The Paralyzing Principle: Does the Precautionary Principle Point Us in Any Helpful Direction? (Risk)

By Sunstein, Cass R. | Regulation, Winter 2002 | Go to article overview

The Paralyzing Principle: Does the Precautionary Principle Point Us in Any Helpful Direction? (Risk)


Sunstein, Cass R., Regulation


ALL OVER THE WORLD, THERE IS increasing interest in a simple idea for the regulation of risk: the Precautionary Principle. Simply put, the principle counsels that we should avoid steps that will create a risk of harm; until safety is established through clear evidence, we should be cautious. In a catchphrase: Better safe than sorry.

In ordinary life, pleas of this kind seem quite sensible. People buy smoke alarms and insurance. They wear seatbelts and motorcycle helmets, even if they are unlikely to be involved in an accident. Should rational regulators not follow the same approach as well? Many people believe so.

In many ways, the Precautionary Principle seems quite sensible, even appealing. To justify regulation, a certainty of harm should not be required; a risk, even a low one, may well be enough. It makes sense to expend resources to prevent a small chance of complete disaster; consider the high costs, pecuniary and otherwise, that are spent to reduce the risk of terrorist attack. On reasonable assumptions, the costs are worth incurring even if the probability of harm -- in individual cases or even in the aggregate -- is relatively low.

The Precautionary Principle might well be seen as a plea for a kind of regulatory insurance. Certainly the principle might do some real-world good, spurring us to attend to neglected problems. Nonetheless, the principle cannot be fully defended in those ways, simply because risks are on all sides of social situations. Any effort to be universally precautionary will be paralyzing, forbidding every imaginable step, including no step at all.

DEFINITION AND APPEAL

The Precautionary Principle enjoys widespread international support. But what does the principle mean or require? There are numerous definitions, and they are not all compatible with one another. We can imagine a continuum of understandings. At one extreme are weak versions to which no reasonable person could object; at the other extreme are strong versions that would appear to call for a fundamental rethinking of regulatory policy.

The most cautious and weak versions suggest, quite sensibly, that a lack of decisive evidence of harm should not be a ground for refusing to regulate. Regulation might be justified even if we cannot establish an incontrovertible connection between, say, low-level exposures to certain carcinogens and adverse effects on human health. Thus, the 1992 Rio Declaration states, "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."

Strong version The weak versions of the Precautionary Principle are unobjectionable and important. Everyday, people take steps (and incur costs) to avoid hazards that are far from certain. We do not walk in moderately dangerous areas at night; we exercise; we buy smoke detectors; we buckle our seatbelts; we might even avoid fatty foods. Because the weak versions are sensible, I will not discuss them here. Instead, I will understand the principle in a strong way, to suggest that regulation is required whenever there is a possible risk to health, safety, or the environment, even if the supporting evidence is speculative and even if the economic costs of regulation are high. To avoid palpable absurdity, the idea of "possible risk" will be understood to require a certain threshold of scientific plausibility. To support regulation, no one thinks that it is enough if someone, somewhere, urges that a risk is worth taking seriously. But under the Precautionary Principle as I shall understand it, the threshold burden is minimal, and once it is met, there is something like a presumption in favor of stringent regulatory controls.

In 1982, the United Nations World Charter for Nature apparently gave the first international recognition to the strong version of the principle, suggesting that when "potential adverse effects are not fully understood, the activities should not proceed. …

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