Rescuing the Strong Precautionary Principle from Its Critics

Noah Sachs

Abstract

The Strong Precautionary Principle, a theory of risk regulation that shifts the burden of proof on safety, provides a valuable framework for preventing harm to human health and the environment. Yet Cass Sunstein and other scholars have consistently attacked it as paralyzing, inflexible, and extreme.

This Article undertakes a reassessment of the Strong Precautionary Principle, providing a counterweight to the mountain of critical scholarship. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm occurs. It does not call for the elimination of all risk, but through burden shifting, the Principle legitimately asks risk-creators to justify the risks they impose on society. By exploring where the Principle already operates successfully in American law – examples largely overlooked by the critics – I highlight the flexibility and coherence of Strong Precaution as a guide for risk decision making.

The Article uses chemical regulation as a case study in how the Principle can guide Congress in an ongoing controversy. Congress is now considering a major overhaul of the flawed Toxic Substances Control Act of 1976 (TSCA), and this Article advocates grounding a new statute in the Strong Precautionary Principle. I propose a licensing system in which chemical manufacturers would carry the burden to demonstrate that their products do not pose significant risks to human health or the environment. Implementing Strong Precaution in chemical regulation is the key to transforming TSCA into an effective statute that protects public health.