The United States increasingly stands apart from European nations in its approach to regulation. Europe is willing to constrain potentially harmful corporate behavior on a precautionary basis, while the United States requires stronger evidence of danger.
The difference was on display this week as the European Union moved more quickly than the United States to ground a popular airplane, the Boeing 737 Max 8, after a pair of fatal crashes.
The European Union Aviation Safety Agency acted Tuesday “as a precautionary measure.”
Britain, which acted separately, and slightly before the Pan-European regulator, offered an even more explicit account of its reasoning, explaining that it was grounding the Boeing planes because authorities did not know the cause of the most recent crash, of an Ethiopian Airlines plane on Sunday.
The Federal Aviation Administration, by contrast, said until Wednesday that the absence of information was the reason it was letting domestic airlines keep the planes in the air.
And on Wednesday, when the F.A.A. joined other nations in grounding the planes, the agency insisted that it was acting because it had obtained new evidence. Daniel Elwell, the agency’s acting administrator, defended the pace of its decision-making, telling NPR on Thursday, “We’re a data-driven organization … We make safety decisions based on what we know.”
There were no crashes between the two decisions, but the difference remains significant. Both regulators had the same information in hand and, for roughly 24 hours, the F.A.A. decided to subject American airline employees and passengers to a greater degree of risk.
The difference in risk tolerance is only part of the story. The Trump administration has openly discouraged the enforcement of a wide range of existing federal regulations. The Wall Street Journal reported the total value of fines imposed on commercial airlines by the F.A.A. in 2018 was 88 percent lower than the total value of fines in 2016. The White House last year proposed to reduce funding and staffing for the F.A.A.’s Aviation Safety Office.
Also, nations often are more reluctant to crack down on domestic companies. Mr. Elwell has insisted the F.A.A. made its decisions solely on the basis of safety. But if safety was the only consideration, then any risk would have warranted action. The F.A.A. is necessarily in the business of balancing the economic benefits of aviation against the safety of passengers. And the economic benefits include Boeing’s role as a major employer and exporter.
But the calibration of regulation still plays an important role.
The 1992 Maastricht Treaty, which launched the project of creating a single set of European regulations, enshrined a “precautionary principle,” meaning that government can impose restrictions even when there is not clear evidence of harm. “Those in public office have a duty not to wait until their worst fears are realized,” Robert Coleman, then the European Commission’s director general for health and consumer protection, said in 2002.
The United States, meanwhile, has moved in the other direction. “As European policymakers have grown more willing to regulate risks on precautionary grounds, increasingly skeptical American policymakers have called for higher levels of scientific certainty before imposing additional regulatory controls on business,” David Vogel, a political scientist at the University of California, Berkeley, wrote in a 2012 book on the divide, The Politics of Precaution.
European nations initially lagged behind the United States in protecting the health and safety of their citizens, which created a popular backlash that gained strength after a series of disasters, including the meltdown at the Chernobyl nuclear plant in 1986. The political environment also has been more supportive in Europe. Right-wing parties in Europe generally are neither as skeptical of science nor as devoted to business as the Republican Party in the United States can be.
The consequences are wide-ranging. In 2010, for example, the European Union banned bisphenol-A (BPA), a chemical used in the formulation of hard, clear plastics, from plastic baby bottles. John Dalli, then the European commissioner for health and consumer policy, cited “uncertainty” about the health effects of ingesting BPA by way of explanation.
The United States Food and Drug Administration insisted there was no evidence of danger. It did not remove the chemical from its list of approved substances in baby bottles until after manufacturers of baby bottles, concerned about a consumer backlash, stopped using BPA voluntarily.
Other recent examples of Europe’s more aggressive approach include a ban on the use of pesticides that appeared to be killing bees, prohibitions on the inclusion of some antibiotics in animal feed and restrictions on waste incinerators.
Precautionary regulation imposes real economic costs. In some cases, the more permissive stance of the United States may well be justified. The case of the Boeing 737 Max 8, however, should not have been a close call. Though the risk of another crash was unknown, the F.A.A. should have recognized that the potential for another loss of human life was an unbearable expense. The rapidity of the agency’s reversal — while information about Ethiopia crash remains quite limited — suggests in this case, at least, regulators accepted the wisdom of a little more caution.
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