Precautionary principle

The precautionary principle (or precautionary approach) generally defines actions on issues considered to be uncertain, for instance applied in assessing risk management. The principle is used by policy makers to justify discretionary decisions in situations where there is the possibility of harm from making a certain decision (e.g. taking a particular course of action) when extensive scientific knowledge on the matter is lacking. The principle implies that there is a social responsibility to protect the public from exposure to harm, when scientific investigation has found a plausible risk. These protections can be relaxed only if further scientific findings emerge that provide sound evidence that no harm will result. The weak version is the least restrictive and allows preventive measures to be taken in the face of uncertainty, but does not require them (eg, Rio Declaration 1992; United Nations Framework Convention of Climate Change 1992). To satisfy the threshold of harm, there must be some evidence relating to both the likelihood of occurrence and the severity of consequences. Some, but not all, require consideration of the costs of precautionary measures. Weak formulations do not preclude weighing benefits against the costs. Factors other than scientific uncertainty, including economic considerations, may provide legitimate grounds for postponing action. Under weak formulations, the requirement to justify the need for action (the burden of proof) generally falls on those advocating precautionary action. No mention is made of assignment of liability for environmental harm. Strong versions justify or require precautionary measures and some also establish liability for environmental harm, which is effectively a strong form of 'polluter pays'. For example, the Earth Charter states: 'When knowledge is limited apply a precautionary approach ... Place the burden of proof on those who argue that a proposed activity will not cause significant harm, and make the responsible parties liable for environmental harm.' Reversal of proof requires those proposing an activity to prove that the product, process or technology is sufficiently 'safe' before approval is granted. Requiring proof of 'no environmental harm' before any action proceeds implies the public is not prepared to accept any environmental risk, no matter what economic or social benefits may arise (Peterson, 2006). At the extreme, such a requirement could involve bans and prohibitions on entire classes of potentially threatening activities or substances (Cooney, 2005). Over time, there has been a gradual transformation of the precautionary principle from what appears in the Rio Declaration to a stronger form that arguably acts as restraint on development in the absence of firm evidence that it will do no harm. No introduction to the precautionary principle would be complete without brief reference to the difference between the precautionary principle and the precautionary approach. Principle 15 of the Rio Declaration 1992 states that: 'in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall be not used as a reason for postponing cost-effective measures to prevent environmental degradation.' As Garcia (1995) pointed out, 'the wording, largely similar to that of the principle, is subtly different in that: (1) it recognizes that there may be differences in local capabilities to apply the approach, and (2) it calls for cost-effectiveness in applying the approach, e.g., taking economic and social costs into account.' The 'approach' is generally considered a softening of the 'principle'.'As Recuerda has noted, the distinction between the 'precautionary principle' and a 'precautionary approach' is diffuse and, in some contexts, controversial. In the negotiations of international declarations, the United States has opposed the use of the term 'principle' because this term has special connotations in legal language, due to the fact that a 'principle of law` is a source of law. This means that it is compulsory, so a court can quash or confirm a decision through the application of the precautionary principle. In this sense, the precautionary principle is not a simple idea or a desideratum but a source of law. This is the legal status of the precautionary principle in the European Union. On the other hand, an 'approach' usually does not have the same meaning, although in some particular cases an approach could be binding. A precautionary approach is a particular 'lens' used to identify risk that every prudent person possesses (Recuerda, 2008)This act intends to protect people, animals and plants, their biological communities and habitats against harmful effects or nuisances and to preserve the natural foundations of life sustainably, in particular biological diversity and the fertility of the soil. Early preventive measures must be taken in order to limit effects which could become harmful or a nuisance.Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.When the occurrence of any damage, albeit unpredictable in the current state of scientific knowledge, may seriously and irreversibly harm the environment, public authorities shall, with due respect for the principle of precaution and the areas within their jurisdiction, ensure the implementation of procedures for risk assessment and the adoption of temporary measures commensurate with the risk involved in order to preclude the occurrence of such damage.Where there are threats of serious, negative animal welfare outcomes, lack of full scientific certainty as to the sentience of the animals in question shall not be used as a reason for postponing cost-effective measures to prevent those outcomes.Injury in fact requires some 'credible threat of harm.' Cent. Delta Water Agency v. United States, 306 F.3d 938, 950 (9th Cir. 2002). At most, Wagner has alleged that experiments at the Large Hadron Collider (the 'Collider') have 'potential adverse consequences.' Speculative fear of future harm does not constitute an injury in fact sufficient to confer standing. Mayfield, 599 F.3d at 970.The weak versions of the Precautionary Principle state a truism—uncontroversial in principle and necessary in practice only to combat public confusion or the self-interested claims of private groups demanding unambiguous evidence of harm, which no rational society requires.(p.24) The precautionary principle (or precautionary approach) generally defines actions on issues considered to be uncertain, for instance applied in assessing risk management. The principle is used by policy makers to justify discretionary decisions in situations where there is the possibility of harm from making a certain decision (e.g. taking a particular course of action) when extensive scientific knowledge on the matter is lacking. The principle implies that there is a social responsibility to protect the public from exposure to harm, when scientific investigation has found a plausible risk. These protections can be relaxed only if further scientific findings emerge that provide sound evidence that no harm will result. In some legal systems, as in law of the European Union, the application of the precautionary principle has been made a statutory requirement in some areas of law. Regarding international conduct, the first endorsement of the principle was in 1982 when the World Charter for Nature was adopted by the United Nations General Assembly, while its first international implementation was in 1987 through the Montreal Protocol. Soon after, the principle integrated with many other legally binding international treaties such as the Rio Declaration and Kyoto Protocol. The concept 'precautionary principle' is generally considered to have arisen in English from a translation of the German term Vorsorgeprinzip in the 1980s. In 1988, Konrad von Moltke described the German concept for a British audience, which he translated into English as the precautionary principle.:31 The concepts underpinning the precautionary principle pre-date the term's inception. For example, the essence of the principle is captured in a number of cautionary aphorisms such as 'an ounce of prevention is worth a pound of cure', 'better safe than sorry', and 'look before you leap'. The precautionary principle may also be interpreted as the evolution of the 'ancient-medical principle' of 'first, do no harm' to apply to institutions and institutional decision-making processes rather than individuals. In economics, the Precautionary Principle has been analysed in terms of 'the effect on rational decision-making', of 'the interaction of irreversibility' and 'uncertainty'. Authors such as Epstein (1980) and Arrow and Fischer (1974) show that 'irreversibility of possible future consequences' creates a 'quasi-option effect' which should induce a 'risk-neutral' society to favour current decisions that allow for more flexibility in the future. Gollier et al. conclude that 'more scientific uncertainty as to the distribution of a future risk – that is, a larger variability of beliefs – should induce society to take stronger prevention measures today.' Many definitions of the precautionary principle exist: Precaution may be defined as 'caution in advance', 'caution practised in the context of uncertainty', or informed prudence. Two ideas lie at the core of the principle::34 One of the primary foundations of the precautionary principle, and globally accepted definitions, results from the work of the Rio Conference, or 'Earth Summit' in 1992. The principle 15 of the Rio Declaration notes: 'In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. 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.' The 1998 Wingspread Statement on the Precautionary Principle summarises the principle this way: 'When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.' The Wingspread Conference on the Precautionary Principle was convened by the Science and Environmental Health Network.