Precaution or Causation?
Author: Daniel Himebaugh
Should lawmakers regulate an activity that is uncertain to cause harm?
I have been thinking about this and other related questions a lot recently while working on an article about the precautionary principle.
The precautionary principle has been a part of environmental law since the 1970s, and it is a driving argument of the environmental movement today. In a nutshell, it states that regulators should take steps to protect against potential harms, even if causal chains are unclear. Better safe than sorry–sounds reasonable, right?
One problem is that the precautionary principle does not tell us what values we should take precaution to protect. It just tells us what policy values are ascendant at the time.
Consider invoking the precautionary principle to protect the rights of property owners to use and enjoy their property. The new mantra might look something like this: "When a restriction on the use of property raises threats of harm to property rights, precautionary measures should be taken even if some cause and effect relationships are not fully established." Applying the precautionary principle in this way would certainly have different policy implications than those that follow from deploying it in its conventional context of "protecting the environment."
Policymakers should abandon precaution in favor of causation. "Uncertainty" alone is not a legitimate reason to curtail individual liberty. Instead, the presence of uncertainty should prompt a focused inquiry into causation, which can then develop into open and accountable environmental regulation.
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