Regulation in the environmental context has, until recently, been guided by risk reduction - strategies that require risk-producers to prevent, limit, or clean up contaminants. However, it has increasingly come to rely on "risk avoidance" - strategies that call upon risk-bearers to alter their practices and ways of living so as to avoid exposure to contaminants left unabated. For example, women and children might be asked to eliminate fish from their diets to avoid the risks of methylmercury contamination; asthmatics might be advised to refrain from going outside on "ozone alert" days to avoid the risks of ground-level ozone pollution; and parents may be instructed to keep their children from making mud pies to avoid the risks of lead and other heavy metal contamination. However, there has not yet been a systematic effort to consider and justify a move to risk avoidance. This article undertakes this task, exploring the promise and perils of risk avoidance as a regulatory tool. Among other things, risk avoidance strategies promise cost savings and enhance autonomy. But risk avoidance is also perilous. Risk avoidance strategies are notoriously ineffective; they offer diminishing and, ultimately, finite options for managing environmental risks; they may introduce risks; and they are often unjust. In view of these and other arguments, the article concludes that, on balance, risk avoidance will be inappropriate in most instances. Finally, the article suggests that, in order to evaluate a move to risk avoidance, we need a mode of analysis that enables us to consider whether a risk - with its attendant means of avoidance - is morally, culturally, and socially acceptable.
No Mud Pies: Risk Avoidance as Risk Regulation, 31 VT. L. REV. 273