Uncertain Risks Regulated

451 Pages·2009·2.55 MB·English

by  Ellen Vos, Michelle Everson

Uncertain Risks Regulated
Uncertain Risks Regulated compares various models of risk regulation in order to
understand how these systems shape the relationship between law and science, and
how they attempt to overcome public distrust in science-based decision making.
The book contributes to the ongoing debate relating to uncertainty and risks – and
the difficulties faced by the European Union in particular – in regulating these
issues, taking account of both national and international constraints.
The term ‘uncertain risk’ is comparable with notions of hazard and indetermin-
ate risk, as deployed within the social sciences; but it also aims to capture the
modern regulatory reality that a non-quantifiable hazard must still be addressed by
society, law and its regulators. Decisions must be taken in the face of uncertainty.
And, while it is not possible to provide clear cut models of risk regulation, in
focusing on regulatory practices at a national, EU and international level, the con-
tributors to this volume aim to use fact finding as a core instrument of learning for
risk regulation.
Michelle Everson is Professor of European Union Law at Birkbeck College,
University of London. She has researched widely in the field of European Law and
has particular interests in the areas of European regulatory law, European adminis-
trative and constitutional law and European citizenship.
Ellen Vos is Professor of European Union Law at the Law Faculty of Maastricht
University. She has published extensively in the field of EU law, institutional law
(comitology and agencies), market integration and risk regulation (precautionary
principle; food safety).
Law, Science and Society
Law’s role has often been understood as one of implementing political decisions
concerning the relationship between science and society. Increasingly, however, as
our understanding of the complex dynamic between law, science and society deep-
ens, this instrumental characterisation is seen to be inadequate, but as yet we have
only a limited conception of what might take its place. If progress is to be made in
our legal and scientific understanding of the problems society faces, then there
needs to be space for innovative and radical thinking about law and science. Law,
Science and Society is intended to provide that space.
The overarching aim of the series is to support the publication of new and
groundbreaking empirical or theoretical contributions that will advance under-
standing between the disciplines of law, and the social, pure and applied sciences.
General topics relevant to the series include studies of:
(cid:127) law and the international trade in science and technology;
(cid:127) risk and the regulation of science and technology;
(cid:127) law, science and the environment;
(cid:127) the reception of scientific discourses by law and the legal process;
(cid:127) law, chaos and complexity;
(cid:127) law and the brain.
General editors
John Paterson Julian Webb
University of Aberdeen, UK University of Warwick, UK
International advisory board
Gary Edmond, University of New South Wales, Australia
Timothy Earle, Western Washington University, USA
Fiona Haines, University of Melbourne, Australia
Sven-Ove Hansson, Royal Institute of Technology, Sweden
Sheila Jasanoff, Harvard University, USA
Robert Lee, Cardiff University, UK
Bronwen Morgan, University of Bristol, UK
Colin Scott, London School of Economics, UK
Susan Silbey, Massachusetts Institute of Technology, USA
Ellen Vos, University of Maastricht, the Netherlands
Uncertain Risks Regulated
Edited by
Michelle Everson and Ellen Vos
First published 2009
by Routledge-Cavendish
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge-Cavendish
270 Madison Ave, New York, NY 10016
A GlassHouse book
This edition published in the Taylor & Francis e-Library, 2009.
“To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”
Routledge-Cavendish is an imprint of the Taylor & Francis Group,
an informa business
© 2009 editorial matter and selection Michelle Everson & Ellen Vos,
individual chapters the contributors
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalogue record for this book has been requested
ISBN 0-203-88485-X Master e-book ISBN
ISBN10: 1–84472–162–0 (hbk)
ISBN13: 978–1–84472–162–7 (hbk)
ISBN10: 0–203–88485–X (ebk)
ISBN13: 987–0–203–88485–0 (ebk)
Contents
Foreword and acknowledgements ix
List of abbreviations xi
List of contributors xvii
1 The scientification of politics and the politicisation
of science 1
MICHELLE EVERSON AND ELLEN VOS
PART I
Regulating uncertain risks 19
2 Opening Pandora’s box: contextualising the precautionary
principle in the European Union 21
ELIZABETH FISHER
PART II
National systems on food and biotechnology
Section 1: Case studies on food regulation 47
3 Uncertainties in regulating food safety in France 49
OLIVIER BORRAZ AND JULIEN BESANÇON
4 The origins of regulatory uncertainty in the UK food
safety regime 69
HENRY ROTHSTEIN
5 The Dutch regulatory framework for food – risk analysis
based food law in the Netherlands 87
BERND M.J. VAN DER MEULEN
vi Contents
6 Food safety in Poland: standards, procedures and
institutions 111
ALEKSANDER SURDEJ AND KAROLINA Z˙UREK
7 A default-logic model of factfinding for United States
regulation of food safety 127
VERN R. WALKER
Section 2: Case studies on biotechnology regulation 153
8 The French regulatory system on GMOs 155
CHRISTINE NOIVILLE
9 The UK regulatory system on GMOs: expanding the
debate? 165
MARIA LEE
10 GMO regulation in the Netherlands: a story of hope, fear
and the limits of ‘poldering’ 187
HAN SOMSEN
11 The Polish regulatory system on GMOs: between EU
influence and national nuances 207
PATRYCJA DA˛BROWSKA
12 The regulation of environmental risks of GMOs in the
United States 227
MICHAEL RODEMEYER, J.D.
PART III
EU and international models 247
13 The EU regulatory system on food safety: between trust
and safety 249
ELLEN VOS
14 The EU regulatory system for GMOs 269
GREGORY C. SHAFFER AND MARK A. POLLACK
Contents vii
15 European regulation of GMOs: thinking about ‘judicial
review’ in the WTO 295
JOANNE SCOTT
16 The Codex Alimentarius Commission and its food safety
measures in the light of their new status 323
MARIELLE D. MATTHEE
PART IV
Improving the legitimacy and credibility of risk regulation:
science, procedures, participation and deliberation 345
17 Three intimate tales of law and science: hope, despair
and transcendence 347
MICHELLE EVERSON
18 Science, knowledge and uncertainty in EU risk regulation 359
MARJOLEIN B.A. VAN ASSELT, ELLEN VOS AND BRAM ROOIJACKERS
19 The role of scientific experts in risk regulation of foods 389
HARRY A. KUIPER
20 Inclusive risk governance through discourse, deliberation
and participation 399
ANDREAS KLINKE
21 Sound science in the European and global market:
Karl Polanyi in Geneva 415
CHRISTIAN JOERGES
Index 427

Foreword and acknowledgements
This book aims to compare various models of risk regulation in order to better
understand how these systems shape the relationship established between law and
science, and how they seek to overcome a public lack of trust in science-based
decision making. Building upon the potential of existing systems to act as a product-
ive learning process, the book seeks to provide a positive contribution to the
ongoing debate about uncertainty and risk, and, in particular, to suggest various
ways in which the European Union might overcome the specific obstacles that it
faces attempting to regulate these issues.
The book deploys a notion of ‘uncertain risk’. This term is comparable with
concepts of hazard and indeterminate risk used within the social sciences, but seeks
also to capture the specific modern regulatory reality that non-quantifiable hazard
must still be addressed by society, law and its regulators. Decisions must be taken in
the face of uncertainty. As such, the book does not present us with clear models of
risk regulation. Rather, the book focuses on regulatory practices at national, EU and
international level, with the aim of using fact finding as a core instrument of learn-
ing for risk regulation.
The book therefore begins with a critical analysis of the principles that currently
act to orient risk regulation and, in particular, investigates the limits to the
precautionary principle as a regulative legal norm in cases of ‘uncertain’ or
incalculable risk. Subsequently, national, EU and international (WTO) models on
foodstuffs and biotechnology are examined (Parts II and III). The study of the
regulatory framework of foodstuffs deals with food safety, while the study of bio-
technology discusses non-food issues, in particular the framework regulating
the environmental aspects and the commercialisation of GMOs. It examines the
different schemes of institutional organisation that are currently applied, seeking to
highlight learning processes around issues of procedure, participation and deliber-
ation. In particular, this section highlights the pragmatic efforts made at national,
European and international level to integrate scientific expertise within public
decision-making structures. It is a feature of real-world risk regulation that the
learning processes that cluster around it necessitate the constant re-assessment and
re-evaluation of regulatory structures. Accordingly individual contributions also
highlight ongoing processes of institutional reform, addressing, in particular, the
crisis in public confidence.
Drawing on these findings, the book then moves on to highlight and examine
general problems of legitimacy and the potential loss of credibility within the regu-
lation of uncertain risks. Notions of participation, procedural requirements and