Stratfor: Public Policy Intelligence Report  [Printer-friendly version]
May 25, 2006


[Rachel's introduction: Stratfor, a corporate intelligence service,
describes our upcoming conference in Baltimore and offers its readers
a lengthy opinion about the state of precautionary thinking in the

By Bart Mongoven

Leading advocates of chemical policy reform will meet in Baltimore in
early June to discuss progress made in changing how the United States
regulates chemicals, genetically modified organisms (GMOs) and
products of nanotechnology. The title of the conference, "Taking
Precautionary Action," suggests that these activists will meet as
advocates not just of regulatory policy reform, but as advocates of
the precautionary principle.

The word choice is interesting, because the "precautionary principle"
-- from which the conference title derives -- is no longer at the
center of regulatory reform efforts. Nevertheless, advocates of the
principle who attend the conference will have a great deal to
celebrate. The precautionary principle -- which advocates a certain
forward-looking decision-making ethic for regulators -- is taking hold
in commerce, but the way in which it is emerging is quite different
from that envisioned by the most ardent supporters of the principle.
Ultimately, the conference's title and agenda suggest that the goals
of those who support the precautionary principle have changed markedly
in the past few years and -- as a result -- are poised to become far
more effective in the United States than ever before.

The significance of the advocates' discussion ultimately does not lie
in questions about who is winning tactical debates or even whether the
precautionary principle will survive as a regulatory tool. The
important question is, instead, how far activists will be able to push
more traditional, familiar types of regulatory reform while still
clinging to the rhetoric of the precautionary principle debate.

Precaution: The Regulatory Context

In its pure form, the precautionary principle demands that a practice
or product should not be permitted by regulators unless it has been
proven not to do harm. Ten years ago, this argument was presented in
highly moral terms. Its advocates claimed that creators and producers
of goods in commerce should know beyond doubt that what they are
selling is safe -- and further, that it is immoral for them to place
consumers in harm's way or treat their customers as guinea pigs or
canaries in coal mines.

Though this sentiment was, framed in those terms, unobjectionable,
turning that into a foundation for regulatory decision-making
processes has proven difficult. Advocates framed the principle as the
antithesis of risk assessment in determining how chemicals in
commerce, nanotechnologies, and GMOs should be regulated. At that
point, the debate stalled.

At a basic level, the precautionary principle sounds like common sense
to most people, who are inculcated from an early age with admonitions
to "look before you leap" or that it is "better to be safe than
sorry." The practice is invoked, at some level, in people's daily
lives. However, everyone's threshold of risk tolerance differs: Some
people refuse to fly; others not only fly, but sky dive. In the
regulatory context, this means that it is impossible to enforce a
precautionary principle for an entire society without severely
curtailing human action. This has been a perpetual problem with the
principle as a regulatory tool.

To make it easier for the public to understand their goals, advocates
have defined four elements of the precautionary principle:

-- Taking precautionary action before cause and effect relationships
are established scientifically, if there are concerns that an activity
might pose a threat to health or the environment.

-- Placing the burden of proof on the proponent of an activity
(usually industry) in determining whether an activity or product is

-- Demanding "open, informed, and democratic" decision making
structures for regulators, and thus placing approval of an activity
under a political process.

-- Requiring alternatives assessment -- that is, shifting the central
organizing principle of policymaking away from quantifying and
managing risk, and toward minimizing risk to the greatest extent
possible. Rather than asking what level of pollution is safe or
acceptable, activists reason, society should constantly strive to find
the least hazardous or dangerous alternatives available for achieving
the same goals, and industry should be required to use them.

In early attempts to apply the principle to regulatory decision-
making, advocates of the precautionary principle often got hung up on
the first element above. The tendency was to argue that an activity or
product should not be allowed until it had been proven not to cause
harm. The problem was that, despite centuries of careful thought and
study, proving a negative remains impossible, so applying this strict
standard was never a credible approach. And parsing the issue -- for
instance, defining whether a practice or substance gave rise to
"concerns" -- proved too vague for the precautionary principle to
withstand scrutiny from legislators or regulators.

In response to early failures, most precautionary principle advocates
simplified the issue into one that simply demanded a reversal in the
burden of proof standard. In order to win regulatory approval, the
party that wants to make something new must convincingly show that the
product, process or practice is not harmful. Advocates compare the
precautionary principle in this form to the reversal of the burden of
proof that drug companies face in phased trials.

While this makes sense in a vacuum, it has a clear stifling effect in
the regulatory context. Drug companies invest millions of dollars and
tremendous man-hours in convincing Federal Drug administration boards
that a proposed drug is safe and effective. Now imagine having to go
through a similar test for every new cleaning solution, every new
nanoparticle created, every new genetic manipulation. The process
would be clumsy and wasteful (and if drug approval is any model, a
streamlined system likely would be more prone to mistakes -- allowing
unsafe products onto the market while banning safe ones).

Policy reform advocates have called for regulators to focus on those
substances that are most heavily used in commerce and those with
characteristics that make them inherently more likely to be
problematic. Demanding that some products and processes be proven safe
-- but not forcing the issue for others -- is fundamentally at odds
with the application of the "precautionary principle."

And this is where things get impossibly fuzzy. If the precautionary
principle is based on the belief that the only moral course of action
is to force the maker of a product to prove the product safe, invoking
it occasionally is not enough. Practicing only half of a precautionary
principle is not precautionary. Half a precautionary principle means
either invoking an ethic with no follow-through, or more
interestingly, the dramatic politicization of regulatory decision-
making -- placing the advance of science and technology in a
completely political forum.

Examples of both problems can be found in Europe, which has not found
a solution to either. Almost all E.U. laws or regulations drafted this
decade invoke the precautionary principle, but it is seldom used as a
decision-making tool. The principle has been invoked in contexts like
the emerging chemical policy reform known as REACH, under which the
stringency of testing standards for chemicals likely will be
correlated to the volume of their usage in commerce. This is a logical
policy but does not, of course, rise to the level of the precautionary
principle as defined above.

Europe also is grappling with the politicization of science and
technology as a result of the precautionary principle, which was
invoked for more than a decade in the battle over whether Europe would
import GMOs. There was no clearly risk-based reason to exclude GMOs
from the market, so regulators invoked the principle to justify the
E.U.'s opposition to the imports. The E.U. was forced to change its
law after the World Trade Organization judged the use of the principle
to be a non-tariff barrier to trade. Nevertheless, the appeal of the
precautionary principle can still be seen among the many European
consumers who were sold on the notion that GMOs actually posed a
danger to their health.

Precautionary Elements: Coming Into Practice

With de jure adoption of the precautionary principle making little
headway, it is interesting to see the various ways in which the
principle is being used. What is emerging in the United States is a
new approach to risk and risk policy, one that does not demand purity
or portray risk as morally repugnant. Instead, some of the elements of
the four-part definition of the precautionary principle are coming to
the fore in their own right. This does not necessarily add up to
regulatory adoption of the precautionary principle, but it does signal
that decision-makers are being pushed away from pure risk assessment
and reliance on current science, and that a new decision-making
environment is being ushered in.

The most powerful engine of precautionary thought right now is the
advocacy of "alternatives assessment." This is seen both in
shareholder campaigns and in pressure toward new security approaches
for chemical, nuclear and other types of industrial facilities.

Crucial issues are becoming evident in the move toward creation of a
"chemical risk" argument. Chemical risk holds that science (especially
toxicology) is changing rapidly and new things are being learned. In
this environment, consumer product companies -- the downstream
customers of businesses involved in chemicals, genetic modification
and nanotechnology -- run the risk that the products they are buying
now eventually could be found to be contributing to health problems.
Such discoveries could lead to lawsuits, or to rapid phase-outs of the
hazardous substances -- leaving the downstream customers with
significant challenges in reformulating their own products.

Given these possibilities, activists increasingly are appealing to
consumer product companies (currently through their shareholders) to
examine the substances they use and to assess which of them could in
the future become controversial or problematic. The argument is that a
smart company should immediately begin looking for alternatives to
these substances, and should phase out the troublesome materials as
quickly as possible. In practice, these phaseouts would not be based
on current risk assessments or on any findings of danger. The
substance or practice would be phased out simply because it is
controversial. If this trend wins support, substances that are
politically unpopular will be phased out with increasing frequency --
and one important element of the precautionary principle, alternatives
assessment, will be in de facto operation.

The second area in which the precautionary principle is making strides
is in the arena of facility security, and -- again -- it is through
the alternatives assessment concept. In the wake of the 9/11 attacks,
Americans began assessing their security from a terrorist's
perspective and identifying potential risks. Chemical and nuclear
plants have been seen by many as potentially attractive targets for

Activists who had long been supportive of the precautionary principle
saw an opportunity in the chemicals industry. They began to demand not
simply that chemical manufacturing facilities should improve their
security measures and safeguards, but that the companies should begin
using "inherently safer technologies" as well. This approach is the
production-side corollary to alternatives assessment. In effect,
engineers are being asked to assess the potential risks associated
with the operations of a chemical or nuclear facility and to determine
what alternative means of production are available that would reduce
the risks to the local populace if the facility were attacked by

This kind of regimen is certainly more realistic for chemical and
manufacturing facilities than it is for nuclear power plants. The
alternatives assessment argument has been most effective in the
context of municipal water systems, which are often located in
populated areas and which naturally keep on hand significant stores of
volatile chemicals (usually chlorine). Similarly, facilities that use
ammonia in the creation of fertilizer fall into this group, as do the
rail companies that transport chemicals like chlorine and ammonia.


The crucial question that arises is whether the meaning of the
precautionary principle has undergone a fundamental shift in the last
five years. In the 1990s, the term was used in the United States as
the basis for a moral appeal to change the way government regulates
products. Today, it is invoked as a social ethic and as a symbolic
goal, but its advocates generally promote the principle's adoption
only in a symbolic sense. This is a critical point.

When advocates of the precautionary principle meet next month in
Maryland, it will be with the stated goal of assessing local, state,
and federal governments' progress toward implementing the principle.
But judging from the conference agenda, participants instead will be
discussing regulatory changes within a risk-based framework. They will
debate the degree to which Europe's REACH policy might be emulated in
the United States and the ways in which a proliferation of state laws
ultimately can be used to pressure the federal government for
fundamental regulatory reform. The pure precautionary principle --
reverse burden of proof, precautionary action, alternatives assessment
-- will not feature as prominently at the conference as will
discussions of regulatory reform.

If the precautionary principle remains synonymous with "regulatory
restructuring" -- rather than with "proving a substance or activity is
not harmful" -- advocates of regulatory reforms have a genuine chance
of succeeding. They will be speaking in terms that can be implemented,
and they will still be appealing to the public with a defensible moral

(c) 2006 Strategic Forecasting, Inc.