By Harpreet Kaur, UILS, Chandigarh
“Editor’s Note: The precautionary principle has been adopted universally in different environmental instruments. It states that if there is risk of severe damage to humans and the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. This principle shifts the burden of proof to the person who is asserting that the activity would not be harmful. The principle, as it stands today, has its roots in the 1960s, when the adverse effect of the pesticide DDT was noticed. It was further strengthened when Germany adopted it in its environmental law. However, it was internationally acknowledged in the early 1980s, when environmental degradation became a matter of concern for the international community. Since then it has been a part of instruments and documents like the Vienna Convention on Ozone Layer, Agenda 21, Framework Convention on Climate Change among others. The principle has also become an integral part of Indian environmental jurisprudence. It has been reiterated in numerous landmark cases. The precautionary principle has become an important part of public international law. However, in the absence of a formal international framework, there are some issues that need to be addressed.”
The precautionary principle states that if there is risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection. When there is uncertainty regarding the impacts of an activity, the precautionary principle advocates action to anticipate and avert environmental harm.
Article 3 of the UN Framework Convention on Climate Change was just one in a long list of international agreements that contained the precautionary principle, making it one of the most popular legal concepts in international environmental law today. Whereas traditional regulatory practices are reactive, precautionary measures are preventive and pre-emptive[i]. In its simplest form, the precautionary principle (also known as PP) provides that if there is a risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection.
Often available scientific evidence provides us cause for concern but does not give conclusive information. In such scenarios, risk assessment compels us to strike a balance between the need to protect health and environment on one hand and the foregone advantages of strict restrictions that may turn out to be unwarranted. It is in this context the role for precautionary principle (PP) emerges. While deciding the need and timing of the application of the PP, it is important to clearly understand the principle and its consequences[ii].
Origin of the Precautionary Principle
In his address to the Parliamentary Earth Summit of the UN Conference on Environment and Development, the Dalai Lama of Tibet noted that “in the seventeenth century, [Tibetan leadership] began enacting decrees to protect the environment and so we may have been one of the first nations to [enforce] environmental regulations!”[iii] The Theravada scriptures of Buddhism provide the earliest written sources which could accommodate the concept of precaution. Theravada teaches not to commit harm, the Buddha urging his followers to refrain from ‘unwholesome action’ and monks prohibited from ‘injuring plants and seeds’.
Undeniably, the origin of the concept of precaution may well be found in the history of civilization. In the early stage of civilization, humans had a holistic attitude towards nature which was regarded with sacred veneration. Nature was revered as the provider of life and therefore exploitation of its generosity was considered unethical. Subsequently, nature’s mystery was unravelled by the teachings of monotheistic religions and corresponding developments in science. This elevated the status of humans above the environment. The regard to human life became primordial and gave humans the right to exploit nature without ethical limitation. The struggle to survive and protect human health led to the early use of the concept of precaution[iv].
It has been suggested that the earliest formulation of the precautionary principle in contemporary public policy can be traced in the early 1950s under the guise of what was then called “safe minimum standard of conservation.” Major environmental issues of the 1960s– the case of DDT (dichloro diphenyl trichloroethane) — led environmentalists and policy makers to rethink their approach to specifically address uncertainties. This paved the way in the 1970s for the establishment of the precautionary principle as a reaction to “the limitations of public policies based on a notion of ‘assimilative capacity,’ i.e. that humans and the environment can tolerate a certain amount of contamination or disturbance, and that this amount can be calculated and controlled”.
In the mid-1970s, West Germany’s legislature enacted a national environmental policy which provided for precautionary approach to environmental protection[v]. Termed as Vorsorgeprinzip, the precautionary principle is considered to be the most important principle of German environmental policy[vi].
Concept and Definition
The term ‘precautionary principle’ had its origin in the German word Vorsorgeprinzip. An alternative translation of this word would mean ‘foresight principle’ – which could have given an active and positive impression, as against the reactive and perhaps negative connotation attached with precaution. Though the principle had its roots in the German environmental policy, it has entered the centre-stage of the global environmental policy in the past two-and-half decades with several global environmental treaties invoking the PP for decision making. In simple terms, the PP conveys the common-sense based advice – to err on the side of caution. The principle intends to prevent harm to humans, environment, and eco-system at large. Before looking at some of the widely used definitions of the PP, it would be helpful to understand the context and rationale.
When the impacts of a particular activity – such as emission of hazardous substances – are not completely clear, the general presumption is to let the activities go ahead until the uncertainty is resolved completely. The PP counters such general presumptions. When there is uncertainty regarding the impacts of an activity, the PP advocates action to anticipate and avert environmental harm. Thus, the PP favours monitoring, preventing and/or mitigating uncertain potential threats.
There two widely referred definitions of the PP – the first one, The Rio Declaration (or Agenda 21) of 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 not be used as a reason for postponing cost-effective measures to prevent environmental degradation[vii].”
This definition given primarily with environmental issues in focus is also extended to cover health issues. The second definition is based on 1998 Wingspread Statement on the Precautionary Principle and it states:
“…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 process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action. In this context the proponent of an activity, rather than the public, should bear the burden of proof.”
It is interesting to note the differences between the two definitions. The first one stresses on ‘serious or irreversible damage’, whereas the second one states that precaution is relevant to ‘harm’ in general. Thus the second definition is typical of the way in which the precautionary principle is used by environmental advocacy groups. Some of the other key features of the definition worth noting include[viii]:
- Lack of full scientific certainty shall not be used as a reason for postponing: Though scientific uncertainty may not be used for any delay in action, this leaves scope for citing reasons such as poverty reduction priorities for postponing the actions.
- Cost effective measures: Though scientific uncertainty about the likely impacts prevails, stress on cost-effectiveness compels assessment (however accurate they may be) of costs of proposed actions and compare it with possible alternatives.
- Applied by states according to their capabilities: The capabilities of states, including economic and technical capabilities, could guide the final adoption of the precautionary principle.
It is worth noting the way the burden of proof is treated in these definitions. When an activity is likely to cause harm to the environment and/or humans, the conventional practice is that the opponents of the activity have to provide the proof of the harmful effects caused by the activity. The precautionary principle, on the other hand, shifts the burden of proof to the proponents of the activity – i.e., the proponents have to establish that the proposed activity will not cause any harm to the environment and/or human-beings. Further, it is also argued that since scientific uncertainty is inherent in the environmental problems for which the PP is typically applied, the decision making process based on the PP may become more inclusive, participatory and democratic[ix].
Precautionary Principle vs. Precautionary Approach
At the insistence of the US, the formulation provided under the Rio Declaration favours the term ‘precautionary approach’ rather than ‘precautionary principle’. During negotiation under of the 1995 Convention on Straddling and Highly Migratory Fish Stocks the term precautionary approach was again preferred in the belief that the ‘approach’ offers greater flexibility and will be less potentially restrictive than the ‘principle’. Few commentators regard the difference in terminology as significant, although one view is that the precautionary principle applies in situations of high uncertainty with a risk of irreversible harm entailing high costs, whereas the precautionary approach is more appropriate, it is argued, where the level of certainty and potential costs are merely significant and the harm is less likely to be irreversible[x]. However, the actual use of the terms in the treaties contradicts and EC law generally refers to the precautionary principle, whereas global agreements more often refer to the precautionary approach or precautionary measures.
Nevertheless, the attempt to distinguish the ‘approach’ from the ‘principle’ points to the reality that the concept of precaution appears to mean different things in different contexts. Much of the confusion surrounding it stems from a failure to distinguish the identification of risk from the entirely separate question of how to respond to that risk. Thus, to suggest that states shall ‘apply a precautionary approach (or principle)’ may mean that when faced with uncertainty, they must be more cautious in identifying risks, or it may mean that they must be cautious in taking those measures dealing with the risks[xi]. Used in the former sense, the precautionary principle is an important development in international environmental law. Used in the latter sense, however, it is not clear whether references to taking precautionary action or precautionary measures differ more than rhetorically from the customary obligation to prevent harm in Principle 2 of the Rio Declaration.
A basic shift in the approach to environmental protection occurred initially between 1972 and 1982[xii]. Earlier, the concept was based on the “assimilative capacity” rule as revealed from the Principle 6 of the Stockholm Declaration of UN Conference of Human Environment, 1972. The said principle assumed that science could provide policy makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it also presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the UN General Assembly Resolution in World Charter for Nature, 1982, the emphasis shifted to the ‘precautionary principle’ and this was reiterated in the Rio Conference in 1992 in the principle 15. The inadequacies of the science has led to the precautionary principle of 1982[xiii].
Precautionary Principle in International Instruments
The precautionary principle appeared at the international level in the mid 1980s. The principle was first formally acknowledged internationally in the Preamble to the 1985 Vienna Convention for the Protection of the Ozone Layer, in which the Parties acknowledged the ‘precautionary measures’ which had already been undertaken at both the national and international levels in relation to the protection of the ozone layer[xiv]. Building on this recognition, in 1987, the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer agreed to take ‘precautionary measures’ to control global emissions of ozone depleting substances and noted the ‘precautionary measures’ already undertaken at national and regional levels in relation to the emission of chlorofluorocarbons[xv]. The need for a ‘precautionary approach’ was also recognised in the sequence of conferences on the North Sea. In the Second North Sea Conference Ministerial Declaration (the London Declaration) in 1987, the principle was referred to three times:
“[I]n in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolutely clear scientific evidence;
…[B]y combining…approaches based on emission standards and environmental quality objectives, a more precautionary approach to dangerous substances will be established; [The parties] [t]herefore agree to…accept the principle of safeguarding the marine ecosystem of the North Sea by reduction polluting emissions of substances that are persistent, toxic and liable to bio accumulate at source by the use of the best available technology and other appropriate measures. This applies especially when there is reason to assume that certain damage or harmful effects on the living resources of the sea are likely to be caused by such substances, even where there is no scientific evidence to prove a causal link between emissions and effects (‘the principle of precautionary action’)”[xvi].
At the Third North Sea Conference in 1990, the participants agreed to: “continue to apply the Precautionary Principle, that is to take action to avoid potentially damaging impacts of substances that are persistent, toxic and liable to bio accumulate even where there is no scientific evidence to prove a causal link between emission and effects”[xvii]. This process led to the inclusion of the precautionary principle in the Convention on the Protection of the Marine Environment of the North–East Atlantic (the OPSAR Convention) of 1992[xviii].
In 1990, the Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe Region was the first international instrument to treat the principle as one of general application and linked to sustainable development. The Declaration states:
“In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent, and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation”[xix].
In 1991, the Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (the Bamako Convention), signed in Bamako on 29 January 1991[xx], required parties to strive to adopt and implement:
“the preventative, precautionary approach to pollution problems which entails, inter alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm. The parties shall co-operate with each other in taking the appropriate measures to implement the precautionary principle to pollution prevention through the application of clean production methods”[xxi]. In 1991, the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) resolved that “in order to achieve sustainable development, policies must be based on the precautionary principle”[xxii].
In 1992, the Parties to the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, agreed to be guided by:
“The precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand, and the potential transboundary impact on the other hand”[xxiii].
The four instruments signed at the UNCED (the Earth Summit) in Rio de Janeiro also refer to the precautionary principle[xxiv]. The Rio Declaration states in Principle 15:
“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 a reason for postponing cost-effective measures to prevent environmental degradation”.
The Convention on Biological Diversity recites in the Preamble:
“Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat”[xxv].
Article 3(3) of the Framework Convention on Climate Change provides that:
“The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio- economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties”[xxvi].
Agenda 21 refers to the precautionary principle in a number of contexts. For example, in relation to marine environmental protection, Chapter 17 calls for:
“A precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment. This requires, inter alia, the adoption of precautionary measures, environmental impact assessments, clean production techniques, recycling, waste audits and minimization, construction and/or improvement of sewage treatment facilities, quality management criteria for the proper handling of hazardous substances, and a comprehensive approach to damaging impacts from air, land and water”[xxvii].
In dealing with the protection of the quality and supply of freshwater resources, Chapter 18 of Agenda 21 requires Parties to implement various activities including:
“Introduction of the precautionary approach in water-quality management, where appropriate, with a focus on pollution minimization and prevention through use of new technologies, product and process change, pollution reduction at source and effluent reuse, recycling and recovery, treatment and environmentally safe disposal”[xxviii].
In the context of science and sustainable development, Chapter 35 of Agenda 21 states:
“In the face of threats of irreversible environmental damage, lack of full scientific understanding should not be an excuse for postponing actions which are justified in their own right. The precautionary approach could provide a basis for policies relating to complex systems that are not yet fully understood and whose consequences of disturbances cannot yet be predicted”[xxix].
Many other conventions have subsequently committed their Parties to apply the precautionary principle[xxx].
Most importantly, 1992 paved the way for the convergence of the precautionary principle and the climate change issue in international law. At Rio de Janeiro, the world acknowledged the precautionary principle at the level of international law when it adopted the United Nations Framework Convention on Climate Change. Article 3 of the Climate Change Convention partly provides that:
“The parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversi.ble damage, lack of full scientific research should not be used as a reason for postponing such measures, taking into account the policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.”
A reference to the afore quoted article was provided in the Preamble of the 1997 Kyoto Protocol and worded as follows, “Being guided by Article 3 of the Convention”. The precautionary principle is thus a norm that parties to the UNFCCC have endorsed. Contested by some environmentalist and political analysts for being a weak precautionary formulation, legal positivists argue that law is law and its merits has to be interpreted without going beyond the wordings of the pertinent international agreement[xxxi].
Precautionary Principle as a Rule of Customary Law
The status of the precautionary principle as a rule of customary law is significant because a rule of customary law creates obligations for all states, except those that have persistently objected to the practice and its legal consequences. The statute of International Court of Justice defines customary international law as “evidence of general practice accepted as law”[xxxii]. The Nicaragua case[xxxiii] and the North Sea Continental Shelf case[xxxiv] complement this article of the Statute and clarify two requirements of customary international law. According to International Court of Justice, customary international law arises when nations follow a practice in an extensive and virtually uniform manner and this practice is followed with the conviction that it is obligatory to do so under international law (opinio juris). Consequently, the opposition of some states does not interfere with the development of a customary rule[xxxv].
However, the best indicators of state practice remain the instruments of international law and state domestic law. Currently, the precautionary principle is used in more than 90 international declarations and agreements[xxxvi]. In this context, the number of ratifications (majority of treaties are multilateral) and the number of states signing declarations also reflect broad acceptance of the rule by states[xxxvii]. The abundance of treaties and declarations incorporating the precautionary principle provides at least an estimate of state practice and acceptance, which implies that the precautionary principle is crystallizing into a rule of customary environmental law. Another primary indicator of state practice is domestic law. The precautionary principle is widely used in the domestic environmental law of Germany, Belgium and the Nordic countries (Denmark, Norway, Sweden, Finland and Island)[xxxviii]. In 1992, the principle became part of National Strategy for Ecologically Sustainable Development in Australia. In 1993, the principle was incorporated into Australia’s Environmental Protection Act[xxxix]. In 1996, the precautionary principle was defined in the Oceans Act of Canada[xl]. Even US law makes some indirect allusions to the precautionary principle (as measures) when dealing with questions of food safety[xli] and air pollution[xlii]. Furthermore, as a part of environmental impact assessment, the precautionary principle may be found in the local laws of about fifty countries[xliii]. These examples illustrate the wide implementation of the procedural aspect of the precautionary principle.
Precautionary Principle in Indian Law
The Indian courts have particularly embraced the precautionary principle.
In Vellore Citizens Welfare Forum v. Union of India[xliv], the petitioners filed a petition in the public interest under Article 32 of the Constitution of India, directed against the pollution caused by enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The Supreme Court of India noted that:
“though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard”[xlv]. The Court recognised that a balance must be struck between the economy and the environment:
“The traditional concept that development and ecology are opposed to each other, is no longer acceptable; ‘Sustainable Development’ is the answer”[xlvi].
It reviewed the development of the concept of sustainable development in the international sphere, from the Stockholm Declaration of 1972, Our Common Future in 1987 and Caring for the Earth in 1991, to the Earth Summit and the Rio Declaration in 1992.[xlvii] It went on to state:
“Some of the salient principles of ‘Sustainable Development’ as culled out from the Brundtland Report and other international documents are Intergenerational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays, principle, Obligation to assist and co-operate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that ‘The Precautionary Principle’ and ‘The Polluter Pays’ principle are essential features of ‘Sustainable Development’. The ‘Precautionary Principle’ in the context of the municipal law means:
- Environmental measures – by the State Government and the statutory authorities – must anticipate, prevent and attack the causes of environmental degradation.
- Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
- The ‘Onus of proof’ is on the actor or the developer/industrialist to show that his action is environmentally benign”.
The Supreme Court held that “the precautionary principle and the polluter pays principle are part of the environmental law of the country”[xlviii].
In M.C Mehta v. Kamal Nath[xlix], the Supreme Court of India affirmed the decision in Vellore Citizens’ Welfare Forum v Union on India[l] upholding the precautionary principle as part of the environmental law of India[li].
In AP Pollution Control Board v. Prof. M V Nayudu[lii], the Supreme Court comprehensively reviewed the precautionary principle. An application was submitted by a company to the Pollution Control Board for permission to set up an industry for production on “BSS Castor Oil Derivatives”. Although a letter of intent had later been received by the company, the Pollution Control Board did not give its no objection certificate to the location of the industry on the site proposed by it. The Pollution Control Board, while rejecting the application for consent, inter alia, stated that the factory fell under the red category of polluting industry and it would not be desirable to locate such an industry in the catchment area of Himayat Sagar, a lake in Andhra Pradesh. The appeal filed by the company against the decision of the Pollution Control Board was accepted by the appellate authority. A writ petition was filed in the nature of public interest litigation and also by the Gram Panchayat challenging the order of the appellate authority but the writ petition was dismissed by the High Court. On the other hand, the writ petition filed by the company was allowed and the High Court directed the Pollution Board to grant consent subject to such conditions as may be imposed by it. The decision of the High Court was the subject matter of challenge in the Supreme Court of India. The Supreme Court referred to the difficulty courts face in dealing with highly technological or scientific data. The Court noted that uncertainty in science in the environmental context has led international conferences to formulate new legal theories and rules of evidence. One of these is the precautionary principle[liii].
The Supreme Court discussed the earlier decision in Vellore Citizens Welfare Forum v Union of India[liv] where it was held that the precautionary principle, and the shifting of the burden of proof onto the developer or industrialist who is proposing to alter the status quo, are part of the environmental law of the country. They found it “necessary to explain the meaning of the principles in more detail, so that courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them”[lv].
The Court reviewed the development of the precautionary principle at international level, including reference to Principle 15 of the Rio Declaration. The Court identified inadequacies of science as the real basis that has led to the precautionary principle[lvi]. The precautionary principle is “based on the theory that it is better to err on the side of caution and prevent environmental harm which may become irreversible”.[lvii] It was observed:
“The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it, or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, prosperity and economic interest, but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger, but also by (justified) concern or risk potential”[lviii].
The Court next elaborated on the burden of proof referred to in the Vellore case and stated:
“It is to be noticed that while the inadequacies of science have led to the ‘precautionary principle’, the said ‘precautionary principle’ in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to preserve the status quo. This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof, and the party who wants to alter it must bear this burden.
The Precautionary Principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.”[lix].
In Narmada Bachao Andolan v. Union of India[lx], the Court was called upon to decide various legal questions arising from the Sardar Sarovar Project involving the construction of a dam on the Narmada River. An environmental clearance had been given for the project. At the time it was granted there was no obligation to obtain any statutory clearance and hence the environmental clearance granted was essentially administrative in character. Nevertheless, the environmental clearance was challenged. It was alleged the necessary particulars in regard to the environmental impact of the Project were not available when the environmental clearance was given and it therefore could not have been given[lxi]. It was further alleged that the execution of the Project, having diverse and far reaching environmental impact, without proper study and understanding of the environmental impacts and without proper planning of mitigative measures, was a violation of fundamental rights of life of the affected people guaranteed under Article 21 of the Constitution of India[lxii]. In the course of judgment, the majority noted the submission of the petitioners that “in cases pertaining to the environment, the onus of proof is on the person who wants to change the status quo and, therefore, it is for the respondents to satisfy the Court that there will be no environmental degradation”[lxiii]. The majority dealt with this argument of shifting of the burden of proof and the precautionary principle stating:
“It appears to us that the ‘precautionary principle’ and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology of environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can takeplace which can be sustained by nature/ecology with or without mitigation”[lxiv].
Precautionary Principle in American Law
The United States has not adopted precaution as an explicit basis for environmental policy, even though it has ratified the Rio Declaration on Environment and Development, which obliges nations to exercise the precautionary principle. Nonetheless, precaution has been articulated in some US environmental law and early court interpretations[lxv].
Although the United States had not expressly cited the precautionary principle in federal laws or policies, its presence is evident in several federal environmental statutes:[lxvi]
- Under the U.S. Toxic Substances Control Act, the Environmental Protection Agency (EPA) may halt the marketing of a new substance and requires safety testing or other measures if the agency determines that the substance may present an unreasonable risk or if exposures are predicted to be significant.
- As a precautionary measure, the Food and Drug Administration requires all new drugs to be tested before they are put on the market.
- National Environmental Policy Act is precautionary in two ways: 1) It emphasizes foresight and attention to consequences by requiring an environmental impact assessment for any federally funded project, and 2) it mandates consideration of alternatives including a “no-action” alternative. NEPA is one of the best national examples of precautionary action. The National Environmental Policy Act requires that any project receiving federal funding and which may pose serious harm to the environment undergo an environmental impact study, demonstrating that there are no safer alternatives.
- The Clean Water Act established strict goals in order to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.
- The Occupational Safety and Health Act (OSHA) was designed to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions.
Moreover, in 2003, San Francisco became the first local government in the US to adopt an ordinance outlining the precautionary principle.[lxvii] The San Francisco ordinance requires officers, boards, commissions and departments to implement the precautionary principle, which has five elements: anticipatory action, right to know, alternative assessment, full cost accounting and participatory decision process.
Despite widespread endorsement of precaution as a strategy in many (but not all) cases, there is no single agreed statement or understanding of PP as a Principle. Nor is it clear whether the PP is meant to be an aspirational principle or a binding rule. If it is an aspirational principle, then it can more easily be vague and ambiguous but will be of little help in making difficulty choices. If it is binding regulatory rule, then it must be more concrete but will be more arbitrary. It is neither well defined nor a stable concept. Rather, it has become the repository for a jumble of adventurous beliefs that challenge the status quo of political power, ideology and environmental rights[lxviii] .
Versions of PP diverge on several key issues:
- Is the PP part of mainstream process of risk assessment and risk management or is it an alternative? The view that PP is inconsistent with and an alternative to, the traditional risk assessment/risk management framework is held by both advocate (who dislike the risk-based approach and see PP as a desirable alternative) and critics (who favour the risk-based approach and see PP as undesirable). In contrast, the European Commission takes the view PP is a part of risk management. Similarly, the San Francisco version of PP calls for an analysis of alternatives and their consequences. And many see the PP already at work in traditional risk assessment through the adoption of conservative default assumptions and methods for calculating risks.
- Does the PP apply only to the environment or more broadly to all health and environmental risks? The Rio Declaration (paragraph 15) addresses only environment. But the European Commission, the Court of Justice of European Commonwealth, the WTO, and other bodies have considered the PP to be equally relevant to health, food and consumer safety risks[lxix].
- What degree of risks triggers the PP? Some versions refer to uncertain, serious or irreversible risks (for example, the Rio Declaration) but some versions omit these trigger criteria.
- What action should be taken under the PP? Most versions give no real guidance, simply stating what that action should be. Other versions call for a ban on the proposed product or activity until certainty is reduced to some degree, usually by shifting the burden of proof unto the proponent of the product or activity. Some versions call for adoption of best available control technology, but others do not.
- May costs be considered? Some versions exclude cost and many analyst pose the PP in opposition to cost0benefit analysis. But the Rio Declaration (principle 15) refers to ‘cost-effective’ measures and the European Commission maintains that precautionary regulation must be based on an analysis of costs and benefits.
- Does PP require zero risk? Most versions do not and the European Commission explicitly states that the PP ‘must not aim at zero risk’, but some versions lean toward banning activities posing any uncertain risk. For example, ‘where potential adverse effects are not fully understood, the activities should not proceed’[lxx]. Risks are never fully understood, so this version would amount to a ban.
- Is there a difference between ‘precaution’ and ‘prevention’? Early version used the terms interchangeably. For example, the Bergen Declaration (1990, Paragraph 7) provided that the PP requires states to ‘anticipate, prevent and attack’ risks. By contrast European Environment Agency has argued that precaution applies to the ‘uncertain’ risks whereas prevention applies to ‘known’ risks. It is not clear, however, what is meant by ‘known’ risk. Either there is no such thing (because all risks are uncertain), in case prevention is an empty set and the PP applies to all risks, or there are many ‘known’ risks (in the sense of well-understood cause and effect relationships) in which case the PP is only about risks for which there fundamental uncertainty about the cause-and-effect or hazard-and-harm relationship and the PP applies only to those few rare and temporary cases of utter misery that later become understood as scientific advances[lxxi].
It is clear that the law on sustainable development is gaining momentum at local, national, regional, and international levels. While the four fundamental elements of sustainable development – the precautionary principle, intergenerational and intra generational equity, the conservation of biological diversity and ecological integrity, and the internalisation of environmental costs – have been much discussed and promulgated in various international and national legal contexts, there is still a long way to go in terms of their implementation.
The role of the judiciary in relation to the law of sustainable development is thus of the greatest importance[lxxii]. As an offshoot of the judicial recognition the National Environmental Policy adopted precautionary principle as a guiding principle[lxxiii]. However, it is still a long way to go before the PP takes its rightful place in Indian environmental laws and even more importantly gets effectively implemented.
Edited by Kudrat Agrawal
[i] Rabbi Elamparo Deloso, The Precautionary Principle: Relevance in International Law and Climate Change, retrieved from http://www.lumes.lu.se/database/alumni/04.05/theses/rabbi_deloso.pdf
[iii] Address of His Holiness the XIV Dalai Lama on 7 June 1992 to the Parliamentary Earth Summit (Global Forum) of the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil (Environment and Development Desk, 2004: 26).
[iv] Supra note 1.
[vi] J. Cameron and J. Abouchar, The precautionary principle: A fundamental principle of law and policy for the protection of the global environment (1991) 14 (1) “Boston College International and Comparative Law Review” at 6-7 and P Sands, Principles of International Environmental Law, 2nd ed., Cambridge University Press, 2003, p. 267 cited in Justice Brian J. Preston, The Role of Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific, A Paper Presented to the Kenya National Judicial Colloquium on Environmental Law Mombasa, Kenya, 10-13 January 2006, available at http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06_preston.pdf
[vii] Principle 15 of Rio Declaration.
[viii] Supra note 2.
[x] Patricia Birnie and A. Boyle, International Law and the Environment, 2nd edition, p.117.
[xii] Justice T.S. Doabia, Environmental and Pollution Laws in India, Vol. 1, Wadhwa and Company, Nagpur, 1st edition (2005), p. 476.
[xiv] Vienna Convention for the Protection of the Ozone Layer: Preamble.
[xv] Montreal Protocol on Substances that Deplete the Ozone Layer: Paras 6 and 8.
[xvi] Second North Sea Conference Ministerial Declaration, 1987: Articles VII, XV(i) and XVI (i) (emphasis added) quoted in J Cameron and J Abouchar, “The precautionary principle: A fundamental principle of law and policy for the protection of the global environment” (1991) 14 (1) Boston College International and Comparative Law Review 1 at 5 which was further referred to in Justice Brian J. Preston, The Role of Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific, A Paper Presented to the Kenya National Judicial Colloquium on Environmental Law Mombasa, Kenya, 10-13 January 2006, available at http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06_preston.pdf
[xvii] Third North Sea Conference Ministerial Declaration, 1990.
[xviii] Convention on the Protection of the Marine Environment of the North–East Atlantic: Article 2(2)(a). This Convention is not yet in force.
[xix] Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe Region: para 7. As quoted in P Sands, Principles of International Environmental Law, 2nd ed., Cambridge University Press, 2003, p. 269.
[xx] The Bamako Convention came into force April 1998.
[xxi] Bamako Convention: Article 4(3)(f).
[xxii] Declaration on Environmentally Sound and Sustainable Development in Asia and the Pacific, 1990: para. 19. As quoted in MC Cordonier Segger and A Khalfan, Sustainable Development Law: Practices, Principle and Prospects, Oxford University Press, 2004, p. 148 cited in Justice Brian J. Preston, The Role of Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific, A Paper Presented to the Kenya National Judicial Colloquium on Environmental Law Mombasa, Kenya, 10-13 January 2006, available at http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06_preston.pdf
[xxiii] Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes: Article 2(5)(a).
[xxiv] The two Conventions have now come into force and are thus binding under international law: the Convention on Biological Diversity adopted on 29 December 1993 and the United Nations Framework Convention on Climate Change adopted on 24 March 1993.
[xxv] Convention on Biological Diversity: Preamble.
[xxvi] United Nations Framework Convention on Climate Change: Article 3(3).
[xxvii] Agenda 21: Chapter 17, para 17.21.
[xxviii] Agenda 21: Chapter 18, para 18.40.
[xxix] Agenda 21: Chapter 35, para 35.3.
[xxx] Justice Brian J. Preston, The Role of Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific, A Paper Presented to the Kenya National Judicial Colloquium on Environmental Law Mombasa, Kenya, 10-13 January 2006, available at http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06_preston.pdf
[xxxi] Rabbi Elamparo Deloso, The Precautionary Principle: Relevance in International Law and Climate Change, retrieved from http://www.lumes.lu.se/database/alumni/04.05/theses/rabbi_deloso.pdf
[xxxii] The Statute of the International Court of Justice, available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0
[xxxiii] Case Nicaragua. ICJ Rep. (1986), para. 97-109.
[xxxiv] Case North Sea Continental Shelf. ICJ Rep. (1969),. para. 43-44.
[xxxvi] Agne Sirinskiene, The status of Precautionary Principle: Moving towards a Rule of Customary Law, Jurisprudence, 2009, 4(118), p. 349–364, ISSN 2029–2058 (online).
[xxxvii] Marr, S. The Precautionary principle in the law of the see – modern decision making in international law, Kluwer Law International, 2003, p. 207 cited at Agne Sirinskiene, The status of Precautionary Principle: Moving towards a Rule of Customary Law, Jurisprudence, 2009, 4(118), p. 349–364, ISSN 2029–2058 (online).
[xxxviii] Implementing the Precautionary Principle: Approaches from the Nordic Countries. de Sadeleer, N. (ed.). Earthscan, 2007 cited at Agne Sirinskiene, The status of Precautionary Principle: Moving towards a Rule of Customary Law, Jurisprudence, 2009, 4(118), p. 349–364, ISSN 2029–2058 (online).
[xxxix] Environment Protection Act, 1993, Sec. 10, available at http://www.austlii.edu.au/au/legis/sa/consol_act/epa1993284/s10.html
[xl] Oceans Act, Preamble available at http://laws.justice.gc.ca/en/ShowFullDoc/cs/O-2.4//20080811/en?command=home&caller=SI&fragment=Oceans%20Act&search_type=all&day=11&month=8&year=2008&search_domain=cs&showall=L&statuteyear=all&lengthannual=50&length=50
[xli] Federal Food, Drug, and Cosmetic Act (1958, Sec. 402; 409 available at http://www.fda.gov/opacom/laws/fdcact/fdcact4.htm#sec402
[xlii] Goldstein, B. D.; Carruth, R. S. Implications of the Precautionary Principle for Environmental Regulation in the United States: Examples From The Control of Hazardous Air Pollutants in the 1990 Clean Air ActAmendments. Law and Contemporary Problems. 2003, 66: 250−252
[xliii] The Precautionary Principle in International Law. Freestone, D; Hey, E. (eds.). Kluwer, 1996, p. 71.
[xliv] AIR 1996 SC 2715.
[xlv] AIR 1996 SC 2715 at 2720.
[xlvi] AIR 1996 SC 2715 at 2720.
[xlvii] AIR 1996 SC 2715 at 2720.
[xlviii] AIR 1996 SC 2715 at 2721-2722.
[xlix] (1997) 1 SCC 388.
[l] AIR 1996 SC 2715.
[li] (1997) 1 SCC 388.
[lii] AIR 1999 SC 812.
[liii] AIR 1999 SC 812 at 818 and 820.
[liv] AIR 1996 SC 2715.
[lv] AIR 1999 SC 812 at 820.
[lvi] AIR 1999 SC 812 at 821.
[lvii] AIR 1999 SC 812 at 821.
[lviii] AIR 1999 SC 812 at 821.
[lix] AIR 1999 SC 812 at 821.
[lx] AIR 2000 SC 3751.
[lxi] AIR 2000 SC 3751 at 3769 and 3787.
[lxii] AIR 2000 SC 3751 at 3787.
[lxiii] AIR 2000 SC 3751 at 3803.
[lxiv] AIR 2000 SC 3751 at 3803-3804.
[lxv] Joel Tickner & Nancy Myers, Current Status and Implementation of the Precautionary Principle, available at http://www.sustainableproduction.org/downloads/Current%20Status%20and%20Implementation%20of%20the%20PP.pdf
[lxvi] Joel Tickner, Carolyn Raffensperger, And Nancy Myers, The Precautionary Principle In Action: A Handbook (1st ed.), available at http://www.mindfully.org/Precaution/Precaution-In-Action-Handbook.pdf
[lxvii] J.D.Terra Bowling, Facing Uncertainty: Local Governments and the Precautionary Principle, available at http://nsglc.olemiss.edu/Precautionary%20Principle.pdf
[lxviii] Daniel Bodansky,Jutta Brunnee and Ellen Hey (editors),The Oxford Handbook of International Environmental Law, Oxford University Press (2008), p. 603
[lxx] United Nations General Assembly, World Charter for Nature, UNGA Resolution 37/7 (1982).
[lxxi] Supra note 60.
[lxxii] Justice Brian J. Preston, The Role of Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific, A Paper Presented to the Kenya National Judicial Colloquium on Environmental Law Mombasa, Kenya, 10-13 January 2006, available at http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06_preston.pdf