Law Commons^™

Taking Uncertainty Seriously: From Permissive Regulation To Preventative Design In Environmental Decision Making, R. Michael M'Gonigle, T. Lynne Jamieson, Murdoch K. Mcallister, Randall M. Peterman

Osgoode Hall Law Journal

This paper contrasts two paradigms of environmental regulatory decision making, "permissive regulation" and "preventative design," with respect to their treatment of scientific and legal uncertainty and the allocation of legal standards and burdens of proof. "Permissive regulation," which is the predominant approach in Canada, suffers two types of statistical errors. A type I error occurs when, for example, a pollution control device is unjustly imposed on an industry. A type II error occurs when no action is taken to control an industry when, in fact, damage is taking place. Concern to prevent type I errors often leads to type II …