Precaution Is for Europeans

The New York Times Week In Review

May 18, 2003

BRUSSELS: Here's another example of how the United States has decided that Europe is stuck in the past. Bush administration officials are exasperated with Europe's belief in the precautionary principle, a better-safe-than-sorry approach to regulating everything from corn flakes to chemical plants.

As outlined in a treaty of the European Union, governments should regulate industries when they pose risks to public health and the environment -- even before all the data about the threat has been collected.

In keeping with this precautionary approach, Europe has prohibited bioengineered crops and American beef treated with growth hormones, and is now crafting legislation that will require chemical companies to spend billions of dollars on safety tests of their products.

But what looks like a question of safety to the Europeans often seems more like protectionism to the United States. The Bush administration believes the precautionary principle is an unjustified constraint on business and does not even recognize the existence of the doctrine.

"We consider it to be a mythical concept, perhaps like a unicorn," said John D. Graham, the administrator at the Office of Management and Budget in charge of vetting new regulations, in a recent speech to European Union regulators.

The United States was once a leader in precautionary legislation. The Clean Air Act and the Clean Water Act, both enacted in the 1970's with bipartisan support, explicitly allow regulators to act in the face of uncertain findings. But in the Reagan era, precautionary regulation was seen as an enemy of the free market.

It was not just a Republican aversion. Though the Clinton administration was far more active in adopting health and environmental regulations, it battled Europe over the bans on genetically engineered foods and hormone-treated beef. But the Bush administration has actively challenged the very premise on which the European actions are based.

In a telephone interview, Mr. Graham said that rather than believing in a single precautionary principle, the administration acts when it determines that the economic and health benefits outweigh the costs. Before implementing a rule, the administration calculates the evidence of harm, the relative risk to a population and whether the effect on the population justifies taking regulatory measures. Mr. Graham cited the government's tightening of limits on diesel fuel emissions as an example of how his agency can act preventively when the numbers add up.

"In the Bush administration, the focus is on smarter regulation, defined as applying science, engineering and economics, to proposed rules," said Mr. Graham, who became known for his cost-benefit theories after founding the Harvard Center for Risk Analysis. Mr. Graham said that when he started in 2001, his office challenged dozens of rules proposed by federal agencies, but these days his office has not needed to send any rules back, as agencies have learned what is acceptable.

Critics argue that Mr. Graham's cost-benefit analyses often lead to the delay or watering down of health and environmental regulations.

"It is a cloak in many respects for limiting regulation without having to be openly antienvironmental or antiworker or anticonsumer," said Gary D. Bass, the director of OMB Watch, a government watchdog group.

For instance, President Bush withdrew from the international agreement on reducing carbon emissions in order to limit global warming, arguing that more data was needed before taking action.

In another split, Europe recently required industry to run extensive health and environmental tests on the 30,000 most common chemicals. Nearly all of these chemicals have been around for decades, but European officials say little data is available on the vast majority of the chemicals, and that the potential benefits more than justify the cost to industry.

The Bush administration is up in arms over the proposal. The American Chemistry Council, the industry's main trade group, contends that the European Union wants to "eliminate all risks from daily life" and "replace science with speculation." The United States has a voluntary program in which companies disclose information on 2,200 of their most common chemicals. Mr. Graham says this is equally precautionary and a better use of limited resources.

Cass Sunstein, a law professor at the University of Chicago who is writing a book on the precautionary principle, believes that strict adherence to the principle can be counterproductive -- like curbs on biotechnology, which, he says, could help feed the developing world.

At the same time, he argues that it is unreasonable for governments to demand absolute certainty before they act. "It's nutty to require conclusive evidence when the risk, if it comes to fruition, is extremely serious," Mr. Sunstein said.

This was the logic, Mr. Sunstein notes, of President Bush's pre-emptive strike on Iraq. President Bush argued that the risk of weapons of mass destruction was great enough to warrant an attack, without absolute proof that Iraq was hiding such weapons.

That's the precautionary principle, American-style.