Risk Society and Precautionary Principle in Environmental Law

Comment on the Paper Presented by Professor Otsuka

Abstract

It has been presupposed the all individuals are free, thus the establishment of causation between activities and the damage has been required for such interventions in individual activities as regulations, levies, and administrative actions. Under the precautionary principle, to the contrary, precautionary measures should be taken before serious and irreversible damage to human health and the environment occurs even if the scientific certainty is lacking on the causation. But this principle has been counterargued that it can undermine the individual freedom, especially if applied speculatively and too broadly. When either severity or probability of damage is not quantified, we have to choose either to wait untill becoming clear or to act before becoming clear. The latter risk-aversive attitude is based on the precautionary principle. This paper examines this principle, concludes that it can be justified in intervening into threats to human health and the environment when deemed serious and irreversible, and can be summarized in four points. Firstly, the precautionary principle shall be applied when the threats come from economic activities, but not applied when they are of national or public security, because the loss caused by mistakes cannot be truly indemnified in the latter. Secondly, under this principle, comparing possible alternatives is essential in confronting risk trade-offs. Economic considerations, such as cost-effectiveness analysis, can be a useful tool but shall not be used determinatively in making judgments whether to postpone actions even without full scientific certainty. Thirdly and most importantly, this principle reverses the burden of producing evidence on risks, primarily to the industry and then to the Government because of proximity to and capacity to develop information. Lastly, because of scientific uncertainty, the perceptions of risks differ especially among lays and experts. Thus, deliberative democracy is an affinitive decision making process under this principle, though not essential.