The Reality of Precaution

Comparing Risk Regulation in the United States and Europe

Jonathan B. Wiener, Michael D. Rogers, James K. Hammitt, Peter H. Sand

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136522550
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

The 'Precautionary Principle' has sparked the central controversy over European and U.S. risk regulation. The Reality of Precaution is the most comprehensive study to go beyond precaution as an abstract principle and test its reality in practice. This groundbreaking resource combines detailed case studies of a wide array of risks to health, safety, environment and security; a broad quantitative analysis; and cross-cutting chapters on politics, law, and perceptions. The authors rebut the rhetoric of conflicting European and American approaches to risk, and show that the reality has been the selective application of precaution to particular risks on both sides of the Atlantic, as well as a constructive exchange of policy ideas toward 'better regulation.' The book offers a new view of precaution, regulatory reform, comparative analysis, and transatlantic relations.

PART I
INTRODUCTION

CHAPTER 1

The Rhetoric of Precaution

Jonathan B. Wiener

Human beings have always faced risks. From prehistoric times to the modern era, successful risk assessment and risk management have been crucial to human survival and progress (Bernstein 1996). Those who manage risks successfully endure and prosper. Many risks have indeed been reduced over time; human life expectancies are now longer than ever before. But those gains may have come at the cost of, or concurrently with, new and emerging problems. New technologies may reduce some risks but also pose new risks; meanwhile, new science may enable detection of previously unseen risks. Longer lifespans, while they represent success against some risks, in turn draw our attention to the longer-term shadows of latent risks. Some say that today, despite our generally greater safety and security compared to our ancestors, we live in a “risk society” (Beck 1992; Peretti-Watel 2001).

Risk is now a global concern. Crises in credit markets, climate change, and international conflict over the past decade have demonstrated the increasing interconnectedness of risks across countries, which suggests the need for effective risk management at the local, national, and international scales. Policymakers confront a wide array of risks and associated demands for protective action on such diverse issues as chemicals, climate, disease, disasters, energy, environment, food, finance, tsunamis, terrorism, and more.

Increasing interconnectedness of risk has at least three implications. First, risks may spread more quickly across borders and populations, thus challenging us to develop earlier warning signals and more coordinated responses. Disease, pollution, financial crisis, and terrorism all illustrate this property of rapid transboundary spread. Second, in an interwoven web of increasingly interconnected risks, each intervention to reduce one risk may yield more trade-offs with other risks and social impacts, near and far, now and later. These side effects challenge us to think more comprehensively about systemic interactions, to make difficult choices among conflicting objectives, and to innovate better policies and institutions to reduce overall risks (Graham and Wiener 1995). Third, and more hopefully, potential solutions and accumulated experience can spread more readily in an increasingly interconnected marketplace of ideas, facilitating learning and borrowing of innovations in risk management, public policy, and law (Simmons et al. 2008; Slaughter 2004; Slaughter 2009; Wiener 2003; Wiener 2006; and Chapter 20, this volume).

Over the last five decades, enormous effort has been put into the construction and operation of risk regulation regimes around the world, particularly in the United States and in Europe. Since the late 1960s, Europe and America have adopted a plethora of new laws, agencies, and policies to protect our environment, health, safety, and security. Entire new government ministries have been created (for example, environmental and consumer regulatory bodies), while existing bureaucracies have been reorganized (for example, into new ministries on homeland security and on energy). Throughout this period, scholars, activists, businesses and regulators have debated how anticipatory and how stringent policies should be to prevent emerging uncertain risks.

The “precautionary principle” (PP), articulated as early as the 1960s, has been at the forefront of this debate since the 1990s. Controversial, it is variously viewed as salvation or blunder. Different summaries of what the PP means include “better safe than sorry,” “uncertainty is no excuse for inaction,” and “uncertainty requires action.” Later in this chapter, we quote several prominent versions of the PP (for more detail on the terms of the PP and its elusive definition, see Sandin 1999; Stone 2001; Trouwborst 2002; Vander Zwaag 1999; Wiener and Rogers 2002; Wiener 2007; and Chapter 20 in this volume). Two decades ago, advocates forecast that the PP “could become the fundamental principle of environmental protection policy and law” (Cameron and Abouchar 1991, 2). Its advance was rapid: “The speed with which the precautionary principle has been brought on to the international agenda, and the range and variety of international forums which have explicitly accepted it within the recent past, are quite staggering” (Freestone 1991, 36). It soon reached the mountaintop: “If international environmental law were to develop Ten Commandments, the precautionary principle would be near the top of the list” (Bodansky 2004, 381). Yet its merits remain hotly contested: “The precautionary principle may well be the most innovative, pervasive, and significant new concept in environmental policy over the past quarter century. It may also be the most reckless, arbitrary, and ill-advised” (Marchant and Mossman 2004, 1).

In the last two decades, this debate over precaution and its ascent has been framed by many as a transatlantic contest for leadership. Who is “more precautionary,” the United States or Europe? This book attempts to answer that question, and to unpack it and critique it. Within this comparative question lies a host of further debates, both descriptive and normative.

Today the oft-repeated claim is that Europe is, or has become, “more precautionary” than the United States in many kinds of risk regulation. In this book we examine that claim, testing the descriptive pattern of precaution in the United States and Europe from 1970 to the present. At least four basic accounts compete to characterize the history of regulatory precaution in Europe and America:

• convergence, driven by globalization and the pressure to harmonize standards;

• divergence, driven by different cultures and by regulatory competition;

• reversal, or “flip-flop,” from greater U.S. precaution in the 1970s to greater European precaution since the 1990s, driven by broad shifts in internal politics and international rivalry; and

• “hybridization,” the exchange of ideas and interweaving of diverse regulatory systems, driven by learning from experience in response to particular risks.

The first three of these accounts treat the United States and European Union (EU) as separate discrete entities, moving in large blocs, like tectonic plates, or “ships passing in the night” (Vogel 2001), or competitors “trading places” (Kelemen and Vogel 2010), or political movements rallying behind an iconic leader (think of Eugène Delacroix’s painting La Liberté guidant le peuple (1830)). The fourth account treats the United States and EU as diverse and increasingly interconnected, more like complex interdependent communities in large ecosystems, or the myriad inhabitants of a landscape who are busy with their daily activities even as occasional momentous events punctuate their lives (think of the paintings of Pieter Bruegel the Elder, such as The Numbering at Bethlehem or The Fall of Icarus).

A Fresh Comparative Analysis

To move beyond claims based on just a few celebrated examples, in the present volume we assess a wide array of U.S. and European policies from 1970 to the present. We examine a dozen case studies in depth, including risks connected with food safety (genetically modified [GM] foods, beef hormones, and mad cow disease), air pollution, climate change, nuclear power, tobacco, chemicals, marine and terrestrial biodiversity, medical safety, and terrorism, as well as precaution embodied in risk information disclosure and risk assessment systems. In addition to these detailed case studies, we also conduct a broad quantitative analysis of relative precaution in a sample of 100 risks drawn from a dataset of nearly 3,000 risks over the period 1970 to the present. Our hope and expectation is that, taken together, these case studies and the quantitative analysis offer a more thorough and representative picture of the real pattern of precaution than has been captured by prior studies that focused more narrowly on selected risks. Looking across these descriptive inquiries, we then devote four chapters to investigating the causes of the observed pattern of precaution. In the final chapter, we synthesize our findings about the real pattern and consequences of precaution, and we offer recommendations for methods of comparing regulatory systems, for desirable regulatory policies, and for transatlantic relations and the exchange of ideas.

Our focus in this book is on the descriptive comparison and evolution of regulatory systems. Normatively, this book neither defends nor attacks precaution per se. Nonetheless, we do attempt to draw from the historical evidence some findings about the impacts of different policies, and we do offer some recommendations for future policy and future research. We recognize that the normative debate has been vigorous. Some laud the PP as essential to surviving dire risks (e.g., Raffensperger and Tickner 1999; Bourg and Schlegel 2001; Whiteside 2006; de Sadeleer 2007). Others condemn the PP as misguided and overregulatory or disabling (e.g., Cross 1996; Morris 2000; Goklany 2001; Sunstein 2005). The descriptive assertion or assumption that Europe is now more precautionary than the United States is often conflated with the normative debate over precaution. Some adopting this view see a civilized, precautionary Europe confronting a risky, reckless, and violent America (e.g., Richter 2000; Rifkin 2004), portraying the precautionary principle as an antidote to industrialization, globalization, and Americanization. Others also adopt the view of greater European precaution, but see a statist, technophobic, protectionist Europe trying to challenge a market-based, scientific, entrepreneurial America (e.g., Redwood 2001), portraying the precautionary principle as an obstacle to science, trade, and progress. U.S. and EU officials have publicly traded barbs over the PP. Our aim in this project has been to move beyond the acrimony over precaution as an abstract principle to see what can be learned from studying precaution as applied in real regulations.

We study the United States and Europe here, in part because we are responding to the comparisons between them that have been made by eminent scholars (e.g., Jasanoff 2005; Vogel 2003; Vogel, forthcoming), and in part because of their large impacts—both directly and through the examples they set for other countries (Hall and Soskice 2001; Pollack and Shaffer 2001). The United States and Europe are the world’s two largest economies, and major trading partners. Together they comprise about a tenth of the world’s population but contribute almost half of world economic output, along with more than a third of global greenhouse gas emissions (though declining shares of each). Both have seen strong public demands for protection against risks to environment, health, safety, and security. They have among the most extensive and well-developed systems of regulation. To be sure, other countries can and will play important roles. Other member states of the Organisation for Economic Co-operation and Development (OECD), such as Canada, Japan, and Australia (see, e.g., Fisher et al. 2006)—along with rising powers such as China, India, and Brazil—can and will influence debates over risk regulation. China and India have already played pivotal roles in global climate change negotiations, in part through their implicit influence on U.S. policymakers (Stewart and Wiener 2003). Indeed, one of the pitfalls in comparing U.S. and European risk regulation is the exaggeration of transatlantic differences that are small relative to the larger variation around the world. Moreover, significant variation exists within the United States and within Europe: for example, California and Sweden often adopt highly precautionary policies that influence their sister states and their federal or supranational regulators; and the United Kingdom (UK) often plays an intriguing intermediary role between the United States and continental Europe. Nonetheless, the EU and the United States play the most prominent roles in shaping the debate over precaution—some scholars even contend that these two giants are the only polities with the capacity for global leadership on environmental and regulatory issues (Kelemen and Vogel 2010; Vig and Faure 2004), although the criteria for being a “leader” are seldom specified. Staunch allies since World War II, they have sustained a spirited debate over when and how to regulate risks during at least the two decades since the end of the Cold War. The study of that debate can offer important insights for the future of risk regulation in the United States, Europe, and beyond.

We study the period from about 1970 to the present because it represents the modern regulatory era among wealthy democracies. On both sides of the Atlantic, the 1970s saw the first Earth Day, the first United Nations Conference on the Environment (in Stockholm in 1972), and an explosion of lawmaking on environment, health, and safety (Scruggs 2003, 20). Moreover, claims of shifting precaution posit that precautionary regulation began to arise around 1970 (e.g., Vogel 2003). Further research could extend our study further back into history, perhaps in a subsequent book.

The Claim of Greater European Precaution

The concept of precaution and the notion of rival cultural dispositions toward precaution on each side of the Atlantic are not new. But the codification of the PP as a legal doctrine, and the claim that Europe has become “more precautionary” than the United States by adopting the PP in formal laws and regulations, are modern constructs.

Cultural Roots?

Long-held cultural stereotypes depict Americans and Europeans as opposites. Robert Kagan says Americans are from Mars and Europeans are from Venus (Kagan 2003). Serge Sur suggests instead that Americans are the strong but doomed Achilles, whereas Europeans are the wily and surviving Odysseus (whom the French and the Irish call Ulysses) (Sur 2004). Richard Posner, however, argues that it is Ulysses, rather than Achilles, who is closest to American pragmatism, because “his dominant trait is skill in coping with his environment rather than ability to impose himself upon it by brute force” (Posner 2003, 27). Meanwhile, John Dryzek divides environmental discourses between the “Survivalists” (with most Europeans probably fitting that label) and the “Prometheans” (including Americans) (Dryzek 1997, 23, 44; Dryzek 2006, 18; Dryzek 2007, 51). Others have described America and Europe as family members, variously as cousins (Patten 2006), as siblings with rivalries both mythical and empirical (Mock 2004), or as a mature European parent with an American offspring still in a rough adolescence (Markovits 2007).

According to prevalent stereotypes today, Americans are said to be individualistic, technologically optimistic, forward-looking, risk-taking, and antiregulatory, confident that new technology and the power of markets will solve every problem and that precaution is a waste of time and a hindrance to progress. Europeans are said to be more collectivist, technologically anxious, retrospective, risk-averse, afraid of the unknown, afraid of new technologies (especially American) and of global markets, and pro-regulatory, indeed eager to adopt precautionary regulations against remote and speculative risks (Kempton and Craig 1993, 16–20, 41–45; Levy and Newell 2000, 10). Even The Economist put it this way: “Tastes in risk vary across countries. Europe is considered fairly risk-averse. … America, on the other hand, is often seen as having a strong risk-taking culture” (Economist 2004). Some might imagine that these cultural stereotypes derive from the history of self-selection over the last five centuries, as a result of which Americans (at least those who are descended from Europeans) may see themselves as the risk-takers who ventured across the ocean to the land of opportunity, while Europeans may see themselves as the risk-averse who stayed home to safeguard their culture and patrimony.

But these are all stereotypes, not empirical re...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• About Resources for the Future and RFF Press
• Contents
• Preface
• Contributors
• Part I Introduction
• Part II Case Studies of Relative Precaution Regarding specific Risks
• Part III Precaution in Risk Information Systems
• Part IV A Broader Empirical Test of Relative Precautions
• Part V Can we Explain the Observed Pattern of Precaution?
• Part VI Conclusions
• Acknowledgments
• Index