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The Internationalism of American Federalism: Missouri and Holland (Earl F. Nelson Memorial Lecture), 73 Missouri Law Review 1105 (2008)


In many countries in the world, concerns about the risks of injury from various sources are taken into account through regulatory regimes clustered under an approach called "the precautionary principle." The idea is often credited to work related to consumer and environmental protection that was begun in Germany in the 1970s. Today, one finds the commitment to using the "precautionary principle" codified in legislation in Europe. For example, the Swedish Unified Environmental Code of 1998 states that "precautionary measures [should] be undertaken as soon as there is reason to believe that an activity or measure can cause harm or inconvenience with respect to human health or to the environment." Transnational provisions within the European Union have also relied on the precautionary principle when shaping regulation. In contrast, when assessing potential environmental or consumer harms in the United States, national policies have tended to focus on what is called "risk assessment" or "risk analysis," aimed at providing a utilitarian weighing of costs and benefits.

But not San Francisco. In 2003, that city's Board of Supervisors concluded that, in light of its residents' rights to a "healthy and safe environment," it was time to create a new environment code that expressly referred to and incorporated the international "Precautionary Principle" (in that capitalized format) into local law. As the ordinance explains, the city's Precautionary Principle imposes many duties and requires consideration of alternatives that impose "less hazardous options" so as to do as little damage as possible to human health and the environment. To implement this obligation, in 2005, San Francisco's Board of Supervisors concluded that it would use "its power to make economic decisions involving its own funds as a participant in the marketplace . . . consistent with its human health and environmental policies." To do so, and consistent with its "Precautionary Principle," manufacturers were told to disclose the alternative substances that could have been used in the creation of various products.

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