Let’s Be Cautious about Precaution in Chemical Reg Bill

By April 15, 2010Regulations

From today’s Washington Post, “Lautenberg bill seeks to overhaul U.S. chemical laws“:

After a year of working with environmental groups, government regulators and the chemical industry, a leading advocate for chemical regulation has devised a plan to remake the nation’s chemical laws — a 34-year-old set of regulations that all players agree is outmoded and ineffective.

The plan, contained in legislation that Sen. Frank Lautenberg (D-N.J.) is set to file Thursday, would require manufacturers to prove the safety of chemicals before they enter the marketplace. That would be a significant departure from current laws, which allow chemicals to be used unless the federal government can prove they cause harm to health or the environment.

Sounds like the full-blown introduction of the regulatory philosophy embodied in the precautionary principle, i.e., the requirement that you prove a negative — no harm — before any new product can enter the market.

It’s a philosophy that leads to a stagnant marketplace, unnecessary costs, and more litigation. If the principle takes hold in regulation, the dynamic United States will become even more like Europe. As a wise man has written:

Over the coming decades, the increasingly popular “precautionary principle” is likely to have a significant impact on policies all over the world. Applying this principle could lead to dramatic changes in decision making. Possible applications include climate change, genetically modified food, nuclear power, homeland security, new drug therapies, and even war.

We argue that the precautionary principle does not help individuals or nations make difficult choices in a non-arbitrary way. Taken seriously, it can be paralyzing, providing no direction at all. In contrast, balancing costs against benefits can offer the foundation of a principled approach for making difficult decisions.

That’s Cass Sunstein, the abstract to his book, “The Precautionary Principle as a Basis for Decision Making.” Sunstein now holds the top regulatory review post in the Obama Administration, administrator of the Office of Information and Regulatory Affairs.

Sunstein has written the single best newspaper column explaining why the precautionary principle is a bad idea. “Throwing precaution to the wind” appeared in the July 13, 2008, Boston Globe.

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