Integrating Scientific Expertise into Regulatory Decision-Making. Social Decision-Making under Conditions of Scientific Controversy, Expertise and the Precautionary Principle

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EUI WORKING PAPERS

H i

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EUI Working Paper RSC No. 96/6 Godard: Integrating Scientific Expertise into

Regulatory Decision-Making.

Social Decision-Making under Conditions of Scientific Controversy, Expertise and the Precautionary Principle © The Author(s). European University Institute. Digitised version produced by the EUI Library in 2020. Available Open Access on Cadmus, European University Institute Research

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The R o b o t Schuman Centre was set up by the High Council o f the EUI in 1993 to carry out disciplinary and interdisciplinary research in the areas o f European integration a id public policy in Europe. W hile developing its own research projects, the Centre works in close relation with the four departments o f the Institute and supports the specialized working groups organized by die researchers. © The Author(s). European University Institute. version produced by the EUI Library in 2020. Available Open Access on Cadmus, European University Institute Research

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EUROPEAN UNIVERSITY INSTITUTE, FLORENCE

ROBERT SCHUMAN CENTRE

Integrating Scientific Expertise

into Regulatory Decision-Making

S o c ia l D e c isio n -M a k in g

u n d e r C o n d itio n s o f S c ie n tific C o n tr o v e r sy , E x p e r tise an d th e P r e ca u tio n a r y P r in c ip le

OLIVIER GODARD

A Working Paper written for the workshop Integrating Scientific Expertise into

Regulatory Decision-Making, organized by Christian Joerges and Karl-Heinz Ladeur,

held with the support of the Robert Schuman Centre at the European University Institute on 5-7 October 1995.

EUI

Working Paper

RSC

No.

96/6

BADIA FIESOLANA, SAN DOMENICO (FI)

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No part of this paper may be reproduced in any form without permission of the author.

European University Institute Badia Fiesolana I - 50016 San Domenico (FT) Italy © The Author(s). European University Institute. version produced by the EUI Library in 2020. Available Open Access on Cadmus, European University Institute Research

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Abstract

1. Introduction

2. Decision-makingunderconditionsofscientificcontroversy:

VARIABLES AND STYLIZED FACTS

2.1. Four characteristic variables o f ‘controversial risks'

2.2. The regulatory process as part of a self-organizational, self-referent, socio-economic process

2.3. A set of stylized facts for a descriptive model

3. Therolesofexpertsintacklingcontroversialrisks 3.1. Constructing a problem relevant for public action 3.2. Constructing a bundle of alternative schemes of action 3.3. Indirect testing of respective positions of social actors 3.4. Preparing an imputation of responsibility

3.5. Structuring data so as to authorize a rationalization of decision-making 3.6. Artificially solidifying an uncertain knowledge through

interdisciplinary and multi-circle dissemination

4. The Precautionary Principle

4.1. A paradoxical position as regards science

4.2. Shifting the burden of proof: the missing content o f the precautionary principle 5. Conclusion References © The Author(s). European University Institute. version produced by the EUI Library in 2020. Available Open Access on Cadmus, European University Institute Research Repository.

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• , © The Author(s). European University Institute. version produced by the EUI Library in 2020. Available Open Access on Cadmus, European University Institute Research Repository.

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E xp ertise and the P recautionary Principle

Ol iv ie r Go d a r d * ' **

Abstract

Integrating scientific inputs into the regulatory process is generally attributed to experts. However, environmental issues are often characterized by an all- pervasive uncertainty and by both scientific and social controversies, which make the experts' task difficult. This paper presents the concept of social decision-making in situations of scientific controversy and examines the implicit but decisive role expected from expertise in such contexts. It also gives some examples of misunderstandings about the very nature o f scientific statements. Since a new principle, the precautionary principle, is said to elicit appropriate responses to uncertainty, we examine the change this may bring about in the relationship between science and decision-making and we test its operational capacity to solve problems on a scientific basis. Our conclusion is that in controversial contexts, the principle has no definite content and is not able to frame a scientifically determined hierarchy of options. Thus, in order for it to be reasonably translated into dealing with practical matters, some effort is required from scientific communities: validation of their expertise should be organized on a collective basis, distinct from the organization o f expertise by public administrations. This scientific expertise should pay close attention to the process of formulating assumptions and building conjectural possibilities, so as to define the boundaries of relevance for action and to establish a gradual scale in the qualification of scientific products which may in turn give authority to precautionary measures to be gradually taken.

' Research Director at CNRS, International Centre for Research on Environment and Development (CIRED), School o f Advanced Studies for Social Sciences (EHESS) - URA CNRS 940, 19 Rue Amélie F-75007 PARIS. Tel: (33) 1.40.62.63.70; Fax: (33) 1.45.55.76.92; E-mail: godard@cired.msh-paris.ff

" An elaborated version o f this paper will be published in: Joerges, Ch./ Ladeur, K.-H. in collaboration with E. Vos (eds.), Integrating Scientific Expertise into Regulatory Decision-

Making -National Experiences and European Innovations, Nomos (forthcoming).

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1. Introduction

Among the many environmental issues currently requiring attention, some are bound to remain scientifically controversial and within non-stabilized state of knowledge for a considerable time to come. However, because of threats of possible large and irreversible damage, some of these issues have nevertheless been placed on the public agenda, without waiting for knowledge to be stabilized. Groups of experts have been called upon to advise on action which should be taken, the type of interventions required and when to make them. On the basis of their advice and reports, decisions have been taken nationally or even internationally. In public presentations and debates, in fact, decisions on whether to act or not to act have been quite frequently said to be based on scientific evidence, as though science were unambiguously forcing action in some way, even within controversial contexts. And more often than not, the ‘storytellers’ o f exemplary cases do not avoid becoming ‘revisionists’ as they develop linear and rational stories full of hard facts, scientific evidence and policy responses to be taken in due course, rather than describing a confused process of strange sequences in which decisions, for example, are made before the events which are supposed to justify them. To what extent this /Vscience-based decision-making process can be held to be valid is highly

iquestionable in several recent cases.'

This is not to deny any role to science or experts. But the roles they have played in these cases need to be examined. Science is an ingredient, but withifT) the gaps and shadows of science, we find choices and approximations that are J typical of the more social ffam ingof issues. It would appear then that the role that experts are tacitly expected to take on is not just that of spokesman regarding the objective qualities of natural or technical systems. This forms one of the topics of this paper.

Going beyond answers to this first question, it seems increasingly difficult to separate the logic of knowledge from that o f action: in scientifically controversial contexts, science is invested with different types of strategic uses for the benefit of political policy or economic interests. It is within this context of the rhetoric o f justification as a response to uncertainty and controversies, that a new principle has recently emerged, the precautionary principle. It first began to be incorporated in soft law and attempts are now being made for it to be translated into operational and binding rules. But what sort of changes will

1 On this general issue o f science, expertise and decision-making, see for instance Smith

and Wynne (1991) and GERMES (1991, 1992).

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this principle bring to the relationships of decision-making with science? This will be a second topic of this paper.

Throughout this contribution, our aim is to draw attention to some stylized facts that may affect common perceptions of the role of scientists and experts in public decision-making. The empirical basis will be extracted mainly from regional and global environmental cases: forest degeneration in Europe, ozone depletion and global warming.

2. Decision-making under conditions of scientific controversy:

VARIABLES AND STYLIZED FACTS

A classical way of looking at the regulatory process assumes a stabilized social and material (technical and natural) world, and an appropriate knowledge base. Experts are supposed to play the key role in identifying the real problems needing resolution and the range o f solutions that can rationally be put into practice. By following experts’ competent recommendations, political decision makers will simply confirm their general commitment to the public good and general interests, defined through general principles (justice...) and aims (preserving public health...). Quite understandably, conflicts may occur, but they are only due to contradictory interests emerging from a common knowledge background about possible states of the world and causal relationships ; they are clashes resulting from divergent projects or, very simply, distributive conflicts. Real-life cases, however, are not so clear-cut. Not only are uncertainties often pervasive in relation to matters targeted by new regulatory efforts, but the context is also non-stabilized as regards the social actors or areas of concern. By contrast, we suggest to propose consideration of an ideal class of problems, named 'controversial risks' (Godard, 1992b, 1993b).

2.1. Four ch aracteristic variables o f ‘con troversial risks'

As opposed to various forms o f regular risks commonly addressed by insurance activities, it is suggested that the ideal class of ‘controversial risks’ is characterized by the position of four variables:

• A predominance o f the scientific and social construction o f issues on

people’s direct perceptions (who had ever heard of the stratospheric ozone

layer before scientists began to warn that it would be depleted by human actions such as supersonic flights or CFC emissions, which would in turn

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result in a greater incidence of skin cancers?); lay people cannot make judgements on these issues, except through the social process of issue building and communication involving scientists, public administration, social groups devoted to specific causes (green NGOs, for example) and the media.

• Interests o f third parties absent from the social scene (foreign countries,

future generations, natural species) or o f non-reducible forms o f collective concerns said to be relevant, at least by some influential actors', requests are

made to include such interests through explicit and specific forms in the decision-making process; thus, public debates involve various and competing interests - people claiming to act as spokesmen for absent third parties and people speaking for actual ‘here and now’ groups. This hybrid composition certainly adds to the complexity, if not confusion, of debates and to the difficulty of resolving the problem by reaching a justifiable decision; for instance, an economic analysis based on methods to reveal the individual preferences of existing people (such as contingent valuation) may have to be combined with ethical discussions about the possible rights of future generations.

• A long-lasting controversial state o f scientific knowledge on critical parts o f

the problem relevant fo r policy-making (causation chains, consequences for

human activities and welfare, time profile of expected changes...); not only are there several contradictory explanations and theories coexisting in any one given moment, but there is also a dynamic of changing equilibrium between these theories as well as of emerging new views which alter the whole landscape, with respect to the process o f causal imputation. Depending on when decision-makers decide to act on a problem, they will not focus on the same causes... By way of example, it will suffice to recall that the ozone alarm began in the 1970s with an attack against supersonic flights, claimed by some US scientists to deplete the ozone layer. Twenty years later, the current scientific view is that these flights, at the altitude at which they would have been performed, would have contributed to increasing ozone density.

• Notably due to potential irreversibility, there is a perception at least among

some social actors, that the problem is a major stake, touching on questions

such as political or national security, public health, historical or cultural identity, group survival, or general enhancement of conditions of life on earth. There is thus a need for immediate and firm action, without waiting for the momentum of certitude. The rational view, i.e. Team first, then act’ has to be partially reversed into ‘act first, then learn’. But on which basis are decision-makers able to decide, and what then is the role of experts?

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Global environmental risks, such as those of the ozone layer or global warming, clearly belong to this latter class, but they are not the only ones: hazardous substances or emissions with potential threats to human health stand in the same class. In these controversial contexts, economic and social interests and strategies have assumed a significant role in the process of building a new institutional and regulatory landscape. This has taken place, not only through traditional forms o f lobbying but also by involving the domain o f science and expertise. For this reason, reconsidering the role o f experts in the overall management of controversial risks may be helpful in elucidating the social processes at work in these contexts.

2.2. The regulatory process as part o f a self-organ ization al, self-referent, socio-econom ic process

What can be observed, unfortunately or not, does not fit with the conditions of relevance of the pure economic model of substantive rationality, which poses full knowledge (deterministic or probabilistic) as a condition of rational action - in this case, rational regulations. Here, actions chosen will interplay with the process of opening and closure of possible courses of evolution (in technical terms, states of nature and actions are not independent). Two variables have a -key role in this regard: a) technological progress: this must be seen as a socially endogenous process,'depending on social rules and actors’ strategies and, thus, on social values and expectations for the future; b) timing of processes: a sharp change in environmental conditions may block the evolutionary process of ecosystems; a slow change may not be disruptivc So the idea of basing decisions on a consistent and independent reality has to be replaced by a broader view of the regulatory process as a self-organizational, self-referent, socio-economic process. Within this perspective, representations ancTreafilies are bound to be intertwined, inducing a process which at the one and the same time produces the reality and facilitates learning from this new reality through interpretation of the signals that real changes seem to give.

Expressing this view in economic terms, we should learn to add the complementary perspective to the standard statement: for example, "this

technology was chosen because it was the most profitable one", should have as

counterpart "this technology became profitable because it was chosen first" - i.e., this technology, made credible by persuasive stakeholders, has attracted an important flow of economic resources to increase its initial productivity and to

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organize the economic and institutional space so as to get the best from it. It is true that every story of this type does not turn out to be a success ; economic and technological development cannot be understood just as automatic self- fulfilling prophecies. There may be physical limitations or obstacles on the road, a contradiction between the time-scale o f the period of investment needed (how long is it necessary to invest before having an operational and competitive technology?) and the time-horizon of investors may emerge, depending on predominant models of economic organisation, and so on.

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Looking at the dynamics of emerging regulations (Seveso directive, new insurance arrangements for accidental pollution o f seas), within this same perspective, jthe notion of the regulatory process as a response to critical events should be extended to include a complementary understanding according to which certain social actors and groups strategically use events as a resoutcejo achieve their aims or, more frequently, to advance some steps towards that achievement. In this case, the course of evolution, apparently obeying contingent events, should be perceived as the progressive achievement of a principal goal connected to some principal vision o f the world. It is for this reason that some events, though catastrophic, remain meaningless for the evolution of institutions and rules, and others, perhaps scaled on a lower grade as regards magnitude, may instead have a critical influence on the process of change.

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2.3. A set o f stylized facts for a descriptive m odel

It is useful to typify some of the facts we can observe in the social process of decision-making under conditions of scientific controversy. In doing so, we may contribute to a modelling of the way this class of controversial risks is tackled.

Scientific warnings given despite a non-stabilized state o f basic knowledge

Some scientists launch warnings to public authorities and offer opinions on possible current and future detrimental trends of evolution and threats 2

2 Laurent Thevenot (1985) introduced the concept o f ‘investment in forms’ to embrace

types of investments required to establish and maintain new forms o f organizations and conventions, implying the constitution and stabilization o f networks o f actors whose behaviour is to be aligned; examples are the development o f new types o f accounting (think of the challenge o f setting environmental accounts) and audits, a framework for collective negotiations, a branch business organization, and so on.

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affecting the biophysical environment (atmosphere, forests, biodiversity) or public health; they are presented as potentially very damaging and implying human responsibility, either directly as a result o f human activities, or indirectly because human technical capability exists to change the course of events. This dimension of responsibility is critical: to what extent can the observed phenomena be said to be 'natural' or attributable to human activities?3 If some human responsibility is involved, there are inevitably heated debates on its attribution. Thus, for instance, intense discussions have taken place on the greenhouse gases issue, concerning the level of deforestation and the burning of the Amazonian forest, or the methods used for calculating emissions from various countries.

Another point of interest here is that standard prerequisites of probabilities calculations cannot be satisfied for this class o f risks, since 'states of the world' are not well-identified (depending on actions, to some degree), do not belong to the same basic worlds and their list is continuously changing.

The jump o f scientific controversies onto the public agenda

The very existence of scientific controversies is quite a normal start of scientific affairs. However, scientific debates used to concern only a relatively closed scientific community and were conducted according to specific professional procedures and rules. What seems typical of the recent period is that certain scientific controversies are rapidly appearing on the public agenda through a large media impact, before being closed off in scientific quarters. This arises when, through receptive media, specific events give a striking and perceptible 'face' to phenomena - severe droughts, the Antarctic ozone hole, defoliating forests, people in hospital or reported to have died as a result of illness related to hazardous substances. Suddenly, large sections of the community, interest groups, politicians and economic actors realize that something is going on which may affect them. Moreover, the plurality of competing scientific theories involves many more interest groups than is the case for well-defined and more limited issues.

This shift from the scientific field to the political arena is not a simple and transparent one. It implies a translation of experimental facts, models, theories, assumptions and contingencies into the universe of concerns, interests and values. It is a critical moment, with two tendencies operating: some actors

3 To what extent is global warming related to natural variability or changes? To what

extent is the hole in the ozone layer a periodic natural phenomenon which was simply unknown before its discovery? To what extent can the deterioration in German forests in the 1980s be viewed as a time-lagged effect o f severe droughts in Europe during the 1970s?

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or groups try to dress interests and strategies with scientific arguments to give them the strength and authority o f science; others suspect any scientific finding or assessment of sheltering hidden vested interests. Institutionalized experfiseTs one of the main channels through which this process of translation is achieved, and we will need to consider the roles they are given in this operation. This exercise can be exposed to various criticisms. Questions are raised about the type of legitimacy expert groups can rightly mobilize or about the composition of such groups: who are the people said to be experts?

One typical and famous controversy over expert conclusions accused of hiding political and economic interests is the case that arose between the Centre for Science and Environment (New Delhi) and the World Resources Institute (Washington DC) over the global warming issue. Anil Agarwal and Sunita Narain (1991) attacked the results and methodology of a WRI study, which notably gave figures for net emissions of greenhouse gases (GHGs) for each country on the basis of one implicit assumption, i.e. that the carrying capacity of the global environment as regards the absorption of GHG emissions is ‘naturally’ allocated to countries on the basis of their present level of emissions. A different methodology, one which is clearly more appealing to Third World countries, allocates this global ‘service’ to countries on a per capita basis, and shows that the responsibility of developing countries may not be superior to 20 per cent instead of the almost 50 per cent found in the WRI study.

The importance of expertise in this present phase should not be underestimated, since some scholars (Haas, 1990) assign a key role to the development of an international 'epistemic community1 in establishing a new regime of international coordination.4 However, in the context of controversial risks, there are presumably several competing ‘epistemic communities’.

A widespread feeling o f urgency and a pressure fo r acting before knowing

The potential gravity and irreversibility of imagined consequences of phenomena lead at least some experts, opinion groups or public and private managers to consider it necessary to act without waiting for scientists to fully elucidate the main questions. There is a widespread feeling of urgency and the

4 An 'epistemic community' is understood to be a network or community o f 'experts'

sharing beliefs in causal relationships (even if these beliefs turn out to be mistaken) and values about what public action should be taken. It supports a 'vision o f the world', and is situated at the interface o f the scientific community and social and political arenas. Such 'epistemic communities' operate as ‘translators’ between science and social concerns, in both directions. Not everybody agrees with the role given to ‘epistemic communities’. Other scholars prefer an interest-based explanation (Sprinz and Vaahtoranta, 1994).

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sudden awareness that action needs to be taken before a sufficient knowledge has been reached. But in those cases, action cannot be rational in the classical substantive meaning, i.e. founded on "hard facts" (stabilised knowledge within the scientific community) and on precise cost-benefit analyses.

It is possible that decision-makers find some benefit to dress up the actual process of decision as if it were following a pure rational process. That sort o: J theatre is often what is expected from experts: to give an illusion o f rationality

; and of scientific incontestability in order to maximise the authoritative value of decisions already taken.

The pressure of the feeling of urgency opens up the Pandora's box of temptations of manipulating science for the benefit of political and economic interests. Concerned social actors and big corporations significantly involved in R & D activities are spreading their strategic field of action and competition to the scientific representations of the world (nature, but also society). The content and timing of action is at stake: some want immediate action based on technological standards, in order to push new markets ; others try to postpone any action to preserve their own business5, and so on.6 In the scientific field, the purpose of such strategic action may be to obtain a premature and favourable closure of a controversy, as an artificially sustained state of controversy, since persisting uncertainty and doubt permit lobbying to continue. On the other hand, actors may use the argument of the state of_upcertainty and controversy to postpone any policy change or new decision./So experts’ judgements tend to become instruments in the strategies of social actors, even if these experts do not consciously take part in this game. At the same time, some scientists, as individuals or within interest groups, are now accepting to don the new clothes of advocacy, with the hope of gaining funding for their research7 or simply for 5 In the ozone case, an Alliance for Responsible Atmospheric Policy was established in 1980 with the initial purpose of opposing the regulation o f CFCs and o f supporting scientists who disagreed with the new theory o f Rowland and Molina first published in an article in

Nature, June 1974.

6 In comparing France and FRG as regards the issue o f the dying back o f forests, Roqueplo (1988) suggested the concept o f ‘reversed threat’ to describe the fact that for French industrialists (car manufacturers, oil companies, the coal industry), the threat was not deriving from the deterioration o f forests, but from the decisions o f the FRG government and the European Community Commission on car emissions, lead-free gasoline and S02 emissions from power plants. This does not mean that French industrialists were a priori more insensitive than their German counterparts to environmental considerations, but that the content o f regulations was perceived as unduly favourable to German technology and mainly reflected German conditions and priorities.

7 Application o f the interest-based explanation to the behaviour o f scientists when they try to attract public attention to environmental risks is the basic argument o f the work of Boehmer-Christiansen on the various cases she has been studying (acid rain, global warming)

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various ideological motives^ Even if experts maintain their independence, this type of involvement generally affects their social credibility, and any statement from then on is suspected of hiding specific interests. Finally, members of the general communities, but also of official circles, are keen to believe in statements, not for their scientific value, which remains unfortunately indiscernible, but according to the degree of convergence with their a priori attitudes.

A competition game fo r rule-setting, which amounts to an indirect arbitration o f scientific truth fo r economic and political motives

In controversial contexts, characterized by several competing explanations for basic phenomena of concern, actors have an opportunity to influence the ultimate course of public action by pushing the 'vision of the world' most suitable to their interests. Possibilities for the development of technologies, markets, and the ensuing comparative advantages that some firms may gain nationally or internationally will depend on-the winning ‘vision of the world’. Thus, a competition exists among those seeking to guide public action. Groups o f experts have a key position in this game, mainly through their composition. This is not to say, however, that every individual position can be reduced to narrowly defined economic interests; but that legitimate economic and non-economic interests take part in the process which results in setting up the positions of experts.8

At a certain point, this competition leads to decisions and policies. The specific meaning of these decisions and policies is worth stressing. In targeting and reorganizing specific economic fields (by changing incentives or by defining new technological requirements for the emission of pollutants), the ?) action of public authorities practically amounts to an indirect arbitration of

fj scientific controversies. Thus, some 'vision of the world' regarding ecological

(1990, 1994a, 1994b). On the issue o f climate change, she writes, for example, in the abstract o f her paper: "The primary interest o f research is the creation o f concern in order to demonstrate policy relevance and attract funding".

8 For instance, many experts in groups created by public authorities come from

industrial circles; these persons, like those from other circles, combine specific competencies and a function of spokesman o f the circles to which they belong, i.e. they also defend specific industrial interests and diffuse the corresponding ‘visions of the world’. In France, it has not been uncommon for the French representatives in international negotiations on the protection o f the ozone layer to be in fact persons belonging to ATOCHEM, the industrial firm involved in the production o f CFCs. © The Author(s). European University Institute. version produced by the EUI Library in 2020. Available Open Access on Cadmus, European University Institute Research Repository.

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' / phenomena and scenarios for future economic development will be fixed by convention in laws, technical regulations, budgetary decisions and institutions.

In the ‘Waldsterben’ case in West Germany, the issue was initially sparked by a sudden discovery by media and public opinion that German forests were 'dying' on an unprecedented scale in low-polluted regions. In a first stage, S 0 2 was said to be the main cause and a growing popular discontent arose against industrial activities and thermal power units. But, in a second stage, the ozone hypothesis was introduced by some scientists and quickly gained audience among political authorities. In early 1983, more severe regulations were enacted for emissions of thermal plants, and in July of the same year, the government released its first draft o f a clean car regulation, involving the use of catalytic exhaust pipes. In both sectors, Germany's strategy was to press the European Community to adopt similar rules in order to limit cost differences with competitors or, even better, to turn potential additional costs into competitive advantages. To some extent, the government decided to share out the ‘Waldsterben’ burden between the automobile and the energy sector, which implies the decision, from among the various scientific theories, to allocate the joint responsibility to the effect of soil acidity and the destructive impact of ozone on leaves and needles.

The eventual convergence o f a dominant coalition on a conventional restraint o f uncertainty based on available technologies and social acceptability

If no coalition is able to clearly win, the competition contributes to extending the period o f hesitation and instability o f expectations among several possible alternative courses of action. This then impairs the demand for predictability and contextual stability which characterizes the industrial universe, There is thus a point at which the main actors, although still supporting conflicting views about what should be done, converge with a request to the government for a context stabilization. This can be achieved through public regulatory action. Persisting uncertainty suffered by economic actors is then expected to be reduced by setting social conventions and rules, feven arbitrarily. 9

9 For example, some consensus has emerged from OECD expert groups on the standard

o f quality for underground water to be adopted as a goal for management purposes: it should satisfy all the requirements o f drinking water. This specific convention, based on a human health perspective, was not self-evident: it will have important consequences in terms o f the development o f costly programmes of pollution abatement from non-point sources (agriculture, municipal flows o f surface water...)\ An ecological viewpoint would have led to another approach insisting upon local conditions.

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On the other side, before any decision is made, the credibility and legitimacy of the government are put into question by the very existence of an qnresolvfid.problem. At some stage, it must 'do something' in order to justify the trust of the citizens and its own claim to be in charge of public affairs. So supply and demand for public action match.

At this very moment, contextual stabilization cannot be deduced from 'hard facts' or scientific consensus. For example, if we except the 80 per cent rate of emissions reduction requested to stabilize greenhouse gas concentrations in the atmosphere10, any particular realistic objective of greenhouse gas emissions abatement has to be arbitrarily set as regards both the rate of abatement and the reference year to be adopted. Although the general acid rain case is much better documented, some basic arbitrary decisions are still inescapable: after a thorough scrutiny of the problem, David Newbery (1990) recognized that it was not possible to define the marginal damage cost functions in absolute terms and thus used relative proxies. In the same vein, Karl-Goran Maler (1989) turned out the standard but heroic economic assumption of equalizing the marginal damage and abatement costs into a means of deducing the damage cost from the present marginal abatement cost, with the justification that it reflects the current assessment o f government preferences.

Thus, contextual stabilization is generally based on the more sound elements at hand in the situation: available technologies that have reached an operational stage and are supported by a network o f actors and corporations having vested interestS-in their development. Moreover, the social process is gaining autonomy as regards the future evolution o f scientific controversy. G roupsof experts have a key role in this translation of a problem-identification issue, based on knowledge, into a practical question of selecting one form of action from among a set of options. Clearly, the type of expertise needed for these two tasks are not the same. Interestingly, specialists in technology, industrial affairs, economics, political science or communication will be - or should be - asked to trace the frontier»of. reasonable action before natural scientists can really give a decisive picture of what the problems are and where they come from. Alternatively, when the issue o f reasonable action is at stake, advice il sought not only from experts, but also from groups of various types of formal and informal spokesmen of stakeholders: the acceptability of actions depends on them.

10 But why should we give a normative value or imperative strength to a return to a pre

industrial level o f the atmospheric concentration o f GHGs? It would mean that our societies had decided to give credit to an ideology o f natural equilibrium which, as such, is quite different from the modem scientific vision o f nature based upon disequilibrium and evolution.

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Once institutionalized, compromises that have been reached appear to be reversible only with great difficulty, even if they do not fit with the future evolution of Knowledge. This is not a physical type of irreversibility, but is a socio-economic construct: if the new rules are perceived to constitute a credible commitment on the part of authorities, investment strategies of all actors tend to be reorganized around them; this fixing of conventional decisions in equipment and infrastructures is an important factor of inertia and contributes to the self maintenance of the rules and conventions they organize (Godard and Salles, 1991).

In the ozone case, it was possible to phase out CFCs when industrial firms producing these chemicals were reasonably certain of being able to supply substitutes. Initially, in particular HCFCs were considered to form such substitutes. However, after having been claimed as a solution, inducing technological investments to produce these new commodities and to adapt chains of uses downwards, it was discovered that HCFCs were part of the problem of ozone depletion in the same way as CFCs, although with a shorter lifetime. So discussion began in June 1990 on the phasing out of HCFCs within the context o f the London Amendment to the Montreal Protocol, resulting in the formulation of the goal to completely eliminate these products by 2040, a deadline which left enough time to amortize investments already made, a subsequent Amendment led to advance phase-outs, but agreement was difficult to reach, because of the costs of this change. Since the Copenhagen Amendment of November 1992, complete elimination is requested worldwide by 2030, and specific intermediate targets have been set. In December 1994, the European Union finally reached the decision to phase out HCFCs in the Member States by 2015.

The timing dim ensionpf the period preceding hard decisions is crucial in determining their content. If it is a short period, the ultimate decisions will confirm available 'classical' technologies and block the development of innovations which need more time to come to an operational stage. Thus, there will be a future opportunity cost, which may be important. This was the conclusion o f the story o f the speeding-up of regulations on car emissions in Europe: these regulations practically made the use of catalytic exhaust pipes obligatory rather than allowing time for innovations in engine combustion. By contrast, if this period during which no hard decisions are taken may be extended for a sufficiently long time and this time-lag is communicated in advance to industrialists by public authorities - i.e. through official announcement of a management calendar for the issue - industrial firms receive an appropriate incentive to invest in specific Research and Development (R & D) programmes which will probably increase the chances of having improved

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technologies at hand when hard decisions must be made. But with the threat of potential irreversibility of environmental changes, how long is it possible to postpone action? The decision problem is thus structured by the respective dynamics and time constraints of natural processes, progress of scientific knowledge, technological innovation, opinion shifts and law changes.

A policy response failing to fit exactly either the initial or the final terms o f the question

At the end of this social process, it is quite possible that the actions taken by the government and the rules defined maintain only an approximate link with the initial environmental alarms that triggered the whole process. The singular trajectory of the process depends on the random order of the public appearance of scientific hypotheses regarding possible causations of natural phenomena behind environmental issues or health hazards, and on the nature of the hypothesis of the moment when the government decides to do something about it. This moment is not chosen only for scientific motives, but also on the basis of public opinion or for political reasons. If the government waited longer, perhaps a new hypothesis would appear as the most plausible explanation, and the action taken by authorities would then be different, (jenerally speaking, this paradoxical conclusion.can only become completely clear ex post, at the end of the most active phases of the process. But the paradox may also be perceived during the process to some extent.

In the ‘Waldsterben’ case, the initial phenomenon was grasped with sudden awareness" and feeling of urgency. At the end of the line, some actions were taken quite rapidly, but the time-schedule of these policy measures was unable to respond to the ecological dimension of the urgency felt: the only action with a potentially immediate, though limited effect, on NOx emissions was the setting of severe limits on highway speeds and a reduction in automotive traffic. But this option has been dismissed, considered as unacceptable for both car manufacturers and users. Today, the scientific explanation for forest decline is still not clear-cut and involves a complex set of factors, among which acid rain is only one among several factors. As an ex post 11

11 Roqueplo (1988) explains how, after an initial phase o f unawareness, specialists and

lay people learned to see the symptoms o f forest decline in practical situations where they had previously not seen anything, suddenly shifting their stance from denial to overemphasis. In the ozone case, after the discovery of the Antarctic ozone hole, scientists committed themselves to a re-analysis o f all the space data, from which they extracted significant long term downward trends in ozone levels they had not seen previously; see Warr (1990).

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scientific article (Frank, 1991) puts i t : “The assumption that air pollutants are

primary causal or contributing factors is based mainly on correlations without rigorous p ro o f o f causality”. But there have been no suggestions to dismantle

the existing set of rules for SO2 and NOx emissions.

So the final answer is generally displaced with respect to initial questions. / This is partly because these questions have been reformulated into more

II relevant ones, but it is also because they could not be answered. There is also,

however, a third aspect. The general challenge facing policy-makers is not to resolve ecological problems or reduce health risks as such, but to maintain political equilibria and achieve political aims. In this perspective, questions raised operate as a trigger for a self-organizing process o f social readjustment. Public actions decided at one particular moment cannot really be seen as just solutions matching the problem as initially formulated. They address the political problems that environmental and health issues, as perceived by public opinion and various actors, could generate. Through translations and instrumentalization, this self-organization process depends more on technological possibilities, institutional framing, and political and economic strategies than on a rational analysis of the means to solve a well-identified ecological or health issue.

3. Therolesofexpertsintacklingcontroversialrisks

If the above description of the context typical of controversial risks is accepted, we may wonder what role is expected of groups o f experts commissioned by governments or international bodies to tackle this type o f risk. Part of this role is, in fact, common to all situations requiring such expertise. This feature, however, often leads actors involved not to perceive the r differences. Here lies precisely one dimension of the role assumed by experts: maintaining the illusion that controversial risks can be treated in the same rational framework that is supposed to be the standard of public decision making. Thus, we find a model o f ‘decisions made by responsible public bodies

^guided by the general interest on the basis o f a rigorous examination o f facts and scientific evidence 12

12 This author suggests that airborne halocarbons and secondary air pollutants are

involved in forest decline through the action of derived phytotoxic compounds, such as trichloroacetic acid (TCA).

15 © The Author(s). European University Institute. version produced by the EUI Library in 2020. Available Open Access on Cadmus, European University Institute Research Repository.

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3.1. C onstructin g a problem relevant for public action

Scientific discoveries and controversies as such do not suffice to construct the idea that a problem exists and that it requires public action. Therefore, the first role experts take on is to construct the problem or to confirm and validate a pre-existing construction of the problem. This means translating a continuously changing state of knowledge, across numerous disciplines, into issues involving the idea of potential damage to some relevant beings and, at the same time, the idea of this damage having such a cultural, political or legal relevance that socially protected interests are at stake. Very often, experts do not approach the framing of issues within a virgin context. Policy-makers, economic actors, NGOs and others have generally begun to develop the issues in some ways, though usually not in ways that fit together. In this most frequent type of case, experts are called upon to test the proposed framing and elaborate their own, on the basis of the authority of knowledge. Quite evidently, this task may be organized practically with a division of labour among several committees and councils. In some cases, public authorities give the framework and experts are only asked to fill it in with data and facts. But the point is that, globally, this framing activity associated with scientific expertise is not identical to the type of activities in which scientists are involved in their basic professional work, because it implies the meticulous establishment of connections between facts, data, trends and public concerns.

An example may be useful here. Why should we consider the disappearance of one species of spider to be a problem? To answer this question, public authorities need not only spider specialists to give a detailed scientific picture of the ecology of arachnids, they also need some conceptual shaping which relates the destiny of these animals to particular social concerns or values. The final outcome must be expressed in terms of obligations, rights, damage, benefits, preservation of values, risks, and so on. To this end, the case should be elaborated within one of the main rhetorics of legitimacy used in our societies. For instance, from an industrial, productive viewpoint, generally interested in the exploitation of natural resources, a concern could be put forward about the possible future use of these animals in bioengineering and medicines and the related loss that will be suffered if the species disappears; a market-oriented economist may stress that this particular type of spider has a market value for collectors or as a cooking ingredient (!); a conservationist ecologist will have to explain how this species is connected to more general features of the functions of ecosystems on which man depends, and is part of the natural heritage which the present generation is obliged to pass on to future generations. And so it goes on.

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We can observe that in recent years, the class of ‘relevant beings’ has been progressively extended to non-human beings, as is shown by the evolution in the meaning of the expression ‘ecological damage’. Some years ago, ‘ecological damage’ only meant damage to humans or their property assets through an ecological channel. Now it frequently embraces a notion of damage to natural equilibria or ecosystems, without direct reference to human rights or properties.13 Natural science experts have played an important role in diffusing this concept in legal practices. But in so doing, they have not acted as pure scientists, searching to master an area of knowledge, but as social engineers. With what legitimacy have they acted? It is not the legitimacy which officially justifies their role as scientists.

This is one typical consequence of the role of experts: their involvement goes beyond the official justification of giving facts and knowledge in order to enlighten an issue. Through repeated uses of language, a community of experts infuses a specific semantic into law, administrative circles and the media in which a normative ‘vision of the world and society’ is embedded. Regarding explicit philosophical options in relation to ‘ecological damage’, we may soon find ourselves in a situation in which, on the one hand, statements supported by ecology are not generally accepted in most European countries, while on the other hand, our legal notions are beginning to be conceptually adjusted to such statements.

3.2. C onstructing a bundle o f alternative schem es o f action

Saying there is a problem is one thing. But experts must go further. They have to say how the problem can be tackled and reach decisions on the practical feasibility of possible schemes of action. A problem which fails to give rise to the idea there are appropriate solutions for it can no longer be said to be a problem. It should rather be called a catastrophe, a calamity, a drama, an act of fate... In the latter cases, the type of expected public behaviour cannot be described in the same way: the issue is simply about helping or compensating victims or delivering symbolic rituals to give cultural meaning to unavoidable courses o f events. Therefore, an one important task o f experts is to declare whether an emerging phenomenon is to be considered a problem on which

13 For instance, the Lugano Convention adopted by the Council o f Europe (1993), which

deals with rules o f civil responsibility as regards environmental damage, establishes a distinction among damage done respectively to human beings, the environment, and goods. In this context ‘the environment’ includes biotic and a-biotic natural resources, goods are part of cultural inheritance and typical features o f the landscape. On this, see Martin (1994).

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action may have significant effects or whether it is beyond any influence of public action. In controversial contexts, this is not a simple job, as has already been noted in relation to the highly debated issue of natural/man-made causes of global environmental changes and risks.

If the problem characterization is confirmed by experts, they then have to draw up the bundle of possible actions. In so doing, experts tend to concentrate on those parts of the issue for which causal links can be reasonably defined. In this case, the problem tends to be reformulated around some o f its more solid aspects. For example, since there is no certainty in the assertion that GHG emissions are provoking a major climate change, attention tends to be devoted firstly to the link between technological and economic activities and the level of GHG emissions and, secondly, between GHG emissions and GHG atmospheric concentrations. Though complex, these relations are less evanescent than that between levels of GHG atmospheric concentrations and climate changes. So the initial problem of ‘mitigating climate change so as to prevent a dramatic change’ has been translated into ‘how can we stabilize GHG atmospheric concentrations at some level?/ There is clearly a missing link between these two statements, but in spite of many efforts, scientists can do no more than put forward the uncertain, still controversial and contingent results of modelling efforts based on numerous restrictive assumptions. So the gap has to be filled, but this cannot be done on a purely scientific basis.14 As regards economic models, we observed the same process of reduction/translation. According to basic economic theory, we should optimize GHG emissions so as to minimize the total social cost (adaptation cost plus residual environmental damage cost plus mitigation emission abatement cost) for the relevant time period. Indeed, with only a few, very controversial15 exceptions (Nordhaus, 1991), most

14 Interestingly, Nordhaus (1994) recently conducted an opinion survey among 22 recognized experts professionally active in national or international assessments o f global climate change. This poll included social - mainly economists - and natural scientists. Asked about the magnitude and probability o f loss resulting from climate change as a percentage of Gross World Product (GWP) in three scenarios (3-degree Celsius rise by 2090, 6-degree rise by 2175, 6-degree rise by 2090) results show an enormous dispersion o f estimations: for the less catastrophic scenario, the range goes from 0 to 21% o f GWP; it is much larger in the latter more drastic scenarios. This dispersion particularly reflects disciplinary differences. Natural scientists’ estimates o f damage are much more significant than those of economists. One explanation quoted in the paper is that "the economists know little about the intricate web of natural ecosystems, whereas scientists know equally little about the incredible adaptability of human economies”, (p. 48)

15 See the recent survey and discussion by Ekins (1995). Assumptions regarding revenue recycling, existing price distortions, dynamic effects on technical progress, secondary benefits, and so on, disregarded in modelling exercises, which lead to the conclusion of high

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economic exercises have been limited to an assessment of the economic cost of achieving a given level of GHG emission abatement or of achieving this result through alternative means (Manne and Richels, 1991, 1993; Godard, 1993a). These operations are reflected in the way the Rio Convention on climate change was framed, since the stated imperative of containing climate change to a pace compatible with the evolution of ecosystems and the preservation of natural resources was translated into an imperative to stabilize GHG emissions at their

1990 level.

The task of structuring possible interventions also influences the composition and status of expert groups. Since public action is at stake, public authorities want to keep some control on the process. In the case of climate change, having expressed their relative distrust of independent self-organized groups of expertise responsible for putting the issue on the international public agenda in the 1980s, governments decided to establish a structure of expertise they could control in connection with the UN system (Boehmer-Christiansen, 1994a and 1994b). Thus, the Intergovernmental Panel on Climate Change was set up in 1988. The IPCC was mandated to carry out a survey of knowledge on basic climatology (WG1), on potential impacts of climate change (WG2) and on an assessment of response strategies (WG3). It was supposed to mobilize the authority of science and facilitate the emergence of consensus on directions to take. The Panel’s credibility depended on the reputation and authority of the main scientists appointed to manage it. At the same time, as an intergovernmental body, IPCC was subject to a political logic: proposed members were designated by governments; concern had to be expressed for a balanced representation of each region of the world and for opening meeting sessions to active NGOs, and so on. In practice, this resulted in a mixing of very high-level scientists and some of more modest ranking, diplomats with scientific backgrounds, civil servants from to national administrations, and the advocacy of NGOs. It is the functions and outcomes of such a hybrid assembly that we shall consider in the following section.

3.3. Indirect testin g o f respective p ositions o f social actors

Groups of experts, especially in international contexts, provide opportunity for various social actors, mainly governments, to have a first approach towards understanding the position of others, with the aim of trying to decipher where the borderline lies between what will be acceptable and abatement costs, may change the whole landscape, turning the global warming policies into an economically profitable action, even with high levels of carbon taxation.

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unacceptable for the other parties. This expectation has an influence on the organization of the experts’ work. While common sense would suggest that the allocation of work be determined by skills and competencies, this is not the only logic we observe in such groups. An example will illustrate the process: in the first phase of activity of WG3 of IPCC, Saudi Arabian representatives were asked to prepare a report on the impacts of industrial countries’ policies on the world economy. This choice was not based on the fact that Saudi Arabia had specific scientific skills appropriate to the subject, but was motivated by the need on the part of IPCC organizers to avoid this country’s defection and the opening up of a direct conflict. Given that the issue of carbon tax was highly controversial in many regards (Godard, 1992c, 1993a; Liberatore, 1995; Ekins, 1995), giving Arabia the responsibility of conducting an assessment of the international economic impact of such a measure was a means to see how far oil-producing countries were ready to go in their opposition to any policy which would significantly change energy prices world wide. Not surprisingly, the report submitted in 1992 by this country showed how damaging a carbon tax would be for the world economy, firstly, for industrial countries; secondly, for oil-producing countries; and thirdly, due to points one and two, for developing countries. The report foresaw that the tax would trigger an economic crisis in the North which would result in fewer outlets for Third World exports. Diminished revenues returned to oil-producers would mean cuts in development assistance programmes financed by these countries. The message was clear: as opponents to any action on energy prices, oil-producer countries present themselves as the best spokesmen for the entire developing world. But an interesting point worth noting is that by agreeing to play the game of expertise, one actor - in our example, Saudi Arabia - accepted the risk of having to argue its position with all the instruments (modelling, statistics) of economics, and of being exposed to criticism for any deficiencies, inappropriate methods or ill- based results. It is for this reason that we must consider the functioning of expertise within its internal dynamics of evolution. By chance, because of the rules of the game of mutual critical assessment, the logic o f interests cannot be the only one to impose its logic!

Using experts groups to test the acceptability of options is not an easy task for at least two reasons: a) in most cases, this borderline is not well-defined

ex ante'6, but will result as an end-product of the process of expertise and 16

16 This relativ e in d eterm in a cy o f interests is a critical feature o f the context of

controversial risks. Because several alternative possibilities exist concerning basic facts and causal relationships, due to this state o f knowledge, actors are not able to define and optimize their own interests as regards the specific issue, nor are they consequently able.to defendjhem in negotiations. The scene is thus invaded by what we called ‘secondary interests’ and strategic actions connected to other types of issues, which also involve conflicts and

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negotiations organized around it; b) each party wants to know more about the others, but does not necessarily want its ultimate position made transparent to others too early. So there will inevitably be some dissimulation and use of tactics in this game of expertise with respect to the exchange of information. The picture that some parties may think they have gained about the position of others may be ultimately revealed quite mistaken when the expertise phase gives way to direct political negotiations. This is the political advantage of an approach favouring international coordination through scientific expertise: it preserves the political autonomy of governments and avoids premature commitment.17

3.4. Preparing an im putation o f responsibility

An important part of the activity of experts is devoted, not to exploring and synthesizing the results of basic research, but to seeking and organizing the data needed to prepare operations for the imputation o f liabilities presumably involved in the emergence of a problem. Considerable effort is being taken, for instance, to conduct inventories according to standardized methodologies. For the issue of climate change, most critical data in the literature take the form of present and possible emissions o f GHGs per country and, for each country, per inhabitant. These most simple ratios (one American citizen emits 6 tons of carbon yearly and one French person only 1.8 tons) are easy to sell to the public and serve as implicit normative benchmarks for imputing responsibility before any explicit political or legal judgement is made. They have clearly no scientific interest, adding nothing to the understanding of basic processes of climatic changes.

This pre-framing of responsibilities is very ambiguous. It occurs during the period when new legal rules are being formulated. This treatment of information thus tends to structure the points on which new rules will be

negotiations for rule-setting : achieving a structural change o f the pattern o f relationship between countries o f the North and the South, improving economic competitiveness o f some industrial sectors, upgrading one's rank in diplomatic influence, etc. On this, see Godard

One typical example relating to the global warming case is the following: although US experts have repeatedly expressed a strong preference for an international tradable permits system for carbon emissions and sinks at IPCC and OECD expert meetings devoted to the issue o f climate change, the US government provoked quite a surprise in 1991 when, during negotiations taking place within the Intergovernmental Negotiating Committee o f the Framework Convention on Climate Change, it dismissed this approach as completely unrealistic. © The Author(s). European University Institute. version produced by the EUI Library in 2020. Available Open Access on Cadmus, European University Institute Research Repository.