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Regulating Catastrophic Risks by Standards

Published online by Cambridge University Press:  20 January 2017

Marta Simoncini*
Affiliation:
Administrative Law, University of Pisa. E-mail:

Extract

This article analyses the role played by standards of protection in the regulation of catastrophic risks. It examines how to protect people against the occurrence of catastrophic events, considering that the related risk is highly uncertain and difficult to predict using rational methodologies. In this perspective, the article focuses on environmental risks and terrorist threats affecting common goods – namely environment and security – areas where any damage is susceptible to producing ruinous effects and huge casualties. Both natural and man-made disasters are capable of altering the normal legal relations that States are institutionally to ensure to their citizens. Therefore, the severity of the consequences of catastrophic events cannot be ignored, despite the low probability of their occurrence. However, in the absence of emergencies, exceptional measures may be adopted as a means of altering the legal framework, and thus the enjoyment, of fundamental freedoms and priorities in the allocation of public resources. No precautionary approach can escape from rational reflections about the opportunity-cost of any action, the cost-benefit analysis of countermeasures and the proportionality of every regulatory decision. In order to understand how to face those “low probability – high cost” risks, the article considers a specific method of regulating risks by resorting to standards of protection. By using thresholds of alarm, public administrations can decide upon best-fit countermeasures that will correspond to specific risk characterisations. To this end, the article analyses the administrative process of formulating standards and how they enable uncertain risks to be managed, thus promoting the development of a sound and accountable administration.

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Copyright © Cambridge University Press 2011

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References

1 See Comar, C.L., “Risk: A Pragmatic De Minimis Approach”, 203 Science (1979), p. 309 CrossRefGoogle ScholarPubMed. Identifying the area of the relevant risk to be regulated in those phenomena where control could produce benefits would not be easily avoided, and that would not be rare and of small proportion; the author admits that catastrophic risks fall outside the category of significant risk, with serious consequences (“100 per cent chance of harm”) for the parts eventually affected. Showing the need to rationalise risk regulation in order to improve both the efficiency in the use of resources and the effectiveness in the improvement of health and welfare, the author must recognise a gap in his model, which is the logical impossibility to give a coherent protection from low probability-high loss risks.

2 The notion of significant risk is based on an efficiency assessment, according to which the regulation, when faced by the impossibility of eliminating risks, should be focused on their reduction to the extent to which the costs do not exceed the benefits, avoiding any inefficient regulation (that S. Breyer called the “tunnel vision” or “the last 10 per cent” regulation). See in the leading case in American case-law AFL-CIO v. American Petroleum Institute, 448 US 607 (1980); but also Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991); United States v. Ottati & Goss, Inc., 900 F.2d 429 (1st Cir. 1990). The EU system does not endorse the zero-risk approach as well, and provides that the level of protection against risks should be based on a case by case analysis of the severity of the threat to human health, the degree of reversibility of its effects, the possibility of delayed consequences and the perception of the menace based on available scientific data. See in particular CFI, Pfizer Animal Health v. Council, Case T-13/99, [2002] ECR II-3305, paras. 145–146, 153; CFI, Alpharma v. Council, Case T-70/99, [2002] ECR II-3495, paras. 157–159, 165–166; see also ECJ, Bellio F.lli Srl, Case C-286/02, [2004] ECR, para. 58; ECJ, Safety High-Tech, Case C-284/95, [1998] ECR I-4301, para. 49. In the literature see Ricci, P.F. and Molton, L.S., “Risk and Benefit in Environmental Law”, 214 Science (1981), pp. 10961097 CrossRefGoogle ScholarPubMed; Breyer, S., Breaking the Vicious Circle. Toward Effective Risk Regulation (Cambridge, Mass., 1993), pp. 1119 Google Scholar; Majone, G., Dilemmas of European Integration (Oxford: Oxford University Press, 2005), pp. 133–135CrossRefGoogle Scholar; A. Alemanno, The Shaping of European Risk Regulation by Community Courts (Jean Monnet Working Paper 18/2008), available on the Internet at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1325770>, pp. 33–36.

3 This approach is shared by EU regulatory system; indeed, the Commission acknowledged the “political responsibility” to “find answers” to “unacceptable risk, scientific uncertainty and public concerns”; see Communication from the Commission 2 February 2000, COM (2000) 1, “on the precautionary principle”, paras. 5–6 (summary) and 1, 6.3.4. Moreover, EU courts settled that scientific evidence is a necessary condition, but not in itself sufficient for the exercise of the regulatory function. As a result, other nonscientific factors, such as interests and values, play a fundamental role in the definition of the tolerable risk. See CFI, Pfizer Animal Health v. Council, Case T-13/99, cit., para. 201; ECJ, United Kingdom v. Commission, Case C-180/96, [1996] ECR I-3903, para. 89. On this point see A. Alemanno, The Shaping of European Risk Regulation by Community Courts, supra note 2, pp. 41–45, who stresses the relevance of such approach in the Hormones dispute between EU and US before the WTO Appellate body (see Appellate Body Report, European Communities-Measures Concerning Meat and Meat Products, WT/DS26/AB/R, WT/DS48/AB/R, 16 January 1998). In this perspective, incorporating the fundamental issue of the right exercise of discretionary power, risks affect the same administrative organisation and action. See Fisher, E., “The Rise of the Risk Commonwealth and the Challenge for Administrative Law”, Public Law (2003), pp. 462466 Google Scholar.

4 For an overview on disaster definition, characteristics and classification see A. Minhans, Disasters and Disaster Management, paper available on the Internet at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1590128> (2010), pp. 1–9. Moreover, on the catastrophic outcomes of risk tradeoffs in regulation see Wharton, F., “Risk Management: Basic Concepts and General Principles”, in Ansell, J. and Wharton, F. (eds), Risk: Analysis, Assessment and Management (Wiley, 1992), pp. 1214 Google Scholar; Little, G., “BSE and the Regulation of Risk”, 64 The Modern Law Review (2001), pp. 735736 CrossRefGoogle Scholar.

5 See Lonergan, S., “Security and Environment”, in Cuff, D.J. & Goudie, A.S. (eds), Global Change (Oxford University Press, 2009), pp. 553554 Google Scholar.

6 More specifically, the UN Resolution 1625/2005 links the prevention of conflicts with the sustainable development and, afterwards the UN Doc. SC/9000 (2007) enhanced the issue of global warming to a relevant issue for the maintenance of peace and security. In the literature see Sindico, F., “Climate Change A Security (Council) Issue?”, 1 Carbon and Climate Law Review (2007), pp. 2934 CrossRefGoogle Scholar.

7 Dyzenhaus, David, “The Permanence of the Temporary: Can Emergency Powers Be Normalized?”, in Daniels, R.J., Macklem, P. and Roach, K. (eds), The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (2001), p. 21 Google Scholar.

8 See G. Majone, “Dilemmas of European Integration”, supra note 2, pp. 132–133. According to the author, this regulatory principle is the American equivalent of the precautionary approach, because it does not involve any consideration of the costs and benefits of regulation.

9 Ackerman, B., “The Emergency Constitution”, 113 Yale Law Journal (2003–2004), p. 1037 Google Scholar.

10 This kind of regulative perspective has been called “catastrophic state”, in order to portray a state which resorts to the administration of disaster as “a form of governance and a way of ruling”, regularly putting at risk the ordinary system of law. From this point of view, the catastrophic state works on completely different premises from the “providential state” based on the solidarity principle, because it rests on the management of disasters, and not on their prevention. See Ophir, A., “The Two-State Solution: Providence and Catastrophe”, 8 Theoretical Inquiries in Law (2007), pp. 123144 Google Scholar.

11 See Sunstein, C.R., “Irreversible and Catastrophic: Global Warming, Terrorism, and Other Problems: Eleventh Annual Lloyd K. Garrison Lecture on Environmental Law”, 23 Pace Environmental Law Review (2005–2006), pp. 856857 Google Scholar. In particular, the author considers the preservation of the capability to choose in terms of an option value, applying a monetary valuation to the public decision-making issue in an environmental context, which is in line with the economic analysis of law. In this perspective, he distinguishes the willingness to pay to use a pristine area (use value) from the willingness to pay for the option to use the same environmental amenity in the future (option value), basing them both on the existence value of the place.

12 The United Nations Conference on Environment and Development, held in Rio de Janeiro, 3-14 June1992, adopted the Rio Declaration on Environment and Development which states in Principle 15 that “in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

13 See C.R. Sunstein, “Irreversible and Catastrophic”, supra note 11, pp. 13–15.

14 On the application of the precautionary principle in the EU see COM (2000) 1, cit. (in particular para. 6.4 on the reversal of the burden of proof). Moreover, in the case-law see ECJ Sandoz BV, Case 174/82, [1983], ECR 2445; ECJ, National Farmers’ Union et al., Case C-157/96, [1998] ECR I-2211; ECJ, United Kingdom v. Commission, Case C-180/96, [1998] ECR 3903; ECJ, Association Greenpeace France et al., Case C-6/99, [2000] ECR I-1651. However, it is worth noting that the EFTA Court played a fundamental role in the definition of the content of the precautionary principle in the case EFTA Surveillance Authority v. Norway, E-3/00, [2001] EFTA Court Report 2000/2001, 73, at paras. 30–31. Its acknowledgement as a general principle of the EC legal order occurs in the case CFI, Artegodan et al. v. Commission, Case T-74/00, [2002] ECR II-4945 and in the case CFI, Solvay Pharmaceuticals v. Council, T-392/02, [2003] ECR II-1825. In the literature see, among others, A. Alemanno, The Shaping of the Precautionary Principle by European Courts: From Scientific Uncertainty to Legal Certainty (Bocconi Legal Studies Research Paper No. 1007404, 2007), available on the Internet at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1007404>, pp. 1–13; E. Fisher, Opening Pandora’s Box: Contextualising the Precautionary Principle in the European Union (Oxford Legal Studies Research Paper No. 2/2007), available on the Internet at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956952>, pp. 1–43; Fisher, E., Jones, J. and von Schomberg, R. (eds), Implementing the Precautionary Principle. Perspectives and Prospects (Elgar, 2006)CrossRefGoogle Scholar; De Leonardis, F., Il principio di precauzione nell’amministrazione del rischio (Giuffrè, 2005)Google Scholar; de Sadeleer, N., Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press, 2002)CrossRefGoogle Scholar; Majone, G., “What Price Safety? The Precautionary Principle and its Policy Implications”, 40(1) Journal of Common Market Studies (2002), pp. 89109 CrossRefGoogle Scholar.

15 See C.R. Sunstein, “Irreversible and Catastrophic”, supra note 11, p. 6.

16 See Rawls, J., A Theory of Social Justice (revised ed., Harvard University Press, 1999), pp. 134135 Google Scholar. In particular, the author recommends the use of the maximin principle in the case of uncertain risks with potential catastrophic outcomes when the costs of resorting to the principle are relatively indifferent. On this perspective, see C.R. Sunstein, “Irreversible and Catastrophic”, p. 880.

17 C.R. Sunstein, ibid., pp. 893–894.

18 See Posner, R.A., Catastrophe: Risk and Response (New York: Oxford University Press 2004), p. 56 Google Scholar.

19 See R.A. Posner, “Castastrophe”, supra note 18, pp. 176–184; id., “Efficient Responses to Catastrophic Risk”, 6 Chicago Journal of International Law (2005–2006), p. 523. More precisely, the author considers that expected cost (C) is the mathematical product of probability (P) and losses (L), according to the formula C = PL.

20 In this perspective see Knight, F., Risk, Uncertainty and Profit (Italian edition, Florence: La Nuova Italia, 1960), pp. 233–234Google Scholar. The author claims that in the case of risks – whose probabilities are known – the distribution of outcomes can be inferred by grouping (“consolidating”) similar instances on the basis of a priori calculation or statistics; on the contrary, in uncertain situations – that is, where probabilities are unknown – this grouping strategy is not possible, because every case is unique by definition.

21 See A. Berger, C. Brown, C. Kousky and R. Zeckhauser, Five Neglects: Risk Gone Amiss, paper available on the Internet at <http://www.hks.harvard.edu/fs/rzeckhau/Five_Neglects.pdf>, p. 3. Moreover, about emotion premium in the case of probability neglect see C.R. Sunstein and R.J. Zeckhauser, Overreaction to Fearsome Risks, paper available on the Internet at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1319881>, pp. 7–9; C.R. Sunstein and R.J. Zeckhauser, Dreadful Possibilities, Neglected Probabilities, paper available on the Internet at <http://www.hks.harvard.edu/fs/rzeckhau/Sunstein4-6-09.pdf> (forthcoming). As it concerns consequence neglect in the case of virgin risks, cf. C. Kousky, J. Pratt and R.J. Zeckhauser, Virgin Versus Experienced Risks, paper available on the Internet at <http://www.hks.harvard.edu/fs/rzeckhau/kousky-pratt-rjz-revised.pdf>.

22 See Posner, R.A., “Book Note: The Days After Tomorrow: Catastrophe: Risk and Response” (New York: Oxford University Press, 2004)Google Scholar, in 118 Harvard Law Review (2005), pp. 1343–1344.

23 See R.A. Posner, “Book Note”, supra note 22, pp. 200–244.

24 On the relation between opportunity-cost and precautionary principle see G. Majone, “What Price Safety?”, supra note 14, p. 101.

25 See Robertson v. Mathow Valley Citizens Council, 490 US 332, 354–356 (1989).

26 See Stewart, R.B., “The Reform of American Administrative Law”, 88 Harvard Law Review (1974–1975), pp. 17231790 Google Scholar, who reckons the American rule-making process is an administrative proceeding based on interest representation. See also id., “Il diritto amministrativo del XXI secolo”, 1 Rivista trimestrale di diritto pubblico (2004), p. 10; id., “U.S. Administrative Law: A Model for Global Administrative Law”, 68 Law and Contemporary Problems (2005), pp. 74–75. It should also be pointed out that removing the individual concern clause from the requirements of any natural and legal person to challenge regulations, the Treaty on the Functioning of the European Union (TFEU) broadened the private chances to sue for the annulment of normative acts (see Article 263 (4) TFEU, which amended Article 230 (4) ECT). In order to reduce the potential growth in litigation, the regulator should necessarily widen the participation to regulatory proceedings and to some extent it would get closer to the American interest representation model. See Meuwese, A., Schuurmans, Y. and Voermans, W., “Towards a European Administrative Procedure Act”, 2 Review of European Administrative Law (2009), pp. 45, 30–31CrossRefGoogle Scholar. On the present features of public participation in EU see Communication from the Commission 11 December 2002, COM (2002) 704, “towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission”.

27 In this regard see COM (2000) 1, cit., paras. 6.3.1 and 6.3.4, which temper the precautionary approach with the assessment of the proportionality of the regulatory action and the cost-benefit analysis.

28 Making the RIA a systemic part of the regulatory process requires rationalisation in the allocation of the public resources. To this end, in 2005 the European Commission introduced a proportionality requirement in impact analysis, so that its deepness (and, in particular, the level of public participation and the accuracy of its findings) should be commensurate with the significance of the regulatory action and the range of the expected effects. This way RIA is strictly reconnected to the other main goal of better regulation, the administrative simplification. See Communication from the Commission to the Council and the European Parliament 16 March 2005, COM (2005) 97, “Better Regulation for Growth and Jobs in the European Union”, para. 2A and Annex I; European Commission, Impact Assessment Guidelines, 15 June 2005, SEC (2005) 791, para. 5. Moreover, the proportionality requirement has been implemented by Impact Assessment (IA) Guidelines, 15 January 2009, SEC (2009) 92, which bases the significance of impacts on the type and the content of regulatory initiative (see para. 3.2). On the proportionate level of analysis for IA see also A. Alemanno, “The Better Regulation Initiative at the Judicial Gate: A Trojan Horse within the Commission's Walls or the Way Forward?”, 15 European Law Journal (2009), note 76, available on the Internet at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297170>; Renda, A., Impact Assessment in the EU. The State of the Art and the Art of the State (Brussels: CEPS, 2006), pp. 9196 Google Scholar; J. Wiener, Better Regulation in Europe (Duke Law School Legal Studies Paper No. 130, 2006), available on the Internet at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=937927>, pp. 20, 36.

29 J. Wiener defines this approach to regulation as a “warm analysis”, because it focuses on regulatory impacts and tradeoffs, mitigating possible overreaction to risks and at the same time being not tied up to rigid measurements of cost and benefits. See id., “Better Regulation in Europe”, supra note 28, pp. 33–38.

30 In the literature on better regulation see, among others, Meuwese, A.C.M., Impact Assessment in EU Lawmaking (Kluwer Law International, 2008)Google Scholar; Allio, L., “Better regulation and impact assessment in the European Commission”, in Kirkpatrick, C. and Parker, D. (eds), Regulatory Impact Assessment. Towards Better Regulation? (Edward Elgar), pp. 72105 Google Scholar; Weatherill, S. (ed.), Better Regulation (Hart Publishing, 2007)Google Scholar; Radaelli, C.M., “Whither Better Regulation for the Lisbon Agenda?”, 14 Journal of European Public Policy (2007), pp. 190207 CrossRefGoogle Scholar; Radaelli, C.M. and De Francesco, F., Regulatory Quality in Europe: Concepts, Measures, and Policy Processes (Manchester University Press, 2007)Google Scholar; Black, J., “Tensions in the Regulatory State”, Public Law (2007), pp. 5873 Google Scholar; Baldwin, R. and Cave, M., Understanding Regulation. Theory, Strategy and Practice (Oxford University Press, 1999)Google Scholar.

31 C.M. Radaelli and A.C.M. Meuwese, Better Regulation in the European Union. The political economy of impact assessment, paper available on the Internet at <http://centres.exeter.ac.uk/ceg/research/riacp/documents/The%20Political%20Economy%20of%20Impact%20Assessment.pdf>, pp. 1, 8, 10. In particular, the authors analyse the evolution of better regulation and deem it a tool that providing (more or less binding) rules about rule-making, becomes a sort of constitutional method of administration.

32 Breyer, S., Regulation and Its Reform (Cambridge, MS: Harvard University Press, 1982), pp. 103107 Google ScholarPubMed; see also R. Baldwin and M. Cave, “Understanding Regulation”, supra note 30, pp. 118–124.

33 A further classification of standards is proposed by McEldowney, J.F. and McEldowney, S., Environmental Law & Regulation (Oxford: Oxford University Press, 2001 (reprinted 2009)), pp. 5, 11–12Google Scholar, who in the control of pollution distinguish the “quality standards” that set directly environmental goals – namely, fixing the maximum level of pollution in the environment – from the source-related standards which fix specific thresholds of concentration of pollution (“emission standard”), stipulate the means of production (“process standards”) or define the characteristics of a product (“product standard”).

34 See Article 23 Directive of the European Parliament and of the Council 12 March 2001, 2001/18/EC, “on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC”, providing a safeguard clause, that introduces a process aimed at restricting or prohibiting the use and the sale of GMO in the case of risk to human health and the environment.

35 Article 50–52 Regulation of the European Parliament and of the Council 28 January 2002, 178/2002/EC, “laying down the general principles and requirements of food law, establishing the European Food Law Safety Authority and laying down procedures in matters of food safety”, that lays down a rapid alert system.

36 See recitals 3 and 11 and Article 2(2) of the Directive of the European Parliament and of the Council 23 October 2007, 2007/60/ EC, “on the assessment and management of flood risks”. More precisely, the risk assessment stage is based on the arrangement of flood hazard maps and flood risk maps (Article 6) for those areas where a potential significant flood risk is likely to occur after a preliminary flood risk assessment founded on the available information (Articles 4–5). On this ground, flood risk management plans, focused on prevention, protection, preparedness and early warning systems, are established (Articles 7–8).

37 In this perspective, Regulation 178/2002/EC provides also the general plan for crisis management (Article 55–57) which specifies (Article 55, para. 2) “the types of situation involving direct or indirect risks to human health deriving from food and feed which are not likely to be prevented, eliminated or reduced to an acceptable level by provisions in place or cannot adequately be managed solely by way of the application of Articles 53 and 54” regarding emergency regulation.

38 See Directive of the European Parliament and of the Council 21 May 2008, 2008/50/EC, “on ambient air quality and cleaner air for Europe”, which provides that at the “informational threshold” (Article 2, point 11) and the “alert threshold” (Article 2, point 10, and Article 3, para. 2) immediate information to the public and to the Commission (Article 13), and the arrangement of short-term action plans (Article 24) in order to reinstate the standard level of risk. The directive defines also the “margin of tolerance” (Article 2, para. 7) that is the acceptable percentage of the limit value (the guaranteed standard of protection, regulated at Article 2, para. 5) by which that value may be exceeded (Article 22-23). It is worth noting that this regulation represents a rationalisation and an updating of the principles and the requirements already laid down in the directive of the Council 27 September 1996, 1996/62/EC, “on ambient air quality assessment and management”, in the directive of the Council 22 April 1999, 1999/30/EC, “relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air”, in the directive of the European Parliament and of the Council 16 November 2000, 2000/69/ EC, “relating to limit values for benzene and carbon monoxide in ambient air”, and in the directive of the European Parliament and of the Council 12 February 2002, 2002/3/EC, “relating to ozone in ambient air”. In a similar way, the directive of the European Parliament and of the Council 25 June 2002, 2002/49/CE, “relating to the assessment and management of environmental noise”, defines at Article 3, letter s), the “limit value” as the noise tolerability’s standard, the exceeding of which causes competent authorities to consider or enforce mitigation measures (Article 8, para. 2) and to inform the public about the arrangement of strategic noise maps and action plans (Article 9).

39 The target value is a concentration level fixed with the aim of avoiding, preventing or reducing harmful effects on human health and the environment as a whole, to be attained where possible over a given period; on air quality see Article 2, point 9, and Directive 16, 2008/50/EC. By availing itself of another specific language, the environmental noise regulation states a target value in the “strategic noise map”, a plan aimed at determining the global assessment of noise exposure in a given area; see Article 3, letter r), and Directive 7, 2002/49/EC.

40 See, in particular, Article 196 TFEU on the cooperation in the field of civil protection and Article 222 TFEU stating the solidarity clause between the Union and its Member States. Moreover due reference is to be made to Article 4 and 6 TFEU on the principal areas of shared competence between the Union and the States.

41 See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 23 February 2009, COM (2009) 82, “a Community approach on the prevention of natural and man-made disasters”. In particular, this strategy “outlines specific measures to boost disaster prevention in the short term” (para. 5), providing the creation of an inventory of information on disasters (para. 3.1.1), the spreading of best practices (3.1.2), the developing of guidelines on hazard/risk mapping (para. 3.1.3) and promoting the coordination among the actors and the policies involved in “the disaster management cycle” (paras. 3.2 and 3.3). Moreover, a previous report from the European Commission DG-Environment, focusing on a long term approach to catastrophic risk regulation, suggests the introduction of a new framework directive aimed at address prevention of national as well as cross-border impacts disasters. See European Commission DG Environment, Assessing the Potential for a Comprehensive Community Strategy for the prevention of Natural and Manmade Disasters, Final Report, March 2008, pp. 18–19, 85–90.

42 In this regard it should be pointed out that in accordance with the principle of subsidiarity, EU has also strengthened the emergency cooperation between the Community and its Member States in case of major crisis and imminent threats, in order to meet emergencies in a more suitable manner. See Council resolution 8 July 1991, 91/C198/01, “on improving mutual aid between Member States in the event of natural and technological disaster”; Council decision 9 December 1999, 1999/847/EC, “establishing a Community action program in the field of civil protection”; Council decision 23 October 2001, 2001/792/EC, “establishing a Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions”.

43 See Savage, C., Takeover. The Return of the Imperial Presidency and the Subversion of American Democracy (New York: Little, Brown and Company, 2007), pp. 164–165Google Scholar. In particular, the author emphasises that the American administration had succeeded in claiming the existence of weapons of mass destruction in Iraq thanks to the abuse of power to make inaccessible certain administrative documents by Vice President R.B. Cheney, who exercised this power (for the first time in the US history) on the basis of the Presidential Executive Order l, 25 March 2003, n. 13292, “further Amendment to Executive Order 12958, as amended, Classified National Security Information”.

44 See Présentation du nouveau plan gouvernemental de vigilance, de prévention et de protection face aux menaces d’actions terroristes: Vigipirate, 2003, available on the Internet at <http://www.auvergne.pref.gouv.fr/pdf/plan_vigipirate.pdf>.

45 See sec. 3.4 Manual on Volcanic Ash, Radioactive Material and Toxic Chemical Clouds, ICAO, Doc 9691, AN/954, II ed., 2007.

46 The proposal was discussed and endorsed by the extraordinary meeting of Ministers of Transport, 19 April 2010, because Member States maintain their competence over the safety of their airspaces. It establishes three zones depending on their degree of contamination: In the first one (“located in the central nucleus of the emissions”) being the highest degree of ash concentration, the safety goal can be achieved only maintaining the ban on flights (“a full restriction of operations”); in the second area, being there “still amounts of ash”, the possibility to pursue air traffic operations shall be decided “in a coordinated manner” by Member States; the third zone, being “not affected by the ash”, is subjected to no restrictions. However, even before the ash crisis, EU provided a regulation aimed at developing an integrated approach to air traffic management; see Regulation of the European Parliament and of the Council 10 March 2004, 2004/549/EC, “laying down the framework for the creation of the single European sky (the framework Regulation)”, and Regulation of the European Parliament and of the Council 21 October 2009, 2009/1070/EC, “amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system” (second single sky package – SES II). It is worth noting that in the aftermath of the ash crisis, the Commission seemed to milk the occurred emergency in order to push forward the implementation of the SES II. For a reconstruction of the volcanic ash case and its main regulatory issues see A. Alemanno, The European Regulatory Response to the Volcanic Ash Crisis between Fragmentation and Integration, 2 European Journal of Risk Regulation (2010), pp. 101–106.

47 In this case RIA would have at least reduced contentions between airlines and regulatory science about the correct definition of safety thresholds in emergency conditions, because it would have pushed the airline industry to participate in risk regulation, demonstrating and challenging scientific assessments in that proper venue. On the airline executives’ approach to science in the volcanic ash crisis see Branningan, V.M., “Alice's Adventures in Volcano Land: The Use and Abuse of Expert Knowledge in Safety Regulation”, 2 European Journal of Risk Regulation (2010), pp. 107113 CrossRefGoogle Scholar.

48 On this structural limit of the model see also Hutter, B., “In catostrophe’s shadow”, 19 Risk & Regulation (2010), p. 3 Google Scholar; Id., “Risk regulation and the anticipation of natural disasters”, ibid., pp. 6–7; L. Clarke and H. Molotch, “Scientists as Disaster Warning Systems”, ibid., pp. 12–13.

49 On this perspective on the environmental issues see Goudie, A.S., “Uncertainty”, in Cuff, D.J. and Goudie, A.S. (eds), Global Change, pp. 605606 Google Scholar.

50 On this perspective see Massera, A., “Criterio di economicità e di efficacia ed efficienza”, Comment to Article 1 (1) of the Italian Administrative Procedure Act (L. 241/1990), in Sandulli, A.M. (ed.), Codice del procedimento amministrativo (Giuffrè, 2011), pp. 4445 Google Scholar.

51 In the Italian literature see F. Merusi, “Il coordinamento e la collaborazione degli interessi pubblici e privati dopo le recenti riforme”, in Diritto amministrativo (1993), pp. 22–23. The author considers that the requirement of coordination in the public administration derives from the interaction between the pluralism of public interests and the constitutional uniqueness of the executive power, exercised by the public administration.

52 On this point, F. Merusi, ibid., pp. 23–24, identified three distinct roles played by other public interests in an administrative proceeding which is developed around a principal public interest, namely as (1) mere factual assumptions with regard to the decision-making process; (2) elements of the fact-finding stage, which allows the individuation of other public interests and the definition of a consistent relation between them and the principal public interest (pursued in the administrative process); and (3) dialectic factors in the administrative decision-making.

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Regulating Catastrophic Risks by Standards
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