EU's "Precautionary Principle" -- Love it and Hate it.     Print

The Precautionary Principle has become an important aspect of European Union regulatory and legal jurisprudence. Its ascendancy, however, drives some, particularly conservative intellectuals in the US, into fits of free market frenzy.

The Precautionary Principle holds that where an action or policy might cause serious harm to the public—even if that harm is not a certainty-- the burden of proof falls on those who advocate the action. More succinctly the principle cautions governmental actors: “Better safe than sorry.”

Critics say the principle overlooks the danger of governmental action or inaction when there is great potential for good, notwithstanding risk.

The Precautionary Principle is invoked in EU regulatory affairs over a wide range of topics, but most often possible environmental/health danger is at issue. The principle comes up on discussions of bio fuels, handling of industrial waste, carbon capture, nano technology toxicity, and beef imports. But it has even emerged in discussion about regulation of video games.

In the EU’s Maastricht Treaty of 1992, the principle was enunciated as follows: “Community policy on the environment…Shall be based on the precautionary principle and on the principles that preventative action should be taken, that environment damage should as a priority be rectified at source and that the polluter should pay.”

The 1992 Rio Declaration also adopted the principle: “Where there are threats to serious or irreversible damage, lake of full certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

In 2002 the European Commission issued a full dress Communication on the Precautionary Principle: “The precautionary principle applies where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen by the EU."

The Precautionary Principle has its roots in an expansion of the English common law concept of “duty of care.” It is more often found in EU regulatory debates than in the United States where the concept is frequently viewed as too tentative on one hand and unnecessary meddlesome on the other. Professor Jonathan H. Adler of Case Western Reserve law school, made a presentation at the American Enterprise Institute last month that is typical of the scorn with which many Americans view the Precautionary Principle. He quotes another scholar Frank Cross approvingly: "The truly fatal flaw of the precautionary principle...is the unsupported presumption that an action aimed at public health protection cannot possibly have negative effects on public health".

Nevertheless EU regulatory concepts, including the Precautionary Principle, are gaining force even in the US as EU jurisprudence extends to more issues and controversies and the regulatory regime of the EU extends its reach.