Comments on paper by Richard B. Stewart

Publication Date15 August 2002
Date15 August 2002
AuthorRichard O. Zerbe
Richard O. Zerbe, Jr.
Professor Stewart has done his usual admirable job in laying out the dimensions
of an important problem, the use of precautionary principle in environmental
decision making under uncertainty, and in suggesting how current use of the
principle is inappropriate both in domestic and international environmental
policy. He focuses on versions of the strong precautionary principle. The weaker
of the two versions states that activities that propose an uncertain potential for
significant harm should be subject to best available treatment, BAT, to minimize
the risk of harm, unless the activities proponents show they present no apprecia-
ble risk of harm. The stronger version states that such activities should be
prohibited altogether unless its proponents can show no appreciable risk of harm.
Stewart maintains that in contrast to the strong precautionary principle,
uncertain risks should be regulated under the same general decisional
framework as risks that are well-characterized. In the face of uncertainty,
regulatory agencies should resolve the uncertainty as best they can and treat
the uncertain risk as the equivalent of a risk whose probability is known. In
resolving uncertainty, decision makers should make their best estimate of the
probability distribution of an uncertain risk, relying on the available evidence,
scientific theory, expert judgment, and guidance from analogous regulatory
problems and experience with them. They should not proceed, as with the
precautionary principle, on the basis of "worst case" presumptions. Professor
Stewart correctly labels these vague and draconian standards as an unsatisfac-
tory response to uncertainty.
An Introduction to the Law and Economies of Environmental Policy: Issues in Institutional
Design, Volume 20, pages 127-131.
© 2002 Published by Elsevier Science Ltd.
ISBN: 0-7623-0888-5

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