Draft 4/05/08 Alan Randall
Taking the Precautionary Principle Seriously
– a proposed monograph
A. Rationale
The problem context. The precautionary principle (PP) has been proposed as a guide for public policy in areas where there may be extraordinary risk, uncertainty, and gross ignorance about future consequences. Of course, we already have theory and methods for risk assessment and risk management, but the whole PP movement is founded on the claim that something more, something stronger than ordinary risk management (ORM), is needed.
The PP is fundamentally a claim that, when making multi-dimensional public decisions, acting to avoid and/or mitigate potential harmful consequences should be accorded high priority. It has been invoked in contexts such as medical, pharmaceutical, ecological, and environmental risk; and is a source of controversy in trade and economic development. There are many definitions of the PP in the literature (Clooney 2004). Definitions fall into three main categories, on a weaker-stronger scale: Uncertainty about harmful consequences does not justify failure to take precautionary action (Bergen Declaration 1990) Plausible but uncertain harm justifies precautionary intervention (UNESCO 2005) Uncertain harm requires intervention, and the burden of proof is shifted to the proponent of the proposed risky action (Wingspread Statement)
Governments and international organizations have adopted various versions of the PP. In this, the European Commission (2000) and UNESCO (2005) have been leaders, and they have tended toward the mid-strength definition, and embedded the PP in more fully- articulated decision processes with safeguards to prevent invoking the PP with, among other things, insufficient evidence of threat (“crying wolf”), insufficient attention to likely costs of precautionary actions, and inadequate provision to deal with distributionally-skewed consequences.
Despite its elemental appeal – be careful not to run off the cliff – the PP has proven a lightning rod for controversy in scholarly discourse, public discussion, policy circles, and in regulation and law. To its proponents, PP is just a matter of commonsense: extraordinary risks call for extraordinary precaution (e.g., Seventh Generation, undated). Yet opponents argue that the PP would undermine business-as-usual and stifle innovation and growth (e.g., Bailey 1999, More 2005). Scholarly critique of the PP includes versions of the above popular arguments, along with an array of others. Nevertheless, governments and international institutions have moved ahead to embed the PP in their decision structures in commonsense ways with safeguards of various kinds.
Objectives. This project aims to bring some conceptual clarity to the scholarly discourse, and ultimately to influence public discussion. Scholarly commentary is anchored at one end by claims that the PP is foolish, self-defeating, and ultimately meaningless because it would forbid any and all risky alternatives (Sunstein 2005), and at the other end by surprise that the PP is so controversial because, after all, it is little more than ORM (e.g., Farrow 2004). Yet, a PP to be taken seriously can be neither foolish nor redundant (as it would be, if it were just ordinary risk management). My objectives are to: Define and defend a PP that can be taken seriously, and is clearly positioned as a principle, not a rule. Address clearly the issues of o the nature of threats that might invoke a precautionary response (and, in so doing, the related concepts of disproportionate and asymmetric risk, uncertainty, and gross ignorance), o scientifically credible evidence in an era of persistent attempts to politicize science, and o the distinction between a principle and a rule. Outline a coherent framework for acting on principles in practical governance. Review some attempts to implement the PP (e.g., US endangered species legislation, EU attempts to restrict imports of genetically-modified commodities) and some attempts to specify a governance framework for implementing the PP (e.g., EU and UNESCO documents), as a way of “ground-truthing” the framework developed above.
Significance. The PP, while it remains controversial, has been adopted by governments, multi-national organizations, and various global conventions. It has potential application to (1) medicine, pharmacy, and public health (especially, cases involving involuntary exposure and/or exposure without informed consent), and (2) global environmental issues such as climate change, ecosystem health, and scarcity of essential resources. It has become an issue in international trade – witness United States objections to European Union restrictions on importing genetically modified commodities and beef raised with artificial hormones. In unsubtle application, the PP may invite certain disaster for the very poor as the “acceptable” cost of avoiding a more speculative risk (see Turvey and Mojduszka, 2005, on PP-based objections to international food aid in Africa). If this project succeeds in bringing more conceptual clarity and coherence to the design and justification of the PP, this will lead eventually to more appropriate, consistent, and beneficial application in a world fraught with risk, uncertainty and gross ignorance.
B. Outline
1. (a) Introduction and motivation (approximately 16 printed pages)
PP is controversial. The precautionary principle (PP) is fundamentally a claim that, when making multi-dimensional public decisions, acting to avoid and/or mitigate disproportionate risks should be accorded high priority. Despite its elemental appeal – be careful not to run off the cliff – the PP has proven a lightning rod for controversy. Popular commentary is anchored by claims that PP offers an idea that seems like ordinary commonsense: Extraordinary risks call for extraordinary precaution. PP would undermine business-as-usual and stifle innovation and growth, all in response to excessive pessimism and possibly-irrational fears.
Scholarly critique of the PP includes versions of the above popular arguments, along with an array of others. Here, we highlight – The PP is self-defeating and essentially meaningless because it would forbid any and all risky alternatives, yet even the no action alternative involves risk (Sunstein 2005). The PP is nothing special – just good science, good risk assessment, and good benefit cost analysis, i.e., ordinary risk management, ORM (Farrow 2004). 2 The PP is susceptible to false alarms whereas ORM assigns authority regarding the credibility of threats to the scientific mainstream, where it belongs. The PP debate is merely a quarrel about who owns the null hypothesis (“Prove the proposed action is harmful”. “No, you prove it is harmless”). There are almost twenty different formulations of the PP in circulation, so how can it be taken seriously in real-world policy? The PP conflicts with other important values that good law and policy would surely respect, and it fails to provide clear instructions for resolving these conflicts.
(b) Objectives of this project (~8 pp)
Taking the PP seriously requires that we define and defend a meaningful PP that is neither foolish nor redundant. Such a PP would be … Addressed to public policy issues involving collective threats. Clearly distinct from ordinary risk management (and therefore not redundant in that sense). It would not exclude ORM but, rather, subsume it in a broader framework that does not balk at stronger remedies when they can be justified. Justified for circumstances that would be recognized as extraordinary – a scientifically credible scenario that generates a disproportionate and asymmetric threat – and therefore avoids at least two kinds of foolishness: the imperative to avoid all risks, and susceptibility to false alarms. A sharp break from business-as-usual that provides remedies proportionate to the threat, allows time for research and learning, and is revisited in light of new information. Clearly positioned as a principle, not a rule (a principle is capable of commanding broad agreement and identifies considerations to be taken seriously, but is not a universal trump that defeats other valid considerations). … and thus would survive the above challenges.
2. Define a coherent PP (~50 pp)
Some environmentalists have defined PP as invoked by any and all actions that risk harm to nature (Raffenberger and Tichner 1999). At the opposite extreme, some economists (e.g., Farrow 2004) have defined it as (merely) introducing explicit risk aversion into the standard expected welfare maximization calculus. Neither extreme makes sense. Sunstein (2005), among others, has emphasized the foolishness of a PP that is invoked by any and all risks. On the other hand, a PP that goes no further than ORM is not merely redundant; it fails to grapple seriously with the well-recognized weaknesses of ORM in dealing with the problem of unlikely but potentially devastating possibilities.
Getting started (i) Consider the Hippocratic Oath – above all, do no harm. What can this possibly mean? If taken literally, an incision would be impermissible. Perhaps it means do no harm in the net – harm from (1) intervention should be less than from (0) letting things take their course – i.e., a Benefit Cost criterion. But there is risk in (1) and risk in (0). Perhaps the expected value of harm(1) must be less than the expected value of harm(0); or expected utility(1) should be greater than expected utility(0), an approach that could accommodate risk-aversion within a thoroughly utilitarian framework. These approaches are consistent with ORM. Perhaps it calls for an asymmetric calculus – harm (1) should be disproportionately less than the harm(0). Why? Because there is a special duty on the intervener to
3 get things right? 1 Because it is basically unfair if people who trust their government get blind-sided by an authorized treatment (or a regulated food supply) that harms them, even if on average the treatment helps and the food nourishes? Or simply because novel interventions may raise possibilities of harm asymmetrically greater than are likely from letting things take their course? Perhaps it is nothing more than an admonition to, before intervening, pause to consider the unintended consequences?
This brief look at the implications of the Hippocratic Oath has served several purposes. It has identified the benefit cost, expected value, and expected utility approaches that constitute ORM; and it has opened the door to two approaches that are outside of the usual range of ORM – a stand stronger than ORM that calls for asymmetric treatment of uncertain but potential asymmetric harm, and a stand weaker than ORM that calls only for sensitivity regarding possible unintended consequences. The Hippocratic Oath discussion here has been framed in terms of one of the two situations where PP might be relevant – the case of a novel and potentially threatening action (a treatment that may turn out to be harmful).
At this point, we have taken the Hippocratic Oath about as far as it can be taken as a metaphor for the PP, because the PP I have in mind applies more readily to collective threats. Precautionary strategies for individuals, and the obligations of public institutions and the professions to protect individuals from unnecessary exposure to threats, are interesting and important problems; but they are not a primary focus here.
(ii) Consider the Ehrlichs’ rivet-popper (who is removing rivets from the wings of the plane you will fly in, because scrap metal is selling well and nothing bad has happened to the plane despite the rivets popped thus far).2 There is a cost to quitting the popping, and perhaps some ORM involved on that side because the price of scrap metal, and the economic consequences of stopping, may vary. This is a standard criticism of PP – (1) there is risk on both sides of the equation, and (2) PP would paralyze innovation and stunt economic growth, all because we are scaredy-cats. But surely the risk to the plane is at least a candidate for classification as disproportionate and asymmetric3 relative to the risk to the economy.
The rivet-popper example advances the PP discussion in several ways. It addresses the second of two situations where PP might be relevant – the case of a business-as-usual pattern of exploitation (or pollution) that might overstress natural and/or economic systems, potentially resulting in a novel and threatening outcome (regime shift). It moves the discussion in the direction of collective threats (if the wings fail, all aboard the plane face
1 This seems sensible enough, but there are some special problems with the idea of an intervention: the distinctions between acts and omissions, and doing and allowing, are problematic.
2 The rivet-popper example is controversial among ecologists, if interpreted as a metaphor about redundancy in ecosystems. Its use here is more straight-forward – it is simply a metaphor for stressing a system cumulatively, when we do not know how much stress it can bear.
3 I need to be clear about language. Here, disproportionate means that the worst case is very much worse than the expected case is good. However, disproportionate often is used elsewhere in spatial and distributional contexts, e.g., environmental justice, differential exposure to injury/disease, differential access to medical care. Here, asymmetric is used in the statistical sense: the distribution of possibilities is skewed – the good outcomes are fairly predictable and modestly good, but the bad outcomes include a few that may be rare but are quite awful. However, asymmetric risk is quite ordinary to experts in finance – cases when standard hedging strategies fail, usually for a brief period until arbitrage brings the prices back into line – and they develop strategies for dealing with it. 4 extreme danger). Let the plane serve as a metaphor for a major ecosystem, or for the planet Earth itself, and we have imagined a realistic and policy-relevant asymmetric and disproportionate threat of the collective kind.
An ETR framework Let us start with what could be called an ETR framework. A PP of the following form …
If there is evidence stronger than E that an activity raises a threat4 more serious than T, we should invoke a remedy more potent than R
… would focus on the key issues: what sorts of threats might invoke precaution, what sorts of remedies might be appropriate, and what sorts of evidence might justify a precautionary interruption to business as usual? For my purposes, it is helpful to start with T and R because my project is to define and justify a PP that is, or can be, more potent than ORM. So, I start by asking what kinds of threats would justify remedies stronger than ORM.
T. Threats relevant to a coherent PP are likely to be collective threats (see box, p. 6). Examples might include threats to the ecology and/or environment which affect us all, and threats about which we are not informed – in both cases, we have limited opportunity to choose our level of exposure. [Note that relevant threats concerning health and treatment may be of either or both kinds.] Relevant threats should be disproportionate and asymmetric – ordinary risk management is fine for ordinary risks. Contextual features that increase the likelihood of disproportionate and asymmetric threats include complexity, novelty, and large spatial and/or temporal scale.
Complexity. The resilience of complex systems – (1) their tendency, following perturbations, to return toward their prior trajectory; and/or (2) their capacity to tolerate disturbances while retaining their structure and function – may be undermined by sudden anthropogenic shocks that precipitate regime shifts, or by sustained anthropogenic pressure (e.g., harvest, or effluent inflows) that reduces resilience and increases vulnerability to regime shifts (Holling 2001, Folke et al. 2004). Because regime shifts change the system in unpredictable ways (Folke et al.), the threats introduced may be asymmetric.
Novelty. New and untested phenomena (things and events) may introduce disproportionate and asymmetric threats – we have better knowledge of outcomes and/or probabilities associated with familiar phenomena, and it is likely that the extremely harmful possibilities have been eliminated already – which implies that the risks involved are more likely to be manageable with standard tools. Novelty may pertain to actions (i.e., we introduce a new technology, or release an alien organism), or to outcomes (a familiar and sustained intervention – perhaps exploitation or pollution – may increase vulnerability to regime-shifts with unpredictable consequences).
4 Language, again, is an issue. (1) In ordinary language, harm is something bad; threat is an indication of something bad impending (a signal correlated with a future bad outcome from a given action); and risk is an etymological mess (a chance or probability, a negative expected value, or a threat). For most of the discussion that follows, threat is the most serviceable of these concepts. (2) In the language of statistics and information theory, risk, uncertainty, and gross ignorance represent decreasing gradations of knowledge about outcomes yet to be revealed: risk – we can enumerate outcomes and we know their probabilities; uncertainty – we can enumerate outcomes but their probabilities are unknown; gross ignorance – the outcome set is unbounded. 5 Large spatial and temporal scale. If the effects of an alternative cannot be contained readily in space or in time, then the chances are exacerbated that threats will be disproportionate and asymmetric.
This PP would offer guidance beyond the scope of ORM in cases where the choice set includes some actions that induce disproportionate and asymmetric threats, and some actions that do not. PP offers little beyond ORM in cases where all possible actions involve similar threats.
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It seemsexperimental clear that treatment this situation has gone does through not call exhaustive for a PP, buttesting it does prior call to forexperiments vigilance thatwith the human experimentalsubjects, and treatmentthat participation has gone is limitedthrough to exhaustive fully informed testing and prior consenting to testing volunteers with human among subjects,those with and the thatindicated participation condition. is limited to fully informed and consenting volunteers among those with the indicated condition. Peterson (2006, 2007) has argued that the case of clinical trials is informative to the PP debate: Peterson“… directly (2006, applicable 2007) to has recent argued discussions that the case of PP of in clinical medicine, trials biotechnology, in informative toenvironmental the PP debate: “…management, directly applicable and related to recent fields”. discussions I think not of – PPthe inclinical medicine, trials biotechnology,case may not be environmental an ideal management,application of theand PP, related”. but collective I think not threats – the are clinical different trials and case the may PP notis much be an better ideal adaptedapplication to ofthem. the PP, but collective threats are different and the PP is much better adapted to them.
R. Remedies may include Prohibiting the action or business-as-usual stress that gives rise to the threat Precautionary accommodations (e,g., avoidance, mitigation, and/or adaptation) beyond those that may be recommended by BC or ORM considerations Insurance, self-insurance, and self-protection – the standard instruments of ORM may well have roles in a precautionary policy package (it takes a PP to justify a package that includes ORM and some additional restraints).
6 There are two additional components of a comprehensive precautionary policy: Monitor, study, and reassess the threat– a process that may be repeated perhaps many times, with adjustments in remedy as warranted by emerging evidence. If all of the above R are reversible or adjustable at some tolerable cost, then remedies may be adjusted – prohibitions may become pauses, precautionary accommodations may turn out to be temporary, and levels of insurance and self-protection may be adjusted – as more is learned. Assume that the costs of pause-study-reassess are fairly modest, involving some out-of-pocket expense and some opportunity cost of foregone welfare from plowing ahead. This process tends to reduce but not eliminate the costs of precaution, thus reducing the chance that precaution itself will induce asymmetric threats. Then, the choice set includes actions that induce disproportionate and asymmetric threats (plowing ahead), and actions that do not (pause-study-reassess).5 Specific policies to reduce or mitigate disproportionate negative impacts of precaution on particular locations and/or socio-economic groups.
On the possibility of a utilitarian PP. The definition of the remedy I am defending (avoidance Onand the mitigation possibility measures of a utilitarian beyond those PP. justifiedThe definition by expected of the remedywelfare considerations,I am defending (avoidancei.e., by andORM) mitigation raises a measuresquestion: canbeyond we imaginethose justified a utilitarian by expected PP (the welfarepoint being considerations, that utilitarian i.e., ORM by ORM)might logicallyraises a includequestion: PPs can that we were imagine consistently a utilitarian utilitarian)? PP (the point Many being economists that utilitarian have assumed ORM mightunquestioningly logically include that a crediblePPs that PP were must consistently be a utilitarian utilitarian)? PP. In Manya similar economists vein, Peterson have assumed (2006) unquestioninglyclaimed that the thatPP isa incoherent,credible PP whichmust behe a“demonstrated” utilitarian PP. byIn ashowing similar vein,that a Peterson rational person(2006) claimedfacing conditions that the PP ideal is incoherent,for ORM would which choose he “demonstrated” ORM rather than by showing a precautionary that a rational restraint person – facingreasoning conditions of impregnable ideal for ORMcircularity, would since choose ORM ORM is exactly rather whatthan aone precautionary gets when one restraint derives – reasoningoptimal actions of impregnable from rationality circularity, assumptions since ORM and isideal exactly conditions. what one gets when one derives optimal actions from rationality assumptions and ideal conditions. Early attempts at a utilitarian PP were problematic because extreme risk aversion was imposed Earlyin one attempts guise or atanother, a utilitarian and oftenPP were unconvincingly. problematic becauseRandall arguedextreme that risk all aversion of this (over)reaching was imposed infor one a utilitarian guise or PP another, is much and too often strained unconvincingly. – there is no Randall convincing (2007) argument argued againstthat all ofthe this idea that (over)reachingthe scope for business-as-usual for a utilitarian PP utilitarian is much tooethics strained might –coherently there is no be convincing bounded byargument non-utilitarian againstconstraints the (includingidea that the a non-utilitarian scope for business-as-usual PP). utilitarian ethics might coherently be bounded by non-utilitarian constraints (including a non-utilitarian PP). Margolis and Naevdal have offered yet another, and this time more promising, utilitarian PP. MargolisPerhaps weand should Naevdal be (2008)searching have for offered the thresholds, yet another, kinks, and etc. this needed time more to derive promising, a utilitarian utilitarian PP.prohibition, Perhaps or wepause, should in our be searchingexpression for of thethe thresholds,way the world kinks, works etc. (i.e., needed in the to responsederive a utilitarian prohibition,function) rather or pause, than in in our our expression expression of of preferences the way the (theworld utility works function). (i.e., in theThresholds, response kinks, function)etc. in the rather way the than world in our works expression are in fact of preferences suggested by (the the utility ideas function). of complexity, Thresholds, regime kinks, shifts, etc.tipping in the points, way etc.the world(Folke works et al., areHolling), in fact and suggested Margolis by and the Naevdal ideas of havecomplexity, shown regimethat shifts, tippingprecautionary points, prohibitionsetc. (Folke et or al pauses., Holling), may and be optimalMargolis from and a Naevdal utilitarian have standpoint shown thatwhen the precautionaryresponse relationships prohibitions exhibit or pauses thresholds. may be optimal from a utilitarian standpoint when the response relationships exhibit thresholds. In the end, I think, the arguments of Margolis and Naevdal (who have justified a utilitarian PP for Incertain the end, particular I think, specifications the arguments of ofhow Margolis the world and works), Naevdal and (who Randall have (whojustified argues a utilitarian that a PP for certaincoherent particular precautionary specifications constraint of howon the the domain world works),of utilitarian and Randallethics does (who not argues itself thathave a to be coherentutilitarian) precautionary can coexist and constraint in fact complement on the domain each of utilitarianother; but ethics Peterson’s does not(2006) itself argument have to be utilitarian)cannot coexist can coexistwith either and claim in fact – complementhis case that each the PP other; is incoherent but Peterson’s falls when argument faced cannot with coexistsystemic with complexity either claim in a –utilitarian his case universe,that the PP and is whenincoherent faced fallswith whenethical faced pluralism. with systemic complexity in a utilitarian universe, and when faced with ethical pluralism.
To this point, I have defined a class of threats (disproportionate and asymmetric) that might justify remedies that are not limited to ORM. This PP does not exclude ORM; rather, it subsumes it in a broader framework that does not balk at stronger remedies when they can
5 If, on the other hand, there is a non-trivial chance that aliens would destroy us while we research and dither, the threat is no longer asymmetric – but there are plenty of asymmetric cases, I suspect. 7 be justified. To complete the ETR framework, the remaining challenge is to address the issue of false alarms – what can be said about the kinds of evidence that would justify invoking a precautionary response?
E. The evidence that would justify a precautionary interruption of business as usual should be scientific and credible – one cannot take seriously an approach that can be triggered by unfounded panic. The challenge is to put some flesh on the idea of plausible and credible scientific evidence. There are commonsense notions of scientific credibility/plausibility. US courts have addressed the issue. In Daubert and Kimho Tire, courts affirmed the admissibility of expert testimony, ruling that there are some hallmarks of what is plausible/credible in scientific testimony (the evidence and the methodology have been tested, the results have been peer reviewed and/or published, the potential rate of error is known, the evidence is generally accepted in the scientific community), and courts should look for these in judging admissibility. Nevertheless, the Cellular Telephone decision endorses regulation despite scientific uncertainty – to justify regulation, scientific evidence of a threat does not have to be overwhelming: “not a preponderance but more than a scintilla of evidence”. Court decisions suggest strongly that judgments of scientific credibility are the province of scientists, not ordinary people. [Kahan et al., psychologists, titled their response to Sunstein “Fear of Democracy”.] There is a campaign to politicize science and reduce scientific discourse to an ordinary cultural quarrel: “muddying the waters” (Michaels and Monforton), “junk science” (junkscience.com), “manufactured uncertainty”, “false balance”, and “teaching the controversy”. Most of us are aware of this sort of thing regarding evolution and climate change, but it appears also in ordinary regulatory disputes. But this campaign cannot succeed completely, because sciencehas some strong defenses against politicization. The whole culture of scientific detachment and the political independence of science itself, and the self-policing and self-correcting tendencies built-into the institutions of science sustain a considerable degree of interpersonal reliability in what counts as scientifically plausible and credible. The public and the courts willingly concede substantial deference to scientists in matters of scientific judgment. Nevertheless, the public has to be brought along – “Just as consultation breeds trust in expert risk regulators, the perception that (they) are remote and unaccountable erodes it” (Kahan et al. 1104).
The Precautionary Principle – a working definition My tentative working definition of the precautionary principle, in an ETR frame, is:
In response to a scientifically credible threat of disproportionate and asymmetric harm, we should take avoidance and mitigation measures beyond those justified by expected welfare considerations.
The call to action is triggered by scientifically credible evidence of a disproportionate and asymmetric threat, such that the loss from the worst case outcome (even if unlikely) is disproportionately large relative to the gain from the most likely outcomes, and the remedy indicated can be justified only by departing from expected welfare maximization (even if very substantial risk aversion is built-in). This precautionary principle addresses plausible but uncertain harm, and it may call for approaches that consciously depart from ORM; it is simply not limited to figuring out how much risk aversion to front-load into a benefit cost analysis. 8 3. Understanding PP as a principle (~18 pp) Discussion of the precautionary principle (PP) seems mostly to proceed in legalistic terms, and often in the particular legalistic terms of international trade (D. Peterson 2006).6 Such discussion by its nature seeks enforceable interpretations, and is uncomfortable with competing definitions, and inconsistencies (either internal or with other widely-honored values). However, I think this discussion reflects a rather odd view of what can reasonably be expected of a principle.
What do we mean by principles in the policy context? First, consider principles in moral reasoning. Principles are general statements of normative moral positions for a class of concerns (e.g., change that benefits some while harming none is morally desirable; and, each person’s autonomy is morally valued). They can be formulated from moral intuitions and are, in that sense, logically prior to complete moral systems.7 Yet, the absence of a complete and dominant moral theory (Williams 1985) provides good reason for taking moral principles seriously. As we might expect, some principles are so compelling that they are recognized by many competing moral systems.8 To call a moral statement a principle does not grant it lexical priority over other principles – in complicated (that is, interesting) exercises in applied ethics, important principles will come into conflict and resolution requires a weighing of the principles involved and the facts of the case. Yet, a principle is much more than a preference – we feel a serious moral loss when we have to compromise a principle in a particular case. Finally, agreed principles provide not policies but a frame for policy resolution that anticipates and accounts for competing and conflicting principles.
Principle has a similar meaning in law. A legal principle is not a complete theory of normative law, but must be interpreted in ways that anticipate and account for competing and conflicting principles. To call a statement a legal principle does not grant it lexical priority over other legal principles. Agreed principles cannot be implemented directly – a principle provides a powerful argument in a particular direction, but does not determine a specific outcome (Cooney 2004) – but must be operationalized in laws, rules, guidelines, etc.
Critiques of the PP as incomplete, inconsistent with other principles and values, and altogether not a good stand-alone decision rule simply misunderstand the nature and role of principles in legal as well as moral discourse.
6 See also M. Peterson’s (2007) claim that the PP cannot guide action and decision unless it is structured and used as a stand-alone rule that tells us what to do and what not to do for each possible input of information.
7 Often, efforts to work out practical responses to ethical challenges (e.g., environmental ethics) take legal or political form before they are understood as works of normative ethics.
8 Groups and individuals often disagree about moral theories, but may nonetheless accept a surprisingly large body of common principles. Thus, they may be able to achieve substantial social agreement about actions, even though their theories are incompatible. Taylor (1989) emphasizes the search for principles capturing and generalizing prior moral intuitions that transcend and precede moral theories – principles that (he argues) routinely go under-valued in standard moral epistemology, but are forced to the front by value pluralism.
9 If the precautionary principle is viewed as a principle, then it succeeds if it serves as a principle that guides law and policy, in the sense that it embodies a considerable moral intuition to be consulted along with other pertinent principles and values when the issues it addresses come into play. Such a precautionary principle is capable of justifying the strong sustainability exceptions that back-stop business-as-usual weak sustainability, and of framing the policy discourse that triggers the exceptions in particular cases.
4. Moral foundations of PP (~18 pp) The PP is itself a principle, I have argued, yet it must find its moral support in prior more general moral intuitions which themselves enjoy widespread acceptance among thoughtful moral agents. The case for invoking the PP hinges on a scientifically credible threat of disproportionate and asymmetric harm – ordinary risk management is appropriate for roughly symmetric risks. In the case of a disproportionate and asymmetric threat, moral principles that might support a PP include the following variations on the general ideas that risk-taking9 should not be disproportionate to the expected gain, and that exposure to risks should be distributed roughly the same way as opportunity to gain: Do not sell-out something unique and potentially very valuable for modest gain Do not take inordinate risks for modest gain Do not impose big risks on the public for modest private gain Do not impose big risks on the future for modest immediate gain
5. (a) Acting on principles in practical governance (~15 pp) Pragmatic, progressive roots of policy processes. Pragmatic policy processes still predominate in public agencies, and tend to produce fact-based decisions aimed not at saving the world but making us a little bit better-off one step at a time. By “fact-based”, I mean only that policy discourse proceeds on a tacit assumption that policy questions can (and where possible should) be resolved mostly by evaluating fact-claims without explicit consideration of values (especially, conflicting values). If fact-claims drive policy, no value matters until it matters – that is, value discourse is submerged and occluded, to the effect that value questions do not arise until value-driven objections to proposed policy are raised, which is hardly the ideal context for fruitful value discourse.
Special challenges in dealing with concerns for the future. It follows that pragmatism is good for day to day social decisions, but disastrous for addressing issues concerning the distant future, where values are incompletely developed and poorly articulated. How, then, can policy accommodate principles? Technologies for meeting objectives (that is, the familiar planning tools) are not useful for defining objectives. We cannot work toward moral consensus via processes designed to submerge moral issues and discourse in pursuit of pragmatic progress. When dealing with the future we need to address moral issues directly, with special attention to issues best posed as questions of principle rather than mere utilitarian (and therefore fungible) value. This process should identify a set of principles that command broad-based support, and can be operationalized in laws, rules, and ultimately management practices. On the ground, resource and environmental managers should be bound to a set of principles, but encouraged to interpret those principles in practice via a serious policy dialogue.
9 Here, I am using the term “risk-taking” in its ordinary, colloquial sense. Where risk is in fact the issue, the PP that goes beyond ORM comes into play when risk is disproportionate and asymmetric. Where uncertainty is the issue, with unknown probabilities, the credible threat is that a disproportionately bad outcome may be made more likely. Where gross ignorance is the issue, with unbounded outcome set, the credible threat concerns a bad outcome novel in kind or scale.
10 (b) Acting on principles: implementing the PP (~35 pp) The fundamental framework proposed and defended here would make business-as-usual decisions according to familiar welfare criteria, while providing precautionary exceptions for particular, scientifically credible threats of asymmetric risk and/or uncertainty.10 The precautionary exceptions are justified by principles that would be honored by many different moral systems (section 4). The framework would respect both the modern experience of technical progress and increasing welfare even as change in what we consume and how we produce it proceeds apace, and the reasonable instinct for caution as we continue to push at the frontiers of what can be known about our planet’s capacity to support future welfare.
The framework should articulate clear principles and take them seriously in practice Commitment to precautionary exceptions in cases that exceed a threshold of concern Commitment to transparent and inclusive public decision processes Commitment to equitable sharing of burdens – esp. burdens undertaken to benefit future generations Implementation procedures should recognize that: o Principles must be operationalized in laws and rules that provide for interpretation via shared discourse – there are plenty of judgment calls to be made, e.g., scientifically plausible threat of disproportionate harm. o Scientific detachment provides a degree of interpersonal reliability in what counts as scientifically plausible/credible. o But the public has to be brought along – “Just as consultation breeds trust in expert risk regulators, the perception that (they) are remote and unaccountable erodes it” (Kahan et al. 1104). o Every effort should be made to structure decision processes so they avoid privileging particular worldviews in law and regulation. Managers should be bound to principles, but encouraged to interpret them in practice via a serious policy dialogue with expert and stakeholder involvement. Principles should guide management decisions. Management procedures should avoid planning to the fourth decimal place, and abdication to stakeholder conventions.
These points will be illustrated by examining cases from the US (including the experience with endangered species legislation) and the EU (EEA 2001), and reviewing EU (EC 2000) and UNESCO (2005) documents attempting to specify a governance framework for implementing the PP.
6. Conclusions (~8 pp)
(Total printed pages: ~168 + preface, contents, references, index)
10 In that sense, this discussion will develop further some ideas outlined in Farmer and Randall 1998, Randall 1999, and Randall 2007. 11 References
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