Student Essay October 25, 2005 MILLER AND CONKO'S CRITIQUE OF THE PRECAUTIONARY PRINCIPLE Nina Therkildsen firstname.lastname@example.org The precautionary principle is increasingly being invoked in debates over environmental and public health policy, and throughout the world it has been incorporated into legislation at both national and international levels. Although there is no verbatim definition of the precautionary principle, it is clear that its basic premise is anticipatory action: where there is a potential threat to humans or the environment, action should be taken to prevent damage -- even if there are still scientific uncertainties about cause-effect relationships (e.g., Sandin 1999, Bodansky 1991, Harremoes et al. 2002). While many believe that the precautionary principle is the key to dealing effectively with global environmental problems, others see it as a threat to science-based management and antagonistic to human development. Henry I. Miller and Gregory Conko have recently published a series of articles challenging the legitimacy of precaution as a guiding principle in environmental policy-making (e.g., Miller and Conko 2001a, 2001b, 2001c, Conko 2003). They argue that the precautionary principle promotes arbitrary decisions that serve to paralyze industrial progress, inhibiting development of risk-reducing technologies so that, in effect, excessive precaution may end up increasing the overall level of harm that society experiences. A main thrust of their criticism is that the precautionary principle is not clearly defined and that it means different things to different people. Yet, ironically, instead of considering and challenging several possible interpretations of the precautionary principle, they structure their entire argument around demolishing the logic behind a highly simplified and very narrow definition the precautionary principle -- a definition that is widely different from the broad interpretation promoted by most supporters of the precautionary principle (such as the European Science and Technology Observatory (ESTO) 1999, CEC 2000, Harremoes et al. 2002). This incongruence arises mainly because Miller and Conko focus exclusively on one aspect of the precautionary principle -- the preventive action in face of uncertainty -- whereas observers both in academia, governments, and NGO's generally agree that the precautionary principle encompasses additional components such as acknowledging, rather than concealing, scientific uncertainty and ignorance, exploring a range of alternatives to potentially harmful actions, and making decisions in an open, informed, and democratic way with increased public participation (e.g. CEC 2000, Raffensperger and Tickner 1999, ESTO 1999, Kriebel et al. 2001, Harremoes et al. 2002). In this paper I argue that when those who are trying to operationalize and implement the precautionary principle envision it as being multidimensional and broad, Miller and Conko's attack on a narrow and incomplete interpretation is misguided: instead of contributing to the overall debate about the merits and shortcomings of the precautionary principle, Miller and Conko are fundamentally talking at cross purposes with supporters of the principle. Miller and Conko do not articulate a relevant criticism of how the precautionary principle is incorporated into environmental policy, but simply erect a "straw man" that they then shred to pieces. Rather than providing a comprehensive response to their argument, I try to demonstrate my point by focusing on two of Miller and Conko's important postulations: 1) that the precautionary principle makes government regulators less accountable because the lack of a clear definition allows them more discretion and provides them with a pretext to justify arbitrary decisions; and 2) that the precautionary principle infringes on people's personal freedom. For both these points, we see that only in the context of Miller and Conko's narrow definition of the precautionary principle do these claims make sense; when viewed within the framework of policy changes that proponents of the precautionary principle suggest, these postulations are easily dismantled. In terms of the first postulation, Miller and Conko are clearly correct in claiming that the lack of a clear definition makes it difficult to operationalize the precautionary principle; there can be no dispute that when there is no legal consensus on how to interpret the principle, it is impossible to develop a formulaic standard procedure for its implementation (Bodansky 1991, Sandin 1999). However, Miller and Conko suggest that the inevitable consequence of not having a standard procedure for applying the precautionary principle is that government regulators become less accountable than they are under the current management regime. This view is strongly at odds with the basic premises of a broad definition of the precautionary principle. According to the logic of the ESTO (1999), Harremoes et al. (2002) and many others, the precautionary principle should actually minimize the personal discretion granted policy-makers and scientific experts and to a greater extent leave important decisions about risk assessment and risk management in the hands of the general public. In order to develop this argument, we must look more closely at the reasoning behind Miller and Conko's assertions. Throughout their papers they claim that precaution is not necessary for effective environmental regulation because current methods used in risk assessment and management realistically portray the magnitude and severity of risk faced by society. They argue that the assessment of risks is scientifically sound because it is based on standardized methods that in a completely neutral and value-free manner yield unambiguous numerical indices which easily and consistently can be translated into prescribed policy actions. This claim clearly relies on the basic assumption that scientific assessments are accurate and objective and that science can provide all the input that is needed to make good policy. However, experience and empirical evidence is accumulating to demonstrate that none of these assumptions are true (Santillo et al. 2000, Lackey 1994, Johnston et al. 1996). First of all, there are inherent limitations to the knowledge we can obtain through scientific methods. At the most basic level, our findings are limited by what questions we ask; we simply do not know what we do not know (Wynne 1992). Furthermore, the experimental design typically used in risk assessment studies leave a number of uncertainties and indeterminacies that are typically not accounted for and not explicitly identified (Santillo et al. 2000, Power and Adams 1997). In order to come up with a numerical indicator in face of this uncertainty, risk assessors are forced to make value judgments about which data to collect, how to simplify available facts into simple models, how to extrapolate because of unknowns, how to select the statistical tests to be used, how to select sample size, and which exposure-response model to employ (Power and Adams 1997). When different risk assessors make different choices about these issues and accept different assumptions to overcome uncertainties, results can vary widely. For example, when eleven European governments, in an exercise, established teams of experts to predict the probability of accidental release of ammonia, the teams came up with eleven different risk estimates ranging from 1 in 400 to 1 in 10 million (Contini et al. 1991). Another example is provided by ESTO (1999) who compared values obtained over a number of years by industry and government-sponsored studies in industrialized countries of the risks and environmental impacts associated with modern coal-fired electricity generating technologies (expressed as monetary external costs). The results ranged from 20$ per kilowatt hour to less than four hundredth of a cent per kilowatt hour -- a difference of more than 4 orders of magnitude. When different studies based on the same dataset come up with such varying results, it is painfully obvious that risk assessments are not objective; in fact, it appears that the results can often be entirely dependent upon the assumptions made by the risk assessors (Santillo et al. 2000, Power and Adams 1997). Under the risk assessment system, setting these assumptions is seen as a scientific matter, for scientists alone to resolve, but really it is a highly subjective process filled with social and political implications that require a wider debate (Wynne and Mayer 1993). As a result, government regulators under the risk assessment regime are actually not basing their decisions on objective knowledge -- rather they justify their actions through information that carries a veneer of scientific soundness, but is really a result of subjective judgments by experts. Contrary to what Miller and Conko argue, the current risk management system gives an enormous amount of discretion to risk assessors and managers because it distorts the relationship between value judgment and expert opinion (Wynne 1992). When scientists are granted mandate to make decisions that have no basis in science, the public is disenfranchised with regards to issues that have great implications for society as a whole. Under the precautionary principle, policy makers should not assume that science can answer all questions needed for risk management, but instead recognize that a large component of risk assessment and management relies on value-judgments (Kriebel et al. 2001, Power and Adams 1997). When the uncertainties, ignorance, and indeterminacies inherent to scientific knowledge are made explicit and are emphasized, rather than hidden or downplayed, regulators must acknowledge the limitations to their knowledge and can turn decision-making in to a more open process where there is room for public input at all steps of the process. This means that regulators under the precautionary principle are more accountable because they have to justify their actions based on value judgments made by society and cannot hide behind a guise of supposedly objective information that in an ideal world would give a simple answer to difficult policy questions. Miller and Conko's claim that the lack of a standard procedure makes it impossible to implement the precautionary principle in a consistent way is misguided, because a central tenet in the precautionary principle is that risk is multidimensional and that knowledge cannot be reduced to simple numericals or yes/no answers (ESTO 1999). The level of proof that is appropriate for a particular issue depends on a number of complex factors including the size and nature of the potential harm, the claimed benefits, the available alternatives, and the potential costs of being wrong in both directions, i.e., of acting or not acting in the context of uncertainty, ignorance and high stakes (Harremoes et al. 2002). Each situation must be considered individually, and there can be no analytical fix for the problems encountered in the social appraisal of risk because the relative priority attached to different dimensions of risk is intrinsically a matter of subjective value judgment (ESTO 1999, Harremoes et al. 2002). Hence, the precautionary principle gives consistency a new meaning. In the risk assessment regime, consistency is about following standardized procedures that give an appearance of objectivity, but actually produces subjective, arbitrary, and incomplete numericals to be translated into policy actions. Under the precautionary principle, on the other hand, consistency is about looking carefully at what we know and don't know in each situation, taking into account notions of uncertainty and ignorance, and then make decisions that are compatible with the level of risk society finds acceptable. Conko reveals his misunderstanding of this fundamental aspect of the precautionary principle by saying that "it is not a risk assessment tool; our debate is about risk management" (Conko 2003, p. 640). This way he assumes that the precautionary principle would not change the way we look at science, only the way we translate the results of typical risk assessments into policy decisions. This is clearly a faulty interpretation; risk assessment and risk management are integrated processes and the precautionary principle represents an overarching way of thinking about that process (Santillo et al. 2000, ESTO 1999). The dimension of ignorance and indeterminacy cannot simply be added to the standard risk assessment procedure. Hence, the precautionary principle is not simply about taking awkward decisions in face of uncertainty and ignorance; it is as much a function of styles of government, patterns and power, and changing interpretations of participation and value in a complex world and changing society (HarremoŽs et al. 2002, Wynne 1992). When viewed through this broad interpretation, it is clear that the precautionary principle makes government regulators more accountable because environmental policy-making should to a greater extent become a public process reflecting the values of society, instead of being governed by isolated experts who potentially could abuse public trust by claiming to be objective when they are actually making highly subjective value-judgments on issues that affect the entire society. If the public is granted a more central role in risk assessment and management under the precautionary principle, we can expect that their freedom to choose what risks they are willing to accept would be increased. Therefore, it seems somewhat paradoxical that Miller and Conko claim that the precautionary principle infringes on individual freedom; they argue that this loss of freedom could occur at two distinct levels: 1) corporations could be prohibited from developing new products (because they would have to show that they were "safe" before they were marketed) and 2) consumers could have less freedom to choose between goods (because they would not have the option of choosing those products that were deemed potentially harmful and hence removed from the market). When following the logic of the interpretation of the precautionary principle promoted in ESTO (1999), Harremoes et al. (2002) and many others, these claims make little sense. The consumers that Miller and Conko claim will lose their freedom to choose goods are the very same "general public" that is given more input in the policy-making process under the precautionary principle. The precautionary principle is not about achieving zero risk, as such a condition is rarely if ever possible (CEC 2000). Hence, people (the "consumers" and "general public") have the opportunity to make conscious decisions about what products they want access to, taking into account their potential risk. This way, the precautionary principle does not take the freedom to choose away from consumers, it only allows them to make these choices at an earlier stage in technology development. In addressing Miller and Conko's concern about loss of freedom at the corporate level, it is important to stress that the precautionary principle does not call for a complete ban on all industrial progress and does not hamper all industrial activity (Raffensperger and Tickner 1999). Surely, it may prevent corporations from marketing certain products that are deemed to confer a potential threat, but that loss of freedom suffered by a relatively small number of individuals is more than outweighed by the increased freedom the general public gets by not having to absorb the costs if the threat materialized -- it is a question of equitable cost and benefit sharing because the precautionary principle is about finding the best way to meet society's needs. If freedom could be assessed per capita, then we are likely to increase the overall level of freedom in society by minimizing activities that can provide great profit to a few people but the externalities of which can confer great costs upon society -- exactly what the anticipatory action prescribed in precautionary principle is supposed to achieve. It is interesting that some of the central points in Miller and Conko's argument against the precautionary principle can be echoed back by proponents of the precautionary principle as criticisms of the current environmental regulation regime. Miller and Conko claim that the precautionary principle would make government regulators less accountable; proponents of the precautionary principle argue that regulators face a low level of accountability under the current system because the general public is entirely disenfranchised in the decision-making process. Similarly, Miller and Conko argue that the precautionary principle infringes on personal freedom both at the level of corporations and consumers; proponents of the precautionary principle would argue that it can increase the overall level of freedom in society by promoting cost and benefit sharing. When opponents can use identical accusations against each other, there are clearly some fundamental misunderstandings that make this argument static. It is clear that there is significant incongruence between what Miller and Conko are criticizing and what people who are working towards operationalizing and implementing the precautionary principle are really promoting (e.g. ESTO 1999, Harremoes 2002). Either the proponents of the precautionary principle have failed to communicate what they stand for, or Miller and Conko have failed to listen. In any case, talking at cross purposes is not productive and therefore Miller and Conko's contribution will hardly help bring forward the general debate surrounding the precautionary principle. Their publications may work as adequate propaganda to win over people uninformed about the true issues in this debate, but if they want their voice to be taken seriously by a broader audience, they must attune their argument to attacking the interpretation of the precautionary principle that is being promoted by its supporters rather than focus on an oversimplified caricature. LITERATURE CITED: Bodansky, D. 1991. Scientific uncertainty and the precautionary principle. Environment 33:4-5, 43-44. Commission of the European Communities (CEC). 2000. Communication from the Commission on the precautionary principle. Commission of the EC COM(2000)1. Brussels. Conko, G. 2003. Safety, risk and the precautionary principle: rethinking precautionary approaches to the regulation of transgenic plants. Transgenic Research 12:639-647. Contini, M., A. Amendola and I. Ziomas. 1991. Benchmark exercise on major hazard analysis. Commission of the European Communities EUR 13386 EN. Luxembourg. European Science and Technology Observatory (ESTO). 1999. On science and precaution in the management of technological risk. Institute for Prospective Technological Studies. Sevilla, Spain. Harremoes, P., D. Gee, M. MacGarvin, A. Stirling, J. Keys, B. Wynne, and S. G. Vaz (eds.). 2002. The precautionary principle in the 20th century: late lessons from early warnings. Earthscan. London, UK. Johnston, P., D. Santillo, and R. Stringer. 1996. Risk assessment and reality: recognizing the limitations. pp. 223-239 in Quint, M. et al. (eds.). Environmental impact of chemicals: assessment and control. Royal Society of Chemistry. Cambridge, UK. Kriebel, D., J. Tickner, P. Epstein, J. Lemons, R. Levins, E. L. Loechler, M. Quinn, R. Rudel, T. Schettler, and M. Stoto. 2001. The precautionary principle in environmental science. Environmental Health Perspectives 109:871-876. Lackey, R.T. 1994. Ecological risk assessment. Fisheries 19:14-18. Miller, H.I. and G. Conko. 2001. Precaution without principle. Nature Biotechnology 19:302-303. Miller, H.I. and G. Conko. 2001. The perils of precaution. Policy Review 107 http://www.policyreview.org/jun01/miller.html (Accessed 6 February 2004). Miller, H.I. and G. Conko. 2001. Precaution (of a sort) without principle. Priorities for Health 13 http://www.acsh.org/publications/priorities/1303/coverstory.html (Accessed 6 February 2004). Power, M and S.M. Adams. 1997. Charlatan or sage? A dichotomy of views on ecological risk assessment. Environmental Management 21:803-805. Raffensperger, C. and J. Tickner (eds.). 1999. Protecting public health & the environment: implementing the precautionary principle. Island Press. Washington, D.C. Sandin, P. 1999. Dimensions of the precautionary principle. Human and Ecological Risk Assessment 5:889-907. Santillo, D., P. Johnston, and R. Stringer. 2000. Management of chemical exposure: the limitations of a risk-based approach. International Journal of Risk Assessment and Management 1:160-180. Thornton, J. 2000. Pandora's poison: chlorine, health and a new environmental strategy. MIT Press. Cambridge, MA. Wynne, B. 1992. Uncertainty and environmental learning. Global Environmental Change (June):111-127. Wynne, B. and S. Mayer. 1993. How science fails the environment. New Scientist (5 June):33-35.