WEBVTT

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Twenty years ago,

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when I was a barrister
and human rights lawyer

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in full-time legal practice in London,

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and the highest court in the land

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still convened, some would say
by an accident of history,

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in this building here,

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I met a young man who had
just quit his job

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in the British Foreign Office.

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When I asked him why did you leave,

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he told me this story.

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He had gone to his boss
one morning and said,

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"Let's do something about
human rights abuses in China."

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And his boss had replied,

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"We can't do anything about
human rights abuses in China

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because we have
trade relations with China."

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So my friend went away
with his tail between his legs,

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and six months later,

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he returned again to his boss,

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and he said this time,

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"Let's do something about
human rights in Burma,"

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as it was then called.

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His boss once again paused

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and said, "Oh, but we can't do
anything about human rights in Burma

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because we don't have any
trade relations with Burma."

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This was the moment he knew
he had to leave.

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It wasn't just the hypocrisy
that got to him.

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It was the unwillingness

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of his government to engage
in conflict with other governments,

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intense discussions.

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All the while, innocent people
were being harmed.

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We are constantly told

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that conflict is bad,

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that compromise is good,

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that conflict is bad

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but consensus is good,

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that conflict is bad

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and collaboration is good.

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But in my view,

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that's far too simple
a vision of the world.

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We cannot know

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whether conflict is bad

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unless we know who is fighting,

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why they are fighting,

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and how they are fighting,

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and compromises can be thoroughly rotten

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if they harm people who
are not at the table,

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people who are vulnerable, disempowered,

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people whom we have
an obligation to protect.

NOTE Paragraph

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Now you might be somewhat
skeptical of a lawyer

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arguing about the benefits of conflict

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and creating problems for compromise,

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but I did also qualify as a mediator,
and these days, I spend my time

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giving talks about ethics for free.

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So as my bank manager likes to remind me,
I'm downwardly mobile.

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But if you accept my argument,

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it should change not just the way
we lead our personal lives,

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which I wish to put
to one side for the moment,

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but it will change the way we think
about major problems

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of public health and the environment.

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Let me explain.

NOTE Paragraph

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Every middle schooler
in the United States,

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my 12-year old daughter included,

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learns that there are three
branches of government,

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the legislative, the executive,
and the judicial branch.

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James Madison wrote, "If there is any
principle more sacred

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in our Constitution,

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and indeed in any free constitution
than any other,

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it is that which separates

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the legislative, the executive,
and the judicial powers."

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Now the framers were not just concerned

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about the concentration
and exercise of power.

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They also understood
the perils of influence.

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Judges cannot determine
the constitutionality of laws

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if they participate in making those laws,

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nor can they hold the other branches
of government accountable

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if they collaborate with them

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or enter into close
relationships with them.

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The Constitution is,
as one famous scholar put it,

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"an invitation to struggle."

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And we the people are served

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when those branches do, indeed,
struggle with each other.

NOTE Paragraph

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Now, we recognize the importance
of struggle not just

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in the public sector

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between our branches of government.

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We also know it too in the private sector,

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in relationships among corporations.

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Let's imagine that two American airlines

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get together and agree

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that they will not drop the price

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of their economy class airfares
below 250 dollars a ticket.

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That is collaboration,
some would say collusion,

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not competition,

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and we the people are harmed

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because we pay more for our tickets.

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Imagine similarly two airlines
were to say, "Look,

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Airline A, we'll take the route
from LA to Chicago,"

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and Airline B says, "We'll take
the route from Chicago to DC,

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and we won't compete."

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Once again, that's collaboration
or collusion instead of competition,

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and we the people are harmed.

NOTE Paragraph

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So we understand the importance

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of struggle when it comes to relationships

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between branches of government,

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the public sector.

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We also understand the importance
of conflict when it comes

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to relationships among corporations,

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the private sector.

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But where we have forgotten it

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is in the relationships
between the public and the private,

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and governments all over the world
are collaborating with industry

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to solve problems of public health
and the environment,

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often collaborating with the very
corporations that are creating

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or exacerbating the problems
they are trying to solve.

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We are told that these relationships

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are a win-win.

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But what if someone is losing out?

NOTE Paragraph

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Let me give you some examples.

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A United Nations agency decided
to address a serious problem,

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poor sanitation in schools

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in rural India.

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They did so not just in collaboration
with national and local governments

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but also with a television company

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and with a major multinational
soda company.

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In exchange for less
than one million dollars,

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that corporation received the benefits
of a months-long promotional campaign

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including a 12-hour telethon

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all using the company's logo
and color scheme.

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This was an arrangement

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which was totally understandable

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from the corporation's point of view.

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It enhances the reputation of the company,

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and it creates brand loyalty
for its products.

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But in my view,

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this is profoundly problematic
for the intergovernmental agency,

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an agency that has a mission
to promote sustainable living.

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By increasing consumption
of sugar-sweetened beverages

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made from scarce local water supplies
and drunk out of plastic bottles

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in a country that is already
grappling with obesity,

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this is neither sustainable
from a public health

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nor an environmental point of view,

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and in order to solve one
public health problem,

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the agency is sowing the seeds

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of another.

NOTE Paragraph

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This is just one example
of dozens I discovered

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in researching a book on the relationships
between government and industry.

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I could also have told you about
the initiatives in parks in London

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and throughout Britain
involving the same company

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promoting exercise,

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or indeed of the British Government
creating voluntary pledges

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in partnership with industry

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instead of regulating industry.

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These collaborations or partnerships

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have become the paradigm in public health,

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and once again, they make sense
from the point of view of industry.

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It allows them to frame
public health problems and their solutions

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in ways that are least threatening to,
most consonant with,

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their commercial interests.

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So obesity becomes a problem
of individual decision-making,

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of personal behavior,

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personal responsibility
and lack of physical activity.

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It is not a problem

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when framed this way

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of a multinational food system
involving major corporations.

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And again, I don't blame industry.

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Industry naturally engages
in strategies of influence

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to promote its commercial interests.

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But governments have a responsibility

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to develop counterstrategies

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to protect us and the common good.

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The mistake that governments are making

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when they collaborate in this way

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with industry

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is that they conflate

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the common good with common ground.

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When you collaborate with industry,

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you necessarily put off the table

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things that might promote the common good
to which industry will not agree.

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Industry will not agree
to increase regulation

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unless it believes this will stave off
even more regulation

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or perhaps knock some competitors
out of the market.

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Nor can companies agree
to do certain things,

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for example raise the prices
of their unhealthy products,

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because that would violate
competition law,

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as we've established.

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So our governments should not confound

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the common good and common ground,

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especially when common ground

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means reaching agreement with industry.

NOTE Paragraph

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I want to give you another example,

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moving from high-profile collaboration

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to something that is below ground

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both literally and figuratively:

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the hydraulic fracturing of natural gas.

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Imagine that you purchase a plot of land

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not knowing the mineral rights
have been sold.

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This is before the fracking boom.

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You build your dream home on that plot,

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and shortly afterwards,

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you discover that a gas company
is building a well pad on your land.

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That was the plight
of the Hallowich family.

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Within a very short period of time,

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they began to complain of headaches,

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of sore throats, of itchy eyes,

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in addition to the interference
of the noise, vibration,

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and the bright lights from the flaring
of natural gas.

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They were very vocal in their criticisms,

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and then they fell silent,

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and thanks to the Pittsburgh Post-Gazette,
where this image appeared,

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and one other newspaper, we discovered
why they fell silent.

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The newspapers went to the court and said,
what happened to the Hallowiches?

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And it turned out the Hallowiches
had made a secret settlement

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with the gas operators,

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and it was a take-it-or-leave-it
settlement.

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The gas company said,

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you can have a six figure sum
to move elsewhere

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and start your lives again, but in return

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you must promise not to speak
of your experience with our company,

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not to speak of your
experience with fracking,

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not to speak about the health consequences

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that might have been revealed
by a medical examination.

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Now, I do not blame
the Hallowiches for accepting

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a take-it-or-leave-it settlement

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and starting their lives elsewhere.

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And one can understand why the company
would wish to silence

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a squeaky wheel.

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What I want to point the finger at
is the legal and regulatory system,

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a system in which there are
networks of agreements

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just like this one

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which serve to silence people

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and seal off data points

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from public health experts
and epidemiologists,

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a system in which regulators
will even refrain from issuing

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a violation notice

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in the event of pollution

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if the landowner and the gas company

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agree to settle.

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This is a system which isn't just
bad from a public health point of view.

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It exposes hazards to local families

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who remain in the dark.

NOTE Paragraph

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Now I have given you two examples
not because they are isolated examples.

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They are examples of a systemic problem.

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I could share some counterexamples,

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the case for example
of the public official

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who sues the pharmaceutical company

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for concealing the fact
that its antidepressant

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increases suicidal
thoughts in adolescents.

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I can tell you about the regulator

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who went after the food company

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for exaggerating the purported
health benefits of its yogurt.

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And I can tell you about the legislator
who despite heavy lobbying

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directed at both sides of the aisle

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pushes for environmental protections.

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These are isolated examples,

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but they are beacons of light
in the darkness

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and they can show us the way.

NOTE Paragraph

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I began by suggesting that sometimes
we need to engage in conflict.

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Governments should tussle with,

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struggle with, at times engage in
direct conflict with corporations.

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This is not because governments
are inherently good

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and corporations are inherently evil.

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Each is capable of good or ill.

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But corporations understandably act
to promote their commercial interests

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and they do so either sometimes
undermining or promoting the common good.

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But it is the responsibility
of governments

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to protect and promote the common good,

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and we should insist

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that they fight to do so.

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This is because governments

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are the guardians of public health,

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governments are the guardians

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of the environment,

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and it is governments

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that are guardians of these
essential parts of our common good.

NOTE Paragraph

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Thank you.

NOTE Paragraph

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(Applause)