|THE PRECAUTIONARY PRINCIPLE IN ACTION
Written for the Science and Environmental Health Network
Joel Tickner – Lowell Center for Sustainable Production
Carolyn Raffensperger – Science and Environmental Health Network
and Nancy Myers
I. INTRODUCTION 1
II. HISTORY OF THE PRECAUTIONARY PRINCIPLE 2
III. COMPONENTS OF PRECAUTION 3
IV. METHODS OF PRECAUTION 4
V. EXAMPLES OF PRECAUTIONARY ACTION 6
VI. TRIGGERING PRECAUTION: A PROCESS FLOW 7
VII. DIOXIN: AN ARGUMENT FOR PRECAUTION 10
VIII. UNDERSTANDING UNCERTAINTY 11
IX. RISK ASSESSMENT OR THE PRECAUTIONARY PRINCIPLE? 13
X. ANSWERING THE CRITICS 15
XI. BIBLIOGRAPHY 17
XII. APPENDIX Wingspread statement, legislative and treaty language 18
XIII. CONTACT INFORMATION 22
"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." from the January 1998 Wingspread Statement on the Precautionary Principle
For years, the environmental and public health movements have been struggling to find ways to protect health and the environment in the face of scientific uncertainty about cause and effect. The public has typically carried the burden of proving that a particular activity or substance is dangerous, while those undertaking potentially dangerous activities and the products of those activities are considered innocent until proven guilty. Chemicals, dangerous practices, and companies often seem to have more rights than citizens and the environment.
This burden of scientific proof has posed a monumental barrier in the campaign to protect health and the environment. Actions to prevent harm are usually taken only after significant proof of harm is established, at which point it may be too late. Hazards are generally addressed by industry and government agencies one at a time, in terms of a single pesticide or chemical, rather than as broader issues such as the need to promote organic agriculture and nontoxic products or to phase out whole classes of dangerous chemicals. When citizen groups base their calls for a stop to a particular activity on experience, observation, or anything less than stringent scientific proof, they are accused of being emotional and hysterical.
To overcome this barrier, advocates need a decision-making and action tool with ethical power and scientific rigor. The precautionary principle, which has become a critical aspect of environmental agreements and environmental activism throughout the world, offers the public and decision-makers a forceful, common-sense approach to environmental and public health problems. This Handbook describes how it can be used to make preventive decisions in the face of uncertainty and to drive actions that will protect public health and the environment.
This comprehensive presentation of ideas is new, yet precaution is a concept citizen activists have promoted for years. We, the authors, invite you to try these ideas out and write the next chapters on the precautionary principle with us.
We are at an exciting juncture in the history of the world. On the one hand, we are faced with unprecedented threats to human health and the life-sustaining environment. On the other hand, we have opportunities to fundamentally change the way things are done. We do not have to accept "business as usual." Precaution is a guiding principle we can use to stop environmental degradation.
II. HISTORY OF THE PRECAUTIONARY PRINCIPLE
One of the most important expressions of the precautionary principle internationally is the Rio Declaration from the 1992 United Nations Conference on Environment and Development, also known as Agenda 21. The declaration stated:
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.
Because the United States signed and ratified the Rio Declaration, it is bound to use the precautionary principle. It is important for organizers to know that it is not a matter of whether the United States will abide by the precautionary principle, but how. Nevertheless, application of the principle is far more advanced in Europe and on the international level than it is in the United States.
The precautionary principle has its beginnings in the German principle of Vorsorge, or foresight. At the core of early conceptions of this principle was the belief that society should seek to avoid environmental damage by careful forward planning, blocking the flow of potentially harmful activities. The Vorsorgeprinzip developed in the early 1970s into a fundamental principle of German environmental law (balanced by principles of economic viability) and has been invoked to justify the implementation of vigorous policies to tackle acid rain, global warming, and North Sea pollution. It has also led to the development of a strong environmental industry in that country.
The precautionary principle has since flourished in international statements of policy; conventions dealing with high-stakes environmental concerns in which the science is uncertain; and national strategies for sustainable development. The principle was introduced in 1984 at the First International Conference on Protection of the North Sea. Following this conference, the principle was integrated into numerous international conventions and agreements, including the Bergen declaration on sustainable development, the Maastricht Treaty on the European Union, the Barcelona Convention, and the Global Climate Change Convention. (See Appendix) On a national level, Sweden and Denmark have made the precautionary principle and other principles, such as substitution for hazardous materials, guides to their environmental and public health policy.
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 underlay much of the early environmental legislation in this country:
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."
The OSHA draft Carcinogen Standard (which was never put into practice) required precautionary actions whenever a chemical used in the workplace was suspected of causing cancer in animals. Early court decisions gave the Environmental Protection Agency considerable freedom to take action to prevent harm even before considerable evidence of cause and effect was gathered.
More recently, The Pollution Prevention Act of 1990 set prevention as the highest priority in environmental programs in the country. In addition, the President's Council on Sustainable Development expressed support for the precautionary principle in the form of a core belief that "even in the face of scientific uncertainty, society should take reasonable actions to avert risks where the potential harm to human health or the environment is thought to be serious or irreparable." In 1996, the American Public Health Association passed a resolution (number 9606), "The Precautionary Principle and Chemical Exposure Standards for the Workplace," which recognized the need for implementing the precautionary approach, including the shifting of burdens of proof so that every chemical is considered potentially dangerous until the extent of its toxicity is sufficiently known, and the establishment of strict, preventive chemical exposure limits.
However, despite U.S. acceptance of the precautionary principle in international treaties and other statements, little work has been done to implement the principle. In some cases, especially those involving trade and proactive legislation in places like Europe, the U.S. government is actively lobbying against precautionary actions by other governments. This has happened most recently with regards to phthalates in children’s PVC toys, beef hormones, electronic take-back and genetically engineered foods. This lobbying threatens to undermine use of the precautionary principle in other countries, which will ultimately affect the pressure that other countries can exert on the U.S. to invoke the principle. Luckily, in the case of phthalates, Vice President Gore recently wrote a letter to U.S. trade representatives stating that European countries should be allowed to take precautionary actions to protect children’s health without U.S. interference.
The first major effort in the United States to bring the precautionary principle to the level of day-to-day environmental and public health decision-making at the state or federal level was a January 1998 conference of activists, scholars, scientists, and lawyers at Wingspread, home of the Johnson Foundation in Racine, Wisconsin. Convened by the Science and Environmental Health Network (SEHN), participants discussed methods to implement the precautionary principle and barriers to that implementation.
The Wingspread definition of precaution (see Appendix) has three elements: threats of harm; scientific uncertainty; and preventive, precautionary action. The litmus test for knowing when to apply the precautionary principle is the combination of threat of harm and scientific uncertainty. Some would say the threatened harm must be serious or irreversible, but others point out that this does not allow for the cumulative effects of relatively small insults.
If there is certainty about cause and effect, as in the case of lead and children's health, then acting is no longer precautionary, although it might be preventive. In essence, the precautionary principle provides a rationale for taking action against a practice or substance in the absence of scientific certainty rather than continuing the suspect practice while it is under study, or without study.
Instead of asking what level of harm is acceptable, a precautionary approach asks: How much contamination can be avoided? What are the alternatives to this product or activity, and are they safer? Is this activity even necessary? The precautionary principle focuses on options and solutions rather than risk. It forces the initiator of an activity to address fundamental questions of how to behave in a more environmentally sensitive manner. The precautionary principle also serves as a "speed bump" to new technology, ensuring that decisions about new activities are made thoughtfully and in the light of potential consequences.
III. COMPONENTS OF PRECAUTION
An underlying theme of the principle is that decision-making in the face of extreme uncertainty and ignorance is a matter of policy and political considerations. Science can inform that decision but it is foolish to think that "independent" or "sound" science can resolve difficult issues over cause and effect. Thus, a decision for further study or not to do anything in the face of uncertainty is a policy decision not a scientific one just as as taking preventive action would be.
A precautionary approach to environmental and public health decision-making includes these specific components:
Taking precautionary action before scientific certainty of cause and effect. Most of the international treaties stating the precautionary principle incorporate it as a general duty on states to act under uncertainty. This provides a mechanism of accountability for preventing harm. General duties - obligations to act in a certain way even in the absence of specific laws - are not uncommon in the United States. For example, the Occupational Safety and Health Act demands that an employer "furnish each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical injury."
Setting goals. The precautionary principle encourages planning based on well-defined goals rather than on future scenarios and risk calculations that may be plagued by error and bias (see risk assessment discussion below). For example, Sweden has set the goal of phasing out persistent and bioaccumulative substances in products by the year 2007. The government is now involving a variety of stakeholders in determining how to reach that goal. Sometimes called "backcasting" in contrast to the more usual "forecasting" of an uncertain future, this type of planning creates fewer miscalculations and spurs innovative solutions.
Seeking out and evaluating alternatives. Rather than asking what level of contamination is safe or economically optimal, the precautionary approach asks how to reduce or eliminate the hazard and considers all possible means of achieving that goal, including forgoing the proposed activity. Needless to say, alternatives proposed to a potentially hazardous activity must be scrutinized as stringently as the activity itself.
Shifting burdens of proof. Proponents of an activity should prove that their activity will not cause undue harm to human health or ecosystems. Those who have the power, control, and resources to act and prevent harm should bear that responsibility. This responsibility has several components:
Financial responsibility. Regulations alone are not likely to spur precautionary behavior on the part of governments or those who are proponents of a questionable activity. However, market incentives, such as requiring a bond for the worst possible consequences of an activity or liability for damages, will encourage companies to think about how to prevent impacts. Such assurance bonds are already used in construction projects as well as in Australia to minimize damage from development projects.
The duty to monitor, understand, investigate, inform, and act. Under a precautionary decision-making scheme, those undertaking potentially harmful activities would be required to routinely monitor their impacts (with possible third party verification), inform the public and authorities when a potential impact is found, and act upon that knowledge. Ignorance and uncertainty are no longer excuses for postponing actions to prevent harm (see uncertainty discussion below).
Developing more democratic and thorough decision-making criteria and methods. The precautionary principle requires a new way of thinking about decisions and weighing scientific and other evidence in the face of uncertainty. This type of precautionary decision-flow, addressing both new and existing activities, is described in a later section. Because difficult questions of causality are in essence policy decisions, potentially impacted publics must be involved in the decision process. Thus, structures to better involve the public in decision-making are required under a precautionary approach.
IV. METHODS OF PRECAUTION
Preventive actions should be taken, when possible, at the design stage of a potentially hazardous activity to ensure their greatest impact. The precautionary principle does not fulfill its purpose unless preventive methods for carrying out precaution are implemented. Otherwise, risks may be shifted or the problem may persist, though to a lesser degree.
However, one can think of a spectrum of precautionary actions from weak (intensive studying of a problem) to strong (prohibiting or phasing out a specific activity). Numerous tools for carrying out precautionary policies have been used throughout the world:
Bans and phase-outs. A ban or phase-out could be considered the strongest precautionary action. At least 80 countries ban the production or use of a small number of highly toxic substances. The Nordic countries have particularly advanced the use of bans as a public health strategy. These countries see bans and phase-outs as the only way to eliminate the risk of injury or disease from a very toxic chemical or hazardous activity. Several chemicals, including cadmium and mercury, are now being phased out in Sweden. The International Joint Commission (see later discussion) recommended a phase-out of industrial chlorine chemistry in the Great Lakes region.
Clean production and pollution prevention. Clean production involves changes to production systems or products that reduce pollution at the source (in the production process or product development stage). Other clean-production activities address the dangers of products themselves, introducing sustainable product design, bio-based technologies, and the consideration of raw material and energy consumed in product creation, as well as questioning the fundamental need for products.
Alternatives assessment. Alternatives assessment is an accepted methodology as well as an underlying component of precaution. For example, the U.S. National Environmental Policy Act calls on the federal government to investigate alternatives (in an Environmental Impact Statement), including a no-action alternative, for all of its activities (or activities it funds) determined to have potential environmental impacts. Citizens have the right to appeal decisions if a full range of options is not considered. Several European countries have initiated such programs for all potential industrial polluters. Nicholas Ashford at the Massachusetts Institute of Technology has developed a structure for chemical accident prevention called Technology Options Assessment. Under this scheme, companies would be required to undertake comprehensive assessments of alternative primary prevention technologies and justify their decision if safer alternatives were not chosen.
Health-based occupational exposure limits. Over a period of several years, a group of occupational health experts in the United States has developed a list of occupational exposure limits based on the lowest exposure level at which health effects have been seen. These levels are proposed as new occupational exposure limits.
Reverse onus chemical listing. Proposals in Denmark and the U.S. have been put forward to drive the development of information on chemicals and their effects. In Denmark, one proposal would require a chemical to be considered the most toxic in its class if full information on its toxicity was not available. A U.S. proposal would require that all chemicals produced in high volume, for which basic toxicity information did not exist, would be added to the toxics-release inventory for emissions and waste reporting.
Organic agriculture. The U.S. Department of Agriculture is considering using the precautionary principle as a rule for deciding whether new technologies and substances may be permitted in organic agriculture. Although these decisions are now based on risk assessment upon evidence of "measurable degradation," organic agriculture lends itself to the precautionary approach. It is risk averse, premised on the principle of avoiding substances and practices that might cause harm rather than waiting for proof of harm.
Ecosystem management. Biodiversity issues are suited to the precautionary principle because their complexity and geographic scope increase scientific uncertainty, and because the results of errors can be devastating. Risk assessment and other tools have been unable to predict and prevent such disasters as the devastation of marine ecosystems and the collapse of fisheries. Ecosystem management, like epidemiology, calls for new approaches to the philosophy of science and new standards for human intervention. Applying the precautionary principle would suggest, for example, that interventions must be reversible and flexible. Any mistakes must be correctible.
Premarket or pre-activity testing requirements. The Federal Food and Drug Act requires that all new pharmaceuticals be tested for safety and efficacy before entering the market. This model could be applied to industrial chemicals and other activities.
V. EXAMPLES OF PRECAUTIONARY ACTION
The International Joint Commission
Perhaps the most noteworthy application of the precautionary principle in the United States has occurred in the Great Lakes Region. The Great Lakes have been threatened for years by the emission of persistent organic compounds into their waters. In the late 1970s, the United States and Canada signed the Great Lakes Water Quality Agreement (GLWQA) which establishes the goal of virtually eliminating discharges of persistent compounds from the Great Lakes. Under the GLWQA, the International Joint Commission (IJC), a 100-year-old bi-national body established to protect waters along the border, was designated to conduct research and issue statements on the quality of the lakes and threats to that quality.
In its Sixth Biennial Report on Great Lakes Water Quality (1992) the IJC noted the damage caused by persistent and bioaccumulative substances in the Great Lakes Basin and the critical need to address those. They also recognized that attempts to manage such chemicals, based on the notion of assimilative capacity in the environment, had failed miserably. The Commission issued a call to phase out all persistent toxic substances in the Great Lakes Ecosystem and stated:
Such a strategy should recognize that all persistent toxic substances are dangerous to the environment, deleterious to the human condition, and can no longer be tolerated in the ecosystem, whether or not unassailable scientific proof of acute or chronic damage is universally accepted.
Gordon Durnil, who was appointed by President Bush to head the U.S. delegation to the Commission, recalled at the January 1998 Wingspread conference how the commission reached this conclusion: "When we commissioners asked scientists what they knew about the effects of pollutants on people and wildlife, they would say they knew nothing for sure. Finally we began asking them what they believed was happening, based on their vast experience and observations. What those scientists of diverse backgrounds said then convinced me that we knew enough about the effects of those discharges to try to eliminate them altogether."
Toxics use reduction in Massachusetts
The Massachusetts Toxics Use Reduction Act is a salient example of the principle of precautionary action. Passed in 1989, the Act requires that manufacturing firms using specific quantities of some 900 industrial chemicals undergo a biannual planning process to identify ways to reduce use of those chemicals. There are several aspects of Toxics Use Reduction that make it a good example of precautionary action:
Goal-setting. The Commonwealth established a goal of reducing toxic by-product (waste) by 50 percent.
Alternatives. Rather than instructing industrial facilities to identify the "safe" level of use, the Act considers any amount of use too much. Companies are required to understand why and how they use specific chemicals and to conduct comprehensive financial, technical, environmental, and occupational health and safety analysis of viable alternatives to ensure that the alternatives are indeed better.
Monitoring and reporting. Companies are required to measure their progress yearly at reducing their use of toxic chemicals. This information is available to the public.
Responsibility. While the burden is on the firm to identify alternatives and analyze their chemical impacts, Massachusetts provides support and incentives to ensure that progress is made in reducing toxic chemical use.
Firms are not required to undertake any particular option but in many cases the economic and environmental, health, and safety benefits provide enough justification for action. Costs associated with chemical purchases, tracking, and waste disposal are very high. From 1990 to 1995, companies in Massachusetts reduced their toxic chemical emissions by more than two-thirds, their total chemical waste by 30 percent, and their total use by 20 percent.The Act saved Massachusetts industry some $15 million, not including the public health and environmental benefits gained through the program.
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