The Law and Politics of Risk Assessment
THIS CHAPTER FURTHER DESCRIBES and explains the trend away from regulatory stringency in the United States and toward it in the European Union. It begins by documenting the precautionary basis of many of the risk regulations adopted by the United States, primarily before 1990, providing further evidence that there is nothing distinctively “European” about a precautionary approach to risk regulation.1 It then turns to the increasingly important role of regulatory impact analyses in the United States, which include both scientific risk assessments and cost-benefit analyses. These policy tools have contributed to reducing the number of highly stringent risk regulations adopted in the United States, especially by regulatory agencies. The United States also experienced an influential “backlash” that questioned the rationale behind many of the highly riskaverse regulations it had previously adopted, claiming that many were false positive policy errors. This, in turn, weakened the political credibility of new risk claims as well as the willingness of policy makers to enact more stringent regulations in response to them.
However, a very different policy dynamic took place in Europe, where a precautionary approach to risk management became more influential. Its impact was linked to several regulatory policy failures attributed to insufficiently rigorous risk regulations, i.e., false negatives. These in turn diminish public confidence in the capacity of scientific risk assessments to adequately identify threats to public health, safety, and environmental quality. Although the precautionary principle has not been applied consistently, and its application remains controversial, it has played an important role in making many European risk regulations more stringent than American ones. It has also made European decision-makers both more able and willing to respond to highly risk-averse public preferences than their American counterparts.
1 See Jonathan Wiener, “Whose Precaution After All? A Comment on the Comparison and Evolution of Risk Regulation Regimes,” Duke Journal of Comparative and International Law 13, no. 5 (2003): 207–62; and Jonathan Wiener, “The Rhetoric of Precaution,” in The Reality of Precaution: Comparing Risk Regulation in the United States and Europe, ed. Jonathan Wiener, Michael Rogers, James Hammitt, and Peter Sand (Washington, DC: Resources for the Future, 2011).