Economic Thought and U.S. Climate Change Policy

8 - Embracing a Precautionary Approach to Climate Change

We have seen that the neoliberal framing of climate change relies heavily on cost-benefit analysis, as a proxy for the market, to guide and even to determine appropriate regulatory responses. Cost-benefit analysis implies, however, that we can determine with some accuracy the environmental costs of our free markets, which is a demonstrably false assumption. A precautionary approach, in contrast, accounts explicitly for uncertainty, and therefore it focuses attention on appropriate protective action. It provides a valuable alternative to a market-based approach predicated on cost-benefit analysis. In common usage, to “take precaution” means to take measures that are calculated to avoid a threatened harmful outcome. In the area of environmental protection, the idea of precaution has additional resonance , because it is widely accepted that the nature and purpose of much environmental regulation is to avoid harm to human health and the nonhuman environment before such harm comes to pass. This is the preventive purpose of environmental regulation. It is also widely understood that preventive regulation must therefore be based on incomplete supporting information, because the inherent complexity and limitations of the relevant science preclude certainty ex ante about causes and consequences . This is the anticipatory purpose of environmental regulation, and the idea of precaution embraces both prevention and anticipation. In order to express the precautionary objectives of environmental regulation , numerous international agreements of the last fifteen or twenty years have adopted the “Precautionary Principle.” While its origins are older, the principle received its most commonly cited formulation in the Rio Declaration, a statement of 27 principles that formed the closing document of the 1992 Earth Summit1 and was signed by 165 nations: 8 Embracing a Precautionary Approach to Climate Change John S. Applegate 172 J. S. Applegate In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.2 The Precautionary Principle is founded on the goal of prevention, and its precise focus is anticipation: “The principle states that in cases of scientific uncertainty ‘no evidence of harm’ should not be equated with ‘no harm.’”3 The principle has become a widely accepted constituent of international environmental law. The United States has expressly accepted it in the Rio Declaration and the United Nations Framework Convention on Climate Change (UNFCCC); and it is therefore entirely appropriate to expect that U.S. policy comport with the Precautionary Principle. What does it mean to take a precautionary approach to climate change? Because the Precautionary Principle has been the object of an enormous amount of mischaracterization and misunderstanding in the United States, our first task must be to clarify what the Precautionary Principle is not. With a few notable exceptions,4 the American legal literature on the Precautionary Principle has been harshly critical. In fact, the Precautionary Principle has the dubious distinction of being simultaneously attacked as being both extreme and vacuous—that is, both as representing a radical shift in environmental policy toward some kind of neo-Luddism, and as being no more than a truism.5 Much rubble needs to be cleared away. With that accomplished, we can turn to the actual meaning of the Precautionary Principle. Although it is far from uniformly understood or interpreted, the principle can be said to have four elements, each of which applies quite directly to the problem of climate change. We will find that the Precautionary Principle has especially important things to say about the adequacy of scientific information as a barrier to regulation . Arcuri characterizes this as the “‘minimal core’ of the Principle: it is meant to justify intervention in the absence of scientific certainty. In other words, uncertainty per se should not preclude regulatory actions undertaken to protect human health and the environment.”6 Substantively , the Precautionary Principle points us in a direction quite different from the current neoliberal model, and one that is far more responsive than current U.S. policy is to the current level of understanding of climate science. A Precautionary Approach to Climate Change 173 I. Critiques of the Precautionary Principle The Precautionary Principle is not a simple legal concept to describe, because it has been formulated in ways that range between what Arcuri calls α-Precaution (un-precaution, in Wagner’s phrase), in which scientific certainty...