(4) Environmental Law, Policies & Protection

VIDEO

Benjamin Ross, Origins of the Precautionary Principle

The-Precautionary-Principle
Scientific uncertainty and the precautionary principle

Attempting to rely on science (and related technical disciplines such as risk assessment) as a route through environmental decisions runs quickly into the barriers posed by the unavoidable uncertainty attached to scientific information.

Once it is accepted and well known that science is uncertain, it becomes increasingly difficult to base decisions on ‘the facts’. Some of the complexities of uncertainty are suggested in the extract from Yearley. Uncertainty goes much further than ‘data gaps’ to be filled by further research over time; far more profound questions about the nature of our knowledge are also implied.

Brian Wynne, ‘Uncertainty and Environmental Learning: Reconceiving Science and Policy in the Preventive Paradigm’ (1992) 2 Global Environmental Change 111, pp. 114-24 In the first place, we can talk authentically about risk when the system behavior is basically well known, and chances of different outcomes can be defined and quantified by structured analysis of mechanisms and probabilities.

Second, if we know the important system parameters but not the probability distributions, we can talk in terms of uncertainties. There are several sophisticated methods for estimating them and their effects on outcomes. These uncertainties are recognized, and explicitly included in analysis. Third, a far more difficult problem is ignorance, which by definition escapes recognition. This is not so much a characteristic of knowledge itself as of the linkages between knowledge and commitments based on it - in effect, bets (technological, social, and economic) on the completeness and validity of that knowledge.

Since this third distinction is conceptually more elusive, an example is justified. In the aftermath of the Chernobyl nuclear accident, in May 1986 a radioactive cloud passed over the United Kingdom. Heavy thunderstorms rained out radiocaesium deposits over upland areas, and, despite reassurances that there would be no lasting effects of the radioactive cloud, six weeks after the accident a sudden ban on hill sheep sales and slaughter was announced.

Although this ban was expected to last only three weeks, because the radiocaesium was thought to be chemically immobilized in the soil once washed off vegetation, some hill farms in these areas of Cumbria and North Wales in particular, are still restricted six years later. The scientists made a spectacular mistake in predicting the behavior of radiocaesium in the environment of interest. It was gradually learned that the reason for the mistake was that the original prediction had been based on the observed behavior of caesium in alkaline clay soils, whereas those of the areas in question were acid peaty soils.

It was assumed by the scientists – wrongly as it turned out – that the previously observed behavior also prevailed in the conditions which existed in the hill areas. Thus, contrary to the confident expectations of the scientists, the elevated levels of radiocaesium in the sheep from these upland areas did not fall, and restrictions had to be extended indefinitely, severely damaging the credibility of the scientists and institutions concerned. Eventually it was realized that the chemical immobilization which had been assumed took place only in aluminosilicate clays, and that in the upland peaty acid soils caesium remains chemically mobile, hence available for root uptake and recycle via edible vegetation back into the food chain.

It is important to recognize that this highly public scientific mistake actually followed normal scientific practice. Scientists attempted to predict the behavior of an agent (here radiocaesium) by extrapolating from its observed behavior under certain conditions, making some inadvertent assumptions about the new conditions. When the new observations did not fit with expected behavior, the models underlying the predictions were (eventually) re-examined. Through this, certain previously unnoticed but significant differences were identified, and the models were elaborated accordingly.

... Thus ignorance is endemic to scientific knowledge, which has to reduce the framework of the known to that which is amenable to its own parochial methods and models. This only becomes a problem when (as is usual) scientific knowledge is misunderstood and is institutionalized in policy making as if this condition did not pervade all competent scientific knowledge. This institutionalized exaggeration of the scope and power of scientific knowledge creates a vacuum in which should exist a vital social discourse about the conditions and boundaries of scientific knowledge in relation to moral and social knowledge.

... social commitments are necessary to define the boundaries of, and to give coherence to, scientific knowledge – not only in the large but in quite specific ways. Whenever events expose the ignorance which always underlies scientific models used in public policy, the dominant response is invariably to focus on improving the scientific model. However, although this is important, it is not enough. A response of at least equal importance ought

to examine critically the (often inflated) social commitments built over the existing knowledge, because it is here that ignorance and its corresponding risks are created. Indeterminacy exists in the open-ended question of whether knowledge is adapted to fit the mismatched realities of application situations, or whether those (technical and social) situations are reshaped to ‘validate’ the knowledge.

... The extra concept of indeterminacy ... introduces the idea that contingent social behavior also has to be explicitly included in the analytical and prescriptive framework.

Wynne demonstrates that ‘uncertainty’ is both complex and inescapable. It extends not only to areas where more or better scientific information is required, but to the unpredictability of the real-life behavior of human beings and eco-systems (indeterminacy), and to areas in which we simply ‘don’t know what it is that we don’t know’ (ignorance), and so cannot investigate it. As Wynne observes, the dangers of CFCs and DDT escaped investigation because the ‘uncertainty along which the question of scientific proof for regulation was stretched was in each case the wrong question altogether, as we now know. For DDT, uncertainties were recognized only over acute toxicity; chronic toxicity was not even conceived of. For CFCs, the very property thought to bring low risk to biological species, long-term stability, meant it could reach the stratospheric ozone layer – but this was not even considered at that time.’ We might add to these uncertainties the notion that environmental concerns are not limited to the evaluation of harm, but also incorporate questions of value, for example as to distribution of burden and benefit or ethical questions.

The varied dimensions of uncertainty should make a real difference to the way we assess decision making in environmental law. The precautionary principle has emerged as a central tool for the management of pervasive uncertainty in environmental and public health policy, a recognition that decisions must be made in situations of uncertainty. The precise role and meaning of the precautionary principle remain uncertain and controversial; the literature is enormous, and the most that can be attempted here is to outline some of the main areas of disagreement. It is a good starting point to think about the legal role of a principle.

Elizabeth Fisher, ‘Precaution, Precaution Everywhere: Developing a “Common Understanding” of the Precautionary Principle in the European Community’ (2002) 9 Maastricht Journal of European and Comparative Law 7, pp. 15–16

Much of the discussion concerning the precautionary principle has proceeded on the assumption that the principle is a ‘bright line’ autonomous rule that dictates a particular outcome in a certain set of circumstances. As such, the principle is understood as analogous to rules such as those that state that ‘if you drive over 60 km/ph you have broken the law and will be fined 100 Euros’. Thus for example, McKinney and Hammer Hill describe it as placing a ‘burden of proof of non-harm on anyone undertaking an environmental action whose consequences are unknown’.10 Stone suggests that one interpretation of it ‘commands an activity to be terminated’ in a certain set of circumstances.11 The problem with such a characterization is that, as Stone rightly points out, the preconditions are in no way determinate. Likewise, as others have noted, formulations that demand particular outcomes are neither logically possible nor particularly desirable in cases of scientific uncertainty. As such, as Cross states, the principle can be ‘attacked as an uncertain decision rule’.12

Yet these critiques, by assuming the principle is a rule, proceed on the wrong basis and ignore a basic feature of the principle - that it is, in legal terms, a principle, rather than a rule. Whilst the concept of ‘principle’ will vary depending on its jurisprudential and jurisdictional context, in all cases a principle is not an ‘explicitly formulated’ rule that is unchanging in its application. Rather its application is flexible and will depend on specific circumstances. Moreover, just as other principles do, it ‘states a reason that argues in one direction, but does not necessitate a particular decision’.13

The definition of the precautionary principle found in the Rio Declaration is perhaps the most commonly cited: ‘Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’14 The Rio approach is often categorized as a weak approach to the precautionary principle, characterized by the need for serious or irreversible damage and the question of cost-effectiveness. The latter not only limits the space for precautionary action, but may even deny much of the radicalism of the precautionary principle, as it is precisely in situations of uncertainty that calculations of costs and benefits are most difficult. The weak approach to the precautionary principle can be contrasted with a strong version. This would provide that where there are threats to the environment or health, the proponent of an activity must prove its safety, without reference to costs and benefits. There are unavoidable difficulties with this approach: proof of ‘no risk’ is rarely if ever available, and a consistent refusal to innovate in the absence of such proof would lead to technological stagnation.15

A third, alternative, understanding of the precautionary principle would understand the principle as indicating a need to move beyond a technical approach to risk, bringing factors other than scientific and technical expertise into decision making for a, including more qualitative, and personal, experience. 16 As Elizabeth Fisher puts it, ‘decision-makers cannot hide behind a façade of “facts” where no definitive factual basis exists. Such a façade not only bears little relation to reality but also results in inefficiency and a false form of accountability.’17 This understanding of the precautionary principle points towards open decision making, and may even reinforce the move towards ‘public participation’ apparent in many areas of environmental law; the ‘risk society’ thesis discussed above also points towards more radical forms of participation, democratizing technical decision making. This approach to the precautionary principle could have a profound impact on the way in which decisions are made. A recognition that the ‘facts’ are no longer a sure-fire response to those who disagree with the scientists also makes it harder to dismiss the factors that impact on public ‘risk perception’, discussed above: ‘public skepticism and alarmism become a bit more understandable’ once one recognizes what a ‘blunt instrument’ many of the tools used by the risk assessor are.18 And public disagreement between scientists further compounds this breakdown in the use of science to justify decisions.

The precautionary principle has received a great deal of attention at European Union (EU) level. Of a number of judicial decisions on the principle, 19 Pfizer20 was the first very detailed and explicit analysis, and remains a significant decision on both the precautionary principle and the use of science by the EU institutions. Although the approach adopted by the Court of First Instance is evolving and not consistently applied in its full rigor, it is illustrative of how the courts will tackle problematic and disputed science. Pfizer arose out of the use of certain antibiotics in animal feed, in order to bring the animals to the appropriate weight for slaughter more quickly and with less feed. Concern about the possible development by bacteria of resistance to particular antibiotics, making the treatment of some diseases by that antibiotic ineffective, has increased in recent years. The applicants sought annulment of a Regulation banning the use of certain antibiotics as additives in feedingstuffs.21

 Case T-13/99 Pfizer Animal Health SA v. Council [2002] ECR II-3305 139.

It is appropriate to bear in mind that, as the Court of Justice and the Court of First Instance have held, where there is scientific uncertainty as to the existence or extent of risks to human health, the Community institutions may, by reason of the precautionary principle, take protective measures without having to wait until the reality and seriousness of those risks become fully apparent...

... 141. A fortiori, the Community institutions were not required, for the purpose of taking preventive action, to wait for the adverse effects of the use of the product as a growth promoter to materialize...

142. Thus, in a situation in which the precautionary principle is applied, which by definition coincides with a situation in which there is scientific uncertainty, a risk assessment cannot be required to provide the Community institutions with conclusive scientific evidence of the reality of the risk and the seriousness of the potential adverse effects were that risk to become a reality...

143. However, it is also clear ... that a preventive measure cannot properly be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified ...144. Rather, it follows from the Community Courts’ interpretation of the precautionary principle that a preventive measure may be taken only if the risk, although the reality and extent thereof have not been fully demonstrated by conclusive scientific evidence, appears nevertheless to be adequately backed up by the scientific data available at the time when the measure was taken.

... 160. ... unless the precautionary principle is to be rendered nugatory, the fact that it is impossible to carry out a full scientific risk assessment does not prevent the competent public authority from taking preventive measures, at very short notice if necessary, when such measures appear essential given the level of risk to human health which the authority has deemed unacceptable for society. 161. In such a situation, the competent public authority must therefore weigh up its obligations and decide either to wait until the results of more detailed scientific research become available or to act on the basis of the scientific information available. Where measures for the protection of human health are concerned, the outcome of that balancing exercise will depend, account being taken of the particular circumstances of each individual case, on the level of risk which the authority deems unacceptable for society. 410. The Court considers that a cost/benefit analysis is a particular expression of the principle of proportionality in cases involving risk management.

... 456. The Court observes that the importance of the objective pursued by the contested regulation, i.e. the protection of human health, may justify adverse consequences, and even substantial adverse consequences, for certain traders ... The protection of public health, which the contested regulation is intended to guarantee, must take precedence over economic considerations ...467

.... Pfizer, emphasize the fact that the ban on the use of antibiotics as growth promoters has significant adverse effects on the environment, which ought also to have been taken into account by the Community institutions. In their view, use of those products as additives allows waste from farming, such as nitrogen and phosphates, to be reduced and makes it unnecessary to use other additives based on zinc oxide, a heavy metal causing extensive pollution. 468.

The Court notes in limine that the contested regulation is founded on a political choice, in respect of which the Community institutions were required to weigh up, on the one hand, maintaining, while awaiting further scientific studies, the authorization of a product which primarily enables the agricultural sector to be more profitable and, on the other, banning the product for public health reasons. 469.

As regards Pfizer’s complaint that the institutions, when making their policy choice, did not carry out a cost/benefit analysis, it is apparent from the documents before the Court that an assessment of that kind was made in several of the reports by international bodies which had been submitted to the institutions during the procedure culminating in adoption of the contested regulation and which were examined by the Standing Committee... 471.

... it is appropriate to begin by observing that public health, which the contested regulation is intended to protect, must take precedence over economic considerations ...472.

Next, it is not disputed that use of antibiotics as growth promoters is not essential to meat production. Nor is it disputed that there were alternatives to that practice, even though, as Pfizer maintains, those alternatives make it essential to alter farming methods and may entail higher production costs and higher meat prices. However, there is nothing to suggest that the policy choice made by the institutions was unreasonable in that regard.

Pfizer is a complex decision. A number of (deceptively) straightforward observations about the precautionary principle in the EU might, however, be made in its wake. Most basically, the precautionary principle applies to the protection of public health (we know that it also applies more broadly, 22 particularly to environmental protection23) and this allows decisions to be taken in conditions of scientific uncertainty. A risk assessment is a necessary first step to any such decision, albeit one that cannot be expected to provide certainty. This brings us to the crucial question of when there is sufficient scientific evidence on a risk to bring into play the precautionary principle, and so to take action in the absence of certainty. The Court of First Instance (CFI) in Pfizer distinguishes between a ‘purely hypothetical’ approach to risk, and risk which is ‘adequately backed up by the scientific data available at the time’ (para. 144); but without examining quite how that distinction might be drawn. In the words of Advocate General Mischo, this distinction ‘fully expresses all the tension inherent in applying the precautionary principle: on the one hand, a measure cannot be based on a purely hypothetical risk, yet, on the other hand, one cannot wait until the risk has been established with certainty’;24 he uses the language of ‘plausible risk’.25 In a subsequent decision on the control (by national authorities) of activities under EC nature conservation law, the European Court of Justice (ECJ) refers to ‘reasonable scientific doubt’ as the moment for mandatory application of the precautionary principle.26 This is a far simpler (even simplistic, and of course the rub is in that ‘reasonable’) approach to the precautionary principle, possible in this case because the Court had no need to involve itself in the science at issue, or the use of that science.

Like risk assessment, cost benefit analysis (CBA) has a central, but somewhat ambiguous, role in the Pfizer decision. CBA is ‘a particular expression of the principle of proportionality in cases involving risk management’ (para. 410). It would be a matter of concern if the Court intends to replace the evaluative proportionality balancing exercise with a technical approach to CBA. The Court, however, seems most concerned to ensure a weighing up of the various options, a qualitative as much as a quantitative process (paras. 464–75). Nor, according to Pfizer, can a decision seek ‘zero risk’ (para. 145). Whilst the phrase ‘zero risk’ is somewhat ambiguous (it might mean the attempt to reduce a clearly identified risk, such as the risk of lung disease from exposure to certain types of asbestos,27 to zero), the CFI is concerned to reject any suggestion that positive proof of absolute safety might be required. In doing so, the CFI rejects the ‘strong’ approach to the precautionary principle and its associated difficulties (particularly technological stagnation), as had the European Commission in its Communication on the Precautionary Principle: measures based on the precautionary principle ‘must not aim at zero risk, something which rarely exists’.28Finally, whilst a ‘strong’ approach to the precautionary principle (requiring action to be taken on harm regardless of cost) is rarely found in official circles, Pfizer provides that the protection of public health should take priority over economic interests. In a subsequent case, the CFI refers to the precautionary principle as ‘a general principle of Community law requiring the competent authorities to take appropriate measures to prevent specific potential risks to public health, safety and the environment, by giving precedence to the requirements related to the protection of those interests over economic interests’.29

This provides potentially important ‘cover’ for protective regulatory decisions. However, not only is there a level of inconsistency, given the simultaneous emphasis on risk assessment and CBA; this approach may also rest on the type of oversimplification criticized in the next extract.

Cass R. Sunstein, ‘Beyond the Precautionary Principle’ (2003) 151 University of Pennsylvania Law Review 1003, pp. 1003–8

I aim to challenge the precautionary principle here, not because it leads in bad directions, but because, read for all that it is worth, it leads in no direction at all. The principle threatens to be paralyzing, forbidding regulation, inaction, and every step in between. To explain this problem very briefly, the precautionary principle provides help only if we blind ourselves to many aspects of risk-related situations and focus on a narrow subset of what is at stake. A significant part of my discussion will be devoted to showing why this is so. I will also urge that the precautionary principle gives the (false) appearance of being workable only because of identifiable cognitive mechanisms, which lead people to have a narrow rather than wide view screen. With that narrow view screen, it is possible to ignore, or to neglect, some of the risks that are actually at stake. I emphasize that we have good reason to endorse the goals that motivate many people to endorse the precautionary principle. These goals include the importance of protecting health and the environment even from remote risks, the need to attend to unintended adverse effects of technological change, and the need to ensure that wealthy countries pay their fair share for environmental improvement and risk reduction. But the precautionary principle is a crude way of protecting these goals, which should be pursued directly...

... The most serious problem with the strong version of the precautionary principle is that it offers no guidance – not that it is wrong, but that it forbids all courses of action, including inaction. To understand this point, it will be useful to anchor the discussion in some concrete problems: 1. one of the most controversial environmental issues faced in the first year of the Bush administration involved the regulation of arsenic. There is a serious dispute over the precise level of risks posed by low levels of arsenic in drinking water, but in the ‘worst case’ scenario, over one hundred lives might be lost each year as a result of the fifty parts per billion (ppb) standards that the Clinton administration sought to revise. At the same time, the proposed ten ppb standard would cost over two hundred million dollars each year, and it is possible that it would save as few as five lives annually.

2. Genetic modification of food has become a widespread practice. But the risks of that practice are not known with precision. Some people fear that genetic modification will result in serious ecological harm and large risks to human health.

3. Scientists are not in full accord about the dangers associated with global warming, but there is general agreement that global warming is in fact occurring. It is possible that global warming will produce, by 2100, a mean temperature increase of 4.5 degrees Celsius, that it will result in well over five trillion dollars in annual monetized costs, and that it will also produce a significant number of deaths from malaria. The Kyoto Protocol would require most industrialized nations to reduce greenhouse gas emissions to between ninety-two percent and ninety-four percent of 1990 levels.

4. Many people fear nuclear power on the grounds that nuclear power plants raise various health and safety issues, including some possibility of catastrophe. But if a nation does not rely on nuclear power, it might well rely instead on fossil fuels and in particular on coal-fired power plants. Such plants create risks of their own, including risks associated with global warming. China, for example, has relied on nuclear energy in part as a way of reducing greenhouse gases and in part as a way of reducing other air pollution problems.... In these cases, what kind of guidance is provided by the precautionary principle? It is tempting to say, as is in fact standard, that the principle calls for strong controls on arsenic, on genetic engineering of food, on greenhouse gases, and on nuclear power. In all of these cases, there is a possibility of serious harms, and no authoritative scientific evidence suggests that the possibility is close to zero. If the burden of proof is on the proponent of the activity or process in question, the precautionary principle would seem to impose a burden of proof that cannot be met. Put to one side the question of whether the precautionary principle, understood to compel stringent regulation in these cases, is sensible. Let us ask a more fundamental question: Is that more stringent regulation therefore compelled by the precautionary principle?

The answer is that it is not. In some of these cases, it should be easy to see that, in its own way, stringent regulation would actually run afoul of the precautionary principle. The simplest reason is that such regulation might well deprive society of significant benefits, and for that reason produce a large number of deaths that otherwise would not occur. In some cases, regulation eliminates the ‘opportunity benefits’ of a process or activity, and thus causes preventable deaths. If this is so, regulation is hardly precautionary. The most familiar cases involve the ‘drug lag’, produced by a highly precautionary approach to the introduction of new medicines and drugs into the market. If a government takes such an approach, it might protect people against harms from inadequately tested drugs; but it will also prevent people from receiving potential benefits from those very drugs. Is it ‘precautionary’ to require extensive premarketing testing, or to do the opposite? Or consider the case of genetic modification of food. Many people believe that a failure to allow genetic modification might well result in numerous deaths, and a small probability of many more. The reason is that genetic modification holds out the promise of producing food that is both cheaper and healthier – resulting, for example, in ‘golden rice’, which might have large benefits in developing countries. Now the point is not that genetic modification will definitely have those benefits or that the benefits of genetic modification outweigh the risks. The point is only that if the precautionary principle is taken in its strongest form, it is offended by regulation as well as by no regulation...

Sometimes regulation would violate the precautionary principle because it would give rise to substitute risks, in the form of hazards that materialize, or are increased, as a result of regulation. Consider the case of nuclear power. It is reasonable to think that in light of current options, a ban on nuclear power will increase dependence on fossil fuels, which contribute to global warming. If so, such a ban would seem to run afoul of the precautionary principle.

... It is possible to go much further. A great deal of evidence suggests the possibility that an expensive regulation can have adverse effects on life and health. To be sure, both the phenomenon and the underlying mechanisms are disputed. It has been urged that a statistical life can be lost for every expenditure of $7.25 million, and one study suggests a cutoff point, for a loss of life per regulatory expenditure, of $15 million. A striking paper suggests that poor people are especially vulnerable to this effect – that a regulation that reduces wealth for the poorest twenty percent of the population will have twice as large a mortality effect as a regulation that reduces wealth for the wealthiest twenty percent. I do not mean to accept any particular amount here, or even to suggest that there has been an unambiguous demonstration of an association between mortality and regulatory expenditures. The only point is that reasonable people believe in that association. It follows that a multimillion-dollar expenditure for ‘precaution’ has – as a worst case scenario – significant adverse health effects, with an expenditure of $200 million leading to perhaps as many as thirty lives lost.

... the precautionary principle, taken for all that it is worth, is paralyzing: it stands as an obstacle to regulation and nonregulation, and to everything in between. To say this is not to say that the precautionary principle cannot be amended in a way that removes the problem. But once it is so amended, it is much less distinctive and increasingly resembles an effort to weigh the health benefits of regulation against the health costs, or even to measure benefits against costs.

Whilst Sunstein might be criticized for taking issue with a strong form of the precautionary principle that is seldom adhered to (even Pfizer, which requires that public health be prioritized, refers to the costs and benefits of regulatory options, and bars the search for ‘zero risk’), his warning is pertinent. And in any event, we should be wary of any claim that there are simple answers to the difficult decisions we face in environmental law; the misuse of the precautionary principle could obscure the difficult value judgments to be made. Critics of the precautionary principle, including Sunstein, often discuss a ‘strong’ version of the precautionary principle because, they argue, a ‘weak’ version adds nothing to ordinary good decision making, which always takes scientific uncertainty into account. There is something in this: science never provides absolute certainty. However, the precautionary principle should at least avoid the routine misuse of uncertainty as a justification of non-action. And we could of course go much further, and argue that, rather than telling us what to do with the information from science, the precautionary principle should completely recast the ways in which public administration makes decisions, moving beyond a purely technical approach. The EU judiciary has discussed the potential role of the precautionary principle in good decision making in some detail. The English courts have been somewhat less forthcoming.

R (on the application of Amvac Chemical UK Ltd) v. Secretary of State for the Environment, Food, and Rural Affairs [2001] EWHC Admin 1011

1. The Claimant challenges a decision communicated on 4 August 2001 to suspend regulatory approvals for dichlorvos, a chemical used in pesticides.

... 65. The Claimant does not contend that the Defendants were necessarily under any duty to follow the precautionary principle. Essentially its case is that the Defendants purported to do so, but failed. 66. The precautionary principle, as defined at the 1992 Rio Conference on the Environment and Development, requires that: ‘Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be posed as a reason for postponing cost effective measures to prevent environmental degradation.’67. It is self-evident that the principle itself, as stated above, would not assist the Claimant – rather the reverse. What the Claimant says is that if measures are to be taken in the absence of full scientific certainty, there must necessarily be a proper assessment of risk, since it would be absurd to take measures simply because the absence of any risk could not be completely excluded. Rarely is it possible to prove a negative.

... 73. In May 1999 the Department for Environment, Food and Rural Affairs, issued a Strategy on Sustainable Development entitled A better quality of life, with a foreword by the Prime Minister. Having referred to the precautionary principle, the document continues: ‘The precautionary principle means that it is not acceptable just to say we can’t be sure that serious damage will happen, so we’ll do nothing to prevent it. ‘Precaution is not just relevant to environmental damage – for example, chemicals which may affect wildlife may also affect human health. ‘At the same time, precautionary action must be based on objective assessments of the costs and benefits of action. The principle does not mean that we only permit activities if we are sure that serious harm will not arise, or there is proof that the benefits outweigh all possible risks. That would severely hinder progress towards improvements in the quality of life. ‘There are no hard and fast rules on when to take action: each case has to be considered carefully. We may decide that a particular risk is so serious that it is not worth living with. In other cases society will be prepared to live with a risk because of other benefits it brings. Transparency is essential: difficult decisions on precautionary action are most likely where there is reason to think that there may be a significant threat, but evidence is as yet lacking or inconclusive. Decisions should be reviewed to reflect better understanding of risk as more evidence becomes available.’

... 83. I have been referred to two cases in which the precautionary principle was considered. In R v. Leicester City Council and others, ex parte Blackfordby and Boothorpe Action Group Ltd [2000] JPL 1266, Richards J. referred at paragraphs 65 to 68 to a submission based on the precautionary principle ‘briefly advanced and again plucked out of the air in the course of oral argument, that the decision was Wednesbury unreasonable in its application of the principle ...’. Richards J. said that it was difficult to see precisely how counsel relied on the principle, in the field of planning and waste management. In the end he held that it did not take the arguments any further. In R (on the application of Murray) v. Derbyshire County Council, 6 October 2000, Maurice Kay J. dealt with similar submissions in the same field of regulation. After a limited discussion of the principle, he held that the submission added nothing to a submission based on the relevant regulations and that in any event he was unable to find that there was a failure to have regard to the principle in any event. 84. I am prepared to accept that on a substantive challenge to a regulatory decision, it may in some fields of regulation be relevant to take into account the precautionary principle and, more important, its limitations. It may be relevant to refer to the principle in a substantive challenge in the field of pesticide approval. However, my very firm conclusion is that there is – at least so far – no settled, specific or identifiable mechanism of risk assessment in the field of pesticide approval that the Claimant is entitled to rely on as part of the ‘precautionary principle’, viewed as a separate basis for challenging a decision ...86. In any event I do not consider that the Defendants or their advisory bodies purported in relation to the present decision to apply the precautionary principle as a term of art or any settled, specific, or identifiable mechanism or methodology.

We might note that the precautionary principle in this case is argued by the industry party resisting regulation. We should not be surprised to see that the relatively powerful are best placed to use the law. But we can also see here the paradox that the precautionary principle can even refocus attention on the technical risk assessment, whilst simultaneously suggesting that the information from the risk assessment has inherent limitations. The tension between a technical risk assessment and the emphasis on the evaluative and the political is rather intense.

The flexibility of the precautionary principle, together with the restriction of judicial review to questions of process and illegality, rather than the merits or substance of a decision, mean that although the precautionary principle may protect certain decisions, it will rarely be used to strike down decisions, at EU or United Kingdom level. In the words of the CFI in Pfizer, when the Community institutions have a broad discretion to act, ‘it is settled case-law that . . . review by the Community judicature of the substance of the relevant act must be confined to examining whether the exercise of such discretion is vitiated by a manifest error or a misuse of powers or whether the Community institutions clearly exceeded the bounds of their discretion’ (para.166). Nevertheless, this leaves some space for judicial intervention in interpreting and applying the precautionary principle,30 and Pfizer demonstrates the willingness of the EU courts to assess the action of the EU institutions by reference to the precautionary principle.31 English judges are decidedly reluctant to use the precautionary principle as a tool of judicial review,32 but we might expect them to follow EC level cases and get more involved over time. This is partly a question of the extent to which the EC legal approach to the precautionary principle binds the Member States, a far from straightforward question.33 At the very least, the ECJ interprets EC legislation in such a way that it complies with environmental principles: cases such as Standley (below, p. 37) demonstrate how this interpretative role can extend into the national implementation of EC law;34 similarly, Waddenzee35 requires national courts to assess national implementation of nature conservation legislation by reference to its interpretation of the precautionary principle. This simplifies some complex and potentially important legal developments; we will revisit the role of the precautionary principle in allowing national bodies to justify derogating from free trade rules in Chapters 4 (EU) and 7 (WTO).

 

10. William McKinney and J. Hammer Hill, ‘Of Sustainability and Precaution: The Logical, Epistemological, and Moral Problems of the Precautionary Principle and Their Implications for Sustainable Development’ (2000) 5 Ethics and the Environment 178.

11. Christopher Stone, ‘Is there a Precautionary Principle?’ (2001) 31 Environmental Law Reporter 10790.

12. Frank B. Cross, ‘Paradoxical Perils of the Precautionary Principle’ (1996) 53 Washington and Lee Law Review 859.

13. Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977), p. 26.

14. Declaration of the UN Conference on Environment and Development (Rio Declaration), 3–14 June 1992, principle 15, see Ch. 6, p. 223.

15. Giandomenico Majone, ‘What Price Safety? The Precautionary Principle and its Policy Implications’ (2002) 40 Journal of Common Market Studies 89.

16. Elizabeth Fisher, ‘Is the Precautionary Principle Justiciable?’ (2001) 13 Journal of Environmental Law 315. See also Nicholas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press, 2002), arguing that the principle politicizes technical debates.

17. Elizabeth Fisher, ‘Precaution, Precaution Everywhere: Developing a “Common Understanding” of the Precautionary Principle in the European Community’ (2002) 9 Maastricht Journal of European and Comparative Law 7, p. 9.

18. John S. Dryzek, The Politics of the Earth: Environmental Discourses (Oxford University Press, 1997), p. 73.

19. Although the precautionary principle was not explicitly invoked, the BSE saga raised many relevant issues: Case C-241/01 National Farmers Union v. Secrétariat Général du Gouvernement [2002] ECR I-907; Case C-1/00 Commission v. France [2001] ECR I-9989; Case C-180/96 UK v. Commission [1996] ECR I-3903. More recently, see Cases T-74/00, T-76/00, and T141/00 Artegodan and Others v. Commission [2002] ECR II-4945; Case T-392/02 Solvay Pharmaceuticals BV v. Council [2003] ECR II-4555.

20. Case T-13/99 Pfizer Animal Health SA v. Council [2002] ECR II-3305; Case T-70/99

Alpharma Inc. v. Council [2002] ECR II-3495 was decided on the same day on an almost identical basis.

21. Regulation 2821/98 banning the use of certain antibiotics as additives in feeding stuffs OJ 1998 L 351/4.

22. Artegodan.

23. Article 175 EC, see Ch. 4, p. 153.

24. Case C-192/01 Commission v. Denmark [2003] ECR I-9693, para.101.

25. Ibid., para.102.

26. Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee v. Staatssecretaris vanLandbouw, Natuurbeheer en Visserij [2005] 2 CMLR 31, para.59. See Ch. 15, pp. 651–3.

27. At World Trade Organisation (WTO) level, see European Communities – Measures Affecting Asbestos and Asbestos Containing ProductsWT/DS135/AB/R, 12 March 2001, para. 174. In the EU this is permissible, see C-121/00 Hahn [2002] ECR I-9193; Solvay.

28. COM (2000) 1 final, p. 17.

29. Artegodan, para. 184.

30. See, for example, Michael Doherty, ‘The Judicial Use of the Principles of EC Environmental Policy’ (2000) 2 Environmental Law Review 251.

31. See also, for example, Artegodan.

32. See, for example, R v. Secretary of State for Trade and Industry ex p Duddridge [1996] Env LR 325 (CA); [1995] Env LR 151 (HC); Fisher, ‘Is the Precautionary Principle Justiciable?’

33. See further Joanne Scott, ‘The Precautionary Principle before the European Courts’ in Richard Macrory (ed.), Principles of European Environmental Law (Europa Law Publishing, 2004).

34. See also the decisions in Case C-6/99 Greenpeace v. Ministère de l’Agriculture et de  a Pêche[2000] ECR I-1651; Case C-236/01 Monsanto Agricoltura Italia SpA v. Presidenza del Consiglio dei Ministri [2003] ECR I-8105.

35 Above, n. 26. See further pp. 651–3 

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