Editor’s Note: The authors highlight an essential point about the “precautionary” principle, it creates unwarranted risk.
Regulatory Science and the TTIP
At a superficial level, the EU and U.S. approaches to risk analysis and regulation may seem fundamentally different. Commentators traditionally describe the EU regulatory system as “precautionary,” while characterizing the U.S. system as “risk-based” and driven by “cost-benefit analysis.” Like many stereotypes, this facile characterization does contain some underlying truth, but it papers over complexities of both systems and conceals numerous similarities. As an initial matter, neither a system based on a simplistic view of the “precautionary principle” nor a program based solely on quantified “cost-benefit analysis” is inherently viable. As Cass Sunstein has demonstrated, the “strong” version of the precautionary principle is internally unworkable: demanding virtual certainty of safety prior to allowing an activity can create far more grave countervailing risks and place a straightjacket on innovation or even basic enjoyment of life. For example, some isolated studies have shown a link between cellular telephone usage and certain types of brain tumors (although most other studies have found no such link), but no one on either side of the Atlantic seriously proposes banning all such devices until their safety is conclusively proven. Similarly, although efforts to base regulations on cost-benefit analysis are admirable and help ensure that regulators do not improperly overvalue certain goals at the expense of others, it is difficult to quantify certain regulatory “benefits,” such as environmental protection or psychological well-being, with any degree of precision.