A widely contested norm in international environmental law, the precautionary principle has been a theme of much critical debate. The principle originated from the German environmental policy, Votsorgeprinzip. Though the scope and definition of the German principle is not clear, the 1984 report of the Federal Government to the Parliament suggests that damages done to the natural world should be avoided in advance; scientific research should be promoted to detect potential threats to the environment; precautionary steps should be taken even in the absence of conclusive scientific research; and precaution means to develop, in all sectors of the economy, technological processes that significantly reduce environmental burdens, especially those brought about by the introduction of harmful substances. Since then, the principle has been incorporated in several environmental policy documents. From being recognised internationally in the UN World Charter for Nature in 1982, the 1992 Rio Declaration, to the 1998 Wingspread Declaration, the principle is now ubiquitous. It is also the foundation for the European Union’s environmental policy.
Cass Sunstein has been one of the strongest voices disputing the efficacy of the principle. Sunstein argues that the principle operates in a way that it paralyses action entirely. Drawing upon Sunstein’s critique, in this article, I argue that instead of completely ousting the principle, revisiting its implementation could address its ineffectiveness.
There is no crystallized definition of the principle, rather a continuum of understandings around it; Sunstein’s categorises these as the weak and the strong renditions of the principle. The weak version of the principle states that 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. On the other hand, the strong version of the principle states that 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 established scientifically. In this context, the proponent of the activity, rather than the public, should bear the burden of proof. Sunstein favors the weak version of the principle and critiques the strong version. Albeit my focus is to address this critique, before I do so, it is relevant to point out why the weak version is not optimum for effective environmental protection.
Firstly, even though the weak version allows undertaking measures to prevent irreversible or serious damage, it subjects such measures to their cost-effectiveness. If the environmental damage is as severe as reflected in the principle, the cost-effectiveness of the measure(s), should not be material. By factoring in the cost of undertaking these measures, it only takes into consideration the material damages that may be quantified in monetary terms, entirely excluding the moral damages of the impugned activity. Secondly, by limiting the harm to severe or irreversible, it excludes all environmental harm that may not fulfil this severity or irreversibility threshold. Furthermore, given the inherent nature of environmental harm, its magnitude may become evident years after the impugned activity is carried out and/or completed. Therefore, at the time the activity is allowed, the magnitude of its harm, may not be wholly known.
The strong version of the principle states that precautionary measures should be taken even in the absence of scientific certainty about the potential harm that the impugned activity may have on human health or the environment. Notably, neither does it require the harm to be potentially serious or irreversible, nor does it mandate that the measures undertaken to prevent such harm should be cost-effective.
Sunstein disputes the strong version of the principle with one primary argument, i.e., it does not account for the risks that may arise as a consequence of prohibiting the impugned activity. For example, he argues that given the adverse effects of nuclear energy on health and environment and the concomitant scientific uncertainty, the precautionary principle disallows its use. However, this does not factor in the consequent increase in the use of fossil fuels, which triggers global warming. Thus, dismissing the principle entirely, Sunstein argues that it is directionless and does not provide any effective guidance, rather it merely paralyses all action.
In my opinion, Sunstein’s dismissal of the principle as directionless is an overreaching criticism. Drawing upon his analysis, I argue that rather than dismissing the principle entirely, we must revisit its application. To that end, the application of the principle should facilitate research in developing effective alternatives rather than merely preventing the impugned activity. The application of the strong version of principle in Afton Chemicals v Secretary of State Transport, is exemplary in this context. While applying the principle, the European Court of Justice, temporarily limited the use of MMT in fuels, given its potential adverse effects on the environment and human health. Notably, the Court simultaneously ordered time-bound research to ascertain the impacts of metallic additives in fuels, and propose alternatives, if required.
If applied optimally, the precautionary principle could preclude environmental damage and facilitate the development of eco-friendly alternatives. Consequently, rather than ousting the principle in its entirety, efforts must be directed towards optimising its application.
Kanika Jamwal
The author is an Assistant Lecturer at Jindal Global Law School (JGLS), India. Her research interests include, environmental law, climate change law & traditional water systems.
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