It Might Have Been: Risk, Precaution, and Opportunity Costs
Douglas A. Kysar
Yale University - Law School
Cornell Legal Studies Research Paper No. 06-023
This Article, which is part of a larger project on the competing merits of cost-benefit analysis (CBA) and the precautionary principle (PP) as competing policymaking paradigms for environmental, health, and safety regulation, examines one specific plank of the case against the PP: the claim that the principle's ignorance of the opportunity costs of precaution leads to indeterminate or impoverishing policy advice. Because PP defenders emphasize the limits of human knowledge and the frequency of unpleasant surprises from technology and industrial development, they prefer an ex ante stance of precaution whenever a proposed activity meets some threshold possibility of causing severe harm to human health or the environment. Importantly, they prefer this stance even in the face of potential benefits that may themselves be ameliorative of environmental, health, and safety dangers.
Naturally, this asymmetric aspect of the PP generates strident criticism, particularly from consequentialist-utilitarian thinkers such as those who advocate CBA. Along with substitute risks, lulling effects, and other purportedly overlooked health consequences of precautionary regulation, these critics argue that the PP's failure to treat opportunity costs pari passu with the primary risks targeted by policy measures is simply indefensible. Despite the seemingly unimpeachable logic of this critique, the role of opportunity costs in environmental, health, and safety regulation actually turns out to be much more complicated and interesting than the CBA proponents' account reveals. As this Article demonstrates, the question of opportunity costs in risk regulation turns out to raise profound questions regarding the meaning and significance of uncertainty and rationality, the nature and extent of a society's moral obligation to other nations, other generations, and other life forms, and the very possibility of conceiving of political decisionmaking in the purely agent-neutral manner presupposed by CBA.
Number of Pages in PDF File: 49
Keywords: precautionary principle, cost-benefit analysis, discounting, future generations, environmental law, risk regulation
Date posted: September 5, 2006