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Published online by Cambridge University Press: 20 January 2017
A vast body of scholarly articles and books has been devoted to the precautionary principle, making it one of the most studied principles of our time. This wealth of attention can be explained by the fact that the question of how to manage man-made risks remains an extremely divisive issue for contemporary societies and the precautionary principle is the only principle idiosyncratic to the field of risk law. The book by Zander contributes to this scholarship by presenting a rich comparative legal analysis that gives a clear illustration of how the principle is applied at the international and European level as well as the national level, where the Swedish, UK, and US legal frameworks are discussed. The central parts of the book (chapter 3 to 7) are devoted to these comparisons. For this comparison, Zander chooses two case studies: pesticide regulation and the regulation of base stations.
1 The example is taken from the US Environmental Protection Agency, Guidelines for Preparing Economic Analyses, September 2000, at p. 36.
2 Revesz, R.L., “Environmental Regulation, Cost-Benefit Analysis and the Discounting of Human Lives”, 99 Columbia Law Review (1999), p. 941 CrossRefGoogle ScholarPubMed.
3 Economists have long assumed that the two measures were almost identical. A growing body of research, however, has shown that willingness to accept measures are larger than willingness to pay measures. For a review of these studies, see Horowitz, J.K. and McConnel, K.E., “A Review of the WTP/WTA Studies”, 42 Journal of Environmental Economics and Management (2002), p. 426 CrossRefGoogle Scholar.
4 O’Connor, M. et. al.,“Emergent Complexity and Procedural Rationality: Post-Normal Science for Sustainability,” in Costanza, Robert, Segura, Olman and Martinez-Alier, Juan (eds), Getting Down to Earth: Practical Applications of Ecological Economics (Washington, DC: Island Press 1996), at pp. 233–34Google Scholar.
5 Heinzerling, L., “Regulatory Costs of Mythic Proportions”, 107 Yale Law Journal (1998)CrossRefGoogle Scholar.
6 For an example of these juxtaposition, see Fisher, E. and Harding, R., “The Precautionary Principle and Administrative Constitutionalism: The Development of Frameworks for Applying the Precautionary Principle”, in Fisher, E., Jones, J. and von Schomberg, R. (eds), Implementing the Precautionary Principle: Perspective and Prospects (Cheltenham, Edward Elgar 2006)CrossRefGoogle Scholar; Klinke, A. and Renn, O., “A New Approach to Risk Evaluation and Management: Risk-Based, Precaution-Based, and Discourse-Based Strategies”, 22 Risk Analysis (2002), p. 1071 CrossRefGoogle ScholarPubMed. For a recent book on this issue see Kysar, D.A., Regulating from Nowhere: Environmental Law and the Search for Objectivity (Yale University Press, 2010)CrossRefGoogle Scholar.
7 Later in the book, Zander seems not to see this tension. On p. 229, when discussing the UK experience, he contends that “public opinion is taken into account in a sophisticated manner through the use of WTP, WTA and QUALYs.” It is doubtful that this is the case. If it is true that these techniques build on the behavior of individuals in the market, they are most often used to construct the value of goods that are not traded in the market. They rely on a set of assumptions made by economists and subject of controversy.
8 Sunstein, C.R., Laws of Fear: Beyond the Precautionary Principle (Cambridge, UK: Cambridge University Press 2005)CrossRefGoogle Scholar.
9 Kahan, D.M. et. al., “Fear of Democracy: A Cultural Evaluation of Sunstein on Risk”, 119 Harvard Law Review (2006), p. 1071 Google Scholar.
10 See for instance, Driesen, D.M., “Is Cost-Benefit Analysis Neutral?”, 77 University of Colorado Law Review (2006), p. 335 Google Scholar.
11 Ackerman, F., Heinzerling, L. and Massey, R., “Applying Cost-Benefit to Past Decisions: Was Ever Environmental Protection Ever a Good Idea?”, 57 Administrative Law Review (2005), p. 155 Google Scholar.