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

Conceptual model of salt marsh management on Merritt Island National Wildlife Refuge, Florida: final report

Diking and holding water on salt marshes ("impounding" the marsh) is a management technique used on Merritt Island National Wildlife Refuge (MINWR) and elsewhere in the Southeast to: a) prevent the reproduction of saltmarsh mosquitos, and b) attract wintertering waterfowl and other marsh, shore, and wading birds. Because of concern that diking and holding water may interfere with the production of estuarine fish and shellfish, impoundment managers are being asked to consider altering management protocol to reduce or eliminate any such negative influence. How to change protocol and preserve effective mosquito control and wildlife management is a decision of great complexity because: a) the relationships between estuarine organisms and the fringing salt marshes at the land-water interface are complex, and b) impounded marshes are currently good habitat for a variety of species of fish and wildlife. Most data collection by scientists and managers in the area has not been focused on this particular problem. Furthermore, collection of needed data may not be possible before changes in protocol are demanded. Therefore, the purpose of this document is two-fold: 1) to suggest management alternatives, given existing information, and 2) to help identify research needs that have a high probability of leading to improved simultaneous management of mosquitos, waterfowl, other wildlife, freshwater fish, and estuarine fish and shellfish on the marshland of the Merritt Island National Wildlife Refuge. (92 page document

Looking Backward, Looking Forward: The Next 40 Years of Environmental Law

The only certainty concerning predictions for the future of the environment is that most of them are likely to be wrong. This is illustrated by the fate of past predictions, such as those contained in Paul Ehrlich\u27s Populations Bomb, Gregg Easterbrook\u27s A Moment on the Earth, and Bjørn Lomborg\u27s The Skeptical Environmentalist. While it is difficult to guess at the future of the environment, predictions concerning environmental law are even more hazardous because they turn in large part on the future of politics. After reviewing current political gridlock over environmental concerns, this Article considers contemporary forecasts of the fate of the planet (including those contained in Al Gore\u27s The Future and the 2052 Report) and the role of technological change in creating opportunities for environmental progress

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