Hostname: page-component-78c5997874-8bhkd Total loading time: 0 Render date: 2024-11-10T14:16:44.477Z Has data issue: false hasContentIssue false
  • English
  • Français

Framing Risk Regulation : A Critical Reflection

Published online by Cambridge University Press:  20 January 2017

Elizabeth Fisher
Elizabeth Fisher*
Affiliation:
Faculty of Law and Corpus Christi College, University of Oxford
Get access Rights & Permissions [Opens in a new window]

Extract

Over a decade ago I was involved in a group project that focused on developing a regulatory model concerning the implementation of the precautionary principle in the EU. The project involved a number of workshops and in those workshops I used to joke about the fact that while there were many different frameworks being produced to represent risk regulation, these diagrams basically fell into two different categories. In the first category there were those diagrams that characterised risk regulation as a linear process involving usually a scientific process of risk assessment and then political processes of risk management and risk communication. In the second category there were those diagrams that had lots of looping arrows going all over the place that represented the fact that risk regulation was an iterative process that constantly involved many scientific, socio-political and other inputs.

Behind my joking was a sense of hope. The linear diagrams did have their minimalist appeal, but the messy diagrams captured much of the reality of this area of regulatory practice.

Type
Transnational Risks and Multilevel Regulation: A Cross–Comparative Perspective
Information
European Journal of Risk Regulation , Volume 4 , Issue 2 , June 2013 , pp. 125 - 132
Copyright
Copyright © Cambridge University Press 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Precaupri. Renn, Ortwin, et al., The Application of the Precautionary Principle in the European Union: Regulatory Strategies and Research Needs to Compose and Specify a European Policy on the Application of the Precautionary Principle (PrecauPri), (Stuttgart: Centre for Technology Assessment 2003).Google Scholar

2 National Research Council, Risk Assessment in the Federal Government: Managing the Process, (Washington DC: National Academy Press 1983).Google Scholar

3 National Research Council, Understanding Risk: Informing Decisions in a Democratic Society, (Washington DC: National Academy Press 1996)Google Scholar and Royal Commission on Environmental Pollution, Setting Environmental Standards, 21st Report, (London: Hmso 1998).Google Scholar

4 Besides those already quoted also see Presidential/Congressional Commission on Risk Assessment and Risk Management, Framework for Environmental Health Risk Management – Volume One, (Washington DC: 1997)Google Scholar; National Research Council, Science and Judgment in Risk Assessment, (Washington DC: National Academy Press 1994)Google Scholar;Carnegie Commission on Science Technology and Government, Risk And The Environment: Improving Regulatory Decision Making, (New York: 1993)Google Scholar; and Parliamentary Office of Science and Technology, Safety In Numbers, (London: Hmso 1996).Google ScholarPubMed

5 Expert Group on Science and Governance, Taking European Knowledge Society Seriously, (Brussels: European Commission 2007).Google Scholar

6 Consider the opening statement of the HSE in Health and Safety Executive, Reducing Risks, Protecting People, (London: Health and Safety Executive, 1999).Google Scholar

7 Hood, Christopher, Rothstein, Henry and Baldwin, Robert, The Government of Risk: Understanding Risk Regulation Regimes, (Oxford: Oxford University Press, 2001) at p. 3.CrossRefGoogle Scholar

8 Wiener, Jonathan, “Risk Regulation and Governance Institutions” OECD (ed.) Risk and Regulatory Policy: Improving the Governance of Risk, (Paris: OECD Reviews of Regulatory Reform, 2010).Google Scholar

9 Renn, Ortwin, Risk Governance: Coping With Uncertainty in a Complex World, (London: Earthscan, 2008).Google Scholar

10 Rose, Carol, “Environmental Law Grows Up (More or Less) And What Science Can Do to Help”, 9 Lewis and Clark Law Review (2005), pp. 273 Google Scholar and Fisher, Elizabeth , et al., “Maturity and Methodology: Starting a Debate about Environmental Law Scholarship”, 21 Journal of Environmental Law (2009), pp. 213– 250.CrossRefGoogle Scholar

11 Davis, Devra, “The Shotgun Wedding of Science and Law: Risk Assessment and Judicial Review”, 10 Columbia Journal Of Environmental Law (1985), pp. 67 Google Scholar and Cranor, Carl, Regulating Toxic Substances: A Philosophy of Science and the Law, (New York: Oxford University Press, 1993)CrossRefGoogle Scholar

12 On the ways in which they are integrated see Fisher, Elizabeth, Risk Regulation and Administrative Constitutionalism, (Oxford: Hart Publishing, 2007) at Chapter One.Google ScholarPubMed

13 Vogel, David, “The Politics of Precaution: Regulating Health, Safety and Environmental Risks in Europe and the United States” (Princeton: Princeton University Press, 2012)CrossRefGoogle Scholar; Jasanoff, Sheila, Designs on Nature: Science and Democracy in Europe and the United States, (Princeton: Princeton University Press 2005); and Fisher, , Risk Regulation and Administrative Constituitonalism, supra note 12.Google Scholar

14 Creager, Angela, Lunbeck, Elizabeth and Wise, M.Norton (eds), Science Without Laws: Model Systems, Cases, Exemplary Narratives, (Durham: Duke University Press, 2007)CrossRefGoogle Scholar and Kitchin, Rob, Dodge, Martin and Perkins, Chris, “Introductory Essay: Conceptualising Mapping” Kitchin, Rob, Dodge, Martin and Perkins, Chris (eds), The Map Reader, (Oxford: Wiley-Blackwell, 2011).Google Scholar

15 NRC, Risk Assessment in the Federal Government, supra note 2.

16 Jasanoff, Sheila, Risk Management and Political Culture: A Comparative Study of Science in the Policy Context, (New York: Russell Sage Foundation,1986)Google Scholar and Fisher, Elizabeth, “Risk and Environmental Law: A Beginner's Guide” Richardson, Benjamin and Wood, S. (eds), Environmental Law for Sustainability, (Oxford: Hart Publishing, 2006).Google Scholar

17 NRC, Science and Judgment in Risk Assessment, supra note 4, at p. 32.

18 448 US 607 (1980).

19 NRC, Science and Judgment in Risk Assessment, supra note 4 at Chapter Two.

20 Ibid. at p. 34.

21 Ibid. at p. 34.

22 NRC, Risk Assessment in the Federal Government, supra note 2 at pp. 36– 7.

23 NRC, Understanding Risk, supra note 3 at Chapter One.

24 Presidential/Congressional Commission on Risk Assessment and Risk Management, Framework for Environmental Health Risk Management, supra note 4.

25 National Research Council, Science and Decisions: Advancing Risk Assessment, (Washington DC: National Academies Press, 2009)Google Scholar

26 Royal Society, Risk, Analysis, Perception and Management, (London, 1992) at p. iii.Google ScholarPubMed

27 Royal Commission on Environmental Pollution, Setting Environmental Standards, supra note 4 at Chapter Eight.

28 Documented in Fisher, Elizabeth, “Drowning by Numbers: Standard Setting in Risk Regulation and the Pursuit of Accountable Public Administration”, 20 Oxford Journal Of Legal Studies (2000), pp. 109–130.CrossRefGoogle Scholar

29 Deville, Adrian and Harding, Ronnie, Applying the Precautionary Principle, (Sydney: Federation Press 1997)Google Scholar; and Funtowicz, Silvio and Ravetz, Jerome, “Three Types of Risk Assessment and the Emergence of Post Normal Science” Krimsky, S. and Golding, D. (eds), Social Theories of Risk, (Westport: Praeger, 1992)Google Scholar

30 Rayner, Steven and Cantor, Robin, “How Fair is Safe Enough?: The Cultural Approach to Societal Technology Choice”, 7 Risk Analysis (1987), pp. 3–9.CrossRefGoogle Scholar

31 Committee to Review the OMB Risk Assessment Bulletin – National Research Council, Scientific Review of the Proposed Risk Assessment Bulletin from the Office of Management and Budget, (Washington DC: National Academy of Sciences, 2007)Google Scholar; NRC, Science and Decisions, supra note 25; International Risk Governance Council, An Introduction to the IRGC Framework, (Geneva: International Risk Governance Council, 2008); and Expert Group on Science and Governance, Taking European Knowledge Society Seriously, supra note 5.Google Scholar

32 Aven, Terje, “Foundational Issues in Risk Assessment and Risk Management”, 32 Risk Analysis (2012), pp. 1647– 1656.Google ScholarPubMed

33 Working Party on Regulatory Management and Reform, Risk and Regulation: Issues for Discussion, (Paris: OECD GOV/PGC/REG(2006)1 2006).Google Scholar

34 Committee to Review the OMB Risk Assessment Bulletin – National Research Council, Scientific Review of the Proposed Risk Assessment Bulletin from the Office of Management and Budget, supra note 31; Demortain, David, “Enabling Global Principle–Based Regulation: The Case of Risk Analysis in the Codex Alimentarius”, 6 Regulation and Governance (2012), pp. 207–224.CrossRefGoogle Scholar

35 OJ [2002] L31, p. 1

36 Article 5.1

37 Appellate Body Report, 16 January 1998, European Communities – Measures Concerning Meat and Meat Products (Hormones), WT/ DS26/AB at para 100.

38 1Rhomberg, L., A Survey of Methods for Chemical Risk Assessment Among Federal Regulatory Agencies, (Washington DC: National Commission for Risk Assessment and Management, 1997)Google Scholar; Commission of the European Communities, First Report on the Harmonisation of Risk Assessment Procedures, 2000); and Interdepartmental Liaison Group on Risk Assessment, Use of Risk Assessment Within Government Departments, (London: Health and Safety Executive, 1996).Google Scholar

39 NRC, Risk Assessment in the Federal Government, supra note 2 at p. 1.

40 Fisher, Elizabeth, Pascual, Pasky and Wagner, Wendy, “Understanding Environmental Models in Their Legal and Regulatory Context”, 22 Journal of Environmental Law (2010), p. 251–283.CrossRefGoogle Scholar

41 NRC, Science and Judgment in Risk Assessment, supra note 4 at p. 4.

42 But are raised in reports such as ibid. and NRC, Science and Decisions: Advancing Risk Assessment, (Washington DC: National Academies Press, 2009), supra note 25.Google Scholar

43 Pasky Pascual, Wendy Wagner and Elizabeth Fisher, “Making Methods Visible: Improving the Quality of Science Based Regulation”, 2, Michigan Journal of Environmental and Administrative Law (2013), in press.

44 Fisher, Risk Regulation and Administrative Constitutionalism, supra note 12.

45 Heyvaert, Veerle, “Governing Climate Change: Towards a New Paradigm for Risk Regulation ”, 74 Modern Law Review (2011), pp. 817– 844, at p. 826.Google Scholar

46 Ibid. at p. 834.

47 Ibid. at p. 820.

48 Fisher, “Drowning by Numbers”, supra note 28.

49 Jasanoff, Sheila, “The Songlines of Risk”, 8 Environmental Values (1999), pp. 135– 142, at p. 141.Google Scholar

50 Fisher, Elizabeth, “Risk Regulatory Concepts and the Law” OECD (ed.) Risk and Regulatory Policy: Improving the Governance of Risk (Paris: OECD, 2010) at pp. 55– 59.Google Scholar

51 Ibid.

52 Latour, Bruno, Science in Action, (Cambridge: Harvard Uinversity Press, 1987) at p. 227 Google Scholar. For a lengthier discussion of this see Fisher, Elizabeth, “Risk and Governance” David Levi-Faur (ed.) Oxford Handbook of Governance, (Oxford: Oxford University Press, 2012).Google Scholar

53 Compare with Jasanoff, Sheila, “A New Climate For Society”, 27 Theory, Culture and Society (2010), pp. 233–253.CrossRefGoogle Scholar

54 Giandomenico Majone, “Foundations of Risk Regulation: Science, Decision-Making, Policy Learning, and Institutional Reform”, 1 European Journal of Risk Regulation (2010), p. 5 and Demortain, “Enabling Global Principle-Based Regulation”, supra note 34.

55 David Winickoff, et al., “Adjudicating the GM Food Wars: Science, Risk and Democracy in World Trade Law”, 30 Yale Journal of International Law (2005), pp. 81–123; Jasanoff, Designs on Nature, supra note 13; and Fisher, Risk Regulation and Administrative Constitutionalism, supra note 12.

56 Fisher, Elizabeth, “Administrative Law, Pluralism and the Legal Construction of Merits Review in Australian Environmental Courts and Tribunals” Linda Pearson and Carol Harlow (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Oxford: Hart Publishing, 2008).Google Scholar

57 Maduro, Miguel, We, The Court: The European Court of Justice and the European Economic Constitution, (Oxford: Hart Publishing, 1998).Google Scholar

58 Legrand, Pierre, “European Legal Systems Are Not Converging ”, 45 International and Comparative Law Quarterly (1998), pp. 52–81.Google Scholar

59 Kagan, Robert, Adversarial Legalism: The American Way of Law, (Cambridge: Harvard University Press 2003)Google Scholar, Kelemen, Daniel, Eurolegalism: The Transformation of Law and Regulation in the European Union, (Cambridge: Harvard University Press, 2011).CrossRefGoogle Scholar

60 NRC, Science and Decisions, supra note 25 and Committee to Review the OMB Risk Assessment Bulletin – National Research Council, Scientific Review of the Proposed Risk Assessment Bulletin from the Office of Management and Budget, supra note 31.

61 Jasanoff, Designs on Nature, supra note 13.

62 Lawrence Busch, et al., Amicus Curiae Brief Submitted to the Dispute Settlement Panel of the World Trade Organisation in the Case of EC: Measures Affecting the Approval and Marketing of Biotech Products, (2004).

63 Shapiro, Sidney, Fisher, Elizabeth and Wagner, Wendy, “The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy”, 47 Wake Forest Law Review (2012), pp. 463– 502.Google Scholar

64 Royal Commission on Environmental Pollution, Setting Environmental Standards, 21st Report, supra note 3.

65 NRC, Understanding Risk: Informing Decisions in a Democratic Society, supra note 3.

66 Heyvaert, “Governing Climate Change”, supra note 45 at p. 837.

67 Osofsky, Hari, “The Geography of Climate Change Litigation Part II: Narratives of Massachusetts v. EPA”, 8 Chicago Journal of International Law (2008), pp. 573– 620.Google Scholar

68 Sheila Jasanoff, “A New Climate For Society”, supra note 53, at p. 233.

69 Veerle Heyvaert, “Governing Climate Change”, supra note 45 at p. 839.

70 Jasanoff, Sheila, “Objectivity in Regulatory Science: Sites and Practices” Charles Camic, Neil Gross and Michele Lamont (eds), Social Knowledge in the Making, (Chicago: University of Chicago Press, 2011) at p. 179.Google Scholar