Dimensions: 6'' x 9'' 102 pages AEI Press  (Washington) Publication Date: August 2004 Paperback ISBN: 0-8447-4189-2 Price: $ 20.00 Add to Cart   Examination Copies

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The precautionary principle is one of the most significant and controversial innovations in international environmental, health, and safety policy over the past quarter century. Although it now appears in more than twenty international treaties, and is in use in more than twenty countries, the precautionary principle has been criticized as excessive, counterproductive, ill defined, and arbitrary. This study examines how the European Union (EU), the principle’s leading proponent, has used the precautionary principle in legal decisions. Although the precautionary principle has been cited in hundreds of EU regulatory decisions and documents, those decisions provide little definition and analysis of its meaning and requirements. The primary forum for exploring the specific meaning and application of the precautionary principle is therefore the EU’s courts, where EU regulatory decisions can be challenged or otherwise addressed.

In some sixty judicial decisions to date, the EU courts have failed to provide a transparent and consistent meaning and application of the precautionary principle. In some cases, the principle is applied as a draconian sledgehammer that results in overturning long-standing due process principles and the banning of products with little or no evidence of risk. In other cases, the precautionary principle appears to have no effect on the preexisting regulatory criteria and regulatory outcomes. In several cases, the  principle is applied by the courts to produce a result in direct conflict with the recommendations of the EU’s own official scientific advisory bodies. This empirical analysis demonstrates that the amorphous precautionary principle has been applied in an arbitrary and unreasonable manner.

Gary E. Marchant is a professor of law at Arizona State University College of Law in Tempe, Arizona. He also serves as director of ASU’s Center for the Study of Law, Science and Technology.

Kenneth L. Mossman is a professor of health physics in the School of Life Sciences at Arizona State University in Tempe, where he has also served as assistant vice president for research.