The Problems with Precaution: A Principle without Principle
Wednesday, May 25, 2011
It’s better to be safe than sorry. We all accept this as a commonsense maxim. But can it also guide public policy? Advocates of the precautionary principle think so, and argue that formalizing a more “precautionary” approach to public health and environmental protection will better safeguard human well-being and the world around us. If only it were that easy.
Simply put, the precautionary principle is not a sound basis for public policy. At the broadest level of generality, the principle is unobjectionable, but it provides no meaningful guidance to pressing policy questions. In a public policy context, “better safe than sorry” is a fairly vacuous instruction. Taken literally, the precautionary principle is either wholly arbitrary or incoherent. In its stronger formulations, the principle actually has the potential to do harm.
Efforts to operationalize the precautionary principle into public law will do little to enhance the protection of public health and the environment. The precautionary principle could even do more harm than good. Efforts to impose the principle through regulatory policy inevitably accommodate competing concerns or become a Trojan horse for other ideological crusades. When selectively applied to politically disfavored technologies and conduct, the precautionary principle is a barrier to technological development and economic growth.
The law requires the EPA to set the air-quality standard at a level more stringent than that known to threaten public health.
It is often sound policy to adopt precautionary measures in the face of uncertain or not wholly known health and environmental risks. Many existing environmental regulations adopt such an approach. Yet a broader application of the precautionary principle is not warranted, and may actually undermine the goal its proponents claim to advance. In short, it could leave us more sorry and even less safe.
The Precautionary Principle Defined
According to its advocates, the precautionary principle traces its origins to the German principle of “foresight” or “forecaution”—Vorsorgeprinzip.1 This principle formed the basis of social democratic environmental policies in West Germany, including measures to address the effects of acid precipitation on forests.2 Germany was not alone, as other nations also adopted precautionary measures to address emerging environmental problems. So did various international bodies.3
The most common articulation of the precautionary principle is the Wingspread Statement on the Precautionary Principle, a consensus document drafted and adopted by a group of environmental activists and academics in January 1998.4 The statement defined the precautionary principle thus:
When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.
In this context the proponent of an activity, rather than the public, should bear the burden of proof.
The process of applying the Precautionary Principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action.
‘Better safe than sorry’ means that no activity which ‘raises threats of harm to human health or the environment’ should proceed until proven ‘safe.’
Contrary to what its advocates claim, this principle does not provide a particularly useful, let alone prudent, guide to developing or implementing environmental and public health measures. Taken literally, it does not even provide much guidance at all. Harvard law professor Cass Sunstein, who currently serves as administrator of the Office of Information and Regulatory Affairs in the Obama administration, is particularly harsh in assessing the precautionary principle. According to Sunstein, “The precautionary principle, for all its rhetorical appeal, is deeply incoherent. It is of course true that we should take precautions against some speculative dangers. But there are always risks on both sides of a decision; inaction can bring danger, but so can action. Precautions, in other words, themselves create risks—and hence the principle bans what it simultaneously requires.”5
The Wingspread Statement itself embodies many of the problems with the precautionary principle. The initial portion of the principle calls for something already done in the United States and other developed countries. Regulatory measures are routinely adopted when “some cause and effect relationships are not fully established scientifically.” There is rarely, if ever, perfect certainty about the nature and causes of health and environmental threats, so environmental and public health regulations are almost always adopted despite some residual uncertainty.
American environmental law is filled with regulatory programs that authorize, or even compel, regulatory action in the absence of scientific certainty about the nature and extent of potential risks to the environment or public health. The Clean Air Act, for example, requires that the administrator of the Environmental Protection Agency (EPA) adopt measures to control various types of air pollution when, in the administrator’s “judgment,” the emission of certain pollutants “may reasonably be anticipated to endanger public health or welfare.”6 Absolute proof or scientific certainty is not required. Rather, a “reasonable” belief in the possibility of future harm is sufficient—indeed, such a belief may require action.7 Other portions of the Clean Air Act require the EPA to set air-quality standards at the level “requisite to protect the public health” with “an adequate margin of safety,” irrespective of the cost.8 Thus, the law requires the EPA to set the standard at a level more stringent than that known to threaten public health.
In a public policy context, ‘better safe than sorry’ is a fairly vacuous instruction. Taken literally, the precautionary principle is either wholly arbitrary or incoherent.
The Endangered Species Act also requires government action in the absence of scientific certainty. Under the Endangered Species Act, the Fish and Wildlife Service must list species as endangered or threatened on the basis of the “best scientific and commercial data available.”9 That the “best available” scientific evidence may be inconclusive or uncertain does not relieve the Fish and Wildlife Service of its obligation to list a species if the “best available” evidence suggests that it could be threatened with extinction.
Federal environmental law also includes requirements that federal agencies consider the “full range of alternatives” and their likely environmental effects before taking action. Consider the National Environmental Policy Act, which requires the federal government to consider not only the likely environmental consequences of major federal actions but also various alternatives, including forgoing the proposed action altogether.10 This seems to line up nicely with the Wingspread Statement’s call for “an examination of the full range of alternatives, including no action.”
However precautionary these various regulatory measures may be, most precautionary principle advocates consider them insufficient. According to the Wingspread Statement, existing environmental regulations “have failed to protect adequately human health and the environment,” and more is required. Those who signed the statement or point to it as a model for policy have not sought to defend existing laws so much as they have sought the adoption of more stringent environmental and other regulations. In the eyes of precautionary principle advocates, U.S. environmental regulations are too slow and inflexible, and insufficiently precautionary.11
The real teeth of the principle, as articulated in the Wingspread Statement, come from shifting the burden of proof to “the proponent of an activity.” Here, “better safe than sorry” means that no activity which “raises threats of harm to human health or the environment” should proceed until proven “safe.” Interpreted this way, the principle erects a potential barrier to any activity that could alter the status quo. Applied literally to all activities, it would be a recommendation for not doing anything of consequence, as all manner of activities “raise threats of harm to human health or the environment.” As Sunstein observes, “Read for all its worth, it leads in no direction at all. The principle threatens to be paralyzing, forbidding regulation, inaction, and every step in between.”12
Policies have created what some characterize as a ‘guilty until proven innocent’ approach to approving new products.
Yet precautionary principle advocates rarely call for applying this principle neutrally across the board. Rather, they seek to burden private actors, most notably corporations, that propose altering the environmental landscape in some way or introducing a new product or technology into the stream of commerce. This creates a higher barrier to adopting and implementing new technologies, and justifies lengthy approval programs and restrictions on technological advance.
An obvious question: why is it safer or more “precautionary” to focus on the potential harms of new activities or technologies without reference to the activities or technologies they might displace? There is no a priori reason to assume that newer technologies or less-known risks are more dangerous than older technologies or familiar threats. In many cases, the exact opposite will be true. A new, targeted pesticide may pose fewer health and environmental risks than a pesticide developed ten, twenty, or thirty years ago. Shifting the burden of proof, as the Wingspread Statement calls for, is not a “precautionary” policy so much as a reactionary one. This myopic focus on the threats posed by new activities or technologies can actually do more harm than good.
The last portion of the precautionary principle, with its emphasis on open decision-making and information, does not appear to be focused much on “precaution,” but on transparency, accountability, and democratic consent. These are all important values in public policy, but there is no clear connection between these values and a more precautionary or risk-averse approach to public health and environmental policy. Affected communities, when informed about the relevant risks and trade-offs, may choose to accept certain environmental risks in return for economic or other benefits.
How this part of the principle operates in practice is contingent on how one defines “democratic” decision-making and “potentially affected parties,” and whether these values are allowed to conflict. Are the “potentially affected parties” those directly affected by the development of a technology or a given good or service? Or does any individual or interest group with a potential concern get to have their say, too? In some cases, “democratizing” decisions about the acceptability of given technologies or marketplace transactions involves supplanting the decisions of those most involved through a political process. There is no guarantee this ensures adequate representation of those most affected or produces a more precautionary or environmentally protective result.13
The Precautionary Principle Abroad
The precautionary principle is not simply an idea promoted by activists and academics. The principle has found its way into a variety of legal instruments, including several international treaties. Although the principle has not yet reached the status of customary international law, it is increasingly common in international documents and statements of principle.
If a new drug or medical treatment will start saving lives once approved, then the longer it takes for the government to approve the drug, the more likely people will die awaiting treatment.
A soft articulation of the precautionary principle can be found in the Rio Declaration, adopted at the 1992 Earth Summit in Rio de Janeiro, Brazil. It provides: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”14 This is a soft articulation because it does not apply to all innovations or all potential threats, but only those that pose “threats of serious or irreversible damage.” It further embodies a measure of proportionality, as it only calls for the adoption of “cost-effective measures” to address such risks. Insofar as reasonable measures can reduce an uncertain but serious risk, the Rio Declaration calls for action. As a consequence, it embodies a degree of proportionality.
A somewhat stronger formulation of the principle can be found in the preamble to the Convention on Biological Diversity. It similarly declares that “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.”15
A stronger formulation still is contained in the World Charter for Nature: “Where potential adverse effects are not fully understood, the activities should not proceed.”16 This is a reactionary and completely unworkable standard. Applied to technology, it would bring technological progress to a halt, as there are always uncertain and unpredictable effects of new technologies. But this is not simply true of technology. All economic and social innovations have implications that are less than fully understood at the time they are adopted. The same goes for government policy. Indeed, were the World Charter for Nature’s formulation of the precautionary principle applied to governmental interventions in the economy, regulatory bureaucrats would forever sit on their hands, as centralized government decision makers never have complete knowledge or a full understanding of the likely effects of their policies.17
The 1992 Maastricht Treaty creating the European Union explicitly calls for adopting the precautionary principle in European environmental policy, even as it also urges consideration of the likely costs and benefits of specific measures. Article 130R(2) of the treaty provides:
Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Environmental protection requirements must be integrated into the definition and implementation of other Community policies.
Article 130R(3) further calls for the consideration of various factors in the development of environmental policy, including “available scientific and technical data” and “the potential benefits and costs of action or lack of action.”18
Affected communities, when informed about the relevant risks and trade-offs, may choose to accept certain environmental risks in return for economic or other benefits.
Since the signing of the Maastricht Treaty, the precautionary principle has been incorporated into various aspects of European policy. Some nations have cited the principle as justification for prohibiting the use of hormones in livestock production or importing genetically modified crops. The European Council of Ministers adopted a formal resolution in April 1999 calling the European Commission “to be in the future even more determined to be guided by the precautionary principle” in its legislative proposals.19 This led to the European Commission’s Communication from the Commission on the Precautionary Principle, which declared that the EU would apply the precautionary principle “where preliminary objective scientific evaluation indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal, or plant health may be inconsistent with the high level of protection chosen for the community.”20 The resulting policies have created what some characterize as a “guilty until proven innocent” approach to approving new products.21
Precautionary principle advocates often point to EU environmental policies as better exemplars of precautionary policy than U.S. regulations. As Joel Tickner and Carolyn Raffensperger explain, “European decision-makers have no pressure to justify what are essentially political decisions in the artificially rational language of science or economics.”22 Critics likewise note that the EU appears to use precautionary rhetoric about environmental threats to defend decisions that appear more motivated by economic or cultural concerns, such as preserving small farms and rural communities across the European countryside. The precautionary principle seems to be invoked against some risks and not against others.23 Even in Europe, it is difficult to maintain that the precautionary principle provides the foundation for safety or health-enhancing policies.
Is Precaution Safer than the Alternatives?
The biggest problem with the precautionary principle is that it does not clearly enhance the protection of public health and the environment. As University of Texas law professor Frank Cross observes, “The truly fatal flaw of the precautionary principle, ignored by almost all the commentators, is the unsupported presumption that an action aimed at public health protection cannot possibly have negative effects on public health.”24 In any policy decision, policy makers can make two potential errors regarding risk. On the one hand, policy makers may err by failing to adopt measures to address a health or environmental risk that exists. On the other hand, policy makers may adopt regulatory measures to control a health or environmental risk that does not exist. Both types of error can increase risks to public health.
Regulatory drug approval, as conducted by the Food and Drug Administration, provides a good example of how both types of error can increase net risks to public health. The FDA must approve new drugs before they may be used or prescribed. FDA approval is fairly precautionary, as it will only approve drugs shown to be “safe and effective.” This standard is designed to prevent the release of an unsafe drug. Delaying the availability of potentially lifesaving treatment, however, poses risks of its own. In the simplest terms, if a new drug or medical treatment will start saving lives once approved, then the longer it takes for the government to approve the drug, the more likely people will die awaiting treatment.25
Had Misoprostol been approved more rapidly, it could have saved as many as 8,000 to 15,000 lives.
The negative consequences of failing to quickly approve a lifesaving drug can be significant. Consider the example of Misoprostol, a drug that prevents gastric ulcers.26 Misoprostol was developed in the early 1980s and first approved in some nations in 1985. The FDA, however, did not approve Misoprostol until 1988. Even though the drug was already available in several dozen foreign countries, the FDA subjected Misoprostol to a nine-and-one-half-month review. At the time, between 10,000 and 20,000 people died of gastric ulcers per year. Had Misoprostol been approved more rapidly, it could have saved as many as 8,000 to 15,000 lives. Thus, in seeking to prevent one risk—the risk of approving an unsafe drug—the FDA contributed to the risk of gastric ulcers by preventing the use of a potentially lifesaving drug.
If the goal is to have a drug approval process that maximizes protecting public health, the risks of premature drug approval need to be weighed against the risks of failing to approve new medications rapidly enough. In this context, the precautionary principle, and in particular the burden-shifting framework advocated by its proponents, cannot be assumed to result in greater protection of public health and the environment. In fact, as the experience with the FDA drug approval process in the United States shows, a more precautionary approach could do more harm than good. Whether or not one accepts this indictment of the FDA drug approval process, the underlying lesson is clear: Increased precaution does not come without potential costs to the very values precaution is supposed to protect.
Precaution and Pesticides
The same risk-balancing necessary in the drug approval context must be used in the case of agricultural chemicals if the goal is to maximize the protection of public health and the environment. Just as two types of errors can be made in the drug approval process, two types of errors can be made in regulating agricultural chemicals. On the one hand, policy makers may fail to control adequately the pesticides and other chemicals that pose a significant risk to public health or the environment. On the other hand, regulations may prevent or discourage the use of agricultural chemicals that could enhance human welfare and even enhance the protection of public health and the environment.
Pesticides and other agricultural chemicals may present many different risks. Exposure or consumption of agricultural chemicals may pose a direct threat to human health. Misusing such chemicals can also contaminate water supplies, disrupt ecosystems, and harm other animal and plant species.
If agricultural productivity could increase at a rate of 1.5 percent, it is possible we could return nearly 100 million hectares from agriculture to nature.
The risks posed by improper or excessive use of agricultural chemicals are serious, but do not justify precautionary regulation, as there are countervailing risks from the excess regulation of agricultural chemicals. In particular, limits on the use of agricultural chemicals may reduce crop yields, which may require planting more acreage or a price increase for agricultural products. Making fresh fruits and vegetables more expensive may have negative human health impacts as consumers substitute other, less healthy foods. Reducing crop productivity can have serious environmental effects, including the loss of species habitat and consequent effects on biodiversity. If precautionary controls are imposed only on the adoption or introduction of new agricultural chemicals, this may result in the continued use of less safe or less effective compounds, thereby enhancing the very risks precautionary regulation is meant to avoid.
The fungicide ethylene dibromide (EDB) illustrates the risk-risk nature of agricultural chemicals.27 EDB was used to control mold on grains, but was restricted in 1983 due to fears that it was a potential carcinogen. 28Yet molds themselves can be a source of carcinogens in the human diet. Perhaps more important, the agricultural chemicals that replaced EDB were less effective and used in higher quantities, increasing the risk for exposed workers. Thus, while regulating EDB reduced certain risks, it also increased others. The only way to know whether regulating EDB increased the protection of public health and the environment is to compare these risks and weigh them against each other.
The environmental risks of forgoing advances in agricultural technologies are particularly severe. Global food demand is increasing dramatically, in part due to increases in global population. By 2050, there could be nearly nine billion mouths to feed worldwide.
Modern industrial society produced an explosion of potential health and environmental risks, but it also generated a vast degree of wealth and technological advance that led to unprecedented improvements in public health.
It will not be enough for food production and distribution to keep up with increases in population, however. Approximately 800 million people receive inadequate nutrition in their diets at present, and more than 6 million children die annually of malnutrition. If agricultural productivity were held at 1997 levels, the world would need to put more than 1.5 billion hectares under plow to meet increased demand. Yet if agricultural productivity increases by as little as 1 percent a year from 1997 through 2050, that figure drops to an estimated 325 million hectares. If agricultural productivity could increase at a rate of 1.5 percent, it is possible we could return nearly 100 million hectares from agriculture to nature.29 Limiting the development and introduction of new agricultural chemicals will make this task only more difficult. Applying a precautionary regulatory regime to agricultural chemicals could have serious environmental consequences.
Wealthier Is Healthier and Richer Is Cleaner
Advocates of the precautionary principle tend to assume that economic growth and development threaten public health and environmental protection. The Wingspread Statement, for example, speaks of the “substantial unintended consequences” brought about by the industrial society.30 An underlying premise of the precautionary principle is that modern industrial society is unsustainable and threatens human survival, if not much of the planet as well. This assumption is highly questionable.31 Economic growth and technological progress have been a tremendous boon to both human health and environmental protection. Efforts to limit such progress will likely be counterproductive. Regulatory measures that stifle innovation and suppress economic growth will deprive individuals of the resources necessary to improve their quality of life and deny societies the ability to make investments that protect people and our environs.
Modern industrial society produced an explosion of potential health and environmental risks, but it also generated a vast degree of wealth and technological advance that led to unprecedented improvements in public health. For centuries, average life expectancy was scarcely more than a few decades. In 1900, U.S. life expectancy was less than 50 years.32 Today, however, U.S. life expectancy is approaching 80 years.33 Similar advances have been observed in other nations as they have developed.34 Infant and maternal mortality rates plummeted over the past century, as have the incidence and mortality rates of typhoid, diphtheria, tuberculosis, and numerous other diseases.35 These positive trends are largely the result of increased wealth and the benefits such wealth brings. Higher economic growth and aggregate wealth strongly correlate with reduced mortality and morbidity.36 This should be no surprise, as accumulating wealth is necessary to fund medical research, support markets for advanced lifesaving technologies, and build infrastructure necessary for better food distribution, and so on. In a phrase, poorer is sicker, and wealthier is healthier.37
Over the past several decades, pollution levels in wealthy, industrialized societies have declined, particularly in the case of those emissions for which the health impacts are most severe.
Economic progress is no less essential for environmental protection than for protecting public health. Environmental protection is a good, and, like all goods, it must be purchased. Wealth is necessary to finance environmental improvements, from purifying drinking water and controlling raw sewage to developing cleaner combustion technologies and low-emission modes of transport. Wealthier societies have both the means and the desire to address a wider array of environmental concerns and improve public health.38 Economic growth fuels technological advances and generates the resources necessary to deploy new methods for meeting human needs efficiently and effectively. Public support for environmental measures, both public and private, is correlated with changes in personal income.39
Pollution, although still a serious environmental problem in much of the world, is not the mortal threat to human survival it once was. A century ago, soot and smoke permeated cities, sometimes to lethal effect. In 1948, a four-day weather inversion in Donora, Pennsylvania, blanketed the town with pollution from local factories, killing 18 people.40 River fires, such as those that brought infamy to the Cuyahoga, were a relatively common occurrence on industrial waterways in the late 19th and early 20th centuries.41 Over the past several decades, pollution levels in wealthy, industrialized societies have declined, particularly in the case of those emissions for which the health impacts are most severe.42 As environmental analyst Indur Goklany observes, “Countries undergo an environmental transition as they become wealthier and reach a point at which they start getting cleaner.”43 This occurs first with particularly acute environmental concerns, such as access to safe drinking water and sanitation services. As affluence increases, so does the attention paid to conventional pollution concerns, such as fecal coliform bacteria and urban air quality.44
New technologies pose risks, to be sure. This is as true for agricultural and industrial chemicals as for anything else. Without question, some of the chemicals and other technologies targeted by advocates of the precautionary principle can cause problems if misused. Yet it is notable that the proliferation of these technologies has coincided with the greatest explosion of prosperity and longevity in human history. If modern society were as risky as precautionary principle advocates suggest, this should not be the case.
If the precautionary principle is not a useful guide to sound public health and environmental policy, then what explains its appeal? The rhetoric of prudence and caution no doubt appeals to many, but there is also something more. Traditional formulations of the precautionary principle reinforce certain common cognitive biases. At the same time, the principle provides a convenient vehicle for those who seek to advance more controversial ideological or economically motivated policies.
Sensational and unusual risk may command public attention and generate the demand for a policy response, even at great cost, while larger, more mundane risks remain largely ignored.
Sunstein has identified several cognitive biases that reinforce the precautionary principle’s appeal. These include loss aversion, the myth of a benevolent nature, the availability heuristic, probability neglect, and system neglect.45 In a variety of ways, the precautionary principle reinforces people’s natural preference for avoiding risk and the fact that most people “dislike losses far more than they like corresponding gains.”46 Most people also have a difficult time recognizing or accounting for the actual probability of a given event or the nature of trade-offs across risks. At the same time, many people have a particularly “benign” view of nature and the natural world, particularly when compared to modern technology, and people generally tend to focus on those risks that are cognitively “available,” at the exclusion of other risks that may be less transparent or clear. As a consequence, sensational and unusual risk may command public attention and generate the demand for a policy response, even at great cost, while larger, more mundane risks remain largely ignored. Precautionary rhetoric feeds on, and is fed by, these concerns.
Sunstein is almost certainly correct that such cognitive biases reinforce the precautionary principle’s appeal, but there is likely more to the story. The precautionary principle provides a convenient vehicle for those who seek to advance ideological or economic interests in the context of public health or environmental policy. Those who seek to block the development of agricultural biotechnology or reduce the use of chemicals will have limited success with a direct appeal. Couching their opposition in the language of prudence and precaution, however, may help them advance the ball. Presented in such terms, technology-limiting policies appear less radical or disruptive and may garner greater public support.
Economic interests also have reason to adopt precautionary appeals insofar as such appeals enable these groups to erect barriers to competing technologies or firms, close markets, or otherwise use environmental regulations as a tool for rent-seeking. There is a long and sordid history of corporations and industries using environmental regulations for their own private material gain.47 Insofar as these groups seek to prevent market competition, precautionary rhetoric may be particularly valuable. This is especially evident in the trade context, where international trade rules limit countries from closing their markets to goods from abroad, but still allow the adoption of trade barriers with a legitimate health or environmental pedigree. Thus, the EU has resisted imports of hormone-treated beef and agricultural biotechnology with claims that their safety has not yet been proved, even though there is substantial reason to believe that economic interests are the underlying motivation.
In Search of Safety
Can the precautionary principle provide any sort of useful guide for health and environmental policy? Indur Goklany has proposed a set of tiered criteria that could be used to implement the precautionary principle while enhancing health and safety.48 In his framework, greater attention should be paid to identified risks to human mortality and morbidity, for example, than to less certain or immediate environmental threats. His framework may well provide a more effective way to ensure that precautionary policies have a truly precautionary effect, but it clearly does not produce the results most principle advocates defend. As applied by Goklany, for example, the precautionary principle would counsel against restrictions on using DDT and agricultural biotechnology, and it would not support drastic measures to address the threat of climate change.
An underlying premise of the precautionary principle is that modern industrial society is unsustainable and threatens human survival, if not much of the planet as well. This assumption is highly questionable.
Whether or not Goklany’s framework presents the best way forward, one thing should be abundantly clear: True precaution requires recognizing that risks trade against other risks. The risks of new technologies must be weighed against the risks of doing without. The harms of environmental disruptions must be weighed against the consequences of merely preserving the status quo.
The stated aim of the precautionary principle is to enhance protection of public health and environmental concerns. In practice, however, the precautionary principle is only applied to the risks of technological change and industrial society, with little appreciation for the risks that wealth and technology prevent. New technologies can be risky. Some industrial chemicals may cause health problems, even if used carefully. But this does not justify adopting a blanket precautionary rule suppressing chemical use and technological development.
If the true aim is a safer world, and not merely to restrict industrial activity for its own sake or to retard technological progress, the risks of new chemicals or products must be weighed against the risks that they ameliorate or prevent. The risks of change must be weighed against the risk of stagnation. In every case, “the empirical question is whether the health [and environmental] gains from the regulation of the substances involved are greater or lesser than the health [and environmental] costs of the regulation.”49
While the advocates of the precautionary principle rely on the rhetoric of prudence and public health protection, they encourage the exclusive focus on one set of risks while ignoring others. Contrary to what your mother may have told you, “better safe than sorry” isn’t always safer. In fact, when it comes to policies to protect public health and the environment, this type of thinking could do us in.
Jonathan Adler is a professor and director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.
FURTHER READING: Roger Bate and Richard Tren write that "UN Falsehoods Cost Lives," Steven Hayward discusses "Economists in the Wild," and Blake Hurst gives "The Sweet 'n Lowdown on GM Crops." Jonah Goldberg notes "Cooling on Global Warming," Hayward considers "Saving Species as the Climate Changes: Blame Partisan Environmentalists," and Karlyn Bowman and Andrew Rugg provide "Polls on the Environment, Energy, Global Warming, and Nuclear Power."
Image by Darren Wamboldt/Bergman Group.
1. Carolyn Raffensperger and Joel Tickner, “Introduction: To Foresee and Forestall,” in Protecting Public Health and the Environment: Implementing the Precautionary Principle (Washington, DC: Island Press, 1999), 4.
2. Ibid.; Andrew Jordan and Timothy O’Riordan, “The Precautionary Principle in Contemporary Environmental Policy and Politics,” in Protecting Public Health and the Environment, 19.
3. For an overview of the incorporation of the precautionary principle in various international instruments, see Julian Morris, “Defining the Precautionary Principle,” in Rethinking Risk and the Precautionary Principle, ed. Julian Morris (Woburn, MA: Butterworth-Heinemann, 2000).
4. See “Wingspread Statement on the Precautionary Principle,” Science and Environmental Health Network, http://www.sehn.org/wing.html.
5. Cass R. Sunstein, “Throwing Precaution to the Wind: Why the ‘Safe’ Choice Can Be Dangerous,” Boston Globe, July 13, 2008. For a more extensive critique, see Cass R. Sunstein, The Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005).
6. See, for example, 42 U.S.C. §7521(a)(1), which provides in relevant part: “The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Other provisions in the Clean Air Act contain similar requirements.
7. See, for example, Natural Resources Defense Council, Inc. v. Train, 411 F.Supp. 864 (S.D.N.Y. 1976).
8. See 42 U.S.C. §7409(b)(1), which provides in relevant part: “National primary ambient air quality standards, prescribed under subsection (a) of this section shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated.” As interpreted by the Supreme Court, this language precludes considering costs when setting the standards. Whitman v. American Trucking Associations, 531 U.S. 457 (2001).
9. See 16 U.S.C. §1533.
10. See 42 U.S.C. §4332.
11. See, for example, Joel Tickner and Carolyn Raffensperger, “The Politics of Precaution in the United States and the European Union,” Global Environmental Change 11 (2001): 175, 177.
12. Sunstein, Laws of Fear, 14.
13. For an extended discussion of why expanding the range of potentially affected parties who have standing to challenge environmental harms may not improve environmental protection, see Jonathan H. Adler, “Stand or Deliver? Citizen Suits, Standing, and Environmental Protection,” Duke Environmental Law and Public Policy Forum 12, no. 1 (2001): 39–83.
14. Rio Declaration on Environment and Development, UN Conference on Environment and Development, UN Doc. A/CONF.151/5/Rev.1 (1992).
15. United Nations Convention on Biological Diversity, June 5, 1992, preamble.
16. World Charter for Nature, G.A. Res. 37/7, UN GAOR, 37th Sess., Supp. No. 51, at section (II)(11)(b), UN Doc. A/Res/37/7 (1992).
17. As Nobel laureate economist F.A. Hayek observed, “The knowledge of the circumstances of which we must make use never exists in concentrated or integrated form but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess.” F. A. Hayek, “The Use of Knowledge in Society,” American Economic Review 35, no. 4 (1945): 519–30.
18. Treaty on European Union, February 7, 1992, 1992 O.J. (C 191) 1, art. 130R(3).
19. European Commission, Communication from the Commission on the Precautionary Principle (Brussels: Commission of the European Communities, 2000), 7.
20. Ibid., 9–10.
21. See Tim Lougheed, “Understanding the Role of Science in Regulation,” Environmental Health Perspectives 117, no. 3 (March 2009): A109.
22. Tickner and Raffensperger, “Politics of Precaution,” 178.
23. See Jonathan Weiner and Michael Rogers, “Comparing Precaution in the United States and Europe,” Journal of Risk Research 5 (2002): 317–49.
24. Frank B. Cross, “Paradoxical Perils of the Precautionary Principle,” Washington and Lee Law Review 53, no. 3 (1996): 860.
25. Sam Kazman, “Deadly Overcaution: FDA’s Drug Approval Process,” Journal of Regulation and Social Costs (September 1990):
26. This discussion is based on the Kazman article; ibid., 47–48.
27. George M. Gray and John D. Graham, “Regulating Pesticides,” in Risk versus Risk: Tradeoffs in Protecting Health and the Environment, ed. John D. Graham and Jonathan Baert Weiner (Cambridge, MA: Harvard University Press, 1995), 186–87.
28. Cross, “Paradoxical Perils,” 875–76.
29. See Indur M. Goklany, The Precautionary Principle: A Critical Appraisal of Environmental Risk Assessment (Washington, DC: Cato Institute, 2001), 31–32.
30. Raffensperger and Tickner, Appendix A, Protecting Public Health and the Environment, 353–55.
31. For a contrary view, see Bjorn Lomborg, The Skeptical Environmentalist: Measuring the Real State of the World (Cambridge: Cambridge University Press, 2001). For critical consideration of Lomborg’s thesis, see the symposium “The Virtues and Vices of Skeptical Environmentalism,” Case Western Reserve Law Review 53, no. 2 (2002).
32. “United States Life Tables,” National Vital Statistics Reports 56, no. 9 (December 28, 2007): table 11.
33. According to the U.S. Centers for Disease Control and Prevention, life expectancy at birth was 77.7 in 2006. Melonie Heron et al., “Deaths: Final Data for 2006,” National Vital Statistics Reports 57, no. 14 (April 17, 2009): 1.
34. See Nicholas Eberstadt, “Population, Food, and Income: Global Trends in the Twentieth Century,” in The True State of the Planet, ed. Ronald Bailey (New York: Free Press, 1995), 21–26.
36. See, for example, Susan L. Ettner, “New Evidence on the Relationship between Income and Health,” Journal of Health Economics 15 (1996): 67; John D. Graham et al., “Poorer Is Riskier,” Risk Analysis 12, no. 3 (1992): 333–37; Ralph L. Keeney, “Mortality Risks Induced by Economic Expenditures,” Risk Analysis 10, no. 1 (1990): 147–59.
37. This phrasing is attributed to the late Aaron Wildavsky.
38. See Goklany, Precautionary Principle, 22–24, 75–79.
39. See Matthew E. Kahn and John G. Matsusaka, “Demand for Environmental Goods: Evidence from Voting Patterns on California Initiatives,” Journal of Law and Economics 40, no. 1 (1997).
40. Cited in Indur M. Goklany, “Richer Is Cleaner,” in True State of the Planet, 347.
41. See Jonathan H. Adler, “Fables of the Cuyahoga: Reconstructing a History of Environmental Protection,” Fordham Environmental Law Journal 14, no, 1 (2002): 89–146.
42. See Indur Goklany, Clearing the Air: The Real Story of the War on Air Pollution (Washington, DC: Cato Institute, 1999).
43. Goklany, “Richer Is Cleaner,” 339, 341.
44. Goklany observes that although the “environmental transition” for drinking water and sanitation occurs “almost immediately as the level of affluence increases above subsistence,” the transition appears to occur at approximately $1,375 per capita for fecal coliform and $3,280 and $3,670 per capita for urban particulate matter and sulfur dioxide concentrations respectively. Ibid., 342. For a fuller treatment of the correlation between affluence and air quality, see Goklany, Clearing the Air.
45. See Cass R. Sunstein, “Beyond the Precautionary Principle,” John M. Olin Law and Economics Working Paper No. 149, University of Chicago Law School, January 2003.
47. See Jonathan H. Adler, “Rent Seeking behind the Green Curtain,” Regulation 19, no. 4 (1999). See also Michael S. Greve and Fred L. Smith, Jr., eds., Environmental Politics: Public Costs, Private Rewards (New York: Praeger, 1992); and Terry L. Anderson, ed., Political Environmentalism: Going behind the Green Curtain (Palo Alto, CA: Hoover Press, 2000).
48. See Goklany, Precautionary Principle, 8–11.
49. Aaron Wildavsky, But Is It True? (Cambridge, MA: Harvard University Press, 1995), 428.