Rethinking Risk and the Precautionary Principle

(http://www.iea.org.uk).

1

Defining the precautionary principle

Julian Morris

Precaution has long been a basis for taking action to prevent harm; and at the level of the individual there are clearly merits in this: it is not advisable, for example, to build a house on the edge of a volcano that is expected imminently to erupt. In a broader context, ‘Trying out a nuclear exchange or experimenting with a little plague are inadvisable’ (Wildavsky, infra, p. 31). The precautionary principle goes beyond this conventional ‘look-before-you-leap’ prudence, however.

Whilst there are many definitions of the precautionary principle (hereinafter, PP), it is worth distinguishing two broad classes: first, the Strong PP, which says basically, take no action unless you are certain that it will do no harm; and second, the Weak PP, which says that lack of full certainty is not a justification for preventing an action that might be harmful. Both types are problematic, although the latter considerably less so than the former. This chapter presents a discussion of the historical development of the PP, followed by a critique of various definitions of it.

The development of the precautionary principle

The PP has been traced to the German principle of Vorsorgeprinzip (literally, ‘foresight-planning’), which was a founding principle of German environmental policy in the mid-1970s (Th. Douma, 1996). According to the Vorsorgeprinzip, a distinction is to be made between human actions that cause ‘dangers’ and those that merely cause ‘risks’: in the case of danger, the government is to prevent these by all means; in the case of risk, the government is to carry out a risk analysis and may order preventative action if deemed appropriate. As O’Riordan (1994) notes:

For the Germans … precaution is an interventionist measure, a justification of state involvement in the day to day lives of its lander and its citizenry in the name of good government. Social planning in the economy, in technology, in morality and in social initiatives all can be justified by a loose and open-ended interpretation of precaution.

(O’Riordan, 1994)

Although it is often regarded as a German concept, Allan Mazur (1996) shows that PP-like arguments have been used in the USA since the 1950s; at that time, groups of political conservatives opposed fluoridation of water on the grounds that fluoride was used as rat poison and that involuntary fluoridation amounted to mass medication, a step on the road to socialism. In the 1960s, left-wing radicals similarly used PP-like arguments against nuclear power. Fluoride and radiation have in common known negative effects at high doses and thus pose a risk of widespread damage if they are misused. By highlighting this possibility of catastrophe, regardless of the probability of its occurrence, campaigners were able to instil fear of the technology as such.

In the 1970s, these arguments were picked up by social scientists such as Robert Goodin (1980) and David Pearce (1980), who presented them in a more general framework. They argued that where there is a possibility of catastrophic risk from the use of a technology, potential problems created by that technology (such as disposal of nuclear waste) should be solved before proceeding with its use; or else it should not be used at all (Wildavsky, infra, p. 23–28).

Consumer groups, hormones, Commissioners and the PP

An early application of this open-ended precautionary approach can be seen in the 1985 decision of the European Commission to ban hormones used for animal growth promotion. The ban was instituted (under EC Directive 81/602) on the basis that ‘their safety has not been conclusively proven’.

The history of the ban dates to the late 1970s, when Italian media carried reports that babies had developed breasts and enlarged genitals after eating French veal containing traces of the synthetic hormone diethylstilbestrol (DES) (Cargill, 1999). The Italian government, which had banned the use of DES a decade earlier, promptly restricted imports of veal from other member states. Consumer groups, seeing an issue on which they might garner public support, then began demanding a ban on the use of hormones in all livestock production. In 1981, the EC banned the use of DES and established a body of scientists to look into the effects of five other hormones that are commonly used as growth promoters (ibid.). The body, known as the Lamming Commission after its head, Professor G. E. Lamming, issued an interim report in 1982 which concluded that the three natural hormones (estradiol, progesterone and testosterone) ‘would not present any harmful effects to the health of the consumer when used under the appropriate conditions as growth promoters in farm animals’ (Cargill, 1999). Indeed, it will not usually be possible to identify meat from cattle treated with these natural hormones as residual levels are typically within the normal variability observed in untreated cattle (WTO, 1998). However, in 1985, before the Lamming Commission had completed its research into the effects of the synthetic hormones, the European Commission – under increasing pressure from consumer groups – banned the use of all growth promotion hormones, with effect from January 1988 (Cargill, 1999; WTO, 1998).

The argument seems to be that only a total ban on all hormones will prevent possibly undesirable use of certain hormones. Three responses to this seem apposite. First, it is almost certainly easier to identify farmers who are using DES than those farmers using hormones in general, since traces of DES can be identified in treated meat whereas traces of additional natural hormones usually cannot. (This might be seen as a good thing by regulators, whose bureaucracy will be expanded, and by consumer groups, who can claim a victory, but it is surely a bad thing in terms of identifying illegal use of potentially harmful chemicals.) Second, if the objective is to prevent farmers using DES, would it not be more just to impose heavy fines and even prison sentences on those who treat their animals with this putatively harmful chemical rather than criminalizing all users of hormones regardless of the harm they impose on society? Third, the ban might be counterproductive because if all growth promotion hormones are illegal, it seems likely that those farmers who are inclined to use (illegal) hormones will tend to use the most cost-effective ones, which might also be the more harmful. Thus, an early application of the PP also exposes some of its flaws.

The precautionary principle as a premise for international agreements

Ten years ago, the PP was described by one leading scholar as ‘the most important new policy approach in international environmental co-operation’. The PP had become the cornerstone of an international agreement for the first time three years before. The Ministerial Declaration of the Second International Conference on the Protection of the North Sea, held in London in 1987, stated:

Accepting that 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’.

(SICPNS, 1987)

This is clearly a weak PP argument, since the burden of proof remains with those regulating the technology. Developers of new technologies are not required to prove that their technology will have no negative impacts; rather, the onus is on the regulator to imagine harms that might result and to regulate in anticipation of these. It is perhaps not surprising that government officials should prefer such a conceptualization for two reasons. First, it provides them with a reason to act, expanding their authority, whereas the strong PP might lead to a transfer of authority to environmental and other groups (see below). Second, the weak PP is more accommodating, enabling regulators to broker agreements with industries rather than simply shutting them down.

On the basis of this PP, all sewage sludge disposal into the North Sea was subsequently banned under the EC Urban Waste Water Treatment Directive (with effect from 31 December 1998). This increased the cost of sewage sludge dumping in Britain and led to an increase in sewage spreading on land, which may have undesirable effects in terms of exposing farm workers to pathogens and increasing the concentrations of heavy metals in some crops (HSE, n.d.; MAFF, n.d.; Avery, 1999). (Note that this is not an argument against restricting the dumping of sewage sludge at sea. Clearly dumping sewage in shallow coastal waters near popular beaches is a bad idea. It is an argument in favour of implementing systems of sewage disposal that impose fewer costs on society – for example by extending disposal pipes further out to sea.)

Environmental and consumer organizations likewise have used the PP as a justification for their demands for international agreements (viz., the consumer organizations’ demands for a precautionary ban on the use of growth promotion hormones). However, not surprisingly, many such organizations favour the strong PP, which accords with their generally anti-industry view of the world; but they may also have other incentives to promote the strong PP. It is conceivable that if the strong PP were to be accepted as a general legal principle, environmental and consumer organizations might be empowered to take legal action against companies which fail to prove that their technologies are safe. This would probably increase both their authority and their income.

In the context of a demand for international regulation of so-called greenhouse gases, Jeremy Leggett of Greenpeace asserted in 1990 that:

For organizations like Greenpeace, what comes first must be the needs of the environment … the modus operandi we would like to see is: ‘Do not admit a substance unless you have proof that it will do no harm to the environment’ – the precautionary principle … the fact that proof of harm might come too late – or that proof is invariably hard to demonstrate with absolute certainty – only augments the license given to the polluters.

(Leggett, 1990)

There is still considerable uncertainty regarding the likely impact of emissions of these gases (which include carbon dioxide, a product of the combustion of carbon-based fuels, such as coal, oil and natural gas, and methane, a product of the digestive breakdown of biological organisms as well as a by-product of rice production). Even at the time of Leggett’s statement, it was observed that taking precautionary action to control greenhouse gas emissions might be counterproductive; with our greater knowledge this is more clearly the case (see below as well as Goklany, Chapter 10 infra, Morris, 1997b, and Spencer, 2000). Nevertheless, the demands of environmental organizations, certain groups of scientists and national politicians have led to the elaboration of international agreements to constrain greenhouse gas emissions (see below).

In spite of this demand for a strong PP, regulators remained fixated on the weak PP. In the same year, the United Nations Economic Conference for Europe (ECE) held a meeting on Sustainable Development in the ECE Region in Bergen, Norway. The final Ministerial Declaration of that meeting stated:

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.

(ECE, 1990)

This language was adopted more or less verbatim at the Second World Climate Conference later that year, although the ministerial declaration of that conference added that ‘the measures adopted should take into account different socio-economic contexts’ (cited by Weintraub, 1992, p. 187).

Similar language was again adopted in the Ministerial Declaration of the UN Conference on Environment and Development (the ‘Earth Summit’) in Rio de Janeiro in 1992 (known as the ‘Rio Declaration’), although this time the PP has been watered down further by the additional caveat that measures should be ‘cost-effective’:

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

(Principle 15, Rio Declaration, 1992)

This became the international standard definition for the PP amongst policymakers and has been used to justify a number of international agreements including the UN Framework Convention on Climate Change and its subsidiary, the Kyoto Protocol (Yandle, infra), as well as the UN Convention on Biological Diversity and its subsidiary, the Cartagena Protocol on Biosafety (Miller and Conko,