Is the European Union More Precautionary than the US?
Perceived differences in regulatory principles in the EU and US have led many to be concerned that TTIP will damage the EUs ability to regulate in a way that relies fundamentally on caution. However, research on regulation has provided evidence that the idea of the EU as being more cautious is largely the result of stereotypes. When examined in the aggregate, regulations in the EU and US both apply precaution with similar frequency, but in different areas.
Claims of a more precautionary Europe revamp fears that any attempt of regulatory convergence via the negotiation of a trade agreement with the US may imply deregulation of European norm protections.
There is indeed a general perception in public opinions that Europe is more precautionary, more regulatory, more environmentalist and more risk-averse than the US. Americans are allegedly individualistic, risk-taking and confident that technology and market forces will solve every problem. The EU, formally endorsing the precautionary principle, would seek to proactively regulate risk while the US, opposing the precautionary principle, would wait for evidence of actual harm before regulating.
In fact, there are several competing accounts regarding the history of regulatory precaution in the EU and the US. On one account, globalization serves as the driving factor in creating convergent pressure on standards, which tend towards harmonization. An opposing account posits that there are increasingly different regulatory cultures and regulatory competition between the two regions, meaning that underlying principles are diverging.
Interestingly, some commentators point to a restricted list of examples and the formal adoption of the precautionary principle in the EU treaties in order to make the case that from the 1960s to the mid-1980s the regulation of health, safety and environmental risks were generally stricter in the US; whereas since the 1990s the positions have been reversed. In the Maastricht Treaty, the EU expressly provided that its environmental policy "shall be based on the precautionary principle". Further treaties have expanded the precautionary principle's application to other policies. The EU has also strongly promoted the adoption of the precautionary principle in multilateral agreements like the United Nations' so-called Rio Conference of 1992 on Environment and Development. Europe has therefore become more precautionary on specific risks such as genetically modified foods, chemicals, and climate change.
However, in the research study The Reality of Precaution. Comparing Risk Regulation in the United States and Europe (2011) the extensive comparative work of 27 European and American experts, based on new qualitative and quantitative methodology, has led to different conclusions. The study shows that the claim of a more precautionary Europe is largely based on stereotypes and generalizations. The reality of precaution is not one region being more precautionary than the other, but a scenario of occasional and selective application of precaution to different risks in different places and times.
The researchers have expanded the number and diversity of qualitative case studies to risk connected to food safety (genetically modified foods, beef hormones, mad cow disease), air pollution, climate change, nuclear power, tobacco, chemicals, marine and terrestrial biodiversity, medical safety, terrorism and precaution embodied in risk information disclosure and risk assessment systems. In addition to detailed case studies, they also presented a broad quantitative analysis of specific precaution based on a sample of 100 risks drawn from a dataset of nearly 3000 risks from the 1970s up to 2004 in both the USA and the EU.
The results suggest that the degree of precaution exhibited in European and American risk regulation is very similar. Averaging across the 100 risks sample in a 35 year period, there are 36 risks that show greater US precaution and 31 risks that show greater EU precaution.
Some risk regulations do indeed reflect greater European precaution since 1990, namely: genetically modified foods, hormones in beef, toxic chemicals and climate change. But their qualitative findings suggest greater relative US precaution since 1990, namely in the sector of fine particulate matter air pollution, smoking tobacco, mad cow disease (especially in blood donations), information disclosure systems, embryonic stem cell research, youth violence and terrorism.
Although the US does not formally endorse the precautionary principle, it has fully adopted precautionary approaches since the concept's inception. Conversely, the EU has adopted the principle in its treaty but does not always adopt a precautionary approach. The study concludes therefore that a hybridization scenario better illustrates the complex reality of precaution than a scenario of convergence, divergence, or flip-flop.
Hybridization means that globalization, interconnectedness and growth of transnational networks leads to a scenario of "exchange of ideas and interweaving of diverse regulatory systems, driven by learning from experience in response to particular risks". The SO2 allowance trading in the US was praised for its performance at reducing acid rain and was borrowed by the EU in its cap-and-trade system for Greenhouse gasses.
Precaution may therefore not be seen directly as a dividing line for transatlantic discord. The hybridization in risk regulation across the Atlantic provides an interesting ground for potential reduction of discrepancies in precaution administration in the framework of the TTIP negotiations. However, as Pascal Lamy states, the only way to deal with fears about "precaution dumping" would be for negotiators to commit to not touch each other's regulatory norms or adopt the highest existing level of protection on each side. Rather than fearing that the EU might trade away the principle of precaution, it could be seen as an opportunity to strengthen regulatory collaboration and to provide more transparency on the use of the precautionary principle.
Elvire Fabry is a Senior Research Fellow at Notre Europe-Jacques Delors Institute
This article was published in the second of three theme weeks for our project "TTIP: Myths vs Reality". An introduction of the articles for the week can be found here, and introductions of the other two weeks can be found at the top of the TTIP Forum.
A more detailed version of the information in this op-ed is available here.