Governing Disasters: The Challenges of Emergency Risk Regulation
One of the less-heralded consequences of globalization is the sudden emergence of crises of escalating magnitude that, due to their systematic impact, test our ability to organize and swiftly execute a coordinated response. Global institutions such as the World Health Organization, the Food and Agricultural Organization, and the International Atomic Energy Agency govern only specific domains – not all areas of human activity. As a result, determining how to respond to global emergencies that overlap these domains requires officials to make complex judgments involving risk analysis, crisis management, regulatory decision-making and law.
The 2010 European volcanic ash crisis
and the 2011 Japanese tsunami
epitomize the general problem of emergencies where the lines between natural and manufactured risks are increasingly blurred. In both instances, regulatory systems designed for careful deliberation and cooperative action had to respond almost instantly to a barrage of conflicting scientific and legal information. Regulatory agencies faced threats of litigation from industry and warnings of risks to human life from regulatory scientists. Facing such unchartered territory, even the most well-intentioned risk decision-makers are likely to make mistakes.
Despite the varied and even unpredictable circumstances that give rise to emergencies, emergency risk regulations share a common set of features. These regulations are generally (a) triggered by (the threat of) an unpredictable event, (b) adopted and implemented under time pressure in a situation characterized by uncertainty, (c) shaped by prevalent interests and public attitudes, (d) dependent upon, and conditioned by, emergency risk communications, (e) characterized by their transnational need, and (f) unanticipated in existing regulatory schemes, even those that had expressly codified emergency responses to crises.
Of course, the emergency context in which these kinds of regulations are adopted or applied tends to intensify the nature, magnitude, and probability of the usual challenges associated with the regulatory task. For instance, if rent-seeking represents one of the main regulatory pathologies of ordinary risk regulation, it can become a life-or-death issue for an industry in an emergency situation, when the industry will be particularly prone to exploiting the situation to defend and promote its interests.
In emergency situations, public leaders and risk managers, who already operate in a world of bounded rationality, are expected to act urgently and without comprehending all unintended consequences in order to minimize crises’ expected socioeconomic impact.
Since fear of failing to manage a risk is itself a risk for public leaders, the key to designing better emergency risk regulations may be to become more aware of the limits of anticipatory approaches to risk. If policymakers attempt to plan for each possible threat, they may overspend and create unnecessarily detailed schemes. If, instead, they adopt broad, seemingly adaptable regulatory frameworks, those may fail to provide sufficient guidance during any specific emergency.
Given the difficulty of anticipating and then assessing the “if and when” of catastrophes, the kind of science-based risk regulation that is so vital for other areas of risk management cannot provide an optimal solution in emergencies. Acknowledging the ultimate limits of risk regulation in emergency situations will help both policymakers and members of the public have more realistic expectations. Achieving a world of zero risk is unattainable. As hard as it may be to accept the inherent limits of regulation, doing so may actually help by comforting policymakers who must make tough calls in response to unknown risks.
When it comes to emergencies, modern risk regulation should be used less to provide ready-made solutions but to inspire a degree of humility in the face of inevitable, if unforeseeable, disasters that loom ahead.
Alberto Alemanno is Jean Monnet Professor of EU Law and Risk Regulation at HEC Paris and Adjunct Professor of Global Risk Regulation at Georgetown University Law Center. He is the editor of Governing Disasters – The Challenges of Emergency Regulation, published recently by Edward Elgar. Professor Alemanno is also the recipient of the 2011 Chauncey Starr Distinguished Young Risk Analyst Award, which is awarded to any member of the Society for Risk Analysis aged 40 years or younger “for outstanding achievement in science or public policy relating to risk analysis and exceptional promise for continued contributions to risk analysis.”