Precautionary risk regulation in European governance

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PLEASE SCROLL DOWN FOR ARTICLE This article was downloaded by: [University of Sussex] On: 4 June 2009 Access details: Access Details: [subscription number 776502340] Publisher Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Journal of Risk Research Publication details, including instructions for authors and subscription information: http://www.informaworld.com/smpp/title~content=t713685794 Precautionary Risk Regulation in European Governance Andreas Klinke a ; Marion Dreyer b ; Ortwin Renn c ; Andrew Stirling d ; Patrick Van Zwanenberg d a International Policy Institute, King's College London, UK b DIALOGIK gGmbH, Stuttgart, Germany c Institute for Social Sciences, University of Stuttgart, Germany d Science and Technology Policy Research, University of Sussex, UK Online Publication Date: 01 June 2006 To cite this Article Klinke, Andreas, Dreyer, Marion, Renn, Ortwin, Stirling, Andrew and Van Zwanenberg, Patrick(2006)'Precautionary Risk Regulation in European Governance',Journal of Risk Research,9:4,373 — 392 To link to this Article: DOI: 10.1080/13669870600715800 URL: http://dx.doi.org/10.1080/13669870600715800 Full terms and conditions of use: http://www.informaworld.com/terms-and-conditions-of-access.pdf This article may be used for research, teaching and private study purposes. Any substantial or systematic reproduction, re-distribution, re-selling, loan or sub-licensing, systematic supply or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material.

Transcript of Precautionary risk regulation in European governance

PLEASE SCROLL DOWN FOR ARTICLE

This article was downloaded by: [University of Sussex]On: 4 June 2009Access details: Access Details: [subscription number 776502340]Publisher RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House,37-41 Mortimer Street, London W1T 3JH, UK

Journal of Risk ResearchPublication details, including instructions for authors and subscription information:http://www.informaworld.com/smpp/title~content=t713685794

Precautionary Risk Regulation in European GovernanceAndreas Klinke a; Marion Dreyer b; Ortwin Renn c; Andrew Stirling d; Patrick Van Zwanenberg d

a International Policy Institute, King's College London, UK b DIALOGIK gGmbH, Stuttgart, Germany c Institutefor Social Sciences, University of Stuttgart, Germany d Science and Technology Policy Research, Universityof Sussex, UK

Online Publication Date: 01 June 2006

To cite this Article Klinke, Andreas, Dreyer, Marion, Renn, Ortwin, Stirling, Andrew and Van Zwanenberg, Patrick(2006)'PrecautionaryRisk Regulation in European Governance',Journal of Risk Research,9:4,373 — 392

To link to this Article: DOI: 10.1080/13669870600715800

URL: http://dx.doi.org/10.1080/13669870600715800

Full terms and conditions of use: http://www.informaworld.com/terms-and-conditions-of-access.pdf

This article may be used for research, teaching and private study purposes. Any substantial orsystematic reproduction, re-distribution, re-selling, loan or sub-licensing, systematic supply ordistribution in any form to anyone is expressly forbidden.

The publisher does not give any warranty express or implied or make any representation that the contentswill be complete or accurate or up to date. The accuracy of any instructions, formulae and drug dosesshould be independently verified with primary sources. The publisher shall not be liable for any loss,actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directlyor indirectly in connection with or arising out of the use of this material.

ARTICLE

Precautionary Risk Regulation inEuropean Governance

ANDREAS KLINKE*, MARION DREYER**, ORTWIN RENN{,ANDREW STIRLING{ & PATRICK VAN ZWANENBERG{

*International Policy Institute, King’s College London, UK, **DIALOGIK gGmbH,Stuttgart, Germany, {Institute for Social Sciences, University of Stuttgart, Germany, {Science

and Technology Policy Research, University of Sussex, UK

ABSTRACT This paper develops a sequential model of precautionary risk regulationthat contributes substantively and procedurally to the European Commission’s positionon precaution. At first, four concepts of precautionary policy are distinguished whichare taken into account in the conceptualisation of the precautionary risk regulation.The paper then expounds the four key challenges of characterising, evaluating andmanaging risks: these are seriousness, uncertainty, complexity, and socio-politicalambiguity. Subsequently, the architecture of the model of precautionary risk regulationis set out, which is characterised by the following three key stages: screening, appraisal,and management. It additionally includes a design, development and oversight functionwhich ensures that the overall process is robust to changes in circumstances and to theperspective of all interested and affected parties. Afterwards five approaches to riskanalysis are elaborated which are integrated in the formal decision analytic concept.They provide tools for assessing, evaluating, and managing serious, uncertain, complexand/or ambiguous risks and include different methods for selecting objectives, assessingand handling data, and finding the most appropriate procedure for balancing pros andcons.

KEY WORDS: Precautionary risk regulation, precautionary principle, risk analysis,uncertainty, complexity

Introduction

A range of closely related versions of precautionary policy has been adoptedin legislation developed in national, European and international governancein a variety of sectors. The European Commission highlights the general

Correspondence Address: Andreas Klinke, School of Social Science and Public Policy,International Policy Institute, Strand, London, WC2R 2LS. Email: [email protected]

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relevance of the ‘‘Precautionary Principle’’ for the policy of the EuropeanUnion in areas such as environmental protection, consumer protection andhealth protection (European Commission, 2000) which is based on thestatement in Article 174(2) of the EC Treaty. This key policy documentspecifies some of the major requirements for implementation of theprinciple. The concept of precaution itself, however, and its operationalisa-tion in the expanding and increasingly important field of risk governance arehighly debated and controversial. The Commission’s Communicationaccentuates two significant aspects in developing and implementingprecautionary policy. First, the precautionary principle should be takeninto account within a risk analysis framework consisting of risk assessment,risk management and risk communication. In the risk assessment process ascientific evaluation has to be completed which identifies and quantifies, ifpossible, the degree of scientific uncertainty. Second, since there is possible awide range of risk management instruments, the action and measures takenin the risk management process should be transparent, proportional to thechosen level of protection, non-discriminatory in their application, andconsistent with similar measures that have been previously taken. Thatincludes that the precautionary measures are based on cost–benefitexaminations, reviews in the light of new scientific data and the capabilityof assigning responsibility for producing the scientific evidence necessary fora more comprehensive risk assessment. This paper elaborates a sequentialmodel of precautionary risk regulation that contributes substantively andprocedurally to building on the European Commission’s position and offersa means to make this more robust, more specific, and more operational.1

In our attempt to construct a comprehensive concept of precautionaryrisk regulation, we distinguish four interpretations of precautionary policy insection two from which we derive our definition of precaution as a prudentand sound choice of response in the face of uncertainty. Section three thenexpounds what we have identified as the four key challenges of characteris-ing, evaluating and managing risks: these are seriousness, uncertainty,complexity, and socio-political ambiguity. The fourth section sets out themajor objective of the paper which is the architecture of the model ofprecautionary risk regulation. The model is characterised by the followingthree key stages: screening, appraisal and management. In addition, itincludes a design, development and oversight function which ensures theoverall process is robust to changes in circumstances and to the perspective

1 The model of precautionary risk regulation was developed within a EU-project on‘‘Precautionary Strategies and Research Needs to Compose and Specify a European Policy onthe Application of the Precautionary Principle’’. Project coordinator was the Center ofTechnology Assessment in Baden Wurttemberg, Stuttgart, Germany (Ortwin Renn, MarionDreyer, Andreas Klinke, Christine Losert). Project partners were the University of Sussex, UK(Andrew Stirling, Patrick van Zwanenberg) and the Swiss Federal Institute of Technology,Zurich, Switzerland (Ulrich Muller-Herold, Marco Morosini). For the detailed EU-report seeRenn et al. (2003).

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of all interested and affected parties. Afterwards, the fifth section exposesfive approaches to risk analysis which the model distinguishes. Theseapproaches are integrated in the formal decision analytic concept. Theyprovide tools for assessing, evaluating, and managing serious, uncertain,complex and/or ambiguous risks and include different methods for selectingobjectives, assessing and handling data, and finding the most appropriateprocedure for balancing pros and cons. Finally, section six draws someconclusions that the elaborated model can be used as a boilerplate forprecautionary risk regulation within and beyond the EU context.Additionally, it summarises the reflective process in which the model hasbeen developed and refined.

Concepts of Precautionary Policy

In European governance precaution basically means that regulatory actionscan be taken in situations in which potentially hazardous agents are presentthat may induce harms to humans or the environment, but in which conclusiveevidence about the harmful effects is not (yet) available. In more concreteterms, the concept of precaution has been framed in many different ways in theliterature and in regulatory documents (cp. e.g., Adams, 2002, Douma, 2003;European Environment Agency, 2001; Goklany, 2001; Hanekamp et al.,2005; O’Riordan and Cameron, 1994; Raffensperger and Tickner, 1999;Sandin, 1999). In our understanding there are four major interpretations:

(1) The traditional German interpretation has been to apply the precau-tionary principle below the level of acute endangerment(Gefahrenabwehr). In particular, if the level of acute endangerment isnot known or uncertain, the regulators can use proxy criteria such asthe ‘‘best available control technology (BACT)’’, ‘‘regulatory standardsin accordance with the present state of technology and/or science’’, theneed to reduce risks ‘‘as low as reasonably achievable (ALARA)’’, orthe ‘‘minimization principle’’ (as close to zero as possible). These proxycriteria allow regulators to reduce tolerance levels regardless of the(known or unknown) effect to the environment or to human health. Inpractical application, however, such an adverse effect should at least beexpected or reasonably assumed. Similar tools of regulation are foundin almost all regulatory regimes of the world but are often notsubsumed under the precautionary principle.

(2) The most often internationally used interpretation refers to the rule thatactions should not be postponed if the evidence is not yet conclusive(similar in most EU-documents). In particular, this interpretationrequires regulatory agencies to launch actions before it might be toolate. The main reason for precaution is to avoid irreversible damageresulting from the release of persistent or ubiquitous risk agents, ifnegative long-term impacts are likely to occur. The level of remainingscientific uncertainty in assessing the dose-response relationship or

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other crucial effect variables should not prohibit regulatory agencies tolimit emissions or exposure.

(3) The third interpretation refers to the problem of coping with ignoranceand system boundaries in assessing and evaluating risks. In thisunderstanding of precaution, regulatory actions are required if specificcriteria of potential irreversibility and the extent of potential damagesare met. Regulation is based on the characteristics of hazards withoutconsidering exposure or effects. The major claim here is that specificcharacteristics of risks may serve as early warning signs for trouble tobe expected later, even if the pathways of damage are yet unknown orunexplored. The most popular examples here are the CFCs which weredesigned to be chemically stable (as a means to avoid toxic effects) butturned out to be destructive to the ozone layer.

(4) The fourth interpretation deals with the burden of proof. While in mostlegal concepts the regulatory agency has to prove that a new substanceor activity poses an unacceptable risk to the public, this understandingof precaution places the burden of proof on the shoulder of theproposing actor. The proposing actor has to demonstrate thatthe planned activity or release of a substance will not harm theenvironment or human health.

These four interpretations of precaution are not exclusive. They all havetheir merits and problems. The first interpretation of using proxy criteriamight violate both effectiveness and efficiency: A control technology mightbe available for a completely innocuous activity, while a potentiallydangerous activity or substance might be tolerated because a controltechnology is unavailable. The second interpretation does not specify thedegree of evidence necessary to become active. This discretionary powermight violate the criterion of accountability and predictability. The thirdinterpretation remains fuzzy as long as one cannot make a clear connectionbetween hazardous characteristics and (at the time of regulation unknown)effects to human health and the environment. The reversal of the burden ofproof as stated in the fourth interpretation ignores the scientific fact thatnobody can ever statistically prove that an activity poses no harm to theenvironment or human health. The best one can require is to have theproposing actor provide the evidence that s/he has tested the activity orsubstance against a whole set of potential (and known) damages. There is noway to test against unknown damages. Again the degree of pre-testing (as itis done, for example, for approving pharmaceuticals) needs to be specified inadvance, if regulatory action wants to meet the claim of being accountableand predictable.

Many risk experts have questioned the applicability and sensibility of theprecautionary principle altogether. They claim that traditional risk analysisprovides sufficient information for an effect-based regulation and that allother approaches are either arbitrary or ignorant of scientific assessments.Over the last few years both camps, the advocates of traditional risk-based

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and the proponents of novel precaution-based regulation, have launched afierce debate over the legitimacy of each of their approaches. Advocates ofrisk-based regulation argue that precautionary strategies ignore scientificresults and lead to arbitrary regulatory decisions (Sandin et al., 2002, Cross,1996). The advocates of precautionary regulation have argued thatprecaution does not automatically mean banning substances or activitiesbut would imply a gradual, step-by-step diffusion of risky activities ortechnologies until more knowledge and experience is accumulated (Bennett,2000). To nobody’s surprise, environmental groups have rallied aroundprecautionary regulation, while most industrial and commercial groups havebeen advocating risk-based regulation.

Since implementation of the precautionary principle may have lastingimplications and repercussions on regulatory decisions and internationaltrade, the stakes in this debate are not merely theoretical or academic.Depending on the approach chosen, regulatory actions may vary consider-ably and shape economic competitiveness, public health levels andenvironmental quality. The paper aims at providing herewith a policyframework that inspires the public debate and marks a new constructivestage in the often ritualised discussion on precaution and risk.

The developed model of precautionary risk regulation takes into accountthe four different interpretations of the precautionary principle and pursuesa path of making these interpretations compatible with each other byemphasising the strengths and avoiding the problems of each approach. It ismeant as a comprehensive concept that defines precaution as a prudent andsound choice of response in the face of uncertainty. With uncertainty werefer to a situation in which well-founded hypotheses of potential negativeimpacts are available, yet final empirical evidence of harm is missing.Prudent and sound choices are characterised by using substantive andprocedural steps to evaluate potentials for harm. Such an appraisal aims atidentifying specific characteristics of threats (including inherent hazards orsocial mobilisation potential) and does not focus merely on the likelihood ofconsequences and damage potential (cp. Klinke and Renn, 2001; WBGU,2000).

Major Challenges of Characterising and Evaluating Risks

This paper aims at developing a substantive and procedural model ofprecautionary risk regulation that allows one to cope with what we haveidentified as four central challenges of contemporary risks. These areseriousness, uncertainty, complexity, and ambiguity (Klinke and Renn,2002). For this purpose we propose a sequential procedure for screening,appraising, and managing risks (see fourth section). Screening is the processwhereby the four key challenges that might be associated (to differentdegrees) with a certain threat are identified in order to select the mostappropriate efficient and proportionate approach to more detailedregulatory appraisal and to help prioritise attention to different threats.

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The first step of this, so to speak, ‘‘preliminary risk assessment’’, is toscreen the risk candidates for their seriousness by using risk- or hazard-related criteria. The second step is to screen the risk candidates for the levelof uncertainty, complexity, and socio-political ambiguity. The termsseriousness, uncertainty, complexity, and ambiguity will be explained inthe following.

Seriousness describes in particular the inherent potential of a risk agentto cause harm to the environment or to human health (irrespective ofexposure, dose–response relationships or intake quantity). This potentialdepends on special characteristics of the risk agent under investigation.Criteria such as ubiquity, persistency, bio-accumulation etc. help to qualifyor even quantify the degree of hazard that is associated with a risk agent.Hazards may never materialise over time, if exposure is low or intake belowthe thresholds of causing any harm. They may, however, be an excellentguide for setting up an early warning system, if effects are still unknown orignorance about potential impacts prevails. If something accumulates overtime in the biosphere, there is a high probability that such pollution willgenerate negative impact over time and even reach geographic regions faraway from the source of pollution, unless natural evolution has provided along-term recycling mechanism as in the case of lignite in trees. Persistentorganic pollutants, for example, cause adverse effects over time and space.These very slowly degradable substances were found in regions where theywere never applied. Due to the so-called ‘‘grasshopper effect’’, i.e. repeatedevaporation and condensation, pesticides even arrived at the poles wherethey damage the Eskimo population and the ecosystem there. In other riskareas where there exist robust applicable data, seriousness may refer to risk-based thresholds, such as mortality rates from rail accidents or injury rates inthe construction sector.

Uncertainty comprises different and distinct components. These can beclassified as follows (cp. van Asselt, 2000):

(1) Variability describes the observed or predicted variation of individualresponses to an identical stimulus among the individual targets within arelevant population such as humans, animals, plants, landscapes, etc.;in risk management, safety factors have been used to cover thisvariability.

(2) Measurement errors are imprecision or imperfections of measurement,problems of drawing inferences from small statistical samples,extrapolation from animal data, bio-surveys or other experimentaldata onto humans, uncertainties of modelling, including the choice offunctional relationships for extrapolating from large to small doses; allof these usually expressed through statistical confidence intervals.

(3) Indeterminacy results from a genuine stochastic relationship betweencause and effect(s), apparently non-causal or non-cyclical randomevents, or badly understood non-linear, chaotic relationships.

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(4) Lack of knowledge results from ignorance, from the deliberatedefinition of system boundaries and hence exclusion from externalinfluences, measurement impossibilities, and others.

These components are often highly correlated. In many instances, however,they may produce quite different results. All four components have onefeature in common: uncertainty reduces the strength of confidence in theestimated cause and effect chain. While the first two components signal avarious degree of complexity, the second two components characterize thedegree of ‘‘knowledgeability’’.

A crucial issue in this respect concerns the applicability of probabilisticrisk assessment techniques. If the chain of events between a cause and aneffect follows a linear relationship (as for example in car accidents, or in anoverdose of pharmaceutical products), simple statistical models are sufficientto calculate the probabilities of harm. Such simple relationships may still beassociated with high uncertainty, for example, if only few data are availableor the effect is stochastic by its own nature. Sophisticated models ofprobabilistic inferences are required if the relationship between cause andeffects becomes more complex. Complexity in this framework refers to thedifficulty of identifying and quantifying causal links between a multitude ofpotential candidates and specific adverse effects (cp. WBGU, 2000;Schellnhuber, 1999). The nature of this difficulty may be traced back tointeractive effects among these candidates (synergisms and antagonisms,positive and negative feedback loops), long delay periods between cause andeffect, inter-individual variation, intervening variables, and others. It isprecisely these complexities that make sophisticated scientific investigationsnecessary since the dose–effect relationship is neither obvious nor directlyobservable. Nonlinear response functions may also result from feedbackloops that constitute a complex web of intervening variables. Complexityrequires therefore sensitivity to non-linear transitions as well as to scale (ondifferent levels). It also needs to take into account a multitude of exposurepathways and the composite effects of other agents that are present in theexposure situation. Under these conditions, scientific models of riskassessment (including hazard identification, exposure characterization, riskcharacterization, and risk quantification) are the most appropriate instru-ments to gain a better (but never) complete picture of the relative risksassociated with these complex causal chains.

In the case of highly non-linear or even chaotic relationships whichcannot be adequately addressed by probabilistic techniques, complexityturns into indeterminacy. In this case, the limits of analytical modelling arereached. The same is true, of course, for the component of ignorance. Inboth cases, management strategies belonging to the precautionary orresilience based management style are required. Precaution is therefore aresponse to high uncertainty, in particular indeterminacy and ignorance.

The fourth central challenge for risk managers is ambiguity. This termdenotes the variability of (legitimate) interpretations based on identical

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observations or data assessments. Most of the scientific disputes in the fieldsof risk analysis and management do not refer to differences in methodology,measurements or dose–response functions, but to the question of what allthis means for human health, environmental protection, and managementrequirements (cp. Harrison and Hoberg, 1994). Variability of interpretation,however, is not restricted to expert dissent. Laypeople’s perception of riskoften differs from expert judgements because it is also a response toqualitative risk characteristics such as familiarity, personal or institutionalcontrol, assignment of blame, and others. Moreover, in contemporarypluralist societies diversity of risk perspectives within and between socialgroups is generally fostered by divergent value preferences, variations ininterests and very few, if any universally applicable moral principles; all themore, if risk problems are complex and uncertain. Ambiguity may lead tosocial mobilisation and conflict. This may be based primarily on conflictingmoral perspectives or in the first place on conflicting views of whatconstitutes a fair distribution of risks and benefits. Again, high complexityand uncertainty favour the emergence of ambiguity, but there are also quitea few simple and almost certain risks that can cause controversy and thusambiguity.

It is important to note that the considerations concerning seriousness,lack of scientific certainty, complexity, and socio-political ambiguity canhardly be organised as a clearly separated step-by-step screening procedure.Instead, the screening elements must be conceived of as being inter-related.Accordingly, the screening procedure must allow for interactions.

A Model for Precautionary Risk Regulation

Figure 1 presents a schematic delineation of the model for precautionary riskregulation. There are three major steps to the process envisaged: screening,appraisal and management. These correspond to the three key stages inconventional risk regulation: hazard characterisation, risk assessment andrisk management, but with differences as set out below. Throughout, ageneral distinction is drawn between the ‘‘precautionary principle’’,‘‘precautionary appraisal’’ and ‘‘prevention’’. The precautionary principleis employed in ‘‘screening’’ threats to determine their subsequent regulatorytreatment. Precautionary appraisal is a specific approach to regulationadopted in cases where screening has identified a lack of scientific certainty.Prevention refers to the approach that is taken when a threat is identified asbeing both serious and certain.

Screening

In the screening stage, key features of the threat in question are identified inadvance. These attributes are then used to select the best approach to moredetailed regulatory appraisal, bearing in mind the particular kinds ofinformation required for effective and efficient regulation. Screening also

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helps in prioritising attention to different threats. This essential activityrelates to established notions of ‘‘risk assessment’’ in discussions under theauspices of the WTO and elsewhere, which can be either quantitative orqualitative in form.

The term ‘‘threat’’ is important here, because it admits interpretationeither in terms of probabilistic risk or intrinsic hazard properties, dependingon the context. Such intrinsic properties bearing on the ‘‘seriousness’’ of thethreat may relate to endpoint effects, such as carcinogenicity, mutagenicityor reprotoxicity, or to exposure potentials like bioaccumulation, persistencyand ubiquity. Each of these offers a criterion of ‘‘seriousness’’. Where anythreat is held under these criteria definitely to be serious, then subsequentregulatory appraisal involves a ‘‘presumption of prevention’’.

There are a number of reasons why a threat may be considered not to bedefinitely serious. One important reason is where the threat is subject to‘‘scientific uncertainty’’. Screening here involves examining the applicabilityof probabilistic risk assessment techniques in any given case. Specific criteriainclude various questions about the status of the relevant theoreticalframeworks, the presence of substantive novelty or unprecedented char-acteristics in the products or production processes and the sufficiency andapplicability of the relevant models and data sources. Where any of thesecriteria are triggered then risk assessment techniques are ruled out andregulation instead takes the form of ‘‘precautionary appraisal’’.

Figure 1. A model for precautionary risk regulation

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Where a threat is judged neither definitely to be ‘‘serious’’ nor‘‘scientifically uncertain’’, then the question remains as to whether it isnonetheless significant in scale or whether there exist complexities which,whilst not scientifically uncertain, do warrant treatment using extended riskassessment techniques. Criteria of ‘‘complexity and scale’’ that may beemployed to screen for such cases include the presence of cumulative oradditive causal mechanisms and whether the threats involve exposedpopulations, potential scales of damage or likely time delays which exceedcertain critical thresholds. Where any one of these filters is activated, thenthe threat in question is assigned to ‘‘extended risk assessment’’ insubsequent regulatory appraisal.

Where threats are identified not to be definitely serious, and not topresent scientific uncertainty or issues of scale and complexity under thecriteria described above, then there still remain questions over the ‘‘socio-political ambiguity’’ of the threat. Does it involve perceptions ofcatastrophic potential harm? Is it associated with significant institutionalconflict or political mobilisation or an expert dilemma? Are there issues of‘‘distributional equity’’ or signs of ‘‘social amplification’’ in the news media?If these criteria are activated, then the threat in question is assigned to adiscursive process in subsequent regulatory appraisal.

Where a threat is found not to be serious, uncertain, complex, large inscale or socio-politically ambiguous in any of the senses described above,then it may be subject to a ‘‘standard risk assessment’’ process. As isconventionally the case at present, this is the approach that is adopted in thecase of a very large number of cases of routine risks.

Appraisal

As described above and in Figure 1, the screening process may allocatethreats to treatment by one or more of five different approaches toregulatory appraisal. Each is designed to gather the information necessaryfor regulatory decision making in different contexts in the most effective andefficient fashion. Where a given threat displays a number of differentattributes, these different aspects may be allocated to parallel treatment bydifferent types of appraisal.

If the threats in question are definitely (that is, certainly andunambiguously) serious then—as at present—the subsequent regulatorypolicy adopts a ‘‘presumption of prevention’’. This is shown with the colourred in Figure 1. Rather than aiming at further elaborate characterisation ofthe threat, this involves simply examining for countervailing justifications orover-riding social need which would dictate a precautionary approach.Otherwise, regulation results in the implementation of preventive measures.Examples of threats that might be construed as definitely serious mightinclude new consumer or industrial products that contain chlorofluorocar-bons (CFCs) on the grounds that CFCs are known to deplete ozone in thestratosphere. The international ozone regime comprising the Montreal

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protocol and the refinement in the Beijing amendment adopted a regulatorypolicy of prevention. The ozone destroying CFCs were reduced from1.1 million tons per year in 1986 to 160,000 tons in 1996 (UNEP, 2000).The industrialised countries no longer produce, apply or export thesepersistent substances. Since the expected increase of economic prosperity inthe most populous countries such as China, India, Malaysia, and Indonesiawould jeopardise the international regulation, the Beijing amendmentadjusted the Montreal Protocol to the new situation in order to accountfor CFC use in the industrial development of transitional countries. Anotherexample might be new and existing persistent pollutants for which thereexists unequivocal qualitative evidence of genotoxicity and/or carcinogeni-city. The Stockholm Convention prohibits the so-called ‘‘dirty dozen’’ ofpersistent toxic substances for which the unequivocal evidence of theirseriousness is proven.2 Limited expectations were particularly admitted todioxin and DDT in order to combat against malaria. Even if this conventioncan be estimated as a right step in coping with persistent pollutants, furtherrevisions are necessary because many persistent substances are not coveredby the convention. For example, the persistent chemical TBT (tri-butyl tin)used in painting ships was not included by the Stockholm Convention, butinternationally banned by the International Maritime Organization (IMO).In the case, for example, of a new genotoxic pesticide used to control fungalinfection in an important food crop, countervailing risks might be identifiedif, for example, there were human health risks of uncontrolled fungal cropinfection and the pesticide would be the only available means of controllingthe infection. Those mitigating factors would therefore trigger furtheranalysis of the genotoxic pesticide under a precautionary form of appraisal.

On the other hand, if the threats in question are found under thescreening criteria to be certainly and unambiguously not serious, notcomplex and not large in scale, then they are assigned directly to routineadministration by ‘‘standard risk assessment’’. Here, appraisal takes astraightforward form, based simply on probabilities and magnitudes, and isperformed by in-house staff. In such routine cases, there is a presumption,subject to management considerations, in favour of approval. This is shownwith the colour green in Figure 1. Examples of such routine risks mightinclude assessment of the explosive properties of an industrial chemical or anew design of railway rolling stock. The ‘‘standard risk assessment’’ of theexplosive properties of an industrial chemical would include the calculation,perhaps from existing theoretical and/or empirical data, of the probabilitiesand magnitudes of an explosion under various management scenarios.

If screening is unable to allocate to straightforward preventive (red) orstandard (green) management measures, then more elaborate regulatory

2 These are nine pesticides such as aldrin, chlordan, dieldrin, endrin, heptachlor,hexachlorbenzol, mirex, and toxaphen as well as the group of industrial chemicals ofdifferent PCBs and both the chemical groups of dioxin and furan.

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appraisal procedures are undertaken. If a lack of scientific certainty has beenidentified in screening, then the subsequent regulatory process takes the formof ‘‘precautionary appraisal’’. This involves a broad-based approach, withthe full engagement of different interested and affected parties and whichdoes not rely on probabilistic techniques. Key characteristics of thisapproach include unconstrained scope, involving consideration of benefitsand justifications (as well as all direct and indirect effects) of a full range oftechnology and policy options, looking at the entire associated productand life cycles. The burden of persuasion is placed on proponents andconsideration extends to the flexibility, adaptability, reversibility, anddiversity displayed by different policy options. For example, with thecommercial release of a genetically modified crop variety might arise aprecautionary approach with different kinds of substantive and proceduralconsiderations including the following. First, the design of an ecologicalappraisal, and the specification of the particular experiments to provide dataon those issues that fell within the scope of this appraisal, might requirebroad disciplinary and stakeholder involvement. Second, the scope of theecological appraisal might, as a consequence, be expected to include analysisof effects on a wide variety of species and over several generations. Third,the appraisal as a whole might include analysis of the anticipated size anddistribution of social benefits of licensing the crop variety, alongsideinvestigation into the nature and distribution of the risks, and it mightinclude analysis of the risks and benefits of alternative technological meansof producing the crop product, for example, by collecting data about thepros and cons of conventional varieties under a range of managementsystems. Fourth, the appraisal might involve the specification of researchprogrammes and evidence required to permit commercial release, andfinally, it might involve analysis of means for reversing the licensing decisionat a later date; for example, by considering technological options to ensurethat the variety is infertile.

Where a threat is directed to treatment by ‘‘extended risk assessment’’ itis, by definition, susceptible to characterisation by probabilistic techniques.In such cases, the regulatory process uses conventional methods (includingsystematic modelling and safety margins) applied in a transparent andaccountable fashion by interdisciplinary groups of external independentspecialists. In the case, for example, of well-understood chemical agents, thekinds of considerations that might arise during an extended risk assessmentare relatively familiar. They include probabilistic dose–response analysis forall endpoints, and risk estimates calculated for all exposure pathways. If,however, particular exposure scenarios were to be identified during theappraisal that could not be adequately modelled, then the threat in questionwould be referred to a precautionary approach.

On the other hand, where screening has identified socio-politicalambiguity, then the choice of appropriate management instruments will bea ‘‘discursive process’’, subject to inclusive participatory proceduresdesigned to clarify and so help resolve this ambiguity. The specific type of

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process will vary from case to case, but will respect general principles such asrepresentativeness, transparency, accessibility, and unconstrained scope.Biochips for human implantation, for example, might be considered underdiscursive procedure including questions of equity, liberty and human rightsas well as matters of accountability, institutional legitimacy and jurisdiction.It would enable identification of those issues which are subject to trade-offs—treating each in a different way and reconciling them by means ofnegotiations. Electromagnetic fields from mobile phone use might beanother example for a discursive process considering the balancing ofpublic and private benefits, risk and nuisance around the regulation ofhandset use and aesthetic and distributional issues around the location anddemography of base stations

As shown by small two-headed arrows in Figure 1, the differentapproaches to regulatory appraisal are not necessarily mutually exclusive.If characteristics of uncertainty, complexity/scale or ambiguity are encoun-tered at a later stage in appraisal, then a threat may be assigned to theappropriate appraisal approach.

Evaluation, Management and Oversight

As in conventional understandings of the regulatory process, the third majorelement in the model after screening and appraisal is management. Thisinvolves evaluation of the information yielded by the different regulatoryappraisal processes and the consideration of this information alongside otherrelevant social and economic factors. As in conventional risk analysis, thepurpose of the evaluation process is to take account of the results obtained inregulatory appraisal, weigh this up against wider social and economic issuesand consider the pros and cons of different possible instruments. With fullinvolvement by all interested and affected parties and based on the principlesof proportionality and non-discrimination, this involves the application ofvarious forms of regulatory impact assessment to identify the mostappropriate regulatory instrument in different contexts. As in establishedregulatory practice, it is at this point in the process that a decision is taken.Depending on the information generated in appraisal, this might take theform of one or more courses of action from a spectrum of managementmeasures, ranging from highly restrictive (such as bans and phase-outs) toentirely permissive (such as unrestricted activity). This is shown by theshading from red, through yellow to green in Figure 1.

The presumption is that, where serious threats have been identifiedwithout scientific uncertainty, then preventive measures will be applied.Likewise, the presumption is that approval will be granted for threats thathave been evaluated certainly to be non-serious, unambiguous and non-complex and so subject to standard risk assessment. However, as inestablished management approaches, both of these cases will still be subjectto a basic evaluation process. For threats that are addressed by other forms ofregulatory appraisal (precautionary, discursive or extended risk assessment),

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there is no implication that any one will necessarily lead to any one form ofmanagement measure.

Finally, it is important to note that the design of the process portrayed inthis general model is not as closed or as linear as might be suggested inFigure 1. As in conventional regulation, the process is subject to generalpolitical and administrative oversight and open to development in the face ofnew learning and to feedback between various stages. In practical terms, it isthe process of design, development and oversight that governs the selection,characterisation, implementation and review of the threat criteria employedin screening and of the various elements in the different approaches tosubsequent regulatory appraisal. In particular, this will determine therelative priorities attached to different agents and threats and ensure that ajustifiable and proportional balance is being struck in the allocation ofresources to different aspects of screening, appraisal and management.

The design, development and oversight function addresses any unfore-seen difficulties that may arise and ensures that the overall process is robustto changes in circumstances and to the perspective of all interested andaffected parties. As such, it will necessarily involve a range of procedures anda variety of institutions and is subject to general principles of goodgovernance, including competence, transparency, effectiveness, legitimacy,and accountability.

Against the background of the general architecture of the proposedmodel for precautionary risk regulation described above, the followingsection concretises the required concepts for selecting objectives, assessingand handling data, and finding the most appropriate procedure forbalancing pros and cons when dealing with serious, uncertain, complexand/or ambiguous risks.

Risk Analysis According to the Precautionary Risk Regulation

Our main thesis is that the approach to precautionary risk regulationdeveloped in this paper can be integrated in the formal decision analyticconcept and is thus compatible with the ‘‘traditional’’ school of thought inrisk analysis. The approach, however, needs some major adjustments withrespect to handling complexity, uncertainty and ambiguity. Based on thecharacteristics of these three major problems we distinguish five approachesto risk analysis: instrumental approach, epistemological approach, reflectiveapproach, participatory approach, and preventive approach (cp. also Klinkeand Renn, 2002). These five approaches include different concepts forselecting objectives, assessing and handling data and finding the mostappropriate procedure for balancing pros and cons. The following sectionwill deal with these approaches consecutively using the major steps ofdecision making and applying it to complex, uncertain and ambiguousphenomena.

Dealing with routine risks requires hardly any changes to the traditionaldecision making framework in risk analysis agencies. The data is provided

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by statistical analysis, the goals are determined by law or statutoryrequirements and the role of risk management is to ensure that all riskreduction measures are implemented and enforced. Traditional risk-benefitanalysis combined with cost-effectiveness are the instruments of choice forfinding the right balance between under- and overprotection of the public. Inaddition, monitoring the risk situation is important as a reinsurance that nounexpected consequences may occur. For this reason routine risks need aninstrumental discourse among agency staff and enforcement personnel. Theobjective here is to find the most cost-effective method for a desired riskreduction level. If necessary, stakeholders may be included in thedeliberations as they have information and know-how that may provideuseful hints for being more efficient.

Resolving complexity requires some deviation from the conventionalmethods of risk assessment and risk management. Data collection andinterpretation are less obvious than in the routine case and demand moresophisticated methods. Simple statistical data is either not available orinsufficient to calculate the risks for humans or the environment. In ouranalysis we recommend novel data collection and interpretation proceduressuch as the Delphi process as a means to get the best expertise andexperience represented in characterising causal chains from the initiatingevent to the final damage. Once the probabilities and their correspondingdamage potentials are calculated, risk managers can proceed in a similar wayas they have done in the routine case. They should set risk reductionpriorities according to the severity of the risk, which may be operationalisedas a linear combination of damage and probability or as a weightedcombination of the two components. When it comes to balancing pros andcons, the traditional methods such as risk–risk comparison, cost-effective-ness and cost–benefit analysis are well-suited to facilitate the overalljudgment. These instruments if properly used provide effective, efficient andfair solutions with respect to finding the best trade-off between opportunitiesand risks. The proper use of these instruments requires transparency over thesubjective judgements and the inclusion of knowledge elements that haveshaped the parameters on both sides of the cost–benefit equation. Theseinputs could be provided by an epistemological discourse aimed at findingthe best estimates for characterising and evaluating the risks underconsideration. Within an epistemological discourse experts (not necessarilyscientists) argue over the factual assessment with respect to the causal chainbetween the initial event and its final consequences. The objective of such adiscourse is the most adequate description or explanation of a phenomenon(for example the question, which physical impacts are to be expected by theemission of specific substances). The goal is to achieve a homogeneous andconsistent definition and explanation of the phenomenon in question as wellas a clarification of dissenting views. The discourse produces a profile of therisk in question on the selected criteria. An epistemological discourse mayreveal that there is more uncertainty and ambiguity hidden in the case thanthe initial appraisers had anticipated. If the discourse includes natural as well

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as social scientists, future controversies and risk debates may be anticipated.Risk controversies would occur less as a surprise than now. Delphi andDelphi-like procedures might be appropriate to resolve potential cognitiveconflicts regarding high complexity. We think that models combingexpertise and laypeople’s perspectives on the issue may be promising inthe future, although the potential merits and shortcomings of such combinedapproaches are still contested in the literature (Webler and Renn, 1995;Marris and Joly, 1999; overviews in Rowe and Frewer, 2000).

If risks are associated with high uncertainty, scientific input is only thefirst step of a more complex evaluation procedure. It is still essential tocompile the relevant data and the various arguments for the positions of thedifferent science camps. Procedures such as using the ‘‘Pedigree Scheme’’ byFuntowicz and Ravetz (1990) might be helpful to organise and classify theexisting knowledge. In a second step, information about the different typesof uncertainties has to be collected and brought into a deliberative arena. Ifignorance plays a large role, judging the relative severity of risks on the basisof uncertain parameters does not make much sense. Under thesecircumstances, management strategies belonging to the precautionaryapproach are required. With respect to the objectives, there is a need toadd objectives that promise to enhance resilience and decrease vulnerability.These goals may conflict with the aim of efficiency based on optimisingtrade-offs between costs and opportunities. Yet the possibility of irreversibleharm necessitates protective measures beyond the point of optimal resourceallocation. Strategies based on resilience include specific measures ofprecaution, such as ALARA or BACT, or the strategy of containing risksin time and space. This suggestion does, however, entail a major problem:looking only to the uncertainties does not provide risk managers with a cluewhere to set priorities for risk reduction. How can one judge the severity of asituation when the potential damage and its probability are unknown orhighly uncertain? A solution for this dilemma might be the inclusion of mainstakeholders in the assessment process and ask them to find a consensus onthe extra margin of safety that they would be willing to invest in exchangefor avoiding potentially catastrophic consequences (cp. Yosie and Herbst,1998). We have called this type of deliberation reflective discourse since itrests on a collective reflection about balancing the possibilities for over- andunderprotection based on uncertain data and ignorance. This discourseprovides answers to the question of how much uncertainty is acceptable.Special procedures such as negotiated rule-making, mediation and roundtables are most appropriate for reaching the desired purpose of reflectivediscourses (Fiorino, 1995).

Different from many other analyses of the precautionary principle, ourconcept distinguishes clearly between uncertainty and ambiguity.Uncertainty refers to a situation of being unclear about factual statements;ambiguity to a situation of contested views about the desirability or severityof a given hazard. Uncertainty can be resolved in principle by more cognitiveadvances (with the exception of indeterminacy and ignorance), ambiguity

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only by discourse. Discursive procedures include legal deliberations as wellas novel participatory approaches. If ambiguities are associated with a riskproblem, it is not enough to demonstrate that risk regulators are open topublic concerns and address the issues that many people wish them to takecare of. The process of risk evaluation itself needs to be open to public inputand new forms of deliberation. This starts with setting the objectives. Insituations of high ambiguity, we recommended value-tree analysis as onepromising exemplary model for involving different stakeholders andmembers of the public. The aim is to find consensus on the dimensions ofambiguity that need to be addressed in the phase of data collection. The datacollection process turns into a multi-disciplinary and cross-sectional analysisonce ambiguity is present. This means that natural as well as social scientistsand representatives of the humanities should become involved. The third andlast step, i.e. balancing pros and cons, requires a larger input from socialgroups. This discourse involves weighting of the criteria and an interpreta-tion of the results. Issues of fairness and environmental justice, visions onfuture technological developments and societal change and preferencesabout desirable lifestyles and community life play a major role in thesedebates (Webler, 1999). A set of deliberative processes might be instructivethat are, at least in principle, capable of resolving ambiguities in risk debates.Among the most suitable instruments are citizen panels or juries (randomlyselected), voluntary advisory groups, consensus conferences and otherparticipatory techniques in order to resolve ambiguities and value conflicts(Schneider et al., 1998)

The preventive approach does not add any new elements to the decisionanalytic framework. If any of the other four approaches leads to a negativedecision on the respective risk under consideration the preventive approachprovides the tools or instruments for banning or phasing-out the risk. Theonly objective here is to eliminate the risk-bearing activity in an economicaland socially compatible fashion. In extreme cases a risk may be tolerated ifthe benefits are so overwhelming that even a clearly unacceptable risk seemsproportional to the benefits, or if there exist countervailing risks, or there areunavoidable constraints on control. In such cases, depending on whether thequalification takes the form of uncertainty or ambiguity, the threats inquestion will be assigned for further attention either (respectively) toprecautionary or discursive approaches or to regulatory appraisal. In eithercase, the presumption of prevention will be augmented by criticalexamination of such potential mitigating factors or grounds for conditionalrelaxation as part of an comprehensive and inclusive deliberative process,involving relevant interested and affected parties.

Summary and Conclusions

The outlined model in this paper should be understood as a strategicresponse to the most prominent challenge of risk reduction and managementfor the protection of human health and the environment which accompanies

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the European integration process. The model might be used as a boilerplatefor precautionary risk regulation in national, European and internationalgovernance, because it:

N considers the EU philosophy of precautionary policies and goodgovernance

N defines the Precautionary Principle as a general principle employed in thescreening of threats for properties of seriousness or uncertainty in order todetermine their subsequent treatment in regulatory appraisal andmanagement

N identifies Precautionary Appraisal as a specific approach to appraisaladopted in cases where screening has identified a lack of scientific certainty

N defines and concretises scientific uncertainty as one of four key challengesdealing with contemporary threats; the other major issues are identified asseriousness, complexity, and socio-political ambiguity

N provides a basic architecture for responding to these key features of athreat which builds on the three pillars of screening, appraisal, andmanagement

N understands screening as the process whereby the key features areidentified in order to select the most appropriate efficient and propor-tionate approach to more detailed regulatory appraisal and to helpprioritise attention to different threats

N promotes good governance through the transparent, accountable andinclusive nature of the regulatory design and in particular the incorpora-tion of deliberative and participatory processes

N is principally legally compatible with respect to EU jurisdictions andprovides rationales for applying the Precautionary Principle andimplementing it in national contexts; the proposed procedure assuresthat application is bound to certain measurable conditions and therebyprevents arbitrary judgments.

In order to evaluate the theoretical and practical feasibility andimplementability, the model was tested empirically using new organicchemicals as a case study.3 The case study builds on a series of filters tailoredto precautionary screening of global chemical threats. The filters arecomposed of proxy measures for mobility, persistence, and bioaccumula-tion. Exemplification in the chemicals field shows that the model candeliver quantitative results without compromising scientific reasoningand regulatory feasibility: after appropriate calibration (using data ofhistorical chemicals) the filter sequence completely separates economicallyimportant high production volume chemicals from precarious chemicalsmentioned in the protocols of Montreal, Kyoto and Stockholm. The case

3 The case study of ‘‘Precautionary Pre-Selection of New Organic Chemicals’’ was carried outby Ulrich Muller-Herold, Marco Morosini, Oliver Schucht, and Martin Scheringer of theSwiss Federal Institute of Technology Zurich (ETH), Switzerland. See Renn et al., 2003.

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study provides a method to reproduce by a shortcut important results of along and cumbersome historical development in dealing with organicchemicals.

In order to ensure social and political viability we used an innovativeparticipatory instrument. The model and its exemplification in the chemicalsfield were presented, reflected and revised in a discursive procedureinformed by the method of Group Delphi. This procedure consisted of aseries of four stakeholder workshops (one with industry and industrialassociations; one with environmental and consumer groups; one withregulatory agencies and administration; and one with legal scholarsand practitioners). The stakeholder workshops provided valuable inputfor elaborating and refining the general model sequentially in an ongoinginformation gathering and discussion process. Furthermore, the projectbenefited from the input of an initial workshop and a final dissemi-nation workshop (both with representatives of the relevant Commission’sDirectorates General, risk experts, and the major stakeholders ofthe European risk arena). In addition, it profited from the commentariesand suggestions put forward by representatives of the EuropeanCommission’s Directorates-General and Services at an internal meeting inBrussels.

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