The Precautionary Preference: An American Perspective on the Precautionary Principle

Abstract

The precautionary principle, a familiar constituent of international and European environmental law, has only very recently entered the vocabulary of domestic environmental policy debates in the United States. The question naturally arises what role such a principle should play in American law. By breaking down statements of the precautionary principle into distinct ele ments, one can more readily find ways in which U.S. law reflects the precau tionary principle. This analysis reveals that American environmental law con tains precautionary elements and goals in many and varied settings, from the management of natural ecosystems, to pollution control standards, to risk assessment methodology. However, the precautionary approach appears in a highly diluted or compromised form. With rare exceptions, U.S. law balances precaution against other considerations, most importantly cost. Therefore, while precautionary elements are firmly entrenched in U.S. environmental law, it is more accurate to say that it reflects a precautionary preference rather than the precautionary principle.

Keywords:

• precautionary principle
• uncertainty
• burden of proof
• U.S. environmental law.