Who\u27s Afraid of the Precautionary Principle?

The precautionary principle – the notion that lack of scientific certainty should not foreclose precautionary regulation – has become enormously popular in recent years, as reflected by its endorsement in many important international declarations and agreements. Despite its growing influence, the precautionary principle recently has come under fire by critics who argue that it is incoherent, potentially paralyzing, and that it will lead regulators to make bad choices. They maintain that society faces greater peril from overly costly regulations than from exposure to sources of environmental risks whose effect on human health and the environment is not fully understood at present. This paper argues that critics of the precautionary principle are attacking a straw man. It maintains that they are confusing the precautionary principle with the separate question of how precautionary regulatory policy should be. While precaution long has been an important element of much of U.S. environmental law, in practice, only in rare circumstances have activities that generate environmental risks been subjected to strict regulatory action when the risks they generate were entirely theoretical. Although such truly precautionary regulation is rare, the essential notion embodied in the precautionary principle -- that uncertainty should not be used as an excuse to eschew cost-effective preventive measures -- is fundamental to modern environmental law’s quest to transcend the limits of its common law legacy. It does not require that innovation come to a halt whenever any risks may be conjured. The paper argues that, properly understood, the precautionary principle is neither incoherent, paralyzing, nor a prescription for overregulation. Rather it cautions that regulatory policy should be pro-active in ferreting out potentially serious threats to human health and the environment, as confirmed by the history of human exposure to substances such as lead and asbestos

Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions Under Section 404 of the Clean Water Act

This paper focuses on a public trust resource -- wetlands -- and examines an issue that has been studied primarily with reference to health-based pollution-control statutes. This paper assesses whether information gaps create an obstacle to successful regulation under section 404 of the Clean Water Act (CWA or the Act ) as it applies to discharges of dredged and fill material in wetlands. It focuses on how section 404 and the regulations governing permitting determine information demands, information supply, and the legal consequences of a gap between supply and demand. The goal of this inquiry into the demand/supply/consequences scheme is to determine if, taken as a whole, the scheme is coherent and rational in light of the policies that underlie section 404

Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions Under Section 404 of the Clean Water Act

Symposium: Missing Information: The Scientific Data Gap in Conservation and Chemical Regulation, held on March 24, 2006 at Indiana University School of Law- Bloomington

Risk, Uncertainty and Precaution: Lessons from the History of US Environmental Law

Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy. This chapter reviews controversies over regulatory policy through the lens of history. It discusses the precautionary principle and why it is valuable even if it does not purport to answer the question of how stringent regulatory policy should be. It also considers recent studies that assess whether regulatory policy is more precautionary in the United States or the European Union and why it is difficult to make confident, comparative conclusions. The chapter then examines the history of how precaution has been incorporated into U.S. environmental law. It demonstrates that, despite the law’s promise to prevent harm before it occurs, regulatory policy has been largely reactive, concentrating primarily on highly visible problems only after harm has become manifest. After reviewing the state of contemporary regulatory politics in the U.S., the chapter concludes by analyzing lessons that can be learned to improve future regulatory policy

Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions Under Section 404 of the Clean Water Act

Symposium: Missing Information: The Scientific Data Gap in Conservation and Chemical Regulation, held on March 24, 2006 at Indiana University School of Law- Bloomington