Uncertain Risk Assessment and Management: Case Studies of the Application of the Precautionary Principle in Portugal

This study intends to clarify how the precautionary principle (PP) has been interpreted and applied by the courts in Portugal in the analysis of conflicts associated with uncertain and serious potential risks to human health and the environment. It also aims to contribute to the debate of when and how to apply precautionary measures. To this end, recent court cases in the areas of waste incineration, high-voltage power lines, as well as dam and wind farm construction were considered. The degree of consistency in the courts’ decisions and their reasons in the different judicial bodies was analyzed with the support of a theoretical framework based on three attributes: the level of seriousness of potential hazards, level of evidence required, and the severity of precautionary actions taken. Different positions among courts were observed, with contradictory arguments in the same case or in similar cases. A greater propensity for favorable decisions in the acceptance of restraining orders was verified in the courts of lower instances, where human health could be threatened. However, the decisions of the Supreme Administrative Court, which were always unfavorable to the restraining orders, seem to reflect the priority given to national economic and political interests over local or regional environmental interests. They may also reflect the Supreme Court's reluctancy to apply the PP in the absence of a firm legally binding PP in national legislation. To address this situation, more explicit legal requirements and criteria for the analysis of uncertain risks and the weighting of interests by area of activity are needed.     

Application of the Precautionary Principle by Senior Policy Officials: Results of a Canadian Survey

Though use of the controversial precautionary principle in risk management has increasingly been recommended as a guide for the construction of public policy in Canada and elsewhere, there are few data available characterizing its use in risk management by senior public policymakers. Using established survey methodology we sought to investigate the perceptions and terms of application of the precautionary principle in this important subset of individuals. A total of 240 surveys were sent out to seven departments or agencies in the Canadian government. The overall survey response rate was 26.6%, and our findings need to be interpreted in the context of possible responder bias. Of respondents, the overwhelming majority perceived the precautionary principle and the management of risk as complementary, and endorsed a role for the precautionary principle as a general guideline for all risk management decisions. However, 25% of respondents responded that the lack of clarity of the definition of the principle was a limitation to its effective use. The majority of respondents viewed their own level of understanding of the precautionary principle as moderate. Risk managers appeared to favor an interpretation of the precautionary principle that was based on the seriousness and irreversibility of the threat of damage, and did not endorse as strongly the need for cost effectiveness in the measures taken as a precaution against such threats. In contrast with its perceived role as a general guideline, the application of the precautionary principle by respondents was highly variable, with >60% of respondents reporting using the precautionary principle in one-quarter or less of all risk management decisions. Several factors influenced whether the precautionary principle was applied with the perceived seriousness of the threat being considered the most influential factor. The overwhelming majority of risk managers felt that "preponderance of evidence" was the level of evidence required for precautionary action to be instituted against a serious negative event. Overall, the majority of respondents viewed the precautionary principle as having a significant and positive impact on risk management decisions. Importantly, respondents endorsed a net result of more good than harm to society when the precautionary principle was applied to the management of risk.     

The 1991 Cholera Epidemic in Peru: Not a Case of Precaution Gone Awry

The precautionary principle calls on decisionmakers to take preventive action in light of evidence indicating that there is a potential for harm to public health and the environment, even though the nature and magnitude of harm are not fully understood scientifically. Critics of the precautionary principle frequently argue that unbridled application of the principle leads to unintended damage to health and ecosystems (risk tradeoffs) and that precautious decision making leaves us vulnerable to "false-positive" risks that divert resources away from "real risks." The 1991 cholera epidemic in Peru is often cited as an example of these pitfalls of the precautionary principle. It has been mistakenly argued that application of the precautionary principle caused decisionmakers to stop chlorinating the water supply due to the risks of disinfection byproducts (DBPs), resulting in the epidemic. Through analyses of investigations conducted in the cities of Iquitos and Trujillo, Peru, literature review, and interviews with leading Peruvian infectious disease researchers, we determined that the epidemic was caused by a much more complex set of circumstances, including poor sanitation conditions, poor separation of water and waste streams, and inadequate water treatment and distribution systems. The evidence indicates that no decision was made to stop chlorinating on the basis of DBP concerns and that concerns raised about DBPs masked more important factors limiting expansion of chlorination. In fact, outside of Peru's capital Lima, chlorination of drinking water supplies at the time of the epidemic was limited at best. We conclude that the Peruvian cholera epidemic was not caused by a failure of precaution but rather by an inadequate public health infrastructure unable to control a known risk: that of microbial contamination of water supplies.     

The Precautionary Principle and/or Risk Assessment in World Trade Organization Decisions: A Possible Role for Risk Perception

Risk analysis has been recognized and validated in World Trade Organization (WTO) decision processes. In recent years the precautionary principle has been proposed as an additional or alternative approach to standard risk assessment. The precautionary principle has also been advocated by some who see it as part of postmodern democracy in which more power is given to the public on health and safety matters relative to the judgments of technocrats. A more cynical view is that the precautionary principle is particularly championed by the European Community as a means to erect trade barriers. The WTO ruling against the European Community's trade barrier against beef from hormone-treated cattle seemed to support the use of risk assessment and appeared to reject the argument that the precautionary principle was a legitimate basis for trade barriers. However, a more recent WTO decision on asbestos contains language suggesting that the precautionary principle, in the form of taking into account public perception, may be acceptable as a basis for a trade barrier. This decision, if followed in future WTO trade disputes, such as for genetically modified foods, raises many issues central to the field of risk analysis. It is too early to tell whether the precautionary principle will become accepted in WTO decisions, either as a supplement or a substitute for standard risk assessment. But it would undermine the value of the precautionary principle if this principle were misused to justify unwarranted trade barriers.     

Regulating Chemicals—From Risks to Riskiness

Under current European Union legislation, action to restrict the production and use of a chemical is only justified if there is evidence that the chemical poses a risk to human health or the environment. Risk is understood as being a matter of the magnitude and probability of specifiable harms. An examination of how risks from chemicals are assessed shows the process to be fraught with uncertainty, with the result that evidence that commands agreement as to whether a chemical poses a risk or not is often not available. Hence the frequent disputes as to whether restrictions on chemicals are justified. Rather than trying to assess the risks from a chemical, I suggest that we should aim to assess how risky a chemical is in a more everyday sense, where riskiness is a matter of the possibility of harm. Risky chemicals are those where, given our state of knowledge, it is possible that they cause harm. I discuss four things that make a chemical more risky: (1) its capacity to cause harm; (2) its novelty; (3) its persistence; and (4) its mobility. Regulation of chemicals should aim to reduce the production and use of risky chemicals by requiring that the least risky substance or method is always used for any particular purpose. Any use of risky substances should be justifiable in terms of the public benefits of that use.     

A new approach to risk evaluation and management: risk-based, precaution-based, and discourse-based strategies.

Our concept of nine risk evaluation criteria, six risk classes, a decision tree, and three management categories was developed to improve the effectiveness, efficiency, and political feasibility of risk management procedures. The main task of risk evaluation and management is to develop adequate tools for dealing with the problems of complexity, uncertainty. and ambiguity. Based on the characteristics of different risk types and these three major problems, we distinguished three types of management--risk-based, precaution-based, and discourse-based strategies. The risk-based strategy--is the common solution to risk problems. Once the probabilities and their corresponding damage potentials are calculated, risk managers are required to set priorities according to the severity of the risk, which may be operationalized as a linear combination of damage and probability or as a weighted combination thereof. Within our new risk classification, the two central components have been augmented with other physical and social criteria that still demand risk-based strategies as long as uncertainty is low and ambiguity absent. Risk-based strategies are best solutions to problems of complexity and some components of uncertainty, for example, variation among individuals. If the two most important risk criteria, probability of occurrence and extent of damage, are relatively well known and little uncertainty is left, the traditional risk-based approach seems reasonable. If uncertainty plays a large role, in particular, indeterminacy or lack of knowledge, the risk-based approach becomes counterproductive. Judging the relative severity of risks on the basis of uncertain parameters does not make much sense. Under these circumstances, management strategies belonging to the precautionary management style are required. The precautionary approach has been the basis for much of the European environmental and health protection legislation and regulation. Our own approach to risk management has been guided by the proposition that any conceptualization of the precautionary principle should be (1) in line with established methods of scientific risk assessments, (2) consistent and discriminatory (avoiding arbitrary results) when it comes to prioritization, and (3) at the same time, specific with respect to precautionary measures, such as ALARA or BACT, or the strategy of containing risks in time and space. This suggestion does, however, entail a major problem: looking only to the uncertainties does not provide risk managers with a clue about where to set priorities for risk reduction. Risks vary in their degree of remaining uncertainties. How can one judge the severity of a situation when the potential damage and its probability are unknown or contested? In this dilemma, we advise risk managers to use additional criteria of hazardousness, such as "ubiquity versibility," and "pervasiveness over time," as proxies for judging severity. Our approach also distinguishes clearly between uncertainty and ambiguity. Uncertainty refers to a situation of being unclear about factual statements; ambiguity to a situation of contested views about the desirability or severity of a given hazard. Uncertainty can be resolved in principle by more cognitive advances (with the exception of indeterminacy). ambiguity only by discourse. Discursive procedures include legal deliberations as well as novel participatory approaches. In addition, discursive methods of planning and conflict resolution can be used. If ambiguities are associated with a risk problem, it is not enough to demonstrate that risk regulators are open to public concerns and address the issues that many people wish them to take care ot The process of risk evaluation itself needs to be open to public input and new forms of deliberation. We have recommended a tested set of deliberative processes that are, at least in principle, capable of resolving ambiguities in risk debates (for a review, see Renn, Webler, & Wiedemaun. 1995). Deliberative processes are needed, however, for ail three types of management. Risk-based management relies on epistemiological, uncertainty-based management on reflective, and discourse-based management on participatory discourse forms. These three types of discourse could be labeled as an analytic-deliberative procedure for risk evaluation and management. We see the advantage of a deliberative style of regulation and management in a dynamic balance between procedure and outcome. Procedure should not have priority over the outcome; outcome should not have priority over the procedure. An intelligent combination of both can elaborate the required prerequisites of democratic deliberation and its substantial outcomes to enhance the legitimacy of political decisions (Guttman & Thompson, 1996; Bohman, 1997. 1998).     

Precautionary Regulation in Europe and the United States: A Quantitative Comparison

Much attention has been addressed to the question of whether Europe or the United States adopts a more precautionary stance to the regulation of potential environmental, health, and safety risks. Some commentators suggest that Europe is more risk-averse and precautionary, whereas the United States is seen as more risk-taking and optimistic about the prospects for new technology. Others suggest that the United States is more precautionary because its regulatory process is more legalistic and adversarial, while Europe is more lax and corporatist in its regulations. The flip-flop hypothesis claims that the United States was more precautionary than Europe in the 1970s and early 1980s, and that Europe has become more precautionary since then. We examine the levels and trends in regulation of environmental, health, and safety risks since 1970. Unlike previous research, which has studied only a small set of prominent cases selected nonrandomly, we develop a comprehensive list of almost 3,000 risks and code the relative stringency of regulation in Europe and the United States for each of 100 risks randomly selected from that list for each year from 1970 through 2004. Our results suggest that: (a) averaging over risks, there is no significant difference in relative precaution over the period, (b) weakly consistent with the flip-flop hypothesis, there is some evidence of a modest shift toward greater relative precaution of European regulation since about 1990, although (c) there is a diversity of trends across risks, of which the most common is no change in relative precaution (including cases where Europe and the United States are equally precautionary and where Europe or the United States has been consistently more precautionary). The overall finding is of a mixed and diverse pattern of relative transatlantic precaution over the period.     

Clarifying Types of Uncertainty: When Are Models Accurate,and Uncertainties Small?

Professor Aven has recently noted the importance of clarifying the meaning of terms such as "scientific uncertainty" for use in risk management and policy decisions, such as when to trigger application of the precautionary principle. This comment examines some fundamental conceptual challenges for efforts to define "accurate" models and "small" input uncertainties by showing that increasing uncertainty in model inputs may reduce uncertainty in model outputs; that even correct models with "small" input uncertainties need not yield accurate or useful predictions for quantities of interest in risk management (such as the duration of an epidemic); and that accurate predictive models need not be accurate causal models.     

Risk Preferences in Strategic Wildfire Decision Making: A Choice Experiment with U.S. Wildfire Managers

Federal policy has embraced risa management as an appropriate paradigm for wildfire management. Economic theory suggests that over repeated wildfire events, potential economic costs and risas of ecological damage are optimally balanced when management decisions are free from biases, risa aversion, and risa seeking. Of primary concern in this article is how managers respond to wildfire risa, including the potential effect of wildfires (on ecological values, structures, and safety) and the likelihood of different fire outcomes. We use responses to a choice experiment questionnaire of U.S. federal wildfire managers to measure attitudes toward several components of wildfire risa and to test whether observed risa attitudes are consistent with the efficient allocation of wildfire suppression resources. Our results indicate that fire managers’ decisions are consistent with nonexpected utility theories of decisions under risa. Managers may overallocate firefighting resources when the likelihood or potential magnitude of damage from fires is low, and sensitivity to changes in the probability of fire outcomes depends on whether probabilities are close to one or zero and the magnitude of the potential harm.     

Does Concern‐Driven Risk Management Provide a Viable Alternative to QRA?

This article discusses a concept of concern-driven risk management, in which qualitative expert judgments about whether concerns warrant specified risk management interventions are used in preference to quantitative risk assessment (QRA) to guide risk management decisions. Where QRA emphasizes formal quantitative assessment of the probable consequences caused by the recommended actions, and comparison to the probable consequences of alternatives, including the status quo, concern-driven risk management instead emphasizes perceived urgency or severity of the situation motivating recommended interventions. In many instances, especially those involving applications of the precautionary principle, no formal quantification or comparison of probable consequences for alternative decisions is seen as being necessary (or, perhaps, possible or desirable) prior to implementation of risk management measures. Such concern-driven risk management has been recommended by critics of QRA in several areas of applied risk management. Based on case studies and psychological literature on the empirical performance of judgment-based approaches to decision making under risk and uncertainty, we conclude that, although concern-driven risk management has several important potential political and psychological advantages over QRA, it is not clear that it performs better than (or as well as) QRA in identifying risk management interventions that successfully protect human health or achieve other desired consequences. Therefore, those who advocate replacing QRA with concern-driven alternatives, such as expert judgment and consensus decision processes, should assess whether their recommended alternatives truly outperform QRA, by the criterion of producing preferred consequences, before rejecting the QRA paradigm for practical applications.     

When Precaution Creates Misunderstandings: The Unintended Effects of Precautionary Information on Perceived Risks,the EMF Case

In the past decade, growing public concern about novel technologies with uncertain potential long‐term impacts on the environment and human health has moved risk policies toward a more precautionary approach. Focusing on mobile telephony, the effects of precautionary information on risk perception were analyzed. A pooled multinational experimental study based on a 5 × 2 × 2 factorial design was conducted in nine countries. The first factor refers to whether or not information on different types of precautionary measures was present, the second factor to the framing of the precautionary information, and the third factor to the order in which cell phones and base stations were rated by the study participants. The data analysis on the country level indicates different effects. The main hypothesis that informing about precautionary measures results in increased risk perceptions found only partial support in the data. The effects are weaker, both in terms of the effect size and the frequency of significant effects, across the various precautionary information formats used in the experiment. Nevertheless, our findings do not support the assumption that informing people about implemented precautionary measures will decrease public concerns.     

The Precautionary Principle Is Incoherent

This article argues that no version of the precautionary principle can be reasonably applied to decisions that may lead to fatal outcomes. In support of this strong claim, a number of desiderata are proposed, which reasonable rules for rational decision making ought to satisfy. Thereafter, two impossibility theorems are proved, showing that no version of the precautionary principle can satisfy the proposed desiderata. These theorems are directly applicable to recent discussions of the precautionary principle in medicine, biotechnology, environmental management, and related fields. The impossibility theorems do not imply, however, that the precautionary principle is of no relevance at all in policy discussions. Even if it is not a reasonable rule for rational decision making, it is possible to interpret the precautionary principle in other ways, e.g., as an argumentative tool or as an epistemic principle favoring a reversed burden of proof.     

Managing the Risk of Uncertain Threshold Responses: Comparison of Robust, Optimum, and Precautionary Approaches

Many commentators have suggested the need for new decision analysis approaches to better manage systems with deeply uncertain, poorly characterized risks. Most notably, policy challenges such as abrupt climate change involve potential nonlinear or threshold responses where both the triggering level and subsequent system response are poorly understood. This study uses a simple computer simulation model to compare several alternative frameworks for decision making under uncertainty -- optimal expected utility, the precautionary principle, and three different approaches to robust decision making -- for addressing the challenge of adding pollution to a lake without triggering unwanted and potentially irreversible eutrophication. The three robust decision approaches -- trading some optimal performance for less sensitivity to assumptions, satisficing over a wide range of futures, and keeping options open -- are found to identify similar strategies as the most robust choice. This study also suggests that these robust decision approaches offer a quantitative, decision analytic framework that captures the spirit of the precautionary principle while addressing some of its shortcomings. Finally, this study finds that robust strategies may be preferable to optimum strategies when the uncertainty is sufficiently deep and the set of alternative policy options is sufficiently rich.     

On the Limits of the Precautionary Principle

The precautionary principle (PP) is an influential principle of risk management. It has been widely introduced into environmental legislation, and it plays an important role in most international environmental agreements. Yet, there is little consensus on precisely how to understand and formulate the principle. In this article I prove some impossibility results for two plausible formulations of the PP as a decision‐rule. These results illustrate the difficulty in making the PP consistent with the acceptance of any tradeoffs between catastrophic risks and more ordinary goods. How one interprets these results will, however, depend on one's views and commitments. For instance, those who are convinced that the conditions in the impossibility results are requirements of rationality may see these results as undermining the rationality of the PP. But others may simply take these results to identify a set of purported rationality conditions that defenders of the PP should not accept, or to illustrate types of situations in which the principle should not be applied.     

Evaluation of Legal Liability for Technological Risks in View of Requirements for Peaceful Coexistence and Progress

Legal liability for risk‐generating technological activities is evaluated in view of requirements that are necessary for peaceful human coexistence and progress in order to show possibilities for improvement. The requirements imply, given that political decision making about the activities proceeds on the basis of majority rule, that legal liability should be unconditional (absolute, strict) and unlimited (full). We analyze actual liability in international law for various risk‐generating technological activities, to conclude that nowhere is the standard of unconditional and unlimited liability fully met. Apart from that there are enormous differences. Although significant international liability legislation is in place for some risk‐generating technological activities, legislation is virtually absent for others. We discuss fundamental possibilities and limitations of liability and private insurance to secure credible and ethically sound risk assessment and risk management practices. The limitations stem from problems of establishing a causal link between an activity and a harm; compensating irreparable harm; financial warranty; moral hazard in insurance and in organizations; and discounting future damage to present value. As our requirements call for prior agreement among all who are subjected to the risks of an activity about the settlement of these difficult problems, precautionary ex ante regulation of risk‐generating activities may be a more attractive option, either combined with liability stipulations or not. However, if ex ante regulation is not based on the consent of all subjected to the risks, it remains that the basis of liability in the law should be unconditional and unlimited liability.     

Regulatory False Positives: True,False, or Uncertain?

Hansen et al. (2007) recently assessed the historical performance of the precautionary principle in 88 specific cases, concluding that "applying our definition of a regulatory false positive, we were able to identify only four cases that fit the definition of a false positive." Empirically evaluating how prone the precautionary principle is to classify nonproblems as problems ("false positives") is an excellent idea. Yet, Hansen et al.'s implementation of this idea applies a diverse set of questionable criteria to label many highly uncertain risks as "real" even when no real or potential harm has actually been demonstrated. Examples include treating each of the following as reasons to categorize risks as "real": considering that a company's actions contaminated its own product; lack of a known exposure threshold for health effects; occurrence of a threat; treating deliberately conservative (upper-bound) regulatory assumptions as if they were true values; treating assumed exposures of children to contaminated soils (by ingestion) as evidence that feared dioxin risks are real; and treating claimed (sometimes ambiguous) epidemiological associations as if they were known to be true causal relations. Such criteria can classify even nonexistent and unknown risks as "real," providing an alternative possible explanation for why the authors failed to find more false positives, even if they exist.     

Managing Potential Health Risks from Electric Powerlines: A Decision Analysis Caught in Controversy

Over the past 20 years, several epidemiological studies have found an association between exposure to electromagnetic fields (EMFs) and health effects, including childhood leukemia and adult brain cancer. However, experts strongly disagree about whether this association is causal and, if so, how strong it is. In this article, we examine several alternatives to reduce EMFs from sources of the California power grid, including undergrounding distribution and transmission lines and reconfiguring or rephasing lines. The alternatives were evaluated in terms of the potential health risk reduction, cost, impacts on service reliability, property values, and many other consequences. Because of the uncertainty about an EMF-health link, the main effort was to determine the sensitivity of the decisions to the probability and seriousness of an EMF hazard. User-friendly computer models were developed to allow stakeholders to change the model assumptions and parameters to analyze the impacts of their own assumptions and estimates on the decision. The analysis clearly demonstrated that only four of the many concerns raised by the stakeholders could make a difference in the decision: health risks, costs, service reliability, and property values. Whether undergrounding, moderate alternatives for EMF reduction, or no change was the best decision depended on a few key factors, including the probability that EMF exposure is a hazard, the severity of this hazard, how the EMF reduction measures are financed, and the impacts on property values. While the analysis did not resolve the EMF issues, it showed that even in the most controversial settings, a little analysis goes a long way to clarifying the issues and to focus the debate.     

Anticipating or Accommodating to Public Concern? Risk Amplification and the Politics of Precaution Reexamined

Regulatory use of the precautionary principle (PP) tends to be broadly characterized either as a responsible approach for safeguarding against health and environmental risks in the face of scientific uncertainties, or as “state mismanagement” driven by undue political bias and public anxiety. However, the “anticipatory” basis upon which governments variably draw a political warrant for adopting precautionary measures often remains ambiguous. Particularly, questions arise concerning whether the PP is employed preemptively by political elites from the “top down,” or follows from more conventional democratic pressures exerted by citizens and other stakeholders from the “bottom up.” This article elucidates the role and impact of citizen involvement in the precautionary politics shaping policy discourse surrounding the U.K. government's “precautionary approach” to mobile telecommunications technology and health. A case study is presented that critically reexamines the basis upon which U.K. government action has been portrayed as an instance of anticipatory policy making. Findings demonstrate that the use of the PP should not be interpreted in the preemptive terms communicated by U.K. government officials alone, but also in relation to the wider social context of risk amplification and images of public concern formed adaptively in antagonistic precautionary discourse between citizens, politicians, industry, and the media, which surrounded cycles of government policy making. The article discusses the sociocultural conditions and political dynamics underpinning public influence on government anticipation and responsiveness exemplified in this case, and concludes with research and policy implications for how society subsequently comes to terms with the emergence and precautionary governance of new technologies under conflict.     

Experimental Evidence Against the Paradigm of Mortality Risk Aversion

This article deals with the question of how societal impacts of fatal accidents can be integrated into the management of natural or man‐made hazards. Today, many governmental agencies give additional weight to the number of potential fatalities in their risk assessments to reflect society's aversion to large accidents. Although mortality risk aversion has been proposed in numerous risk management guidelines, there has been no evidence that lay people want public decisionmakers to overweight infrequent accidents of large societal consequences against more frequent ones of smaller societal consequences. Furthermore, it is not known whether public decisionmakers actually do such overweighting when they decide upon the mitigation of natural or technical hazards. In this article, we report on two experimental tasks that required participants to evaluate negative prospects involving 1–100 potential fatalities. Our results show that neither lay people nor hazard experts exhibit risk‐averse behavior in decisions on mortality risks.