Rescuing the Strong Precautionary Principle from Its Critics
Noah M. Sachs   |   2011 U. Ill. L. Rev. 1285
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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 trade-offs, 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.

This Article uses chemical regulation as a case study in how the Principle can guide Congress in an ongoing controversy. Congress is considering a major overhaul of the flawed Toxic Substances Control Act of 1976 (TSCA), and this change could be one of the most significant developments in environmental law in a generation. This Article advocates implementing the Strong Precautionary Principle in a replacement statute for TSCA. Under my proposed licensing system, chemical manufacturers would carry the burden to demonstrate that their products do not pose significant risks to human health or the environment. The TSCA example shows that the Strong Precautionary Principle is not a vague abstraction, as critics have alleged, but can instead provide practical guidance for strengthening a troubled, and underprotective, chemical regulatory regime.