The Importance of Information and Participation Principles in Environmental Law in Brazil, the United States and Beyond

• Published date: 01 April 2013
• Author: David N. Cassuto,Rômulo S.R. Sampaio
• Date: 01 April 2013
• DOI: http://doi.org/10.1111/reel.12019

The Importance of Information and Participation

Principles in Environmental Law in Brazil,

the United States and Beyond

David N. Cassuto and Rômulo S.R. Sampaio

This article explores the two different kinds of uncer-

tainty, ‘hard’ uncertainty (unknown unknowns) and

‘soft’ uncertainty (known unknowns), in the context of

environmental law decision making. First, it is argued

that these different categories should not be treated the

same when facing decisions under uncertainty. To

deal with these different uncertainties, a tiered risk

analysis process is called for, wherein participatory

techniques are used both to turn hard uncertainty into

(more manageable) soft uncertainty as well as to

increase the legitimacy of environmental decision

making, even in cases of hard uncertainty. This meth-

odology can and should apply to all instances of

domestic, transnational and international environ-

mental law making. This article applies this concep-

tual platform to analyze how participatory techniques

can be factored in to manage uncertainty by reference

to two domestic systems – American and Brazilian

environmental law – as well as to international (envi-

ronmental) law. The article concludes that managing

uncertainty in the environmental decision-making

process is a procedural justice tool to promote more

balanced and equitable outcomes.

INTRODUCTION

This article argues that participation is a key consider-

ation in managing uncertainty in environmental policy

making. The main point is that participation – under-

stood as access to environmental information, partici-

pation in environmental decision making and access to

justice – should be an important component of regula-

tory policies based on precaution. Indeed, whether con-

sidered as a principle or as an approach, the essence

of precaution is to deal with uncertainty. We divide

uncertainty into two distinct stages: ‘hard’ (unknown

unknowns) and ‘soft’ (known unknowns or ‘risks’)

uncertainty.1The term ‘hard uncertainty’ refers to cases

where the triggering event may be known but the prob-

abilities of possible outcomes or even the outcomes

themselves cannot be predicted. The term ‘soft uncer-

tainty’ refers to circumstances where potentially nega-

tive outcomes and their probabilities can be predicted

and, therefore, measured. In such cases, risks can be

assessed. Consequently, soft uncertainty scenarios are

subject to cost-benefit analysis and can be addressed

through more rational and efficient policy-making pro-

cesses, whereas instances of hard uncertainty cannot.

The impact of participation, in this context, is twofold.

First, participation is useful for gathering and dissemi-

nating information on a given issue (for purposes of risk

analysis, including ‘risk assessment’, ‘risk management’

and ‘risk communication’), which, in turn, can help

to move from ‘hard uncertainty’ to ‘soft uncertainty’.

Second, even when hard uncertainty cannot be dissi-

pated, participation remains an important procedural

justice tool to make decisions taken under uncertainty

more legitimate. Thus, participation is an important

component of the development and implementation of

environmental policies. Let us discuss this argument in

more detail.

The prevalence of uncertainty renders environmental

decision making – already a multifaceted and intricate

endeavour – even more complex. Uncertainty involves

both scientific and socioeconomic dimensions. From a

scientific perspective, environmental policy making

aims to rely on the best available information and the

best available technology – both of which vary widely

depending on region and circumstances. However, the

complexity of environmental decision making also

stems from the need to account for different social and

economic policies, interests and needs. These, too, vary

significantly across regions, countries and continents,

and are conditioned upon constitutions, treaties and

statutes that establish various priorities and levels of

risk aversion. It also bears emphasizing that risk assess-

ment is inherently subjective and region-specific. Policy

decisions that have an impact on the environment can

never equally benefit all affected groups. They involve

tradeoffs or, in other words, they necessarily generate

social costs that must be allocated somewhere. Differ-

ent groups and regions absorb different impacts; out-

comes preferable to some will be anathema to others.

Environmental policy thus must accommodate human

choices that vary across communities and societies even

as it seeks to minimize global risk. Those two goals can

1D.N. Cassuto and R.S.R. Sampaio, ‘Keeping it Legal: Transbound-

ary Management Challenges Facing Brazil and the Guarani’, 36:5

Water International (2011), 661.

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Review of European Community & International Environmental Law

RECIEL 22 (1) 2013. ISSN 0962-8797

© 2013 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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