Last reviewed 6 March 2013
Rick Gould describes the origins of the Precautionary Principle, explains why regulators apply it, asks whether it is still relevant at a time of risk-based regulation and the Red Tape Challenge, and summarises the findings of a new report from the European Environment Agency.
The European Environment Agency (EEA) recently published a very lengthy and controversial report on the Precautionary Principle, and stated very clearly that the approach is not only justified in the vast majority of cases, but also essential to protect the environment and human health. The report itself builds on the findings and conclusions of a similar report that the EEA published in 2001, and the authors of the new report are far from reticent in emphasising their conclusions, describing numerous, detailed case studies where early signs of danger have not triggered action. Furthermore, the EEA does not hold back in stating that a lack of caution where the EEA considers it appropriate has led to deaths, illness and significant environmental damage.
In simple terms, the Precautionary Principle requires caution when there is uncertainty over the consequences of any actions. At the same time, in an era of growing, risk-based regulation and probing questions about the costs and benefits of environmental regulation, those constrained by the Principle have accused regulators of being over-zealous, while the laws, which underpin the Principle have on occasion been labelled as “gold plating”.
Definition, origins and the Red Tape Challenge
The concept of the Precautionary Principle is hardly new — it was highlighted for environmental protection in 1988 when the United Nations adopted it at the UN Conference on Environment and Development, and underpinned the UN Rio Summit four years later. The UN interpreted the Principle by stating 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”. Since then, the Principle is either explicit or implicit in many EU directives concerned with environmental protection and human health. At a domestic level, it underpins national environmental policy, legislation and regulatory approaches. Indeed, environmental regulators make frequent references to the Principle, and clearly consider it as a critical part of their regulatory DNA, even in times of modern, proportionate, risk-based approaches to apply legislation.
At the same time, even a quick search of the responses to the coalition Government’s Red Tape Challenge shows that there is a common view that the Principle can be inhibitory and even irrelevant now. For example, one respondent states that in relation to coastal management, “…regulators are bound by EU Directives to apply the Precautionary Principle if there is a trace of doubt or to demand very costly impact assessments, which rarely contribute to a reduction in risk”. Another responds that regulators are “over-zealous” in their application of the Principle. Considering that the current Government’s view is to remove “regulations that were intended for another age”, that “the regulatory system is fit for purpose” and does not obstruct business, it is clear that there are those who feel that the regulators are applying the Principle disproportionately and, indeed, question its universal relevance today. While this view is understandable, what did the EEA find? To put this in context, it is worth considering the EEA’s original report on the Principle, and then why the EEA felt the need to revisit this subject in considerable depth.
Lessons from early warnings
The EAA’s first detailed examination of the impacts of technological innovations was Late Lessons from Early Warnings: The Precautionary Principle,1896–2000. It looked at a large number of technological innovations spanning just over 100 years, noting that while many have been beneficial, a large number have been disastrous. Having commissioned a variety of world experts in different fields (Box 1) to review and write case studies on a wide number of examples, such as the use of the pesticide dichlorodiphenyltrichloroethane (DDT), halocarbons and the use of hormones to promote growth, the EEA looked for patterns in the case studies. The Agency was especially interested in what lessons we could learn from environmental disasters such as halocarbons and their impacts on the ozone layer, and whether we could improve how we examine and predict the benefits and disadvantages of new technologies.
The EEA did find patterns in the case studies, and concluded that there are 12 important lessons (Table 1) that we can learn from the innovations, which promised much and cost much more. So if the first report was so conclusive, why did the EEA revisit this subject?
Scope of Late Lessons from Early Warnings: The Precautionary Principle, 1896–2000
Scope of Late Lessons from Early Warnings II: Science, Precaution, Innovation
Acknowledge and respond to ignorance, as well as uncertainty and risk, in technology appraisal and public policymaking
Provide adequate long-term environmental and health monitoring and research into early warnings
Identify and work to reduce “blind spots” and gaps in scientific knowledge
Identify and reduce interdisciplinary obstacles to learning
Ensure that real world conditions are adequately accounted for in regulatory appraisal
Systematically scrutinise the claimed justifications and benefits alongside the potential risks
Evaluate a range of alternative options for meeting needs alongside the option under appraisal, and promote more robust, diverse and adaptable technologies so as to minimise the costs of surprises and maximise the benefits of innovation
Ensure use of “lay” and local knowledge, as well as relevant specialist expertise in the appraisal
Take full account of the assumptions and values of different social groups
Maintain the regulatory independence of interested parties while retaining an inclusive approach to information and opinion gathering
Identify and reduce institutional obstacles to learning and action
Avoid “paralysis by analysis” by acting to reduce potential harm when there are reasonable grounds for concern
Early warnings revisited
In the second report, Late Lessons from Early Warnings: Science, Precaution, Innovation, the EEA cites three main reasons for the second report. Firstly, the world has changed significantly in just a decade, with new applications and technologies such as genetic engineering for crops, new types of pesticide, nanotechnologies and mobile phones having a major impact on people’s lives. In many ways, the contrasting views towards these technologies echo many of the concerns from earlier decades. Secondly, the findings and patterns in new case studies strongly suggested that the lessons learnt in 2001 are just as relevant today, if not more so. Thirdly, the first report raised the issue of false positives, or cases where the precautionary principle was not needed. Therefore, the EEA felt that it needed to address this nagging question. So what was in the report, and what were its conclusions?
Like the first report, the second contains many case studies written by experts in each field, each of whom was given a template and clear instructions for their examples. Each case study was peer reviewed. Despite the diversity of case studies (see Box 2), there were three common findings. Foremost, the case studies showed that there is often more than sufficient evidence for early action; secondly, there is value in independent, scientific research and accompanying risk assessments; and thirdly, the report states that obstructive behaviour from businesses is common.
The case study of bee decline in France exemplifies all three of these findings. In simple terms, beekeepers in France alleged that a new type of pesticide used for seed dressings was a significant factor in bee decline. At the same time, three years of research from the company that makes the pesticide showed no effects on bees, yet independent research contradicted this. Meanwhile, despite the pesticide having been through all the mandatory tests and risk assessments, the French government banned the pesticide for specific uses for a trial period, stating that the procedures for testing and risk assessment were not rigorous enough. Afterwards, for several years, there followed a long, intense battle between the manufacturer on one side, and the beekeepers, independent researchers and French government on the other. Both sides agreed that a number of different factors could result in bee decline, possibly including the pesticide when used for certain applications. However, the manufacturer’s position was that this was not a justification for the precautionary principle, while those on the other side believed that it was. This saga is still continuing.
Overall, the 750-page report had four, brief conclusions regarding the precautionary principle.
Acknowledge complexity when dealing with multiple effects and thresholds: as the case with bee decline illustrates, if because several factors could be at the root of bee decline, then this is not a justification to ignore individual, potential causes.
Reduce delays between early warnings and actions: this is especially relevant in an era when many new technologies are rapidly emerging.
Rethink and enrich environment and health research: the EEA points out that researchers tend to focus on well-known hazards, at the expense of emerging issues and their possible impacts.
Improve the quality and value of risk assessments: several case studies showed that the current processes for testing and risk assessment are not rigorous enough.
In conclusion, the new report from the EEA does not just suggest that the precautionary principle is still relevant, but even more so than ever before.