A Pattern of Parity and Particularity

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Jonathan B. Wiener

Is Europe now ahead of the United States in environmental protection? The answer is that a simplistic sports metaphor cannot do justice to the complex reality of transatlantic risk regulation.

It is certainly true that in recent years several highly visible European policies have been more precautionary than their U.S. counterparts – earlier in anticipation of emerging risks, or more stringent, or both. Among these are European Union policies restricting hormones in beef and genetically modified foods, regulating greenhouse gases, and the new REACH chemicals program. In each of these cases, the United States has demurred. Moreover, Europe has formally adopted the “precautionary principle” in its treaties and national laws, while the U.S. has not.

Based on this evidence that Europe is “ahead,” some observers laud European leadership while others criticize European overregulation. Analysts seek to explain the alleged pattern as the result of underlying culture – European risk-aversion versus American risk-taking – or, by contrast, as the result of a reversal in position from greater U.S. precaution in the 1970s to greater European precaution today. The reversal hypothesis highlights the slowdown in new lawmaking in the U.S. Congress, and the accretion of EU regulatory institutions, since 1990.

But this evidence of greater European precaution, drawn from a few visible policies, is not the whole story. Other cases point in the opposite direction, of greater relative U.S. precaution. For example, the U.S. began phasing out CFCs a decade before Europe, and years before observations confirmed the theoretical link to ozone depletion. The U.S. also phased out lead in gasoline before Europe did. Precaution is espoused in key U.S. statutes, including the Clean Air Act and the Endangered Species Act. The U.S. adopted earlier and more stringent restrictions on fine particulate matter and diesel emissions, in both the Clinton and current Bush administrations. In response to the European epidemic of mad cow disease, the U.S. has banned British beef since 1989, whereas the EU did not do so until 1996, and then removed that ban three years later. Further, in 1999 and 2001 the U.S. FDA adopted “Precautionary Measures” banning blood donations by people who have spent a few months in Britain or a few years in Europe since 1980 – earlier and far stricter than in Europe, despite little evidence of mad cow disease transmission via blood, and despite the countervailing risk of hospital blood shortages.

Thus the cases point both ways. But these competing cases are not an adequate basis for overall comparisons. Cherry-picking selective examples does not support conclusions about the general pattern. Hasty comparisons are vulnerable to the heuristic errors of disproportionate attention to recent, highly visible events, and exaggerated distinctions between groups that are actually similar.

To overcome these limitations, we undertook a multi-year study of a broadly representative sample. We identified the 2,878 risks mentioned in the relevant literature in the U.S. and Europe from 1970-2004. From this universe, we selected a random sample of 100 risks and scored the relative precaution in U.S. and European regulations for each over the past 35 years. As reported in the article by Hammitt, Wiener, Swedlow, Kall & Zhang in Risk Analysis, October 2005, we found less than a 6 percent difference in average relative precaution over the period. Neither the cultural nor the reversal hypothesis was supported by the data.

The real pattern, then, is not the precautionary principle, it is precautionary particularity. Our broad analysis reveals that the U.S. and Europe exhibit general transatlantic parity, punctuated by divergences on a few specific risks, with each side acting more aggressively in some cases. The interesting question is not who is ahead, but why the U.S. and EU sometimes select such different worries.

The EU is now moderating its commitment to precaution, in favor of greater emphasis on the “proportionality principle” and the concomitant treaty requirement to assess “the potential benefits and costs of action or lack of action.” In February 2000, the European Commission reclaimed the precautionary principle as part of decision analysis, requiring it to be based on scientific risk assessment and benefit-cost analysis. The EU’s initiative on policy Impact Assessment, launched in 2001, was reinforced with revised guidelines issued in 2005 by the new Barroso Commission. The result is that EU policy is now converging toward the same analytic tools used in the U.S. to evaluate new regulations. And the legal context, such as different enforcement and tort liability, may narrow any asymmetry in regulatory standards.

Risk regulation is a multifaceted terrain on which no single race is being run. Rather than debating who is ahead, we should be learning from policy experimentation, evaluation, and borrowing. We should be identifying better laws, not just more laws. Instead of a race to the top, the United States and the EU should be developing a transatlantic policy laboratory.

Copyright 2006 Environmental Law Institute. Reprinted with permission from the March-April 2006 issue of The Environmental Forum. All rights reserved.

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Jonathan B. Wiener is Perkins Professor of Law and Environmental Policy at Duke University, a University Fellow at Resources for the Future, and visiting professor at EHESS and CIRED in Paris.