precautionary principle, environmental regulation
The precautionary principle – the notion that lack of scientific certainty should not foreclose precautionary regulation – has become enormously popular in recent years, as reflected by its endorsement in many important international declarations and agreements. Despite its growing influence, the precautionary principle recently has come under fire by critics who argue that it is incoherent, potentially paralyzing, and that it will lead regulators to make bad choices. They maintain that society faces greater peril from overly costly regulations than from exposure to sources of environmental risks whose effect on human health and the environment is not fully understood at present. This paper argues that critics of the precautionary principle are attacking a straw man. It maintains that they are confusing the precautionary principle with the separate question of how precautionary regulatory policy should be. While precaution long has been an important element of much of U.S. environmental law, in practice, only in rare circumstances have activities that generate environmental risks been subjected to strict regulatory action when the risks they generate were entirely theoretical. Although such truly precautionary regulation is rare, the essential notion embodied in the precautionary principle -- that uncertainty should not be used as an excuse to eschew cost-effective preventive measures -- is fundamental to modern environmental law’s quest to transcend the limits of its common law legacy. It does not require that innovation come to a halt whenever any risks may be conjured. The paper argues that, properly understood, the precautionary principle is neither incoherent, paralyzing, nor a prescription for overregulation. Rather it cautions that regulatory policy should be pro-active in ferreting out potentially serious threats to human health and the environment, as confirmed by the history of human exposure to substances such as lead and asbestos.
23 Pace Environmental Law Review 21 (2005).