the reality of precaution

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SYNTHESIS
18 JULY 2014
“NEW DECISION-MAKERS, NEW CHALLENGES”
THE REALITY OF PRECAUTION
COMPARING RISK REGULATION IN THE US AND EUROPE
(ED. J. WIENER, M. ROGERS, J. HAMMITT AND P. SAND)
Elvire Fabry | Senior research fellow at Notre Europe – Jacques Delors Institute
Giorgio Garbasso | Research assistant at Notre Europe – Jacques Delors Institute
his Synthesis underlines the main arguments of the book The reality of precaution. Comparing Risk
Regulation in the United States and Europe, which shed light over the claims of a more precautionary
Europe. The book proves that these claims are largely based on stereotypes and generalisations. The reality
of precaution is not one region being more precautionary than the other but a scenario of occasional and selective application of precaution to different risks in different places and time.
T
Is the EU more precautionary than the US?
The aim of the book The reality of precaution.
Comparing Risk Regulation in the United States and
Europe1, a research study led by two Americans
(Jonathan B. Wiener and James K. Hammitt) and two
Europeans (Michael D. Rogers, and Peter H. Sand),
is to shed light over the claim of a more precautionary Europe.
Is it true that the European Union is more precautionary than the United States? This question is at the
centre of the debate surrounding the Transatlantic
Trade and Investment Partnership negotiations.
Claims of a more precautionary Europe revamp
fears that a trade agreement with the United States,
involving regulatory convergence, may imply deregulation of European norm protections.
There is a general perception in public opinions that
“Europe is more precautionary, more regulatory,
more environmentalist and more risk adverse than
the United States”. Americans are allegedly individualistic, risk-taking and confident that technology and the power of market will solve every problem. Europeans have an ex ante control culture,
Americans an ex post one. The EU formally endorsing the precautionary principle would seek to proactively regulate risk while the US, opposing the
precautionary principle would wait for evidence of
actual harm before regulating.
The book proves that these claims are largely based
on stereotypes and generalisations. The reality of
precaution is not one region being more precautionary than the other but a scenario of occasional
and selective application of precaution to different risks in different places and time.
1. The evolution of risk regulation
in the EU and the US
Different accounts compete to determine the history
of regulatory precaution in Europe and the United
States. The convergence scenario is driven by globalisation and the pressure to harmonise standards.
The divergence scenario advocates increasingly
different regulatory cultures and regulatory competition between the two regions. The “flip flop” theory asserts a broad shift in internal politics and international rivalry. And finally the “hybridisation”
theory suggests that the exchange of ideas, regulatory collaboration and borrowing of regulatory solutions to specific risks has led to the interweaving of
diverse transatlantic regulatory systems.
The “flip-flop” leading theory in transatlantic relations has been put forward by David Vogel2. It posits
that from the 1960s to the mid-1980s the regulation
of health, safety and environmental risks were generally stricter in the United States. However since
the 1990s the positions have been reversed. Europe
has become more precautionary on specific risks
such as genetically modified foods, chemicals, and
climate change.
1 / 10
The reality of precaution
The position advocating for a more precautionary
Europe is essentially based on this restricted list
of examples and the formal adoption of the precautionary principle in the European Union treaties.
In its landmark Maastricht Treaty of 1992, the EU
expressly provided that its environmental policy
“shall be based on the precautionary principle”.
Further treaties have expanded the scope of application of the precautionary principle to other policies
than the environmental one. The European Union
had also strongly promoted the adoption of the precautionary principle in multilateral agreements like
the United Nations Conference on Environment and
Development (UNCED) of 1992 (Rio Conference)3.
Therefore claims of a more precautionary Europe,
like in the flip-flop scenario, are based on few celebrated examples from a narrow and insufficiently
representative selection. The extensive comparative
work of the 27 European and American experts in
The reality of precaution, is based on a new qualitative and quantitative methodology which leads to different conclusions.
The researchers have expanded the number and
diversity of qualitative case studies to risk connected to food safety (genetically modified foods,
beef hormones, mad cow disease), air pollution, climate change, nuclear power, tobacco, chemicals,
marine and terrestrial biodiversity, medical safety,
terrorism and precaution embodied in risk information disclosure and risk assessment systems. In addition to detailed case studies, they also presented a
broad quantitative analysis of specific precaution
based on a sample of 100 risks drawn from a dataset of nearly 3000 risks from the 1970s up to 2004 in
both the United States and the EU.
Although the US does not formally endorse the precautionary principle, it has fully adopted precautionary approaches since the inception of the concept.
Conversely, the EU does not always adopt a precautionary approach although it has adopted the principle in its treaty. The book proves that the application
of precaution follows a much more complex pattern
than one of convergence, divergence or flip-flop. The
hybridisation scenario takes better account of
the reality of precaution.
2. Quantitative analysis
To guard against the selection bias and its logical conclusions the researchers combined with the
expanded qualitative case study a broad quantitative analysis that is more representative of the
full universe of risks. The quantitative research
project proceeds as follow: first a pool of researchers
attempted at detecting the most exhaustive list of all
possible risks in the EU and the US over the period
ranging from 1970 to 2004. They draw a final list of
2878 risks.
The risks were selected mainly from the scientific literature on risk perceptions but also from risk regulation literature and selecting risks lists produced
by scholars, governments, think-tanks and advocacy
groups from both Europe and the US. To determine
which polity, the EU or the US, is more precautionary they measured the level of precaution using the
criteria of earliness and stringency. The closer the
weighted score gets to +1 the more the European
regulations are stringent, and the closer it gets to
-1 the more the American regulations are stringent.
Being the process of assessment of risk regulation to
each perceived risk a daunting and time-consuming
tasks, the researcher’s chose a random selection of
100 risks out of the list of 2878 risks.
As the table below illustrates, the results suggest that
the degree of precaution exhibited in European and
American risk regulation is very similar. Averaging
across the 100 risks sample in a 35 year period, there
are 36 risks that show greater US precaution and 31
risks that show greater EU precaution. In the quantitative analysis the authors find no difference
in relative precaution.
2 / 10
The reality of precaution
FOR 100 RISKS
WEIGHTED
SCORE
FOR 100 RISKS
Greater U.S Precaution (36 risks)
WEIGHTED
SCORE
Greater European Precaution (31 risks)
Sake
-0.67
Liquid propane train
0.04
Vaccination – side effects
-0.57
Workplace violence
0.04
Smoking regulations
-0.51
Motor vehicle traffic
0.06
Pot smoking
-0.50
Mononucleosis
0.10
Carbon monoxide
-0.38
Hexachlorophene
0.11
Snowboarding
-0.34
Horse riding – falls, including racing
0.11
Burglary
-0.33
Forestry
0.14
Disaster preparedness
-0.33
Rubber manufacture – ergonomics
0.20
Dredging and dredge disposal
-0.33
Jewelry
0.21
Food coloring
-0.33
Biotechnology – ingredients in products
0.29
Genes – defects predisposing to illness
-0.33
Genetic manipulation – animals
0.29
Air pollution
-0.33
Deliberate release of genetic engineered organisms
0.29
Smog
-0.33
Genetic engineering
0.29
Polyvinyl chloride – living nearby
-0.30
Cognitive disorders
0.31
Charcoal-broiled steak
-0.29
Stone quarries
0.33
Radiation therapy
-0.28
Formaldehyde – workers
0.37
Roller coasters
-0.26
Nonpoint-source discharges to surface water
0.41
Amusement park rides
-0.26
Flooding of dikes
0.50
Circuses and amusement and theme parks
-0.26
Sea level rise
0.52
Sulfur dioxide
-0.22
Timber preservatives
0.52
Occupational carcinogens
-0.19
Nuclear weapons – test
0.61
Snowmobiles
-0.18
Sleep
0.63
Industrial chemical release
-0.16
Ergonomics – sleep deprivation
0.63
Unsuitable eating habits
-0.14
Occupationally acquired infection of the lung
0.63
Shortage of medicines
-0.14
Ammonia
0.67
Neurological malfunction
-0.13
Childbearing
0.67
Nitrocompounds – aromatic
-0.13
Anti-ballistic missile
0.67
Woodworking
-0.12
Automobile – bicycle accident
0.67
West Nile virus
-0.11
Highway safety
0.67
Train accident
-0.10
Drinking and driving
0.83
Laboratory worker
-0.07
Work at high altitudes
-0.07
Caffeine – chronic effects
-0.06
Health care facilities and services – exposure to physical agents
-0.06
War and terrorism
-0.04
Aviation – commercial – noise
-0.01
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The reality of precaution
Equal precaution (21 risks)
Unscoreable risks (12)
Transportation noise
-0.00
CEO deaths
-0.00
Airport and flight control
-0.00
Engineer deaths
-0.00
Aviation – commercial – crashes
-0.00
Safety and health training
-0.00
Submarine – accidents
-0.00
Safety culture and management
-0.00
Bus - transit
-0.00
Workplace – performance measures and compensation
-0.00
Aerospace manufacturing and maintenance –
environmental and public health issues
-0.00
Rodeo performer
-0.00
Television
-0.00
Jogging
-0.00
Carpet and rugs
-0.00
Heat stroke
-0.00
Metal manufacturing
-0.00
Biological agents – pet hair, skin, and excreta
-0.00
Hasardous response personnel
-0.00
Dieting
-0.00
Semiconductor manufacturing
-0.00
Termites attacking food crops
-0.00
Hotels and restaurants – health effects and disease patterns
-0.00
Social/ethical/cultural impacts of technology
-0.00
Oil refineries
-0.00
Transport of oil – transcontinental pipelines
-0.00
Sabotage
-0.00
3. Qualitative analysis
The expanded qualitative analysis conducted by the
research team shows there is no evidence in favour
of the claim of a more precautionary Europe. Some
risk regulations do indeed reflect greater European
precaution since 1990, namely: genetically modified
foods, hormones in beef, toxic chemicals and climate
change.
However many of their qualitative findings call for
greater relative USA precaution since 1990, namely
in the sector of fine PM air pollution, smoking
tobacco, mad cow disease (especially in blood donations), information disclosure systems, embryonic
stem cell research, youth violence, as well as terrorism and weapons of mass destruction.
Hereafter we have summed-up the results of some
case-studies that are the most explanatory at showing the pattern of complexity of different precautionary measures to different risks and within one same
category of risk.
Beyond the book’s qualitative analysis other sectors often mentioned in the TTIP debate would however request a comprehensive analysis of the level of
protection. These may include shale gas extraction
where the EU is generally endorsing a more precautionary approach than the US. Financial services and
banking regulations where the US has largely being
responsible for triggering the subprime mortgage
crisis but has then adopted the Volcker legislation
which is considered to be bolder than the European
regulations. Data protection, where the Snowden
revelation of the US intelligence-gathering resulted
in a scandal but the question still remains open over
who better shields personal data. Few countries provide the kind of framework of judicial authorisation
and legislative oversight of national security investigation found in the US.
3.1. Beef, Hormones, and Mad Cows4
Policy decisions were diametrically opposed concerning the beef regulation over production and
commercialisation. The beef case between the USA
and the EU has been a major cause of transatlantic
discord over the recent decades. It is widely recognised that the European Union, at the time of highly
uncertain causes and scope have been more precautionary on the ban over growth hormones for beef.
However, the United States hold a more precautionary approach concerning the mad cow disease and
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The reality of precaution
especially the risk of transmitting the human form
variant Creutzfeldt-Jakob Disease (CJD) via blood
donations.
The United States have approved since 1954 several
growth hormones for cattle: the Bovine Somatotropin
(BST) which is a naturally produced hormone in
cows and its synthesised version using DNA recombinant called rBST or artificial growth hormone. In
the United States, the food and drugs administration (FDA) (as well as other international independent bodies like the World Health Organisation) has
provided scientific evidence that diary product and
meat from BST treated cows are safe for human
consumption.
In 1985 the EU banned 6 hormones (three BST and
three rBST) on the basis of the precautionary principle and plausible risks to animal health. It was
also considered that the various effects of rBST and
growth hormones were insufficiently clear so a precautionary period of time should be provided for indepth studies. Another reason for banning hormones
concerned the fear that a divergent position from
member states on hormone ban would fragment and
undermine the internal market.
This transatlantic divide led in 1996 to one of the
most famous WTO dispute with the United States.
The WTO Appellate Body ruled in favour of the
United States considering the EU didn’t provide sufficient scientific evidence to support its claim that
hormones presented a health risk. The EU refused
to comply with the WTO law and the United States
where authorised to apply, as a compensation measure, tariffs on EU imported products equivalent to
a maximum of approximately $ 100 million per year.
The Bovine spongiform encephalopathy (BSE), commonly known as “mad cow disease” presents a complete different scenario. The first case of BSE was
identified in the United Kingdom in 1985; in 2003
about 178,000 total cases of BSE had been confirmed
in the UK. At the time scientific analyses were not
conclusive about a health concern for humans consuming BSE beef. The EU acted by banning all import
on beef export from the UK in 1995 but within few
months it lifted the ban. The USA adopted its ban on
import beef earlier than did the EU and maintained it
far longer. In the USA the early measures from early
signs have been successful in keeping BSE nearly
absent of the USA territory.
Moreover the USA were highly concerned about
a possible human-to-human transmission of the
Creutzfeldt-Jakob disease and rejected any blood
from any donor who had spent more than three
months cumulative in the UK during the years 1980
to 1996. The FDA acted despite the absence of studies showing human blood transmission of CJD, and
interestingly titled its regulation a “precautionary
measure”.
3.2. Stratospheric Ozone Depletion and
Global Climate Change5
Ozone depletion and climate change strike some
similarities since they are both global externalities
and are caused by the release of chemically stables
gases into the atmosphere that persist for decades.
However the precautionary measures differ. The
USA acted earlier and more aggressively than the EU
to reduce the stratospheric ozone depletion, while
the EU took stronger action against climate change.
Ozone depletion was caused by the release in the
atmosphere of chlorofluorocarbons (CFCs) and other
ozone-depleting substances (ODCs); the latter were
widely used for a variety of industrial and consumer
applications in building, home, automobile, air-conditioning and refrigeration systems, personal care and
a wide array of different functions. The USA acted
as early as in 1978 with the relevant consumer and
environmental agencies banning use of CFCs like
aerosol propellants which accounted about half of
the consumption. In Europe, member states reacted
differently. Sweden and Norway adopted aerosol ban
together with the United States whereas there was
little response in the UK, France and Italy.
Thanks to the USA precautionary action between
1974 and 1985, USA consumption of CFCs 11 and
CFCs 12 declined about 45%. Whereas during the
same period, the European consumption increased
by 10%. The identification of the Antarctic “ozone
hole” in 1985, which attracted a great deal of policymakers’ attention (the causal interrelation between
CFCs and the Antarctic ozone hole was still speculative), has then led in 1987 to the ratification of
the multilateral agreement known as the Montreal
Protocol. Its implementation allowed to virtually
eliminate by 1997 CFCs consumption in the USA as
well as in the EU.
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The reality of precaution
Climate change makes the case for a different scenario. When climate change reached the policy
agenda in the mid- to late 1980s, the EU was leading the multilateral efforts for a global reduction of
Greenhouse gases. The USA were reluctant signatory
of the Framework Convention on Climate Change in
1992 in Rio de Janeiro and the Clinton administration lagged behind in the Kyoto Protocol. The Kyoto
multilateral agreement requested the EU, the United
States and other industrialised countries to hold
their average greenhouse gas emissions in the 20082012 period to a level below their 1990 emissions.
The agreed emissions target where set at 7% for the
EU and 8% for the USA. While the EU successfully
reached their target, the USA signed the protocol but
never submitted it to the Senate for ratification. The
subsequent Bush administration, even less supportive of the Kyoto Protocol, officially withdrew the USA
from the protocol.
The EU plan to reach the Kyoto target was largely
based on a marked-based instrument such as the
European emission trading scheme. In 2007 the
European Commission proposed the “20-20-20 by
2020” plan. It followed-up the Kyoto agreement by
unilaterally committing the EU to impose even more
ambitious target to greenhouse gas reductions: it
calls for emissions cut of 20% below the 1990 levels, a 20% increase in energy efficiency over forecasted consumption, and 20% of energy to be produced as renewable energy by 2020. Overall the EU
has played a much more important role in regulating
greenhouse gas emissions than the USA.
3.3. Automobile emissions6
Similarly to the beef production, automobile emissions regulations in the USA and Europe follow a variable pattern. Automobile emissions make the case
for precaution both in the EU and the USA but, interestingly enough, regarding conflicting risks. The
USA protects more on pollutants such as lead,
PM and NOx, as opposed to the EU that has been
more precautionary on the control of greenhouse gases, as seen in the previous subsection.
The USA led by California (which has set the highest standards and had an attraction effect on other
USA states, e.g. “the California effect”7) has been
the leader in pushing the development and commercialisation of technologies for reducing emissions of
lead, CO, HC, NOx, and lead from both gasoline and
diesel fuelled vehicles. Europe has lagged behind the
USA control programme as illustrated by its inability to mandate lead-free gasoline until 1989. Since
1990s Europe has moved aggressively toward clean
vehicles and fuels and has narrowed the gap considerably from the US standards. However USA norms
continue to be more precautionary than the EU
regarding the public health risks of diesel emissions.
While diesel car sales in the USA represents only 1%
of new cars, in the EU from the years 2000 to 2010
sales have grown from 28% to over 52%.
The EU policy choice of tackling climate change is
proven by its efforts at reducing CO2 emissions from
light-duty vehicles, much lower emissions rate per
kilometre in the EU than the USA, and additional
factors such as European high fuel prices. However
in recent years the USA are also pushing for a reduction of emissions per kilometres with new regulations adopted under the Clean Air Act (which set in
1970 the national goal of clean and health air) and by
commercialising new fuel efficient car models.
3.4. Nuclear Power8
The term precautionary principle in nuclear energy
regulation is neither in the EU nor in the USA.
However precaution is consistent with the different
safety approaches towards civilian use of nuclear
energy. Overall the degree of regulatory precaution to the safety of nuclear power generation
has been similar in the USA and the EU. The EU
approach is consistent with the USA principle of the
application of a probabilistic risk analysis along with
the principle of “defence in depth” and the most consistent approach with the precautionary principle,
the so-called as low as reasonably achievable principle (ALARA).
However differences exist in the degree of nuclear
dependency of each region and in the approach
that has been adopted concerning safety standards
beyond reactor security, on issues such as transportation of radioactive material and radiation protection. For instance the USA’s Environmental Policy
Agency (EPA) has been extremely precautious
concerning a regulation ban to the licensing of
a nuclear waste deposit in the Yucca Mountain,
Nevada. In this case the EPA didn’t take into consideration any cost-benefit analysis and prohibited
the nuclear waste deposit on the base of drastic disposition: the radiation exposure of the people living
6 / 10
The reality of precaution
nearby the Yucca Mountain had to be equal of the
natural exposure to any sort of natural radiation
elsewhere in the country. Hence the administration
decided to prohibit the licensing and explored alternatives for handling the waste. By contrast the EU
requires explicitly in the nuclear safety regulation a
mandatory cost-benefit analysis.
Furthermore, Europe has been building continuously over the last 40 years nuclear power stations,
and some European countries are now building more
reactors (although others are phasing out civilian
nuclear energy following the Fukushima events).
Conversely the USA stopped ordering any new civilian nuclear stations after 1980.
3.5. The Marine Environment9
It was in relation to the marine environmental regime
that the precautionary principle first entered into the
international policy discourse. It was formulated during the Second International London Conference on
the Protection of the North Sea in 1987 and has been
advocated by European countries like Germany,
Denmark and the Netherlands. The EU and its member states, pushed in international fora for the use
of the precautionary principle in relation to pollution control in waters, like dumping waste that could
harm the marine environment. The USA had initial
reservation about the use of precaution in pollution prevention but finally consented to it and followed the international norms.
However, strong disagreement arose between countries during a meeting organised by the Food and
Agriculture Organisation (FAO) in 1992 to implement
the UN Convention on the Law of Sea on straddling
fish stocks and highly migratory fish. The USA openly
advocated for a stronger precautionary approach in
relation to capture fishery and marine biodiversity
protection, while the EU had reservation about the
extension of this approach.
Despite the fishery being an exclusive competence of
the EU and the precautionary principle being a guiding principle of environmental issues, the EU has
not been de facto precautious in fishery conservation. The Common Fishery Policy has largely
failed at effectively addressing the ecological challenges of the fishery management. Overcapacity
and failure to follow scientific advice resulted in
overfishing and unsustainable bycatches and overall
mismanagement.
The USA was less concerned by water pollution controls but adopted a precautionary methodology for the management of capture fishery. An
example of a USA precautionary decision is the USA
plan for the prohibition of commercial fishing in a
huge swath of American waters in the Arctic that has
never been fished. The precautionary aspect lies in
the possibility that those waters could provide a new
home for cold-water species that are already moving
north as a result of global warming. The marine environment case study illustrates a different patchwork
of level of protection in the USA and the EU.
4. Explaining the complex
pattern of precaution
The question is therefore not who is more precautionary across the board but why different societies
choose to worry more about a particular risk. The
book assesses multiple hypotheses to explain this
complex pattern, while concluding that none out of
those have been highly probative.
4.1. Political and institutional factors
This hypothesis considers that the peculiar institutional architecture of the EU, different representation of power and political factors may explain the
higher level of precaution of the EU. Concerning
the structures of power, proportional representation in the European elections might favour green
parties getting in a centre-left coalition. Conversely
the USA majoritarian electoral system does not
allow single-issue parties to take part in a government. Furthermore the specific European institutional design should account for a more precautionary Europe as the Council of ministers of the EU
gathering around single issue coalitions provide
stronger voice to certain themes. Despite the institutional trends that should favour a more precautionary Europe, quantitative analysis reinforces the view
of no major change or reversal observed. Political
leadership doesn’t explain either broad trend
for more or less precaution. Under the Reagan
Republican administration the USA ratified in 1987
the important environmental Montreal Protocol,
while in Europe at the same time conservative
7 / 10
The reality of precaution
leaders have been as likely to promote precaution as
have left-leaning leaders.
4.2. The impact of the legal systems
Secondly, the legal system accounts. Bergkamp and
Smith10 carefully analysed transatlantic differences in legal systems – including administrative
law, judicial review of agency action, and civil liability law – and find that these factors do not predict
the observed complex variety of risk policies.
Facing uncertain risks governments have two basic
strategies: ex post remedies and ex ante precaution.
Ex post remedies include clean-ups and civil liabilities administered by the courts. Ex-ante precaution includes preventive regulations administered
by agencies. An hypothesis considers that since the
USA have a stronger ex-post tort liability tradition this could render precaution less needed,
whereas countries with weaker ex post liability tradition could see ex ante precaution as more desirable. However, stronger tort liability might motivate
industry to seek uniform preemptive precautionary
regulation from the legislature making. Therefore
these hypotheses would predict an overall degree of
precaution rather than the complex pattern of precaution applied to each specific risk.
4.3. The role of cost and benefit analysis
Some authors tie the degree of precaution inversely
proportional to the use of a cost-benefit analysis
(CBA) in regulatory decision-making; since the USA
greatly relies on benefit-cost analysis they would be
less precautious. However, the EU is also adopting
CBA. The Maastricht Treaty mention of CBA comes
right after the description of the Precautionary
Principle and in 2000 a Communication from the
European Commission belies the alleged conflict
between precaution and cost benefit analysis. From
2005 the EC adopted some guidelines to oblige the
regulatory authorities to systematically analyse the
economic impact or cost of risk management measures. Sometime the USA does not use CBA whereas
the EU does: Germany used CBA for air pollution
control while the USA air quality standards do not.
Here again, the economic analysis of regulation
does not account for the observed complex pattern
of precaution.
4.4. Explaining the patterns of relative
precaution cognitive availability
Why then the USA is more precautionary about
one risk, while Europe is more precautionary
about another? The psychological hypothesis of
“heuristic availability” drawn from behavioural
economics11 provides more important clues about the
functioning of the precautionary principle and the
cross-cultural differences in risk perception. The
hypothesis is that people tend to heavily weigh their
judgments toward information they can recall, what
is “available”. A person will have a different perception of risk related to house fires if they have recently
seen on TV a news report about forest fires.
Moreover, once several people start to take an example they can recall as probative, many people may
come to be influenced by their opinion, giving rise
to cascade effects. Thus sporadic events can trigger
outsize public concern, depending on media coverage and cultural predisposition, that call for political response. The severe acute respiratory syndrome
(SARS) in Canada was perceived to be more of a risk
than terrorism, while in the USA it was the opposite.
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The reality of precaution
Conclusion
According to this study the hybridisation of the regulatory systems is a conclusive factor explaining the application of precaution. Hybridisation
means that in a context of globalisation, interconnectedness and growth of transnational network
we assist to a scenario of “exchange of ideas and
interweaving of diverse regulatory systems, driven
by learning from experience in response to particular risks”. The SO2 allowance trading in the US was
praised for its performance at reducing acid rain and
was borrowed by the EU in its cap-and-trade system for Greenhouse gasses. Precaution itself has
been borrowed from the EU to the US. “This
path leads beyond traditional comparative law: not
just two “legal systems” with discrete “national style
of regulation”, but an interwoven network of hybrid
approach.
Over the broad array of risks, neither the USA nor the
EU can claim to be “more precautionary”. The reality
of precaution has not been principle; it has been parity and particularity. In the aggregate there is little overall transatlantic difference over the past
several decades.
The USA often takes a precautionary approach without formally endorsing the precautionary principle while Europe formally endorses precautionary
principle without applying precaution to every risk.
“Both the United States and Europe apply precaution
in some but not all risk regulation”. Hence, precaution should not be seen directly as a dividing
line for transatlantic discord. The hybridisation in
risk regulation across the Atlantic provides an interesting ground for potential regulatory convergence
in the framework of the TTIP negotiations. Rather
than fearing that the EU might trade away the principle of precaution, it can be seen as an opportunity to
strengthen regulatory collaboration and to provide
more transparency on the use of the precautionary
principle.
1.
Jonathan B. Wiener, Michael D. Rogers, James K. Hammitt and Peter H. Sand (ed.), The Reality of Precaution : Comparing Risk Regulation in the United States and Europe, RFF Press, Washington &
London, 2011.
2.
David Vogel, The Politics of Precaution: Regulating Health, Safety, and Environmental Risks in Europe and the United States, Princeton University Press, Princeton and Oxford, 2012.
3. The Rio Conference states as one of the several definitions of the precautionary principle that “where there are threats of serious or irreversible damages lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.
4.
George Gray, Michael D. Rogers, and Jonathan B. Wiener, “Beef, Hormones, and Mad Cows” in Jonathan B. Wiener, op. cit., pp. 65-90.
5.
James K. Hammitt, “Stratospheric Ozone Depletion and Global Climate Change” in Jonathan B. Wiener, op. cit., pp. 159-176.
6.
Michael P. Wash, “Automobile Emissions” in Jonathan B. Wiener, op. cit., pp. 142-158.
7.
David Vogel, Trading up: Consumer and environmental regulation in a global economy, London: Harvard University Press.1995.
8.
John F. Ahearne and Adolf Birkhofer “Nuclear Power” in Jonathan B. Wiener, op. cit., pp. 121-141.
9.
David Freestone, “The Marine Environment” in Jonathan B. Wiener, op. cit., pp. 177-200.
10.Lucas Bergkamp and Turner T. Smith Jr. “Legal and Administrative Systems: Implications for Precautionary Regulation” in Jonathan B. Wiener, op. cit., pp. 434-479.
11.This hypothesis is drawn from behavioral economists and Nobel Prize Daniel Kahneman and Amos Tversky “Judgment under Uncertainty: Heuristics and Biases”, in Hal R. Arkes and Kenneth
R. Hammond (ed.), Judgment and Decision Making: An Interdisciplinary Reader, New York: Cambridge University Press, 1986. Heuristics work through a process of “attribute substitution” in
which people answer a hard question by substituting an easier one. Should we be scared of contaminated blood? The answer to the question is not a rational or statistical answer. If the
person can easily think of example of blood contamination, she is far likely to be frightened than if she cannot.
9 / 10
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ISSN 2257-5510
On the same themes…
The reality of precaution
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