Center for Progressive Reform  [Printer-friendly version]
August 23, 2006


[Rachel's introduction: "A concerted effort is now underway to block
application of the precautionary principle to the protection of
public health, workplace safety, and the environment."]

by Christopher Schroeder

Living with risk and uncertainty is not optional. The actions society
takes to address risk and uncertainty are. Until the 1970s, a reactive
approach to the risks and uncertainty of industrial pollution and
workplace safety predominated in the United States and other Western
societies. Under this approach, risk creators are held responsible
when their actions unreasonably cause harm to humans and their
property, but not otherwise. Society accepts risky actions until solid
evidence exists that those actions are causing harm. This approach
gives risk creators two distinct advantages:

** People exposed to risky actions must bear the risks of such actions
until they cause (or are nearly certain to cause) harm to health or
the environment.

** The people exposed to risk bear the responsibility for
demonstrating that actions caused harm.

In the last three decades, the reactive approach has been replaced by
the precautionary approach in several key arenas. For example, when
Congress wrote such statutes as the Clean Air Act, it included the
mandate that EPA issue standards that protect health with an "adequate
margin" of safety, recognizing that it is impossible to determine
exactly how much pollution is "safe" or acceptable.

The full implications of the precautionary approach are still
developing, and when people have tried to reduce the approach to a
statement of principle, various versions have been created. The 1992
Rio Declaration on Environment and Development states the principle
this way:

"Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation."

The EU Treaty adopts the precautionary principle as the guide for
environmental policy, and a recent communication by the European
Commission elaborates the principle as follows:

"The precautionary principle applies where scientific evidence is
insufficient, inconclusive or uncertain and preliminary scientific
evaluation indicates that there are reasonable grounds for concern
that the potentially dangerous effects on the environment, human,
animal or plant health may be inconsistent with the high level of
protection chosen by the EU."

These formulations are not interchangeable, and many other non-
identical expressions of the precautionary principle have appeared in
international treaties, statements of government policy and in law.
When contrasted with the reactive approach, however, all statements of
the precautionary principle share a common feature: they authorize
government to intervene with respect to risky actions while there is
still uncertainty about whether those actions will cause harm.

The precautionary approach alters both of the advantages that risk
creators enjoy under the reactive approach. Under the precautionary

** People exposed to risk can ask for precautionary actions to be
taken before risky actions cause harm.

** Once some preliminary basis for taking precautionary action exists,
risk creators bear the responsibility of showing that actions are
safe, or at least acceptably risky.

The precautionary approach also protects a wider range of interests
than the reactive approach, which limits its range of protected
interests to harm to humans and to things humans own. In contrast, all
formulations of the precautionary principle extend to biotic and
ecological interests, as well as to future generations.

What People are Fighting About

In one form or another, the precautionary principle has become a
fixture in environmental and health and safety debates in Europe and
in the negotiation of international agreements. It is on the verge of
being accepted as a principle of international law. The term
"precautionary principle" is not often heard in American policy
debates, although the precautionary approach has been a fundamental
element of American environmental policy for decades. The devil dwells
in its details, however, and one set of controversies involves
fleshing out those details. To make the principle specific enough to
inform decision-making, three elements need to be specified:

** The principle rejects waiting for definitive proof of a causal
connection between actions and harm, but short of such proof, what
kind and quantity of evidence -- and evidence of what kind of harm --
is required to trigger precautionary action?

** The principle speaks of precautionary action, but what sort of
action is appropriate -- product bans, product labels, use
restrictions, further experimentation, reductions in the amount or
frequency of the risky action, or something else?

** The principle authorizes precautionary action in advance of
accepted evidence of harm, but how temporary or final is the decision,
and when should it be revisited?

Each of the elements sparks debate both inside and outside the
environmental movement. The main battlegrounds, however, have industry
and business interests on one side and advocates of better
environmental, health and safety protection on the other.

The United States and U.S. companies have had notable conflicts with
other countries in which the precautionary principle has played or is
playing an important role. Genetically modified foods have raised
fears of "frankenfoods" and calls to invoke the precautionary
principle in Europe, with companies like Monsanto seen as the chief
culprits in disseminating foods there. The EU banned the import of
U.S. hormone-fed beef on the basis of the precautionary principle,
only to have the WTO Appellate Body rule this was an impermissible
trade barrier.

In American environmental policy circles, there is a general sense
that greater recognition of the precautionary principle will mean more
regulation and tighter controls. Accordingly, a concerted effort has
been mounted to discredit the whole idea as an illogical principle
that is self-contradictory, ignores the risks of regulation, demands
the impossible, and is anti-scientific. These last two objections --
"anti-scientific" and "demands the impossible" -- go to the heart of
the debate.

Opponents of the precautionary principle claim that its supporters
want to impose regulatory measures supported by nothing more than
vague and baseless fears, regardless of whether there is evidence to
support their fears. In the case of genetically modified foods, for
instance, very few studies have shown that any particular genetically
modified food produces adverse environmental or health effects. One
publicized study did indicate that pollen from a type of genetically
modified corn damaged monarch butterfly larvae feeding on milkweed
onto which the corn pollen had been placed. This suggests a risk to
the monarch from corn pollen borne by the wind onto milkweed, which is
common near corn fields. This study has been criticized on
methodological grounds, and debate continues over this adverse effect.
Other studies looking at other effects of pollen from genetically
modified pollen have found no negative impacts.

The problem is that absence of evidence is not evidence of absence.
Further investigation might reveal that certain crops do cause adverse
environmental effects. Consider that around 30 percent of the corn
sold in the United States comes from genetically modified seed. If
some other genetically modified food with just a fraction of that
market share turned out to interact destructively with its
environment, the consequences could be dire. Because the precautionary
principle urges action when studies have not shown a causal
relationship, opponents of the principle allege that it is anti-
science. No controversy in which the precautionary principle has been
seriously invoked, however, involves a situation in which concerns are
baseless. In the genetically modified case, we know of many instances
in which a new species or variant has been introduced into an
environment with unanticipated consequences -- ask any southerner
about kudzu or any Californian about the eucalyptus tree. Genetically
modified crops are human-made variants, new to their surroundings in
similar ways. The discovery in September, 2000 that Starlink corn was
unlawfully present in U.S. foods demonstrates that genetically
modified plants are not easily controlled. Beyond such environmental
effects, there are sound theoretical reasons to worry that genetically
modified foods might cause adverse health effects in humans, as well
-- such as producing or exacerbating allergic reactions -- even though
investigations of specific modified foods have not shown such effects.
Concerns about potentially unanticipated, and possibly disastrous,
consequences are not baseless.

Insisting on more science before government can intervene is
effectively an attempt to push us back to the reactive approach,
forestalling action until science has proven a causal connection
between a risky action and harm. In situations of scientific
uncertainty of the kind found at the heart of most environmental,
health and safety controversies, however, the reactive approach sets
up perverse incentives. The risk-takers are often best positioned with
respect both to knowledge and to resources to investigate the
potential hazards of their actions. By saying it is acceptable for
risk-takers to proceed unrestrained until harm has been proven, the
reactive approach creates disincentives for them to undertake such
investigation. Far from being anti-science, the precautionary approach
encourages the development of more scientific knowledge by switching
those incentives, now making it worth the risk-takers' while to reduce
scientific uncertainty, thereby relieving whatever restraints might be
put in place in the name of precaution. (The importance of having
environmental policy that creates the right incentives for producing
more knowledge is discussed in the CPR Perspective on Environmental

Opponents of precaution object, however, that they will never be able
to prove that an action or product poses no risk whatsoever, and so
will never be able to prevent or relieve precautionary restraints
adopted in the face of uncertainty. So, they say, the precautionary
principle demands the impossible. This, too, is not a convincing
objection to the precautionary approach. The question that most of us
end up asking about risk -- and the appropriate one for society to ask
-- is whether risks are acceptable. The precautionary principle turns
that question into a public question by making the issue of
acceptability subject to public decision-making processes. This
permits dimensions of people's concerns about risk that are not well
incorporated into quantitative analyses of risk to be accorded their
due in the decision-making process. People become more concerned about
risks when they threaten irreversible consequences, when they are
unevenly distributed in the population, when they are involuntary, or
when they exhibit a number of other characteristics. By shifting the
burden of explanation as to why it is acceptable to expose people to
risks in the face of uncertainty onto the risk-taker, the
precautionary principle fosters more democratic methods of determining
what risks are acceptable, in which the elements of risk that matter
to people can be acknowledged.

CPR's Perspective

A concerted effort is now underway to block application of the
precautionary principle to the protection of public health, workplace
safety, and the environment. An assault on the precautionary approach
is one of the battlegrounds for that effort, as is the debate over the
use of good science versus bad science, as well as the efforts to
implement the Data Quality Act in ways that will burden agency
decision-making and reduce public access to information. (See the CPR
Perspective on Data Quality for more on this new law.) John Graham,
head of the White House regulatory office, has gone so far as to call
the precautionary principle "a mythical creature, kind of like a

CPR believes that the precautionary approach ought to be central to
our thinking and to our policy-making regarding health, safety and
environmental issues. Public policy-making needs to be more amenable
to citizen participation and involvement, it needs to create
incentives to acquire more information about potential risks, and it
needs to respect the reality that human manipulation of the
environment can pose substantial threats to the biosphere and to
future generations.

CPR also believes that more caution can be achieved without damaging
our ability to innovate and thus to find ways to serve human needs. In
fact, a precautionary approach toward some technologies almost always
stimulates research and innovation with regard to other technologies
that pose fewer risks. California's insistence that the internal
combustion engine be eliminated from 10 percent of the automobile
fleet sold in California in 2004, for instance, has stimulated
research into battery and fuel-cell powered vehicles that would not
have occurred without the California requirement. Battery powered
vehicles still have limited potential, but new steps in use of the
fuel cell in vehicles shows promise to produce a much more benign form
of personal travel, which some have called "sustainable mobility."

There are many issues of detail to be worked out in implementing the
precautionary approach, and the precautionary principle will most
likely prove to be a number of different principles applied in
different circumstances. However those details work out in specific
instances, the foundational precept that gives primacy in policy
debates to those upon whom risk is imposed contrasts markedly with the
reactive approach of giving primacy to people who impose risk on
others. That precept lies at the heart of the precautionary principle
and CPR believes it to be fundamentally sound. It ought to motivate us
to take responsible precautionary actions in response to risk and

Copyright 2005 The Center for Progressive Reform