Incorporating Values within Environmental Risk Assessment

Public participation in environmental decision making can be seen as constituting a spectrum: from the right to be informed, to the right to make submissions and / or be consulted, to the right to play an active role in the decision–making process. In the context of environmental risk assessment, many theorists argue that a significant and meaningful role should be given to the public in the decision-making process. There are two primary reasons for this: the first is to ensure the legitimacy of the decision and the second is because of the importance of ascertaining values in risk assessment. This paper focuses on the second of those two points. By way of brief explanation, it is necessary to recall that the meaning of ‘risk’ should not be confused with a consequence or an adverse event. Risk, as a concept, connotes a process not a result. That process will include identifying, where possible, the prospect of an adverse event occurring and the potential ramifications of such, assessing the probability of the event manifesting and ultimately deciding on what action to take. Importantly, calculating the probability of an adverse event occurring does not provide an automatic decision on the substantive application; rather risk assessments highlight that a choice has to be made. Once potential adverse effects have been considered, the decision must be made as to how to proceed and that decision cannot be isolated from values. The question arises as to how to assess values and incorporate these into decision-making. Many social scientists have recognised how difficult this is (for example, values do not equate to preferences) and there are particular challenges for risk determined within a framework of environmental law (including the imperative to consider future generations and intrinsic, eco-centric values). Classic risk methodologies often seem to be ill equipped for this added complexity. As Solvic notes, you cannot use people simply as “data providers on values to be in-putted at a later stage of the methodology”, on the contrary, he argues, people are “problem solvers”. Simply tagging public participation onto the end of a risk assessment process is inadequate for many reasons much explored in the social science literature. Rather, as Elizabeth Fisher argues (albeit in a standard setting context), an iterative process of deliberation and collective decision-making, described as the “deliberative constitutive paradigm”, is more legitimate, helps to avoid the classic battle between determinations as to the pre-eminence of science or democracy and may (as other theorists such as Steele have contended) better elicit public values. Using New Zealand as a case study, this paper explores how far, if at all, these theoretical underpinnings are playing out in reality. The regulatory regimes in three different environmental risk scenarios are considered: the management of new organisms, offshore oil and gas exploitation, and resource management within a planning law model. Whilst activities in each of the three areas require permitting, each problem is assessed within a different decision-making framework. This paper maps the institutional and regulatory frameworks pertaining to risk in each scenario and, in particular, considers what or whose values are identified as relevant in the given framework, how those values are assessed and whether the process adopted facilitates or hinders the importation of those values into the decision-making framework. Adopting Fisher’s deliberative constitutive paradigm as a heuristic device, the paper assesses whether features of such a paradigm are presently or could in the future be employed in the three decision-making scenarios and concludes that in certain contexts there is the need and scope for reform