s case became an item on the political agenda of parliament. And because the government did indeed order further research, his case also became an issue on the scientific agenda. The GD visited Pauw’s farm again. In chapter two, I mentioned that although in 1995 the GD had detected a bacterial infection and had labelled this infection a probable cause for the problems, in 1996 the GD employee Verhoeff commented that the bacterial infection could not cause the gravity of the cattle’s symptoms and that it was perhaps possible that there was a relation between the quality of the ditchwater on Pauw’s land and the health of his cattle.287 The GD employee Verhoeff took the initiative to form a

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Meldpunten Netwerk Gezondheid en Milieu (1997). Uw nog uit te brengen advies aan de Tweede Kamer inzake riooloverstorten. 287 Gezondheidsdienst voor Dieren (1996). Enkele opmerkingen naar aanleiding van het bezoek dat op 3 April 1996 door Drs. A. Emmerzaal en Dr. J. Verhoeff is gebracht aan het bedrijf van de fam. Pauw, Beets 138 te Beets. GD, Drachten.

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working group with all parties deemed relevant to solve the water pollution and cattle health issues.288 In the summer of 1996, the waterboards that took part in the Verhoeff working group concluded that, although they did not feel responsible for the consequences of compounds that might be found in the water, they wanted to research the quality of the ditch water. According to Van Nederpelt, Pauw’s insurance adviser, this was useless since the ditches had just recently been flushed, diluting the pollution. He proposed to conduct the sampling with water samples that were kept at the RIVM, the waterboard and the GD. These samples had been taken in April of 1996 and the results of these samples showed elevated levels of ammonium, nitrite, sulphate and all the samples were bacteriologically polluted. The GD had concluded that the water of all samples was not suited as drinking water for cattle.289 The waterboards objected to this proposal, because according to them these samples had not been taken by an independent party. And the different samples could not be compared since the date and location of the sampling were unknown. The GD argued that it was unwise to analyse the existing RIVM samples because they might have been contaminated during their first research in the lab. Furthermore, during the analysis preservatives had been added. The GD took new water samples for analysis. The GD found levels of sulphur above the maximum accepted level of 250mg/L. The GD also researched the quality of the soil and the grass on Pauw’s farm and concluded that the pH of the soil was abnormal (6,1 to 6.7), which facilitated the existence of molybdenum in the grass. The normal level of molybdenum in crops is 2 to 5 mg/kg, but the fresh grass contained 7,8 mg/kg.290 The GD now stated that there might be a relation between the low level of copper in the animals that was discovered earlier by Pauw’s veterinarian and the high levels of molybdenum in the water. Research abroad had identified that cattle grazing on peat soil generally experience a mineral deficit, especially of copper. As a result of high sulphur, sulphide and molybdenum levels in the crop the copper deficit could become problematic and this could result in reduced resistance and an increased chance of sickness. Counotte 288

Gezondheidsdienst voor Dieren Werkgroep Verhoeff (1996). Evaluatie situatie bedrijf fam. Pauw. HVW/HVW 9620.009. GD, Drachten. 289 Gezondheidsdienst voor Dieren (1996). Uitslag watermonsters. W 985. GD, Drachten. And also: Gezondheidsdienst voor Dieren (1996). Uitslag watermonsters. W986. GD, Drachten. See also: Gezondheidsdienst voor Dieren (1996). Uitslag watermonsters. W 987. GD, Drachten. And: Gezondheidsdienst voor Dieren (1996). Uitslag watermonsters. W 988. GD, Drachten. 290 Gezondheidsdienst voor Dieren (1996). Uitslag watermonsters. W 988. GD, Drachten. And: Gezondheidsdienst voor Dieren (1996). Uitslag laboratorium onderzoek einduitslag. IZ38533. GD, Drachten. See also: Gezondheidsdienst voor Dieren (1996). Uitslag laboratorium onderzoek einduitslag. IZ-58503. GD, Drachten.

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commented that research indicated that molybdenum and sulphur combined into thiomolybdate, which inhibited the copper absorption of cattle. 291 In 1996, in a press communiqué, the Verhoeff working group stated that the preliminary conclusion was that Pauw’s cattle had suffered from a copper deficit by stress caused by the combination of molybdenum, sulphur and iron compounds in soil and water.292 The milk company could not use the milk of Pauw’s cattle because it turned bad within a few days. Further investigation was necessary, and therefore the VI ordered the RIVM to conduct experiments with rats. Rats would be fed with milk from Pauw’s cattle and the toxicity of the milk would than be assessed. The RIVM concluded that on the basis of the results of this experiment with rats it was safe to argue that there was no indication that the milk was toxic for rats.293 In reaction to these results an employee of the VI, Hans Bartels questioned several of the results. The RIVM researcher Mark van Bruggen answered these questions, and the case was closed.294 To complement the research on Pauw’s management, the IKC also conducted an evaluation of his management and feeding techniques. The IKC concluded that Pauw’s management was not aimed at maximising the milk production by means of feeding, caring, shedding or breeding. Pauw’s strategy focused on minimising the costs of farming and maximising the turnovers. The level of mechanisation was deemed very high. The IKC concluded that based on the information that was available, the researchers could not establish a relationship between the management of Pauw and the health problems that his cattle were experiencing. The IKC also pointed at the lacking information regarding the feeding of necessary additional minerals and the missing information about the caring for the animals.295 The Verhoeff committee would also use this report. As mentioned earlier, in 1996 and 1997 an increasing number of cattle raisers in the North of the Netherlands had complained about water pollution and about cattle health problems. This support from more cattle raisers gave 291 Gezondheidsdienst voor Dieren (1996). Korte toelichting onderzoek bedrijf Pauw/Beets. GD, Drachten. See also: Gezondheidsdienst voor Dieren (1996). Molybdeen. GD, Drachten. And: Gezondheidsdienst voor Dieren (1996). De voorziening van koper (CU), molybdeen (Mo) en zwavel (S) op het bedrijf van K. Pauw te Beets (NH). GD, Drachten. 292 Gezondheidsdienst voor Dieren Werkgroep Verhoeff (1996). Persbericht. GD, Drachten. 293 Rijksinstituut voor Volksgezondheid en Milieuhygiene (1997). Toxiciteitsonderzoek verdachte koemelk. 693810.(96).002. RIVM- Laboratorium voor effecten onderzoek. 294 Rijksinstituut voor Volksgezondheid en Milieuhygiene (1997). Rapportage rattenproef. 269/97 IEM MvB, Van Bruggen. RIVM. And: Veterinaire Inspectie van de Volksgezondheid (1997). Vragen naar aanleiding van toxiciteitsonderzoek melk koeien Pauw. VHI/Z/US906 970402/b/ja. Veterinaire Hoofdinspectie voor de Volksgezondheid. Rijswijk. 295 Informatie en kennis Centrum Landbouw DLV IKC (1997). Bedrijfsdoorlichting bedrijf K. Pauw te Beets. Houten, IKC, LNV.

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Pauw the opportunity to strengthen his participation in the credibility contest. The government would now have to discredit all the farmers if they wanted to keep to their earlier conclusion that there was no relationship between the water pollution and the cattle’s health. The number of cattle raisers that complained to the Ministry of Agriculture and to the Ministry of Watermanagement, in combination with an increased amount of knowledge establishing a relationship between the water pollution and the health of cattle, knowledge that was deemed relevant by the GD, led the government to order a broad research among cattle raisers in Noord-Holland.296 In December 1996, the Ministry of Agriculture presented the results of this research. In the report is was concluded that there were relatively many farms with high levels of milk production in the region, and that these farms operated above norm and did not experience more problems than was usual for these kind of farms. All farmers were aware of the need to feed the cattle with extra copper and their cattle was in good health. The Ministry mentioned that the research would be conducted again after several months. In January 1997, the Verhoeff committee presented its final report to the Ministry of Agriculture.297 The conclusion was that molybdenum poisoning in combination with a copper deficiency could cause cattle health problems, but that this was not the case with Pauw. Pauw, through his management and stabling techniques, had caused his animals to be too weak to resist poisoning. Furthermore, because of the assumption that some toxic component had been the cause for the sickness, Pauw had not listened to managerial advises from his veterinarian. Pauw was also accused of refusing to cooperate with several researchers, and of having been influenced by Van Nederpelt, who had financial motives to find an external cause for the situation. Although J. Minderhoud, the representative of the VI in the Verhoeff committee had commented the first draft of the conclusions mentioning that the final conclusions were contradictory to earlier conclusions of the committee and that this contradiction damaged the credibility of the Verhoeff committee, the Verhoeff committee published these conclusions. The government accepted them and won the second round in the credibility contest, although this time the possible relationship between the water and the cattle’s health had finally

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Ministerie van Landbouw Natuurbeheer en Visserij (1996). Sterfte runderen Beetskoogpolder. DL/964791. Den Haag. 297 Gezondheidsdienst voor Dieren Werkgroep Verhoeff (1997). De zaak Pauw. Conclusies van de organisaties die betrokken zijn geweest bij het onderzoek naar de problemen op het bedrijf van de familie Pauw te Beets. KV/1179/ns. GD, Drachten. And: Verhoeff, J. (1997). Enkele persoonlijke conclusies met betrekking tot de oorzaken van de problemen op het bedrijf van de familie Pauw te Beets. GD, Drachten.

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been established and acknowledged on the political level.298 However, this change was not in favour of Pauw’s case and it looked like the credibility contest between Pauw and the government was over. In 1997 a high employee of the Ministry of Agriculture, A. Grijns, advised the Minister of Agriculture, Nature Management and Fisheries to consult with his coalition partners in order to prevent a parliamentary investigation with reference to the Verhoeff report and to get the private file Pauw off the political agenda. This time the government undertook the boundary setting process very strategically. When in 1995-1996 Pauw’s case first appeared on the political pole, politicians had commented that Pauw’s case had to be resolved by scientific experts outside the arena of political responsibility or judicial liability, since it was an individual case. Through this line of argumentation, Pauw’s case was scientisised and made into an issue that could be worked out independently of (national) interests.299 The Pauw case was manoeuvred outside the political realm and even outside the realm of the scientific arena that advised policy makers. This political boundary work functioned to avoid political problems and perhaps even paralysis if it would turn out that Pauw was not to blame, or perhaps was not even an individual case, and if additionally it would turn out to be impossible to establish a relationship between the water pollution and the cattle’s health illness. That would have created a serious political problem. Therefore it was important to begin with establishing if Pauw was responsible for his own problems. And indeed the experts deemed Pauw’s management the cause for the cattle’s health problems. Now that Pauw was found to be the cause, it was safe to allow him back on the agenda of parliament. In may of 1997, Grijns advised the Minister to put Pauw back on the political agenda and then attempted to remove him permanently from the political agenda on the basis of the conclusion that Pauw himself was to blame. The political boundary work to remove Pauw from the political agenda failed. Van Nederpelt, Pauw’s adviser, decided to undertake one last attempt at objective, neutral scientific research to prove that there was a causal relationship between the polluted water and the cattle’s health problems. In the beginning of 1997 Van Nederpelt hired the toxicologist Paul Schepens from the University of Antwerp in Belgium, who later warned the Dutch government and public, as discussed in the introduction of this thesis. 298

Veterinaire Inspectie (1997). Commentaar op concept "Conclusies van de organisaties die betrokken zijn geweest bij het onderzoek naar de problemen op het bedrijf van de familie Pauw te Beets. Veterinaire Inspectie voor de Volksgezondheid, Rijswijk. 299 For a detailed discussion of boundary work in environmental issues see: Jasanoff, S. (1996). Science and Norms in Global Environmental Regimes. Earthly Goods. Environmental Change and Social Justice. F. O. Hampson, Reppy, J. Ithaca, Cornell University Press: pp. 173-197.

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Based on Canadian research, and on findings handed in by Van Nederpelt, in the summer of 1997 Schepens concluded preliminary that oil and gas drillings had rendered the impermeable layer of rock under the Dutch farmland porous. Because of that: “oil rich with sulphur compounds reacted with the peat that was exposed to air. From that reaction, a carbon sulphur compound emerged. This compound destroyed the liver, and inhibited the uptake of the vitamin B6 and affected the structure of enzymes.”300 Schepens argued that these compounds had first surfaced on Pauw’s land because of a specific underwater stream and because the gas pressure under his land was unusually high. Schepens was convinced that other cattle raisers would soon have polluted ditches as well. Schepens’ hypothesis attracted a lot of media attention. Pauw’s case had received media attention since 1995, and already in August 1996 the politician Remi Poppe became concerned with Pauw’s case.301 Poppe several times requested that the government should research the possibility of a relationship between the water pollution and the cattle’s health problems. In March 1997, after the Verhoeff committee published its conclusions that Pauw was to blame for the cattle health problems on his farm, Poppe criticised the Ministry of Agriculture for accepting such conclusions while any real scientific research to back the findings were missing. In addition, Poppe had argued that there was no consensus among scientists involved in Pauw’s case regarding the possible relationship between the water pollution and the cattle health problems.302 The government had not yet replied to Poppe’s requests when in the fall of 1997 Schepens’ findings attracted the media’s attention. Poppe now requested that the government assessed the credibility and relevancy of Schepens’ findings, since these findings seemed to prove a possible causal relationship between the water pollution and the cattle’s health problems. The government contracted the RIVM to analyse Schepens’ results. The RIVM was not the only actor that criticised Schepens’ research. The following statements reflect the position of many relevant actors about the relevancy of Schepens’ claims and show how relevancy is constructed, or in this case deconstructed, and with which arguments. Van Bruggen, the RIVM researcher, first concluded that the economic interest of the insurance adviser who had contracted Schepens might have influenced the data: “Schepens did 300

Schepens, P. J. C., Covaci, A., Verkerk, R., Jorens, P.G., Marescau, B., de Breuck, W., Eyskens, F., van Campenhout, C., vanden Berghe, D., Scharpe, S. (1998). Salty Wetland Deficiency Syndrome. Antwerpen, Universitaire Instelling Antwerpen. 301 Socialistische Partij (1996). Ernstige aandoeningen en sterfte van runderen door mogelijke milieuvervuiling in Beetskoogpolder.Den Haag. 302 Socialistische Partij (1997). Aan de voorzitter en leden van de vaste kamer commissie voor LNV. LNV-97-150. Den Haag.

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not take into account that the samples he researched were supplied by an party with interests (Nederpelt).”303 With this statement Van Bruggen referred to the possibility that Nederpelt could have polluted the samples with sulphate and molybdenum, because it allowed the insurance company to label the problem a consequence of oil and gas drilling. This would mean that the responsible companies and the government might be liable for the financial damages.304 The TNO-MEP researcher Scholten, who conducted the overflow research, also commented on Schepens’ theory and the issue of insurance matters: “science isn’t objective and certainly not in this specific instance. Nederpelt probably has a way of presenting and selecting scientific facts which benefit the insurance companies that have to pay the farmers, by assigning blame and thus avoiding payment.”305 The GD researcher Verhoeff mentioned that Nederpelt had a nickname: “geen geld Nederpelt” (no money Nederpelt).306 In November 1997, Van Bruggen and others also criticised Schepens’ theory on scientific grounds. According to Van Bruggen, Schepens’ hypothesis was not built on sufficient data, numbers, and samples.307 The TNOMEP researcher Scholten argued that: "Schepens’ theory was right about his theory on sulphate, but he did not deliver any information on concentrations and effect relationships, and his notion about the origin of the sulphate is faulty. The only other possible source for sulphate is insecticides. In addition Schepens pretends sulphate is xenobiotic whilst it is a totally natural compound. Our body partly consists of sulphur. The consequences for public health lack evidence too. The same applies to the health of animals, because there is hardly any knowledge among toxicologists on the internal processes of the stomach. It is a huge reactor, which transforms everything. He ventures outside his own field of expertise, which makes him weak. In addition

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Interview with Mark van Bruggen, researcher at the Rijksinstituut voor de Volksgezondheid en Milieu (RIVM) 10-02-1998. The Ouwerkerk committee also referred to the influence of insurance interests on the data Pauw supplied, see: (1997). Veehouders belemmeren onderzoek koeiensterfte. Veluws Dagblad. 304 Interview with Mark van Bruggen, researcher at the Rijksinstituut voor de Volksgezondheid en Milieu (RIVM), 10-02-1998. 305 Interview with Martin Scholten and Henno van Dokkum, researchers at the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP), 07-01-1998. 306 Interview with J. Verhoeff, researcher at the Gezondheidsdienst voor Dieren (GD), 29-091999. 307 Rijksinstituut voor Volksgezondheid en Milieuhygiene (1997). Reactie op hypothese Schepens, RIVM.

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he refers to literature which we are familiar with, but his claims about the content are not accurate.”308 Even reporters criticised Schepens: “anyone who reads the brief research report of the Belgian which was published yesterday, is indeed struck by the long line of abrupt steps and ad-hoc statements. Schepens does not supply us with concentrations in his report. His conclusions…. because of that seem vulnerable. …. From this point onward, Schepens goes far beyond the boundaries of toxicology.”309 In chapter two I already mentioned that in reaction to the ever-growing complaints and signals, the Minister of Agriculture decided to establish an expert committee.310 This Ouwerkerk committee had to study all the existing scientific hypotheses and decide which was valid and which was not. The toxicologist J. Koeman, member of the Ouwerkerk committee commented on Schepens’ theory: “He only has a theory. The validation lacks completely. As far as I know, his measurements did not show anything, not in the water and not in the animals.”311 As discussed in chapter two, the Ouwerkerk committee concluded that Pauw was an individual case and the peat soil pollution was a natural consequence of farming on peat soil.312 Although Schepens’ theory did not differ much from Counotte’s claim that molybdenum and sulphur combined into thiomolybdate, which inhibited the copper use of cattle, Schepens’ results also discussed a relationship between sulphur and the uptake of vitamins.313 His results were not acknowledged as ‘scientific’ or even as relevant. They were even labelled incredible and faulty. To summarise, Pauw did not become a credible and trustworthy political negotiation partner like the SWNM farmers did. He was not successful in translating his practical knowledge claim of a relationship between the dump, and the oil drilling into knowledge deemed relevant by the researchers of the waterboards, the GD, the VI and the RIVM. These researchers 308

Interview with Martin Scholten and Henno van Dokkum, researchers at the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP), 07-01-1998. 309 van Calmhout, M. (1997). Echte onderzoek naar oorzaak veesterfte moet nog beginnen. De Volkskrant. And see: van Calmhout, M., Reijn, G. (1997). Gif in weiden bedreiging voor melkvee. De Volkskrant. 310 Ministerie van Landbouw Natuurbeheer en Visserij (1997). Gezondheidsproblemen runderen in Noord-Holland (TRC 97/3762). DNW.971561. Den Haag. 311 van Calmhout, M. (1997). Echte onderzoek naar oorzaak veesterfte moet nog beginnen. De Volkskrant. And see: van Calmhout, M., Reijn, G. (1997). Gif in weiden bedreiging voor melkvee. De Volkskrant. 312 Commissie Ouwerkerk (1998). Rapport Commissie Ouwerkerk. 313 Roovers, M. (1997). Slootwater niet klakkeloos vertrouwen. Vervuild oppervlaktewater vormt groot risico voor vee. Boerderij. 82: pp. 18-19.

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scrutinised the results of the research centres Pauw assigned. Every time Pauw came forth with new research, or with new findings, the governmental agencies would start a contest of credibility with the aim to discredit the results. Pauw lost every contest. The boundary work the researchers from the RIVM, GD and the government undertook in several contests of credibility to discredit Pauw’s result always revolved around the issue of trust, trust in the objectivity of the results, trust in the expertise of the researchers or institutes contracted by Pauw, trust in the affiliations Pauw made with for example Van Nederpelt. By labelling the results prone to economical or political influences, the government deconstructed the trustworthiness, credibility and scientific character of Pauw’s research and was able to place it outside the scientific arena. Pauw’s attempts to construct credible and relevant knowledge claims, illustrate that it is not easy to establish trust. And with his failure at establishing trust he also failed in constructing credibility and relevancy. Claiming research was scientific because it was based on the truth and based on the expertise of scientific researchers was not sufficient to build up trust. In addition, there is no recipe for the construction of trust, which could be used by all actors in the credibility contest. Every arena requires different arguments to be played out in the construction of trust in a credibility contest. The recipe for the construction of trust not only differs between arenas, even within one arena the recipe may be different, depending on the actors involved. In the agricultural arena for example, farmers with different farming strategies need to comply with different requirements to construct trust and credibility. A machine farmer needs to prove he is an adequate machine farmer, whilst a cow farmer needs to prove he is an adequate cow farmer. The first farmer needs to prove he calls on his veterinarian for all issues, whilst the second farmers needs to prove he is able to cure a certain amount of diseases himself. As demonstrated in chapter two, Pauw failed to prove he was a good machine farmer; the involved actors did not trust him anymore and consequently did not believe in the credibility of the results or knowledge he brought forward. Now that Pauw’s attempts to construct trust and credibility have been sketched, I will return to Van de Geest’s attempts to construct expertise. 4.2.3 From farmer to expert The SWNM increasingly directed complaints to the government and the SWNM pressured the Ministers of Agriculture and Water Management to take political responsibility over the matter. According to the SWNM farmers, they had contributed substantially in contracting scientific research, and 137

the ID-DLO results were relevant because they dealt with the possible scientific causal relationship between the water pollution and the cattle’s health. The SWNM felt that the government should make use of these ID-DLO results and the recommendation for further research that was formulated, and take political action to counter the pollution or at least compensate the SWNM farmers and other farmers for their losses. The government acknowledged that it was possible to establish a scientific causal relation between the cattle’s health problems and the overflow pollution, the RIZA-GD report had established that relationship in 1996 already. As a reaction to that RIZA-GD research the government, however, also had concluded in 1996 and again in January of 1997 that she did not expect it would ever be possible to establish a monocausal relationship. Polluting compounds, livestock intensification and the management of farmers interacted and all contributed to the health problems. The Ministry of Agriculture had stated that they no longer expected useful returns from research attempting to establish a monocausal relationship, because of these intertwined factors.314 Typically, in scientific or public controversies a committee is installed, such as the Ouwerkerk or Meijer committees, and if a second step is necessary again new or additional committees are installed. The very last step in scientific or public controversies that are on the agenda of parliament is to opt for a parliamentary research. The reason the government stated its scepticism was probably that it was aware that scientific institutes could keep on producing an endless array of new scientific facts but that none of the investigations would result in a widely accepted claim of a causal relationship. Investigations would be scrutinised and deconstructed every time, revealing the political conditions and ideas that might have influenced the results. The lack of causal claims and the contradicting research results brought despair to the farmers, government and scientists. The governmental scepticism towards further research did not satisfy the SWNM farmers and they protested fiercely and successfully. In an attempt to further cooperation between the parties involved, the Ministry of Agriculture and the Ministry of Watermanagement erected the Action Program ‘water quality and animal health’ in 1998, which is still running today.315 The program was set up interdisciplinary in reaction to a growing awareness among the governmental organisations, scientific centres and the affected public that the solution to the water pollution or the cattle sickness could not 314

Ministerie van Landbouw Natuurbeheer en Visserij (1996). Uitvoering Motie Van Middelkoop en ter Veer. Dl.961163. Den Haag. And also see: Ministerie van Landbouw Natuurbeheer en Visserij (1997). Riooloverstortproblematiek. DL.97133. Den Haag. 315 Ministerie van Landbouw Natuurbeheer en Visserij (1998). Rapportage Commissie Ouwerkerk, Rapportage Werkgroep Meijer. DNW.981302. Den Haag.

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be mastered by established disciplinary sciences alone, as the following quotes illustrate: “partial answers to partial questions do not supply us with a grand picture.”316 And “it is important for the communication plan that the involved regional agricultural bodies, the individual farmers and other interested parties are informed in a uniform manner about the results of the Action Program, making use of relevant national knowledge and specific regional factors.”317 The creation of the Action Program was yet another attempt of the government to pull the overflow problem out of the political arena and into the scientific arena. The attempt was successful because the different parties in the credibility contest were aware of the fact that the contest could go on indefinitely and would never result in an uncontested monocausal relationship between the water pollution and the cattle’s health issues. The research institutes, governmental organisations and public groups that participated in the Action Program joined a shared point of view. The research institutes such as the ID-DLO, TNO-MEP and GD and the governmental organisations acknowledged that farmers such as the SWNM farmers were able to produce relevant knowledge, even if it was not scientific, and that they should be allowed to participate in the Action Program as experts. The government accepted that the issue was not to be described in terms of monocausality. In addition, the government and waterboards both became aware of the fact that the multifactorial aspect of the issue at hand required knowledge that was not only interdisciplinary but also knowledge that was not necessarily created within the scientific realm. The practical knowledge of the farmers, non-scientific knowledge, was also deemed relevant. To summarise, all parties that participated in the Action Program acknowledged that the knowledge they had was conditional, and limited to the conditions under which that knowledge was created. The overflow controversy required integration of all available conditional knowledge. The inability to construct certain knowledge claims created room for farmers to introduce their expertise.318 The farmers no longer needed the ID-DLO to translate their knowledge into scientific hypothesis and recommendations. They could speak in their own language, and speak from their practical experience 316

Interview with Hans van der Vlist, the Dike Reeve of the waterboard in North-Holland and Rianne Meester, adviser to Van der Vlist, 02-11-1999. 317 Meester-Broertjes, R. (1999). Oppervlaktewaterkwaliteit en diergezondheid. Het Waterschap. 9: pp. 382-387. 318 What happened in the Action Program can partly be described in terms of what Dickson calls the dialogue approach. In this model, proposed by the UK House of Lords, scientists have a responsibility to listen and respond to public concerns, and need to speak the language in which these concerns are expressed. However, the Action Program also works the other way around and empowers the public to understand the processes by which science is developed and applied. See: Dickson, D. (2000). "Science and its public: the need for a 'Third Way'." Social Studies of Science 30(6): pp. 917-923.

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as farmers. They became individual producers of relevant knowledge. They became as much expert as the RIVM, ID-DLO and GD advisers. While the farmers first stood outside the boundaries of the official knowledge production, a production that was mainly state-sponsored, their localised knowledge now broadened the narrowed and simplified scientific field of inquiry.319 When the actors in the overflow controversy acknowledged that the situation could never be captured in a causal scientific relationship, and described the situation in terms of ‘ complex’, ‘multifactorial’ and ‘interdisciplinary’, the notion of who counted as expert changed. The limitation to the claims of the scientific expert became transparent. While scientists became increasingly necessary to identify and visualise the risks, a typical aspect of the risk society as described by Beck, the ability of science to produce the only relevant truth seemed to diminish. Both the SWNM farmers and the government observed this diminished ability of the involved scientists, but ironically the governmentally contracted scientists identified the limitations of the scientific arena most successfully. Typically, in both Pauw’s and Van de Geest’s credibility contest, the scientists questioned unexplained assumptions among themselves, exposed tacit value choices and offered alternative interpretations and research questions.320 This process can be identified in 319

Gibbons, Limoges, Nowotny, Schwartzman, Scott and Trow introduced the concept of ‘mode 2’ knowledge production. The authors of this ‘mode 2’ concept argue that an alternative production of knowledge is emerging alongside the traditional discipline-based forms of knowledge production. In mode 2 the production of knowledge takes place outside the laboratory in many different organisations and institutions. This new knowledge is aimed at solving practical problems and is created by scientists that seek to integrate their research agenda’s with those of societal groups or organisations. See: Gibbons, M., Limoges, C., Nowotny, H., Schwartzman, S., Scott, P., Trow, M., Ed. (1994). The New Production of Knowledge. The Dynamics of Science and Research in Contemporary Societies. London, Sage Publications. And see: Rip, A., van der Meulen, J.R. (1996). "The post-modern research system." Science and Public Policy 23(6): pp. 343-352. For a detailed case study of this mode 2 knowledge production see: Blume, S., Geesink, I. (2000). "Vaccinology: An Industrial Science?" Science as Culture 9(1): pp. 41-72. For the role of organisations in the production of Techno-scientific knowledge see: Vaughan, D. (1999). "The role of the organization in the production of techno-scientific knowledge." Social Studies of Science 29(6): pp. 913-943. 320 This agenda and boundary-shifting role of a foundation such as the SWNM is not typical to the controversy I describe in this chapter, but has been well documented by others, such as: Jasanoff, S. (1997). "NGOs and the environment: from knowledge to action." Third World Quarterly 18(3): 579-594. Also see: Jamison, A., Eyerman, R., Cramer, J., Ed. (1990). The making of the new environmental consciousness: a comparative study of the environmental movements in Sweden, Denmark and the Netherlands. Edinburgh, Edinburgh University Press. See also: Wynne, B. (1992). Risico en reflexiviteit: van objectief naar onderhandelbaar risico. Sturing in de risicomaatschappij. N. J. H. Huls. Zwolle, Tjeenk Willink: 93-114. And see: Jamison, A. (1996). The Shaping of the Global Environment Agenda: The Role of NonGovernmental Organizations. Risk, Environment and Modernity. E. Lash, Szerszynski, B., and Wynne, B., Sage.

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many different controversies.321 The monopoly on relevancy that the governmental scientific experts and the ID-DLO enjoyed, a monopoly related to the ability of these scientific experts to advise the policymakers on the overflow controversy, was broken, mostly by themselves. This realisation introduced a process of demonopolisation of expertise claims in the overflow case.322 The SWNM farmers became what Beck, in his description of the risk society identified as a sub centre of politics and indeed they had an effect on political decisionmaking. In march of 2000, Van de Geest received a letter of recommendation from a member of the lower house congratulating him with his agenda-setting role, because the lower house acknowledged his capacity to tackle serious political problems.323 The Action Program still exists in 2003 and has successfully acquired trust from all parties. The Action Program aimed at standardising, at mandating protocols and assessment principles. And even though the reliability and validity of the developed tests were not proven yet, they were already assured of trust by all parties, partly because they were all involved in the development of the protocols, standards and assessments. An acceptable balance between issues of reliability, validity and reputation was found. The Action Program was about boundary work, but a specific kind that attempted to merge perspectives in order to create cooperation instead of opposing and separated parties. It was a forum that co-produced different forms of knowledge and expertise, helped label the problems as both scientific and political, and acted as an intermediary between the government and the farmers. It facilitated the collaborative participation of researchers, politicians and farmers, scientists and non-scientists and facilitated a discussion based on mutual trust and insight in each others perspectives. It was a space where policymakers, researchers and farmers could construct the boundary 321

The growing distrust of scientific expertise is an indicator for the mismatch between expectations from the public and real performance by science. Other authors have identified this indicator; see for example: Renn, O. (1995). "Style of using scientific expertise: a comparative framework." Science and Public Policy 22(3): pp. 147-156. And see: Beck, U. (1992). Risk Society: towards a new modernity. London, Sage. See also: Irwin, A. (1994). "Science and its Publics: Continuity and Change in the Risk." Social Studies of Science 24(1): pp. 169184. And: Jasanoff, S. (1997). "NGOs and the environment: from knowledge to action." Third World Quaterly 18(3): pp. 579-594. 322 Jasanoff states that this decline in confidence in the expertise of science is the result and not the effect of expertise being more widely shared, but my example shows that in this controversy, they both are interconnected and co-evolving. See: Jasanoff, S. (1997). Judging Science: Issues, assumptions, models. 1997 Forum for State Court Judges, Washington. And: Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press. 323 van Middelkoop, E. (2000). Betekenis Stichting voor Wetenschappelijk Natuur-en Milieubeleid, Tweede Kamer. Den Haag.

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between ‘responsible’ and ‘not responsible’ and between ‘relevant’ and ‘non relevant’ in a way favourable to their own perspectives. In other words it is a space where all parties can construct and reconstruct their own problem definition.324 The Action Program was a hybrid forum.325 Michel Callon and Arie Rip developed the concept of hybrid forum to describe a new kind of participatory exercise. The hybridity of the forum is reflected in the variety of perspectives, stakeholders, and expertise that interact and attempt to converge to a common goal, ambition or solution.326 Arie Rip and other authors argue that commissioned hybrid forums with their variety or heterogeneity of perspectives, stakeholders and expertise are additional to traditional instruments in representative democracies aimed at getting advice, especially in situations of high uncertainty. These forums illustrate the attempt of decision-makers to broaden their decisionmaking process and in that sense make both the decisionmaking process and the decisions

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Roland Bal witnessed a similar process of construction and re-construction of problem definitions in the discussion on setting MAC values for manmade fibres in the Netherlands. He shows that the actors are able to change their problem according to the context they reside and act in. This shows that problem definitions are not stable, but just as actors can change over time in a controversy. Problem definitions are resources that actors mobilise according to the context or arena they act in. See: Bal, R. (1999). Grenzenwerk: over het organiseren van normstelling voor de arbeidsplek. Enschede, Universiteit Twente. 325 Michel Callon, Arie Rip and Clark Miller developed this concept of hybrid forum. David Guston further elaborated on this concept. See: Callon, M., Rip, A. (1992). Humains, nonhumains: morale d'une coexistence. In: J. Theys, Kalaora, B. (eds.) La Terre Outragée. Les Experts sont Formels! Paris, Ed. Autrement. pp. 140-56. Also see: Miller, C. A. (2001). See also: "Hybrid management: Boundary organizations, science policy, and environmental governance in the climate regime." Science Technology & Human Values 26(4): pp. 478-500. And: Callon, M., Lascoumes, P., Barthe, Y., (Ed.) (2001). Agir dans un Monde Incertain: Essai sur la Démocratie Technique. Paris, Éditions du Seuil. Guston argues that organisations can only become boundary organisations if they are able to be flexible enough to balance between (institutional contexts) and at the same time are robust enough to have and maintain their own (neutral) identity. See: Guston, D. H. (1999). "Stabilizing the boundary between US politics and Science: the role of the office of technology transfer as a boundary organization." Social Studies of Science 29(1): pp. 87-111. 326 Rip and others argue that a commissioned hybrid forum is typically established as an exercise to learn about interactions between a variety of perspectives, stakeholders and expertise and to learn about the outcomes of such interaction. For a detailed discussion of this statement see: Rip, A., Most, F. van der, Smit, W. (1999). Hybrid Forums. First and incomplete draft of a paper for the BASES meeting, Enschede, 9-11 September 1999. Enschede. See also: Rip, A., Joly, P.B., Marris, C., (2004). Interactive Technology Assessment in the Real World. The experience of the iTA-vignes project organized for the French INRA. Version 3, 11. Paper submitted for presentation at the 4S/EASST conference, Paris, 25-28 August 2004. Arie Rip further elaborated on the politics of participation in a hybrid forum in: Rip, A., (2003). Constructing Expertise: In a Third Wave of Science Studies? Social Studies of Science,33,3, pp.419-434.

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socially more robust. In that sense, Rip argues, hybrid forums are a form of sub-politics.327 In the section below I give two examples in which the SWNM farmers managed to get their practical expertise acknowledged. In 1998, a coalition of TNO-MEP, ID-DLO and GD researchers contacted Van de Geest.328 This coalition wanted to set up a new reference frame and a protocol to assess the quality of surface water functioning as drinking water for cattle and they wanted Van de Geest to function as an adviser: “since this is a broad subject, with knowledge dispersed over veterinarians, toxicologists, physiologists, nutritional experts, water managers and water research institutes, there is a need for comments from external experts. Your name was suggested by Gerwin Meijer, and I would like to invite you to comment on this report.”329 TNO-MEP, GD and ID-DLO acknowledged Van de Geest as expert and deemed his knowledge relevant. Together they set up new reference frames and a protocol for the polluting compounds and they created a new agenda with items in need of research. The second success of the SWNM in their struggle to get acknowledged as experts deals with the practical knowledge about the role of animals in detecting pollution. The IKC employee Ed Van Klink described how one of the programmes included in the Action Program aimed at periodical monitoring of the quality of the surface water in a practical manner, a manner that had already been in use for a long time among many farmers.330 He mentioned that the quality of the water is never constant; every season has its particularities and in discussion between the waterboards and the farmers

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See Rip, A., Most, F. van der, Smit, W.. (1999). Hybrid Forums. First and incomplete draft of a paper for the BASES meeting, Enschede, 9-11 September 1999. Enschede. See also: Rip, A., Joly, P.B., Marris, C., (2004). Interactive Technology Assessment in the Real World. The experience of the iTA-vignes project organized for the French INRA. Version 3, 11. Paper submitted for presentation at the 4S/EASST conference, Paris, 25-28 August 2004. Femke Merkx remarks that hybrid forums on the one hand increase complexity in a productive way by including as many relevant perspectives on a situation as possible, and on the other hand the aim of hybrid forums is to reduce the complexities accompanying decisionmaking under uncertainty. See: Merkx, F., (2003). Hybride forum: is het iets of is het niets? Bijdrage aan Governance cluster bijeenkomst FWT over hybride fora. Enschede, 29-10-2003. 328 Nederlandse Organisatie voor Toegepast Natuurwetenschappelijk Onderzoek Milieu Energie en Procesinnovatie TNO-MEP (1998). Commentaar op concept. ER/98.0282/HP. Apeldoorn, TNO-MEP. 329 Nederlandse Organisatie voor Toegepast Natuurwetenschappelijk Onderzoek Milieu Energie en Procesinnovatie TNO-MEP (1998). Commentaar op concept. ER/98.0282/HP. Apeldoorn, TNO-MEP. 330 Interview with Ed van Klink, employee of the Informatie en Kennis Centrum Landbouw (IKC), 11-10-1999.

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union LTO, the use of biological indicators for the quality of the water, such as water fleas came up.331 This discussion resulted in the waterboards’ acceptance of water fleas and other water animals as biological indicators. The following quote from a waterboard magazine illustrates the successful translation of this practical knowledge into knowledge relevant to the waterboard: “because every plant and animal has specific requirements for its environment, it tells you something about the water quality in that area. For every plant and animal the environmental aspects must be optimal during the entire life cycle, otherwise they cannot grow… By analysing the species that are present and the number of each species, a biologist acquires good insight in the water quality over a long period of time.”332 And: “in many places in the Netherlands, fish, mussels, and water flees assist humankind in guarding the quality of the surface water...A strong pollution changes the behaviour of these animals and this is how the alarm us. We call this bio alarm. Typically the fish swims against the current. If he does not do so, something is wrong. When the quality of the water changes, this is also visible in the behaviour of the water flea. With this use of different organisms, our country is in the avant-garde, but the technology is still young.”333 Now that the SWNM farmers’ attempts to construct expertise and to pass the expert-lay person boundary is sketched, I will continue to discuss the relationship between the problem definition, the definition of what counts as relevant knowledge and expertise, and the distribution of responsibility.

4.3 The distribution of responsibility To discuss the connection between the definition of a problem and the distribution of responsibility, I will first highlight an issue which occurred in both the overflow and the peat controversy: the governmental order to the waterboards to inform all farmers about the quality of the water and the possible risks involved. I will conclude to discuss the consequences of the shifting relevance and expertise boundaries in the Action Program to the distribution of responsibility.

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The use of biological indicators was already part of the governmental ‘ecosystem approach’ environmental standpoint in 1994. See for example: Opperwal, J. (1994). De ambassadeur van het zoetwatermilieu. Een verhaal over de visotter en zijn woordvoerders. Kennis en Methode. XVIII: pp. 222-249. 332 (2001). "Planten, dieren en waterkwaliteit." De Waterkrant 1(Januari): pp. 4. 333 (2000). Bioalarmering. Vissen en watervlooien controleren waterkwaliteit. De Waterkrant.

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4.3.1 Informing the farmers: scientific certainty and the distribution of responsibility In 1997, the Minister of Agriculture, in response to a growing amount of complaints through contact points installed by the GD and farmers unions, stated that none of the research institutes involved so far in both the overflow and the peat issue had established uncontested scientific proof of a causal relationship between the water quality and the cattle’s health problems. 334 The Minister argued that as long as the scientific institutes could not establish a causal link between the water pollution and the cattle’s health problems, in principle it was up to every party involved to take responsibility: “in these cases (the overflow cases, author’s addition) there is only a probable relationship, not a definitive cause-consequence relationship…A major responsibility for finding a solution lies with the municipalities, the waterboards and the farmers. For a number of measures, however, in the short and long term, the government also needs to take up responsibility.”335 However, what these responsibilities entailed was not clearly defined. The Minister made a note in which he pointed out that farmers had used the ditchwater as drinking water for cattle for centuries.336 Because of this, the farmers had built up a customary right to use the water. In addition, the farmers could only take up responsibility for the matter if they were adequately informed: “ For the short term, I find there is a great need for improved information distribution to farmers. The farmers can only take up their responsibility if they are adequately informed of the locations where there is a potential increase in risk. Only then can the farmer judge if he is willing to take that risk, or whether he wants to talk to the municipality about moving the overflow, reducing the pollution or taking measures aimed at preventing the cattle from drinking the surface water.”337 The waterboards and municipalities were the parties responsible for distributing the information to the farmers and for warning the farmers about possible risks of the polluted water to the health of their cattle.338 334

Ministerie van Landbouw Natuurbeheer en Visserij (1997). Riooloverstortproblematiek. DL.97133. Den Haag. 335 Ministerie van Landbouw Natuurbeheer en Visserij (1997). Riooloverstortproblematiek. DL.97133. Den Haag. 336 A customary law is an unofficial law following from custom use. 337 Ministerie van Landbouw Natuurbeheer en Visserij (1997). Riooloverstortproblematiek. DL.97133. Den Haag. 338 Ministerie van Verkeer en Waterstaat (1998). Aanpak Riooloverstorten. 1997-1998, 25 890, nr.3. Den Haag. And: Ministerie van Verkeer en Waterstaat (1997). Problematiek Riooloverstorten. HW/AW 97/5687. Den Haag. For a detailed case study on the difficulties in communicating scientific information on risks to the public see: Wynne, B. (1989). "Sheep farming after Chernobyl: a case study in communicating scientific information." Environment (March): pp. 10-15 & 33-39.

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In 1997, both Pauw and Van de Geest, unaware of each others search, found out that not only the waterboards and municipalities had not complied with that governmental decision to inform the farmers. In addition they found reports which showed that the waterboards had known for years, sometimes since 1981, that the levels of sulphate and nitrite and overflow pollution in the surface water were very high.339 Pauw, Van de Geest and other farmers confronted the waterboards with what they believed was gross negligence. The farmers commented that if they had been warned in time by the waterboards they could have taken preventive measures, such as fencing the land, to keep the cattle from drinking the polluted water. The waterboards and municipalities argued that the levels were high, but not higher than the AMK norms set for those substances. They also argued that after the Minister had ordered the distribution of information in 1995, they had not informed the farmers because they first had to make an inventory of the location of overflows.340 The overflows used to be identified by means of a tag. The waterboards argued that farmers had let weeds or grass overgrow the overflow tags and be cause of that the waterboards did not know where the overflows were, and which farmers should be warned about the location of an overflow on their land. In addition, the waterboards argued that until recently, they had not been aware of the possible health issues related to the raised levels of nitrite and sulphate in the surface water, since scientific research had only just started. The waterboards and municipalities also stated that there was no need to inform the farmers because there was still no uncontested scientific knowledge regarding a causal relationship between the water pollution and the cattle’s health. After all, the ID-DLO and TNO-MEP research still had not established a causal relationship. The waterboards concluded their argument by arguing that farmers might react with panic if they would be informed about the fact that although the scientific 339

Zuiveringsschap Drenthe (1992). Bemonstering oppervlaktewater in het waterschap Riegmeer. av/1670. Also see: Hoogheemraadschap van de Uitwaterende Sluizen in Hollands Noorderkwartier (1994). Toetsing ENW-water watering t.p.v. Rijksweg 7, nieuwbouw Beets. 501002. 340 Zuiveringsschap Drenthe (1995). Riooloverstorten. yt/u/5564. Also see: Ministerie van Landbouw Natuurbeheer en Visserij (1997). Riooloverstortproblematiek. DL.97133. Den Haag. And: Ministerie van Verkeer en Waterstaat (1997). Problematiek Riooloverstorten. HW/AW 97/5687. Den Haag. Also see: Veterinaire Inspectie van de Volksgezondheid voor Noord-Holland Zuid-Holland en Zeeland (1997). Riooloverstorten. 970538/M/cd. Veterinaire Inspectie van de Volksgezondheid voor Noord-Holland Zuid-Holland en Zeeland. See also: Unie van Waterschappen (1995). Riooloverstorten, Unie van Waterschappen. And: Unie van Waterschappen (1997). Visie Unie van Waterschappen op riooloverstortproblematiek, Unie van Waterschappen. And: Veterinaire Inspectie van de Volksgezondheid voor Groningen Friesland Drenthe en Overijssel (1995). Riooloverstorten. u 51144 HP fk. Veterinaire Inspectie van de Volksgezondheid voor Groningen Friesland Drenthe en Overijssel.

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arena was not able to provide definitive proof of a relationship between the water and the cattle’s health, that there still was a chance that the water quality might pose a risk to the health of cattle. The waterboards feared that, in reaction to that lack of definitive proof, the farmers might take preventive individual measures that would be out of proportion.341 The waterboards argued that the farmers’ criticism and reactions would be the result of lack of relevant information. This example illustrates the typical intimate connection of scientists to policy-making in this agricultural setting. The waterboards directly linked the lack of definitive proof to the policy on not informing the farmers, and concluded that it was better not to inform the farmers until there was definitive proof. The waterboards believed the reactions of the farmers would be a greater risk than the possible risk of a relationship between the water pollution and the cattle’s health. This conclusion to refrain from informing the public because of the lack of definitive proof is a known governmental strategy to avoid public debates on a matter and to avoid the possibility that the public might have an influence on political decisionmaking processes dealing with that matter.342 The waterboards did not want the farmers to become involved in the process of deciding who was responsible for the overflows and their pollution and they succeeded by pointing at the ‘ lacking definite proof’ and by arguing that as long as this proof was not found it was wiser not to involve the farmers, to avoid any wrongful interpretation of the data and unnecessary commotion. The waterboards kept the power to allocate responsibility within the political and scientific arenas. This struggle for the power to allocate responsibility was central to both controversies. The conflict between the farmers, scientists and the government was not only about scientific facts but also 341

Veterinaire Inspectie van de Volksgezondheid voor Groningen Friesland Drenthe en Overijssel (1995). Riooloverstorten. u 51144 HP fk. Veterinaire Inspectie van de Volksgezondheid voor Groningen Friesland Drenthe en Overijssel. Irwin and Wynne argue that this assumption serves to problematise the general public rather than the operation of scientists and scientific institutions. The argument is that knowledge science-based politics should protect this illinformed public, otherwise it can criticise governmental policy. Governmental bodies and scientists often argue that if the public would be better informed, would know all the facts about a technological or scientific issue, it would not criticize the governmental policy. However, the criticism of Van de Geest and Pauw regarding the decision of the waterboards not to inform the farmers is not a reaction as a result of ignorance, but indicates that their notion of what is an acceptable risk differs from what the waterboards believe is an acceptable risk for the farmers. I already discussed this issue extensively in chapter two. See: Irwin, A., Wynne, B., Ed. (1996). Misunderstanding Science?: the public reconstruction of science and technology. Cambridge, Cambridge University Press. 342 This is also argued by Goncalves, M. E. (1998). Politics and Science in the European Periphery: the management of the BSE risk in Portugal. ISCTE, Lisbon University Portugal

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reflected underlying differences in the labelling of the causes, severity, boundaries, solutions and underlying differences about the distribution of responsibility. The struggle for that power took place in the construction of problem definitions. By labelling the problem in terms of lack of definitive proof, the waterboards labelled the situation in scientific terms. To participate in the allocation of distribution, one then had to be part of the scientific arena. In both controversies, typically the policy makers tried to avoid participation of the farmers in the process of deciding who was responsible for the overflows and their pollution, in order to maintain control over that decisionmaking process. The government, however, did not wilfully manipulate scientific knowledge to avoid responsibilities or political responsibility. They had to make policy and regulatory decisions in the best possible way with lacking proof of a relationship between the water pollution and the cattle’s health problems. That was difficult because until then, these political actors had relied heavily on scientific proof in their decisionmaking processes. Now they had to formulate policy without the possibility of pointing at scientific and technological expertise as a basis for their decisions. Demonstrating how political decisions were based on technological and scientific expertise normally would demonstrate the authoritativeness and legitimacy of these decisions. The TNO-MEP employee Henno Van Dokkum commented on that complicated relationship between causality and political responsibility: “research did not indicate the existence of a relationship between the water quality and the health issues of the cattle. This does not mean there is no relationship, but politics interpret this as no relationship. Establishing a relationship is always difficult when it deals with politics and when it has implications for policymaking.”343 4.3.2 The Action Program: experts found, responsibility lost In an attempt to meet the farmers in their need for political action, in 1998, the government redefined the problem. Instead of labelling the lack of definitive proof as a problem, the governmental actors now labelled the possible relationship between the water pollution and the cattle’s health problems as a problem. The dike reeve of Noord-Holland, Hans van der Vlist, and his adviser, Rianne Meester, commented on this shifting label: “the switch from thinking in terms of causality to thinking in terms of probability was a good turn. Causality leads to a judicial handling of the problem, whilst researchers 343

Interview with Martin Scholten and Henno van Dokkum, researchers at the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP), 07-01-1998.

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do not wish to think about issues of guilt and fault. For the first time the problem of a number of farmers was linked to water quality issues. This was an important step, because acknowledging this relationship opened the doors to research. The Ministry of Agriculture could now acknowledge the problem without positioning themselves as causators.”344 As mentioned earlier in this chapter, the farmers were invited to discuss the problem with the government and affiliated research institutes in the Action Program. When the government acknowledged the expertise of the farmers this automatically meant that the farmers were able to participate in the process of distributing responsibilities. That distribution of responsibility, however, had become even more difficult than when the farmers were not heard. All claims were deemed relevant now, and they were conflicting. The farmers wanted the government to take responsibility for the situation, while the government wanted the farmers to take responsibility. The decreasing monopoly of scientists on relevant knowledge claims and the shifting distinction between scientific experts and public laypersons resulted in a responsibility vacuum, a situation Beck defines as ‘organised irresponsibility’. Because of this organised irresponsibility, nothing was done about the pollution or the cattle’s sickness and effectively only the farmers could and indeed also had to undertake actions to deal with the consequences of the water pollution. The farmers could, for example switch to pipeline water, fence the land to prevent the cattle from drinking polluted ditchwater, or they could dig wells or place reed beds to purify the polluted water. But this situation was not to the satisfaction of the farmer were not always able to implement these solutions in their farming strategy, as demonstrated in chapter two. Although the SWNM farmers had successfully managed to construct relevant knowledge claims and to become acknowledged as experts, effectively nothing had changed with respect to the issue of responsibility. The water pollution still existed, the cattle were still sick and none of the parties involved had taken any responsibility for that situation.

4.4 The democratisation of expertise In this chapter, I discussed the political and scientific arenas in which the controversy between farmers, the government and research institutes took place. I analysed how the political and scientific conditions under which research was conducted first emphasised research by state-funded knowledge 344

Interview with Martin Scholten and Henno van Dokkum, researchers at the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP), 07-01-1998.

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producers. However, gradually, fragmented knowledge production by all kinds of producers was taking place, and the initially non-successful resistance of the farmers was followed by successful‘ counter-criticism’. Finally, the hybrid Action Program forum allowed for a reconstruction of the expertlay division. The SWNM farmers assigned research institutes and managed to translate their practical knowledge into scientific questions, and they managed to remove the policy stasis. As a consequence a shift between what counted as relevant and non-relevant knowledge occurred and the farmers managed to pierce through the governmental monopoly on expertise. However, this did not mean the farmers managed to break through the monopoly of scientists on ascertained knowledge. They had to create scientific knowledge about the situation and in that sense only reaffirmed the monopoly of scientists. It was only after the instalment of the Action Program that the monopoly of scientists on certain and relevant knowledge was broken. However, criticism often begot more criticism with policy stasis as the result, a phenomenon identified in many public controversies involving scientists.345 The SWNM was partly responsible for creating a (temporary) space where ideas were combined and formulated anew: the Action Program. As a result politics, business and public became active co-producers of relevant knowledge in the overflow controversy. In the Action Program, the SWNM, governmental officials and scientists had achieved some form of closure and now worked together towards gaining as much scientific knowledge as possible, taking into account different perspectives on the water pollution and the cattle sickness and attempting to distribute responsibilities in a manner fair to all involved. Some sociologists of science and technology argue that the process of negotiating science- non science boundaries inhibit reflexive learning about the role of science in our society, and only leads to the undermining of the legitimacy of science with the public and stimulates anti-scientific extremism.346 With reflexive learning these authors mean the explicit and fundamental thinking about the normative presuppositions, assumptions and implications of scientific knowledge and technology, and learning about the role of the public, scientists and technology.347 However, the Action Program 345

See for example: Jasanoff, S. (1997). "Civilisation and Madness: the Great BSE scare of 1996." Public Understanding of Science 6: 221-232. 346 Irwin and Wynne also argue this: Irwin, A., Wynne, B., Ed. (1996). Misunderstanding Science?: the public reconstruction of science and technology. Cambridge, Cambridge University Press. 347 For a comprehensive discussion of the need for a reflection on the role of science and technology see for example: Radder, H. (1992). "Normative Reflexions on Constructivist Approaches to Science and Technology." Social Studies of Science 22(1992): 141-73.

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shows that this was not the case in the overflow pollution controversy. The Action Program was not explicitly aimed at reflexive or social learning: learning about the role of the public, scientists and the government in controversies dealing with social and technological aspects, learning about the normative suppositions that underlie problem and risk definitions, learning about the mechanisms these parties used in attempts to distribute responsibility and liability, and learning about the problems and mechanisms that determine the uptake of scientific and non-scientific knowledge in the political decisionmaking arena.348 The Action Program, however, does offer a potential social learning site. It is a site where social learning about the rationality and legitimacy of knowledge claims can take place and where understanding of normative suppositions can be taken as a starting point for negotiation. I will return to this issue in chapter six. One could say that the overflow pollution controversy was handled in a democratic way, in which as many different voices were represented, heard and had a more or less equal power to decide on matters of responsibility. In the overflow matter, the process of constructing relevant knowledge production was radically broadened. An increasing number of individuals, groups and (individual) perspectives were acknowledged as relevant contributors and contributions in this process, and with this increasing number of strategies and actors that were allowed to participate more directly, a democratisation of relevant knowledge production could be identified.349 It is, however, not correct to conclude that the political model centralising around expertise deteriorated and was replaced with a model that emphasised fragmented knowledge production, consultation, negotiations, and interaction between different perspectives. It was not a question of disintegration but of broadening, dispersion. The government still played a role, but in accordance with decentralised organisations such as the SWNM and scientific research institutes, where politics was conducted on a lower level. However, not all farmers reached the same status as the SWNM farmers. The events leading to the bankruptcy and political irrelevance of Pauw can serve as a lesson. It is important to acknowledge that it is not easy for the ‘lay’ public to counteract the rationality claim of scientific experts. It is not easy to become a participant in the existing political model. It demands care348

For a more comprehensive discussion of the concept of social learning see: van Lieshout, M., Egyedi, T., Bijker, W.E., Ed. (2001). Social Learning Technologies. The introduction of multimedia in education. Aldershot, Ashgate. And see: Wynne, B. (1995) Technology Assessment and Reflexive Social Learning. Observations from the Risk Field. Managing Technology in Society. A. Rip, Misa, T., Schot, J. London, Pinter: pp. 19-37. 349 For an elaborate discussion of the democratisation of expertise see: Bijker, W.E. (1997) Demokratisierung der Technik-Wer sind die Experten? Aufstand der Laien. Expertentum und Demokratie in der Technisierten Welt. M. Kerner. Aachen, Thouet verlag: 133-155.

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fully selected alliances, collectivised problem definitions, money to involve scientific institutes, a strong motivation to solve the problem on a political level and a possibility to participate on the political level. Becoming a political partner is difficult to attain. Pauw was not the only farmer that did not know how to reach the political arena. There was one additional difference between Pauw and the SWNM farmers that was of major importance for the distribution of responsibility. While Pauw was constantly looking for someone or something to blame for his problems, Van de Geest was taking part of the responsibility for dealing with the water pollution and the cattle’s health problems. He acknowledged that his farming strategy might be one of the elements creating the sickness of his cattle and switched to pipeline water already early on in the controversy, although only for the time being. By doing so he built up trustworthiness. Pauw did not take any responsibility, and did not switch to pipeline water until it was too late for his animals to recover. He redirected all responsibility for action to others, and did not build sufficient credibility. It was easy for the government to label Pauw as an individual case. By stressing the fact that Pauw’s case stood alone, that it was a problem experienced by only one individual, and in addition was a problem that could be traced back to wrong actions of that individual, the governmental agencies, both local and national did not need to take up responsibility for his problems. Only when peat water pollution became collectivised by more cattle raisers, it became impossible for the government and governmental organisations such as the waterboards to ignore the issue. However, by defining the peat soil pollution as a natural aspect of polder farming, no action had to be undertaken by the waterboards or the government. Because water pollution caused by peat decay was defined as a natural phenomenon, even insurance agencies were able to remove the consequences of that pollution from their policies. In the overflow and peat controversies responsibility was distributed differently, related to different roles that scientists could play in the political process of attributing responsibility for the problem and its consequences. First, the government used scientists to avoid political responsibility. Later the government used scientists to keep responsibility in one specific arena, the scientific or political one. The scientific arena was also used to stress the locality of a situation, and to fragment responsibility. Lastly, the scientific arena was used to take up responsibility. The government often really did want to take up political responsibility, yet could not formulate policy because they could not foresee the consequences of their actions. Another difficult issue, one that will be discussed in chapter five, is that the government hinges between a position of wanting to act to find a solution and also feels the public need to achieve for example scientific progress in 152

the knowledge available on a specific problem, and on the other hand the government is facing the juridification of society, a process that makes it risky to undertake actions when not all the knowledge on the issue is available yet.350 When the farmers and the governmental organisations delivered the issue to the hands of scientists, a process started which subtly changed a political question of risk acceptance into a question of accepting proof. When a problem is labelled as scientific the situation is no longer a discussion about risk, but a discussion about causation and the problem can then be easily moved from the political to the judicial arena, because causation is directly linked to liability. This judicial arena is the focus of the next chapter.

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I am grateful to Karin Bijsterveld for identifying this paradox during one of our “ zomeroogst” seminars.

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5 Who to blame? Attributing responsibility in the judicial arena In chapter four, I discussed that farmers and governmental agencies stepped into the scientific arena hoping that scientists would establish a causal relationship between the water pollution and the cattle’s health problems. Scientific institutes, however, were not able to produce the causal relationship the actors needed to settle the issue of responsibility politically. To settle this issue in spite of the lacking causal relationship, some farmers stepped into a new arena: they turned to courts of law to determine who was liable for the water pollution and the cattle’s health sickness, and who had to pay for damages. Many farmers of the SWNM issued lawsuits against waterboards, municipalities or provinces. Van de Geest, the chairman of the SWNM did not issue a lawsuit, since the risk of overflow water to his cattle was removed when he switched to pipeline water. The farmer Rom de Leeuw, however, also a member of the SWNM, was one of the first farmers to experience the problems of overflow pollution and he was also one of the first farmers to issue lawsuits against waterboards, municipalities and provinces. His first lawsuit dates from 1984 and his last lawsuit dates from 2000. I will discuss three lawsuits which he issued. The outcome of his last judicial encounter would be of crucial importance in the debate between the farmers of the SWNM and the governmental agencies: the other farmers of the SWNM hoped that as soon as the court published the final ruling, they would know who to blame and what knowledge they needed to allocate blame. The first lawsuit of 1984 deals with a dam that De Leeuw had placed on his property to prevent polluted overflow water to reach his ditches. The second lawsuit of 1989 deals with De Leeuw’s refusal to accept sludge on his land, which the waterboard dredged from ditches polluted with overflow water. The third case of 1998 deals with the possible liability of the waterboard, municipality and province for the consequences of the water pollution. This new arena also required scientific knowledge and expertise to legitimise judicial decisions regarding liability. The lack of definite scientific proof, which posed a problem in the scientific arena, was a problem in this new judicial arena too. In a series of claims and counter claims, two conflicting positions were clearly articulated. On one hand the waterboard, municipality and the province argued that the lack of a definitive causal scientific relationship between the water pollution and the cattle sickness made it im155

possible to distribute responsibilities or allocate liability. De Leeuw, on the other hand, argued that there was no proof against a relationship, that it was even very plausible there was a relationship, and that because of that probability, it was possible to distribute responsibilities and liability. For the court of law it was important to establish which of these conflicting claims of causality was acceptable as judicial evidence and consequently acceptable as a basis for judicial decisions.351 By focusing on the role of evidence in these three trials I undertake the task to explore the use of scientific evidence and other kinds of evidence within the Dutch civil and administrative courts of law. I will also analyse the strategies that the farmers, scientists and governmental agencies deployed to construct and use expert knowledge in these courts. De Leeuw’s three cases provide an opportunity to analyse how judicial norms to make the distribution of responsibility for risks easier and judicial notions of what counts as credible and relevant knowledge are constructed and co-evolve.352 The judicial arena, the focus of this chapter, is an arena that allows for very specific questions and arguments. I will identify the processes by which courts assign credibility to competing knowledge claims and how all parties participate in erecting boundaries between relevant and non-relevant knowledge. The definition of relevant being that the knowledge must fit the problem definition that is used in that arena. What is deemed relevant is constructed more or les anew in every new arena. In this chapter I will identify how both parties involved in the judicial administrative and civil arena undertook work to construct boundaries that would make their knowledge claim count as relevant judicial evidence. To answer how farmers, government and scientists attempted to construct relevant judicial evidence and to answer how the civil and administrative court of law decided upon the relevance of the evidence, I will again borrow insights from several theoretical approaches. After discussing these, I shall continue to discuss the three lawsuits.

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For a detailed analysis of a tort case in which the concept of causality was debated see for example: Roisman, A. Z. (1997). "The courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?" Pace Environmental Law Review 14(2): pp. 545-576. 352 For an elaborate discussion of the mutual constitution of the political, scientific and judicial arguments see: Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. Also see: Lynch, M. (1997). "A sociology of knowledge machines." Ethnographic Studies (2): pp. 16-38.

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5.1 Theoretical intermezzo 5.1.1 Is boundary work in court different from boundary work in the scientific arena? The strategy aimed at constructing boundaries of what counts as relevant (scientific) knowledge in the scientific arena has already been discussed in the theoretical intermezzo of chapter four. When actors define knowledge as relevant in a scientific arena, this does however not imply that the same knowledge will also be considered or seen as relevant in the judicial arena. Many case studies in the field of Science and Technology Studies have demonstrated that it is not easy to transfer relevant evidence from the scientific arena to the judicial arena.353 Different arenas allow for different questions to be answered and consequently different arguments to be played out. The judicial and the scientific arena are often represented as fundamentally different arenas. Jasanoff describes the contrasts between the scientific and judicial practice as follows: while the scientific arena seeks truth, the law does justice by showing that fact-finding is always contingent, that it is dependable, related to a particular vision.354 However, Science and Technology Studies, as discussed in chapter four, have undermined this representation of scientific knowledge as a non-contingent process of fact-finding. Besides both being contingent processes of fact-finding, contingent on particular questions to be answered, the judicial and scientific arenas do have several other important features in common.355 Both arenas claim a capacity to decide which evidence is sufficiently relevant and credible to legitimise scientific facts or judicial rulings with. The reliability and credibility of evidence are thus of critical concern to both judicial and scientific decisionmaking. There are, however, also considerable differences between the scientific and the judicial arenas. In the scientific arena the main question to be answered is: is there a relationship between cause and effect and, if so, what is it? In the political arena the main questions is: who is politically responsible for the cause and for the effects, and which party should take responsibility 353

For a detailed discussion of the role of scientific evidence in court see: Lynch, M., McNally, R., Daly, P. (1998). The place of science in the courts. From science at the cleared table to automated signatures in bureaucratic space. Draft paper: pp. 21. 354 Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 355 This discussion on the similarities and the differences between the judicial and the scientific practices is based on an elaborate analysis by Jasanoff in: Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press.

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to search for solutions? In the judicial arena the main question is: who is to blame, and who bears responsibility in a legal sense, and hence who can be held liable and has to pay for the damages suffered. In this chapter, this legal accountability will be referred to as liability. Consequently, in the judicial arena, researching the admissibility of scientific evidence is different from the scientific task of fact-finding because the court decides on the relevancy and credibility of knowledge claims according to judicial standards, not scientific ones.356 The scientific arena is, according to Jasanoff, primarily concerned with getting the facts right. The judicial arena, in contrast, wants to establish facts to reach a fair and efficient closure of disputes. This required closure furthermore leads to a time constraint. The inquiry stops when the opposing parties have no more evidence to bring forward, and a decision has to be taken, however premature it may be in the eyes of the scientific arena.357 5.1.2 How do the courts determine what counts as relevant evidence? The public expects of the courts that they know how to determine what counts as relevant evidence. Michael Lynch argues that in the United Kingdom for example, long before the scientific arenas became privileged institutions in determining the truth, county tribunals examined and tested the evidence, the facts and rival claims brought forward by competing parties.358 Examining, testing and demonstrating facts, however, prove difficult for the court. Gary Edmond argues that the court has difficulty deciding what knowledge is relevant and credible because it is invested with societal decisionmaking responsibility, and outcomes cannot be entirely restricted to the particular cases litigated at particular sites and on particular occasions, but need to be socially robust.359 Opposing parties ask the court to draw the boundaries between relevant and irrelevant knowledge, and the court is expected to sort through conflicting testimony and arguments which are brought to court in credibility contests, and is expected to decide which of the conflicting claims can be judged reasonable, plausible, and credible.360 356

Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 357 For an elaborate discussion of this argument see: Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 358 Lynch, M., McNally, R., Daly, P. (1998). The place of science in the courts. From science at the cleared table to automated signatures in bureaucratic space. Draft paper: pp. 21. 359 Edmond, G. (2001). "The law-set: the legal-scientific production of medical propriety." Science Technology & Human Values 26(2): pp. 191-226. 360 Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. And see: Edmond, G. (2001). "The law-set: the legalscientific production of medical propriety." Science Technology & Human Values 26(2): pp. 191-226.

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Experts that are involved in judicial disputes over environmental issues typically disagree, and according to Jasanoff this makes it almost impossible for the court to decide which of the claims is valid. The task of the court is made even more difficult when parties involved in credibility contests disagree about whether or not experts are sufficiently competent or when parties even disagree on what the correct definition of ‘competence’ is. This difficulty in establishing that evidence is relevant in court finally poses a problem for the court because rulings have to be legitimated with evidence. How then do courts decide who counts as a competent (scientific) expert, what is a true (relevant) knowledge claim and what methods can be used to ‘discover’ truth? Jasanoff and several other authors analysed the system of general notions and practices by means of which the court can decide what to accept as relevant evidence, particularly when facts are uncertain.361 First there is a general belief in the existence of a common scientific method, common standardised scientific knowledge and commonly agreed upon practices. Consequently there is a general belief that it is possible to obtain neutral expertise, to transfer scientific knowledge across settings and, furthermore, that scientists will generally achieve consensus if they are not exposed to interests.362 According to Edmond, the appearance of independence and neutrality is also important to a court. He argues that courts often legitimise their acceptance of evidence with a statement that it conforms to ideal images of science. Other criteria that shape judicial decisionmaking, according to Edmond, include standards that relate to the admissibility, sufficiency, relevancy, probability and reliability of evidence and include standards concerning the burden of proof. Courts also take into account the interests, partisanship, non-representativeness, novelty and uncertainty of facts. Edmond further argues that courts usually are reluctant to ignore or dismiss scientific opinions when the scientific community accepts them as facts. When courts dismiss evidence, they generally claim that it is nonconventional or contingent. In addition, courts also take into account the credibility and the experience of the experts. Finally, courts also rely on traditions around the application of the rules of evidence and judicial procedures and take into account the possible social significance and implications of the case. Next to the more or less general set of rules and practices, Jasanoff analysed how the court relies on different rules for different judicial settings 361

Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. And: Edmond, G. (2001). "The law-set: the legalscientific production of medical propriety." Science Technology & Human Values 26(2): pp. 191-226. 362 Edmond, G. (2001). "The law-set: the legal-scientific production of medical propriety." Science Technology & Human Values 26(2): pp. 191-226.

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when it is faced with the problem of taking decisions on the basis of conflicting, but apparently equally relevant evidence, or when it is faced with the need for deciding under uncertainty.363 In civil cases the burden of proof is placed on the plaintiff and to win, more than fifty percent of the evidence must be in favour of the plaintiff. In contrast, administrative decisions call for a lower standard of proof, and criminal trials demand scientific certainty or at least scientific proof that is backed up with additional evidence.364 The judicial arena thus established a system of rules and practices to decide what to accept as relevant and credible knowledge when all facts that are brought forward are uncertain. This system of rules should make the decisionmaking process quite unproblematic. However, to answer the question of liability in court, opposing parties bring forth evidence they believe is relevant and that supports their claim of liability. In addition, opposing parties usually make sure that the evidence they bring forth meets the requirements for relevant evidence devised by the judicial arena. Typically, the courts believe in pure scientific knowledge. Edmond argues that this belief proves to be misleading when the court is faced with opposing scientific knowledge claims.365 The courts then often have to sift through equally ‘relevant’ knowledge, which makes their task extremely difficult. Let me now first elaborate more on the boundary work that parties undertake to construct the relevancy of their claims. 5.1.3 Credibility contests in court Introducing evidence of causation is not enough to get one’s knowledge claim acknowledged as relevant in court.366 The difficulty in establishing that evidence is relevant shows that relevancy is not a given attribute of knowledge, but that it is the outcome of a complex encounter of credibility between opposing parties in court.367The strategies that plaintiffs and defendants deploy to construct boundaries between relevant and non-relevant evidence and the judicial boundaries that the courts use to decide between what counts as relevant evidence and what does not are constructed more or less 363

Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 364 These rules apply to the American setting, this controgversy shows that they are also applicable to the Dutch context. Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 365 Edmond, G. (2001). "The law-set: the legal-scientific production of medical propriety." Science Technology & Human Values 26(2): pp. 191-226. 366 Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 367 Jasanoff, S. (1998). "The Eye of Everyman: Witnessing DNA in the Simpson Trial." Social Studies of Science 28(5-6): pp. 713-740.

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anew in every lawsuit and along the way. Edmond argues that the meaning of the terms ‘ relevant’, ‘scientific proof’, ‘substantial’, ‘reliable’, ‘consistent’, ‘lacking’, ‘questionable’, ‘validity’ ‘consensus’ ‘authority, and ‘inconclusive’ is actively contested and negotiated in the boundary work occurring in the judicial arena.368 The opposing parties enlist the support of (scientific) experts and (scientific) expertise to construct boundaries between relevant and non-relevant in such a way that their claim is acknowledge as relevant. Typically, in cases dealing with environmental issues such as the overflow case, the accounts of science are contingent on the parties’ particular conceptions of causation.369 In other words, the accounts of science that parties bring forth are always subjective because they substantiate the causation that the party wants to establish in court. In these environmental cases the scientific knowledge brought forward is always bound up with specific constructions of causation, blame, responsibility and liability.370 That is, they are bound up with stories that define the situation at hand. Opposing parties typically rely on conflicting and controversial experts and expertise. The strategies aimed at deconstructing the claims for expertise by the counter party result in a battle of the experts, in credibility contests.371 According to Jasanoff, the battle for expertise is equipped with strategies consisting of attempts to deconstruct claims as both unscientific and subjective. Such a strategy is that lawyers strategically define (trivial) differences in scientific opinion and scientific practice as failures in the scientific practice. Lynch argues that laboratory work is messy and stands in sharp contrast to the arguments in textbooks and published reports that often are brought forward to the court.372 He argues that it is especially this distinction between

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Edmond, G. (2001). "The law-set: the legal-scientific production of medical propriety." Science Technology & Human Values 26(2): pp. 191-226. 369 Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 370 Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 371 Several authors have discussed this battle of the experts. See for example: Jasanoff, S. (1992). "What judges should know about the sociology of science." Jurimetrics Journal: pp. 345-359. And: Jasanoff, S. (1998). Expert Games in silicone gel breast implants litigation. Science in Court. M. Freeman, Reece., H. London, Dartmouth: pp. 83-107. See also: Jasanoff, S. (1998). "The Eye of Everyman: Witnessing DNA in the Simpson Trial." Social Studies of Science 28 (5-6): pp. 713-740. And: Lynch, M., McNally, R. (1999). "Science, common sense and common law: courtroom inquiries and the public understanding of science." Social Epistemology 13(3): pp. 183-196. And: Edmond, G. (2001). "The law-set: the legal-scientific production of medical propriety." Science Technology & Human Values 26(2): pp. 191-226. 372 Lynch, M. (1997). "A sociology of knowledge machines." Ethnographic Studies (2): pp. 16-38.

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actual practices and ‘clean’ results that offers lawyers possibilities to describe the differences as failures.373 Jasanoff argues that there is one striking difference between the ways in which credibility is determined in the scientific and judicial arenas. In courts, the credibility of the expert determines the scientific credibility. By contrast, in the scientific arena, the truth of a claim must be assessed independently of the person making that claim and must be based on the level of consensus about that claim in the scientific community.374 An additional difficulty, mentioned by Edmond and Mercer, is that because of the length of many judicial disputes, opposing parties, scientists and judges have the opportunity to construct and refine their positions and critiques over time. This often leads to new arguments composed of a mix of both judicial and scientific arguments: science-law hybrids.375 This new lawscience knowledge is an artefact that is contingent, an artefact that is the outcome of specific law-science interactions. Examples of such hybrids include forensic sciences, environmental regulation and law. Edmond and Mercer claim that these law-science hybrids are only relevant within the judicial settings and their viability would be compromised if the judicial arena would change. Conversely, without these hybridised forms of knowledge, the judicial system would be deprived of a source of legitimacy.376 Jasanoff argues that another factor leading to the production of this law-science knowledge is the increasing demand on governments to formulate public policy, based on scientific knowledge. She states that the political, scientific and judicial arenas are mutually constitutive because they jointly produce social and scientific knowledge.377 This mutual constitution can lead to shifts in the rules that

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The deconstruction strategies by attorneys have been researched before in social studies of science, in the context of the laboratory. See: Lynch, M., McNally, R. (1999). "Science, common sense and common law: courtroom inquiries and the public understanding of science." Social Epistemology 13(3): pp.187. 374 Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 375 Edmond and Mercer also discuss that the construction of scientific evidence and lawscience hybrids demonstrates similarities to Latour and Woolgar’s notion of ‘literary inscription’ and might be thought of as a kind of ‘second-order-literary inscription’. See: Edmond, G., Mercer, D. (2000). "Litigation Life. Law-science knowledge construction in (Bendectin) Mass Toxic Tort Litigation." Social Studies of Science 30(2): pp. 265-316. See also: Edmond, G. (2001). "The law-set: the legal-scientific production of medical propriety." Science Technology & Human Values 26 (2): pp. 191-226. 376 Edmond, G. (2001). "The law-set: the legal-scientific production of medical propriety." Science Technology & Human Values 26(2): pp.191-226. 377 Jasanoff remarks that science and scientific expertise produced in response to litigation, science’s normal processes of validation can be bypassed or distorted. Peer review standards for courtroom science are nonexistent or may evolve in ad hoc fashion reflecting scientists’

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deal with the assessments of facts in both the judicial as the scientific arena. Jasanoff argues that in the scientific and judicial arena’s these shifts occur through actions of individuals making decisions or assisting decision-makers at the frontiers of established doctrine in these scientific and judicial arenas. The introduction of the precautionary principle, for example, led to a shift in the rules governing the assessment of facts in both the scientific and the judicial arena. I will discuss this shift in detail in a later section of this chapter. The court of law has to decide, however, which of the opposing sciencelaw hybrids that surface in the credibility contests are relevant and acceptable to base legitimate decisions on. The courts of law have to constitute closure. In the scientific arena, the credibility contest continues as long as opposing parties intend to challenge one another’s observations. Lynch points at a different closure mechanism in the judicial arena.378 He argues that it is only when claims are no longer challenged or when the court moves to accept one claim and not another, that a claim becomes a true fact and that the judicial credibility contest is closed. Because the final judgement usually constitutes closure and resolves the difference between the contested, uncertain and unquestioned knowledge claims, he describes the courts as closure machines.379 Although courts have a system of rules to base decisions about credibility and relevancy of claims on, the credibility contests in court still make that decision process difficult. Courts of law, however, often accomplish the deconstruction of (apparent) facts.380 That is why Lynch also describes courts of law as sociology of knowledge machines.381 Lynch argues that, as sociology of knowledge machines, the courts determine whether there is consensus among relevant communities of scientists about a principle, a fact, or a technique, and about disciplinary boundaries. And these sociology of knowledge machines decide at what point a claim can be counted as a relevant and credible fact.

own perception of what the law requires. See: Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 378 Lynch, M. (1997). "A sociology of knowledge machines." Ethnographic Studies (2): pp. 16-38. 379 Lynch, M. (1997). "A sociology of knowledge machines." Ethnographic Studies (2): pp. 16-38. 380 Bal, R. (2001). "Een dodelijke pen. Expertise in het Nederlands Strafrecht: de balpenzaak." Krisis: Tijdschrift voor empirische filosofie 2(3): pp. 26-44. 381 For a detailed case study of the court as sociology of knowledge machine see: Lynch, M. (1997). "A sociology of knowledge machines." Ethnographic Studies (2): pp. 16-38.

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5.1.4 Ownership in court Deciding on competing claims of causality and constituting closure is a typically difficult matter for the court, but this work becomes even more challenging when the scientific arena is not able to provide generally agreed certain and relevant facts. According to Jasanoff, in these situations making decisions about the relevancy of a claim is normatively and politically laden because the decision is also a decision on who should bear the costs of society’s inability to ascertain the relevant facts with any degree of certainty. 382 For the opposing parties it is extremely important that the court decides which one of the conflicting claims can be judged reasonable, plausible, and credible. The court’s decision is important because that acknowledgment opens up the way to an allocation of liability suiting one of the opposing parties. The acknowledgment of one of the claims gives the party, which made an appeal to that claim the power to allocate responsibility. To analyse this relationship between the relevance of a claim and the power to allocate responsibility or liability, it is instructive to make use of the concepts of responsibility that the sociologist of technology Gusfield developed to analyse the distribution of responsibility. He identified three concepts of responsibility: ownership, causal responsibility and political responsibility.383 In arenas where public opinions and debate take shape, such as the judicial arena, the credibility contest between parties aims at identifying who is legally responsible for a situation and liable. In judicial contests of credibility parties attempt to get their view on what sequence of actions led to the problem acknowledged as the right one. As soon as the problem definition of one party is accepted, that party ‘owns’ the situation in the sense that its view on who is legally responsible and liable usually will be accepted too. To analyse that contest of power, Gusfield developed the concept of ownership. The influence or authority to define the situation, ownership, is never evenly distributed among the parties. The power to allocate liability is not distributed evenly either. After a ruling, typically only one party owns that authority to define the situation and in that sense owns the authority to define who is legally responsible for a situation and liable, and usually this is the opposing party. The distribution of ownership of a problem is influenced by the problem definition that is seen as or becomes relevant in that arena. As soon as a particular problem definition is considered valid, this gives the party that accepts or formulates that problem definition ownership of the 382

Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 383 Gusfield, J. R. (1981). The culture of public problems: drinking-driving and the symbolic order. Chicago, University of Chicago Press.

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situation. This party receives the power to allocate responsibility and liability. Responsibility and liability for a situation is usually not distributed evenly either. The way a situation is defined embeds notions about who is to blame and who should take action, and who is the victim and should be compensated. If a party has ownership, it has the power to claim that other parties are liable, but it can also accept to become the liable party. The concept of ownership provides the means to analyse the action chart in a credibility contest, it is a means to focus on the attempts of opposing parties to identify the power relationship between them, it focuses on the identification of the party that is expected to act. But the concept of ownership does not identify the characteristics of the problem and in that sense does not specify the content of actions, it does not explain or identify the actions that were taken in the past that caused the situation today, and in that sense it also does not specify the solution and the actions needed to solve the problem. To analyse what caused a situation and what should be done to solve a situation, Gusfield developed the concept of causal responsibility. With this concept, one is able to define what led to the existence of a problem, what sequence of actions, what factors are responsible for the situation. Usually scientists or experts are the parties that are asked to establish this historical sequence of causes and consequences. With the concepts of ownership and causal responsibility one is able to establish who is responsible, and what actions led to a situation. Both concepts, however, do not identify who is morally, politically and legally responsible, who is liable. To analyse the process of holding a government administration liable, it is instructive to make use of the concept of political responsibility developed by Gusfield. With this concept it is possible to analyse the debate that focuses on the faults that were made, the party that made these mistakes, if these mistakes were made intentionally, and who has the obligation to solve a situation. Fault and intention, acceptable behaviour and proper conductance are essential aspects of political responsibility and are essential in legislative and judicial reasoning. In that sense this third concept of responsibility is essential in an analysis of a credibility contest in the judicial arena. To establish political responsibility, however, one often needs to establish causal responsibility first. To determine who is at fault, one first needs to establish which actions led to a problem.384 And if scientists or experts are 384

Viewed from the perspective of ownership, political and causal responsibility, the use of judicial redress can be seen as attempts to attain ownership of the problems. Turning to the court of law can be seen as an attempt to create and recreate new distributions of power to deal with a situation. Jasanoff and others have demonstrated how in the Unites States the law and the process of turning to the court of law have become a control mechanism for the public to deal with technological failures after failed attempts to deal with these technological failures by other control mechanisms: administrative controls and a ragged safety-net welfare

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not able to provide this causal responsibility, the court faces a difficult decision process and encounters difficulties in legitimating its ruling and establishing political responsibility. With the theoretical approach sketched in this intermezzo, I will describe the three lawsuits issued by De Leeuw against his waterboard, municipality and province and the accompanying boundary work, credibility contests and attempts to gain ownership.

5.2 Boundary work in court: constructing evidence In the winter of 1980 De Leeuw, forced by land reorganisations, moved to a new farm. Several months’ later De Leeuw’s cattle became sick. Calves were born dead and cows frequently aborted. Most cows lost weight, became weak, died or were put down. Finally in 1982, De Leeuw’s veterinarian detected the disease Abortus Bang, which was caused by the contagious Brucella bacterium. Because the contaminated herd could infect other herds, the cattle had to be put down. De Leeuw lost his carefully bred cows and calves and needed to start over with a new herd. However, as soon as the new cows went out to the grazing fields and drank the ditch water, they became sick and showed the same symptoms as the first herd. This second time the Brucella bacterium was not found. Already in 1984, De Leeuw suspected that the water, which flowed from the main canal into his ditches, caused the sickness because he knew that two overflows discharged polluted sewage water. De Leeuw also noticed that the overflow discharged more than the supposed seven times a year because the sewage pumps were not functioning adequately. In June of 1984 De Leeuw decided to have the GD research the water to see if it was suited as drinking water for cattle. The GD concluded that the water was not too polluted to be suited as drinking water for cattle.385 De Leeuw asked the waterboard Hoogheemraadschap West-Brabant and the municipality Terheijden to remove the overflow. In 1986, De Leeuw received letters from the waterboard and the municipality stating that the pollution was incidental and the result of a defect of the pumps, but that the

state. For a detailed analysis of these control mechanisms see: Galanter, M. (1994). The Transnational Traffic in Legal Remedies. Learning from disaster. Risk management after Bhopal. S. Jasanoff. Philadelphia, University of Pennsylvania Press: pp. 133-157. 385 Gezondheidsdienst voor Dieren (1984). Uitslagformulier bruikbaarheid water. C 798. GD, Drachten. And: Gezondheidsdienst voor Dieren (1984). Uitslagformulier wateronderzoek. C 834. GD, Drachten.

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problem was fixed. Removing the overflow was not necessary.386 In addition the waterboard sent De Leeuw a letter stating that they had researched the quality of the water and the sludge as well. The waterboard argued that the quality of the water was good and the levels met the norms, although the levels of nitrate and sulphate were a little high, but these also remained within the norms. The waterboard argued that the quality of the sludge could not be established scientifically, because there were no official norms to judge the quality yet. The waterboard had compared the sludge with the levels found in other parts of the Netherlands and concluded that these levels were more or less identical and sometimes even showed lower levels.387 In 1985 the waterboard and the municipality installed a valve that closed the main water stream’s connection to the ditches bordering on De Leeuw’s land as soon as the overflow discharged. After the polluted water flowed past the entrance to the private ditches, the valve could be reopened.388 However, in practice the valve did not function properly. Clogs prevented the closure of the mechanical device. In 1986, De Leeuw decided to shut the waterboard’s valve permanently and he and his veterinarian witnessed how his cattle recovered. The waterboard, owner of the valve, did not reopen it. In the meantime De Leeuw constructed a permanent dam in the ditch that was connected to the ditch where the overflow discharges took place. The waterboard ordered him to remove the permanent dam.389 De Leeuw feared that if he removed his dam his cattle would become sick again because the valve did not function properly and sewage water would pollute his ditchwater. The GD researched the water again and found the very poisonous compound hydrogen sulphide.390 De Leeuw made an appeal to the waterboard asking for permission to keep the dam. The waterboard and municipality refused to legalise the dam and again ordered De Leeuw to remove it. To get his dam legalised, in 1986, De Leeuw issued a lawsuit against the Gedeputeerde Staten of Zuid-Holland, the provincial executive of South Holland, because that was the judicial representative of the waterboard and the municipality that had taken the final decision over the dam. The Raad 386

Hoogheemraadschap West-Brabant (1984). Overstortputten. 124283. R. de Leeuw. And: Hoogheemraadschap West-Brabant (1984). Overstorten te Wagenberg. 129304. R. de Leeuw. And: Gemeente Terheijden. (1984). Overstorten Riolering. R. de Leeuw. 387 Hoogheemraadschap West-Brabant (1985). Resultaten onderzoek slootwater en bodemslib. R. de Leeuw. 388 Gemeente Terheijden. (1985). Combinatie van oplossingen voor waterloopdoorstromingen in verband met overstorten in de Rode Vaart en Lageweg/Kerkstraat. R. de Leeuw. And: Gemeente Terheijden. (1985). Waterloopdoorstromingen in Lageweg/Kerkstraat. R. de Leeuw. 389 Waterschap De Ham (1986). Dam in waterloop. R. de Leeuw. 390 Gezondheidsdienst voor Dieren (1984). Uitslagformulier bruikbaarheid water. C 1511. GD, Drachten.

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van State, Afdeling voor de Geschillen van Bestuur, the department for the settlement of administrative matters of the Council of State, was the court of law where these administrative issues between individuals and governmental organisations had to be dealt with. De Leeuw motivated his appeal with two arguments. First he argued that the waterboard’s valve did not function properly because of technical difficulties. And because of these difficulties, he argued, polluted sewage water reached his ditch water. His second argument focused on a causal relationship between the sewage water and the sickness of his cattle: “in time, this new herd also demonstrated an abnormally high percentage of abortions. Although the definitive proof was difficult to establish, it is perfectly clear to me that the polluted water was the only cause. To my satisfaction I have been able to determine that since the construction of the dam there has not been one incident of abortion in my herd. For me that is definitive proof that the polluted water was the cause for all abortions.”391 De Leeuw’s claims did not meet any of the requirements set by the court to be acknowledged as relevant knowledge. First the claims were not built on any scientific knowledge claims. Further, if the court wanted to ascertain the reliability or credibility of the claims, they could only assess the credibility and authoritativeness of the claimant: De Leeuw. As mentioned earlier, the courts generally assess the relevance of claims brought forth by establishing the expertise of the expert bringing forth the claims. De Leeuw was no scientific expert on water pollution and cattle health, but an expert because of his practical experience. Whether or not the court would consider this kind of expertise as sufficient and consequently would acknowledge the claims De Leeuw brought forward as credible and perhaps even relevant, would depend on the counterclaims that the municipality and waterboard would bring to court. In response to De Leeuw’s accusations the provincial executive of South Holland, the representative of the municipality and the waterboards first mentioned that the municipality acknowledged that the overflow water indeed had reached De Leeuw’s ditch because the technical device malfunctioned, but that they had fixed it. The provincial executive of South Holland therefore argued that De Leeuw had to remove his dam. The provincial executive motivated this argument by pointing out that the technical solutions the waterboard had put in place to prevent clogs reduced the amount of overflow water to such an extent that it would not endanger De Leeuw’s water quality. The municipality and the waterboards did not back this claim up 391

Raad van State Afdeling voor de Geschillen van Bestuur (1987). 29-04-1987. No. GO3.87.01015, pp.4-5.

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with actual figures to establish the relevance of their counter claims. If the court was to rule on this evidence, the lack of scientific figures and claims in the evidence brought forward by both parties in this credibility contest would make it extremely difficult for the court to sort through the conflicting arguments. The court could not sift through the claims by looking at the level of scientific expertise, or the scientific methods used, or at the level of scientific consensus about the knowledge that was brought forward, in order to decide which of the conflicting claims could be judged reasonable, plausible, and credible. Both parties would need to bring forward a different kind of evidence if they wanted the court to accept their boundary work and consequently their knowledge claims as relevant and credible. De Leeuw did conduct a more thorough boundary work and presented the GD results to the Council of State to testify that the water was still polluted and he won. In 1987, the Council of State ruled that: “it is absolutely certain that, in the past, sewage water from the overflow in the Kerkstraat regularly flowed to the ditches in and near the property and business of plaintiff. Results from research on water samples from these ditches that the GD in Noord-Brabant conducted showed that the water was, at least at that moment, not suitable drinking water for cattle. The Gedeputeerde Staten was not able to convince the chairman that by means of the waterboard’s valve for the overflow in the Kerkstraat, which needs to be manned by employees of the waterboard, the flow of sewage water to the ditches (of De Leeuw, author’s addition) could sufficiently be avoided in the future.”392 De Leeuw was allowed to keep his dam in place and now officially argued that the waterboard and municipality were liable for the damage to his herd and business. This ruling demonstrates that it is important for a party to bring knowledge claims to court that meet at least some of the basic requirements set by the judicial arena. As mentioned in the theoretical intermezzo, the courts of law make decisions based on a general belief in the existence of a common scientific method, common standardised scientific knowledge and commonly agreed upon practices, neutral expertise, and the ability to transfer scientific knowledge across settings. De Leeuw’s boundary work was successful and he won because he met these requirements and the opposing party did not. If the waterboard and municipality had brought forward scientific evidence to court, the court would have had to undertake much more effort to establish which of the conflicting claims were the most credible and relevant. 392

Raad van State Afdeling voor de Geschillen van Bestuur (1987). 29-04-1987. No. GO3.87.01015, pp.10-11.

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The municipality and waterboard did not want to close the issue and still wanted the permanent dam to be removed because it impeded the waterboard’s control over the waterways. In 1988 they tried to settle the matter without a second judicial round and proposed an alternative solution to De Leeuw. The municipality was prepared to allow De Leeuw to dig three wells of six meters deep. That way the cattle would not have to drink the ditchwater anymore. De Leeuw refused and, in a letter he argued that the GD results spoke of serious pollution and he argued that the municipality was liable for all the damage to his herd that this pollution caused. As I mentioned earlier in the theoretical intermezzo, introducing the assistance of evidence of causation relevant to one party is not enough to get one’s knowledge claim acknowledged as relevant in court. Introducing evidence of causation is however the first step in boundary work aimed at constructing relevant knowledge claims. De Leeuw failed to meet this requirement. The GD results did not establish a causal relationship and consequently were not relevant to the issue of liability that De Leeuw attempted to establish. If the municipality would challenge the relevance of the GD results, a battle for expertise would take place. As mentioned earlier, typically a battle for expertise is equipped with strategies for example aimed at deconstructing claims as both unscientific and subjective, or aimed at portraying differences in scientific opinion and scientific practice as significant. The municipality would, however, not need to deploy complex strategies to battle De Leeuw’s claims of expertise and relevancy. The municipality challenged the relevance of the GD’s results for the issue of liability by pointing at the lacking relationship between the water pollution and the cattle’s health problems: “we cannot accept any liability for the damage you mentioned, taking into account that the question whether or not there is a causal relationship between the damage you mentioned and the quality of the water has not even been addressed yet.”393 In 1990 the waterboard and municipality took their complaints about De Leeuw’s dam to the regional watermanagement department of the Ministry of Watermanagement because they wanted the dam to be removed. This department initiated a new lawsuit to remove the dam, and again appealed to the department for the settlement of administrative matters of the Council of State. In this appeal the Ministry argued that the technical devices were now working adequately, and that the dam should be removed. In addition the Ministry pointed at the lack of proof brought forward by the GD: “from information of the GD in Noord-Brabant at Boxtel the following appeared. In 1982 the herd of De Leeuw was put down because of the existence of the contagious disease Abortus Bang. Abortus Bang was detected in the new 393

Gemeente Terheijden. (1988). Overstorten/veedrenkingsputten. R. de Leeuw.

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herd, but this time it was not the contagious Abortus Bang. Because the water in the ditches at the scene of the business was dirty and muddy he asked the GD to research the water. The water was labelled unsuited as drinking water for cattle. The GD had no results to establish that the polluted water caused the Abortus Bang or the later abortions. The water in question was not researched for hormones, dioxin, etcetera.”394 In 1991 the Council of State court ruled: “…it had become apparent that before the plaintiff moved to place the dam, polluted sewage water regularly flowed from the overflow in the Kerkstraat to the ditches in his terrain. Because of this the water was unsuited as drinking water for cattle, while the waterboard could not guarantee that the valve…below the Kerkstraat could be closed before the overflow discharge took place. The above leads the court to conclude that the decision under discussion was taken against the general principle of good governance (algemeen beginsel van behoorlijk bestuur).”395 The court pointed out that the possibility of damage to De Leeuw’s cattle was greater than the possible hinder by the dam. Again, De Leeuw was allowed to keep his dam in place. Some authors have criticised the Dutch judicial system in that judges hardly need to motivate their rulings, they only need to present the evidence they base their rulings on and do not have to motivate why they do not take into account other evidence.396 Indeed in its final ruling the court did not mention whether or not it accepted De Leeuw’s evidence of a causal relationship between the pollution of the water and the cattle sickness. The actions of De Leeuw and the governmental bodies show that relevancy is not a given attribute of knowledge, but that it is the outcome of a complex encounter of credibility between opposing parties in court. Both parties have to undertake boundary work to establish that evidence is relevant to that specific lawsuit. As mentioned in the theoretical intermezzo, there are no neat judicial boundaries that clearly demarcate what counts as evidence in court. Typically in each lawsuit the opposing parties construct anew what the boundaries between relevant and non-relevant knowledge are. The strategies to undertake this construction are not predetermined either but are the outcome of the particular situation. 394

Ministerie van Verkeer en Waterstaat Directie Noord-Brabant (1990). Beroep R.A. de Leeuw te Wagenberg tegen besluit Gedeputeerde Staten van Noord-Brabant inzake toepassen bestuursdwang door waterschap De Ham te Made. TWK-procedure. GO3.87.0101. Raad van State, pp. 2-3. 395 Raad van State Afdeling voor de Geschillen van Bestuur (1991). 18-04-1991.No. GO3.87.0101. 396 For a more elaborate discussion of the statement that Dutch judges hardly need to motivate their rulings, that they only need to present the evidence they base their rulings on and do not have to motivate why they do not take into account other evidence see: Frijda, L. (1992). Over dubieuze zaken en oppervlakkige, domme rechters. Delikt en Delinkwent, 22(7), 662-672.

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The particular trial discussed in this section revolved around the claim that a particular substance had caused De Leeuw’s damage. This claim typically lies at the hart of many environmental judicial battles. De Leeuw’s particular trial and the strategies required to undertake successful boundary work were the outcome of the particular situation. According to Jasanoff, in an environmental litigation the plaintiff needs to undertake several steps in his boundary work.397 If we follow Jasanoff’s argument, if there would have been a lot of scientific knowledge about the relationship between the water pollution and the cattle’s health issues, De Leeuw would have had to identify the harmful substance, trace the pathway of exposure, demonstrate exposure occurred at levels which are potentially harmful, establish that the compound identified could cause injuries of the kind complained of, and rule out other possible causes.398 In addition, De Leeuw’s boundary work would have been scientifically strongest if the cattle’s illness was uniquely linked to a particular substance. When De Leeuw’s case was brought to court, in 1986, there was no scientific knowledge yet that concluded that the injuries were caused by one particular substance. There was no scientific knowledge either that ascertained that the injuries could not as easily have been caused by other, confounding factors. De Leeuw could not use scientific evidence in his initial boundary work, in his initial attempt to establish that the knowledge claim he brought forward to the court was relevant. It was irrelevant to this specific lawsuit whether or not the polluted water caused the cattle’s sickness. It was sufficient if De Leeuw established that the harmful substances of the overflow polluted his ditches. To do so De Leeuw had to prove that the ditchwater was polluted and then trace the pathway of exposure: that the water could reach De Leeuw’s land because of malfunctioning of the waterboard’s valve. De Leeuw could only introduce his practical suspicion of a causal relationship as relevant knowledge to this lawsuit because there simply was no scientific evidence of any kind at that time. De Leeuw undertook successful boundary work when he argued that it was difficult to establish that his suspicion of a relationship between the water pollution and the cattle’s health problems was correct and was relevant. His second strategy, his attempt to convince the court that his test of removing his cattle from the drinking water was the only evidence available, was aimed at pre-empting scientific certification. De Leeuw’s boundary work became scientifically stronger when he organised scientific research and was able to bring forth results of water research by the GD. 397

Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 398 Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press.

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De Leeuw, however, gave the opposing parties an opportunity to counter his scientific results when he argued that the results had also relevance for establishing a relationship between the pollution detected by the GD and his sick cattle. The governmental bodies explicitly attempted to get the court to position the GD results on the ‘non-relevant’ side of the boundary by mentioning that the GD results did not establish any relationship but merely established that the water was polluted. The municipality and waterboard could quite easily have countered De Leeuw’s claim in this administrative trial, but failed to use the correct strategies in their boundary work. In administrative court the burden of proof lies with the plaintiff, which means that De Leeuw had to provide proof of specific causation that was more relevant than the defendants proof of the opposite.399 Although in this administrative court the burden of proof lied with De Leeuw and although he had to provide the evidence, the judge could take De Leeuw’s suspicion as a fact until the waterboards and municipalities had proven the opposite. To allow the court to position De Leeuw’s claim on the non-relevant side of the boundary, the waterboard and municipality should have brought forth their own experts with counter research proving that the water was suited as drinking water for cattle. Because the response of the defendant was insufficiently built upon facts, for example technical data or scientific results, the judge could immediately move in favour of De Leeuw. The court acknowledged De Leeuw’s account of the truth concerning the quality of the water because the packaging paper of De Leeuw’s evidence consisted of a scientific testimony and that of defendants consisted of uncertain technological promises, and their counterclaim, which challenged the GD results, was not backed up with equally relevant scientific evidence. In this trial, the waterboard and municipality failed to undertake the correct boundary work strategies to deconstruct De Leeuw’s claims. This facilitated the court’s boundary work of deciding which knowledge was relevant and acceptable as evidence in court and which was not. Now that the initial boundary work of courts, plaintiffs and defendants is sketched I can continue to discuss the role of credibility contest in court.

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Van Dunné argues that evidence in civil court does not have to meet requirements of certainty beyond reasonable doubt or of direct and immediate effect. Those are requirements for criminal court. In law books, it is ascertained that obtaining a reasonable or certain degree of certainty is enough. Van Dunné mentioned that according to some it is enough to ascertain that the condition is more likely to happen than not. See: van Dunné, J. M. (2002). Het risicobegrip vanuit het perspectief van het Milieuaansprakelijkheidsrecht. Werkdocumenten W 128. Perspectieven op Milieurisico's. B. Wissink, Bouma, J. Den Haag, Wetenschappelijke Raad voor het Regeringsbeleid (WRR): pp. 103-147.

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5.3 Credibility contests in court: constructing expertise In 1989, parallel to the second lawsuit dealing with the dam, De Leeuw appealed to the Afdeling Rechtspraak van de Raad van State, the civil sentencing department of the Council of State, to forbid the waterboard to depose sludge on his land, which the waterboard removed from waterways in contact with the ditch, the overflow discharged on. De Leeuw believed the sludge was so polluted that dispersing it on his land would endanger the health of his cattle. De Leeuw appealed to this civil court to take the 1987 verdict of the Raad van State on the dam as a starting point for this new lawsuit: “I refer to the verdict dated 29-04-1987… where … you order the waterboard to refrain from removing a dam I constructed… for these reasons I have requested the waterboard to relieve me from the obligation…to receive the sludge.”400 With this appeal, De Leeuw tried to stretch the Council of State’s earlier boundary work in 1987, in which the court acknowledged the GD’s claim that the water was polluted as relevant, to apply to the sludge as well. He argued that if the water was polluted it was logical to assume that the sludge would be polluted as well. De Leeuw did not deem it necessary to bring forward an additional scientific claim concerning a causal relationship between the water pollution or the sludge and the cattle’s health. This time the waterboard did challenge the relevance of De Leeuw’s claim by stating that De Leeuw had no evidence that the sludge was polluted. The waterboard undertook thorough homework and organised counter research and expertise and hired the institute Tauw Infra Consult BV to research the sludge. The research showed that the sludge was not polluted beyond the waterboard’s norms. De Leeuw attempted to discredit the expertise used and presented a letter he had written in December 1988 already, questioning the methods of research used by the waterboard: “I am aware that samples have been taken at several places in your order. In your letter of fifteen December 1988…you mention that it can be concluded from that research that the environmentalhygienic quality of the sludge in the waterways near my farm meets with the provincial and waterboards’ norms for the removal of sludge. I have strong and compelling reasons to contradict your opinion. The sample taker in question has taken samples at a number of places, not only places where you will conduct work at great depth, but also at a number of places in waterways on my property that, as a consequence of my own actions, were in per400

de Leeuw, R. (1989). Aan de Raad van State Afdeling Rechtspraak. Raad van State, Afdeling Rechtspraak, pp.1.

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fect state of purity. The individual samples would only be analysed if the mixed sample would show some pollution. According to the taker of the samples, all samples have been mixed together to get one sample and only that sample would be analysed. Apparently, and I believe that is the consequence of the mix of a large number of samples of good quality, the outcome of the mixed sample has led you to conclude that the environmental-hygienic quality of the sludge in waterways near my farm meets with the norms… For that reason I request that you sent me the results for each sample point in the waterways, that are near my farm, so that I can be advised by an expert adviser of my liking.”401 The waterboard countered De Leeuw’s objections by establishing that the methodologies used were adequate: “sampling follows specific rules which, although not written down, count nationally, taking into account that until now no problems have occurred. The samples are taken with a pistondrill, mixed together and sent to a laboratory. This lab meets with a quality manual for her research and works according to procedures that are written down. Tauw BV believes to have conducted the sampling in a proper way…. Finally they object to the statement that the sample takers were biased. Tauw BV is a renowned and independent bureau and was asked by the waterboard to conduct the research.”402 In 1989 the court ruled in favour of the waterboard.403 De Leeuw had lost this credibility contest. The court ruled in favour of the waterboard because De Leeuw had not brought forward sufficient scientific counter research: “the plaintiff has insufficiently proved that the sludge … is polluted to the extent that it would be unreasonable to request from him to receive this sludge on his land. Therefore we conclude on the basis of research conducted by the waterboard and by Tauw Infra Consult BV at Deventer that the sludge meets with requirements of the Union of Waterboards for the acceptance and distribution of dredged sludge.”404 With respect to De Leeuw’s claim that the sludge was polluted the court ruled: “he did not, however, 401

de Leeuw, R. (1988). Aan het Dagelijkse Bestuur van Waterschap De Ham. Waterschap De Ham, pp.1. 402 Provincie Noord Brabant Dienst Kabinet en Centrale Ondersteuning (1989). Proces Verbaal, pp.1. 403 For a detailed analysis of the increasing reliance of courts on standards on how to collect knowledge and less on the knowledge claim itself see: Jasanoff, S., (2002). “Science and the Statistical Victim: Modernizing Knowledge in Breast Implant Litigation.” Social Studies of Science, 32.1: 37-70. 404 Raad van State Afdeling Rechtspraak (1991). Beschikking van de Voorzitter van de Afdeling Rechtspraak inzake het verzoek om toepassing van artikel 107 van de Wet op de Raad van State in het geschil tussen R. de Leeuw te Wagenberg (verzoeker) en Gedeputeerde Staten van Noord-Brabant (verweerders), vertegenwoordigd door Mr. H.J. van der Donk, ambtenaar der provincie. No. GO3.87.0101, pp.3.

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prove this by means of results of expert counter research on the sludge he had to receive.”405 De Leeuw, was not satisfied with this ruling and continued to file applications until 1992, with the claim that: “the plaintiff holds to the opinion that the research was not conducted appropriately, and if it had been, other conclusions would have been drawn with respect to the amount of pollution of the sludge.” In 1992, however, the court sentenced that: “the court did not perceive the research methods followed by the defendant as inappropriate. The research conducted by Tauw Consult BV of November 1988 and April 1989 showed that the mixed sample met with requirements and norms for receiving and distributing dredged sludge that existed at the moment the decision under discussion was taken… The plaintiff did not back-up his doubts about the results and researches with results of expert counter research on the sludge he was to receive. Neither did he proof that there exists a direct relationship between the past disease among his cattle and the sludge.”406 In this second trial both De Leeuw and the waterboard and municipality again deployed the strategy that aims at constructing boundaries of what counts as evidence. Because of the length of the lawsuit, De Leeuw and the governmental bodies had the opportunity to construct and refine their boundary work strategies over time, depending on developments and additional knowledge in the scientific arena. Although this time there was more scientific knowledge on the water pollution, it proved challenging to transfer this evidence that was deemed relevant in the scientific arena to the judicial arena. The relevance of evidence was of critical concern to the judicial decisionmaking in the trial regarding the dam, but not in the sludge trial. The credibility contest in this second trial revolved around the reliability and the credibility of results, experts and methodologies. The boundaries between reliable and unreliable, valid and non-valid, objective and subjective had to be re-established in court and were the very issues negotiated in the encounter of experts. The contest and negotiation followed a logical strategy. The

405

Raad van State Afdeling Rechtspraak (1991). Beschikking van de Voorzitter van de Afdeling Rechtspraak inzake het verzoek om toepassing van artikel 107 van de Wet op de Raad van State in het geschil tussen R. de Leeuw te Wagenberg (verzoeker) en Gedeputeerde Staten van Noord-Brabant (verweerders), vertegenwoordigd door Mr. H.J. van der Donk, ambtenaar der provincie. No. GO3.87.0101, pp.3. 406 Raad van State Afdeling Rechtspraak (1992). Uitspraak in het geschil tussen: R. de Leeuw te Wagenberg, gemeente Terheijden (appellant), vertegenwoordigd door Mr. Th. H.W. Juta, gemachtigde en de commissie betreffende het werkveld wegen- en waterschapszaken, belast met de behandeling van administratieve geschillen ingevolge het Reglement watergangen Noord-Brabant (verweerster), vertegenwoordigd door Mr. I.P.C. Geene en ing. J.F. Slikker, ambtenaren der provincie. No. GO3.87.0101, pp.5.

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lawyers pointed at the legitimacy of the sampling methods to establish what counted as expertise in this lawsuit. In the judicial arena standards are devised to sort through conflicting arguments and knowledge claims. As mentioned in the theoretical intermezzo, these standards assess the amount of consensus in the scientific field about whether or not a methodology is standard, whether the results are objective, and whether the expertise is credible and reliable. The waterboard’s strategy in this credibility contest was to contract counter expertise and counter research and to attempt to establish that the categories ‘acknowledged’ and ‘independent’ applied to that research. They attempted to establish that their results and the methods that they had used conformed to an ideal image of the scientific arena. They argued that the sampling followed specific rules that counted nationally; that the lab met with a quality manual for research and that the expertise of the lab was renown and independent. To constitute that their research was relevant and credible, in the boundary work the waterboard attempted to conform to images of correct and traditional science by arguing that the scientific rules, methods and expertise that were used were grounded in strong and uncontested scientific traditions. Usually, opposing parties do their utmost best to make sure that the evidence they bring forth will meet the courts requirements. In his boundary work however, De Leeuw firstly neglected to bring forward a scientific claim concerning a causal relationship between the water pollution or the sludge and the cattle’s health. His own credibility as an expert was not sufficient anymore because while his claim was not grounded in a body of communally accredited knowledge, the opposing party had brought forth knowledge claims that were grounded in scientifically acknowledged practices. The court did not accept De Leeuw’ claim that there were differing notions of adequate practices for measuring the pollution, because De Leeuw did not follow the required boundary work strategy that was needed to deconstruct the knowledge and results brought forward by the waterboard and municipality. He did not point to doubts about the calibration of the instruments, and neither did he point at the possible lacking adequate control of the experiment. Finally, he did not enlist the support of scientists and scientific knowledge to prove consensus about his claims. The governmental bodies, therefore, had an easy boundary work. They only needed show that the sample taking met with the requirements and had been done by an accredited research institute; this was sufficient boundary work in this particular trial. The lack of scientific and communal grounding of De Leeuw’s claim facilitated the court’s decision about the validity of the competing accounts of reality. The court held that objective data - the scien177

tific data of the waterboard - should take precedence over De Leeuw’s subjective and experiential knowledge of dredge conditions. In both the dam as the sludge lawsuit, the issues at stake were relevance and credibility of knowledge and expertise in court. To De Leeuw, however, it was most important to establish who could be liable for the damages to his herd and his business. To distribute liability according to a party’s wishes, that party needs to attain ownership of the problem. The first requirement to attain that ownership in court is to get one’s knowledge, problem definition and expertise acknowledged as relevant by the court of law. Now that I have sketched both parties’ attempts to receive that acknowledgment, I will continue to discuss their attempts to attain ownership and distribute liability.

5.4 Ownership in court: distributing responsibility in court In December 1990 the waterboard had attempted to legalise the overflow discharges by giving the municipality a license to discharge. During the first six weeks of such a licensing process, the public can file an application against the permit and De Leeuw made use of this opportunity.407 His application was dismissed in June of 1991. In the following years De Leeuw researched if the correct procedure had been followed to legalise the overflow discharges and he collected sufficient evidence of the contrary to decide to take his protest to the Raad van State in 1996.408 This time De Leeuw brought a new argument to the judicial arena, linked to the concept of responsibility. De Leeuw remarked that the municipality and the waterboard had neglected to take into account that granting the permit for overflow discharges held consequences for the health of cattle. De Leeuw remarked that because of that neglect, the waterboard and municipality had acted in contradiction with the principle of precaution and had, therefore, acted unlawfully (‘onrechtmatig’). The notion of unlawful action relates to an action that does not meet the requirements of societal precaution. The concept of unlawful action has been the standard judicial instrument to 407

Hoogheemraadschap West-Brabant (1991). Beroep W.V.O.-vergunning ten name van de gemeente Terheijden. 65950 AOOO182F.BRF. Breda. 408 Waterschap De Ham (1972). Gemeente Terheijden. And: Waterschap West-Brabant (1972). Overstort Wagenberg; lozingsvergunning. Gemeente Terheijden. And: Waterschap West-Brabant (1973). Overstort Kerkstraat te Wagenberg; lozingsvergunning. Gemeente van Terheijden. And see: Das Rechtsbijstand (1993). Geacht bestuur. Het Dagelijkse Bestuur van het Hoogheemraadschap West-Brabant. Breda. And also: Hoogheemraadschap West-Brabant (1993). Overstortproblematiek Wagenberg. nr. 4164 bn. GB00331C.DB. Dagelijks bestuur. And see: Raad van State Afdeling Bestuursrechtspraak (1996). Uitspraak in het geschil tussen R. de Leeuw te Wagenberg (appellant) en het dagelijks bestuur van het Hoogheemraadschap West-Brabant (verweerder). 27-02-1996. No. EO3.96.1364.

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deal with issues of damage and culpability.409 In recent rulings of the Hoge Raad, the Dutch Supreme Court, the concept of unlawful action was dealt with in such a manner that the Hoge Raad felt that if an action created danger, and if that danger materialised, that was sufficient to establish liability of the actor. The precaution principle, however, was and still is a fairly new concept in the Dutch judicial arena, especially in the administrative court. At the moment it is debated whether the precaution principle should become an important instrument in both Dutch civil and administrative courts dealing with strict liability.410 The principle identifies that when an institution or party is faced with insufficient scientific certainty about the environmental effects and in that sense with the environmental safety of an action, that party or institution should not take the intended action. 411 A party can use this principle in court when there is no scientific certainty about the effects of an action that was taken by the opposing party, and when the opposing party argues that a direct relationship between cause and effect, the conditio sine qua non causality, is necessary to decide on the unlawfulness of an action on their part. The precautionary principle might especially be used to deal with possible unforeseen and unforeseeable (environmental) side effects of risks that have occurred years before.412 For example, in her analysis of 409

van Dunné, J. M. (2002). Het risicobegrip vanuit het perspectief van het Milieuaansprakelijkheidsrecht. Werkdocumenten W 128. Perspectieven op Milieurisico's. B. Wissink, Bouma, J. Den Haag, Wetenschappelijke Raad voor het Regeringsbeleid (WRR): pp. 103-147. 410 For an elaborate discussion of the increasing importance of the precautionary principle in the judicial arena, especially in environmental law see: Faure, M. G., Vos, E. (eds.) (2003). Juridische afbakening van het voorzorgsbeginsel: mogelijkheden en grenzen. Den Haag. Gezondheidsraad, 2003. publicatie nr. A03/03. In this report it is mentioned that although elements of the precautionary principle can be identified in environmental law, there is no law that states that administrations should always take the precautionary principle into account in all decisions. The sociologist Pieterman also partakes in the debate on the importance of introducing the precautionary principle in the judicial arena. He argues that introducing a definition of the precautionary principle in court that merely states that when in doubt actions should not be taken might endanger technological progress. See for a discussion and critique of Pieterman’s view: Peeters, M. (2003). Het voorzorgsbeginsel in het Nederlands milieurecht. In: Faure, M. G., Vos, E. (eds.) (2003). Juridische afbakening van het voorzorgsbeginsel: mogelijkheden en grenzen. Den Haag. Gezondheidsraad, 2003. publicatie nr. A03/03. pp.: 187-234. 411 For a comprehensive analysis of the increasingly important role of the precautionary principle in the political arena see: Dratwa, J., European Parliament Scientific and Technological Options Assessment STOA, (2000). The Precautionary Principle. PE 168.385, European Parliament. Scientific and technological Options Assessment STOA. And see: Dratwa, J. (2001). Taking risks with the precautionary principle. Food (and the environment) for thought at the European Commission. Draft manuscript. 412 For an elaborate discussion of the increasing importance of the precautionary principle in the Dutch judicial arena, especially in environmental law see: Peeters, M. (2003). Het voorzorgsbeginsel in het Nederlands milieurecht. In: Faure, M. G., Vos, E. (eds.) (2003). Juridi-

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use of the precautionary principle in two judgements of the Court of First Instance in the Pfizer and Alpharma cases in 2002, Ellen Vos mentions that the general message of the court was that the precautionary principle by definition applies to situations of scientific uncertainty.413 De Leeuw’s lawyers introduced this precaution principle in court to prevent the waterboard and municipality to argue that the conditio sine qua non causality was needed to decide on the unlawfulness of the overflow discharges. De Leeuw continued his argument stating that the waterboard and the municipality (willingly or unwillingly) refused to take responsibility and liability for the consequences of the overflow discharges although they had let the water management system, the system of valves and overflow discharges, and the accompanying system of responsibility fail. De Leeuw remarked that the matter dealt with environmentally dangerous issues and that actions that had or had not been taken posed ‘known or expected’ danger to the health of man and animal. In addition the actions or lack of action had had consequences for the usability, quality and ecology of rural soil and of the water. Because of that, De Leeuw and now also his son who had become a partner in the farm, were unable to exploit their farm to their best effort. They demanded compensation for the value loss of their farm and requested redevelopment of the unlawful and damaging overflows. The waterboard remarked that they intended to install new technological devices near the valve, which would ensure that the water reaching the ditches on De Leeuw’s property would meet the requirements for surface water. The water management system would hence work well in future. The regional department of the Ministry of Watermanagement, the judicial representative of the waterboard, argued that before a debate could be held with respect to admissible behaviour, first the quality of the surface water had to be researched. If the water was not polluted, a debate would not be necessary. In 1998 the Council of State published its verdict in this lawsuit. The court argued that De Leeuw’s claim that the sewage water was responsible for the cattle’s health problems could not be deduced from existing scientific reports. And the claim that the waterboard acted in contradiction with the precautionary principle could not be underpinned because: “it cannot be concluded that the illness symptoms observed among cattle are to an important degree caused by overflow water.”414 sche afbakening van het voorzorgsbeginsel: mogelijkheden en grenzen. Den Haag. Gezondheidsraad, 2003. publicatie nr. A03/03. pp.: 187-234. 413 See: Vos, E., (2004). Antibiotics, the Precautionary Principle and the Court of First Instance, draft article. 414 Raad van State Afdeling Bestuursrechtspraak (1998). Uitspraak in het geschil tussen R.A. de Leeuw te Wagenberg en Noord-Brabantse Christelijke Boerenbond te Tilburg (appellan-

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This ruling was exactly what De Leeuw had attempted to prevent by introducing the precautionary principle. De Leeuw was aware of the fact that research that was conducted within the scientific arena did not bring the establishment of a causal relationship conditio since qua non one step closer. To gain ownership of the situation De Leeuw attempted to remove the argument of causality out of the judicial battle of the experts. Without ownership of the problems, that is, without the acknowledgement that his account of events was the only valid one, De Leeuw would not be able to lay blame or distribute liability successfully in judicial terms, so, he would not receive financial compensation from the waterboards and he would not be able to make the waterboards and the municipality redevelop the overflows. An analysis of his strategy in terms of the concepts of responsibility as developed by Gusfield demonstrates why De Leeuw’s attempts were doomed to fail. To obtain ownership, it is essential to establish causal responsibility. The waterboard attempted to obtain ownership of the problems, and at the same time denied ownership to De Leeuw by attempting to establish there was no causal relationship between the water pollution and the cattle’s health problems. To accomplish this, the waterboard only needed to point at the fact that there was no scientific knowledge of a causal relationship, and thus no causal responsibility. If the court would acknowledge this account of events, the waterboards would not be responsible, De Leeuw would not receive ownership and the waterboard and municipality would not have to accept De Leeuw’s’ claims about liability, and thus would not need to financially compensate De Leeuw. And the court could acknowledge the waterboard’s account of events because De Leeuw’s attempts to obtain ownership did not follow the required strategy. De Leeuw did not attempt to establish causal responsibility. De Leeuw attempted to obtain ownership of the problem by focusing on political and moral responsibility for the situation. De Leeuw’s strategy was to argue that the waterboard and the municipality should have taken more precautions, considering that the water was indeed polluted and could cause the cattle’s health problems. De Leeuw intended to establish that the waterboard and the municipality were liable because they had demonstrated unlawful behaviour by developing the overflow in the first place. However, as is the case with allocating causal responsibility, to allocate political responsibility and to prove that the waterboard and municipality had acted in contradiction with the precautionary principle, De Leeuw should also have provided scientific proof of a relationship between the water and the cattle or ten) en het dagelijks bestuur van het Hoogheemraadschap West-Brabant (verweerder).01-091998. No. EO3.96.1364, pp.6.

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at least proof that a relationship was plausible. Causal responsibility was needed to define what led to the existence of the problem, what sequence of actions, what factors are responsible for the situation. Only when this causal responsibility is established, the court is able to establish who is responsible, and what actions led to this particular situation. If De Leeuw had brought forth proof of causal responsibility it would have made the boundary work of defendants more difficult. In case of the existence of scientific causal evidence, defendants would have needed to deconstruct that knowledge in their attempt to challenge De Leeuw’s claim to ownership of the problems. De Leeuw, however, did not follow the adequate strategy to receive ownership. He did not provide the required scientific evidence and consequently did not successfully establish causal or political responsibility and this made it more or less easy for the administrative court to rule and to favour the waterboards’ account of the problem. Now that I have sketched the first attempts of both parties to gain ownership of the situation, I will continue to discuss their final attempt. In this new attempt, De Leeuw introduces a law-science hybrid in a different court, the civil court.

5.5 The court as knowledge machines: the construction of lawscience hybrids in court Because De Leeuw and his son could not file the same lawsuit at the Council of State a second time, in 1998 they filed a new complaint at the Arrondissementsrechtbank in Breda, the civil county court, against the waterboard and the municipality. For the second time, De Leeuw attempted to establish that defendants acted in contradiction with the principle of precaution and he argued that: “because of unwillingness, ignorance or impotence of the defendants, all responsible and liable for their own part and with a common failed responsibility for the total water management at the scene, nothing has changed since 1984.”415 And De Leeuw continued his argument by stating that: “in any case the defendants acted contrary to the high amount of precaution that they should have taken into account when dealing with the property and interests of plaintiffs, since the matter is environmentally dangerous to the health of both man and animal and to the usability, quality and ecology of the agrarian soil and water.”416

415

de Leeuw, R. A., de Leeuw W.N.J.M. (1998). Dagvaarding. Arrondissementsrechtbank te Breda, pp.6. 416 de Leeuw, R. A., de Leeuw W.N.J.M. (1998). Dagvaarding. Arrondissementsrechtbank te Breda, pp.8.

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In this new case De Leeuw and the waterboard and municipality initially continued the line of argumentation they already followed in earlier administrative cases. De Leeuw did not bring forward any scientific research other than the GD research he already used in his earlier trial. In their reply, the waterboard and municipality refused to accept that they were liable for the alleged damages by pointing at the lack of what they defined as compelling evidence for the claim of scientific causality: “the defendants deny any liability for the damages brought forward by the plaintiffs because of that lack of causal relationship between those damages and the quality of the ditchwater…The research of the GD in Noord-Brabant does not show a relationship between the abortions on the property of the plaintiffs and the polluted water.”417 The defendants remarked that since there was no scientific knowledge on a causal relationship between the water and the cattle’s health they could not have acted in contradiction with the principle of precaution. The defendants also attempted to deconstruct the relevancy of the claim of the GD that the ditchwater was unsuited as drinking water for cattle: “this conclusion requires nuance. The results of some of the researches on water samples from the ditches conducted by the GD at least showed that the water was unsuited as drinking water for cattle on those moments.”418 Halfway this new encounter, De Leeuw changed his strategy. He introduced two new judicial concepts of causality and liability in an attempt to pressure the court into introducing several innovations in that Dutch law that deals with unlawful actions (tort). Introducing these innovations in Dutch tort law aimed at creating new judicial mechanisms to deal with a lack of definitive proof of a relationship.419 To effectively introduce these new judi417

Arrondissementsrechtbank te Breda (1998). Conclusie van Antwoord inzake de Gemeente Drimmelen, zetelende te Made, gemeente Drimmelen, het Hoogheemraadschap van WestBrabant gevestigd te Breda, het Waterschap Land van Nassau, gevestigd te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen; tegen Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, procureur: Mr. Drs. E.C.M.Wagemakers, advocaat: Mr. K. Jurriëns. 22-09-1998. Rolnummer 60826/HAZA 98-1032, pp.2-5. 418 Arrondissementsrechtbank te Breda (1998). Conclusie van Antwoord inzake de Gemeente Drimmelen, zetenlende te Made, gemeente Drimmelen, het Hoogheemraadschap van WestBrabant gevestigd te Breda, het Waterschap Land van Nassau, gevestigd te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen; tegen Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, procureur: Mr. Drs. E.C.M.Wagemakers, advocaat: Mr. K. Jurriens. 22-09-1998. Rolnummer 60826/HAZA 98-1032, pp.4. 419 This same attempt was effectively made in the wake of the Bhopal tragedy and is not uncommon in tort law. The US motivated passage of a new law that had important implications for public participation. It ensured citizen access to formerly unavailable data and provided new opportunities for community-based planning for hazardous chemicals. See: Hadden, S. G. (1994). Citizen Participation in Environmental Policy Making. Learning from disaster.

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cial concepts, De Leeuw first tried to show that the role of science in his case was different from other cases because of the complexity of the matter. Only then could he argue that the conditio sine qua non definition of causality which was still widely used in court could no longer apply: “whether or not a specific scientific causal relationship can be established between the overflow discharges and the caused damage is, according to the present state of science, uncertain. Further research is required. There is, however, a clear scientifically based suspicion of such a causal relationship in scientific sense. This is apparent in conclusions of recent research on the relationship between the water quality and the cattle’s health issues… The reports at hand make clear how much we do not know, but also illustrate the risk of sewage water. The cattle’s health issues such as witnessed by De Leeuw, are what are called multifactor particular affections. This means that the symptoms are often non-specific and cannot be attributed to one specific cause.”420 Having made this first argument about the complexity of the situation, De Leeuw continued by arguing that the court could accept a different definition of causality: “the plaintiffs are at this point satisfied to remark that in this lawsuit the civil liability of the defendants deals with the damages of the plaintiffs and that the civil court, in these matters, thinks differently of causality than the administrative court about licensing with respect to the Wet Verontreiniging Oppervlaktewater (Netherlands Surface Water Pollution Act, author’s addition). With respect to the liability of the defendants in this matter, it is therefore not of particular importance whether there is, in general or specifically in this matter, rigid scientific proof of a causal relationship between the damages of the plaintiffs and the quality of the ditchwater at the scene.”421 De Leeuw thus attempted to convince the court that definitive scientific proof of a specific causal relationship was not always necessary for a court Risk management after Bhopal. S. Jasanoff. Philadelphia, University of Pennsylvania Press: pp.108. 420 Arrondissementsrechtbank te Breda (1999). Conclusie van Repliek inzake Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, advocaat: Mr. K. Jurriëns, procureur: Mr. Drs. E.C.M.Wagemakers, tegen de Gemeente Drimmelen, te Made, gemeente Drimmelen, het Hoogheemraadschap van West-Brabant te Breda, het Waterschap Land van Nassau, te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen. 06-04-1999. Rolnummer 60826/HAZA 98-1032, pp.15-16. 421 Arrondissementsrechtbank te Breda (1999). Conclusie van Repliek inzake Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, advocaat: Mr. K. Jurriëns, procureur: Mr. Drs. E.C.M.Wagemakers, tegen de Gemeente Drimmelen, te Made, gemeente Drimmelen, het Hoogheemraadschap van West-Brabant te Breda, het Waterschap Land van Nassau, te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen. 06-04-1999. Rolnummer 60826/HAZA 98-1032, pp.15-16.

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to rule. To strengthen their plea for new judicial concepts to deal with the failure of the scientific arena, the plaintiffs De Leeuw and his son brought to court the testimony of professor and judge J. Van Dunné. Professor Van Dunné attempted to strengthen De Leeuw’s argument for an alternative judicial definition of causality. By strengthening his argument for an alternative judicial definition of causality, De Leeuw attempted to simultaneously strengthen his claim that the waterboard and municipality were liable. When the court acknowledged the concept of alternative causality, De Leeuw would no longer be required to deliver evidence of a conditio sine qua non causality and in that sense the scientific uncertainty on the relationship between the overflow discharges and the cattle health problems would no longer make it difficult if not impossible to claim that the waterboard and municipality were liable. De Leeuw pointed at the inadequacy of the existing definition of the situation: “the problem with the specific causal relationship between cause and effect is typically the proof of that relationship. This is specifically the case when the matter is as complex as the issue at hand. An important means, that the court has already used for years is proof by probability: based on a actual suspicion of a relationship, that relationship is acknowledged as plausible and consequently taken as definite.”422 After having proposed this new way of dealing with a situation in which there is a lack of scientific evidence of a causal relationship, De Leeuw and his lawyers also proposed a different way of dealing with the concept of liability in matters such as De Leeuw’s. This proposal relied on the introduction of yet another alternative, namely a judicially still contested concept of dealing with a lack of scientific certainty: pseudo strict liability. Van Dunné attempted to translate judicial concepts from the Hoge Raad to civil court. This translation, however, would prove much more difficult than De Leeuw’s team had anticipated. De Leeuw’s lawyers argued that for the past years, in cases of unlawful action, the Hoge Raad followed a form of pseudo strict liability: “in these matters liability is acknowledged much faster because of violation of a precautionary obligation which is usually and generally the case in unlawful action, also when the guilt in the sense of reproachability of the perpetrator is not clear, nor the conditions under which the ac-

422

Arrondissementsrechtbank te Breda (1999). Akteverzoek inzake Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, advocaat: Mr. K. Jurriëns, procureur: Mr. Drs. E.C.M.Wagemakers; tegen de Gemeente Drimmelen te Made, gemeente Drimmelen, het Hoogheemraadschap van West-Brabant te Breda, het Waterschap Land van Nassau, te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen. 01-03-1999. Rolnummer 60826/HAZA 98-1032, pp.15.

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tions took place: with respect to the foreseeability of the damage the requirements are light or non-existing.”423 According to Van Dunné the court’s approach is often outdated and still built upon the conditio sine qua non concept of causality.424 Issues dealing with multiple perpetrators and multifactorial causality await innovation in Dutch administrative law and in politics too. To illustrate the innovative character of the pseudo strict liability, I will first briefly discuss the different possible conceptions of liability in risk trials, as discussed by Van Dunné. According to Van Dunné, the concept of fault liability is used when parties attempt to establish liability by demonstrating that the defendants have acted unlawfully. Strict liability, the second risk concept that Van Dunné discusses, allows for allocation of liability without the need to establish guilt: it is not necessary to prove unlawful action, such as the neglect in taking preventive actions. This concept is typically used in cases where increased risk of damage was created, not necessarily because of an action, but because of the lack of preventive action. In order to claim that the accused is liable, usually the accused must have been aware of the possibility of damage of the condition, without the need to further specify that damage or danger. In case it is not common knowledge that a compound or condition can create danger, the accused can still be liable if it is known in the environment of the accused that the compound or condition could cause harm, or if the accused could have informed him- or herself on the harmful nature of the compound or condition. The accused has the obligation to research the compound or condition. The law does not have a rule with respect to the date that knowledge about the harmful nature of the compound or condition should have been available. The judge typically determines this. The third concept that Van Dunné discusses, pseudo strict liability is proposed to allocate liability by taking the neglect of the defendants as proven until the defendants deliver proof of the contrary. This implies that the burden of proof is transferred from plaintiffs to defendants. Van Dunné thus attempted to shift the burden of proof from De Leeuw to the defendants. In combination with the proposed concept of alternative causality, where it was no longer necessary to prove conditio sine qua non 423

Arrondissementsrechtbank te Breda (1999). Akteverzoek inzake Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, advocaat: Mr. K. Jurriëns, procureur: Mr. Drs. E.C.M.Wagemakers; tegen de Gemeente Drimmelen te Made, gemeente Drimmelen, het Hoogheemraadschap van West-Brabant te Breda, het Waterschap Land van Nassau, te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen. 01-03-1999. Rolnummer 60826/HAZA 98-1032, pp.7. 424 van Dunné, J. M. (2002). Het risicobegrip vanuit het perspectief van het Milieuaansprakelijkheidsrecht. Werkdocumenten W 128. Perspectieven op Milieurisico's. B. Wissink, Bouma, J. Den Haag, Wetenschappelijke Raad voor het Regeringsbeleid (WRR): pp. 103-147.

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causality, it would be almost impossible for the defendants to prove that the water pollution did not cause the cattle’s sickness. The defendants, the waterboards and the municipality first challenged Van Dunné’s proposal. They argued “it is known that Van Dunné likes to give a broad explanation to the DES-arrest …and to the Moerman-Bakker arrest…it is also known that Van Dunné knows the opposition stature with respect to this vision.”425 The waterboards and municipality thus first aimed at undermining Van Dunné’s expertise by referring to his position in the judicial debate on the acceptance of the pseudo strict liability concept. The defendants continued with a discussion of the credibility of De Leeuw’s claims. They argued that De Leeuw’s attempts to present the sickness and deaths on his property, and the pollution of the ditchwater as a given fact had a strategic aim to remove: “…attention from the fact that with respect to the damage itself and the underlying cause (practically) nothing has been shown.”426 The waterboards and municipality argued that the facts that De Leeuw marked as definite “…are not in the least a fact.”427 And that “…without damage no claim on unlawful action” could be made.428

425

Arrondissementsrechtbank te Breda (1999). Conclusie van Dupliek inzake de Gemeente Drimmelen, zetelende te Made, gemeente Drimmelen, het Hoogheemraadschap van WestBrabant gevestigd te Breda, het Waterschap Land van Nassau, gevestigd te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen, advocaat: Mr. A.S. Gratama; tegen Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, procureur: Mr. Drs. E.C.M.Wagemakers, advocaat: Mr. K. Jurriëns. 05-10-1999. Rolnummer 60826/HAZA 98-1032, pp.45. 426 Arrondissementsrechtbank te Breda (1999). Conclusie van Dupliek inzake de Gemeente Drimmelen, zetelende te Made, gemeente Drimmelen, het Hoogheemraadschap van WestBrabant gevestigd te Breda, het Waterschap Land van Nassau, gevestigd te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen, advocaat: Mr. A.S. Gratama; tegen Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, procureur: Mr. Drs. E.C.M.Wagemakers, advocaat: Mr. K. Jurriëns. 05-10-1999. Rolnummer 60826/HAZA 98-1032, pp.7. 427 Arrondissementsrechtbank te Breda (1999). Conclusie van Dupliek inzake de Gemeente Drimmelen, zetelende te Made, gemeente Drimmelen, het Hoogheemraadschap van WestBrabant gevestigd te Breda, het Waterschap Land van Nassau, gevestigd te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen, advocaat: Mr. A.S. Gratama; tegen Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, procureur: Mr. Drs. E.C.M.Wagemakers, advocaat: Mr. K. Jurriëns. 05-10-1999. Rolnummer 60826/HAZA 98-1032, pp.46. 428 Arrondissementsrechtbank te Breda (1999). Conclusie van Dupliek inzake de Gemeente Drimmelen, zetelende te Made, gemeente Drimmelen, het Hoogheemraadschap van WestBrabant gevestigd te Breda, het Waterschap Land van Nassau, gevestigd te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen, advocaat: Mr. A.S. Gratama; tegen Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, procureur: Mr. Drs. E.C.M.Wagemakers, advocaat: Mr. K. Jurriëns. 05-10-1999. Rolnummer 60826/HAZA 98-1032, pp.7.

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When De Leeuw and Van Dunné attempted to introduce the new legal concepts of alternative causality and pseudo strict liability, they tried to get the court to shift the boundaries of what counted as judicial evidence of causal responsibility. They did so because otherwise the lack of definitive proof of a causal relationship would always stand in the way of a ruling that would make it possible to allocate liability with the waterboard and the municipality. The defendants accepted that it would not be possible to establish specific causality, and now used this argument which they first opposed, to introduce yet another judicial argument that favoured their claim. They commented that the issue was barred by lapse of time because the law showed that a person could only demand compensation up to five years after one has become aware of the damage or the possibility to claim that damage. In addition, the cause for the damage should be no more than twenty years removed from the occurrence of the effect.429They argued that as long as there was no apparent damage or causal relationship, there was no immediately claimable connection and the argument that the issue was barred by lapse of time did not apply. Then the plaintiffs again attempted to introduce a new definition of a judicial concept. De Leeuw and his team asked the court to use a different meaning of the judicial argument barred by lapse of time. They argued that in the beginning of the eighties, and also earlier, it was common knowledge that sewage water could be damaging for the health of both man and animals. Scientifically, however, at that time there was no knowledge available from which the conclusion could be drawn that there was a causal relationship between his cattle’s health issues and the sewage overflows.430 The plaintiffs argued that twenty years ago it was impossible to establish a causal relationship. Common sense ascertained the relationship, but scientists did not as the following 1994 quote of Geert Benedictus, the director of the GD in NoordHolland illustrates: “it (cattle drinking the overflow water, author’s addition) 429

Arrondissementsrechtbank te Breda (1999). Conclusie van Dupliek inzake de Gemeente Drimmelen, zetelende te Made, gemeente Drimmelen, het Hoogheemraadschap van WestBrabant gevestigd te Breda, het Waterschap Land van Nassau, gevestigd te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen, advocaat: Mr. A.S. Gratama; tegen Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, procureur: Mr. Drs. E.C.M.Wagemakers, advocaat: Mr. K. Jurriëns. 05-10-1999. Rolnummer 60826/HAZA 98-1032, pp.17. 430 Arrondissementsrechtbank te Breda (2000). Conclusie na Tussenvonnis inzake Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, te Drimmelen, eisers, advocaat: Mr. K. Jurriëns, procureur: Mr. Drs. E.C.M.Wagemakers, tegen de Gemeente Drimmelen, te Made, gemeente Drimmelen, het Hoogheemraadschap van West-Brabant te Breda, het Waterschap Land van Nassau, te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. A.S. Gratama. 04-03-2000. Rolnummer 60826/HAZA 98-1032, pp.4.

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sticks a mile out that it can’t be healthy. Only, scientifically I cannot back it up.”431 It took all parties more than twenty years to ascertain that relationship scientifically, and still there was judicial debate about the relevance of that relationship because it concerned a multi-factorial causality instead of a conditio sine qua non causality between cause and effect. Because of the hidden character of the risks and the time lapse between the initial cause and its unforeseen primary and secondary consequences, the plaintiffs argued that the traditional judicial concept barred by lapse of time was not applicable. They argued that the court should take the availability of scientific evidence as starting point in their decision on the validity of the claim barred by lapse of time. The plaintiffs pointed at the fact that in court, an accusation must be underpinned by science to have a chance to win; so many environmental cases did not stand a chance since the risks only became apparent after several years. They argued that the judicial strategy of dismissing a claim on the ground of the issue being barred by lapse of time favoured causators of an environmental complex and multifactorial problem. In October 2000 the court published its ruling: “to court the truthfulness of the claims of the plaintiffs -insofar as the defendants’ appeal to the issue being barred by lapse of time does not apply- the court would have to make an appeal to an expert that is more specialised in pollution problems (and it’s effects) like the situation at hand. These expert(s) would advice the court- if necessary after further research.”432 The court also requested additional information from both parties on the statements of the plaintiffs with respect to the lack of scientific knowledge and its effect on the proposed claim of the issue being barred by lapse of time by the defendants. Like any other arena, the judicial arena allows for different arguments and different discussions to take place at different moments.433 It is important to remember that the statements and arguments of the parties developed 431

Bosker, F. (1994). Rioolwater in sloten ongezond voor koeien. Leeuwarder Courant. Arrondissementsrechtbank te Breda (2000). Vonnis in de zaak van Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide wonende te Wagenberg, gemeente Drimmelen, eisers bij dagvaarding van 1 mei 1998, procureur: Mr. Drs. E.C.M.Wagemakers, advocaat: Mr. K. Jurriëns, tegen de Gemeente Drimmelen, zetelende te Made, gemeente Drimmelen, het Hoogheemraadschap van West-Brabant gevestigd te Breda, het Waterschap Land van Nassau, gevestigd te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. A.S. Gratama. 03-10-2000. Rolnummer 60826/HAZA 98-1032, pp.9-10. 433 The arguments also differ depending on the actors involved in the law-set. Edmond developed this concept of the law-set (a deliberate play on Collins concept, the core-set). Edmond argues that this law-set is composed of the investigation, preparation, negotiation, and decisions making in relation to a particular judicial controversy. This law-set can involve lawyers, the police, scientists, judges, and laypeople. In this case, the law-set involved lawyers, scientists and farmers that aimed to produce judicially sanctioned outcomes supporting their competing claims. See: Edmond, G. (2001). "The law-set: the legal-scientific production of medical propriety." Science Technology & Human Values 26(2): pp. 191-226. 432

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over time and were not determined from the start. The same applies to the availability of judicial material. And it was only at this point in time that the plaintiffs believed it was appropriate to advise the judge that the court could apply a different and fairly new judicial definition of causality. The plaintiffs choose this specific moment because it was becoming apparent, partly due to reports of for example the ID-DLO and TNO-MEP, that scientists were not able to establish definitive proof of a causal relationship. It was only in the year 2000 that it was acknowledged in the scientific and political arenas that scientists would never be able to establish a causal relationship between the pollution of the water and the cattle’s health problems. In the theoretical intermezzo I pointed out that it is difficult to transfer scientific facts from the political or scientific arena to the judicial arena, because concepts have different meanings in different arenas. The concept of causality has one meaning when discussed by lawyers in a trial, and another when discussed by scientists in a scientific discourse. In the scientific and political arenas of chapter four, the discussion surrounding causality focused on whether or not the causality was a scientific fact. In this judicial arena De Leeuw aimed at a debate on causality that dealt with the question whether the judicial assumption of causality was justifiable. Here also different arguments were brought in to settle the question of causality. De Leeuw and Van Dunné referred to this difference between what counted as causality in the scientific and the judicial arena’s in an attempt to change the boundaries of what counted as relevant evidence in court, so that they would also be able to get their concept of alternative causality acknowledged in court. By pointing at an alternative judicial definition of causality and linking this to the new scientific opinion on the relationship between the overflow and the cattle’s health, De Leeuw and Van Dunné attempted to stretch the definition of causal evidence to include a (formerly seen as insecure) multi-causal relationship as both scientific and judicial evidence: a law-science hybrid. De Leeuw and Van Dunné took one step further than merely introducing additional law-science hybrids. They attempted to expand the law by transferring judicial concepts from the Hoge Raad to civil court. This attempt to expand litigation is not new; plaintiffs typically have an interest in expanding litigation more often, whereas judges and defendants seek to constrain it.434 De Leeuw’s attempt to expand litigation followed from his need to reshift the boundaries of liability and to facilitate decisionmaking on liability 434

For a more comprehensive discussion of attempts to expand the law see: Edmond, G., Mercer, D. (2000). "Litigation Life. Law-science knowledge construction in (Bendectin) Mass Toxic Tort Litigation." Social Studies of Science 30(2): pp. 265-316.

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under uncertainty. By proposing new concepts of liability and causation, De Leeuw hoped it would be easier for the judge to acknowledge the liability of the waterboards, since it would no longer be necessary to establish causal responsibility. The probability of causation would be enough because the plaintiffs made an appeal to the concept of alternative causality: “the unlawful action of each of the three defendants can have caused all or part of the damages of the plaintiffs and that is in itself enough to acknowledge that the defendants were …liable.”435 De Leeuw’s attempts to introduce new lawscience hybrids were aimed at facilitating the judicial distribution of liability by victims. He tried to create a situation in which victims would be able to cast blame sooner and with less difficulty because they would not have to prove the guilt of the accused.

5.6 New risks, science and the law The court found itself on new grounds in this last trial, and was not able to rule in the final lawsuit of De Leeuw contra the waterboard and the municipality. Although deciding whether or not to accept the proposed innovations was a normal task for a court, this time, because of the lack of scientific evidence, the court found it extremely difficult to decide which of the opposing parties’ account was valid. But, in spite of the failure of scientists to establish sound proof of a risk, the court had to rule. Usually, when parties have not been able to bring forth scientifically established proof of a risk, the court is used to argue in favour of dismissal of that parties’ claim, but not in this case. In this particular trial none of the parties was able to establish scientific evidence of a causal relationship that the court could use to favour one account of the situation over another. This trial is representative of many trials that deal with the new risks that were discussed earlier in chapter four. The trials deal with the possible consequences of risks that are difficult to identify or foresee because they are invisible. The courts that are faced with these trials encounter great difficulties when they attempt to rule because decision about the validity of knowledge claims can often not be based on available scientific knowledge. Although these new risks require the scientific arena in order to become visible and interpretable as threats, scientists often are not able to establish a causal 435

Arrondissementsrechtbank te Breda (1999). Conclusie van Repliek inzake Rumoldus Adrianus De Leeuw, Wilhelmus Nicolaas Johannus Maria De Leeuw, beide te Drimmelen, eisers, advocaat: Mr. K. Jurriëns, procureur: Mr. Drs. E.C.M.Wagemakers, tegen de Gemeente Drimmelen, te Made, gemeente Drimmelen, het Hoogheemraadschap van West-Brabant te Breda, het Waterschap Land van Nassau, te Zevenbergen, gemeente Moerdijk, gedaagden, procureur: Mr. V.E.W.M. van Wijmen. 06-04-1999. Rolnummer 60826/HAZA 98-1032, pp.12.

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relationship between the initial risk and the consequence. Many risks find their origin in decisions made years earlier and their consequences can be social, economic, political, technical and ecological at the same time. The consequences are often intertwined with societal interests, and a coherent judicial response needs to take into account the level of (economic, social, political, technological) precaution that society can allow itself. The trial of De Leeuw contra the waterboard and the municipality demonstrates that paradoxically, in today’s technologically advanced societies there is an increasing judicial need for scientists to identity new risks and establish conditio sine qua non causality between the risks and their effects. At the same time, however, as discussed in chapter four, these effects are often non-specific and cannot be attributed to one specific cause, because the side effects of the risks are not intrinsic to the technology producing them. An additional problem is that the causes of risks or problems are not directly related to the intended function of the technology. Consequently, the scientific arena is often not able to provide judicial decision makers with relevant and definitive knowledge on these new risks. This complexity accompanying new risks makes a coherent judicial judgment or response very difficult, as the last trial of De Leeuw contra the waterboard and municipality clearly shows.436 The existing judicial strategies or solutions to cope with these new risks and their side effects are not really adequate yet. In chapter four I mentioned that Beck argues that it is unclear what sort of judicial approaches would be capable of coping with the complex issues that result from the new risks, and what judicial approaches would be capable of preventing judicial impasses. The increasing difficulty of scientists to establish distinct causal accounts will make the boundary work of courts, their decisionmaking processes, more complicated. Van Dunné also questions the usability of the existing instruments in strict liability trials when it comes to dealing with the new environmental risks of the 21st century. He argues that these risks are characterised by uncertainty and by the incapacity to determine specific relationships between cause and effect.437 In strict liability trials that deal with new risks scientific consensus increasingly and typically lacks and a causal relationship is almost impossible to establish. Van Dunné proposed a judicial approach to be capa436

For a detailed study of the public use of judicial redress to seek compensation for the failed promises of technology see: Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press. See also: Goncalves, M. E. (1998). Politics and Science in the European Periphery: the management of the BSE risk in Portugal. ISCTE, Lisbon University Portugal. 437 van Dunné, J. M. (2002). Het risicobegrip vanuit het perspectief van het Milieuaansprakelijkheidsrecht. Werkdocumenten W 128. Perspectieven op Milieurisico's. B. Wissink, Bouma, J. Den Haag, Wetenschappelijke Raad voor het Regeringsbeleid (WRR): pp. 103-147.

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ble of coping with this uncertainty and with this incapacity to establish relationships between cause and effect: he proposed to use the concept of alternative causality, a concept that was developed as a result of the difficulties in establishing conditio sine qua non casual relationships between risks and effects in both the judicial as the scientific arenas. This hybrid concept, a law-science concept was developed at the frontier of both the judicial and the scientific arena to deal with the lack of scientific certainty in an increasing number of environmental cases. According to Van Dunné, however, in future trials the concept of alternative causality as a judicial instrument in cases dealing with strict liability is going to be debated, because many lawyers and judges still use the notion of conditio sine qua non: the effect could only have been caused by the specific condition or compound.438 This implies that there should be scientific evidence of a specific relationship between cause and effect. The judge, however, often aids the plaintiffs by attributing the burden of proof to the defendants. It is crucial that judicial approaches are developed to cope with the uncertainty and lacking causal relationships that characterise new risks. After all, as Jasanoff argues, the public typically uses the judicial arena as a last means to maintain control over their environment when they are faced with the fact that the government and the scientific arena, although they should master technological development, are no longer able to cope with the consequences of this technological development.439 As a result, according to several authors, the public uses the judicial arena to allocate responsibility and liability for the consequences of technological and scientific developments.440 De Leeuw’s case can be interpreted as a struggle over the authority of knowledge and expertise in an attempt to obtain ownership and consequently the power to negotiate and distribute responsibility and liability in a way that meets his terms.441 In De Leeuw’s credibility contest he and the 438

van Dunné, J. M. (2002). Het risicobegrip vanuit het perspectief van het Milieuaansprakelijkheidsrecht. Werkdocumenten W 128. Perspectieven op Milieurisico's. B. Wissink, Bouma, J. Den Haag, Wetenschappelijke Raad voor het Regeringsbeleid (WRR): pp. 103-147. 439 For a comprehensive discussion of this argument see: Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. Also see: Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press. And see: Jasanoff, S., Wynne, B. (1998). Science and Decisionmaking. Human Change and Climate Choice. S. Raynor, Malone E.L. Columbus, Ohio, Batelle Press. 1: pp. 1-87. 440 Douglas, M. and A. Wildavsky, Eds. (1983). Risk and culture: an essay on the selection of technical and environmental dangers. Berkeley, University of California Press. And: Douglas, M. (1986). The social preconditions of radical scepticism. Power, action and belief: a new sociology of knowledge? J. Law. London, Routledge & Kegan Paul. Also see: Douglas, M. (1992). Risk and Blame: essays in cultural theory. London, Routledge. 441 Sclove, R. E. (1993). Technological Politics as if Democracy really Mattered? Technology and the future. A. Teich. New York, St. Martion's Press: pp. 223-245.

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opposing party deployed strategies to show interpretative flexibility, the values, biases and social assumptions embedded in the other party’s claim. Bearing in mind that public participation in technological decisions is an important theme in judicial controversies over science and technology, Jasanoff argues that exposing assumptions that underlie claims should be an important judicial step in empowering public criticism and participation.442 De Leeuw’s attempts to negotiate and distribute responsibility and liability, his attempts to deconstruct knowledge claims and his attempts to show the values, biases and assumptions embedded in the knowledge claims of the defendants were, however, not successful. In fact, none of the parties managed to establish new boundaries for responsible behaviour because the court did not want to rule. The court relied so heavily on the scientific arena to establish a causal relationship that it could not rule since that relationship was not established. In that sense both the scientific and the judicial arena failed to assist the public on this issue. This failure is, however, not typical for this particular case, but might occur in any future case that deals with complex and multifactorial risk that is handled by a court that requires a conditio sine qua non causality to be established. The judicial arena works in retrospective and applies rules to concrete cases and develops new rules to meet the demands of possible new similar trials. Therefore, according to Jasanoff, in trials that deal with liability and that lack scientific certainty, the rulings will be reactive instead of proactive. After all, courts cannot initiate actions on their own but have to wait until the public files a claim. In that sense the public will always feel like the judicial arena is not able to cope with the consequences of technological and scientific risks. And the judicial arena will seem incompatible with the political need for pre-empting responses. However, courts can take hypothetical futures into account in the courts rulings. In addition, once the judicial arena accepts new law-science hybrids to deal with consequences of the new risks in civil and administrative court, in turn, decisionmaking in the judicial arena can have an impact on the scientific and political approaches to these new risks. And in that sense the judicial, scientific and political arenas mutually constitute each other and can initialise shifts in the assessment and governance of new risks and their consequences.443 In the judicial arena central to this chapter, De Leeuw and Van Dunné attempted to initialise such a shift when they introduced the alternative con442

Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in Amerika. Cambridge, MA, Harvard University Press. 443 This is also argued by: Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press. And see: Jasanoff, S., Wynne, B. (1998). Science and Decisionmaking. Human Change and Climate Choice. S. Raynor, Malone E.L. Columbus, Ohio, Batelle Press. 1: pp. 1-87.

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cepts of causality and liability. If the court had accepted this new lawscience hybrid, this would have been a decision at the frontiers of established doctrine in civil and administrative court. It would have been a response to new risks that would provide the public and decision makers with a new instrument to deal with issues of liability and responsibility in light of uncertainty. The court refrained from taking any action. The controversy that was central to this thesis led to impasses in all of the arenas in which it figured: the agricultural, watermanagement, political, scientific and lastly the judicial arena. This leads us then to advance some concluding remarks on both controversies and their journey through the agricultural, watermanagement scientific, political and judicial arena.

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6 Conclusion. How to democratise the distribution of risks, responsibility and liability The two controversies that I analysed focused on the different opinions and definitions of what the problem or risk actually was, and whether the water pollution posed a risk at all. The situation in both controversies initially was one of total disagreement. The farmers, government and scientists had a different view on the situation, and it took time and effort to appreciate each other’s definitions of the risks involved. Consequently, agreement was hardly possible. Although the farmers believed that they were able to see the water pollution with the naked eye and with the aid of biological indicators such as frogs and water flees, the government and the scientists believed that the pollution was invisible and that scientific methods were required to make it visible. In addition, the risk of the water pollution, if it existed, and its consequences only became apparent after several years. It was thus difficult for the government and the scientists to assess the risk and to prove a relationship between the water pollution and the health of cattle scientifically. Such scientific evidence of a causal relationship was needed in the political and judicial arenas to decide on issues of responsibility and liability for the water pollution and its consequences. In this thesis I described how the farmers, government and scientists, in search of solutions and satisfactory distributions of responsibility travelled through the agricultural and the watermanagement arena, the scientific arena, and the political arena; and I concluded this book with their struggle in the judicial arena. Each arena allowed for different questions to be asked and the actors deployed different strategies to allocate responsibility and liability. The controversies were concluded differently. I will now first sketch the outcomes of the two controversies in the different arena’s they travelled through. I will continue to discuss the mechanisms that could have been developed in each of the arena’s to cope with the uncertainty that accompanies new risks such as the water pollution and the cattle health problems. After this, I will identify key social and technical learning points that might lead to better strategies to deal with the complex new risks that governments, public and scientists are increasingly confronted with, and conclude with a discussion of my own role as a participant researcher in both controversies.

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6.1 A sketch of the outcomes of the two controversies in the different arena’s they travelled through An important characteristic of both controversies was that no matter to what arena the government, scientists and farmers took the controversy, the issues of responsibility and liability were not solved. And each time the cause for this difficulty in settling these issues of responsibility and liability was that scientific research was unable to establish the necessary conditio sine qua non causality between the water pollution and the cattle’s health problems. Both controversies illustrate the difficulties that face highly developed societies when they are confronted with risks that are multifactorial, invisible to the naked eye, cross physical and time boundaries, and generate very diverse consequences. As both controversies illustrated, when societies are confronted with these ‘new’ risks; issues of trust, credibility, relevancy, responsibility and liability become debated in the various arenas. In addition, when scientists cannot provide the certain knowledge that politicians and courts need to legitimise their decisions about responsibility and liability for the situation at hand, the role of scientists as political and judicial advisers is often publicly debated. The central concern of this thesis is the tension between these new risks on the one hand and the issues of responsibility and liability that accompany the need to master these same risks politically, judicially and scientifically on the other.444 To understand the strategies that are deployed to manage these risks and their consequences, I have analysed the construction and distribution of risks, responsibility and liability in both controversies. The differences between both controversies allowed me to illustrate how different strategies result in different distribution of risks, responsibilities, and liability. I introduced several concepts from the field of Science and Technology Studies to analyse the distribution of responsibility and liability. Not all of these concepts were developed to analyse the distribution of risk, responsibility and liability. In chapter two I broadened the SCOT concept of technical frame to include farming strategies that were central to the agricultural arena. I demonstrated that the actors’ handling of the water pollution and the cattle sickness differed because of the farming strategies they were committed to. I demonstrated that the interpretative flexibility of the risk of water pollution implied different solutions. Every strategy had its own approach, its own risk and its 444

Jasanoff discussed this tension extensively. See for example: Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press. And see: Jasanoff, S., Wynne, B. (1998). Science and Decisionmaking. Human Change and Climate Choice. S. Raynor, Malone E.L. Columbus, Ohio, Batelle Press. 1: pp. 187.

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own solution. After demonstrating the interpretative flexibility of the water pollution, I argued that every risk perspective has its own rationality. The farmers and the government both constructed risks and solutions to these risks that fitted their farming strategies, and I showed how a fierce controversy rose when the government attempted to implement a solution that only fitted her preferred farming strategy: pipeline water. A controversy followed this attempt to implement the pipeline water solution at all farms that experienced problems because of polluted surface water. Some waterboards appreciated the constraining character of the farming strategies, and proposed three alternate solutions to the pipeline water. These waterboards proposed to adapt the water infrastructure, raise the water tables to counter the decay of peat, or flush the polluted waterways frequently to dilute the pollution. These solutions were however as difficult to implement as the pipeline water. The difficulties in implementing the designed solutions in spite of the fact that every actor wanted the situation to be solved could not be explained by referring to material or economic factors alone. In chapter three I showed how a combination of the concepts of embeddedness and obduracy explained this obdurate character of water management. Both concepts explained that technological choices, water- and farm management, bird protection, cultural heritage acts, political and financial practices, all interacted with each other as a system and that these different elements were so interconnected that changing one aspect entailed a change in the whole system. The concepts of embeddedness and obduracy did however, not explain how such a risky predicament could have been created. I used the concept of contextualisation to demonstrate that effects such as the cattle health sickness can be the consequence of a long-term development of the system, sometimes over several centuries. The concept also allowed me to explain that in the course of time, the Beemster polder was contextualised to meet new demands from its users. Not only is the contextualisation of a technology a continuous process, it typically occurs without explicitly reformulating the intended practices and uses of a technology, or in this case of the Beemster polder. In the co-evolution of the polder and its context, new practices, informal uses and new relationships between the polder and the users came into existence. The concepts of obduracy and contextualisation, however, did not allow me to explain why it was not possible to allocate responsibility and liability for the consequences of the water pollution. To analyse this difficulty in allocating blame I needed to couple the concept of contextualisation to approaches that described the characteristics of “new risks” such as their physical and time boundary crossing. I demonstrated that the contextualisation of the polder in itself was not a risk. On the contrary: without the con199

textualisation, the polder would not have functioned at all. However, the slow and invisible contextualisation of the polder not only produced a working polder, but at the same time produced a risky situation that resulted in an even more risky predicament when it turned out that the water management and agricultural practices had become institutionalised and had become embedded, obdurate and fixed in patterns of behaviour. These embedded and obdurate patterns of water and farm management now made it impossible to structurally change the risky situation that had grown. The harmful effects of the continuous contextualisation only showed after centuries, and science could not establish a direct relationship between one cause centuries ago and it’s effects in the 1990’s. Nor was it possible to define who was responsible or liable today because the contextualisation was the result of collective actions of past generations. In chapter four, I illustrated how farmers Van de Geest and Pauw, and local and national governments all had their own theories about the cause and effect of the pollution. The local governments and the farmers both called upon scientific research centres to establish the causal chain of factors leading to the water pollution and the cattle’s health problems. They expected that once the experts had established this relationship, it would facilitate the distribution of responsibility and, accordingly, point to which of the parties should take action. The results did, however, not bring the clarity that had been hoped for, because all had different opinions as to what counted as relevant expertise and relevant (scientific) knowledge. To explain these different opinions and to demonstrate what strategies were used to establish the relevancy of particular knowledge claims, I introduced the concept of boundary work. I demonstrated how the political conditions under which the research was conducted first, emphasised more or less basic research by state-funded knowledge producers, then the political conditions gradually started to emphasise knowledge production by also other kinds of producers. The SWNM farmers managed to shift the boundary between expert and lay knowledge by producing counter expertise and critical knowledge claims. However, this did not mean the farmers managed to break through the monopoly of scientists on certain knowledge. They had to gather scientific knowledge too and thus initially only reaffirmed the monopoly of the scientists. It was only after the instalment of the governmental Action Program that the monopoly of the scientists on certain relevant knowledge was broken. With the concepts of hybrid forums and sub-politics I explained that in this case governments, scientists and public reacted to new risks with the Action Program, an open forum where actors could participate in discussions about the situation and the responsibility for dealing with the consequences 200

of the risk.445 Forums such as the Action Program serve to generate knowledge on relationships between cause and effect that policymakers and courts of law can rely on to decide on issues of responsibility and liability. I demonstrated how the hybrid forum Action Program, because of its acknowledgment that all knowledge was relevant, allowed for a reconstruction of the expert-lay division and for active co-production of relevant knowledge by politics, business and public in order to overcome the impossibility to deliver scientific evidence of a conditio sine qua non relationship between cause and effect.446 I also argued, following Arie Rip, that a hybrid forum like the Action Program is illustrative for a new kind of (additional) democratic control over new risks and their consequences. The action program provided a forum in which farmers, governmental officials and scientists worked together, taking into account different perspectives on the water pollution and the cattle sickness and attempting to distribute responsibilities in a manner fair to all involved.447 However, the events leading to the bankruptcy of farmer Pauw and the fact that his arguments were considered politically irrelevant serve as a lesson that in every kind of democracy, a selection is still taking place of who is allowed to participate. To participate in the Action Program, farmers needed to have conducted the correct actions to get their knowledge claim acknowledged as relevant. In chapter five, I described how the court found itself on new grounds and was not able to rule in the final lawsuit of De Leeuw contra the waterboard and the municipality. The law, as several authors have argued, often is the last means to allocate responsibility for governing these risks and their consequences, particularly when the political and scientific arenas have not been able to decide on the appropriate distribution of responsibility. How445 Arie Rip and others argue that if participatory exercises such as a hybrid forum are organised to facilitate a debate, it can occur that when the participants finally have reached consensus on the situation or problem debated, the debate in the political arena has moved on and then the outcomes of the debate can be outdated and consequently the effects of this organised participatory exercise are limited. Rip has called this problem the intra-mural trap. See: Rip, A., Joly, P.B., Marris, C., (2004). Interactive Technology Assessment in the Real World. The experience of the iTA-vignes project organized for the French INRA. Version 3, 11. Paper submitted for presentation at the 4S/EASST conference, Paris, 25-28 August 2004. 446 Bal, Bijker and Hendriks also argue that an outcome of hybrid forums can be that boundaries are redrawn. See: Bal, R., Bijker, W.E., Hendriks, R. (2002). Paradox van wetenschappelijk gezag. Over de maatschappelijke invloed van adviezen van de Gezondheidsraad, 19852001. Den Haag, Gezondheidsraad. 447 See: Rip, A., Most, F. van der, Smit, W.. (1999). Hybrid Forums. First and incomplete draft of a paper for the BASES meeting, Enschede, 9-11 September 1999. Enschede. Also See: Rip, A., Joly, P.B., Marris, C., (2004). Interactive Technology Assessment in the Real World. The experience of the iTA-vignes project organized for the French INRA. Version 3, 11. Paper submitted for presentation at the 4S/EASST conference, Paris, 25-28 August 2004.

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ever, the trial of De Leeuw contra the waterboard and the municipality demonstrated that the boundary work of courts in dealing with these new risks is made difficult when scientists are not able to establish distinct causal accounts to assist the court.448 Paradoxically, there is an increasing judicial need for scientists to identify new risks and establish conditio sine qua non causality between the risks and their effects. At the same time, however, as Beck argues, these effects are often non-specific and cannot be attributed to one specific cause, because the side effects of the risks are not intrinsic to the technology producing them, and the causes of risks or problems are not directly related to the intended function of the technology.449 This complexity accompanying new risks makes a judicial response very difficult, as the last trial of De Leeuw contra the waterboard and municipality clearly showed. If the court had accepted the new law-science hybrid concept of alternative causality, this would have been a decision at the frontiers of civil and administrative law. It would have been a response to new risks that would provide the public and decision makers with a new instrument to deal with issues of liability and responsibility in light of uncertainty. However, as Van Dunné argues, the courts often still rely on scientifically established conditio sine qua non causality between cause and effect.450 Consequently, next to the agricultural, watermanagement, and scientific arena, the judicial arena also still lacks appropriate mechanisms to deal with the new risks and their consequences. Only the political arena developed new coping mechanisms with the hybrid forum of the Action Program.451 Now that I have briefly sketched the outcomes of the two controversies in the different arena’s they travelled through, I will continue to discuss the mechanisms that could have been developed in each of the arena’s to cope with the uncertainty that accompanies new risks such as the water pollution and cattle health problems. I will identify key social and technical learning

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Douglas, M. and A. Wildavsky, Eds. (1983). Risk and culture: an essay on the selection of technical and environmental dangers. Berkeley, University of California Press. See also: Douglas, M. (1992). Risk and Blame: essays in cultural theory. London, Routledge. And also see: Nelkin, D. (1985). The language of risk. London, Sage. 449 Beck, U. (1992). Risk Society: towards a new modernity. London, Sage. Also see: Beck, U. (1999). World Risk Society. Cambridge, Polity Press. 450 van Dunné, J. M. (2002). Het risicobegrip vanuit het perspectief van het Milieuaansprakelijkheidsrecht. Werkdocumenten W 128. Perspectieven op Milieurisico's. B. Wissink, Bouma, J. Den Haag, Wetenschappelijke Raad voor het Regeringsbeleid (WRR): pp. 103-147. 451 Bal, Bijker and Hendriks argue that coping mechanisms to deal with risks and their consequences are difficult to change because of their embeddedness in the institutional, political and cultural context. See: Bal, R., Bijker, W.E., Hendriks, R. (2002). Paradox van wetenschappelijk gezag. Over de maatschappelijke invloed van adviezen van de Gezondheidsraad, 1985-2001. Den Haag, Gezondheidsraad.

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points that might lead to better strategies to deal with the complex new risks that governments, public and scientists are increasingly confronted with.

6.2 Social learning in risk controversies Controversies about technologies and risks can induce different kinds of learning about, for example, information relevant to decisions, hithertoexcluded actors, or the agenda of issues to be addressed. Learning is reflexive when it refers to the explicit and fundamental thinking about the (normative) implications of science and technology.452 I follow Wynne, who explicitly refers to reflexive learning in risk controversies as learning about the role of the public, scientific knowledge, and the government in controversies dealing with social and technological issues that accompany risks, learning about the normative suppositions that underlie problem and risk definitions, learning about the mechanisms different parties use in attempts to distribute responsibility and liability, and learning about the problems and mechanisms that determine the uptake of scientific and non-scientific knowledge in the political decisionmaking arena.453 Wynne and other authors argue that controversies can generate learning when parties are willing to recognize, articulate and debate the implicit social models, assumptions and commitments tacitly shaping the controversy. Furthermore, social learning processes can inform relevant actors about the social, political, and judicial dimensions of (technological) solutions to problems or risks, so that these actors can then be well-informed participants in decisionmaking processes or through their choices (for example as consumers).454 Both controversies addressed in this thesis reflected the disagreement between farmers, government and scientists over the appropriate role of the government, courts of law and scientists, disagreement over the relevance and involvement of non-scientific experts and non-scientific knowledge, disagreement over the appropriate participation of farmers, and disagreement 452

See: Wynne, B. (1995). Technology Assessment and Reflexive Social Learning. Observations from the Risk Field. In: Managing Technology in Society. A. Rip, Misa, T., Schot, J. London, Pinter: pp. 19-37. Also see: van Lieshout, M., Egyedi, T., Bijker, W.E., Ed. (2001). Social Learning Technologies. The introduction of multimedia in education. Aldershot, Ashgate. 453 For a comprehensive discussion of the need for a reflection on the role of science and technology see also: Radder, H. (1992). "Normative Reflexions on Constructivist Approaches to Science and Technology." Social Studies of Science 22(1992): pp. 141-73. 454 Wynne, B. (1995). Technology Assessment and Reflexive Social Learning. Observations from the Risk Field. In: Managing Technology in Society. A. Rip, Misa, T., Schot, J. London, Pinter: pp. 19-37. And also see: Sclove, R. E. (1996). Citizen-based Technology Assessment. Amherst, USA, The LOKA Institute.

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over the appropriate distribution of the power to decide upon the relevancy of the problem and upon who bore responsibility for the problem and the risks.455 There is no recipe that can be followed to ensure reflexive learning in risk controversies. Every controversy is unique and the contingent result of particular scientific issues, political and institutional context and risk definitions. There is no universal way of learning in risk controversies.456 Nor do I argue that reflexive learning should or can take place in all risk controversies. However, the characteristics of both water pollution controversies addressed in this thesis: the various opposing perspectives and parties, the high level of (scientific) uncertainty, and the impasse that faced the political, scientific and legal arenas could have been turned into moments of (explicit or commissioned) reflexive learning.457 The controversy over the pipeline water solution as the ‘best’ solution might have been prevented if the government and the affiliated scientists had taken into account that different actors had different interpretations of the water pollution and the risk it posed, depending on their particular farming strategy. As a consequence, the government might then have concluded that a universal solution did not exist and that every situation had to be dealt with locally and in close cooperation with the affected farmers to make sure that the solutions would take into account the constraining character of farming strategies. A second lesson that this controversy could have produced is the appreciation that when a technology (such as the Beemster polder) is developed, choices and problems are often trivialised or left unmentioned. Several au455

For a more comprehensive discussion of these tensions see: Nelkin, D. (1992). Science, technology and political conflict. Analyzing the issues. Controversy. Politics of technical Decisions. D. Nelkin. London, Sage: pp. IX-XXV. 456 Bal, Bijker and Hendriks argue that in highly developed technological societies situations of great (scientific) uncertainty are becoming common place, and therefore it is important to cherish scientific institutions that are able to maintain a legitimate and neutral scientific status, particularly in their task of keeping society posted on the most recent scientific findings. See: Bal, R., Bijker, W.E., Hendriks, R. (2002). Paradox van wetenschappelijk gezag. Over de maatschappelijke invloed van adviezen van de Gezondheidsraad, 1985-2001. Den Haag, Gezondheidsraad. 457 Further research should be conducted on the appropriate timing for reflexive learning in different risk controversies, as well as research on which controversies are suited for reflexive learning and whether or not learning should always take place in risk controversies. I use the term explicit reflexive learning following Arie Rip who argues that learning processes in controversies can take place implicitly or in a commissioned way. See: Rip, A., Most, F. van der, Smit, W.. (1999). Hybrid Forums. First and incomplete draft of a paper for the BASES meeting, Enschede, 9-11 September 1999. Enschede. See also: Rip, A., Joly, P.B., Marris, C., (2004). Interactive Technology Assessment in the Real World. The experience of the iTAvignes project organized for the French INRA. Version 3, 11. Paper submitted for presentation at the 4S/EASST conference, Paris, 25-28 August 2004.

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thors in the field of Science and Technology Studies have demonstrated that developments are usually depicted as linear from idea to concept to innovation and that choices and alternative designs are forgotten to make the end product appear as the only logical outcome of the development process.458 Neglecting or trivialising the initial choices and problems does not automatically lead to risky situations. However, hiding or at least not evaluating (technical) problems limits the assessment of possible consequences of contextualisation practices in an integral manner in advance. In case of the Beemster polder, involving all parties that would deal with the polder in some way or another at an early stage might have resulted in a design or in water management solutions that would have taken into account that the Beemster polder was lower than usual, that it needed to be used to cultivate grain and that this would require additional drainage. It is not possible to foresee every consequence of a change and even an early involvement of all parties might not have prevented the risky predicament the Beemster farmers and watermanagers found themselves in, in 1996. After all, the contextualisation was necessary to make the polder function. However, involvement of all possible relevant actors in an early stage in a reflexive debate about the function, use and possible consequences of the Beemster polder might have prevented the lack of communication about and coordination of the necessary contextualisation, and might have contributed to an easier allocation of responsibility and liability when the problems emerged. In the overflow controversy, the court's role was to provide answers on issues of responsibility and liability for the water pollution, but refrained from ruling. The court would have been able to take a decision on the issues of responsibility and liability if it had not relied so heavily on scientific conditio sine qua non relationship between cause and effect. As mentioned in chapter five, at present the courts are confronted with an increasing number of controversies over the responsibility and liability for risks. And in these cases scientific certain and uncontested knowledge is often lacking, and disagreement among experts is more likely than not.459 As the trial of De Leeuw showed, knowledge claims about new risks and their consequences are often still contested by the time they are brought to court. The third lesson that the controversies might have produced is the realisation that courts of law could greatly benefit from contextualised or practical knowledge to assess a claim to causation. For this subjective and practical knowledge to become relevant judicial evidence, however, the court needs to appreciate that non-scientific knowledge and expertise can be 458

See for example: Rip, A., Misa, T., Schot, J. (1995) Managing Technology in Society. London, Pinter. 459 Jasanoff, S., Ed. (1994). Learning from disaster. Risk management after Bhopal. Philadelphia, University of Pennsylvania Press.

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equally relevant and credible as scientific expertise and knowledge. As Jasanoff has argued and as became apparent in the trials of De Leeuw as well, (judicially relevant) knowledge is always interest-laden, and the choice between the evidence brought forward by opposing parties involves normative and political judgements. The concept of alternative causality acknowledges the relevancy of non-scientific knowledge claims. However, for the courts of law to acknowledge that non-scientific experts and knowledge can be equally relevant to the situation at hand, the judicial arena first needs to reflect on its own conceptions of science and expertise, and needs to reflect on the judicial categories ‘causation’ and ‘relevant evidence’. 460 Michael Schwartz and Richard Sclove have argued that a central dilemma of our time arises from the need to reconcile democratic processes with the political decision-makers’ preference for scientific expertise as the only valid expertise to base decisions on with respect to the allocation of responsibility.461 The water controversy cases demonstrate that a dilemma also arises from the need to reconcile democratic distribution of responsibility and liability with judicial decision-makers preference for scientific evidence. This political and judicial reliance on scientific expertise will increasingly create an impasse when the scientific arena is not able to provide evidence of a relationship between cause and effect. In addition, as Les Levidow argues, relying on scientific experts to identify, measure and manage risks can lead to a situation in which only one definition of risk is deemed valid: a scientific one (even when there is no consensus within the scientific arena on the correct definition).462 Levidow argues that by deferring to scientific expertise as the only kind of expertise that is able to identify whether or not there is a risk, the public finds itself passively ‘exposed’ to potential harm, which lies beyond its control because only scientists know how to manage these risks.463 Dave Elliot, however, argues that the public confidence in the legitimacy of scientific “truth” 460

Jasanoff also argued this: Jasanoff, S. (1995). Science at the bar. Law, Science and Technology in America. Cambridge, MA, Harvard University Press. Also see: van Dunné J. M. (2002). Het risicobegrip vanuit het perspectief van het Milieuaansprakelijkheidsrecht. Werkdocumenten W 128. Perspectieven op Milieurisico's. B. Wissink, Bouma, J. Den Haag, Wetenschappelijke Raad voor het Regeringsbeleid (WRR): pp. 103-147. 461 Schwarz, M. (1992). Technology and Society: Dilemmas of the Technological Culture. Third European Congress on Technology Assessment, "Technology and Democracy", Copenhagen. And: Schwarz, M. (1993). The technological culture: challenges for technology assessment and policy." Science and Public Policy 20(6): 381-388. And also see: Sclove, R. E. (1996). Citizen-based Technology Assessment. Amherst, USA, The LOKA Institute. 462 Levidow, L. (1994). "De-reifying Risk." Ibid. 4(3): pp. 440-456. Sclove, R. E. (1996). Citizen-based Technology Assessment. Amherst, USA, The LOKA Institute. 463 Levidow, L. (1994). "De-reifying Risk." Ibid. 4(3): pp. 440-456. Sclove, R. E. (1996). Citizen-based Technology Assessment. Amherst, USA, The LOKA Institute.

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claims and the accompanying decisions made by policy-makers can be increasingly eroded when scientists are not able to provide evidence of a relationship between cause and effect. Dave Elliot, however, has a rather positive view on the erosion of the legitimacy of scientific “truth” claims and the accompanying political decisions. Countering scientific claims is no easy matter. Both controversies showed that it is not easy for the ‘lay’ public to counteract the ‘truth’ claim of scientific experts, even when the legitimacy of the scientists is eroded.464 Often the ‘lay’ public still needs to contract scientific institutes to counter the claims of scientific institutes that are contracted by the government because policy-makers and many other parties only accept scientific knowledge claims. The political and scientific interests in risk issues can thus also contribute to the re-establishment of the legitimacy of scientific knowledge claims. To summarise, both controversies addressed in this thesis involved many parties, knew a high level of (scientific) uncertainty, and faced an impasse in many arenas. Explicit reflexive learning and debate in an early stage might have resolved or at least diminished the controversy and the impasse, particularly because all perspectives would have been heard and allowed to work together in the creation of suitable solutions for all. This learning was partly orchestrated by means of the instalment of the Action Program, a hybrid forum where a variety of perspectives, stakeholders and expertise were consulted in order to achieve a common frame of the situation and the risks and how to deal with the accompanying issues of responsibility and liability This forum and its outcomes broadened the (political) decisionmaking process.

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Dave Elliot argues that the reliance of policy makers and courts of law on scientific expertise will remain efficient and effective as long as the legitimacy of the public authority is not questioned. As soon as trust and confidence in public authority is eroded, new patterns of risk governance are needed. Consequently new risk governance mechanisms should be viewed as reactions to perceived loss of power by the authorities rather than a bold move to more participatory democratic decisionmaking processes. See: Elliot, D. (2001). "Risk governance: is consensus a con?" Science as Culture 10(2). For an example of the decreasing credibility of science and the emergence of a new reflexive public see: Goncalves, M. E. (1995). "Scientific expertise and European Community regulatory processes." Science and Public Policy 22(3): pp. 183-187. See also: Goncalves, M. E. (1998). Politics and Science in the European Periphery: the management of the BSE risk in Portugal. ISCTE, Lisbon University Portugal. And: Goncalves, M. E. (2000). "The importance of being European: the science and politics of BSE in Portugal." Science Technology & Human Values 24(4): pp. 417-448.

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6.3 Do risks controversies reflect the need for more participatory democratic decisionmaking processes? The power to identify risks and the power to decide how to act upon these risks often lies with scientific experts. Consequently, the discussion about the risks often is too technical or too scientific for laypersons to participate fruitfully. As a consequence, the public can turn into an uninterested citizenry because it does not feel as if it has the power to change things or participate in decisionmaking processes and discussions. And if the public does not have the power to identify risks and the power to decide how to act upon these risks, it will usually not wish to take responsibility for these risks.465 These issues of power to identify risks and possibility to participate in decisionmaking processes were centre stage in both controversies. Both controversies showed that citizens, or in this case farmers, can become interested partners in decisionmaking processes. In addition the controversies showed that the farmers also wanted to take responsibility for the water pollution and related issues, but only if they were allowed to participate in the decisionmaking process. The dilemma for the farmers, in both controversies was however that they first needed to accept the legitimacy of the scientific practice. The farmers secondly had to construct scientific knowledge claims before they could successfully argue that their non-scientific knowledge claims were relevant too. And the farmers finally needed to acknowledge the legitimacy of scientific knowledge claims before they could participate in decisionmaking processes on how to handle the consequences of the risks.466 As discussed in an earlier section, the early and democratic participation of the farmers in decisionmaking processes could have prevented many time-consuming disputes, because the decisions might have been socially more robust and less prone to disagreements.467 Although a pure democratic participation in the sense that as many different individuals, groups and (in465

For a more elaborate discussion of the relationship between the interest and feeling of responsibility of a citizenry and the power to decide on how to govern risks, see: Levidow, L. (1994). "De-reifying Risk." Ibid. 4(3): pp. 440-456. And see: Sclove, R. E. (1996). Citizenbased Technology Assessment. Amherst, USA, The LOKA Institute. 466 For a comprehensive discussion on issues of expertise and participation of AIDS activists in the AIDS discussion, see: Epstein, S., (1996). Impure Science; AIDS, activism, and the politics of knowledge. University of California Press USA. 467 For a discussion of the relationship between socially robust decisions and participation of various perspectives and stakeholders in decisionmaking processes see: Rip, A., Most, F. van der, Smit, W.. (1999). Hybrid Forums. First and incomplete draft of a paper for the BASES meeting, Enschede, 9-11 September 1999. Enschede. See also: Rip, A., Joly, P.B., Marris, C., (2004). Interactive Technology Assessment in the Real World. The experience of the iTAvignes project organized for the French INRA. Version 3, 11. Paper submitted for presentation at the 4S/EASST conference, Paris, 25-28 August 2004.

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dividual) perspectives would have more or less equal power to decide on matters of responsibility is not feasible; a democratic participation in the sense that as many different individuals, groups and (individual) perspectives would be acknowledged as relevant and would at least be represented and heard in the decisionmaking process in an early stage would have prevented the costly and time consuming controversy between farmers and the government.468 Democratising expertise is hence not about the majority of expert opinions, but rather about guaranteeing the participation and the representation of all relevant views on a situation, and not only the majority views.469 Bal, Bijker and Hendriks argue that participation should be accompanied with the possibility to influence the outcome of a debate. However, as they also argue, if the participants have influence on the outcome of a debate, and on the deployment of the technology or solution that is discussed, a dilemma arises since these participants have not been chosen in a democratic (representative) way. How much influence should the different participants have, and on what bases do they have legitimacy to participate? 470 In the Action Program participation was limited to those actors that could contribute to the discussion and were in some way affected by the water pollution or its consequences. The special focus in the Action Program on the participation of informed citizens and the common ambition to solve the problems accompanying the water pollution corresponds with recommendations formulated by Rein de Wilde and Mirko Reithler in a recent analysis of the British discussion on GMOs and the Farm Scale Evaluations.471 De Wilde and Reithler argue that in debates on possible future effects of science and technology, science is not able to fill all the knowledge gaps, particularly because of the inherent un468

With this definition of democratic process I follow the definition of democratisation as discussed by Wynne: Wynne, B. (1995). Technology Assessment and Reflexive Social Learning. Observations from the Risk Field. In: Managing Technology in Society. A. Rip, Misa, T., Schot, J. London, Pinter: pp. 19-37. 469 Alan Irwin argues that the relationship between science and democracy should not be about the search for universal solutions, but rather the development of an open and critical discussion between researchers, policy makers and citizens. See: Irwin, A. (2001). "Constructing the scientific citizen: science and democracy in the biosciences." Public Understanding of Science 10: pp. 1-18. For an elaborate discussion of the democratisation of expertise see: Bijker, W.E. (1997) Demokratisierung der Technik-Wer sind die Experten? Aufstand der Laien. Expertentum und Demokratie in der Technisierten Welt. M. Kerner. Aachen, Thouet verlag: 133-155. 470 See: Bal, R., Bijker, W.E., Hendriks, R. (2002). Paradox van wetenschappelijk gezag. Over de maatschappelijke invloed van adviezen van de Gezondheidsraad, 1985-2001. Den Haag, Gezondheidsraad. 471 De Wilde, R., Reithler, M., (2004). Post-normale wetenschap in actie. De rol van veldonderzoek in het Britse debat over genetisch gemodificeerde gewasteelt. Exploratory paper written in the NWO Ethiek, Onderzoek en Bestuur Framework.

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certainties and the normative and ethical issues that accompany these debates. For these kinds of debate they propose to adopt a practice that is aimed at problem solving and was developed by Funtowicz and Ravetz: post-normal science.472 This post-normal science is complementary to applied science and to professional consultancy. The participation and representation of knowledge of those that might be affected by the consequences of the science and technology that is discussed, an extended peer-review, should be guaranteed in this post-normal scientific practice. And the power to ascertain the quality of scientific assessments of the situation at hand should be equitably shared among these participants. De Wilde and Reithler argue that an additional aspect is of relevance for the success of post-normal science. In most controversies the participants have different goals, aim for different solutions and consequently have different opinions and argue differently. Therefore it is important to conduct post-normal scientific debates more constructively, i.e. the debate should start from a common goal, common ambitions and from a shared feeling of responsibility for the quality of the debate.473 The special focus on the participation of informed citizens in the Action Program also corresponds with recommendations that were formulated in a white paper on governance that the European Commission published in 2001. In this paper the European Commission explicitly expressed the need for more openness with respect to the development of and use of expertise and the need for greater opportunity for informed participation by the public in policy-making. To accomplish this informed citizens’ participation it was proposed to improve the attendance by the public and by stakeholders at meetings where expert advice was developed and transmitted. More openness in processes of reaching political decisions and more openness with respect to the expert evidence on which the decisions were based was a second objective mentioned in this white paper. Furthermore emphasis was placed on the promotion of participatory procedures and on the establishment of intermediary platforms that could function as interfaces between experts, 472

De Wilde and Reithler base their discussion of post-normal science and extended peerreview on: Funtowitcz, S. O., Ravetz, J. R. (1993). The emergence of Post-Normal Science. Schomberg, R. Von (ed.) (1993). Science, Politics and Morality. Scientific Uncertainty and Decision Making. Dordrecht: Kluwer Academic Publishers. 473 Although the proposal of de Wilde and Reithler answers some of the questions on how to guarantee a more democratic or constructivist participation, one issue is not tackled. Controversies evolve over time, and new actors often emerge and old actors disappear or change. Consequently, a commonly formulated ambition or goal can change over time too. In addition, a debate on future effects of science and technology is most fruitful when it is ‘reopened’ periodically to ascertain the (new) knowledge gaps and to establish what has been learned about the consequences of the science or technology that is debated. Consequently, new knowledge might also change the prior goals and ambitions.

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policy-makers and the public.474 The Action Program did put the recommendations of the white paper on governance of the European Commission to practice. The Action Program aimed at delivering knowledge for risk governance that incorporated diverse pluralistic forms of knowledge. But to enable this kind of democratic participation of the public and its non-scientific knowledge, the growing importance of scientific expertise must be replaced by a successful integration of new expert-lay divisions. Political and judicial decision makers need to appreciate that all knowledge claims are interest-laden and that contextualised solutions and practical knowledge can present relevant perspectives on how to manage a risk or even how to identify a risk. When these other kinds of knowledge and other perspectives on risk and risk governance are included into decisionmaking processes about risk related matters, decisions could become better informed and more widely accepted, socially more robust.475 The Action Program demonstrates that including other kinds of knowledge on risk and risk governance did lead to decisions that were better informed and more widely accepted. As discussed in chapter four, the Action Program is a site where learning took place about the rationality and legitimacy of knowledge claims and it is a site where non-scientific knowledge gained credibility and relevance in solving the complex issues accompanying the water pollution and cattle sickness in a democratic way.476 This democra474

Working Group "Democratising expertise and establishing scientific reference systems" (2001). White paper on governance. Work area 1. Broadening and enriching the public debate on European matters, European Commission. 475 The European Commission is increasingly acknowledging the relevancy of citizen’s knowledge about risk related matters and is widely consulting by making use of ‘Green papers’ and by means of the Internet. See: Working Group "Democratising expertise and establishing scientific reference systems" (2001). White paper on governance. Work area 1. Broadening and enriching the public debate on European matters, European Commission. 476 In the 2000 TrustNet report on new ways of risk governance aimed at overcoming the distrust of citizens and stakeholders, it is mentioned that new approaches, the mutual trust paradigm to risk governance, should be based on trust in different kinds of knowledge, and that decisionmaking processes to handle risks and their consequences should be decentralised as much as possible to the relevant local context. The Action Program however, seems to lead to a different risk governance. In the Action program decisionmaking is still centralised, but relevant local contexts and knowledge are asked to become part of the central decisionmaking organ. See: EURATOM European Commission (2000). The TRUSTNET Framework: A new perspective on risk governance. F14P-CT96-0063. Brussels, European Commission Nuclear Science and Technology Directorate-General for Research: pp. 45. Bal, Bijker and Hendriks argue that the TrustNet report still uses a neat distinction between scientific and non-scientific kinds of knowledge and does not problematise the constructed nature of that boundary. Certified experts determine if knowledge is scientific. Another critical remark made by Bal, Bijker and Hendriks is that the TrustNet committee based it findings on case studies that resulted in the deployment of the debated technologies. As such, the faulty impression might rise that consultation of different stakeholders will always lead to the successful deployment of the

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tising of the distribution of risk, responsibility and liability might however occur only in situations of uncertainty and lacking scientific evidence.477 By acknowledging in an early stage of the controversies, that different actors had equally relevant but different interpretations of the water pollution and the risk it posed, the government would have stimulated the early participation of the farmers in a democratic process of control over the water pollution problem. The process of constructing relevant knowledge was radically broadened, but only after many years and only in the overflow controversy, and only in reaction to the scientific and political impasse that faced the actors. An explicit (perhaps even commissioned) reflexive learning could insure that an attempt is made to identify as many of the normative suppositions that underlie problem and risk definitions so that they can be taken into account to avoid a judicial, political or social solution that fits only one specific practice and or group and hampers others, as the pipeline water solution did. Intermediary (hybrid) forums like the Action plan can have great influence on the democratising of expertise and risk governance, if they produce knowledge for decisionmaking processes on risk governance that incorporates diverse relevant perspectives and diverse relevant forms of knowledge, and that acknowledge the implicit suppositions that underlie diverse perspectives. Still, even in intermediary (hybrid) forums that incorporate diverse perspectives and diverse forms of knowledge, parties have to be successful in their boundary work to get their knowledge-claim or their expertise acknowledged as relevant. As a result only ‘relevant’ actors and ‘relevant’ forms of knowledge are included in these forums. In addition these forums are erected only after a controversy has been playing for a long time and diverse parties have rejected proposed solutions.478 There is however, yet another kind of intermediary that can contribute to the process of democratisation. I would like to conclude this final chapter by discussing my own role as a STS researcher in functioning as a hybrid partechnology that is discussed. See: Bal, R., Bijker, W.E., Hendriks, R. (2002). Paradox van wetenschappelijk gezag. Over de maatschappelijke invloed van adviezen van de Gezondheidsraad, 1985-2001. Den Haag, Gezondheidsraad. 477 In a public discussion on risk governance in the Netherlands, Josée van Eijndhoven, former Director of the Dutch Rathenau Institute for Technology Assessment, argued that the view of a wide public is typically only solicited in situations of uncertainty. See: van Eijndhoven, J. (2000). Public consultation: about knowledge and democracy. Ways to consult the public. Paper presented at the British Council Amsterdam lecture, 10-10-2000. 478 There is no recipe that can be followed to ensure the success of hybrid forums in risk controversies. Every controversy is unique and the result of the particular scientific issues, political and institutional context and risk definitions and there is no universal recipe that guarantees the success of both the process in hybrid forums and the outcome of the discussion in the forum.

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ticipant in both controversies, and in furthering the democratisation of expertise and governance.

6.4 My role as an STS researcher in the controversies In 2001 I agreed to be contracted by the SWNM to contribute to a report in which the SWNM farmers’ specific practical knowledge claims would be translated into scientifically and politically relevant knowledge claims.479 The SWNM farmers believed I would be a good intermediary between the farmers and the government because I understood both the knowledge claims of the farmers and those of the government. But more importantly, they believed I could translate their knowledge into a policy-making document, taking into account the scientific and political knowledge claims. The farmers asked me to take up this intermediary role because I had shown that I did not take one group or one individual’s definition of the situation at hand as the only true one, but was concerned with describing all definitions of the situation as possibly equally relevant. I focused on the suppositions that underlied the different perspectives and I focused on the choices and reasons that the different parties had for attempting to allocate responsibility and liability for the water pollution or the cattle’s health problems in a specific way. In doing so, I analysed how all definitions were constructed, and the result of the government’s, the farmers’ or the scientists’ interests, assumptions and commitments. The farmers hoped that with the knowledge on the underlying suppositions, I would be able to demonstrate that the consequences of overflow pollution could only be apprehended within their local context and that the farming strategies had a constraining effect on what was deemed the best solution. In my section of the report I argued indeed that there could not be a universal solution and that the farmers’ knowledge should be incorporated in decisionmaking processes on how to handle the risk of water pollution and its consequences. The SWNM farmers increasingly and explicitly started to point at the interest-laden character of all knowledge claims, and this strategy facilitated their participation in decisionmaking processes and also legitimated their request for a local and context-dependent approach and solution of the problems that accompanied the water pollution. 479

The ID-DLO participated as project leader in this project. The group consisted of the University of Maastricht, the University of Wageningen and the societal research agency Digitalis. The main aim of this project was to highlight how the overflow pollution was affecting the farmers on a financial, technical, political and socio-cultural level. See: van Asseldonk, M. A. P. M., Mourik, R.M., Huirne, R.B.M., Meijer, G.A.L. (2001). Verantwoord boeren versus verantwoord lozen. Wageningen, ID-Lelystad: pp. 11-24.

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By accepting the SWNM farmers’ request to translate their knowledge claims I became a one-woman hybrid forum, where all different knowledge claims were acknowledged as equally relevant and where these claims could meet and interact. However, to be able to take up this role of intermediary or one-woman hybrid forum, it was necessary for me to shift from observing to participating in the controversy. The difficulty with this shift was that it might compromise my distanced stance. I did not want to take the side of individual actors or more specifically, take the side of the underdog in these controversies. Woodhouse and others recently proposed the strategy of taking sides with the underdog as a solution to the normative deficit of Science and Technology Studies.480 However, I argue that this one-sided strategy will stand in the way of achieving political and scientific acknowledgment that non-scientific knowledge and expertise can contribute valuably to decisionmaking processes on how to handle risks and their consequences. If I would have chosen for the one-sided strategy, most likely only the actors that I sided with would consider my claim that all kinds of knowledge and expertise can be relevant a legitimate claim. I also refrained from following the strategy recently proposed by Collins and Evans.481 They argue that sociologists of knowledge and expertise should be willing to define categories of knowledge and define the conditions under which specific forms of knowledge and expertise should be allowed to participate in controversies. Sociologists of science could make prescriptive rather than descriptive statements about the role of scientific and non-scientific knowledge and expertise in controversies. 482 480

Woodhouse, E., Hess, D., Breyman, S., Martin, B. (2002). "Science Studies and Activism: Possibilities and problems for Reconstructivist Agendas." Social Studies of Science 32: pp. 297-319. 481 For an explanation of this strategy see: Collins, H.M., Evans, R. (2002). The Third Wave of Science Studies: Studies of Expertise and Experience. Social Studies of Science, 32,2, pp.235-296. 482 Jasanoff comments on Collins’ and Evans’ proposal to make prescriptive instead of descriptive statements about the role of expertise in controversies. She argues that this proposal is reductionist and unreflexive because it does not take into account that first, expertise is constructed and deployed within specific historical, political and cultural contexts. Secondly, Jasanoff argues that expertise is contingent on specific institutional contexts that vary between nations. And lastly Jasanoff argues that what credible expertise is, varies depending on the criteria by which a society evaluates the legitimacy and credibility of knowledge claims. Consequently Jasanoff argues that participation should serve as a means to make decisionmaking processes in democratic societies as public as possible, secondly participation should ensure the testing and contesting of the framing of issues for which experts have been asked to provide solutions. Lastly, Jasanoff argues that participation should prevent the unjust and unfounded ways of looking at the world by powerful institutions. See: Jasanoff, S,. (2003). Breaking the Waves in Science Studies: Comments on H.M. Collins and Robert evans, ‘The

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Instead of choosing the strategy of taking sides (in particular of the underdog), or the strategy of identifying which knowledge and expertise should be allowed to participate in decisionmaking processes, I chose a different approach. I was not participating in order to find out who was right and who was wrong, to find out which expertise was legitimate and should be allowed to participate. Nor was it my aim to find out whether or not there was a scientific causal relationship between the water pollution and the cattle sickness. My aim was to achieve the political and scientific acknowledgement that all risk definitions in the controversies were constructed, and the result of the government’s, the farmers’ or the scientists’ interests, assumptions and commitments. In addition, I wanted to facilitate the participation of all perspectives and stakeholders in the decisionmaking processes to ensure the creation of local and context-dependent approaches of and solutions for the problems that accompanied the water pollution. To achieve this aim, my strategy was to identify all perspectives and to acknowledge all the claims as relevant. By doing so I prevented my texts and my expertise to be used to favour particular perspectives. That is how I could be politically and normatively involved and yet be considered neutral by the other parties. I could, however, not prevent the use of my texts to suit particular needs. When the government decided to follow many recommendations that were formulated in the report, consequently all knowledge claims were acknowledged as politically relevant, and several farmers were allowed to participate in the decisionmaking process on how to control the risks of water pollution and how to manage the consequences of the pollution. In 2002, in line with the recommendations that we formulated in our report, an agreement was reached concerning compensation for the consequences of the pollution.483 Involved parties took equal responsibility for the Third Wave of Science Studies’. Social Studies of Science, 33,3, pp.389-400. For more criticism of Collins’ and Evans’ proposal see: Wynne, B. (2003). Seasick on the Third Wave? Subverting the Hegemony of Propositionalism: Response to Collins & Evans (2002). Social Studies of Science,33,3, pp. 401-417. See also: Rip, A., (2003). Constructing Expertise: In a Third Wave of Science Studies?. Social Studies of Science,33,3, pp.419-434. And finally see Collins’ and Evans’ response: Collins, H.M., Evans, R., (2003). King Canute Meets the Beach Boys: responses to the Third Wave. Social Studies of Science, 33,3, pp. 435-452. For a detailed discussion on the neutrality and involvement of STS researchers in controversies also see: Radder, H. (1992). "Normative Reflexions on Constructivist Approaches to Science and Technology." Social Studies of Science 22 (1992): pp. 141-73. See also Blume, S. (2000). "Land of hope and glory: exploring cochlear implantation in the Netherlands." Science, Technology &Human Values 25(2): pp. 139-166. 483 Tweede Kamer der Staten-Generaal (2002). Riooloverstorten. TK 71. Den Haag: TK 714608-4610. And: Tweede Kamer der Staten-Generaal (vergaderjaar 2001-2002). Aanpak Riooloverstorten. Den Haag. 25890. Den Haag.

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risk and its effects. Practically this resulted in an equal division of costs, and the farmers, government and waterboards agreed to pay for one-third of the consequences each.484 Today (2004), however, only a few farmers received compensation for damages suffered. In this specific controversy, although I managed to keep the appearance of being a neutral participant, my constructivist approach and analysis did intervene in the process of deciding which risk definition was relevant, and what solutions was best. Intervention is not necessarily the most fruitful approach of Science and Technology Studies researchers in risk controversies. Merely observing the controversy without participating can also be the best strategy. The choice is contingent on the specific characteristics of the controversy that is addressed, and the (normative or political) aim of the researcher. My agenda aimed to reach political and scientific acknowledgement of the need for a context-dependent solution for the problem. In addition, I aimed to reach acknowledgement of the need for broad participation of all relevant actors in the decisionmaking on how to distribute the responsibility and liability for the water pollution and cattle sickness. My participation was possible because there was no scientific consensus on whether or not the water did indeed kill the cows, and because the actors could not reach an agreement on what was actually the risk, which party was responsible to solve the situation and who was liable to pay for the damages suffered. Because of the scientific, political, and judicial uncertainties that accompanied the controversies, I was able to intervene with a section in a report that argued that all relevant actors should partake in deciding if water killed the cows, which party was responsible, and who was liable.

484

Unfortunately, of the 60 cases where the division of costs was agreed upon, in 2004 only some twenty farmers received financial compensation. The waterboards and municipalities continue to argue that there is insufficient scientific proof of a relationship.

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Glossary 12 provinciale Milieufederaties: the 12 Provincial Societies for Environment Afdeling: department Algemene Inspectie Dienst: the General Inspection Service of the Ministry of Agriculture, Nature Management and Fisheries Afdeling voor de Geschillen van Bestuur van de Raad van State: the department for the settlement of civil matters of the Council of State Afdeling Rechtspraak van de Raad van State: the sentencing department of the Council of State ANWB: the Royal Dutch Touring Club Arrondissementsrechtbank: the civil county court Ouwerkerk commissie: the Ouwerkerk interdepartmental working party, chaired by H. Ouwerkerk, was assigned to investigate the Pauw case and to formulate recommendations. The Ministry of Agriculture and the Ministry of Watermanagement created this working party in 1997. Consumentenbond: the National Consumers Organisation Coördinatiecommissie Uitvoering Wet Verontreiniging Oppervlaktewateren (CUWVO): the official deliberation platform for policymaking and development in the field of integral water management Dierenartsenpraktijk VEO: Pauw’s initial veterinary practice Gedeputeerde Staten: The Provincial Executive Gemeente: municipality Gezondheidsdienst voor Dieren: the National Animal Health Service. The Gezondheidsdienst voor Dieren is the animal health and quality control organisation for Dutch livestock farmers, veterinarians and livestock industry and is a valuable centre both for farmers with cattle problems, and for governmental agencies dealing with animal health issues Hoge Raad: the Dutch Supreme Court Hoogheemraadschap van Uitwaterende Sluizen in Hollands Noorderkwartier: the waterboard responsible for watermanagement issues in a section in the north of the Netherlands Instituut voor Dierhouderij en Diergezondheid- Dienst Landbouwkundig Onderzoek (ID-DLO): the semi-governmental Institute for Animal Science and Health. Later turned into ID-Lelystad Informatie en Kennis Centrum (IKC): the National Information and Knowledge Centre for Agriculture IWACO: the Dutch consultancy firm for water and environment 239

Landbouwschap: The Landbouwschap, dissolved in 1997, was the governmental interest manager for agriculture and livestock breeding in the Netherlands. The Land en Tuinbouw Organisatie (LTO), the national non-governmental organisation for agriculture and horticulture, has taken over most of the responsibilities of the Landbouwschap and now has departments in several regions of the Netherlands. Land en Tuinbouw Organisatie: the national non-governmental organisation for agriculture and horticulture, The Land en Tuinbouw Organisatie has departments in several regions of the Netherlands. Ministerie van Landbouw Natuurbeheer en Visserij (LNV): the Ministry of Agriculture, Nature Management and Fisheries Ministerie van Verkeer en Waterstaat (V&W): the Ministry of Transport, Public Works and Watermanagement. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieu (VROM): Ministry of Housing, Spatial Planning and the Environment Nationale Werkgroep Riolering en Waterkwaliteit (NWRW): the governmental working group for sewage and waterquality. This Werkgroep Riolering en Waterkwaliteit was established by the Stichting Toegepast Onderzoek Reiniging Afvalwater, the foundation for applied research on the treatment of wastewater and by the Ministry of Housing, Spatial Planning and the Environment. Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP): the Dutch research institute for Environment, Energy and Process Innovation Nederlandse Vereniging tot Bescherming van Dieren: the Royal Society for the Prevention of Cruelty to Animals Nederlandse Vereniging van Sportvissersfederaties: the Royal Society for Amateur Fishing Federations Nederlandse Zuivelorganisatie (NZO): the Dutch Union for Dairy Production Raad van State: Council of State Raad van State, Afdeling voor de Geschillen van Bestuur: the department for the settlement of administrative matters of the Council of State Raad van State, Afdeling Rechtspraak: the civil sentencing department of the Council of State Raad voor Journalistiek: the National Board for Journalism Rijksinstituut voor Integraal Zoetwaterbeheer en Afvalwaterbehandeling (RIZA): the institute for inland water management and wastewater treatment. Directorate-General for public works and watermanagement of the Ministry of Transport, Public Works and Watermanagement. 240

Rijksinstituut voor Volksgezondheid en Milieu (RIVM): the National Institute of Public Health and the Environment Rijkswaterstaat: the separate governmental central bureau of water that manages all the Waterschappen and Hoogheemraadschappen (waterboards) Rijksdienst voor de Keuring van Vee en Vlees (RVV): the National Inspection Service for Livestock and Meat Socialistische Partij (SP): The Dutch Socialist Party (SP) Stichting Meldpunten Netwerk Gezondheid en Milieu: the Monitoring Network Health and Environment Stichting Natuur en Milieu (SNM): the Netherlands Society for Nature and Environment, an independent environmental organisation Stichting voor Wetenschappelijk Natuur en Milieubeleid (SWNM): a non-profit organisation for scientific nature and environmental policy, erected by several farmers that experienced the consequences of overflow water pollution. Transport mesthandel en verspreiding Firma Overdevest: Pauw’s manure buyer Tweede Kamer der Staten-Generaal: the lower house Unie van Waterschappen: National association of waterboards Veterinaire Inspectie: the governmental department for veterinary health inspection, later turned into Inspectie Gezondheidsbescherming, Waren en Veterinaire Zaken Veevoeding Adviesburo VAB: the consultancy firm that researched Pauw’s feeding and minerals management Waterschap: regional and or local waterboard erected to manage the technologies that safeguard land from inundation and other water related issues. Werkgroep Meijer: The Meijer working party, chaired by Theo Meijer. This working party had to make an inventory of the overflow problem in the Netherlands and had to resolve the issue of who was responsible for the related water pollution. The Ministry of Agriculture and the Ministry of Watermanagement created this working party in 1997. Wet Verontreiniging Oppervlaktewateren: the Netherlands Surface Water Pollution Act Zuivelonderneming De Vijfheerenlanden: Pauw’s milk company Zuiveringsschap: purification plant

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List of interviewees Anonymous caretaker of the purification plant of the municipality Opsterland “Rioolzuiveringsinstallatie Gemeente Opsterland”, 06-03-1998 Drs. H. Bartels, employee of the Veterinaire Inspectie: the governmental department for veterinary health inspection, later turned into Inspectie Gezondheidsbescherming, Waren en Veterinaire Zaken, 28-10-1999 Ir. J.W. Bloemkolk, employee of the Ministry of Transport, Public Works and Watermanagement, 11-02-1998 telephone conversation, 2702-1998 recorded interview,10-06-1999 written correspondence. S. Bosma, dairy farmer, 12-11-2001 K. Calis, dairy farmer, 06-03-1998, 10-08-2001 Dr. G. Counotte, researcher at the Gezondheidsdienst voor Dieren (GD), the animal health and quality control organisation for Dutch livestock farmers, veterinarians and livestock industry, 30-01-1998, 13-021998, written correspondence, 21-06-1999. Email correspondence 0308-2004 and 05-08-2004. R. de Leeuw, dairy farmer, 13-11-2001 J. Dik, secretary of Stichting Beemster Werelderfgoed, the non profit organisation that aimed at a listing on the Unesco’s Cultural heritage list for the Beemster polder, 11-10-2000 H. Drenth, dairy farmer 06-03-1998, 10-08-2001 H. Ghijssels, representative of the National Western department of the Land- en Tuinbouw Organisatie WLTO, the national non-governmental organisation for agriculture and horticulture, 10-03-1998, 26-10-1999 Drs. R. Havinga, researcher at the environmental consultancy firm Team Environment, adviser of Pauw, 06-02-1998, written correspondence 23-06-1999. Drs. B. Hermans, Stichting Natuur en Milieu, the Netherlands Society for Nature and Environment, an independent environmental organisation, 20-10-1999 Drs. J. Höppener, representative Stichting Meldpunten Netwerk Gezondheid en Milieu, the Monitoring Network Health and Environment, 19-01-1998, 12-02-1998., 26-06-1999 Ir. J. Huurman, IWACO, a Dutch consultancy firm for water and environment 28-10-1999 P. Jansen- Socialistische Partij, the Dutch Socialist Party (SP) 1998 informal and not recorded conversation K. Jurriëns, legal representative of R. de Leeuw, 16-11-2001 243

R. Komijn., employee of the Rijksdienst voor Keuring Vlees en Vee, Ministerie Landbouw, Natuurbeheer en Visserij, the National Inspection Service for Livestock and Meat of the Ministry of Agriculture, 29-91999 Ir. G. Laporte- employee of the Ministry of Agriculture, telephone conversation 11-11-1999 Drs. H. Logtenberg, veterinarian contracted by Van Nederpelt to research Pauw’s management, 01-03-1998 Ing. A. Malestein, Voedingsadvies Bureau VAB, the consultancy firm that analysed Pauw’s feeding management, 05-11-1999 Ir. R. Meester- representative of engineering firm Ingenieursbureau Witteveen-Bos, adviser of dike reeve Van der Vlist, 02-11-1999 Dr. G. Meijer- researcher at the Instituut voor Dierhouderij en Diergezondheid- Dienst Landbouwkundig Onderzoek (ID-DLO): the semigovernmental Institute for Animal Science and Health. Later turned into ID-Lelystad, written correspondence 29-06-1999, recorded interview 0602-2001 J. Minderhoud, employee of the Veterinaire Inspectie: the governmental department for veterinary health inspection, later turned into Inspectie Waren en Veterinaire Zaken, 17-09-1999 Dr. J. Nieuwenhuijs, employee of the Veterinaire Inspectie: the governmental department for veterinary health inspection, later turned into Inspectie Gezondheidsbescherming, Waren en Veterinaire Zaken, 1999 (interview transcript is lost) K. Pauw, dairy farmer, 06-02-1998, 10-11-1998, 02-05-2000, 04-042000 G. Pielage, representative of the waterboard Waterschap de Waterlanden de Beemster, 21-09-2000 Plate, employee of the Eastern department of the Veterinaire Inspectie: the governmental department for veterinary health inspection, later turned into Inspectie Gezondheidsbescherming, Waren en Veterinaire Zaken, 18-10-1999 R. Pleune, Waterpakt, a non-profit organisation dealing with matter related issues, 01-10-1999 R. Poppe, Socialistische Partij, september 2001 D. Raat, meat farmer, 26-04-2001 Prof. P. Schepens, researcher at the Universitaire Instelling Antwerpen, the University of Antwerp in Belgium, 21-12-1997, 09-03-1998, 22-011998. Drs. M. Scholten, researcher at the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesin244

novatie (TNO-MEP), 07-01-1998, written correspondence on 01-061999 J. Swinkels, former veterinarian of farmer Klaas Pauw, 20-10-1999 Dr. M. van Bruggen, researcher at the Rijksinstituut voor Volksgezondheid en Milieu (RIVM), the National Institute of Public Health and the Environment, 30-01-1998, 10-02-1998, written correspondence 2106-1999. K. van Dam, employee of the Landbouwschap, the governmental interest manager for agriculture and livestock breeding in the Netherlands until it was dissolved in 1997, 19-11-1999 J. van der Geest, farmer, representative Stichting voor Wetenschappelijk Natuur en Milieubeleid, 01-03-1998, 16-03-1998, 09-04-1999, 0605-1999, 28-06-1999, 14-09-1998, 07-09-1999, 22-10-1999, 01-052000, 07-04-2000, 01-05-2000. H. van der Vlist, Dike reeve Hoogheemraadschap Uitwaterende Sluizen Hollands Noorderkwartier, the waterboard for the Dutch hydrological section Hollands Noorderkwartier, 02-11-1999 Ir. H. van Dokkum, researcher at the Nederlandse Organisatie voor Toegepast-natuurwetenschappelijk onderzoek Milieu, Energie en Procesinnovatie (TNO-MEP), 07-01-1998, written correspondence on 0106-1999 M. van Eijndhoven, employee of the Province of Noord-Holland, Afdeling Bodemzaken, 25-10-1999 E. van Klink- employee of the Informatie en Kennis Centrum (IKC): the National Information and Knowledge Centre for Agriculture, 11-091999 D. van Nederpelt, Pauw’s catastrophe-risk insurance adviser. 21-121997, 19-12-1998; 25-11-1999 B. van Noordenburg, farmer and member of the Frisian department of the Land en Tuinbouw Organisatie (LTO), the national nongovernmental organisation for agriculture and horticulture, 06-03-1998 Drs. van Oosterom, employee of the Veterinaire Inspectie: the governmental department for veterinary health inspection, later turned into Inspectie Gezondheidsbescherming, Waren en Veterinaire Zaken, 1999 (interview transcript is lost) H. van Weering, researcher at the Gezondheidsdienst voor Dieren (GD), the animal health and quality control organisation for Dutch livestock farmers, veterinarians and livestock industry, 07-10-1999, written correspondence 19-04-2000 K. Verhoeff- researcher at the Gezondheidsdienst voor Dieren (GD), the animal health and quality control organisation for Dutch livestock farmers, veterinarians and livestock industry, 29-09-1999 245

Drs. K. Wagenaar, researcher at the environmental consultancy firm Milieu en Bodem Consult, adviser of Pauw, 06-02-1998 Prof. Dr. Th. Wensink, researcher at the Universiteit Utrecht, Afdeling Diergezondheid, the department of animal health of the University of Utrecht, 01-11-1999

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Dutch Summary Overheden, publiek, wetenschappelijke instituten en rechtbanken lopen tegenwoordig tegen grote problemen aan wanneer ze trachten om te gaan met de ‘nieuwe’ risico’s die voortkomen uit de complexe interactie tussen wetenschap, technologie en de maatschappij. De eigenschappen van deze nieuwe risico’s maken het moeilijk om hun bestaan wetenschappelijk te bewijzen De reden hiervoor is dat het gaat om (secundaire) effecten die vaak pas na jaren, soms pas na generaties, zichtbaar worden. De eigenschappen van deze risico’s maken het niet alleen moeilijk voor overheden, publiek en wetenschappers om de ernst van risico’s en hun relatie tot mogelijke gevolgen vast te stellen, maar vooral ook om te besluiten wie verantwoordelijk is voor de situatie en wie er aansprakelijk zou moeten worden gesteld. In veel controversen rondom nieuwe risico’s zijn overheden en rechtbanken dan ook vaak niet bereid om actie te ondernemen. Het vaststellen van verantwoordelijkheden en aansprakelijkheid is echter vaak wel van het grootste belang voor betrokkenen. De betrokken actoren hebben echter vaak verschillende interpretaties, met langdurige controversen tot gevolg. Dit verschil in interpretatie wordt mede veroorzaakt doordat de verschillende actoren verschillende strategieën en argumenten hanteren om te bewijzen dat hun interpretatie van het probleem en de oplossing de enige juiste is. Tijdens deze controversen komen de actoren - het betreft veelal overheden, publiek en wetenschappers - in veel verschillende arena’s terecht. De veehouders, overheden en wetenschappers die centraal staan in dit proefschrift vochten hun controverse uit in zowel de landbouw en watermanagement arena’s, bestaande uit veehouders, vee, sloten, rioolsystemen en polderland; de politieke arena bestaande uit kiezers, politici, kranten, hoorzittingen, kamervragen en beleid; de wetenschappelijke arena bestaande uit wetenschappers, experts, laboratoria, metingen en contraonderzoek. Deze reis eindigde, zoals zoveel controversen die over risico handelen, in de juridische arena van advocaten, expert-getuigen, rechtbanken en uitspraken, zonder dat er een oplossing werd gevonden. Om toch politieke, wetenschappelijk, publieke en juridische mechanismen te kunnen ontwikkelen om te kunnen omgaan met risico’s en (secundaire) effecten die niet wetenschappelijk kunnen worden vastgesteld, is het van belang om te begrijpen hoe het komt dat veel wetenschappelijke praktijken in toenemende mate geconfronteerd worden met problemen wat betreft het vaststellen van het bestaan van die risico’s en van een relatie tussen die risico’s. Ook moet worden onderzocht waarom overheden en rechtbanken zoveel moeite hebben met het nemen van besluiten over verantwoordelijkhe247

den en aansprakelijkheid voor die risico’s wanneer de wetenschap geen zekerheid kan bieden omtrent hun bestaan. Hiervoor is het van belang om meer inzicht te verkrijgen in de complexe relatie tussen wetenschap en politiek. In dit proefschrift beschrijf ik twee controversen die handelen over vervuild oppervlaktewater en het gevolg van het drinken daarvan voor de gezondheid van melkvee. Beide controversen, hieronder beschreven, illustreren de strategieën die verschillende actoren hanteren in verschillende arena’s om de situatie zo te definiëren en verantwoordelijkheid en aansprakelijkheid voor de risico’s zo te leggen dat het hun zaak ten goede komt. Vanaf 1975 raakten melkveehouders in Nederland verwikkeld in controversen met de overheid. In alle gevallen meenden de veehouders dat hun melkvee ziek werd door het drinken van vervuild oppervlaktewater. Wel werd de vervuiling aan verschillende oorzaken toegeschreven: afbraak van veen of riooloverstorten. Omdat de veehouders de problemen toeschreven aan factoren buiten hun eigen bedrijfsvoering, zochten zij het elders en trokken bij de overheid aan de bel. Wat volgde was een lang debat tussen de veehouders, lokale en nationale overheden en wetenschappers over de mogelijke aanwezigheid van watervervuiling en de gevolgen daarvan voor de gezondheid van melkvee dat het water dronk. De veehouders waren ervan overtuigd dat het water vervuild was omdat het raar rook, en omdat de fauna en flora in en om de sloten stierf. In het begin erkende de overheid de watervervuiling niet, laat staan dat ze een mogelijke relatie tussen de vervuiling en de ziekte van de koeien erkende. Echter, na jaren van wetenschappelijk onderzoek en publieke debatten erkende de Nederlandse overheid dat het water in veel sloten inderdaad vervuild was als gevolg van ofwel riooloverstorten of veenafbraak. De overheid erkende echter niet dat er een relatie mogelijk was tussen de zieke koeien en de watervervuiling. De veehouders waren wel overtuigd van het bestaan van een relatie en wat volgde waren twee controversen waarin gedurende twee decennia veehouders, overheden en wetenschappelijke instituten debatteerden over de politieke verantwoordelijkheid en juridische aansprakelijkheid voor ofwel de riooloverstort vervuiling ofwel de vervuiling als gevolg van de veenafbraak en de gevolgen van die vervuilingen voor de gezondheid van het melkvee. In beide controversen waren de veehouders, overheden en wetenschappers het oneens over wat er aan de hand was, of er een risico was en wat dat risico dan inhield, en over wie of welke instantie verantwoordelijkheid moest dragen voor het probleem. Behalve deze onenigheid bleken de wetenschappers die ingehuurd waren om het probleem te onderzoeken, te bepalen wat de risico’s waren en aanbevelingen te geven over hoe met de zaak omgegaan diende te worden, niet in staat om een direct causaal verband te leggen tussen de twee vormen van watervervuiling en de ziekteverschijnselen onder 248

melkvee dat het water dronk. De wetenschappelijke instituten konden de mogelijkheid van een causaal verband echter ook niet uitsluiten. Beide controversen eindigden verschillend en geen van beide controversen is tot tevredenheid van alle betrokkenen opgelost. Elke keer bleek het falen van de wetenschap om een eenduidige conditio sine qua non causale relatie te leggen tussen de watervervuiling en de gezondheidsproblemen van vee dat dit water dronk de oorzaak te zijn voor het voortduren van de controverse. De analyse van beide controversen verschaft inzicht verschaffen in de eerder gestelde vragen en zal hopelijk bijdragen aan het ontwikkelen van mechanismen waarmee overheden, veehouders, maatschappelijke groeperingen, rechters en wetenschappers zullen kunnen besluiten over verantwoordelijkheid en aansprakelijkheid voor complexe risico’s waar geen wetenschappelijke zekerheid over bestaat. Methodologie Om de verschillen van inzicht tussen en ook binnen de betrokken (groepen) actoren empirisch te kunnen onderzoeken, was een methodologie nodig die een analyse mogelijk maakte op het niveau van de individuele actor en die tegelijkertijd een analyse van de heterogeniteit van opinies binnen groepen veehouders, overheden en wetenschappers mogelijk maakte. De antropologische methode van participerende observatie maakte dit mogelijk. De strategieën die actoren in beide controversen hanteerden om de situatie zo te definiëren en verantwoordelijkheid zodanig te verdelen dat het hun doelen diende, is analytisch beschreven met behulp van reeds aanwezige concepten uit het veld van wetenschap en technologie studies (STS), met name het veld van de sociale constructie van (wetenschappelijke) kennis en technologie. Het bestuderen van wetenschappelijke kennis en technologie op een constructivistische manier betekent dat kennis en technologie bekeken worden als uitkomsten (constructies) van interacties tussen actoren. De wetenschappelijkheid van een claim wordt niet gezien als een intrinsieke eigenschap van de claim, maar de uitkomst van interacties tussen actoren. De constructivistische benadering stelt verder dat risico- en probleemdefinities als uitkomsten van complexe en strategische interacties tussen actoren moeten worden geanalyseerd. Tenslotte ontkent het STS veld dat er een vooraf gegeven verschil is tussen de wetenschappelijke vaststelling van risico’s en de politieke benadering van deze risico’s. De grenzen tussen wetenschap en politiek, tussen het vaststellen en het hanteren van risico’s worden eveneens geanalyseerd als de uitkomst van strategische interacties.

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Omdat ik een constructivistische methode hanteerde had ik geen vooraf gegeven definitie (als referentiepunt) van wat het echte risico van de watervervuiling was. Ik gebruikte de risico’s zoals gedefinieerd door de actoren als startpunt voor de analyse en mijn analyse gaat daarmee voorbij aan het vaststellen van het waarheidsgehalte van die definities. De schuldvraag is weliswaar van het grootste belang voor de veehouders en overheden; maar mijn doel was niet om die schuldvraag vast te stellen. Mijn doel was om de complexe interacties tussen actoren te analyseren om vast te stellen hoe die interacties leidden tot de acceptatie van specifieke definities van de situatie en de gevolgen van het accepteren van die definitie en het verwerpen van andere definities voor de verdeling van verantwoordelijkheid en aansprakelijkheid. Niet al de concepten die ik geïntroduceerd heb om de verdeling van verantwoordelijkheid en aansprakelijkheid in risico controversen te onderzoeken zijn ontwikkeld met dit doel. Ik hoop met dit boek dan ook bij te dragen aan het ontwikkelen van een theoretisch kader binnen het STS veld waarmee de rol van wetenschappelijke en niet-wetenschappelijke kennis in het verdelen van verantwoordelijkheid en aansprakelijkheid in risicocontroversen onderzocht kan worden. Ook hoop ik bij te kunnen dragen aan de voortdurende discussie in het STS veld over de rol die STS onderzoekers kunnen en of zouden moeten spelen in risico controversen: observeren, participeren of wellicht zelfs interveniëren. De verdeling van verantwoordelijkheid en aansprakelijkheid in de twee controversen In hoofdstuk twee heb ik het SCOT concepten ‘technisch raam’ en ‘interpretatieve flexibiliteit’ verbreed om ook de verschillende bedrijfsstijlen van veehouders te kunnen beschrijven. Ik beschrijf hoe de waardering van veehouders voor specifieke vormen van kennis - wetenschappelijke en praktijkkennis - maar ook hun kijk op het probleem, en daarmee ook hun idee over wat een goede verdeling van verantwoordelijkheid voor het probleem zou zijn, sterk afhankelijk is van hun bedrijfsstijl. Ik beschrijf hoe de interpretatieve flexibiliteit van het risico van de watervervuiling verschillende oplossingen voor het probleem betekende, en dat elke risicodefinitie haar eigen rationaliteit heeft. Zowel de veehouders als de overheden construeerden risico’s en oplossingen die binnen hun specifieke bedrijfsstijl pasten. Toen de overheid haar risicodefinitie en haar oplossing (waterleiding water) oplegde aan de veehouders ontstond er een enorme controverse. Sommige waterschappen hadden oog voor de beperkingen die de verschillende bedrijfsstijlen oplegden aan de veehouders, en stelden drie alter250

natieve oplossingen voor. Zo kon ofwel de waterinfrastructuur aangepast worden, het waterniveau verhoogd worden om zo de afbraak van vee tegen te gaan, of de waterwegen konden vaker doorgespoeld worden om zo de vervuiling ten gevolge van riooloverstorten te verdunnen. Het implementeren van deze oplossingen bleek echter al gauw net zo moeilijk te zijn als het gebruiken van water uit de waterleiding. Dit implementatie probleem is het onderwerp van hoofdstuk drie. De problemen kunnen niet verklaard worden met enkel materiële of economische oorzaken. In hoofdstuk drie toon ik met het concept ‘verwevenheid’ aan dat technologische keuzes, watermanagement, bedrijfsmanagement, habitat richtlijnen, cultureel erfgoed beleid, politieke en economische factoren, tezamen zo’n sterk verweven systeem vormden dat individuele elementen niet konden worden aangepast zonder daarmee het gehele systeem te veranderen. Met het concept van ‘verwevenheid’ kon ik echter niet verklaren waarom een verandering aan desnoods het hele systeem niet mogelijk was, zelfs wanneer alle actoren het eens waren met die verandering. Daarvoor had ik een combinatie van de concepten ‘hardheid’ en ‘contextualisering’ nodig. Het concept van ‘contextualisering’ verschafte me de mogelijkheid om aan te tonen dat effecten zoals de gezondheidsproblemen van het vee het gevolg kunnen zijn van lange termijn ontwikkelingen van een systeem. Met dit concept kon ik aantonen dat in de loop van de tijd de Beemster polder gecontextualiseerd was om aan de steeds veranderende eisen van nieuwe gebruikers tegemoet te komen. Dit proces van contextualisering is niet alleen een continu proces, het gebeurt ook vaak zonder dat de oorspronkelijke functies en gebruikerspraktijken van een technologisch systeem worden aangepast, in dit geval de functies van de Beemster polder. In de loop der tijd coevolueerden de polder en de gebruikerspraktijken en raakten dermate verweven dat het steeds moeilijker werd om ze aan te passen. De polder en de verschillende elementen werden daarmee ‘hard’. Om te verklaren waarom het moeilijk of zelfs onmogelijk was om vast te stellen wie er verantwoordelijkheid en aansprakelijkheid droeg voor zowel de watervervuiling, de gezondheidsproblemen van het vee alsook voor de moeilijkheid om oplossingen te implementeren, koppel ik het concept van contextualisering aan benaderingen die de eigenschappen van ‘nieuwe risico’s’ beschrijven; zoals het feit dat deze nieuwe risico’s zowel fysieke en nationale grenzen overschrijden alsook dat ze soms pas na generaties zichtbaar worden. Hiermee kon ik aantonen dat de contextualisering van de polder op zichzelf geen risico was. Zonder die contextualisering de polder niet eens had kunnen functioneren. Echter, de langzame en onzichtbare veranderingen van de polder creëerden een risicovolle situatie die nog risicovoller werd toen bleek dat de risico-elementen (de watervervuiling) niet makkelijk te verwijderen waren. Daarnaast kon er geen verantwoordelijkheid en aan251

sprakelijkheid vastgesteld worden omdat het niet mogelijk was om wetenschappelijk vast te stellen welke acties uit het verleden nu de huidige problemen hadden veroorzaakt. Bovendien waren de acties vrijwel altijd het gevolg van collectieve besluiten van vroegere generaties. In hoofdstuk vier illustreer ik hoe de veehouders Van de Geest en Pauw, lokale en nationale overheden allemaal hun eigen theorie hadden over wat oorzaak en gevolg was van de watervervuiling en de problemen rond de gezondheid van de dieren. Alle partijen huurden wetenschappelijke instituten in om vast te stellen wat oorzaak en gevolg was in de verwachting dat wetenschappelijke zekerheid zou helpen om vast te stellen wie er verantwoordelijk was. De wetenschappelijke resultaten brachten helaas niet de noodzakelijke zekerheid. Bovendien verschilden de partijen van mening over wat nu wetenschap en wetenschappelijke kennis was. Om dit verschil in mening te verklaren en om te illustreren welke strategieën gehanteerd werden om aan te tonen dat kennis wetenschappelijk was of juist niet heb ik het concept van ‘grenzenwerk’ gebruikt. Met dit concept was ik in staat om aan te tonen hoe definities van wat wetenschappelijk is verschoven werden. Deze verschuiving leidde uiteindelijk tot het instellen van het Actie Programma ‘waterkwaliteit en diergezondheid’. Met de concepten ‘hybride forum’ en ‘sub-politiek’ verklaar ik dat in dit geval overheden, wetenschappers en publiek op de wetenschappelijke onzekerheid reageerden door een open forum te creëren waarbinnen actoren konden participeren in discussies over de situatie en over verantwoordelijkheid en aansprakelijkheid voor de situatie. Fora zoals het actie programma ontstaan om kennis te ontwikkelen over de relatie tussen oorzaak en gevolg, kennis die politici en rechtbanken kunnen gebruiken om te besluiten over verantwoordelijkheid en aansprakelijkheid voor de risico’s. Als zodanig zijn hybride fora zoals het actie programma een (extra) democratische vorm van controle over nieuwe risico’s en hun gevolgen. Het participeren aan dergelijke fora is echter niet voor iedereen weggelegd. In elke democratie worden grenzen en specifieke criteria gesteld met betrekking tot wie er mag participeren. In hoofdstuk vijf beschrijf ik hoe rechtbanken zichzelf geconfronteerd zien met nieuwe risico’s en vaak niet in staat zijn om besluiten te nemen over de verdeling van aansprakelijkheid. Rechtbanken zijn vaak de laatste arena waar actoren naartoe gaan om verantwoordelijkheid en aansprakelijkheid voor risico’s vast te laten stellen. Dit is zeker het geval wanneer het probleem niet tot een oplossing is gekomen in de politieke en wetenschappelijke arena. De zaak van de veehouder De Leeuw tegen zijn waterschap en gemeente illustreert echter dat de rechtbank grote moeite heeft met oordelen wanneer de wetenschap geen zekerheid kan bieden omtrent oorzaak en gevolg. Er is in toenemende mate juridische behoefte aan wetenschappers die 252

bij nieuwe risico’s conditio sine qua non causaliteit tussen de risico’s en hun gevolgen kunnen vaststellen. Paradoxaal genoeg is dit in principe onmogelijk, gezien de eigenschappen van deze nieuwe risico’s. In het concluderende hoofdstuk zes ga ik dieper in op de mechanismen die ontwikkeld hadden kunnen worden in de verschillende arena’s, om met de wetenschappelijke onzekerheden rondom nieuwe risico’s zoals de watervervuiling en diergezondheids problemen om te gaan. Ik identificeer reflexieve leermomenten die mogelijkerwijs zouden hebben kunnen leiden tot betere strategieën om met de complexe nieuwe risico’s om te gaan. Reflexief leren wordt hier gedefinieerd als het expliciet nadenken en leren over de rol van het publiek, van wetenschappelijke kennis, en van de overheid in controversen die handelen over sociale en technologische aspecten van risico’s. Ook verwijst het naar het leren over de normatieve veronderstellingen die ten grondslag liggen aan risico- en probleemdefinities. Tenslotte verwijst reflexief leren ook naar het leren over de problemen en mechanismen die bepalen op welke manier wetenschappelijke en niet-wetenschappelijke kennis opgenomen worden in politieke en juridische processen van besluitvorming. Reflexief leren is alleen dan mogelijk wanneer de verschillende partijen bereid zijn om over al deze zaken na te denken. Deze bereidwilligheid komt echter pas wanneer alle arena’s doorlopen zijn op zoek naar een oplossing, en wanneer wetenschap keer op keer niet in staat is gebleken om zekerheid te bieden omtrent oorzaak en gevolg bij nieuwe risico’s. Er is geen universeel recept waarmee reflexief leren gegarandeerd kan worden in elke controverse. Elke controverse is uniek, en niet elke controverse leent zich voor reflexief leren. In deze controverse zou reflexief leren echter bij hebben kunnen dragen aan het oplossen of in elk geval verminderen van de controverse en de politieke en juridische impasse, omdat alle perspectieven gehoord zouden zijn en actoren zouden hebben kunnen samenwerken aan een oplossingen die recht zouden hebben gedaan aan de unieke lokale omstandigheden. Het reflexief leren werd in deze controverse deels georchestreerd in het actie programma, een hybride forum waarin alle perspectieven, belanghebbenden en deskundigheden betrokken werden met het doel een gemeenschappelijk denkraam over de situatie en de risico’s te ontwikkelen. Door nieuwe en gezamenlijk gedragen kennis te ontwikkelen die als basis kon dienen voor politieke en juridische besluitvorming, verbreedde dit forum het politieke proces van besluitvorming, en bevorderde daarmee de democratisering van expertise en risicobeheersing.

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De rol van STS onderzoekers in risico controversen In 2001 werd ik ingehuurd door de Stichting voor Wetenschappelijk Natuur en Milieubeleid (SWNM), een stichting van en voor gedupeerde veehouders, om bij te dragen aan een rapport waarin de specifieke kennis en expertise van de veehouders vertaald werd naar wetenschappelijk- en politiek geaccepteerde claims. In mijn deel van het rapport stelde ik dat er geen universele oplossing bestond voor de problemen van watervervuiling en diergezondheid, en dat de kennis en expertise van de veehouders gehoord zou moeten worden door overheden en wetenschappers. Bovendien stelde ik dat de veehouders betrokken zouden moeten worden in de politieke besluitvormingsprocessen. Door aan te tonen dat elke probleemdefinitie haar eigen rationaliteit had en gevormd werd door de specifieke context van de actoren, kregen de veehouders de mogelijkheid om als volwaardige partner te participeren in het politieke debat. Door de opdracht van de SWNM te accepteren en hun verschillende kennisclaims te vertalen en ze allen als even relevant te benaderen werd ik een eenvrouws hybride forum waar alle kennisclaims samenkwamen en konden interacteren op een gelijkwaardige manier. Echter, om deze intermediaire rol op me te kunnen nemen moest ik mijn positie van observant opgeven en een participant in de controverse worden. Deze verandering had mijn afstandelijke positie kunnen compromitteren. Ik wilde niet de kant van individuele actoren kiezen. In dit proefschrift behandel ik dit dilemma en positioneer ik me in de voortgaande discussie in het STS veld over de rol die een STS onderzoeker kan of zelfs zou moeten hebben in (wetenschappelijke en publieke) controversen. Zo toon ik aan dat het niet nodig of wenselijk is om ofwel de kant van de underdog te kiezen, ofwel om te bepalen welke vormen van kennis zouden moeten of mogen participeren in besluitvormingsprocessen, en onder welke condities. Veel waardevoller was het, althans in deze controverse, om als onderzoeker aan te tonen dat alle risicodefinities legitiem waren en in hun context begrepen moesten worden. Hiermee werd de deur geopend naar brede participatie van zowel gecertificeerde als niet- gecertificeerde kennis in politieke besluitvormingsprocessen. Hoewel mijn rol politiek en normatief werd en ik met mijn onderzoek in de controverse intervenieerde, bleef ik neutraal in de ogen van alle betrokkenen doordat ik alle perspectieven gelijkwaardig behandelde. In 2002 werd er overeenstemming bereikt tussen de (lokale) overheden en veehouders over de compensatie voor de gevolgen van de watervervuiling. De betrokkenen accepteerden een gedeelde verantwoordelijkheid. Er werd een schadefonds opgericht waaruit een groep van veehouders die de grootste schade hadden geleden deels gecompenseerd zouden kunnen worden. De veehouders zouden eenderde van de kosten dragen, de waterschap-

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pen en de overheid de rest. Echter, anno 2004 zijn slechts een paar veehouders schadeloos gesteld.

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Curriculum Vitae Ruth Mourik (Paris 1973) received her Masters Degree in Anthropology at the University of Amsterdam in 1996, with a specialisation in material culture. In 1997, she received a Cum Laude Masters Degree in Science Society and Technology Studies at the University of Maastricht, after following the European Studies on Science, Society and Technology. From 1997 to 2003 she had a position as a PhD-student at the University of Maastricht, Faculty of Arts and Culture, Department of Technology and Society Studies. Currently, she has a research position at the Policy Studies department of the Energy research Centre of the Netherlands (ECN).

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