Rescuing the Strong Precautionary Principle from its Critics

Abstract

The Strong Precautionary Principle, an approach to risk regulation that shifts the burden of proof on safety, can provide a valuable framework for preventing harm to human health and the environment. Cass Sunstein and other scholars, however, have consistently criticized the Principle, rejecting it as paralyzing, inflexible, and extreme. In this reassessment of the Strong Precautionary Principle, I highlight the significant benefits of the Principle for risk decision making, with the aim of rescuing the Principle from its dismissive critics. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm occurs. It does not call for the elimination of all risk, nor does it ignore tradeoffs, as Sunstein has alleged. Rather, through burden shifting, the Principle legitimately requires risk creators to research and justify the risks they impose on society. By exploring where the Principle already operates successfully in U.S. law--examples often overlooked by the critics--I highlight the Principle's flexibility and utility in regulatory law.