Precautionary Principle

The Precautionary Principle is a moral and legal principle that states that when an activity causes some threat or harm to the public or the environment, general precautionary measures should be taken, even when there is scientific uncertainty about whether harm will occur. According to the precautionary principle, a lack of scientific certainty should not be used to avoid taking action to prevent potential damage.

The precautionary principle is highly relevant for climate litigation. In environmental law, the precautionary principle seeks to prevent actions that would cause irreversible environmental damage for future generations. Like any field that involves forecasting, assessing the future impacts of climate change involves uncertainty. The precautionary principle maintains that this uncertainty is not an excuse for inaction.

Background

History

The precautionary principle emerged in the 1970's in German law, evolving from the German principle ‘Vorsorge’, or foresight, It has since been incorporated as a legal principle in international environmental law, European Union law, and the domestic laws of many countries.

The precautionary principle emerged as a key concept in international environmental law by the 1980's when it was included in several landmark agreements, starting with the 1985 Vienna Convention for the Protection of the Ozone Layer. The Montreal Protocol, which followed the framework established by the Vienna Convention, referenced the precautionary principle in 1987.” The Rio Declaration in 1992 also included the precautionary principle.

Since the adoption into international environmental law, the precautionary principle has become a fixture in domestic laws as well.

Basis in Law

International Law

The precautionary principle is well enshrined in international environmental law. Most international environmental agreements include some concept of precautionary action.

The preamble of the Montreal Protocol calls for the parties to:

"Protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete [the Ozone layer]"

Principle 15 of the Rio Declaration reads:

"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 United Nations Framework Convention on Climate Change (UNFCCC), signed in 1992 adopted the same precautionary approach as the Montreal Protocol. Article 3 stated

"The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects."

The UNFCCC was signed at a time when the scientific uncertainty about climate change was greater than it is today and the negative impacts of climate change were far less visible. The ambition of the UNFCCC to begin limiting greenhouse gas emissions therefore relied heavily upon the precautionary principle.

Europe

The precautionary principle was enshrined in European Union law through the Maastricht Treaty, signed in 1992. It is now included in Article 191 of the Treaty on the Functioning of the European Union among the principles underpinning EU environmental policy.

Numerous European countries have incorporated the precautionary principle into domestic law as well. Sweden has made the precautionary principle a guiding principle of its environmental and public health policies, including it in the Swedish Environment Code in 1999. France incorporated it into its Constitution in 2005.

Australia

Following the Rio Declaration in 1992, Australia incorporated the precautionary principle into domestic law. The National Strategy for Ecologically Sustainable Development of 1992 adopted the precautionary principle as a "core element" of pursuing ecologically sustainable development. The Environment Protection and Biodiversity Conservation Act of 1999 also included the precautionary principle

India

In AP Pollution Control Board v. Nayudu the Supreme Court of India applied the precautionary principle in considering a petition against the development of certain hazardous industries. The Court held that "...it is necessary that the party attempting to preserve the status quo by maintaining a less-polluted state should not carry the burden or proof and the party who wants to alter it, must bear this burden".

Pakistan

In Zia v. WAPDA, The Supreme Court of Pakistan was called upon to consider a challenge by local residents to the construction of high voltage transmission lines in their locality. They argued that the electro-magnetic radiation (EMR) emitted by the transmission lines constituted a serious health hazard. In deciding that the scientific evidence in relation to the effects of exposure to EMR was inconclusive, the Court applied the precautionary principle.

United States

In the United States the precautionary principle is not expressly mentioned in laws or policies. However, some laws have a precautionary nature, and the principle underpins much of the early environmental legislation in this country (The National Environmental Policy Act, The Clean Water Act, and The Endangered Species Act).

Controversy

Various criticisms of the precautionary principle have been offered, both in regards to it as a philosophical principle and as a matter of law. Some see it as an unscientific approach that hinders progress and leads to over-regulation. However, others believe that it helps to protect human health and the environment from complex hazards and to promote the type of progress that is better for people and their environment.

Objections to the precautionary principle include:

• The precautionary principle, if strictly applied, would bind an actor to inaction because all actions involve risk. Further, inaction carries it's own risks.
• Since it is simply a question of common sense, it should not be raised to the status of a principle.
• Decision-makers are sometimes selective in their use of the precautionary principle, applying it for political reasons, rather than scientific reasons.
• One of the most controversial elements of the principle is the shift of the burden of proof. Traditionally, the person claiming an activity could cause harm should produce proof to back up that claim. The precautionary principle reverses the burden of proof—the individual or entity proposing the activity must prove the activity is not harmful.

As a practical matter, however, the precautionary principle seeks to balance risk and caution and provide a legal tool to avoid harms, particularly irreversible harms, before they occur. As humanity has advanced in capability and now has the ability to alter the planet and life itself in significant and irreversible ways, the precautionary principle can serve as a legal tool to proceed with caution in areas where significant dangers may arise.

Cases Involving Precautionary Principle

• Ali v. Federation of Pakistan
• AP Pollution Control Board v. Nayudu (India)
• Farooq v. Federation of Pakistan
• Farooque v. Bangladesh
• Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (Norway)
• Leghari v. Federation of Pakistan
• Swiss Senior Women for Climate Protection v. Swiss Federal Council
• Urgenda Foundation v. State of the Netherlands
• Zia v. WAPDA (Pakistan)