WIXLIB

62.T H EP R E C A U T I O N A R YP R I N C I P L E :D E C I S I O N - M A K I N GU N D E RU N C E R T A I N T YCriticisms and responsesA common criticism of the precautionaryprinciple is that it is ill-defined. Concerns relateto ambiguous terms such as ‘irreversible harm’or ‘lack of full scientific certainty’. For example,Sandin (2006) criticises the Rio Declaration’sformulation for only telling us what not to do, andfor not defining a ‘serious threat’.Critics have suggested that these definitionalproblems undermine legal certainty (Morris,2000) and produce inconsistent and unprincipleddecisions (Marchant & Mossman, 2004). Someargue that particular versions of the principle areparalysing because they offer no guidance andforbid all courses of action (Sunstein, 2003).Responses to criticisms of ambiguity includethe argument that inconsistency is not caused bythe principle itself, but rather by its application.Garnett & Parsons (2016) review a selectionof EU cases which invoke the principle andsuggest that the decision on whether to apply theprecautionary principle in EU law can be unclear,‘with ambiguities inherent in determining whatlevel of uncertainty and significance of hazardjustifies invoking the precautionary principle’(Garnett & Parsons, 2017).conditions of uncertainty (Grant & Quiggin,2013).A further criticism of the precautionary principleis that it is anti-scientific and stifles innovation.This argument is most commonly directed at‘strong’ interpretations of the principle — whichmay be understood as ruling out all developmentsthat could have adverse health or environmentalconsequences.This interpretation of the principle is attackedon the basis that it is never possible to eliminaterisk altogether; there is no such thing as a zerorisk activity. An associated fear is that overlyprecautionary decision-making will discourageinvestment in technological development, leading‘in no direction at all’ (Sunstein, 2003). Theprinciple is also sometimes misunderstood bycritics to mean ‘excessive’ regulation rather thanprecaution. Some of these concerns are voicedby industry representatives fearing burdensomerules because of the precautionary principle.However, others argue that applying the principledoes not necessarily mean more stringent or costlyregulation, and that it could simply be used toIt has also been pointed out that conventionalrisk assessment is no more ‘intrinsically immune’to manipulation than other decision principles(Stirling, 2016). The precautionary principle shouldnot be understood as a precise formula but rathera ‘flexible principle that ensures that decisionmakers are not ignoring problems of scientificuncertainty’ (Fisher, 2007).Stirling (2016) emphasises that the precautionaryprinciple can be used in multiple ways, inconjunction with various risk-assessment andforesight tools (Science for Environment Policy,2016). The principle can be read as a simplerequirement to take risks into account, even ifthey are unproven, which is an approach commonto all mainstream fields of decision-making inFunny cartoon scientist with a question mark iStock/artenot2013.

T H EP R E C A U T I O N A R YP R I N C I P L E :D E C I S I O N - M A K I N GU N D E RU N C E R T A I N T Y7Wind power, development of. Pixabay/winniero 2016. Creative commons CC0ensure better processes of decision-making ratherthan any particular outcome.The Wingspread Conference Statement on thePrecautionary Principle (issued following ameeting between scientists, philosophers, lawyersand environmental activists in Wisconsin, UnitedStates, in 1998) states that the application ofthe principle should involve ‘open, informedand democratic’ processes, and ‘must includepotentially affected parties’.It does not follow that precaution is un- or antiscientific. What is unscientific, says Stirling (2016),is to ignore multiple perspectives on uncertainty.The fact that the precautionary principle canencourage more open discussion of the valuejudgements underpinning methods of riskassessment and cost-benefit analysis can be saidto make the principle more, rather than less,reasonable and accountable. The precautionaryprinciple may also help to avoid situations in whichstandard risk analysis otherwise creates a bias infavour of taking chances on poorly understoodrisks (Grant & Quiggin, 2013).One response to arguments that the precautionaryprinciple is too strong (and thus paralysing) or tooweak (and thus meaningless) is that the principlemay be used for a range of different purposes(such as strengthened standards, monitoringmeasures or licensing arrangements).Braunisch et al. (2015) develop a ‘gradated’approach to precaution, which goes beyond binaryarguments (‘anti-scientific’/‘pro-scientific’, ‘antiinnovation/‘pro-innovation’). Their case study onwind-power developments (see page 19) highlightsthe potential for a more nuanced application ofthe precautionary principle.

8T H EP R E C A U T I O N A R YP R I N C I P L E :D E C I S I O N - M A K I N GU N D E RU N C E R T A I N T YCase Study: Scientific uncertainty and climate change litigationA recent legal analysis suggests that using theprecautionary principle in climate-change-relatedlegal cases could increase the chances of successby overcoming problems of scientific uncertaintythat are otherwise exploited by defendants(Omuko, 2016).Frustrations over failure to tackle climate changehas driven some public-interest groups, individualsand local governments to take corporations andnational governments to court, particularly inAustralia and the United States. In a recent examplein Europe, a case was brought against the Dutchgovernment by a Dutch NGO (Hague Districtcourt, 2015). In this landmark case, the court ruledthat the government was neglecting its duties toaddress climate change adequately and ordered itto curb the Netherlands’ emissions. However, thisexample is an exception to the general pattern.Elsewhere, most climate-change-related casesdo not lead to successful rulings. Omuko (2016)argues that the main barrier to success is the ‘proofproblem’. This refers to two related issues: The first issue is the ‘drop in the ocean’problem. This is an argument often used bydefendants to claim that their emissions aretoo small compared with global emissions tocause any real impact.The second issue is scientific uncertainty.Although there is strong scientific evidence ofclimate change and its impacts, it is not possibleto link a specific impact to a specific source ofemissions — as is usually required by courts.The precautionary principle may be used inthese situations to take protective measuresnotwithstanding a lack of evidence of harm orstraightforward causal relationships. In practice,it may allow courts to accept general evidenceof climate change and its impacts. For instance,evidence of global sea-level rise could meanthat erosion at a specific coastal site is likely.This approach was taken in an Australian case,where the court accepted the general consensusthat climate change will lead to a risk of extremeweather events, and, therefore, did not grant abuilding permit to construct seaside apartments.2The precautionary principle could also shift theburden of proof to the defendant. This occurredin the United States where the EnvironmentalProtection Agency (EPA) was required to provethat greenhouse gas emissions from the transportindustry do not contribute to climate change.The EPA failed to prove this and was ordered toregulate transport emissions. The court took aprecautionary approach in this case, arguing thatthe EPA could not avoid its obligations becauseof some ‘residual uncertainty’ (Supreme Court ofthe United States, 2007).Omuko (2016) argues that increased use of theprecautionary principle in litigation could lead tomore successful judgements and, consequently,place greater pressure on governments andbusinesses to be more proactive in their responseto climate change.2. Gippsland Coastal Board vs South Gippslands & Others: sources/gippslandcoastal board v south gippsland sc and others.pdf

T H E3.P R E C A U T I O N A R YP R I N C I P L E :D E C I S I O N - M A K I N GU N C E R T A I N T Y9Precautionary principle in practice: application in the EUThe precautionary principle was formally adoptedin the Maastricht Treaty in 1992, and is one ofthe main principles on which EU environmentalpolicy is based. Article 191(2) Treaty on theFunctioning of the EU3 imposes an obligation onEU institutions to ensure that EU environmentalpolicy is based on the precautionary principle.The principle has also been incorporated into anumber of measures of secondary legislation(i.e. Regulations and Directives), which applyto Member States. For example, the principleunderpins the 2007 Regulation on the Registration,Evaluation, Authorisation and Restriction ofChemicals (REACH)4, which gives greaterresponsibility to industry to manage the risksfrom chemicals and to provide safety informationon substances circulating in the EU market.The European Commission’s Communication onthe Precautionary Principle provides additionalinformation about the procedural steps thatdecision-makers are expected to take inimplementing the precautionary principle.The Communication states that an approachbased on the precautionary principle should: start with the fullest possible scientificevaluation, identifying at each stage and as faras possible the degree of scientific uncertainty; entail an evaluation of various riskmanagement options, including the option oftaking no precautionary action; and U N D E Rinvolve as early as possible and, to the extentreasonably possible, all interested parties.The Communication goes on to explain that anymeasures adopted on the basis of the precautionaryprinciple should also be: proportionate (i.e. should not go beyond whatis appropriate); non-discriminatory and consistent (meaningthat comparable situations should not betreated differently); based on cost-benefit analysis; and subject to review when new scientificinformation becomes available.3.1 Scope for a more precautionaryapproach?Some case studies, e.g. Harremoës et al. 2002, havesuggested that, had the precautionary principlebeen applied in certain situations, for exampleto limit the use of specific habitat-damagingantifouling agents in paints for ships and boats,environmental harm could have been avoided(Santillo et al. 2001).Patterson & Gray (2012) identify the UKGovernment’s initial failure to adopt aprecautionary approach to bovine spongiformencephalopathy (BSE) in British cattle, arguingthat it was a major policy mistake to interpret ‘noevidence of harm’ as ‘evidence of no harm’.Historical case studies have led some to concludethat a more precautionary response was neededto manage human exposure to substances suchas asbestos and dichlorodiphenyltrichloroethane(DDT) (Harremoës et al. 2002).3. e-191.html4. ach en.htm

10T H EP R E C A U T I O N A R YP R I N C I P L E :D E C I S I O N - M A K I N GU N D E RU N C E R T A I N T YBusiness accident iStock/Bplanet 2014.In a more recent example, the Organisationfor Economic Co-operation and Development(OECD) has called for a precautionary approachto particular applications of nanotechnology,stating that "there is enough evidence to suggestthat exposure to nanoparticles, particularly tothose insoluble in water, should be minimised as aprecaution."(OECD, 2005).The precautionary principle is said to apply tothe EU regulation of nanotechnologies becauseexisting EU legislation, such as REACH, is alreadyunderpinned by the principle. REACH andchemical classification, labelling and packaging(CLP) are currently used as frameworks for therisk management of nanomaterials when theyoccur as substances or in mixtures.However, as the framework in these areas hasbeen established without specifying whethersubstances are nano- or non-nano-scale, thereis an uncertainty as to whether relevant riskassessment, also leading to identification ofadequate risk management, can be generallyanticipated as the result of this framework. ‘Inorder to close those gaps, it is necessary to turnto the precautionary principle and argue for aninterpretation of the relevant provisions in thelight thereof.’ (Heselhaus, 2010).While the European Commission states thatcurrent regulatory regimes reflect the precautionaryprinciple, it notes that "additional precautionaryaction such as substance or use restrictions forindividual substances (including on particularforms or modifications of nanomaterials) maybecome necessary if new information becomesavailable indicating serious potential risks"(European Commission, 2012).

T H EP R E C A U T I O N A R YP R I N C I P L E :D E C I S I O N - M A K I N GU N D E RU N C E R T A I N T Y11Case Study: How the UK Government has used the precautionaryprincipleIn line with the EU principles, the UKGovernment implemented a precautionaryapproach to its decision-making and, as earlyas 1990, acknowledged it as a key principle ofenvironmental policy. However, the UK hascome under criticism from certain researchersand commentators for only implementing theprecautionary principle as a last resort or whenstrongly influenced by public opinion or the EU(Boehmer-Christiansen, 1994).Committee on Toxicity of Chemicals in Food,Consumer Products and the Environment) hadadvised the government that there were no provenhealth risks from low exposure to OPs. Patterson& Gray (2016) suggest that the government tookthe view that banning OPs could lead to the useof other substances that could harm water qualitywithin rivers. The government was criticised for itsapproach and it has been suggested that its decisionmay have been influenced by industry pressure.Patterson & Gray (2016) have assessed whetherthe UK government uses the precautionaryprinciple in an opportunistic or pragmaticmanner in environmental decision-making. Casestudies were used to examine the government’sposition, including their approach to the use oforganophosphorous pesticides (OPs) in sheepdips and genetically-modified (GM) crops.When legislating on GM crops, the UK governmentstarted from a similar position. The governmentinitially saw GM crops as a potential new market,as no hazards had been shown by early research.The government’s position changed due to publicopposition and EU policy (the EU having adopteda stronger precautionary approach).Official and non-official documents were consultedto assess the cases, including Parliamentary SelectCommittee reports, government departmentalreports, scientific research reports and journalarticles, and newspaper reports. In addition, 14interviews were conducted with Members ofParliament, members of advisory committees,research scientists, and members of advocacygroups such as the OrganophosphorusInformation Network (OPIN).OPs were commonly used in sheep dips to controlskin parasites, such as lice and sheep scab, duringthe 1980s, when about 40 million sheep were treatedonce or twice a year. Farmers who were exposed toOPs during handling or spraying of the chemicalscomplained they suffered health problems, includingheadaches, flu-like symptoms, blurred vision, shortterm memory loss and confusion.Despite pressure from farmers, the governmentdid not invoke the precautionary principle and,therefore, did not ban OPs. Three governmentcommittees (the Veterinary Products Committee,theCommittee on the Safety of Medicines, and theGM crops generated negative public opinion andin 1998 the EU operated an unofficial moratoriumon new approvals of GM products. Concernsincluded whether GM crops, such as plantsresistant to insect pests, might escape into wildpopulations and impact negatively on biodiversity.Organisations such as the Royal Society for theProtection of Birds and Friends of the Earthcalled for a halt to GM crop development. Therewere also concerns regarding potential impacts onhuman health.As a result, the UK Government delayeddevelopment of GM food crops until field trialshad been completed. The government also formeda Cabinet Committee on Biotechnology andinitiated public debate on genetic modification.The scientific review of GM crops found noevidence for banning them, but found gaps in theknowledge base and it was, therefore, decided thatapproval of products should be considered on acase-by-case basis.Patterson & Gray (2016) describe this as a strongprecautionary position, influenced by public

12T H EP R E C A U T I O N A R YP R I N C I P L E :opinion, NGOs, EU policy and the paucity ofscientific knowledge. These factors and the needfor an immediate decision on GM crops explain thedifferent approach taken compared to that to OPs.Some commentators have said that the UKGovernmentreluctantlyimplementedtheprecautionary principle in these examples (VanZwanenberg & Millstone, 2002). However, Patterson& Gray (2016) argue that the UK’s approach isbased on pragmatism and reflects the circumstancesof each case.A report by the UK Interdepartmental LiaisonGroup on Risk Assessment (UK-ILGRA, 2002)Business man solving mathematical equation iStock/triloks 2016.D E C I S I O N - M A K I N GU N D E RU N C E R T A I N T Ysuggests that the precautionary position adopted"should reflect the commitment to sustainabledevelopment that gives full weight to economic,social and environmental factors." It adds thatthe principle should not obstruct innovationand, applied properly, it is a positive policy tool"to encourage technological innovation andsustainable development by helping to engenderstakeholder confidence that appropriate riskcontrol measures are in place".Table 1 (opposite) presents a range of differentviews of precaution — ranging from ‘weak’to ‘strong’, from a study by Garnett & Parsons(2017).

T H EP R E C A U T I O N A R YP R I N C I P L E :D E C I S I O N - M A K I N GU N D E RU N C E R T A I N T Y13Attributes used toassess the strengthof application ofthe precautionaryprincipleWeak precaution:‘uncertainty doesnot justify inaction’Moderateprecaution:‘uncertainty justifiesaction’Strong precaution:‘uncertainty justifiesshifting the burdenand standard of proof’Severity of potentialharm promptingprecautionaryaction as referencedin internationallegislation andregulationRio Declarationsuggests thatregulation is permittedto avoid ‘serious andirreversible damage’The EuropeanCommissionCommunication on theprecautionary principlesuggests the use ofregulation proportionalto the risk level, followingpreliminary objectivescientific evaluationto avoid ‘potentiallydangerous effects’The WingspreadStatement conveys thatclear responsibility lieswith the

Science for Environment Policy The precautionary principle: decision-making under uncertainty About Science for Environment Policy Science for Environment Policy is a free news and information service published by the European Commission's Directorate-General Environment, which provides the latest environmental policy-relevant research findings.