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Precaution, Proportionality, and Cost/Benefit Analysis: False Analogies

Published online by Cambridge University Press:  20 January 2017

Susan Rose–Ackerman
Susan Rose–Ackerman*
Affiliation:
Jurisprudence (Law & Political Science), Yale University
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Abstract

The Politics of Precaution by David Vogel, and the edited volume, The Reality of Precaution each compare the United States with Europe over a range of regulatory areas. Vogel claims that the US and Europe changed places in recent years with Europe becoming more precautionary than the US. The edited volume covers a wider range of topics and finds that the results are mixed. The evidence of diversity in the edited volume appears convincing, but this essay argues that both volumes too narrowly focus on the precautionary principle. Rather it argues for a broader context that confronts precaution both with the proportionality principle, which is a mainstay of European Union law, and with the limitations of cost/benefit analysis and Impact Assessment. It unpacks the normative underpinnings of these concepts to suggest a broader frame for policy analysis.

Type
Book Reviews
Information
European Journal of Risk Regulation , Volume 4 , Issue 2 , June 2013 , pp. 281 - 286
Copyright
Copyright © Cambridge University Press 2013

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References

1 See Jonathan B. Wiener, “The Rhetoric of Precaution,” in Wiener et al., eds., pp. 3 et sqq.

2 See G. Majone's critique of the use of the principle in EU law and practice. Giandomenico Majone, “Political Institutions and the Principle of Precaution”, in Wiener et al., eds. The Reality of Precaution, pp. 411 et sqq.

3 Cass Sunstein, “Precaution against What? Perceptions, Heuristics, and Culture,” in Wiener et al., eds., pp. 492 et sqq.

4 See Craig, Paul, EU Administrative Law (Oxford: Oxford University Press, 2007), chapter 19 for an overviewGoogle Scholar. See also, Scott, Joanne, “European Regulation of GMOs and the WTO,” 9 Columbia J. of European Law (2003) 213 et sqq.Google Scholar

5 Lucas Bergkamp and Turner T. Smith, Jr., “Legal and Administrative Systems: Implications for Precautionary Regulation,” in Wiener et al, eds. At 434.

6 The Wiener et al. volume deals with both types. For example, there are chapters on tobacco, food safety, medical care, on the one hand, and nuclear power, and terrorism and weapons of mass destruction, on the other.

7 Bergkamp and Smith, supra note 5, p. 445.

8 See Craig EU Administrative Law, supra note 4, chapter 17 for an overview.

9 T-13/99m Pfizer Animal Health SA v. Council [2002 ECT II-3305, para. 410.

10 See, OECD, Better Regulation in Europe: An Assessment of the Regulatory Capacity in15 Member States of the European Union (Paris: OECD, 2009). This initiative is discussed in Bergkamp and Smith, supra note 5, 447–452.Google Scholar

11 Commission of the European Communities, Communication from the Commission on the Precautionary Principle, COM (2000) 1, section 6. Later in the document it continues to struggle with role of “economic” cost/benefit analysis. Section 6.3.4 states that: “Examination of the pros and cons cannot be reduced to an economic cost–benefit analysis. It is wider in scope and includes non–economic considerations. However, examination of the pros and cons should include an economic cost–benefit analysis where this is appropriate and possible. Besides, other analysis methods, such as those concerning the efficacy of possible options and their acceptability to the public may also have to be taken into account. A society may be willing to pay a higher cost to protect an interest, such as the environment or health, to which it attaches priority. The Commission affirms, in accordance with the case law of the Court that requirements linked to the protection of public health should undoubtedly be given greater weight than economic considerations.”

12 Susan Rose–Ackerman, “Putting Cost–Benefit Analysis in Its Place: Reinventing Regulatory Review,” 65 University of Miami Law Review (2011), 335 et sqq. A related article in French is “Études d’impact et analyse coûts–avantages: qu’impliquent–elles pour l’élaboration des politiques publiques et les réformes législatives”, 4(140) Revue française d’administration publique (2011), pp. 787– 806.

13 Bergkamp and Smith, supra note 5, quoting the Commission document at 448.

14 Craig, EU Administrative Law, supra note 4, at chapter 17.