Risk Regulation and Administrative Constitutionalism

Erscheinungsjahr 2007
ISBN: 978-1-84113-033-0
Verlag: Bloomsbury 3PL

Buch, Englisch, 256 Seiten, Format (B × H): 161 mm x 240 mm, Gewicht: 646 g

Over the last decade the regulatory evaluation of environmental and public health risks has been one of the most legally controversial areas of contemporary government activity. Much of that debate has been understood as a conflict between those promoting 'scientific' approaches to risk evaluation and those promoting 'democratic' approaches. This characterization of disputes has ignored the central roles of public administration and law in technological risk evaluation. This is problematic because, as shown in this book, legal disputes over risk evaluation are disputes over administrative constitutionalism in that they are disputes over what role law should play in constituting and limiting the power of administrative risk regulators. This is shown by five case studies taken from five different legal cultures: an analysis of the bifurcated role of the Southwood Working Party in the UK BSE crisis; the development of doctrines in relation to judicial review of risk evaluation in the US in the 1970s; the interpretation of the precautionary principle by environmental courts and generalist tribunals carrying out merits review in Australia; the interpretation of the WTO Sanitary and Phytosanitary Agreement as part of the WTO dispute settlement process; and the interpretation of the precautionary principle in the EU context. A strong argument is thus made for re-orienting the focus of scholarship in this area.

Autoren/Hrsg.

Fisher, Elizabeth

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)
• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Verwaltungs-, Umwelt- und Gesundheitsrecht
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Verwaltungs-, Umwelt- und Gesundheitsrecht

Inhaltsverzeichnis

Introduction
1: Risk Evaluation Through the Lens of Administrative Constitutionalism
I THE SCIENCE/DEMOCRACY DICHOTOMY IN REGULATING TECHNOLOGICAL RISK
A Technological Risks
B The Science/Democracy Dichotomy
C The Role of Law
D Problems with the Science/Democracy Dichotomy
II TECHNOLOGICAL RISK, PUBLIC ADMINISTRATION, AND ADMINISTRATIVE CONSTITUTIONALISM
A The Necessary Role of Public Administration
B The Contentious Role of Public Administration, Law and Administrative Constitutionalism

III TWO PARADIGMS OF ADMINISTRATIVE CONSTITUTIONALISM IN THE RISK REGULATION CONTEXT

A The Rational-Instrumental Paradigm

B The Deliberative Constitutive Paradigm

C The Paradigms Compared

IV ADMINISTRATIVE CONSTITUTIONALISM AS A FORM OF LEGAL CULTURE

V AN EXAMPLE: THE PRECAUTIONARY PRINCIPLE AND ADMINISTRATIVE CONSTITUTIONALISM

A The Precautionary Principle

B The Precautionary Principle and the DC and RI Paradigms

C The Precautionary Principle and the Burden of Proof

VI CONCLUSION

Part One: Administrative Constitutionalism in National Legal Cultures

Introduction to Administrative Constitutionalism in National Legal Cultures

I NATURE OF ADMINISTRATIVE CONSTITUTIONALISM

II THE ROLE OF LAW

III THE RELATIONSHIP BETWEEN LEGAL CONCEPTS AND THE REGULATORY REGIMES FOR TECHNOLOGICAL RISK REGULATION

IV CONCLUSION

2: BSE, Expertise and Administrative Constitutionalism: Examining the Role of the Southwood Working Party

I THINKING OF BSE IN TERMS OF ADMINISTRATIVE CONSTITUTIONALISM

II TECHNOLOGICAL RISK REGULATION AND ADMINISTRATIVE CONSTITUTIONALISM IN THE UK: A BRIEF HISTORY

III THE ADMINISTRATIVE CONSTITUTIONALISM CONTEXT OF THE BSE CRISIS

IV THE SOUTHWOODWORKING PARTY

V AFTER SOUTHWOOD

VI CONCLUSIONS

3: Hard Looks and Substantial Evidence: Scope of Review of US Risk Regulation Rulemaking in the 1970s

I SCOPE OF REVIEW AND ADMINISTRATIVE CONSTITUTIONALISM IN HISTORICAL PERSPECTIVE

II ADMINISTRATIVE CONSTITUTIONALISM AND RISK REGULATION REGIMES IN THE EARLY 1970S

III HARD LOOK REVIEW

IV SUBSTANTIAL EVIDENCE AND THE OCCUPATIONAL SAFETY AND HEALTH ACT

V SCOPE OF REVIEW UNDER THE RI PARADIGM

VI REFLECTIONS

VII CONCLUSION

4: The Precautionary Principle and Merits Review in Australia

I AUSTRALIAN ENVIRONMENTAL LAW AND THE DC PARADIGM OF ADMINISTRATIVE CONSTITUTIONALISM

II THE PRECAUTIONARY PRINCIPLE IN AUSTRALIAN ENVIRONMENTAL LAW

III GENERALIST TRIBUNALS, ENVIRONMENTAL COURTS, AND MERITS REVIEW

IV DC INTERPRETATIONS OF THE PRECAUTIONARY PRINCIPLE

V RI INTERPRETATIONS OF THE PRECAUTIONARY PRINCIPLE

VI THE SEARCH FOR A UNIFORM INTERPRETATION

VII CONCLUSIONS

Part Two: Administrative Constitutionalism and Risk Regulation Beyond the State

Introduction to Administrative Constitutionalism and Risk Regulation Beyond the State

I THE WTO AND EU: AN OVERVIEW

II THE ROLE OF LAW

III GOVERNANCE AND ADMINISTRATIVE CONSTITUTIONALISM

IV CONCLUSION

5: Risk Assessment, The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism

I THE WTO SPS AGREEMENT

II THE SPS AGREEMENT THROUGH THE LENS OF ADMINISTRATIVE CONSTITUTIONALISM

III EC-HORMONES AND THE DEFINITION OF RISK ASSESSMENT

IV DEFINING RISK ASSESSMENT IN DISPUTES SINCE EC-HORMONES: THE INADVERTENT PURSUIT OF THE RI PARADIGM

V THE PROBLEM WITH THE WTO SPS JURISPRUDENCE ON ARTICLE 5.1

VI FUTURE LINES OF INQUIRY

VII CONCLUSION

6. The Precautionary Principle and Administrative Constitutionalism in the European Union: Asking Some Difficult Questions

I CONTEXTUALISING THE PRECAUTIONARY PRINCIPLE IN THE EUROPEAN UNION

II OVERLAPS, INTERRELATIONSHIPS AND ADMINISTRATIVE INTEGRATION

III THE CASE LAW BEFORE THE COMMISSION'S COMMUNICATION

IV THE COMMISSION'S COMMUNICATION ON THE PRECAUTIONARY PRINCIPLE

V CASE LAW AFTER THE COMMISSION'S COMMUNICATION

VI REFLECTIONS

VII CONCLUSION

Conclusions

Chapter Seven: Beyond the Science/Democracy Dichotomy

I A SUMMARY OF ANALYSIS

II SOME PRELIMINARY FINDINGS

III NEXT STEPS

IV CONCLUSION

Bibliography

Index

Über Autor(innen)

Elizabeth Fisher is a Reader in Environmental Law at the University of Oxford and Tutor in Law at Corpus Christi College, Oxford.