Environmental law

Environmental law is a body of law, which is a system of complex and interlocking statutes, common law, treaties, conventions, regulations and policies which seeks to protect the natural environment which may be affected, impacted or endangered by human activities. Some environmental laws regulate the quantity and nature of impacts of human activities: for example, setting allowable levels of pollution. Other environmental laws are preventive in nature and seek to assess the possible impacts before the human activities can occur. This area of law is sometimes known as environmental impact assessment. Environmental law is practiced in the public interest, by groups and individuals seeking environmental protections for general public benefit, but it is mostly practiced in the private interest, by groups and individuals that undertake polluting or environmentally destructive activities, and who seek to avoid violating environmental laws in the process.

International environmental law

International environmental law is the body of international law that concerns the protection of the global environment.

There have been many legally-binding international agreements concerning the protection of the environment, but in this area of international law soft law is more common than normal.

Some basic principles of international environmental law are:

• the precautionary principle
• the polluter pays principle
• the principle of sustainable development
• environmental procedural rights

Important cases have included the various nuclear testing cases such as between New Zealand and France before the International Court of Justice.

Groups active in the area include the Environmental Law Alliance Worldwide(E-LAW) and theCentre for International Environmental Law

International environmental lawyers often receive specialized training in the form of an LL.M. degree after having a first law degree — often in another country from where they got their first law degree. Notable programs include theLL.M. in Environmental Law Program at the University of Oregon

Precautionary principle

The precautionary principle, a phrase first used in English circa 1988, is the idea that if the consequences of an action are unknown, but are judged to have some potential for major or irreversible negative consequences, then it is better to avoid that action. The principle can alternately be applied in an active sense, through the concept of "preventative anticipation" [1], or a willingness to take action in advance of scientific proof of evidence of the need for the proposed action on the grounds that further delay will prove ultimately most costly to society and nature, and, in the longer term, selfish and unfair to future generations. In practice the principle is most often applied in the context of the impact of human civilization or new technology on the environment, as the environment is a complex system where the consequences of some kinds of actions are often unpredictable.

The formal concept evolved out of the German socio-legal tradition that was created in the zenith of German Democratic Socialism in the 1930s, centering on the concept of good household management. [2] In German the concept is Vorsorgeprinzip, which translates into English as precaution principle. The concept includes risk prevention, cost effectiveness, ethical responsibilities towards maintaining the integrity of natural systems, and the fallibility of human understanding. It can also be interpreted as the transfer of more generally applied precaution in daily life (e.g. buying insurance, using seat belts or consulting experts before decisions) to larger political arenas. Operating a large military apparatus for example also is the practical application of precaution against hypothetical threats.

The substance of the precautionary principle is not really new. The essence of the principle is captured in cautionary aphorisms such as 'An ounce of prevention is worth a pound of cure', 'Better safe than sorry', and 'Look before you leap'.[3] The precautionary principle may be interpreted as a generalization of the ancient medical principle, associated with Hippocrates, of "first, do no harm".[4] It may also be compared with the "beyond a reasonable doubt" standard of proof often used in criminal law, which may be seen as the application of the precautionary principle to the assumption of "innocent until proven guilty" (because society sees convicting the innocent as far worse than acquitting the guilty).

In economics, the precautionary principle has been analysed in terms of the effect on rational decision-making of the interaction of irreversibility and uncertainty. Authors such as Epstein (1980) and Arrow and Fischer (1974) show that irreversibility of possible future consequences creates a quasi-option effect which should induce a risk-neutral society to favor current decisions that allow for more flexibility in the future. Gollier et al (2000) conclude that "more scientific uncertainty as to the distribution of a future risk — that is, a larger variability of beliefs — should induce Society to take stronger prevention measures today."

The application of the precautionary principle is hampered by the wide range of interpretations placed on it. One study identified 14 different formulations of the principle in treaties and nontreaty declarations.[5] The range of interpretation may be characterised as running from the need to show that an action is "probably" safe, to showing that it is "definitely" safe. An analogy can be drawn with standards of proof used in law: from the "balance of probabilities" standard often used in civil law, to the "beyond a reasonable doubt" standard of proof often used in criminal law. The distinction with a "beyond all doubt" level of proof, as sometimes demanded by environmental activists in relation to environmental issues, is clear.

This variation in the burden of proof on whether to proceed with an action, however, interacts with varying perspectives on the validity and manner of trading off the action's costs and benefits, particularly when they fall on different groups. This introduces an ethical dimension - for example on the impact on future generations - which falls outside the domain of cost-benefit analysis and risk assessment and in the domain of politics.

The World Charter for Nature, which was adopted by the UN General Assembly in 1982, was the first international endorsement of the precautionary principle. The principle was implemented in an international treaty as early as the 1987 Montreal Protocol, and among other international treaties and declarations [6] is reflected in the 1992 Rio Declaration on Environment and Development (signed at the United Nations Conference on Environment and Development).

On 2 February 2000, the European Commission adopted a communication on the precautionary principle,[7] in which it defined this concept and explained how it intended to apply it. It is also defined in Article III-233 of the draft Treaty establishing a constitution for Europe [8]:

Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional steps, for non economic environmental reasons, subject to a procedure of inspection by the Union.

Saunders (2000) argues that in some instances, notably World Trade Organization policy, there is in effect an "anti-precautionary principle", under which the burden of proof is on society to quickly show that a new product is dangerous, rather than on the innovator to show that it is safe.

Environment/health

Template:Cleanup-date An oft-cited early modern application of the principle was John Snow's 1854 removal of the handle of a water pump in Broad Street, London, in order to prevent a cholera outbreak from the infected well. (At the time, the science on the spread of cholera through contaminated water was not yet conclusive.) However an alternative view is that Dr Snow was absolutely sure about the infected water and an empirical experiment proved him right. Some might argue that the precautionary principle would advocate not having any water pumps at all until society could be abolutely sure that no contaminents could be transmitted in that way.

The German Duke of Wuerttemberg and Teck had as early as 1778 banned the use of lead pipes for drinking water, 200 years before the scientifically grounded WHO guidelines on the toxicity of lead.[9] The application of the principle can be seen in the public policy of requiring pharmaceutical companies to carry out clinical trials to show that new medications are safe, as well as effective.

Fields typically concerned by the precautionary principle are the possibility of:

• Persistent or acute pollution (asbestos...)
• Extinction of species
• Introduction of new and potentially harmful products into the environment, threatening biodiversity (genetically modified organisms (GMO))
• Threats to public health, due to new diseases and techniques (e.g., AIDS transmitted through blood transfusion)
• Food safety (e.g., Creutzfeldt-Jakob disease, concerns about genetically modified food)
• High energy physics and possibly catastrophic experiments
• Other new biosafety issues (e.g., artificial life, new molecules)

The precautionary principle is often applied to biological fields because changes cannot be easily contained; they affect everyone. The principle has less relevance to contained fields such as aeronautics, where the few people undergoing risk have given informed consent (e.g., a test pilot).

Application of the principle modifies the status of innovation and risk assessment: it is not the risk that must be avoided or amended, but a potential risk that must be prevented. Thus, in the case of regulation of scientific research, there may be a third party beyond the scientist and the regulator: the consumer. On the one hand, consumer reactions and fears that do not rely on scientific facts are often considered irrational or purely emotional, and so are not considered in final decisions; on the other, however, many countries choose to consider consumer points of view and media reporting, making politicians, experts and journalists answerable to other actors (e.g. consumer associations, juridical authorities).

In an analysis concerning application of the precautionary principle to nanotechnology, Chris Phoenix and Mike Treder posit that there are two forms of the principle, which they call the "strict form" and the "active form". The former "requires inaction when action might pose a risk", while the latter means "choosing less risky alternatives when they are available, and [...] taking responsibility for potential risks." This refinement offers the possibility of clearer communication and closer understanding between proponents and opponents. Further clarification of the content of the precautionary principle is needed — in and out of the WTO system — in particular on the subject of multilateral agreements on environmental issues.

Change of laws controlling societal norms

Associate justice Martha Sosman's dissent [10]in the decision of the Supreme Judicial Court of Massachusetts that mandated legalization of same sex marriage is an example of the Precautionary principle as applied to changes in culturally significant social policy. She describes the myriad societal structures that rest on the institution of marriage, and points out the uncertainty of how they will be affected by this re-definition. The disagreement of the majority illustrates the difficulty of reaching agreement on the value of competing perspectives.

Criticisms

Template:Cleanup-date Proponents argue that in such situations, rational decision-making requires caution, in a generalisation of a maxim (falsely attributed to the Hippocratic oath, as pointed out by Phoenix and Treder)[11], of "first, do no harm". Critics may argue that such a principle, while correctly applied by a doctor who may have a significant effect an individual patient's life or death, should not be applied to broader policy making that can limit freedom and personal choice.

Critics of the principle argue that it is impractical, since every implementation of a technology carries some risk of negative consequences. Proponents counter that the principle is not an absolute rule, it is a conceptual tool to clarify arguments, and especially an issue of where the burden of proof lies. Someone in a debate regarding a proposal can say, I oppose this proposal on the grounds of the precautionary principle, without necessarily invoking the precautionary principle for other proposals. However, such selectivity in its use is in itself criticised, because it leaves open the possibility that it will only be used in the context of technologies that advocates of the principle typically oppose - such as nuclear fission or genetically modified organisms.

Another standard criticism of the precautionary principle is that it is only applied to new technologies, not the existing technologies that the new technology might supersede. Proponents of the principle argue that this is a misapplication of the principle, and that it should be applied to existing as well as new technologies. But it is arguably an argument for the status quo in the absence of sufficient information to guarantee that change will be for the better ("better the devil you know").

The precautionary principle, as stated, does not take into account the potential positive benefits of a technology, which may be substantial. Thus, it assumes a zero lost opportunity cost, or that there is no cost associated with doing nothing. Studies to prove safety can cost a lot of money, and if it is assumed (or can be shown) that even the most overwhelming proof of safety would be fruitless since it could be dismissed by a sufficient number of determined objectors, these studies would be viewed as a waste of money and not performed - even if the studies really would have shown that the proposal was unsafe. This leads to a further criticism: using the precautionary principle, as opposed to risk assessment or similar approaches, actually impairs safety in practice, even if one ignores any opportunity costs.

Its use is often interpreted as protectionism (such as the case of beef fed with hormones, as dealt with by the World Trade Organisation), or as Neo-luddism in the case of opposition to genetic engineering, nanotechnology, stem cell research and related therapy, or even development of wilderness areas.

Michael Crichton, in his book State of Fear, says that the precautionary principle is "self-contradictory", in that the principle itself might have irreversible and unpredictable consequences, and as such might on its own terms be the wrong course of action.

References

ISBN links support NWE through referral fees

• Arrow, K.J. and Fischer, A.C. (1974), "Environmental preservation, uncertainty and irreversibility", Quarterly Journal of Economics 88(2):312-319.
• Epstein, L.S. (1980), "Decision-making and the temporal resolution of uncertainty", International Economic Review 21(2):269-283.
• Christian Gollier, Bruno Jullien and Nicolas Treich (2000), "Scientific Progress and Irreversibility: An Economic Interpretation of the ‘Precautionary Principle’", Journal of Public Economics 75(2):229-253.
• Harremoës, Poul, David Gee, Malcom MacGarvin, Andy Stirling, Jane Keys, Brian Wynne, Sofia Guedes Vaz. The Precautionary Principle in the 20th Century: Late Lessons from Early Warnings, Earthscan, 2002. Review, Nature, 419, Oct 2002, 433
• O’Riordan, T. and Cameron, J. (1995), Interpreting the Precautionary Principle, Earthscan Publications, London.
• Saunders, P.T. (2000), "Use and Abuse of the Precautionary Principle". Institute of Science in Society Submission to US Advisory Committee on International Economic Policy (ACIEP) Biotech. Working Group, 13 July.

See also

• environmental agreements
• environmental impact statement
• environmental justice
• international environmental law
• property rights
• takings

External links

• International Environmental Law Research Centre (IELRC)
• Environmental Law Program and LL.M., University of Oregon
• Public Interest Environmental Law Conference
• Centre for International Environmental Law
• Law, Environment and Development Journal (LEAD Journal)
• Environmental Law Centre (ELC)
• Environmental Law Alliance Worldwide(E-LAW)
• Environmental Law Net

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