(3) Environmental Law, Policies & Protection


Environmental Risk Assessment


Risk Assessment and the Environment

Closely related to the use of science in environmental law is the technical assessment of ‘risk’. ‘Risk’ is a complex and profoundly political idea. Ulrich Beck has developed a theory of ‘risk society’5 to reflect the centrality of risk to contemporary society.

This thesis posits that it is no longer the production and distribution of goods that dominates political and private life (as it does when those goods are scarce), but the distribution (and minimization) of bad, of risks.

Beck argues that technological risks largely escape the traditional institutions of representative democracy, pointing towards more radical and participatory approaches. Even without going as far as Beck, it is easy to identify occasions on which questions of ‘risk’ dominate political discourse and private anxiety: climate change, bovine spongiform encephalopathy (BSE) in cattle, agricultural and medical biotechnology, lower-key debates about food safety, air pollution, water pollution, as well as Beck’s primary example of nuclear technology, are all political events.

Risk has, however, a technical aspect that fits very well into a scientific way of viewing the world. Technical risk assessment, to simplify, involves the identification of a hazard associated with a substance or activity, and the likelihood of that hazard’s occurrence. The expertise of the risk assessor is increasingly central as environmental law becomes more pre-emptive, moving beyond a series of reactions to harm after the event.

One factor that complicates discussion of risk is the now well-recognized divergence between ‘public perceptions’ of risk and scientific analyses of risk. Whilst some believe that this is evidence of public ignorance, and urge that important and expensive matters of risk regulation be kept away from the ‘irrational’ public, and their representatives,6 it is also increasingly accepted that at least part of the divergence can be explained by a broader, but still rational, approach to risk on the part of the public.7

On the latter view, whilst experts tend to focus on numbers (for example lives lost), the public perception of risk is multi-dimensional and qualitative, with particular hazards meaning different things to different people depending on underlying values and the context of the risk.8 So, for example, the distribution of risk and benefit is relevant to the public, an unfamiliar risk may lead to greater concern than a familiar risk, a freely chosen risk is less worrying than one imposed from outside.9 The fundamental disagreement is over whether people ‘think poorly’ about risk, or whether they assess risk according to a ‘richer rationality’ than the experts.

Cass R. Sunstein, Risk and Reason: Safety, Law and the Environment

(Cambridge University Press, 2002), pp. 59–64

There is much wisdom in the tradition [of ‘richer rationality’], and indeed the ‘richer rationality’ view has started to become highly influential ... And in some ways, it is clearly correct. The risks associated with voluntary activities (skiing, horseback riding) receive less public concern than statistically smaller risks from involuntary activities (food preservatives, pesticides, herbicides, certain forms of air pollution). But in the context of risks, I believe that the richer rationality claim is overstated. To be sure, some of these factors do justify special concern with some risks. But there is no ‘rival rationality’ in the minds of ordinary people.

... Media attention, for example, is a heuristic for determining whether the problem is serious. If people are especially concerned about risks that preoccupy the media, it is probably because what concerns the media is likely, other things being equal, to be worthy of concern. Especially in light of the availability heuristic and social influences, ordinary people, trying to reduce large risks, will naturally be concerned about hazards that are receiving attention from newspapers and television stations. The point helps explain why people have sometimes been excessively fearful of shark attacks, air travel, and new diseases. The same point also helps explain why different cultures, and different subcultures, are frightened of different things: They hear, from relevant media, different reports of what is dangerous.

Past history also works as a heuristic. What has happened before is a (rough) proxy for what will happen again. Sensible people, who want to reduce large risks, and to ignore tiny ones, will care about history. Similar things can be said about trust. If people do not trust an institution’s assurances, they are thinking that the risk is more serious than they are being told.

Nor is any special puzzle posed by the fact that public concern is heightened when children and future generations are at risk. When this is so, more life-years are at stake, and in the case of future generations, more lives. Of course, people want to save more lives, and more life-years, rather than fewer. On all these counts, experts and ordinary people seem to be on exactly the same page - with the qualification that ordinary people sometimes use simplifying devices, such as media attention, to test whether a risk is really large or small. But some of these factors do seem to suggest that people are not concerned only with numbers of lives at stake. For example, deaths that are particularly ‘dreaded’ may have aggravating characteristics, to which ordinary people are alert but which experts neglect.

The notions of voluntariness and control may also be relevant insofar as they suggest that some risks are more freely run, and therefore deserving of less public concern.Although accepting the basic legitimacy of these positions, Sunstein does ‘question the claim that qualitative factors of this kind explain all or even much of people’s disagreement with experts’, arguing that ‘experts are more likely to be right than are ordinary people’.

I believe that for most people, reactions to risks are a product of a rapid, largely intuitive assessment, not based on a careful sorting of the consequences of exposure. Of course that assessment depends in significant part on what concerns experts, the statistical magnitude of the risk at issue.

A rough sense of the magnitude of the risk certainly plays a role in producing affect. And indeed nothing in the data is inconsistent with the possibility that people fear certain risks because they have a general impression that they are statistically large, and that this fear helps to explain their rankings. If so, people will naturally rank the risks they most fear as worse, on the qualitative dimensions, than risks that they fear least. Notice that on this view, people’s rankings on the qualitative judgments are not the reason for their relative rankings of risk. On the contrary, their general impression of statistical magnitude is doing most of the work ...

Certainly it is puzzling to find that people treat as quite serious dangers that are microscopically small as a statistical matter, while risks that are statistically much larger are treated as ‘just a part of life’. No doubt it is possible that people’s judgments about risk severity are a product of some of the more qualitative considerations ... But it is also possible that an apparently rich judgment that a certain risk is severe, or not severe, depends not on well considered judgments of value, but instead on a rapid intuitive judgment, on a failure to see that tradeoffs are inevitably being made, on heuristic devices that are not well-adapted to the particular context, or instead on a range of confusing or confused ideas that people cannot fully articulate.

When people say, for example, that the risk of nuclear power is very serious, they might be responding to their intense visceral concern. The affect associated with nuclear power is, for many people, quite negative, and that affect operates as a heuristic for a judgment of the seriousness of the risk.

As I have said, the affect, and the judgment, might well be based, at least in part, on (uninformed) statistical judgments about likely lives at risk and on people’s failure to see (as they do in other contexts) that that risk is accompanied by a range of social benefits ...

A Mixed Verdict

I have been claiming, not that qualitative factors are irrelevant to ordinary perceptions of risk, but that the same evidence said to support ‘rival rationality’ might reflect simple errors of fact ... Where does this leave us? Many of the disagreements between experts and ordinary people stem from the fact that experts have more information and are also prepared to look at the benefits as well as the risks associated with controversial products and activities. To the extent that experts focus only on the number of lives at stake, they are genuinely obtuse.

It is reasonable to devote special attention to dangers that are hard to avoid, or accompanied by special suffering, or faced principally by children. But there is no ‘rival rationality’ in taking these factors into account. On the positive side, what is needed is more empirical work to determine the extent to which ordinary risk perceptions are based on errors or instead on values.

On the normative side, we need to think more clearly about the nature of concepts like ‘dread’, ‘involuntary’, and ‘uncontrollable’. With respect to policy, what is needed is incorporation of people’s values, to the extent that they can survive a process of reflection.


5. Ulrich Beck, Risk Society: Towards a New Modernity (Sage, 1992).

6. See, for example, Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (Harvard University Press, 1993).

7. See, for example, the discussion of the ‘social dimension’ of risk in Department of the Environment, Food and Rural Affairs (DEFRA), Guidelines for Environmental Risk Assessment and Management (available at


8. Ibid., para. 3.3.

9. See Chauncey Starr, ‘Social Benefit Versus Technological Risk’ (1969) Science 1232; Paul Slovic, The Perception of Risk (Earthscan, 2000).

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