Policy and Legal Aspects of Precautionary Choices

Abstract

Precautionary principles, better safe than sorry regardless of major uncertainties, guide public policy decisions involving health, environment, and safety. These principles are directed to prevent and protect against catastrophic incidents. In the European Union (EU), the Precautionary Principle (PP) has resulted in constitutional safeguards for the EU’s member states (MS) and in administrative guidance from the EU Commission to those states. Although the PP initially had an environmental focus, it now extends to public health choices regarding threats from prospective catastrophic incidents. The principle itself, and other legal statements such as those developed in the United States that roughly correspond to the PP, explicitly require causal science-policy justifications for acting – deciding in the public interest – even if the evidence of scientific causation is incomplete and important uncertainties have not been resolved at the time of analysis. The dilemma is that precautionary actions can be very costly and may at times seem counterproductive. Scarce funds could appear to be better spent on other policies that have nearer term protective effects and are more certain to do so. To understand these issues, we review the legal context of precautionary policy in US and European Union laws. We focus on statutory, regulatory, and judge-made case law that have defined the boundaries of the application of the PP and other precautionary and preventive principles. We exemplify how regulatory laws may be vague and how individual attitudes toward taking risks can be analytically assessed to reflect how losses and gains are analyzed and perceived.