84 Pages Posted: 1 Aug 2013 Last revised: 22 May 2014
Date Written: July 1, 2013
Is an ounce of prevention really worth a pound of cure when it comes to the regulation of chemicals? If you believe the aspirational statements of legislators, regulators, public health scientists and others, the answer is a definite “yes.” Yet when you look at the structure of regulatory programs and actual practices on the ground, that ounce is hard to find. Chemical policy in the United States essentially relegates prevention of chemical exposures to voluntary programs and initiatives. Mainstream regulation focuses instead on managing exposures, largely relying on control technologies to capture or destroy emissions and discharges of hazardous chemicals. This article asks what a mainstream prevention-based regulatory system would look like, addressing two critical questions: what methodological advances are needed to support it and how should such regulation be structured?
Regarding methodologies, prevention-based regulation requires the capacity to identify and evaluate safer alternatives. This involves consideration of a broad range of impacts including human health and ecological effects, technical feasibility and economic impacts. This article describes the state of emerging alternatives analysis methods and considerations for its use in the regulatory setting.
With respect to the structure of prevention-based regulation, the article presents a typology of approaches, and a discrete set of normative principles for evaluating and choosing among those approaches. As with most important choices, the decision-maker (be they a policymaker, an academic, or a stakeholder in the regulatory process) will likely value some principles over others, and find that some deeply held principles actually conflict with one another. Recognizing that preferences will vary among decision-makers, the article does not attempt to identify the best structure for prevention–based regulation. Instead it evaluates them against the principles, leaving it to the reader to consider which approach — and which constellation of principles — they most value.
Keywords: hazardous chemical regulation, risk management, prevention-based regulation
Suggested Citation: Suggested Citation
Malloy, Timothy F., Principled Prevention (July 1, 2013). 46 Arizona State Law Journal 105 (2014). ; UCLA School of Law Research Paper No.13-24. Available at SSRN: https://ssrn.com/abstract=2304420